B-159009, JUN. 14, 1966

B-159009, JUN. 14, 1966

TO LIEUTENANT COLONEL GERALD R. MULBERRY, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1966, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 25, 1966, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD MAY 20 TO 25, 1965.

BY ORDERS DATED MARCH 10, 1965, YOU WERE RELIEVED FROM YOUR ASSIGNMENT, HEADQUARTERS 86TH AIR DIVISION (DEF) (USAFE) APO NEW YORK (09012) AND REASSIGNED TO HEADQUARTERS BOSTON AIR DEFENSE SECTOR (ADC), HANCOCK FIELD, NEW YORK (13225). THE RECORD SHOWS THAT PURSUANT TO THOSE ORDERS YOUR OCCUPANCY OF GOVERNMENT QUARTERS WAS TERMINATED ON MAY 20, 1965, AND ON THAT DAY, YOU AND YOUR DEPENDENTS (WIFE AND SON) MOVED INTO A PRIVATE RESIDENCE AT MIESENBACH, GERMANY, FOR THE REASON THAT NO HOTEL WAS AVAILABLE. YOU RESIDED THERE UNTIL MAY 25, 1965. YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE, WHICH IS SUPPORTED BY A CERTIFICATE OF NON- AVAILABILITY OF GOVERNMENT QUARTERS AND MESS, WAS DISALLOWED BY THE SETTLEMENT DATED MARCH 25, 1966, FOR THE REASON THAT YOU DID NOT FURNISH RECEIPTS OR OTHER EVIDENCE TO SHOW YOU INCURRED MORE THAN NORMAL EXPENSE FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS.

IN YOUR PRESENT LETTER YOU SAY THAT LODGING WAS ACQUIRED AT THE BEST AVAILABLE HOTEL-LIKE ACCOMMODATIONS, AND WHILE YOU DID NOT RECEIVE A RECEIPT FROM THE OWNER OF THE RESIDENCE WHERE YOU STAYED, YOU DO NOT FIND SUCH RECEIPT IS REQUIRED BY PARAGRAPH M4303 OF THE REGULATIONS. FURTHER, YOU SAY THAT ALL OF THE CONDITIONS OF PARAGRAPH M4303-2A DID EXIST IN YOUR SITUATION AND THEREFORE YOUR CLAIM SHOULD BE ALLOWED.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 405, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII OR ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE, AS STATED IN PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL- LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL AT THE FOREIGN STATION PENDING COMPLETION OF PERMANENT LIVING ARRANGEMENTS, OR IMMEDIATELY PRECEDING DEPARTURE THEREFROM ON PERMANENT CHANGE OF STATION AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS. IN ACCORD WITH THAT PURPOSE, PARAGRAPH M4303-2A OF THE REGULATIONS AUTHORIZES PAYMENT OF THE ALLOWANCE BASED ON THE SOMEWHAT HIGHER TRAVEL PER DIEM RATES DESIGNED TO REIMBURSE TRANSIENTS FOR THEIR EXTRAORDINARY EXPENSE OF TRAVEL IN CIRCUMSTANCES WHERE GOVERNMENT QUARTERS ARE NOT FURNISHED, THE MEMBER IS REQUIRED TO SECURE TEMPORARY LODGINGS, AND HE OR HIS DEPENDENTS, OR BOTH, ACTUALLY OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS AT PERSONAL EXPENSE. IN OTHER WORDS, THE REGULATIONS CONTEMPLATE PAYMENT OF THE HIGHER RATES ONLY UNDER SPECIAL CIRCUMSTANCES APPROXIMATING THOSE MET BY TRAVELERS. IT IS CONSIDERED, THEREFORE, THAT BENEFITS MAY NOT ACCRUE UNDER THE REGULATIONS IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES UNLESS THE MEMBER BY USING HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS INCURS LIVING EXPENSES WHICH SUBSTANTIALLY EXCEED THOSE THAT WOULD BE INCURRED UNDER NORMAL PERMANENT LIVING ARRANGEMENTS.

IN YOUR CLAIM FOR THE TEMPORARY LODGING ALLOWANCE YOU STATED "LODGING WAS ACQUIRED IN LOCAL RESIDENCE WHERE A HOTEL BILL WAS NOT TENDERED.' HOWEVER, THERE IS NOTHING IN THE RECORD ESTABLISHING THAT BY OCCUPYING SUCH ACCOMMODATIONS YOU WERE COMPELLED TO PAY HIGH TRANSIENT RENTAL AND USE PUBLIC RESTAURANTS. BOTH ARE QUALIFYING CONDITIONS CONTEMPLATED BY THE REGULATIONS AND BOTH MUST BE MET BEFORE THE ALLOWANCE IS PAYABLE. 150362, AUGUST 26, 1963. COMPARE 33 COMP. GEN. 451.

WHILE THE REGULATION DOES NOT REQUIRE SUBMISSION OF HOTEL RECEIPTS TO SUPPORT A CLAIM FOR TEMPORARY LODGING ALLOWANCE, AS A PRACTICAL MATTER HOTEL RECEIPTS ARE CONSIDERED ACCEPTABLE EVIDENCE THAT THE MEMBER HAS NECESSARILY OCCUPIED HOUSING OF THE TYPE USUALLY OCCUPIED BY TRANSIENTS AT A COST GREATER THAN THAT WHICH ORDINARILY WOULD BE INCURRED IN PERMANENT- TYPE HOUSING. IN THIS CONNECTION, PRIVATE RESIDENCES, PENSION-TYPE ACCOMMODATIONS, AND SIMILAR HOUSING FACILITIES, WITH CHARACTERISTICS WHICH RENDER THEM SUITABLE FOR PERMANENT-TYPE HOUSING ARE NOT REGARDED AS HOTEL OR HOTEL-LIKE ACCOMMODATIONS WITHIN THE MEANING OF THE REGULATIONS IN THE ABSENCE OF AN AFFIRMATIVE SHOWING THAT RESULTING LIVING EXPENSES SIGNIFICANTLY EXCEED THOSE THAT MIGHT BE EXPECTED IN PERMANENT HOUSING ARRANGEMENTS.

CONSEQUENTLY, IN THE ABSENCE OF EVIDENCE TO SHOW THAT THE COST TO YOU FOR THE QUARTERS OCCUPIED BY YOU AND YOUR DEPENDENTS AND FOR MEALS OBTAINED IN RESTAURANTS DURING THE PERIOD IN QUESTION WAS SUBSTANTIALLY GREATER THAN THAT WHICH ORDINARILY WOULD BE INCURRED UNDER MORE PERMANENT LIVING ARRANGEMENTS, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM. ACCORDINGLY, ON THE PRESENT RECORD THE SETTLEMENT OF MARCH 25, 1966, IS SUSTAINED.

CONCERNING YOUR REQUEST THAT WE RETURN YOUR CLAIM TO YOU UNTIL YOU ARE ABLE TO SUBMIT ADDITIONAL SUPPORTING EVIDENCE, YOU ARE ADVISED THAT ALL PAPERS, EXCEPT THE MEMBER'S ORDERS, FILED IN CONNECTION WITH A CLAIM AGAINST THE UNITED STATES AND CONSIDERED IN REACHING A DECISION RESPECTING THE CLAIMANT'S RIGHTS BECOME A PART OF THE PERMANENT FILES OF THIS OFFICE. CONSISTENTLY, IT HAS BEEN THE PRACTICE OF OUR OFFICE AND OF THE FORMER ACCOUNTING OFFICERS OF THE TREASURY IN SUCH CASES TO RETAIN THE PAPERS FILED IN CLAIMS AGAINST THE UNITED STATES AS PART OF THE PERMANENT RECORDS. SEE 31 U.S.C. 71 AND 74; ALSO 1 COMP. GEN. 631, 634. ACCORDINGLY, WE ARE UNABLE TO COMPLY WITH YOUR REQUEST FOR THE RETURN OF YOUR CLAIM.