B-120708, AUG 26, 1954

B-120708, AUG 26, 1954

PRECIS-UNAVAILABLE

MR. BERNARD H. ERICKSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1954, RELATIVE TO SETTLEMENT DATED APRIL 14, 1954, WHICH ALLOWED $191 ON YOUR CLAIM FOR STATION PER DIEM FOR THE PERIOD APRIL 13, 1949, TO JANUARY 6, 1951, WHILE YOU WERE STATIONED IN THE FREE TERRITORY OF TRIESTE.

YOU STATE THAT YOUR WIFE RESIDED WITH YOU DURING THE PERIOD OF YOUR CLAIM AND YOU HAVE SUBMITTED A COPY OF LETTER ORDER NO. 3-118, MARCH 31, 1951, HEADQUARTERS, TRIESTE UNITED STATES TROOPS, APO 209, U.S. ARMY, STATING THAT YOU WERE AUTHORIZED STATION QUARTERS PER DIEM DURING THE PERIOD INVOLVED. FIRST INDORSEMENT OF DECEMBER 22, 1952, SAME HEADQUARTERS, STATES THAT GOVERNMENT QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL ENLISTED MEN WITHOUT DEPENDENTS.

PRIOR TO ENACTMENT OF SECTION 303(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY WAS BASED ON NONAVAILABILITY OF GOVERNMENT QUARTERS TO THE PERSON CONCERNED, WITHOUT REGARD TO WHETHER FAMILY QUARTERS WERE AVAILABLE FOR HIS DEPENDENTS. CONSEQUENTLY, AVAILABILITY OF BACHELOR QUARTERS WAS SUFFICIENT TO BAR A RIGHT TO THE QUARTERS PER DIEM. 31 COMP. GEN. 399. SAID SECTION 303(B) PERMITTED CONSIDERATION OF ALL ELEMENTS OF COST OF LIVING TO MEMBERS "AND THEIR DEPENDENTS" IN FIXING THE RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES. THE FIRST REGULATIONS WHICH PURPORTED TO CONSIDER THE COST OF LIVING OF DEPENDENTS OF ARMY PERSONNEL WERE ISSUED UNDER DATE OF JUNE 30, 1950, AND THEY AMENDED PARAGRAPH 2E OF SPECIAL REGULATIONS 35- 3080-1 TO PROVIDE THAT, FOR PERSONNEL IN A NONTRAVEL STATUS WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF THEIR PERMANENT STATIONS, THE TERM "GOVERNMENT QUARTERS" SHALL INCLUDE ANY GOVERNMENT QUARTERS ADEQUATE FOR ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS OR GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT OCCUPIED BY THE MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS. YOUR CLAIM FOR THE PERIOD ON AND AFTER JUNE 30, 1950, WAS ALLOWED UNDER SUCH REGULATIONS.

WHILE THE CITED REGULATIONS WERE STATED TO BE EFFECTIVE AS OF OCTOBER 1, 1949, SECTION 303(B) OF THE 1949 ACT, WHICH PROVIDED FOR THE PROMULGATION OF REGULATIONS TO IMPLEMENT THE DIFFERENT PROVISIONS OF SAID SECTION 303, STIPULATED THAT "NO PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN ISSUED." SINCE THE PROVISIONS OF LAW ON WHICH THE JUNE 30, 1950, REGULATIONS WERE BASED DID NOT BECOME EFFECTIVE UNTIL SUCH REGULATIONS WERE PROMULGATED, THE REGULATIONS THEMSELVES COULD NOT TAKE EFFECT AT AN EARLIER DATE AND NO RIGHT TO STATION QUARTERS PER DIEM ACCRUED TO YOU FOR THE PERIOD PRIOR TO JUNE 30, 1950, AS A RESULT OF THE ISSUANCE OF SUCH REGULATIONS.

IN VIEW OF THE FACT THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR YOU PERSONALLY FOR THE PERIOD PRIOR TO JUNE 30, 1950, THERE IS NO AUTHORITY FOR THE PAYMENT OF ADDITIONAL STATION PER DIEM FOR THAT PERIOD. ACCORDINGLY, THE SETTLEMENT OF APRIL 14, 1954, IS SUSTAINED.