B-156387, MAY 3, 1965, 44 COMP. GEN. 670

B-156387, MAY 3, 1965, 44 COMP. GEN. 670

MILITARY PERSONNEL - MOBILE UNIT STATUS - PAY AND ALLOWANCE ENTITLEMENT. QUARTERS ALLOWANCE - ENTITLEMENT - SHIP AND SHORE BASED UNITS THE HOLDING IN 44 COMP. GEN. 105 (1964) THAT MEMBERS OF FLEET AVIATION SQUADRONS WHETHER SHORE-BASED OR SHIP-BASED WHILE TEMPORARILY AWAY FROM THE BASE OF THE SQUADRON ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHEN THE MEMBER IS NOT ENTITLED TO SEA DUTY PAY AND GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR THE MEMBER'S OCCUPANCY IS NOT INTENDED TO PRECLUDE ENTITLEMENT TO QUARTERS ALLOWANCE BY OFFICERS ASSIGNED TO A SHORE-BASED MOBILE UNIT WHEN ADEQUATE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR HIM AT THAT PERMANENT DUTY STATION ASHORE. A REVISION OF NAVY INSTRUCTIONS TO REFLECT THAT DUTY WITH MOBILE UNITS IS SHORE DUTY FOR DETERMINING ENTITLEMENT TO PAY AND RELATED ALLOWANCES, TRAVEL ALLOWANCES, AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AND TO SUBSTITUTE FOR THE TERMS "FLEET UNITS" OR "FLEET CTIVITIES" WHETHER THE UNIT IS PRIMARILY BASED ASHORE OR AFLOAT IS WITHIN THE AUTHORITY OF THE SECRETARY IN 37 U.S.C. 411 (D) TO DEFINE "PERMANENT STATION," WHICH DEFINITION INCLUDES A SHORE STATION OR HOME YARD OR HOME PORT OF A VESSEL, AND THE DECISIONS OF THE COMPTROLLER GENERAL BASED ON WHETHER MEMBERS WERE SHIP-BASED OR SHORE-BASED FOR THEIR BASIC DUTY ASSIGNMENT, OR ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, OR WHETHER QUARTERS WERE AVAILABLE AT THEIR PERMANENT OR TEMPORARY DUTY STATIONS WOULD NOT REQUIRE ANY MODIFICATION AS A RESULT OF THE RECLASSIFICATION OF THE MOBILE UNITS FOR SEA DUTY PURPOSES.

TO THE SECRETARY OF THE NAVY, MAY 3, 1965:

REFERENCE IS MADE TO LETTER DATED MARCH 22, 1965, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION WHETHER WE WOULD BE REQUIRED TO OBJECT TO A PROPOSED REVISION OF CURRENT INSTRUCTIONS TO REFLECT THE FACT THAT DUTY WITH MOBILE UNITS IS SHORE DUTY FOR PURPOSES OF DETERMINING ENTITLEMENT TO PAY AND RELATED ALLOWANCES, TRAVEL ALLOWANCES AND TRANSPORTATION OF HOUSEHOLD GOODS. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. SS-N-825 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MATTER WAS DISCUSSED AT A CONFERENCE HELD HERE ON APRIL 1, 1965, BETWEEN REPRESENTATIVES OF THE DEPARTMENT OF THE NAVY AND REPRESENTATIVES OF OUR OFFICE.

IT IS STATED IN THE UNDER SECRETARY'S LETTER THAT MOBILE UNITS INCLUDE AVIATION SQUADRONS, MOBILE CONSTRUCTION BATTALIONS, MOBILE ELECTRONICS TRAINING UNITS, MOBILE PHOTOGRAPHIC UNITS AND THE LIKE, BUT DO NOT INCLUDE FLEET STAFFS OR OTHER PERSONNEL PERMANENTLY ASSIGNED TO SHIPS. THE DISCUSSION IN THE SUBMISSION IS SAID TO BE LIMITED TO AIRCRAFT SQUADRONS AS REPRESENTATIVE OF THE SITUATION IN THE CASE OF ALL THESE MOBILE UNITS. THE UNDER SECRETARY STATES THAT MOBILE UNITS ARE ASSIGNED PERMANENT DUTY STATIONS AT SPECIFIC LOCATIONS ASHORE AND THAT, WHILE UNITS OR DETACHMENTS THEREOF MAY BE TEMPORARILY DEPLOYED AWAY FROM SUCH STATIONS FOR VARYING PERIODS OF TIME AND TO VARIOUS PLACES, EACH SUCH DEPLOYMENT IS THE RESULT OF AN ORDER DIRECTING THE DEPLOYMENT REQUIRING DEPARTURE FROM AND RETURN TO THE PERMANENT STATION. IN THIS RESPECT, THE NAVY UNITS ARE SAID TO BE SIMILAR TO ARMY, AIR FORCE AND MARINE CORPS UNITS WHICH OPERATE ON A MOBILE BASIS.

DUTY ASSIGNED NAVY MEMBERS, THE UNDER SECRETARY SAYS, IS CLASSIFIED AS SEA OR SHORE DUTY IN AN ATTEMPT TO MAINTAIN EQUITY AS FAR AS POSSIBLE IN TYPES OF DUTY ASSIGNMENTS AND THAT, FOR ROTATIONAL PURPOSES, CERTAIN DUTY WITH CERTAIN MOBILE UNITS HAS BEEN ADMINISTRATIVELY CLASSIFIED AS SEA DUTY ALTHOUGH SUCH DUTY MAY NEVER REQUIRE MEMBERS TO GO ABOARD SHIPS. IT IS ALSO STATED THAT OVER A PERIOD OF TIME THE ADMINISTRATIVE CLASSIFICATION OF DUTY AS EITHER SEA DUTY OR SHORE DUTY FOR ROTATIONAL PURPOSES HAS BECOME ACCEPTED AS REPRESENTATIVE OF THE DUTY WHEN IN FACT SUCH CLASSIFICATION IS AN ADMINISTRATIVE CONVENIENCE WHICH FINDS NO REQUIREMENT IN LEGISLATION OR EXECUTIVE ORDER. THE TERMS "FLEET UNITS," OR "FLEET ACTIVITIES" THE UNDER SECRETARY SAYS, ARE COMMONLY UTILIZED TO DESCRIBE SHIPS AND MOBILE UNITS FOR ADMINISTRATIVE AND OPERATIONAL PURPOSES AND HE REFERS TO AN ENCLOSED COPY OF A LETTER FROM THE CHIEF OF NAVAL PERSONNEL TO THE COMPTROLLER OF THE NAVY DATED JANUARY 14, 1964, TO THE EFFECT THAT THESE TERMS ENCOMPASS A MULTITUDE OF UNITS WHICH MAY BE BASED EITHER ASHORE OR AFLOAT AND DO NOT PROVIDE AN INDICIUM FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO THE VARIOUS ALLOWANCES AND RECOMMENDS REMOVAL OF SUCH TERMS FROM THE NAVY COMPTROLLER MANUAL AND THE NAVY TRAVEL INSTRUCTIONS.

IT IS PROPOSED TO REVISE OPNAV INSTRUCTION P3111.14H TO SEPARATELY LIST MOBILE UNITS WITH PERMANENT STATIONS ASHORE AND TO ISSUE SUPPLEMENTARY DIRECTIVES REQUIRING THAT ENTITLEMENT DETERMINATIONS AFFECTING ALL PAY, ALLOWANCES AND TRAVEL ALLOWANCES FOR MEMBERS ATTACHED TO MOBILE UNITS BE EFFECTED IN THE SAME MANNER AS FOR OTHER PERSONNEL ASSIGNED TO PERMANENT STATIONS ASHORE. IT IS ALSO PROPOSED TO MAKE APPROPRIATE CHANGES TO THE NAVY COMPTROLLER MANUAL AND THE NAVY TRAVEL INSTRUCTIONS AND TO REQUEST THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TO REMOVE PARAGRAPH 7066 FROM THE JOINT TRAVEL REGULATIONS AND TO SUBSTITUTE THE APPROPRIATE TERMS FOR "FLEET UNITS" OR "FLEET ACTIVITIES" WHERE APPEARING THEREIN. THE UNDER SECRETARY ASKS, IF WE CONCUR IN THE NAVY DEPARTMENT'S VIEW AND THE PROPOSED REVISION OF THE REGULATIONS AND INSTRUCTIONS, THAT OUR PREVIOUS DECISIONS IN THIS AREA, CITED IN HIS LETTER AND ALSO LISTED IN ENCLOSURE (1), WHICH ARE IN CONFLICT BE MODIFIED ACCORDINGLY. HE ALSO REQUESTS THAT PREVIOUS PAYMENTS OF THE ALLOWANCES WHICH HAVE BEEN MADE IMPROPERLY SOLELY ON THE BASIS OF INCONSISTENT OR IMPROPER DETERMINATIONS OF WHETHER DUTY WAS SEA DUTY OR SHORE DUTY NOT BE DISTURBED.

UNDER THE PROVISIONS OF SECTION 411 (D) OF TITLE 37, UNITED STATES CODE, THE SECRETARIES CONCERNED ARE AUTHORIZED TO DEFINE THE WORDS "PERMANENT STATION" WHICH DEFINITION SHALL INCLUDE A SHORE STATION OR THE HOME YARD OR HOME PORT OF A VESSEL TO WHICH A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY MAY BE ORDERED. PURSUANT TO THAT AUTHORITY, PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT STATION," TO MEAN "* * * THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME PORT OR HOME YARD OF A VESSEL INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY" * * *.' THE STATUTORY AUTHORITY AND REGULATIONS WITH RESPECT TO ENTITLEMENT TO PAY AND ALLOWANCES OF THE TYPES CONSIDERED HERE, NAMELY, SEA PAY, BASIC ALLOWANCE FOR QUARTERS, DEPENDENT TRAVEL ALLOWANCES, PER DIEM AND SHIPMENT OF HOUSEHOLD EFFECTS, GENERALLY ARE CONTAINED IN CHAPTERS 5 AND 7 OF TITLE 37, U.S.C. EXECUTIVE ORDER 11157, DATED JUNE 22, 1964, AND CHAPTERS 4 THROUGH 10 OF THE JOINT TRAVEL REGULATIONS. AS POINTED OUT IN THE UNDER SECRETARY'S LETTER, HOWEVER, ENTITLEMENT TO THESE ALLOWANCES VARIES DEPENDENT UPON WHETHER A MEMBER IS ON SEA DUTY OR SHORE DUTY. THE TERM "SEA DUTY" AS DEFINED IN SECTION 202 (A) (1) OF EXECUTIVE ORDER 11157, INCLUDES, AMONG OTHER THINGS, DUTY PERFORMED BY ENLISTED MEMBERS WHILE PERMANENTLY ASSIGNED TO A "SHIP-BASED AVIATION UNIT" AND IN THIS RESPECT, THE UNDER SECRETARY SAYS THE NAVY CURRENTLY HAS NO AVIATION UNITS WHICH ARE SHIPBASED. ALSO, THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES FOR PAYMENT, UNDER REGULATIONS OF THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. A MEMBER'S DESIGNATED POST OF DUTY IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS TO BE PERFORMED AND THE PLACE TO WHICH HE MUST PROCEED OR RETURN UPON COMPLETION OF TEMPORARY ASSIGNMENTS OR OTHER ABSENCES FROM HIS NORMAL DUTIES, OR FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ASSIGNED TO A VESSEL, THE HOME PORT OR HOME YARD OF THE VESSEL; AND, EXCEPT AS MAY BE OTHERWISE AUTHORIZED BY STATUTE, ADMINISTRATIVE REGULATIONS ISSUED UNDER THE CITED STATUTORY PROVISION MUST BE APPLIED WITHIN THAT LIMITATION. SEE 38 COMP. GEN. 656, AND 41 COMP. GEN. 726.

IN THE DECISIONS CITED IN THE UNDER SECRETARY'S LETTER WHICH INVOLVED PAYMENTS OF PER DIEM, DEPENDENT TRAVEL AND QUARTERS ALLOWANCES, WE NECESSARILY WERE REQUIRED TO BASE OUR CONCLUSIONS ON WHAT APPEARED TO BE THE FACTUAL SITUATION AS PRESENTED IN EACH CASE IN DETERMINING WHETHER THE MOBILE UNIT WAS SHIP-BASED OR SHORE-BASED. FOR EXAMPLE, IN THE DECISION OF JULY 30, 1962, 42 COMP. GEN. 65, INVOLVING THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO AN OFFICER, WE WERE REQUIRED TO HOLD, ON THE BASIS OF THE RECORD BEFORE US (WHICH INCLUDED A COPY OF A LETTER DATED JUNE 23, 1961, FROM THE COMPTROLLER OF THE NAVY TO THE DISBURSING OFFICER AT NAVAL AIR STATION NO. 14 TO THE EFFECT THAT THE SQUADRON WAS NOT A FLEET SHORE ACTIVITY FOR ROTATION PURPOSES) AND PARAGRAPH 044035-4 (B) OF THE NAVY COMPTROLLER MANUAL, THAT THE OFFICER WAS ASSIGNED TO A UNIT WHICH WAS A FLEET ACTIVITY AND THAT HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS WAS FOR DETERMINATION ON THE SAME BASIS AS THAT OF A MEMBER SERVING ON A VESSEL. IN THE LIGHT OF THE PROVISIONS OF PARAGRAPH 7066, JOINT TRAVEL REGULATIONS, TO THE EFFECT THAT A MOBILE UNIT WITH AN ASSIGNED HOME YARD OR HOME PORT HAS THE SAME STATUS AS A VESSEL WITH AN ASSIGNED HOME PORT OR HOME YARD FOR PURPOSES OF DEPENDENT TRAVEL AND THE FACTUAL INFORMATION AVAILABLE TO US, WE CONCLUDED IN THE DECISION OF SEPTEMBER 18, 1962, 42 COMP. GEN. 167, THAT THE MOBILE UNIT IN THAT CASE WAS ESSENTIALLY A SHIP- BASED FLEET ACTIVITY AND, THEREFORE, ENTITLEMENT TO DEPENDENT TRAVEL BECAME FIXED ON THE EFFECTIVE DATE OF THE ORDERS DIRECTING THE CHANGE OF STATION OF THE MOBILE UNIT. THERE WAS NOT INVOLVED IN THE DECISION OF JULY 22, 1963, 43 COMP. GEN. 73, THE QUESTION OF WHETHER THE MOBILE UNIT WAS SHORE-BASED OR SHIP-BASED. RATHER, ON THE REPORTED FACTS THE DECISION RECOGNIZED THAT THE SQUADRON WAS A SHORE-BASED MOBILE UNIT AND, CONSEQUENTLY, FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO TRAVEL ALLOWANCES (PER DIEM), IT WAS NECESSARY TO DETERMINE WHEN THE CHANGE IN THE MEMBER'S BASIC DUTY ASSIGNMENT ACTUALLY TOOK PLACE AND WE CONCLUDED THAT THE EFFECTIVE DATE OF A PERMANENT CHANGE OF STATION OF A MEMBER ASSIGNED TO THE SHORE-BASED MOBILE UNIT FOR TRAVEL AND TRANSPORTATION ALLOWANCES IS THE DATE FOLLOWING THE ANNOUNCEMENT OF THE CHANGE ON WHICH THE MEMBER IS REQUIRED TO COMMENCE TRAVEL TO THE NEW STATION FOR THE PURPOSE OF THEREAFTER REMAINING AT AND PERFORMING HIS NORMAL DUTIES AT THE NEW STATION.

THE DEPARTMENT OF THE NAVY REPRESENTATIVES AT THE CONFERENCE HELD HERE ON APRIL 1, 1965, REQUESTED A CLARIFICATION OF THAT PART OF OUR DECISION OF AUGUST 27, 1964, B-154522, 44 COMP. GEN. --, IN ANSWERS TO QUESTIONS 3, 4 AND 5, WHICH READS AS FOLLOWS:

"AS INDICATED IN THAT DECISION (JULY 30, 1962, 42 COMP. GEN. 65) IT IS OUR OPINION THAT IN VIEW OF THE OPERATIONAL REQUIREMENTS OF FLEET AVIATION SQUADRONS AND UNITS AND THE NAVY PRACTICE OF ASSIMILATING THESE ORGANIZATIONS TO SHIPS FOR DUTY ASSIGNMENT PURPOSES, MEMBERS ATTACHED TO SUCH SQUADRONS OR UNITS ARE TO BE REGARDED AS ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS ON THE SAME BASIS AS MEMBERS ATTACHED TO A SHIP REGARDLESS OF WHETHER THE SQUADRON OR UNIT IS SHIP BASED OR SHORE-BASED.

THE ABOVE QUESTIONS 3, 4 AND 5, AS WE UNDERSTOOD THEM, CONCERNED THE CREDITING OF BASIC ALLOWANCE FOR QUARTERS AT THE SINGLE RATES TO OFFICERS TEMPORARILY SERVING ASHORE AWAY FROM THEIR PERMANENT STATIONS WHILE ATTACHED TO FLEET AVIATION SQUADRONS OR UNITS WHICH OPERATE AT SEA AND TO THOSE UNITS WHICH ARE ADMINISTRATIVELY CLASSIFIED AS SEA DUTY BUT DO NOT OPERATE AT SEA FROM SHIPS. IN ARRIVING AT THE ANSWER TO THOSE QUESTIONS, WE VIEWED THE NAVY'S PRACTICE OF ASSIMILATING THE SHORE-BASED UNITS TO SHIP-BASED ORGANIZATIONS AND THE SIMILAR OPERATIONAL REQUIREMENTS OF SUCH UNITS AS REFLECTING THAT QUARTERS WERE AVAILABLE FOR MEMBERS OF SHORE- BASED UNITS AT THEIR PERMANENT STATIONS JUST AS THEY WOULD BE ABOARD SHIP. WE CONCLUDED, THEREFORE, THAT THE RIGHT TO BASIC ALLOWANCE FOR QUARTERS OF MEMBERS ATTACHED TO SUCH SQUADRONS OR UNITS, WHETHER SHORE- BASED OR SHIP-BASED, WHILE TEMPORARILY AWAY FROM THE BASE OF THE SQUADRON OR UNIT ARE GOVERNED BY PARAGRAPH 044036-1 (D) (3) OF THE NAVY COMPTROLLER MANUAL, AND THAT SINCE THE SHIP OR SHORE STATION, AS THE CASE MAY BE, IS THE MEMBER'S PERMANENT DUTY STATION, HE MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS FOR ANY PERIOD OF TEMPORARY ABSENCE FROM THAT PERMANENT DUTY STATION WHEN HE IS NOT ENTITLED TO SEA DUTY PAY AND NO GOVERNMENT QUARTERS ARE AVAILABLE FOR HIS OCCUPANCY.

THE DECISION OF AUGUST 27, 1964, WAS NOT INTENDED TO PRECLUDE ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS TO AN OFFICER ASSIGNED TO A SHORE-BASED MOBILE UNIT WHEN ADEQUATE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR HIM AT THAT PERMANENT DUTY STATION ASHORE. AS HELD IN THE DECISION, HOWEVER, WHERE THE PERMANENT DUTY STATION OF THE MOBILE UNIT IS ASHORE AND THE MEMBER IS DEPLOYED AWAY FROM THAT STATION ON TEMPORARY ADDITIONAL DUTY, THE MEMBER'S RIGHT TO RECEIVE BASIC ALLOWANCE FOR QUARTERS WHILE AWAY FROM HIS PERMANENT STATION IS GOVERNED BY HIS QUARTERS STATUS AT HIS PERMANENT DUTY STATION.

WE HAVE NO OBJECTION TO THE PROPOSED REVISION OF THE CURRENT INSTRUCTIONS AS SET FORTH IN THE UNDER SECRETARY'S LETTER. ON THE CONTRARY, WE BELIEVE SUCH A REVISION WILL CONTRIBUTE MATERIALLY TO CLARIFYING THE STATUS OF THOSE UNITS FOR PAY AND ALLOWANCE PURPOSES.

WITH RESPECT TO THE REQUEST THAT WE MODIFY OUR DECISIONS THAT MAY BE IN CONFLICT WITH THIS PROPOSAL IT MAY BE NOTED THAT OUR DECISIONS RELATING TO ENTITLEMENT OF MEMBERS ATTACHED TO MOBILE UNITS TO TRAVEL AND QUARTERS ALLOWANCES AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS DO NOT TURN ON THE QUESTION OF WHETHER THE MEMBERS WERE ON "SEA DUTY" FOR ANY PURPOSE. THE ANSWERS IN THE DECISIONS WERE BASED UPON WHETHER, ON THE FACTS AS WE UNDERSTOOD THEM, THE MEMBERS WERE SHIP BASED OR SHORE-BASED FOR PURPOSES OF THEIR BASIC DUTY ASSIGNMENTS OR ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, OR WHETHER QUARTERS WERE AVAILABLE FOR THEM AT THEIR PERMANENT OR TEMPORARY DUTY STATIONS. IN SUCH CIRCUMSTANCES, WE DO NOT BELIEVE THAT A RECLASSIFICATION OF THE MOBILE UNITS FOR SEA DUTY PURPOSES IN LINE WITH THOSE DECISIONS WILL REQUIRE ANY MODIFICATION OF THE DECISIONS. CLEARLY, IN VIEW OF THE ABOVE EXPLANATION OF WHAT WAS INTENDED BY THE ANSWERS TO QUESTIONS 3, 4 AND 5 IN THE DECISION OF AUGUST 27, 1964, NO MODIFICATION OF THAT DECISION WILL BE REQUIRED BECAUSE OF THE RECLASSIFICATION. IF, HOWEVER, THE DEPARTMENT OF THE NAVY BELIEVES THAT ANY OF OUR DECISIONS WAS BASED ON REPRESENTATIONS WHICH DID NOT REFLECT THE TRUE FACTS, THE CASE MAY BE RESUBMITTED FOR FURTHER CONSIDERATION.