B-117520, APRIL 14, 1954, 33 COMP. GEN. 451

B-117520, APRIL 14, 1954, 33 COMP. GEN. 451

ALLOWANCES AND DIFFERENTIALS - FOREIGN DUTY - STATION PER DIEM ALLOWANCE AT TRAVEL RATE ON ACCOUNT OF OCCUPYING TEMPORARY LODGINGS AN ARMY OFFICER WHO ON ARRIVAL AT OVERSEAS POST WAS UNABLE TO OBTAIN FREE GOVERNMENT QUARTERS AND WHO OCCUPIED GOVERNMENT-OWNED RENTAL QUARTERS WHICH WERE INTENDED FOR OCCUPANCY FOR EXTENDED PERIODS AND WERE RENTED ON MONTHLY BASIS WITH NO PRORATING FOR SHORTER PERIODS MAY NOT BE REGARDED AS OCCUPYING "TEMPORARY LODGINGS" WITHIN THE MEANING OF PARAGRAPH 4303-2A, CHANGE 14, JOINT TRAVEL REGULATIONS, SO AS TO BE ENTITLED TO STATION PER DIEM ALLOWANCE AT TRAVEL RATE AS PROVIDED FOR MEMBERS REQUIRED TO SECURE TEMPORARY LODGINGS DURING FIRST 45 DAYS AFTER ARRIVAL AT OVERSEAS POST.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL F. E. BARR, DEPARTMENT OF THE ARMY, APRIL 14, 1954:

BY SECOND ENDORSEMENT OF OCTOBER 26, 1953, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 23, 1953, WITH ENCLOSURES, REQUESTING DECISION WHETHER NOEL R. GAINEY, CHIEF WARRANT OFFICER, IS ENTITLED TO STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR THE PERIOD COMMENCING AUGUST 6, 1953, AND PRESUMABLY CONTINUING FOR A PERIOD OF 44 DAYS THEREAFTER.

IT APPEARS THAT CHIEF WARRANT OFFICER GAINEY AND HIS DEPENDENT WIFE ARRIVED IN THE CANAL ZONE ON AUGUST 5, 1953, FOLLOWING RECEIPT OF ORDERS OF APRIL 9 AND JULY 21, 1953, DIRECTING HIM TO PROCEED FROM HIS STATION IN THE UNITED STATES TO FORT AMADOR, CANAL ZONE, ON A PERMANENT CHANGE OF STATION; THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR ASSIGNMENT ON THAT DATE; AND THAT HE WAS REQUIRED TO SECURE QUARTERS FOR HIMSELF AND HIS WIFE. IT IS STATED THAT THEY OCCUPIED QUARTERS JOINTLY WITH HIS BROTHER, SERGEANT O. H. GAINEY, IN GOVERNMENT-OWNED RENTAL QUARTERS UNDER THE JURISDICTION OF THE UNITED STATES NAVY WHICH WERE INTENDED FOR OCCUPANCY FOR EXTENDED PERIODS AND WHICH WERE RENTED ON A MONTHLY BASIS WITH NO PRORATING FOR SHORTER PERIODS.

PARAGRAPH 4303-2A, CHANGE 14, JOINT TRAVEL REGULATIONS, AUGUST 1, 1953, PROVIDED THAT UPON INITIAL ASSIGNMENT TO AN AREA OVERSEAS, A MEMBER "WHO IS NOT FURNISHED GOVERNMENT QUARTERS AND WHO IS REQUIRED TO SECURE TEMPORARY LODGINGS" FOR HIMSELF AND HIS DEPENDENTS, IF WITH DEPENDENTS, FOR ANY PERIOD DURING THE FIRST 45 DAYS AFTER HIS ARRIVAL, SHALL BE ENTITLED TO STATION PER DIEM ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE PRESCRIBED FOR THAT AREA, WITH APPROPRIATE DEDUCTIONS WHERE GOVERNMENT MESS IS AVAILABLE. ALSO, PROVISION WAS MADE FOR THE TERMINATION OR SUSPENSION OF SUCH TRAVEL RATE FOR PERIODS WHEN ADEQUATE GOVERNMENT OR PERMANENT SUITABLE HOUSING WAS OBTAINED OR UTILIZED AS DETERMINED BY THE COMMANDING OFFICER OR OTHER APPROPRIATE OFFICER.

RATES OF PER DIEM FOR LOCALITIES OUTSIDE THE UNITED STATES ARE FIXED IN APPENDIX B OF THE JOINT TRAVEL REGULATIONS, A STATION RATE AND A HIGHER TRAVEL RATE BEING PRESCRIBED IN MOST INSTANCES. WHILE THE GENERAL TRAVEL RATE OF $9 PER DAY IS APPROPRIATE FOR TRAVEL IN THE CANAL ZONE, NO STATION RATE IS PRESCRIBED FOR OFFICERS ON DUTY IN THAT AREA.

THE APPARENT PURPOSE OF THE REGULATIONS CONTAINED IN PARAGRAPH 4303 2A, IN ALLOWING THE 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 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. THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT CHIEF WARRANT OFFICER GAINEY WAS REQUIRED TO SECURE HIS QUARTERS AND MEALS ON THAT BASIS OR THAT HE INCURRED MORE THAN NORMAL EXPENSES FOR THOSE ITEMS DURING THE PERIOD INVOLVED. ON THE CONTRARY, IT APPEARS THAT HE AND HIS WIFE ACTUALLY RESIDED IN GOVERNMENT QUARTERS WHICH THE NAVY MADE AVAILABLE TO HIS BROTHER ON A RENTAL BASIS. SINCE SUCH RENTAL QUARTERS DOUBTLESS WERE INTENDED FOR OCCUPANCY FOR EXTENDED PERIODS AND WERE UNDER THE JURISDICTION OF THE NAVY, IT MUST BE ASSUMED THAT THE CLAIMANT AND OTHER MILITARY PERSONNEL WOULD REGARD SUCH QUARTERS AS DESIRABLE FOR PERMANENT OCCUPANCY DURING THEIR TOURS OF DUTY IN THE CANAL ZONE IN THE ABSENCE OF GOVERNMENT QUARTERS AVAILABLE FOR ASSIGNMENT TO THEM WITHOUT RENTAL CHARGE. UNDER THE CIRCUMSTANCES, THE RENTAL QUARTERS MAY NOT BE REGARDED AS "TEMPORARY LODGINGS" WITHIN THE MEANING OF THE CITED REGULATIONS.

WHILE THE FACTS APPEAR TO BE SUCH THAT THE COMMANDING OFFICER PROPERLY COULD HAVE CERTIFIED THAT SUITABLE PERMANENT HOUSING WAS OCCUPIED BY CHIEF WARRANT OFFICER GAINEY AND HIS WIFE, SUCH A CERTIFICATE, OR ONE TO THE CONTRARY, WOULD NOT BE CONCLUSIVE OF MR. GAINEY'S RIGHT TO THE ALLOWANCE CLAIMED, THAT RIGHT BEING DEPENDENT ON THE PROPER INTERPRETATION OF THE ABOVE-CITED REGULATIONS.

FOR THE REASONS STATED, PAYMENT ON THE BASIS OF THE MILITARY PAY ORDER SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED AND SUCH PAY ORDER WILL BE RETAINED IN THIS OFFICE.