B-166068, FEBRUARY 25, 1969, 48 COMP. GEN. 553

B-166068: Feb 25, 1969

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MILITARY PERSONNEL - RETIRED - ACTIVE DUTY AFTER RETIREMENT - TRAVEL AND TRANSPORTATION ALLOWANCES THE PAYMENT OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN 37 U.S.C. 404 (A) TO RETIRED MEMBERS OF THE UNIFORMED SERVICES ORDERED TO SHORT PERIODS OF DUTY AT A STATION WHERE MESS AND QUARTERS ARE NOT PRESCRIBED IS NOT PRECLUDED BY THE LACK OF SPECIFIC REFERENCE TO RETIREES IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168. THE 1967 ACT HAVING BEEN DESIGNED TO AUTHORIZE THE SAME ENTITLEMENTS TO "ALL MILITARY PERSONNEL" WHEN THE CIRCUMSTANCES ARE ESSENTIALLY THE SAME. THE FACT THAT THE PER DIEM AUTHORIZED BY THE ACT IS A PERMANENT STATION ALLOWANCE THAT IS PAYABLE ONLY DURING PERIODS OF DUTY AT A PERMANENT STATION IS FOR CONSIDERATION.

B-166068, FEBRUARY 25, 1969, 48 COMP. GEN. 553

MILITARY PERSONNEL - RETIRED - ACTIVE DUTY AFTER RETIREMENT - TRAVEL AND TRANSPORTATION ALLOWANCES THE PAYMENT OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN 37 U.S.C. 404 (A) TO RETIRED MEMBERS OF THE UNIFORMED SERVICES ORDERED TO SHORT PERIODS OF DUTY AT A STATION WHERE MESS AND QUARTERS ARE NOT PRESCRIBED IS NOT PRECLUDED BY THE LACK OF SPECIFIC REFERENCE TO RETIREES IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168, DATED DECEMBER 1, 1967, ADDING CLAUSE 4 TO SECTION 404 (A) TO PROVIDE TRAVEL AND TRANSPORTATION ALLOWANCES FOR RESERVE COMPONENTS, THE 1967 ACT HAVING BEEN DESIGNED TO AUTHORIZE THE SAME ENTITLEMENTS TO "ALL MILITARY PERSONNEL" WHEN THE CIRCUMSTANCES ARE ESSENTIALLY THE SAME. IN AMENDING THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR PAYMENT TO RETIRED MEMBERS, THE FACT THAT THE PER DIEM AUTHORIZED BY THE ACT IS A PERMANENT STATION ALLOWANCE THAT IS PAYABLE ONLY DURING PERIODS OF DUTY AT A PERMANENT STATION IS FOR CONSIDERATION.

TO THE SECRETARY OF THE ARMY, FEBRUARY 25, 1969:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 13, 1969, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS, VOLUME 1, MAY BE AMENDED TO PROVIDE THE SAME ENTITLEMENTS TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR RETIRED MEMBERS ORDERED TO SHORT PERIODS OF ACTIVE DUTY AS MAY BE PROVIDED FOR MEMBERS OF THE RESERVE COMPONENTS IN SUCH CASES. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 69-3 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 404 (A) OF TITLE 37, U.S.C. WAS AMENDED EFFECTIVE JANUARY 1, 1968, BY SECTION 3 OF THE RESERVE FORCES BILL OF RIGHTS AND VITALIZATION ACT OF DECEMBER 1, 1967, PUBLIC LAW 90-168, 81 STAT. 525, BY ADDING CLAUSE (4) THERETO TO PROVIDE FOR PAYMENT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION 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, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE.

PARAGRAPH M6001, CHAPTER 6, OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, PROVIDING TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE RESERVE COMPONENTS ORDERED TO ACTIVE DUTY (OR ACTIVE DUTY FOR TRAINING) WITH OR WITHOUT PAY, WAS AMENDED EFFECTIVE JANUARY 1, 1968, PURSUANT TO PUBLIC LAW 90-168. THE CURRENT REGULATIONS ARE PREDICATED ON A VIEW THAT UNDER THE STATUTE, THE DUTY INVOLVED IS PERFORMED IN A TEMPORARY DUTY STATUS. EXPLAINED, HOWEVER, IN DECISION OF FEBRUARY 7, 1969, 49 COMP. GEN. -----, ON VARIOUS QUESTIONS ARISING FROM CONTEMPLATED REVISIONS OF THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS RELATING TO THESE TRAVEL AND TRANSPORTATION ALLOWANCES, SUCH IS NOT THE CASE. THE PER DIEM WHICH THE STATUTE AUTHORIZES IS A PERMANENT STATION ALLOWANCE AND IS PAYABLE ONLY DURING PERIODS OF DUTY AT THE PERMANENT STATION. THE CURRENT REGULATIONS, THEREFORE, DO NOT PROPERLY IMPLEMENT THE LAW.

THE ASSISTANT SECRETARY SAYS THAT THE LANGUAGE OF CLAUSE (4) APPEARS TO BE SUFFICIENTLY BROAD TO PERMIT THE PROPOSED AMENDMENT TO THE REGULATIONS; HOWEVER, UPON CLOSER SCRUTINY OF SUCH LANGUAGE IT APPEARS A MORE LIMITED PURPOSE WAS INTENDED. IN THIS REGARD, HE SAYS THAT THE LEGISLATIVE HISTORY OF SECTION 3 OF PUBLIC LAW 90-168 SEEMS TO INDICATE THAT THE SOLE PURPOSE OF THE LEGISLATION IS TO EQUATE ENTITLEMENTS TO TRAVEL AND TRANSPORTATION ALLOWANCES BETWEEN MEMBERS OF THE RESERVE COMPONENTS AND REGULAR MEMBERS WHO PERFORM TRAVEL OR TEMPORARY DUTY UNDER SIMILAR CIRCUMSTANCES.

SECTION 404 (A) OF TITLE 37, U.S.C. OF WHICH CLAUSE (4) IS A PART, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED,"A MEMBER OF A UNIFORMED SERVICE" IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS. THUS, THAT SECTION AS A WHOLE APPLIES TO ANY MEMBER AND THERE IS NOTHING IN THE LANGUAGE OF CLAUSE (4) TO LIMIT ITS APPLICATION TO MEMBERS OF RESERVE COMPONENTS TO THE EXCLUSION OF OTHER MEMBERS COVERED BY SECTION 404 (A).

WHILE THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168 DISCUSSES ONLY CASES INVOLVING RESERVISTS ON TRAINING DUTY, THAT CIRCUMSTANCE APPEARS TO RESULT FROM THE FACT THAT THE NEED FOR SOME MEANS OF REIMBURSING EXTRA SUBSISTENCE AND QUARTERS COSTS INCURRED BY MEMBERS IN THOSE CASES WAS THE PRINCIPLE FACTOR MOTIVATING ITS ENACTMENT. IN OUR OPINION, THEREFORE, THE LACK OF ANY SPECIFIC REFERENCE IN THE LEGISLATIVE HISTORY TO CASES INVOLVING OTHER CLASSES OF INACTIVE MILITARY PERSONNEL CALLED FROM THEIR HOMES TO SHORT PERIODS OF DUTY AT STATIONS WHERE MESS AND QUARTERS ARE NOT PROVIDED FOR THEM, NEED NOT NECESSARILY BE REGARDED AS REFLECTING AN INTENT ON THE PART OF CONGRESS TO EXCLUDE THEM FROM THE BENEFITS OF THE STATUTE.

THE CIRCUMSTANCES OF A RETIRED MEMBER ORDERED FROM HIS HOME FOR A SHORT PERIOD (LESS THAN 20 WEEKS) OF DUTY AT A STATION WHERE MESS AND QUARTERS ARE NOT PROVIDED FOR HIM WOULD BE ESSENTIALLY THE SAME AS THAT OF A RESERVIST SIMILARLY ORDERED. AND, IN H.REPT. NO. 13, 90TH CONG., TO ACCOMPANY H.R. 2 WHICH BECAME PUBLIC LAW 90-168 (PAGE 57), IT IS STATED THAT SECTION 104 OF THE BILL, WHICH BECAME SECTION 3 OF THE ACT, IS DESIGNED TO PROVIDE THE SAME ENTITLEMENTS TO "ALL MILITARY PERSONNEL" IN THE MATTER OF PER DIEM ELIGIBILITY WHEN CIRCUMSTANCES ARE ESSENTIALLY THE SAME.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE. SHOULD THE PROPOSED AMENDMENT WHICH ACCOMPANIED THE ASSISTANT SECRETARY'S LETTER BE REVISED TO MAKE IT AGREE WITH THE CONCLUSIONS REACHED IN THE DECISION OF FEBRUARY 7, 1969, SUPRA, WE WOULD HAVE NO OBJECTION TO ITS PROMULGATION.