B-156579, SEP. 17, 1965, 45 COMP. GEN. 146

B-156579, SEP. 17, 1965, 45 COMP. GEN. 146

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - OCCUPANCY OF QUARTERS ASSIGNED TO ANOTHER MEMBER A NAVY OFFICER CONTRIBUTING TO THE SUPPORT OF HIS CHILDREN, WHO OCCUPYING THE PUBLIC QUARTERS ASSIGNED TO THEIR STEPFATHER, AN AIR FORCE OFFICER, ARE NOT GUESTS WITHIN THE MEANING OF PARAGRAPH 403 OF EXECUTIVE ORDER NO. 11157, ALTHOUGH PROPERLY DENIED PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS CHILDREN WHILE ON SEA DUTY AND AFTER ASSIGNMENT OF QUARTERS AT THE NEW PERMANENT STATION IS ENTITLED TO PAYMENT OF A QUARTERS ALLOWANCE FOR THE PERIOD THAT HE WAS IN A LEAVE AND TRANSIT STATUS BETWEEN THE SEA DUTY AND THE FURNISHING OF QUARTERS AT HIS NEW PERMANENT STATION, AN INTERIM PERIOD DURING WHICH HE DID NOT OCCUPY PUBLIC QUARTERS. COMP. GEN. 713, MODIFIED.

TO C. E. SCHMEDER, DEPARTMENT OF THE NAVY, SEPTEMBER 17, 1965:

THERE HAS BEEN RECEIVED FROM THE OFFICE OF THE COMPTROLLER OF THE NAVY BY SECOND ENDORSEMENT DATED JULY 21, 1965, A LETTER DATED JULY 6, 1965, FROM LIEUTENANT COMMANDER SIGMUND ABRAHAM, JR., USN, CONCERNING HIS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF HIS CHILDREN WHILE THEY OCCUPY QUARTERS ASSIGNED TO ANOTHER MEMBER. SINCE THIS MATTER WAS THE SUBJECT OF DECISION OF MAY 12, 1965, 44 COMP. GEN. 713, TO YOU,AND SINCE THE SECOND ENDORSEMENT APPEARS TO QUESTION, IN PART, THE CONCLUSION REACHED IN THAT DECISION, THE MATTER WILL BE CONSIDERED AS A REQUEST BY YOU FOR FURTHER CONSIDERATION OF THAT DECISION.

THE FACTS SHOWN AND SET FORTH IN THE DECISION OF MAY 12, 1965, ARE THAT COMMANDER ABRAHAM WAS ON SEA DUTY FROM JANUARY 27, 1962, TO DECEMBER 18, 1963, AND IN A LEAVE AND TRANSIENT STATUS UNTIL JANUARY 6, 1964, WHEN HE REPORTED TO SAN FRANCISCO NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA, AND WAS ASSIGNED TO BACHELOR OFFICERS' QUARTERS AT TREASURE ISLAND THE SAME DATE. HE PAYS $225 PER MONTH FOR THE SUPPORT OF THE CHILDREN PURSUANT TO A DIVORCE DECREE GRANTED IN 1959 AND WAS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF THE CHILDREN FROM JULY 1, 1963 TO JANUARY 13, 1965. HIS FORMER WIFE HAS REMARRIED AND SINCE JUNE 21, 1963, THE CHILDREN HAVE BEEN LIVING WITH THEIR MOTHER AND STEPFATHER, CAPTAIN R. C. DRESSEL, IN PUBLIC QUARTERS FURNISHED HIM IN LIEU OF QUARTERS ALLOWANCE.

IT WAS STATED IN THE DECISION THAT EXECUTIVE ORDER NO. 11157 OF JUNE 22, 1964, BASED ON 37 U.S.C. 403 (AS WELL AS AN EARLIER EXECUTIVE ORDER) PROVIDES THAT ANY QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER AND HIS DEPENDENTS OR BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS FOR HIS DEPENDENTS ARE NOT AVAILABLE, 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 IN THESE CIRCUMSTANCES; THAT IN CONFORMITY WITH THOSE PROVISIONS, PARAGRAPH 044037-2A, ITEMS 2 AND 3, NAVY COMPTROLLER MANUAL, PROVIDES THAT A MEMBER WITH DEPENDENTS IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHEN HIS DEPENDENTS OCCUPY PUBLIC QUARTERS (EVEN THOUGH HE DOES NOT OCCUPY THE SAME QUARTERS AS HIS DEPENDENTS), OR WHEN HIS DEPENDENTS OCCUPY QUARTERS WHILE HE IS ON SEA DUTY. IT WAS CONCLUDED THAT THOSE REGULATIONS PRECLUDE PAYMENT OF A QUARTERS ALLOWANCE TO COMMANDER ABRAHAM SUBSEQUENT TO JUNE 20, 1963, THE CHILDREN HAVING RESIDED IN PUBLIC QUARTERS WITH THEIR STEPFATHER SINCE JUNE 21, 1963.

IN HIS PRESENT LETTER COMMANDER ABRAHAM CONTENDS THAT THE CHILDREN ARE NOT IN PUBLIC QUARTERS AS HIS DEPENDENTS NOR AS DEPENDENTS OF CAPTAIN DRESSEL; THAT THEY RESIDE IN PUBLIC QUARTERS SOLELY BY REASON OF THEIR RELATIONSHIP TO THEIR STEPFATHER, AND THAT THE CITED PROVISIONS OF THE UNITED STATES CODE, EXECUTIVE ORDER AND NAVY COMPTROLLER MANUAL ARE FOR APPLICATION ONLY WHEN THE DEPENDENTS OCCUPY PUBLIC QUARTERS IN THEIR CAPACITY, RELATIONSHIP AND STATUS AS DEPENDENTS OF A MEMBER OF A UNIFORMED SERVICE.

IN THE SECOND ENDORSEMENT IT IS POINTED OUT THAT SECTION 403 OF EXECUTIVE ORDER NO. 11157, UNLIKE PRIOR EXECUTIVE ORDERS, DOES NOT CONTAIN PROVISIONS RELATING TO SOCIAL VISITS IN GOVERNMENT QUARTERS AND, IN FACT, PROVIDES THAT THAT PARAGRAPH SHALL NOT APPLY TO OCCUPANCY OF QUARTERS AS A GUEST OF ANOTHER MEMBER; THAT BASED THEREON NAVY REGULATIONS WERE CHANGED TO ELIMINATE ALL RESTRICTIONS ON OCCUPANCY OF GOVERNMENT QUARTERS AS A GUEST OF ANOTHER MEMBER. IT FURTHER STATES THAT THE DECISION DOES NOT MENTION THE RULE UNDER WHICH BASIC ALLOWANCE FOR QUARTERS WAS DENIED FOR THE PERIOD THE OFFICER WAS IN A LEAVE AND TRANSIENT STATUS AND CONSEQUENTLY WAS NOT ASSIGNED GOVERNMENT QUARTERS.

WHILE THE CHILDREN HERE INVOLVED DO NOT OCCUPY GOVERNMENT QUARTERS AS DEPENDENTS OF COMMANDER ABRAHAM, THEY DO OCCUPY GOVERNMENT QUARTERS ASSIGNED TO A MEMBER OF THE UNIFORMED SERVICES. UNDER THE REGULATIONS THE MEMBER NEED NOT OCCUPY THE SAME QUARTERS AS HIS DEPENDENTS TO BE DENIED THE ALLOWANCE. SINCE COMMANDER ABRAHAM'S DEPENDENTS HAVE LIVED WITH THEIR MOTHER AND STEPFATHER NOT AS VISITORS ON A TEMPORARY BASIS, BUT HAVE OCCUPIED THE QUARTERS ASSIGNED TO THEIR STEPFATHER, CAPTAIN DRESSEL, AS THEIR ONLY HOME SINCE JUNE 20, 1963, THEY MAY NOT BE REGARDED MERELY AS GUESTS WITHIN THE MEANING OF PARAGRAPH 403 OF EXECUTIVE ORDER NO. 11157 SO AS TO ENTITLE COMMANDER ABRAHAM TO AN ALLOWANCE FOR QUARTERS IN THEIR BEHALF WHILE HE ALSO OCCUPIED GOVERNMENT QUARTERS.

IN DECISION OF MARCH 19, 1951, B-96991, THERE WAS CONSIDERED (QUESTION 1A) WHETHER A MASTER SERGEANT WHO WAS FURNISHED QUARTERS FOR HIMSELF AND WHOSE WIFE OCCUPIED THE SERVANT'S ROOM IN PUBLIC QUARTERS FURNISHED A COMMISSIONED OFFICER AS PART REMUNERATION FOR HER WORK AS A HOUSEMAID AND WAS NOT CHARGED RENT FOR HER ROOM, COULD BE PAID A BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS WIFE UNDER SECTION 302 (F) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 403 (A). IN THAT DECISION WE ADVISED THE SECRETARY OF DEFENSE THAT SINCE THE ENLISTED MAN WAS FURNISHED QUARTERS BY THE GOVERNMENT AND HIS WIFE OCCUPIED GOVERMENT-OWNED OR CONTROLLED QUARTERS NOT ON A RENTAL BASIS EXPRESSLY AUTHORIZED BY LAW, OR ON A QUASI-RENTAL BASIS INCIDENT TO EMPLOYMENT BY THE GOVERNMENT, THE ENLISTED MAN MUST BE CONSIDERED TO HAVE BEEN ASSIGNED ADEQUATE QUARTERS FOR HIMSELF AND HIS DEPENDENT WITHIN THE MEANING OF SECTION 302 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 403 (B), AND, THEREFORE, WAS NOT ENTITLED TO A QUARTERS ALLOWANCE FOR HIS WIFE. IN THE SAME DECISION (QUESTION 5A) UNDER LIKE CIRCUMSTANCES EXCEPT THAT THE ENLISTED MAN WAS NOT FURNISHED QUARTERS, IT WAS HELD THAT THE ONE ROOM OCCUPIED BY THE ENLISTED MAN'S WIFE INCIDENT TO HER EMPLOYMENT AS A MAID, AND NOT OCCUPIED BY THE ENLISTED MAN, MAY NOT BE CONSIDERED AS EITHER ASSIGNED TO OR ADEQUATE FOR HIM AND HIS DEPENDENTS WITHIN THE MEANING OF THE SAID SECTION 302 (A). THEREFORE, IN THE PRESENT CASE IT IS CONCLUDED THAT COMMANDER ABRAHAM IS NOT ENTITLED TO THE QUARTERS ALLOWANCE WHILE HE WAS ON SEA DUTY OR AFTER HE REPORTED AT HIS NEW PERMANENT STATION AT SAN FRANCISCO AND WAS ASSIGNED QUARTERS. HOWEVER, UPON RECONSIDERATION OF THE MATTER IT IS CONCLUDED THAT, IN LINE WITH THE 1951 DECISION (QUESTION 5A) AND 39 COMP. GEN. 575, QUESTION 1, HE IS ENTITLED TO THE ALLOWANCE TO THE EXTENT OTHERWISE AUTHORIZED FOR THE PERIOD DECEMBER 18, 1963 TO JANUARY 6, 1964, WHILE HE WAS IN A LEAVE AND TRANSIENT STATUS INCIDENT TO A PERMANENT CHANGE OF STATION AND WAS NOT FURNISHED QUARTERS.

THE DECISION OF MAY 12, 1965, IS MODIFIED ACCORDINGLY AND PAYMENT IS AUTHORIZED TO THE EXTENT INDICATED ABOVE.