B-177522, FEB 7, 1973, 52 COMP GEN 496

B-177522, FEB 7, 1973, 52 COMP GEN 496

SUBSISTENCE ALLOWANCE - MILITARY PERSONNEL - CADETS, MIDSHIPMEN, ETC. - PERIOD OF ENTITLEMENT TO ALLOWANCE THE SUBSISTENCE ALLOWANCE OF $100 PER MONTH AUTHORIZED IN 37 U.S.C. 209, AS AMENDED BY THE ACT OF NOVEMBER 24, 1971, PUBLIC LAW 92-171, AND IMPLEMENTED BY PARAGRAPHS 80401A, B, AND D(2)(A) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, MAY NOT BE PAID TO AN ROTC CADET OR MIDSHIPMAN APPOINTED UNDER 10 U.S.C. 2107 FOR 10 FULL MONTHS OF EACH ACADEMIC YEAR IF THE ACADEMIC YEAR IS OF SHORTER DURATION. IN ACCORDANCE WITH THE LEGISLATIVE HISTORY OF THE 1971 ACT, CADETS AND MIDSHIPMEN BECAME ENTITLED TO A SUBSISTENCE ALLOWANCE FOR A MAXIMUM OF 20 MONTHS EACH DURING THE FIRST 2 YEARS AND SECOND 2 YEARS OF SCHOOLING TO PRECLUDE PAYMENT OF THE ALLOWANCE DURING VACATIONS WHEN THEY HAD NO MILITARY OBLIGATION AND, THEREFORE, THERE IS NO AUTHORITY TO PAY THE ALLOWANCE TO CADETS AND MIDSHIPMEN WHEN THEY ARE NOT IN SCHOOL.

TO THE SECRETARY OF DEFENSE, FEBRUARY 7, 1973:

FURTHER REFERENCE IS MADE TO LETTER FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) DATED NOVEMBER 22, 1972, REQUESTING AN ADVANCE DECISION AS TO WHETHER AN ROTC CADET OR MIDSHIPMAN APPOINTED UNDER 10 U.S.C. 2107 MAY BE PAID SUBSISTENCE ALLOWANCE OF $100 PER MONTH UNDER THE PROVISIONS OF 37 U.S.C. 209 AS AMENDED BY PUBLIC LAW 92-171, APPROVED NOVEMBER 24, 1971, 85 STAT. 490, FOR 10 FULL MONTHS OF EACH ACADEMIC YEAR ALTHOUGH THE ACADEMIC YEAR IS OF A SHORTER DURATION. THE QUESTION TOGETHER WITH A DISCUSSION IS SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION 468.

THE DISCUSSION IN THE COMMITTEE ACTION POINTS OUT THAT PRIOR TO THE AMENDMENT OF 37 U.S.C. 209(B) BY THE ACT OF NOVEMBER 24, 1971, ROTC CADETS AND MIDSHIPMAN APPOINTED UNDER 10 U.S.C. 2107 WERE PAID $50 PER MONTH SUBSISTENCE ALLOWANCE FOR EACH MONTH ENROLLED IN THE PROGRAM, INCLUDING VACATIONS, THE ONLY LIMITATION FOR NONENTITLEMENT BEING PERIODS OF FIELD OR SEA TRAINING AND A MAXIMUM OF 4 ACADEMIC YEARS.

IT IS INDICATED IN THE COMMITTEE ACTION THAT CADETS AND MIDSHIPMEN WERE PAID $50 PER MONTH INCLUDING PERIODS OF VACATION BETWEEN THE FIRST AND SECOND AND SECOND AND THIRD YEARS OF TRAINING. IT IS ALSO INDICATED, HOWEVER, THAT WITH THE ENACTMENT OF PUBLIC LAW 92-171, CADETS AND MIDSHIPMEN BECAME ENTITLED TO THE SUBSISTENCE ALLOWANCE FOR A MAXIMUM OF 20 MONTHS EACH DURING THE FIRST 2 YEARS AND SECOND 2 YEARS OF SCHOOLING. IT IS INDICATED THAT THE PURPOSE OF THIS WAS TO PRECLUDE PAYMENT DURING VACATION PERIODS. IT IS POINTED OUT THAT THIS VIEW IS SUBSTANTIATED BY HOUSE REPORT NO. 92-356, JULY 13, 1971, WHEREIN IT IS STATED AT PAGE 2 THAT:

ADDITIONALLY, THE COMMITTEE BELIEVED THAT THERE WAS NO JUSTIFICATION FOR PAYMENT TO ROTC CADETS DURING THE SUMMERS WHEN THEY HAD NO MILITARY OBLIGATION. THUS, LANGUAGE WAS INCLUDED TO LIMIT THE PAYMENTS TO ROTC STUDENTS DURING THEIR FIRST 2 YEARS OF COLLEGE TO NO MORE THAN 20 MONTHS.

AGREEMENT WITH HIS VIEW IS ALSO EVIDENCED BY THE STATEMENT IN SENATE REPORT NO. 92-433, NOVEMBER 11, 1971, AT PAGE 2 THAT:

THE COMMITTEE AGREES THAT THE $100 PER MONTH IS A PROPER ALLOWANCE FOR ROTC CADETS. THE COMMITTEE ALSO AGREES WITH THE HOUSE AMENDMENT WHICH WOULD PROHIBIT COST OF LIVING ADJUSTMENTS TO THIS $100 PER MONTH ALLOWANCE WITHOUT CONGRESSIONAL APPROVAL. FURTHER, THE COMMITTEE IS IN AGREEMENT THAT NO JUSTIFICATION EXISTS FOR THE PAYMENT OF SUBSISTENCE ALLOWANCE DURING THE FIRST 2 YEARS WHILE THE CADETS ARE NOT IN SCHOOL AND HAVE NO MILITARY OBLIGATIONS TO PARTICIPATE IN SUMMER TRAINING.

IN THE COMMITTEE ACTION IT IS ALSO NOTED THAT IN HEARING REPORT DATED NOVEMBER 5, 1971, RESULTING FROM HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE ARMED SERVICES COMMITTEE, THERE ARE INDICATIONS THAT THE INTENT OF THE HOUSE AMENDMENT WAS TO AVOID THE SITUATION OF PAYING SOMEONE DURING A PERIOD WHEN HE WAS NOT ATTENDING SCHOOL.

PURSUANT TO THE ENACTMENT OF PUBLIC LAW 92-171, THE FOLLOWING CHANGES TO PARAGRAPHS 80401A, B, AND D(2)(A) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL WERE PROMULGATED.

A. CADETS OR MIDSHIPMEN. EXCEPT WHILE PERFORMING FIELD TRAINING OR AT- SEA TRAINING, A CADET OR MIDSHIPMAN APPOINTED UNDER SECTION 2107 OF TITLE 10, U.S.C., IS ENTITLED TO SUBSISTENCE ALLOWANCE AT THE RATE OF $100 PER MONTH FOR THE FOLLOWING PERIODS:

(1) A MEMBER ENROLLED IN THE FIRST TWO YEARS OF A FOUR-YEAR PROGRAM IS ENTITLED TO RECEIVE THE ALLOWANCE BEGINNING ON THE DAY HE STARTS HIS FIRST TERM OF COLLEGE WORK BUT NOT FOR MORE THAN 20 MONTHS.

(2) A MEMBER ENROLLED IN THE ADVANCED COURSE IS ENTITLED TO SUBSISTENCE ALLOWANCE AS PRESCRIBED FOR MEMBERS ENROLLED UNDER SECTION 2104, TITLE 10, U.S.C., UNDER B BELOW.

FOR VACATION PERIODS SEE D(2) BELOW.

B. MEMBERS SELECTED FOR ADVANCED TRAINING. EXCEPT WHILE PERFORMING FIELD TRAINING OR AT-SEA TRAINING, A MEMBER OF THE ROTC PROGRAM WHO IS SELECTED FOR ADVANCED TRAINING UNDER SECTION 2104 OF TITLE 10, U.S.C., IS ENTITLED TO SUBSISTENCE ALLOWANCE AT THE RATE OF $100 PER MONTH BEGINNING ON THE DAY HE STARTS ADVANCED TRAINING AND ENDING UPON COMPLETION OF HIS INSTRUCTION UNDER THAT SECTION, BUT NOT FOR MORE THAN 20 MONTHS.

D(2)(A) A CADET OR MIDSHIPMAN APPOINTED UNDER SECTION 2107 OF TITLE 10, U.S.C., AND ENROLLED IN THE FIRST TWO YEARS OF A FOUR YEAR PROGRAM, IS NOT ENTITLED TO SUBSISTENCE ALLOWANCE FOR PERIODS BETWEEN THE NORMAL 10 MONTH ACADEMIC SCHOOL YEARS, FOR EXAMPLE, SUMMER VACATIONS AFTER THE FIRST AND SECOND YEARS.

IT IS INDICATED IN THE COMMITTEE ACTION THAT FOLLOWING THE PUBLICATION OF THESE REGULATIONS TWO INTERPRETATIONS AS TO THE ENTITLEMENT PERIOD HAVE BEEN ADVANCED, ONE INTERPRETATION BEING THAT THE MILITARY DEPARTMENTS ARE AUTHORIZED TO PAY SUBSISTENCE FOR A MAXIMUM OF 10 MONTHS EACH ACADEMIC YEAR REGARDLESS OF WHEN THE ACADEMIC YEAR AT A HOST INSTITUTION BEGINS OR ENDS. IT IS NOTED THAT UNDER THIS VIEW CADETS AND MIDSHIPMEN WOULD RECEIVE AN EQUAL AMOUNT OF SUBSISTENCE REGARDLESS OF WHICH SCHOOL IS ATTENDED.

ON THE OTHER HAND, THE COMMITTEE POINTS OUT THAT THE OTHER INTERPRETATION IS THAT PAYMENT OF 10 FULL MONTHS OF SUBSISTENCE IS NOT AUTHORIZED WHERE THE ACADEMIC YEAR AT A HOST INSTITUTION IS FOR A PERIOD OF LESS THAN 10 MONTHS. IF THIS INTERPRETATION IS FOLLOWED, IT IS INDICATED, PAYMENT WOULD BE AUTHORIZED ONLY FOR THE MONTHS OR FRACTIONS THEREOF THE CADET OR MIDSHIPMAN IS ACTUALLY ATTENDING SCHOOL AND PARTICIPATING IN THE ROTC PROGRAM. HENCE, THE AMOUNT OF PAYMENT TO EACH CADET OR MIDSHIPMAN WOULD LARGELY DEPEND ON THE LENGTH OF THE ACADEMIC YEAR AT HIS PARTICULAR INSTITUTION.

IT IS INDICATED THAT THE MATTER WAS SUBMITTED TO THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE FOR CONSIDERATION AND A DETERMINATION WAS MADE BY THE COMMITTEE THAT PAYMENT WAS RESTRICTED TO PERIODS OF SCHOOLING WITH A MAXIMUM PERIOD OF 10 MONTHS IN ANY ONE SCHOOL YEAR.

FOLLOWING THIS ACTION, IT IS STATED THAT THE DEPARTMENT OF THE ARMY BY LETTER DATED SEPTEMBER 15, 1972, REQUESTED THE VIEWS OF THE CHAIRMAN, HOUSE ARMED SERVICES COMMITTEE. THE COMMITTEE ACTION QUOTES IN PART THE DEPARTMENT OF THE ARMY LETTER STATING ITS POSITION:

AS YOU KNOW, THE INITIAL LEGISLATIVE PROPOSAL WAS TO INCREASE THE SUBSISTENCE ALLOWANCE TO $100 PER MONTH FOR 12 MONTHS. THIS WAS BASED UPON THE 100% COST OF LIVING INCREASE SINCE THE $50 AMOUNT WAS ESTABLISHED BY THE HOLLOWAY PLAN IN 1946. THE REDUCTION IN THE NUMBER OF MONTHS PAYMENT IS AUTHORIZED TO 10 MONTHS HAS ALREADY REDUCED THE MAXIMUM AMOUNT AUTHORIZED WELL BELOW WHAT WAS NEEDED TO OFFSET THE COST OF LIVING INCREASE.***.

THEREFORE, IT IS CONSIDERED IN THE BEST INTEREST OF THE ROTC PROGRAM AND THE SERVICES TO PAY ALL CADETS A FULL 10 MONTHS SUBSISTENCE EACH ACADEMIC YEAR. THIS WOULD BE A MORE EQUITABLE PRACTICE AND IT WOULD OFFER THE ADDED BENEFIT OF LESSENING THE ADMINISTRATIVE BURDEN OF ADJUSTING THE AMOUNT OF PAYMENT OF EACH INDIVIDUAL CADET.

THE CHAIRMAN IN RESPONSE INDICATED HIS CONCURRENCE WITH THIS VIEW.

SUBSEQUENTLY, THE DEPARTMENT OF THE ARMY AGAIN SUBMITTED THE MATTER TO THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND REQUESTED THE PAY AND ALLOWANCES ENTITLEMENTS MANUAL BE CHANGED IN ACCORDANCE WITH THE ARMY'S VIEWS. IT IS STATED IN THE COMMITTEE ACTION, HOWEVER, THAT IT IS THE CONCENSUS OF THE COMMITTEE MEMBERS THAT THE LAW DOES NOT SPECIFICALLY OR CLEARLY AUTHORIZE, OR DENY, THE PAYMENT OF SUBSISTENCE ALLOWANCE TO ROTC CADETS OR MIDSHIPMEN FOR 10 FULL MONTHS WHEN THE SCHOOL YEAR IS OF A SHORTER DURATION. THUS, A RULING IS REQUESTED ON THE FOLLOWING QUESTION:

MAY A ROTC CADET OR MIDSHIPMAN APPOINTED UNDER SECTION 2107, TITLE 10, U.S.C. BE PAID SUBSISTENCE ALLOWANCE UNDER THE PROVISIONS OF SECTION 209, TITLE 37, U.S.C. AS AMENDED BY P.L. 92-171, FOR 10 FULL MONTHS OF EACH ACADEMIC YEAR EVEN THOUGH THE ACADEMIC YEAR IS OF SHORTER DURATION?

SECTION 209(B) OF TITLE 37, U.S. CODE, AMENDED BY PUBLIC LAW 92-171, WHICH BECAME EFFECTIVE JULY 1, 1971, IS AS FOLLOWS:

EXCEPT WHEN ON ACTIVE DUTY, A CADET OR MIDSHIPMAN APPOINTED UNDER SECTION 2107 OF TITLE 10 IS ENTITLED TO A MONTHLY SUBSISTENCE ALLOWANCE IN THE AMOUNT PROVIDED IN SUBSECTION (A) OF THIS SECTION. A MEMBER ENROLLED IN THE FIRST TWO YEARS OF A FOUR-YEAR PROGRAM IS ENTITLED TO RECEIVE SUBSISTENCE FOR A MAXIMUM OF TWENTY MONTHS. A MEMBER ENROLLED IN THE ADVANCED COURSE IS ENTITLED TO SUBSISTENCE AS PRESCRIBED FOR A MEMBER ENROLLED UNDER SECTION 2104 OF TITLE 10 AS PRESCRIBED IN SUBSECTION (A) OF THIS SECTION.

OF SIGNIFICANCE IN CONSIDERING THE QUESTION IS THE LANGUAGE OF SUBSECTION 209(B) LIMITING ENTITLEMENT TO THE SUBSISTENCE ALLOWANCE "FOR A MAXIMUM OF TWENTY MONTHS." IT SEEMS CLEAR THAT THE USE OF SUCH LANGUAGE CONVEYS THE INTENT THAT NO MORE THAN 20 MONTHS IS AUTHORIZED BY THE LAW. IT WOULD SEEM TO FOLLOW THAT BY PROVIDING A MAXIMUM PERIOD OF TIME, IT WAS CONTEMPLATED THAT A PERIOD OF SHORTER DURATION MIGHT EXIST FOR WHICH THE SUBSISTENCE WOULD BE COMPUTED ON THE BASIS OF THE SHORTER PERIOD.

THE EXCERPTS QUOTED IN THE COMMITTEE ACTION ON H.R. 6724(WHICH BECAME PUBLIC LAW 92-171) BY BOTH THE HOUSE AND SENATE ARMED SERVICES COMMITTEES WHICH CONSIDERED THE BILL, CLEARLY INDICATE THAT IT WAS THE INTENTION OF THOSE COMMITTEES TO LIMIT THE PAYMENT OF SUBSISTENCE TO THOSE PERIODS OF TIME WHEN A CADET OR MIDSHIPMAN IS ATTENDING SCHOOL AND HAS A MILITARY OBLIGATION. (PAGE 2 OF S. REP. 92-443 ACCOMPANYING H.R. 6724 AND PAGE 2 OF H. REP. 92-356 ACCOMPANYING H.R. 6724.)

THIS VIEW IS FURTHER SUBSTANTIATED BY STATEMENTS OF THE DEPARTMENT OF DEFENSE REPRESENTATIVE THEN MAJOR GENERAL LEO E. BENADE, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR MILITARY PERSONNEL POLICY, WHO TESTIFIED BEFORE THE SENATE ARMED SERVICES SUBCOMMITTEE IN CONNECTION WITH H.R. 6724. PAGE 27 OF THE HEARING REPORT OF NOVEMBER 5, 1971, ON MISCELLANEOUS BILLS BEFORE A SUBCOMMITTEE OF THE ARMED SERVICES COMMITTEE IN RESPONDING TO A QUESTION CONCERNING THE ADMINISTRATION OF THE SUBSISTENCE PROGRAM UNDER H.R. 6724, GENERAL BENADE STATED:

IT IS MY UNDERSTANDING THIS LEGISLATION MEETS THE POINT YOU ARE MAKING. IF NOT, I CAN ASSURE YOU, IN LIGHT OF THE LEGISLATIVE HISTORY, AND THE HOUSE MADE VERY CLEAR WHAT THEIR INTENTION WAS, IT IS OUR INTENTION AND THE SERVICES' INTENTION TO ADMINISTER THE BILL IN THE MANNER BEING DESCRIBED. THAT MEANS THE STUDENTS WILL NOT BE PAID FOR PERIODS WHILE THEY ARE NOT IN SCHOOL OR ON ACTIVE DUTY.

IN THE LIGHT OF GENERAL BENADE'S STATEMENT AND OTHER QUOTED PARTS OF THE LEGISLATIVE HISTORY, IT IS OUR VIEW THAT THE LAW DOES NOT CONTEMPLATE THE PAYMENT OF A SUBSISTENCE ALLOWANCE TO CADETS AND MIDSHIPMEN WHILE THEY ARE NOT IN SCHOOL ATTENDING COURSES OF INSTRUCTION AND HAVE NO MILITARY OBLIGATION TO PARTICIPATE IN SUMMER TRAINING. ACCORDINGLY, THERE IS NO AUTHORITY UNDER SECTION 209(B) OF TITLE 37, AS AMENDED BY PUBLIC LAW 92- 171, TO PAY A SUBSISTENCE ALLOWANCE TO AN ROTC CADET AND MIDSHIPMAN APPOINTED UNDER 10 U.S.C. 2107 FOR 10 FULL MONTHS OF AN ACADEMIC YEAR WHERE THE INDIVIDUAL ATTENDS AN INSTITUTION HAVING A SHORTER ACADEMIC YEAR, NAMELY, 9 MONTHS.

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.