B-149478, AUGUST 24, 1962, 42 COMP. GEN. 122

B-149478: Aug 24, 1962

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VOLUNTARILY OCCUPIED INADEQUATE GOVERNMENT QUARTERS THAT WERE TERMINATED ON THE DAY OF DEPARTURE FOR TEMPORARY DUTY AND WHO. WAS ASSIGNED ADEQUATE GOVERNMENT QUARTERS MAY NOT SUBSEQUENTLY URGE THE INADEQUACY OF THE QUARTERS AS A BASIS FOR ENTITLEMENT TO QUARTERS ALLOWANCES. PAYMENT OF A QUARTERS ALLOWANCE TO THE OFFICER IS NOT AUTHORIZED. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. LIEUTENANT BLANK WAS DIRECTED TO PROCEED ON OR ABOUT DECEMBER 9. BACHELOR OFFICERS' QUARTERS OCCUPIED BY LIEUTENANT BLANK WERE TERMINATED EFFECTIVE DECEMBER 8. UPON HIS RETURN FROM TEMPORARY DUTY NEW QUARTERS WERE ASSIGNED TO HIM EFFECTIVE JUNE 2. STATING THAT "BACHELOR OFFICERS' QUARTERS WERE INADEQUATE FOR THE PERIOD 1 DECEMBER 1959 TO 31 JANUARY 1960.

B-149478, AUGUST 24, 1962, 42 COMP. GEN. 122

QUARTERS ALLOWANCE - TEMPORARY DUTY - VOLUNTARY OCCUPANCY OF INADEQUATE QUARTERS AN AIR FORCE OFFICER, WITHOUT DEPENDENTS, WHO, IMMEDIATELY PRIOR TO TEMPORARY DUTY, VOLUNTARILY OCCUPIED INADEQUATE GOVERNMENT QUARTERS THAT WERE TERMINATED ON THE DAY OF DEPARTURE FOR TEMPORARY DUTY AND WHO, UPON RETURN TO THE PERMANENT DUTY STATION, WAS ASSIGNED ADEQUATE GOVERNMENT QUARTERS MAY NOT SUBSEQUENTLY URGE THE INADEQUACY OF THE QUARTERS AS A BASIS FOR ENTITLEMENT TO QUARTERS ALLOWANCES; THEREFORE, PAYMENT OF A QUARTERS ALLOWANCE TO THE OFFICER IS NOT AUTHORIZED.

TO CAPTAIN M. E. CALE, DEPARTMENT OF THE AIR FORCE, AUGUST 24, 1962:

BY LETTER DATED JULY 17, 1962, THE DIRECTORATE OF ACCOUNTING AND FINANCE FORWARDED YOUR LETTER OF JULY 7, 1962, WITH ENCLOSURES, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A MILITARY PAY ORDER IN FAVOR OF FIRST LIEUTENANT SAMUEL A. BLANK, USAF, IN THE AMOUNT OF $408.94, REPRESENTING A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITHOUT DEPENDENTS DURING THE PERIOD DECEMBER 9, 1959, TO JUNE 1, 1960, UNDER THE CIRCUMSTANCES STATED. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO- AF-665 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY ORDERS DATED DECEMBER 4, 1959, OLMSTED AIR FORCE BASE, PENNSYLVANIA, LIEUTENANT BLANK WAS DIRECTED TO PROCEED ON OR ABOUT DECEMBER 9, 1959, TO CHARLESTON, SOUTH CAROLINA, AND THEN TO RAMEY AIR FORCE BASE, PUERTO RICO, ON TEMPORARY DUTY FOR APPROXIMATELY 179 DAYS FOR THE PURPOSE OF INSTALLING AIRCOM EQUIPMENT. BACHELOR OFFICERS' QUARTERS OCCUPIED BY LIEUTENANT BLANK WERE TERMINATED EFFECTIVE DECEMBER 8, 1959, BY VERBAL ORDERS, CONFIRMED BY ORDERS OF DECEMBER 17, 1959, OLMSTED AIR FORCE BASE, AND UPON HIS RETURN FROM TEMPORARY DUTY NEW QUARTERS WERE ASSIGNED TO HIM EFFECTIVE JUNE 2, 1960, ALSO BY VERBAL ORDERS, CONFIRMED BY ORDERS OF JUNE 6, 1960, ISSUED AT THE SAME INSTALLATION.

IN SUPPORT OF HIS CLAIM, LIEUTENANT BLANK FURNISHED AS AN ENCLOSURE WITH HIS LETTER OF DECEMBER 11, 1961, A COPY OF 1ST INDORSEMENT FROM OLMSTED AFB, STATING THAT "BACHELOR OFFICERS' QUARTERS WERE INADEQUATE FOR THE PERIOD 1 DECEMBER 1959 TO 31 JANUARY 1960. PERMANENT ASSIGNED PERSONNEL WERE NOT REQUIRED TO OCCUPY THESE QUARTERS EXCEPT ON A VOLUNTARY BASIS. EFFECTIVE 1 FEBRUARY 1960, BACHELOR OFFICERS' QUARTERS WERE ADEQUATE AND AVAILABLE AND ALL PERMANENT OFFICERS WERE REQUIRED TO OCCUPY THESE QUARTERS.' THE OFFICER STATES IN HIS LETTER THAT HE DID NOT WISH TO OCCUPY THE QUARTERS IN QUESTION, BUT DUE TO BEING ON TEMPORARY DUTY AND AWAY FROM OLMSTED AFB MOST OF THE TIME HE WAS NOT ABLE TO MAKE SUITABLE ARRANGEMENTS FOR LIVING OFF BASE. HE SAYS THAT ABOUT DECEMBER 1, 1959, HE MADE ARRANGEMENTS TO SHARE AN APARTMENT WITH A FRIEND AND HAD STARTED MOVING HIS PERSONAL BELONGINGS WHEN HE WAS ORDERED ON TEMPORARY DUTY AT PUERTO RICO. THE OFFICER CONTENDS--- SINCE QUARTERS WERE INADEQUATE AT THE TIME THEY WERE TERMINATED AND SINCE HE WAS NOT INFORMED THAT ADEQUATE QUARTERS WERE AVAILABLE IN JANUARY 1960, AND COULD NOT HAVE BEEN OCCUPIED IN ANY EVENT DURING THE PERIOD OF HIS CLAIM DUE TO HIS TEMPORARY DUTY--- THAT HE IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS 20315A AND 20318A, AIR FORCE MANUAL 177 105, DATED JULY 1, 1960.

YOU SAY THAT LIEUTENANT BLANK TERMINATED HIS INADEQUATE QUARTERS AT OLMSTED AFB ON DECEMBER 8, 1959, AND DEPARTED ON THAT DATE FOR HIS TEMPORARY DUTY AND THAT HE RETURNED TO THAT BASE ON JUNE 2, 1960, WHERE HE IMMEDIATELY OCCUPIED QUARTERS IN A NEW BOQ. IN EXPRESSING DOUBT AS TO THE PROPRIETY OF THE PAYMENT, YOU STATE THAT LIEUTENANT BLANK WAS NOT DRAWING A SINGLE QUARTERS ALLOWANCE AT HIS PERMANENT DUTY STATION PRIOR TO DEPARTURE.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (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. PARAGRAPHS 20315A AND 20318A, AIR FORCE MANUAL 177-105, CITED BY THE OFFICER, AND PERTAINING ONLY TO MEMBERS OF THE AIR FORCE WITHOUT DEPENDENTS, PROVIDE IN PERTINENT PART AS FOLLOWS:

ENTITLEMENT

A. GENERAL * * *. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES AT HIS PERMANENT STATION SHALL BE CONSIDERED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS.

A. TEMPORARY DUTY. A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHEN ON TEMPORARY DUTY (INCLUDING TEMPORARY DUTY ON TRANSPORT) IF RECEIVING BASIC ALLOWANCE FOR QUARTERS AT HIS PERMANENT DUTY STATION AND HIS PERMANENT STATION REMAINS UNCHANGED.

WHILE THE QUOTED PROVISIONS WERE EFFECTIVE JULY 1, 1960, THEY SUPERSEDED SIMILAR PROVISIONS APPEARING IN PARAGRAPHS 2031A AND 20302, AIR FORCE MANUAL 173-20, DATED MARCH 30, 1955, WHICH WERE IN EFFECT DURING THE PERIOD HERE INVOLVED.

THUS, MEMBERS, WITHOUT DEPENDENTS, PERFORMING TEMPORARY DUTY AWAY FROM A PERMANENT STATION AT WHICH THEY WERE NOT ASSIGNED, OR FURNISHED QUARTERS, BUT AT WHICH THEY WERE PAID A RENTAL ALLOWANCE AND REQUIRED TO PROCURE THEIR OWN QUARTERS, CONTINUE TO RECEIVE THE RENTAL ALLOWANCE TO MEET THE CONTINUING EXPENSE OF MAINTAINING SUCH PRIVATELY FINANCED QUARTERS AT THE PERMANENT STATION DURING THEIR TEMPORARY ABSENCE FROM THAT STATION. THE OTHER HAND, MEMBERS WHO OCCUPY GOVERNMENT QUARTERS WHILE PERFORMING DUTY AT THE PERMANENT STATION, AND HENCE ARE NOT IN RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS, DO NOT ACQUIRE A RIGHT TO RECEIVE SUCH ALLOWANCE UPON DEPARTING FOR A PERIOD OF TEMPORARY DUTY. WHILE LIEUTENANT BLANK'S QUARTERS WERE TERMINATED ON THE DAY OF HIS DEPARTURE FROM HIS PERMANENT DUTY STATION, HE APPARENTLY WAS NOT PUT TO ANY APPRECIABLE EXPENSE TO MAINTAIN QUARTERS AT HIS PERMANENT DUTY STATION DURING THE PERIOD OF HIS ABSENCE AS CONTEMPLATED BY THE REGULATIONS, PARTICULARLY SINCE UPON HIS RETURN FROM TEMPORARY DUTY HE WAS AGAIN ASSIGNED GOVERNMENT QUARTERS. THE FACT THAT THE QUARTERS ASSIGNED TO HIM IMMEDIATELY PRIOR TO HIS TEMPORARY DUTY WERE DETERMINED TO BE INADEQUATE AFFORDS NO BASIS FOR CONCLUDING THAT THE OFFICER IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. THE OFFICER'S OWN STATEMENT CLEARLY INDICATES THAT HE OCCUPIED THOSE QUARTERS ON A VOLUNTARY BASIS FOR PERSONAL REASONS. A MEMBER WHO ELECTS TO OCCUPY INADEQUATE QUARTERS MAY NOT THEREAFTER BE PERMITTED TO URGE THEIR INADEQUACY AS A BASIS FOR PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS. COMPARE THE ANSWER TO QUESTION 1 IN OUR DECISION OF SEPTEMBER 16, 1960, 40 COMP. GEN. 169, 171, TO THE SECRETARY OF DEFENSE. ACCORDINGLY, THE PAYMENT OF THE QUARTERS ALLOWANCE IS NOT AUTHORIZED AND THE MILITARY PAY ORDER, TOGETHER WITH ENCLOSURES, WILL BE RETAINED HERE.