B-157168, SEP. 16, 1965, 45 COMP. GEN. 143

B-157168, SEP. 16, 1965, 45 COMP. GEN. 143

QUARTERS ALLOWANCE - COLLEGE ATTENDANCE - ELECTION NOT TO OCCUPY GOVERNMENT QUARTERS AN OFFICER OF THE UNIFORMED SERVICES WHO IS ISSUED TEMPORARY ORDERS FOR APPROXIMATELY 267 DAYS TO ENABLE HER TO FULFILL THE REQUIREMENTS FOR A UNIVERSITY DEGREE, NO PERMANENT STATION CHANGE OR EXPENSES TO THE GOVERNMENT FOR TRAVEL AND PER DIEM BEING INVOLVED, MAY ELECT NOT TO OCCUPY ASSIGNED QUARTERS AND INSTEAD RECEIVE A BASIC ALLOWANCE FOR QUARTERS, THE OFFICER WITHOUT DEPENDENTS, IN A PAY GRADE ABOVE O-3, AND ENTITLED TO BASIC PAY, WHO IS NOT IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, MEETING THE REQUIREMENTS OF 37 U.S.C. 403, AND HAVING ELECTED NOT TO OCCUPY GOVERNMENT QUARTERS IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER OF HER GRADE WITHOUT DEPENDENTS FOR THE PERIOD INVOLVED.

TO LIEUTENANT COLONEL W. I. SCHLEH, DEPARTMENT OF THE ARMY, SEPTEMBER 16, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 7, 1965, WITH ENCLOSURES, FORWARDED HERE BY THE OFFICE, CHIEF OF FINANCE, WASHINGTON, D.C., IN WHICH YOU REQUEST A DECISION WHETHER MAJOR ORDELLE J. SCHMIDT, N 774157, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DO-A-858, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY ORDERS DATED FEBRUARY 28, 1964, DEPARTMENT OF THE ARMY, OFFICE OF THE ADJUTANT GENERAL, WASHINGTON, D.C., MAJOR SCHMIDT, IRWIN ARMY HOSPITAL, FORT RILEY, KANSAS, WAS PERMITTED TO PROCEED NOT LATER THAN SEPTEMBER 14, 1964, ON TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 267 DAYS AT THE UNIVERSITY OF OMAHA, OMAHA, NEBRASKA, FOR THE PURPOSE OF FULFILLING REQUIREMENTS FOR A BACHELOR OF SCIENCE DEGREE IN GENERAL EDUCATION. PERMANANT CHANGE OF STATION WAS EFFECTED BY SUCH ORDERS. THE ORDERS EXPRESSLY PROVIDED THAT NO EXPENSE TO THE GOVERNMENT WOULD BE INCURRED BY REASON OF THIS TEMPORARY DUTY.

THE RECORD SHOWS THAT THE OFFICER WAS ASSIGNED AND OCCUPIED GOVERNMENT QUARTERS PRIOR TO RECEIPT OF ORDERS OF FEBRUARY 28, 1964, THAT SHE CONTINUED TO OCCUPY THOSE QUARTERS UNTIL AUGUST 9, 1964, AND THAT SHE WAS PAID BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD AUGUST 10, 1964 THROUGH FEBRUARY 28, 1965. IT APPEARS THAT THIS CHANGE IN HER QUARTERS STATUS RESULTED FROM HER ELECTION NOT TO OCCUPY GOVERNMENT QUARTERS AND INSTEAD TO RECEIVE THE BASIC ALLOWANCE FOR QUARTERS. IT FURTHER APPEARS THAT IT WAS ADMINISTRATIVELY DETERMINED ON THE BASIS OF OUR DECISIONS OF AUGUST 24, 1962, 42 COMP. GEN. 122, APRIL 21, 1960, 39 COMP. GEN. 718, AND B- 139902 DATED AUGUST 13, 1959, THAT PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO HER WAS NOT AUTHORIZED AND THE QUARTERS ALLOWANCE PAID FOR THE PERIOD AUGUST 10, 1964 THROUGH FEBRUARY 28, 1965, IS BEING COLLECTED BY DEBT LIQUIDATION SCHEDULE IN THE OFFICER'S PAY ACCOUNT.

IN OUR DECISION OF AUGUST 24, 1962, 42 COMP. GEN. 122, WE CONSIDERED THE SITUATION OF A MEMBER WITHOUT DEPENDENTS WHO OCCUPIED INADEQUATE GOVERNMENT QUARTERS AT HIS PERMANENT DUTY STATION WHICH WERE TERMINATED ON THE DAY OF HIS DEPARTURE FOR A PERIOD OF TEMPORARY DUTY AND WHO UPON HIS RETURN OCCUPIED QUARTERS IN A NEW BOQ. WE HELD THERE THAT SINCE THE OFFICER VOLUNTARILY OCCUPIED GOVERNMENT QUARTERS, EVEN THOUGH THEY WERE INADEQUATE QUARTERS, TO INCLUDE THE DAY OF HIS DEPARTURE FOR A PERIOD OF TEMPORARY DUTY, PAYMENT OF QUARTERS ALLOWANCE WAS NOT AUTHORIZED.

THE QUESTION CONSIDERED IN OUR DECISION OF APRIL 21, 1960, 39 COMP. GEN. 718, WAS WHETHER IN VIEW OF THE PROVISIONS OF SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT OF 1950, 37 U.S.C. 403 (F), A MEMBER OF THE ARMED FORCES, WITHOUT DEPENDENTS, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD HE IS DETACHED FROM HIS PERMANENT DUTY STATION, ASSIGNED TO A PERSONNEL CENTER FOR FURTHER ASSIGNMENT, AND IS FURTHER ASSIGNED TO TEMPORARY DUTY, WITH NO PER DIEM AUTHORIZED, AT A UNIVERSITY FOR THE PURPOSE OF COMPLETING COLLEGE STUDIES TO QUALIFY FOR A BACCALAUREATE DEGREE PRIOR TO REPORTING TO THE PERSONNEL CENTER. THESE ORDERS INVOLVED A PERMANENT CHANGE OF STATION AND WE HELD THAT UNDER SECTION 102 OF THE DEFICIENCY APPROPRIATION ACT OF 1950, MEMBERS WITHOUT DEPENDENTS WHILE IN A LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS MAY NOT RECEIVE A BASIC ALLOWANCE FOR QUARTERS FOR SUCH PERIOD. ALSO, WE POINTED OUT THAT UNDER PARAGRAPH 5-10A, ARMY REGULATIONS 37-104, IN EFFECT AT THAT TIME, A MEMBER WITHOUT DEPENDENTS WHO IS FURNISHED OR ASSIGNED QUARTERS AT HIS PERMANENT DUTY STATION RECEIVES NO BASIC ALLOWANCE FOR QUARTERS WHILE AWAY ON LEAVE.

IN OUR DECISION OF AUGUST 13, 1959, B-139902, WE CONSIDERED THE SITUATION OF A MEMBER WITHOUT DEPENDENTS WHO OCCUPIED GOVERNMENT QUARTERS AT HIS PERMANENT DUTY STATION AND WHO WAS REQUIRED TO CLEAR THOSE QUARTERS PRIOR TO HIS DEPARTURE UNDER PERMISSIVE TRAVEL ORDERS TO ATTEND SCHOOL. WE HELD THERE THAT UNDER THE STATUTORY PROVISIONS THEN IN EFFECT, MEMBERS WHO ARE REQUIRED TO CLEAR GOVERNMENT QUARTERS IN ANTICIPATION OF PROLONGED ABSENCE CONTINUE IN THE STATUS OF MEMBERS WHO ARE FURNISHED OR ASSIGNED GOVERNMENT QUARTERS AT THE PERMANENT DUTY STATION AND ARE NOT ENTITLED UNDER THE APPLICABLE LAW AND REGULATIONS TO BASIC ALLOWANCE FOR QUARTERS WHILE ABSENT FROM SUCH STATION NOTWITHSTANDING THE FACT THAT THEY ARE REQUIRED UNDER THE PROVISIONS OF THE PERMISSIVE TRAVEL ORDERS TO PROCURE QUARTERS AT PERSONAL EXPENSE WHILE ATTENDING SCHOOL.

IT IS SUGGESTED THAT THE OFFICER MAY BE ENTITLED TO PAYMENT OF THE RECLAIM VOUCHER FOR QUARTERS ALLOWANCE FOR THE REASON THAT THE ABOVE MENTIONED DECISIONS MAY NO LONGER BE APPLICABLE BECAUSE OF CHANGE IN PERTINENT LAW AND REGULATIONS. IT IS POINTED OUT THAT 37 U.S.C. 403 (B) NOW PERMITS AN OFFICER WITHOUT DEPENDENTS IN PAY GRADE ABOVE 0-3 TO ELECT NOT TO OCCUPY GOVERNMENT QUARTERS AND INSTEAD TO RECEIVE THE QUARTERS ALLOWANCE PRESCRIBED FOR HIS PAY GRADE, AND PARAGRAPH 5 10/A), ARMY REGULATIONS 37-104, HAS SINCE BEEN CHANGED ACCORDINGLY. (CHANGE 84, APRIL 27, 1964).

IN THE DECISIONS OF AUGUST 24, 1962, 42 COMP. GEN. 122, AND AUGUST 13, 1959, B-139902, THE MEMBERS INVOLVED ACTUALLY OCCUPIED GOVERNMENT QUARTERS TO INCLUDE THE DAY OF DEPARTURE FROM PERMANENT DUTY STATION AND BOTH DECISIONS WERE RENDERED AT A TIME WHEN THE LAW DID NOT AFFORD THE MEMBER THE RIGHT TO ELECT NOT TO OCCUPY QUARTERS AND INSTEAD TO RECEIVE THE QUARTERS ALLOWANCE PRESCRIBED FOR HIS GRADE. THEREFORE THOSE DECISIONS ARE NOT APPLICABLE TO THE PRESENT SITUATION. IN THE DECISION OF APRIL 21, 1960, 39 COMP. GEN. 718, THE MEMBER WAS IN A TRAVEL STATUS EN ROUTE BETWEEN PERMANENT DUTY STATION AND, HENCE, THAT CASE IS DISTINGUISHABLE FROM MAJOR SCHMIDT'S CASE. ALSO, WITH RESPECT TO THENO EXPENSE PROVISION IN THE TRAVEL ORDERS OF FEBRUARY 28, 1964, IT APPEARS THAT HIS PROHIBITION WAS DIRECTED AGAINST THE PAYMENT OF TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY WHICH DOES NOT INVOLVE PUBLIC BUSINESS. COMP. GEN. 414; 30 ID. 19; 36 ID. 257.

UNDER THE PRESENT PROVISIONS OF 37 U.S.C. 403 (A) AND (B) AN OFFICER WITHOUT DEPENDENTS IN PAY GRADE ABOVE 0-3 WHO IS ENTITLED TO BASIC PAY AND WHO IS NOT IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS (SECTION 403 (F) OF TITLE 37), MAY ELECT NOT TO OCCUPY ASSIGNED GOVERNMENT QUARTERS AND INSTEAD RECEIVE THE BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR HIS PAY GRADE. THE PLAIN EFFECT OF SUCH PROVISIONS IS TO AUTHORIZE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS TO THE OFFICER CONCERNED DURING ANY PERIOD WHEN HE OR SHE IS ENTITLED TO BASIC PAY, HE OR SHE IS NOT IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS AND HE OR SHE IS NOT OCCUPYING GOVERNMENT QUARTERS.

SINCE MAJOR SCHMIDT WAS ENTITLED TO BASIC PAY, WAS NOT IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS AND WAS NOT OCCUPYING GOVERNMENT QUARTERS, SHE IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER OF HER GRADE WITHOUT DEPENDENTS FOR THE PERIOD INVOLVED. THE COLLECTION VOUCHER AND SUPPORTING PAPERS ARE RETURNED, AND MAJOR SCHMIDT'S PAY ACCOUNT SHOULD BE ADJUSTED ACCORDINGLY.