B-90839, MARCH 3, 1950, 29 COMP. GEN. 347

B-90839: Mar 3, 1950

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PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS RECEIVING SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF UNDER THE LAW IN EFFECT ON SEPTEMBER 30. WHO IS OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION PROVIDED FOR IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949. REQUESTING DECISION AS TO THE BASIS ON WHICH YOU ARE AUTHORIZED TO ADJUST THE PAY ACCOUNT OF MASTER SERGEANT ROBERT M. MASTER SERGEANT BARR WAS ON DUTY WITH THE SOUTHEASTERN RECRUITING DIVISION. THAT HE AND HIS DEPENDENTS ACTUALLY WERE RECEIVING FROM THE GOVERNMENT MONTHLY PAY AND ALLOWANCES TOTALING $384.75. IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT.

B-90839, MARCH 3, 1950, 29 COMP. GEN. 347

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS RECEIVING SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, AND WHO IS OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION PROVIDED FOR IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, MAY CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE AS AN ITEM OF HIS SAVED TOTAL COMPENSATION SO LONG AS HE QUALIFIES THEREFOR, EVEN THOUGH THE ALLOWANCE TEMPORARILY MAY BE INCLUDED IN, OR BE PAID IN, THE FORM OF A PER DIEM TRAVEL ALLOWANCE.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. R. M. GEORGE, U.S. MARINE CORPS, MARCH 3, 1950:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 8, 1949, WITH FIRST INDORSEMENT OF NOVEMBER 17, 1949, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION AS TO THE BASIS ON WHICH YOU ARE AUTHORIZED TO ADJUST THE PAY ACCOUNT OF MASTER SERGEANT ROBERT M. BARR, UNITED STATES MARINE CORPS, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER.

IT APPEARS THAT ON SEPTEMBER 30, 1949, MASTER SERGEANT BARR WAS ON DUTY WITH THE SOUTHEASTERN RECRUITING DIVISION, ATLANTA, GEORGIA, AND THAT HE AND HIS DEPENDENTS ACTUALLY WERE RECEIVING FROM THE GOVERNMENT MONTHLY PAY AND ALLOWANCES TOTALING $384.75, CONSISTING OF $189.75 PAY; $67.50 SUBSISTENCE ALLOWANCE AT $2.25 PER DIEM; $37.50 QUARTERS ALLOWANCE AT $1.25 PER DIEM, AND $90 REPRESENTING THE GOVERNMENT'S CONTRIBUTION TO FAMILY ALLOWANCE PAYMENTS TO CLASS A AND B DEPENDENTS. HIS TOTAL MONTHLY COMPENSATION COMPUTED AS OF OCTOBER 1, 1949, UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, AND EFFECTIVE OCTOBER 1, 1949, AMOUNTS TO $362.85, CONSISTING OF $227.85 PAY; BASIC ALLOWANCE FOR SUBSISTENCE AT $2.25 PER DAY, $67.50; AND BASIC ALLOWANCE FOR QUARTERS, $67.50.

SECTION 515 (B) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBER WHOSE ENLISTMENT TERMINATED IN THE PERIOD BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO HAS ENTERED INTO A NEW ENLISTMENT WITHIN ONE MONTH OF SUCH TERMINATION SHALL NOT, PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE, OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT: PROVIDED, THAT FOR THE PURPOSES OF THIS SUBSECTION, UNLESS OTHERWISE PROVIDED, THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES * * *.

AFTER DILIGENT INQUIRY AND RESEARCH, INCLUDING AN EXAMINATION OF THE LEGISLATIVE HISTORY AND CONGRESSIONAL REPORTS ON THE BILLS WHICH ULTIMATELY WERE ENACTED INTO LAW, THIS OFFICE HAS BEEN UNABLE WITH ANY CERTAINTY TO DETERMINE WHAT THE CONGRESS INTENDED BY THE TERM "PER DIEM AND STATION ALLOWANCES" WHICH THE QUOTED SUBSECTION REQUIRES TO BE EXCLUDED IN COMPUTING SAVED TOTAL COMPENSATION. IT IS UNDERSTOOD THAT, IN THE PROMULGATION OF ADMINISTRATIVE INSTRUCTIONS BY THE SERVICES CONCERNED, THE SAME UNCERTAINTY WAS ENTERTAINED BY OFFICIALS CHARGED WITH THEIR ISSUANCE, BUT THAT AFTER CAREFUL DISCUSSION AND A COMPLETE EXPLORATION OF THE PROBABLE PURPOSE INTENDED TO BE ACCOMPLISHED, IT WAS CONCLUDED THAT MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE FOR ENLISTED MEN WERE NOT REASONABLY COMPREHENDED WITHIN THE SAID TERM. THERE HAVE BEEN SUGGESTIONS THAT THE TERM WAS PUT IN BY THE DRAFTSMEN OF THE STATUTE TO EXCLUDE AMOUNTS ALLOWED ON A PER DIEM BASIS TO COVER ADDITIONAL EXPENSES OF PERSONNEL STATIONED ON SPECIAL DUTY IN FOREIGN COUNTRIES AND THAT VIEW IS REFLECTED IN THE EXAMPLES OF "SAVED COMPENSATION" CONTAINED IN THE SAID INSTRUCTIONS WHICH HAVE THE APPROVAL OF THE SECRETARY OF THE ARMY. ALSO FINDS SOME SUPPORT IN THE LEGISLATIVE HISTORY OF THE ACT. IN THAT CONNECTION, AN EXAMINATION OF THE HEARINGS OF THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2553 (WHICH AS REWRITTEN BECAME H.R. 5007, WHICH IN TURN BECAME PUBLIC LAW 351, APPROVED OCTOBER 12, 1949) DISCLOSES THAT THE MATTER WAS DISCUSSED IN PART AS FOLLOWS (PP. 1750 1751):

MR. COLE. YOU REFERRED TO A SPECIAL POST AND DUTY ALLOWANCE. IS THAT THE SAME AS REFERRED TO IN SECTION 304?

GENERAL DAHLQUIST. THAT IS CORRECT.

MR. HOEN. NO, IT IS THE FOREIGN DUTY STATION ALLOWANCE.

MR. COLE. THAT "STATION ALLOWANCE" IS NOT A POST AND DUTY ALLOWANCE?

MR. HOEN. NO, IT IS CALLED STATION ALLOWANCE.

MR. COLE. COULDN-T A POST AND DUTY ALLOWANCE BE CALLED A STATION ALLOWANCE?

MR. HOEN. WE REALIZE THAT, BUT YOU COULD NOT BE SERVING IN THAT STATUS.

MR. COLE. IF YOU MEAN A FOREIGN-DUTY STATION, WHY DO YOU CALL IT "STATION ALLOWANCE?

MR. HOEN. IT IS CALLED A STATION ALLOWANCE IN THE LAW, I BELIEVE.

MR. BLANDFORD. YOU MIGHT BE ELIMINATING ALASKA IF YOU CALLED IT FOREIGN- DUTY STATION.

(NOTE.--- THE REFERRED-TO SECTION 304, H.R. 2553, AS THEN WRITTEN, WAS DESIGNATED AS A " POST AND DUTY ALLOWANCE" AND IT WOULD HAVE AUTHORIZED ANY MEMBER ENTITLED TO BASIC PAY TO BE PAID, IN ADDITION TO ANY OTHER ALLOWANCES AUTHORIZED BY THIS ACT, A MONEY ALLOWANCE AS REIMBURSEMENT FOR EXTRAORDINARY AND NECESSARY EXPENSES WHICH MAY BE INCURRED WHEN ASSIGNED TO POSTS OF HIGH RESPONSIBILITY OR IN CONNECTION WITH THE PERFORMANCE OF DUTIES OR MISSIONS ENGAGED IN PURSUANT TO COMPETENT ORDERS.)

WHILE NOT FREE FROM DOUBT, UNDER ALL THE CIRCUMSTANCES THE ADMINISTRATIVE VIEW THAT MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE ARE NOT "PER DIEM AND STATION ALLOWANCES" WITHIN THE CONTEMPLATION OF THE STATUTE AND, HENCE, PROPERLY MAY BE INCLUDED AS ITEMS IN COMPUTING SAVED TOTAL COMPENSATION WILL BE ACCEPTED BY THIS OFFICE AS SUBSTANTIALLY IN ACCORD WITH THE PURPOSE, INTENT, AND SPIRIT OF THE LAW.

ON OCTOBER 17, 1949, WHILE ENTITLED TO SUCH SAVED "TOTAL COMPENSATION," SERGEANT BARR WAS ORDERED ON TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH RECRUITING MATTERS AND, WHILE ON SUCH DUTY, HE WAS ENTITLED TO AND WAS PAID A PER DIEM ALLOWANCE IN ACCORDANCE WITH THE PROVISIONS OF PART 1, SECTION D, OF EXECUTIVE ORDER 9871, JULY 8, 1947, AS AMENDED. DURING THE PERIOD OF TEMPORARY ABSENCE FROM HIS PERMANENT DUTY STATION, THE ENLISTED MAN WAS NOT CREDITED WITH AN ALLOWANCE FOR SUBSISTENCE, AS SUCH, FOR THE REASON THAT THE PROVISION IN PARAGRAPH 78505-6, MARINE CORPS MANUAL, PROVIDES THAT AN ENLISTED MAN IS NOT ENTITLED TO SUCH SUBSISTENCE ALLOWANCE FOR ANY PERIOD DURING WHICH HE IS ENTITLED TO A PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS. THERE IS THUS FOR CONSIDERATION THE QUESTION AS TO WHETHER SERGEANT BARR'S PAY ACCOUNT MAY BE CREDITED WITH SUBSISTENCE ALLOWANCE (AS PART OF HIS SAVED TOTAL COMPENSATION) FOR A PERIOD AFTER OCTOBER 1, 1949, DURING WHICH HE WAS ENTITLED TO PER DIEM WHILE IN A TRAVEL STATUS OR FOR ANY PERIOD AFTER HIS RIGHT TO SUCH PER DIEM TERMINATED. THE QUESTION OF CREDITING THE MEMBER'S PAY ACCOUNT WITH SUBSISTENCE ALLOWANCE FOLLOWING A PERIOD OF ENTITLEMENT TO PER DIEM WHILE IN A TRAVEL STATUS ARISES BY REASON OF THE PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT, 1949, SUPRA, WHICH READS AS FOLLOWS:

* * * THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER OR HIS DEPENDENT OR DEPENDENTS TO QUALIFY THEREFOR OR TO BE ENTITLED THERETO * *

SECTION 10 OF THE PAY ADJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, 37 U.S.C. 110, PROVIDED IN PERTINENT PART AS FOLLOWS:

TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $5 PER DAY * * *.

ENLISTED MEN ENTITLED TO RECEIVE ALLOWANCES FOR QUARTERS OR SUBSISTENCE SHALL CONTINUE, WHILE THEIR PERMANENT STATIONS REMAIN UNCHANGED, TO RECEIVE SUCH ALLOWANCES WHILE SICK IN HOSPITAL OR ABSENT FROM THEIR PERMANENT/DUTY STATIONS IN A PAY STATUS: PROVIDED, THAT ALLOWANCES FOR SUBSISTENCE SHALL NOT ACCRUE TO SUCH AN ENLISTED MAN WHILE HE IS IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE. ENLISTED PERSONNEL NOT RECEIVING ALLOWANCES FOR SUBSISTENCE SHALL BE ENTITLED TO COMMUTATION IN LIEU OF RATIONS WHILE ON FURLOUGH OR AUTHORIZED LEAVE OR WHEN AUTHORIZED TO MESS SEPARATELY, UNDER SUCH REGULATIONS AND AT SUCH RATES AS MAY BE PRESCRIBED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED.

IT WILL BE NOTED THAT UNDER THE SAVINGS PROVISION IN SECTION 515 (B) A MEMBER IS NOT TO SUFFER ANY REDUCTION BY "REASON OF THIS ACT" IN THE TOTAL COMPENSATION "WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT" ON SEPTEMBER 30, 1949. THE LAW IN EFFECT ON THAT DATE (SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA), PROVIDED THAT EACH ENLISTED MAN NOT FURNISHED RATIONS IN KIND SHOULD BE PAID AN ALLOWANCE FOR SUBSISTENCE, THE AMOUNT THEREOF DEPENDING UPON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED. THE SAID SECTION 10 FURTHER PROVIDED THAT ENLISTED MEN ENTITLED TO RECEIVE ALLOWANCES FOR QUARTERS AND SUBSISTENCE SHOULD CONTINUE, WHILE THEIR PERMANENT STATIONS REMAIN UNCHANGED, TO RECEIVE SUCH ALLOWANCES WHILE ABSENT FROM THEIR PERMANENT DUTY STATIONS IN A PAY STATUS, WITH THE PROVISO THAT THE ALLOWANCE FOR SUBSISTENCE SHOULD NOT ACCRUE TO AN ENLISTED MAN WHILE HE IS IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE. IN THAT CONNECTION, IT HAS BEEN CONSIDERED THAT SINCE AN ENLISTED MAN IN RECEIPT OF A PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS IS BEING SUBSISTED AT GOVERNMENT EXPENSE, SUCH AN ENLISTED MAN IS NOT ENTITLED TO RECEIVE A MONEY SUBSISTENCE ALLOWANCE IN SOME OTHER FORM WHILE ENTITLED TO SUCH PER DIEM ALLOWANCE. BUT, HAVING BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, TO SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF, I THINK THE CONCLUSION MUST BE REACHED THAT AN ENLISTED MEMBER OTHERWISE ENTITLED TO SAVED TOTAL COMPENSATION IS ENTITLED TO CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF AS AN ITEM OF HIS SAVED TOTAL COMPENSATION SO LONG AS HE QUALIFIES FOR ONE OR THE OTHER. THAT IS TO SAY, THE SUBSISTENCE IN KIND AND THE MONEY ALLOWANCE ARE ALTERNATIVES OF THE SAME BASIC ALLOWANCE, AN ENLISTED MEMBER BEING ENTITLED TO ONE AS A SUBSTITUTE FOR THE OTHER AT ALL TIMES, AND THE FACT THAT THE ALLOWANCE MAY TEMPORARILY BE INCLUDED IN, OR BE PAID IN, THE FORM OF A PER DIEM TRAVEL ALLOWANCE DOES NOT RESULT IN A FAILURE OF THE MEMBER TO CONTINUE TO QUALIFY FOR SUCH BASIC SUBSISTENCE ALLOWANCE, WITHIN THE MEANING OF THE LIMITATION IN SECTION 515 (B). IT FOLLOWS THAT WHILE SERGEANT BARR IS NOT ENTITLED, DURING ANY PERIOD AFTER OCTOBER 1, 1949, WHILE ENTITLED TO A PER DIEM TRAVEL ALLOWANCE WHICH INCLUDES AN ALLOWANCE FOR SUBSISTENCE PREVIOUSLY RECEIVED AS A PART OF HIS SAVED TOTAL COMPENSATION, UPON COMPLETION OF SUCH TRAVEL AND RETURN TO HIS STATION THE ENLISTED MAN WOULD BE ENTITLED, IF NOT OTHERWISE FURNISHED SUBSISTENCE THEREAT, TO INCLUDE IN HIS SAVED TOTAL COMPENSATION THE SUBSISTENCE MONEY ALLOWANCE WHICH HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, OR SUCH OTHER MONETARY ALLOWANCE AS PROVIDED UNDER THE PRIOR LAW AND REGULATIONS FOR THE ACTUAL CONDITIONS OF HIS SERVICE. SERGEANT BARR'S PAY ACCOUNT SHOULD BE ADJUSTED ACCORDINGLY.

THE SAME PRINCIPLES WOULD APPLY, OF COURSE, IN THE CASE OF AN ENLISTED MAN OTHERWISE ENTITLED TO SAVED TOTAL COMPENSATION WHERE HE WAS RECEIVING RATIONS OR QUARTERS, OR BOTH, IN KIND ON SEPTEMBER 30, 1949, BUT THEREAFTER BECAME ENTITLED TO MONETARY ALLOWANCES IN LIEU THEREOF.