B-156334, APR. 27, 1965, 44 COMP. GEN. 657

B-156334, APR. 27, 1965, 44 COMP. GEN. 657

PAY - MISSING, INTERNED, ETC., PERSONS - ALLOWANCE ENTITLEMENT - PERMANENT ITEMS OF PAY AND ALLOWANCES WHEN A MEMBER OF THE UNIFORMED SERVICES ENTERS A MISSING OR OTHER STATUS COVERED BY THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001-1015, PERMANENT ITEMS OF PAY AND ALLOWANCES, EXCEPT TEMPORARY ALLOWANCES, MAY CONTINUE TO BE CREDITED TO HIS ACCOUNT PROVIDED NO CHANGE OCCURS IN CONDITIONS OF ENTITLEMENT, SECTION 2 OF THE ACT AUTHORIZING THE SAME BASIC, SPECIAL AND INCENTIVE PAY, BASIC ALLOWANCES FOR SUBSISTENCE AND QUARTERS, AND STATION PER DIEM ALLOWANCES, NOT TO EXCEED 90 DAYS, FOR A PERIOD OF ABSENCE THAT A MEMBER WAS ENTITLED TO AT THE BEGINNING OF HIS ABSENCE, AND THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427/A/--- A BASIC ALLOWANCE FOR QUARTERS EQUAL TO THAT PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE--- FALLING WITHIN THE PURVIEW OF SECTION 2 OF THE MISSING PERSONS ACT, IT MAY BE ALLOWED, BUT NOT THE CASH CLOTHING ALLOWANCE PROVIDED FOR ENLISTED PERSONNEL UNDER 37 U.S.C. 418, AN ITEM THAT IS NOT ENUMERATED IN THE ACT, AND OTHER SPECIFIC ITEMS OF PAY OR ALLOWANCES MAY BE QUESTIONED.

TO THE SECRETARY OF DEFENSE, APRIL 27, 1965:

REFERENCE IS MADE TO LETTER OF MARCH 12, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER CERTAIN ALLOWANCES MAY BE CREDITED TO THE PAY ACCOUNT OF A MEMBER OF THE ARMED FORCES WHEN HE ENTERS A MISSING OR OTHER STATUS COVERED BY THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001-1015. THE ALLOWANCES INVOLVED, TOGETHER WITH A DISCUSSION RELATING TO EACH ALLOWANCE, ARE SET FORTH IN COMMITTEE ACTION NO. 361 OF THE DEPARTMENT

THE SPECIFIC QUESTIONS UPON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

1. MAY EVERY ITEM OF PAY AND ALLOWANCES, EXCEPT TEMPORARY ALLOWANCES, TO WHICH A MEMBER IS ENTITLED WHEN HE ENTERS A MISSING STATUS, OR OTHER STATUS COVERED BY THE MISSING PERSONS ACT (ACT OF MAR 7, 1942, CH 166, AS AMENDED (78 STAT. 437; 50 USCAPP 1001 ET SEQ.) (, CONTINUE TO BE CREDITED TO HIS ACCOUNT AFTER HE ENTERS THE MISSING STATUS PROVIDED THERE IS NO CHANGE IN CONDITIONS ON WHICH THE PAY AND ALLOWANCES ARE BASED?

2. IF THE ANSWER TO THE ABOVE QUESTION IS NEGATIVE, MAY THE FOLLOWING TYPES OF ALLOWANCES CONTINUE TO BE CREDITED TO HIS ACCOUNT:

A. CASH CLOTHING MAINTENANCE ALLOWANCE AUTHORIZED FOR ENLISTED PERSONNEL UNDER 37 U.S.C. 418, AS IMPLEMENTED BY EXECUTIVE ORDER NO. 10113 OF 24 FEB 1950 AND DEPARTMENT OF DEFENSE DIRECTIVE 1338.5 OF 25 JUNE 1962?

B. FAMILY SEPARATION ALLOWANCE, AS AUTHORIZED UNDER 37 U.S.C. 427 (A/?

SECTION 2 OF THE MISSING PERSONS ACT AS ORIGINALLY ENACTED ON MARCH 7, 1942, CH. 166, 56 STAT. 144, 50 U.S.C. APP. 1002, PROVIDED THAT A MEMBER ABSENT FROM DUTY IN A MISSING STATUS WOULD BE ENTITLED WHILE SO ABSENT TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT "THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE.' THE ACT OF AUGUST 29, 1957, PUBLIC LAW 85 217, 71 STAT. 491, AMENDED SECTION 2 TO PROVIDE THAT A MEMBER OF THE ARMED FORCES IN A MISSING STATUS WOULD BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT ,THE SAME BASIC PAY, SPECIAL PAY, INCENTIVE PAY, BASIC ALLOWANCE FOR QUARTERS, BASIC ALLOWANCE FOR SUBSISTENCE, AND STATION PER DIEM ALLOWANCES FOR NOT TO EXCEED NINETY DAYS, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE * * *.'

IT APPEARS CLEAR THAT THE REASON FOR THE SUBSTITUTION OF THE MORE SPECIFIC AND RESTRICTIVE PROVISIONS FOR THE BROAD GENERAL PROVISION IN THE ORIGINAL LAW WAS TO MAKE SURE THAT ONLY CERTAIN ITEMS OF PAY AND ALLOWANCES WOULD BE CREDITED DURING THE MISSING STATUS AND THIS OFFICE MAY NOT ADD OTHER AND UNRELATED ITEMS TO THOSE SPECIFIED. THE CHANGE IN LANGUAGE WAS EXPLAINED BY THE HOUSE COMMITTEE ON ARMED SERVICES (SEE H.REPT. NO. 204, 85TH CONG., 1ST SESS. 4 ON H.R. 5807, WHICH BECAME PUBLIC LAW 85-217) AS FOLLOWS:

2. THE COMMITTEE BILL ALSO QUALIFIES THE TYPE OF PAY AND ALLOWANCES WHICH COULD BE RECEIVED UNDER ITS PROVISIONS. THE DEPARTMENT PROPOSAL (H.R. 2404) WOULD HAVE AUTHORIZED THE PAYMENT OF TRAVEL PER DIEM FOR ANY PERSON WHO WAS IN A PER DIEM STATUS WHEN HE BECAME MISSING. THE COMMITTEE DID NOT FAVOR THIS TYPE OF PAYMENT AND CONSEQUENTLY SPELLED OUT IN THE COMMITTEE BILL THE TYPE OF PAY AND ALLOWANCES WHICH COULD BE PAID IN THE FUTURE.

IN THE COURSE OF THE HOUSE HEARINGS ON THE BILL THE DEPARTMENT OF DEFENSE SPOKESMAN, GENERAL MATHER, IN A PREPARED STATEMENT SAID:

THE MAIN PURPOSE OF THIS BILL IS TO PROVIDE PERMANENT AUTHORITY FOR CERTAIN ACTIONS REGARDING PERSONS IN A MISSING STATUS, WHICH ARE NOW BEING TAKEN ON THE BASIS OF TEMPORARY LAW. THESE ACTIONS ARE:

1. TO CONTINUE THE REGULAR PAY AND ALLOWANCES OF MILITARY AND CIVILIAN PERSONNEL WHEN THEY ARE IN A MISSING STATUS; * * *.

ANOTHER DEPARTMENT OF DEFENSE SPOKESMAN, MAJOR TURROU, POINTED OUT THAT THE STATION PER DIEM ALLOWANCE IS IN ADDITION TO THE TRAVEL PER DIEM ALLOWANCE, THAT IT IS A SUPPLEMENTAL STATION ALLOWANCE "TO TAKE CARE OF THE ADDITIONAL COST OF LIVING" IN AREAS SUCH AS MOSCOW, LONDON, OR PARIS, WHERE MILITARY MEMBERS "HAVE AN ADDITIONAL COST OF LIVING AS A RESULT OF THEIR MILITARY ASSIGNMENT TO THOSE AREAS.' HE ALSO POINTED OUT THAT THE DEPENDENTS OF A MEMBER IN A MISSING STATUS GENERALLY ARE NOT EVACUATED TO THE UNITED STATES UNTIL THE MEMBER HAS BEEN MISSING FOR 30 DAYS, AND THAT AS SOON AS THEY ARE EVACUATED TO THE UNITED STATES THE STATION PER DIEM ALLOWANCES WOULD BE TERMINATED. SEE PAGES 552 AND 561 OF THE HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 2404, A PREDECESSOR BILL PROPOSED BY THE DEPARTMENT OF DEFENSE, WHICH HEARINGS WERE HELD ON MARCH 6, 1957.

THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, 77 STAT. 210, 217, ADDED SECTION 427 TO TITLE 37, U.S. CODE, TO PROVIDE A FAMILY SEPARATION ALLOWANCE PAYABLE TO MEMBERS WHO ARE NOT AUTHORIZED TO HAVE THEIR DEPENDENTS ACCOMPANY THEM AND WHO ARE NOT FURNISHED QUARTERS FOR THEMSELVES. THE PURPOSE OF THE ALLOWANCE IS TO COMPENSATE THE MEMBER FOR THE EXTRA COSTS INCURRED IN MAINTAINING QUARTERS AT SEPARATE LOCATIONS FOR HIMSELF AND FOR HIS DEPENDENTS. SUBSECTION 427/A) AUTHORIZES A MONTHLY FAMILY SEPARATION ALLOWANCE TO MEMBERS PERMANENTLY STATIONED OVERSEAS EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE; SUBSECTION 427/B) AUTHORIZES A MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO A MEMBER IF FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS HE IS ON DUTY ABOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP OR IF HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION.

IN DECISION OF SEPTEMBER 10, 1964, B-153984, 44 COMP. GEN. 127, WE CONSIDERED THE QUESTION OF WHETHER THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427/B) PROPERLY MAY BE CREDITED TO MEMBERS IN A MISSING STATUS UNDER SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1002. WE POINTED OUT THAT THE LEGISLATIVE HISTORY OF THE 1957 AMENDMENT OF THE MISSING PERSONS ACT INDICATED THAT IT WAS THE LEGISLATIVE INTENT THAT MEMBERS IN A MISSING STATUS SHOULD HAVE CREDITED TO THEIR ACCOUNTS THE SAME PAY AND ALLOWANCES THEY WOULD HAVE RECEIVED WHILE PERFORMING ACTIVE DUTY, "BUT NOT TEMPORARY ALLOWANCES SUCH AS A PER DIEM FOR TRAVEL EXPENSES.' WE NOTED THAT THE PURPOSE OF THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427/B) IS TO COMPENSATE A MEMBER FOR THE ADDED HOUSEHOLD EXPENSES INCURRED AT THE PLACE WHERE HIS DEPENDENTS RESIDE AS A RESULT OF THE SEPARATION OF THE MEMBER FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME. WE THERE SAID:

SINCE THE BENEFITS AUTHORIZED IN SECTION 427/B) ARE BASED IN PARTON ENTITLEMENT TO QUARTERS ALLOWANCE AND ARE TO REIMBURSE THE MEMBER FOR ADDED HOUSEHOLD EXPENSES, IT IS OUR VIEW THAT SUCH BENEFITS REASONABLY MAY BE REGARDED IN THE SAME CATEGORY, WITHIN THE CONTEMPLATION OF SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, AS THE BASIC ALLOWANCE FOR QUARTERS. IN VIEW OF THE FOREGOING, AND SINCE IT APPEARS THAT UNDER THE MISSING PERSONS ACT, AS AMENDED, THE CONGRESS INTENDED ONLY TO EXCLUDE THE CREDITING OF TEMPORARY ALLOWANCES TO MEMBERS IN A MISSING STATUS, IT WOULD SEEM THAT A MEMBER WHO WAS ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427/B) WHEN HIS MISSING STATUS BEGAN PROPERLY SHOULD CONTINUE TO HAVE CREDITED TO HIS ACCOUNT SUCH ALLOWANCE FOR THE PERIOD DURING WHICH HE WAS OFFICIALLY CARRIED OR DETERMINED TO BE IN A STATUS OF MISSING, ETC., PROVIDED THERE IS NO CHANGE IN THE STATUS OF THE DEPENDENTS WHICH WOULD TERMINATE ENTITLEMENT.

ON THE BASIS OF THAT DECISION FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427/A) MAY BE CONTINUED DURING A MISSING STATUS PROVIDED CIRCUMSTANCES ARISING AFTER THE MISSING STATUS STARTS DO NOT TERMINATE THE RIGHT TO THE ALLOWANCE.

IN DECISION OF MAY 27, 1944, B-41592, 23 COMP. GEN. 895, WE CONSIDERED THE QUESTION OF WHETHER AN OFFICER IN A PRISONER OF WAR STATUS UNDER THE MISSING PERSONS ACT IS ENTITLED TO CONTINUE TO HAVE CREDITED TO HIS ACCOUNT THE SAME RENTAL ALLOWANCE TO WHICH HE WAS ENTITLED AT THE BEGINNING OF HIS ABSENCE ON AND AFTER THE DATE HIS DEPENDENT WIFE ENLISTS IN THE MARINE CORPS WORMEN'S RESERVE. NOTING THAT THE STATUTE AUTHORIZED THE PAYMENT OF PAY AND ALLOWANCES TO WHICH THE MEMBER WAS ENTITLED AT THE BEGINNING OF THE PERIOD OF ABSENCE OR "MAY BECOME ENTITLED TO THEREAFTER," WE CONCLUDED THAT THE STATUTE CONTEMPLATED ADJUSTMENTS BASED UPON CHANGED CONDITIONS, OBSERVING THAT:

* * * WHILE AN OFFICER IN A MISSING STATUS IS ENTITLED TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE LEGALLY WAS ENTITLED AT THE BEGINNING OF THE ABSENCE, SUCH CREDITS ARE NOT REQUIRED OR AUTHORIZED TO BE CONTINUED UPON THE KNOWN HAPPENING OF AN EVENT WHICH WOULD CHANGE THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. IN THIS RESPECT IT IS NOT TO BE PRESUMED THAT THE STATUTE CONTEMPLATES THAT THE PAY STATUS OF A MISSING PERSON IS TO BE COMPUTED DIFFERENTLY FROM THAT OF ANY OTHER OFFICER ON ACTIVE DUTY, NOT IN A MISSING STATUS, WHOSE PAY AND ALLOWANCES OBVIOUSLY ARE AFFECTED UPON THE HAPPENING OF CHANGED CONDITIONS. CF. 23 COMP. GEN. 21. AN OFFICER NOT IN A MISSING STATUS WOULD NOT BE ENTITLED TO A CONTINUATION OF RENTAL ALLOWANCE FOR A WIFE FOLLOWING HER DEATH OR UPON CESSATION OF THE MARITAL RELATIONSHIP; AND THE SAME RULE IS TO BE APPLIED IN THE CASE OF A MISSING OFFICER.

WE ACCORDINGLY CONCLUDED THAT, WHEN HIS WIFE WAS FURNISHED GOVERNMENT QUARTERS OR PAID AN ALLOWANCE IN LIEU THEREOF BECAUSE SHE BECAME A MEMBER OF THE ARMED FORCES, IT WAS NOT PROPER TO CONTINUE CREDITS IN HIS ACCOUNT FOR RENTAL ALLOWANCE ON ACCOUNT OF DEPENDENTS (WIFE).

THE PAY AND ALLOWANCES TO WHICH MEMBERS OF THE ARMED FORCES ARE ENTITLED ARE SET FORTH IN TITLE 37, U.S.C. THE REGULAR OR "PERMANENT" ITEMS OF PAY AND ALLOWANCES THERE PRESCRIBED INCLUDE BASIC PAY, INCENTIVE PAY, SPECIAL PAY, AND BASIC ALLOWANCES FOR SUBSISTENCE AND QUARTERS, CONTINUATION OF WHICH "PERMANENT" ITEMS ARE AUTHORIZED BY THE SPECIFIC PROVISIONS OF THE 1957 AMENDMENTS TO THE MISSING PERSONS ACT. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE WITH RESPECT TO THE "PERMANENT" ITEMS OF BASIC PAY, INCENTIVE PAY, SPECIAL PAY AND BASIC ALLOWANCE FOR SUBSISTENCE AND QUARTERS PRESENTLY PRESCRIBED IN TITLE 37, U.S. CODE, SUBJECT, OF COURSE, TO THE PRINCIPLE ESTABLISHED IN 23 COMP. GEN. 895 REFERRED TO ABOVE. IF A QUESTION ARISES WITH RESPECT TO ANY OTHER SPECIFIC ITEM OR ITEMS OF PAY OR ALLOWANCES, THE MATTER MAY BE SUBMITTED HERE FOR DECISION.

SINCE A CASH CLOTHING ALLOWANCE AUTHORIZED FOR ENLISTED PERSONNEL OF THE ARMED FORCES UNDER 37 U.S.C. 418 IS NOT ONE OF THE ALLOWANCES ENUMERATED IN SECTION 2 OF THE MISSING PERSONS ACT AS AMENDED BY THE 1957 LAW, QUESTION 2A MUST BE ANSWERED IN THE NEGATIVE.