B-172040, APR 21, 1971

B-172040, APR 21, 1971

TEMPORARY LODGING ALLOWANCE - NO FINANCIAL HARDSHIP DECISION DENYING CLAIM FOR TEMPORARY LODGING ALLOWANCE IN EXCESS OF 10 DAYS ALREADY ALLOWED FOR MEMBER AND TWO DEPENDENTS INCIDENT TO A HOTEL STAY OF 46-DAYS WHILE AWAITING DEPARTURE FOR THE UNITED STATES. WHILE MEMBER DID NOT SUBMIT A TIMELY REQUEST FOR EXTENSION OF THE 10 DAY PERIOD, EVEN IF SUCH A REQUEST HAD BEEN SUBMITTED, IT COULD NOT HAVE BEEN APPROVED. WHERE CLAIMANT RECEIVED $262.50 FOR THE 10-DAY PERIOD, $161 QUARTERS ALLOWANCE AND $63.94 SEPARATE RATIONS TOTALING $487.44 AND THE TOTAL COST OF THE LODGING FOR THE ENTIRE 46-DAY PERIOD AMOUNTED TO $368, CLAIMANT SUFFERED NO FINANCIAL HARDSHIP WHICH WOULD HAVE AFFORDED A BASIS FOR EXTENSION OF THE BASIC 10-DAY PERIOD. THE CLAIM IS THEREFORE DENIED.

TO SERGEANT ROBERTO QUIJANO:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE AS A MEMBER WITH TWO DEPENDENTS WHILE RESIDING IN A HOTEL IN AVIANO, ITALY, FROM MAY 15 TO JUNE 29, 1970, INCIDENT TO SPECIAL ORDER A-425, DATED MAY 15, 1970, DIRECTING A CHANGE OF PERMANENT STATION FROM AVIANO AIR BASE, ITALY, TO NELLIS AIR FORCE BASE, NEVADA. THE CLAIM WAS TRANSMITTED TO OUR OFFICE WITH A RECOMMENDATION FOR PAYMENT FOR A 10-DAY PERIOD AND FOR CONSIDERATION OF THE BALANCE OF YOUR CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE ORDERS OF MAY 15, 1970, DIRECTED YOU TO PROCEED TO YOUR NEW STATION ON JUNE 30, 1970, AND AUTHORIZED TRAVEL BY COMMERCIAL AIRCRAFT OR VESSEL. A CERTIFICATE DATED MAY 15, 1970, STATED THAT AN EARLY SHIPMENT OF YOUR HOUSEHOLD GOODS WAS NECESSARY WITH THE REQUESTED PICK UP DATE ON THAT DAY. ON MAY 15, YOU AND YOUR DEPENDENTS MOVED INTO A HOTEL IN THE VICINITY OF YOUR OLD DUTY STATION AND REMAINED THERE UNTIL DEPARTURE FOR THE UNITED STATES ON JUNE 30, A CERTIFICATE DATED JUNE 30, 1970, CERTIFIED THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE FROM MAY 15 THROUGH JUNE 30, 1970.

IN A MESSAGE FROM YOUR OLD STATION DATED JULY 16, 1970, IT WAS STATED THAT BASED ON THE PROCEDURES OUTLINED IN USAFE SUPPLEMENT 1 TO AIR FORCE MANUAL 177-105, MEMBERS DRAWING TEMPORARY LODGING ALLOWANCE ARE PAID ONLY THEIR EXPENSES MINUS THE BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE FOR THE TOTAL TIME ON TEMPORARY LODGING ALLOWANCE. THE MESSAGE STATED FURTHER THAT YOU FELT YOU SHOULD DRAW THE ACTUAL PER DIEM RATE WITHOUT QUARTERS AND SUBSISTENCE DEDUCTIONS AND THEREFORE YOU DECLINED TO HAVE REQUESTS FOR EXTENSIONS SUBMITTED TO USAFE AND WISHED TO SUBMIT A CLAIM FOR THE ENTIRE PERIOD. IN A COMMUNICATION DATED JULY 27, 1970, YOU EXPLAINED THAT THE REASON YOU DID NOT OBTAIN AN EXTENSION BEYOND THE BASIC 10-DAY PERIOD WAS BECAUSE YOU WERE ADVISED AT THE ACCOUNTING AND FINANCE OFFICE AT YOUR OLD STATION THAT SUCH EXTENSION WAS NOT NECESSARY, SINCE YOU WANTED TO COLLECT THE ALLOWANCE IN THE UNITED STATES. YOU URGED THAT THIS ADVICE WAS ERRONEOUS AND THAT YOU SHOULD BE PAID TEMPORARY LODGING ALLOWANCE FOR THE ENTIRE PERIOD OF YOUR STAY AT THE HOTEL.

STATION ALLOWANCES, INCLUDING THE TEMPORARY LODGING ALLOWANCE, ARE AUTHORIZED PURSUANT TO 37 U.S.C. 405. THE PURPOSE OF THESE ALLOWANCES IS TO PARTIALLY REIMBURSE A MEMBER FOR INCREASED COST OF LIVING INCURRED BY HIM WHEN ON DUTY IN OVERSEAS AREAS. PARAGRAPH M4303-2A, JOINT TRAVEL REGULATIONS, IMPLEMENTING THE PROVISIONS OF SECTION 405 PROVIDES IN PERTINENT PART THAT TEMPORARY LODGING ALLOWANCES ARE PAYABLE WHEN A MEMBER, HIS DEPENDENTS, OR BOTH, ARE REQUIRED TO AND DO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS AT PERSONAL EXPENSE AT HIS OVERSEAS PERMANENT DUTY STATION.

SUBPARAGRAPH B OF PARAGRAPH M4303-2 PROVIDES THAT IT IS THE RESPONSIBILITY OF THE OVERSEAS COMMANDER TO DETERMINE WHETHER IT IS NECESSARY FOR THE MEMBERS AND/OR THEIR DEPENDENTS TO OCCUPY HOTEL OR HOTEL -LIKE ACCOMMODATIONS IMMEDIATELY BEFORE THEY LEAVE THEIR STATION AND TO ADVISE THE MEMBER OF THE NUMBER OF DAYS OF AUTHORIZED TEMPORARY LODGING ALLOWANCE ON DEPARTURE AND OF ANY REQUIREMENT FOR WRITTEN JUSTIFICATION FOR EXTENSION OF THAT PERIOD. IT PROVIDES FURTHER THAT FACTORS FOR CONSIDERATION BY THE OVERSEAS COMMANDER IN DETERMINING THE NEED FOR ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCE INCLUDE THE DAILY AMOUNT OF TEMPORARY LODGING ALLOWANCE THE MEMBER HAS RECEIVED OR WILL RECEIVE, THE DAILY EXPENSES INCURRED OR TO BE INCURRED FOR OCCUPANCY OF HOTEL ACCOMMODATIONS AND UTILIZATION OF PUBLIC RESTAURANTS AND THE DAILY AMOUNTS OF BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE DUE THE MEMBER. IF THE MEMBER HAS NOT OR WILL NOT INCUR ANY EXCESS COSTS AND WILL NOT SUFFER OR HAS NOT SUFFERED ANY UNDUE FINANCIAL HARDSHIP, THE REQUEST FOR ANY ADDITIONAL PERIOD OF TEMPORARY LODGING ALLOWANCE WILL BE DISAPPROVED.

PARAGRAPH M4303-2E(1) OF THE REGULATIONS PROVIDES GENERALLY THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE OF THE MEMBER FROM HIS OVERSEAS PERMANENT STATION WILL BE THE LAST 10 DAYS PRECEDING THE DAY OF THE MEMBER'S DEPARTURE IN COMPLIANCE WITH HIS ORDERS, WITH CERTAIN ENUMERATED EXCEPTIONS. AS AN EXCEPTION TO THAT GENERAL RULE PARAGRAPH M4303-2E(2) PROVIDES THAT WHEN THE PERIOD OF ENTITLEMENT BEGINS AND ACTUAL DEPARTURE IS DELAYED THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, ADDITIONAL ENTITLEMENT MAY BE AUTHORIZED OR APPROVED BY THE COMMANDER CONCERNED, OR HIS DESIGNEE, IN INCREMENTS OF 10 DAYS OR LESS, FOR THE ENTIRE PERIOD THAT TEMPORARY LODGINGS ARE REQUIRED TO BE UTILIZED. IT PROVIDES FURTHER THAT APPROVAL DETERMINATIONS MUST BE ISSUED NO LATER THAN THE 10TH DAY AFTER THE EARLIEST DAY COVERED THEREBY.

USAFE SUPPLEMENT 1 TO AFM 177-105, IS IN EFFECT A RESTATEMENT OF THE ABOVE-MENTIONED PROVISIONS OF THE JOINT TRAVEL REGULATIONS. IN LINE WITH THOSE PROVISIONS PARAGRAPH 10602.1 OF THE SUPPLEMENT PROVIDES THAT INDIVIDUAL REQUESTS INDICATING REASONS FOR REQUESTING EXTENSIONS MUST BE SUBMITTED TO THE APPROVING AUTHORITY IN TIME TO ALLOW DISPATCH OF APPROVAL BEFORE EXPIRATION OF THE CURRENT PERIOD OF ENTITLEMENT. IT INDICATES THAT REQUESTS FOR EXTENSIONS WILL NOT BE APPROVED UNLESS THERE IS EVIDENCE THAT UNDUE FINANCIAL HARDSHIP WILL RESULT IF THE EXTENSION IS NOT APPROVED. A GUIDE FOR APPROVAL OF REQUESTED EXTENSIONS THE TOTAL OF BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE AND THE PROPOSED TEMPORARY LODGING ALLOWANCES SHOULD NOT EXCEED THE EXPENSES INCIDENT TO TEMPORARY LODGING ONLY.

ON THE RECORD YOU WERE ENTITLED TO TEMPORARY LODGING ALLOWANCE AS A MEMBER WITH DEPENDENTS FOR A PERIOD OF 10 DAYS PRIOR TO YOUR DEPARTURE FROM AVIANO AIR BASE, ITALY, AND ON FEBRUARY 24, 1971, OUR CLAIMS DIVISION ISSUED A SETTLEMENT IN YOUR FAVOR FOR $262.50, REPRESENTING TEMPORARY LODGING ALLOWANCE AT THE RATE OF $26.25 A DAY FOR A 10-DAY PERIOD AS A MEMBER WITH TWO DEPENDENTS.

AS TO THE REMAINDER OF THE PERIOD THE CITED REGULATIONS REQUIRE THAT REQUESTS FOR EXTENSIONS OF THE 10-DAY PERIOD MUST BE TIMELY SUBMITTED ANY REQUESTS FOR EXTENSION OF THE 10-DAY PERIOD. HOWEVER, EVEN IF SUCH REQUESTS HAD BEEN SUBMITTED THEY COULD NOT HAVE BEEN APPROVED UNDER THE GOVERNING REGULATIONS.

THE RECORD SHOWS THAT THE COST OF YOUR LODGING AND MEALS FOR THE ENTIRE 46-DAY PERIOD AMOUNTED TO $368. DURING THIS SAME PERIOD YOU WERE CREDITED WITH QUARTERS ALLOWANCES OF $161 AND SEPARATE RATIONS OF $63.94. THOSE AMOUNTS PLUS THE TEMPORARY LODGING ALLOWANCE OF $262.50 TOTAL $487.44, OR OVER $100 MORE THAN THE COST OF YOUR TEMPORARY LODGINGS. IN SUCH CIRCUMSTANCES YOU COULD SUFFER NO FINANCIAL HARDSHIP INCIDENT TO OCCUPANCY OF THE TEMPORARY LODGINGS WHICH WOULD AFFORD A BASIS FOR APPROVING ANY EXTENSION OF THE BASIC 10-DAY PERIOD.

WITH REGARD TO THE RECOMMENDATION BY THE DEPARTMENT OF THE AIR FORCE THAT A PORTION OF YOUR CLAIM BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS."

FOR THE REASONS STATED ABOVE WE FIND NO ELEMENT OF LEGAL LIABILITY OR EQUITY IN YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE WHICH WOULD JUSTIFY US IN REPORTING IT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, AND NO ACTION WILL BE TAKEN TO REPORT IT TO THE CONGRESS.