It is also requested that, if the above questions are answered in the negative, statutory amendments be suggested which would permit the crediting of these allowances.

The questions presented by the Assistant Secretary have not been considered by this Office in light of the laws currently in effect.

Section 403 of Title 37, U.S. Code, provides in pertinent part that a member of the uniformed services who is entitled to basic pay is entitled to basic allowance for quarters except when on "field duty" or "sea duty" or when assigned to "quarters of the United States." It appears that a basic allowance for quarters is authorized under the above-cited section at all times to members who are entitled to basic pay with the exception of when they are assigned to quarters of the United States or are considered to be in a status where they are furnished by the United States whatever quarters are utilized such as when on field duty or sea duty.

Section 402 of Title 37, U.S. Code, provides in pertinent part that:

(a) Except as otherwise provided by this section or by another law, each member of a uniformed service who is entitled to basic pay is entitled to a basic allowance for subsistence. * * *

(b) An enlisted member is entitled to the basic allowance for subsistence, on a daily basis, of one of the following types

(1) when rations in kind are not available;

(2) when permission to mess separately is granted; and

(3) when assigned to duty under emergency conditions where no messing facilities of the United States are available.

(c) An officer of a uniformed service who is entitled to basic pay is, at all times, entitled to the basic allowances for subsistence on a monthly basis.* * * It would appear in view of the above-quoted language that a member of the uniformed services is entitled to be either subsisted in kind. or paid a monetary allowance in lieu thereof at all times.

This view is substantiated by the legislative history of Public Law 90-207, approved December 16, 1967, 81 Stat. 649, which authorized an increase in the basic pay of members of the uniformed services and in section 8 also provided for increases in such pay whenever an increase in the compensation of Federal civilian employees is authorized. The history of the act clearly indicates that in establishing the rates of compensation of members of the uniformed services, the rates of the quarters and subsistence allowances are considered.

For example, Senate Report No. 808 on H.R. 13510 at page 5 in discussing the increase in basic pay for members of uniformed services, it was stated that "*** The 5.6 percent proposed basic pay increase is considered the equivalent of 4.5 percent civilian increase when the following factors of military compensation are taken into accountbasic pay, subsistence allowance, quarters allowance, and tax advan

tages." In House Report 787 on the same bill at page 3 it is stated that: "Regular military compensation' is defined as basic pay, quarters, and subsistence allowances, either in cash or in kind, and the tax advantage thereon."

In view of the above there can be little doubt that quarters and subsistence either in kind or a monetary allowance therefor is an integral part of the total compensation of a member of the uniformed services to which he is entitled at all times.

Section 552, Title 37, U.S. Code, is a codification of section 2 of the Missing Persons Act of March 7, 1942, which provided that a member absent from duty in a missing status would be entitled while so absent to receive or have credit to his account "the same pay and allowances to which such person was entitled at the time of the beginning of the absence or may become entitled thereafter." The act of August 29, 1957, Public Law 85-217, 71 Stat. 491, amended section 2 to provide that a member of the Armed Forces in a missing status would be entitled to receive or have credited to his account "the same basic pay, special pay, incentive pay, basic allowance for quarters, basic allowance for subsistence, and station per diem allowances for not to exceed ninety days, to which he was entitled at the beginning of such period of absence ***.”

In our decision of September 10, 1964, 44 Comp. Gen. 127, we pointed out that the legislative history of the 1957 amendment to the Missing Persons Act indicated that it was the legislative intent that members in a missing status should have credited to their accounts the same pay and allowances they would have received while performing active duty, with the exception of temporary allowances such as a per diem for travel expenses.

There is no doubt that basic allowances for quarters and subsistence are allowances to which a member is entitled while in a missing status if he was entitled to these allowances at the time of entering a missing status. 23 Comp. Gen. 360 (1943). It appears reasonably clear that. inasmuch as quarters and subsistence allowances are payable except when a member is furnished these items in kind, entitlement to the allowances in lieu thereof exists when the United States no longer furnishes these allowances.

As noted above the Assistant Secretary points out that in 23 Comp. Gen. 895 (1944) reference was made to "changed conditions" which would be determinative of an officer's entitlement to rental allowance under section 6 of the Pay Readjustment Act of 1942. In that decision the "changed conditions" referred to entitlement to a rental allowance based on a dependent wife who while the member was in a missing status became entitled to be quartered and subsisted by the United

States in her own right by virtue of her active duty status in a uniformed service.

We agree with the view of the Assistant Secretary that the concept of "changed conditions" should also be applied in the case of a member receiving quarters and subsistence in kind furnished by the United States while on field duty who enters a missing status under the Missing Persons Act and as a result of such status can no longer be furnished quarters and subsistence in kind and that therefore such a member is entitled to the monetary allowances in lieu thereof.

Questions 1 and 2 are answered in the affirmative and hence no new legislation is required. The rate of basic allowance for subsistence payable to enlisted members is that payable when rations in kind are not available.

The statutory provisions concerning monetary allowances in lieu of quarters furnished in kind by the United States which were involved in our decisions 23 Comp. Gen. 207 and 895 have been superseded by the provisions of sections 301 and 302 of the Career Compensation Act of 1949, 63 Stat. 812, which in turn are now codified in 37 U.S.C. 402 and 403. Since under such statutory provisions a member of the uniformed services on active duty is entitled at all times to be furnished subsistence and quarters in kind or allowances in lieu thereof, members of the uniformed services determined to be in a missing status under the provisions of 37 U.S.C. 552 are entitled to a monetary allowance in lieu thereof, subject, of course, to the provisions of 31 U.S.C. 71a. Such allowances may be credited from the beginning of the missing

status.

[B-175444]

Pay-Drill-Training Assemblies-Status for Benefits Entitlement Three National Guard reservists who after reporting for multiple unit training assembly 2 incident to the inactive duty training authorized by 32 U.S.C. 502(a) (1), answering the roll call, and participating for 65 minutes in the first assembly, were ordered home to pick up equipment, and who while traveling in a privately owned car were in a collision in which two members were killed and one injured, passed out of military control when they ceased to perform inactive duty training. Since their 65 minutes of scheduled training does not create eligibility for pay under 37 U.S.C. 206(a), and the members were not in training for the purposes of 32 U.S.C. 318(2) and 37 U.S.C. 204(h) (2), the situation of the deceased does not meet the requirements of 10 U.S.C. 1481 (a) (3), authorizing the disposition of remains, nor entitle the injured member to medical care and pay and allowances. However, for the purposes of the death gratuity provided by 32 U.S.C. 321, the members are considered to have been traveling directly from an inactive duty training period.

To the Secretary of the Army, July 17, 1972:

Further reference is made to letter dated March 10, 1972, from the Assistant Secretary of the Army (Financial Management) requesting a decision regarding several questions arising as a result of an auto

mobile accident which occurred on August 21, 1971, involving SP4 James L. Ehlers, 506-56-3024, SP4 Robert E. Krueger, 507-64-6266, and SP4 Dick L. Dittmer, 508–54-3332, incident to their performance of inactive duty training pursuant to 32 U.S. Code 502 (a) (1), as members of Company C, 67th Support Battalion, Nebraska Army National Guard. The request has been assigned submission number SS-A-1144 by the Department of Defense Military Pay and Allowance Com

mittee.

It is stated that the unit training schedule for Company C, 67th Support Battalion, covering the period of July 1 through September 30, 1971, was published and posted on the unit bulletin board. That schedule showed that on August 21, 1971, assembly 5 would be held from 1:00 p.m., to 5:00 p.m., the evening meal would be eaten from 5:00 p.m., to 6:00 p.m., and assembly 6 would be held from 6:00 p.m., to 9:00 p.m., followed by "CO Time (Showdown Insp)" from 9:00 p.m., to 10:00 p.m.

Both assemblies and the showdown inspection were scheduled to be held in the unit armory at York, Nebraska. Members were required to provide their own transportation.

It is also stated that it is a unit standard operating procedure that any member not reporting with the equipment required to stand inspection is dispatched to pick up the necessary equipment prior to the time of the inspection.

It appears that Specialists Ehlers, Krueger and Dittmer reported on time and in the proper class C uniform, for the initial formation at 1:00 p.m., August 21, 1971, where they answered to roll call. However, they did not have any of the individual clothing and field equipment necessary for the 9:00 p.m. showdown inspection.

Specialists Ehlers, Krueger and Dittmer remained at the armory until 2:05 p.m. (about 65 minutes), when they left in the proper military uniform, apparently pursuant to authority from their commanding officer, to return to their homes and pick up their missing equipment. The record contains a statement from their commanding officer that he considered the three members "present for duty" during period 1 (assembly 5).

The record indicates that the three members left the armory in Krueger's automobile apparently intending to stop at their respective homes in Utica, Nebraska (Ehlers), Columbus, Nebraska (Krueger), and Genoa, Nebraska (Dittmer), and return to York, a round trip of approximately 125 miles.

While the apparent route the three members chose to follow was not the shortest route to Dittmer's home, it was the shortest to Ehlers' and Krueger's homes and apparently the shortest route by which they could have stopped at all three homes and returned to the armory in York.

At 2:30 p.m., Krueger's automobile collided with another automobile about four miles from York, directly on the way from York to Utica. As a result of injuries received in that collision, Specialists Krueger and Dittmer died and Specialist Ehlers was hospitalized. Upon submission of the cases to The Judge Advocate General of the Army, the opinion was expressed that the cases fall within the rationale of Meister v. United States, 162 Ct. Cl. 667 (1963), and in accordance with the instructions in our decision of October 25, 1963, 43 Comp. Gen. 412, 415, they should be submitted here for decision. In order that proper payment of pay and allowances, death gratuity, and certain other benefits may be made, the following questions were presented for consideration:

a. Are these members entitled to compensation under section 206, Title 37 United States Code for the inactive duty training assembly scheduled for 1300 to 1700 hours on 21 August 1971?

b. Were Krueger and Dittmer on authorized inactive duty training for the purposes of section 1481 (a)(3) of Title 10 United States Code?

c. Can Ehlers be considered as performing training under section 502 of Title 32 United States Code and disabled in line of duty from injury while so employed for the purposes of section 318(2), Title 32 United States Code and section 204 (b) (2), Title 37 United States Code, which would entitle him to medical care and pay and allowances?

d. If the answer to b is negative, were Krueger and Dittmer traveling directly to or from inactive duty training when they sustained their fatal injuries?

e. If the answer to c is negative can Ehlers be considered as traveling directly to or from inactive duty training within the meaning of section 106(d), Title 38 United States Code for the purpose of Veterans Administration benefits?

f. If it is determined that none of the members were engaged in inactive duty training at the time of the accident, can they be considered as traveling from the inactive duty training or traveling to the inactive duty training period scheduled to begin at 1800 hours?

g. What would be the members status if only one four hour training period was scheduled, 1300 to 1700 hours, and a portion of that period was set aside for the showdown assembly? It is doubtful that the members could have stopped at all three homes and returned to the armory between 1430, when the accident occurred, and 1700 hours when the training period was scheduled to end.

We note that in question c reference is made to section 204 (b) (2), Title 37, U.S. Code, which has no application to this case and appears to have been a typographical error. The appropriate statutory provision intended appears to be 37 U.S.C. 204(h) (2), upon which we are basing our answer to that question.

The inactive duty training involved here appears to have been a multiple unit training assembly two (MUTA-2) authorized by 32 U.S.C. 502(a) (1) which provides in pertinent part as follows:

(a) Under regulations to be prescribed by the Secretary of the Army each company of the National Guard ** shall

(1) assemble for drill and instruction, including indoor target practice, at least 48 times each year

Pay for members attending such assemblies is authorized by 37 U.S.C. 206 (a) which provides in pertinent part as follows:

a member

(a) Under regulations prescribed by the Secretary concerned, of the National Guard *** who is not entitled to basic pay under section 204