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CLUKEY v. PISCATAQUIS SHERIFF'S DEPT.6/4/1997
ally the allowances for quarters and subsistence in
order to ensure that these elements of compensation are
adequate to fulfill their intended purpose.
reprinted in 1974 U.S.Code Cong. & Admin. News at 5365-66.
[ 9] Current military pay practices reinforce our view that the BAS, BAQ and VHA are part of Clukey's regular military compensation. Clukey receives the BAS, BAQ and VHA as direct payments in cash along with his basic pay. Therefore, unlike traditional fringe benefit plans that involve employer contributions to employer-provided funds, Clark v. Rust Eng'g Co., 595 A.2d 416, 420 (Me. 1991), the government "totally relinquishes control over the [BAS, BAQ and VHA] funds" in Clukey's regular pay envelope. Ashby v. Rust Eng'g Co., 559 A.2d 774, 775 (Me. 1989). Once payment of the BAS, BAQ and VHA is made, he may spend the allowances when and where he chooses.
[ 10] The fact that the allowances are not considered income for federal tax purposes or considered in the calculation of retirement or severance pay is also not controlling. Our statutory definition of the average weekly wage is not limited by the federal definition of taxable income. Fletcher v. Hanington Bros., Inc., 647 A.2d 800, 803, n. 4 (Me. 1994). As we have stated, " n employee's capacity to earn is not reduced ny the fact that portions of the employee's compensation may be exempt from taxation. A Congressional decision to tax or not to tax may be based on a variety of reasons completely unrelated to the employee's capacity to earn." Id. Indeed, in the military pay context, the federal tax advantage pertaining to the allowances is an element in the definition of the employee's "regular compensation." 37 U.S.C.A. § 101(25). Similarly, a Congressional decision to include a component of compensation in the calculation of retired or severance pay may also be based on a variety of factors unrelated to the compensatory nature of that pay, and is also not controlling. 10 U.S.C. § 1212, 1401 (1996).
[ 11] We give deference to Board interpretations of the
The entry is:
Decision of the
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