B-134980, FEB. 26, 1958

B-134980, FEB. 26, 1958

TO COLONEL WILLIAM JAY FLEMING, U.S.A. (RET):

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 26, 1957, IN EFFECT REQUESTING A REVIEW OF THAT PART OF SETTLEMENT DATED JULY 8, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION QUARTERS PER DIEM WHILE YOU WERE SERVING ON ACTIVE DUTY IN THE FREE TERRITORY OF TRIESTE DURING THE PERIOD JUNE 18, 1948, TO MARCH 31, 1951.

LETTER ORDER NO. 3-76, MARCH 27, 1951, HEADQUARTERS, TRIESTE, UNITED STATES TROOP, APO 209, U.S. ARMY STATES THAT YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS DURING THAT PERIOD.

PRIOR TO ENACTMENT OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 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 "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. PARAGRAPH 4A OF SUCH REGULATIONS AS AMENDED JUNE 30, 1950, PROVIDED THAT OFFICERS AND ENLISTED MEN WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 "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, 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. SINCE YOU HAVE CERTIFIED THAT YOU OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD JUNE 30, 1950, TO MARCH 31, 1951, YOU WERE NOT ENTITLED TO STATION QUARTERS PER DIEM UNDER ..END :