B-158923, JUN. 16, 1966, 45 COMP. GEN. 798

B-158923, JUN. 16, 1966, 45 COMP. GEN. 798

STATION ALLOWANCES - MILITARY PERSONNEL - EXCESS LIVING COSTS OUTSIDE THE UNITED STATES, ETC. - TEMPORARY DUTY THE COST-OF-LIVING ALLOWANCE AUTHORIZED BY PARAGRAPH M4301 OF THE JOINT TRAVEL REGULATIONS FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS OF THE ARMED FORCES ON PERMANENT DUTY AT A PLACE OUTSIDE THE UNITED STATES IS NOT PAYABLE TO AN AIR FORCE RESERVE OFFICER ORDERED FROM HIS HOME IN THE UNITED STATES TO ACTIVE DUTY TRAINING IN ALASKA FOR A 44-DAY PERIOD, AND THE FACT THAT A MEMBER ORDERED TO ACTIVE DUTY TRAINING OF SHORT DURATION IS ENTITLED TO CERTAIN ALLOWANCES WHICH ARE PAID INCIDENT TO A PERMANENT DUTY ASSIGNMENT DOES NOT MAKE A SHORT DURATION ASSIGNMENT FOR ACTIVE DUTY TRAINING PERMANENT IN NATURE; THEREFORE, A COST-OF-LIVING ALLOWANCE MAY NOT BE AUTHORIZED FOR THE RESERVE OFFICER, NOR FOR MEMBERS OF A STATE AIR NATIONAL GUARD ORDERED TO ACTIVE DUTY IN HAWAII FOR 90 DAYS OR LESS, WHETHER THE GUARD MEMBER IS A RESIDENT OF HAWAII OR CONTINENTAL UNITED STATES, OR WHETHER HIS DEPENDENTS RESIDE IN HAWAII.

TO LIEUTENANT COLONEL J. J. VANYA, DEPARTMENT OF THE AIR FORCE, JUNE 16, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER, FILE CP, AND ENCLOSURES FORWARDED HERE ON APRIL 7, 1966, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 66-16), REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF COST-OF-LIVING ALLOWANCES TO CAPTAIN EDMUND X. LOUGHRAN, FV 305 5804, UNDER THE CIRCUMSTANCES DESCRIBED, AND ON CERTAIN RELATED QUESTIONS.

BY RESERVE ORDER NO. A-307 DATED JUNE 2, 1965, AS AMENDED, ISSUED BY HEADQUARTERS, 349TH TROOP CARRIER WING, MEDIUM, (RESERVE) (CONAC), HAMILTON AIR FORCE BASE, CALIFORNIA, CAPTAIN LOUGHRAN WAS ORDERED TO ACTIVE DUTY TRAINING FOR 44 DAYS, PLUS REQUIRED TRAVEL TIME, AND DIRECTED TO REPORT TO HEADQUARTERS, ALASKAN AIR COMMAND, ELMENDORF AIR FORCE BASE, ALASKA, NOT LATER THAN JUNE 8, 1965. CAPTAIN LOUGHRAN IS CLAIMING COST-OF -LIVING ALLOWANCE FOR THE PERIOD JUNE 9 TO JULY 21, 1965, EXCLUDING THE PERIOD JUNE 24 TO JULY 2, 1965, WHEN HE WAS IN A TEMPORARY DUTY STATUS AWAY FROM HIS DUTY STATION AND NOT IN ALASKA.

IN YOUR LETTER YOUR REFER TO PARAGRAPH M4301 OF THE JOINT TRAVEL REGULATIONS WHICH AUTHORIZES THE COST-OF-LIVING ALLOWANCE FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES, AND PARAGRAPH M1150-10 OF THE REGULATIONS WHICH DEFINES A PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY.' YOU CITE IN YOUR LETTER OUR DECISION OF APRIL 8, 1953, 32 COMP. GEN. 444, WHICH HELD THAT A RESERVE MEMBER WHO PERFORMED ACTIVE DUTY TRAINING FOR 2 WEEKS IN PUERTO RICO WAS NOT PERMANENTLY ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES WITHIN THE MEANING OF THE APPLICABLE REGULATIONS SO AS TO BE ENTITLED TO STATION ALLOWANCES FOR THAT PERIOD. YOU SAY THAT YOUR RESEARCH HAS NOT REVEALED A DECISIONS WHERE WE HAVE RULED ON A SIMILAR QUESTION OF ENTITLEMENT WHEN THE PERIOD OF ACTIVE DUTY WAS LONGER THAN 2 WEEKS. THE RELATED QUESTIONS ASKED IN YOUR LETTER ARE AS FOLLOWS:

A. MEMBER OF HAWAII AIR NATIONAL GUARD WHO RESIDES IN HONOLULU, HAWAII IS CALLED TO ACTIVE DUTY (ALERT DUTY) FOR A PERIOD OF 59 DAYS. HE PERFORMS THE DUTY AT HICKAM AIR FORCE BASE, HAWAII. IF ALL OTHER CONDITIONS OF ENTITLEMENT ARE MET, IS THIS MEMBER ENTITLED TO COLA ON THE BASIS THAT HE IS PERMANENTLY ASSIGNED TO DUTY IN HAWAII?

B. MEMBER OF COLORADO AIR NATIONAL GUARD WHO IS A RESIDENT OF COLORADO IS CALLED TO ACTIVE DUTY (ALERT DUTY) FOR A PERIOD OF 59 DAYS. HE TRAVELS PCS TO HAWAII AND PERFORMS THE DUTY AT HICKAM AIR FORCE BASE. IF ALL OTHER CONDITIONS OF ENTITLEMENT ARE MET, IS THIS MEMBER ENTITLED TO COLA ON THE BASIS THAT HE IS PERMANENTLY ASSIGNED TO DUTY IN HAWAII?

C. WOULD YOUR ANSWER TO QUESTION "A" BE THE SAME IF THE PERIOD OF ACTIVE DUTY WAS 90 DAYS?

D. WOULD YOUR ANSWERS TO QUESTIONS "A" AND "B" BE THE SAME IF THE MEMBERS HAD DEPENDENTS RESIDING WITH THEM IN HAWAII?

E. WOULD YOUR ANSWER REGARDING PROPRIETY OF PAYING THE ATTACHED VOUCHER BE THE SAME IF THE PERIOD OF ACTIVE DUTY WAS 90 DAYS?

SECTION 405 OF TITLE 37, U.S. CODE, PROVIDES THAT WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. AS YOU POINT OUT IN YOUR LETTER, PARAGRAPH M4301 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE COST-OF-LIVING ALLOWANCE IS AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. SUCH PROVISION INDICATES A CLEAR INTENT THAT ENTITLEMENT IS BASED ON A PERMANENT DUTY ASSIGNMENT, AND THE REGULATIONS DO NOT OTHERWISE INDICATE THAT THE RIGHT TO THE COST-OF-LIVING ALLOWANCE SHOULD ACCRUE ON ANY OTHER BASIS. WHILE A MEMBER ORDERED FROM HIS HOME TO ACTIVE DUTY TRAINING FOR A PERIOD OF SHORT DURATION IS ENTITLED TO CERTAIN ALLOWANCES WHICH ARE PAID INCIDENT TO AN ASSIGNMENT TO A PERMANENT DUTY STATION, SUCH ASSIGNMENT CLEARLY IS NOT PERMANENT IN NATURE WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM. SEE 30 COMP. GEN. 260; 32 ID. 444. CAPTAIN LOUGHRAN WAS ORDERED TO ACTIVE DUTY TRAINING FOR A PERIOD OF 44 DAYS. SUCH LIMITED PERIOD OF DUTY OBVIOUSLY DID NOT CONSTITUTE A PERMANENT DUTY ASSIGNMENT WITHIN THE USUAL CONCEPT OF THAT TERM.

ACCORDINGLY, PAYMENT OF THE COST-OF-LIVING ALLOWANCE TO CAPTAIN LOUGHRAN IS NOT AUTHORIZED NOR WOULD IT BE AUTHORIZED UNDER ANY OF THE CIRCUMSTANCES DESCRIBED IN THE QUESTIONS IN YOUR LETTER. IN THIS CONNECTION, HOWEVER, YOUR ATTENTION IS INVITED TO THE ENCLOSED COPY OF OUR DECISION OF TODAY, 45 COMP. GEN.---, TO THE SECRETARY OF THE ARMY. THE ENCLOSURES WHICH ACCOMPANIED YOUR REQUEST FOR DECISIONS WILL BE RETAINED HERE.