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B-149067, MAY 13, 1963

B-149067 May 13, 1963
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RA: REFERENCE IS MADE TO YOUR CLAIM SUBMITTED ON MILITARY PAY VOUCHER (DA FORM 2139) DATED JANUARY 25. INASMUCH AS YOUR PREVIOUS CLAIM FOR THE ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED AUGUST 30. WAS THE SUBJECT OF OUR DECISION B-149067. YOUR VOUCHER WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THAT DECISION. IT APPEARS THAT YOUR REQUEST IS BASED UPON A DETERMINATION MADE BY THE AUTHORITIES AT THE 8TH LOGISTICAL COMMAND AFTER FURTHER INVESTIGATION OF THE QUARTERS OCCUPIED BY YOU AND CERTAIN MEMBERS OF YOUR FAMILY DURING THE PERIOD INVOLVED. THAT REASONABLE COOKING FACILITIES WERE NOT AVAILABLE. IT WAS DETERMINED THAT SINCE THE QUARTERS AT THE BUNNYAN APARTMENTS DID NOT MEET THE CRITERIA PRESCRIBED BY THE ARMY FOR ADEQUATE PUBLIC QUARTERS.

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B-149067, MAY 13, 1963

TO MASTER SERGEANT ANTHONY R. DEMEO, RA:

REFERENCE IS MADE TO YOUR CLAIM SUBMITTED ON MILITARY PAY VOUCHER (DA FORM 2139) DATED JANUARY 25, 1963, TO THE FINANCE AND ACCOUNTING OFFICER AT YOUR INSTALLATION FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD APRIL 10 TO JUNE 6, 1961, WHILE STAYING WITH THREE DEPENDENTS AT THE BUNNYAN APARTMENTS, LIVORNO (LEGHORN), ITALY, INCIDENT TO YOUR ASSIGNMENT WITH THE 8TH LOGISTICAL COMMAND. INASMUCH AS YOUR PREVIOUS CLAIM FOR THE ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED AUGUST 30, 1962, AND WAS THE SUBJECT OF OUR DECISION B-149067, OCTOBER 17, 1962, TO YOU, SUSTAINING THE DISALLOWANCE, YOUR VOUCHER WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THAT DECISION.

IT APPEARS THAT YOUR REQUEST IS BASED UPON A DETERMINATION MADE BY THE AUTHORITIES AT THE 8TH LOGISTICAL COMMAND AFTER FURTHER INVESTIGATION OF THE QUARTERS OCCUPIED BY YOU AND CERTAIN MEMBERS OF YOUR FAMILY DURING THE PERIOD INVOLVED, THAT REASONABLE COOKING FACILITIES WERE NOT AVAILABLE. ALSO, IT WAS DETERMINED THAT SINCE THE QUARTERS AT THE BUNNYAN APARTMENTS DID NOT MEET THE CRITERIA PRESCRIBED BY THE ARMY FOR ADEQUATE PUBLIC QUARTERS, YOU ARE CONSIDERED AS HAVING OCCUPIED HOTEL OR HOTEL-LIKE ACCOMMODATIONS WITHIN THE PURVIEW OF EXISTING REGULATIONS. THE QUARTERS OCCUPIED CONSIST OF A LIVING ROOM, BEDROOM, BATHROOM AND KITCHEN.

WHILE A DETERMINATION BY THE PROPER AUTHORITY THAT A MEMBER OCCUPIED INADEQUATE HOUSING MAY BE PERTINENT IN CERTAIN CASES TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, SUCH A DETERMINATION IS NOT CONTROLLING WITH RESPECT TO A MEMBER'S ENTITLEMENT TO RECEIVE THE TEMPORARY LODGING ALLOWANCE. AS STATED IN OUR DECISION OF OCTOBER 17, 1962, THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE AUTHORIZED IN PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTEL OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS. THOSE EXTRA LIVING EXPENSES MUST HAVE RESULTED BECAUSE THE MEMBER OCCUPIED HOTEL OR HOTEL LIKE ACCOMMODATIONS AND USED RESTAURANTS. THE ABSENCE OF ADEQUATE COOKING FACILITIES IN QUARTERS OCCUPIED BY A MEMBER DOES NOT AUTOMATICALLY CONSTITUTE SUCH QUARTERS AS ,HOTEL OR HOTEL- LIKE ACCOMMODATIONS" WITHIN THE CONTEMPLATION OF THE REGULATIONS NOR DOES THE LACK OF SUCH FACILITIES GIVE RISE TO THE PRESUMPTION THAT THE MEMBER INCURRED MORE THAN NORMAL LIVING EXPENSES BY PAYING RENT AT A RATE COMPARABLE TO THAT CHARGED TRANSIENTS FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND BY THE USE OF RESTAURANTS. HENCE, EVEN IF THE QUARTERS AT THE BUNNYAN APARTMENTS DID NOT ACTUALLY CONTAIN ADEQUATE FACILITIES FOR PREPARING MEALS FOR YOURSELF AND FAMILY, AS IS NOW ADMINISTRATIVELY REPORTED, SUCH FACTOR, STANDING ALONE, DOES NOT AFFORD A SUFFICIENT BASIS FOR PAYMENT OF THE ALLOWANCE. IN THIS CONNECTION IT IS REPORTED THAT THE COOKING FACILITIES WERE "OPERATIVE," AND THE DETERMINATION THAT THEY WERE NOT ADEQUATE APPEARS TO HAVE BEEN BASED PRIMARILY ON THE LACK OF A REFRIGERATOR. ALSO, EXCEPT FOR YOUR STATEMENT THAT "WE ATE ALL OUR MEALS OUT," THE RECORD CONTAINS NO INFORMATION AS TO WHERE YOUR MEALS WERE OBTAINED.

THE STATUTORY PROVISIONS, 37 U.S.C. 405, UNDER WHICH PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS WAS ISSUED, PROVIDE AUTHORITY FOR PAYMENT OF STATION PER DIEM ALLOWANCE SPECIFICALLY ON A COST OF LIVING BASIS, AND SUCH REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF THE ALLOWANCE, COMPUTED ON THE HIGHER TRAVEL PER DIEM RATES, ON ANY OTHER BASIS. WE HAVE CONSISTENTLY HELD, THEREFORE, THAT BENEFITS MAY NOT ACCRUE UNDER THE REGULATION UNLESS DURING THE FIRST 60-DAY PERIOD OF SERVICE AT A NEW OVERSEAS DUTY STATION THE MEMBER INCURS LIVING EXPENSES WHICH SUBSTANTIALLY EXCEED THOSE THAT WOULD BE INCURRED UNDERNORMAL PERMANENT LIVING ARRANGEMENTS. THOSE EXTRA LIVING EXPENSES MUST HAVE RESULTED BECAUSE OF THE FACT THAT THE HOUSING OR QUARTERS OCCUPIED ARE OF A TEMPORARY NATURE REQUIRING THE PAYMENT OF HIGHER TRANSIENT RENTALS, SUCH AS THOSE PAID FOR HOTEL ACCOMMODATIONS, AND USE OF COMMERCIAL RESTAURANTS.

THE RECEIPT GIVEN YOU BY THE OWNER OF THE BUNNYAN APARTMENTS SHOWS THAT YOU PAID 54,500 LIRE (APPROXIMATELY $87) DURING THE PERIOD APRIL 10 TO JUNE 10, 1961, AS RENT ON A DAILY BASIS FOR THE ACCOMMODATIONS WHICH WERE DESCRIBED AS A PENSION-TYPE APARTMENT. THERE IS NOTHING IN THE RECORD TO SHOW THAT SUCH RENT IS OUT OF LINE FOR THE RENT CHARGED FOR PERMANENT TYPE FAMILY QUARTERS AND APPROXIMATES THE CHARGES MADE AT HOTELS FOR SIMILAR ACCOMMODATIONS. THUS, CONSIDERING THAT ONE OF THE PURPOSES OF THE ALLOWANCE, AS STATED IN THE REGULATIONS, IS TO PROVIDE PARTIAL REIMBURSEMENT FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS, THE PRESENT RECORD DOES NOT ESTABLISH THAT YOU INCURRED THE EXTRAORDINARY EXPENSES FOR FOOD AND LODGINGS CONTEMPLATED BY THE REGULATIONS SO AS TO ENTITLE YOU TO RECEIVE THE TEMPORARY LODGING ALLOWANCE.

WHILE YOU HAVE CERTIFIED, IN ACCORDANCE WITH PARAGRAPH 8-26 AND 26 70M (4) (E), ARMY REGULATIONS 37-104, THAT YOU OCCUPIED HOTEL OR HOTEL LIKE ACCOMMODATIONS, AND IT APPEARS THAT THE COMMANDING OFFICER AT YOUR STATION IS IN AGREEMENT WITH THE STATEMENT, SUCH CERTIFICATE IS NOT CONCLUSIVE OF YOUR RIGHT TO THE ALLOWANCE CLAIMED, THAT RIGHT BEING DEPENDENT UPON THE ACTUAL CIRCUMSTANCES AS THEY EXISTED AND THE PROPER INTERPRETATION OF THE REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C. 405, SUPRA.

FURTHER, IT IS NOTED THAT YOUR TRANSFER TO THE 8TH LOGISTICAL COMMAND WAS EFFECTED BY SPECIAL ORDERS NO. 39 OF HEADQUARTERS, 160TH SIGNAL GROUP, APO 46, U.S. FORCES DATED MARCH 25, 1961, AS AMENDED ON APRIL 8, 1961, BY SPECIAL ORDERS NO. 73 OF HEADQUARTERS, UNITED STATES ARMY, SOUTHERN EUROPEAN TASK FORCE, APO 168. THE AUTHORITY FOR THE TRANSFER IS SHOWN IN SPECIAL ORDERS NO. 39 AS "COMMENT NO. 8, DA FORM 1049, CINCUSAREUR, DTD 21 MAR 61, AND CMT NO. 9, DA FORM 1049, HQ 7TH ARMY, DTD 23 MAR 61: SUBJ: "REQUEST FOR COMPASSIONATE TRANSFER.'" AS INDICATED ABOVE, THE RATES OF THE TEMPORARY LODGING ALLOWANCES AUTHORIZED IN PARAGRAPH 4303 ARE BASED ON THE SOMEWHAT HIGHER TRAVEL PER DIEM ALLOWANCES DESIGNED TO REIMBURSE MEMBERS FOR THEIR EXTRAORDINARY EXPENSES OF TRAVEL, WITH THE VIEW OF AUTHORIZING THEIR PAYMENT ONLY UNDER SPECIAL CIRCUMSTANCES APPROXIMATING THOSE MET BY TRAVELERS. FOR THAT PURPOSE THE ALLOWANCES ARE PROVIDED BY THE REGULATIONS IN FOREIGN DUTY ASSIGNMENTS INCIDENT TO A PERMANENT CHANGE OF STATION ONLY UPON INITIAL ARRIVAL AT, AND IMMEDIATELY PRECEDING DEPARTURE FROM, THE MEMBER'S PERMANENT DUTY STATION OUTSIDE THE UNITED STATES. THE ALLOWANCES AUTHORIZED MEMBERS IN CONNECTION WITH THEIR TRAVEL UPON PERMANENT CHANGE OF STATION ARE TO REIMBURSE THE MEMBERS FOR EXPENSES INCURRED IN COMPLYING WITH THE TRAVEL REQUIREMENTS IMPOSED UPON THEM BY THE NEED OF THE SERVICES WHICH PRESUPPOSES THAT THE CHANGE OF STATION WAS INDUCED BY MILITARY CONSIDERATIONS AND HENCE THAT THE TRAVEL WAS PERFORMED ON PUBLIC BUSINESS. WE HAVE CONSISTENTLY HELD THAT TRAVEL INCIDENT TO A REASSIGNMENT MADE SOLELY FOR COMPASSIONATE OR HUMANITARIAN REASONS, IS PERFORMED ON A PERMISSIVE BASIS FOR PERSONAL REASONS AND NOT ON PUBLIC BUSINESS AS CONTEMPLATED BY THE LAW AND REGULATIONS AUTHORIZING REIMBURSEMENT TO A MEMBER FOR THE EXPENSES INCURRED IN CONNECTION WITH A CHANGE IN DUTY STATIONS.

SINCE YOUR ORDERS INDICATE THAT YOUR REASSIGNMENT FROM THE 160TH SIGNAL GROUP TO THE 8TH LOGISTICAL COMMAND WAS FOR COMPASSIONATE OR HUMANITARIAN REASONS, IT IS DOUBTFUL IN THE ABSENCE OF A SHOWING THAT THE TRANSFER WAS PRIMARILY BECAUSE OF THE NEEDS OF THE SERVICE, THAT YOU WOULD BE ENTITLED TO RECEIVE A TEMPORARY LODGING ALLOWANCE INCIDENT TO THAT CHANGE OF STATION EVEN HAD IT BEEN ESTABLISHED THAT YOU AND YOUR DEPENDENTS ACTUALLY OCCUPIED HOTEL-LIKE ACCOMMODATIONS AND ATE AT RESTAURANTS WITHIN THE MEANING OF THE REGULATIONS FOR THE PERIOD OF YOUR CLAIM.

ACCORDINGLY, THE PRESENT RECORD AFFORDS NO BASIS FOR AN ACTION DIFFERENT FROM THAT PREVIOUSLY TAKEN IN SUSTAINING THE SETTLEMENT OF AUGUST 30, 1962.

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