B-149082, JULY 30, 1962, 42 COMP. GEN. 65

B-149082: Jul 30, 1962

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WHO AS A NAVY OFFICER IS ENTITLED TO BASIC PAY WHICH PRECLUDES HIM UNDER SECTION 102 (G) OF THE CAREER COMPENSATION ACT FROM RECEIVING INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT. OR WHEN THE VESSEL IS NOT AWAY FROM ITS PERMANENT BASE. THIS REQUEST WAS FORWARDED UNDER NUMBER DO-N-651 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. IN YOUR LETTER IT IS STATED THAT COMMANDER PHELPS IS ATTACHED TO AIRBORNE EARLY WARNING BARRIER SQUADRON PACIFIC. THE SQUADRON'S PERMANENT DUTY STATION IS THE NAVAL AIR STATION. WHO IS ATTACHED TO THE STAFF OF COMMANDER IN CHIEF PACIFIC. LIEUTENANT COMMANDER COMSTOCK DOES NOT RECEIVE BASIC ALLOWANCE FOR QUARTERS AND IS NOT OCCUPYING PUBLIC QUARTERS.

B-149082, JULY 30, 1962, 42 COMP. GEN. 65

QUARTERS ALLOWANCE - ENTITLEMENT - MEMBER ASSIGNED TO FLEET ACTIVITY UNIT - DEPENDENT WIFE MEMBER OF ARMED SERVICES A NAVY OFFICER ASSIGNED TO A FLEET ACTIVITY UNIT OCCUPYING A PRIVATE RESIDENCE WITH HIS WIFE, WHO AS A NAVY OFFICER IS ENTITLED TO BASIC PAY WHICH PRECLUDES HIM UNDER SECTION 102 (G) OF THE CAREER COMPENSATION ACT FROM RECEIVING INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT, NEVERTHELESS, MAY NOT BE PAID QUARTERS ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS, THE ASSIGNMENT TO A FLEET ACTIVITY UNIT PROVIDING HIM WITH QUARTERS, BOTH WHILE SERVING AT SEA, OR WHEN THE VESSEL IS NOT AWAY FROM ITS PERMANENT BASE.

TO B. D. LACKEY, DEPARTMENT OF THE NAVY, JULY 30, 1962:

BY THIRD ENDORSEMENT DATED JUNE 4, 1962, THE COMPTROLLER OF THE NAVY FORWARDED HERE YOUR LETTER OF MARCH 15, 1962, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT TO COMMANDER JOHN N. PHELPS OF A QUARTERS ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS FROM MARCH 22, 1961. THIS REQUEST WAS FORWARDED UNDER NUMBER DO-N-651 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER IT IS STATED THAT COMMANDER PHELPS IS ATTACHED TO AIRBORNE EARLY WARNING BARRIER SQUADRON PACIFIC. THE SQUADRON'S PERMANENT DUTY STATION IS THE NAVAL AIR STATION, BARBER'S POINT, HAWAII. ON MARCH 22, 1961, COMMANDER PHELPS MARRIED LIEUTENANT COMMANDER CAROL M. COMSTOCK, USN, WHO IS ATTACHED TO THE STAFF OF COMMANDER IN CHIEF PACIFIC, MAKALAPA, HAWAII. LIEUTENANT COMMANDER COMSTOCK DOES NOT RECEIVE BASIC ALLOWANCE FOR QUARTERS AND IS NOT OCCUPYING PUBLIC QUARTERS, WHICH PRESUMABLY ARE AVAILABLE TO HER. IT IS FURTHER STATED THAT THE SINGLE QUARTERS AVAILABLE TO COMMANDER PHELPS AT THE NAVAL AIR STATION, BARBER'S POINT, WERE NOT AND ARE NOT ADEQUATE FOR HIM AND HIS WIFE. AFTER COMMANDER PHELPS HAD PURCHASED AND OCCUPIED A HOUSE WITH HIS WIFE, HE WAS OFFERED MARRIED QUARTERS ABOARD THE NAVAL AIR STATION BUT DECLINED SUCH OFFER.

IT IS STATED THAT TO DATE ALL OFFICERS HAVE BEEN PERMITTED TO REFUSE ASSIGNMENT TO MARRIED QUARTERS IF THEY PREFERRED TO RECEIVE THE MONETARY ALLOWANCE IN LIEU OF QUARTERS. YOU SAY THAT ASSIGNMENT TO MARRIED QUARTERS AT BARBER'S POINT IS NOT MANDATORY SO LONG AS OTHER ELIGIBLES REMAIN ON THE WAITING LIST AND THE AVAILABLE QUARTERS DO NOT REMAIN VACANT. AT THE TIME MARRIED QUARTERS WERE OFFERED TO COMMANDER PHELPS, THERE WAS A WAITING LIST AND THE QUARTERS DID NOT REMAIN VACANT, A SITUATION WHICH IT IS STATED HAS PREVAILED FROM THAT TIME TO DATE. AFTER DECLINING ASSIGNMENT TO MARRIED QUARTERS, YOU SAY THAT OFFICERS DRAW THE MONETARY ALLOWANCE FOR QUARTERS. HOWEVER, COMMANDER PHELPS WAS NOT CREDITED WITH THIS ALLOWANCE FOR THE REASON THAT HIS SQUADRON IS A FLEET ACTIVITY. IN THIS CONNECTION IT IS POINTED OUT THAT SUBPARAGRAPH (B) OF PARAGRAPH 1044035-4 OF THE NAVY COMPTROLLER MANUAL, WHICH CONTAINS RESTRICTIONS ON PAYMENT OF QUARTERS ALLOWANCE TO MEMBERS WITH DEPENDENTS IN THE UNIFORMED SERVICES, PROVIDES THAT MEMBERS WHO ARE ASSIGNED TO A FLEET ACTIVITY MAY NOT BE PAID THE QUARTERS ALLOWANCE PRESCRIBED FOR MEMBERS WITHOUT DEPENDENTS, UNLESS THE ACTIVITY HAS BEEN DESIGNATED A FLEET SHORE ACTIVITY FOR PURPOSES OF SEA/SHORE ROTATION OF DUTY FOR ENLISTED MEMBERS. THE COMMANDING OFFICER AT YOUR STATION HAS EXPRESSED THE OPINION THAT THIS REGULATION WAS INTENDED TO PROHIBIT A WAVE FROM RECEIVING FULL HOUSING BENEFITS WHILE HER HUSBAND IS LIVING APART IN SHIPBOARD QUARTERS ALSO PROVIDED AT GOVERNMENT EXPENSE. IT IS HIS VIEW THAT BECAUSE COMMANDER PHELPS HAS NOT BEEN ASSIGNED TO OR REQUIRED TO LIVE IN PUBLIC QUARTERS AND SEPARATE BACHELOR TYPE ACCOMMODATIONS ARE NOT APPROPRIATE, PAYMENT OF QUARTERS ALLOWANCE SHOULD BE AUTHORIZED IN HIS CASE.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES IN SUCH AMOUNTS AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THE SECTION. THE SECTION PROVIDES THAT THE BASIC ALLOWANCE FOR QUARTERS SHALL NOT ACCRUE TO MEMBERS ASSIGNED TO APPROPRIATE GOVERNMENT QUARTERS ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS, UNLESS HIS DEPENDENTS ARE PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING SUCH QUARTERS. THE PRESIDENT IS AUTHORIZED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION AND SUCH REGULATIONS ARE CONTAINED IN EXECUTIVE ORDER NO. 10204. PARAGRAPH 6 OF THE EXECUTIVE ORDER AUTHORIZES THE SECRETARIES CONCERNED TO ISSUE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT WITH THE EXECUTIVE ORDER, AS MAY BE NECESSARY OR DESIRABLE FOR CARRYING OUT ITS PROVISIONS AND PARAGRAPH 2 OF THE EXECUTIVE ORDER PROVIDES THAT UNLESS OTHERWISE PROVIDED BY STATUTE, THE MEMBERS CONCERNED SHALL BE ENTITLED TO PAYMENT OF THE QUARTERS ALLOWANCE IN ACCORDANCE WITH SUCH REGULATIONS. SUBSECTION 102 (G) OF THE 1949 ACT, 37 U.S.C. 231 (G), DEFINES THE TERM "DEPENDENT" FOR PURPOSES OF THE ACT AS INCLUDING AT ALL TIMES AND PLACES A LAWFUL WIFE BUT DECLARES THAT NO MEMBER CLAIMING A DEPENDENT AS DEFINED IN THE SUBSECTION MAY BE PAID INCREASED ALLOWANCES ON ACCOUNT OF SUCH DEPENDENT FOR ANY PERIOD DURING WHICH THE DEPENDENT IS ENTITLED TO RECEIVE BASIC PAY FOR THE PERFORMANCE OF DUTY AS DEFINED IN SECTION 201 (E), 37 U.S.C. 232 (E) (SHOULD BE 201 (D) (, OF THE ACT, 37 U.S.C. 232 (D).

UNDER DEPARTMENT OF DEFENSE INSTRUCTION 1338.1 DATED APRIL 16, 1954, WHICH PROVIDES FOR ASSIGNMENT OF PUBLIC QUARTERS OR PAYMENT OF QUARTERS ALLOWANCE TO MARRIED MEMBERS OF THE ARMED SERVICES, IT IS STATED TO BE THE POLICY TO ENCOURAGE MAINTENANCE OF THE FAMILY UNIT AND WHEN BOTH SPOUSES ARE IN THE MILITARY SERVICE AND ARE ASSIGNED TO THE SAME OR ADJACENT INSTALLATIONS, THE RIGHT TO ASSIGNMENT OF DEPENDENT TYPE QUARTERS RESTS WITH THE MALE MEMBER. IF SUCH QUARTERS ARE NOT AVAILABLE THE REGULATIONS CONTEMPLATE THAT A MALE MEMBER WHOSE DUTIES DO NOT REQUIRE HIM TO OCCUPY QUARTERS ON THE STATION SHALL BE PERMITTED TO RESIDE OFF HIS STATION WITH HIS WIFE IN WHICH EVENT HE SHALL BE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS AS FOR A MEMBER WITHOUT DEPENDENTS IN LIEU OF SINGLE QUARTERS, NOTWITHSTANDING THAT SINGLE QUARTERS WHICH MIGHT BE ASSIGNED TO HIM ARE AVAILABLE. WE CONSIDERED THESE INSTRUCTIONS IN OUR DECISION OF JULY 13, 1955, 35 COMP. GEN. 10. IN THAT DECISION WE CONSIDERED THE CASE OF AN ENLISTED MAN ASSIGNED TO A VESSEL WHO OCCUPIED PRIVATE QUARTERS WITH HIS WIFE, ALSO A MEMBER OF THE SERVICE AT THE HOME PORT OF THE VESSEL. DURING A PORTION OF THE PERIOD THE VESSEL WAS UNDERGOING YARD OVERHAUL. WE HELD THAT THE MEMBER WAS PRECLUDED BY SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, FROM RECEIVING AN INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF HIS WIFE WHILE SHE WAS ENTITLED TO BASIC PAY. ALSO, IT WAS HELD THAT, AS A MEMBER SERVING ON A VESSEL, BEING FURNISHED QUARTERS ON BOARD, HE COULD NOT BE CREDITED WITH A QUARTERS ALLOWANCE ON HIS OWN ACCOUNT, INCLUDING THE PERIOD OF OVERHAUL, UNLESS IT SHOULD BE CERTIFIED BY AN APPROPRIATE AUTHORITY THAT HIS QUARTERS WERE UNINHABITABLE BECAUSE OF THE OVERHAUL AND HE WAS FURNISHED NO OTHER QUARTERS.

SINCE COMMANDER PHELPS IS ASSIGNED TO A UNIT WHICH IS A FLEET ACTIVITY HE, OF COURSE, WOULD BE FURNISHED NECESSARY QUARTERS WHILE SERVING AT SEA, AND PRESUMABLY SUCH QUARTERS ABOARD, OR OTHERS ASHORE IN LIEU OF THE QUARTERS ABOARD, ARE PROVIDED FOR HIM AND THE OTHER MEMBERS OF THE UNIT DURING PERIODS THAT IT IS NOT AWAY FROM ITS PERMANENT BASE, SUCH BASE NOT BEING CONSIDERED AS A SHORE STATION BUT CORRESPONDING TO THE HOME PORT OF A VESSEL. THUS, IT WOULD APPEAR THAT HIS SITUATION IS COMPARABLE TO THAT OF A MEMBER SERVING ON A VESSEL AND NO BASIS IS PRESENTED FOR APPLYING ANY DIFFERENT RULE WITH RESPECT TO ENTITLEMENT TO QUARTERS ALLOWANCE.

THEREFORE, ON THE RECORD PRESENTED, YOU ARE NOT AUTHORIZED TO CREDIT THE OFFICER WITH QUARTERS ALLOWANCE.