B-158321, FEB. 15, 1966, 45 COMP. GEN. 499

B-158321: Feb 15, 1966

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SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - QUARTERS AND MESSING FACILITIES FURNISHED - ELECTION BY MEMBER OFFICERS OF THE UNIFORMED SERVICES IN PAY GRADES 0-4 AND ABOVE WHO WHILE ON TEMPORARY DUTY ARE ENTITLED TO REIMBURSEMENT FOR THE NECESSARY EXPENSES OF TRAVEL PRESCRIBED BY 37 U.S.C. 404 AND 411 ARE NOT WITHIN THE PURVIEW OF 37 U.S.C. 403 (B). THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT REQUIRED TO OCCUPY RENTAL QUARTERS. 1966: FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 30. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 66-1 BY THE PER DIEM. THE UNDER SECRETARY SAYS THAT PUBLIC LAW 88-132 PERMITS A COMMISSIONED OFFICER WITHOUT DEPENDENTS WHO IS IN PAY GRADE 0-4 AND ABOVE TO ELECT NOT TO USE AVAILABLE GOVERNMENT QUARTERS AND INSTEAD RECEIVE A BASIC ALLOWANCE FOR QUARTERS.

B-158321, FEB. 15, 1966, 45 COMP. GEN. 499

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - QUARTERS AND MESSING FACILITIES FURNISHED - ELECTION BY MEMBER OFFICERS OF THE UNIFORMED SERVICES IN PAY GRADES 0-4 AND ABOVE WHO WHILE ON TEMPORARY DUTY ARE ENTITLED TO REIMBURSEMENT FOR THE NECESSARY EXPENSES OF TRAVEL PRESCRIBED BY 37 U.S.C. 404 AND 411 ARE NOT WITHIN THE PURVIEW OF 37 U.S.C. 403 (B), AS ADDED BY SECTION 10 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PERMITTING OFFICERS IN PAY GRADES 0 4 AND ABOVE TO ELECT NOT TO OCCUPY GOVERNMENT QUARTERS BUT TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS, AN ELECTIVE PROVISION THAT DOES NOT EXTEND TO LODGINGS FOR MEMBERS IN A TRAVEL OR TEMPORARY STATUS, AND THE PROHIBITION IN SECTION 5 OF THE ACT OF AUGUST 20, 1964, THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT REQUIRED TO OCCUPY RENTAL QUARTERS, ABSENT NECESSITY, HAS NO APPLICATION TO FREE QUARTERS AND DOES NOT DISTURB THE LONGSTANDING ADMINISTRATIVE PRACTICE TO REQUIRE MILITARY PERSONNEL TO OCCUPY PUBLIC QUARTERS AND TO BE PAID AT REDUCED PER DIEM RATES, AND THE COST OF PRIVATE LODGINGS NOT CONSIDERED A NECESSARY EXPENSE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED, WITHOUT CONGRESSIONAL APPROVAL, TO PERMIT OFFICERS IN PAY GRADES 0-4 AND ABOVE TO ELECT NOT TO OCCUPY AVAILABLE GOVERNMENT QUARTERS WHILE ON TEMPORARY DUTY AND TO RECEIVE FULL PER DIEM.

TO THE SECRETARY OF THE NAVY, FEBRUARY 15, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 30, 1965, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION WHETHER, IN VIEW OF PUBLIC LAWS 88-132 AND 88-459, THE JOINT TRAVEL REGULATIONS MAY BE REVISED TO PERMIT OFFICERS IN PAY GRADES 0-4 AND ABOVE, DURING PERIODS OF TEMPORARY DUTY, TO ELECT WHETHER OR NOT THEY SHALL OCCUPY GOVERNMENT QUARTERS UNDER CERTAIN CIRCUMSTANCES. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 66-1 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY SAYS THAT PUBLIC LAW 88-132 PERMITS A COMMISSIONED OFFICER WITHOUT DEPENDENTS WHO IS IN PAY GRADE 0-4 AND ABOVE TO ELECT NOT TO USE AVAILABLE GOVERNMENT QUARTERS AND INSTEAD RECEIVE A BASIC ALLOWANCE FOR QUARTERS, AND THAT PUBLIC LAW 88-459 PROVIDES THAT A CIVILIAN OFFICER OR EMPLOYEE MAY NOT BE REQUIRED TO USE AVAILABLE GOVERNMENT QUARTERS UNLESS THE HEAD OF THE AGENCY OR HIS DESIGNATED REPRESENTATIVE DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR THAT GOVERNMENT PROPERTY CANNOT BE PROTECTED OTHERWISE.

THE UNDER SECRETARY SAYS IT LONG HAS BEEN THE ESTABLISHED POLICY OF THE SECRETARY OF DEFENSE THAT GOVERNMENT QUARTERS, WHEN AVAILABLE, SHALL BE UTILIZED TO THE MAXIMUM EXTENT PRACTICABLE; HOWEVER, IN VIEW OF THE PERMISSIVE FEATURES OF THE CITED STATUTES, THE ASSISTANT SECRETARY OF DEFENSE (MANPOWER) HAS DETERMINED THAT THE CURRENT DEPARTMENT OF DEFENSE POLICY SHOULD BE MODIFIED AND THAT THE JOINT TRAVEL REGULATIONS SHOULD BE REVISED TO PERMIT OFFICERS IN PAY GRADES 0-4 AND ABOVE, DURING PERIODS OF TEMPORARY DUTY, TO ELECT WHETHER OR NOT THEY SHALL OCCUPY GOVERNMENT QUARTERS, UNLESS THE HEAD OF THE AGENCY DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR THAT PROPERTY CANNOT BE PROTECTED OTHERWISE. STATES THAT THE PROPOSED REVISION WILL ELIMINATE THE CURRENT REQUIREMENT OF OBTAINING THE COMMANDING OFFICER'S STATEMENT CONCERNING THE AVAILABILITY OF GOVERNMENT QUARTERS FOR OFFICERS IN PAY GRADES 0-4 AND ABOVE AND WILL REQUIRE OF THESE OFFICERS ONLY THE OFFICER'S STATEMENT OF UTILIZATION, AS DISTINGUISHED FROM AVAILABILITY, OF GOVERNMENT QUARTERS. THE APPLICABLE PER DIEM RATE WOULD BE REDUCED ON THE BASIS OF THE AVAILABILITY OF GOVERNMENT QUARTERS AS PROVIDED IN CURRENT REGULATIONS.

SECTION 403 (A) OF TITLE 37 OF THE U.S.C. PROVIDES A BASIC ALLOWANCE FOR QUARTERS IN VARYING AMOUNTS ACCORDING TO THE BASIC PAY GRADE OF THE MEMBER FOR MEMBERS OF THE UNIFORMED SERVICES. SINCE THE QUARTERS ALLOWANCE DOES NOT VARY DEPENDING UPON THE RENTAL PAID FOR PRIVATE QUARTERS OCCUPIED BY THE MEMBERS THE RATES OF BASIC ALLOWANCE FOR QUARTERS WOULD APPEAR TO REPRESENT THE VIEW OF CONGRESS AS TO THE MONETARY EQUIVALENT OF THE TYPE OF QUARTERS WHICH THE UNITED STATES SHOULD PROVIDE FOR THE PARTICULAR PAY GRADES IN WHICH SUCH MEMBERS ARE SERVING.

SECTION 403 (B), TITLE 37, U.S. CODE, PROVIDES AS FOLLOWS:

(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK, OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. HOWEVER, EXCEPT AS PROVIDED BY REGULATIONS PRESCRIBED UNDER SUBSECTION (G) OF THIS SECTION, A COMMISSIONED OFFICER WITHOUT DEPENDENTS WHO IS IN A PAY GRADE ABOVE PAY GRADE 0-3 AND WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE OR RANK AND ADEQUATE FOR HIMSELF, MAY ELECT NOT TO OCCUPY THOSE QUARTERS AND INSTEAD TO RECEIVE THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR HIS PAY GRADE BY THIS SECTION.

THE SECOND SENTENCE WAS ADDED BY SECTION 10 OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 216.

THE SECOND SENTENCE OF 37 U.S.C. 403 (B) PROVIDES PERMISSIVE AUTHORITY FOR OFFICERS WITHOUT DEPENDENTS IN PAY GRADES ABOVE PAY GRADE 0-3 WHO ARE ASSIGNED GOVERNMENT QUARTERS TO ELECT NOT TO OCCUPY THOSE QUARTERS AND INSTEAD TO RECEIVE THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR THEIR PAY GRADE. IN THE LEGISLATIVE HISTORY IT IS STATED THAT THE GENERAL INTENT IS THAT WHERE THERE ARE NO OVERRIDING MILITARY REQUIREMENTS NECESSITATING THAT AN OFFICER WITHOUT DEPENDENTS LIVE ON THE BASE AND WHERE UNDER ORDINARY CIRCUMSTANCES HE COULD CHOOSE NOT TO OCCUPY GOVERNMENT QUARTERS, HE SHOULD BE ALLOWED TO RECEIVE THE QUARTERS ALLOWANCE FOR AN OFFICER OF HIS GRADE WITHOUT DEPENDENTS, JUST AS IN THE CASE WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE AND THE OFFICER WOULD RECEIVE THE ALLOWANCE. SEE S.REPT. NO. 387, 88TH CONG., 1ST SESS., TO ACCOMPANY H.R. 5555 WHICH BECAME PUBLIC LAW 88-132. THUS WHILE SECTION 403 (B) PROVIDES THAT THE BASIC ALLOWANCE FOR QUARTERS IS NOT PAYABLE WHEN THE MEMBERS ARE ASSIGNED ADEQUATE QUARTERS IT, IN EFFECT, PERMITS ALL OFFICERS IN PAY GRADES ABOVE PAY GRADE 0-3 TO CHOOSE WHETHER THEY SHALL RECEIVE THEIR QUARTERS IN MONEY OR IN KIND. IN EITHER CASE, HOWEVER, THE MEMBER IS IN SUBSTANCE RECEIVING NO MORE THAN THE QUARTERS WHICH ARE AUTHORIZED FOR HIS PARTICULAR GRADE AT HIS PERMANENT STATION. SECTION 403 (F) OF TITLE 37, HOWEVER, WHICH PRECLUDES THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS TO ALL MEMBERS OF THE UNIFORMED SERVICES WHEN IN A TRAVEL STATUS BETWEEN PERMANENT DUTY STATIONS, OBVIOUSLY PREVENTS THE EXERCISE OF ANY ELECTION TO RECEIVE THE QUARTERS ALLOWANCE WHILE IN THAT STATUS. IN SUCH CIRCUMSTANCES AND SINCE SECTION 403 OF TITLE 37 HAS NO APPLICATION WHATEVER TO TRAVEL EXPENSES, WE DO NOT BELIEVE THAT THE ELECTIVE PROVISIONS OF SECTION 403 (B) OF TITLE 37 AFFORD ANY BASIS FOR A CONCLUSION THAT MEMBERS ABOVE PAY GRADE 0-3 MAY ELECT NOT TO OCCUPY AVAILABLE GOVERNMENT QUARTERS FOR THE PURPOSE OF RECEIVING FULL PER DIEM WHEN THEY ARE AWAY FROM THEIR PERMANENT STATION IN A TRAVEL OR TEMPORARY DUTY STATUS.

SECTION 5 OF THE ACT OF AUGUST 20, 1964; PUBLIC LAW 88-459, 78 STAT.557, 5 U.S.C. 3125, PROVIDES:

AN EMPLOYEE OR A MEMBER OF THE UNIFORMED SERVICES SHALL NOT BE REQUIRED TO OCCUPY QUARTERS ON A RENTAL BASIS UNLESS THE HEAD OF THE AGENCY CONCERNED SHALL DETERMINE THAT NECESSARY SERVICE CANNOT BE RENDERED, OR THAT PROPERTY OF THE GOVERNMENT CANNOT ADEQUATELY BE PROTECTED, OTHERWISE.

THE LEGISLATIVE HISTORY OF THE ABOVE SECTION AND THE LEGISLATIVE PROPOSALS FROM WHICH IT STEMMED WERE CONSIDERED AT LENGTH IN OUR DECISION OF APRIL 15, 1965, 44 COMP. GEN. 626, A COPY OF WHICH IS ENCLOSED. THERE STATED, THE PURPOSE OF SECTION 5 IS EXPLAINED ON PAGE 6 OF H.REPT. NO. 1459 ACCOMPANYING S. 1833, WHICH BECAME PUBLIC LAW 88-459, AS FOLLOWS:

SECTION 5 RESTATES THE PROHIBITION AGAINST FORCING EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS ON A RENTAL BASIS. IT CONTINUES THE PROHIBITION PREVIOUSLY STATED IN APPROPRIATION ACTS AND INCLUDES AN EXCEPTION FOR CASES WHERE THE HEAD OF THE AGENCY DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR PROPERTY OF THE UNITED STATES CANNOT BE ADEQUATELY PROTECTED OTHERWISE. THE SECTION DIFFERS FROM THE EARLIER APPROPRIATION ACTS IN TWO RESPECTS. FIRST, IT IS BROADER, IN THAT IT AFFORDS MEMBERS OF THE UNIFORMED SERVICES WHO OCCUPY QUARTERS ON A RENTAL BASIS THE SAME PROTECTION AS CIVILIAN EMPLOYEES HAVE AGAINST BEING REQUIRED TO OCCUPY RENTAL QUARTERS (WHICH, IN THE CASE OF RENTAL QUARTERS FOR THE MILITARY, ARE FREQUENTLY INADEQUATE) AGAINST THEIR WILL. THIS DOES NOT IN ANY WAY INTERFERE WITH THE AUTHORITY TO REQUIRE MILITARY PERSONNEL TO LIVE IN FREE ,PUBLIC QUARTERS" IN ACCORDANCE WITH THE NORMAL MILITARY PRACTICE. SECOND, SECTION 5 IS APPLICABLE TO ALL QUARTERS FOR WHICH THE OCCUPANTS ARE CHARGED A RENTAL (WHETHER GOVERNMENT-OWNED OR GOVERNMENT-LEASED), BUT IS NOT APPLICABLE TO FREE QUARTERS. SECTION 5 WOULD NOT APPLY TO QUARTERS FOR CIVILIAN EMPLOYEES HAVING PERMANENT STATIONS IN FOREIGN COUNTRIES, SINCE SUCH QUARTERS ARE FURNISHED WITHOUT COST UNDER TITLE 5, U.S.C. SECTION 118A.

SINCE THE LEGISLATIVE HISTORY OF SECTION 5 MADE IT ABUNDANTLY CLEAR THAT IT WAS NOT INTENDED TO DISTURB THE LONGSTANDING PRACTICE OF THE UNIFORMED SERVICES TO REQUIRE MILITARY PERSONNEL TO OCCUPY AVAILABLE PUBLIC QUARTERS, WE STATED IN OUR DECISION:

THEREFORE, WHILE SECTION 5 OF PUBLIC LAW 88-459 IS APPLICABLE TO BOTH TEMPORARY DUTY AND PERMANENT DUTY OF MEMBERS OF THE UNIFORMED SERVICES INSOFAR AS THE OCCUPANCY OF RENTAL QUARTERS IS CONCERNED, IT IS OUR VIEW THAT IT HAS NO APPLICATION TO THE OCCUPANCY OR UTILIZATION OF AVAILABLE PUBLIC QUARTERS. CONSEQUENTLY, WHEN PUBLIC QUARTERS ARE AVAILABLE BUT NOT OCCUPIED BY MEMBERS OF THE UNIFORMED SERVICES ON TEMPORARY DUTY, PUBLIC LAW 88-459 DOES NOT REQUIRE ANY CHANGE IN THOSE PROVISIONS OF THE JOINT TRAVEL REGULATIONS WHICH RELATE TO THE PAYMENT OF PER DIEM AT A REDUCED RATE. SUCH A REDUCTION CLEARLY DOES NOT CONSTITUTE A RENTAL CHARGE FOR THE QUARTERS OCCUPIED OR AVAILABLE WITHIN THE CONTEMPLATION OF PUBLIC LAW 88-459 SINCE THE AMOUNT BY WHICH THE PER DIEM IS REDUCED IS NOT BASED ON THE REASONABLE VALUE OF THE ACTUAL QUARTERS OCCUPIED OR AVAILABLE, BUT IS THE SAME REGARDLESS OF THE SIZE AND QUALITY OF SUCH QUARTERS.

THE REGULATORY PROVISIONS COVERING THE PAYMENT OF A PER DIEM TO MEMBERS WHILE AWAY FROM THEIR PERMANENT STATIONS ARE BASED UPON THE PROVISIONS OF 37 U.S.C. 404 AND 37 U.S.C. 411. THE PURPOSE OF SUCH PROVISIONS IS TO PROVIDE FOR REIMBURSING THE MEMBER FOR THE MORE THAN NORMAL EXPENSES TO WHICH HE IS PUT WHILE TRAVELING. THESE STATUTORY PROVISIONS AND EARLIER SIMILAR PROVISIONS UNIFORMLY HAVE BEEN APPLIED AS AUTHORIZING REIMBURSEMENT ONLY OF THE NECESSARY EXPENSES OF TRAVEL AND IT IS DOUBTFUL THAT THE COST OF PRIVATE LODGINGS PROPERLY MAY BE VIEWED AS A NECESSARY EXPENSE OF TRAVEL WHEN GOVERNMENT QUARTERS ARE AVAILABLE FOR OCCUPANCY BY THE TRAVELER WITHOUT CHARGE OR, AT MOST, AT A NOMINAL SERVICE CHARGE. PRESUMABLY FOR SUCH REASONS IT HAS BEEN THE CONSISTENT POLICY OF THE DEPARTMENT OF DEFENSE TO REQUIRE THAT GOVERNMENT QUARTERS BE UTILIZED WHEN AVAILABLE AND IT HAS BEEN THE VIEW OF OUR OFFICE THAT, EXCEPT AS IT MAY OTHERWISE SPECIFICALLY PROVIDE, THE CONGRESS INTENDS THAT THE PUBLIC QUARTERS WHICH IT PROVIDES FOR THE UNIFORMED SERVICES MUST BE USED TO THE MAXIMUM EXTENT PRACTICABLE.

PUBLIC LAW 88-132 PROVIDES CERTAIN OFFICERS WITH AN ELECTION TO RECEIVE THE BASIC ALLOWANCE FOR QUARTERS AT THEIR PERMANENT STATIONS IN MONEY OR IN KIND BUT, AS INDICATED ABOVE, IT DOES NOT PROVIDE, AND WE SEE NO BASIS FOR A CONCLUSION THAT IT REFLECTS ANY CONGRESSIONAL INTENT THAT, A SIMILAR ELECTION IS CONTEMPLATED IN THE CASE OF LODGINGS FOR MEMBERS IN A TRAVEL OR TEMPORARY DUTY STATUS. SINCE CONGRESS HAS EXPRESSLY DECLARED THAT SECTION 5 OF PUBLIC LAW 88-459 IS NOT INTENDED TO CHANGE THE ESTABLISHED PRACTICE OF THE SERVICES WITH RESPECT TO THE ASSIGNMENT AND UTILIZATION OF PUBLIC QUARTERS THERE IS, IN OUR OPINION, NO GROUND FOR VIEWING IT AS A REFLECTION OF CONGRESSIONAL INTENT THAT AVAILABLE PUBLIC QUARTERS NEED NOT BE OCCUPIED BY MEMBERS AT A TEMPORARY DUTY STATION. ESPECIALLY WOULD THIS APPEAR TO BE SO WHERE, AS HERE PROPOSED, THE ELECTIVE USE OF THE QUARTERS WOULD BE ON A SELECTIVE BASIS WHICH WOULD DISCRIMINATE AGAINST ALL ENLISTED MEMBERS, ALL WARRANT OFFICERS AND ALL COMMISSIONED OFFICERS IN PAY GRADES 0-1, 0-2 AND 0-3. IT FOLLOWS THAT THOSE TWO LAWS WHEN READ TOGETHER AFFORD NO EVIDENCE OF CONGRESSIONAL SUPPORT FOR AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS TO PERMIT OFFICERS IN PAY GRADES 0-4 AND ABOVE TO ELECT NOT TO OCCUPY AVAILABLE PUBLIC QUARTERS AT A TEMPORARY DUTY STATION AND BE PAID FULL PER DIEM.

IN SUCH CIRCUMSTANCES AND SINCE THE POLICY OF THE DEPARTMENT OF DEFENSE IN THIS MATTER SEEMS CLEARLY TO HAVE THE ENDORSEMENT OF CONGRESS AND IS SO LONGSTANDING THAT IT NOW MUST BE REGARDED AS DETERMINATIVE OF THE LAW, WE MUST CONCLUDE THAT THE PROPOSED AMENDMENTS TO THE JOINT TRAVEL REGULATIONS WOULD BE WITHOUT LEGAL EFFECT UNLESS SPECIFICALLY AUTHORIZED BY CONGRESS.