B-171196, APR 21, 1971

B-171196, APR 21, 1971

BASIC ALLOWANCE FOR QUARTERS - MISINTERPRETATION OF STATUTE DECISION THAT THE COMP. GEN. WILL NOT TAKE EXCEPTION TO BASIC ALLOWANCE FOR QUARTERS PAYMENT MADE TO CHAPLIAN (MAJOR) J.A. DOONAN BECAUSE THE ADMINISTRATIVE ACTION WHICH AUTHORIZED QUARTERS ALLOWANCE RESULTED FROM A MISUNDERSTANDING AS TO THE EFFECTS OF THE ASSIGNMENT OF FAMILY TYPE QUARTERS TO A BACHELOR CHAPLAIN. BECAUSE ADMINISTRATIVE ACTION WAS TAKEN UNDER A VALID MISUNDERSTANDING OR MISINTERPRETATION OF THE INSTANT STATUTE PRIOR TO GAO DECISION B-171196, JANUARY 11, 1971, THE COMP. GEN. WILL NOT REQUIRE REFUND OF PAYMENTS, OTHERWISE CORRECT, AND RECEIVED IN GOOD FAITH.

TO CAPTAIN JAMES D. CARGILL:

WE REFER TO OUR DECISION B-171196, JANUARY 11, 1971, IN RESPONSE TO YOUR REQUEST FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO CHAPLAIN (MAJOR) J. A. DOONAN, XXX-XX-XXXX. YOUR SUBMISSION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF 1103.

IN OUR DECISION WE INDICATED THAT THE FACT THAT THE MEMBER'S PROFESSIONAL AND PASTORAL DUTIES NECESSITATED HIS CONTINUED OCCUPANCY OF RENT-FREE GOVERNMENT FAMILY HOUSING AFTER HIS MOTHER'S DEPARTURE FROM HIS STATION, BECAUSE OF HER ILL HEALTH, AFFORDED NO ENTITLEMENT TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS COMMENCING SEPTEMBER 28, 1968, AND THE ENCLOSED VOUCHER WAS RETAINED HERE.

WE HAVE NOW BEEN INFORMED BY CHAPLAIN DOONAN THAT HE WAS PAID THE ALLOWANCE FROM SEPTEMBER 28, 1968, UNTIL JUNE 1970 AND THAT HE HAS BEEN NOTIFIED OF HIS INDEBTEDNESS TO THE GOVERNMENT FOR $3,046.05, THE TOTAL AMOUNT OF QUARTERS ALLOWANCE PAID TO HIM DURING THIS PERIOD. IN HIS LETTER OF FEBRUARY 17, 1971, CHAPLAIN DOONAN SAYS THAT AFTER HIS MOTHER'S DEPARTURE FROM HIS QUARTERS HE MADE INQUIRY ON DECEMBER 18, 1968, AS TO THE PROPRIETY OF PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WHILE HE OCCUPIED A FAMILY HOUSING UNIT, AND THAT ON JANUARY 10, 1969, THE THIRD AIR FORCE COMPTROLLER APPROVED THE PAYMENTS, BUT THAT THEY WERE TERMINATED AFTER THE AIR FORCE ACCOUNTING AND FINANCE CENTER ADVISED HIM THAT MEMBERS OF THE MILITARY PAY AND ALLOWANCE COMMITTEE HAD EXPRESSED DIFFERING OPINIONS REGARDING HIS ENTITLEMENT TO THE ALLOWANCE. HE HAS SUBMITTED COPIES OF OFFICIAL CORRESPONDENCE WHICH SUPPORT HIS CONTENTIONS. CHAPLAIN DOONAN INDICATES THAT HE ACTED IN GOOD FAITH IN THE MATTER AND, IN EFFECT, REQUESTS THAT HE NOT BE REQUIRED TO REPAY THE AMOUNTS RECEIVED.

WE HAVE CONSISTENTLY FOLLOWED THE RULE THAT WHEN A DECISION CONSTITUTES AN INITIAL INTERPRETATION OR CONSTRUCTION OF A STATUTORY PROVISION, IT IS REGARDED AS EFFECTIVE FROM THE EFFECTIVE DATE OF THE STATUTORY PROVISION. SEE 39 COMP. GEN. 455, 456 (1959) AND 40 COMP. GEN. 14, 17 (1960). HOWEVER, IN CERTAIN CASES WHERE ADMINISTRATIVE REGULATIONS HAVE BEEN PROMULGATED OR ACTIONS TAKEN UNDER A VALID MISUNDERSTANDING OR MISINTERPRETATION OF THE BASIC STATUTE PRIOR TO THE RENDITION OF THE DECISION, WE HAVE NOT REQUIRED REFUND OF PAYMENTS, OTHERWISE CORRECT, THAT WERE RECEIVED IN GOOD FAITH. SEE B-163798, OCTOBER 26, 1970 (50 COMP. GEN. ), COPY ENCLOSED.

AS THE RECORD NOW BEFORE US INDICATES THAT THE ADMINISTRATIVE ACTION WHICH AUTHORIZED THE QUARTERS ALLOWANCE RESULTED FROM A MISUNDERSTANDING AS TO THE EFFECT OF THE ASSIGNMENT OF FAMILY TYPE QUARTERS TO A BACHELOR CHAPLAIN, WE WILL NOT TAKE EXCEPTION TO PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS MADE TO CHAPLAIN DOONAN PRIOR TO THE DATE OF OUR DECISION B- 171196, JANUARY 11, 1971, IF OTHERWISE CORRECT. BY LETTER OF TODAY, WE ARE FURNISHING CHAPLAIN DOONAN WITH A COPY OF THIS DECISION.