B-159511, MAY 13, 1974, 53 COMP GEN 853

B-159511, MAY 13, 1974, 53 COMP GEN 853

SUBSISTENCE ALLOWANCE - MILITARY PERSONNEL - INCREASE - PUBLIC LAW 90 207 ALTHOUGH SECTION 8 OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90 207, 81 STAT. 654, PROVIDED FOR AUTOMATIC INCREASES IN MILITARY BASIC PAY BASED ON A PERCENTAGE APPLIED TO "REGULAR COMPENSATION" WHICH INCLUDES SUBSISTENCE ALLOWANCE, NEITHER THAT LAW NOR ANY OTHER LAW SPECIFICALLY OR IMPLIEDLY REPEALED THE PROVISIONS OF 37 U.S.C. 402(B) WHICH REQUIRE THAT BASIC ALLOWANCE FOR SUBSISTENCE FOR ENLISTED MEMBERS WHO ARE ON LEAVE, OR ARE OTHERWISE AUTHORIZED TO MESS SEPARATELY, SHALL BE EQUAL TO THE COST OF THE RATION AS DETERMINED BY THE SECRETARY OF DEFENSE, AND, ADJUSTMENTS MADE IN SUCH ALLOWANCE ARE PROPER.

IN THE MATTER OF INCREASING BASIC ALLOWANCE FOR SUBSISTENCE, MAY 13, 1974:

THIS ACTION IS IN RESPONSE TO LETTER DATED MARCH 15, 1974, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE LEGALITY OF THE INCREASES MADE BY THE DEPARTMENT OF DEFENSE IN THE BASIC ALLOWANCE FOR SUBSISTENCE PURSUANT TO 37 U.S.C. 402(B) SUBSEQUENT TO THE ENACTMENT OF SECTION 8 OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90- 207, 81 STAT. 654, 37 U.S.C. 203 NOTE. THE ASSISTANT SECRETARY'S LETTER INDICATES THAT SUCH QUESTION WAS RAISED DURING THE MARCH 13, 1974 HEARING ON THE SUPPLEMENTAL BUDGET REQUEST FOR FISCAL YEAR 1974 BEFORE THE SUBCOMMITTEE ON DEPARTMENT OF DEFENSE APPROPRIATIONS OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES.

SECTION 402(B) OF TITLE 37, U.S. CODE, WHICH WAS DERIVED FROM SECTION 301 OF TITLE III OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 403 NOTE), CH. 681, 63 STAT. 802, 812, AS AMENDED, PROVIDES IN PART THAT AN ENLISTED MEMBER IS ENTITLED TO THE BASIS ALLOWANCE FOR SUBSISTENCE, ON A DAILY BASIS, OF ONE OF THE FOLLOWING TYPES -

(1) WHEN RATIONS IN KIND ARE NOT AVAILABLE;

(2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; AND

(3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO MESSING FACILITIES OF THE UNITED STATES ARE AVAILABLE.

FOR THE ALLOWANCES AUTHORIZED BY CLAUSES (1) AND (3) ABOVE, SECTION 402(D) PROVIDES STATUTORY AMOUNTS OF $2.565 A DAY AND NOT MORE THAN $3.42 A DAY, RESPECTIVELY. NO SUCH SPECIFIC STATUTORY AMOUNT IS PROVIDED FOR THE ALLOWANCE AUTHORIZED IN CLAUSE (2) OF SECTION 402(B) OR FOR MEMBERS ON LEAVE. INSTEAD, AS THE ASSISTANT SECRETARY'S LETTER STATES, SECTION 402(B) PROVIDES IN PART AS FOLLOWS:

*** THE ALLOWANCE FOR ENLISTED MEMBERS WHO ARE ON LEAVE, OR ARE OTHERWISE AUTHORIZED TO MESS SEPARATELY, SHALL BE EQUAL TO THE COST OF THE RATION AS DETERMINED BY THE SECRETARY OF DEFENSE. ***

SIMILAR TEMPORARY PROVISIONS APPEARED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS FOR 1951, 1952, AND 1953. SECTION 617 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, CH. 305, 67 STAT. 352, ENACTED SIMILAR LANGUAGE AS PERMANENT LEGISLATION WHICH, AS IS INDICATED ABOVE, IS NOW CODIFIED IN 37 U.S.C. 402(B).

AS THE ASSISTANT SECRETARY'S LETTER ALSO POINTS OUT, THE LEGISLATIVE HISTORY OF THOSE PROVISIONS INDICATES THAT CONGRESS INTENDED THAT SUCH BASIC ALLOWANCE FOR SUBSISTENCE BE EQUAL TO THE COST OF THE RATION, AS DETERMINED BY THE SECRETARY OF DEFENSE, WHETHER SUCH COST INCREASES OR DECREASES. SEE IN THIS REGARD HOUSE OF REPRESENTATIVES REPORT NO. 790, 82D CONGRESS, 1ST SESSION, TO ACCOMPANY H. REPORT 5054 (WHICH BECAME THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952) ON PAGE 146 OF WHICH IT STATES AS FOLLOWS:

THE WORDING OF SECTION 620, COVERING THE RATE OF COMMUTATION OF RATIONS TO ENLISTED PERSONNEL ON LEAVE OR MESSING SEPARATELY, HAS BEEN CLARIFIED SO AS TO LEAVE NO DOUBT THAT SUCH ENLISTED PERSONNEL SHOULD RECEIVE AN AMOUNT EQUIVALENT TO THE COST OF THE RATION. THIS RATE OF REIMBURSEMENT IS NORMALLY PRESCRIBED ANNUALLY BY THE SECRETARY OF DEFENSE.

THE ASSISTANT SECRETARY'S LETTER INDICATES THAT, ACCORDINGLY, NEAR THE END OF EACH CALENDAR YEAR AS A PART OF THE DEPARTMENT OF DEFENSE BUDGET REVIEW, THE SECRETARY OF DEFENSE HAS CONDUCTED A REVIEW OF THE AVERAGE COST OF THE RATION AND, WHEN NECESSARY, ADJUSTED THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE BEGINNING OF THE NEXT CALENDAR YEAR. IT IS STATED THAT THE COST BASIS USED IS THE COST OF THE RATION TO THE GOVERNMENT, WHICH IS SUBSTANTIALLY BELOW RETAIL COST, AND EXCLUDES THE COST OF FOOD PREPARATION AND HANDLING. IT IS ALSO STATED THAT THE ADJUSTED BASIC ALLOWANCE FOR SUBSISTENCE RATES FORM THE BASIS FOR THE DEPARTMENT OF DEFENSE BUDGET REQUESTS FOR FUNDS FOR THE PURCHASE OF RATIONS AND THE PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE AND ARE PROVIDED TO THE CONGRESS.

UNDER THE PROVISIONS OF 37 U.S.C. 402(B), STANDING ALONE, AS DISCUSSED ABOVE, PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED MEMBERS ON LEAVE OR OTHERWISE AUTHORIZED TO MESS SEPARATELY CLEARLY MUST BE IN AN AMOUNT "EQUAL TO THE COST OF THE RATION AS DETERMINED BY THE SECRETARY OF DEFENSE." ALSO, THE ANNUAL REVIEW OF SUCH ALLOWANCE AND ANY RESULTING NECESSARY ADJUSTMENT TO MAINTAIN EQUALITY BETWEEN THE COST OF THE RATION AND THE AMOUNT OF THE ALLOWANCE WOULD SEEM FULLY JUSTIFIED, IN FACT REQUIRED, BY THE STATUTE.

THE QUESTION RAISED AT THE MARCH 13, 1974 HEARING RELATES TO THE LEGALITY OF ADJUSTMENTS IN SUCH ALLOWANCE SUBSEQUENT TO THE ENACTMENT OF SECTION 8 OF PUBLIC LAW 90-207 WHICH PROVIDES AS FOLLOWS:

(A) EFFECTIVE JANUARY 1, 1968, AND UNLESS OTHERWISE PROVIDED BY LAW ENACTED AFTER THE DATE OF ENACTMENT OF THIS ACT, WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES AS CONTAINED IN SECTION 5332 OF TITLE 5, U.S.C. IS ADJUSTED UPWARDS, THERE SHALL IMMEDIATELY BE PLACED INTO EFFECT A COMPARABLE UPWARD ADJUSTMENT IN THE MONTHLY BASIC PAY AUTHORIZED MEMBERS OF THE UNIFORMED SERVICES BY SECTION 203(A) OF TITLE 37, UNITED STATES CODE.

(B) ADJUSTMENTS IN THE VARIOUS TABLES ESTABLISHING THE RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES AS REQUIRED BY THE PRECEDING PARAGRAPH SHALL HAVE THE FORCE AND EFFECT OF STATUTE, AND SUCH ADJUSTMENTS SHALL:

(1) PROVIDE ALL PERSONNEL OF THE UNIFORMED SERVICES WITH AN OVERALL AVERAGE INCREASE IN REGULAR COMPENSATION WHICH EQUATES TO THAT PROVIDED GENERAL SCHEDULE EMPLOYEES, AND

(2) CARRY THE SAME EFFECTIVE DATE AS THAT APPLYING TO THE COMPENSATION ADJUSTMENTS PROVIDED GENERAL SCHEDULE EMPLOYEES.

(C)FOR THE PURPOSES OF THIS SECTION, "REGULAR COMPENSATION" MEANS BASIC PAY, QUARTERS AND SUBSISTENCE ALLOWANCES (EITHER IN CASH OR IN KIND), AND THE TAX ADVANTAGE ON THOSE ALLOWANCES.

SINCE THE ENACTMENT OF SECTION 8, MILITARY BASIC PAY HAS BEEN INCREASED SEVEN TIMES IN ACCORDANCE WITH ITS PROVISIONS. AS REQUIRED BY THAT STATUTE, SUCH BASIC PAY INCREASES WERE BASED ON OVERALL AVERAGE INCREASES IN "REGULAR COMPENSATION" EQUAL TO THAT PROVIDED GENERAL SCHEDULE FEDERAL EMPLOYEES WITH SUCH REGULAR COMPENSATION INCLUDING "SUBSISTENCE ALLOWANCES (EITHER IN CASH OR IN KIND)."

IN ADDITION TO AND SEPARATELY FROM THE BASIC PAY INCREASES UNDER SECTION 8, SUBSEQUENT TO THE ENACTMENT OF THAT SECTION THE FOLLOWING ADJUSTMENTS HAVE BEEN MADE UNDER THE AUTHORITY OF 37 U.S.C. 402(B) IN THE BASIC ALLOWANCE FOR SUBSISTENCE FOR ENLISTED MEMBERS ON LEAVE OR OTHERWISE AUTHORIZED TO MESS SEPARATELY:

YEAR BAS ADJUSTMENT

1968 $1.32 $.02

1969 1.32 .00

1970 1.39 .07

1971 1.52 .13

1972 1.46 -.06

1973 1.65 .19

1974 2.28 .63

THE QUESTION AS TO THE LEGALITY OF SUCH SEPARATE INCREASES IN THE ALLOWANCE SUBSEQUENT TO THE ENACTMENT OF SECTION 8 OF PUBLIC LAW 90-207 APPARENTLY STEMS FROM THE FACT THAT INCREASES IN BASIC PAY UNDER SECTION 8 ARE BASED ON A PERCENTAGE APPLIED TO REGULAR MILITARY COMPENSATION, INCLUDING SUBSISTENCE ALLOWANCES.

NEITHER PUBLIC LAW 90-207 NOR ANY OTHER LAW HAS SPECIFICALLY REPEALED 37 U.S.C. 402(B). ACCORDINGLY, IN ORDER FOR THE SPECIFIC PROVISIONS OF SECTION 402(B), RELATING TO EQUATING THE SUBSISTENCE ALLOWANCE TO THE COST OF THE RATION, TO NO LONGER BE IN EFFECT, IT MUST BE CONCLUDED THAT THEY HAVE BEEN REPEALED BY IMPLICATION.

IT IS A CARDINAL RULE OF STATUTORY CONSTRUCTION THAT REPEAL BY IMPLICATION IS NOT FAVORED. THE COURTS WILL NOT ADJUDGE A STATUTE TO HAVE BEEN REPEALED BY IMPLICATION UNLESS A LEGISLATIVE INTENT TO REPEAL OR SUPERSEDE THE STATUTE PLAINLY AND CLEARLY APPEARS. THE IMPLICATION MUST BE CLEAR, NECESSARY, IRRESISTABLE, AND FREE FROM REASONABLE DOUBT. AN ACT IS NOT IMPLIEDLY REPEALED BECAUSE OF CONFLICT, INCONSISTENCY, OR REPUGNANCY BETWEEN IT AND A LATER ACT UNLESS THE CONFLICT, ETC., IS PLAIN, UNAVOIDABLE, AND IRRECONCILABLE, AND THE TWO ACTS CANNOT BE HARMONIZED OR BOTH CANNOT STAND, OPERATE, OR BE GIVEN EFFECT AT THE SAME TIME. IF IT IS POSSIBLE TO DO SO, BY ANY FAIR AND REASONABLE CONSTRUCTION, TWO SEEMINGLY REPUGNANT ACTS SHOULD BE HARMONIZED OR RECONCILED, SO AS TO PERMIT BOTH TO STAND AND BE OPERATIVE AND EFFECTIVE AND THEREBY AVOID A REPEAL OF THE EARLIER ACT BY IMPLICATION. SEE 44 COMP. GEN. 424, 425 (1965) AND 38 ID. 458 (1958).

WHILE, AS IS INDICATED ABOVE, THE AUTOMATIC BASIC PAY INCREASE PROVISIONS OF SECTION 8 OF PUBLIC LAW 90-207 ARE BASED ON REGULAR COMPENSATION WHICH IS DEFINED TO INCLUDE THE SUBSISTENCE ALLOWANCE (EITHER IN CASH OR IN KIND), THERE IS NO CLEAR INDICATION IN THE STATUTE OR ITS LEGISLATIVE HISTORY THAT IT WAS INTENDED TO REPEAL THE SPECIFIC PROVISIONS OF 37 U.S.C. 402(B) PROVIDING FOR EQUALITY BETWEEN THE SUBSISTENCE ALLOWANCE AND THE COST OF THE RATION. FURTHERMORE, AS THE ASSISTANT SECRETARY'S LETTER POINTS OUT, TO CONCLUDE THAT SECTION 8 OF PUBLIC LAW 90-207 WAS INTENDED TO REPEAL THAT PROVISION OF 37 U.S.C. 402(B) WOULD BE INEQUITABLE SINCE THOSE MEMBERS RECEIVING RATIONS IN KIND FOR WHICH THE COST HAD INCREASED WOULD BE RECEIVING THE BENEFIT OF SUCH COST INCREASE WHILE THOSE FOR WHOM RATIONS IN KIND WERE NOT AVAILABLE WOULD NOT RECEIVE THE INCREASE.

ACCORDINGLY, IT IS OUR VIEW THAT SECTION 8 OF PUBLIC LAW 90-207 DID NOT REPEAL THE PROVISIONS OF 37 U.S.C. 402(B) REQUIRING THAT THE BASIC ALLOWANCE FOR SUBSISTENCE FOR ENLISTED MEMBERS WHO ARE ON LEAVE, OR ARE OTHERWISE AUTHORIZED TO MESS SEPARATELY, SHALL BE EQUAL TO THE COST OF THE RATION AS DETERMINED BY THE SECRETARY OF DEFENSE. THEREFORE, WE BELIEVE THAT THE PROVISIONS REMAIN IN EFFECT AND THAT THE ADJUSTMENTS MADE BY THE DEPARTMENT OF DEFENSE IN THE SUBSISTENCE ALLOWANCE SINCE THE ENACTMENT OF PUBLIC LAW 90-207 APPEAR TO BE LEGALLY PROPER. THE ASSISTANT SECRETARY'S QUESTION IS ANSWERED ACCORDINGLY.