to pay had it produced its own sand on the site of the work in which case additional costs of performance would not have been incurred. Also, so far as appears from the present record it may be that Traxler based its price to the contractor in contemplation of paying DavisBacon minimum wages, it being noted that at the outset Traxler actually performed part of its contract with Hyde on the site of the work and paid the minimum rates as required. Although the record does not reveal the terms of the contract between Hyde and Traxler, it is possible that Hyde may be entitled under this contract to reimbursement from Traxler for the adjustment made to Traxler's employees. In either of these situations it appears that there would be no legal obligation on the part of the Government to reimburse the contractor for the wage adjustments made. We do not have sufficient facts before us, in the way of cost estimates and the like, to resolve these questions. We are, therefore, referring the matter back to your Department for appropriate action on the contractor's claim for increased cost of performance. Such action should be taken in accordance with the considerations set forth in this decision and under the equitable adjustment provisions of the contract. See Sunswick Corporation of Delaware v. United States, supra.

Copies of this letter are being furnished to the contractor and to the Secretary of Labor for their information.

[B-151418]

Transportation-Dependents-Military Personnel-Dislocation AlReenlistments-Discharge at Another Station

lowance

An Army member who subsequent to discharge and reenlistment overseas remained at his overseas station sometime before returning to the United States for release but who before the release was effected was reassigned to new station in the United States may have the orders directing a release which was never accomplished regarded as a permanent change of station rather than a transfer to a separation point for discharge and a reenlistment which would preclude entitlement to a dislocation allowance and, therefore, upon transfer to the new permanent duty station the member became entitled to a dislocation allowance.

To Captain R. B. Adams, Department of the Army, July 26, 1963: By 3d indorsement dated April 26, 1963, the Per Diem, Travel and Transportation Allowance Committee forwarded your letter of March 13, 1963, requesting an advance decision as to the propriety of making payment of a dislocation allowance to Specialist 6th Class Jon E. Fink, Regular Army, in the circumstances presented. Your request has been assigned PDTATAC Control No. 63-11.

The inclosures transmitted with the voucher show that on September 1, 1961, the member, who was on duty with the 70th Medical Depot, APO 219, requested permission to be discharged prior to the expiration of his term of service in order to reenlist and be reassigned

to another unit in the United States Army, Europe. He was discharged on October 26, 1961, and he reenlisted at the same station on the next day. Orders of October 27, 1961, assigned him to the 10th General Dispensary, APO 757, for duty, but when he reported at that station there was no vacancy for his grade and MOS. The member consequently returned to his old duty station pending a determination to be made as to his disposition. A letter dated January 22, 1962, Headquarters, U.S. Army, Europe, quoted a Department of the Army message dated January 19, 1962, which stated that the enlisted man's contract of October 27, 1961, could not be voided, but the member could be returned to the continental United States for discharge, if he so desired, and that he could reenlist for any authorized option available at the time of reenlistment. The file indicates that the member agreed to return to the United States for separation, and by Letter Order 02-02, dated February 12, 1962, he was reassigned to the U.S. Army Transfer Station, Fort Hamilton, New York, for processing for separation, to report not later than February 17, 1962. However, by Special Orders No. 61, U.S. Army Personnel Center, Fort Hamilton, New York, dated March 2, 1962, the member was reassigned to U.S. Army Medical Optical and Maintenance Activity, St. Louis, Missouri, for duty. The file also contains a notation that a statement of waiver of separation was not contained in the enlisted man's record upon his arrival at his station in St. Louis, but that he had signed a statement on February 1, 1963, that on or about March 1, 1962, he elected to remain on active duty and that he had waived his right to discharge.

It was stated in the record that the member was returned to the United States at his own request for an early separation and, therefore, in accordance with the principle stated in our decision of May 12, 1959, B-135627, if he had been discharged he would not have been entitled to a dislocation allowance, even though he may have reenlisted without a break in service and then been given a permanent assignment. In view thereof, where the member, upon arriving in the United States, withdrew his request for separation and continued in the service under the existing contract, his entitlement to a dislocation. allowance under orders to his new duty station was considered questionable. Therefore, under the provisions of paragraph 9003-5 of the Joint Travel Regulations and paragraph 12-4c (2), Army Regulations 37-106, payment of the allowance was not made.

The Per Diem, Travel and Transportation Committee, in transmitting your request for an advance decision, states that in its view there is an important difference between the present situation and that considered in the decision referred to above, in that the member in this case exercised his option to continue on active duty and was not separated. Therefore, the orders of March 2, 1962, may be

considered as effecting a permanent change of station from the overseas permanent station to the new permanent station at St. Louis, Missouri.

Under the provisions of 37 U.S.C. 407, a member of the uniformed services whose dependents make an authorized move in connection with his permanent change of station is entitled to a dislocation allowance, except in the case where he is ordered from his home to his first duty station or from his last duty station to his home. Paragraph 9003-5 of the Joint Travel Regulations, promulgated pursuant thereto, provides that a dislocation allowance is not payable incident to travel performed from last duty station in one period of service to the first duty station in another period of service when there was no ordered change of station between these stations. Consistent with that limitation, paragraph 12-4c (2), Army Regulations 37-106, provides that a member ordered from his old permanent station to a transfer activity for discharge or separation who enlists or reenlists at a transfer activity without a break in active service and is assigned a new permanent station is not entitled to payment of the dislocation allowance. However, subparagraph (1) provides that where a member is separated and enlisted or reenlisted at his old permanent station, in the same or a different status, without a break in active service and is immediately reassigned on a permanent change of station, he is entitled to a dislocation allowance.

In our decision of May 12, 1959, B-135627, we stated the general rule that dislocation allowance is not payable to a member ordered from his permanent station to a processing or separation station for discharge who subsequently reenlists without a break in service and is assigned a new permanent station by orders issued at the point of reenlistment. See 36 Comp. Gen. 71 and 38 id. 405. In the present case, however, the member was reenlisted on October 27, 1961, at his old permanent station and he remained at that station for some time prior to his detachment for transfer to the United States. It may therefore be considered that if his reassignment pursuant to Letter Order 02-02, dated February 12, 1962, had been to a permanent station, he would have been entitled to a dislocation allowance under the provisions of paragraph 12-4c(1), Army Regulations 37-106. See B-130003, dated January 14, 1957, and 40 Comp. Gen. 251.

While the orders of February 12, 1962, directed travel to Fort Hamilton for the purpose of release from active duty, such release was not in fact accomplished, those orders in effect being amended by the orders of March 2, 1962, to direct reassignment to a new duty station in St. Louis, Missouri. In those circumstances it may be considered that subsequent to his discharge on October 26 and reenlistment on October 27, 1961, at the 70th Medical Depot, the member was transferred on a permanent change of station to St. Louis, Missouri, by Letter Orders 02-02, issued February 12, 1962, at his old permanent

station, as modified by Special Orders No. 61, dated March 2, 1962, and consequently that such transfer did not involve orders from the member's home to first duty station or from last duty station to his home within the contemplation of the statute. He is therefore entitled to dislocation allowance incident to such transfer.

Payment on the submitted voucher, which is returned herewith, is authorized, if otherwise correct.

[B-151360]

Military Personnel-Cadets, Midshipmen, Etc.-Ration Payment Concurrently With Per Diem

Since the commuted value of rations which cadets and midshipmen at the service academies are entitled to receive without deduction when the ration itself is not furnished is more analogous to the allowance officers are entitled to receive than to the payment for subsistence in kind received by enlisted personnel, the provisions in section 3 (e) of Executive Order No. 10119 precluding enlisted personnel from receiving a ration allowance when they are in a travel status are not applicable to cadets and midshipmen; therefore, when cadets and midshipmen are in a travel status receiving per diem they may also receive the commuted value of the ration when rations are not furnished or when required to pay for meals at officers' closed mess or officers' field ration mess.

To the Secretary of Defense, July 30, 1963:

Reference is made to letter of April 19, 1963, from the Assistant Secretary of Defense (Comptroller) requesting a decision as to whether cadets and midshipmen at the Academies are entitled to the commuted value of the ration while in a travel status entitled to per diem under paragraph 5001 of the Joint Travel Regulations.

The question presented is set forth in Committee Action No. 319 of the Military Pay and Allowance Committee, Department of Defense, as follows:

Is a cadet of the United States Military Academy, the United States Air Force Academy, the Coast Guard Academy, or a midshipman of the United States Naval Academy entitled to the commuted value of the ration while he is in a travel status and

(1) is not furnished rations, or

(2) messes at an officer's closed mess or officer's field ration mess but is required to pay for his meals?

A discussion of this problem in Committee Action 319 points out that while enlisted members in receipt of per diem are not entitled to receive a subsistence allowance, officers continue to receive their subsistence allowances concurrently with per diem and, with certain modifications, per diem allowances are authorized for cadets and midshipmen on the same basis as officers. On the basis that cadets and midshipmen long have been regarded as having an officer status and under pertinent law and regulations are entitled to a ration or the commuted value thereof at all times, the view is expressed that unless payment of the per diem allowance constitutes payment of the commuted ration, they are entitled to the ration or its commuted value concurrently with per diem.

Section 422 (a) of Title 37 of the United States Code provides that a cadet at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy, or a midshipman at the United States Naval Academy, is entitled to the allowances provided by law for a "midshipman in the Navy," and to travel and transportation allowances prescribed under section 410 of Title 37 while traveling under orders as a cadet or midshipman. Section 410 provides that midshipmen of the United States Naval Academy and cadets of the United States Military Academy, the United States Air Force Academy and the Coast Guard Academy are entitled to such travel and transportation allowances, provided by section 404 of Title 37 as prescribed by the Secretaries concerned. Subsection 422 (b) of Title 37 provides that each midshipman of the Navy to whom a Navy ration is not furnished is entitled to the commuted value of the ration in money for each day that he is on active duty, including each day that he is on leave, and that the Secretary of the Navy may prescribe regulations stating the conditions under which the commuted value shall be allowed and may prescribe regulations establishing the rates at which rations shall be commuted. Paragraph 044785 of the Navy Comptroller Manual provides, presumably under that authority, that midshipmen at the Naval Academy are entitled to one ration or commutation thereof at all times.

Section 402 of Title 37 provides generally for basic allowances for subsistence for members of the uniformed services. Under that section enlisted members are entitled to the basic allowance for subsistence on a daily basis only for periods (1) when rations in kind are not available, (2) when permission to mess separately is granted, or (3) when assigned to duty under emergency conditions where no messing facilities are available. They are not entitled to the allowance "while being subsisted at the expense of the United States." Officers are entitled "at all times" to the basic allowance for subsistence on a monthly basis. Since officers are not subsisted in kind but are paid a monthly subsistence allowance and are required to provide their own meals, it is considered that their monthly subsistence allowance relates to the normal condition of officers and continues to be payable in addition to the per diem received during periods while they are traveling away from their duty stations. Under normal circumstances enlisted men are subsisted in kind and, under the expressed language of the law, the allowance does not accrue when enlisted personnel are in fact subsisted at Government expense. Since section 3(e) of Executive Order No. 10119, March 30, 1950, as amended, expressly provides that the term "being subsisted at Government expense" as used in 37 U.S.C. 402 shall be considered applicable to enlisted members while they are in a travel status and are entitled to a per diem allowance in lieu of subsistence or to a mileage