B-237914, Apr 22, 1991, 70 Comp.Gen. 435

B-237914, Apr 22, 1991, 70 Comp.Gen. 435

MILITARY PERSONNEL - Relocation - Cost-of-living allowances - Eligibility MILITARY PERSONNEL - Relocation - Overseas allowances - Variable housing allowances - Eligibility 1. A member of the military services ordered to a designated place outside the continental United States, Alaska, and Hawaii to await final action by a Physical Evaluation Board is entitled to the overseas housing allowance (OHA) and cost of living allowance (COLA) appropriate for the designated place. 2. A member of the military services ordered to a designated place in the continental United States, Alaska, or Hawaii to await final action by a Physical Evaluation Board is entitled to the variable housing allowance and cost of living allowance appropriate for the designated place. MILITARY PERSONNEL - Relocation - Variable housing allowances - Eligibility - Amount determination Military Personnel - Leaves Of Absences - Involuntary leave - Eligibility - Allowances 3. A member of the military services on involuntary leave pending appellate review of a court-martial sentence to a dishonorable or bad conduct discharge or dismissal from the Service, to the extent entitled to pay and allowances, is entitled to the allowances appropriate for his duty station.

Private J.E. Gines, USMC:

Private J. E. Gines, USMC, upon discharge from treatment at the U.S. Naval Hospital, Beaufort, South Carolina, on December 30, 1988, was ordered detached from his station at Parris Island, South Carolina and directed to proceed to his home in Vega Baja, Puerto Rico, to await the results of disability retirement proceedings before a Physical Evaluation Board. The orders stated that his leave account would be debited. He was discharged on March 7, 1989. His disbursing officer has requested a decision on the issue of whether Private Gines is entitled to an Overseas Housing Allowance (OHA) and a cost of living allowance (COLA) for the period he was in Puerto Rico pursuant to these orders.

The Per Diem, Travel, and Transportation Allowance Committee, in forwarding the request, raises two other questions. First, it asks whether a member in Private Gines circumstances would be entitled to a variable housing allowance (VHA) or COLA if ordered to a place in the continental United States (CONUS), Alaska or Hawaii rather than Puerto Rico. Second it asks whether the result in either situation would be different if the member were on involuntary leave pending completion of appellate review of a court-martial sentence involving a dishonorable or bad conduct discharge or dismissal from the Service rather than awaiting the results of disability retirement proceedings. /1/ Under 37 U.S.C. Sec. 502(a) a member who is directed to be absent from duty to await orders pending disability retirement proceedings and whose absence exceeds the leave authorized by 10 U.S.C. Sec. 701 "is entitled to the pay and allowances to which he would be entitled if he was not so absent." Among those allowances are OHAs, VHAs and COLAs. However, an OHA is authorized only for a member who is assigned to duty outside of CONUS, Alaska and Hawaii; a VHA is available only to a member assigned to duty in high cost areas of CONUS, Alaska and Hawaii; and a COLA is authorized only for those on duty outside CONUS. Thus the entitlement of Private Gines to an OHA and a COLA depends on whether his rights are determined with reference to the recruit depot at Parris Island from which he was detached in December 1988 or Vega Baja, Puerto Rico, where he was ordered to proceed and await the results of the disability retirement proceedings.

The duty station of a member is a question of fact, to be determined on the basis of all the circumstances of each case. In 32 Comp.Gen. 348 (1953) we addressed a situation much like the one at issue here. concerned the appropriate basic allowance for subsistence and basic allowance for quarters for a member who, like Private Gines, was detached from his station and ordered elsewhere to await the results of disability retirement proceedings. We concluded that the member was absent from duty while awaiting the results of the proceedings under the predecessor to the current section 502(a) and was therefore entitled to the same pay and allowances he would receive if on duty. We went on to say that detachment from a duty station under orders has the effect of terminating the member's duty assignment at that station and that therefore the member's right to the allowances must be determined on the basis of the location to which the member was directed to proceed upon detachment. 32 Comp.Gen. at 350. For the same reason, Private Gines is entitled to the OHA and COLA appropriate for Vega Baja, Puerto Rico, for the period that he was there awaiting disposition of his case by the Physical Evaluation Board. Similarly, a member in Private Gines' circumstances who is ordered to a location in CONUS, Alaska or Hawaii is entitled to the VHA and COLA appropriate for the location to which he is ordered.

A member who is awaiting appellate review of a court-martial sentence involving an unsuspended dismissal or an unsuspended dishonorable or bad conduct discharge from the Service is treated differently from one awaiting the decision of a Physical Evaluation Board. Specifically, the member may be placed on involuntary leave. 10 U.S.C. Sec. 876a (1990). Under 10 U.S.C. Sec. 706 a member who is required to take leave under these circumstances may receive pay and allowances to the extent of leave accrued as of the time the involuntary leave begins. If the the member elects to be paid the amount of accrual leave, he is placed in an excess leave status and receives no pay and allowances.

To the extent that a member receives pay and allowances during a period of involuntary leave under section 876a, the member's allowances should be those appropriate for his or her duty station during the leave period. we have already said, a member's station is a question to be answered on the basis of the facts of each case. In general, if no action has been taken to detach or transfer the member at the time he or she is placed on involuntary leave, we see no reason why the member's duty station would not remain the same as it was at the time the member was placed on involuntary leave.

/1/ For purposes of this discussion, we assume that the official exchange rate is equal to the market rate and that there is no risk of default by the debtor country. We also assume that USIA and the monetary authority fixed the rate of exchange before USIA obtained the debt.