§ 402. — Basic allowance for subsistence.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 37USC402]
TITLE 37--PAY AND ALLOWANCES OF THE UNIFORMED SERVICES
CHAPTER 7--ALLOWANCES
Sec. 402. Basic allowance for subsistence
(a) Entitlement to Allowance.--(1) Except as provided in paragraph
(2) or otherwise provided by law, each member of a uniformed service who
is entitled to basic pay is entitled to a basic allowance for
subsistence as set forth in this section.
(2) An enlisted member is not entitled to the basic allowance for
subsistence during basic training.
(b) Rates of Allowance Based on Food Costs.--(1) Through December
31, 2001, the monthly rate of basic allowance for subsistence to be in
effect for an enlisted member for a year (beginning on January 1 of that
year) shall be the amount that is halfway between the following amounts,
which are determined by the Secretary of Agriculture as of October 1 of
the preceding year:
(A) The amount equal to the monthly cost of a moderate-cost food
plan for a male in the United States who is between 20 and 50 years
of age.
(B) The amount equal to the monthly cost of a liberal food plan
for a male in the United States who is between 20 and 50 years of
age.
(2) On and after January 1, 2002, the monthly rate of basic
allowance for subsistence to be in effect for an enlisted member for a
year (beginning on January 1 of that year) shall be equal to the sum
of--
(A) the monthly rate of basic allowance for subsistence that was
in effect for an enlisted member for the preceding year; plus
(B) the product of the monthly rate under subparagraph (A) and
the percentage increase in the monthly cost of a liberal food plan
for a male in the United States who is between 20 and 50 years of
age over the preceding fiscal year, as determined by the Secretary
of Agriculture each October 1.
(3) The monthly rate of basic allowance for subsistence to be in
effect for an officer for a year (beginning on January 1 of that year)
shall be the amount equal to the monthly rate of basic allowance for
subsistence in effect for officers for the preceding year, increased by
the same percentage by which the rate of basic allowance for subsistence
for enlisted members for the preceding year is increased effective on
such January 1.
(4) For purposes of implementing paragraph (2), the monthly rate of
basic allowance for subsistence that was in effect for an enlisted
member for calendar year 2001 is deemed to be $233.
(c) Advance Payment.--The allowance to an enlisted member may be
paid in advance for a period of not more than three months.
(d) Special Rate for Enlisted Members Occupying Single Quarters
Without Adequate Availability of Meals.--The Secretary of Defense, and
the Secretary of the department in which the Coast Guard is operating,
may pay an enlisted member the basic allowance for subsistence under
this section at a monthly rate that is twice the amount in effect under
subsection (b)(2) while--
(1) the member is assigned to single Government quarters which
have no adequate food storage or preparation facility in the
quarters; and
(2) there is no Government messing facility serving those
quarters that is capable of making meals available to the occupants
of the quarters.
(e) Special Rule for Certain Enlisted Reserve Members.--Unless
entitled to basic pay under section 204 of this title, an enlisted
member of a reserve component may receive, at the discretion of the
Secretary concerned, rations in kind, or a part thereof, when the
member's instruction or duty periods, as described in section 206(a) of
this title, total at least 8 hours in a calendar day. The Secretary
concerned may provide an enlisted member who could be provided rations
in kind under the preceding sentence with a commutation when rations in
kind are not available.
(f) Policies on Use of Dining and Messing Facilities.--The Secretary
of Defense, in consultation with the Secretaries concerned, shall
prescribe policies regarding use of dining and field messing facilities
of the uniformed services.
(g) Regulations.--(1) The Secretary of Defense shall prescribe
regulations for the administration of this section. Before prescribing
the regulations, the Secretary shall consult with each Secretary
concerned.
(2) The regulations shall include the specific rates of basic
allowance for subsistence required by subsection (b).
(Pub. L. 87-649, Sept. 7, 1962, 76 Stat. 470; Pub. L. 89-444, Sec. 2(2),
June 9, 1966, 80 Stat. 198; Pub. L. 93-419, Sec. 3(1)-(5), Sept. 19,
1974, 88 Stat. 1152; Pub. L. 96-513, title IV, Sec. 411, Dec. 12, 1980,
94 Stat. 2905; Pub. L. 98-94, title IX, Sec. 908(a), Sept. 24, 1983, 97
Stat. 637; Pub. L. 98-525, title VI, Sec. 605, Oct. 19, 1984, 98 Stat.
2537; Pub. L. 98-557, Sec. 17(d), Oct. 30, 1984, 98 Stat. 2868; Pub. L.
99-145, title XIII, Sec. 1303(b)(5), Nov. 8, 1985, 99 Stat. 740; Pub. L.
102-25, title VII, Sec. 702(b)(1), (c), Apr. 6, 1991, 105 Stat. 117;
Pub. L. 104-106, div. A, title VI, Sec. 602(a)-(c)(1), Feb. 10, 1996,
110 Stat. 356, 357; Pub. L. 105-85, div. A, title VI, Sec. 602(a), Nov.
18, 1997, 111 Stat. 1771; Pub. L. 105-261, div. A, title VI,
Sec. 604(a), Oct. 17, 1998, 112 Stat. 2037; Pub. L. 106-398, Sec. 1
[[div. A], title VI, Sec. 603(a), (b)], Oct. 30, 2000, 114 Stat. 1654,
1654A-144, 1654A-145; Pub. L. 107-107, div. A, title VI, Sec. 604(a),
Dec. 28, 2001, 115 Stat. 1133; Pub. L. 107-296, title XVII,
Sec. 1704(c), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107-314, div. A,
title VI, Sec. 603, Dec. 2, 2002, 116 Stat. 2566.)
Historical and Revision Notes
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Revised section Source (U.S. Code) Source (Statutes at Large)
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402(a)................................ 37:251(a) (1st sentence). Oct. 12, 1949, ch. 681, Sec. 301,
402(b)................................ 37:251(a) (2d and last sentences). 63 Stat. 812; May 19, 1952, ch.
37:251(b). 310, Sec. 1(d), 66 Stat. 80; Aug.
37:251(c). 10, 1956, ch. 1041, Sec. 20(b),
70A Stat. 627; Sept. 2, 1958, Pub.
L. 85-861, Sec. 10, 72 Stat.
1556.
37:251a. Aug. 1, 1953, ch. 305, Sec. 617,
67 Stat. 352.
37:301(a) (45 words before Oct. 12, 1949, ch. 681, Sec.
proviso). 501(a) (45 words before proviso),
37:301(e) (less applicability to (e) (less applicability to basic
basic pay, incentive pay, pay, incentive pay, administrative
administrative pay, and duty pay, and duty without pay), 63
without pay). Stat. 825, 827; July 9, 1952, ch.
37:251(a) (less 1st, 2d, and last 608, Sec. 244, 66 Stat. 494; June
402(c)................................ sentences). 30, 1960, Pub. L. 86-559, Sec. 8,
37:251(e). 74 Stat. 282.
402(d)................................ 37:251(f).
402(e)................................ 37:251(d).
402(f)................................
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In subsection (a), the words ``in the amount set forth in subsection
(d)'' are substituted for the words ``in such amounts . . . as are
provided in this section''.
In subsection (b), the words ``on a daily basis'' are substituted
for the last sentence of section 251(a) of existing title 37. The words
``United States'' are substituted for the word ``Government'', in the 2d
sentence of section 251(a) of existing title 37, section 251(b) of
existing title 37, and section 251(e) of existing title 37. The word
``confined'' is substituted for the word ``sick'' for clarity. The last
16 words of the third sentence are substituted for section 251(b)
(proviso) of existing title 37. The fourth sentence is substituted for
section 251(a) of existing title 37. The last sentence is substituted
for section 301(a) (45 words before proviso) of existing title 37 and
section 301(e) (less applicability to basic pay, incentive pay,
administrative pay, and duty without pay). In that sentence, the words
``of a reserve component of a uniformed service, or of the National
Guard'' are substituted for the enumeration of the organizations
concerned.
In subsection (c), the words ``who are entitled to basic pay'' are
inserted to reflect the 1st sentence of section 251(a) of existing title
37.
In subsection (d), the reference in section 251(a) of existing title
37 to the allowance of $1.05 per day for enlisted members granted
permission to mess separately is omitted as superseded by section 251a.
In subsection (e), the words ``Effective April 15, 1955,'' are
omitted as executed. The words ``United States'' are substituted for the
word ``Government''. The words ``messing facilities'' are substituted
for the word ``messes'' to conform to subsections (b) and (d).
Amendments
2002--Subsec. (d). Pub. L. 107-314 amended heading and text of
subsec. (d) generally. Prior to amendment, text read as follows:
``(1) In areas prescribed by the Secretary of Defense, and the
Secretary of Transportation with respect to the Coast Guard when it is
not operating as a service in the Navy, an enlisted member described in
paragraph (2) is entitled to not more than the pro rata allowance in
effect under paragraph (1) or (2) of subsection (b) for each meal the
member buys from a source other than a messing facility of the United
States.
``(2) An enlisted member referred to in paragraph (1) is a member
who is granted permission to mess separately and whose duties require
the member to buy at least one meal from a source other than a messing
facility of the United States.''
Pub. L. 107-296, which directed amendment of subsec. (d) by
substituting ``of Homeland Security'' for ``of Transportation'', could
not be executed because the words ``of Transportation'' did not appear
subsequent to amendment by Pub. L. 107-314, see above and Effective Date
of 2002 Amendment note below.
2001--Subsec. (b)(4). Pub. L. 107-107 added par. (4).
2000--Subsec. (b)(1). Pub. L. 106-398, Sec. 1 [[div. A], title VI,
Sec. 603(a)(1)], substituted ``Through December 31, 2001, the monthly
rate'' for ``The monthly rate'' in introductory provisions.
Subsec. (b)(2), (3). Pub. L. 106-398, Sec. 1 [[div. A], title VI,
Sec. 603(a)(2), (3)], added par. (2) and redesignated former par. (2) as
(3).
Subsec. (d)(1). Pub. L. 106-398, Sec. 1 [[div. A], title VI,
Sec. 603(b)], substituted ``in effect under paragraph (1) or (2) of
subsection (b)'' for ``established under subsection (b)(1)''.
1998--Subsecs. (e) to (g). Pub. L. 105-261 added subsec. (e) and
redesignated former subsecs. (e) and (f) as (f) and (g), respectively.
1997--Pub. L. 105-85 amended section generally. Prior to amendment,
section consisted of subsecs. (a) to (e) relating to basic allowance for
subsistence for members of the uniformed services.
1996--Subsec. (b). Pub. L. 104-106, Sec. 602(a), (b), designated
first sentence as par. (1), redesignated former pars. (1), (2), and (3)
as subpars. (A), (B), and (C), respectively, of par. (1), designated
second to fourth sentences as par. (2), designated fifth and sixth
sentences as par. (3), and added par. (4).
Subsec. (e)(1). Pub. L. 104-106, Sec. 602(c)(1)(A), substituted
``subsection (b)(2)'' for ``the third sentence of subsection (b)''.
Subsec. (e)(2). Pub. L. 104-106, Sec. 602(c)(1)(B), substituted
``subsection (b)(2)'' for ``subsection (b)''.
1991--Subsec. (e). Pub. L. 102-25 struck out ``of this section''
after ``subsection (b)'' in pars. (1) and (2).
1985--Subsec. (b). Pub. L. 99-145 inserted ``or as otherwise
prescribed by law'' after ``title'' at end of fourth sentence.
1984--Subsec. (b). Pub. L. 98-525 inserted ``The Secretary concerned
may provide an enlisted member who could be provided rations in kind
under the preceding sentence with a commutation when rations in kind are
not available.''
Subsec. (d). Pub. L. 98-557 inserted provisions relating to
Secretary of Transportation with respect to the Coast Guard when it is
not operating as a service in the Navy.
1983--Subsec. (e). Pub. L. 98-94 designated existing provisions as
par. (1) and added par. (2).
1980--Subsec. (b). Pub. L. 96-513, Sec. 411(a), inserted provisions
authorizing an allowance while performing travel under orders, and
struck out provisions prohibiting an allowance while being subsisted at
the expense of United States.
Subsec. (e). Pub. L. 96-513, Sec. 411(b), inserted reference to
definitions of ``field duty'' and ``sea duty''.
1974--Subsec. (a). Pub. L. 93-419, Sec. 3(1), struck out ``this
section or by another'' after ``otherwise provided by'' and substituted
``as set forth in this section'' for ``in the amount set forth in
subsection (d) of this section''.
Subsec. (b). Pub. L. 93-419, Sec. 3(2), substituted provisions for
allowance for enlisted members authorized to receive basic allowance for
subsistence under this subsection by reference to section 1009 of this
title for provisions for allowance for enlisted members on leave or were
authorized to mess separately at an amount equal to the cost of ration
to be determined by the Secretary of Defense.
Subsec. (c). Pub. L. 93-419, Sec. 3(3), inserted reference to
section 1009 of this title in provisions relating to the amount of basic
allowance for subsistence.
Subsecs. (d) to (f). Pub. L. 93-419, Sec. 3(4), (5), struck out
subsec. (d) which related to basic allowance for subsistence for members
of the uniformed services, and redesignated subsecs. (e) and (f) as (d)
and (e), respectively.
1966--Subsec. (c). Pub. L. 89-444 extended to aviation cadets of the
Coast Guard the entitlement to the same basic allowance for subsistence
as is provided for an officer of the Coast Guard.
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-296 effective on the date of transfer of
the Coast Guard to the Department of Homeland Security, see section
1704(g) of Pub. L. 107-296, set out as a note under section 101 of Title
10, Armed Forces.
Effective Date of 1997 Amendment
Section 602(g) of Pub. L. 105-85 provided that: ``This section
[amending this section, section 404 of this title, and section 6081 of
Title 10, Armed Forces, and enacting provisions set out as a note below]
and the amendments made by this section shall take effect on January 1,
1998.''
Effective Date of 1984 Amendment
Section 605 of Pub. L. 98-525 provided that the amendment made by
that section is effective Oct. 1, 1984.
Effective Date of 1980 Amendment
Amendment by Pub. L. 96-513 effective Sept. 15, 1981, but the
authority to prescribe regulations under the amendment by section 411 of
Pub. L. 96-513 effective on Dec. 12, 1980, see section 701 of Pub. L.
96-513, set out as a note under section 101 of Title 10, Armed Forces.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93-419 effective Sept. 19, 1974, see section 9
of Pub. L. 93-419, set out as an Effective Date note under section 1009
of this title.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
Rate for Enlisted Members When Messing Facilities Not Available
Pub. L. 107-107, div. A, title VI, Sec. 604(b), Dec. 28, 2001, 115
Stat. 1133, provided that:
``(1) Notwithstanding section 402 of title 37, United States Code,
the Secretary of Defense, and the Secretary of Transportation with
respect to the Coast Guard when it is not operating as a service in the
Navy, may prescribe a rate of basic allowance for subsistence to apply
to enlisted members of the uniformed services when messing facilities of
the United States are not available. The rate may be higher than the
rate of basic allowance for subsistence that would otherwise be
applicable to the members under that section, but may not be higher than
the highest rate that was in effect for enlisted members of the
uniformed services under those circumstances before the date of the
enactment of this Act [Dec. 28, 2001].
``(2) Paragraph (1) shall cease to be effective on the first day of
the first month for which the basic allowance for subsistence calculated
for enlisted members of the uniformed services under section 402 of
title 37, United States Code, exceeds the rate of the basic allowance
for subsistence prescribed under paragraph (1).''
Transitional Authority To Provide Basic Allowance for Subsistence
Pub. L. 107-107, div. A, title VI, Sec. 604(c), Dec. 28, 2001, 115
Stat. 1134, provided that: ``Notwithstanding the repeal of subsections
(c) through (f) of section 602 of the National Defense Authorization Act
for Fiscal Year 1998 (Public Law 105-85; 37 U.S.C. 402 note) by section
603(c) of the Floyd D. Spence National Defense Authorization Act for
Fiscal Year 2001 (as enacted into law by Public Law 106-398; 114 Stat.
1654A-145) [see below], the basic allowance for subsistence shall be
paid in accordance with such subsections for October, November, and
December of 2001.''
Pub. L. 105-85, div. A, title VI, Sec. 602(c)-(f), Nov. 18, 1997,
111 Stat. 1772, as amended by Pub. L. 105-261, div. A, title VI,
Sec. 604(b), Oct. 17, 1998, 112 Stat. 2038; Pub. L. 106-398, Sec. 1
[[div. A, title X, Sec. 1087(e)(1)], Oct. 30, 2000, 114 Stat. 1654,
1654A-293, which provided that a basic allowance for subsistence was to
be paid to members of the uniformed services according to the conditions
and at the rates provided in this note and not under the authority of
this section during the period beginning on Jan. 1, 1998, and ending on
the first day of the month immediately following the first month for
which the monthly equivalent of the rate of basic allowance for
subsistence payable to enlisted members of the uniformed services
determined under this note was equal to or exceeded by the amount that
would otherwise have been the monthly rate of basic allowance for
subsistence under subsec. (b)(1) of this section, was repealed by Pub.
L. 106-398, Sec. 1 [[div. A, title VI, Sec. 603(c)], Oct. 30, 2000, 114
Stat. 1654, 1654A-145, effective Oct. 1, 2001.
Increase in Basic Allowance for Subsistence
Pub. L. 96-343, Sec. 7, Sept. 8, 1980, 94 Stat. 1128, provided that:
``Effective September 1, 1980, the rates of basic allowance for
subsistence authorized by section 402 of title 37, United States Code,
as in effect on the day before the date of the enactment of this Act
[Sept. 8, 1980] (as prescribed by the President under section 1009 of
such title), are increased by 10 percent.''
Regulations Relating to Subsistence Allowance
Regulations relating to basic allowance for subsistence, see Ex.
Ord. No. 11157, June 22, 1964, 29 F.R. 7973, set out as a note under
section 301 of this title.
Executive Order No. 10119
Ex. Ord. No. 10119, Mar. 30, 1950, 15 F.R. 1767, as amended by 1953
Reorg. Plan No. 1, Secs. 5, 8, Apr. 11, 1953, 18 F.R. 2053; Ex. Ord. No.
10605, Apr. 22, 1955, 20 F.R. 2747, which related to regulations
governing basic allowance for subsistence, was revoked by Ex. Ord. No.
11157, June 22, 1964, 29 F.R. 7973, set out as a note under section 301
of this title.
Section Referred to in Other Sections
This section is referred to in sections 402a, 420, 1003, 1009, 1012
of this title; title 10 sections 708, 6912; title 14 section 372; title
32 section 107.
