B-151453, JULY 17, 1963, 43 COMP. GEN. 70

B-151453: Jul 17, 1963

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MAINTAINED HIS CIVILIAN HOUSING WHILE HE WAS AT THE TEMPORARY DUTY STATION UNTIL HE RECEIVED NOTIFICATION OF THE APPROVAL OF HIS MEDICAL EXAMINATION MUST BE REGARDED AS IN A TRAVEL STATUS FROM THE DAY HE DEPARTED FROM HIS HOME TO PROCEED TO THE TEMPORARY DUTY STATION UNTIL ARRIVAL AT THE PERMANENT DUTY STATION. THE MEMBER IS NOT ENTITLED TO QUARTERS ALLOWANCE WHILE IN A TRAVEL STATUS. 1963: REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. YOU HAVE MODIFIED THE CLAIM TO COVER ONLY THE PERIOD COMMENCING FROM DATE OF ENTRY UPON ACTIVE DUTY. OUR FILE SHOWS THAT YOU WERE CALLED TO ACTIVE DUTY FOR 36 MONTHS UNDER SPECIAL ORDERS NO. THOSE ORDERS WERE AMENDED ON JANUARY 23. YOU WERE ASSIGNED GOVERNMENT QUARTERS AT THE MYRTLE BEACH AIR FORCE BASE BY VERBAL ORDERS OF THAT DATE CONFIRMED BY SPECIAL ORDERS NO.

B-151453, JULY 17, 1963, 43 COMP. GEN. 70

QUARTERS ALLOWANCE - TRAVEL STATUS AN AIR FORCE RESERVE OFFICER WITHOUT DEPENDENTS WHO, PURSUANT TO ORDERS TO ACTIVE DUTY REQUIRING SEVERAL WEEKS OF TEMPORARY DUTY AT A BASE EN ROUTE TO HIS PERMANENT DUTY STATION, MAINTAINED HIS CIVILIAN HOUSING WHILE HE WAS AT THE TEMPORARY DUTY STATION UNTIL HE RECEIVED NOTIFICATION OF THE APPROVAL OF HIS MEDICAL EXAMINATION MUST BE REGARDED AS IN A TRAVEL STATUS FROM THE DAY HE DEPARTED FROM HIS HOME TO PROCEED TO THE TEMPORARY DUTY STATION UNTIL ARRIVAL AT THE PERMANENT DUTY STATION, REGARDLESS OF WHETHER OR NOT THE MEMBER MAINTAINED HIS PERMANENT CIVILIAN HOUSING UNTIL THE SUCCESSFUL COMPLETION OF THE PHYSICAL EXAMINATION AND, THEREFORE, UNDER 37 U.S.C. 320 PROHIBITING PAYMENT OF A QUARTERS ALLOWANCE DURING PERIODS OF TRAVEL, THE MEMBER IS NOT ENTITLED TO QUARTERS ALLOWANCE WHILE IN A TRAVEL STATUS, INCLUDING THE PERIOD OF DELAY EN ROUTE TO THE PERMANENT STATION.

TO CAPTAIN HERBERT E. MARKS, JULY 17, 1963:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1963, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS A SINGLE OFFICER WITHOUT DEPENDENTS FOR THE PERIOD JANUARY 9 TO FEBRUARY 11, 1961, WHILE SERVING ON TEMPORARY DUTY AT LACKLAND AIR FORCE BASE, TEXAS. YOU HAVE MODIFIED THE CLAIM TO COVER ONLY THE PERIOD COMMENCING FROM DATE OF ENTRY UPON ACTIVE DUTY, JANUARY 8, 1961, TO DATE OF SUCCESSFUL COMPLETION OF YOUR MEDICAL EXAMINATION, JANUARY 18, 1961.

OUR FILE SHOWS THAT YOU WERE CALLED TO ACTIVE DUTY FOR 36 MONTHS UNDER SPECIAL ORDERS NO. A-7568 OF HEADQUARTERS, AIR RESERVE RECORDS CENTER (CONAC), DATED DECEMBER 8, 1960, AND ASSIGNED TO MYRTLE BEACH AIR FORCE BASE, SOUTH CAROLINA, FOR ACTIVE DUTY AS A FIRST LIEUTENANT, JAGD, WITH 4 WEEKS' TEMPORARY DUTY EN ROUTE AT LACKLAND AIR FORCE BASE, TEXAS, EFFECTIVE JANUARY 6, 1961. THOSE ORDERS WERE AMENDED ON JANUARY 23, 1961, BY SPECIAL ORDERS NO. MA-12, HEADQUARTERS, LACKLAND MILITARY TRAINING CENTER (ATC), TO SHOW EFFECTIVE DATE OF DUTY AS JANUARY 8, 1961. THE FILE FURTHER SHOWS THAT YOU OCCUPIED GOVERNMENT QUARTERS WHILE AT LACKLAND AIR FORCE BASE AND THAT EFFECTIVE FEBRUARY 18, 1961, YOU WERE ASSIGNED GOVERNMENT QUARTERS AT THE MYRTLE BEACH AIR FORCE BASE BY VERBAL ORDERS OF THAT DATE CONFIRMED BY SPECIAL ORDERS NO. AC-20 OF THAT BASE, DATED FEBRUARY 21, 1961.

SINCE YOU BELIEVED THAT THE DENIAL OF THE BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD OF YOUR TEMPORARY DUTY ASSIGNMENT AT LACKLAND AIR FORCE BASE WAS CONTRARY TO YOUR INTERPRETATION OF 37 U.S.C. 252 AND 320, YOU PRESENTED CLAIM FOR THE BASIC ALLOWANCE FOR QUARTERS IN LETTERS OF JULY 26 AND NOVEMBER 8, 1962. OUR CLAIMS DIVISION DISALLOWED THAT CLAIM ON THE GROUND THAT THE QUARTERS ASSIGNED TO YOU WERE DEEMED TO HAVE BEEN APPROPRIATE AND ADEQUATE WITHIN THE PURVIEW OF 37 U.S.C. 252 (B), WHICH PROVIDED 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. IT WAS ALSO POINTED OUT IN THE DISALLOWANCE CERTIFICATE THAT THERE ARE FOR APPLICATION IN YOUR CASE THE PROVISIONS OF 37 U.S.C. 320, WHICH BARRED PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS FOR ANY PERIOD AFTER JUNE 29, 1950, TO ANY MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS "WHILE SUCH MEMBER IS IN A TRAVEL * * * STATUS BETWEEN PERMANENT DUTY STATIONS INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME.'

YOU HAVE FURNISHED THIS OFFICE WITH A COPY OF STANDARD FORM 88 "REPORT OF MEDICAL EXAMINATION," DATED JANUARY 18, 1961, AND INVITED OUR ATTENTION TO ITEMS 6 AND 17 APPEARING UNDER THE GENERAL INSTRUCTIONS OF SPECIAL ORDERS NO. A-7568, TO SUPPORT YOUR CONTENTION THAT A PERMANENT CHANGE OF STATION COULD NOT BE EFFECTED UNTIL JANUARY 18, 1961, DATE OF APPROVAL OF YOUR MEDICAL EXAMINATION, AND, THEREFORE, TERMINATION OF "PERMANENT CIVILIAN HOUSING" PRIOR TO THAT DATE WOULD NOT BE PRACTICABLE OR WISE. ITEMS 6 AND 17 STIPULATE THAT RETENTION OF AN INDIVIDUAL ON ACTIVE MILITARY SERVICE IS SUBJECT TO SUCCESSFUL COMPLETION OF MEDICAL EXAMINATION AND THAT TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS ARE NOT AUTHORIZED UNTIL RECEIPT OF CERTIFICATE OF SATISFACTORY COMPLETION OF PHYSICAL EXAMINATION.

PARAGRAPH 3003-1A, JOINT TRAVEL REGULATIONS, DEFINES THE TERM "PERMANENT CHANGE OF STATION" AND READS IN PERTINENT PART AS FOLLOWS:

THE TERM "PERMANENT CHANGE OF STATION," UNLESS OTHERWISE QUALIFIED, MEANS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES FROM ONE PERMANENT STATION TO ANOTHER. THIS INCLUDES THE CHANGE FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, OR INDUCTION, * * *.

PARAGRAPH 3050-2, JOINT TRAVEL REGULATIONS, DEFINES THE TERM "TRAVEL STATUS" AND READS IN PERTINENT PART AS FOLLOWS:

CONDITIONS UNDER WHICH TRAVEL STATUS EXISTS. "TRAVEL STATUS," WHETHER TRAVEL IS PERFORMED BY LAND, AIR, OR SEA (EXCEPT AS A MEMBER OF THE SHIP'S COMPLEMENT), WILL COMMENCE WITH DEPARTURE FROM PERMANENT DUTY STATION OR SHIP, AND WILL INCLUDE ANY OF THE FOLLOWING CONDITIONS:

1. TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY: TRAVEL IN CONNECTION WITH NECESSARY TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY, INCLUDING TIME SPENT AT A TEMPORARY DUTY STATION OR A TEMPORARY ADDITIONAL DUTY STATION, WITHOUT REGARD TO WHETHER DUTY IS REQUIRED TO BE PERFORMED WHILE TRAVELING, AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THE PERMANENT DUTY STATION;

UNDER THE ABOVE-QUOTED PROVISIONS OF THE JOINT TRAVEL REGULATIONS, IT IS CLEAR THAT DURING THE PERIOD COMMENCING FROM THE DAY YOU DEPARTED FROM YOUR HOME TO PROCEED TO LACKLAND AIR FORCE BASE FOR TEMPORARY DUTY AND TERMINATING ON THE DAY OF YOUR ARRIVAL AT THE PERMANENT DUTY STATION, MYRTLE BEACH AIR FORCE, YOU WERE IN A TRAVEL STATUS INCIDENT TO A PERMANENT CHANGE OF STATION. CF. CALIFANO V. UNITED STATES, 145 CT.CL. 245, 248 (1959). IT IS EQUALLY CLEAR THAT THE FACT THAT YOU PERFORMED TEMPORARY DUTY AT LACKLAND AIR FORCE BASE FOR A PERIOD OF OVER 4 WEEKS COULD NOT SERVE TO CHANGE THAT STATUS. SINCE THE PROVISIONS OF 37 U.S.C. 320 SPECIFICALLY PROHIBIT THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO AN OFFICER WITHOUT DEPENDENTS WHILE SUCH OFFICER IS IN A TRAVEL STATUS BETWEEN PERMANENT DUTY STATIONS, THOSE PROVISIONS MUST BE GIVEN EFFECT IN YOUR CASE, REGARDLESS OF WHETHER OR NOT YOU MAINTAINED "PERMANENT CIVILIAN HOUSING" UNTIL THE DATE OF THE SUCCESSFUL COMPLETION OF YOUR PHYSICAL EXAMINATION. THE PURPOSE OF THAT PROVISION OF LAW, AS MANIFEST BY ITS LEGISLATIVE HISTORY, IS TO PREVENT PAYMENT OF DOUBLE ALLOWANCES FOR QUARTERS DURING PERIODS OF TRAVEL WHERE THE TRAVEL ALLOWANCE (MILEAGE OR PER DIEM) INCLUDES AN ALLOWANCE FOR QUARTERS. SEE, IN THIS CONNECTION, PARAGRAPH 20318 OF CHANGE 1, DATED JULY 1, 1960, AIR FORCE MANUAL 177-105, WHICH PROVIDES IN PART THAT A MEMBER WITHOUT DEPENDENTS IS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS WHILE IN A TRAVEL STATUS INCLUDING DELAY EN ROUTE BETWEEN PERMANENT DUTY STATIONS.

THE DISALLOWANCE OF YOUR CLAIM BY OUR CLAIMS DIVISION WAS PROPER AND IS SUSTAINED.