B-141505, MAY 2, 1960, 39 COMP. GEN. 737

B-141505: May 2, 1960

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MILITARY PERSONNEL - PUBLIC HEALTH SERVICE OFFICERS - PER DIEM ALLOWANCE FOR QUARTERS - ALASKA - ERRONEOUS PAYMENT A SPECIAL PER DIEM ALLOWANCE FOR QUARTERS PAID TO PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS STATIONED IN ALASKA AT THE SAME TIME SUCH MEMBERS WITH DEPENDENTS WERE OCCUPYING GOVERNMENT QUARTERS ON A RENTAL BASIS. IS IN CONTRAVENTION OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949. REGULATIONS WHICH PRECLUDE HOUSING ALLOWANCES WHEN GOVERNMENT QUARTERS ARE ASSIGNED OR OCCUPIED JOINTLY BY THE MEMBER AND HIS DEPENDENTS AND WHICH REQUIRE RENTAL QUARTERS TO BE CONSIDERED " GOVERNMENT QUARTERS" WITHIN THE PROHIBITION. NOR ARE THE ALLOWANCES PROPER UNDER THE ACT OF JULY 2.

B-141505, MAY 2, 1960, 39 COMP. GEN. 737

MILITARY PERSONNEL - PUBLIC HEALTH SERVICE OFFICERS - PER DIEM ALLOWANCE FOR QUARTERS - ALASKA - ERRONEOUS PAYMENT A SPECIAL PER DIEM ALLOWANCE FOR QUARTERS PAID TO PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS STATIONED IN ALASKA AT THE SAME TIME SUCH MEMBERS WITH DEPENDENTS WERE OCCUPYING GOVERNMENT QUARTERS ON A RENTAL BASIS, OR WITHOUT DEPENDENTS HAD RENTAL QUARTERS AVAILABLE, IS IN CONTRAVENTION OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AND REGULATIONS WHICH PRECLUDE HOUSING ALLOWANCES WHEN GOVERNMENT QUARTERS ARE ASSIGNED OR OCCUPIED JOINTLY BY THE MEMBER AND HIS DEPENDENTS AND WHICH REQUIRE RENTAL QUARTERS TO BE CONSIDERED " GOVERNMENT QUARTERS" WITHIN THE PROHIBITION; NOR ARE THE ALLOWANCES PROPER UNDER THE ACT OF JULY 2, 1945, 37 U.S.C. 111A, WHICH PERMITTED OCCUPANCY OF HOUSING FACILITIES WITHOUT DEPRIVATION OF "MONEY ALLOWANCES" SUCH TERM HAVING REFERENCE TO QUARTERS ALLOWANCE AND HAVING NO APPLICATION TO STATION PER DIEM, THEREFORE, SINCE THE MEMBERS PAID AN AMOUNT AS RENTAL LESS THAN THE QUARTERS ALLOWANCE, THE PAYMENTS WERE ERRONEOUS AND COLLECTION IS REQUIRED.

TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, MAY 2, 1960:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 14, 1959, FROM THE ACTING SECRETARY OF HEALTH, EDUCATION AND WELFARE, REQUESTING DECISION REGARDING PAYMENT OF QUARTERS ALLOWANCE TO CERTAIN COMMISSIONED OFFICERS IN THE PUBLIC HEALTH SERVICE WHO RESIDE IN GOVERNMENT RENTAL HOUSING WHILE STATIONED IN ALASKA.

THE RESPONSIBILITIES AND DUTIES OF THE DEPARTMENT OF THE INTERIOR, THE BUREAU OF INDIAN AFFAIRS, THE SECRETARY OF THE INTERIOR, AND THE COMMISSIONER OF INDIAN AFFAIRS, RELATING TO THE MAINTENANCE AND OPERATION OF HOSPITAL AND HEALTH FACILITIES FOR INDIANS, WERE TRANSFERRED TO THE SURGEON GENERAL OF THE UNITED STATES PUBLIC HEALTH SERVICE, UNDER THE SUPERVISION AND DIRECTION OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, EFFECTIVE JULY 1, 1955, BY THE ACT OF AUGUST 5, 1954, 68 STAT. 674, 42 U.S.C. 2001. IT IS REPORTED THAT PRIOR TO THE TRANSFER COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WERE DETAILED FOR DUTY WITH THE BUREAU OF INDIAN AFFAIRS TO ASSIST THAT AGENCY IN CARRYING OUT ITS RESPONSIBILITY FOR THE CONSERVATION OF THE HEALTH OF INDIANS AND NATIVES OF ALASKA. IT APPEARS THAT AT THE TIME OF THE TRANSFER THE OFFICERS WHO WERE ON PERMANENT DUTY IN ALASKA AND WHO OCCUPIED GOVERNMENT QUARTERS ON A RENTAL BASIS WERE RECEIVING A SPECIAL PER DIEM ALLOWANCE FOR QUARTERS. IT IS STATED THAT SUCH ALLOWANCES APPARENTLY WERE CONSIDERED ALLOWABLE BY REPRESENTATIVES OF THIS OFFICE WHO CONDUCTED AN AUDIT OF THE PAYROLLS FOR THE PERIOD OF JULY 1, 1956, THROUGH DECEMBER 31, 1957, WITHOUT TAKING EXCEPTION TO THE PAYMENTS, AND THAT PAYROLL VOUCHERS FOR THIS PERIOD FOR THE PAYMENT OF THE SPECIAL ALLOWANCES AND DEDUCTIONS FOR GOVERNMENT QUARTERS OCCUPIED BY COMMISSIONED PERSONNEL "WERE STAMPED AS AUDITED AND APPROVED BY THE GENERAL ACCOUNTING OFFICE PAYROLL SITE AUDITORS.' IT IS STATED FURTHER THAT THE PAYMENTS WERE CONTINUED FOLLOWING THE TRANSFER UNTIL JANUARY 1, 1959, AT WHICH TIME FURTHER PAYMENTS WERE SUSPENDED PENDING RESOLUTION OF QUESTIONS RAISED WITHIN THE DEPARTMENT CONCERNING THE LEGALITY OF SUCH PAYMENTS. IT APPEARS THAT DURING THE PERIOD JULY 1, 1955, THROUGH DECEMBER 31, 1958, 56 PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS HAVING ALASKA AS THEIR PERMANENT STATION WERE PAID THE SPECIAL PER DIEM ALLOWANCE FOR QUARTERS WHILE OCCUPYING GOVERNMENT QUARTERS ON A RENTAL BASIS. THE INDIVIDUAL AMOUNTS INVOLVED RANGE FROM $55 TO $1,748, AND TOTAL APPROXIMATELY $32,000. VIEW OF THE IMPORTANCE OF THIS MATTER TO THE OFFICERS INVOLVED, THE ACTING SECRETARY REQUESTS ANSWERS TO THE FOLLOWING QUESTIONS:

(1) WOULD THIS OFFICE BE REQUIRED TO OBJECT TO PAYMENT OF THE

SPECIAL PER DIEM ALLOWANCE FOR QUARTERS AUTHORIZED BY SECTION

303 (B) OF THE CAREER COMPENSATION ACT OF 1949, TO COMMISSIONED

OFFICERS OF THE PUBLIC HEALTH SERVICE HAVING ALASKA AS THEIR

PERMANENT DUTY STATION WHO, IN THE CASE OF MEMBERS WITH DEPENDENTS,

ARE ASSIGNED GOVERNMENT RENTAL QUARTERS OR OCCUPY SUCH QUARTERS

JOINTLY WITH THEIR DEPENDENTS?

(2) WOULD WE BE REQUIRED TO OBJECT TO PAYMENT OF THE ALLOWANCE

REFERRED TO IN (1) TO MEMBERS WITHOUT DEPENDENTS FOR WHOM GOVERNMENT

RENTAL QUARTERS ARE AVAILABLE?

(3) SHOULD THE ANSWERS TO (1) AND (2) BE IN THE AFFIRMATIVE,

WOULD WE REQUIRE REIMBURSEMENT OF THOSE AMOUNTS PAID SINCE JULY 1, 1955, UNDER THE CIRCUMSTANCES OUTLINED?

SHOULD IT BE NECESSARY TO ANSWER QUESTION (3), IT IS URGED THAT THE OFFICERS CONCERNED BE RELIEVED FROM REIMBURSING THE GOVERNMENT FOR THE ALLOWANCES PAID IN VIEW OF (A) THE DIFFICULTIES WHICH MIGHT BE ENCOUNTERED IN EFFECTING COLLECTION FROM 31 OF THE 56 OFFICERS CONCERNED WHO ARE NO LONGER ON DUTY WITH THE PUBLIC HEALTH SERVICE; (B) THE POSSIBILITY THAT IN THE CASE OF SMALLER AMOUNTS, THE ADMINISTRATIVE COSTS EFFECTING COLLECTION MAY EXCEED THE AMOUNT OF RECOVERY; (C) COLLECTION FROM OFFICERS PRESENTLY ON DUTY WITH THE PUBLIC HEALTH SERVICE WOULD HAVE A SERIOUS IMPACT ON THE MORALE OF PERSONNEL STATIONED IN ALASKA, AN AREA WHERE CERTAIN DIFFICULTIES IN RECRUITMENT ARE ENCOUNTERED; AND (D) A SEVERE ECONOMIC BURDEN WOULD BE PLACED ON THESE INDIVIDUALS WHO RECEIVED THE ALLOWANCE WITHOUT REASON TO QUESTION THE LEGALITY OF THE PAYMENTS.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253 (B), PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. PARAGRAPH 4301-3 (B) (2) AND 3 (C) (2) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT PROVISION, PROVIDE THAT HOUSING ALLOWANCES ARE PAYABLE TO A MEMBER WITHOUT DEPENDENTS FOR ANY DAY UPON WHICH GOVERNMENT QUARTERS ARE NOT AVAILABLE TO HIM, AND THAT SUCH ALLOWANCES ARE PAYABLE TO A MEMBER WITH DEPENDENTS AT ALL TIMES EXCEPT WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO, OR OCCUPIED JOINTLY BY, THE MEMBER AND HIS DEPENDENTS. THE TERM " GOVERNMENT QUARTERS" IS DEFINED IN PARAGRAPH 1150-5 OF THE SAME REGULATIONS AS "ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT.' THUS, THE CONTROLLING REGULATIONS APPEAR TO INCLUDE GOVERNMENT RENTAL QUARTERS IN THE TERM " GOVERNMENT QUARTERS.'

IT APPEARS THAT AT THE TIME OF THE TRANSFER OF THE INDIAN HEALTH PROGRAM, PUBLIC HEALTH SERVICE OFFICERS ON DETAIL TO THE BUREAU OF INDIAN AFFAIRS IN ALASKA WHO OCCUPIED GOVERNMENT-OWNED HOUSING ON A RENTAL BASIS WERE RECEIVING PAYMENT OF THE STATION QUARTERS ALLOWANCE. THE ADMINISTRATIVE ACTION IN MAKING SUCH PAYMENTS APPARENTLY WAS BASED ON THE ACT OF JULY 2, 1945, AS AMENDED, 37 U.S.C. 111A, WHICH PROVIDES THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW (INCLUDING ANY LAWS RESTRICTING THE OCCUPANCY OF HOUSING FACILITIES UNDER THE JURISDICTION OF GOVERNMENT DEPARTMENTS OR AGENCIES BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, ABOVE SPECIFIED RANKS, OR BY PERSONNEL, AND DEPENDENTS OF PERSONNEL, OF THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE), PERSONNEL OF ANY OF THE SERVICES MENTIONED AND THEIR DEPENDENTS MAY BE ACCEPTED AS TENANTS IN AND MAY OCCUPY ON A RENTAL BASIS ANY SUCH HOUSING FACILITIES, OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO, AND OCCUPANCY WITHOUT CHARGE, BY SUCH PERSONNEL AND THEIR DEPENDENTS IF ANY, AND SUCH PERSONNEL SHALL NOT BE DEPRIVED BY REASON OF SUCH OCCUPANCY OF "MONEY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED FOR RENTAL OF

QUARTERS.'

IN THE AUDIT OF THE PAY RECORDS AT THE PUBLIC HEALTH SERVICE HOSPITAL, MT. EDGECOMBE, ALASKA, FOR THE PERIOD JULY 1, 1955, THROUGH DECEMBER 31, 1957 (THE AUDIT REFERRED TO IN THE ACTING SECRETARY'S LETTER), CONSIDERATION WAS GIVEN TO PAYMENTS OF THE STATION PER DIEM ALLOWANCES BUT, BECAUSE OF THE FACT THAT NO EVIDENCE WAS FOUND THAT THE QUARTERS OCCUPIED WERE DESIGNATED AS PUBLIC QUARTERS FOR ASSIGNMENT WITHOUT CHARGE, NO QUESTIONS WERE RAISED CONCERNING THE PAYMENT OF THE ALLOWANCES. HOWEVER, OUR AUDIT PERSONNEL HAVE ADVISED THAT THE VOUCHERS WERE NOT STAMPED AS AUDITED AND APPROVED BY THE GENERAL ACCOUNTING OFFICE PAYROLL SITE AUDITORS AND THAT THEY HAVE NOT INFORMED THE INSTALLATION THAT THE AUDIT FOR THE PERIOD INVOLVED HAS BEEN COMPLETED. IN FACT, SINCE SUCH PERSONNEL HAD LEARNED THAT AS EARLY AS JUNE 1955, THE DIVISION OF INDIAN HEALTH HAD ISSUED INSTRUCTIONS TO ALL THEIR FIELD STATIONS TO CONTINUE THE EXISTING HOUSING STATUS UNTIL A SURVEY WAS MADE, WE BROUGHT TO THE ATTENTION OF THE PUBLIC HEALTH SERVICE THE FACT THAT THE SURVEYS HAD NOT BEEN MADE, NOR HAD PROPER INSTRUCTIONS BEEN ISSUED TO HAVE BASIC QUARTERS ALLOWANCES DISCONTINUED WHEN QUARTERS COULD HAVE BEEN DESIGNATED AS GOVERNMENT QUARTERS. AS THE RESULT, IN 1959, THE PUBLIC HEALTH SERVICE COMPLETED THE NECESSARY SURVEYS AND, CONSEQUENTLY, DISCONTINUED THE PAYMENTS TO OFFICERS OCCUPYING QUARTERS DESIGNATED AS PUBLIC QUARTERS FOR ASSIGNMENT WITHOUT CHARGE.

WHEN THE ACT OF JULY 2, 1945, MENTIONED ABOVE, WAS ENACTED, THERE WAS NO PERMANENT LEGISLATION AUTHORIZING THE PAYMENT OF A STATION PER DIEM ALLOWANCE IN ADDITION TO BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE AND THE "MONEY ALLOWANCES" FOR RENTAL OF QUARTERS MENTIONED IN THAT ACT ARE BELIEVED TO BE BASIC ALLOWANCES FOR QUARTERS. IT HAS BEEN HELD THAT THE 1945 ACT HAS NO APPLICATION TO STATION PER DIEM ALLOWANCES. SEE DECISION OF JANUARY 12, 1955, B-121686, COPY ENCLOSED.

SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, AMENDED SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, TO PROVIDE THAT, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, THE HEADS OF THE DEPARTMENTS CONCERNED COULD AUTHORIZE THE PAYMENT TO MEMBERS OF THE SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF ACTUAL AND NECESSARY EXPENSES OR PER DIEM IN LIEU THEREOF, CONSIDERING ALL ELEMENTS OF COST OF LIVING, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. SIMILAR PROVISION WAS INCLUDED IN SECTION 303 (B) OF THE CAREER COMPENSATION ACT AND, AS INDICATED ABOVE, THE CONTROLLING REGULATIONS CONTAIN NO PROVISION AUTHORIZING THE PAYMENT OF STATION QUARTERS PER DIEM TO MEMBERS WHO OCCUPY GOVERNMENTAL RENTAL QUARTERS, OR IN THE CASE OF A MEMBER WITHOUT DEPENDENTS FOR WHOM " GOVERNMENT QUARTERS" AS DEFINED IN SUCH REGULATIONS ARE AVAILABLE. THE PURPOSE OF SUCH PROVISIONS OF LAW WAS TO PERMIT PAYMENT OF ALLOWANCES TO COVER THE ADDITIONAL EXPENSE A MEMBER IS REQUIRED TO MEET WHILE SERVING OUTSIDE THE CONTINENTAL UNITED STATES. IT SEEMS CLEAR THAT WHERE THE AMOUNT PAID AS RENTAL FOR SUCH GOVERNMENT QUARTERS IS LESS THAT THE BASIC ALLOWANCE FOR QUARTERS--- AS APPARENTLY WAS THE CASE HERE--- THERE WAS NO ELEMENT OF INCREASED COST OF LIVING BY REASON OF THE HIGHER COST OF QUARTERS IN ALASKA SUCH AS WAS CONTEMPLATED AS THE BASIS FOR PAYMENT OF THE STATION QUARTERS PER DIEM ALLOWANCE. THE GOVERNMENT SHOULD NOT RELIEVE A MEMBER OF THE NECESSITY OF INCURRING SUCH ADDITIONAL EXPENSES BY PROVIDING QUARTERS AT A COMPARATIVELY LOW RENTAL AND THEN PAY HIM AN ALLOWANCE TO COVER NONEXISTENT ADDITIONAL EXPENSES.

ACCORDINGLY, THE THREE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE. WHILE IT IS REALIZED THAT CERTAIN DIFFICULTIES MAY BE ENCOUNTERED IN EFFECTING COLLECTION, IT DOES NOT APPEAR THAT SUCH FACTORS ARE ANY DIFFERENT IN THIS CASE THAN IN MANY OTHERS WHERE OVERPAYMENTS WERE MADE THROUGH ADMINISTRATIVE ERROR AND SOME OF THE RECIPIENTS ARE STILL IN THE SERVICE WHILE OTHERS HAVE BEEN RELEASED FROM ACTIVE DUTY. SUCH FACTORS AND MATTERS OF MORALE DO NOT, OF COURSE, RENDER LEGAL, PAYMENTS WHICH CLEARLY WERE CONTRARY TO LAW WHEN MADE, AND THEY AFFORD NO BASIS FOR RELIEVING THE RECIPIENTS OF THE OBLIGATION TO REMIT TO THE UNITED STATES THE MONEY THEY WERE NOT ENTITLED TO RECEIVE.