B-181710, APR 2, 1975

B-181710, APR 2, 1975

A MEMBER OF THE ARMED SERVICES WHO IS RECEIVING A STATION HOUSING ALLOWANCE AND COST-OF-LIVING ALLOWANCE WHILE ON AN UNACCOMPANIED TOUR OF DUTY IN KOREA BECAUSE HIS DEPENDENTS REMAIN AT HIS FORMER DUTY STATION IN ALASKA IS NOT ENTITLED TO CONTINUE TO RECEIVE THOSE ALLOWANCES DURING PERIODS OF EXCESS LEAVE EVEN THOUGH PARAGRAPH 10304, DODPM, DOES NOT INCLUDE THOSE ALLOWANCES IN THE DEFINITION OF FULL PAY AND ALLOWANCES BECAUSE THEY ARE CONSIDERED ALLOWANCES FOR PURPOSES OF THE CONTROLLING PROVISION OF LAW, 37 U.S.C. SEC. 502(B).

STATION HOUSING AND COST-OF-LIVING ALLOWANCES DURING EXCESS LEAVE - SERGEANT FIRST CLASS ANTONIO C. VARGAS:

LIEUTENANT COLONEL A.C. SAMARKOS, DIVISION FINANCE OFFICER, 101ST AIRBORNE DIVISION, UNITED STATES ARMY, HAS REQUESTED AN ADVANCE DECISION ON A CLAIM PRESENTED TO HIM FOR PAYMENT BY SERGEANT FIRST CLASS ANTONIO C. VARGAS. THE REQUEST HAS BEEN APPROVED, AS REQUIRED BY DEPARTMENT OF DEFENSE DIRECTIVE 5154.13, DATED MAY 1, 1958, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AND HAS BEEN ASSIGNED PDTATAC CONTROL NO. 74-27 BY THE COMMITTEE.

ACCORDING TO THE MEMBER'S APPLICATION FOR ARREARS IN PAY, HE WAS STATIONED IN KOREA FROM JANUARY 12, 1973, THROUGH DECEMBER 21, 1973. DURING THAT TIME HIS DEPENDENTS REMAINED IN ALASKA, THE LOCATION OF THE MEMBER'S PRIOR DUTY STATION. IN THOSE CIRCUMSTANCES HE WAS AUTHORIZED A STATION HOUSING ALLOWANCE AND A COST-OF-LIVING ALLOWANCE FOR THAT PERIOD BASED ON THE FACT THAT HIS FAMILY RESIDED IN ALASKA WHILE HE WAS ON AN UNACCOMPANIED TOUR IN KOREA. THE CLAIM ARISES BECAUSE THE MEMBER WAS IN AN EXCESS LEAVE STATUS FOR THE PERIOD AUGUST 16-17, 1973, AND DECEMBER 22- 31, 1973, WHICH RESULTED IN THE COLLECTION OF ALL PAY AND ALLOWANCES INCLUDING THE STATION ALLOWANCES (I.E., STATION HOUSING ALLOWANCE AND COST -OF-LIVING ALLOWANCE).

THE MEMBER, IN SUPPORT OF HIS CLAIM, CITES PARAGRAPH 10304 OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM). THAT PARAGRAPH DEFINES "FULL PAY AND ALLOWANCES" AS:

"(1) BASIC PAY.

"(2) SPECIAL PAYS.

"(3) INCENTIVE PAY FOR HAZARDOUS DUTY.

"(4) BASIC ALLOWANCES FOR SUBSISTENCE (ENLISTED LEAVE RATIONS) AND QUARTERS.

"(5) PERSONAL MONEY ALLOWANCES.

"(6) CLOTHING MAINTENANCE ALLOWANCES.

"(7) FAMILY SEPARATION ALLOWANCES."

PARAGRAPH 10305 REQUIRES THE COLLECTION OF PAY AND ALLOWANCE FROM A MEMBER WHEN ADVANCE LEAVE BECOMES EXCESS LEAVE. FURTHER, PARAGRAPH 10306 STATES THAT MEMBERS ON EXCESS LEAVE ARE NOT ENTITLED TO PAY AND ALLOWANCES. THE MEMBER CONTENDS IN EFFECT THAT, SINCE STATION ALLOWANCES ARE NOT INCLUDED IN THE QUOTED DEFINITION OF "FULL PAY AND ALLOWANCES," STATION ALLOWANCES ARE NOT TO BE COLLECTED FOR PERIODS OF EXCESS LEAVE.

THE STATUTORY BASIS FOR THE COLLECTION OF PAY AND ALLOWANCES WHEN ADVANCE LEAVE BECOMES EXCESS LEAVE IS SECTION 502(B) OF TITLE 37, U.S.C. WHICH STATES IN PERTINENT PART THAT:

"*** A MEMBER WHO IS AUTHORIZED BY THE SECRETARY CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, TO BE ABSENT FOR A PERIOD THAT IS LONGER THAN THE LEAVE AUTHORIZED BY SECTION 701 OF TITLE 10 IS NOT ENTITLED TO PAY OR ALLOWANCES DURING THE PART OF HIS ABSENCE THAT IS MORE THAN THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THAT SECTION."

THE STATUTORY AUTHORIZATION FOR PAYMENT OF STATION ALLOWANCES IS FOUND IN SECTION 405 OF TITLE 37, PROVIDING 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 THE 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. *** A STATION HOUSING ALLOWANCE MAY BE PRESCRIBED UNDER THIS SECTION WITHOUT REGARD TO COSTS OTHER THAN HOUSING COSTS AND MAY CONSIST OF THE DIFFERENCE BETWEEN BASIC ALLOWANCE FOR QUARTERS AND APPLICABLE HOUSING COST. HOUSING COST AND ALLOWANCE MAY BE DISREGARDED IN PRESCRIBING A STATION COST OF LIVING ALLOWANCE UNDER THIS SECTION."

WHILE PARAGRAPH 10304, DODPM, DOES NOT LIST STATION ALLOWANCES, SUCH ALLOWANCES ARE LISTED IN PARAGRAPH 30401 OF THE MANUAL. THE APPARENT REASON FOR THE FAILURE TO LIST THESE ALLOWANCES IN PARAGRAPH 10304 IS THAT THEY ARE AUTHORIZED BY 37 U.S.C. SEC. 405 AND AS SUCH ARE CONSIDERED TRAVEL ITEMS AND ARE COVERED BY THE JOINT TRAVEL REGULATIONS RATHER THAN THE DODPM. HOWEVER, REGARDLESS OF THE WORDING IN THE DODPM, 37 U.S.C. SEC. 502(B) (1970) PROVIDES THAT A MEMBER IN AN EXCESS LEAVE STATUS IS NOT ENTITLED TO PAY OR ALLOWANCES. WHILE THE TERM "ALLOWANCES" IS UNDEFINED FOR PURPOSES OF 37 U.S.C. SEC. 502(B), THERE SEEMS TO BE NO BASIS ON WHICH TO CONCLUDE THAT THE PAYMENTS PROVIDED FOR IN 37 U.S.C. SEC. 405 (1970) ARE NOT "ALLOWANCES" WITHIN THE MEANING OF SEC. 502(B). IN THAT CONNECTION 37 U.S.C. SEC. 502(A) (1970) PROVIDES THAT A MEMBER DIRECTED TO BE ABSENT FROM DUTY TO AWAIT DISABILITY RETIREMENT PROCEEDINGS FOR A PERIOD LONGER THAN THE NUMBER OF DAYS OF HIS AUTHORIZED LEAVE "IS ENTITLED TO THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF HE WERE NOT SO ABSENT." IT WAS HELD THAT A MEMBER IN THOSE CIRCUMSTANCES WAS ENTITLED TO CONTINUE TO RECEIVE HOUSING AND COST-OF-LIVING ALLOWANCES. 42 COMP. GEN. 689 (1963). WE SEE NO REASON FOR DISTINGUISHING IN THIS RESPECT, BETWEEN THE USE OF THE TERM "ALLOWANCE" IN 37 U.S.C. SEC. 502(A) AND IN 37 U.S.C. SEC. 502(B).

THEREFORE, WE CONCLUDE THAT, IN VIEW OF THE CLEAR LANGUAGE AND INTENT OF THE APPLICABLE STATUTES, PARAGRAPH 10306 MUST BE UNDERSTOOD TO INCLUDE STATION ALLOWANCES IN THE TERM "PAY AND ALLOWANCES."

ACCORDINGLY, COLLECTION OF THE MEMBER'S STATION ALLOWANCES FOR THE PERIODS OF EXCESS LEAVE WAS PROPER AND HIS APPLICATION FOR ARREARS IN PAY SHOULD BE DENIED.