B-132328, AUG. 29, 1957

B-132328: Aug 29, 1957

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REYNOLDS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 10. YOU STATE THAT YOUR DEPENDENTS RESIDED WITH YOU DURING THE PERIOD COVERED BY YOUR CLAIM AND YOU HAVE SUBMITTED A COPY OF LETTER ORDER NO. 3-121. STATING THAT YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS DURING THE PERIOD FROM JUNE 23. WE WERE ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE AT TRIESTE FOR "ALL" ENLISTED MEN WITHOUT DEPENDENTS. 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. THE AVAILABILITY OF BACHELOR QUARTERS AT TRIESTE WAS SUFFICIENT TO BAR YOUR RIGHT TO STATION QUARTERS PER DIEM.

B-132328, AUG. 29, 1957

TO MASTER SERGEANT THOMAS F. REYNOLDS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1957, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 29, 1957, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCE INCIDENT TO YOUR ASSIGNMENT TO DUTY IN TRIESTE DURING THE PERIOD FROM APRIL 7, 1948, TO JUNE 29, 1950.

YOU STATE THAT YOUR DEPENDENTS RESIDED WITH YOU DURING THE PERIOD COVERED BY YOUR CLAIM AND YOU HAVE SUBMITTED A COPY OF LETTER ORDER NO. 3-121, DATED MARCH 31, 1952, HEADQUARTERS, TRIESTE UNITED STATES TROOPS, APO 209, U.S. ARMY, STATING THAT YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS DURING THE PERIOD FROM JUNE 23, 1950. BY A COMMUNICATION DATED DECEMBER 22, 1952, FROM THE SAME HEADQUARTERS, WE WERE ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE AT TRIESTE FOR "ALL" ENLISTED MEN WITHOUT DEPENDENTS.

PRIOR TO THE ENACTMENT OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 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, THE AVAILABILITY OF BACHELOR QUARTERS AT TRIESTE WAS SUFFICIENT TO BAR YOUR RIGHT TO STATION QUARTERS PER DIEM. SEE 31 COMP. GEN. 399, 403. SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, HOWEVER, PERMITTED CONSIDERATION OF ALL ELEMENTS OF COST OF LIVING TO MEMBERS OF THE ARMED SERVICES "AND THEIR DEPENDENTS" IN FIXING THE RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES. THE FIRST REGULATIONS PURPORTING 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 QUARTERS, 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 STATION PER DIEM ALLOWANCE COVERING THE PERIOD FROM JUNE 30, 1950, TO MARCH 31, 1951, WAS ALLOWED UNDER THOSE REGULATIONS BY OUR SETTLEMENT DATED MARCH 1, 1957, IN THE AMOUNT OF $275. BY LETTER DATED APRIL 22, 1957, YOU ACKNOWLEDGED RECEIPT OF THAT AMOUNT "AS A PART SETTLEMENT" OF YOUR CLAIM.

WHILE THE APPLICABLE REGULATIONS WERE STATED TO BE EFFECTIVE AS OF OCTOBER 1, 1949, SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 815, WHICH PROVIDED FOR THE PROMULGATION OF REGULATIONS BY THE SECRETARIES OF THE UNIFORMED SERVICES TO IMPLEMENT THE PROVISIONS OF SECTION 303 OF THE ACT, STIPULATED THAT "NO PROVISION 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 "ISSUED," 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 THE REGULATIONS.

ACCORDINGLY, AND SINCE IT IS ADMINISTRATIVELY REPORTED THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR YOU PERSONALLY DURING THE PERIOD PRIOR TO JUNE 30, 1950, THE SETTLEMENT OF MAY 29, 1957, WAS CORRECT AND MUST BE SUSTAINED. CF. 34 COMP. GEN. 154.

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