B-170624, SEP. 3, 1970

B-170624, SEP. 3, 1970

QUARTERS ALLOWANCE OFFICER WHO ALLEGES THAT THREE ROOMS WITH ACCESS TO KITCHEN WERE INADEQUATE QUARTERS BECAUSE THE REGULATIONS CONTEMPLATE THAT OFFICERS WITH THE RANK OF CAPTAIN SHOULD HAVE FOUR ROOMS MUST HAVE ADMINISTRATIVE DETERMINATION THAT QUARTERS WERE ADEQUATE UPHELD AND SINCE OFFICER OCCUPYING QUARTERS DID NOT INCUR ANY EXPENSE, THERE IS NO BASIS FOR PAYMENT OF CLAIM FOR QUARTERS ALLOWANCE.

TO CAPTAIN RICHARD L. HAEUSSLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1970, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF JULY 17, 1970, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS COMMENCING SEPTEMBER 16, 1969. THERE HAS BEEN RECEIVED ALSO YOUR LETTER OF AUGUST 19, 1970.

YOU ALLEGE THAT YOU WERE ASSIGNED INADEQUATE GOVERNMENT QUARTERS, BECAUSE UNDER THE PROVISIONS OF 10 U.S.C. 9775 AN AIR FORCE CAPTAIN MAY BE ASSIGNED FOUR ROOM QUARTERS, AND YOU WERE ASSIGNED ONLY A THREE ROOM APARTMENT WITH ACCESS TO A KITCHEN. SECTION 9775 ALSO PROVIDES THAT "IF SUCH QUARTERS EXIST, NO OTHER QUARTERS MAY BE ASSIGNED TO COMMISSIONED OFFICERS." THE INSTALLATION COMMANDER AT YOUR STATION HAS REPORTED THAT THERE ARE NO ADDITIONAL QUARTERS ON THE BASE CONTAINING A PRIVATE BATH AND THAT THE "QUARTERS CURRENTLY ASSIGNED TO YOU CONSISTING OF AN UNSHARED BEDROOM, LIVING ROOM, BATH, AND ACCESS TO A KITCHEN ARE CONSIDERED ADEQUATE."

37 U.S.C. 403(B) PROVIDES THAT " *** 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 *** IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS *** ."

PARAGRAPH III 32, DEPARTMENT OF DEFENSE INSTRUCTION 4156-47. APRIL 6, 1967, PROVIDES THAT "FOR PERMANENTLY ASSIGNED COMMISSIONED OFFICERS IN GRADES 03 AND ABOVE, THE AUTHORIZED MINIMUM STANDARDS IN A PERMANENT OR SEMI-PERMANENT FACILITY WILL BE ACCOMMODATIONS CONSISTING OF AN UNSHARED BEDROOM, LIVING ROOM AND BATH AND ACCESS TO A KITCHEN/KITCHENETTE."

PARAGRAPH 403, EXECUTIVE ORDER 11157, JUNE 22, 1964, PROVIDES THAT:

"ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES *** 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 *** ."

PARAGRAPH 30212, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES:

"THE BASE OR INSTALLATION COMMANDER ASSIGNS AND TERMINATES QUARTERS. ALSO DETERMINES WHEN QUARTERS ARE 'ADEQUATE' AND 'SUITABLE' FOR ASSIGNMENT. GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER CONTROL OF THE UNIFORMED SERVICES WILL BE CONSIDERED AS ASSIGNED, SUITABLE, AND ADEQUATE WHENEVER OCCUPIED BY A MEMBER AT HIS PERMANENT STATION WITHOUT PAYMENT OF RENTAL CHARGES. *** "

WHILE THE PROVISIONS OF 10 U.S.C. 9775 APPEAR TO CONTEMPLATE THE ASSIGNMENT OF FOUR ROOMS TO A CAPTAIN, WE ARE NOT PREPARED TO STATE THAT THE DEPARTMENT OF DEFENSE WAS IN ERROR IN PROMULGATING INSTRUCTIONS WHICH VIEW THE ASSIGNMENT OF A BEDROOM, LIVING ROOM, BATH AND ACCESS TO A KITCHEN AS MEETING THE REQUIREMENTS OF THE STATUTE.

CURRENT AND PRIOR STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF A QUARTERS ALLOWANCE WERE DESIGNED TO PROVIDE REIMBURSEMENT TO AN OFFICER FOR EXPENSES PAID BY HIM FOR PRIVATE QUARTERS WHEN THE GOVERNMENT IS UNABLE TO FURNISH QUARTERS IN KIND. SEE CARTER V UNITED STATES, 79 CT. CL. 166 (1934); JONES V UNITED STATES, 60 CT. CL. 552 (1925); BYRNE V UNITED STATES, 87 CT. CL. 241 (1938); AND HOLLISTER V UNITED STATES, 92 CT. CL. 137 (1940). IN THE BYRNE CASE THE COURT STATED:

" *** COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENT FAILS TO PROVIDE PUBLIC QUARTERS. ON THIS THEORY ONLY CAN RECOVERY BE HAD AND, AS IT APPEARS IN THIS CASE THAT THE OFFICER HAS NOT BEEN PUT TO ANY EXPENSE, NO RIGHT TO REIMBURSEMENT HAS BEEN ESTABLISHED."

EXECUTIVE ORDER 11157 AND PARAGRAPH 30212 OF THE ABOVE-QUOTED REGULATIONS ARE TO THE SAME EFFECT.

IN YOUR LETTER OF AUGUST 19, 1970, YOU MAKE THE CLAIM THAT YOU ARE PAYING "RENT" SINCE YOU ARE CHARGED $8 PER MONTH WHILE OCCUPYING THE GOVERNMENT QUARTERS ASSIGNED YOU. IT SEEMS QUITE CLEAR THAT THE $8 CHARGE IS A SERVICE CHARGE AND THAT IT WAS NOT FIXED AS RENT FOR OCCUPANCY OF QUARTERS. YOUR COMMANDING OFFICER HAS STATED THAT THE QUARTERS YOU OCCUPY WERE "ASSIGNED" TO YOU AND THERE IS NO INDICATION OF ANY AGREEMENT THAT THEY BE OCCUPIED ON A RENTAL BASIS.

WHILE YOU STATE THAT YOU WERE INVOLUNTARILY ASSIGNED GOVERNMENT QUARTERS, SUCH QUARTERS HAVE BEEN ADMINISTRATIVELY DETERMINED TO BE ADEQUATE AND WHILE OCCUPYING THOSE QUARTERS YOU WERE PUT TO NO EXPENSE TO SECURE QUARTERS FROM PRIVATE SOURCES. IN SUCH CIRCUMSTANCES, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JULY 17, 1970, IS SUSTAINED.