B-159527, SEPTEMBER 13, 1966, 46 COMP. GEN. 214

B-159527: Sep 13, 1966

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OR PAYMENTS MADE WITHIN 30 DAYS FROM THE DATE OF THIS DECISION ON THE BASIS OF DETERMINATIONS ALREADY MADE WILL NOT BE QUESTIONED. 1966: REFERENCE IS MADE TO LETTER OF JUNE 15. THE SECRETARIES OF THE UNIFORMED SERVICES HAVE ISSUED REGULATIONS CONTAINED IN PARAGRAPH M4303-1. WHICH ESTABLISH A TEMPORARY LODGING ALLOWANCE FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES PENDING ASSIGNMENT OF QUARTERS OR ARRANGEMENTS FOR OTHER PERMANENT QUARTERS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. THE UNDER SECRETARY STATES FURTHER THAT PARAGRAPH M4303-2B (NOW M4303- 2C) PROVIDES THAT THE PERIOD OF ENTITLEMENT FOR THE TEMPORARY LODGING ALLOWANCE UPON ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES REQUIRING CHANGE IN RESIDENCE WILL NOT EXCEED 60 DAYS.

B-159527, SEPTEMBER 13, 1966, 46 COMP. GEN. 214

STATION ALLOWANCE - -MILITARY PERSONNEL - TEMPORARY LODGINGS - TIME LIMITATION - EXTENSION. THE AUTHORITY IN PARAGRAPH M4303-2C OF THE JOINT TRAVEL REGULATIONS TO EXTEND BY SPECIAL DETERMINATION THE 60-DAY PERIOD OF ENTITLEMENT TO A TEMPORARY LODGING ALLOWANCE PROVIDED FOR THE MORE THAN NORMAL EXPENSES THAT OCCUR INCIDENT TO AN OVERSEAS ASSIGNMENT REQUIRING CHANGE OF RESIDENCE MAY NOT BE AMENDED TO PROVIDE FOR A TIME EXTENSION AFTER THE EXPIRATION OF 60 DAYS, THE RIGHTS OF THE GOVERNMENT AND MEMBERS OF THE UNIFORM SERVICES HAVING VESTED, ANY SPECIAL DETERMINATION TO EXTEND THE PERIOD OF ENTITLEMENT OPERATING RETROACTIVELY WOULD BE WITHOUT EFFECT, AND NEITHER WOULD A RETROACTIVE DETERMINATION OPERATE TO COMMENCE A FURTHER AND SEPARATE PERIOD OF ENTITLEMENT. HOWEVER, PAYMENTS OF A TEMPORARY LODGING ALLOWANCE MADE PURSUANT TO A RETROACTIVE DETERMINATION, OR PAYMENTS MADE WITHIN 30 DAYS FROM THE DATE OF THIS DECISION ON THE BASIS OF DETERMINATIONS ALREADY MADE WILL NOT BE QUESTIONED.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 13, 1966:

REFERENCE IS MADE TO LETTER OF JUNE 15, 1966, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION WHETHER A SPECIAL DETERMINATION AUTHORIZED UNDER THE PROVISIONS OF PARAGRAPH M4303-2B (NOW M4303-2C) OF THE JOINT TRAVEL REGULATIONS, TO EXTEND THE 60-DAY TEMPORARY LODGING ALLOWANCE TIME LIMITATION UNDER CERTAIN CIRCUMSTANCES, MAY BE MADE AFTER THE EXPIRATION OF THE AUTHORIZED 60 DAY PERIOD, TO PRESCRIBE ENTITLEMENT FROM AND INCLUDING THE 61ST DAY. THIS REQUEST HAS BEEN ASSIGNED CONTROL NO. 66-24 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES THAT UNDER THE PROVISIONS OF 37 U.S.C. 405, THE SECRETARIES OF THE UNIFORMED SERVICES HAVE ISSUED REGULATIONS CONTAINED IN PARAGRAPH M4303-1, JOINT TRAVEL REGULATIONS, WHICH ESTABLISH A TEMPORARY LODGING ALLOWANCE FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES PENDING ASSIGNMENT OF QUARTERS OR ARRANGEMENTS FOR OTHER PERMANENT QUARTERS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE, AND IMMEDIATELY PRECEDING DEPARTURE FROM THE FOREIGN STATION ON PERMANENT CHANGE OF STATION AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT QUARTERS.

THE UNDER SECRETARY STATES FURTHER THAT PARAGRAPH M4303-2B (NOW M4303- 2C) PROVIDES THAT THE PERIOD OF ENTITLEMENT FOR THE TEMPORARY LODGING ALLOWANCE UPON ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES REQUIRING CHANGE IN RESIDENCE WILL NOT EXCEED 60 DAYS, EXCEPT WHEN SPECIFICALLY EXTENDED BY ISSUANCE OF A SPECIAL DETERMINATION BY THE SECRETARIES OF THE SERVICES CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. THIS EXCEPTION, IT ISSAID, WAS INCLUDED IN THE REGULATIONS EFFECTIVE AUGUST 25, 1965, BECAUSE IT WAS RECOGNIZED THAT THERE WOULD ARISE INSTANCES BEYOND THE CONTROL OF THE MEMBER WHICH WOULD NECESSITATE AN EXTENSION OF THE TIME LIMITATION STATED IN THE REGULATION.

THE UNDER SECRETARY RELATES THAT TRANSPORTATION DELAYS INCIDENT TO STRIKES, BAD WEATHER, HEAVY TRAFFIC, AND OTHER REASONS HAVE RESULTED IN DELAYED ARRIVAL OF HOUSEHOLD GOODS. FOR THIS REASON AND OCCASIONALLY BECAUSE OF A LACK OF ADEQUATE HOUSING IN THE VICINITY OF THE NEW PERMANENT DUTY STATION, MEMBERS ARE SOMETIMES REQUIRED TO OCCUPY HOTEL LIKE ACCOMMODATIONS LONGER THAN ORIGINALLY ANTICIPATED. WHEN THE NEED FOR AN EXTENSION OF THE TIMPORARY LODGING ALLOWANCES ARISES UNEXPECTEDLY AND NEAROR AT THE END OF THE 60-DAY TIME LIMITATION IT IS SAID THAT THERE HAS RESULTED A LOSS OF TEMPORARY LODGING ALLOWANCE IN SOME INSTANCES SINCE SPECIAL DETERMINATIONS MADE AFTER THE 60-DAY PERIOD HAVE PROVIDED THAT THEY ARE NOT TO BE EFFECTIVE FOR ANY DAY PRIOR TO THE DETERMINATION. ALSO, IT IS INDICATED THAT SOME REQUESTS FOR EXTENSION WERE NOT TIMELY RECEIVED BY THE COMMITTEE DUE TO UNAVOIDABLE DELAY IN PROCESSING AND FORWARDING SUCH REQUESTS. IT IS THEREFORE URGED THAT ANY SPECIAL DETERMINATION ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN PARAGRAPH M4303-2B (NOW M4303-2C) SHOULD CONFER A CONTINUATION OF ENTITLEMENT INCLUSIVE OF THE 61ST DAY, NOTWITHSTANDING THE FACT THAT THE SPECIAL DETERMINATION MAY BE MADE AND DATED AFTER THE EXPIRATION OF THE ORIGINAL PERIOD OF ENTITLEMENT.

THE UNDER SECRETARY THEREFORE REQUESTS A DECISION WHETHER A SPECIAL DETERMINATION MADE AFTER THE EXPIRATION OF THE AUTHORIZED 60-DAY PERIOD MAY PRESCRIBE ENTITLEMENT FROM AND INCLUDING THE 61ST DAY, OR WHETHER SUCH AUTHORIZATION WOULD BE CONSIDERED A RETROACTIVE PRESCRIBING OF ENTITLEMENT TO WHICH OUR OFFICE WOULD BE REQUIRED TO OBJECT. IN THE EVENT WE PERCEIVE NO OBJECTION TO THE PROPOSED PROCEDURE, THE FURTHER QUESTION IS ASKED WHETHER THERE MAY NOW BE ISSUED SPECIAL DETERMINATIONS FOR THE PERIODS BETWEEN THE EXPIRATION OF THE AUTHORIZED 60-DAY PERIODS AND THE DATES OF DETERMINATIONS ISSUED IN RESPONSE TO REQUESTS FOR EXTENSION WHICH WERE NOT RECEIVED IN TIME TO PREVENT LOSS OF ENTITLEMENT.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF STATION ALLOWANCES WHICH INCLUDES TEMPORARY LODGING ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, IS CONTAINED IN 37 U.S.C. 405, WHICH PROVIDES AS FOLLOWS:

WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA WHETHER OR NOT HE IS IN A TRAVEL STATUS. HOWEVER, DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS.

PURSUANT TO SUCH AUTHORITY AND WITH RESPECT TO TEMPORARY LODGING ALLOWANCES, PARAGRAPH M4304-2C (CH. 164, DATED SEPTEMBER 1, 1966), JOINT TRAVEL REGULATIONS, PROVIDES IN PERTINENT PART AS FOLLOWS:

C. ALLOWANCE UPON INITIAL ASSIGNMENT. THE PERIOD OF ENTITLEMENT, UPON INITIAL ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES OR UPON TRANSFER BETWEEN PERMANENT STATIONS OUTSIDE THE UNITED STATES REQUIRING CHANGE IN RESIDENCE, WILL NOT EXCEED 60 DAYS, EXCEPT WHEN SPECIFICALLY EXTENDED BY ISSUANCE OF A SPECIAL DETERMINATION BY THE SECRETARY/IES) OF THE SERVICE/S) CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. A REQUEST FOR EXTENSION MUST CONTAIN THE NAME OF THE INDIVIDUAL MEMBER CONCERNED AND ALL INFORMATION ESSENTIAL TO JUSTIFY AN EXTENSION AND WILL BE SUBMITTED TO THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IN ACCORDANCE WITH REGULATIONS OF THE SERVICE CONCERNED. * * *

THIS OFFICE HAS GENERALLY HELD THAT WHILE ADMINISTRATIVE REGULATIONS, ORDERS, OR DETERMINATIONS MAY BE MODIFIED FROM TIME TO TIME, THEY MAY NOT BE AMENDED SO AS TO OPERATE RETROACTIVELY TO DECREASE OR INCREASE RIGHTS ALREADY VESTED OR FIXED, EXCEPT TO CORRECT OBVIOUS ERRORS. SEE 23 COMP. GEN. 713; 24 ID. 439; 32 ID. 315; 33 ID. 174; ID. 505 AND 41 ID. 392. ADMINISTRATIVE DELAY IN MAKING A DETERMINATION MAY NOT LEGALLY JUSTIFY A RETROACTIVE APPLICATION OF SUCH DETERMINATION. 33 COMP. GEN. 505-507.

WITH REGARD TO GIVING RETROSPECTIVE EFFECT TO SPECIAL DETERMINATIONS MADE AFTER THE 60-DAY PERIOD OF ENTITLEMENT, THE REGULATION PROVIDES THAT ENTITLEMENT WILL NOT EXCEED 60 DAYS UNLESS EXTENDED BY ISSUANCE OF A SPECIAL DETERMINATION. IT IS OUR VIEW THAT THE REGULATION DOES NOT PROVIDE AUTHORITY FOR RETROACTIVE APPROVAL FOR A PERIOD DURING WHICH ENTITLEMENT DID NOT EXIST, BUT CONTEMPLATES AN EXTENSION BY A SPECIAL DETERMINATION ISSUED NOT LATER THAN THE DATE OF EXPIRATION OF THE 60-DAY PERIOD WHICH IT IS TO EXTEND. UNLESS APPROPRIATE ACTION HAS BEEN TAKEN BEFORE OR AT THE TIME THE 60-DAY PERIOD EXPIRES, WE ARE OF THE OPINION THAT THE MEMBER'S AND THE GOVERNMENT'S RIGHTS BECOME VESTED AND A SPECIAL DETERMINATION THEREAFTER IS WITHOUT EFFECT. THEREFORE, THE QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE.

WE HAVE BEEN INFORMALLY ADVISED THAT IT HAS BEEN THE ADMINISTRATIVE PRACTICE IN CASES WHERE REQUESTS FOR AN EXTENSION OF THE 60-DAY PERIOD HAVE NOT BEEN RECEIVED IN TIME TO PERMIT A SPECIAL DETERMINATION BEFORE EXPIRATION OF SUCH PERIOD, TO ISSUE DETERMINATIONS TO BE PROSPECTIVELY EFFECTIVE. THE RESULT IS TO PROVIDE FOR PAYMENT OF TEMPORARY LODGING ALLOWANCE FOR A NEW AND SEPARATE PERIOD FOLLOWING THE EXPIRATION OF THE 60 -DAY PERIOD DURING WHICH ENTITLEMENT DOES NOT EXIST UNDER THE CONTROLLING REGULATIONS. SINCE, AS INDICATED ABOVE, WE ARE OF THE OPINION THAT A SPECIAL DETERMINATION UNDER PARAGRAPH M4303-2C MADE AFTER THE 60- DAY PERIOD OF ENTITLEMENT HAS EXPIRED IS WITHOUT EFFECT TO AUTHORIZE PAYMENT OF THE ALLOWANCE, WE FIND NO BASIS IN THE REGULATIONS FOR THE VIEW THAT SUCH A DETERMINATION MAY OPERATE TO COMMENCE A FURTHER AND SEPARATE PERIOD OF ENTITLEMENT. IN THE CIRCUMSTANCES APPEARING, HOWEVER, WE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS THAT HAVE BEEN MADE PRUSUANT TO SUCH DETERMINATIONS OR THAT ARE MADE FOR PERIODS OF NOT TO EXCEED 30 DAYS FROM THE DATE OF THIS DECISION PURSUANT TO DETERMINATIONS THAT HAVE ALREADY BEEN MADE.