B-157918, NOV. 12, 1965

B-157918, NOV. 12, 1965

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF OCTOBER 22, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THE SECRETARIES OF THE MILITARY DEPARTMENTS MAY PROMULGATE REGULATIONS REQUIRING THAT A DEDUCTION BE MADE FROM THE SUBSISTENCE ALLOWANCE AUTHORIZED TO BE PAID TO MEMBERS OF THE RESERVE OFFICERS' TRAINING CORPS BY SECTION 209 OF TITLE 37, U.S. CODE, AS AMENDED BY SECTION 202 (2) OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, PUB.L. 88- 647, APPROVED OCTOBER 13, 1964, 78 STAT. 1070, FOR EACH HOUR OF UNAUTHORIZED ABSENCE FROM THE SCHEDULED TRAINING.

A DISCUSSION PERTAINING TO THE QUESTION IS SET FORTH IN COMMITTEE ACTION NO. 358 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. THE COMMITTEE ACTION POINTS OUT THAT PRIOR TO THE ENACTMENT OF THE 1964 LAW, A MEMBER OF THE ARMY AND AIR FORCE SENIOR RESERVE OFFICERS' TRAINING CORPS RECEIVING "ADVANCED TRAINING" (IN THE THIRD AND FOURTH YEARS OF COLLEGE) WAS "ENTITLED TO AN ALLOWANCE FOR SUBSISTENCE AT SUCH RATE, NOT EXCEEDING THE COST OF THE GARRISON RATION * * * AS MAY BE FIXED BY THE SECRETARY * * *; " AND THAT UNDER THAT AUTHORITY THE ARMY AND AIR FORCE PROVIDED BY REGULATION FOR THE DEDUCTION OF AN AMOUNT EQUIVALENT TO 2 DAYS' ALLOWANCE FROM A STUDENT'S NEXT PAYMENT OF COMMUTATION OF SUBSISTENCE FOR EACH UNAUTHORIZED ABSENCE FROM AN HOUR OF ROTC INSTRUCTION, BUT THAT THERE IS NO REFERENCE IN THE 1964 LAW TO THE SECRETARY'S DISCRETION IN FIXING SUBSISTENCE RATES.

SECTION 202 (2) OF THE 1964 LAW AMENDS SECTION 209 OF TITLE 37,U.S. CODE, TO PROVIDE THAT A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS IS ENTITLED TO SUBSISTENCE ALLOWANCE AT THE ,RATE" OF NOT LESS THAN $40 PER MONTH OR MORE THAN $50 PER MONTH WHILE UNDERGOING ADVANCED TRAINING. NOTHING IN THE STATUTE MAKES THAT AN INDIVISIBLE MONTHLY SUM OF MONEY, BUT RATHER THE STATUTE PRESCRIBES THE RANGE IN WHICH THE TOTAL AMOUNT OF THE SUBSISTENCE FOR A MONTH MAY BE.

THE SUBSISTENCE ALLOWANCE IS PAID IN CONSIDERATION FOR THE PERFORMANCE OF DUTIES IN THE ADVANCED TRAINING, AS PRESCRIBED BY THE SECRETARY CONCERNED, BY MEMBERS OF THE SENIOR ROTC ADVANCED TRAINING PROGRAM. WHERE A MEMBER FAILS TO PERFORM HIS DUTIES BY BEING ABSENT FROM ADVANCED TRAINING CLASSES OR EXERCISES, WE PERCEIVE NO OBJECTION TO WITHHOLDING AN APPROPRIATE PORTION OF THE SUBSISTENCE ALLOWANCE BECAUSE OF SUCH FAILURE. WE THINK THAT IT IS PROPER TO ESTABLISH BY REGULATION THAT A DEDUCTION SHOULD BE MADE FROM THE SUBSISTENCE ALLOWANCE FOR EACH HOUR OF UNAUTHORIZED ABSENCE FROM SCHEDULED TRAINING. SEE A-48651, MAY 6, 1933.