B-120727, SEPTEMBER 21, 1954, 34 COMP. GEN. 135

B-120727, SEPTEMBER 21, 1954, 34 COMP. GEN. 135

TRAVELING EXPENSES - SUBSISTENCE - PER DIEMS - RETIRED ARMY OFFICER SERVING WITHOUT COMPENSATION IN AN ADVISORY CAPACITY SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, WHICH AUTHORIZES THE PAYMENT OF NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE TO PERSON EMPLOYED IN AN ADVISORY CAPACITY "WITHOUT COMPENSATION" REFERS TO COMPENSATION FOR THE SERVICES PERFORMED RATHER THAN TO COMPENSATION RECEIVED IN SOME OTHER CAPACITY, AND THEREFORE, A RETIRED MILITARY OFFICER WHO RENDERS SERVICES UNDER INVITATIONAL ORDERS AS A CONSULTANT, OR EXPERT, WITHOUT COMPENSATION IS CONSIDERED TO BE ,SERVING WITHOUT COMPENSATION" AND MAY BE PAID THE PER DIEM AUTHORIZED BY SAID SECTION WHILE AWAY FROM HOME OR PLACE OF BUSINESS. WHILE RETIRED MEMBERS OF THE UNIFORMED SERVICES ARE INCLUDED IN THE DEFINITION "MEMBERS" IN SECTION 102 (B) OF THE CAREER COMPENSATION ACT OF 1949, TRAVEL ALLOWANCES ARE NOT SPECIFICALLY AUTHORIZED FOR RETIRED MEMBERS, SO THAT RETIRED MEMBERS WHO ARE CALLED UPON BY INVITATIONAL ORDERS TO RENDER SERVICES IN AN ADVISORY CAPACITY WITHOUT COMPENSATION, MAY NOT BE PAID THE TRAVEL ALLOWANCE AUTHORIZED BY THE JOINT TRAVEL REGULATIONS FOR MEMBERS TRAVELING UNDER COMPETENT ORDERS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 21, 1954:

REFERENCE IS MADE TO LETTER OF JULY 12, 1954, FROM THE ACTING SECRETARY OF THE AIR FORCE, RELATIVE TO THE PAYMENT OF PER DIEM AT A RATE NOT TO EXCEED $10 AS AUTHORIZED BY SECTION 5 OF ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, 808.

THE PERTINENT LANGUAGE OF SECTION 5 IS AS FOLLOWS:

* * * AND PERSONS SERVING WITHOUT COMPENSATION * * * MAY BE ALLOWED * * * NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE * * *.

THE QUESTION PRESENTED IS WHETHER PER DIEM PROPERLY MAY BE PAID UNDER THE QUOTED PROVISION TO A RETIRED REGULAR MILITARY OFFICER RECEIVING RETIRED PAY, WHEN CALLED UPON BY INVITATIONAL ORDERS TO RENDER SERVICES AS A CONSULTANT OR EXPERT WITHOUT COMPENSATION, IN VIEW OF THE LANGUAGE WHICH LIMITS PER DIEM PAYMENTS TO "PERSONS SERVING WITHOUT COMPENSATION.'

DOUBT IN THE MATTER APPEARS TO ARISE AS A RESULT OF THE HOLDING IN 22 COMP. GEN. 174 THAT A PROVISION OF LAW RELATING TO PERSONS EMPLOYED FOR SERVICE WHILE AWAY FROM THEIR HOMES OR PLACES OF BUSINESS "WITHOUT OTHER COMPENSATION FROM THE UNITED STATES" INCLUDED COMPENSATION RECEIVED FROM THE UNITED STATES IN ANY CAPACITY.

THE PURPOSE OF THE FOREGOING LANGUAGE OF SECTION 5 WAS TO PROVIDE SPECIFIC AUTHORIZATION FOR THE PAYMENT OF TRAVELING EXPENSES TO PERSONS SERVING AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS WITHOUT COMPENSATION. I AM OF THE VIEW THAT THE TERM "SERVING WITHOUT COMPENSATION" AS USED IN THE SECTION REFERS TO COMPENSATION FOR THE SERVICES PERFORMED RATHER THAN COMPENSATION RECEIVED IN SOME OTHER CAPACITY. ALSO, SINCE THE STATUTORY LANGUAGE HERE INVOLVED DOES NOT INCLUDE THE WORD "OTHER" OR THE PHRASE "FROM THE UNITED STATES," THE HOLDING IN 22 COMP. GEN. 174 IS NOT CONSIDERED TO BE CONTROLLING. ACCORDINGLY, A RETIRED MILITARY OFFICER WHO PERFORMS SERVICES UNDER INVITATIONAL ORDERS WITHOUT COMPENSATION INCIDENT TO THE SERVICE PERFORMED IS CONSIDERED TO BE ,SERVING WITHOUT COMPENSATION" UNDER THE STATUTORY PROVISION, NOTWITHSTANDING HIS BEING AN OFFICER OF THE UNITED STATES HOLDING AN OFFICE TO WHICH COMPENSATION IS ATTACHED. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

THE QUESTION ALSO IS ASKED AS TO WHETHER, UNDER THE FACTS SIMILAR TO THOSE STATED IN THE FIRST QUESTION, TRAVEL ALLOWANCES, INCLUDING PER DIEM, MAY BE AUTHORIZED TO MILITARY PERSONNEL ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND AT THE RATES PRESCRIBED IN THE JOINT TRAVEL REGULATIONS, IN VIEW OF THE INCLUSION, IN SECTION 102 (B) 63 STAT. 804 OF SAID ACT AND IN PARAGRAPH 1150-1 OF THE SAID REGULATIONS, OR RETIRED PERSONS IN THE DEFINITION OF "MEMBER.'

WHILE SECTION 303 (A) STATES THAT "MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVED TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS," NONE OF THE CATEGORIES FOR WHICH TRAVEL ALLOWANCES ARE AUTHORIZED THEREIN WOULD APPEAR TO COVER TRAVEL OF THE NATURE HERE IN QUESTION BY RETIRED MILITARY PERSONNEL. THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SECTION 303 (A), MAKE NO SPECIFIC PROVISION FOR TRAVEL OF RETIRED PERSONS EXCEPT IN ONE INSTANCE NOT HERE PERTINENT. THE QUESTION IS ANSWERED IN THE NEGATIVE.