B-109089, JUL 22, 1952

B-109089: Jul 22, 1952

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IT IS STATED THAT GOVERNMENT QUARTERS WERE AVAILABLE TO THE OFFICER IN HIS OWN RIGHT DURING THE PERIOD OCTOBER 4 TO 8. STATION PER DIEM ALLOWANCES ARE PAYABLE TO MEMBERS COMMENCING THE DAY FOLLOWING THE DAY OF ARRIVAL AT. WHO ARE NOT FURNISHED GOVERNMENT QUARTERS WILL BE ENTITLED TO A STATION PER DIEM ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE PRESCRIBED FOR THAT AREA FOR THE FIRST 45 DAYS. SUBJECT TO THE DEDUCTIONS PRESCRIBED IN PAR. 4254 WHEN GOVERNMENT MESS IS AVAILABLE FOR THE MEMBER OR FOR THE MEMBER AND HIS DEPENDENTS IF WITH DEPENDENTS. WHEN GOVERNMENT QUARTERS ARE FURNISHED OR PERMANENT HOUSING IS OBTAINED. THIS ALLOWANCE WILL BE REDUCED TO THE REGULAR STATION PER DIEM ALLOWANCE FOR THAT AREA.

B-109089, JUL 22, 1952

PRECIS-UNAVAILABLE

CAPTAIN ST. CLAIR TANT, USMC:

BY FIRST INDORSEMENT OF APRIL 4, 1952, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF MARCH 17, 1952, FOR ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, COVERING PER DIEM TO CAPTAIN JAMES H. RINEHART, USMC, AT THE RATE OF $9 PER DAY FOR THE PERIOD OCTOBER 10 TO NOVEMBER 8, 1951.

IT APPEARS THAT THE OFFICER ARRIVED AT HIS NEW PERMANENT STATION IN THE HAWAIIAN AREA ON OCTOBER 3, 1951, AND THAT HIS DEPENDENT WIFE ARRIVED SIX DAYS LATER, HER TRAVEL TO HAWAII HAVING BEEN AUTHORIZED AT GOVERNMENT EXPENSE. HE STATES THAT HE AND HIS WIFE RENTED A ROOM IN A HOUSE - WITHOUT KITCHEN PRIVILEGES - ON OCTOBER 9, WITH THE UNDERSTANDING THAT HE WOULD SECURE THE WHOLE HOUSE IN ONE MONTH'S TIME, AND THAT HE TOOK OVER THE ENTIRE HOUSE ON NOVEMBER 9, 1951. ALSO, IT IS STATED THAT GOVERNMENT QUARTERS WERE AVAILABLE TO THE OFFICER IN HIS OWN RIGHT DURING THE PERIOD OCTOBER 4 TO 8, 1951.

PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS, AS AMENDED BY INSTRUCTION MEMORANDUM 1-1, MARCH 2, 1951, PROVIDES AS FOLLOWS:

"EXCEPT AS OTHERWISE AUTHORIZED IN THESE REGULATIONS, STATION PER DIEM ALLOWANCES ARE PAYABLE TO MEMBERS COMMENCING THE DAY FOLLOWING THE DAY OF ARRIVAL AT, TO AND INCLUDING THE DAY PRIOR TO THE DAY OF DEPARTURE FROM, THE PERMANENT STATION. MEMBERS UPON INITIAL ASSIGNMENT TO AN OVERSEAS AREA, AND UPON SUBSEQUENT TRANSFER FROM ONE FOREIGN COUNTRY TO ANOTHER FOREIGN COUNTRY, WHO ARE NOT FURNISHED GOVERNMENT QUARTERS WILL BE ENTITLED TO A STATION PER DIEM ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE PRESCRIBED FOR THAT AREA FOR THE FIRST 45 DAYS, SUBJECT TO THE DEDUCTIONS PRESCRIBED IN PAR. 4254 WHEN GOVERNMENT MESS IS AVAILABLE FOR THE MEMBER OR FOR THE MEMBER AND HIS DEPENDENTS IF WITH DEPENDENTS. WHEN GOVERNMENT QUARTERS ARE FURNISHED OR PERMANENT HOUSING IS OBTAINED, THIS ALLOWANCE WILL BE REDUCED TO THE REGULAR STATION PER DIEM ALLOWANCE FOR THAT AREA, EVEN THOUGH THE INITIAL 45 DAYS MAY NOT HAVE ELAPSED. THE PERIOD OF 45 DAYS CONTEMPLATED BY THIS PARAGRAPH WILL BEGIN ON THE DAY FOLLOWING THE DAY OF ARRIVAL."

THE FOREGOING REGULATIONS WERE ISSUED UNDER AUTHORITY CONTAINED IN SECTION 303(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WHICH PERMITS THE PRESCRIBING OF PER DIEM ALLOWANCES FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, "CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES." RATES OF PER DIEM FOR LOCALITIES OUTSIDE THE UNITED STATES ARE FIXED IN APPENDIX B OF SAID JOINT TRAVEL REGULATIONS, A STATION RATE AND A HIGHER TRAVEL RATE BEING PRESCRIBED IN MOST INSTANCES. HOWEVER, NO STATION RATE IS FIXED FOR OFFICERS ON DUTY IN THE HAWAIIAN AREA. PRESUMABLY, THE PURPOSE OF THE REGULATIONS CONTAINED IN SAID PARAGRAPH 4303 IN ALLOWING THE HIGHER TRAVEL RATE FOR PERIODS UP TO 45 DAYS FOLLOWING DATE OF ARRIVAL AT A STATION OUTSIDE THE UNITED STATES, WAS TO PROVIDE REIMBURSEMENT FOR THE MORE THAN NORMAL EXPENSES USUALLY INCURRED AT HOTELS AND PUBLIC RESTAURANTS PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR WHILE THE MEMBER CONCERNED MAKES ARRANGEMENTS FOR SECURING OTHER PERMANENT LIVING ACCOMMODATIONS AT A STATION WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE.

IT APPEARS THAT THE RIGHT OF THE OFFICER TO THE PER DIEM ALLOWANCE HERE INVOLVED HAS BEEN QUESTIONED ADMINISTRATIVELY. IN A LETTER DATED FEBRUARY 7, 1952, ADDRESSED TO YOU FROM THE OFFICE OF THE QUARTERMASTER GENERAL OF THE MARINE CORPS IT WAS STATED THAT THE ABOVE-QUOTED REGULATIONS INDICATE THAT IF THE MEMBER IS TO BE ENTITLED TO A PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR THE AREA, HIS ENTITLEMENT MUST BEGIN ON THE DAY FOLLOWING THE DAY OF HIS ARRIVAL AND SINCE CAPTAIN RINEHART WAS A MEMBER WITHOUT DEPENDENTS AT THE TIME OF HIS ARRIVAL AT HIS STATION, WITHIN THE MEANING OF THE REGULATIONS (PARAGRAPH 4301-3 OF THE JOINT TRAVEL REGULATIONS), HE WAS NOT ENTITLED TO THE ALLOWANCE CLAIMED IF GOVERNMENT QUARTERS WERE AVAILABLE FOR HIM AS AN OFFICER WITHOUT DEPENDENTS. IT IS INDICATED THAT SUCH QUARTERS DID EXIST. ALSO, ATTENTION WAS INVITED TO ADVISORY PANEL INSTRUCTION NO. 33-51, NOVEMBER 8, 1951, IN WHICH IT IS STATED THAT IF, AT THE TIME THE MEMBER ARRIVES AT HIS OVERSEAS STATION, GOVERNMENT QUARTERS ARE AVAILABLE FOR HIM IN HIS OWN RIGHT, AS DISTINGUISHED FROM QUARTERS FOR HIMSELF AND HIS DEPENDENTS, OR PERMANENT HOUSING IS OBTAINED, AND HIS DEPENDENTS HAVE NOT YET ARRIVED AT SUCH STATION, HE IS IMMEDIATELY DISQUALIFIED FOR SUBSEQUENT ENTITLEMENT TO STATION ALLOWANCE AT THE TRAVEL RATE. YOU APPEAR TO REGARD THE FOREGOING VIEWS AS SOMEWHAT STRAINED AND AS NOT REQUIRED BY THE LANGUAGE USED IN THE REGULATIONS.

IF, AS APPEARS, THE PURPOSE OF THE ABOVE-QUOTED REGULATIONS IS TO REIMBURSE AN OFFICER FOR THE MORE THAN NORMAL EXPENSES FOR QUARTERS AND SUBSISTENCE WHICH USUALLY WOULD BE INCURRED BY HIM WHILE SECURING PERMANENT LIVING ACCOMMODATIONS AFTER ARRIVAL AT HIS NEW STATION, SUCH PURPOSE WOULD BE DEFEATED TO A GREAT EXTENT AT STATIONS WHERE ONLY BACHELOR OFFICER QUARTERS ARE AVAILABLE IF THE FOREGOING ADMINISTRATIVE INTERPRETATIONS OF THE QUOTED REGULATIONS WERE CORRECT. IT IS BELIEVED TO BE THE EXCEPTION RATHER THAN THE RULE THAT DEPENDENTS PRECEDE OR TRAVEL WITH THE OFFICER CONCERNED TO HIS NEW STATION OVERSEAS. THUS, TO DENY PAYMENT AS IS PROPOSED TO ALL OFFICERS WHO ARRIVE IN ADVANCE OF THEIR DEPENDENTS AT STATIONS WHERE BACHELOR OFFICER QUARTERS ARE AVAILABLE WOULD SEEM TO ELIMINATE A LARGE NUMBER OF THE OFFICERS THE REGULATIONS WERE DESIGNATED TO BENEFIT. THEN TOO, IF A NUMBER OF OFFICERS ARRIVE AT A STATION, FOR ONLY A PART OF WHOM BACHELOR OFFICER QUARTERS ARE AVAILABLE, THE ADMINISTRATIVE INTERPRETATION WOULD PERMIT PAYMENT OF THE PRESCRIBED PER DIEM TO THOSE NOT ASSIGNED BACHELOR QUARTERS BUT NOT THE OTHERS AFTER ARRIVAL OF THEIR DEPENDENTS (FAMILY QUARTERS NOT BEING AVAILABLE), A RESULT WHICH WOULD BE UNJUST, SINCE THE EXPENSES OF ALL WOULD BE APPROXIMATELY THE SAME FOR SUCH PART OF THE 45 DAY PERIOD AS THEY WERE UNABLE TO SECURE PERMANENT LIVING ACCOMMODATIONS. THE LANGUAGE INDICATING THAT ENTITLEMENT FOR THE 45 DAY PERIOD SHALL COMMENCE ON THE DAY FOLLOWING THE DAY OF ARRIVAL DOES NOT NECESSARILY REQUIRE SUCH INTERPRETATION.

THE REGULATIONS AUTHORIZE PAYMENT OF THE PER DIEM "FOR THE FIRST 45 DAYS." ONE OF THE DEFINITIONS OF THE WORD "FOR" IN WEBSTER'S NEW INTERNATIONAL DICTIONARY IS AS FOLLOWS:

"11. EXPRESSING DURATION OF TIME OR EXTENSION OF SPACE; DURING; THROUGHOUT; IN OR THROUGH THE SPACE OR TIME OF; TO THE EXTENT OF."

HENCE, IT WOULD APPEAR THAT SAID REGULATIONS PROPERLY ARE TO BE INTERPRETED AS AUTHORIZING PER DIEM FOR ANY PART OF THE 45 DAY PERIOD DURING WHICH THE OFFICER CONCERNED OTHERWISE WOULD BE ELIGIBLE THEREFOR, WITHOUT REGARD TO WHETHER OR NOT HE WAS ENTITLED THERETO ON THE FIRST DAY OF THAT PERIOD.

WHILE CAPTAIN RINEHART AND HIS DEPENDENT CONTINUED TO LIVE IN THE SAME HOUSE ON AND AFTER NOVEMBER 9, 1951, IT WOULD SEEM THAT THE ACCOMMODATIONS AVAILABLE THEREAT COULD NOT BE REGARDED AS "PERMANENT HOUSING" PRIOR TO THAT DATE. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF CORRECT IN OTHER RESPECTS.