B-143161, AUG. 30, 1960

B-143161: Aug 30, 1960

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IT IS INDICATED IN THE MEMBER'S LETTER DATED DECEMBER 23. CHECK AGE WAS ENTERED ON MEMBER'S PAY RECORD CLOSED DECEMBER 31. QUESTION WAS RAISED AS TO THE ELIGIBILITY FOR STATION PER DIEM ALLOWANCES FOR QUARTERS OF THOSE PERSONS OCCUPYING THE LOW-COST HOUSING HERE INVOLVED. RULED THAT PERSONNEL WHO WERE OCCUPYING ANY DWELLINGS THAT WERE NOT RENT-FREE WERE CONSIDERED ELIGIBLE FOR THE STATION PER DIEM ALLOWANCE FOR QUARTERS AS PRESCRIBED FOR THE AREA. CONTINUED PAYMENTS WERE AUTHORIZED UNLESS TERMINATED BY FURTHER INSTRUCTIONS. IT WAS CONTENDED THAT SAID ALLOWANCES WERE AUTHORIZED BY THE ACT OF JULY 2. TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ADVISED THE COMMANDANT OF THE UNITED STATES COAST GUARD THAT THE QUARTERS IN QUESTION ARE PRESUMED TO BE GOVERNMENT QUARTERS AND.

B-143161, AUG. 30, 1960

MR. T. C. CRABE, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS, UNITED STATES COAST GUARD:

BY FIRST ENDORSEMENT DATED JUNE 9, 1960, THE CHIEF, PAYMENTS AND CLAIMS DIVISION, OFFICE OF THE COMMANDANT, HEADQUARTERS, UNITED STATES COAST GUARD, FORWARDED YOUR LETTER OF THE SAME DATE WITH ENCLOSURES REQUESTING, IN ADVANCE OF CERTIFICATION AND PAYMENT OF THE VOUCHER IN THE AMOUNT OF $381.81, DECISION AS TO THE ENTITLEMENT OF JAMES F. ECKMAN, MACH W-1 (28- 004), USCG, TO A STATION PER DIEM ALLOWANCE FOR QUARTERS WHILE OCCUPYING NAVY RENTAL HOUSING AT THE NAVAL STATION, KODIAK, ALASKA, FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1959.

IT IS INDICATED IN THE MEMBER'S LETTER DATED DECEMBER 23, 1959, THAT HE AND HIS DEPENDENTS OCCUPIED GOVERNMENT RENTAL HOUSING (DEFENSE RENTAL HOUSING) AT THE NAVAL STATION, KODIAK, ALASKA, FROM THE LAST PART OF AUGUST 1955, UNTIL OCTOBER 17, 1959, WHEN HE MOVED TO ALEUTIAN HOMES HOUSING PROJECT. AS A RESULT OF A REVIEW MADE OF PAYMENTS OF HOUSING ALLOWANCES WITHIN THE SEVENTEENTH COAST GUARD DISTRICT, CHECK AGE WAS ENTERED ON MEMBER'S PAY RECORD CLOSED DECEMBER 31, 1959, FOR $380.80, REPRESENTING STATION HOUSING ALLOWANCE PREVIOUSLY CREDITED FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1959, AT $4.15 PER DAY, TO BE LIQUIDATED BY MONTHLY DEDUCTIONS OF $64 UNTIL PAID.

THE ENCLOSURES WHICH ACCOMPANIED YOUR REQUEST SHOW THAT IN NOVEMBER 1955, QUESTION WAS RAISED AS TO THE ELIGIBILITY FOR STATION PER DIEM ALLOWANCES FOR QUARTERS OF THOSE PERSONS OCCUPYING THE LOW-COST HOUSING HERE INVOLVED. THE COMMANDER, SEVENTEENTH COAST GUARD DISTRICT, RULED THAT PERSONNEL WHO WERE OCCUPYING ANY DWELLINGS THAT WERE NOT RENT-FREE WERE CONSIDERED ELIGIBLE FOR THE STATION PER DIEM ALLOWANCE FOR QUARTERS AS PRESCRIBED FOR THE AREA, IT BEING INDICATED THAT NO PROVISION OF LAW OR REGULATIONS PRECLUDED CREDIT OF THAT ALLOWANCE UNDER THE CIRCUMSTANCES, AND CONTINUED PAYMENTS WERE AUTHORIZED UNLESS TERMINATED BY FURTHER INSTRUCTIONS. UPON THE TERMINATION OF PAYMENT OF STATION ALLOWANCES IN THESE CIRCUMSTANCES AS UNWARRANTED, IT WAS CONTENDED THAT SAID ALLOWANCES WERE AUTHORIZED BY THE ACT OF JULY 2, 1945, 37 U.S.C. 111A. IN RESPONSE TO A LETTER OF OCTOBER 29, 1959, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ADVISED THE COMMANDANT OF THE UNITED STATES COAST GUARD THAT THE QUARTERS IN QUESTION ARE PRESUMED TO BE GOVERNMENT QUARTERS AND, NOTWITHSTANDING THE FACT THAT THE MEMBERS ARE CHARGED A RENTAL AS DISTINGUISHED FROM FORFEITING THEIR BASIC ALLOWANCE FOR QUARTERS, NO HOUSING ALLOWANCE MAY BE PAID TO MEMBERS ASSIGNED TO AND OCCUPYING SUCH HOUSING. ON THE BASIS THAT STATION ALLOWANCES WERE PAID AND RECEIVED IN GOOD FAITH, WITH NO INTENT TO DECEIVE OR DEFRAUD, WARRANT OFFICER ECKMAN REQUESTS REMOVAL OF THE CHECK AGE, AND HIS COMMANDING OFFICER, BY ENDORSEMENT ON THE BASIC LETTER, STATES THAT RECOUPMENT OF THE AMOUNT PAID WOULD RESULT IN A HARDSHIP EQUIVALENT TO A SEVERE DISCIPLINARY PUNISHMENT, AND URGES THAT STRENUOUS EFFORTS BE MADE ON BEHALF OF ALL PERSONS AFFLICTED BY THE CHECK AGES.

IN YOUR SUBMISSION YOU AGAIN RAISE THE QUESTION OF THE APPLICABILITY OF THE ACT OF JULY 2, 1945, SUPRA, AND ADVANCE THE THEORY THAT SINCE THE MEMBER WAS NOT REQUIRED TO FORFEIT BASIC ALLOWANCE FOR QUARTERS BY REASON OF OCCUPYING RENTAL TYPE HOUSING AT KODIAK, AND SINCE HE WAS NOT FURNISHED GOVERNMENT QUARTERS WITHOUT CHARGE, HE WOULD APPEAR TO BE ENTITLED TO THE STATION HOUSING ALLOWANCE CLAIMED.

THE ACT OF JULY 2, 1945, 37 U.S.C. 111A, PROVIDES:

"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, MARINE CORPS, AND COAST GUARD 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 IN THIS SECTION 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.'

AT THE TIME THIS ACT WAS ENACTED THERE WAS NO PERMANENT LEGISLATION AUTHORIZING THE PAYMENT OF A STATION PER DIEM ALLOWANCE FOR QUARTERS IN ADDITION TO BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE, WHERE MEMBERS AND THEIR DEPENDENTS OCCUPIED GOVERNMENT-OWNED HOUSING FACILITIES. THE PURPOSE OF THE STATUTE IS TO PERMIT PERSONNEL OF THE SERVICES MENTIONED AND THEIR DEPENDENTS TO OCCUPY ON A RENTAL BASIS GOVERNMENT HOUSING FACILITIES, OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS, WITHOUT LOSS OF THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY STATUTE IN LIEU OF ASSIGNED GOVERNMENT QUARTERS.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 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 4301C (2) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT PROVISION OF THE LAW, PROVIDES THAT HOUSING 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, JOINT TRAVEL REGULATIONS AS "ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT.'

PARAGRAPH 4300-4 OF THE REGULATIONS PROVIDES THAT STATION ALLOWANCES, WHEN AUTHORIZED, ARE IN ADDITION TO BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE. PARAGRAPH 4301-1 STATES THAT HOUSING AND COST OF LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COST EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES AND PROVIDES THAT THE EXCESS COSTS ARE DERIVED BY COMPARISON OF THE AVERAGE COST OF LIVING AND HOUSING OF MEMBERS IN EACH AREA OUTSIDE THE UNITED STATES WITH THE AVERAGE COST OF LIVING AND HOUSING FOR SIMILAR MEMBERS IN THE UNITED STATES. FROM AN EXAMINATION OF THE RATES CHARGED FOR THE GOVERNMENT-OWNED HOUSING OCCUPIED BY THE MEMBER AND HIS DEPENDENTS IN RELATION TO THE BASIC ALLOWANCE FOR QUARTERS WHICH HE RECEIVED, IT MAY READILY BE SEEN THAT NO "AVERAGE EXCESS COSTS" WERE INCURRED BY HIM BY REASON OF HIS HOUSING. HENCE, THE CONCLUSION APPEARS REQUIRED THAT THE PAYMENT OF STATION HOUSING ALLOWANCE TO HIM WHILE OCCUPYING DEFENSE RENTAL HOUSING WAS NOT AUTHORIZED. SEE DECISION DATED MAY 2, 1960, B-141505, COPY ENCLOSED.

WHILE IT MAY BE THAT REPAYMENT OF THE UNAUTHORIZED ALLOWANCES MAY CAUSE HARDSHIP, THIS CASE IS NO DIFFERENT FROM ANY OF THE MANY INSTANCES WHERE OVERPAYMENTS WERE MADE THROUGH ADMINISTRATIVE ERROR AND ACCEPTED IN APPARENT GOOD FAITH. ACCORDINGLY, THERE IS NO BASIS FOR RELIEVING THE MEMBER FROM THE OBLIGATIONS TO REFUND TO THE UNITED STATES THE OVERPAYMENTS IN QUESTION. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER PROPOSING TO RECREDIT PREVIOUS CHECK AGES WILL BE RETAINED HERE.