B-129304, OCT. 12, 1956

B-129304: Oct 12, 1956

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HE AND HIS FAMILY WERE PERMITTED TO RESIDE TEMPORARILY IN THE VISITING OFFICERS' QUARTERS (GUEST HOUSE) FROM AUGUST 14 TO 26. THAT HIS BASIC ALLOWANCE FOR QUARTERS WAS STOPPED DURING THAT PERIOD. YOU STATE THAT DOUBT EXISTS AS TO WHETHER THE WITHHOLDING OF SUCH ALLOWANCE WAS PROPER. PROVIDES THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES "IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES" BY A MEMBER AND HIS DEPENDENTS "SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. " AND THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO THE MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

B-129304, OCT. 12, 1956

TO CAPTAIN R. A. MOERKE, USAF, FINANCE OFFICER:

BY LETTER DATED SEPTEMBER 21, 1956, THE COMMANDER, HEADQUARTERS, 329TH FIGHTER GROUP (AD), UNITED STATES AIR FORCE, STEWART AIR FORCE BASE, NEWBURGH, NEW YORK, FORWARDED YOUR LETTER OF SEPTEMBER 17, 1956, SUBMITTING FOR ADVANCE DECISION A DEPENDENCY CERTIFICATE (DD FORM 137) SIGNED BY COLONEL WILLIAM R. GROHS, USAF, 1228A, TO SUPPORT HIS CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS (WIFE AND CHILDREN).

IN YOUR LETTER YOU INDICATE THAT COLONEL GROHS MADE A PERMANENT CHANGE OF STATION FROM ALBROOK AIR FORCE BASE, PANAMA CANAL ZONE TO HEADQUARTERS EASTERN AIR DEFENSE FORCE, STEWART AIR FORCE BASE, NEWBURGH, NEW YORK; THAT, UPON HIS ARRIVAL, HE AND HIS FAMILY WERE PERMITTED TO RESIDE TEMPORARILY IN THE VISITING OFFICERS' QUARTERS (GUEST HOUSE) FROM AUGUST 14 TO 26, 1954, WHILE LOOKING FOR SUITABLE OFF BASE QUARTERS; THAT COLONEL GROHS PAID A SERVICE CHARGE OF $1.50 PER DAY FOR EACH MEMBER OF HIS FAMILY; AND THAT HIS BASIC ALLOWANCE FOR QUARTERS WAS STOPPED DURING THAT PERIOD. YOU STATE THAT DOUBT EXISTS AS TO WHETHER THE WITHHOLDING OF SUCH ALLOWANCE WAS PROPER, CITING PARAGRAPH 20402, AFM 173-20, AND OUR DECISION OF JANUARY 6, 1956, B-124875.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES "ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES," APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS. EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, ISSUED PURSUANT TO SECTION 302 OF THE 1949 ACT, PROVIDES THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES "IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES" BY A MEMBER AND HIS DEPENDENTS "SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS," AND THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO THE MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. PARAGRAPH 20402, AFM 173-20, CONTAINS SIMILAR PROVISIONS.

IN THE DECISION OF JANUARY 6, 1956, B-124875, TO WHICH YOU REFER, IT WAS HELD THAT SINCE THE OFFICER AND HIS DEPENDENT IN FACT OCCUPIED PUBLIC QUARTERS WITHOUT THE PAYMENT OF RENTAL CHARGES--- THE CHARGE MADE BEING A "SERVICE CHARGE" AND NOT RENT--- HE WAS, UNDER THE LAW AND REGULATIONS, ASSIGNED QUARTERS APPROPRIATE TO HIS GRADE AND ADEQUATE FOR HIM AND HIS DEPENDENT AND, THEREFORE, THAT HE WAS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS DURING SUCH OCCUPANCY.

FROM THE STATEMENTS MADE IN YOUR LETTER IT APPEARS THAT THE OFFICER AND HIS DEPENDENTS OCCUPIED ACCOMMODATIONS IN THE GUEST HOUSE SOLELY FOR THEIR OWN CONVENIENCE WHILE MAKING ARRANGEMENTS FOR PRIVATE QUARTERS OFF THE BASE. SINCE THE OFFICER AND HIS DEPENDENTS TRAVELED TO STEWART AIR FORCE BASE ON PERMANENT CHANGE OF STATION, IT REASONABLY APPEARS THAT HE AND HIS DEPENDENTS INTENDED TO STAY AT THE NEW STATION INDEFINITELY AND THAT THERE WAS NO INTENTION OF MAKING SUCH STAY THERE A SOCIAL VISIT OF A TEMPORARY NATURE WITHIN THE MEANING OF THAT PHRASE AS USED IN THE EXECUTIVE ORDER AND THE CITED REGULATIONS.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, IT IS CONCLUDED THAT THE TEMPORARY OCCUPANCY OF THE GUEST HOUSE BY THE OFFICER AND HIS DEPENDENTS DURING THE PERIOD FROM AUGUST 14 TO 26, 1954, WAS NOT A "SOCIAL VISIT" SO AS TO ENTITLE HIM TO BASIC ALLOWANCE FOR QUARTERS WITH DEPENDENTS.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE RETAINED HERE. COMPARE 34 COMP. GEN. 515.