B-153021, JAN. 14, 1964

B-153021: Jan 14, 1964

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LYONS: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 23. YOUR CLAIM WAS DENIED ON THE BASIS THAT. PAYMENT OF YOUR CLAIM WAS NOT AUTHORIZED AS AMENDED. THAT IS. IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES" AT HIS PERMANENT STATION BY A MEMBER AND HIS DEPENDENTS "SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. " AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO ANY MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. WE HAVE FOR MANY YEARS INTERPRETED THE RENTAL AND QUARTERS ALLOWANCE STATUTES AS NOT AUTHORIZING THE PAYMENT OF SUCH ALLOWANCES WHERE THE DEPENDENTS OF AN OFFICER RESIDE IN GOVERNMENT-OWNED OR CONTROLLED QUARTERS AND.

B-153021, JAN. 14, 1964

TO MR. WILLIAM J. LYONS:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 23, 1963, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 7, 1963, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS DURING THE PERIOD SEPTEMBER 21, 1956, THROUGH APRIL 1957, INCIDENT TO YOUR SERVICE AS A CAPTAIN, UNITED STATES ARMY, WHILE ASSIGNED TO TWO ROOMS IN BOQ BUILDING 1148 OF THE VOGELWEH HOUSING AREA, KAISERSLAUTERN, GERMANY.

YOUR CLAIM WAS DENIED ON THE BASIS THAT, SINCE YOU OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD, PAYMENT OF YOUR CLAIM WAS NOT AUTHORIZED AS AMENDED, NOW CODIFIED IN 37 U.S.C. 403. YOU STATE THAT MOST OF THE REASONS STATED FOR DISALLOWANCE TEND TO SUPPORT YOUR CLAIM, THAT IS, THE PHRASES "APPROPRIATE TO HIS GRADE; " "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH EPENDENTS; " AND "OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES.'

AS STATED IN THE DISALLOWANCE THE STATUTE 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. EXECUTIVE ORDER NO. 10204, ISSUED PURSUANT TO SECTION 302 OF THE 1949 ACT, PROVIDES THAT 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 BY A MEMBER AND HIS DEPENDENTS "SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS," AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO ANY MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

WITH RESPECT TO THE RIGHT OF MILITARY PERSONNEL TO RENTAL AND QUARTERS ALLOWANCES, GENERALLY, WE HAVE FOR MANY YEARS INTERPRETED THE RENTAL AND QUARTERS ALLOWANCE STATUTES AS NOT AUTHORIZING THE PAYMENT OF SUCH ALLOWANCES WHERE THE DEPENDENTS OF AN OFFICER RESIDE IN GOVERNMENT-OWNED OR CONTROLLED QUARTERS AND, ALTHOUGH SAID QUARTERS ARE MERELY OCCUPIED BY THE OFFICER AND HIS DEPENDENTS WITHOUT BEING ASSIGNED, THEY WILL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. SEE DECISION OF NOVEMBER 10, 1959, B-140200, 39 COMP. GEN. 369, COPY ENCLOSED, AND PARAGRAPH 5-47, ARMY REGULATION 37-104.

THE RECORD SHOWS THAT QUARTERS ALLOWANCE WAS CREDITED TO YOU EFFECTIVE AUGUST 20, 1956, PURSUANT TO TERMINATION OF GOVERNMENT QUARTERS AT NORTH CHARLESTON, SOUTH CAROLINA. THE ALLOWANCE WAS DISCONTINUED ON SEPTEMBER 21, 1956, WHEN YOU AND YOUR DEPENDENTS WERE ASSIGNED HOUSING FACILITIES IN GERMANY. QUARTERS ALLOWANCE FOR THE PERIOD SEPTEMBER 22 THROUGH NOVEMBER 30, 1956, WAS LATER CREDITED IN THE AMOUNT OF $235.98 ON MILITARY PAY VOUCHERS AND INCLUDED IN THE REGULAR MONTHLY CHECK FOR APRIL 1957. CREDIT IS SAID TO HAVE BEEN ENTERED PURSUANT TO INSPECTOR GENERAL INVESTIGATION, BUT THAT REINVESTIGATION SHOWED THAT TRANSIENT-TYPE QUARTERS WERE OCCUPIED. THE CREDIT OF $235.98 WAS DELETED, AND THE NET AMOUNT OVERPAID WAS COLLECTED ON THE NEXT MILITARY PAYROLL.

FROM THE FOREGOING, IT SEEMS APPARENT THAT YOU AND YOUR DEPENDENTS ACTUALLY OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD YOU CLAIM QUARTER'S ALLOWANCE. IN SUCH CIRCUMSTANCES THERE IS NO BASIS ON WHICH THE ADEQUACY OR INADEQUACY OF THE QUARTERS MAY EFFECT YOUR RIGHT TO THE ALLOWANCE CLAIMED BECAUSE, AS INDICATED ABOVE, EXECUTIVE ORDER NO. 10204 PROVIDES THAT ANY QUARTERS OR HOUSING FACILITIES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES AT HIS PERMANENT STATION BY A MEMBER AND HIS DEPENDENTS SHALL BE DEEMED TO HAVE BEEN ASSIGNED AS ADEQUATE QUARTERS.

SECTION 407/A) OF THE ACT OF AUGUST 30, 1957, 71 STAT. 556, 42 U.S.C. 1594J/A), PERMITS, UNDER REGULATIONS APPROVED BY THE PRESIDENT, OCCUPANCY OF QUARTERS DETERMINED TO BE INADEQUATE, INCLUDING INADEQUATE PUBLIC QUARTERS, ON A RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS. HOWEVER, EXECUTIVE ORDER NO. 10766, MAY 2, 1958, PROVIDED THAT THIS PROVISION OF LAW WOULD NOT BE EFFECTIVE UNTIL JANUARY 1, 1958, A DATE SUBSEQUENT TO THE PERIOD OF YOUR CLAIM. SEE 39 COMP. GEN. 401 AND AR 37- 104, PARAGRAPH 5-141 AND 144.

SINCE THE ALLOWANCE NOW CLAIMED WAS ONCE GRANTED TO YOU AND THEN COLLECTED AFTER REINVESTIGATION, IT IS APPARENT THAT IT WAS THE ADMINISTRATIVE VIEW THAT THE TRANSIENT QUARTERS ASSIGNED TO YOU WERE "PUBLIC QUARTERS" WITHIN THE MEANING OF SECTION 302 AND THE ABOVE REGULATIONS. IT APPEARS FURTHER THAT THE CHARGE MADE THEREFOR WAS NOT CONSIDERED AS RENTAL BUT WAS IN THE NATURE OF A SERVICE CHARGE OR A NOMINAL AMOUNT TO DEFRAY ONLY THE ACTUAL EXPENSES OF OPERATION. SEE 39 COMP. GEN. 369.

ACCORDINGLY THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IT IS SUSTAINED.