B-174245, FEB 25, 1972

B-174245, FEB 25, 1972

MILITARY PERSONNEL - TEMPORARY LODGING EXPENSES - REIMBURSEMENT DECISION ALLOWING REIMBURSEMENT OF TEMPORARY LODGING EXPENSES TO JAMES L. SISLER, USN, INCIDENT TO HIS CHANGE OF OFFICIAL DUTY STATION. THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE CORRECTLY STATED THAT A MEMBER IS NOT REQUIRED TO USE ALL LEAVE GRANTED PRIOR TO REPORTING TO HIS NEW DUTY STATION, UNLESS HE IS SPECIFICALLY DIRECTED NOT TO REPORT EARLIER THAN A CERTAIN DATE. B-128835, SEPTEMBER 4, 1956. SINCE MR. SISLER'S ORDERS CONTAINED NO SUCH RESTRICTION, HE IS CLEARLY ENTITLED TO PERSONAL LODGING EXPENSES. IT IS NOTED THAT CONCURRENT TRAVEL OF THE MEMBER'S DEPENDENTS WAS AUTHORIZED ONLY IF HOUSING WOULD BE AVAILABLE UPON THEIR ARRIVAL. HOWEVER, IN VIEW OF THE UNUSUAL CIRCUMSTANCES OF THIS CASE, OVER WHICH THE MEMBER HAD NO CONTROL, THE COMP. GEN. DOES NOT FEEL OBLIGED TO OBJECT TO TOTAL REIMBURSEMENT. ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT SUBJECT TO POSSIBLE DEDUCTIONS FOR AVAILABLE MESS AS REQUIRED BY THE APPLICABLE REGULATIONS.

TO NAVY MILITARY PAY SYSTEM:

YOUR LETTER DATED MARCH 30, 1971, FILE REFERENCE SC 7220, SER. 579, WITH ENCLOSURES, WHICH WAS FORWARDED HERE BY 3RD INDORSEMENT DATED OCTOBER 1, 1971, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTS AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE TO ABF1 JAMES L. SISLER, USN, 373 84 67, FOR THE PERIOD FEBRUARY 11 TO 28, 1971. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 71 -42.

STANDARD TRANSFER ORDER NO. 09-71, PREPARED JANUARY 18, 1971, DIRECTED MR. SISLER TO PROCEED FROM THE NAVAL AIR FACILITY, CHINA LAKE, CALIFORNIA, AND REPORT TO THE NAVAL STATION, KODIAK, ALASKA, NOT LATER THAN MARCH 16, 1971, FOR DUTY. THOSE ORDERS AUTHORIZED A DELAY OF 30 DAYS TO BE COUNTED AS LEAVE, TRANSPORTATION BY PRIVATELY OWNED VEHICLE, AND TRAVEL OF DEPENDENTS IN ACCORDANCE WITH MESSAGE DATED JANUARY 16, 1971, OF COMSEVENTEEN. IN THAT MESSAGE IT IS STATED, AMONG OTHER THINGS, THAT BY MESSAGE DATED JANUARY 15, 1971, ENTRY AND CONCURRENT TRAVEL OF DEPENDENTS TO KODIAK WAS DENIED DUE TO NONAVAILABILITY OF GOVERNMENT QUARTERS, THAT "ASSIGNED SPONSOR HAS ACQUIRED CIVILIAN HOUSING IN KODIAK TO BE AVAILABLE UPON ARRIVAL," AND THAT "SUBJECT TO ABOVE CONDITIONS" CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED.

PURSUANT TO THE ABOVE ORDER MR. SISLER AND HIS DEPENDENTS DEPARTED FROM CHINA LAKE ON JANUARY 29, 1971, BY PRIVATELY OWNED VEHICLE AND ARRIVED IN KODIAK ON FEBRUARY 11, 1971. ON DATE OF ARRIVAL AND UNTIL FEBRUARY 28, 1971, HE AND HIS DEPENDENTS OCCUPIED QUARTERS IN THE NAVY EXCHANGE GUEST HOUSE. IN THIS CONNECTION, THE HOUSING MANAGER, NAVAL STATION, KODIAK, REPORTED ON FEBRUARY 12, 1971, THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR ASSIGNMENT TO MR. SISLER AND HIS DEPENDENTS ON FEBRUARY 10, 1971, AND THAT GOVERNMENT QUARTERS WOULD BE AVAILABLE FOR ASSIGNMENT TO HIM ON OR ABOUT MARCH 1, 1971. ON MARCH 1, 1971, THE COMMANDING OFFICER, NAVAL STATION, KODIAK, CERTIFIED THAT HE HAD VERIFIED THE ABOVE INFORMATION AS CORRECT AND THAT ELIGIBILITY FOR THE TEMPORARY LODGING ALLOWANCE TERMINATED ON FEBRUARY 28, 1971.

IN SUPPORT OF HIS CLAIM FOR THE ALLOWANCE, MR. SISLER STATED IN A LETTER DATED AUGUST 12, 1971, AS FOLLOWS:

"2. I DEPARTED NAF CHINA LAKE, CALIFORNIA, ON 29 JANUARY 1971, FOR KODIAK, ALASKA, WITH THE UNDERSTANDING THAT I WOULD HAVE AN APARTMENT AWAITING ME ON 1 MARCH 1971 IN THE CITY OF KODIAK. UPON MY ARRIVAL IN TOK JUNCTION, ALASKA, I WAS INFORMED THAT THE ALASKA STATE FERRY SYSTEM WAS TERMINATING SERVICE FOR ABOUT 2 MONTHS WITH THE LAST SCHEDULED RUN TO KODIAK ON 9 FEBRUARY 1971. I CALLED THE FERRY SYSTEM AND CONFIRMED THE ABOVE INFORMATION. AT THIS POINT I DECIDED TO CATCH THE FERRY RATHER THAN SPEND THE ADDITIONAL TIME WITH FRIENDS AND RISK LEAVING MY VEHICLE AND TRAILER IN HOMER FOR TWO MONTHS OR MORE. I THEN PRESENTED THE PROBLEM TO COM17 AND WAS ADVISED THAT AN ON BASE HOUSE WOULD BE AVAILABLE ON 1 MARCH AND THAT ARRANGEMENTS WOULD BE MADE FOR GUEST HOUSING UPON ARRIVAL ON 10 FEBR. 1971.

"3. I WAS INFORMED OF THE EXACT DATE A HOUSE WOULD BE AVAILABLE, 1 MARCH 1971, BUT DUE TO THE ABOVE CIRCUMSTANCES IT WAS IMPOSSIBLE FOR ME TO ARRIVE ANY LATER THAN I DID. BECAUSE OF THIS I WAS FORCED TO CANCEL LEAVE WHICH WAS PLANNED FOR THIS PERIOD.

"4. MY EARLY ARRIVAL IN KODIAK WAS NOT DUE TO PERSONAL CHOICE."

IN YOUR LETTER OF MARCH 30, 1971, YOU POINT OUT THAT THE ENTRY APPROVAL AND CONCURRENT TRAVEL OF MR. SISLER'S DEPENDENTS TO HIS NEW STATION WAS AUTHORIZED SUBJECT TO THE CONDITION THAT CIVILIAN HOUSING WOULD BE AVAILABLE UPON ARRIVAL IN KODIAK, BUT DUE TO THE MEMBER'S EARLY ARRIVAL, THE HOUSE ARRANGED FOR BY HIS SPONSOR WAS NOT AVAILABLE FOR OCCUPANCY. THIS SITUATION, YOU SAY, FORCED MR. SISLER TO OBTAIN HOTEL-LIKE ACCOMMODATIONS AT THE NAVY EXCHANGE GUEST HOUSE FOR A PERIOD OF 18 DAYS. SINCE CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED BASED ON THE CONDITION STIPULATED IN THE ABOVE MESSAGE OF JANUARY 16, 1971, THAT CIVILIAN HOUSING BE AVAILABLE ON ARRIVAL YOU ASK WHETHER THE MEMBER IS ENTITLED TO THE TEMPORARY LODGING ALLOWANCE WHILE OCCUPYING THE MENTIONED GUEST HOUSE.

IN ITS 3RD INDORSEMENT OF OCTOBER 1, 1971, COMMENTING ON THIS CASE THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE CITES OUR DECISIONS B-124581, JANUARY 30, 1956, AND B-128835, SEPTEMBER 4, 1956, AS HOLDING THAT A MEMBER IS NOT REQUIRED TO USE ALL LEAVE GRANTED PRIOR TO REPORTING AT HIS NEW DUTY STATION.

TEMPORARY LODGING ALLOWANCES ARE PAYABLE TO ELIGIBLE MEMBERS UNDER THE AUTHORITY OF 37 U.S.C. 405, WHICH 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.

IMPLEMENTING REGULATIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M4303-1 OF THOSE REGULATIONS PROVIDES 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.

SUBPARAGRAPH M4303-3D PROVIDES FOR PAYMENT OF TEMPORARY LODGING ALLOWANCE AT A REDUCED RATE WHEN HOTEL-LIKE ACCOMMODATIONS ARE OCCUPIED IN GUEST HOUSES, EXCHANGE HOTELS, OR SIMILAR TRANSIENT FACILITIES UNDER THE JURISDICTION OF THE GOVERNMENT AND OPERATED WITH NONAPPROPRIATED FUNDS. SUBPARAGRAPH M4303-3E PROVIDES FOR REDUCING THE TEMPORARY LODGING ALLOWANCE FOR EACH MEAL AVAILABLE IN A GOVERNMENT MESS TO BOTH THE MEMBER AND HIS DEPENDENTS.

AS INDICATED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, IT HAS BEEN OUR VIEW THAT, GENERALLY, A MEMBER WHO IS AUTHORIZED LEAVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION AND WHO IS DIRECTED TO REPORT NOT LATER THAN A DESIGNATED DATE, IS NOT REQUIRED TO USE ALL OF THE LEAVE AUTHORIZED BEFORE SO REPORTING UNLESS HE IS DIRECTED TO REPORT NOT EARLIER THAN A SPECIFIED DATE.

IN VIEW OF THE STATEMENT THAT ARRANGEMENTS HAD BEEN MADE FOR CIVILIAN HOUSING TO BE AVAILABLE ON MARCH 1, 1971, IT WOULD SEEM THAT MR. SISLER'S ORDERS SHOULD HAVE DIRECTED THAT HE REPORT AT KODIAK NOT EARLIER THAN THAT DATE. IN THE ABSENCE OF SUCH A PROVISION OR OTHER RESTRICTION COORDINATING HIS REPORTING WITH THE AVAILABILITY OF HOUSING, HOWEVER, IT APPEARS THAT UNDER THE TERMS OF HIS ORDERS, HE WAS NOT PERSONALLY RESTRICTED IN REPORTING AT HIS NEW STATION BEFORE USING THE AUTHORIZED LEAVE.

WITH RESPECT TO THE EARLY ARRIVAL OF HIS DEPENDENTS AT KODIAK, AS YOU INDICATE, THEIR CONCURRENT TRAVEL WITH THE MEMBER WAS AUTHORIZED SUBJECT TO THE CONDITION THAT CIVILIAN HOUSING BE AVAILABLE UPON THEIR ARRIVAL AT KODIAK. UNDER A LITERAL APPLICATION OF THAT RESTRICTION, THE CONCURRENT TRAVEL OF HIS DEPENDENTS TO HIS STATION WAS UNAUTHORIZED SINCE SUCH HOUSING WAS NOT AVAILABLE UPON THEIR ARRIVAL.

HOWEVER, HOUSING WOULD HAVE BEEN AVAILABLE IF THEY HAD NOT REPORTED UNTIL THE EXPIRATION OF THE MEMBER'S LEAVE AS HE HAD EXPECTED, AND IN VIEW OF THE UNUSUAL CIRCUMSTANCES WHICH PROMPTED HIS EARLY REPORTING WITH HIS DEPENDENTS AT KODIAK - CIRCUMSTANCES OVER WHICH HE HAD NO CONTROL - WE ARE OF THE OPINION THAT, WHILE THE MATTER IS NOT FREE FROM DOUBT, WE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF TEMPORARY LODGING ALLOWANCE AS OTHERWISE AUTHORIZED FOR THE OCCUPANCY OF THE GUEST HOUSE BY THE MEMBER AND HIS DEPENDENTS DURING THE PERIOD INVOLVED.

IT IS NOTED THAT NO VOUCHER HAS BEEN SUBMITTED COVERING THE PROPOSED PAYMENT AND THERE IS NO SHOWING AS TO THE AVAILABILITY OF A GOVERNMENT MESS TO MR. SISLER AND HIS DEPENDENTS DURING THE PERIOD INVOLVED. IN THIS CONNECTION, WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT A MESS PROBABLY WAS AVAILABLE TO THEM DURING SUCH PERIOD. THIS FACT SHOULD BE VERIFIED AND APPROPRIATE DEDUCTIONS MADE AS REQUIRED BY THE APPLICABLE REGULATIONS.

ACCORDINGLY, PAYMENT IS AUTHORIZED ON THE BASIS ABOVE INDICATED. THE PAPERS WHICH ACCOMPANIED YOUR LETTER, TOGETHER WITH A COPY OF THE ORDER OF JANUARY 18, 1971, ARE ENCLOSED.