B-164873, SEP. 24, 1968

B-164873, SEP. 24, 1968

TO STAFF SERGEANT LLOYD SANFT, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 5, 1968, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 25, 1968, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF A COLLECTION MADE IN YOUR PAY RECORD FOR OVERPAYMENT OF TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM SEPTEMBER 15 TO 23, 1965.

INFORMATION CONTAINED IN THE FILES INDICATES THAT ON JULY 19, 1966, A COLLECTION NOTICE WAS ENTERED IN YOUR MILITARY PAY RECORD IN THE AMOUNT OF $180 FOR OVERPAYMENT OF TEMPORARY LODGING ALLOWANCE FOR 8 DAYS. IN AN AFFIDAVIT DATED AUGUST 22, 1966, SUBMITTED TO SUBSTANTIATE YOUR CLAIM FOR REFUND OF THE COLLECTION YOU STATED THAT YOU TERMINATED YOUR PERMANENT TYPE HOUSING (PRIVATE QUARTERS) ON SEPTEMBER 15, 1965, AT IZMIR, TURKEY, BECAUSE IN PREPARING TO LEAVE TURKEY YOU SOLD SEVERAL ITEMS OF HOUSEHOLD GOODS WITHOUT WHICH YOU COULD NO LONGER CONTINUE TO OCCUPY THE QUARTERS. YOU STATED FURTHER THAT ON SEPTEMBER 6, 1965, YOU REQUESTED SHIPMENT OF THE REMAINING ITEMS, BUT ACTUAL SHIPMENT WAS NOT EFFECTED UNTIL A LATER DATE DUE TO THE TRANSPORTATION WORKLOAD. AS A RESULT, YOU SAID THAT YOU MOVED WITH YOUR FAMILY INTO A LOCAL HOTEL ON SEPTEMBER 15, 1965, AND REMAINED THERE UNTIL YOUR DEPARTURE EN ROUTE TO THE UNITED STATES ON SEPTEMBER 24, 1965.

IN SUBSEQUENT STATEMENTS, YOU RELATED THAT YOU WERE ADVISED ON SEPTEMBER 6 THAT YOUR HOUSEHOLD GOODS WOULD BE PICKED UP ON SEPTEMBER 15, 1965, AND SINCE YOU WERE REQUIRED TO GIVE 10 DAYS' WRITTEN NOTICE IN VACATING YOUR APARTMENT, YOU ARRANGED ON THAT DAY TO VACATE ON SEPTEMBER 15 AND YOU ALSO MADE RESERVATIONS FOR YOUR FAMILY AT A HOTEL. YOU CONTENDED THAT YOUR GOODS WERE NOT PICKED UP ON THE 15TH DUE TO A TRANSPORTATION WORKLOAD, CONTRARY TO THE ADMINISTRATIVE REPORT THAT THE PICK-UP WAS CANCELLED DUE TO THE FACT THAT SALES TRANSACTIONS ON SOME OF YOUR HOUSEHOLD GOODS WERE STILL PENDING. HOWEVER, YOUR CLAIM FOR REFUND WAS ADMINISTRATIVELY DENIED ON THE BASIS OF YOUR STATEMENT THAT THE PARTIAL DISPOSAL OF SOME OF YOUR HOUSEHOLD ITEMS REQUIRED YOUR RELINQUISHING YOUR PERMANENT QUARTERS. WAS CONSIDERED THAT SUCH ACTION WAS VOLUNTARY IN NATURE AND FOR YOUR OWN CONVENIENCE WITHIN THE MEANING OF PARAGRAPHS 11011C (2) (A) (B) AND 11011C (3) (B), AIR FORCE MANUAL 177-105, DATED MAY 20, 1964.

BY TRANSMITTAL LETTER DATED MAY 8, 1968, YOUR CLAIM WAS FORWARDED TO OUR OFFICE FOR SETTLEMENT, IT BEING STATED THAT REIMBURSEMENT WAS NOT RECOMMENDED. BY SETTLEMENT DATED JUNE 25, 1968, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED. IN YOUR LETTER OF JULY 5, 1968, REQUESTING RECONSIDERATION OF YOUR CLAIM YOU CONTEND THAT IT WAS NECESSARY THAT YOU GIVE 10 DAYS' NOTICE TO TERMINATE YOUR LEASE AND WHEN YOU WERE ADVISED ON SEPTEMBER 6, 1965, THAT YOUR GOODS WOULD BE PICKED UP ON SEPTEMBER 15, YOU HAD NO OTHER ALTERNATIVE BUT TO SEND THE TERMINATION NOTICE AND MAKE RESERVATIONS FOR YOUR FAMILY AT THE HOTEL. YOU CONTEND FURTHER THAT THE FACT THAT YOU HAD CERTAIN ITEMS UNDER CONTRACT TO BE SOLD HAD NO BEARING ON YOUR VACATING YOUR APARTMENT ON SEPTEMBER 15, 1965. ALSO, YOU SAY THAT THE ADDITIONAL EXPENSE YOU INCURRED AFTER SEPTEMBER 15 BY HAVING TO PAY FOR THE USE OF YOUR APARTMENT AS WELL AS THE HOTEL ACCOMMODATIONS WAS THE RESULT OF THE FAILURE OF THE TRAFFIC MANAGER TO PICK UP YOUR HOUSEHOLD GOODS ON THE DATE SCHEDULED, WHICH FAILURE WAS NOT AT YOUR VOLITION. YOU THEREFORE CONTEND THAT YOU ARE FULLY ENTITLED TO THE TEMPORARY LODGING ALLOWANCE CLAIMED.

THE PERTINENT STATUE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. PARAGRAPH M4303-2C OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SUCH AUTHORITY AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDES THAT A TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIOD OF REQUIRED OCCUPANCY OF A HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE-OF- STATION ORDERS. THE REGULATION FURTHER PROVIDES THAT IT IS THE RESPONSIBILITY OF THE OVERSEAS COMMANDER TO DETERMINE WHETHER THE OCCUPANCY OF TEMPORARY LODGINGS IS NECESSARY.

IMPLEMENTING AIR FORCE REGULATIONS CONTAINED IN AIR FORCE MANUAL 177-105 (1964 ED.) PROVIDE IN PARAGRAPH 11011C (3) (B) THAT AS A CONDITION OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE THE OVERSEA COMMANDER SHALL DETERMINE IF IT IS NECESSARY FOR MEMBERS TO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS IMMEDIATELY BEFORE THEY LEAVE AND SHALL RESTRICT THE NEED FOR OCCUPANCY OF SUCH QUARTERS BY PREVENTING MEMBERS FROM VOLUNTARILY GIVING UP PERMANENT QUARTERS FOR THEIR PERSONAL CONVENIENCE IN ORDER TO SHIP HOUSEHOLD GOODS EARLY OR FOR OTHER REASONS. IT PROVIDES FURTHER THAT TEMPORARY LODGING ALLOWANCE IS NOT PAYABLE IF PERMANENT LIVING QUARTERS (GOVERNMENT OR NON GOVERNMENT) ARE AVAILABLE.

IN CASES INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE RESPONSIBLE ADMINISTRATIVE OFFICERS, IT IS THE ESTABLISHED RULE OF THIS OFFICE TO RELY ON THE REPORTS OF THE FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF SUCH REPORTS. 16 COMP. GEN. 325; 19 ID. 88 AND 38 ID. 527.

THERE IS NOTHING IN THE RECORD TO SUPPORT YOUR CONTENTION THAT THE CANCELLATION OF THE PICK-UP FOR SHIPMENT OF YOUR REMAINING GOODS ON THE SCHEDULED DATE WAS DUE TO TRANSPORTATION WORKLOAD. NOR DO THE ADMINISTRATIVE REPORTS SUPPORT YOUR CONTENTION THAT YOU WERE REQUIRED TO VACATE YOUR PREMISES ON SEPTEMBER 15, 1965. ON THE CONTRARY, THE REPORTS STATE THAT THE CANCELLATION OF THE PICK-UP OF THE HOUSEHOLD GOODS FOR SHIPMENT WAS BECAUSE SOME OF THE ITEMS YOU SOLD STILL REMAINED TO BE PICKED UP BY THE PURCHASERS. THEY STATE FURTHER THAT THE ACTION OF PARTIAL DISPOSITION OF YOUR HOUSEHOLD GOODS, WHICH DID NOT PERMIT YOU TO CONTINUE TO RESIDE IN YOUR PERMANENT QUARTERS, WAS VIEWED AS VOLUNTARY IN NATURE AND FOR YOUR PERSONAL CONVENIENCE.

YOU INDICATE THAT WHILE YOUR EFFECTS REMAINED IN THE APARTMENT AFTER YOU MOVED TO THE HOTEL YOU WERE REQUIRED TO PAY FOR THE CONTINUED USE OF THE APARTMENT AND, AS FAR AS THE RECORD SHOWS, YOU COULD HAVE CONTINUED TO RESIDE IN THE APARTMENT UNTIL YOUR DEPARTURE FROM TURKEY HAD YOU NOT SOLD ESSENTIAL ITEMS OF YOUR HOUSEHOLD EFFECTS. IN THESE CIRCUMSTANCES AND SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOUR OCCUPANCY OF HOTEL ACCOMMODATIONS WAS NOT REQUIRED WITHIN THE CONTEMPLATION OF THE APPLICABLE REGULATIONS, WE MAY NOT CONCLUDE THAT YOU ARE ENTITLED TO TEMPORARY LODGING ALLOWANCE FOR THE PERIOD CLAIMED.