B-164351, AUG. 2, 1968

B-164351: Aug 2, 1968

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S. HARWOOD: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 19. THE REQUEST WAS ASSIGNED D.O. LIEUTENANT SPENCER WAS TRANSFERRED ON PERMANENT CHANGE OF STATION FROM FORT BENNING. THE TEMPORARY DUTY IN EACH INSTANCE WAS TO ATTEND A COURSE OF INSTRUCTION. HE WAS PAID BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENTS AT THE RATE OF $95.10 PER MONTH FOR THE PERIOD NOVEMBER 3. HE ALSO WAS PAID PER DIEM AT THE RATE OF $16 PER DAY FOR THE PERIOD NOVEMBER 24 THROUGH NOVEMBER 30. HE WAS NOT PAID ANY PER DIEM FOR THE PERIOD DECEMBER 1. ARE SHOWN. YOU QUESTION WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED SINCE FULL PER DIEM WHICH INCLUDES AN ALLOWANCE FOR QUARTERS WAS PAID FOR HALF OF MARCH. 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.

B-164351, AUG. 2, 1968

TO MAJOR M. S. HARWOOD:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 19, 1968, AJSGC-F (H), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF LIEUTENANT SPENCER B. DOYLE, 05 332 149, TO BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENTS WHILE IN RECEIPT OF FULL PER DIEM AT A TEMPORARY DUTY STATION UNDER ORDERS DIRECTING A PERMANENT CHANGE OF STATION. THE REQUEST WAS ASSIGNED D.O. NO. A-998 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 203, SPECIAL ORDERS NO. 179 DATED SEPTEMBER 12, 1967, AS AMENDED BY PARAGRAPH 26, SPECIAL ORDERS NO. 63, DATED MARCH 12, 1968, LIEUTENANT SPENCER WAS TRANSFERRED ON PERMANENT CHANGE OF STATION FROM FORT BENNING, GEORGIA, TO APO SAN FRANCISCO 96375, WITH TEMPORARY DUTY EN ROUTE AT FORT WOLTERS, TEXAS (REPORTING DATE NOVEMBER 23, 1967) AND FURTHER TEMPORARY DUTY EN ROUTE AT HUNTER ARMY AIRFIELD GEORGIA (REPORTING DATE APRIL 4, 1968). THE TEMPORARY DUTY IN EACH INSTANCE WAS TO ATTEND A COURSE OF INSTRUCTION.

THE MEMBER DEPARTED FORT BENNING ON NOVEMBER 3, 1967, AND ARRIVED AT FORT WOLTERS ON NOVEMBER 23, 1967. HE DEPARTED FORT WOLTERS ON MARCH 16, 1968, AND APPARENTLY ARRIVED AT HUNTER ARMY AIRFIELD ON APRIL 4, 1968.

HE WAS PAID BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENTS AT THE RATE OF $95.10 PER MONTH FOR THE PERIOD NOVEMBER 3, 1967, THROUGH FEBRUARY 29, 1968. HE ALSO WAS PAID PER DIEM AT THE RATE OF $16 PER DAY FOR THE PERIOD NOVEMBER 24 THROUGH NOVEMBER 30, 1967, AND MARCH 1 TO 15, 1968, AT FORT WOLTERS. APPARENTLY, HE WAS NOT PAID ANY PER DIEM FOR THE PERIOD DECEMBER 1, 1967, TO FEBRUARY 29, 1968, WHILE ATTENDING A COURSE OF INSTRUCTION AT FORT WOLTERS.

THE MEMBER HAS REQUESTED PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENTS FOR THE PERIOD OF TEMPORARY DUTY AT HUNTER ARMY AIRFIELD. THE APPROVED VOUCHER YOU SUBMITTED, HOWEVER, COVERS SUCH ALLOWANCE FOR THE PERIOD MARCH 1 TO 31, 1968. NO PER DIEM PAYMENTS TO THE MEMBER FOR ANY PERIOD SUBSEQUENT TO HIS DEPARTURE FROM FORT WOLTERS ON MARCH 16, 1968, ARE SHOWN. YOU QUESTION WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED SINCE FULL PER DIEM WHICH INCLUDES AN ALLOWANCE FOR QUARTERS WAS PAID FOR HALF OF MARCH.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES A BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS ENTITLED TO BASIC PAY. SUBSECTION (B) PROVIDES THAT 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.

FOR MANY YEARS 37 U.S.C. 403 (F) PROVIDED THAT APPROPRIATIONS MAY NOT BE USED TO PAY A MEMBER OF A UNIFORMED SERVICES WITHOUT DEPENDENTS A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME. THERE WAS NO SIMILAR LIMITATION IN THE LAW WITH RESPECT TO MEMBERS WITH DEPENDENTS. COMPARE 45 COMP. GEN. 347.

SECTION 403 (F) OF TITLE 37, U.S. CODE, WAS AMENDED BY SECTION 1 (3) OF PUBLIC LAW 90-207 OF DECEMBER 16, 1967, TO READ AS FOLLOWS:

"/F) A MEMBER OF A UNIFORMED SERVICE WITHOUT DEPENDENTS WHO IS IN PAY GRADE E-4 (FOUR OR MORE YEARS' SERVICE), OR ABOVE, IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME WHEN HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES.'

THE LEGISLATIVE HISTORY OF THE AMENDMENT (PAGE 9, SENATE REPORT NO. 808 ON H.R. 13510 WHICH BECAME PUBLIC LAW 90-207) SHOWS THAT THE REASON FOR THE PROVISION IS THAT:

"* * * THE VAST MAJORITY OF CAREER MILITARY MEMBERS HAVE DEPENDENTS, BUT THE FEW WHO DO NOT, EXPERIENCE A LOSS OF INCOME WHILE MOVING BECAUSE THE STATUTE NOW PRECLUDES THEIR ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS WHILE IN PERMANENT CHANGE OF STATION STATUS. THE PROPOSED LEGISLATION WILL CORRECT THIS CONDITION AND ASSURE TREATMENT OF CAREER MILITARY PERSONNEL WITHOUT REGARD TO THEIR DEPENDENCY STATUS.'

IT SEEMS CLEAR, THEREFORE, THAT CONGRESS INTENDED TO AUTHORIZE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS TO MEMBERS WITHOUT DEPENDENTS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS WITHOUT REGARD TO THE TRAVEL ALLOWANCES AUTHORIZED FOR THE MEMBER, AS IS THE CASE WHERE MEMBERS WITH DEPENDENTS ARE CONCERNED.

PARAGRAPH M4205-5C (1) OF THE JOINT TRAVEL REGULATIONS PROVIDES A PER DIEM ALLOWANCE OF $16 A DAY FOR DELAYS INCIDENT TO TRAVEL AND TEMPORARY DUTY WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE OR NOT UTILIZED AND GOVERNMENT MESS IS NOT AVAILABLE.

WHILE PER DIEM AT THE RATE OF $16 PER DAY INCLUDES $8 FOR QUARTERS, 37 U.S.C. 403 (F), AS AMENDED, PROVIDES WITHOUT OTHER EXCEPTION THAT A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT STATIONS "WHEN HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES.'

SINCE THE MEMBER WAS IN A TRAVEL STATUS BETWEEN PERMANENT STATIONS IN MARCH 1968, AND, EXCEPT FOR ONE DAY, WAS NOT ASSIGNED TO GOVERNMENT QUARTERS, HE IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS NOTWITHSTANDING THAT HE WAS PAID A FULL PER DIEM FOR A PORTION OF THE MONTH. ANY OTHER CONCLUSION WOULD APPEAR TO BE CONTRARY TO THE EXPRESS PROVISIONS OF THE LAW AND THE STATED PURPOSE OF CONGRESS IN ENACTING IT. SINCE THE RECORD SHOWS THAT HE OCCUPIED GOVERNMENT QUARTERS ON MARCH 16, 1968, HE MAY NOT, HOWEVER, BE PAID THE QUARTERS ALLOWANCE FOR THAT DAY. SEE ANSWER TO QUESTION 3 IN DECISION B-163821 OF THIS DATE, COPY ENCLOSED.

ACCORDINGLY, THE VOUCHER IS RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED AS INDICATED IF OTHERWISE CORRECT.