B-152099, MARCH 9, 1964, 43 COMP. GEN. 587

B-152099: Mar 9, 1964

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STORAGE - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - INVOLUNTARY MOVES TO INADEQUATE QUARTERS THE COST OF DRAYAGE AND NONTEMPORARY STORAGE OF HOUSEHOLD GOODS OF AIR FORCE MEMBERS STATIONED OVERSEAS IN CONNECTION WITH INVOLUNTARY MOVES UNDER COMPETENT ORDERS FROM RENTAL HOUSING TO ON-BASE GOVERNMENT QUARTERS DECLARED INADEQUATE PURSUANT TO 42 U.S.C. 1594J IS THE LIABILITY OF THE GOVERNMENT. THE MEMBERS DIRECTED ON THE BASIS OF MILITARY NEED TO OCCUPY INADEQUATE QUARTERS ARE NOT CONSIDERED TO HAVE VOLUNTARILY OCCUPIED THE INADEQUATE QUARTERS FOR PERSONAL REASONS. ARE NOT INDEBTED FOR THE STORAGE AND DRAYAGE COSTS PAID BY THE GOVERNMENT. THE MEMBERS ARE SUBJECT TO AN APPROPRIATE RENTAL CHARGE FOR THE OCCUPANCY OF THE INADEQUATE PUBLIC QUARTERS.

B-152099, MARCH 9, 1964, 43 COMP. GEN. 587

STORAGE - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - INVOLUNTARY MOVES TO INADEQUATE QUARTERS THE COST OF DRAYAGE AND NONTEMPORARY STORAGE OF HOUSEHOLD GOODS OF AIR FORCE MEMBERS STATIONED OVERSEAS IN CONNECTION WITH INVOLUNTARY MOVES UNDER COMPETENT ORDERS FROM RENTAL HOUSING TO ON-BASE GOVERNMENT QUARTERS DECLARED INADEQUATE PURSUANT TO 42 U.S.C. 1594J IS THE LIABILITY OF THE GOVERNMENT, ASSIGNMENT TO INADEQUATE QUARTERS FOR THE CONVENIENCE OF A MEMBER BEING INCONSISTENT WITH REGULATIONS THAT DO NOT REQUIRE OCCUPANCY OF INADEQUATE QUARTERS, AND THE MEMBERS DIRECTED ON THE BASIS OF MILITARY NEED TO OCCUPY INADEQUATE QUARTERS ARE NOT CONSIDERED TO HAVE VOLUNTARILY OCCUPIED THE INADEQUATE QUARTERS FOR PERSONAL REASONS, AND ARE NOT INDEBTED FOR THE STORAGE AND DRAYAGE COSTS PAID BY THE GOVERNMENT, THEREFORE, AMOUNTS COLLECTED MAY BE REFUNDED; HOWEVER, THE MEMBERS ARE SUBJECT TO AN APPROPRIATE RENTAL CHARGE FOR THE OCCUPANCY OF THE INADEQUATE PUBLIC QUARTERS.

TO THE SECRETARY OF THE AIR FORCE, MARCH 9, 1964:

REFERENCE IS MADE TO LETTER OF OCTOBER 24, 1963, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ASSIGNED PDTATAC CONTROL NO. 63-22, REQUESTING DECISION AS TO THE VALIDITY OF AN ADMINISTRATIVE DETERMINATION OF INDEBTEDNESS OF 83 AIR FORCE MEMBERS FOR COSTS OF DRAYAGE AND NONTEMPORARY STORAGE OF HOUSEHOLD GOODS PAID BY THE GOVERNMENT IN CONNECTION WITH MOVES FROM PRIVATE RENTAL HOUSING TO ON-BASE GOVERNMENT QUARTERS WHICH OCCURRED IN 1959 AND 1960 WHILE THE MEMBERS WERE STATIONED IN ENGLAND. PRIOR TO THE DATE OF RECEIPT OF THE ASSISTANT SECRETARY'S LETTER, THE MATTER IN QUESTION WAS THE SUBJECT OF A CONFERENCE BETWEEN REPRESENTATIVES OF OUR OFFICE AND OF THE AIR FORCE ON JULY 19, 1963.

THE ASSISTANT SECRETARY STATES THAT THE MOVES WERE ORDERED IN THE INTERESTS OF INCREASED MISSION EFFICIENCY AND THAT THE COSTS OF DRAYAGE AND OF NONTEMPORARY STORAGE OF HOUSEHOLD GOODS NOT NEEDED IN THE NEWLY ASSIGNED GOVERNMENT QUARTERS WERE PAID BY THE GOVERNMENT BECAUSE IT WAS BELIEVED TO BE IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH 8304 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME OF THE MOVES AND WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

WHEN ORDERS HAVE BEEN ISSUED ASSIGNING * * * GOVERNMENT QUARTERS * * * THE MEMBER * * * WILL BE ENTITLED TO DRAYAGE OF HOUSEHOLD GOODS BETWEEN GOVERNMENT QUARTERS AND CIVILIAN HOUSING * * * HOUSEHOLD GOODS NOT REQUIRED BY THE OWNER UPON ASSIGNMENT OR REASSIGNMENT TO GOVERNMENT QUARTERS MAY BE PLACED IN NONTEMPORARY STORAGE * * *.

SOMEWHAT SIMILAR PROVISIONS ARE NOW CONTAINED IN PARAGRAPH 8308 OF THE REGULATIONS. PARAGRAPH 1150-5 OF THE THEN EXISTING REGULATIONS DEFINED THE TERM "GOVERNMENT QUARTERS" AS MEANING " * * * ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, OR FURNISHED * * * UNDER AGREEMENT WITH THE UNITED STATES * * *.' SUBSTANTIALLY, THE SAME DEFINITION OF GOVERNMENT QUARTERS IS CURRENTLY CONTAINED IN PARAGRAPH 1150-5.

THE ASSISTANT SECRETARY FURTHER STATES THAT A ROUTINE INVESTIGATION BY AIR FORCE RESIDENT AUDITORS AT THE BASES INVOLVED REVEALED THAT THE QUARTERS TO WHICH THE MEMBERS WERE ASSIGNED HAD BEEN DECLARED "INADEQUATE" IN ACCORDANCE WITH THE PROVISIONS OF AIR FORCE REGULATION 93-5. THOSE REGULATIONS IMPLEMENT THE PROVISIONS OF 42 U.S.C. 1594J WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

(A) OCCUPANCY ON RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS.

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, MEMBERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WITH DEPENDENTS, MAY OCCUPY ON A RENTAL BASIS, WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS, INADEQUATE QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, NOTWITHSTANDING THAT SUCH QUARTERS MAY HAVE BEEN CONSTRUCTED OR CONVERTED FOR ASSIGNMENT AS PUBLIC QUARTERS. THE NET DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF SUCH QUARTERS SHALL BE PAID FROM OTHERWISE AVAILABLE APPROPRIATIONS.

THE LAW FURTHER PROVIDES, 42 U.S.C. 1594J (C), THAT THE SECRETARIES CONCERNED "ARE EACH AUTHORIZED, * * * TO DESIGNATE AS RENTAL HOUSING SUCH HOUSING AS HE MAY DETERMINE TO BE INADEQUATE AS PUBLIC QUARTERS.'

THE AIR FORCE AUDITORS CONCLUDED, IT IS STATED, THAT THE ORDERS ASSIGNING THE MEMBERS TO SUCH QUARTERS WERE INVALID AND WITHOUT EFFECT BECAUSE THEY VIOLATED AIR FORCE REGULATIONS 30-6 WHICH PROVIDED THAT "COMMANDERS WILL ENCOURAGE, BUT NOT REQUIRE, PERSONS TO OCCUPY RENTAL HOUSING * * " AS A RESULT OF THE AUDITOR'S FINDINGS, THE MEMBERS INVOLVED WERE INFORMED THAT THEY WERE LIABLE TO THE GOVERNMENT FOR THE AMOUNT OF THE DRAYAGE AND STORAGE COSTS. THE ASSISTANT SECRETARY STATES THAT HE AGREES WITH THE VIEW OF THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE THAT THE AUDITORS WERE MISTAKEN IN DETERMINING THAT NO ENTITLEMENT TO DRAYAGE AND STORAGE COSTS RESULTED FROM THE ISSUANCE OF THE ORDERS, AND HE PROPOSES TO STOP ALL COLLECTION ACTION AND REFUND ALL AMOUNTS PREVIOUSLY COLLECTED. IN VIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION, HOWEVER, WHICH DISALLOWED A CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM ONE OF THE MEMBERS CONCERNED, THE ASSISTANT SECRETARY STATES THAT THEY HAVE POSTPONED FURTHER ACTION PENDING OUR OPINION.

THE ASSISTANT SECRETARY SAYS THAT THE WORD "ORDERS" IN PARAGRAPH 8304 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME OF THESE MOVES MUST BE DEEMED TO BE GENERALLY COEXTENSIVE WITH THE TERM "COMPETENT ORDERS" IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A). HE SUGGESTS THAT CONGRESS DID NOT INTEND TO DENY THE ALLOWANCES PROVIDED IN SECTION 303 (A) TO EVERY INDIVIDUAL PERFORMING TRAVEL UNDER ORDERS SUBSEQUENTLY FOUND TO BE IN SOME WAY DEFECTIVE, SINCE SUCH A LIMITATION WOULD REQUIRE EACH INDIVIDUAL RECEIVING TRAVEL ORDERS TO DETERMINE INDEPENDENTLY THE LEGALITY OF THOSE ORDERS, OR RISK BEING FORCED TO BEAR THE ENTIRE COST OF THE PROPOSED MOVE HIMSELF. SUCH A REQUIREMENT, IT IS STATED, WOULD BE COMPLETELY CONTRARY TO THE LONG-ESTABLISHED AND GENERALLY ACCEPTED RULE OF MILITARY BEHAVIOR THAT AN ORDER NOT CLEARLY ILLEGAL OR UNAUTHORIZED ON ITS FACE SHOULD BE OBEYED FIRST AND QUESTIONED LATER. IT IS STATED FURTHER THAT THE MOVES HERE INVOLVED WERE PERFORMED INVOLUNTARILY UNDER ORDERS THOUGHT TO BE BINDING. IN SUPPORT OF THE CONCLUSION THAT REFUND OF THE AMOUNT COLLECTED SHOULD NOT BE MADE, THE ASSISTANT SECRETARY EXPRESSES THE VIEW THAT THE WORDS "COMPETENT ORDERS" OR "ORDERS" AS USED IN THE PAY AND ALLOWANCE STATUTES AND THE JOINT TRAVEL REGULATIONS REQUIRE ONLY THAT A MOVE BE CARRIED OUT UNDER ORDERS NOT CLEARLY ILLEGAL OR UNAUTHORIZED ON THEIR FACE, ISSUED BY ONE HAVING AUTHORITY TO ISSUE ORDERS OF THAT GENERAL KIND.

THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE--- REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER--- ARE SET FORTH IN AN OPINION DATED APRIL 29, 1963, IN THE CASE OF CAPTAIN GEORGE W. TYE, ONE OF THE INDIVIDUALS CONCERNED. IN THAT OPINION, IT IS STATED THAT CAPTAIN TYE, WHO WAS ASSIGNED GOVERNMENT QUARTERS THAT HAD BEEN DECLARED INADEQUATE, PERFORMED DUTIES REQUIRING HIS LIVING ON THE BASE AND THAT HE WAS DIRECTED BY COMPETENT AUTHORITY TO MOVE ON BASE. THE OPINION QUOTES, IN PERTINENT PART, PARAGRAPH 1 OF AIR FORCE REGULATIONS 75-14, DATED JANUARY 20, 1960, AS FOLLOWS:

GOVERNMENT QUARTERS. ONLY GOVERNMENT QUARTERS WHICH ARE ASSIGNED UNDER ORDERS ARE CONSIDERED GOVERNMENT QUARTERS WITHIN THE MEANING OF 8304, JTR. HOUSING WHICH IS "DESIGNATED FOR OCCUPANCY" CARRIES NO ENTITLEMENT FOR DRAYAGE OR NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS. THIS IS TRUE EVEN THOUGH THE HOUSING IS OWNED BY THE GOVERNMENT BUT IS NOT ASSIGNED BECAUSE IT IS SUBSTANDARD HOUSING * * *

THE OPINION POINTS OUT THAT AIR FORCE REGULATIONS 30-6 AND 93-5 STATE THE POLICY THT MEMBERS WILL NOT BE REQUIRED TO OCCUPY INADEQUATE PUBLIC QUARTERS AND, THEREFORE, SUCH QUARTERS SHOULD NOT BE "ASSIGNED" BUT "DESIGNATED" FOR OCCUPANCY. WHEN SUCH QUARTERS ARE "DESIGNATED" AND OCCUPIED VOLUNTARILY, THE MOVEMENT INTO THE QUARTERS IS FOR THE PERSONAL CONVENIENCE OF THE MEMBER FOR WHICH NO TRANSPORTATION BENEFITS ACCRUE WITHIN THE CONTEMPLATION OF THE PERTINENT STATUTE AND THE JOINT TRAVEL REGULATIONS. IT IS STATED THAT THE PROVISION OF AIR FORCE REGULATION 75- 14, HOWEVER, DOES NOT QUALIFY THE DEFINITION OF "GOVERNMENT QUARTERS" CONTAINED IN THE JOINT TRAVEL REGULATIONS TO EXCLUDE PUBLIC QUARTERS, ALBEIT INADEQUATE, WHICH ARE IN FACT "ASSIGNED" TO A MEMBER AND WHICH HE IS REQUIRED BY HIS COMMANDER TO OCCUPY DUE TO EXIGENCIES OF THE SERVICE. THE OPINION CONCLUDES THAT IT DOES NOT FOLLOW THAT THE MEMBERS IN QUESTION LOST THEIR ENTITLEMENT BECAUSE A COMMANDER, IN THE INTEREST OF ACCOMPLISHING THE MISSION AND DUE TO UNUSUAL SURROUNDING CIRCUMSTANCES, MADE AN EXCEPTION TO THE POLICY AND ASSIGNED SUBSTANDARD QUARTERS TO CERTAIN MEMBERS AND REQUIRED THEM TO OCCUPY SUCH QUARTERS.

OUR CLAIMS DIVISION BY SETTLEMENT DATED DECEMBER 17, 1962, DISALLOWED THE CLAIM OF MAJOR GLENN R. TOWNSEND (Z 2-219-425/--- REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER--- FOR REFUND OF THE AMOUNT COLLECTED FROM HIM FOR THE COST OF MOVING HIS HOUSEHOLD GOODS FROM OFF-BASE HOUSING TO INADEQUATE QUARTERS BECAUSE PARAGRAPH 8304 OF THE JOINT TRAVEL REGULATIONS DID NOT AUTHORIZE SUCH MOVEMENT AT GOVERNMENT EXPENSE. THE ORDERS (PARAGRAPH 2, SPECIAL ORDERS NO. G-83, MAY 16, 1960, HEADQUARTERS, 47TH BOMBARDMENT WING, TACTICAL (USAFE), APO 22, NEW YORK, NEW YORK) WHICH AUTHORIZED MAJOR TOWNSEND TO MOVE HIS EFFECTS EXPRESSLY "ASSIGNED" HIM GOVERNMENT QUARTERS AND PROVIDED THAT THE MOVEMENT, STORAGE AND NON- TEMPORARY STORAGE OF HOUSEHOLD EFFECTS WAS AUTHORIZED BY THE OWNER IN ACCORDANCE WITH PARAGRAPHS 8101B AND 8304 OF THE JOINT TRAVEL REGULATIONS. THOSE ORDERS FURTHER PROVIDED THAT THE QUARTERS WERE DECLARED INADEQUATE, AND THERE WAS CITED A MESSAGE AND LETTER GOVERNING RENTAL CHARGE FOR INADEQUATE PUBLIC QUARTERS. AN EXAMINATION OF MAJOR TOWNSEND'S PAY RECORD FOR THE PERIOD JULY 1, 1960, TO JUNE 30, 1962, SHOWS THAT DURING THE PERIOD JUNE 27, 1960 TO JUNE 26, 1962, HE WAS CHARGED AT THE RATE OF $81 AND $83 A MONTH AS RENTAL FOR INADEQUATE QUARTERS. THERE IS ALSO BEFORE US FOR CONSIDERATION THE CLAIM OF MARK E. BLIZZARD, AO 3008561 (Z 2-254-419), FOR REFUND OF THE AMOUNT PAID BY HIM FOR STORAGE AND DRAYAGE UNDER CIRCUMSTANCES SIMILAR TO MAJOR TOWNSEND. CAPTAIN BLIZZARD'S ORDERS WERE ISSUED BY THE SAME COMMAND AND ARE SUBSTANTIALLY SIMILAR TO THOSE OF MAJOR TOWNSEND EXCEPT THAT THEY DO NOT STATE THAT THE QUARTERS WERE DECLARED INADEQUATE.

AN ORDERED ASSIGNMENT TO INADEQUATE GOVERNMENT QUARTERS FOR THE CONVENIENCE OF THE MEMBER WOULD APPEAR TO BE INCONSISTENT WITH THE CITED REGULATIONS. THE RECORD INDICATES, HOWEVER, THAT WHILE THE ASSIGNMENTS HERE CONSIDERED WERE MADE TO QUARTERS PREVIOUSLY DETERMINED TO HAVE BEEN INADEQUATE, THEIR USE WAS DIRECTED ON THE BASIS OF A MILITARY NEED FOR THE PRESENCE OF THE MEMBERS ON THE BASE IN THE PROPER ACCOMPLISHMENT OF THEIR DUTIES WHICH REQUIRED THAT THEY BE READILY AVAILABLE AT ALL TIMES. THERE APPEARS TO HAVE BEEN NO ELEMENT OF VOLUNTARY OCCUPATION FOR THE PERSONAL CONVENIENCE OF THE MEMBERS INVOLVED. IN SUCH CIRCUMSTANCES WE ARE NOT REQUIRED TO VIEW THE ASSIGNMENTS IN THIS CASE AS HAVING BEEN UNAUTHORIZED WITHIN THE MEANING OF THE LAW AND REGULATIONS. ACCORDINGLY, REPAYMENT OF THE STORAGE AND DRAYAGE COSTS NEED NOT BE REQUIRED AND AMOUNTS PREVIOUSLY COLLECTED MAY BE REFUNDED IF OTHERWISE PROPER. OF COURSE, UNDER THE LAW, THE INDIVIDUALS CONCERNED ARE SUBJECT TO AN APPROPRIATE RENTAL CHARGE FOR OCCUPANCY OF INADEQUATE PUBLIC QUARTERS AND THEIR PAY RECORDS SHOULD REFLECT THIS CHARGE. THE TOWNSEND AND BLIZZARD CASES REFERRED TO ABOVE WILL BE DISPOSED OF BY OUR CLAIMS DIVISION.