B-170194, SEP. 15, 1970

B-170194: Sep 15, 1970

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IN ABSENCE OF THE CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS WHICH WAS A REQUIREMENT BY THE AGENCY. WHO WERE DIRECTED TO USE GOVERNMENT QUARTERS WHILE ON TEMPORARY DUTY IN VIETNAM. WHO INSTEAD USED NON-GOVERNMENT QUARTERS WITHOUT OBTAINING A CERTIFICATE OF NONAVAILABILITY ARE NOT ENTITLED TO ADDITIONAL PER DIEM IN ABSENCE OF CERTIFICATES OF NON-AVAILABILITY. D. BRIERCHECK: THIS IS IN REFERENCE TO YOUR LETTER DATED MARCH 19. WERE ON TEMPORARY DUTY IN VIETNAM IN CONNECTION WITH AUDIT ASSIGNMENTS DURING 1969. IN EACH INSTANCE THE EMPLOYEE'S TRAVEL ORDER INCLUDED IN THE SPECIAL INSTRUCTIONS A STATEMENT THAT A GOVERNMENT QUARTERS DETERMINATION WAS MADE JULY 23. THAT IF GOVERNMENT QUARTERS ARE NOT AVAILABLE A CERTIFICATE OF NONAVAILABILITY MUST BE OBTAINED.

B-170194, SEP. 15, 1970

GOVERNMENT QUARTERS -- CERTIFICATE OF NONAVAILABILITY DECISION TO FINANCE OFFICER, ADVISING THAT VOUCHER FOR ADDITIONAL PER DIEM, TO TWO EMPLOYEES, FOR TEMPORARY DUTY IN VIETNAM, MAY NOT BE CERTIFIED FOR PAYMENT, IN ABSENCE OF THE CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS WHICH WAS A REQUIREMENT BY THE AGENCY. TWO EMPLOYEES OF THE ARMY AUDIT AGENCY, WHO WERE DIRECTED TO USE GOVERNMENT QUARTERS WHILE ON TEMPORARY DUTY IN VIETNAM, DUE TO THE NATURE OF THE ASSIGNMENT, BUT WHO INSTEAD USED NON-GOVERNMENT QUARTERS WITHOUT OBTAINING A CERTIFICATE OF NONAVAILABILITY ARE NOT ENTITLED TO ADDITIONAL PER DIEM IN ABSENCE OF CERTIFICATES OF NON-AVAILABILITY.

TO LIEUTENANT COLONEL R. D. BRIERCHECK:

THIS IS IN REFERENCE TO YOUR LETTER DATED MARCH 19, 1970, AND ENCLOSURES, FORWARDED HERE JUNE 25, 1970, BY THE DISTRICT MANAGER, PACIFIC DISTRICT, UNITED STATES ARMY AUDIT AGENCY, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF SUPPLEMENTAL VOUCHERS SUBMITTED BY MR. A. R. SALAZAR AND BY MR. HARRY Y. TSUJI, FOR ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE ALLEGED TO BE DUE WHILE ON TEMPORARY DUTY IN VIETNAM.

THE RECORD SHOWS THAT THE CLAIMANTS, CIVILIAN EMPLOYEES OF THE UNITED STATES ARMY AUDIT AGENCY, HAWAII, WERE ON TEMPORARY DUTY IN VIETNAM IN CONNECTION WITH AUDIT ASSIGNMENTS DURING 1969, MR. SALAZAR DURING THE PERIOD NOVEMBER 29 TO DECEMBER 12, AND MR. TSUJI DURING THE PERIOD APRIL 21 TO MAY 9. IN EACH INSTANCE THE EMPLOYEE'S TRAVEL ORDER INCLUDED IN THE SPECIAL INSTRUCTIONS A STATEMENT THAT A GOVERNMENT QUARTERS DETERMINATION WAS MADE JULY 23, 1968, IN ACCORDANCE WITH PARAGRAPH C1057-3, VOLUME II, JTR, AND THAT IF GOVERNMENT QUARTERS ARE NOT AVAILABLE A CERTIFICATE OF NONAVAILABILITY MUST BE OBTAINED. THE RECORD INDICATES THAT EACH CLAIMANT STAYED IN NON-GOVERNMENT QUARTERS AND THERE IS NO INDICATION THAT INQUIRY WAS MADE AS TO AVAILABILITY OF GOVERNMENT QUARTERS. NO CERTIFICATES OF NONAVAILABILITY WERE FURNISHED BY THE CLAIMANTS. THE CLAIMS REPRESENT THE DIFFERENCE BETWEEN THE $26 PER DIEM RATE FOR NON-GOVERNMENT QUARTERS AND THE $10 RATE ALLOWED WHICH IS THE PER DIEM RATE FOR DEPARTMENT OF THE ARMY CIVILIANS IN VIETNAM BASED ON THE AVAILABILITY OF GOVERNMENT QUARTERS.

PARAGRAPH C 8101-3D, JOINT TRAVEL REGULATIONS, PROVIDES FOR A REDUCED RATE OF PER DIEM IF GOVERNMENT QUARTERS ARE USED AS LODGINGS AT TEMPORARY DUTY POINTS OUTSIDE THE CONTINENTAL UNITED STATES. PARAGRAPH C 1057 PROVIDES IN PART AS FOLLOWS:

"C 1057 USE OF GOVERNMENT QUARTERS

"1. PRACTICABLE USE OF AVAILABLE QUARTERS. WHEN ADEQUATE GOVERNMENT QUARTERS ARE AVAILABLE, AND THEIR USE WOULD NOT BE IMPRACTICABLE OR INTERFERE WITH THE ACCOMPLISHMENT OF THE PURPOSE OF A MISSION, EMPLOYEES PERFORMING TEMPORARY DUTY AT AN ACTIVITY WILL BE ENCOURAGED BY THEIR SUPERVISORS TO USE SUCH QUARTERS. EXCEPT AS PROVIDED IN SUBPARS. 2 AND 3, MANDATORY USE OF GOVERNMENT QUARTERS WHILE IN A TEMPORARY DUTY STATUS WILL NOT BE REQUIRED, NOR WILL PER DIEM ALLOWANCES BE SUBJECT TO REDUCTION ON THE BASIS OF AVAILABILITY ALONE OF SUCH QUARTERS. CERTIFICATES OF NONAVAILABILITY OF GOVERNMENT QUARTERS ARE NOT NECESSARY AND WILL NOT BE REQUIRED.

"3. SPECIAL PROJECTS AND MISSIONS. EMPLOYEES ASSIGNED TO SPECIAL PROJECTS OR MISSIONS MAY BE REQUIRED TO OCCUPY AVAILABLE GOVERNMENT QUARTERS WHEN A DETERMINATION IS MADE BY THE SECRETARY OF A SEPARATE MILITARY DEPARTMENT OR THE HEAD OF AN AGENCY OF THE DEPARTMENT OF DEFENSE THAT THE EXIGENCIES OF THE SERVICE REQUIRE OCCUPANCY OF SUCH QUARTERS TO ASSURE ACCOMPLISHMENT OF THE PROJECT OR MISSION. TRAVEL ORDERS WILL INCLUDE CITATION OF THE DETERMINATION AND APPLICABLE CONDITIONS AND LIMITATIONS."

THE REGULATIONS ALSO CONTEMPLATE A REDUCTION IN THE PER DIEM WHEN GOVERNMENT QUARTERS ARE NOT USED IF A DETERMINATION HAS BEEN MADE THAT SUCH USE IS NECESSARY, AS UNDER "3" ABOVE. THE TRAVEL ORDERS OF THE EMPLOYEES INDICATE THAT SUCH A DETERMINATION HAD BEEN MADE BY THE SECRETARY OF THE ARMY.

THE DETERMINATION BY THE SECRETARY OF THE ARMY REQUIRED BY PARAGRAPH C1057-3, SUPRA, WAS MADE JULY 23, 1968, AND AS STATED IN DA MESSAGE 874737B, PROVIDED, IN PERTINENT PART, THAT:

"2. ALL CIVILIAN EMPLOYEES PROCEEDING TO VIETNAM ON TDY SUBSEQUENT TO RECEIPT OF THIS MESSAGE WILL BE INFORMED THAT EXIGENCIES OF SERVICE REQUIRE OCCUPANCY OF AVAILABLE GOVERNMENT QUARTERS TO FACILITATE ACCOMPLISHMENT OF USARV MISSION, TO PROVIDE FOR ESSENTIAL SECURITY OF CIVILIAN EMPLOYEES AND TO INSURE AVAILABILITY TO ACCOMPLISH THEIR TDY MISSIONS. TRAVEL ORDERS WILL INCLUDE CITATION OF DETERMINATION ON PARA 1 ABOVE AND STATEMENT THAT IF GOVERNMENT QUARTERS ARE NOT AVAILABLE, CERTIFICATES OF NONAVAILABILITY MUST BE FILED WITH EACH TRAVEL VOUCHER SUBMITTED FOR PAYMENT."

THE CLAIMS HERE INVOLVED WERE CONSIDERED AND DISALLOWED BY THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA, BY FIRST INDORSEMENT DATED JUNE 2, 1970, IN VIEW OF THE DETERMINATION OF THE SECRETARY OF THE ARMY, AS STATED ABOVE, WHICH REQUIRES AS A CONDITION OF PAYMENT, A CERTIFICATION THAT QUARTERS WERE NOT AVAILABLE. IT WAS STATED THEREIN THAT EXCEPTIONS MAY NOT BE MADE TO THE REQUIREMENT.

SECTION 5911(E), TITLE 5, U.S.C. PROVIDES:

"THE HEAD OF AN AGENCY MAY NOT REQUIRE AN EMPLOYEE OR MEMBER OF A UNIFORMED SERVICE TO OCCUPY QUARTERS ON A RENTAL BASIS, UNLESS THE AGENCY HEAD DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED, OR THAT PROPERTY OF THE GOVERNMENT CANNOT ADEQUATELY BE PROTECTED, OTHERWISE."

INASMUCH AS A DETERMINATION WAS MADE BY THE SECRETARY OF THE ARMY AS REQUIRED BY 5 U.S.C. 5911(E), AND BY PARAGRAPH C1057-3 OF THE JOINT TRAVEL REGULATIONS, THE REQUIREMENT OF THE REGULATIONS FOR CERTIFICATES OF NONAVAILABILITY OF QUARTERS AS A CONDITION OF PAYMENT OF THE FULL PER DIEM RATE HAS THE FORCE AND EFFECT OF LAW. IN THE ABSENCE OF CERTIFICATES OF NONAVAILABILITY OF GOVERNMENT QUARTERS THERE IS NO BASIS FOR PAYMENT OF THE CLAIMS.

IN REACHING THIS CONCLUSION WE HAVE NOT OVERLOOKED THE CONCLUSION REACHED IN B-156187, APRIL 15, 1965, PUBLISHED AT 44 COMP. GEN. 626, TO THE EFFECT THAT A BLANKET DETERMINATION OF NECESSITY FOR USING AVAILABLE GOVERNMENT QUARTERS IS NOT AUTHORIZED. NOTWITHSTANDING ITS BROAD AND GENERAL CHARACTER, WE DO NOT VIEW THE DETERMINATION IN THE INSTANT CASE AS BEING IMPROPER, SINCE IT IS DIRECTED TOWARD PROBLEMS ASSOCIATED WITH THE ENVIRONMENTAL CIRCUMSTANCES OF A SPECIFIC AND LIMITED GEOGRAPHIC AREA.

THE SUPPLEMENTAL VOUCHERS WITH ATTACHMENTS ARE RETURNED HEREWITH, AND MAY NOT BE CERTIFIED FOR PAYMENT.