B-143996, DECEMBER 6, 1960, 40 COMP. GEN. 335

B-143996, DECEMBER 6, 1960, 40 COMP. GEN. 335

MILITARY PERSONNEL - PER DIEM - HOTEL THAYER - OCCUPANCY OF QUARTERS - REDUCTION NECESSITY THE FACT THAT UNDER THE ACT OF OCTOBER 29, 1949, 37 U.S.C. 111B, THE HOTEL THAYER ON THE GROUNDS OF THE UNITED STATES MILITARY ACADEMY IS TO BE VIEWED AS A COMMERCIAL FACILITY IN PAID OCCUPANCY CASES, SO THAT MILITARY PERSONNEL NEED NOT BE DEPRIVED OF MONEY ALLOWANCES FOR RENTAL OF QUARTERS, SUPPORTS THE CONCLUSION THAT THE HOTEL MAY ALSO BE VIEWED AS A COMMERCIAL FACILITY IN PAID OCCUPANCY CASES FOR PER DIEM PURPOSES, AND, THEREFORE, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO DESIGNATE THE HOTEL AS NON- GOVERNMENT QUARTERS SO THAT THE PORTION OF A PER DIEM ALLOWANCE NEED NOT BE FORFEITED BY REASON OF OCCUPANCY PROVIDED THAT THE DETERMINATION BY THE SECRETARIES OF THE DEPARTMENTS IS BASED ON THE DESIRABILITY OF SUCH AN AMENDMENT UNDER THE PARTICULAR CIRCUMSTANCES.

TO THE SECRETARY OF THE AIR FORCE, DECEMBER 6, 1960:

BY LETTER OF SEPTEMBER 2, 1960, THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTED DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO DESIGNATE THE U.S. HOTEL THAYER AT WEST POINT, NEW YORK, AS NON -GOVERNMENT QUARTERS FOR PER DIEM PURPOSES SO THAT THE QUARTERS PORTION OF A PER DIEM ALLOWANCE NEED NOT BE FORFEITED BY REASON OF OCCUPANCY OF ROOMS IN SUCH HOTEL. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 60-31 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE U.S. HOTEL THAYER WAS ESTABLISHED AT WEST POINT PURSUANT TO THE ACT OF MARCH 4, 1919, 40 STAT. 1348, AS AMENDED BY THE ACT OF MARCH 30, 1920, 41 STAT. 548, AUTHORIZING THE LEASING OF LAND ON THE MILITARY RESERVATION TO PRIVATE INTERESTS FOR THE CONSTRUCTION OF A COMMERCIAL HOTEL TO BE OPERATED BY SUCH INTERESTS FOR A TERM OF YEARS AFTER WHICH IT WAS TO REVERT TO THE UNITED STATES. THE ASSISTANT SECRETARY STATES THAT UPON TERMINATION OF THE LEASE THE THEN SECRETARY OF WAR, BY LETTER OF MARCH 9, 1943, DIRECTED THE SUPERINTENDENT OF THE ACADEMY TO OPERATE THE HOTEL IN ACCORDANCE WITH THE INTENT OF CONGRESS THAT FIRST-CLASS HOTEL ACCOMMODATIONS BE AVAILABLE AT WEST POINT FOR THE PUBLIC, ESPECIALLY FAMILIES AND FRIENDS OF CADETS. ALSO, HE SAYS THAT THE HOTEL IS OPERATED WITH NONAPPROPRIATED FUNDS, OPERATING EXPENSES BEING PAID FROM REVENUE DERIVED FROM THE OPERATION OF THE HOTEL; THAT THE RATES CHARGED MILITARY PERSONNEL WHO OCCUPY THE HOTEL WHILE ON TEMPORARY DUTY AT WEST POINT ARE THE SAME AS CHARGED TO THE GENERAL PUBLIC; THAT THE MINIMUM RATE IS $6 PER DAY, AND THAT THE RATES ARE FOR ROOM RENTAL AND ARE NOT CONSIDERED SERVICE CHARGES.

SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252 (B), PROVIDES 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. HOWEVER, THE ACT OF OCTOBER 29, 1949, 37 U.S.C. 111B, PROVIDES THAT AFTER JUNE 30, 1949, PAID OCCUPANCY OF THE HOTEL ON THE GROUNDS OF THE UNITED STATES MILITARY ACADEMY ON A RENTAL BASIS BY PERSONNEL OF THE SERVICES MENTIONED IN THE TITLE OF THE PAY READJUSTMENT ACT OF 1942 OR BY THEIR DEPENDENTS SHALL NOT DEPRIVE SUCH PERSONNEL OF MONEY ALLOWANCES FOR RENTAL OF QUARTERS. IT IS POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, HOWEVER, THAT NO SUCH EXCEPTION IS FOUND WITH REGARD TO LOSS OF THE QUARTERS PORTION OF A PER DIEM ALLOWANCE WHEN RENTED QUARTERS ARE OCCUPIED IN THAT HOTEL.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS, AND THAT THE SECRETARIES MAY PRESCRIBE THE CONDITIONS UNDER WHICH SUCH ALLOWANCES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, SHALL BE AUTHORIZED. PARAGRAPH 4205-5 OF THE JOINT TRAVEL REGULATIONS REQUIRES A DEDUCTION FROM PER DIEM WHEN GOVERNMENT QUARTERS ARE AVAILABLE OR UTILIZED WITHIN THE UNITED STATES. PARAGRAPH 1150-5 OF THOSE REGULATIONS DEFINES GOVERNMENT QUARTERS AS FOLLOWS:

THE TERM " GOVERNMENT QUARTERS," UNLESS OTHERWISE QUALIFIED, MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, OR FURNISHED BY A FOREIGN GOVERNMENT EITHER UNDER AGREEMENT WITH THE UNITED STATES OR ON A COMPLIMENTARY BASIS, INCLUDING STATE NATIONAL GUARD CAMPS OR LICENSED INSTALLATIONS UTILIZED BY THE NATIONAL GUARD, REGARDLESS OF WHETHER OR NOT A SERVICE CHARGE IS PAID BY OFFICIAL PERSONNEL. ENLISTED PERSONNEL WILL NOT BE SUBJECT TO A SERVICE CHARGE AT INSTALLATIONS OF THE UNIFORMED SERVICES. FOR THE PURPOSE OF THESE REGULATIONS, QUARTERS FURNISHED BY A GOVERNMENT CONTRACTOR TO A MEMBER UNDER THE TERMS OF A CONTRACT, OR ON A COMPLIMENTARY BASIS, WILL BE DEEMED TO HAVE BEEN FURNISHED BY THE GOVERNMENT PROVIDED THAT CHARGES FOR THE UTILIZATION OF SUCH ACCOMMODATIONS DO NOT EXCEED $1 PER DAY. FOR THE PURPOSE OF THESE REGULATIONS, GOVERNMENT QUARTERS DO NOT INCLUDE FACILITIES OPERATED BY GOVERNMENT CONTRACTOR AT A CHARGE TO THE MEMBER IN EXCESS OF $1 PER DAY OF SLEEPING ACCOMMODATIONS ON AIRCRAFT, TRAINS, AND BUSES.

WHILE BROADLY SPEAKING, THE HOTEL THAYER IS GOVERNMENT QUARTERS FOR PER DIEM PURPOSES UNDER SUCH REGULATIONS, THE CITED 1949 ACT CONTEMPLATING THAT FOR QUARTERS ALLOWANCE PURPOSES THE HOTEL IS TO BE VIEWED AS A COMMERCIAL FACILITY IN PAID OCCUPANCY CASES, WOULD APPEAR TO SUPPORT THE CONCLUSION THAT IT MAY ALSO BE VIEWED AS A COMMERCIAL FACILITY FOR PER DIEM PURPOSES IN PAID OCCUPANCY CASES. THE REGULATIONS MAY BE AMENDED TO SO PROVIDE IN REPRESENTING A DETERMINATION BY THE SECRETARIES OF THE DESIRABILITY OF SUCH AN AMENDMENT UNDER THE PARTICULAR CIRCUMSTANCES INVOLVED.