B-137731, JAN 2, 1959

B-137731, JAN 2, 1959

PRECIS-UNAVAILABLE

CAPTAIN M.L. O'DELL, USAF:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1958, REQUESTING DECISION WHETHER CAPTAIN EDGAR L. GARLAND, USAF, AO 934715, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD MARCH 16 TO APRIL 11, 1958. IT IS STATED THAT THE REQUEST WAS APPROVED FOR SUBMISSION BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. 374. WITH YOUR LETTER, AMONG OTHER ENCLOSURES, IS A MILITARY PAY ORDER AUTHORIZING THE CREDITING TO CAPTAIN GARLAND OF BASIC ALLOWANCE FOR QUARTERS FOR THE ABOVE PERIOD.

IT APPEARS THAT ON JANUARY 2, 1958, CAPTAIN GARLAND DEPARTED FROM CRAIG AIR FORCE BASE, ALABAMA, HIS PERMANENT DUTY STATION, FOR TEMPORARY DUTY AT MAXWELL AIR FORCE BASE, ALABAMA; THAT HIS WIFE VISITED HIM AT THE LATTER PLACE FROM MARCH 16 TO APRIL 11, 1958; AND THAT THE OFFICER AND HIS WIFE OCCUPIED A LIVING ROOM, A BEDROOM, AND A BATH IN A GUEST HOUSE AT MAXWELL AIR FORCE BASE, DURING THE ABOVE PERIOD.

IN OUR DECISION OF FEBRUARY 11, 1958, 37 COMP. GEN. 517, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT THE OCCUPANCY OF GOVERNMENT FACILITIES BY A MEMBER AND HIS WIFE AT HIS TEMPORARY STATION FOR NOT MORE THAN THREE MONTHS - OR FOR NOT MORE THAN SOME LESSER MAXIMUM PERIOD PRESCRIBED BY ADMINISTRATIVE REGULATIONS FOR VISITS UNDER CERTAIN CONDITIONS - WOULD BE CONSIDERED AS OCCUPANCY "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE" WITHIN THE INTENT AND MEANING OF SECTION 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951; AND HENCE, THAT SUCH OCCUPANCY WOULD NOT FORFEIT A MEMBER'S RIGHT TO CONTINUED RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS DEPENDENT WIFE. YOU MENTION THAT DECISION BUT REFER TO PARAGRAPH 20202(E) OF AIR FORCE MANUAL 173-20, AS CASTING DOUBT UPON CAPTAIN GARLAND'S RIGHT TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD INVOLVED SINCE, AS MENTIONED ABOVE, HE AND HIS WIFE OCCUPIED A LIVING ROOM, A BEDROOM, AND A BATH IN A GUEST HOUSE AT HIS TEMPORARY DUTY STATION DURING THAT PERIOD.

SUBPARAGRAPHS 20202(E) AND 20202(F) OF AIR FORCE MANUAL 173-20, APPARENTLY BASED UPON SECTIONS 5 AND 4, RESPECTIVELY, OF THE ABOVE EXECUTIVE ORDER, ARE AS FOLLOWS:

"(E) A SERVICE MEMBER AWAY FROM HIS PERMANENT DUTY STATION, WHO IS RECEIVING BASIC ALLOWANCE FOR QUARTERS AT HIS PERMANENT DUTY STATION, MAY NOT OCCUPY MORE THAN ONE ROOM AND A BATH AT HIS TEMPORARY DUTY STATION WITHOUT AFFECTING HIS RIGHT TO RECEIVE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS.

"(F) NO MEMBER OF THE AIR FORCE ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES SHALL BE DENIED HIS BASIC ALLOWANCE FOR QUARTERS, IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS. HOWEVER, WHEN ADEQUATE QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT FOR A SERVICE MEMBER'S DEPENDENTS AT HIS PERMANENT DUTY STATION, OR IF BY REASON OF COMPETENT AUTHORITY SUCH DEPENDENTS ARE PREVENTED FROM OCCUPYING QUARTERS, HE MAY NOT OCCUPY MORE THAN ONE ROOM AND A BATH AT SUCH STATION WITHOUT AFFECTING HIS RIGHT TO RECEIVE BASIC ALLOWANCE FOR QUARTERS."

WE ARE OF THE OPINION THAT SUBPARAGRAPH (E) REFERS TO OCCUPANCY BY A MEMBER ALONE RATHER THAN TO OCCUPANCY BY A MEMBER AND A DEPENDENT DURING SOCIAL VISITS BY THE DEPENDENT. NO REFERENCE IS MADE THEREIN TO THE MAXIMUM LENGHT OF TIME PERMISSIBLE FOR OCCUPANCY AT A TEMPORARY DUTY STATION, WHEREAS OCCUPANCY BY A MEMBER WITH A DEPENDENT MAY NOT EXCEED THREE MONTHS AND STILL BE CONSIDERED A SOCIAL VISIT OF A TEMPORARY NATURE. 37 COMP. GEN. 517, SUPRA. ALSO, IF SUBPARAGRAPH (E) WAS INTENDED TO REFER TO OCCUPANCY WITH A DEPENDENT OR DEPENDENTS, A MEMBER AND ALL OF HIS DEPENDENTS WOULD BE RESTRICTED, IN ORDER TO RETAIN HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS DURING A SOCIAL VISIT, TO THE OCCUPANCY OF ONE BEDROOM AT HIS TEMPORARY DUTY STATION. AND COMPARE THE PHRASE "ONE ROOM AND BATH" IN SUBPARAGRAPH (E), OCCUPANCY AT A TEMPORARY DUTY STATION, WITH THE IDENTICAL LANGUAGE IN SUBPARAGRAPH (F), OCCUPANCY AT A PERMANENT DUTY STATION, THE LATTER LANGUAGE CLEARLY REFERRING TO OCCUPANCY BY A MEMBER ALONE.

ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDER WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT, FOR BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITH DEPENDENTS, FOR THE PERIOD MARCH 16 TO APRIL 11, 1958.