B-165165, JANUARY 27, 1969, 48 COMP. GEN. 490

B-165165: Jan 27, 1969

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FOR A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHEN HE IS NOT ASSIGNED ADEQUATE QUARTERS WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS. MAY BE PAID TO A RESERVE MEMBER WITHOUT DEPENDENTS ON THE BASIS THE TRAVEL OF THE RESERVIST BETWEEN HOME AND FIRST AND LAST DUTY STATIONS IS PERMANENT CHANGE-OF STATION TRAVEL. THE AMENDMENT TO SECTION 403 (F) DOES NOT REQUIRE A CHANGE IN THE VIEW THAT TRAVEL FROM HOME TO A FIRST DUTY STATION AND FROM A LAST DUTY STATION TO HOME IS PERMANENT CHANGE-OF-STATION TRAVEL FOR PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY 37 U.S.C. 404 (A). QUARTERS ALLOWANCE - ENTITLEMENT - TRAINING DUTY PERIODS - REPORTING FROM HOME THE TRAINING STATION TO WHICH A RESERVE MEMBER WITHOUT DEPENDENTS IS ORDERED TO ACTIVE DUTY FOR LESS THAN 20 WEEKS IN A TEMPORARY DUTY STATUS IS HIS PERMANENT STATION AND THE MEMBER PERFORMING HIS BASIC ASSIGNMENT AT HIS PERMANENT DUTY STATION IS ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED BY 37 U.S.C. 403 (F).

B-165165, JANUARY 27, 1969, 48 COMP. GEN. 490

QUARTERS ALLOWANCE - TRAVEL STATUS - RESERVISTS THE BASIC ALLOWANCE FOR QUARTERS PROVIDED IN 37 U.S.C. 403 (F), AS AMENDED BY PUBLIC LAW 90-207, FOR A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHEN HE IS NOT ASSIGNED ADEQUATE QUARTERS WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME, MAY BE PAID TO A RESERVE MEMBER WITHOUT DEPENDENTS ON THE BASIS THE TRAVEL OF THE RESERVIST BETWEEN HOME AND FIRST AND LAST DUTY STATIONS IS PERMANENT CHANGE-OF STATION TRAVEL. THE AMENDMENT TO SECTION 403 (F) DOES NOT REQUIRE A CHANGE IN THE VIEW THAT TRAVEL FROM HOME TO A FIRST DUTY STATION AND FROM A LAST DUTY STATION TO HOME IS PERMANENT CHANGE-OF-STATION TRAVEL FOR PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY 37 U.S.C. 404 (A). QUARTERS ALLOWANCE - ENTITLEMENT - TRAINING DUTY PERIODS - REPORTING FROM HOME THE TRAINING STATION TO WHICH A RESERVE MEMBER WITHOUT DEPENDENTS IS ORDERED TO ACTIVE DUTY FOR LESS THAN 20 WEEKS IN A TEMPORARY DUTY STATUS IS HIS PERMANENT STATION AND THE MEMBER PERFORMING HIS BASIC ASSIGNMENT AT HIS PERMANENT DUTY STATION IS ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED BY 37 U.S.C. 403 (F), AS AMENDED BY PUBLIC LAW 90-207, WHILE AT THE TRAINING STATION AND THE DEFINITION IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS THAT A HOME OR PLACE FROM WHICH A MEMBER OF A RESERVE COMPONENT IS ORDERED TO ACTIVE DUTY FOR TRAINING IS HIS PERMANENT DUTY STATION IS NOT FOR APPLICATION. THEREFORE, PARAGRAPH 10242 AND TABLE 1-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL REMAINS APPLICABLE IN COMPUTING ALLOWABLE TRAVEL TIME FOR PAY PURPOSES FOR TRAVEL PERFORMED FROM HOME TO A TRAINING STATION.

TO THE SECRETARY OF DEFENSE, JANUARY 27, 1969:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1968, REQUESTING A DECISION ON TWO QUESTIONS CONCERNING THE ENTITLEMENT OF A RESERVEMEMBER WITHOUT DEPENDENTS TO BASIC ALLOWANCE FOR QUARTERS IN CERTAIN CASES AND ON ONE QUESTION RELATING TO ALLOWABLE TRAVEL TIME FOR PAY PURPOSES FOR RESERVISTS CALLED TO ACTIVE DUTY FOR LESS THAN 20 WEEKS. THE QUESTIONS ARE SET OUT AND DISCUSSED IN COMMITTEE ACTION NO. 419, OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS ARE AS FOLLOWS:

1. MAY A MEMBER (WITHOUT DEPENDENTS) OF A RESERVE COMPONENT, WHEN ORDERED TO ACTIVE DUTY FOR LESS THAN TWENTY WEEKS IN A TEMPORARY DUTY STATUS, BE PAID HOME TO HIS FIRST DUTY STATION AND FROM HIS LAST DUTY STATION TO HIS HOME?

2. MAY A MEMBER (WITHOUT DEPENDENTS) OF A RESERVE COMPONENT, WHEN ORDERED TO ACTIVE DUTY FOR LESS THAN TWENTY WEEKS IN A TEMPORARY DUTY STATUS, BE PAID A BASIC ALLOWANCE FOR QUARTERS FOR SUCH TOUR OF DUTY?

3. SINCE PARAGRAPH M1150-10C, JOINT TRAVEL REGULATIONS, NOW INCLUDES A RESERVIST'S HOME AS A PERMANENT DUTY STATION FOR PURPOSES OF ACTIVE DUTY TOURS OF LESS THAN 20 WEEKS, AND SUCH TOURS ARE NOW PERFORMED IN A TEMPORARY DUTY STATUS, DO THE PROVISIONS OF PARAGRAPH 10242 AND TABLE 1-2- 4, DODPM, STILL APPLY IN COMPUTING ALLOWABLE TRAVEL TIME FOR PAY PURPOSES IN SUCH CASES?

SECTION 403 (F) OF TITLE 37 OF THE U.S.C. WAS AMENDED BY SECTION 1 (3) OF PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, 81 STAT. 651, TO PROVIDE THAT:

A MEMBER OF A UNIFORMED SERVICE WITHOUT DEPENDENTS WHO IS IN PAY GRADE E- 4 (FOUR OR MORE YEARS OF SERVICE), OR ABOVE, IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME, WHEN HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES.

PRIOR TO THAT AMENDMENT SECTION 403 (F) HAD PROHIBITED CREDIT OF BASIC ALLOWANCE FOR QUARTERS TO SINGLE MEMBERS WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS.

SECTION 3 OF THE ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 521, AMENDED SECTION 404 (A) OF TITLE 37 OF THE CODE BY ADDING CLAUSE 4 TO THE SECTION TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL ALLOWANCES TO A MEMBER OF A UNIFORMED SERVICE,

WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD.

CHANGE 183 TO THE JOINT TRAVEL REGULATIONS, IMPLEMENTING THE ADDED CLAUSE 4, CHANGED THE PROVISIONS OF PARAGRAPH M1150-10C OF THE REGULATIONS TO PROVIDE, FOR THE PURPOSE OF PARAGRAPH M6001 OF THE REGULATIONS, THAT,"THE HOME OR PLACE FROM WHICH A MEMBER OF THE RESERVE COMPONENTS IS CALLED (OR ORDERED) TO ACTIVE DUTY (OR ACTIVE DUTY FOR TRAINING) IS DEFINED TO BE A PERMANENT DUTY STATION.'

WITH RESPECT TO QUESTION 1, THE VIEW IS EXPRESSED IN THE COMMITTEE ACTION THAT WHEN THE DEFINITION OF PERMANENT STATION CONTAINED IN PARAGRAPH M1150 -10, JOINT TRAVEL REGULATIONS, DID NOT INCLUDE A RESERVIST'S HOME AS A PERMANENT STATION FOR ANY PURPOSE, THERE WAS NO QUESTION THAT 37 U.S.C. 403 (F), REFERRING ONLY TO TRAVEL BETWEEN PERMANENT DUTY STATIONS, DID NOT APPLY TO A RESERVIST'S TRAVEL BETWEEN HIS HOME AND FIRST AND LAST DUTY STATIONS.

ALSO, THE COMMITTEE IS OF THE OPINION THAT THE CHANGE IN THE DEFINITION OF PERMANENT STATION DOES NOT PROVIDE A BASIS FOR CREDIT OF BASIC ALLOWANCE FOR QUARTERS FOR TRAVEL TIME FROM HOME TO FIRST DUTY STATION AND RETURN.

SINCE, HOWEVER, UNDER THE PROVISIONS OF 37 U.S.C. 403, A SERVICE MEMBER ENTITLED TO BASIC PAY IS ORDINARILY ENTITLED TO A QUARTERS ALLOWANCE UNLESS HE IS ASSIGNED TO GOVERNMENT QUARTERS AND A RESERVIST EN ROUTE FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME IS ENTITLED TO BASIC PAY AND IS NOT ASSIGNED TO GOVERNMENT QUARTERS, THE COMMITTEE SAYS THERE WOULD APPEAR TO BE NO REASON WHY SUCH A RESERVIST, WITH OR WITHOUT DEPENDENTS, SHOULD NOT BE ENTITLED TO A QUARTERS ALLOWANCE FOR THE AUTHORIZED TRAVEL TIME IN QUESTION.

WE HELD IN 43 COMP. GEN. 70, THAT UNDER THE PROVISIONS OF 37 U.S.C. 320, THEN IN EFFECT (SUBSEQUENTLY RECODIFIED AS 37 U.S.C. 403 (F) (, AN AIR FORCE RESERVE OFFICER WITHOUT DEPENDENTS, WHO HAD BEEN ORDERED TO EXTENDED ACTIVE DUTY WITH TEMPORARY DUTY EN ROUTE TO HIS PERMANENT DUTY STATION WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FROM THE DAY HE DEPARTED FROM HIS HOME UNTIL HIS ARRIVAL AT HIS PERMANENT STATION BECAUSE HE WAS IN A TRAVEL STATUS DURING THE ENTIRE PERIOD.

WHILE THE MEMBER'S HOME IS NOT A PERMANENT DUTY STATION, TRAVEL ALLOWANCES FOR TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME ARE AUTHORIZED BY CLAUSES 2 AND 3 OF SECTION 404 (A) OF TITLE 37 OF THE CODE AND THE MOVEMENTS TO AND FROM HOME HAVE BEEN VIEWED AS PERMANENT CHANGES OF STATION FOR THE PURPOSE OF THOSE CLAUSES. PARAGRAPH M3003-1A OF THE JOINT TRAVEL REGULATIONS. IT WAS OUR OPINION THAT IN THOSE CIRCUMSTANCES SUCH TRAVEL ALSO SHOULD BE REGARDED AS PERMANENT CHANGE OF STATION TRAVEL FOR THE PURPOSES OF 37 U.S.C. 403 (F). THE AMENDMENT TO SECTION 403 (F) DOES NOT REQUIRE ANY CHANGE IN OUR OPINION THAT TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME IS PERMANENT CHANGE OF STATION TRAVEL FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES. SEE 47 COMP. GEN. 689.

ACCORDINGLY, UNDER THE PRESENT PROVISIONS OF SECTION 403 (F) A MEMBER ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHEN HE IS NOT ASSIGNED ADEQUATE QUARTERS DURING PERIODS OF TRAVEL BETWEEN HOME AND FIRST AND LAST DUTY STATION, INCLUDING PERIODS OF TEMPORARY DUTY EN ROUTE, IN ANY CASE, UNLESS 37 U.S.C. 404 (A) (4) AND THE IMPLEMENTING REGULATIONS REQUIRE THE CONCLUSION THAT TRAVEL TO WHICH THAT STATUTE AND REGULATIONS APPLY IS TEMPORARY DUTY TRAVEL.

QUESTIONS 2 AND 3 APPEAR TO BE PREDICATED ON A VIEW THAT UNDER THE PROVISIONS OF 37 U.S.C. 404 (A) (4) AS IMPLEMENTED BY THE PERMANENT STATION DEFINITION CONTAINED IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS, THE DUTY STATION IN CASES WHERE THOSE PROVISIONS ARE APPLICABLE IS A TEMPORARY DUTY STATION AND THE TRAVEL TO THAT STATION FROM HOME AND RETURN IS TRAVEL FOR THE PURPOSES OF PERFORMING TEMPORARY DUTY. IF THAT VIEW WERE CORRECT SECTION 403 (F) OF TITLE 37 WOULD HAVE NO APPLICATION TO THE TRAVEL.

THE VIEW THAT THE DUTY HERE INVOLVED IS PERFORMED IN A TEMPORARY DUTY STATUS APPEARS TO HAVE FOLLOWED AS A MATTER OF COURSE FROM THE FACT THAT 37 U.S.C. 404 (A) (4) AUTHORIZES THE PAYMENT OF PER DIEM AND UNDER THE PROVISIONS OF 37 U.S.C. 404 (A) PRIOR TO THE ADDITION OF CLAUSE (4), A PER DIEM WAS PAYABLE AT A DUTY STATION ONLY WHILE A MEMBER WAS THERE IN A TEMPORARY DUTY STATUS.

A TEMPORARY DUTY STATUS IS ESSENTIAL TO CONFER ENTITLEMENT TO PER DIEM AT A DUTY STATION UNDER CLAUSE (1) OF 37 U.S.C. 404 (A), AUTHORIZING TRAVEL ALLOWANCE WHEN A MEMBER IS "AWAY FROM HIS DESIGNATED POST OF DUTY.' MAY BE NOTED, HOWEVER, THAT CLAUSE (4) DOES NOT RELATE BACK TO CLAUSE (1) BUT, LIKE CLAUSES (2) AND (3), IS APPLICABLE TO TRAVEL FROM HOME WITHOUT REFERENCE TO ABSENCE FROM A DESIGNATED POST OF DUTY. THE TERM "PERMANENT STATION" FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES HAS CONSISTENTLY BEEN APPLIED AS HAVING REFERENCE TO THE PLACE WHERE THE MEMBER'S BASIC DUTY ASSIGNMENT IS PERFORMED (38 COMP. GEN. 853; 41 ID. 726; 44 ID. 670), AND HIS HOME, WHEN HE IS NOT ON DUTY AND NO DUTY IS REQUIRED OF HIM, HAS NEVER BEEN VIEWED AS SUCH A PERMANENT STATION. THE BENEFITS OF CLAUSES (2) AND (3) ACCRUE INCIDENT TO TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME AND THE BENEFITS OF CLAUSE (4) ACCRUE WHEN "AWAY FROM HOME TO PERFORM DUTY.' SUCH PROVISIONS DO NOT CHANGE THE MEMBER'S HOME TO A DESIGNATED POST OF DUTY NOR REQUIRE THE EXISTENCE OF A TEMPORARY DUTY STATUS AS A CONDITION FOR THE PAYMENT OF THE TRAVEL ALLOWANCES WHICH THEY PROVIDE.

IN DECISION OF NOVEMBER 12, 1968 48 COMP. GEN. 301, WE CONSIDERED THE EFFECT OF SECTION 404 (A) (4) OF TITLE 37 AND THE IMPLEMENTING PROVISIONS OF PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS ON THE ENTITLEMENT OF A RESERVIST TO BASIC ALLOWANCE FOR QUARTERS AT HIS TRAINING DUTY STATION. ON THE BASIS THAT THERE WAS NOTHING TO INDICATE THAT THE PROVISIONS OF SECTION 404 (A) (4) WERE INTENDED TO IMPAIR RIGHTS OR ENTITLEMENTS UNDER CLAUSES (1), (2), AND (3) OF SECTION 404 (A) OR OTHER PROVISIONS OF TITLE 37 RELATING TO ACTIVE DUTY PAY AND ALLOWANCES, WE SAID THAT, IN OUR OPINION, THE TRAINING DUTY STATION CONTINUED TO BE A PERMANENT STATION FOR PAY AND ALLOWANCE PURPOSES AND THAT SECTION 404 (A) (4) SIMPLY PROVIDED AUTHORITY FOR THE PAYMENT OF PER DIEM AT THE PERMANENT STATION IN PROPER CASES.

WE CONCLUDED, THEREFORE, THAT THE PERMANENT STATION DEFINITION CONTAINED IN PARAGRAPH M1150-10C OF THE JOINT TRAVEL REGULATIONS IS NEITHER AUTHORIZED NOR REQUIRED BY THE PROVISIONS OF 37 U.S.C. 404 (A) (4) AND IS OF NO EFFECT IN DETERMINING THE MEMBER'S ENTITLEMENT EITHER TO PAY AND ALLOWANCES FOR THE PERIOD OF HIS TRAINING DUTY, OR TO REIMBURSEMENT OF THE COST OF TRAVEL TO AND FROM THE TRAINING DUTY STATION. SINCE QUARTERS WERE NOT ASSIGNED AT THE TRAINING DUTY STATION, WE HELD THAT UNDER THE GOVERNING PROVISIONS OF THE LAW AND REGULATIONS, THE MEMBER WAS ENTITLED TO CREDIT OF THE BASIC ALLOWANCE FOR QUARTERS AND TO SUCH PER DIEM AS WAS AUTHORIZED IN THE CIRCUMSTANCES OF HIS CASE.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE IN ALL CASES.

IN ANSWER TO QUESTION 2, SINCE THE STATION TO WHICH A MEMBER IS ORDERED INCIDENT TO ORDERS ASSIGNING HIM TO ACTIVE DUTY FOR LESS THAN 20 WEEKS IS HIS PERMANENT STATION, HE IS ENTITLED TO CREDIT FOR BASIC ALLOWANCE FOR QUARTERS WHILE AT THAT STATION WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM.

WITH RESPECT TO QUESTION 3, SINCE THE STATION TO WHICH THE MEMBER REPORTS TO PERFORM HIS BASIC ASSIGNMENT IS HIS PERMANENT STATION, THE PROVISIONS OF PARAGRAPH 10242 AND TABLE 1-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL ARE STILL APPLICABLE IN COMPUTING ALLOWABLE TRAVEL TIME FOR PAY PURPOSES FOR TRAVEL PERFORMED FROM HOME TO THAT STATION.

WE BELIEVE THAT THE CONSIDERABLE CONFUSION WHICH EXISTS AS TO THE PROPER APPLICATION OF 37 U.S.C. 404 (A) (4) WOULD BE GREATLY REDUCED IF THE PERMANENT STATION DEFINITION ADDED TO THE JOINT TRAVEL REGULATIONS BY CHANGE 183 WERE REMOVED FROM THE REGULATIONS.