B-138373, APRIL 22, 1959, 38 COMP. GEN. 713

B-138373, APRIL 22, 1959, 38 COMP. GEN. 713

MILITARY PERSONNEL - QUARTERS ALLOWANCE - COMMENCEMENT AND TERMINATION - FRACTIONAL DAYS THE LONG-STANDING RULE THAT PAYMENT OF QUARTERS ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES SHOULD NOT BE PAID ON THE BASIS OF A FRACTIONAL PART OF A DAY IS APPLICABLE TO THE BASIC QUARTERS ALLOWANCE AUTHORIZED IN SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B); THEREFORE, AMENDMENT OF THE REGULATIONS TO PERMIT PAYMENT OF A QUARTERS ALLOWANCE ON THE DATE GOVERNMENT QUARTERS ARE VACATED WOULD NOT BE PROPER.

TO THE SECRETARY OF DEFENSE, APRIL 22, 1959:

REFERENCE IS MADE TO LETTER OF JANUARY 5, 1959, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION WHETHER REGULATIONS OF THE UNIFORMED SERVICES CONCERNING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS MAY BE AMENDED IN VIEW OF THE MATTERS SET FORTH IN COMMITTEE ACTION NO. 229 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE BASIC QUESTION POSED IN THE COMMITTEE ACTION IS AS FOLLOWS:

MAY REGULATIONS OF THE UNIFORMED SERVICES BE AMENDED TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON DATE GOVERNMENT QUARTERS ARE TERMINATED, PROVIDED NO OTHER GOVERNMENT QUARTERS ARE THEREAFTER ASSIGNED ON THE SAME DATE?

IT APPEARS THAT PRESENT REGULATIONS OF THE UNIFORMED SERVICES FOLLOW THE RULE ENUNCIATED IN OUR DECISION OF MARCH 11, 1926, A-12569, 5 COMP. GEN. 723, WHICH HELD (QUOTING THE SYLLABUS) AS OLLOWS:

AS THE RENTAL-ALLOWANCE LAW GENERALLY DOES NOT RECOGNIZE A FRACTIONAL PART OF A DAY, NO RENTAL ALLOWANCE ACCRUES TO AN OFFICER OF THE ARMY ON THE DATE HIS ASSIGNMENT TO QUARTERS AT HIS PERMANENT STATION IS TERMINATED.

SUCH DECISION WAS BASED ON THE LANGUAGE OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250. PRESENT SIMILAR LEGISLATION DEALING WITH BASIC ALLOWANCE FOR QUARTERS IS CONTAINED IN SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 252 (B), WHICH PROVIDES, IN PART, 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.

REGULATIONS OF THE UNIFORMED SERVICES ARE EXEMPLIFIED BY PARAGRAPH 20307C, AIR FORCE MANUAL 173-20, AS FOLLOWS:

BASIC ALLOWANCE FOR QUARTERS IS COMPUTED ON THE BASIS OF A 30-DAY MONTH, AND WILL BE PRORATED FOR THAT PORTION OF THE MONTH IN WHICH ENTITLEMENT COMMENCES OR TERMINATES. THE 31ST DAY OF THE MONTH IS NOT COUNTABLE AND NO ALLOWANCE FOR QUARTERS IS PAYABLE ON THAT DAY. BASIC ALLOWANCE FOR QUARTERS DOES NOT ACCRUE ON THE DATE OF ASSIGNMENT OR TERMINATION OF QUARTERS (5 COMP. GEN. 723).

IT IS CONTENDED IN THE COMMITTEE ACTION THAT APPLICATION OF THE ABOVE RULE DOES NOT APPEAR EQUITABLE TO A MEMBER FURNISHED GUEST HOUSING OR HOTEL-TYPE ACCOMMODATIONS ON A TEMPORARY BASIS. IN THE EXAMPLE GIVEN OF TWO SERVICE MEMBERS OCCUPYING THE SAME ACCOMMODATIONS CONSECUTIVELY ON THE SAME DAY, EACH WOULD HAVE TO FORFEIT ONE DAY'S QUARTERS ALLOWANCE ON THE DAY, FOR OCCUPYING THE SAME GUEST HOUSE ONLY PART OF A DAY. IT IS STATED THAT EQUITY COULD BE ATTAINED BY AUTHORIZING PAYMENT OF QUARTERS ALLOWANCE FOR THE DATE QUARTERS ARE VACATED, PROVIDED NO OTHER GOVERNMENT QUARTERS ARE THEREAFTER ASSIGNED ON THE SAME DATE, AND TO THAT END, THE COMMITTEE SUGGESTS THAT WE RECONSIDER OUR DECISION OF 5 COMP. GEN. 723 SO AS TO PERMIT AMENDMENT OF REGULATIONS OF THE UNIFORMED SERVICES.

NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949 INDICATES ANY INTENT THAT ITS PROVISIONS BE CONSTRUED DIFFERENTLY THAN THOSE OF THE PRIOR STATUTES UPON WHICH 5 COMP. GEN. 723 WAS BASED. SEE 33 COMP. GEN. 79, 80. ASIDE FROM 5 COMP. GEN. 723, OUR OFFICE HAS FOLLOWED THE GENERAL RULE OF LAW THAT, WHEN COMPUTING TIME, A DAY IS NOT FRACTIONIZED. SEE 36 COMP. GEN. 481. THIS RULE IS FOLLOWED IN THE ABSENCE OF STATUTORY AUTHORITY TO THE CONTRARY.

IN OUR DECISION OF JULY 18, 1952, B-105517, THERE WAS CONSIDERED SECTION 18, ARMY REGULATIONS NO. 35-4220, DATED APRIL 20, 1943, WHICH WAS BASED ON OUR HOLDING IN 5 COMP. GEN. 723. IN THAT DECISION, WE SAID, IN REVIEWING A DISALLOWED CLAIM THAT---

IT LONG HAS BEEN THE RULE WITH RESPECT TO QUARTERS ALLOWANCE THAT AN OFFICER'S "RIGHTS ON DAY OF DETACHMENT WILL BE DETERMINED WITH REFERENCE TO HIS RIGHTS AT THE STATION OR DUTY FROM WHICH DETACHED.' 2 COMP. GEN. 745, 746. IT WAS SAID IN THAT DECISION, RENDERED ALMOST 30 YEARS AGO, THAT "THE RULE FOR CALCULATION SHOULD BE UNIFORM.' SEE ALSO, 4 COMP. GEN. 528 AND 5 COMP. GEN. 723. IT HAS BEEN NOTED THAT SUCH RULE IS A PRACTICAL ONE SINCE IT PERMITS THE CLOSING OF THE OFFICER'S ACCOUNT AT HIS OLD STATION THROUGH THE DAY OF DETACHMENT, BEFORE HE DEPARTS. THE RULE WAS INTENDED TO WORK BOTH WAYS AND, APPLYING THE RULE TO THE CONVERSE OF YOUR SITUATION, HAD YOU BEEN IN A RENTAL ALLOWANCE STATUS AT CAMP PLAUCHE YOU WOULD HAVE BEEN ENTITLED TO RENTAL ALLOWANCE FOR THE DAY OF DETACHMENT, NOTWITHSTANDING THAT YOU MIGHT HAVE BEEN ASSIGNED QUARTERS UPON YOUR ARRIVAL AT YOUR NEW STATION THE SAME DAY. WHILE THERE ARE ARGUMENTS IN FAVOR OF A DIFFERENT RULE, THERE WOULD APPEAR TO BE NO COMPELLING REASON FOR MODIFYING THE EXISTING RULE AT THIS LATE DATE.

WE ARE STILL IN ACCORD WITH THE VIEW EXPRESSED IN THE ABOVE DECISION FOR THE REASONS STATED THEREIN, AND IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION REQUIRING SUCH ACTION, THERE APPEARS TO BE NO REASON TO ALTER THE LONG-STANDING RULE. CONSEQUENTLY, WE ARE OF THE OPINION THAT REGULATIONS OF THE UNIFORMED SERVICES IMPLEMENTING SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949 SHOULD BE GUIDED BY THE HOLDING IN 5 COMP. GEN. 723 AND BY THE DECISION OF JULY 18, 1952, QUOTED ABOVE. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.