B-141855, APRIL 21, 1960, 39 COMP. GEN. 718

B-141855, APRIL 21, 1960, 39 COMP. GEN. 718

MILITARY PERSONNEL - QUARTERS ALLOWANCE - CIVILIAN COLLEGE ATTENDANCE - TRAVEL, ETC., STATUS - PROHIBITION A PERIOD BETWEEN PERMANENT DUTY ASSIGNMENTS WHEN MEMBER OF THE UNIFORMED SERVICES, WITHOUT DEPENDENTS, ARE PERMITTED TO ATTEND CIVILIAN COLLEGES TO COMPLETE STUDIES TO QUALIFY FOR BACCALAUREATE DEGREES MUST BE REGARDED AS EITHER A PERIOD OF TEMPORARY DUTY OR A PERIOD OF LEAVE OF ABSENCE WITHIN THE MEANING SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, 37 U.S.C. 320, WHICH PROHIBITS THE RECEIPT OF QUARTERS ALLOWANCE BY MEMBERS WITHOUT DEPENDENTS FOR ANY PERIOD IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS; AND, THEREFORE, SUCH MEMBERS ARE PROHIBITED FROM RECEIVING QUARTERS ALLOWANCE WHILE ATTENDING CIVILIAN COLLEGES BETWEEN PERMANENT DUTY ASSIGNMENTS.

TO THE SECRETARY OF DEFENSE, APRIL 21, 1960:

REFERENCE IS MADE TO LETTER OF JANUARY 27, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION AS TO WHETHER, IN VIEW OF THE PROVISIONS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, A MEMBER OF THE ARMED FORCES, WITHOUT DEPENDENTS, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD HE IS DETACHED FROM HIS PERMANENT DUTY STATION, ASSIGNED TO A PERSONNEL CENTER FOR FURTHER ASSIGNMENT, AND IS FURTHER ASSIGNED TO TEMPORARY DUTY, WITH NO PER DIEM AUTHORIZED, AT A UNIVERSITY FOR THE PURPOSE OF COMPLETING COLLEGE STUDIES TO QUALIFY FOR A BACCALAUREATE DEGREE PRIOR TO REPORTING TO THE PERSONNEL CENTER.

IT IS STATED IN COMMITTEE ACTION NO. 259, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHICH ACCOMPANIED YOUR SUBMISSION, THAT CERTAIN MILITARY PERSONNEL ARE AUTHORIZED, UNDER THE PROVISIONS OF SERVICE REGULATIONS, TO COMPLETE COLLEGE STUDIES IN SUBJECT AREAS OF FUNCTIONAL IMPORTANCE TO THE MILITARY PROFESSION AND ARE PERMITTED TO SATISFY THE TRADITIONAL RESIDENCE REQUIREMENT FOR THE BACCALAUREATE DEGREE AT ACCREDITED CIVILIAN COLLEGES AND UNIVERSITIES WHILE EN ROUTE TO A NEW PERMANENT STATION UNDER PERMISSIVE TRAVEL ORDERS NOT ENTITLING THEM TO PAYMENT OF PER DIEM. AN ACTUAL CASE CITED INVOLVES AN OFFICER WHO WILL ATTEND A UNIVERSITY FOR APPROXIMATELY SIX MONTHS AFTER LEAVING HIS FORMER PERMANENT DUTY STATION, EN ROUTE TO AN ULTIMATE OVERSEAS COMMAND. IT IS CONTENDED THAT, SINCE OFFICERS WHO PERFORM NORMAL TEMPORARY DUTY EN ROUTE RECEIVE PER DIEM AT A RATE WHICH INCLUDES AN ALLOWANCE FOR QUARTERS, IF NOT FURNISHED IN KIND, AN INEQUITY RESULTS IF MEMBERS IN RESIDENCE AT CIVILIAN COLLEGES ARE DENIED THE BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, 64 STAT. 288, 37 U.S.C. 320, WHICH PROVIDES AS FOLLOWS:

NO APPROPRIATION SHALL BE AVAILABLE FOR PAYMENT TO ANY MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS (AS DEFINED IN SECTION 231 (G) AND 252 OF THIS TITLE) OF A BASIC ALLOWANCE FOR QUARTERS FOR ANY PERIOD AFTER JUNE 29, 1950, WHILE SUCH MEMBER IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT/DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY ENROUTE OR PROCEED TIME.

OUR DECISION OF OCTOBER 21, 1954, B-121258, CITED IN THE COMMITTEE ACTION, CONCERNED A CLAIM BY A MEMBER WITHOUT DEPENDENTS FOR BASIC ALLOWANCE FOR QUARTERS COVERING A PERIOD OF TEMPORARY DUTY PERFORMED BY HIM WHILE IN A TRAVEL STATUS BETWEEN PERMANENT DUTY STATIONS. IN DENYING THE CLAIM UNDER THE PROVISIONS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, IT WAS POINTED OUT THAT THE PER DIEM PAID HIM FOR THE SAME PERIOD INCLUDED AN AMOUNT FOR QUARTERS, AND THAT THE PURPOSE OF THE ACT WAS TO PREVENT PAYMENT OF DOUBLE ALLOWANCES FOR QUARTERS. THE FACT, HOWEVER, THAT MEMBERS PRECLUDED BY THIS ACT FROM RECEIVING A BASIC ALLOWANCE WHILE IN THE PERFORMANCE OF OFFICIAL BUSINESS RECEIVE AN ADEQUATE ALLOWANCE FOR QUARTERS IN THE FORM OF PER DIEM, DOES NOT IN ANY WAY INVALIDATE THE FURTHER PROVISION OF THE ACT WHICH PRECLUDES PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO A MEMBER IN A LEAVE STATUS BETWEEN DUTY STATIONS. THUS, IT IS INDICATED THAT IT WAS THE LEGISLATIVE INTENT, IN THE ABSENCE OF A NECESSITY FOR MAINTAINING RENTAL QUARTERS AT AN ASSIGNED STATION, TO ALSO DENY BASIC ALLOWANCE FOR QUARTERS AT AN ASSIGNED STATION, TO ALSO DENY BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS FOR ANY PERIOD DURING WHICH SUCH MEMBER ABSENTS HIMSELF FROM A MILITARY POST FOR PERSONAL REASONS.

ON THE PREMISE THAT EDUCATION OF THE TYPE PROVIDED IN ACCREDITED CIVILIAN SCHOOLS INCREASES UNDERSTANDING AND RAISES MILITARY PERFORMANCE POTENTIALS AND THAT THE GENERAL EDUCATIONAL DEVELOPMENT OF MILITARY PERSONNEL ON A CONTINUING BASIS SUPPORTS PROCUREMENT, TRAINING AND UTILIZATION, THE SEVERAL SERVICE HAVE BY REGULATION (FOR EXAMPLE, ARMY REGULATIONS NO. 621- 5, FEBRUARY 20, 1957) ESTABLISHED POLICIES AND AUTHORIZED FUNDS FOR FURTHER THE EDUCATION OF SUCH PERSONNEL. PARAGRAPH 11C (7) (B) 1, AR 621- 5, PROVIDES THAT IN CONNECTION WITH A PERMANENT CHANGE OF STATION, OFFICERS SELECTED TO ATTEND CIVILIAN SCHOOLS WILL BE ISSUED PERMISSIVE TRAVEL ORDERS UNDER THE PROVISIONS OF PARAGRAPH 6453, JOINT TRAVEL REGULATIONS, AND WILL BE AUTHORIZED A SPECIFIED NUMBER OF DAYS AS TEMPORARY DUTY AT NO EXPENSE TO THE GOVERNMENT FOR THE PURPOSE OF ATTENDING A PARTICULAR SCHOOL. WHERE NO PERMANENT CHANGE OF STATION IS INVOLVED, SELECTED OFFICERS MAY BE ISSUED PERMISSIVE TRAVEL ORDERS UNDER PARAGRAPH 11C7 (B/2, AR 621-5, FOR THE PURPOSE OF ATTENDING CIVILIAN SCHOOLS SUBJECT TO THE SAME CONDITIONS. THUS, MEMBERS ATTENDING SUCH SCHOOLS BETWEEN CHANGES OF STATION RECEIVE NO PER DIEM BUT MAY BENEFIT BY THE RECEIPT OF MILEAGE TO THE EXTENT THAT TRAVEL TO THE SCHOOL IS IN THE DIRECTION OF THE NEW STATION. MEMBERS ATTENDING SCHOOLS WITH NO PERMANENT CHANGE OF STATION NOT ONLY RECEIVE NO PER DIEM BUT, UNDER PERMISSIVE TRAVEL ORDERS, ARE REQUIRED TO PERFORM ALL TRAVEL AT PERSONAL EXPENSE. FURTHER, SUCH MEMBERS, IF OCCUPYING GOVERNMENT QUARTERS AT THEIR PERMANENT STATION, ARE NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE AWAY AT SCHOOL UNDER SUCH ORDERS. SEE OUR DECISION OF AUGUST 13, 1959, B-139902, COPY ENCLOSED. IT APPEARS, THEREFORE, THAT THE PERTINENT REGULATIONS RECOGNIZE THAT THE SO-CALLED TEMPORARY DUTY FOR AN EXTENDED PERIOD OF TIME AUTHORIZED IN THE PERMISSIVE TRAVEL ORDERS FOR THE PURPOSE OF ATTENDING A CIVILIAN SCHOOL TO FULFILL REQUIREMENTS FOR A BACCALAUREATE DEGREE IS ESSENTIALLY A LEAVE OF ABSENCE AS DISTINGUISHED FROM AN ASSIGNMENT TO A MILITARY DUTY AWAY FROM THE MEMBER'S PERMANENT STATION. UNDER THE PLAIN TERMS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, MEMBERS WITHOUT DEPENDENTS WHILE IN A LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS MAY IN NO EVENT RECEIVE A BASIC ALLOWANCE FOR QUARTERS FOR SUCH PERIOD. ALSO, A MEMBER WITHOUT DEPENDENTS WHO IS FURNISHED OR ASSIGNED QUARTERS AT HIS PERMANENT STATION RECEIVES NO BASIC ALLOWANCE FOR QUARTERS WHILE AWAY ON LEAVE. SEE ARMY REGULATIONS 37-104, PARAGRAPH 5-10A.

IN THE LIGHT OF THE FOREGOING, IT WOULD NOT APPEAR THAT ANY SUBSTANTIAL INEQUITY IS CREATED IN CASES SUCH AS HERE INVOLVED BY A STRICT APPLICATION OF THE PROVISIONS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT, 1950, THE LANGUAGE OF WHICH, IN OUR VIEW, REQUIRES THAT THE BASIC ALLOWANCE FOR QUARTERS BE DENIED MEMBERS WITHOUT DEPENDENTS WHILE ATTENDING A CIVILIAN SCHOOL TO OBTAIN A BACCALAUREATE DEGREE UNDER CIRCUMSTANCE SUCH AS HERE INVOLVED WHETHER THE PERIOD OF ATTENDANCE IS REGARDED AS A PERIOD OF TEMPORARY DUTY OR AS A LEAVE OF ABSENCE. ACCORDINGLY, THE QUESTION PRESENTED IN THE ASSISTANT SECRETARY'S LETTER IS ANSWERED IN THE NEGATIVE.