B-150362, AUG. 26, 1963

B-150362, AUG. 26, 1963

TO LIEUTENANT COMMANDER LOREN W. FLOCK, USN:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1963, AND ENCLOSURES, IN REPLY TO OUR DECISION OF JANUARY 10, 1963, B-150362, SUSTAINING THE SETTLEMENT OF AUGUST 10, 1962, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD SEPTEMBER 19 TO OCTOBER 31, 1959, INCIDENT TO YOUR ASSIGNMENT TO DUTY WITH AIRBORNE EARLY WARNING SQUADRON FOURTEEN, BARBERS POINT (OAHU) HAWAII.

IN OUR DECISION OF JANUARY 10, 1963, WE EXPLAINED THAT THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE AS SET FORTH IN PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS, AND THAT THOSE EXTRA LIVING EXPENSES MUST HAVE RESULTED BECAUSE OF THE FACT THAT THE QUARTERS OCCUPIED ARE OF A TEMPORARY NATURE REQUIRING THE PAYMENT OF HIGH TRANSIENT RENTALS AND THE USE OF RESTAURANTS. INASMUCH AS IT WAS SHOWN THAT YOU AND YOUR DEPENDENTS OCCUPIED APARTMENT NO. 12, HAWAIIAN PALMS ANNEX (OR APARTMENTS), 2260 KAHIO AVENUE, HONOLULU, HAVING AVAILABLE COOKING FACILITIES AND UTENSILS, WHICH APPEARED TO HAVE BEEN UTILIZED IN THE PREPARATION OF AT LEAST SOME OF YOUR BREAKFAST MEALS, IT WAS CONCLUDED THAT THE INFORMATION THEN OF RECORD DID NOT ESTABLISH THAT SUCH QUARTERS CONSTITUTED HOTEL OR HOTEL- LIKE ACCOMMODATIONS.

IN SUPPORT OF YOUR CLAIM YOU HAVE NOW FURNISHED A COPY OF A COMMUNICATION DATED APRIL 15, 1963, TO THIS OFFICE FROM THE CHAIRMAN, ARMED SERVICES COMMUNITY HOUSING ADVISORY COMMITTEE, PACIFIC AIR FORCES BASE COMMAND, APO 953, SAN FRANCISCO, CALIFORNIA, IN WHICH THE VIEW IS EXPRESSED THAT HOTEL- LIKE ACCOMMODATIONS INCLUDE HOTEL-TYPE APARTMENTS (SUCH AS THE HAWAIIAN PALMS ANNEX) AND THAT THE AVAILABILITY OF KITCHEN FACILITIES IN SUCH ACCOMMODATIONS WHEN OCCUPIED BY MILITARY PERSONNEL HAS NO BEARING ON A MEMBER'S ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE.

AS STATED IN THE PREVIOUS DECISION, THE STATUTORY AUTHORITY FOR PAYMENT OF TEMPORARY LODGING ALLOWANCES IS CONTAINED IN 37 U.S.C. 405, WHICH PROVIDES THAT THE SECRETARIES MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. IT IS EVIDENT BY THE TERMS USED THAT THE COST OF SUBSISTENCE AS WELL AS THE COST OF QUARTERS AND OTHER NECESSARY LIVING EXPENSES IS FOR CONSIDERATION IN AUTHORIZING THE ALLOWANCES. ACCORDANCE WITH THE TERMS OF THE STATUTE, THE SECRETARIES HAVE AUTHORIZED A TEMPORARY LODGING ALLOWANCE IN PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS COMPUTED ON THE HIGHER TRAVEL PER DIEM RATES FOR THE SPECIFIC PURPOSE OF PARTIALLY REIMBURSING A NUMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED UPON INITIAL ARRIVAL AT, AND IMMEDIATELY PRECEDING DEPARTURE FROM, HIS OVERSEAS DUTY STATION FOR THE USE OF HOTELS OR HOTEL- LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS. THE TWO CONDITIONS CORRESPOND WITH QUARTERS AND SUBSISTENCE, THE MAJOR COST OF LIVING ELEMENTS PRESCRIBED BY THE STATUTE FOR CONSIDERATION. WHEN A MEMBER DURING THE SPECIFIED PERIODS OCCUPIES ACCOMMODATIONS WHICH ARE OPERATED FOR HOUSING TRANSIENT PERSONNEL ON A TEMPORARY BASIS, AND WHICH CONTAIN REASONABLE FACILITIES FOR THE PREPARATION OF MEALS FOR HIMSELF AND HIS DEPENDENTS, A QUESTION ARISES AS TO WHETHER THE MEMBER HAS IN FACT INCURRED AN UNDUE INCREASE IN COST OF LIVING EXPENSES FOR SUBSISTENCE BY EATING IN RESTAURANTS. HENCE, IT IS OUR VIEW THAT THE PRESENCE OF REASONABLE FACILITIES AND EQUIPMENT FOR PROVIDING MEALS IN QUARTERS OCCUPIED BY THE MEMBER AND HIS DEPENDENTS IS A PERTINENT FACTOR FOR CONSIDERATION IN DETERMINING THE MEMBER'S ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE. AND, IF AVAILABLE COOKING FACILITIES ARE UTILIZED FOR THE PREPARATION OF MEALS, OR A SUBSTANTIAL PORTION OF THEM, IT SEEMS CLEAR THAT THE ALLOWANCE IS NOT PAYABLE SINCE THERE HAS NOT BEEN INCURRED MORE THAN NORMAL EXPENSES FOR THE USE OF RESTAURANTS AS REQUIRED BY THE REGULATIONS. IF, HOWEVER, IT IS OTHERWISE CLEAR THAT THE ACCOMMODATIONS OCCUPIED ARE PROPERLY TO BE REGARDED AS HOTEL-LIKE ACCOMMODATIONS, THE MERE PRESENCE OF SOME KITCHEN EQUIPMENT--- WHICH IT IS REPRESENTED IS USUALLY INADEQUATE IN SUCH ACCOMMODATIONS--- DOES NOT AFFECT ENTITLEMENT TO THE ALLOWANCE WHERE IT IS SHOWN THAT THE MEMBER ACTUALLY OBTAINS SUBSTANTIALLY ALL OF HIS MEALS IN PUBLIC RESTAURANTS.

THE ARMED SERVICES COMMUNITY HOUSING ADVISORY COMMITTEE HAS IN EFFECT DETERMINED THAT THE QUARTERS WHICH YOU OCCUPIED WERE HOTEL-LIKE ACCOMMODATIONS AND THAT SEEMS TO BE SUPPORTED BY THE RECORD BEFORE US. THEREFORE, IN VIEW OF YOUR CERTIFICATION THAT ALL MEALS EATEN BY YOUR FAMILY WERE OBTAINED IN PUBLIC RESTAURANTS, EXCEPT FOR LIMITED BREAKFASTS, IT IS NOW CONCLUDED THAT YOU ARE ENTITLED TO THE ALLOWANCE CLAIMED AND A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR THE AMOUNT DUE.