B-152373, FEB. 25, 1964

B-152373, FEB. 25, 1964

TO CAPTAIN ELLEN M. KRUGER, USAF, AL 223 4286:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1963, WITH ENCLOSURE,IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 2, 1963, B- 152373, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITHOUT DEPENDENTS DURING THE PERIOD YOU RESIDED WITH YOUR HUSBAND OFF POST, JULY 5, 1962, THROUGH MARCH 15, 1963.

IN OUR DECISION WE CITED THE APPLICABLE LAWS AND REGULATIONS GOVERNING YOUR CASE AND ADVISED YOU THAT YOU WERE NOT ENTITLED TO THE BASIC ALLOWANCE CLAIMED BECAUSE YOUR ASSIGNMENT TO BACHELOR-TYPE OFFICER'S QUARTERS AT OLMSTED AIR FORCE BASE ON FEBRUARY 5, 1962, WAS NOT TERMINATED BY THE BASE COMMANDER IN ACCORDANCE WITH THE PROVISIONS OF AFR 30-6--- SUCH QUARTERS BEING VOLUNTARILY RELINQUISHED FOR PERSONAL REASONS--- AND, THEREFORE, A VALID ASSIGNMENT TO QUARTERS EXISTED DURING THE PERIOD OF YOUR CLAIM. WE ALSO ADVISED YOU THAT YOUR CLAIM WAS NOT SUPPORTED BY THE REQUIRED ADMINISTRATIVE CERTIFICATES AUTHORIZING PAYMENT OF THE QUARTERS ALLOWANCE FOR THE INVOLVED PERIOD.

YOU NOW HAVE FURNISHED A COPY OF HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, SUPPLEMENT 1, DATED JUNE 13, 1962, TO AFR 30-6, AND POINT OUT THAT PARAGRAPH 6.2C OF THAT LOCAL COMMAND REGULATION "RECOGNIZES FINAL CLEARANCE OF QUARTERS WHEN JOINT INSPECTION IS SATISFACTORILY ACCOMPLISHED.' YOU SAY THAT YOU CANNOT UNDERSTAND HOW A VALID ASSIGNMENT TO QUARTERS COULD EXIST AFTER THE INSPECTION OF YOUR QUARTERS WAS SATISFACTORILY ACCOMPLISHED, ALL PERSONAL EFFECTS WERE REMOVED AND THE HOUSING MANAGER ACCEPTED THE RETURN OF THE APARTMENT KEY, AND THE APARTMENT WAS ASSIGNED TO ANOTHER MEMBER OF THE UNIFORMED SERVICES.

PARAGRAPH 6.2C, CITED ABOVE, PROVIDES AS FOLLOWS:

"PREACCEPTANCE AND FINAL CLEARANCE INSPECTION OF QUARTERS WILL BE MADE JOINTLY BY THE TENANT AND THE HOUSING MANAGER OR THEIR DULY AUTHORIZED AGENTS. ALL CASES OF DISAGREEMENT WILL BE REFERRED TO CHIEF, BASE SERVICES DIVISION, FOR SETTLEMENT.'

IT APPEARS THAT THE PURPOSE OF THE REQUIREMENT OF THE FINAL CLEARANCE INSPECTION OF QUARTERS UNDER PARAGRAPH 6.2C IS TO PERMIT THE BASE HOUSING MANAGER OR HIS AGENT, IN EVERY INSTANCE WHERE PUBLIC QUARTERS ARE VACATED EITHER VOLUNTARILY OR UPON NOTIFICATION BY THE BASE COMMANDER, TO DETERMINE, AMONG OTHER THINGS, WHETHER THE OCCUPANT IS RESPONSIBLE FOR ANY DAMAGE TO THE QUARTERS AND WHETHER HE OR SHE HAS REMOVED ALL PERSONAL PROPERTY THEREIN, AND TO OBTAIN THE KEY TO THE APARTMENT. SUCH INSPECTION ALONE WOULD NOT CONSTITUTE A FORMAL TERMINATION OF AN ASSIGNMENT OF QUARTERS. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO PARAGRAPH 23A OF AFR 30-6, DATED JULY 22, 1960, WHICH PROVIDES AS FOLLOWS:

"23. NOTICE OF TERMINATION IN WRITING:

"A. IN ANY OF THE CASES NOTED IN PARAGRAPHS 21 AND 22, THE BASE COMMANDER CHARGED WITH TERMINATING OR ASSIGNING QUARTERS WILL NOTIFY THE OCCUPANT CONCERNED, IN WRITING, OF THE DATE AND CONDITION UNDER WHICH ASSIGNMENT TO QUARTERS IS TERMINATED. WHERE A SPECIFIED PERIOD OF ADVANCE NOTICE IS NOT PROVIDED IN THIS REGULATION, THE OCCUPANT WILL BE ALLOWED A REASONABLE PERIOD OF TIME BEFORE BEING REQUIRED TO VACATE HIS QUARTERS.'

ASIDE FROM THE MATTER OF A FORMAL TERMINATION OF YOUR ASSIGNMENT OF GOVERNMENT QUARTERS, YOUR ATTENTION IS INVITED TO THE FACT THAT THE REGULATIONS PROVIDE THAT WHERE A HUSBAND AND WIFE, BOTH MEMBERS OF THE SERVICE CONCERNED, ARE STATIONED AT THE SAME POST, ELIGIBILITY TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS RESTS WITH THE MALE MEMBER (PARAGRAPH 20331E (3) (B) 1, AFM 177-105). THOSE REGULATIONS WERE BASED ON THE POLICY OF MAINTENANCE OF THE FAMILY AS A UNIT, AS FAR AS POSSIBLE. SEE DEPARTMENT OF DEFENSE DIRECTIVE 1338.1, APRIL 16, 1954. IF THE HUSBAND IS NOT ASSIGNED GOVERNMENT QUARTERS AND HE IS PAID A BASIC ALLOWANCE FOR QUARTERS BECAUSE OF THAT FACT, THE HOUSING OFFICIALS AT HIS STATION ARE JUSTIFIED IN REFUSING TO ASSIGN SINGLE-TYPE QUARTERS TO HIS SERVICE MEMBER WIFE WHO IS PERMITTED TO LIVE WITH HIM OFF THE BASE, IN THE ABSENCE OF PROOF THAT SHE NO LONGER INTENDS TO LIVE WITH HIM. COMPARE PARAGRAPH 11A, AFR 30-6. IT APPEARS THAT YOU LIVED WITH YOUR HUSBAND DURING THE ENTIRE PERIOD OF YOUR CLAIM IN THE HOME YOU HAD PURCHASED WITH HIM. SINCE YOU LEFT THE GOVERNMENT QUARTERS ACTUALLY ASSIGNED TO LIVE WITH YOUR HUSBAND IN YOUR HOME, THE QUARTERS VACATED BY YOU PROPERLY WERE ASSIGNED TO ANOTHER PERSON. THE GOVERNMENT WAS NOT REQUIRED TO MAINTAIN EMPTY SINGLE QUARTERS AVAILABLE FOR ASSIGNMENT TO YOU IN ORDER TO AVOID LIABILITY FOR PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS TO YOU IN YOUR OWN RIGHT. THERE IS NO EVIDENCE THAT IN MAKING APPLICATION FOR ASSIGNMENT FOR QUARTERS ON JULY 5, 1962, YOU ACTUALLY INTENDED TO OCCUPY SUCH QUARTERS AND LIVE AWAY FROM YOUR HUSBAND DURING YOUR TOUR OF DUTY AT OLMSTED AIR FORCE BASE. THE RECORD INDICATES THAT YOUR PRINCIPAL, IF NOT SOLE, PURPOSE IN REQUESTING ASSIGNMENT OF QUARTERS WAS TO CLAIM THE QUARTERS ALLOWANCE IF SUCH ASSIGNMENT WAS NOT MADE. DOES NOT APPEAR THAT A DETERMINATION WAS MADE THAT QUARTERS WERE NOT AVAILABLE AT ANY TIME DURING THE PERIOD OF YOUR CLAIM, ASSIGNMENT BEING DENIED BECAUSE YOUR HOME AND FAMILY SITUATION AND YOUR PRIOR ACTION IN RELINQUISHING ASSIGNED QUARTERS INDICATED THAT YOU HAD NO INTENTION OF OCCUPYING SUCH GOVERNMENT QUARTERS. IT APPEARS DOUBTFUL THAT YOU WERE ELIGIBLE FOR ASSIGNMENT OF QUARTERS IN ANY EVENT. SEE PARAGRAPH 11A, AFR 30-6. A FAILURE TO ASSIGN QUARTERS UNDER SUCH CIRCUMSTANCES DOES NOT WARRANT A PRESUMPTION THAT QUARTERS ARE NOT AVAILABLE.

IN THE CIRCUMSTANCES DISCLOSED WE CANNOT CONCLUDE AS A MATTER OF LAW THAT THE AIR FORCE ERRED IN CONCLUDING THAT YOU WERE NOT ENTITLED TO A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO WHEN YOU MAY AGAIN BECOME ENTITLED TO PUBLIC QUARTERS AND THE AUTHORITY THEREFOR, YOU ARE ADVISED THAT IF YOUR PRESENT LIVING ARRANGEMENT OFF THE BASE IS TERMINATED AND YOU ADVISE THE PROPER OFFICIALS OF THAT FACT SUCH OFFICIALS WOULD BE WARRANTED IN HONORING A BONA FIDE REQUEST FOR ASSIGNMENT OF QUARTERS IF IT IS DEMONSTRATED THAT SUCH QUARTERS ACTUALLY WOULD BE UTILIZED. SEE PARAGRAPH 20331E (3) (B) 5, AFM 177 105.