B-158727, JUN. 16, 1966, 45 COMP. GEN. 794

B-158727, JUN. 16, 1966, 45 COMP. GEN. 794

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - TRAINING PERIODS OF SHORT DURATION OFFICERS OF A STATE ARMY NATIONAL GUARD WHO PERFORMED ANNUAL FIELD TRAINING IN EUROPE WITHIN THE AUTHORITY OF 32 U.S.C. 502 (A) (2) AND 503 DURING A PERIOD GOVERNMENT QUARTERS WERE NOT AVAILABLE AND LIVING ACCOMMODATIONS HAD TO BE OBTAINED AT THEIR OWN EXPENSE IN NEARBY HOTELS ARE NOT ENTITLED TO THE TEMPORARY LODGING ALLOWANCES PROVIDED UNDER 37 U.S.C. 405, PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS CONTEMPLATING ENTITLEMENT TO THE ALLOWANCE ONLY WHEN MEMBERS ARE PERMANENTLY ASSIGNED TO DUTY AT A STATION OUTSIDE THE UNITED STATES FOR PERFORMANCE OF DUTY OF AN INDEFINITE OR EXTENDED PERIOD RATHER THAN A PERIOD OF SHORT DURATION, SUCH AS THE DUTY PERFORMED BY THE OFFICERS; HOWEVER, UNDER THE BROAD AUTHORITY OF 37 U.S.C. 405 AND 411 PROVIDING FOR PAYMENT OF STATION ALLOWANCES TO A MEMBER OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA "WHETHER OR NOT HE IS IN A TRAVEL STATUS," THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE PAYMENT OF A TEMPORARY LODGING ALLOWANCE FOR FUTURE SHORT PERIODS OF TRAINING OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA.

TO SECRETARY OF THE ARMY, JUNE 16, 1966:

REFERENCE IS MADE TO LETTER OF FEBRUARY 28, 1966, FROM THE UNDER SECRETARY OF THE ARMY FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NUMBER 66-12) ON MARCH 3, 1966, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING TEMPORARY LODGING ALLOWANCES TO CERTAIN OFFICERS OF THE ALABAMA ARMY NATIONAL GUARD DURING THE PERIOD JULY 7 TO 22, 1965, INCIDENT TO PERFORMING THEIR ANNUAL FIELD TRAINING DUTY IN EUROPE. IF PAYMENT IS DENIED ON THE CLAIMS, THE UNDER SECRETARY ASKED WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE PAYMENT OF SUCH ALLOWANCES FOR FUTURE SHORT PERIODS OF TRAINING DUTY.

THE VOUCHERS AND SUPPORTING PAPERS REPRESENT THE CLAIMS OF EIGHT OFFICERS FOR TEMPORARY LODGING ALLOWANCES. THE UNDER SECRETARY SAYS THAT DURING THE PERIOD JULY 7 TO 22, 1965, THE 122ND QUARTERMASTER COMMAND OF THE ALABAMA ARMY NATIONAL GUARD PERFORMED THEIR ANNUAL FIELD TRAINING WITH HEADQUARTERS, UNITED STATES ARMY PETROLEUM DISTRIBUTION COMMAND,EUROPE (FONTAINEBLEAU, FRANCE), WITHIN THE AUTHORITY OF 32 U.S.C. 502 (A) (2) AND 503. DURING THE PERIOD, THE UNDER SECRETARY RELATES, GOVERNMENT QUARTERS WERE NOT AVAILABLE TO THE FIELD GRADE OFFICERS OF THE 122ND QUARTERMASTER COMMAND AND LIVING ACCOMMODATIONS HAD TO BE OBTAINED AT THEIR OWN EXPENSE IN NEARBY HOTELS.

THE UNDER SECRETARY REFERS TO OUR DECISION IN 32 COMP. GEN. 444 AND SAYS THAT IN THE LIGHT OF THE PROVISIONS IN PARAGRAPH M6001, JOINT TRAVEL REGULATIONS, IT APPEARS THAT THIS DECISION IS IN CONFLICT WITH 30 COMP. GEN. 260. THE DECISION IN 32 COMP. GEN. 444, THE UNDER SECRETARY SAYS, APPEARS TO BE BASED ON THE LANGUAGE OF THE JOINT TRAVEL REGULATIONS RATHER THAN ON THE LAW ITSELF (37 U.S.C. 405).

THE UNDER SECRETARY STATES THAT THE MEET TRAINING REQUIREMENTS OF THE ARMY NATIONAL GUARD UNITS THE NEED FOR THE PERFORMANCE OF FULL TIME TRAINING DUTY AT OVERSEAS STATIONS CAN BE EXPECTED TO INCREASE AND HE EXPRESSES THE VIEW THAT IN ACCORDANCE WITH THE PROVISIONS OF 37 U.S.C. 405, AUTHORITY EXISTS FOR PAYMENT OF STATION ALLOWANCES FOR RESERVE COMPONENT PERSONNEL WHILE PERFORMING FULL-TIME TRAINING DUTY OUTSIDE THE UNITED STATES.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF STATION ALLOWANCES, WHICH INCLUDE TEMPORARY LODGING ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, IS CONTAINED IN 37 U.S.C. 405 WHICH PROVIDES AS FOLLOWS:

WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. HOWEVER, DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS. PURSUANT TO SUCH AUTHORITY AND WITH RESPECT TO TEMPORARY LODGING ALLOWANCES, PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS STATES THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS:

1. UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE; OR

2. IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR AFTER SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS.

THUS, IT SEEMS CLEAR THAT THE REGULATIONS CONTEMPLATE THAT THE TEMPORARY LODGING ALLOWANCE IS AUTHORIZED ONLY FOR THOSE MEMBERS WHO ARE PERMANENTLY ASSIGNED TO DUTY AT A STATION OUTSIDE THE UNITED STATES FOR THE PERFORMANCE OF DUTY OF AN INDEFINITE OR EXTENDED PERIOD RATHER THAN FOR A PERIOD OF SHORT DURATION.

IN 32 COMP. GEN. 444, CITED BY THE UNDER SECRETARY, WE CONSIDERED THE QUESTION WHETHER AN OFFICER OF A RESERVE COMPONENT WHO PERFORMED ACTIVE DUTY TRAINING FOR A SHORT PERIOD (2 WEEKS) AT PUERTO RICO WAS ENTITLED TO A STATION SUBSISTENCE PER DIEM ALLOWANCE WHILE PERFORMING SUCH DUTY. CONCLUDING THAT THE OFFICER WAS NOT PERMANENTLY ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES WITHIN THE MEANING OF PARAGRAPH M4300 OF THE JOINT TRAVEL REGULATIONS, WE SAID (QUOTING FROM THE SYLLABUS):

A RESERVE MEMBER OF THE UNIFORMED SERVICES WHO PERFORMED ACTIVE DUTY TRAINING A SHORT PERIOD (TWO WEEKS) AT PUERTO RICO WAS NOT PERMANENTLY ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES WITHIN THE MEANING OF PARAGRAPH 4300 OF THE JOINT TRAVEL REGULATIONS--- WHICH PROVIDE FOR THE PAYMENT OF STATION PER DIEM ALLOWANCES "TO MEMBERS OF THE UNIFORMED SERVICES PERMANENTLY ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES"--- SO AS TO BE ENTITLED TO THE STATION SUBSISTENCE PER DIEM ALLOWANCE FOR SUCH PERIOD.

WE WENT ON TO SAY THAT THE DUTY ASSIGNMENT OF A RESERVE OFFICER ORDERED FROM HIS HOME TO ACTIVE DUTY TRAINING FOR SHORT DURATION CLEARLY IS NOT PERMANENT IN NATURE WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM (CITING 30 COMP. GEN. 260). IN 30 COMP. GEN. 260 THERE WAS INVOLVED THE QUESTION WHETHER A RESERVE OFFICER ORDERED TO ACTIVE DUTY FOR TRAINING FOR A SHORT PERIOD NOT IN EXCESS OF 4 MONTHS AT A SERVICE SCHOOL IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT. THE DECISION RECOGNIZED THAT BECAUSE OF THE SHORT DURATION OF THE DUTY, THE OFFICER DID NOT HAVE A PERMANENT MILITARY STATION AT WHICH TO MAINTAIN A HOUSEHOLD FOR HIS DEPENDENT PARENT FOR QUARTERS ALLOWANCE PURPOSES. THE HOLDING IN THAT DECISION THAT THE OFFICER WAS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHERE IT WAS SHOWN THAT THE DEPENDENT PARENT RESIDED IN THE MEMBER'S HOUSE OR APARTMENT WHERE HE MAINTAINED HIS PERMANENT RESIDENCE, WAS BASED ON THE LITERAL LANGUAGE IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 401 (3) IN EFFECT AT THAT TIME, DEFINING THE TERM "DEPENDENT" TO INCLUDE, AMONG OTHERS, A DEPENDENT PARENT WHO "ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER.' WE DO NOT CONSIDER THAT THERE IS ANY CONFLICT BETWEEN THIS DECISION (30 COMP. GEN. 260) AND 32 COMP. GEN. 444, SINCE THE DECISIONS INVOLVE DIFFERENT LAWS AND REGULATIONS AND INVOLVED DIFFERENT FACTUAL SITUATIONS.

UNDER PARAGRAPH M1150-10 OF THE JOINT TRAVEL REGULATIONS, A "PERMANENT DUTY STATION" IS DEFINED AS THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME YARD OR HOME PORT OF A VESSEL INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY.' IT HAS BEEN HELD THAT WHEN MEMBERS OF A RESERVE COMPONENT (AIR NATIONAL GUARD) ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION (15 DAYS) AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF DUTY IS PERFORMED, THE LOCATION OF SUCH DUTY MUST BE CONSIDERED THE TRAINING DUTY STATION WHERE THE PRIMARY DUTIES WILL BE PERFORMED SO AS TO PRECLUDE THE PAYMENT OF PER DIEM. IN THIS CONNECTION, PARAGRAPH M6001, JOINT TRAVEL REGULATIONS, PRECLUDES PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS OF A RESERVE COMPONENT FOR ANY PERIOD WHILE THE MEMBER IS AT HIS TRAINING DUTY STATION, SUCH REGULATION BEING IN ACCORD WITH 26 COMP. GEN. 557. SEE 41 COMP. GEN. 726; 43 ID. 521.

AS INDICATED ABOVE, UNDER THE CURRENT PROVISIONS OF THE JOINT TRAVEL REGULATIONS (PARAGRAPH M4303), PROMULGATED PURSUANT TO 37 U.S.C. 405, TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR MEMBERS WHO ARE PERMANENTLY ASSIGNED TO DUTY AT A STATION OUTSIDE THE UNITED STATES FOR THE PERFORMANCE OF DUTY OF AN EXTENDED OR INDEFINITE PERIOD. THOSE REGULATIONS, AS WE CONCLUDED IN 32 COMP. GEN. 444, WERE NOT INTENDED TO AUTHORIZE STATION ALLOWANCES TO MEMBERS INCIDENT TO SHORT ACTIVE DUTY TRAINING ASSIGNMENTS SUCH AS THE DUTY PERFORMED BY THE NATIONAL GUARD OFFICERS REFERRED TO IN THE UNDER SECRETARY'S LETTER. IN VIEW OF THE PROVISIONS OF PARAGRAPH M4303, WE ARE OF THE OPINION THAT THERE IS NO BASIS FOR PAYING THE CLAIMS OF THE MEMBERS OF THE ALABAMA NATIONAL GUARD FOR TEMPORARY LODGING ALLOWANCE FOR THE 2-WEEK PERIOD THEY PERFORMED ANNUAL FIELD TRAINING IN FRANCE. HENCE, THE CLAIMS AND SUPPORTING PAPERS WILL BE RETAINED HERE.

WHILE WE ARE OF THE OPINION THAT THE CURRENT REGULATIONS (PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS) DO NOT AUTHORIZE THE PAYMENT OF TEMPORARY LODGING ALLOWANCES TO RESERVE MEMBERS INCIDENT TO ACTIVE DUTY TRAINING OF SHORT DURATION AT THEIR OVERSEAS TRAINING DUTY STATION, IT IS OUR VIEW THAT THE LAW, 37 U.S.C. 405 AND 411, IS BROAD ENOUGH TO PERMIT THE SECRETARIES CONCERNED TO PRESCRIBE REGULATIONS TO AUTHORIZE PROSPECTIVELY PAYMENT OF SUCH ALLOWANCES INCIDENT TO SUCH DUTY ASSIGNMENTS. GENERALLY, A MEMBER OF A RESERVE COMPONENT WHO IS PERFORMING ACTIVE DUTY TRAINING AT HIS TRAINING DUTY STATION IS NOT CONSIDERED TO BE IN A TRAVEL STATUS FOR PER DIEM PURPOSES SINCE HE IS NOT AWAY FROM HIS DESIGNATED POST OF DUTY. AND, AS WE HAVE INDICATED, SUCH A TRAINING DUTY ASSIGNMENT OF SHORT DURATION IS NOT PERMANENT IN NATURE WITHIN THE GENERALLY ACCEPTED MEANING OF A PERMANENT DUTY ASSIGNMENT. 32 COMP. GEN. 444. UNDER THE PROVISIONS OF 37 U.S.C. 405 AND 411, HOWEVER, THE SECRETARIES CONCERNED ARE AUTHORIZED TO PRESCRIBE REGULATIONS GOVERNING THE PAYMENT OF STATION ALLOWANCES TO A MEMBER ON DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA,"WHETHER OR NOT HE IS IN A TRAVEL STATUS," EXCEPT THAT DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE ALLOWANCES FOR A MEMBER IN A TRAVEL STATUS. WE ARE OF THE OPINION THAT SUCH BROAD STATUTORY LANGUAGE PROVIDES SUFFICIENT AUTHORITY FOR THE ISSUANCE OF REGULATIONS AUTHORIZING TEMPORARY LODGING ALLOWANCE INCIDENT TO OVERSEAS TRAINING DUTY ASSIGNMENTS OF SHORT DURATION. SINCE A RESERVIST IS NOT IN A TRAVEL STATUS WHILE ON DUTY AT HIS TRAINING STATION FOR PER DIEM PURPOSES, AND SINCE GOVERNMENT QUARTERS MAY NOT BE AVAILABLE AT THAT STATION FOR ASSIGNMENT TO HIM, THE MEMBER IN SUCH CIRCUMSTANCES--- LIKE, THE ARMY NATIONAL GUARD OFFICERS WHO PERFORMED TRAINING DUTY IN FRANCE--- WOULD BE REQUIRED TO OBTAIN QUARTERS IN THE VICINITY OF THE OVERSEAS DUTY STATION AT PERSONAL EXPENSE. CONSIDERING THAT THE PURPOSE OF AUTHORIZING A TEMPORARY LODGING ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS, AND IN VIEW OF THE LANGUAGE OF 37 U.S.C. 405, WE HAVE NO OBJECTION TO AMENDING THE JOINT TRAVEL REGULATIONS TO AUTHORIZE PAYMENT OF SUCH ALLOWANCES FOR FUTURE SHORT PERIODS OF TRAINING DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA.

ENCLOSED AS A MATTER WHICH YOU MAY WISH TO CONSIDER IN CONNECTION WITH ANY REGULATIONS TO BE PROMULGATED IS A COPY OF OUR DECISION OF TODAY, 45 COMP. GEN. ---, TO LIEUTENANT COLONEL J. J. VANYA, USAF, ACCOUNTING AND FINANCE OFFICER, AS TO THE LEGALITY OF PAYMENT OF THESE COST-OF-LIVING ALLOWANCES TO A MEMBER OF THE AIR FORCE RESERVE PERFORMING A SHORT PERIOD OF ACTIVE DUTY TRAINING IN ALASKA AND TO MEMBERS OF THE HAWAII AND COLORADO AIR NATIONAL GUARD CALLED TO ACTIVE DUTY FOR PERIODS OF FROM 59 TO 90 DAYS, WHO PERFORM SUCH DUTY IN HAWAII.