B-156215, APR. 9, 1965, 44 COMP. GEN. 615

B-156215, APR. 9, 1965, 44 COMP. GEN. 615

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - QUARTERS AND MESSING FACILITIES FURNISHED - PER DIEM IN LIEU THE AUTHORITY PROVIDED BY 37 U.S.C. 1002 (B) TO PAY MEMBERS OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE PERFORMING TRAINING OR OTHER DUTY WITHOUT PAY, TRAVEL AND TRANSPORTATION ALLOWANCES TO AND FROM THE TRAINING OR DUTY AND TO FURNISH THEM SUBSISTENCE AND QUARTERS IN KIND, OR COMMUTATION THEREOF, AT A RATE FIXED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY NOT BE EXERCISED TO AMEND THE JOINT TRAVEL REGULATIONS TO PRESCRIBE ENTITLEMENT TO THE PAYMENT OF PER DIEM ALLOWANCES AT RATES PROVIDED UNDER PARAGRAPHS 4205-3 AND 4256-3 FOR THOSE MEMBERS WHO ARE NOT FURNISHED QUARTERS AND/OR MESS WHILE PERFORMING DUTY WITHOUT PAY AT LOCATIONS OTHER THAN AT THEIR PRIMARY DUTY STATIONS, THE SECRETARIES' DISCRETIONARY AUTHORITY EXTENDING ONLY TO FURNISHING SUBSISTENCE AND QUARTERS IN KIND, OR COMMUTATION THEREOF, AND "COMMUTATION" MEANING A FIXED SUM IN LIEU OF RATIONS AND QUARTERS IN KIND, A PER DIEM PAYMENT-- A TEMPORARY ALLOWANCE PAYABLE ON A DAILY BASIS AND VARYING IN ACCORDANCE WITH THE EXPENSES INCURRED--- MAY NOT BE AUTHORIZED.

TO THE SECRETARY OF THE AIR FORCE, APRIL 9, 1965:

BY LETTER DATED FEBRUARY 19, 1965, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED LETTER OF FEBRUARY 15, 1965, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PRESCRIBE ENTITLEMENT TO THE PAYMENT OF PER DIEM ALLOWANCES AT RATES SHOWN IN PARAGRAPHS 4205-3 AND 4256-3 OF SUCH REGULATIONS, AS APPLICABLE, FOR MEMBERS OF THE NATIONAL GUARD OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, DURING THE PERFORMANCE OF ACTIVE TRAINING OR OTHER DUTY WITHOUT PAY AT LOCATIONS OTHER THAN THEIR PRIMARY DUTY STATIONS. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 65-9.

IN HIS LETTER, THE ASSISTANT SECRETARY STATES THAT WHEN MEMBERS OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, ARE ASSIGNED TO ACTIVE DUTY TRAINING WITHOUT PAY OR ACTIVE DUTY WITHOUT PAY, SUCH ASSIGNMENTS FREQUENTLY INVOLVE DUTY, USUALLY OF SHORT DURATION, AT MORE THAN ONE LOCATION, AND IN SOME INSTANCES GOVERNMENT QUARTERS AND/OR MESS ARE NOT AVAILABLE IN CONNECTION WITH SUCH DUTY. THE ASSISTANT SECRETARY POINTS OUT THAT UNDER THE PROVISIONS OF THE PERTINENT STATUTE, 37 U.S.C. 1002 (B), AUTHORITY IS CLEARLY PROVIDED FOR THE PAYMENT OF PER DIEM ALLOWANCES FOR THE DAYS OF TRAVEL TO AND FROM SUCH DUTY. HOWEVER, WITH RESPECT TO THE PERFORMANCE OF TRAINING OR DUTY AT THE TEMPORARY DUTY STATIONS AWAY FROM THE PRIMARY DUTY STATION, HE QUESTIONS WHETHER IMPLEMENTING REGULATIONS ARE RESTRICTED TO DIRECT THE PAYMENT OF A FIXED AMOUNT FOR QUARTERS AND FOR SUBSISTENCE OR WHETHER EXISTING REGULATIONS MIGHT BE AMENDED TO PROVIDE FOR PER DIEM ALLOWANCES DURING THE PERFORMANCE OF SUCH DUTY AT LOCATIONS OTHER THAN THE PRIMARY DUTY STATION AT RATES PROVIDED IN THE CITED PROVISIONS OF THE JOINT TRAVEL REGULATIONS.

THE PERTINENT STATUTE, 37 U.S.C. 1002, PROVIDES AS FOLLOWS:

SEC. 1002. ADDITIONAL TRAINING OR DUTY WITHOUT PAY: RESERVES AND MEMBERS OF NATIONAL GUARD.

(A) A MEMBER OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, MAY, WITH HIS CONSENT, BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED.

(B) A MEMBER WHO PERFORMS TRAINING OR OTHER DUTY WITHOUT PAY UNDER SUBSECTION (A) OF THIS SECTION MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE AUTHORIZED THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY SECTION 404 (A/-/D), AND (F), OF THIS TITLE FOR TRAVEL PERFORMED TO AND FROM THAT TRAINING OR DUTY, AND DURING THE PERFORMANCE OF THAT TRAINING OR DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED BY THE SECRETARY CONCERNED.

UNDER SUCH PROVISIONS MEMBERS PERFORMING TRAINING OR OTHER DUTY WITHOUT PAY MAY BE FURNISHED TRAVEL AND TRANSPORTATION ALLOWANCES ONLY FOR TRAVEL PERFORMED "TO AND FROM" THAT TRAINING OR OTHER DUTY AND IT SEEMS REASONABLY CLEAR THAT THE TERM "TO AND FROM" HAS REFERENCE TO TRAVEL FROM THE MEMBER'S HOME OR PLACE FROM WHICH ORDERED TO DUTY TO HIS PRIMARY DUTY STATION AND RETURN. HENCE, FOR OTHER THAN TRAVEL TO AND FROM TRAINING OR OTHER DUTY UNDER SUCH PROVISIONS, THE SECRETARY'S DISCRETIONARY AUTHORITY EXTENDS NO FURTHER THAN TO AUTHORIZE THE FURNISHING OF SUBSISTENCE AND QUARTERS IN KIND OR A COMMUTATION THEREOF AT A RATE TO BE FIXED BY HIM FOR THE PURPOSE. THE TERM "COMMUTATION" LONG HAS HAD A FIXED AND DEFINITE MEANING WHEN USED IN THIS RESPECT. IT IS THE ALLOWANCE AND PAYMENT OF A FIXED SUM IN LIEU OF FURNISHING THE SUBSISTENCE AND QUARTERS IN KIND OR REIMBURSING THE ACTUAL COST OF THOSE ITEMS IN CASE THEY CANNOT BE FURNISHED IN KIND. THE COMMUTATION IS FIXED AND PAYABLE REGARDLESS OF THE AMOUNT OF EXPENSE ACTUALLY INCURRED, OR WHETHER ANY EXPENSE IS IN FACT INCURRED. 1 COMP. GEN. 575, 577.

THE PER DIEM ALLOWANCES SET FORTH IN PARAGRAPHS 4205-3 AND 4256-3 OF THE JOINT TRAVEL REGULATIONS, HOWEVER, DO NOT CONSTITUTE A PAYMENT IN LIEU OF RATIONS AND QUARTERS IN KIND BUT ARE ESTABLISHED ON THE BASIS OF THE ESTIMATED COST OF SUBSISTENCE OR LODGING AND OTHER NECESSARY INCIDENTAL EXPENSES RELATED THERETO WHILE IN A TRAVEL STATUS. THEY ARE TEMPORARY ALLOWANCES PAYABLE ON A DAILY BASIS AND THE PER DIEM RATE MAY VARY IN ACCORDANCE WITH THE EXPENSES INCURRED. IN SUCH CIRCUMSTANCES AND SINCE THE AMOUNT OF PER DIEM IS NOT FIXED ON THE BASIS OF THE VALUE OF ANY SUBSISTENCE OR QUARTERS WHICH MAY BE FURNISHED IN KIND, WE DO NOT BELIEVE A PER DIEM ALLOWANCE MAY BE CONSIDERED TO BE THE COMMUTATION OF SUBSISTENCE AND QUARTERS AUTHORIZED BY THE STATUTE. ACCORDINGLY, IT IS OUR VIEW THAT AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS TO PRESCRIBE ENTITLEMENT TO THE PER DIEM ALLOWANCES UNDER PARAGRAPHS 4205-3 AND 4256-3 ON THE BASIS PROPOSED WOULD NOT BE A PROPER EXERCISE OF THE AUTHORITY OF THE SECRETARIES UNDER THE QUOTED PROVISIONS OF 37 U.S.C. 1002.