B-155572, FEB. 19, 1965

B-155572, FEB. 19, 1965

TO MR. EUGENE R. THOMAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15, 1965, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU, B-155572, DATED DECEMBER 31, 1964, SUSTAINING THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR STATION ALLOWANCES AND BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD JANUARY 9, 1963, TO JANUARY 31, 1964, WHILE YOU WERE ON DUTY AT DON MUANG AIR BASE, THAILAND, INCIDENT TO ORDERS DATED DECEMBER 3, 1962. ALSO WE HAVE RECEIVED AN INQUIRY FROM SENATOR PETER H. DOMINICK CONCERNING YOUR CLAIM.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 1, 1964, FOR THE REASON THAT THE RECORD SHOWED THAT QUARTERS, NOT DETERMINED AS INADEQUATE (SO AS TO BE CONSIDERED NONAVAILABLE AS BACHELOR OFFICER QUARTERS) WERE AVAILABLE FOR YOUR OCCUPANCY AND WOULD HAVE BEEN ASSIGNED TO YOU BUT FOR YOUR ELECTION TO LIVE OFF THE POST. UPON YOUR REQUEST IN LETTERS DATED OCTOBER 30 AND DECEMBER 10, 1964, FOR REVIEW OF THE SETTLEMENT OF OCTOBER 1, 1964, THE QUESTION OF YOUR RIGHT TO THE AMOUNT CLAIMED WAS CAREFULLY CONSIDERED AND IN THE DECISION OF DECEMBER 31, 1964, B-155572, YOU WERE FULLY INFORMED RELATIVE TO THE LAWS AND REGULATIONS APPLICABLE TO YOUR CLAIM AND OF THE REASONS FOR THE DISALLOWANCE THEREOF.

IN YOUR PRESENT LETTER YOU INSIST THAT THE QUARTERS AT DON MUANG AIR BASE, THAILAND, WERE INADEQUATE WITHIN THE CRITERIA ESTABLISHED IN AIR FORCE REGULATION 34-26 DATED APRIL 6, 1956; THAT THIS IS SUBSTANTIATED BY THE FACT THAT A SUBSEQUENT BASE COMMANDER ISSUED A CERTIFICATE THAT QUARTERS WERE INADEQUATE; AND THAT UNDER THE PRINCIPLE OF OUR DECISION IN 39 COMP. GEN. 561, WE MAY AND SHOULD CONCLUDE THAT THE COMMANDING OFFICER'S REFUSAL TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS CONTRARY TO THE ACTUAL FACTS.

WHILE YOU DECLINED TO OCCUPY THE QUARTERS AT DON MUANG AIR BASE BECAUSE YOU CONSIDERED SUCH QUARTERS WERE INADEQUATE, THE EVIDENCE YOU PRESENTED SHOWS THAT OTHER OFFICERS ACTUALLY OCCUPIED SUCH QUARTERS. SINCE YOUR COMMANDING OFFICER WAS CHARGED UNDER THE REGULATIONS WITH THE RESPONSIBILITY OF MAKING DETERMINATIONS WITH RESPECT TO AVAILABILITY OF QUARTERS, IT IS OUR VIEW THAT HIS REFUSAL TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS TO YOU IN THE CIRCUMSTANCES INVOLVED, AND WHEN SUCH QUARTERS ACTUALLY WERE OCCUPIED BY YOUR FELLOW OFFICERS, WAS A PROPER EXERCISE OF HIS JUDGMENT IN THE MATTER WITHIN THE AUTHORITY AND CONTEMPLATION OF THE REGULATIONS, AND THAT THIS IS NOT A SITUATION CONTEMPLATED BY OUR DECISION IN 39 COMP. GEN. 561.

FURTHER, THE DETERMINATION WITH RESPECT TO AVAILABILITY OF QUARTERS AT DON MUANG AIR BASE MADE BY A SUBSEQUENT COMMANDING OFFICER HAD NO RETROACTIVE EFFECT AND CANNOT OPERATE TO INCREASE YOUR RIGHTS TO QUARTERS ALLOWANCE WHICH BECAME FIXED WHEN YOUR COMMANDING OFFICER DETERMINED THAT QUARTERS WERE AVAILABLE. THIS IS BASED ON THE WELL SETTLED PRINCIPLE OF LAW THAT ONCE ADMINISTRATIVE DETERMINATIONS ARE MADE, THE RIGHTS THEREUNDER BECOME FIXED, AND ALTHOUGH SUCH DETERMINATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT IN THE ABSENCE OF CLEAR ERROR BE AMENDED RETROACTIVELY. COMPARE ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370.

IN VIEW OF THE FOREGOING, AND SINCE YOUR PRESENT LETTER CONTAINS NO MATERIAL FACTS OR INFORMATION NOT HERETOFORE CONSIDERED IN CONNECTION WITH YOUR CLAIM, THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER. ACCORDINGLY, OUR DECISION OF DECEMBER 31, 1964, IS AFFIRMED.