B-93693, OCTOBER 13, 1950, 30 COMP. GEN. 152

B-93693, OCTOBER 13, 1950, 30 COMP. GEN. 152

SUBSISTENCE - MESSES - NAVAL AVIATION CADETS WHILE SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942 AS AMENDED BY SECTION 527 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES THAT AVIATION CADETS ON ACTIVE DUTY SHALL BE ENTITLED TO RECEIVE THE SAME ALLOWANCE FOR SUBSISTENCE AS IS AUTHORIZED FOR OFFICERS OF THE NAVY, SAID CADETS ARE NOT ENTITLED TO SUCH ALLOWANCE AT ALL TIMES ON A MONTHLY BASIS AS IS PROVIDED FOR NAVAL OFFICERS BY SECTION 301 OF THE 1949 ACT, BUT ONLY ON THAT BASIS WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE. WHERE THE OPERATING EXPENSES, INCLUDING FOOD ITEMS, OF A GOVERNMENT OFFICER CANDIDATE MESS, ESTABLISHED ADMINISTRATIVELY MUCH IN THE SAME MANNER AS A GENERAL MESS AND REQUIRING PARTICIPATION THEREIN ON A MORE OR LESS MANDATORY BASIS, ARE PAID FROM APPROPRIATED FUNDS, SUCH MESS IS NOT TO BE REIMBURSED FOR FOOD FURNISHED AVIATION CADETS SUBSISTED THEREON.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 13, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 7, 1950, ENCLOSING LETTER DATED DECEMBER 2, 1949, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, WHEREIN YOU REQUEST DECISION ON TWO QUESTIONS ARISING UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 812, THE FIRST QUESTION BEING AS FOLLOWS:

(1) UNDER SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED BY SECTION 527 OF THE CAREER COMPENSATION ACT OF 1949, ARE AVIATION CADETS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE OF $42.00 PER MONTH AT ALL TIMES, AS IS PROVIDED FOR OFFICERS BY SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, OR DOES THE SAID SECTION AS AMENDED MERELY FIX THE RATE FOR SUBSISTENCE ALLOWANCE TO WHICH AVIATION CADETS ARE ENTITLED WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE?

SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, AS ORIGINALLY ENACTED (56 STAT. 737), PROVIDED, IN PERTINENT PART, AS FOLLOWS:

* * * TO EACH AVIATION CADET WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE, THERE SHALL BE PAID, IN ADDITION, A MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY * * *. (ITALICS SUPPLIED.) SUCH SECTION WAS AMENDED BY SECTION 527 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 812, 836, TO READ, IN PERTINENT PART, AS FOLLOWS:

AVIATION CADETS, WHILE ON ACTIVE DUTY, SHALL BE ENTITLED TO BE PAID AT THE RATE OF $105 PER MONTH, WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING. THEY SHALL BE ENTITLED TO RECEIVE, IN ADDITION, THE SAME ALLOWANCE FOR SUBSISTENCE AS IS NOW OR MAY HEREAFTER BE AUTHORIZED FOR OFFICERS OF THE NAVY * * *. (ITALICS SUPPLIED.) SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES, IN PART, THAT OFFICERS SHALL, AT ALL TIMES, BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS, AND THIS ALLOWANCE IS FIXED AT $42 PER MONTH.

IN HOUSE OF REPRESENTATIVES REPORT NO. 779, PAGE 41, ON H.R. 5007, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, THERE APPEARS THE FOLLOWING STATEMENT:

SECTIONS 527 AND 528 PROVIDE THAT AVIATION CADETS WHILE ON ACTIVE DUTY, SHALL BE PAID AT THE RATE OF $105 PER MONTH, AND SHALL RECEIVE AN ALLOWANCE AT THE SAME RATE PROVIDED FOR OFFICERS WHICH WOULD BE FIXED AT $42 PER MONTH * * *. (ITALICS SUPPLIED.)

IN SENATE REPORT NO. 733, PAGE 34, ON H.R. 5007, APPEARS THE FOLLOWING STATEMENT RELATING TO SECTION 527, AMENDING SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942:

THIS SECTION INCREASES PAY OF AVIATION CADETS FROM $75 TO $105 PER MONTH (NO LONGEVITY PAY OR FLYING PAY--- SAME AS PRESENT LAW). INCREASES SUBSISTENCE FROM $1 PER DAY TO $42 PER MONTH, WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE. REMAINING PROVISIONS CONTINUATION OF PRESENT LAW. (ITALICS SUPPLIED.)

WHILE THE PHRASE "WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE" DOES NOT APPEAR IN THE QUOTED LANGUAGE OF HOUSE OF REPRESENTATIVES REPORT NO. 779, AND WHILE SECTION 527 OF THE CAREER COMPENSATION ACT OF 1949 DOES NOT CONTAIN SUCH PHRASE, IT WOULD APPEAR THAT THE SAID SECTION 527, INSOFAR AS HERE PERTINENT, WAS INTENDED ONLY TO INCREASE THE RATE OF THE SUBSISTENCE ALLOWANCE PAYABLE TO AVIATION CADETS AND NOT TO CHANGE THE CONDITIONS UNDER WHICH IT WAS PAYABLE. THAT SUCH WAS THE INTENTION OF CONGRESS IS FURTHER BORNE OUT BY THE FACT THAT THE ACT OF JANUARY 20, 1942, 56 STAT. 9, AUTHORIZING THE PAYMENT OF THE SUBSISTENCE ALLOWANCE PROVIDED FOR AVIATION CADETS TO BE MADE DIRECT TO THE MESSES, WAS NOT REPEALED AND IS STILL IN EFFECT. THUS, THE PROVISIONS OF THE ACT OF JANUARY 20, 1942, SUPRA, ARE APPLICABLE TO THE ALLOWANCE FOR SUBSISTENCE PROVIDED FOR AVIATION CADETS AS PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949. THEREFORE, IT MUST BE CONCLUDED THAT UNDER SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, SUPRA, AVIATION CADETS ARE ENTITLED TO SUBSISTENCE ALLOWANCE AT THE RATE OF $42 PER MONTH, ONLY WHEN THEY ARE NOT SUBSISTED AT GOVERNMENT EXPENSE. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

YOUR SECOND QUESTION RELATES TO A STATEMENT CONTAINED IN THE SAID LETTER FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, DATED DECEMBER 2, 1949, AS FOLLOWS:

AT THE PRESENT TIME AVIATION CADETS ARE SUBSISTED ON A JOINT AVIATION CADET-AVIATION MIDSHIPMEN MESS, DESIGNATED AS AN OFFICER CANDIDATE MESS, AT THE NAVAL AIR TRAINING COMMAND, NAVAL AIR TRAINING BASE, PENSACOLA, FLORIDA. THE LOGISTIC SUPPORT EXPENSES OF THIS MESS, EXCLUSIVE OF FOOD ITEMS, ARE CHARGED TO THE APPROPRIATION " AVIATION NAVY.' A RATIO IS COMMUTED TO THIS MESS FOR EACH AVIATION CADET AND AVIATION MIDSHIPMAN SUBSISTED ON THE MESS. THE NAVY DEPARTMENT CONSIDERS THAT THE MAINTENANCE OF A JOINT MESS FOR THESE TWO STUDENT GROUPS IS NECESSARY AND DESIRABLE FROM THE STANDPOINT OF MORALE, ECONOMY, AND AVAILABLE FACILITIES. * * *

THE QUESTION IS---

(2) CONSIDERING THE STATUS OF THIS JOINT OFFICER CANDIDATE MESS, AND CONSIDERING YOUR ANSWER TO QUESTION (1) ABOVE, WHAT IS THE PROPER BASIS FOR REIMBURSING SUCH MESS FOR THE COST OF FOOD FURNISHED TO AVIATION CADETS SUBSISTED THEREON?

IT APPEARS THAT THE OPERATING EXPENSES, INCLUDING FOOD ITEMS, OF THE OFFICER CANDIDATE MESS AT PENSACOLA, FLORIDA, ARE PAID OUT OF APPROPRIATED FUNDS; THAT SUCH MESS IS A GOVERNMENT MESS, ESTABLISHED ADMINISTRATIVELY MUCH IN THE SAME MANNER AS A GENERAL MESS, AND THAT PARTICIPATION THEREIN IS MADE MORE OR LESS MANDATORY. UNDER SUCH CIRCUMSTANCES, THERE WOULD BE NO OCCASION TO REIMBURSE THE MESS FOR FOOD FURNISHED THE AVIATION CADETS SUBSISTED THEREON. SEE 25 COMP. GEN. 816. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.