B-165327, NOV. 7, 1968

B-165327, NOV. 7, 1968

TO COMMANDING OFFICER, U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 20, 1968 (FILE FMP:VP:PB 7220/280), WITH ENCLOSURES, REQUESTING DECISION CONCERNING THE ENTITLEMENT OF CECS JOHN P. FLEMING, USN 7610699, AND CEC THOMAS R. MELEE, JR., USN 5175990, TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD JULY 1, 1967, TO APRIL 22, 1968, WHILE ASSIGNED TO DUTY WITH THE U.S. NAVAL NUCLEAR POWER UNIT.

IT APPEARS FROM THE RECORD BEFORE US THAT THE ACTIVITY TO WHICH THE MEMBERS ARE ASSIGNED IS A TENANT ACTIVITY OF FORT BELVOIR, VIRGINIA, AND THAT GOVERNMENT QUARTERS WERE AVAILABLE WHEN THEY REPORTED FOR DUTY. HOWEVER, THE MEMBERS REFUSED TO OCCUPY THEM BECAUSE THEY WERE DRAFTY AND NOT CONSIDERED SUITABLE QUARTERS ACCORDING TO NAVY STANDARDS FOR A CHIEF PETTY OFFICER OF THE NAVY.

A CERTIFICATE OF NONAVAILABILITY OF QUARTERS EFFECTIVE APRIL 23, 1968, WAS ISSUED BY THE DIRECTORATE OF HOUSING, HEADQUARTERS U.S. ARMY, ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA. NO CERTIFICATE HAS BEEN FURNISHED FOR THE PERIOD JULY 1, 1967, TO APRIL 22, 1968.

THE PERTINENT STATUTE, 37 U.S.C. 403 (B), PRECLUDES PAYMENT OF QUARTERS ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING APPROPRIATE TO THEIR GRADE OR RANK AND ADEQUATE FOR THEMSELVES AND DEPENDENTS. REGULATIONS PROMULGATED PURSUANT TO THE STATUTE PROVIDE FOR THE BASE OR INSTALLATION COMMANDER TO ASSIGN AND TERMINATE ASSIGNMENT OF QUARTERS. ALSO, IT IS HIS RESPONSIBILITY TO DETERMINE WHETHER AVAILABLE QUARTERS ARE ADEQUATE AND SUITABLE FOR ASSIGNMENT.

WHEN AVAILABLE GOVERNMENT QUARTERS DO NOT MEET THE PRESCRIBED STANDARDS OF ADEQUACY, THE COMMANDER MAY ISSUE CERTIFICATES OF NONAVAILABILITY AS A BASIS FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS WHO ARE PERMITTED TO RESIDE IN PRIVATE HOUSING. THE ISSUANCE OF SUCH CERTIFICATES, HOWEVER, IS PERMISSIVE AND NOT MANDATORY. IT IS WITHIN THE DISCRETION OF THE COMMANDER TO WITHDRAW SUCH CERTIFICATES AND REQUIRE THE MEMBERS TO RESIDE ON THE POST. SEE PARAGRAPH 30212, MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL AND SECTION II, PARAGRAPH 7H AND J, ARMY REGULATIONS NO. 210-16 DATED JUNE 30, 1967.

UNDER THE LAW AND REGULATIONS THE RIGHT OF MILITARY PERSONNEL TO BASIC ALLOWANCE FOR QUARTERS IS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS. IT HAS BEEN HELD THAT WHEN ADEQUATE PUBLIC QUARTERS ARE AVAILABLE FOR OCCUPANCY BY PERSONNEL OF THE ARMED SERVICES, THOUGH NOT OCCUPIED FOR PERSONAL REASONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. 32 COMP. GEN. 368, 369 AND 8 COMP. GEN. 82. ALSO, IT HAS BEEN HELD THAT THE ASSIGNMENT OF PUBLIC QUARTERS TO A MEMBER OF THE ARMED SERVICES IS PRIMARILY AN ADMINISTRATIVE MATTER AND THAT THE DETERMINATION BY THE INSTALLATION COMMANDER WITH RESPECT TO AVAILABILITY OF QUARTERS NORMALLY IS CONCLUSIVE OF THE RIGHT OF THE INDIVIDUAL CONCERNED. B 155403, NOVEMBER 23, 1964, 39 COMP. GEN. 561, RESPECTIVELY.

THE FACT THAT GOVERNMENT QUARTERS ARE AVAILABLE AT FORT BELVOIR AND UNDOUBTEDLY ARE ACCEPTED AND OCCUPIED BY OTHER MEMBERS EVEN THOUGH FLEMING AND MELEE OBJECTED TO THOSE QUARTERS, MAY HAVE ENTERED INTO THE DETERMINATION BY THE INSTALLATION COMMANDER AT FORT BELVOIR NOT TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS FOR THE PERIOD INVOLVED. HOWEVER THAT MAY BE, THE FACT THAT EFFECTIVE APRIL 23, 1968, QUARTERS WERE DETERMINED TO BE UNAVAILABLE DOES NOT PROVIDE ANY LEGAL BASIS FOR PAYMENT OF QUARTERS ALLOWANCE FOR ANY PERIOD PRIOR TO THAT DATE. SUCH DETERMINATION WITH RESPECT TO NONAVAILABILITY OF QUARTERS HAS NO RETROACTIVE EFFECT. B-155572, FEBRUARY 19, 1965. SEE, ALSO, B 164618, SEPTEMBER 5, 1968.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF A CONTEMPORANEOUS OFFICIAL DETERMINATION THAT QUARTERS AT FORT BELVOIR WERE UNAVAILABLE FOR FLEMING AND MELEE DURING THE PERIOD INVOLVED, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IS NOT AUTHORIZED.