B-134850, MAR. 5, 1958

B-134850, MAR. 5, 1958

TO ROBERT G. HENRY, 388 27 96, PN1, USN:

REFERENCE IS MADE TO YOUR REQUEST OF NOVEMBER 21, 1957, FOR REVIEW OF THE SETTLEMENT DATED MARCH 11, 1957, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCE AT THE TRAVEL PER DIEM RATE FOR THE PERIOD JULY 14 TO AUGUST 13, 1954, INCIDENT TO YOUR ASSIGNMENT TO DUTY AT THE FLEET TRAINING CENTER, PEARL HARBOR, TERRITORY OF HAWAII.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253, PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE AND OTHER NECESSARY INCIDENTAL EXPENSES. REGULATIONS PROMULGATED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4303- 2A, CHANGE 22, APRIL 1, 1954, OF THOSE REGULATIONS ON WHICH YOU APPARENTLY BASE YOUR CLAIM, PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * UPON INITIAL ASSIGNMENT TO A PERMANENT STATION OUTSIDE THE UNITED STATES AND UPON SUBSEQUENT TRANSFER FROM ONE PERMANENT STATION OUTSIDE THE UNITED STATES TO ANOTHER PERMANENT STATION OUTSIDE THE UNITED STATES REQUIRING A CHANGE IN RESIDENCE, A MEMBER WHO IS NOT FURNISHED GOVERNMENT QUARTERS FOR HIMSELF OR FOR HIMSELF AND HIS DEPENDENTS, IF WITH DEPENDENTS, AT HIS NEW DUTY STATION AND WHO IS REQUIRED TO SECURE TEMPORARY LODGINGS FOR HIMSELF OR FOR HIMSELF AND/OR HIS DEPENDENTS, IF WITH DEPENDENTS, FOR ANY PERIOD DURING THE FIRST 45 DAYS AFTER ARRIVAL THEREAT SHALL BE ENTITLED TO A STATION PER DIEM ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE PRESCRIBED FOR THAT AREA, SUBJECT TO THE DEDUCTIONS PRESCRIBED IN PAR. 4254 WHERE GOVERNMENT MESS IS AVAILABLE FOR THE MEMBER OR FOR THE MEMBER AND HIS DEPENDENTS, IF WITH DEPENDENTS. * *

AS WAS STATED IN 33 COMP. GEN. 451, THE APPARENT PURPOSE OF THE REGULATIONS IN ALLOWING PAYMENT OF STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR PERIODS UP TO 45 DAYS AFTER ARRIVAL AT A STATION OUTSIDE THE UNITED STATES IS TO PROVIDE REIMBURSEMENT FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS AND RESTAURANTS PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR WHILE THE MEMBER CONCERNED MAKES ARRANGEMENTS FOR SECURING OTHER PERMANENT LIVING ACCOMMODATIONS. THE CERTIFICATION WHICH ACCOMPANIED YOUR ORIGINAL CLAIM "THAT GOVERNMENT QUARTERS WERE NOT FURNISHED FOR MYSELF AND SAID DEPENDENTS FROM 13 JULY 1954 TO 13 AUGUST 1954; THAT I RESIDED WITH SAID DEPENDENTS AT 1609 ALA WAI BOULEVARD, APT. B., HONOLULU, T.H. DURING THE ABOVE DATES * * *" TOGETHER WITH THE ADMINISTRATIVE REPORT THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE DURING THIS PERIOD, INDICATES THAT IT IS ON THE BASIS OF UNAVAILABILITY OF GOVERNMENT QUARTERS AND MESS ALONE THAT YOUR CLAIM FOR STATION PER DIEM ALLOWANCES IS PREMISED.

THE MERE FACT THAT YOU WERE NOT ASSIGNED GOVERNMENT QUARTERS DURING THIS PERIOD, OR THAT SUCH QUARTERS SUBSEQUENTLY MAY HAVE BEEN ASSIGNED YOU, IS NOT DETERMINATIVE OF YOUR RIGHT TO TEMPORARY STATION PER DIEM ALLOWANCES. AS INDICATED ABOVE, YOUR ENTITLEMENT TO SUCH ALLOWANCES IS DEPENDENT UPON WHETHER YOU NECESSARILY OCCUPIED HOUSING OF THE TYPE USUALLY OCCUPIED BY TRANSIENTS AT A COST GREATER THAN THAT WHICH ORDINARILY WOULD BE INCURRED IN OCCUPYING HOUSING ON A LONG-TERM BASIS.

THERE IS NOTHING IN THE RECORD TO SHOW THAT THE QUARTERS OCCUPIED BY YOU WERE OF A TYPE DIFFERENT FROM THAT GENERALLY OCCUPIED BY OTHERSIN HONOLULU ON A PERMANENT BASIS. IF, AS YOU STATE, OTHER PERSONNEL SIMILARLY SITUATED HAVE RECEIVED THE TEMPORARY STATION ALLOWANCES SUCH PAYMENTS WERE ERRONEOUS AND AFFORD NO LEGAL BASIS FOR THE PAYMENT OF SUCH ALLOWANCES IN YOUR CASE.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF MARCH 11, 1957, MUST BE, AND IS, SUSTAINED.