B-141316, FEBRUARY 8, 1960, 39 COMP. GEN. 561

B-141316: Feb 8, 1960

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ARE FOR DETERMINATION ON THE BASIS OF A SPECIFIC ADMINISTRATIVE AUTHORIZATION OR CERTIFICATION THAT IS CONTRARY TO THE ACTUAL FACTS. ALTHOUGH A CONTEMPORANEOUS AUTHORIZATION OR CERTIFICATION BY PROPER AUTHORITY OF QUARTERS AVAILABILITY OR ADEQUACY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS. IT IS NOT CONCLUSIVE WHERE FACTS ARE OTHERWISE ESTABLISHED. WAS ADVISED OF A DETERMINATION THAT ADEQUATE QUARTERS WERE AVAILABLE IN NEW OFFICER QUARTERS. IS NOT CONCLUSIVE UPON THE ACCOUNTING OFFICERS UNDER THE QUARTERS ALLOWANCE PROVISION IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 IN VIEW OF THE FACTS WHICH CLEARLY ESTABLISH THE AVAILABILITY AND ADEQUACY OF GOVERNMENT QUARTERS.

B-141316, FEBRUARY 8, 1960, 39 COMP. GEN. 561

MILITARY PERSONNEL - QUARTERS ALLOWANCE - NONAVAILABILITY OF GOVERNMENT QUARTERS - CONCLUSIVENESS OF CERTIFICATION QUARTERS ALLOWANCES CLAIMS UNDER SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B), WHICH PRECLUDES PAYMENT OF QUARTERS ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT, QUARTERS OR HOUSING APPROPRIATE TO THEIR GRADE OR RANK AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, ARE FOR DETERMINATION ON THE BASIS OF A SPECIFIC ADMINISTRATIVE AUTHORIZATION OR CERTIFICATION THAT IS CONTRARY TO THE ACTUAL FACTS, AND ALTHOUGH A CONTEMPORANEOUS AUTHORIZATION OR CERTIFICATION BY PROPER AUTHORITY OF QUARTERS AVAILABILITY OR ADEQUACY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT CONCLUSIVE WHERE FACTS ARE OTHERWISE ESTABLISHED. A CERTIFICATE BY A COMMANDING OFFICER OF NONAVAILABILITY OF QUARTERS WHICH ACCOMPANIED A CLAIM FOR QUARTERS ALLOWANCE FOR AN OFFICER, WHO PRIOR TO VACATING BACHELOR QUARTERS AND MOVING OFF BASE, WAS ADVISED OF A DETERMINATION THAT ADEQUATE QUARTERS WERE AVAILABLE IN NEW OFFICER QUARTERS, IS NOT CONCLUSIVE UPON THE ACCOUNTING OFFICERS UNDER THE QUARTERS ALLOWANCE PROVISION IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 IN VIEW OF THE FACTS WHICH CLEARLY ESTABLISH THE AVAILABILITY AND ADEQUACY OF GOVERNMENT QUARTERS, SO THAT THE MAINTENANCE OF QUARTERS OFF BASE MUST BE REGARDED AS FOR THE OFFICER'S OWN CONVENIENCE AND PRECLUDES PAYMENT OF A QUARTERS ALLOWANCE.

TO MAJOR TRACY A. RASMUSSEN, FEBRUARY 8, 1960:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 6, 1959, WRITTEN IN YOUR BEHALF BY YOUR ATTORNEY, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITHOUT DEPENDENTS WHILE YOU WERE ON DUTY AT FORD ORD, CALIFORNIA, JULY 2 TO OCTOBER 5, 1955. YOUR CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED OCTOBER 2, 1959, FOR THE REASON THAT ADEQUATE QUARTERS WERE AVAILABLE FOR YOUR OCCUPANCY AND WOULD HAVE BEEN ASSIGNED TO YOU BUT FOR YOUR ELECTION TO LIVE OFF THE POST, CITING 32 COMP. GEN. 368, AND OUR DECISION DATED FEBRUARY 16, 1955, B- 121001, AS AUTHORITY FOR THE DISALLOWANCE.

YOUR ATTORNEY STATES IN HIS LETTER THAT THE REASONS ADVANCED FOR THE DISALLOWANCE DO NOT SEEM TENABLE SINCE THE COMMANDING GENERAL AT FORT ORD CONTEMPORANEOUSLY APPROVED YOUR "REQUEST FOR (A CERTIFICATE OF) NONAVAILABILITY" OF QUARTERS AND THAT IT IS DIFFICULT TO REALIZE THAT A REVIEW WOULD OVERRULE A LETTER OF A MAJOR GENERAL WHO IS IN THE FIELD AND HAS FULL AUTHORITY TO APPROVE THE REQUEST YOU MADE. IN A PREVIOUS LETTER TO LIEUTENANT COLONEL ARCHER, FINANCE CENTER, U.S. ARMY, YOUR ATTORNEY CITED PARAGRAPH 5-14, ARMY REGULATION 37-104, WHICH STATED THAT THE DETERMINATION OF THE COMMANDING OFFICER IS CONCLUSIVE OF THE RIGHTS OF THE PERSON, CITING 8 COMP. GEN. 82.

IT APPEARS FROM THE RECORD THAT WHEN YOU REPORTED AT FORD ORD, CALIFORNIA, JUNE 4, 1955, YOU WERE ASSIGNED TRANSIENT BACHELOR OFFICER QUARTERS AND YOU REMAINED THERE UNTIL JULY 2, 1955. MEANWHILE, ON JUNE 7, 1955, YOU REQUESTED A CERTIFICATE OF NONAVAILABILITY OF ADEQUATE QUARTERS AND IN AN ENDORSEMENT TO YOUR REQUEST YOUR COMMANDING OFFICER RECOMMENDED TO THE BILLETING OFFICER THAT YOU BE PAID BASIC ALLOWANCE FOR QUARTERS. IN A SECOND ENDORSEMENT ADDRESSED TO THE COMMANDING GENERAL AT FORT ORD, THE BILLETING OFFICER REPORTED ON JUNE 9, 1955, THAT TWO ADJOINING ROOMS AND BATH WERE AVAILABLE FOR YOU IN A NEW BACHELOR OFFICER QUARTERS BUILDING AND HE CERTIFIED THESE QUARTERS WERE CONSIDERED ADEQUATE IN ACCORDANCE WITH PARAGRAPH 14, ARMY REGULATIONS 415-31, DATED NOVEMBER 29, 1954, AND PARAGRAPH 63, ARMY REGULATIONS 210 10, CHANGE 1, DATED OCTOBER 27, 1954. DESPITE THAT REPORT, THE REQUEST FOR A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS APPROVED BY THE COMMANDING GENERAL, MAJOR GENERAL WRIGHT, BY THIRD ENDORSEMENT OF JUNE 10, 1955. YOUR REQUEST AND THE ENDORSEMENTS THERETO WERE FORWARDED TO YOU BY A FURTHER ENDORSEMENT OF JUNE 13, 1955. YOU MOVED INTO PRIVATE QUARTERS EFFECTIVE JULY 8, 1955.

THERE HAS NOT BEEN FURNISHED A COPY OF THE CERTIFICATE AS TO THE AVAILABILITY OF QUARTERS AND APPARENTLY THE CERTIFICATE CANNOT BE LOCATED. HENCE, IT IS NOT KNOWN WHETHER THE CERTIFICATE WAS QUALIFIED IN ANY WAY. HOWEVER, IT IS NOTED THAT YOU SAY THAT WHEN YOU SUBMITTED A MILITARY PAY ORDER IN AUGUST 1955 FOR QUARTERS ALLOWANCE COMMENCING JULY 3, 1955, CONTAINING THE CERTIFICATE OF NONAVAILABILITY OF QUARTERS IN APPARENT COMPLIANCE WITH PARAGRAPH 12A, SPECIAL REGULATIONS 35-1465 10, CHANGE 3, DATED APRIL 11, 1954, THE FINANCE OFFICER REFUSED TO PAY THE ALLOWANCE BECAUSE ADEQUATE QUARTERS WERE AVAILABLE FOR YOU. THEREUPON, YOU APPEALED TO THE COMMANDING GENERAL AND ON OCTOBER 5, 1955, LESS THAN 4 MONTHS FROM DATE OF APPROVAL OF THE CERTIFICATE OF NONAVAILABILITY OF QUARTERS, MAJOR GENERAL MUDGETT, THE NEW COMMANDER, DETERMINED THAT QUARTERS ALLOWANCE COULD NOT BE PAID SINCE ADEQUATE BACHELOR OFFICER QUARTERS WERE AVAILABLE. A FURTHER STATEMENT WAS MADE THAT " PERMISSION WAS GRANTED TO LIVE OFF POST BUT WITH THE ASSUMPTION THAT IT WOULD BE AT OFFICER'S EXPENSE.'

THE AUTHORITY CITED IN PARAGRAPH 4-14, ARMY REGULATIONS 37-104 (8 COMP. GEN. 82), AS TO THE CONCLUSIVENESS OF THE DETERMINATION OF THE COMMANDING OFFICER WITH RESPECT TO THE AVAILABILITY OF QUARTERS PERTAINED TO THE STATUS OF AN ENLISTED MAN WHOSE NORMAL SITUATION SECURED FOR HIM FOOD AND SHELTER. IN THOSE CIRCUMSTANCES IT WAS HELD THAT "NORMALLY" A DETERMINATION BY THE MILITARY OR NAVAL AUTHORITIES IN A GIVEN CASE, THAT RATIONS AND QUARTERS WERE AVAILABLE, MUST BE CONSIDERED TO BE CONCLUSIVE.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED, NO SUCH ALLOWANCE SHALL ACCRUE TO MEMBERS ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR GRADE OR RANK AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS. UNDER SUCH PROVISIONS CLAIMS FOR PAYMENT OF A QUARTERS ALLOWANCE ARE FOR DETERMINATION ON THE BASIS OF THE FACTS APPEARING IN THE CASE RATHER THAN ON A SPECIFIC ADMINISTRATIVE AUTHORIZATION OR CERTIFICATION THAT IS CONTRARY TO THE ACTUAL FACTS. WHILE A CONTEMPORANEOUS AUTHORIZATION OR CERTIFICATION BY PROPER AUTHORITY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT CONCLUSIVE OF THE MATTER WHERE THE FACTS ARE OTHERWISE CLEARLY ESTABLISHED.

IN YOUR CASE, AS SET FORTH ABOVE, THE RECORD CLEARLY SHOWS THAT BEFORE YOU VACATED THE BACHELOR OFFICER QUARTERS WHICH YOU WERE OCCUPYING AT FORD ORD, A DETERMINATION WAS MADE BY THE BILLETING OFFICER THAT ADEQUATE QUARTERS WERE AVAILABLE FOR YOU IN NEW BACHELOR OFFICER QUARTERS; THAT YOU WERE FURNISHED SUCH DETERMINATION BEFORE YOU MOVED OFF THE BASE, AND THAT SUCH QUARTERS WOULD HAVE BEEN ASSIGNED TO YOU BUT FOR THE FACT THAT YOU RESIDED OFF THE BASE FOR PERSONAL REASONS. IN THE CASE OF MCVANE V. UNITED STATES, 118 C.1CLS. 500, THERE WAS CONSIDERED A CLAIM FOR A QUARTERS ALLOWANCE BY A MEMBER OF THE NAVY ON SHORE PATROL DUTY WHO WAS PERMITTED TO RESIDE OFF THE BASE ALTHOUGH QUARTERS WERE AVAILABLE FOR HIS OCCUPANCY AND HE WAS SO ADVISED. IN DENYING HIS CLAIM, THE COURT STATED:

* * * IN THIS CASE THE LAW WAS COMPLIED WITH WHEN REASONABLY ACCESSIBLE QUARTERS WERE MADE AVAILABLE TO MCVANE AND HE WAS MADE FULLY AWARE THAT THEY WERE AVAILABLE AND OPEN TO HIS IMMEDIATE OCCUPANCY. THE LAW DOES NOT REQUIRE THE GOVERNMENT TO COMPENSATE PLAINTIFF FOR EXPENSES INCURRED IN MAINTAINING QUARTERS ASHORE FOR HIS OWN CONVENIENCE.

WHILE THE MCVANE CASE INVOLVED A PERIOD PRIOR TO THE 1949 ACT, THE FOREGOING REASONING APPEARS TO BE EQUALLY APPLICABLE IN YOUR CASE. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.