B-144057, NOVEMBER 16, 1960, 40 COMP. GEN. 288

B-144057: Nov 16, 1960

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AN ENLISTED MEMBER ON DUTY IN THE PHILIPPINES IS ENTITLED TO FOREIGN DUTY PAY REGARDLESS OF HIS STATUS AS A PHILIPPINE NATIONAL OR HIS RESIDENCE IN THE PHILIPPINES. AGAINST PAYMENT OF FOREIGN DUTY PAY TO ENLISTED MEMBERS WHO ARE RESIDENTS OF THE UNITED STATES TERRITORY OR POSSESSION IN WHICH THEY ARE SERVING. WHO IS SERVING ON DUTY AT CLARK AIR BASE. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. WHOSE PLACE OF RESIDENCE IS THE PHILIPPINES. SINCE THE PHILIPPINES NO LONGER IS A " TERRITORY" OF THE UNITED STATES. WE HAVE FOUND NO LAW OR REGULATION PROHIBITING OR RESTRICTING ADDITIONAL PAY FOR FOREIGN SERVICE DUTY TO ENLISTED MEMBERS OF THE ARMED FORCES OF THE UNITED STATES SERVING ON ACTIVE DUTY IN THE PHILIPPINES.

B-144057, NOVEMBER 16, 1960, 40 COMP. GEN. 288

MILITARY PERSONNEL - FOREIGN DUTY PAY - PHILIPPINES - STATUS SINCE SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 237, CLEARLY AUTHORIZES PAYMENT OF FOREIGN DUTY PAY TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR ALASKA, AN ENLISTED MEMBER ON DUTY IN THE PHILIPPINES IS ENTITLED TO FOREIGN DUTY PAY REGARDLESS OF HIS STATUS AS A PHILIPPINE NATIONAL OR HIS RESIDENCE IN THE PHILIPPINES, THE RESTRICTION IN SECTION 729 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, AGAINST PAYMENT OF FOREIGN DUTY PAY TO ENLISTED MEMBERS WHO ARE RESIDENTS OF THE UNITED STATES TERRITORY OR POSSESSION IN WHICH THEY ARE SERVING, NOT BEING APPLICABLE TO THE PHILIPPINES.

TO MAJOR E. L. GIPSON, DEPARTMENT OF THE AIR FORCE, NOVEMBER 16, 1960:

BY LETTER DATED SEPTEMBER 21, 1960, THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF AUGUST 24, 1960, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF FOREIGN SERVICE PAY FROM JULY 20, 1960, TO AIRMAN FIRST CLASS VICENTE TUMAGHAP, AF 10304258, A PHILIPPINE NATIONAL, WHO IS SERVING ON DUTY AT CLARK AIR BASE, PHILIPPINES. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-531 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

YOU SAY THAT HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN THEIR LETTER OF JULY 20, 1960, RECOMMENDED THAT PAYMENTS OF FOREIGN SERVICE PAY TO AIRMAN TUMAGHAP, WHOSE PLACE OF RESIDENCE IS THE PHILIPPINES, BE DISCONTINUED. HOWEVER, SINCE THE PHILIPPINES NO LONGER IS A " TERRITORY" OF THE UNITED STATES, YOU DOUBT THAT THE PROVISIONS OF PARAGRAPH 21001B, AIR FORCE MANUAL 177-105, WOULD RESTRICT AIRMAN TUMAGHAP'S ENTITLEMENT TO FOREIGN SERVICE PAY.

WE HAVE FOUND NO LAW OR REGULATION PROHIBITING OR RESTRICTING ADDITIONAL PAY FOR FOREIGN SERVICE DUTY TO ENLISTED MEMBERS OF THE ARMED FORCES OF THE UNITED STATES SERVING ON ACTIVE DUTY IN THE PHILIPPINES. RATHER, IT HAS BEEN OBSERVED THAT TEMPORARY LEGISLATION ENACTED DURING WORLD WAR II AND PERMANENT LEGISLATION ENACTED THEREAFTER, CITED BELOW, PROVIDED FOR THE PAYMENT OF FOREIGN SERVICE PAY TO ENLISTED PERSONNEL SERVING IN THAT FOREIGN COUNTRY.

UNDER THE PROVISIONS OF SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, 37 U.S.C. 102 (1946 USED.), MEMBERS OF THE MILITARY AND NAVAL FORCES WERE ENTITLED TO PERCENTAGE INCREASES IN THEIR BASE PAY FOR PERIODS OF SERVICE WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. BY SECTION 12 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 542, 37 U.S.C. 102 (1946 USED.), SECTION 2 WAS MADE PERMANENT LEGISLATION.

PAYMENT OF FOREIGN DUTY PAY WAS CONTINUED FOR ENLISTED PERSONNEL BY SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 237, UNDER WHICH ENTITLEMENT TO THE FOREIGN DUTY PAY IS ON THE BASIS OF FIXED MONTHLY RATES BY GRADE. THAT SECTION PROVIDES IN PERTINENT PART THAT:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ENLISTED PERSONS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, WHILE ON SEA DUTY OR WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, BE ENTITLED TO RECEIVE PAY AT THE FOLLOWING MONTHLY RATES * * *

BY SECTION 729 OF THE ACT OF JUNE 30, 1954 ( DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955), 68 STAT. 355, 37 U.S.C. 237A, AN ENLISTED MEMBER WHO IS A RESIDENT OF A UNITED STATES TERRITORY OR POSSESSION IS EXCLUDED FROM RECEIVING THE BENEFITS OF SECTION 206 DURING SUCH TIME HE IS SERVING ON DUTY IN THE TERRITORY OR POSSESSION OF WHICH HE IS RESIDENT.

PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 206, THERE WAS PROMULGATED EXECUTIVE ORDER NO. 10168, DATED OCTOBER 11, 1950, 15 FR 6877, AS AMENDED BY EXECUTIVE ORDER NO. 10821, DATED MAY 20, 1959, 24 FR 4123. ALSO, THE SEVERAL MILITARY DEPARTMENTS OF THE DEPARTMENT OF DEFENSE HAVE ISSUED REGULATIONS FOR GUIDANCE OF THEIR PERSONNEL, THE APPLICABLE REGULATIONS AS AFFECTING AIR FORCE PERSONNEL BEING PARAGRAPHS 21001, ET SEQ., AIR FORCE 1105 OF JULY 1, 1960.

IN DECISION OF APRIL 17, 1942, 21 COMP. GEN. 932, 937, WE HELD THAT FOREIGN SERVICE PAY PURSUANT TO THE PROVISIONS OF SECTION 18 OF THE ACT OF MARCH 7, 1942, MAY BE PAID TO PHILIPPINE NATIONALS IN THE UNITED STATES NAVY ( INSULAR FORCE) SERVING ON DUTY IN THE PHILIPPINES, SOLELY ON THE BASIS OF THEIR STATUS AS ENLISTED MEN IN THE REGULAR NAVY OF THE UNITED STATES. COMPARE DECISION OF MARCH 11, 1947, 26 COMP. GEN. 665, HOLDING THAT MEMBERS OF THE NATIONAL GUARD OF UNITED STATES TERRITORIES AND POSSESSIONS WERE ENTITLED TO FOREIGN SERVICE PAY WHILE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PRESCRIBED IN SECTIONS 94, 97, OR 99, 32 U.S.C. 63, 64, AND 65 (1952 USED.), OF THE NATIONAL DEFENSE ACT, AS AMENDED, WITHOUT REGARD TO THEIR PLACE OF NATIVITY OF RESIDENCE.

SINCE THE LANGUAGE OF SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, LIKE THAT IN SECTION 18 OF THE ACT OF MARCH 7, 1942, PROVIDES FOR THE PAYMENT OF THE FOREIGN SERVICE PAY TO ENLISTED MEMBERS "WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN SKA," IT IS REASONABLY CLEAR THAT AIRMAN TUMAGHAP, AS A MEMBER OF THE UNITED STATES AIR FORCE, IS ENTITLED TO THE ADDITIONAL PAY REGARDLESS OF HIS STATUS AS A PHILIPPINE NATIONAL OR HIS RESIDENCE IN THE PHILIPPINES. THE PROVISIONS OF SECTION 729 OF THE ACT OF JUNE 30, 1954, ARE NOT FOR APPLICATION IN HIS CASE, SINCE THE PHILIPPINES NO LONGER IS A POSSESSION OF THE UNITED STATES. CF. DECISION OF APRIL 20, 1959, 38 COMP. GEN. 710.

ACCORDINGLY, YOU ARE ADVISED THAT AIRMAN TUMAGHAP IS ENTITLED TO RECEIVE THE ADDITIONAL PAY FOR FOREIGN SERVICE FROM DATE OF DISCONTINUANCE. THE MILITARY PAY ORDER RECEIVED WITH YOUR LETTER IS RETURNED HEREWITH.