B-164698, AUGUST 8, 1968, 48 COMP. GEN. 68

B-164698: Aug 8, 1968

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THE MANNER OR FROM WHOM THE RENTAL CHARGES ARE COLLECTED IS IMMATERIAL UNDER THE LANDLORD AND TENANT RELATIONSHIP. 1968: FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 25. FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE PROPER RATE OF BASIC ALLOWANCE FOR QUARTERS AND RENTAL CHARGE APPLICABLE TO ENLISTED MEMBERS WHO ARE HUSBAND AND WIFE AND WHO MAY BE PERMITTED TO OCCUPY INADEQUATE QUARTERS OF THE TYPE WHERE OCCUPANCY ON A RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED UNDER 42 U.S.C. 1594J (A). THE QUESTION WAS DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 416. NOTWITHSTANDING THAT SUCH QUARTERS MAY HAVE BEEN CONSTRUCTED OR CONVERTED FOR ASSIGNMENT AS PUBLIC QUARTERS.

B-164698, AUGUST 8, 1968, 48 COMP. GEN. 68

QUARTERS ALLOWANCE - GOVERNMENT QUARTERS - HUSBAND AND WIFE SERVICE MEMBERS A HUSBAND AND WIFE, MEMBERS OF THE UNIFORMED SERVICES IN PAY GRADES E-5 AND E-4, RESPECTIVELY, EACH MEMBER IN RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS WHILE OCCUPYING PRIVATE QUARTERS, WHEN ASSIGNED INADEQUATE GOVERNMENT QUARTERS ON A RENTAL BASIS MAY CONTINUE UNDER 42 U.S.C. 1594J (A) TO RECEIVE THE ALLOWANCE AS MEMBERS WITHOUT DEPENDENTS. HOWEVER, THEIR COMBINED ALLOWANCES EXCEEDING THE ALLOWANCE RECEIVED BY THE USUAL MILITARY FAMILY--- ONE MEMBER ONLY IN THE SERVICE--- OCCUPYING INADEQUATE QUARTERS, THE REDUCTION PROVIDED BY SECTION 1594J (A) WHEN A RENTAL RATE EXCEEDS 75 PERCENTUM OF THE QUARTERS ALLOWANCE MAY NOT BE APPLIED ON THE BASIS OF THE HUSBAND'S ALLOWANCE ALONE. THE MANNER OR FROM WHOM THE RENTAL CHARGES ARE COLLECTED IS IMMATERIAL UNDER THE LANDLORD AND TENANT RELATIONSHIP.

TO THE SECRETARY OF DEFENSE, AUGUST 8, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 25, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE PROPER RATE OF BASIC ALLOWANCE FOR QUARTERS AND RENTAL CHARGE APPLICABLE TO ENLISTED MEMBERS WHO ARE HUSBAND AND WIFE AND WHO MAY BE PERMITTED TO OCCUPY INADEQUATE QUARTERS OF THE TYPE WHERE OCCUPANCY ON A RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED UNDER 42 U.S.C. 1594J (A). THE QUESTION WAS DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 416.

SECTION 1594J (A), TITLE 42, U.S. CODE, PROVIDES AS FOLLOWS:

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, MEMBERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WITH DEPENDENTS, MAY OCCUPY ON A RENTAL BASIS, WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS, INADEQUATE QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, NOTWITHSTANDING THAT SUCH QUARTERS MAY HAVE BEEN CONSTRUCTED OR CONVERTED FOR ASSIGNMENT AS PUBLIC QUARTERS. THE NET DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF SUCH QUARTERS SHALL BE PAID FROM OTHERWISE AVAILABLE APPROPRIATIONS: PROVIDED, THAT NOTWITHSTANDING THE FAIR RENTAL VALUE OF SUCH QUARTERS, OR OF ANY OTHER HOUSING FACILITIES UNDER THE JURISDICTION OF A DEPARTMENT OR AGENCY OF THE UNITED STATES, NO RENTAL CHARGE FOR OCCUPANCY OF FAMILY UNITS DESIGNATED AS OTHER THAN PUBLIC QUARTERS SHALL BE MADE AGAINST THE BASIC ALLOWANCE FOR QUARTERS OF A MEMBER OF A UNIFORMED SERVICE IN EXCESS OF 75 PERCENTUM OF SUCH ALLOWANCE, EXCEPT THAT IN NO EVENT SHALL THE NET RENTAL VALUE CHARGED TO THE MEMBER'S BASIC ALLOWANCE FOR QUARTERS BE LESS THAN THE COSTS OF MAINTAINING AND OPERATING THE HOUSING.

THE HUSBAND AND WIFE INVOLVED, WHO ARE IN PAY GRADES E-5 AND E-4, RESPECTIVELY, PRESENTLY OCCUPY PRIVATE QUARTERS, THERE BEING NO ADEQUATE FAMILY-TYPE QUARTERS AVAILABLE AT THEIR DUTY STATIONS WHICH ARE IN THE SAME AREA. SINCE ADEQUATE SINGLE-TYPE QUARTERS ARE NOT AVAILABLE FOR THE FEMALE MEMBER, THEY ARE EACH BEING CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITHOUT DEPENDENTS. THE QUESTION ARISES IN CONNECTION WITH THE CONTEMPLATED OCCUPANCY OF BELLEVUE HOUSING WHICH, BEING DESIGNATED AS INADEQUATE QUARTERS, MAY BE OCCUPIED BY SERVICE MEMBERS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS PURSUANT TO 42 U.S.C. 1594J (A).

IT IS STATED THAT THE MONTHLY RENTAL RATES AT BELLEVUE FOR MEMBERS IN PAY GRADES E-5 AND E-4 (OVER 4 YEARS) HAVE BEEN ESTABLISHED AT $66.30 FOR ONE BEDROOM HOUSING AND $78.75 FOR TWO AND THREE BEDROOM HOUSING. THE RATES DO NOT EXCEED 75 PERCENTUM OF $105, THE MONTHLY RATE OF BASIC ALLOWANCE FOR MEMBERS WITH CIVILIAN DEPENDENTS IN PAY GRADES E-5 AND E-4 (OVER 4 YEARS). THE CASE OF A HUSBAND AND WIFE WHO ARE BOTH MEMBERS OF THE MILITARY SERVICE IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS RAISES QUESTIONS AS TO THE APPLICATION OF THE PROVISIONS OF 42 U.S.C. 1594J (A).

WHILE A MEMBER WHO IS THE HUSBAND OF A FEMALE MEMBER OF A UNIFORMED SERVICE MAY NOT, BY VIRTUE OF 37 U.S.C. 420, BE PAID INCREASED BASIC ALLOWANCE FOR QUARTERS FOR HER, SHE NEVERTHELESS IS HIS DEPENDENT AS DEFINED BY 37 U.S.C. 401 (1). HE IS ENTITLED TO ASSIGNMENT OF FAMILY TYPE PUBLIC QUARTERS FOR THEIR JOINT OCCUPANCY AND LIKEWISE THEY MAY BE ACCEPTED AS TENANTS AND MAY OCCUPY, ON A RENTAL BASIS HOUSING FACILITIES UNDER THE JURISDICTION OF THE ARMED FORCES OTHER THAN PUBLIC QUARTERS. THUS, UNLESS HE IS ASSIGNED TO AND OCCUPIES PUBLIC QUARTERS WITHOUT CHARGE, HE IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITHOUT DEPENDENTS DURING ANY PERIOD WHEN HE MUST RENT HIS QUARTERS IN EITHER PRIVATE OR GOVERNMENT HOUSING FACILITIES. 37 U.S.C. 403 (E). SO LONG AS THE WIFE, AS A MEMBER OF A UNIFORMED SERVICE, IS ENTITLED TO BASIC PAY AND SINGLE-TYPE QUARTERS ARE NOT AVAILABLE FOR HER AND FAMILY-TYPE GOVERNMENT QUARTERS ARE NOT ASSIGNED FOR THEIR USE, SHE IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITHOUT DEPENDENTS.

THE PROVISO WAS ADDED TO 42 U.S.C. 1594J (A) BY SECTION 502 OF THE MILITARY CONSTRUCTION AUTHORIZATION ACT OF 1967, PUBLIC LAW 89-568, 80 STAT. 753. PRIOR TO THE DATE OF ENACTMENT OF THAT LAW, SEPTEMBER 12, 1966, ANY AMOUNT COULD BE CHARGED AS THE FAIR RENTAL VALUE OF QUARTERS DESIGNATED AS INADEQUATE QUARTERS SO LONG AS THE CHARGE DID NOT EXCEED THE OCCUPANT'S BASIC ALLOWANCE FOR QUARTERS. IN CERTAIN AREAS THE CHARGES FOR OCCUPANCY OF SUBSTANDARD GOVERNMENT HOUSING, ESTABLISHED ON THE BASIS OF COMPARABILITY WITH PRIVATE UNITS, FREQUENTLY EQUALED THE BASIC ALLOWANCE FOR QUARTERS WHICH WOULD OTHERWISE BE FORFEITED FOR OCCUPANCY OF ADEQUATE GOVERNMENT QUARTERS. THE HOUSE COMMITTEE ON ARMED SERVICES BELIEVED THIS TO BE INEQUITABLE AND THUS PROPOSED THE LEGISLATION WHICH WAS ENACTED AS SECTION 502 OF PUBLIC LAW 89-568. SEE H.REPT. NO. 1763, TO ACCOMPANY S. 3105, 89TH CONG., 2D SESS. NOTHING IN THE LEGISLATIVE HISTORY OF THAT SECTION INDICATES THAT ANY FAMILY OTHER THAN THE NORMAL MILITARY FAMILY--- HAVING ONLY ONE MEMBER OF A UNIFORMED SERVICE--- WAS INTENDED TO BE COVERED WHEN THE RESTRICTIVE PROVISION WAS RECEIVING CONSIDERATION OR THAT THE BASIC ALLOWANCE FOR QUARTERS INVOLVED WAS OTHER THAN THAT AUTHORIZED FOR A MEMBER WITH CIVILIAN DEPENDENTS.

SHOULD THE FAMILY UNIT TO WHICH THE QUESTION APPLIES BE PERMITTED TO OCCUPY BELLEVUE HOUSING THE HUSBAND AND WIFE WOULD EACH REMAIN ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS MEMBERS WITHOUT DEPENDENTS AND THUS WOULD BE ENTITLED TO QUARTERS ALLOWANCE PAYMENTS EXCEEDING THE BASIC ALLOWANCE FOR QUARTERS TO WHICH THE HUSBAND WOULD OTHERWISE BE ENTITLED AS A MEMBER WITH DEPENDENTS--- THE RATE CONSIDERED BY THE CONGRESS. SINCE THEY WOULD BE ENTITLED TO RECEIVE A GREATER COMBINED QUARTERS ALLOWANCE THAN THAT RECEIVED BY THE USUAL MILITARY FAMILY OCCUPYING INADEQUATE QUARTERS, THERE IS NO LEGAL OR EQUITABLE BASIS FOR REDUCTION OF THE RENTAL RATE ON THE BASIS OF THE HUSBAND'S BASIC ALLOWANCE ALONE. ACCORDINGLY, THEY MAY OCCUPY THE HOUSING INVOLVED WITHOUT LOSS OF THEIR AUTHORIZED BASIC ALLOWANCE FOR QUARTERS WITHOUT DEPENDENTS AND WITHOUT ANY REDUCTION IN THE ESTABLISHED RENTAL RATE. SINCE A MERE LANDLORD AND TENANT RELATIONSHIP WOULD EXIST, IT IS IMMATERIAL IN WHAT MANNER OR FROM WHOM THE RENTAL CHARGES ARE COLLECTED.