B-132015, JULY 23, 1947, 37 COMP. GEN. 47

B-132015, JULY 23, 1947, 37 COMP. GEN. 47

MILITARY - PERSONNEL - QUARTERS ALLOWANCE - GOVERNMENT QUARTERS - VISITS, ETC. THE OCCUPANCY BY MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS OF GOVERNMENT FACILITIES AT A PORT WHILE EN ROUTE TO NEW PERMANENT DUTY STATIONS MAY NOT BE CONSIDERED OCCUPANCY OF GOVERNMENT QUARTERS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE" AS THE PHRASE IS USED IN EXECUTIVE ORDER NO. 10204 SO AS TO ENTITLE THE MEMBERS TO BASIC ALLOWANCE FOR QUARTERS DURING THE OCCUPANCY OF SUCH QUARTERS. DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHO OCCUPY GOVERNMENT QUARTERS IN THE FOLLOWING SITUATIONS: (1) WITH THE MEMBER WHILE ON TEMPORARY DUTY AWAY FROM PERMANENT STATION, (2) WHILE THE MEMBER IS A PATIENT AT A GOVERNMENT HOSPITAL, OR (3) WHILE THE MEMBER AND WIFE ARE AWAY FROM THE PERMANENT STATION WHEN THE WIFE IS AWAITING CONFINEMENT IN A GOVERNMENT HOSPITAL MAY HAVE SUCH OCCUPANCY REGARDED AS OF A TEMPORARY NATURE SO THAT THE MEMBER MAY CONTINUE TO RECEIVE BASIC QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENT, AND, WHERE THE OCCUPANCY CONTINUES FOR MORE THAN ONE WEEK, QUARTERS ALLOWANCE IS NOT REQUIRED TO BE DENIED SOLELY BECAUSE OF THE TIME FACTOR; HOWEVER, THIS FACTOR TOGETHER WITH ALL THE FACTS SHOULD BE CAREFULLY EXAMINED BEFORE A DETERMINATION IS MADE THAT THE OCCUPANCY IS TEMPORARY. A MEMBER OF THE UNIFORMED SERVICES WHO WITH HIS WIFE OCCUPIES GOVERNMENT QUARTERS UNDER CIRCUMSTANCES WHICH CANNOT BE CONSIDERED AS OCCUPANCY OF A TEMPORARY NATURE FOR CONTINUATION OF QUARTERS ALLOWANCE TO THE MEMBER DURING THE PERIOD DOES NOT BECOME ENTITLED TO QUARTERS ALLOWANCE FOR THE REASON THAT THE MEMBER HAS OTHER DEPENDENTS WHO DID NOT OCCUPY THE SAME QUARTERS; HOWEVER, IF THERE IS A SHOWING THAT THE OTHER DEPENDENTS WERE PRECLUDED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING THE FACILITIES WITH THE MEMBER AND HIS WIFE, QUARTERS ALLOWANCE WOULD BE PAYABLE. UNDER SECTION 3 OF EXECUTIVE ORDER NO. 10204, WHICH PERMITS A MEMBER OF THE ARMED SERVICES TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS WHILE OCCUPYING GOVERNMENT QUARTERS DURING SOCIAL VISITS OF A TEMPORARY NATURE, THE ADMINISTRATIVE REQUIREMENT THAT VISITORS MUST STAY "IN QUARTERS ASSIGNED TO ANOTHER MEMBER" IS MORE RESTRICTIVE THAN NECESSARY AND MAY BE ELIMINATED.

TO THE SECRETARY OF DEFENSE, JULY 23, 1957:

FURTHER REFERENCE IS MADE TO A LETTER DATED MAY 24, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON THE FOLLOWING QUESTIONS PRESENTED AND DISCUSSED IN COMMITTEE ACTION NO. 184, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE:

1. IS A MEMBER OF THE UNIFORMED SERVICES ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS WIFE FOR PERIODS:

A. HE AND HIS WIFE OCCUPY GOVERNMENT FACILITIES AT A PORT EN ROUTE BETWEEN PERMANENT DUTY STATIONS?

B. HIS WIFE OCCUPIES GOVERNMENT FACILITIES AT A PORT WHILE EN ROUTE TO HIS NEW DUTY STATION AND HE OCCUPIES BACHELOR QUARTERS AT SUCH STATION?

2. IF A MEMBER OF THE UNIFORMED SERVICES IS PROPERLY IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS WIFE, MAY HE CONTINUE TO RECEIVE SUCH ALLOWANCE FOR PERIODS:

A. HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION AND HE AND HIS WIFE OCCUPY GOVERNMENT FACILITIES AT THE TEMPORARY DUTY STATION?

B. HE IS A PATIENT IN A GOVERNMENT HOSPITAL AWAY FROM HIS PERMANENT DUTY STATION AND HIS WIFE VISITS AND OCCUPIES A GUEST HOUSE NEAR THE HOSPITAL?

C. HE AND HIS WIFE OCCUPY A GUEST HOUSE AWAY FROM HIS PERMANENT DUTY STATION WHILE SHE IS AWAITING CONFINEMENT IN A GOVERNMENT HOSPITAL?

3. QUESTIONS 1 AND 2 CONTEMPLATE OCCUPANCY OF GOVERNMENT FACILITIES (QUARTERS, GUEST HOUSE, AND/OR HOSPITAL, AS APPLICABLE) FOR A PERIOD OF ONE WEEK OR LESS. IF THESE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE, WOULD THE ANSWERS BE THE SAME IF THE PERIOD WERE LONGER?

4. WOULD THE ANSWERS TO QUESTIONS 1 AND 2 BE THE SAME IF THE MEMBER HAS DEPENDENTS OTHER THAN HIS WIFE, AND ONLY HE AND HIS WIFE OCCUPY GOVERNMENT FACILITIES (QUARTERS, GUEST HOUSE, AND/OR HOSPITAL, AS APPLICABLE/?

SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.C.S. 252 (B), PROVIDES THAT:

EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS.

SECTION 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, IS AS FOLLOWS:

ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGED (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, OR (C) BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

COMMITTEE ACTION NO. 184 REFERS TO 23 COMP. GEN 761 AND 20 COMP. GEN. 522 AS POSSIBLE AUTHORITY FOR AFFIRMATIVE ANSWERS TO QUESTIONS 1 AND 2.

IT WAS SAID IN 23 COMP. GEN. 761, APRIL 7, 1944, AT PAGE 764, THAT:

WITH CERTAIN EXCEPTIONS, NOT HERE MATERIAL, IT HAS BEEN HELD CONSISTENTLY THAT AN OFFICER WITH OR WITHOUT DEPENDENTS IS ENTITLED TO RENTAL ALLOWANCE DURING THE INTERIM BETWEEN DETACHMENT FROM PERMANENT STATION AND REPORTING TO A NEW PERMANENT STATION, INCLUDING PERIODS WHILE ON LEAVE OF ABSENCE AND WHILE ON SICK LEAVE FROM HOSPITAL. THIS RULE HAS BEEN APPLIED REGARDLESS OF THE OFFICER'S STATUS FOR RENTAL ALLOWANCE PURPOSES WHILE AT HIS FORMER PERMANENT STATION, THAT IS, NO DISTINCTION HAS BEEN MADE BETWEEN OFFICERS FURNISHED QUARTERS IN KIND AND THOSE RECEIVING AN ALLOWANCE IN LIEU OF QUARTERS.

THE ABOVE GENERAL STATEMENT WAS MADE ON THE PREMISE THAT THERE WAS NO FURNISHING OF GOVERNMENT HOUSING OR QUARTERS DURING THE INTERIM BETWEEN DETACHMENT FROM THE OLD STATION AND REPORTING AT THE NEW STATION. THE SPECIFIC QUESTION CONSIDERED IN THE DECISION OF APRIL 7, 1944, WAS WHETHER AN OFFICER WITHOUT DEPENDENTS, DETACHED FROM HIS PERMANENT OVERSEAS STATION FOR HOSPITALIZATION IN THE UNITED STATES AND GRANTED LEAVE AWAY FROM THE HOSPITAL PRIOR TO COMPLETION OF HOSPITALIZATION, WAS ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD AWAY FROM THE HOSPITAL--- A PERIOD DURING WHICH HE WAS PUT TO THE EXPENSE OF PROVIDING QUARTERS FOR HIMSELF.

IT WAS HELD IN 20 COMP. GEN. 522, MARCH 17, 1941, IN ANSWER TO QUESTION 4 (D), THAT SLEEPING CAR ACCOMMODATIONS FURNISHED DEPENDENTS OF ENLISTED PERSONNEL INCIDENT TO CHANGE OF STATION WERE NOT PUBLIC QUARTERS AND, HENCE, THAT THE FURNISHING OF SUCH ACCOMMODATIONS WOULD NOT DEPRIVE SUCH PERSONNEL OF QUARTERS ALLOWANCES TO WHICH THEY OTHERWISE WOULD HAVE BEEN ENTITLED.

THUS, THE TWO DECISIONS CITED IN COMMITTEE ACTION NO. 184 MERELY SET OUT THE RULE THAT, IF A MEMBER IS NOT FURNISHED QUARTERS IN KIND FOR HIMSELF AND FOR HIS DEPENDENTS, HE IS ENTITLED TO A QUARTERS ALLOWANCE.

IN THE CIRCUMSTANCES INVOLVED IN QUESTIONS 1 (A) AND 1 (B) THE OCCUPATION OF GOVERNMENT FACILITIES BY THE MEMBERS' WIVES WOULD NOT FALL WITHIN THE EXCEPTION IN THE EXECUTIVE ORDER RELATING TO "SOCIAL VISITS OF A TEMPORARY NATURE.' COMPARE 34 COMP. GEN. 515 IN WHICH THE QUOTED PHRASE WAS INDICATED TO REFER ONLY TO THOSE SITUATIONS IN WHICH A DEPENDENT INTENDS TO RETURN TO A HOME OCCUPIED PRIOR TO THE VISIT. ACCORDINGLY, QUESTIONS 1 (A) AND 1 (B) ARE ANSWERED IN THE NEGATIVE.

IN QUESTIONS 2 (A), 2 (B), AND 2 (C) IT REASONABLY MAY BE CONSIDERED THAT THE DEPENDENTS' OCCUPANCY OF GOVERNMENT QUARTERS IN EACH INSTANCE WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.' ACCORDINGLY, QUESTIONS 2 (A), 2 (B), AND 2 (C) ARE ANSWERED IN THE AFFIRMATIVE, SUCH QUESTIONS BEING UNDERSTOOD TO RELATE TO PERIODS OF OCCUPANCY OF GOVERNMENT QUARTERS OF ONE WEEK OR LESS.

A DIFFERENT ANSWER TO QUESTIONS 3 (A), 2 (B), AND 2 (C) WOULD NOT BE REQUIRED BY THE SOLE FACT THAT OCCUPANCY OF GOVERNMENT FACILITIES UNDER ANY OF THE CONDITIONS SET OUT IN THOSE QUESTIONS CONTINUES FOR MORE THAN ONE WEEK BUT THE LENGTH OF THE PERIOD OF OCCUPANCY WOULD BE AN IMPORTANT FACTOR IN DETERMINING WHETHER THE OCCUPANCY WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.' HENCE, IN ANY CASE WHEN THE OCCUPANCY CONTINUES FOR MORE THAN ONE WEEK, ALL THE FACTS AND CIRCUMSTANCES SHOULD BE EXAMINED CLOSELY BEFORE CONCLUDING THAT THE OCCUPANCY PROPERLY MAY BE CONSIDERED TO BE FOR THE PURPOSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. QUESTION 3 IS ANSWERED ACCORDINGLY.

QUESTION 4 IS IN TWO PARTS, ONE RELATING TO QUESTION 1, THE OTHER TO QUESTION 2. THE EXECUTIVE ORDER PRESCRIBES, IN EFFECT, THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE WHEN GOVERNMENT QUARTERS OR HOUSING FACILITIES ARE IN FACT OCCUPIED BY A MEMBER AND HIS DEPENDENTS--- EXCEPT AS TO THE MATTER OF SOCIAL VISITS. IN THE ANSWER TO QUESTION 1 IT WAS HELD THAT THE EXCEPTION AS TO SOCIAL VISITS WAS NOT APPLICABLE AND THAT ALLOWANCES FOR QUARTERS DID NOT ACCRUE. THE FACT THAT THE MEMBERS IN THE CIRCUMSTANCES OUTLINED IN QUESTION 1 MAY HAVE HAD OTHER DEPENDENTS WHO DID NOT OCCUPY THE FACILITIES FURNISHED THE WIVES, WOULD NOT CHANGE THE CONCLUSION REACHED ON THAT QUESTION, IN THE ABSENCE OF A SHOWING THAT THE OTHER DEPENDENTS WERE PRECLUDED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING THE FACILITIES FURNISHED THE WIVES. COMPARE B 130973, MAY 2, 1957. THE FIRST PART OF QUESTION 4 IS ANSWERED ACCORDINGLY.

SINCE QUESTION 2 WAS ANSWERED IN THE AFFIRMATIVE, NO ANSWER TO THE SECOND PART OF QUESTION 4 APPEARS TO BE REQUIRED.

ADDITIONAL QUESTIONS ARE PRESENTED AND DISCUSSED AS FOLLOWS:

A. IS ITEM 4 ON DD FORM 137 " DEPENDENCY CERTIFICATE--- WIFE OR CHILD UNDER 21 YEARS," WHICH FORM WAS APPROVED BY THE COMPTROLLER GENERAL OF THE UNITED STATES ON 24 JANUARY 1951, MORE RESTRICTIVE IN ITS TERMS THAN REQUIRED BY SECTION 3, EXECUTIVE ORDER 10204?

B. IF THE ANSWER IS IN THE AFFIRMATIVE, MAY THE WORDING IN ITEM 4 BE CHANGED TO READ: " EXCLUDING OCCUPANCY OCCURRING DURING A SOCIAL VISIT OF A TEMPORARY NATURE, DID THE ABOVE-NAMED DEPENDENT OCCUPY GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES WITHOUT PAYMENT OF RENTAL CHARGES?

REGARDING THE SUBSIDIARY QUESTIONS, ITEM 4 OF DD FORM 137 READS AS FOLLOWS: " DID THE ABOVE-NAMED DEPENDENT OCCUPY GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES WITHOUT CHARGES EXCEPT FOR BRIEF VISITS IN QUARTERS ASSIGNED TO ANOTHER MEMBER? " THE ITALICIZED WORDS APPEAR MORE RESTRICTIVE THAN REQUIRED BY SECTION 3, E.O. 10204, WHICH, IN PERTINENT PART, READS AS FOLLOWS: " * * * UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.'

UNDER A LITERAL APPLICATION OF ITEM 4 OF FORM 137, A MEMBER WOULD BE REQUIRED TO FORFEIT BASIC ALLOWANCE FOR QUARTERS FOR A TEMPORARY OCCUPANCY OF A GUEST HOUSE WHEN A BONA FIDE SOCIAL VISIT OF A TEMPORARY NATURE WITH ANOTHER MEMBER WAS INVOLVED BUT THERE WAS NO ROOM FOR THE VISITOR IN THE QUARTERS ASSIGNED TO THE HOST. FORFEITURE WOULD LIKEWISE OCCUR WHEN A SOCIAL VISIT OF A TEMPORARY NATURE WAS MADE TO A BASE BUT A VISIT IN QUARTERS ASSIGNED TO ANOTHER MEMBER WAS NOT INVOLVED. IT APPEARS THAT DD FORM 137 IS UNNECESSARILY RESTRICTIVE IN RESPECT TO SOCIAL VISITS AND THAT BOTH SUBSIDIARY QUESTIONS SHOULD BE ANSWERED IN THE AFFIRMATIVE.