B-172125, MAY 11, 1971, 50 COMP GEN 783

B-172125, MAY 11, 1971, 50 COMP GEN 783

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - RIFLE AND PISTOL TEAM COMPETITION - STATUS FOR ALLOWANCES SINCE THE PARTICIPATION OF MEMBERS OF THE RESERVE OFFICERS' TRAINING CORPS (ROTC) IN RIFLE AND PISTOL TEAM COMPETITION MATCHES IS NEITHER MILITARY TRAINING NOR PART OF THE ROTC CURRICULUM, BUT THE PARTICIPATION IS PERFORMED ON A VOLUNTARY EXTRACURRICULAR ACTIVITY BASIS, TO PROVIDE ALLOWANCES TO MEMBERS PARTICIPATING IN NATIONAL MATCHES, THEY MAY BE CONSIDERED TO HAVE THE SAME STATUS AS CIVILIANS WITHIN THE MEANING OF 10 U.S.C. 4313 SO AS TO ENTITLE THEM TO A TRAVEL ALLOWANCE OF $0.05 MILE AND A SUBSISTENCE ALLOWANCE OF $1.50 A DAY, AND THE AUTHORITY IN 10 U.S.C. 4308(A)(8) MAY BE INVOKED TO PROVIDE ALLOWANCES FOR PARTICIPATION IN REGIONAL AND INTERNATIONAL MATCHES IF THE SECRETARY OF THE ARMY UPON RECOMMENDATION OF THE NATIONAL BOARD FOR THE PROMOTION OF RIFLE PRACTICE

TO THE SECRETARY OF THE AIR FORCE, MAY 11, 1971:

LETTER DATED FEBRUARY 26, 1971, FROM THE DEPUTY ASSISTANT SECRETARY (PERSONNEL POLICY), WITH ENCLOSURES, REQUESTS A DECISION CONCERNING THE ENTITLEMENT OF MEMBERS (CADETS) OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS WHO PARTICIPATE IN RIFLE AND PISTOL TEAM COMPETITION MATCHES TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED TO AND FROM THE PLACE WHERE THE COMPETITION MATCHES ARE BEING HELD. THE LETTER WAS FORWARDED HERE ON MARCH 2, 1971, BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 71-13.

IN HIS LETTER THE DEPUTY ASSISTANT SECRETARY SAYS THAT THE QUESTION INVOLVES ALL ROTC MEMBERS WHO ARE ENROLLED IN ADVANCED TRAINING UNDER THE PROVISIONS OF 10 U.S.C. 2104 AND 2107, AND WHO ARE MEMBERS OF A RIFLE OR PISTOL TEAM ELIGIBLE FOR PARTICIPATION IN THE COMPETITION MATCHES. WITH THE ENCLOSURES IS CORRESPONDENCE RELATING TO A COMPREHENSIVE STUDY MADE BY THE DEPARTMENT OF THE ARMY AS TO WHETHER APPLICABLE SECTIONS OF TITLE 10, U.S. CODE, CONTAIN AUTHORITY TO PAY CADETS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS ON A COMMUTED RATE BASIS WHEN TRAVELING TO AND FROM NATIONAL RIFLE AND PISTOL COMPETITION MATCHES.

THE RECORD SHOWS THAT IN A LETTER TO THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, DEPARTMENT OF THE ARMY, DATED JUNE 29, 1970, HEADQUARTERS UNITED STATES CONTINENTAL ARMY COMMAND ADVISED THAT NOTWITHSTANDING PROVISIONS IN ANNUAL APPROPRIATION ACTS, SUCH AS SECTION 629 OF PUBLIC LAW 91-171, APPROVED DECEMBER 29, 1969, 83 STAT. 485, WHICH PROVIDE FOR TRAVEL EXPENSES OF MEMBERS OF THE ROTC ATTENDING REGIONAL, NATIONAL, AND INTERNATIONAL MATCHES, THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT ONLY TRANSPORTATION AND MEAL TICKETS MAY BE FURNISHED IN CONNECTION WITH SUCH ATTENDANCE AND THAT NO REIMBURSEMENT CAN BE EFFECTED FOR THE PERSONAL TRAVEL EXPENSES INCURRED BY SUCH MEMBERS. IT WAS STATED THAT THIS DETERMINATION WAS PREMISED ON THE VIEW THAT BASIC ROTC LEGISLATION (10 U.S.C. 2101-2111) DOES NOT PROVIDE FOR EXPENSES OF ROTC STUDENTS PARTICIPATING IN RIFLE AND PISTOL TEAM COMPETITION.

THE ENCLOSURES INDICATE THAT SUCH ADMINISTRATIVE DETERMINATION WAS BASED UPON THE VIEW THAT RIFLE AND DRILL COMPETITIONS CONSTITUTE VOLUNTARY EXTRACURRICULAR ACTIVITIES OF ROTC MEMBERS AND DO NOT QUALIFY AS "FIELD TRAINING" UNDER 10 U.S.C. 2109(B)(1); THAT ORDERS FOR TRAVEL INCIDENT THERETO AT GOVERNMENT EXPENSE MAY NOT BE ISSUED AND, THEREFORE, TEMPORARY DUTY ALLOWANCES MAY NOT BE PAID CADETS UNDER PARAGRAPH M6005-4B OF THE JOINT TRAVEL REGULATIONS AUTHORIZING TRAVEL EXPENSES INCIDENT TO TEMPORARY DUTY ON OFFICIAL BUSINESS OF THE UNITED STATES; AND THAT THE FURNISHING OF TRANSPORTATION TO AND FROM INSTALLATIONS MAY BE LIMITED BY THE PROVISIONS OF 10 U.S.C. 2110(C), AUTHORIZING TRANSPORTATION OF ROTC MEMBERS TO AND FROM INSTALLATIONS WHEN IT IS NECESSARY FOR THEM TO MAKE "VISITS OF OBSERVATIONS."

IT IS FURTHER SHOWN IN THE LETTER OF JUNE 29, 1970, THAT INSTRUCTIONS TO SUBORDINATE COMMANDS CONCERNING TRAVEL ALLOWANCE ENTITLEMENTS OF ROTC MEMBERS WERE BASED ON THE INTERPRETATION BY THE COMPTROLLER OF THE ARMY AND, IN THIS CONNECTION, REFERENCE WAS MADE TO LETTER DATED APRIL 23, 1970, OF HEADQUARTERS UNITED STATES CONTINENTAL ARMY COMMAND, SUBJECT "PAYMENT OF PER DIEM AND FEES - 1970 NATIONAL RIFLE AND PISTOL MATCHES." SUBPARAGRAPH 2A(4) OF THAT LETTER READS AS FOLLOWS:

NO PER DIEM IS PAYABLE TO ROTC PERSONNEL. TRANSPORTATION REQUESTS AND MEAL TICKETS WILL BE FURNISHED TO AND FROM CAMPSITE. MODIFIED ORDERS FORMAT TC 413 (AR 310-10) WILL BE USED.

IN VIEW OF THE SPECIFIC AUTHORIZATION CONTAINED IN SECTION 629 OF PUBLIC LAW 91-171, HEADQUARTERS UNITED STATES CONTINENTAL ARMY COMMAND IN THAT LETTER REQUESTED THAT THE DEPARTMENT OF THE ARMY PROVIDE A MORE DEFINITIVE INTERPRETATION OF THAT PROVISION OF LAW IN ORDER THAT REVISED GUIDANCE MAY BE ISSUED TO SUBORDINATE COMMANDS.

THE DEPUTY ASSISTANT COMPTROLLER (F&A), FISCAL POLICY, OFFICE OF COMPTROLLER OF THE ARMY, ON JULY 14, 1970, STATED THAT, ALTHOUGH FUNDS FOR TRAVEL OF ROTC MEMBERS TO ATTEND REGIONAL, NATIONAL, AND INTERNATIONAL RIFLE COMPETITION WERE MADE AVAILABLE BY PUBLIC LAW 91 171, AS EXTENDED BY PUBLIC LAW 91-294, 84 STAT. 333, THERE WAS FOUND NO SUBSTANTIVE AUTHORITY FOR ROTC MEMBERS AS SUCH TO TRAVEL IN ORDER TO PARTICIPATE THEREIN UNLESS THE PARTICIPATION WAS TO BE DESIGNATED "FIELD TRAINING" UNDER 10 U.S.C. 2109(B)(1). IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT PARTICIPATION IN RIFLE COMPETITION AND MATCHES BY ROTC MEMBERS IS NOT "FIELD TRAINING" UNDER 10 U.S.C. 2109(B)(1), HE CONCLUDED THAT SUCH MEMBERS MAY NOT BE PLACED IN A TRAVEL STATUS OR BE PAID A TRAVEL ALLOWANCE UNDER 10 U.S.C. 2109 UNLESS AND UNTIL THAT DETERMINATION IS CHANGED.

IN AN OPINION DATED SEPTEMBER 11, 1970, JAGA 1970/4650, HOWEVER, THE JUDGE ADVOCATE GENERAL OF THE ARMY STATES THAT SUBSTANTIVE AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE RESERVE OFFICERS' TRAINING CORPS PARTICIPATING IN THE NATIONAL TROPHY MATCHES APPEARS TO BE CONTAINED IN 10 U.S.C. 4308(A)(8), WHICH CHARGES THE SECRETARY OF THE ARMY WITH THE RESPONSIBILITY OF PROVIDING FOR " *** THE TRANSPORTATION AND SUBSISTENCE, OR AN ALLOWANCE INSTEAD OF SUBSISTENCE, OF MEMBERS OF TEAMS AUTHORIZED BY THE SECRETARY TO PARTICIPATE IN MATCHES OR COMPETITIONS IN THE USE OF RIFLED ARMS." HE ALSO OBSERVED THAT 10 U.S.C. 4312(B), AS IMPLEMENTED BY SUBPARAGRAPH 15D, AR 920-30 DATED JUNE 30, 1967, SPECIFICALLY INCLUDES ROTC MEMBERS AS AUTHORIZED PARTICIPANTS IN THE ANNUAL NATIONAL TROPHY MATCHES SPONSORED BY THE NATIONAL BOARD FOR THE PROMOTION OF RIFLE PRACTICE.

THE JUDGE ADVOCATE GENERAL CONCLUDED THAT, THEREFORE, IT IS NOT NECESSARY TO FIND THAT SUCH PARTICIPATION CONSTITUTES "FIELD TRAINING" UNDER 10 U.S.C. 2109, AND THAT SUCH SEPARATE STATUTORY AUTHORITY COUPLED WITH THE APPROPRIATION AUTHORIZATIONS WOULD APPEAR TO PERMIT PAYMENT OF TRANSPORTATION AND TRAVEL ALLOWANCES ON A COMMUTED BASIS. HOWEVER, DOUBT IS EXPRESSED AS TO WHETHER THE FULL TRAVEL AND SUBSISTENCE ALLOWANCES AUTHORIZED BY THE CURRENT PROVISIONS OF THE JOINT TRAVEL REGULATIONS MAY BE PAID OR WHETHER THE PAYMENTS MUST BE LIMITED TO $1.50 PER DAY SUBSISTENCE AND $0.05 PER MILE AS PROVIDED BY 10 U.S.C. 4313.

WE FIND NOTHING IN THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063, 10 U.S.C. 2101-2111, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD SERVE AS AUTHORITY FOR THE PAYMENT OF TRANSPORTATION, TRAVEL, SUBSISTENCE OR OTHER ALLOWANCES TO ROTC MEMBERS AS SUCH WHO PARTICIPATE IN RIFLE MATCHES, WHICH ACTIVITIES ARE PURELY VOLUNTARY ON THE PART OF ROTC MEMBERS AND ARE NOT CONSIDERED TO COME UNDER THE TERM "FIELD TRAINING" AS USED IN 10 U.S.C. 2109(B)(1).

IT IS OUR VIEW, ALSO, THAT PARTICIPATION IN RIFLE MATCHES IS IN NO SENSE LIMITED TO OBSERVATION AND HENCE ATTENDANCE AT THE RIFLE MATCHES MAY NOT BE CONSTRUED AS "VISITS OF OBSERVATION" TO SUPPORT TRANSPORTATION ENTITLEMENTS UNDER 10 U.S.C. 2110(C).

WE CONCUR WITH THE CONCLUSION OF THE JUDGE ADVOCATE GENERAL THAT 10 U.S.C. 4308(A)(8) GRANTS AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE ROTC PARTICIPATING IN NATIONAL TROPHY MATCH COMPETITIONS. ALSO, AS STATED BY THE JUDGE ADVOCATE GENERAL, FUNDS HAVE BEEN MADE AVAILABLE FOR THE AUTHORIZED TRANSPORTATION OF MEMBERS OF ROTC TEAMS BY PROVISIONS IN ANNUAL APPROPRIATION ACTS. SEE, IN THIS CONNECTION 38 COMP. GEN. 873, 875 (1959).

THE CURRENT PROVISION OF LAW IMPLEMENTING 10 U.S.C. 4308(A)(8) INSOFAR AS MEMBERS OF ROTC RIFLE AND PISTOL TEAMS ARE CONCERNED IS SECTION 829, TITLE VIII, "GENERAL PROVISIONS," DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1971, APPROVED JANUARY 11, 1971, 84 STAT. 2035, WHICH IN PERTINENT PART READS AS FOLLOWS:

SUCH APPROPRIATIONS OF THE DEPARTMENT OF DEFENSE AVAILABLE FOR OBLIGATION DURING THE CURRENT FISCAL YEAR AS MAY BE DESIGNATED BY THE SECRETARY OF DEFENSE SHALL BE AVAILABLE FOR THE TRAVEL EXPENSES OF MILITARY AND NAVAL PERSONNEL, INCLUDING THE RESERVE COMPONENTS, AND MEMBERS OF THE RESERVE OFFICER'S TRAINING CORPS ATTENDING REGIONAL, NATIONAL, OR INTERNATIONAL RIFLE MATCHES.

SINCE PARTICIPATION IN RIFLE TEAM ACTIVITIES BY ROTC MEMBERS HAS BEEN ADMINISTRATIVELY DETERMINED TO BE A VOLUNTARY EXTRACURRICULAR ACTIVITY AND NOT "FIELD TRAINING," THERE IS NO LEGAL BASIS TO CONSIDER MEMBERS OF THE ROTC AS BEING MILITARY MEMBERS IN A TEMPORARY DUTY STATUS WHILE PARTICIPATING IN RIFLE MATCHES. CONSEQUENTLY, IN OUR OPINION THEY ARE NOT ENTITLED TO THE TEMPORARY DUTY TRAVEL ALLOWANCES PRESCRIBED IN CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS.

THE PROVISIONS OF 10 U.S.C. 4308 DIRECT THE SECRETARY OF THE ARMY, UNDER REGULATIONS RECOMMENDED BY THE NATIONAL BOARD FOR THE PROMOTION OF RIFLE PRACTICE APPROVED BY HIM, TO PROVIDE:

(8) THE TRANSPORTATION OF EMPLOYEES, INSTRUCTORS, AND CIVILIANS TO GIVE OR RECEIVE INSTRUCTION OR TO ASSIST OR ENGAGE IN PRACTICE IN THE USE OF RIFLED ARMS, AND THE TRANSPORTATION AND SUBSISTENCE, OR AN ALLOWANCE INSTEAD OF SUBSISTENCE, OF MEMBERS OF TEAMS AUTHORIZED BY THE SECRETARY TO PARTICIPATE IN MATCHES OR COMPETITIONS IN THE USE OF RIFLED ARMS.

PROVISION IS MADE IN 10 U.S.C. 4313 FOR TRAVELING EXPENSES AND SUBSISTENCE OF COMPETITORS AT NATIONAL MATCHES, AS FOLLOWS:

(A) COMPETITORS AT THE NATIONAL MATCHES UNDER SECTION 4312 OF THIS TITLE MAY DRAW NOT MORE THAN $1.50 A DAY AS A SUBSISTENCE ALLOWANCE. IF MEALS ARE FURNISHED, A SUM NOT TO EXCEED $1.50 PER MAN PER DAY MAY BE SPENT FOR THAT PURPOSE WHILE THE CONTEST IS IN PROGRESS.

(B) A TRAVEL ALLOWANCE OF FIVE CENTS A MILE MAY BE PAID TO A CIVILIAN COMPETITOR INSTEAD OF TRAVELING EXPENSES AND SUBSISTENCE WHILE TRAVELING, AND THE ALLOWANCE FOR THE RETURN TRIP MAY BE PAID IN ADVANCE.

SINCE PARTICIPATION OF ROTC RIFLE TEAMS IN NATIONAL MATCHES IS NEITHER MILITARY TRAINING NOR PART OF THE ROTC CURRICULUM, BUT IS PERFORMED ON A VOLUNTARY EXTRACURRICULAR ACTIVITY BASIS, IT IS OUR OPINION, AND APPARENTLY THAT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, THAT ROTC MEMBERS OF RIFLE TEAMS PARTICIPATING IN NATIONAL MATCHES SHOULD BE CONSIDERED TO HAVE THE SAME STATUS AS CIVILIANS WITHIN THE MEANING OF 10 U.S.C. 4313 SO AS TO BE ENTITLED TO A TRAVEL ALLOWANCE OF $0.05 A MILE INSTEAD OF TRAVELING EXPENSES AND SUBSISTENCE WHILE TRAVELING, AND AN ALLOWANCE OF NOT MORE THAN $1.50 A DAY FOR SUBSISTENCE OR MEALS WHILE PARTICIPATING IN THE NATIONAL MATCHES, THE COST OF WHICH MAY NOT EXCEED $1.50 A DAY. YOUR QUESTION IS ANSWERED ACCORDINGLY.

THE ABOVE-CITED OPINION OF THE JUDGE ADVOCATE GENERAL RELATES TO TRAVEL INCIDENT TO NATIONAL MATCHES ONLY, AND NOT TO REGIONAL OR INTERNATIONAL MATCHES, INASMUCH AS 10 U.S.C 4313 IS RESTRICTED TO NATIONAL MATCHES. FOR THE SAME REASON THIS DECISION APPLIES ONLY TO PARTICIPATION IN NATIONAL MATCHES. IN THIS REGARD, ALSO, THE CORRESPONDENCE FORWARDED WITH THE DEPUTY ASSISTANT SECRETARY'S LETTER INDICATES THAT THE QUESTION INVOLVED RELATES SOLELY TO NATIONAL MATCHES USUALLY HELD AT CAMP PERRY, OHIO. MAY BE NOTED, HOWEVER, THAT PROVISION IS MADE IN 10 U.S.C. 4308(A)(8) FOR LIKE BENEFITS WITH RESPECT TO OTHER MATCHES OR COMPETITIONS IN THE USE OF RIFLED ARMS UNDER REGULATIONS APPROVED BY THE SECRETARY OF THE ARMY UPON RECOMMENDATION OF THE NATIONAL BOARD FOR THE PROMOTION OF RIFLE PRACTICE. WE ARE NOT AWARE OF ANY REGULATIONS PROVIDING THEREFOR.