B-121174, OCTOBER 5, 1954, 34 COMP. GEN. 154

B-121174: Oct 5, 1954

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THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF STATION PER DIEM ALLOWANCES FOR OVERSEAS DUTY WAS BASED ON NON-AVAILABILITY OF GOVERNMENT QUARTERS TO THE PERSON CONCERNED AND. WHERE BACHELOR QUARTERS BUT NO FAMILY QUARTERS WERE AVAILABLE. MAY NOT BE PAID SUCH ALLOWANCES FOR ANY PERIOD PRIOR TO DATE THE REGULATIONS WERE ISSUED. 1954: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3. WHICH DISALLOWED YOUR CLAIM FOR STATION QUARTERS PER DIEM WHILE YOU WERE SERVING AS A MASTER SERGEANT. YOUR CLAIM IS ON THE BASIS THAT YOUR DEPENDENTS RESIDED WITH YOU IN TRIESTE DURING THE PERIOD OF YOUR CLAIM AND THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE. STATES THAT YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS DURING THAT PERIOD.

B-121174, OCTOBER 5, 1954, 34 COMP. GEN. 154

STATION PER DIEM ALLOWANCE - MILITARY, NAVAL, ETC., PERSONNEL - FOREIGN DUTY STATIONS - AVAILABILITY OF GOVERNMENT QUARTERS; REGULATIONS - ADMINISTRATIVE - EFFECTIVE DATE PRIOR TO ENACTMENT OF SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949 AND THE ISSUANCE OF REGULATIONS PURSUANT THERETO, THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF STATION PER DIEM ALLOWANCES FOR OVERSEAS DUTY WAS BASED ON NON-AVAILABILITY OF GOVERNMENT QUARTERS TO THE PERSON CONCERNED AND, THEREFORE, ARMY ENLISTED MEN WHOSE DEPENDENTS RESIDED WITH THEM IN TRIESTE, WHERE BACHELOR QUARTERS BUT NO FAMILY QUARTERS WERE AVAILABLE, MAY NOT BE PAID SUCH ALLOWANCES FOR ANY PERIOD PRIOR TO DATE THE REGULATIONS WERE ISSUED.

ACTING COMPTROLLER GENERAL WEITZEL TO MORRIS W. DONALDSON, OCTOBER 5, 1954:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1954, IN EFFECT REQUESTING OF SETTLEMENT DATED APRIL 29, 1954, WHICH DISALLOWED YOUR CLAIM FOR STATION QUARTERS PER DIEM WHILE YOU WERE SERVING AS A MASTER SERGEANT, REGULAR ARMY, IN THE FREE TERRITORY OF TRIESTE DURING THE PERIOD JUNE 27, 1949, TO MARCH 31, 1951.

YOUR CLAIM IS ON THE BASIS THAT YOUR DEPENDENTS RESIDED WITH YOU IN TRIESTE DURING THE PERIOD OF YOUR CLAIM AND THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE. LETTER ORDER NO. 3-126, MARCH 31, 1951, HEADQUARTERS, TRIESTE UNITED STATES TROOPS, APO 209, U.S. ARMY, STATES THAT YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS DURING THAT PERIOD, AND THE RECORD SHOWS THAT YOU WERE PAID A BASIC ALLOWANCE FOR QUARTERS AT THAT TIME. FIRST ENDORSEMENT 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, 814, 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 PAYMENT OF THE QUARTERS PER DIEM. 31 COMP. GEN. 399. 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 "1GOVERNMENT 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. PARAGRAPH 4A OF SUCH REGULATIONS AS AMENDED JUNE 30, 1950, PROVIDED THAT ENLISTED MEN WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812,"SHALL BE ENTITLED IN ADDITION THERETO, TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS.' THE STATION QUARTERS RATE THEN PRESCRIBED FOR OFFICERS ON DUTY IN TRIESTE WAS $1 PER DAY. (SEE SECTION II, SPECIAL REGULATIONS 35-3080-1.)

WHILE THE CITED REGULATIONS WERE STATED TO BE EFFECTIVE AS OF OCTOBER 1, 1949, SECTION 303 (H) OF THE 1949 ACT, 63 STAT. 815, 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 STATION QUARTERS PER DIEM FOR THAT PERIOD. HOWEVER, YOU ARE ENTITLED TO SUCH ALLOWANCE FOR THE PERIOD JUNE 30, 1950, TO MARCH 31, 1951, AT THE RATE OF $1 PER DAY AND A SETTLEMENT ALLOWING THE AMOUNT DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.