B-140914, NOV. 27, 1959

B-140914, NOV. 27, 1959

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF OCTOBER 1, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION ON THE FOLLOWING QUESTIONS PRESENTED AND DISCUSSED IN COMMITTEE ACTION NO. 249 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

"1. IN DECISION B-139133, 13 MAY 1959, IT WAS HELD THAT A MEMBER WAS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS WHILE HE AND HIS WIFE OCCUPIED GUEST HOUSE FACILITIES AT HIS FUTURE PERMANENT DUTY STATION. THE MEMBER WAS IN A LEAVE STATUS DURING THE PERIOD INVOLVED AND HE AND HIS DEPENDENT RETURNED TO A LEAVE ADDRESS PRIOR TO HIS REPORTING TO THE NEW STATION FOR DUTY. WOULD A MEMBER BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IF THE CIRCUMSTANCES DIFFERED TO THE EXTENT SHOWN BELOW:

"A. THE MEMBER AND HIS DEPENDENTS REMAIN IN A CITY NEAR THE NEW STATION BETWEEN THE TIME OF VACATING THE GUEST HOUSE AND THE TIME OF REPORTING FOR DUTY?

"B. THE MEMBER HAS RECEIVED ORDERS ASSIGNING HIM TO A NEW STATION. PRIOR TO DEPARTING ON PERMANENT CHANGE OF STATION, HE TAKES LEAVE AND WITH HIS DEPENDENTS OCCUPIES A GUEST HOUSE AT THE FUTURE STATION WHILE LOOKING FOR SUITABLE OFF-BASE QUARTERS. (1) HE AND HIS DEPENDENTS RETURN TO THEIR OFF -BASE QUARTERS AT THE OLD STATION. THE MEMBER PERFORMS FURTHER DUTY AT THAT STATION BEFORE LEAVING ON PERMANENT CHANGE OF STATION. (2) WOULD THE ANSWER BE THE SAME IF HE AND HIS DEPENDENTS HAD VACATED THEIR OFF-BASE QUARTERS AT THE OLD STATION AND OCCUPIED GOVERNMENT FACILITIES AT THAT STATION DURING THE PERIOD OF FURTHER DUTY? (3) WOULD THE ANSWER BE THE SAME IF THE MEMBER RETURNED TO THE OLD STATION FOR FURTHER DUTY, BUT THE DEPENDENTS CONTINUED TO OCCUPY THE GUEST HOUSE AT THE NEW PERMANENT DUTY STATION?

"C. AFTER THE MEMBER AND HIS DEPENDENTS HAVE OCCUPIED A GUEST HOUSE UNDER CIRCUMSTANCES STATED IN A OR B ABOVE, HIS ORDERS ARE REVOKED OR AMENDED TO ASSIGN HIM TO A DIFFERENT BASE.

"D. IF THE ANSWERS TO A, B, AND C ARE IN THE AFFIRMATIVE, WHAT IS THE MAXIMUM PERIOD A MEMBER AND HIS DEPENDENTS MAY OCCUPY QUARTERS IN THE GUEST HOUSE UNDER THE CONDITIONS OUTLINED?

"2. IN DECISION B-132015, 23 JULY 1957, IT WAS HELD, IN ANSWER TO QUESTIONS 1A AND B OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 184, THAT A MEMBER IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHEN HIS DEPENDENTS OCCUPY GOVERNMENT FACILITIES AT A PORT WHILE EN ROUTE BETWEEN PERMANENT DUTY STATIONS. WOULD THE SAME BE TRUE UNDER THE FOLLOWING CIRCUMSTANCES?

"A. HE AND HIS DEPENDENTS OCCUPY A GUEST HOUSE AT HIS OLD STATION SUBSEQUENT TO THE DATE HIS ASSIGNMENT TO QUARTERS IS TERMINATED AND PRIOR TO COMMENCEMENT OF TRAVEL TO A NEW STATION.

"B. HE AND HIS DEPENDENTS OCCUPY GOVERNMENT FACILITIES ON A TEMPORARY BASIS AT AN INTERMEDIATE STATION WHILE EN ROUTE BETWEEN PERMANENT DUTY STATIONS.

"C. HE AND HIS DEPENDENTS OCCUPY GOVERNMENT FACILITIES AT A PORT WHILE ON LEAVE EN ROUTE BETWEEN PERMANENT DUTY STATIONS.

"3. IF A MEMBER OF THE UNIFORMED SERVICES IS PROPERLY IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS WIFE, MAY HE CONTINUE TO RECEIVE SUCH ALLOWANCE FOR PERIODS:

"A. MEMBER'S WIFE VISITS HIM AT HIS PERMANENT DUTY STATION AND BOTH OCCUPY GUEST HOUSE AT THE STATION?

"B. HE IS A PATIENT IN A GOVERNMENT HOSPITAL AT HIS PERMANENT DUTY STATION AND HIS WIFE VISITS AND OCCUPIES A GUEST HOUSE NEAR THE HOSPITAL?

"C.HE AND HIS WIFE OCCUPY A GUEST HOUSE AT HIS PERMANENT DUTY STATION WHILE SHE IS AWAITING CONFINEMENT IN A GOVERNMENT HOSPITAL NEAR HIS PERMANENT STATION?

SECTION 302 (B) THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 252 (B), PROVIDES:

"SEC. 302 (B) 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.'

SECTION 3 OF EXECUTIVE ORDER NO 10204, JANUARY 15, 1951, IS AS FOLLOWS:

"3. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, OR (C) BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH A MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.'

COMMITTEE ACTION NO. 249, REFERS TO OUR DECISION OF MAY 13, 1959, B 139133, AS POSSIBLE AUTHORITY FOR AFFIRMATIVE ANSWERS TO QUESTIONS 1 (A), 1 (B), 1 (C) AND 1 (D).

IN OUR DECISION OF MAY 13, 1959, B-139133, IT WAS STATED THAT A MEMBER WHO TRAVELED TO HIS NEW STATION IN A LEAVE STATUS AND BEFORE REPORTING OCCUPIED GUEST HOUSE FACILITIES AT THAT NEW STATION TEMPORARILY FOR A FEW DAYS, THEREAFTER LEAVING THE AREA WITH HIS DEPENDENT, MAY BE CONSIDERED TO HAVE OCCUPIED GOVERNMENT QUARTERS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE WITHIN THE CONTEMPLATION OF THE EXCEPTION CONTAINED IN SECTION 3 OF EXECUTIVE ORDER 10204, DATED JANUARY 15, 1951. THE EXCEPTION CONTAINED IN SECTION 3, AS AN EXCEPTION TO THE BASIC RULE THAT OCCUPANCY OF GOVERNMENT QUARTERS PRECLUDES PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, MAY ONLY BE APPLIED WHERE CIRCUMSTANCES ARE CLEARLY WITHIN ITS TERMS. THE DETERMINATION OF WHETHER A PARTICULAR OCCUPANCY OF GUEST HOUSE QUARTERS IS WITHIN THAT EXCEPTION MUST BE BASED UPON THE DETERMINATION THAT IT WAS A "SOCIAL VISIT OF A TEMPORARY NATURE.' THIS, IN TURN, MUST BE DETERMINED AFTER CONSIDERATION OF THE CIRCUMSTANCES UNDER WHICH THE QUARTERS WERE OCCUPIED, INCLUDING THE APPARENT INTENT OF THE MEMBER AND HIS DEPENDENTS IN REGARD TO RETURN TO OTHER QUARTERS.

QUESTION 1 (A) PRESENTS AN INSTANCE IN WHICH THE MEMBER AND HIS DEPENDENT REMAIN IN THE AREA OF HIS NEW STATION AFTER OCCUPANCY OF GUEST HOUSE FACILITIES, ALTHOUGH THE MEMBER HAS NOT YET REPORTED AT HIS NEW STATION. IN SUCH CIRCUMSTANCES, IT MUST BE PRESUMED THAT THE SOJOURN OF THE MEMBER AND HIS DEPENDENT INDICATE THAT THEY INTEND TO REMAIN INDEFINITELY IN THE AREA OF THE NEW STATION AND THIS INTENTION PRECLUDES DESIGNATION OF THEIR OCCUPANCY OF THE GUEST HOUSE AS A SOCIAL VISIT OF A TEMPORARY NATURE. COMP. GEN. 515; B-129304, OCTOBER 12, 1956.

THE FACTS PRESENTED IN QUESTION 1 (B) (1) ARE ANALOGOUS TO THOSE CONSIDERED IN OUR DECISION OF MAY 13, 1959, B-139133, AND BASIC ALLOWANCE FOR QUARTERS WOULD BE AUTHORIZED. BASIC ALLOWANCE FOR QUARTERS WOULD ALSO BE AUTHORIZED IN AN INSTANCE--- AS INDICATED IN QUESTION 1 (B) (2/--- WHERE THE MEMBER VACATED OFF-BASE QUARTERS PRIOR TO TEMPORARY OCCUPANCY OF GUEST HOUSE QUARTERS AT THE NEW STATION AND THEREAFTER RETURNED TO GOVERNMENT QUARTERS AT THE OLD STATION WHILE PERFORMING FURTHER DUTY AT THE OLD STATION. IN THIS REGARD SEE ANSWER TO QUESTION 1 (B) IN OUR DECISION 37 COMP. GEN. 517, 519, AND ALSO DECISION B-137731, JANUARY 2, 1959.

IF--- AS INDICATED IN QUESTION 1 (B) (3/--- THE MEMBER RETURNS TO HIS OLD STATION WHILE HIS DEPENDENTS CONTINUE TO OCCUPY THE GUEST HOUSE AT HIS NEW STATION, THE MEMBER IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS. THIS INSTANCE, THE INTENT IS CLEAR THAT THE DEPENDENTS WILL REMAIN INDEFINITELY AT THE NEW STATION AND THAT THE MEMBER'S ABSENCE IS OF A TEMPORARY NATURE. HENCE, THE OCCUPANCY MAY NOT BE CONSIDERED AS DUE TO A SOCIAL VISIT OF A TEMPORARY NATURE. THESE CIRCUMSTANCES ARE SIMILAR TO THOSE FOUND IN OUR DECISIONS 34 COMP. GEN. 515, AND B-129304, OCTOBER 12, 1956, AND ARE SUBJECT TO THE STATEMENTS THEREIN.

QUESTION 1 (C) REQUESTS INFORMATION WHETHER THE ANSWERS GIVEN TO QUESTIONS 1 (A) AND 1 (B) WOULD DIFFER IF THE MEMBER'S ORDERS ARE REVOKED OR AMENDED, AFTER OCCUPANCY OF THE GUEST HOUSE UNDER THE CONDITIONS PRESENTED, TO ASSIGN THE MEMBER TO A DIFFERENT STATION. THE MEMBER'S RIGHT TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS DURING A PERIOD OF OCCUPANCY OF GOVERNMENT QUARTERS ARISES, IF AT ALL, AT THE TIME OF THE OCCUPANCY OF SUCH QUARTERS AND CANNOT BE TERMINATED OR CREATED BY SUBSEQUENT ORDERS REVOKING OR AMENDING PREVIOUS ORDERS. ACCORDINGLY, A SUBSEQUENT REVOCATION OR AMENDMENT OF THE MEMBER'S ORDER TO ASSIGN HIM ELSEWHERE WOULD NOT AFFECT THE ANSWERS PREVIOUSLY GIVEN TO QUESTIONS 1 (A) AND 1 (B).

WE BELIEVE THAT THE REASONABLE MAXIMUM PERIOD DURING WHICH A MEMBER AND HIS DEPENDENTS MAY OCCUPY QUARTERS IN A GUEST HOUSE UNDER THE CONDITIONS INDICATED ABOVE AND, WHERE OTHERWISE AUTHORIZED, TO CONTINUE TO RECEIVE BASIC ALLOWANCE FOR QUARTERS IS THREE MONTHS. SEE OUR DECISION 37 COMP. GEN. 517, WHEREIN THE BASIS FOR THIS DETERMINATION IS DISCUSSED. IT WAS ALSO STATED THEREIN AT PAGE 520 THAT,"A LIBERAL MAXIMUM HAS BEEN SET WITH THE THOUGHT THAT ADMINISTRATIVE REGULATIONS MIGHT WELL BE ISSUED RESTRICTING VISITS UNDER CERTAIN CONDITIONS TO PERIODS LESS THAN THAT MAXIMUM.'

THE CIRCUMSTANCES PRESENTED IN QUESTIONS 2 (A), 2 (B) AND 2 (C) ARE SIMILAR TO THOSE CONSIDERED IN QUESTIONS 1 (A) AND 1 (B) OF 37 COMP. GEN. 47 AND WOULD NOT FALL WITHIN THE EXCEPTION IN SECTION 3 OF EXECUTIVE ORDER 10204 RELATING TO "SOCIAL VISITS OF A TEMPORARY NATURE.' IN EACH OF THE INSTANCES PRESENTED, IT DOES NOT APPEAR THAT EITHER THE MEMBER OF HIS DEPENDENT WILL RETURN TO QUARTERS OCCUPIED PRIOR TO THE OCCUPANCY OF GOVERNMENT QUARTERS. ON THE CONTRARY, IN EACH INSTANCE, FURTHER TRAVEL IS CONTEMPLATED TO A NEW POST. HENCE, ALTHOUGH THE OCCUPANCY OF GOVERNMENT QUARTERS IS TEMPORARY, IT IS NOT WITHIN THE EXCEPTION OF SECTION 3 OF EXECUTIVE ORDER 10204. ACCORDINGLY, A MEMBER WOULD NOT BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IN THE CIRCUMSTANCES INVOLVED IN QUESTIONS 2 (A), 2 (B) AND 2 (C).

IN QUESTIONS 3 (A), 3 (B) AND 3 (C), NO MENTION IS MADE OF THE DURATION OF THE OCCUPANCY OF THE GUEST HOUSE FACILITIES. IF SUCH OCCUPANCY WAS WITHIN THE MAXIMUM PERIOD INDICATED ABOVE, IT MAY REASONABLY BE ASSUMED THAT THE OCCUPANCY OF GOVERNMENT QUARTERS BY THE MEMBER AND HIS DEPENDENT WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE," INASMUCH AS IT IS STATED THAT THE MEMBER'S DEPENDENTS DO NOT OTHERWISE RESIDE WITH THE MEMBER AT HIS PERMANENT STATION. IT WOULD APPEAR THAT THE DEPENDENT IN THESE SITUATIONS INTENDS TO RETURN TO A HOME OCCUPIED PRIOR TO THE VISIT. 37 COMP. GEN. 47, 49; CF. 34 COMP. GEN. 515.