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B-158566, JUN 12, 1974, 53 COMP GEN 957

B-158566 Jun 12, 1974
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SINCE REQUIREMENT THAT SUCH MEMBERS ENLIST IN RESERVE COMPONENT IS FOR PURPOSE OF SECURING INVOLUNTARY ACTIVE MILITARY SERVICE AS ENLISTED MEMBER IF STUDENT FAILS TO COMPLETE COURSE OF INSTRUCTION OR REFUSES TO ACCEPT APPOINTMENT AS COMMISSIONED OFFICER WITH ITS OBLIGATED SERVICE AND THESE MEMBERS DO NOT ATTEND DRILLS OR PERFORM DUTY OTHER THAN THAT PRESCRIBED IN 10 U.S.C. 2109. 1974: THIS ACTION IS IN RESPONSE TO A REQUEST FOR ADVANCE DECISION FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) CONCERNING WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO A REVISION TO PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS WHICH WOULD EXTEND PER DIEM ENTITLEMENT TO ALL MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS.

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B-158566, JUN 12, 1974, 53 COMP GEN 957

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - TRAVEL ALLOWANCE PARAGRAPH M6005 OF JOINT TRAVEL REGULATIONS MAY NOT BE REVISED TO AUTHORIZE PER DIEM ALLOWANCES FOR MEMBERS OF, AND APPLICANTS FOR, SENIOR RESERVE OFFICERS' TRAINING CORPS TO SAME EXTENT AS PRESCRIBED FOR CADETS AND MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 2107, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR SUCH ALLOWANCE IN 10 U.S.C. 2109 FOR MEMBERS NOT APPOINTED UNDER 10 U.S.C. 2107. SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - TRAVEL ALLOWANCE MEMBERS OF, AND APPLICANTS FOR, SENIOR RESERVE OFFICERS' TRAINING CORPS MAY NOT BE AUTHORIZED PER DIEM UNDER PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS BY VIRTUE OF ENLISTED STATUS IN RESERVE COMPONENT, SINCE REQUIREMENT THAT SUCH MEMBERS ENLIST IN RESERVE COMPONENT IS FOR PURPOSE OF SECURING INVOLUNTARY ACTIVE MILITARY SERVICE AS ENLISTED MEMBER IF STUDENT FAILS TO COMPLETE COURSE OF INSTRUCTION OR REFUSES TO ACCEPT APPOINTMENT AS COMMISSIONED OFFICER WITH ITS OBLIGATED SERVICE AND THESE MEMBERS DO NOT ATTEND DRILLS OR PERFORM DUTY OTHER THAN THAT PRESCRIBED IN 10 U.S.C. 2109, WHICH SPECIFICALLY PROVIDES TRAVEL ALLOWANCES INCIDENT THERETO.

IN THE MATTER OF PER DIEM ALLOWANCES FOR CERTAIN MEMBERS OF, AND APPLICANTS FOR, SENIOR RESERVE OFFICERS' TRAINING CORPS, JUNE 12, 1974:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR ADVANCE DECISION FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) CONCERNING WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO A REVISION TO PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS WHICH WOULD EXTEND PER DIEM ENTITLEMENT TO ALL MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS. CURRENTLY THIS PARAGRAPH PRESCRIBES SUCH ENTITLEMENT FOR CADETS AND MIDSHIPMEN. IF THIS OFFICE OBJECTS TO SUCH REVISION, A DECISION IS REQUESTED AS TO WHETHER A PER DIEM ALLOWANCE FOR MEMBERS OF, OR APPLICANTS FOR THE SENIOR RESERVE OFFICERS' TRAINING CORPS MAY BE AUTHORIZED BY VIRTUE OF THEIR STATUS AS ENLISTEES IN THE RESERVES. THIS REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 73-44 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY STATES IN HIS LETTER THAT PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS WAS REVISED EFFECTIVE MAY 27, 1965 (CHANGE 151, AUGUST 1, 1965), TO IMPLEMENT THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063, CODIFIED IN SEVERAL PROVISIONS OF TITLES 10 AND 37, U.S.C. PURSUANT TO THE REVISION, MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS, AND DESIGNATED APPLICANTS FOR MEMBERSHIP ARE AUTHORIZED ALLOWANCES FOR TRAVEL IN CONNECTION WITH FIELD TRAINING AND AT-SEA TRAINING. IT IS NOTED IN THE ASSISTANT SECRETARY'S LETTER THAT PER DIEM IS AUTHORIZED BY THE ABOVE-CITED PARAGRAPH FOR MEMBERS APPOINTED AS CADETS OR MIDSHIPMEN UNDER 10 U.S.C. 2107 WHO ARE PERFORMING TRAINING DUTY UNDER CERTAIN CIRCUMSTANCES AND FOR TEMPORARY DUTY AWAY FROM THE PLACE OF TRAINING. PER DIEM IS ALSO AUTHORIZED FOR CADETS AND MIDSHIPMEN FOR TEMPORARY DUTY AND TRAVEL PERFORMED UNDER COMPETENT ORDERS EVEN THOUGH NOT IN CONNECTION WITH FIELD OR AT-SEA TRAINING. IT IS NOTED THAT UNDER THE AUTHORITY OF 37 U.S.C. 422(C), CADETS AND MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 2107 ARE AUTHORIZED TRAVEL ALLOWANCES TO THE SAME EXTENT AS CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES.

THE ASSISTANT SECRETARY ALSO STATES THAT MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS APPOINTED UNDER THE PROVISIONS OF 10 U.S.C. 2104 AND WHO PERFORM TRAINING DUTY UNDER THE PROVISIONS OF 10 U.S.C. 2109 ARE AUTHORIZED THE SAME TRAVEL ALLOWANCES FOR FIELD AND AT SEA TRAINING AS CADETS AND MIDSHIPMEN, WITH THE EXCEPTION OF PER DIEM. IT IS ALSO STATED THAT PARAGRAPH M6005-2 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROHIBITS THE PAYMENT OF PER DIEM ALLOWANCE TO THOSE MEMBERS APPOINTED UNDER THE PROVISIONS OF 10 U.S.C. 2104.

THE ASSISTANT SECRETARY POINTS OUT THAT THE LAW UPON WHICH PER DIEM ENTITLEMENT FOR CADETS AND MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 2107 IS BASED, 37 U.S.C. 422, DOES NOT SPECIFICALLY AUTHORIZE THE SECRETARIES TO PROVIDE A PER DIEM ALLOWANCE AND THE LANGUAGE OF THAT LAW IS VERY BROAD. IT IS ALSO POINTED OUT THAT THE LANGUAGE OF 10 U.S.C. 2109 ALLOWS THE SECRETARIES CONSIDERABLE LATITUDE IN PRESCRIBING ALLOWANCES. THUS, THE ASSISTANT SECRETARY CONCLUDES THAT ON THE BASIS OF THE BROAD AUTHORITY GRANTED IN THESE STATUTES IT WOULD APPEAR THAT THE SECRETARIES CONCERNED HAVE SUFFICIENT AUTHORITY TO PRESCRIBE PER DIEM ALLOWANCES FOR MEMBERS OF, AND APPLICANTS FOR THE SENIOR RESERVE OFFICERS' TRAINING CORPS WHO HAVE NOT BEEN APPOINTED UNDER THE PROVISIONS OF 10 U.S.C. 2107.

SECTION 422(C) OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT A CADET OR MIDSHIPMAN APPOINTED UNDER SECTION 2107, OR TITLE 10, U.S. CODE, IS ENTITLED TO THE SAME ALLOWANCES FOR TRAVEL UNDER ORDERS AS ARE PROVIDED FOR CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES. SUBSECTION (A) OF 37 U.S.C. 422 PROVIDES IN PART THAT CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED UNDER 37 U.S.C. 410 WHILE TRAVELING UNDER ORDERS AS CADETS OR MIDSHIPMEN. SECTION 410 OF TITLE 37, U.S. CODE, PROVIDES FOR ENTITLEMENT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES AS ARE PROVIDED IN 37 U.S.C. 404, WHICH INCLUDES A PER DIEM ALLOWANCE.

THUS, ENTITLEMENT TO A PER DIEM ALLOWANCE AUTHORIZED FOR CADETS AND MIDSHIPMEN APPOINTED UNDER THE PROVISIONS OF 10 U.S.C. 2107 EXISTS BECAUSE THEY ARE ENTITLED TO THE SAME ALLOWANCES AS THOSE AUTHORIZED FOR CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES.

THIS, HOWEVER, IS NOT THE CASE FOR MEMBERS OF, AND APPLICANTS FOR, THE SENIOR RESERVE OFFICERS' TRAINING CORPS. SUBSECTION 2109(B)(1) SPECIFICALLY PROVIDES AUTHORITY TO THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FOR THE PAYMENT TO SUCH MEMBERS OF A TRAVEL ALLOWANCE IN LIEU OF SUBSISTENCE AND TRANSPORTATION AT THE RATE PRESCRIBED FOR CADETS AND MIDSHIPMEN AT THE SERVICE ACADEMIES. HOWEVER, SUBSECTION 2109(B)(3) ONLY PROVIDES AUTHORITY FOR THE FURNISHING OF SUBSISTENCE AND DOES NOT AUTHORIZE THE PAYMENT OF AN ALLOWANCE IN LIEU OF SUBSISTENCE WHILE ATTENDING FIELD TRAINING OR PRACTICE CRUISES.

IT IS OUR VIEW THAT HAD THE CONGRESS INTENDED MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS SERVING UNDER THE PROVISIONS OF 10 U.S.C. 2104 AND 2109 TO RECEIVE THE SAME PER DIEM ALLOWANCES WHILE ON FIELD OR AT -SEA TRAINING AS CADETS AND MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 2107, PROVISION FOR SUCH ALLOWANCE WOULD HAVE BEEN MADE AT THE TIME OF ENACTMENT OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964.

THAT ACT DEALT WITH THE RESERVE OFFICERS' TRAINING CORPS IN GENERAL AND, WITH REGARD TO TRAVEL ALLOWANCES, PLACED CADETS AND MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 2107 ON EQUAL FOOTING WITH CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES. THEREFORE, IT APPEARS CONCLUSIVE THAT WITH REGARD TO OTHER CATEGORIES OF MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS, A SIMILAR RELATIONSHIP WAS NOT INTENDED.

ACCORDINGLY, IT IS OUR VIEW THAT THE TRAVEL ALLOWANCES FOR MEMBERS OF AND APPLICANTS FOR THE SENIOR RESERVE OFFICERS' TRAINING CORPS MAY NOT BE EXTENDED TO INCLUDE PER DIEM AS CURRENTLY PRESCRIBED FOR CADETS AND MIDSHIPMEN IN PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR SUCH ALLOWANCES IN 10 U.S.C. 2109.

WITH REGARD TO THE QUESTION CONCERNING WHETHER PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS MAY BE CONSIDERED TO AUTHORIZE PAYMENT OF PER DIEM TO MEMBERS OF, AND APPLICANTS FOR THE SENIOR RESERVE OFFICERS' TRAINING CORPS BY VIRTUE OF THE ENLISTED STATUS IN THE RESERVES, WE NOTE THAT WHILE ENLISTMENT IN A RESERVE COMPONENT IS REQUIRED FOR MEMBERS OF, OR APPLICANTS FOR, THE SENIOR RESERVE OFFICERS' TRAINING CORPS (10 U.S.C. 2104(B)(3)), THE PURPOSE OF THIS REQUIREMENT IS TO SECURE INVOLUNTARY ACTIVE MILITARY SERVICE AS AN ENLISTED MEMBER IF THE STUDENT FAILS TO COMPLETE THE COURSE OF INSTRUCTION OR REFUSES TO ACCEPT APPOINTMENT AS A COMMISSIONED OFFICER WITH ITS OBLIGATED SERVICE (10 U.S.C. 2105). GENERALLY, MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS, ALTHOUGH MEMBERS OF A RESERVE COMPONENT, ARE NOT REQUIRED TO ATTEND DRILLS OR PERFORM DUTY IN THEIR STATUS AS MEMBERS OF A RESERVE COMPONENT. THEREFORE, IT IS OUR VIEW THAT THE PROVISIONS OF PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS ARE NOT FOR APPLICATION IN THE CASE OF A MEMBER OF, OR AN APPLICANT FOR, THE SENIOR RESERVE OFFICERS' TRAINING CORPS WHEN ON FIELD OR AT-SEA TRAINING AND TRAVEL ALLOWANCES PAYABLE IN CONNECTION THEREWITH ARE GOVERNED BY THE PROVISIONS OF 10 U.S.C. 2109.

ACCORDINGLY, BOTH QUESTIONS ARE ANSWERED IN THE NEGATIVE.

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