B-153135, FEB. 11, 1964

B-153135: Feb 11, 1964

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DEPARTMENT OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 22. WHICH WAS FORWARDED HERE BY THE COMPTROLLER OF THE NAVY UNDER DATE OF DECEMBER 18. YOU STATE THAT YOUR OFFICE IS IN DOUBT AS TO THE LEGALITY OF CREDITING BASIC ALLOWANCE FOR QUARTERS IN THE CASE OF JOEL K. SINCE ARRIVAL IN THE UNITED STATES THE DEPENDENTS HAVE RESIDED IN PRIVATE QUARTERS WHILE THE MEMBER REMAINED ATTACHED AT HIS STATION AND OCCUPIED FAMILY-TYPE GOVERNMENT QUARTERS. IT IS STATED THAT NO SINGLE GOVERNMENT QUARTERS (BARRACKS) ARE AVAILABLE AT HIS POST AND. THAT THE MEMBER WAS REQUIRED TO OCCUPY FAMILY-TYPE QUARTERS THERE FOR THE REMAINDER OF HIS TOUR OF DUTY. THAT HIS DEPENDENTS HAVE NOT OCCUPIED GOVERNMENT QUARTERS (INCLUDING HOSPITAL) SINCE THEIR DEPARTURE FROM TOKYO.

B-153135, FEB. 11, 1964

TO MR. P. T. MCMAHAN, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 22, 1963, WHICH WAS FORWARDED HERE BY THE COMPTROLLER OF THE NAVY UNDER DATE OF DECEMBER 18, 1963, AS SUBMISSION NUMBER SS-N-730 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. YOU STATE THAT YOUR OFFICE IS IN DOUBT AS TO THE LEGALITY OF CREDITING BASIC ALLOWANCE FOR QUARTERS IN THE CASE OF JOEL K. COSSNEER, 572 60 81, YN1, USN, COMMENCING ON SEPTEMBER 3, 1963.

IT APPEARS FROM YOUR LETTER THAT THE MEMBER AND HIS FAMILY UTILIZED GOVERNMENT QUARTERS AT HIS STATION COMMENCING FEBRUARY 5, 1961, BUT THAT UPON THE RECOMMENDATION OF THE MEDICAL AUTHORITIES, U.S. NAVAL HOSPITAL, YOKOSUKA, JAPAN, HIS WIFE AND CHILD RETURNED TO THE UNITED STATES ON SEPTEMBER 3, 1963. SINCE ARRIVAL IN THE UNITED STATES THE DEPENDENTS HAVE RESIDED IN PRIVATE QUARTERS WHILE THE MEMBER REMAINED ATTACHED AT HIS STATION AND OCCUPIED FAMILY-TYPE GOVERNMENT QUARTERS. IT IS STATED THAT NO SINGLE GOVERNMENT QUARTERS (BARRACKS) ARE AVAILABLE AT HIS POST AND, THEREFORE, THAT THE MEMBER WAS REQUIRED TO OCCUPY FAMILY-TYPE QUARTERS THERE FOR THE REMAINDER OF HIS TOUR OF DUTY, WHICH TERMINATED IN JANUARY 1964, AND THAT HIS DEPENDENTS HAVE NOT OCCUPIED GOVERNMENT QUARTERS (INCLUDING HOSPITAL) SINCE THEIR DEPARTURE FROM TOKYO. IT IS STATED FURTHER THAT THE MEMBER REQUESTED AND WAS GRANTED BY PROPER AUTHORITY PERMISSION FOR HIS DEPENDENT WIFE AND MINOR CHILD, AGE 2, TO RETURN TO THE CONTINENTAL UNITED STATES FROM JAPAN ON A SPACE-AVAILABLE BASIS UPON PAYMENT OF THE SPACE AVAILABLE TARIFF RATE. HIS REASONS FOR THAT REQUEST WERE STATED TO BE THAT HIS

"A. WIFE IS PREGNANT.

B. ROTATION TOUR DATE COINCIDES WITH EXPECTED DATE OF BIRTH OF CHILD.

C. MEDICAL RESTRICTIONS REGARDING TRAVEL DURING PREGNANCY AND AFTER BIRTH OF CHILD, REQUIRES THE NECESSITY OF EARLY RETURN TO CONUS TO PRECLUDE FINANCIAL AND LEGAL COMPLICATIONS THAT WOULD ARISE DUE TO THE FACT THAT I AM NOT YET IN RECEIPT OF PCS ORDERS.'

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE ENTITLED TO RECEIVE BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED, NO SUCH ALLOWANCE SHALL ACCRUE TO A MEMBER ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF A UNIFORMED SERVICE APPROPRIATE TO HIS GRADE OR RANK AND ADEQUATE FOR HIMSELF AND DEPENDENTS, IF WITH DEPENDENTS.

A MEMBER WITH DEPENDENTS WHO IS FURNISHED QUARTERS IN KIND FOR THEMAT HIS PERMANENT STATION IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AFTER THE TERMINATION OF ASSIGNMENT OF QUARTERS UPON A PERMANENT CHANGE OF STATION DURING THE INTERIM BETWEEN THEIR DEPARTURE FROM HIS OLD PERMANENT STATION AND REPORTING TO A NEW PERMANENT STATION. IT APPEARS, HOWEVER, THAT FAMILY-TYPE QUARTERS ADEQUATE FOR HIS DEPENDENTS AT HIS PERMANENT STATION CONTINUED TO BE ASSIGNED TO COSSNEER AND THAT NO ORDERS WERE ISSUED DIRECTING A PERMANENT CHANGE OF STATION AT THE TIME OF HIS DEPENDENTS' DEPARTURE.

SINCE IT APPEARS THAT ADEQUATE FAMILY-TYPE QUARTERS WERE ASSIGNED DURING THE PERIOD COVERED BY THE MEMBER'S CLAIM AND HIS DEPENDENTS WERE NOT PREVENTED BY REASON OF ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING SUCH QUARTERS, THERE IS NO LEGAL BASIS UPON WHICH THE BASIC ALLOWANCE FOR QUARTERS MAY BE PAID.