B-151360, JULY 30, 1963, 43 COMP. GEN. 94

B-151360, JULY 30, 1963, 43 COMP. GEN. 94

MILITARY PERSONNEL - CADETS, MIDSHIPMEN, ETC. - RATION PAYMENT CONCURRENTLY WITH PER DIEM SINCE THE COMMUTED VALUE OF RATIONS WHICH CADETS AND MIDSHIPMEN AT THE SERVICE ACADEMIES ARE ENTITLED TO RECEIVE WITHOUT DEDUCTION WHEN THE RATION ITSELF IS NOT FURNISHED IS MORE ANALOGOUS TO THE ALLOWANCE OFFICERS ARE ENTITLED TO RECEIVE THAN TO THE PAYMENT FOR SUBSISTENCE IN KIND RECEIVED BY ENLISTED PERSONNEL, THE PROVISIONS IN SECTION 3 (E) OF EXECUTIVE ORDER NO. 10119 PRECLUDING ENLISTED PERSONNEL FROM RECEIVING A RATION ALLOWANCE WHEN THEY ARE IN A TRAVEL STATUS ARE NOT APPLICABLE TO CADETS AND MIDSHIPMEN; THEREFORE, WHEN CADETS AND MIDSHIPMEN ARE IN A TRAVEL STATUS RECEIVING PER DIEM THEY MAY ALSO RECEIVE THE COMMUTED VALUE OF THE RATION WHEN RATIONS ARE NOT FURNISHED OR WHEN REQUIRED TO PAY FOR MEALS AT OFFICERS' CLOSED MESS OR OFFICERS' FIELD RATION MESS.

TO THE SECRETARY OF DEFENSE, JULY 30, 1963:

REFERENCE IS MADE TO LETTER OF APRIL 19, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER CADETS AND MIDSHIPMEN AT THE ACADEMIES ARE ENTITLED TO THE COMMUTED VALUE OF THE RATION WHILE IN A TRAVEL STATUS ENTITLED TO PER DIEM UNDER PARAGRAPH 5001 OF THE JOINT TRAVEL REGULATIONS.

THE QUESTION PRESENTED IS SET FORTH IN COMMITTEE ACTION NO. 319 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

IS A CADET OF THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, THE COAST GUARD ACADEMY, OR A MIDSHIPMAN OF THE UNITED STATES NAVAL ACADEMY ENTITLED TO THE COMMUTED VALUE OF THE RATION WHILE HE IS IN A TRAVEL STATUS AND

(1) IS NOT FURNISHED RATIONS, OR

(2) MESSES AT AN OFFICER'S CLOSED MESS OR OFFICER'S FIELD RATION MESS BUT IS REQUIRED TO PAY FOR HIS MEALS?

A DISCUSSION OF THIS PROBLEM IN COMMITTEE ACTION 319 POINTS OUT THAT WHILE ENLISTED MEMBERS IN RECEIPT OF PER DIEM ARE NOT ENTITLED TO RECEIVE A SUBSISTENCE ALLOWANCE, OFFICERS CONTINUE TO RECEIVE THEIR SUBSISTENCE ALLOWANCES CONCURRENTLY WITH PER DIEM AND, WITH CERTAIN MODIFICATIONS, PER DIEM ALLOWANCES ARE AUTHORIZED FOR CADETS AND MIDSHIPMEN ON THE SAME BASIS AS OFFICERS. ON THE BASIS THAT CADETS AND MIDSHIPMEN LONG HAVE BEEN REGARDED AS HAVING AN OFFICER STATUS AND UNDER PERTINENT LAW AND REGULATIONS ARE ENTITLED TO A RATION OR THE COMMUTED VALUE THEREOF AT ALL TIMES, THE VIEW IS EXPRESSED THAT UNLESS PAYMENT OF THE PER DIEM ALLOWANCE CONSTITUTES PAYMENT OF THE COMMUTED RATION, THEY ARE ENTITLED TO THE RATION OR ITS COMMUTED VALUE CONCURRENTLY WITH PER DIEM.

SECTION 422 (A) OF TITLE 37 OF THE U.S.C. PROVIDES THAT A CADET AT THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, OR THE COAST GUARD ACADEMY, OR A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, IS ENTITLED TO THE ALLOWANCES PROVIDED BY LAW FOR A "MIDSHIPMAN IN THE NAVY," AND TO TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED UNDER SECTION 410 OF TITLE 37 WHILE TRAVELING UNDER ORDERS AS A CADET OR MIDSHIPMAN. SECTION 410 PROVIDES THAT MIDSHIPMAN OF THE UNITED STATES NAVAL ACADEMY AND CADETS OF THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY AND THE COAST GUARD ACADEMY ARE ENTITLED TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES, PROVIDED BY SECTION 404 OF TITLE 37 AS PRESCRIBED BY THE SECRETARIES CONCERNED. SUBSECTION 422 (B) OF TITLE 37 PROVIDES THAT EACH MIDSHIPMAN OF THE NAVY TO WHOM A NAVY RATION IS NOT FURNISHED IS ENTITLED TO THE COMMUTED VALUE OF THE RATION IN MONEY FOR EACH DAY THAT HE IS ON ACTIVE DUTY, INCLUDING EACH DAY THAT HE IS ON LEAVE, AND THAT THE SECRETARY OF THE NAVY MAY PRESCRIBE REGULATIONS STATING THE CONDITIONS UNDER WHICH THE COMMUTED VALUE SHALL BE ALLOWED AND MAY PRESCRIBE REGULATIONS ESTABLISHING THE RATES AT WHICH RATIONS SHALL BE COMMUTED. PARAGRAPH 044785 OF THE NAVY COMPTROLLER MANUAL PROVIDES, PRESUMABLY UNDER THE AUTHORITY, THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE ENTITLED TO ONE RATION OR COMMUTATION THEREOF AT ALL TIMES.

SECTION 402 OF TITLE 37 PROVIDES GENERALLY FOR BASIC ALLOWANCES FOR SUBSISTENCE FOR MEMBERS OF THE UNIFORMED SERVICES. UNDER THAT SECTION ENLISTED MEMBERS ARE ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS ONLY FOR PERIODS (1) WHEN RATIONS IN KIND ARE NOT AVAILABLE, (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED, OR (3)WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WERE NO MESSING FACILITIES ARE AVAILABLE. THEY ARE NOT ENTITLED TO THE ALLOWANCE ,WHILE BEING SUBSISTED AT THE EXPENSE OF THE UNITED STATES.' OFFICERS ARE ENTITLED "AT ALL TIMES" TO THE BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS. SINCE OFFICERS ARE NOT SUBSISTED IN KIND BUT ARE PAID A MONTHLY SUBSISTENCE ALLOWANCE AND ARE REQUIRED TO PROVIDE THEIR OWN MEALS, IT IS CONSIDERED THAT THEIR MONTHLY SUBSISTENCE ALLOWANCE RELATES TO THE NORMAL CONDITION OF OFFICERS AND CONTINUES TO BE PAYABLE IN ADDITION TO THE PER DIEM RECEIVED DURING PERIODS WHILE THEY ARE TRAVELING AWAY FROM THEIR DUTY STATIONS. UNDER NORMAL CIRCUMSTANCES ENLISTED MEN ARE SUBSISTED IN KIND AND, UNDER THE EXPRESSED LANGUAGE OF THE LAW, THE ALLOWANCE DOES NOT ACCRUE WHEN ENLISTED PERSONNEL ARE IN FACT SUBSISTED AT GOVERNMENT EXPENSE. SINCE SECTION 3 (E) OF EXECUTIVE ORDER NO. 10119, MARCH 30, 1950, AS AMENDED, EXPRESSLY PROVIDES THAT THE TERM "BEING SUBSISTED AT GOVERNMENT EXPENSE" AS USED IN 37 U.S.C. 402 SHALL BE CONSIDERED APPLICABLE TO ENLISTED MEMBERS WHILE THEY ARE IN A TRAVEL STATUS AND ARE ENTITLED TO A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE OR TO A MILEAGE ALLOWANCE, THEY ARE NOT ENTITLED TO SUCH ALLOWANCE WHILE ENTITLED TO PER DIEM. THESE GENERAL SUBSISTENCE ALLOWANCES PROVISIONS, HOWEVER, HAVE NO APPLICATION TO CADETS AND MIDSHIPMEN AT THE SERVICE ACADEMIES, THEY BEING ASSIMILATED FOR SUBSISTENCE ALLOWANCE PURPOSES TO A "MIDSHIPMAN IN THE NAVY.'

MIDSHIPMEN IN THE NAVY WERE FIRST PROVIDED FOR IN THE ACT OF MARCH 27, 1794, 1 STAT. 350, AND WERE DENOMINATED WARRANT OFFICERS. BY THE ACT OF JULY 16, 1862, 12 STAT. 583, THEY WERE MADE NINTH IN GRADE IN THE ACTIVE LIST OF LINE OFFICERS OF THE NAVY. THE SAME ACT DECLARED THAT STUDENTS AT THE NAVAL ACADEMY SHOULD BE STYLED MIDSHIPMEN. SECTION 12 OF THE ACT OF JULY 15, 1870, 16 STAT. 321, LATER EMBODIED IN SECTION 1512 OF THE REVISED STATUTES, CHANGED THE TITLE OF NAVAL ACADEMY STUDENTS TO CADET- MIDSHIPMEN. SUBSEQUENTLY, THE ACT OF AUGUST 5, 1882, 22 STAT. 284, CHANGED THEIR TITLE TO NAVAL CADETS. SECTION 1362 OF THE REVISED STATUTES NAMED THE ACTIVE LIST OF OFFICERS OF THE NAVY AND MADE MIDSHIPMEN, WHICH THEN INCLUDED ACADEMY STUDENTS, ELEVENTH OF THE LIST OF OFFICERS. THE NAVAL APPROPRIATION ACT OF MARCH 3, 1883, 22 STAT. 472, HOWEVER, CHANGED THE TITLE OF MIDSHIPMEN TO ENSIGN THEREBY DISCONTINUING THE GRADE OF MIDSHIPMAN IN THE NAVY AND SUCH GRADE HAS NOT SINCE BEEN INCLUDED IN THE STATUTORY LISTING OF OFFICERS. THE ACT OF JULY 1, 1902, 32 STAT. 686, 34 U.S.C. 1031 (1952 ED.), CHANGED THE TITLE OF NAVAL ACADEMY STUDENTS FROM NAVAL CADET TO MIDSHIPMAN. THUS, SINCE THE ACT OF MARCH 3, 1883, THERE HAS BEEN NO SUCH RANK AS MIDSHIPMAN IN THE NAVY EXCEPT AS IT MAY REFER TO STUDENTS AT THE NAVAL ACADEMY.

SECTION 1577 OF THE REVISED STATUTES PROVIDED THAT MIDSHIPMEN IN THE NAVY SHOULD BE ENTITLED TO ONE RATION, OR TO COMMUTATION THEREFOR. THIS PROVISION WAS IN SUBSTANCE THE SAME AS THAT CONTAINED IN SECTION 1578 OF THE REVISED STATUTES THERE PROVIDING THE RATION FOR OTHER OFFICERS. THE COMPOSITION OF THIS RATION AND ITS COMMUTED VALUE IN MONEY WERE SPECIFICALLY FIXED BY STATUTE. THE RATION WAS NOT THEN AUTHORIZED FOR ENLISTED MEN. FOLLOWING THE CHANGE OF THE TITLE OF NAVAL ACADEMY STUDENTS FROM MIDSHIPMAN TO NAVAL CADET, SECTION 1577 OF THE REVISED STATUTES WERE SUPERSEDED BY THE ACT OF JANUARY 30, 1885, 23 STAT. 291, PROVIDING THAT ENLISTED MEN, BOYS AND NAVAL CADETS SHALL BE ALLOWED A RATION, OR COMMUTATION THEREOF IN MONEY, UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE. THE ACT OF JULY 1, 1902, SUPRA, AMENDED SUCH PROVISIONS TO CHANGE THE TERM "NAVAL CADET" TO "MIDSHIPMAN" TO MAKE IT AGREE WITH THE CHANGE WHICH IT HAD EFFECTED IN THE TITLE OF NAVAL ACADEMY STUDENTS. SECTION 1578 OF THE REVISED STATUTES PROVIDING THE RATION FOR OFFICERS OF THE NAVY WAS REPEALED BY THE NAVY PERSONNEL ACT OF 1899 AND SECTION 13 OF THAT ACT, 30 STAT. 1007, 34 U.S.C. 865 (1952 ED.), ASSIMILATED THE NAVY OFFICERS, OTHER THAN MIDSHIPMEN IN THE NAVY (WHICH GRADE THEN NO LONGER EXISTED), TO OFFICERS OF THE ARMY FOR PAYMENT AND ALLOWANCE PURPOSES. NAVY OFFICERS ACCORDINGLY BECAME ENTITLED TO THE DAILY MONEY SUBSISTENCE ALLOWANCE AUTHORIZED FOR ARMY OFFICERS BUT NAVAL ACADEMY STUDENTS DID NOT AND, WHILE SUBSEQUENT LAWS HAVE CONVERTED ENLISTED MEN FROM A RATION TO A SUBSISTENCE ALLOWANCE BASIS (SEE THE NOTE TO 10 U.S.C. 6081 (1958 ED.) (, THE RATION PROVISIONS FOR STUDENTS AT THE NAVAL ACADEMY ARE STILL SUBSTANTIALLY THE SAME AS THOSE CONTAINED IN THE FORMER SECTION 1577OF THE REVISED STATUTES.

THE RATION AUTHORIZED FOR A MIDSHIPMAN IN THE NAVY WAS NOT SUBSISTENCE IN KIND AND, HENCE, MIDSHIPMEN AT THE NAVAL ACADEMY ARE NOT AND, AT LEAST SINCE THE ENACTMENT OF SECTION 1577 OF THE REVISED STATUTES, HAVE NOT BEEN SUBSISTED IN KIND; THEY ARE AND HAVE BEEN AUTHORIZED TO RECEIVE THE STATUTORY RATION ALLOWANCE OR THE COMMUTED VALUE THEREOF IN MONEY. SUCH COMMUTED VALUE WHEN FIXED IN THE APPROPRIATION ACTS USUALLY WAS LARGER THAN THE COMMUTED VALUE OF THE DAILY SUBSISTENCE IN KIND AUTHORIZED FOR ENLISTED MEN AND COMPARED FAVORABLY WITH THE DAILY MONETARY SUBSISTENCE ALLOWANCE PROVIDED BY SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, 37 U.S.C. 105 (1946 ED.), FOR OFFICERS WAS 70 CENTS AND THE COMMUTED VALUES OF THE DAILY SUBSISTENCE ALLOWANCE OF ENLISTED MEN AND RATION ALLOWANCE AUTHORIZED FOR MIDSHIPMEN BY THE 1943 NAVY APPROPRIATION ACT APPROVED FEBRUARY 7, 1942 (56 STAT. AT PAGE 62), WERE 55 CENTS AND 80 CENTS, RESPECTIVELY.

IN THE LIGHT OF SUCH HISTORICAL BACKGROUND, THE CONCLUSION APPEARS REQUIRED THAT THE RATION PRESENTLY PROVIDED FOR MIDSHIPMEN IS IN ALL RESPECTS AN ALLOWANCE AND THAT THEY ARE ENTITLED TO RECEIVE WITHOUT REDUCTION THE FULL AMOUNT OF THE COMMUTED VALUE OF THE RATION WHEN THEY ARE NOT FURNISHED THE RATION ITSELF. CADETS AT THE OTHER THREE SERVICE ACADEMIES HAVE SIMILAR ENTITLEMENTS.

IN DECISION OF MAY 19, 1933, A-49018, IT WAS HELD THAT UNLIKE THE COMMUTATION OF SUBSISTENCE FOR ENLISTED MEN (CONSIDERED IN 12 COMP. GEN. 620), THE COMMUTED RATION WAS FIXED IN THE APPROPRIATION ACTS AT THAT TIME FOR MISHIPMEN OF THE NAVAL ACADEMY WAS NOT PRIMARILY A RATION FURNISHED IN KIND BUT WAS AN ALLOWANCE. A SIMILAR RESULT WAS REACHED IN 13 COMP. GEN. 41, INVOLVING THE RATION ALLOWANCE OF CADETS AT THE UNITED STATES MILITARY ACADEMY. BEING ENTITLED TO CREDIT FOR THE COMMUTED VALUE OF THE RATION ON AN ALLOWANCE BASIS, AND BEING ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 044785, NAVY COMPTROLLER MANUAL, TO ONE RATION OR COMMUTATION THEREOF AT ALL TIMES, THE MIDSHIPMEN'S SITUATION WITH RESPECT TO ENTITLEMENT TO A BASIC ALLOWANCE FOR SUBSISTENCE MORE NEARLY APPROACHES THAT OF OFFICERS THAN ENLISTED PERSONNEL.

WHILE BY VIRTUE OF THE PROVISIONS OF EXECUTIVE ORDER NO. 10119 ENLISTED MEN IN RECEIPT OF PER DIEM ARE REGARDED AS BEING SUBSISTED AT GOVERNMENT EXPENSE FOR PURPOSES OF THEIR SUBSISTENCE ALLOWANCE, THERE ARE NO SIMILAR STATUTORY OR REGULATORY PROVISIONS APPLICABLE TO MIDSHIPMENT AND CADETS AND IT SEEMS APPARENT THAT THE PER DIEM ALLOWANCE AUTHORIZED FOR TRAVEL AND TEMPORARY DUTY MAY NOT BE VIEWED AS BEING THE RATION ALLOWANCE AUTHORIZED FOR MIDSHIPMEN AND CADETS.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE. IT IS THE OPINION OF THE MILITARY DEPARTMENTS THAT CADETS AND MIDSHIPMEN SHOULD BE SUBSISTED ON THE SAME BASIS AS ENLISTED PERSONNEL, IT IS SUGGESTED THAT CONSIDERATION BE GIVEN TO REPEALING THE PRESENT PROVISIONS FOR THEIR RATIONS AND AMENDING THE PROVISIONS OF 37 U.S.C. 402 (B) TO INCLUDE THEM.