B-152420, JUL. 8, 1969

B-152420, JUL. 8, 1969

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 14, 1969, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING CLARIFICATION OF OUR DECISION OF FEBRUARY 7, 1969, B-152420, REGARDING PROPOSED REVISIONS OF THE JOINT TRAVEL REGULATIONS RELATING TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SECTION 3 OF PUBLIC LAW 90-168 FOR MEMBERS OF RESERVE COMPONENTS ORDERED TO ACTIVE TRAINING DUTY. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 69-14 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY REFERS TO PAGE 6, PARAGRAPH 3 OF THE DECISION OF FEBRUARY 7, 1969, IN WHICH WE STATED THAT:

"IN THIS REGARD, UNDER THE PROVISIONS OF PARAGRAPH M4205-5 OF THE JOINT TRAVEL REGULATIONS A REGULAR MEMBER ON TEMPORARY DUTY AT A STATION WHERE HE IS FURNISHED SUBSISTENCE WITHOUT CHARGE AND ADEQUATE QUARTERS ARE AVAILABLE FOR HIS USE IS NOT ENTITLED TO ANY PER DIEM PAYMENT ON THEIR ACCOUNT. SIMILARLY, A RESERVIST ON DUTY AT A STATION WHERE MESS AND QUARTERS ARE PROVIDED FOR HIM MAY NOT BE PAID A PER DIEM. IF EITHER SUBSISTENCE IS FURNISHED WITHOUT CHARGE OR ADEQUATE QUARTERS ARE AVAILABLE TO THE REGULAR MEMBER AT HIS TEMPORARY DUTY STATION HIS PER DIEM IS REDUCED ACCORDINGLY. A CORRESPONDING REDUCTION SHOULD BE MADE IN THE CASE OF THE RESERVIST IF EITHER A MESS OR QUARTERS ARE PROVIDED FOR HIM AT THE DUTY STATION. PAYMENT ON ANY OTHER BASIS WOULD, IN OUR OPINION RESULT IN UNEQUAL RATHER THAN EQUAL TREATMENT.' RELATIVE TO SUCH STATEMENT THE ASSISTANT SECRETARY SAYS THAT:

"THE FIRST AND THIRD SENTENCES OF THE QUOTED PART OF YOUR DECISION INDICATE THAT WHEN A REGULAR MEMBER ON TEMPORARY DUTY IS FURNISHED SUBSISTENCE WITHOUT CHARGE AND ADEQUATE QUARTERS ARE AVAILABLE FOR HIS USE, THE PER DIEM ALLOWANCE IS REDUCED BECAUSE HE IS NOT ENTITLED TO PER DIEM COVERAGE FOR SUBSISTENCE AND QUARTERS. THE FOURTH SENTENCE PROVIDES THAT A CORRESPONDING REDUCTION SHOULD BE MADE IN THE CASE OF A RESERVIST IF EITHER A MESS OR QUARTERS ARE PROVIDED FOR HIM AT THE DUTY STATION. YET, THE SECOND SENTENCE STATES: -SIMILARLY, A RESERVIST ON DUTY AT A STATION WHERE MESS AND QUARTERS ARE PROVIDED FOR HIM MAY NOT BE PAID A PER DIEM.- THE REDUCED PER DIEM REFERRED TO IS SHOWN IN THE JOINT TRAVEL REGULATIONS AND SUCH PER DIEM RATES INCLUDE, BESIDES COVERAGE FOR EITHER SUBSISTENCE OR QUARTERS, AS THE CASE MAY BE, AN AMOUNT COVERING INCIDENTAL EXPENSES. IT SHOULD BE NOTED THAT IF, FOR EXAMPLE, ONLY QUARTERS ARE FURNISHED, THE JTR CONTAINS NO PER DIEM RATE COVERING ONLY SUBSISTENCE. THEREFORE, PAYMENT OF THE REDUCED PER DIEM RATE PRESCRIBED IN THE JTR PAR. M4205-5C WHEN SUBSISTENCE OR QUARTERS ARE AVAILABLE, AS THE CASE MAY BE, RESULTS IN THE PAYMENT OF PER DIEM COVERING NOT ONLY THE SUBSISTENCE OR QUARTERS ELEMENTS BUT ALSO THE INCIDENTAL EXPENSE ELEMENT.'

THE ASSISTANT SECRETARY SAYS FURTHER THAT SINCE THE REDUCTION OF THE PER DIEM PAYABLE TO A REGULAR MEMBER BECAUSE OF SUBSISTENCE AND/OR QUARTERS, DOES NOT AFFECT THAT PORTION OF THE PER DIEM APPLICABLE TO INCIDENTAL EXPENSES, AND CONSIDERING THE USE OF THE WORD "SIMILARLY" IN THE QUOTED PORTION OF THE DECISION, IT APPEARS THAT RESERVISTS SHOULD BE ENTITLED TO THE APPROPRIATE RESIDUAL PER DIEM PROVIDED FOR REGULAR MEMBERS, EXCEPT WHILE ON ANNUAL ACTIVE DUTY FOR TRAINING. THEREFORE, HE SAYS, PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS SO PROVIDES. HE SAYS, HOWEVER, THAT A LITERAL INTERPRETATION OF THE SECOND SENTENCE OF THE QUOTED PORTION OF OUR DECISION HAS CAUSED QUESTION TO BE RAISED AS TO THE PROPRIETY OF PAYMENT OF A REDUCED (RESIDUAL) PER DIEM WHEN QUARTERS AND SUBSISTENCE ARE AVAILABLE.

ACCORDINGLY, THE UNDER SECRETARY REQUESTS CLARIFICATION OF THE QUOTED PORTION OF THE DECISION AS TO THE LEGALITY OF PAYMENT OF THE PER DIEM ALLOWANCE PRESCRIBED IN PARAGRAPH M4205-5C (4) OF THE JOINT TRAVEL REGULATIONS TO A RESERVIST AUTHORIZED PER DIEM UNDER PARAGRAPH M6001. WE CONCLUDE THAT INCIDENT TO ACTIVE DUTY FOR TRAINING, RESERVISTS MAY NOT BE AUTHORIZED PER DIEM (REDUCED BECAUSE QUARTERS AND MESS ARE FURNISHED), THE UNDER SECRETARY REQUESTS THAT WE SPECIFICALLY STATE WHETHER, DURING PERIODS OF ANNUAL ACTIVE DUTY FOR TRAINING OR PERIODS OF ACTIVE DUTY FOR TRAINING, A PER DIEM (REDUCED BECAUSE QUARTERS AND MESS ARE FURNISHED) MAY BE AUTHORIZED FOR RESERVISTS WHILE ATTENDING A COURSE OF INSTRUCTION TOGETHER WITH REGULAR MEMBERS WHO ARE ENTITLED TO SUCH REDUCED PER DIEM.

IN THE DECISION OF FEBRUARY 7, 1969, THE SECRETARY OF THE NAVY WAS ADVISED THAT THE LEGISLATIVE HISTORY OF CLAUSE (4) OF SECTION 404 (A), TITLE 37, U.S.C. AS ADDED BY SECTION 3 OF PUBLIC LAW 90-168, INDICATED THAT ITS PURPOSE WAS TO PERMIT PAYMENT OF PER DIEM TO RESERVISTS ORDERED FROM THEIR HOMES FOR SHORT PERIODS (LESS THAN 20 WEEKS) AT THEIR PERMANENT DUTY STATIONS IN CASES WHERE GOVERNMENT QUARTERS, GOVERNMENT MESS, OR BOTH, ARE NOT AVAILABLE, ON A BASIS COMPARABLE TO THAT AUTHORIZED FOR MEMBERS OF THE REGULAR SERVICES IN A TRAVEL STATUS.

HOWEVER, IT WAS POINTED OUT THAT THE LEGISLATIVE HISTORY CLEARLY REFLECTED A FURTHER INTENT THAT THE RIGHT TO PER DIEM SHOULD BE DENIED GENERALLY TO RESERVISTS ON SUCH SHORT TOURS OF DUTY AT MILITARY INSTALLATIONS WHERE BOTH GOVERNMENT QUARTERS AND MESS ARE PROVIDED FOR THEM, THE COMMENT THEREIN AS TO EQUALIZING ENTITLEMENT TO TRAVEL PER DIEM WITH THAT OF MEMBERS OF THE REGULAR SERVICES APPARENTLY HAVING REFERENCE ONLY TO CASES WHERE A MESS OR QUARTERS ARE NOT PROVIDED.

THE LANGUAGE IN THE THIRD PARAGRAPH ON PAGE 6 OF THE DECISION OF FEBRUARY 7, 1969, QUOTED ABOVE, WAS INTENDED TO INTERPRET AND SET FORTH THE SIMILARITIES AND THE DIFFERENCES OF ENTITLEMENT TO PER DIEM BETWEEN RESERVISTS CALLED TO THE SHORT TOURS OF DUTY AND MEMBERS OF THE REGULAR SERVICES IN A TRAVEL STATUS ENGENDERED BY THE FOREGOING CIRCUMSTANCES.

THE FIRST SENTENCE OF THE PARAGRAPH POINTS OUT THAT UNDER THE PROVISIONS OF PARAGRAPH M4205-5 OF THE JOINT TRAVEL REGULATIONS A REGULAR MEMBER ON TEMPORARY DUTY AT A STATION WHERE HE IS FURNISHED SUBSISTENCE, AND QUARTERS ARE AVAILABLE, IS ENTITLED TO PER DIEM REDUCED BY THOSE PARTS REPRESENTING ALLOWANCES FOR SUBSISTENCE AND QUARTERS. THE SECOND SENTENCE COMMENCES WITH THE WORD ,SIMILARLY," WHICH APPARENTLY HAS BEEN UNDERSTOOD AS AN INDICATION OF OUR INTENT THAT THE RESERVIST'S SITUATION AND ENTITLEMENT TO PER DIEM CORRESPOND TO THOSE INDICATED FOR THE REGULAR MEMBERS IN THE FIRST SENTENCE.

SUCH WORD, HOWEVER, WAS INTENDED IN THE DECISION ONLY TO MEAN "IN SIMILAR CIRCUMSTANCES" (THAT IS, WHERE SUBSISTENCE IS FURNISHED AND ADEQUATE QUARTERS ARE AVAILABLE), AND IT WAS INTENDED BY THE LANGUAGE OF THE SECOND SENTENCE TO SAY THAT WHILE IN SUCH CIRCUMSTANCES THE MEMBER OF THE REGULAR SERVICES IS ENTITLED TO A REDUCED PER DIEM THE RESERVIST MAY NOT BE PAID A PER DIEM.

THUS, THE RESERVISTS ON THE SHORT TOURS OF DUTY DISCUSSED ARE ENTITLED TO THE FULL PER DIEM IN CIRCUMSTANCES WHERE NO QUARTERS OR MESS ARE AVAILABLE AND TO A PER DIEM REDUCED TO REFLECT THE AVAILABILITY OF EITHER QUARTERS OR MESS. HOWEVER, IN VIEW OF THE INDICATED LEGISLATIVE INTENT TO PRECLUDE THEIR RECEIPT OF ANY PER DIEM WHERE QUARTERS AND SUBSISTENCE BOTH ARE PROVIDED FOR THEM, THEY MAY NOT BE PAID ANY ELEMENT OF THE PER DIEM ALLOWANCE WHERE THAT CIRCUMSTANCE PREVAILS IRRESPECTIVE OF THE NATURE OF THEIR DUTY ASSIGNMENT.

ACCORDINGLY, IT IS OUR VIEW THAT IF PROPER EFFECT IS TO BE GIVEN TO THE INTENT OF CONGRESS AS EXPRESSED IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-168, A PER DIEM (REDUCED BECAUSE QUARTERS AND MESS ARE FURNISHED) MAY NOT BE AUTHORIZED FOR RESERVISTS DURING ANY PERIOD OF DUTY OF LESS THAN 20 WEEKS' DURATION WITHIN THE CONTEMPLATION OF THAT LAW, INCLUDING A PERIOD OF ATTENDANCE AT A COURSE OF INSTRUCTION, EVEN THOUGH PERFORMED TOGETHER WITH REGULAR MEMBERS WHO ARE ENTITLED TO SUCH REDUCED PER DIEM.