B-174781, APR 21, 1972, 51 COMP GEN 673

B-174781: Apr 21, 1972

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ARE ENTITLED. WHICH WAS THE BASIS FOR DENYING THE ALLOWANCE IN 39 COMP. WHETHER THE SCHOOL ASSIGNMENT IS REGARDED AS A PERIOD OF TEMPORARY DUTY OR A LEAVE OF ABSENCE IS IMMATERIAL. EXCEPT IF THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES. 1972: REFERENCE IS MADE TO LETTER DATED DECEMBER 15. ATTEND A CIVILIAN SCHOOL WITH THE VIEW TO OBTAINING A BACCALAUREATE DEGREE UNDER PERMISSIVE TRAVEL ORDERS (NO EXPENSE TO THE GOVERNMENT) ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IF NOT OCCUPYING GOVERNMENT QUARTERS. A DISCUSSION PERTAINING TO THE QUESTION IS SET FORTH IN COMMITTEE ACTION NO. 457. IS ESSENTIALLY IN A LEAVE OF ABSENCE STATUS AND WHILE IN SUCH LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS HE IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

B-174781, APR 21, 1972, 51 COMP GEN 673

QUARTERS ALLOWANCE - COLLEGE ATTENDANCE - GOVERNMENT QUARTERS NOT OCCUPIED MEMBERS OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO, BETWEEN PERMANENT DUTY STATIONS, ATTEND A CIVILIAN SCHOOL TO OBTAIN A BACCALAUREATE DEGREE UNDER PERMISSIVE TRAVEL ORDERS AT NO EXPENSE TO THE GOVERNMENT, ARE ENTITLED, PURSUANT TO 37 U.S.C. 403(F), TO A BASIC ALLOWANCE FOR QUARTERS IF NOT ASSIGNED GOVERNMENT QUARTERS WHILE ON SUCH TEMPORARY DUTY, SINCE THE "NO EXPENSE" PROVISION IN THE TRAVEL ORDERS PERTAINS TO TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY WHICH DOES NOT INVOLVE PUBLIC BUSINESS, AND THE PROHIBITION IN 37 U.S.C. 320, WHICH WAS THE BASIS FOR DENYING THE ALLOWANCE IN 39 COMP. GEN. 718, HAS BEEN REMOVED. WHETHER THE SCHOOL ASSIGNMENT IS REGARDED AS A PERIOD OF TEMPORARY DUTY OR A LEAVE OF ABSENCE IS IMMATERIAL, EXCEPT IF THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES.

TO THE SECRETARY OF DEFENSE, APRIL 21, 1972:

REFERENCE IS MADE TO LETTER DATED DECEMBER 15, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION WHETHER MEMBERS OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO, BETWEEN PERMANENT DUTY STATIONS, ATTEND A CIVILIAN SCHOOL WITH THE VIEW TO OBTAINING A BACCALAUREATE DEGREE UNDER PERMISSIVE TRAVEL ORDERS (NO EXPENSE TO THE GOVERNMENT) ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IF NOT OCCUPYING GOVERNMENT QUARTERS. A DISCUSSION PERTAINING TO THE QUESTION IS SET FORTH IN COMMITTEE ACTION NO. 457, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN ITS DISCUSSION PERTAINING TO THE ENTITLEMENT OF A SINGLE OFFICER ATTENDING A CIVILIAN SCHOOL UNDER THE OPERATION BOOTSTRAP PROGRAM, THE COMMITTEE REFERS TO OUR DECISION 39 COMP. GEN. 718 (1960) IN WHICH WE HELD THAT UNDER THE STATUTORY AUTHORITY THEN IN EFFECT, SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, 64 STAT. 288, 37 U.S.C. 320 (SUBSEQUENTLY RECODIFIED AS 37 U.S.C. 403(F)), A MEMBER WITHOUT DEPENDENTS, ATTENDING A CIVILIAN COLLEGE UNDER PERMISSIVE TRAVEL ORDERS, BETWEEN PERMANENT DUTY STATIONS, IS ESSENTIALLY IN A LEAVE OF ABSENCE STATUS AND WHILE IN SUCH LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS HE IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. IN THAT DECISION, WE SAID THAT THE LANGUAGE OF SECTION 102 REQUIRED THAT THE BASIC ALLOWANCE FOR QUARTERS BE DENIED TO MEMBERS WITHOUT DEPENDENTS WHILE ATTENDING A CIVILIAN SCHOOL BETWEEN PERMANENT DUTY STATIONS, WHETHER THE PERIOD OF ATTENDANCE WAS REGARDED AS A PERIOD OF TEMPORARY DUTY OR AS A PERIOD OF LEAVE OF ABSENCE.

THE COMMITTEE ALSO REFERS TO THE AMENDMENT OF SECTION 403(F) OF TITLE 37, U.S.C. BY SECTION 1(3), PUBLIC LAW 90-207, DECEMBER 16, 1967, 81 STAT. 651, TO PROVIDE THAT A MEMBER WITHOUT DEPENDENTS WHO IS IN PAY GRADE E-4 (4 OR MORE YEARS' SERVICE), OR OVER, WHO IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME, IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS DURING THAT PERIOD.

OUR DECISION B-164351, DATED AUGUST 2, 1968, IS CITED BY THE COMMITTEE AS HOLDING THAT THE LEGISLATIVE HISTORY OF THE 1967 AMENDMENT TO SECTION 403(F) INDICATES THAT CONGRESS INTENDED TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS WITHOUT DEPENDENTS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS WITHOUT REGARD TO THE TRAVEL ALLOWANCES AUTHORIZED FOR THE MEMBER. THE COMMITTEE SAYS THAT APPLYING OUR INTERPRETATION OF CIVILIAN SCHOOLING AS LEAVE OF ABSENCE IN THE CONTEXT OF SECTION 403(F), AS AMENDED, LEADS TO THE CONCLUSION THAT MEMBERS WITHOUT DEPENDENTS - ATTENDING A CIVILIAN SCHOOL TO OBTAIN A BACCALAUREATE DEGREE, UNDER PERMISSIVE TRAVEL ORDERS AND BETWEEN PERMANENT DUTY STATIONS - ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IF NOT OCCUPYING GOVERNMENT QUARTERS. IT RECOMMENDED THE SUBMISSION OF THAT QUESTION TO OUR OFFICE FOR RESOLUTION.

BY SECTION 1(3) OF PUBLIC LAW 90-207, DECEMBER 16, 1967, 81 STAT. 651, SECTION 403(F) OF TITLE 37, U.S.C. WAS AMENDED TO AUTHORIZE THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO ARE IN PAY GRADES E-4 (4 OR MORE YEARS' SERVICE) OR ABOVE, WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, WHEN NOT ASSIGNED TO QUARTERS OF THE UNITED STATES.

IN 45 COMP. GEN. 143 (1965), WE CONSIDERED THE CASE OF A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO WAS ENTITLED TO BASIC PAY AND OTHERWISE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AT HER PERMANENT DUTY STATION, AND WHO WAS ASSIGNED ON TEMPORARY DUTY TO ATTEND A CIVILIAN UNIVERSITY UNDER PERMISSIVE ORDERS EXPRESSLY PROVIDING THAT NO EXPENSE TO THE GOVERNMENT BE INCURRED BY REASON OF THIS TEMPORARY DUTY AND DIRECTED RETURN TO THE DUTY STATION UPON COMPLETION OF THE ASSIGNMENT. WE HELD THAT THE NO EXPENSE PROVISION IN HER ORDERS DID NOT DEPRIVE HER OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS, IF NO GOVERNMENT QUARTERS WERE AVAILABLE AT THE TEMPORARY DUTY LOCATION.

ALSO, IN 45 COMP. GEN. 245 (1965) WE HELD THAT A MEMBER WITH DEPENDENTS WHO WAS ATTENDING A UNIVERSITY NEAR HIS PERMANENT STATION IN ALASKA UNDER "NO EXPENSE" PERMISSIVE ORDERS WAS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS IF NOT FURNISHED GOVERNMENT QUARTERS AT HIS PERMANENT STATION OR AT THE UNIVERSITY DURING THE PERIOD OF HIS ATTENDANCE THERE AND WAS ALSO ENTITLED TO HOUSING AND COST-OF-LIVING ALLOWANCES IF OTHERWISE QUALIFIED. WE SAID THE "NO EXPENSE" PROVISION IN THE TRAVEL ORDERS WAS DIRECTED AGAINST PAYMENT OF TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY WHICH DOES NOT INVOLVE PUBLIC BUSINESS.

THE DETERMINING FACTOR IN OUR DECISION 39 COMP. GEN. 718 (1960) DENYING BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS WHO WAS PERMITTED TO ATTEND A CIVILIAN COLLEGE TO COMPLETE STUDIES TO QUALIFY FOR A BACCALAUREATE DEGREE PRIOR TO REPORTING TO A PERSONNEL CENTER FOR FURTHER ASSIGNMENT WAS NOT THE FACT THAT THE MEMBER WAS ISSUED PERMISSIVE ORDERS WHICH PROVIDED THAT SUCH TEMPORARY DUTY BE PERFORMED AT NO EXPENSE TO THE GOVERNMENT. THAT DECISION WAS BASED ON THE FACT THAT THE MEMBER WAS "IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS" WITHIN THE MEANING OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, 27 U.S.C. 320, THEN IN EFFECT, DURING WHICH PERIOD THE MEMBER WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

SINCE THE PROHIBITION AGAINST THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO SUCH MEMBERS WITHOUT DEPENDENTS TRAVELING BETWEEN PERMANENT STATIONS HAS BEEN REMOVED, WE ARE OF THE OPINION THAT, IF OTHERWISE QUALIFIED, THEY ARE ENTITLED TO SUCH AN ALLOWANCE IF NOT ASSIGNED GOVERNMENT QUARTERS WHILE ON SUCH TEMPORARY DUTY. WHETHER THE ASSIGNMENT TO ATTEND A CIVILIAN SCHOOL IS TO BE REGARDED AS A PERIOD OF TEMPORARY DUTY OR A LEAVE OF ABSENCE STATUS IS NOT MATERIAL IN THE DETERMINATION OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS IN SUCH CIRCUMSTANCES EXCEPT IN CASES IN WHICH THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES WHILE AT A CIVILIAN SCHOOL ON EXTENDED LEAVE DURING SUCH AN ASSIGNMENT. CF. B- 172848, JULY 27, 1971, COPY ENCLOSED.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.