B-148460, APR. 17, 1962

B-148460, APR. 17, 1962

TO MR. PHILIP A BESENDORF:

REFERENCE IS MADE TO YOUR UNDATED LETTER REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR QUARTERS' ALLOWANCE FOR THE PERIOD DECEMBER 9, 1960, THROUGH MARCH 28, 1961, AS ENLISTED MAN, U.S. ARMY. YOUR CLAIM WAS DISALLOWED FOR THE STATED REASON THAT THERE WAS NO OFFICIAL EVIDENCE THAT YOU AND YOUR WIFE OCCUPIED JOINT RESIDENCE OFF POST OR STATION AND THAT FAMILY-TYPE GOVERNMENT QUARTERS WERE NOT AVAILABLE. YOU STATE THAT YOU HAVE TALKED TO THE RECRUITER IN REGARD TO THE DISALLOWANCE AND THAT YOU ARE ENCLOSING THE INFORMATION HE SAID WOULD BE REQUIRED FOR PROOF THAT YOU RESIDED WITH YOUR WIFE OFF THE POST.

SECTION 302 OF THE CAREER COMPENSATION ACT AS AMENDED, 37 U.S.C. 252 (K), PROVIDES THAT THE ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR BY THAT SECTION SHALL BE SUBSTANTIATED IN SUCH MANNER AND IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE. SUBPARAGRAPH A OF PARAGRAPH 5-52, ARMY REGULATION 37-104, CHANGE 11, DATED FEBRUARY 9, 1959, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"A. BOTH HUSBAND AND WIFE ARE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WITH NO OTHER DEPENDENTS. A MEMBER, WHOSE SPOUSE IS IN THE ARMED FORCES, IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITH DEPENDENTS ON ACCOUNT OF THE SPOUSE.

"/1) HUSBAND AND WIFE ARE STATIONED AT THE SAME OR ADJACENT POSTS OR INSTALLATIONS AND OCCUPY JOINT RESIDENCE OFF POST OR STATION AND FAMILY TYPE GOVERNMENT QUARTERS ARE NOT AVAILABLE.

"/A) BOTH OFFICER OR BOTH ENLISTED. ELIGIBILITY TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER RESTS WITH THE MALE MEMBER. * * *"

PARAGRAPH 8B OF ARMY REGULATION 210-14, CHANGE 1, DATED MAY 25, 1959, RELATING TO ASSIGNMENT OF PUBLIC QUARTERS TO MARRIED MEMBERS, PROVIDES IN PERTINENT PART AS FOLLOWS:

"B. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE ARMED FORCES WITH NO OTHER DEPENDENTS AND ARE ASSIGNED TO PERMANENT DUTY AT THE SAME OR ADJACENT INSTALLATION, ELIGIBILITY FOR ASSIGNMENT TO QUARTERS WILL BE DETERMINED ON THE FOLLOWING BASIS:

"/1) WHEN BOTH MEMBERS ARE OFFICERS OR ENLISTED PERSONS. ELIGIBILITY FOR ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS RESTS WITH THE MALE MEMBER. * * * IF FAMILY QUARTERS ARE NOT AVAILABLE, ASSIGNMENT TO SINGLE QUARTERS WILL NOT BE MADE, EVEN THOUGH AVAILABLE, AS SUCH ASSIGNMENT IS NOT CONSIDERED TO BE IN THE BEST INTEREST OF THE SERVICE. WHEN FAMILY QUARTERS ARE NOT AVAILABLE, COMMANDERS OF INSTALLATIONS WILL PROVIDE APPROPRIATE CERTIFICATION TO THE MALE MEMBER OF THE MARRIAGE THAT "QUARTERS SUITABLE TO YOUR MARITAL STATUS ARE NOT AVAILABLE.' * * *"

WHILE YOU HAVE SUBMITTED RECEIPTS INDICATING THAT YOU AND YOUR WIFE RESIDED OFF THE STATION TO WHICH YOU WERE ASSIGNED, IT IS NOT ESTABLISHED THAT GOVERNMENT FAMILY-TYPE QUARTERS WERE NOT AVAILABLE FOR YOUR OCCUPANCY OR THAT A CERTIFICATION WAS FURNISHED YOU BY YOUR INSTALLATION COMMANDER AS REQUIRED IN SUCH CASES BY THE REGULATION QUOTED ABOVE.

THE ASSIGNMENT AND DETERMINATION OF AVAILABILITY OF GOVERNMENT QUARTERS FOR MEMBERS OF THE UNIFORMED SERVICES IS AN ADMINISTRATIVE MATTER. THE RECORD TRANSMITTED HERE WITH YOUR ORIGINAL CLAIM BY THE FINANCE CENTER, U.S. ARMY, CONTAINS A REPORT THAT THE FINANCE CENTER IS UNABLE TO DETERMINE WHETHER FAMILY-TYPE GOVERNMENT QUARTERS WERE AVAILABLE DURING THE PERIOD DECEMBER 9, 1960, THROUGH MARCH 28, 1961, THE PERIOD OF YOUR CLAIM. IN REPLY TO A REQUEST FOR SUCH INFORMATION, THE TRANSFER ACTIVITY AT FORT HOOD, TEXAS, ADVISED THE FINANCE CENTER ON OCTOBER 12, 1961, THAT "REQUESTED INFORMATION IS NOT AVAILABLE AT TRANSFER ACTIVITY THIS HEADQUARTERS.' THUS, THE NECESSARY OFFICIAL CERTIFICATION THAT FAMILY QUARTERS WERE NOT AVAILABLE IN YOUR CASE IS LACKING.

IT IS THE ESTABLISHED RULE THAT PERSONS WHO PRESENT CLAIMS AGAINST THE UNITED STATES MUST CLEARLY ESTABLISH THE FACTS UPON WHICH THEIR CLAIMS ARE BASED AND THE BURDEN IMPOSED BY THE RULE MUST BE MET SQUARELY IN EACH CASE IN ORDER TO JUSTIFY THE ALLOWANCE OF SUCH CLAIM FROM APPROPRIATED FUNDS. 23 COMP. GEN. 907. UPON REVIEW OF THE PRESENT RECORD IT MUST BE CONCLUDED THAT THE VALIDITY OF YOUR CLAIM HASNOT BEEN ESTABLISHED. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 1, 1961, IS SUSTAINED.