B-156309, DEC. 17, 1965, 45 COMP. GEN. 347

B-156309, DEC. 17, 1965, 45 COMP. GEN. 347

QUARTERS ALLOWANCE - ADDITIONAL - TRANSIENT QUARTERS OCCUPANCY MEMBERS OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS UNDER PERMANENT CHANGE-OF-STATION ORDERS AUTHORIZING LEAVE EN ROUTE WHO OCCUPY TRANSIENT TYPE QUARTERS BEFORE DEPARTING THE OLD STATION OR UPON ARRIVAL AT THE NEW STATION MAY BE PAID A BASIC ALLOWANCE FOR QUARTERS NOT TO EXCEED 30 DAYS OF SUCH OCCUPANCY WHETHER OR NOT IN A LEAVE STATUS, AND REGULATIONS TO THIS EFFECT MAY BE ISSUED UNDER SECTION 403 OF EXECUTIVE ORDER NO. 11157, THE PROHIBITION IN 37 U.S.C. 403 (B) AGAINST THE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS TO MEMBERS IN A LEAVE OR TRAVEL STATUS BETWEEN PERMANENT DUTY STATION NOT BEING APPLICABLE AT THE PERMANENT STATION.

TO THE SECRETARY OF DEFENSE, DECEMBER 17, 1965:

REFERENCE IS MADE TO LETTER OF OCTOBER 22, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER REGULATIONS OF THE MILITARY DEPARTMENTS MAY BE AMENDED TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR NOT MORE THAN 30 DAYS TO A MEMBER WITHOUT DEPENDENTS WHO OCCUPIES TRANSIENT TYPE QUARTERS AT HIS PERMANENT STATION WHILE IN (1) A LEAVE STATUS OR (2) A DUTY STATUS AT HIS PERMANENT STATION BUT INCIDENT TO A PERMANENT CHANGE OF STATION.

A DISCUSSION PERTAINING TO THE MATTER IS SET FORTH IN COMMITTEE ACTION NO. 365 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE DISCUSSION IT IS POINTED OUT THAT UNDER 37 U.S.C. 403 (A), A MEMBER WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS UNLESS THE ENTITLEMENT IS OTHERWISE PRECLUDED BY STATUTE, OR HE DOES NOT MEET CONDITIONS REQUIRED BY REGULATIONS PROMULGATED BY THE PRESIDENT FOR THE ADMINISTRATION OF THE SECTION; THAT SECTION 402 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, PROVIDES THAT A MEMBER "SHALL BE ENTITLED" TO THE ALLOWANCE IN ACCORDANCE WITH REGULATIONS UNLESS PRECLUDED BY STATUTE, AND THAT IT THEREFORE WOULD APPEAR THAT THE ANSWER TO THE QUESTION WOULD BE IN THE AFFIRMATIVE UNLESS ENTITLEMENT EITHER IS OTHERWISE PRECLUDED BY A STATUTORY PROVISION OR CANNOT BE AUTHORIZED UNDER THE EXECUTIVE ORDER. ALSO IT IS POINTED OUT THAT SECTION 403 (F) OF TITLE 37, U.S. CODE, MAY APPEAR TO BAR ENTITLEMENT; HOWEVER, THE COMMITTEE DOES NOT CONSIDER THAT PROVISION TO BE APPLICABLE TO THE CIRCUMSTANCES HERE INVOLVED, IT BEING CONTENDED THAT THE MEMBERS ARE NOT "BETWEEN PERMANENT STATIONS," WITHIN THE MEANING OF THAT SECTION EVEN THOUGH OCCUPANCY IS INCIDENT TO A COMPLETED OR TO BE PERFORMED CHANGE OF STATION.

WHILE ENTITLEMENT OF A MEMBER WITHOUT DEPENDENTS UNDER IDENTICAL CIRCUMSTANCES WAS DENIED IN DECISION B-156309 OF APRIL 16, 1965, THE COMMITTEE BELIEVES THAT THAT DECISION WAS GOVERNED BY DEPARTMENTAL REGULATIONS (DEPARTMENT OF ARMY MESSAGE 972393, DATED JUNE 8, 1964, AMENDING CHAPTER 5, ARMY REGULATIONS 37-104) WHICH DID NOT ENTITLE THE MEMBER WITHOUT DEPENDENTS ALTHOUGH IT DID ENTITLE MEMBERS WITH DEPENDENTS IN LIKE CIRCUMSTANCES. THE COMMITTEE BELIEVES THAT IF THAT DECISION IS PROPERLY CONSIDERED AS BEING DICTATED SOLELY BY THE APPLICABLE REGULATIONS, THEN IT WOULD APPEAR THAT THE ANSWER TO THE QUESTION SHOULD BE IN THE AFFIRMATIVE. IN THIS CONNECTION, HOWEVER, THE COMMITTEE DISCUSSES VARIOUS PORTIONS OF THE DECISION AND PARTICULARLY QUESTIONS THE STATEMENT IN THE DECISION THAT IT WAS THE INTENT OF THE EXECUTIVE ORDER (NO. 11146) TO LIMIT ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS FOR A PERIOD NOT TO EXCEED 30 DAYS IN CONNECTION WITH A PERMANENT CHANGE OF STATION TO A MEMBER WITH DEPENDENTS.

SECTION 403 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT, EXCEPT AS PROVIDED BY THAT SECTION OR BY ANOTHER LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES, OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

SUBSECTION (G) AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE SECTION. PARAGRAPH 3 OF EXECUTIVE ORDER NO. 11146 DATED MARCH 13, 1964, ISSUED PURSUANT THERETO PROVIDES THAT:

ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT 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 (I) OCCURS WHILE SUCH MEMBER IS IN A DUTY OR LEAVE STATUS INCIDENT TO A CHANGE OF PERMANENT STATION AND IS OF A TEMPORARY NATURE UNDER STANDARDS PRESCRIBED BY REGULATIONS * * *.

THAT EXECUTIVE ORDER WAS REVOKED BY EXECUTIVE ORDER NO. 11157 OF JUNE 22, 1964, WHICH CONTAINS IDENTICAL PROVISIONS IN SECTION 403. SECTION 3 OF EXECUTIVE ORDER NO. 10204 OF JANUARY 15, 1951, ISSUED UNDER PRIOR STATUTORY AUTHORITY SIMILAR TO 37 U.S.C. 403 CONTAINED SIMILAR PROVISIONS TO THE EFFECT THAT QUARTERS OCCUPIED "SHALL BE DEEMED TO HAVE BEEN ASSIGNED" AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO QUARTERS ALLOWANCE ACCRUED IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY WAS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. THAT SECTION DID NOT INCLUDE THE EXCEPTIONS IN CLAUSE (I) QUOTED ABOVE, RESPECTING TEMPORARY OCCUPANCY WHILE IN A LEAVE OR DUTY STATUS INCIDENT TO A PERMANENT CHANGE OF STATION. IN OUR DECISION OF APRIL 14, 1955, 34 COMP. GEN. 515, WE HELD THAT THE TEMPORARY OCCUPANCY OF A STATION GUEST HOUSE BY AN OFFICER AND HIS DEPENDENTS DURING PROCESSING INCIDENT TO THE OCCUPANCY OF OFF-BASE HOUSING AT PERSONAL EXPENSE WAS NOT OCCUPANCY AS FOR A "SOCIAL VISIT" FOR THE PURPOSE OF EXECUTIVE ORDER NO. 10204. INFORMATION CONVEYED TO US BY THE BUREAU OF THE BUDGET WHEN EXECUTIVE ORDER NO. 11146 WAS BEING PROMULGATED WAS THAT THE CHANGE (TO INCLUDE CLAUSE (I) ( WAS TO OVERCOME THAT DECISION SO AS TO PERMIT THE TEMPORARY OCCUPANCY OF QUARTERS SUCH AS A GUEST HOUSE BY A MEMBER AND HIS DEPENDENTS AT HIS NEW STATION INCIDENT TO OCCUPANCY OF OFF- BASE HOUSING, THE AMENDMENT HAVING BEEN SPONSORED BY THE DEPARTMENT OF THE AIR FORCE. THEREFORE, IN THE DECISION OF APRIL 16, 1965, WE SAID THAT IT WAS THE INTENTION OF THE EXECUTIVE ORDER TO PERMIT OCCUPANCY OF GOVERNMENT QUARTERS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS FOR A PERIOD NOT TO EXCEED 30 DAYS IN CONNECTION WITH A CHANGE OF PERMANENT STATION BY MEMBERS WITH DEPENDENTS. THIS VIEW WAS SUPPORTED BY ARMY MESSAGE 972393, DATED JUNE 8, 1964, WHICH AMENDED CHAPTER 5, ARMY REGULATIONS 37-104, TO AUTHORIZE SUCH BENEFITS ONLY FOR MEMBERS WITH DEPENDENTS. HOWEVER, THE LITERAL LANGUAGE OF PARAGRAPH 403 OF EXECUTIVE ORDER NO. 11157 APPEARS TO PERMIT THE ISSUANCE OF APPROPRIATE REGULATIONS WHICH WOULD ALSO AUTHORIZE THE TEMPORARY OCCUPANCY OF QUARTERS AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, WITHOUT FORFEITURE OF HIS QUARTERS ALLOWANCE, INCIDENT TO A PERMANENT CHANGE OF STATION UNLESS THE ENTITLEMENT IS OTHERWISE PRECLUDED BY A STATUTORY PROVISION.

SECTION 403 (F) OF TITLE 37, U.S. CODE, PROVIDES AS FOLLOWS:

APPROPRIATIONS MAY NOT BE USED TO PAY A MEMBER OF A UNIFORMED SERVICE WITHOUT DEPENDENTS A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME.

THAT PROVISION WAS ORIGINALLY ENACTED AS SECTION 102 OF THE ACT OF JUNE 29, 1950, CH. 405, 64 STAT. 288, 37 U.S.C. 320 (1958 ED.). THE LEGISLATIVE HISTORY OF SECTION 102 (PAGE 15, H.REPT. 2113, 81ST CONG., 2D SESS. ON H.R. 8567 WHICH BECAME THE 1950 ACT) SHOWS THAT THE PURPOSE OF THE PROVISION WAS TO PREVENT THE PAYMENT OF A DOUBLE ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS WHILE IN A TRAVEL STATUS BETWEEN PERMANENT STATIONS, SINCE THE ALLOWANCE OF MILEAGE FOR TRAVEL TAKES INTO ACCOUNT THE COST OF QUARTERS. THUS, THE LEGISLATIVE HISTORY SUPPORTS THE VIEW THAT SUCH PROVISION DOES NOT PRECLUDE REGULATIONS WHICH WOULD AUTHORIZE THE ALLOWANCE WHEN A MEMBER WITHOUT DEPENDENTS OCCUPIES TRANSIENT QUARTERS TEMPORARILY AT HIS PERMANENT STATION INCIDENT TO A PERMANENT CHANGE OF STATIONS.

THE PROHIBITION IN 37 U.S.C. 403 (F) RELATES TO MEMBERS IN A LEAVE OR TRAVEL STATUS, INCLUDING TIME GRANTED AS DELAY EN ROUTE, OR PROCEED TIME "BETWEEN PERMANENT STATIONS.' AS WE UNDERSTAND IT, THE MEMBERS HERE INVOLVED ARE MEMBERS WITHOUT DEPENDENTS WHO HAVE NOT YET DEPARTED FROM THE OLD PERMANENT STATION UNDER PERMANENT CHANGE-OF-STATION ORDERS OR WHO HAVE ARRIVED AT THE NEW PERMANENT STATION UNDER SUCH ORDERS. THOSE MEMBERS WHETHER IN A LEAVE OR DUTY STATUS FOR A PERIOD NOT TO EXCEED 30 DAYS WOULD BE AT THEIR PERMANENT DUTY STATION INCIDENT TO A PERMANENT CHANGE OF STATION AND WOULD NOT BE IN A "LEAVE OR TRAVEL STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME.' UNDER THOSE CIRCUMSTANCES WE BELIEVE REGULATIONS MAY BE PROMULGATED TO AUTHORIZE BASIC ALLOWANCE FOR QUARTERS FOR NOT MORE THAN 30 DAYS TO A MEMBER WITHOUT DEPENDENTS WHO OCCUPIES TRANSIENT TYPE QUARTERS AT HIS PERMANENT DUTY STATION INCIDENT TO A PERMANENT CHANGE OF STATIONS.

THE QUESTION IS ANSWERED ACCORDINGLY. COMPARE 45 COMP. GEN. 143 AND 45 COMP. GEN. 245.