B-172841, AUG 16, 1971

B-172841, AUG 16, 1971

MILITARY PERSONNEL - TEMPORARY LODGING ALLOWANCE-MERITORIOUS CLAIMS ACT DENIAL OF CLAIM BY MASTER SERGEANT LYLE D. EVANS, USAF, FOR $1,563.45, REPRESENTING THE DIFFERENCE BETWEEN THE TEMPORARY LODGING ALLOWANCE PAID TO HIM, AND THE TOTAL COST OF LIVING EXPENSES FOR CLAIMANT AND DEPENDENTS, INCIDENT TO A CHANGE OF PERMANENT STATION TO HONG KONG, BRITISH CROWN COLONY. THE CLAIM WAS REFERRED TO GAO FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT. SINCE THE AIR FORCE APPLIED THE CORRECT REGULATIONS IN A PROPER MANNER, THERE IS NO BASIS FOR REVERSING THEIR SETTLEMENT. A CLAIM MAY BE SUBMITTED TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT WHEN, IN THE COMP. GEN.'S JUDGEMENT, IT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO DESERVE SUCH CONSIDERATION. THERE IS NOTHING IN THIS CASE OF SUCH A NATURE AS TO WARRANT SUCH CONSIDERATION.

TO MASTER SERGEANT LYLE D. EVANS, USAF:

WE AGAIN REFER TO YOUR CLAIM FOR THE SUM OF $1,563.45, REPRESENTING THE DIFFERENCE BETWEEN THE TEMPORARY LODGING ALLOWANCE PAID TO YOU FOR THE PERIOD AUGUST 1 TO OCTOBER 16, 1970, AND THE TOTAL COST OF LIVING EXPENSES FOR YOURSELF AND DEPENDENTS FOR THAT PERIOD INCIDENT TO A CHANGE OF PERMANENT STATION TO HONG KONG, BRITISH CROWN COLONY. THE CLAIM WAS REFERRED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE RECORD SHOWS THAT BY ORDERS DATED JULY 2, 1970, YOUR PERMANENT DUTY STATION WAS CHANGED FROM SCOTT AIR FORCE BASE, ILLINOIS, TO OFFICE OF LIAISON, 7TH AIR FORCE (PACAF), HONG KONG, WITH THE REPORTING DATE SHOWN AS JULY 30, 1970. THOSE ORDERS AUTHORIZED CONCURRENT TRAVEL OF YOUR DEPENDENTS (WIFE AND 3 MINOR CHILDREN).

THE RECORD FURTHER SHOWS THAT AFTER ARRIVAL IN HONG KONG, YOU EXPERIENCED DIFFICULTY IN FINDING ADEQUATE FAMILY HOUSING AS GOVERNMENT QUARTERS AND MESS WERE THEN NOT AVAILABLE. SINCE REASONABLY PRICED LEASED HOUSING WAS UNOBTAINABLE YOU AND YOUR DEPENDENTS UTILIZED HOTEL ACCOMMODATIONS DURING THE PERIOD AUGUST 1 TO OCTOBER 16, 1970. IN THIS CONNECTION THE RECORD FURTHER SHOWS THAT ON AUGUST 14, 1970, YOU WROTE TO CINCPACAF (DCEPE) APO SAN FRANCISCO 96553, STATING THAT LEASED HOUSING COULD NOT BE OBTAINED WITHIN THE MAXIMUM ALLOWABLE HOUSING COST FOR A MASTER SERGEANT IN THE HONG KONG AREA ($327.90) AND THAT INVESTIGATIONS INDICATED THAT A LIMITED NUMBER OF THREE-BEDROOM APARTMENTS COULD BE LEASED FOR $395 TO $415 PER MONTH, PLUS UTILITIES. THEREAFTER THE AIR FORCE MADE ARRANGEMENTS FOR AND PROCURED FOR YOU A THREE-BEDROOM APARTMENT UNDER A 3-YEAR LEASE, EFFECTIVE OCTOBER 16, 1970.

BASED ON A CERTIFICATION BY THE COMMANDER, 6250TH SUPPORT SQUADRON, THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE UNAVAILABLE, THAT YOU WERE ACCOMPANIED BY YOUR DEPENDENTS, AND THAT THE COST OF LIVING IN HONG KONG WAS HIGHER THAN NORMAL ENTITLEMENTS, YOU WERE PAID TEMPORARY LODGING ALLOWANCES (WITH DEPENDENTS) IN THE AGGREGATE AMOUNT OF $3,293.50 FOR THE PERIOD AUGUST 1 TO OCTOBER 16, 1970 (175 PERCENT OF RATE OF $20 FOR PERIOD AUGUST 1 TO 20, 1970 ($700), AND 175 PERCENT OF RATE OF $26 FOR PERIOD AUGUST 21 TO OCTOBER 16, 1970 ($2,593.50)).

BY YOUR LETTER DATED OCTOBER 19, 1970, TO THE 7TH AIR FORCE, APO 96307, YOU PRESENTED A CLAIM FOR THE AMOUNT OF $1,563.45, REPRESENTING THE DIFFERENCE BETWEEN THE ACTUAL LIVING EXPENSES PAID BY YOU DURING THE 77- DAY PERIOD INVOLVED AS SET FORTH IN YOUR ITEMIZED STATEMENT AND THE TEMPORARY LODGING ALLOWANCE RECEIVED BY YOU.

THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS SPECIFIES AMONG OTHER THINGS THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. ALSO, SUBPARAGRAPH M4303-3A, IN PRESCRIBING THE ALLOWANCE RATE PAYABLE TO A QUALIFIED MEMBER, SPECIFIES THAT A MEMBER WITH 4 DEPENDENTS IS ENTITLED TO 175 PERCENT OF THE APPLICABLE TRAVEL PER DIEM RATE.

YOU WILL NOTE THAT THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE IS TO PARTIALLY REIMBURSE MEMBERS FOR THE EXTRAORDINARY EXPENDITURES INCURRED IMMEDIATELY AFTER ARRIVAL AT DUTY STATIONS IN CERTAIN OVERSEAS AREAS WHERE THE COST FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS UTILIZED AND MEALS CONSUMED AT PUBLIC RESTAURANTS EXCEEDS THE EXPENSES WHICH WOULD BE INCURRED UNDER NORMAL PERMANENT LIVING ARRANGEMENTS. THERE IS NO PROVISION OF LAW OR REGULATION WHICH WOULD SERVE AS AUTHORITY FOR REIMBURSEMENT OF THE TOTAL COST OF A MEMBER'S EXPENSES IN ANY CASE WHERE SUCH EXPENSES EXCEED THE TEMPORARY LODGING ALLOWANCE AUTHORIZED, REGARDLESS OF ANY EXTENUATING CIRCUMSTANCES INVOLVED.

IN ACCORDANCE WITH THE CONTROLLING LAW AND REGULATIONS, THE AIR FORCE PROPERLY PAID YOU THE SUM OF $3,293.50 AS TEMPORARY LODGING ALLOWANCE FOR THE 77-DAY PERIOD INVOLVED. SINCE THE LAW AND REGULATIONS MAKE NO PROVISION FOR PAYMENT OF AN AMOUNT OVER AND ABOVE THE TEMPORARY LODGING ALLOWANCE, NO LEGAL BASIS EXISTS FOR PAYMENT OF THE DIFFERENCE OF $1,563.45 CLAIMED BY YOU.

THE MERITORIOUS CLAIMS ACT OF 1928, SUPRA, PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT, CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATION. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

WHILE IT IS UNFORTUNATE THAT IMMEDIATELY AFTER ARRIVAL IN HONG KONG YOU WERE UNABLE TO OBTAIN PERMANENT HOUSING AND INCURRED LIVING EXPENSES IN EXCESS OF THE AUTHORIZED TEMPORARY LODGING ALLOWANCE, SUCH CIRCUMSTANCES ARE NOT OF AN UNUSUAL NATURE. THIS ALLOWANCE IS BASED UPON AN AVERAGE OF THE COSTS INCURRED BY ALL MEMBERS AND NORMALLY SOME ACTUAL COSTS WILL EXCEED THE AVERAGE WHILE OTHERS WILL BE LESS THAN THE AVERAGE.

HENCE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF AN UNUSUAL NATURE AND NO ACTION WILL BE TAKEN TO REPORT YOUR CLAIM TO THE CONGRESS FOR CONSIDERATION.