B-169248, MAY 28, 1970, 49 COMP. GEN. 815

B-169248: May 28, 1970

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IS ENTITLED TO THE PRESCRIBED PER DIEM WITHOUT REDUCTION NOTWITHSTANDING THAT HE LIVED OFF THE MILITARY INSTALLATION. THE AGREEMENT SIGNED IS INVALID ABSENT THE DETERMINATION REQUIRED BY PUBLIC LAW 88-459. THAT THE USE OF GOVERNMENT QUARTERS BY THE TECHNICIAN WAS REQUIRED IN ORDER TO RENDER NECESSARY SERVICE OR TO PROTECT GOVERNMENT PROPERTY. NATIONAL GUARD TECHNICIANS ARE EMPLOYEES OF THE UNITED STATES. IT IS STATED THAT IN THESE INSTANCES WHERE THE MILITARY EDUCATION WAS ALSO RELATED TO THE JOB REQUIREMENTS OF AN INDIVIDUAL IN HIS TECHNICIAN EMPLOYMENT. A DIFFERENTIAL WAS PAID. AS A RESULT THEREOF THOSE TECHNICIANS THEN IN SCHOOL WERE PERMITTED TO ELECT BETWEEN CONTINUING IN A MILITARY STATUS OR HAVING NEW ORDERS ISSUED TO PLACE THEM IN A CIVILIAN TECHNICIAN STATUS SO AS TO PERMIT RECEIPT OF THE HIGHEST COMPENSATION POSSIBLE.

B-169248, MAY 28, 1970, 49 COMP. GEN. 815

NATIONAL GUARD -- EMPLOYEES OF FEDERAL GOVERNMENT -- TRAINING -- PER DIEM A NATIONAL GUARD TECHNICIAN--AN EMPLOYEE OF THE UNITED STATES PURSUANT TO 32 U.S.C. 709--WHO ELECTING TO ATTEND A SERVICE SCHOOL IN A CIVILIAN FEDERAL EMPLOYEE STATUS RATHER THAN IN A MILITARY STATUS SIGNS AN AGREEMENT THAT SHOULD HE NOT UTILIZE GOVERNMENT QUARTERS AND MESS FACILITIES IF AVAILABLE, HE WOULD ACCEPT REDUCED PER DIEM AS THOUGH HE HAD OCCUPIED GOVERNMENT QUARTERS AT NO COST, IS ENTITLED TO THE PRESCRIBED PER DIEM WITHOUT REDUCTION NOTWITHSTANDING THAT HE LIVED OFF THE MILITARY INSTALLATION. THE AGREEMENT SIGNED IS INVALID ABSENT THE DETERMINATION REQUIRED BY PUBLIC LAW 88-459, IMPLEMENTED BY PARAGRAPH C1057, JOINT TRAVEL REGULATIONS, VOLUME II, THAT THE USE OF GOVERNMENT QUARTERS BY THE TECHNICIAN WAS REQUIRED IN ORDER TO RENDER NECESSARY SERVICE OR TO PROTECT GOVERNMENT PROPERTY.

TO LIEUTENANT COLONEL L. M. MASON, DEPARTMENT OF THE ARMY, MAY 28, 1970:

YOUR MEMORANDUM OF SEPTEMBER 29, 1969, REFERENCE AKBAAFA, FORWARDED HERE ON MARCH 4, 1970, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTS A DECISION ON THE APPROPRIATE PER DIEM PAYABLE TO JOHN J. JOHANSEN, A NATIONAL GUARD TECHNICIAN, WHILE ATTENDING A SERVICE SCHOOL IN A CIVILIAN FEDERAL EMPLOYEE STATUS RATHER THAN IN A MILITARY STATUS UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

AS YOU POINT OUT BY WAY OF BACKGROUND INFORMATION, PUBLIC LAW 90-486, 32 U.S.C. 709, PROVIDED THAT EFFECTIVE JANUARY 1, 1969, NATIONAL GUARD TECHNICIANS ARE EMPLOYEES OF THE UNITED STATES.

THE CHIEF, NATIONAL GUARD BUREAU IN LETTER NG-TP, DATED MARCH 13, 1969, SET FORTH ADMINISTRATIVE INSTRUCTIONS PERTAINING TO ARMY AND AIR NATIONAL GUARD TECHNICIANS ATTENDING SCHOOLS AND PARTICIPATING IN SPECIAL EXERCISES. THAT LETTER REVIEWS THE NATIONAL GUARD POLICY PRIOR TO JANUARY 1, 1969, OF PLACING ALL MEMBERS ATTENDING SERVICE SCHOOLS UNDER MILITARY ORDERS BASED ON THE AUTHORITY OF 32 U.S.C. 505. IT IS STATED THAT IN THESE INSTANCES WHERE THE MILITARY EDUCATION WAS ALSO RELATED TO THE JOB REQUIREMENTS OF AN INDIVIDUAL IN HIS TECHNICIAN EMPLOYMENT, A DIFFERENTIAL WAS PAID; BUT THAT AFTER PUBLIC LAW 90-486 ESTABLISHED THE NATIONAL GUARD TECHNICIANS AS FEDERAL EMPLOYEES, IT BECAME LEGALLY IMPOSSIBLE TO CONTINUE SUCH DIFFERENTIAL PAY. AS A RESULT THEREOF THOSE TECHNICIANS THEN IN SCHOOL WERE PERMITTED TO ELECT BETWEEN CONTINUING IN A MILITARY STATUS OR HAVING NEW ORDERS ISSUED TO PLACE THEM IN A CIVILIAN TECHNICIAN STATUS SO AS TO PERMIT RECEIPT OF THE HIGHEST COMPENSATION POSSIBLE.

THE ABOVE CITED NATIONAL GUARD LETTER FURTHER STATES IN PERTINENT PART:

4C. IT IS STILL THE POLICY OF THE NATIONAL GUARD BUREAU THAT GUARDSMEN, INCLUDING TECHNICIANS, ATTEND SERVICE SCHOOLS IN THEIR MILITARY STATUS, AND PARTICIPATE FULLY IN ALL NON-ACADEMIC TRAINING REQUIRED BY THE SCHOOL WITH RESPECT TO ACTIVE ARMY AND AIR FORCE STUDENTS. THE LATTER DUTIES WOULD INCLUDE PHYSICAL TRAINING, ATTENDANCE AT COMMANDERS CALL LECTURES, INSTRUCTION IN MILITARY JUSTICE, AND ACTING AS CHARGE OF QUARTERS, OR IN OTHER CAPACITIES APPROPRIATE TO THEIR MILITARY GRADE.

D. HOWEVER, TO ENCOURAGE ATTENDANCE AT SERVICE SCHOOLS AND TO MINIMIZE THE FINANCIAL LOSS THAT MIGHT BE SUSTAINED BY TECHNICIANS IN THE LOWER ENLISTED AND COMMISSIONED GRADES, IT IS THE NATIONAL GUARD BUREAU POLICY TO PERMIT A TECHNICIAN TO ATTEND A SERVICE SCHOOL OF THE ARMY OR AIR FORCE IN A TECHNICIAN STATUS IF ALL OF THE FOLLOWING CONDITIONS ARE MET.

(1) THE COURSE OF INSTRUCTION IS RELATED TO THE DUTIES HE IS EXPECTED TO PERFORM IN HIS CAPACITY AS A NATIONAL GUARD TECHNICIAN (REF PARA 4-5, NGR 51/ANGR 40-01),

(2) THE MILITARY PAY AND ALLOWANCES HE WOULD BE ENTITLED TO RECEIVE IS LESS THAN HIS TECHNICIAN COMPENSATION,

(3) HE IS INFORMED OF THE BENEFITS OF WHICH HE AND HIS DEPENDENTS WILL LOSE IF HE ATTENDS IN CIVILIAN STATUS (E.G., MEDICAL CARE, MILITARY RETIREMENT POINT CREDIT, COMMISSARY AND MOST POST EXCHANGE PRIVILEGES), AND

(4) HE AGREES TO COMPLY WITH ALL OF THE CUSTOMS OF THE SERVICE, INCLUDING WEARING OF THE UNIFORM, TO THE SAME EXTENT AS IF HE WERE ATTENDING IN HIS NATIONAL GUARD MILITARY STATUS. THIS WILL INCLUDE UTILIZATION OF GOVERNMENT QUARTERS AND MESS FACILITIES IF AVAILABLE, PARTICIPATION IN ALL ACTIVITIES REQUIRED OF OTHER MEMBERS OF THE CLASS, AND PERFORMANCE OF ADMINISTRATIVE DUTIES DURING OTHER THAN CLASSROOM HOURS.

5. TO PRECLUDE ANY MISUNDERSTANDING REGARDING IMPLEMENTATION OF THE ABOVE, FUTURE APPLICANTS WHO MEET THE CRITERIA OF PARAGRAPH 4(D) WILL BE COUNSELLED AND OFFERED AN OPPORTUNITY TO ATTEND SERVICE SCHOOLS IN A MILITARY STATUS. IF THIS IS DECLINED, THEY MAY THEN BE OFFERED AN OPTION TO ATTEND IN A TECHNICIAN STATUS. APPLICANTS WILL BE COUNSELLED ON THE CONDITIONS OF ATTENDANCE IN A TECHNICIAN STATUS AS OUTLINED ON ATTACHED AGREEMENT. IF AFTER BEING COUNSELLED A TECHNICIAN AGREES TO ATTEND UNDER THE STATED CONDITIONS, HE WILL THEN BE REQUIRED TO SIGN THE AGREEMENT IN THE PRESENCE OF HIS UNIT COMMANDER OR HIS AUTHORIZED REPRESENTATIVE.

PARAGRAPH 3D OF THE AGREEMENT REFERRED ABOVE STATES:

I WILL UTILIZE GOVERNMENT QUARTERS AND MESS FACILITIES WHEN MADE AVAILABLE BY THE INSTALLATION COMMANDER. HOWEVER, IF SCHOOL AUTHORITIES PERMIT AND I ELECT TO LIVE OFF THE INSTALLATION WHEN QUARTERS ARE MADE AVAILABLE, I WILL APPLY FOR AND RECEIVE REDUCED PER DIEM AS THOUGH I HAD OCCUPIED GOVERNMENT QUARTERS.

WE UNDERSTAND THAT "AT NO COST" HAS BEEN ADDED BEFORE THE LAST PERIOD TO CLARIFY THAT PER DIEM IN SUCH CASES WOULD BE GOVERNED BY JOINT TRAVEL REGULATIONS (JTR), VOLUME II, PARAGRAPH C810LE.

YOU SUBMITTED A VOUCHER FOR MR. JOHANSEN WHO IS CLAIMING 5 DAYS PER DIEM AT $16 A DAY EVEN THOUGH HE SIGNED THE AGREEMENT DISCUSSED ABOVE WHICH PROVIDES FOR A REDUCED PER DIEM.

YOUR PRIMARY QUESTION IS WHETHER THE SIGNED AGREEMENT SHOULD BE REGARDED AS VALID SO AS TO PERMIT PAYMENT OF A REDUCED PER DIEM WHERE GOVERNMENT QUARTERS ARE AVAILABLE BUT NOT UTILIZED AS INDICATED IN SUCH AGREEMENT.

AS SET FORTH IN 45 COMP. GEN. 499 (1966) AT PAGE 500, PUBLIC LAW 88 459 5 U.S.C. 3125 PROVIDES THAT A CIVILIAN OFFICER OR EMPLOYEE MAY NOT BE REQUIRED TO USE AVAILABLE GOVERNMENT QUARTERS UNLESS THE HEAD OF THE AGENCY OR HIS DESIGNATED REPRESENTATIVE DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR THAT GOVERNMENT PROPERTY CANNOT BE PROTECTED OTHERWISE.

PARAGRAPH C1057, JTR, VOLUME II IN IMPLEMENTING PUBLIC LAW 88-459 STATES IN PART:

1. PRACTICABLE USE OF AVAILABLE QUARTERS. WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE, AND THEIR USE WOULD NOT BE IMPRACTICABLE OR INTERFERE WITH THE ACCOMPLISHMENT OF THE PURPOSE OF A MISSION, EMPLOYEES PERFORMING TEMPORARY DUTY AT AN ACTIVITY WILL BE ENCOURAGED BY THEIR SUPERVISORS TO USE SUCH QUARTERS. EXCEPT AS PROVIDED IN SUBPARS. 2 AND 3, MANDATORY USE OF GOVERNMENT QUARTERS WHILE IN A TEMPORARY DUTY STATUS WILL NOT BE REQUIRED, NOR WILL PER DIEM ALLOWANCES BE SUBJECT TO REDUCTION ON THE BASIS OF AVAILABILITY ALONE OF SUCH QUARTERS. ***

SUBPARAGRAPHS 2 AND 3 OF C1057 PROVIDE:

2. TRAINING COURSE REQUIREMENT. OFFICIALS RESPONSIBLE FOR THE ADMINISTRATION OF TRAINING PROGRAMS ARE DELEGATED AUTHORITY TO DETERMINE WHEN THE USE OF AVAILABLE ADEQUATE GOVERNMENT QUARTERS BY EMPLOYEES ATTENDING A TRAINING COURSE IS REQUIRED AS A NECESSARY ADJUNCT TO THE SUCCESSFUL COMPLETION OF THE TRAINING INVOLVED OR NECESSARY TO THE PROPER PROTECTION OF GOVERNMENT PROPERTY OR DOCUMENT. SUCH DETERMINATIONS WILL BE MADE ON A SCHOOL-TO-SCHOOL BASIS AND IF NEED BE, ON A COURSE-TO-COURSE BASIS. MERE ADMINISTRATIVE OR ACADEMIC CONVENIENCE OR DESIRE FOR UNIFORMITY WITH MEMBERS OF THE UNIFORMED SERVICES IS NOT SUFFICIENT REASON IN ITSELF TO REQUIRE USE OF GOVERNMENT FACILITIES. LIKEWISE, SHORTAGE OF TRAINING FUNDS AND FULL UTILIZATION OF TRANSIENT QUARTERS ARE NOT TO BE USED AS A BASIS FOR REQUIRED USE OF SUCH FACILITIES. WHEN IT IS DETERMINED THAT SPECIFIC COURSES AND LOCATIONS REQUIRE THE USE OF AVAILABLE GOVERNMENT QUARTERS, SUCH REQUIREMENT WILL BE PUBLISHED IN AN APPROPRIATE TRAINING COURSE ANNOUNCEMENT, CATALOG, OR IN SOME OTHER MEDIUM BY THE DEPARTMENT CONCERNED, AND WILL BE BINDING ON ALL ATTENDEES. DETERMINATIONS WHICH REQUIRE THE USE OF AVAILABLE GOVERNMENT QUARTERS MAY BE MADE WHEN:

1. HIGHLY VALUABLE GOVERNMENT EQUIPMENT IS ISSUED TO STUDENTS AND THE COMMANDER OF THE TRAINING FACILITY DETERMINES THAT SUCH EQUIPMENT SHOULD REMAIN IN THE PERSONAL POSSESSION OF THE STUDENT DURING THE COURSE BUT THAT SUCH EQUIPMENT NOT BE TAKEN OFF THE MILITARY INSTALLATION,

2. CLASSIFIED MATERIALS ARE ISSUED TO STUDENTS FOR THEIR USE THE SECURITY OF WHICH IS UNDULY ENDANGERED IF TRANSPORTED TO QUARTERS OFF THE MILITARY INSTALLATION,

3. THE NATURE OF THE COURSE IS SUCH THAT THE READY ACCESSIBILITY OF THE STUDENTS TO THE TRAINING SITE IS REQUIRED ON AN AROUND-THE-CLOCK BASIS OR CLASSES ARE HELD ON SUCH AN ERRATIC SCHEDULE THAT COMMUTING TO AND FROM LOCAL COMMERCIAL QUARTERS WOULD SEVERELY LESSEN THE EFFECTIVENESS OF THE TRAINING,

4. COMMERCIAL QUARTERS ARE SO FAR REMOVED FROM THE TRAINING SITE THAT THEIR USE WOULD BE CONSIDERED IMPRACTICABLE,

5. FREQUENT CHANGES OF CLOTHING ARE REQUIRED ON SHORT NOTICE SO THAT TRAVEL TO AND FROM COMMERCIAL QUARTERS AWAY FROM THE TRAINING SITE FOR THAT PURPOSE WOULD NOT BE FEASIBLE. THE PER DIEM ALLOWANCES PAYABLE WHEN THE USE OF AVAILABLE GOVERNMENT QUARTERS IS NECESSARY UNDER THE CONDITIONS IN THIS SUBPARAGRAPH WILL BE DETERMINED AS PROVIDED IN CHAPTER 8 AS THOUGH SUCH QUARTERS WERE ACTUALLY USED.

3. SPECIAL PROJECTS AND MISSIONS. EMPLOYEES ASSIGNED TO SPECIAL PROJECTS OR MISSIONS MAY BE REQUIRED TO OCCUPY AVAILABLE GOVERNMENT QUARTERS WHEN A DETERMINATION IS MADE BY THE SECRETARY OF A SEPARATE MILITARY DEPARTMENT OR THE HEAD OF AN AGENCY OF THE DEPARTMENT OF DEFENSE THAT THE EXIGENCIES OF THE SERVICE REQUIRE OCCUPANCY OF SUCH QUARTERS TO ASSURE ACCOMPLISHMENT OF THE PROJECT OR MISSION. TRAVEL ORDERS WILL INCLUDE CITATION OF THE DETERMINATION AND APPLICABLE CONDITIONS AND LIMITATIONS.

PARAGRAPH C8101 OF JTR, VOLUME II, IN EFFECT DURING THE PERIOD COVERED BY THE VOUCHER HERE INVOLVED PRESCRIBED A PER DIEM IN LIEU OF SUBSISTENCE RATE OF $16 PER DAY FOR ALL TRAVEL AND TEMPORARY DUTY UNLESS A REDUCED RATE IS APPLICABLE BECAUSE OF THE CONDITIONS SET FORTH THEREIN INCLUDING ATTENDANCE AT TRAINING COURSES AS EXPLAINED IN C1057 QUOTED ABOVE.

FROM INFORMAL DISCUSSION WITH REPRESENTATIVES OF THE NATIONAL GUARD BUREAU AS WELL AS PAPERS OF RECORD OUR VIEW IS THAT THE TECHNICIANS HAVE LITTLE OR NO CHOICE SO FAR AS SIGNING THE ABOVE-MENTIONED AGREEMENT IS CONCERNED. ATTENDANCE AT SERVICE SCHOOLS IS NECESSARY TO RETENTION AND ADVANCEMENT IN BOTH THEIR MILITARY STATUS AND CIVILIAN TECHNICIAN STATUS. MOREOVER, EVEN IF SUCH AN AGREEMENT BE SIGNED IT WOULD BE AT VARIANCE WITH PUBLIC LAW 88-459 UNLESS A SPECIAL DETERMINATION BE MADE AS PROVIDED IN SUCH ACT OR UNLESS A PARTICULAR TRAINING COURSE OTHERWISE FALLS WITHIN PARAGRAPH 2 OF C1057, JTR, VOLUME II.

WE UNDERSTAND IN THE CASE OF MR. JOHANSEN THAT NO SPECIAL DETERMINATION WAS MADE NOR DID THE TRAINING COURSE WHICH HE ATTENDED REQUIRE USE OF GOVERNMENT QUARTERS. IN VIEW THEREOF AND ASSUMING HIS PER DIEM WAS NOT OTHERWISE FOR DEDUCTION UNDER PARAGRAPH C8051, JTR, VOLUME II, THE VOUCHER IS RETURNED HEREWITH FOR PAYMENT.