B-138956, APRIL 20, 1959, 38 COMP. GEN. 710

B-138956: Apr 20, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - PAY - ADDITIONAL - FOREIGN DUTY - ALASKA STATEHOOD EFFECT THE RESTRICTION IN 37 U.S.C. 237A AGAINST THE PAYMENT OF FOREIGN DUTY PAY TO ENLISTED MEMBERS OF THE MILITARY SERVICE WHILE PERFORMING DUTY IN THE SAME TERRITORY OR POSSESSION OF THE UNITED STATES WHERE THEY ARE RESIDENTS IS BASED ON RESIDENCE AND DUTY IN THE SAME GEOGRAPHICAL AREA RATHER THAN ON THE POLITICAL STATUS OF THE AREA. THE RESTRICTION WOULD PRECLUDE THE PAYMENT OF FOREIGN DUTY PAY TO ENLISTED PERSONS WHO ARE RESIDENTS OF ALASKA WHILE PERFORMING DUTY IN THE STATE. IN DETERMINATION OF WHETHER AN ENLISTED MEMBER OF THE UNIFORMED SERVICES IS A RESIDENT OF A UNITED STATES TERRITORY WITHIN THE MEANING OF THE RESTRICTION IN 37 U.S.C. 237A.

B-138956, APRIL 20, 1959, 38 COMP. GEN. 710

MILITARY PERSONNEL - PAY - ADDITIONAL - FOREIGN DUTY - ALASKA STATEHOOD EFFECT THE RESTRICTION IN 37 U.S.C. 237A AGAINST THE PAYMENT OF FOREIGN DUTY PAY TO ENLISTED MEMBERS OF THE MILITARY SERVICE WHILE PERFORMING DUTY IN THE SAME TERRITORY OR POSSESSION OF THE UNITED STATES WHERE THEY ARE RESIDENTS IS BASED ON RESIDENCE AND DUTY IN THE SAME GEOGRAPHICAL AREA RATHER THAN ON THE POLITICAL STATUS OF THE AREA; THEREFORE, THE CHANGE OF ALASKA FROM A TERRITORY TO A STATE DOES NOT AFFECT THE RESTRICTION, AND THE RESTRICTION WOULD PRECLUDE THE PAYMENT OF FOREIGN DUTY PAY TO ENLISTED PERSONS WHO ARE RESIDENTS OF ALASKA WHILE PERFORMING DUTY IN THE STATE. IN DETERMINATION OF WHETHER AN ENLISTED MEMBER OF THE UNIFORMED SERVICES IS A RESIDENT OF A UNITED STATES TERRITORY WITHIN THE MEANING OF THE RESTRICTION IN 37 U.S.C. 237A, WHICH PRECLUDES FOREIGN DUTY PAY TO MEMBERS WHOSE RESIDENCE AND DUTY ARE IN THE SAME TERRITORY SUCH AS IN ALASKA, THE VOTING RESIDENCE WHILE BEING AN ELEMENT FOR CONSIDERATION IS NOT CONTROLLING, BUT A MEMBER WHO VOTED IN THE REFERENDUM AND WHO ALSO INDICATED IN A REFERENDUM QUESTIONNAIRE THAT HE DID NOT CLAIM EXEMPTION FROM PAYMENT OF LOCAL TAXES IN ALASKA DUE TO GIVING UP RESIDENCE IN HIS HOME STATE WOULD BE SUBJECT TO THE RESTRICTION IN 37 U.S.C. 237A AND WOULD NOT BE ENTITLED TO FOREIGN DUTY PAY FOR DUTY IN ALASKA; HOWEVER, THE ACT OF VOTING WITHOUT OTHER AFFIRMATIVE EVIDENCE OF RESIDENCE ESTABLISHMENT IN ALASKA WOULD NOT DEPRIVE A MEMBER OF FOREIGN DUTY PAY.

TO LIEUTENANT COLONEL E. E. BARTO, DEPARTMENT OF THE ARMY, APRIL 20, 1959:

BY FIRST ENDORSEMENT DATED MARCH 9, 1959, THE OFFICE OF CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF FEBRUARY 20, 1959, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION WHETHER IN VIEW OF THE LIMITATION IN SECTION 729 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, 68 STAT. 355, 37 U.S.C. 237A, MASTER SERGEANT JOE E. WOOD, RO 39 951 297, AND MASTER SERGEANT JOHN W. WILEMON, RA 44 145 531, ARE ENTITLED TO FOREIGN DUTY PAY FROM JANUARY 3, 1959, AND FEBRUARY 1, 1959, RESPECTIVELY. YOUR SUBMISSION WAS ASSIGNED D.O. NO. 404 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE CASE OF SERGEANT WOOD, YOU STATE THAT HE IS CLAIMING FOREIGN DUTY PAY AS A RESIDENT OF ALASKA FROM THE DATE THE TERRITORY BECAME A STATE ON JANUARY 3, 1959, AND THAT HE WAS A RESIDENT OF ALASKA WHEN IT WAS A TERRITORY, AND THUS WAS INELIGIBLE FOR FOREIGN DUTY PAY PRIOR TO THAT DATE UNDER THE RESTRICTION CONTAINED IN 37 U.S.C. 237A.

IN THE CASE OF SERGEANT WILEMON, YOU STATE HE IS CLAIMING FOREIGN DUTY PAY FROM FEBRUARY 1, 1959, PAYMENT THEREOF HAVING BEEN SUSPENDED ON JANUARY 31, 1959, PENDING DETERMINATION OF HIS ENTITLEMENT THERETO. APPEARS THAT THE MEMBER VOTED IN THE ALASKAN STATEHOOD REFERENDUM ON AUGUST 26, 1958, THE VOTING QUALIFICATIONS FOR WHICH REQUIRED THAT THE VOTER BE A BONA FIDE RESIDENT OF ALASKA FOR AT LEAST 1 YEAR. YOU FURTHER STATE THAT THIS INFORMATION WAS PUBLISHED FOR THE INFORMATION OF ALL MEMBERS CONCERNED BY THE DEPARTMENT OF THE ARMY. IN ADDITION, EACH PROSPECTIVE MILITARY VOTER WAS SUPPOSED TO COMPLETE A QUESTIONNAIRE PREPARED BY THE UNITED STATES COMMISSIONER'S OFFICE IN WHICH HE WAS ASKED IF HE HAD GIVEN UP HIS HOME OR DOMICILE IN HIS HOME STATE THEREBY INTENDING TO MAKE ALASKA HIS PERMANENT HOME, AND WHETHER HE CLAIMED EXEMPTION FROM PAYMENT OF LOCAL TAXES IN ALASKA ON THE BASIS OF RESIDENCE IN ANOTHER PLACE. HOWEVER, IT APPEARS THAT THE OFFICIALS AT THE POLLING PLACES DID NOT COMPLY WITH THIS LATTER REQUIREMENT IN SERGEANT WILEMON'S CASE AND THAT HE HAS NOT CHANGED HIS HOME OF RECORD- - FROM THE PLACE RECORDED AS HIS HOME WHEN HE ENLISTED--- TO ALASKA.

THE FOLLOWING QUESTIONS ARE SUBMITTED:

A. INASMUCH AS SPECIAL PAY FOR FOREIGN DUTY IS SPECIFICALLY AUTHORIZED FOR MEMBERS ON DUTY IN ALASKA, AND THE FACT THAT ALASKA IS A STATE AS OPPOSED TO A TERRITORY OR POSSESSION, DOES THE LIMITATION CONTAINED IN 37 U.S.C. 237A CONTINUE TO APPLY TO ALASKA RESIDENTS SUCH AS M/SGT WOOD?

B. IF THE ANSWER TO "A" IS AFFIRMATIVE, DID THE ACT OF VOTING IN THE STATEHOOD REFERENDUM (REGARDLESS OF WHETHER THE QUESTIONNAIRE WAS COMPLETED) ESTABLISH ALASKA AS M/SGT WILEMON'S RESIDENCE, THEREBY ENDING HIS ENTITLEMENT TO FOREIGN DUTY PAY?

THE STATUTORY AUTHORITY FOR PAYMENT OF FOREIGN DUTY PAY IS CONTAINED IN SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 237, WHICH PROVIDES THAT, UNDER REGULATIONS, ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO BASIC PAY SHALL RECEIVE FOREIGN DUTY PAY IN ADDITION THERETO WHILE ON SEA DUTY, OR ON DUTY "IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, OR IN ALASKA.' SECTION 729 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, 68 STAT. 355, 37 U.S.C. 237A, PROVIDES THAT AFTER JUNE 30, 1954, NO PART OF THE FUNDS APPROPRIATED TO THE DEPARTMENT OF DEFENSE SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON IN THE MILITARY SERVICE WHO IS A RESIDENT OF A UNITED STATES TERRITORY OR POSSESSION, OF ANY FOREIGN DUTY PAY AS PRESCRIBED IN SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949,"UNLESS SUCH PERSON IS SERVING IN AN AREA OUTSIDE THE TERRITORY OR POSSESSION OF WHICH HE IS A RESIDENT.' PARAGRAPH 3-4, ARMY REGULATIONS 37-104, PROVIDES THAT, FOR FOREIGN DUTY PAY PURPOSES,"DUTY PERFORMED IN A UNITED STATES TERRITORY OR POSSESSION, BY AN ENLISTED MEMBER WHO IS A RESIDENT OF SUCH TERRITORY OR POSSESSION * * * IS NOT CONSIDERED AS FOREIGN DUTY," AND THAT "A MEMBER IS CONSIDERED TO BE A RESIDENT OF A TERRITORY OR POSSESSION WHEN HIS HOME OF RECORD (PLACE RECORDED AS HOME WHEN ENLISTED OR ORDERED TO ACTIVE DUTY) IS SUCH TERRITORY OR POSSESSION.'

THE PROVISIONS OF THE ACT OF JULY 7, 1958, PUBLIC LAW 85-508, 72 STAT. 339, RELATING TO THE ADMISSION OF THE STATE OF ALASKA INTO THE UNION WHICH ARE PERTINENT HERE, ARE CONTAINED IN SECTION 8 (D) OF THE STATUTE AS FOLLOWS:

UPON ADMISSION OF THE STATE OF ALASKA INTO THE UNION AS HEREIN PROVIDED, ALL OF THE TERRITORIAL LAWS THEN IN FORCE IN THE TERRITORY OF ALASKA SHALL BE AND CONTINUE IN FULL FORCE AND EFFECT THROUGHOUT SAID STATE EXCEPT AS MODIFIED OR CHANGED BY THIS ACT, OR BY THE CONSTITUTION OF THE STATE, OR AS THEREAFTER MODIFIED OR CHANGED BY THE LEGISLATURE OF THE STATE. ALL OF THE LAWS OF THE UNITED STATES SHALL HAVE THE SAME FORCE AND EFFECT WITHIN SAID STATE AS ELSEWHERE WITHIN THE UNITED STATES. AS USED IN THIS PARAGRAPH, THE TERM " TERRITORIAL LAWS" INCLUDES (IN ADDITION TO LAWS ENACTED BY THE TERRITORIAL LEGISLATURE OF ALASKA) ALL LAWS OR PARTS THEREOF ENACTED BY THE CONGRESS THE VALIDITY OF WHICH IS DEPENDENT SOLELY UPON THE AUTHORITY OF THE CONGRESS TO PROVIDE FOR THE GOVERNMENT OF ALASKA PRIOR TO THE ADMISSION OF THE STATE OF ALASKA INTO THE UNION, AND THE TERM "LAWS OF THE UNITED STATES" INCLUDES ALL LAWS OR PARTS THEREOF ENACTED BY THE CONGRESS THAT (1) APPLY TO OR WITHIN ALASKA AT THE TIME OF THE ADMISSION OF THE STATE OF ALASKA INTO THE UNION, (2) ARE NOT " TERRITORIAL LAWS" AS DEFINED IN THIS PARAGRAPH, AND (3) ARE NOT IN CONFLICT WITH ANY OTHER PROVISIONS OF THIS ACT.

IN CONNECTION WITH THE FOREGOING IT IS STATED ON PAGE 22 OF SENATE REPORT NO. 1163, DATED AUGUST 29, 1957, WHICH ACCOMPANIED S. 49, SECTION 8 (D) OF WHICH IS IDENTICAL WITH THE LANGUAGE APPEARING IN SECTION 8 (D) OF PUBLIC LAW 85-508:

SUBSECTION 8 (D) IS AN AMENDMENT PROVIDING FOR THE CONTINUATION OF LAWS WHICH ARE IN EFFECT AT THE DATE OF ADMISSION. ALL TERRITORIAL LAWS AND ALL UNITED STATES LAWS WILL CONTINUE IN EFFECT EXCEPT AS THEY ARE CHANGED BY THE ACT OR MAY PROPERLY BE CHANGED BY STATE LAW. THE TERM " TERRITORIAL LAWS" IS DEFINED TO INCLUDE LAWS OF THE UNITED STATES WHICH ARE ENACTED SOLELY UNDER THE AUTHORITY OF THE UNITED STATES TO PROVIDE FOR THE GOVERNMENT OF ALASKA PRIOR TO STATEHOOD.

IN VIEW OF THE LANGUAGE IN SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZING PAYMENT OF FOREIGN DUTY PAY FOR DUTY "IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA," IT APPEARS CLEAR THAT THE RIGHT OF ELIGIBLE PERSONNEL TO SUCH PAY IS NOT AFFECTED BY THE FACT THAT ALASKA IS NOW A STATE. CF. B-137903, DECEMBER 18, 1958, 38 COMP. GEN. 447. IT APPEARS EQUALLY CLEAR THAT IN ENACTING THE LEGISLATION CONTAINED IN 37 U.S.C. 237A, THE CONGRESS INTENDED THAT ENLISTED PERSONS WHO ARE RESIDENTS OF ALASKA SHOULD NOT RECEIVE SUCH PAY WHILE PERFORMING DUTY IN ALASKA.

IT WILL BE NOTED THAT THE BARRING OF A RIGHT TO FOREIGN DUTY PAY IN 37 U.S.C. 237A IS BASED ON RESIDENCE AND DUTY IN AN AREA WHICH WAS EITHER A TERRITORY OR POSSESSION OF THE UNITED STATES AT THE TIME SUCH LEGISLATION WAS ENACTED. WHILE THE LANGUAGE USED NECESSARILY WAS PHRASED IN TERMS OF THE POLITICAL STATUS OF THE AREAS INVOLVED AT THAT TIME, THE BASIC FACTOR APPEARS TO BE RESIDENCE IN CERTAIN GEOGRAPHICAL AREAS RATHER THAN THE POLITICAL STATUS OF SUCH AREAS. SINCE THE RESTRICTION OF THE STATUTE IS NOT BASED ON THE DIFFERENCE BETWEEN THE STATUS OF STATEHOOD AND THAT OF A TERRITORY OR POSSESSION, A CHANGE OF STATUS FROM A TERRITORY TO A STATE CANNOT BE SIAD TO AFFECT THE RESTRICTION. HAVING THUS INDICATED ITS INTENT, AN INTENT TO CHANGE THE LAW CANNOT BE IMPUTED TO THE CONGRESS IN THE ABSENCE OF LANGUAGE CLEARLY SO PROVIDING. WHILE ALASKA IS NO LONGER A TERRITORY OF THE UNITED STATES, THE RIGHT OF RESIDENTS OF THAT STATE TO FOREIGN DUTY PAY FOR DUTY THERE PERFORMED IS OF SUCH DOUBTFUL LEGALITY AS NOT TO WARRANT PAYMENT OF THE CLAIM OF SERGEANT WOOD AND OTHERS SIMILARLY SITUATED. CF. B-137735, DECEMBER 30, 1958, 38 COMP. GEN. 458. ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE.

IT REASONABLY APPEARS THAT THE PRIMARY OBJECTIVE SOUGHT TO BE ACCOMPLISHED BY THE RESTRICTION CONTAINED IN 37 U.S.C. 237A WAS TO PRECLUDE THE PAYMENT OF FOREIGN DUTY PAY TO MEMBERS WHOSE RESIDENCE IN A PLACE SUCH AS ALASKA IS NOT ATTRIBUTABLE TO THEIR DUTIES AT THAT PLACE, BUT WHO ACTUALLY WERE RESIDENTS OF SUCH AREA WHEN THEY ENLISTED OR WERE CALLED TO ACTIVE DUTY. WHILE THE VOTING RESIDENCE OF A MEMBER IS AN ELEMENT FOR CONSIDERATION, IT IS NOT NECESSARILY CONTROLLING IN DETERMINING WHETHER A MEMBER IS A RESIDENT OF A UNITED STATES TERRITORY WITHIN THE MEANING OF 37 U.S.C. 237A. SEE IN THIS CONNECTION 35 COMP. GEN. 244; ID. 270. WE REGARD THE ADDITIONAL FACT OF COMPLETION OF THE INDICATED REFERENDUM QUESTIONNAIRE BY APPROPRIATE ANSWERS STATING THAT THE MEMBER DID NOT CLAIM EXEMPTION FROM PAYMENT OF LOCAL TAXES IN ALASKA DUE TO THE FACT HE HAD GIVEN UP HIS RESIDENCE IN HIS HOME STATE AND THAT HE PRESENTLY INTENDED TO MAKE ALASKA HIS PERMANENT HOME, AS SUFFICIENT TO BRING HIM WITHIN THE RESTRICTION OF 37 U.S.C. 237A. HOWEVER, IT IS UNDERSTOOD THAT SERGEANT WILEMON DID NOT SIGN SUCH QUESTIONNAIRE AND IT CANNOT BE ASSUMED THAT HE WOULD HAVE MADE SUCH REPLIES IF HE HAD BEEN REQUIRED TO COMPLETE THE QUESTIONNAIRE BEFORE RECEIVING A BALLOT, AND IN THE ABSENCE OF OTHER AFFIRMATIVE EVIDENCE ESTABLISHING THAT HE HAS CHANGED HIS PERMANENT RESIDENCE TO ALASKA, THE FACT THAT HE VOTED IN THE ALASKA STATEHOOD REFERENDUM IS NOT SUFFICIENT TO DEPRIVE HIM OF HIS RIGHT TO CONTINUE TO RECEIVE FOREIGN DUTY PAY. QUESTION "B" IS ANSWERED ACCORDINGLY.

THE VOUCHER DRAWN IN FAVOR OF SERGEANT WILEMON IS RETURNED HEREWITH FOR APPROPRIATE ACTION.