B-123273, MAY 4, 1955

B-123273: May 4, 1955

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SWARTZ: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. WHILE YOU WERE STATIONED IN THE FREE TERRITORY OF TRIESTE. YOUR CLAIM FOR THE SUBSISTANCE PORTION OF THE STATION PER DIEM ALLOWANCE IS SUBSTANTIALLY THE SAME AS THAT OF CAPTAIN FLOYD R. THERE IS NO AUTHORITY FOR THE PAYMENT OF THAT PART OF YOUR CLAIM. IF BACHELOR QUARTERS WERE AVAILABLE FOR ALL PERSONNEL WITHOUT DEPENDENTS. THAT FACT SHOULD NOT BE INTERPRETED TO MEAN THAT SUCH QUARTERS WOULD HAVE BEEN AVAILABLE TO ALL PERSONS WITH DEPENDENTS HAD THEY CHOSEN TO LIVE APART FROM THEIR DEPENDENTS. IT IS NOT. A QUESTION OF WHAT WOULD HAVE BEEN AVAILABLE IN SUCH AN EVENTUALITY. SINCE IT CANNOT BE SAID THAT QUARTERS PER DIEM IS PAYABLE TO ALL OFFICERS WITH DEPENDENTS UNLESS THE GOVERNMENT MAINTAINS SUFFICIENT BACHELOR QUARTERS TO PERMIT ASSIGNMENT TO ALL OFFICERS.

B-123273, MAY 4, 1955

PRECIS-UNAVAILABLE

CAPTAIN GEORGE J. SWARTZ:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 25, 1955, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCE FOR VARIOUS INTERVALS DURING THE PERIOD JANUARY 11, 1950, TO FEBRUARY 28, 1951, WHILE YOU WERE STATIONED IN THE FREE TERRITORY OF TRIESTE.

YOUR CLAIM FOR THE SUBSISTANCE PORTION OF THE STATION PER DIEM ALLOWANCE IS SUBSTANTIALLY THE SAME AS THAT OF CAPTAIN FLOYD R. STANFIELD, CONSIDERED IN DECISION DATED MARCH 17, 1953, B-111431, COPY ENCLOSED. FOR THE REASONS STATED IN THAT DECISION, THERE IS NO AUTHORITY FOR THE PAYMENT OF THAT PART OF YOUR CLAIM.

CONCERNING THE QUARTERS PORTION OF SUCH ALLOWANCE, YOUR STATEMENT HAS BEEN NOTED THAT, IF BACHELOR QUARTERS WERE AVAILABLE FOR ALL PERSONNEL WITHOUT DEPENDENTS, THAT FACT SHOULD NOT BE INTERPRETED TO MEAN THAT SUCH QUARTERS WOULD HAVE BEEN AVAILABLE TO ALL PERSONS WITH DEPENDENTS HAD THEY CHOSEN TO LIVE APART FROM THEIR DEPENDENTS. IT IS NOT, HOWEVER, A QUESTION OF WHAT WOULD HAVE BEEN AVAILABLE IN SUCH AN EVENTUALITY, SINCE IT CANNOT BE SAID THAT QUARTERS PER DIEM IS PAYABLE TO ALL OFFICERS WITH DEPENDENTS UNLESS THE GOVERNMENT MAINTAINS SUFFICIENT BACHELOR QUARTERS TO PERMIT ASSIGNMENT TO ALL OFFICERS, INCLUDING THOSE WHO LIVE WITH THEIR DEPENDENTS AND WHO WOULD NOT USE SUCH QUARTERS IF ASSIGNED. IT IS SUFFICIENT IF BACHELOR QUARTERS WERE AVAILABLE FOR ALL WHO REQUESTED SUCH QUARTERS. AN OFFICER'S RIGHT TO THE QUARTERS PER DIEM DURING THE PERIOD INVOLVED WAS BASED ON THE NONAVAILABILITY OF QUARTERS TO HIM PERSONALLY (31 COMP. GEN. 399) AND HE MUST AFFIRMATIVELY SHOW THAT SUCH QUARTERS WERE NOT AVAILABLE. AN ELECTION BY AN OFFICER TO LIVE WITH HIS DEPENDENTS DOES NOT ESTABLISH THAT BACHELOR QUARTERS WERE NOT AVAILABLE. FIRST INDORSEMENT OF DECEMBER 22, 1952, HEADQUARTERS, TRIESTE UNITED STATES TROOPS, STATES THAT BACHELOR OFFICER QUARTERS "HAVE NEVER BEEN SUFFICIENT FOR ALL PERSONNEL AS MEMBERS WITHOUT DEPENDENTS." SUCH REPORT INDICATES THAT BACHELOR QUARTERS WERE AVAILABLE FOR ALL OFFICERS WHO ASKED FOR THEM AND, IN THE ABSENCE OF EVIDENCE SHOWING THAT YOU REQUESTED ASSIGNMENT OF SUCH QUARTERS AND THAT SUCH REQUEST WAS DENIED, THERE IS NO AUTHORITY FOR THE PAYMENT OF STATION QUARTERS PER DIEM TO YOU.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 25, 1955, IS SUSTAINED.