B-174275, FEB 18, 1972, 51 COMP GEN 513

B-174275, FEB 18, 1972, 51 COMP GEN 513

QUARTERS ALLOWANCE - AVAILABILITY OF QUARTERS - ASSIGNMENT DELAYED A NAVY ENSIGN, WITHOUT DEPENDENTS, WHO WHILE ON TEMPORARY DUTY IN CONNECTION WITH FITTING OUT A VESSEL WAS NOT ASSIGNED GOVERNMENT BACHELOR QUARTERS FOR MORE THAN 2 MONTHS AFTER REPORTING FOR DUTY, ALTHOUGH HE WAS AWARE OF THEIR AVAILABILITY WITHIN A FEW DAYS AFTER HIS ARRIVAL, AND WHO FOR THE PERIOD PRIOR TO QUARTERS ASSIGNMENT WAS CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS (BAQ) UNDER 37 U.S.C. 403(F), AND RESIDED, WITHOUT AUTHORITY, IN THE CIVILIAN COMMUNITY AND WAS PAID PER DIEM, IS NOT CONSIDERED TO HAVE BEEN INVOLUNTARILY ASSIGNED TO QUARTERS OCCUPANCY SINCE HE WAS AWARE OF THE AVAILABILITY OF QUARTERS AND THE ASSIGNMENT POLICY IN EFFECT AT THE COMMAND AND, THEREFORE, HIS RESIDENCY IN THE CIVILIAN COMMUNITY WAS FOR HIS OWN CONVENIENCE. ALTHOUGH, THE PAYMENT OF BAQ PRIOR TO THE ASSIGNMENT OF QUARTERS WILL NOT BE QUESTIONED, THERE IS NO AUTHORITY FOR FURTHER PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS.

TO LIEUTENANT T. A. KELLY, DEPARTMENT OF THE NAVY, FEBRUARY 18, 1972:

BY LETTER DATED OCTOBER 4, 1971, THE DIRECTOR, NAVY MILITARY PAY SYSTEM, TRANSMITTED YOUR LETTER OF MAY 4, 1971, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF ENSIGN DOYLE L. ARNOLD, SC, USNR, TO BASIC ALLOWANCE FOR QUARTERS (WITHOUT DEPENDENTS) IN THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED TO CONTROL NO. DO-N-1134 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

ENSIGN ARNOLD WAS DIRECTED BY BUREAU OF NAVAL PERSONNEL ORDER NO. 100737, DATED NOVEMBER 20, 1970, TO PROCEED, UPON COMPLETION OF TEMPORARY DUTY UNDER INSTRUCTION AT ATHENS, GEORGIA, AND WHEN DIRECTED ON OR ABOUT DECEMBER 17, 1970, TO COMMANDER, EIGHTH NAVAL DISTRICT, NEW ORLEANS, LOUISIANA, FOR TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. PAUL (DE-1080). THE ORDERS PROVIDED FOR FURTHER TEMPORARY DUTY, WHEN FURTHER DIRECTED, AT THE FIRST NAVAL DISTRICT, BOSTON, MASSACHUSETTS, AND TO REPORT ON BOARD THAT VESSEL FOR DUTY UPON ITS COMMISSION.

SECOND ENDORSEMENT BY COMMANDANT, EIGHTH NAVAL DISTRICT, DATED DECEMBER 29, 1970, TO THE ORDERS OF NOVEMBER 20, 1970, STATED THAT THE MEMBER REPORTED FOR TEMPORARY DUTY AT 1400 ON DECEMBER 29, 1970. IT IS STATED FURTHER THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE; HOWEVER, "QUARTERS WILL BE AVAILABLE IN THE NEAR FUTURE." THIRD ENDORSEMENT DATED DECEMBER 31, 1970, IT WAS STATED THAT GOVERNMENT QUARTERS WERE AVAILABLE AS OF 0900 DECEMBER 30, 1970. A FURTHER NOTATION (SAID TO HAVE BEEN TYPED ON MARCH 12, 1971), STATED THAT GOVERNMENT QUARTERS WERE ASSIGNED ON MARCH 12, 1971.

IN A LETTER DATED APRIL 26, 1971, ENSIGN ARNOLD PROTESTED THE ASSIGNMENT OF QUARTERS, CONTENDING THAT THE ASSIGNMENT WAS CONTRARY TO THE PROVISIONS OF PARAGRAPH F(5), ENCLOSURE (2) TO OFFICE OF THE CHIEF OF NAVAL OPERATIONS INSTRUCTION (OPNAVINST) 11012.2A DATED SEPTEMBER 28, 1967, WHICH HE QUOTED. THAT PARAGRAPH IS TO THE EFFECT THAT A MEMBER IN A TRAVEL STATUS ONCE AUTHORIZED TO RESIDE IN THE CIVILIAN COMMUNITY (WHILE ON TEMPORARY DUTY) SHALL NOT BE INVOLUNTARILY ASSIGNED TO OCCUPANCY OF NAVY BACHELOR QUARTERS DURING THAT TOUR OF DUTY EXCEPT FOR CAUSE. HE SAID FURTHER THAT THE ASSIGNMENT WAS DISADVANTAGEOUS TO THE GOVERNMENT IN THAT QUARTERS WERE LEASED ON AN AS REQUIRED BASIS AND IT COST MORE TO LEASE SUCH QUARTERS THAN TO PAY BASIC ALLOWANCE FOR QUARTERS.

IN YOUR REQUEST DATED MAY 4, 1971, YOU SAY THAT THE MEMBER WAS CREDITED BASIC ALLOWANCE FOR QUARTERS (BAQ) FROM DECEMBER 17, 1970, THROUGH MARCH 11, 1971, UNDER CONDITIONS WHERE GOVERNMENT QUARTERS WERE AVAILABLE BUT NOT ASSIGNED, CITING RULE 14, TABLE 3-2-3, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) AS AUTHORITY. CREDIT WAS TERMINATED AFTER THE DIRECTOR OF MILITARY PERSONNEL, EIGHTH NAVAL DISTRICT, WAS INFORMED ON MARCH 12, 1971, THAT ENTITLEMENT TO BAQ (PCS) WAS GOVERNED BY THE ASSIGNMENT OF GOVERNMENT QUARTERS.

YOU CITE A MESSAGE OF APRIL 1971 FROM THE CHIEF OF NAVAL PERSONNEL AS INDICATING THAT GOVERNMENT QUARTERS COULD NOT BE AVAILABLE AND YET NOT BE ASSIGNED AND YOU QUESTION WHETHER CREDIT OF BAQ THROUGH MARCH 11, 1971, WAS AUTHORIZED. YOU THEREFORE ASK WHETHER THE MEMBER IS ENTITLED TO ANY CREDIT FOR BASIC ALLOWANCE FOR QUARTERS, BASED ON THE PROVISIONS OF RULE 14, TABLE 3-2-3, DODPM AND NAVY COMPTROLLER NOTICE 7220, DATED MAY 15, 1969, OR WHETHER SUCH ALLOWANCE SHOULD BE CREDITED FROM MARCH 12, 1971, BASED ON THE PROVISIONS OF OPNAVINST 11012.2A, DATED SEPTEMBER 28, 1967. YOU INDICATE THAT THE MEMBER WAS PAID PER DIEM AT $11.80 COMMENCING DECEMBER 30, 1970, WHICH, IN ACCORDANCE WITH PARAGRAPH M4205-5, TABLE ITEM D(2)(A) AND FOOTNOTES, JOINT TRAVEL REGULATIONS, IS AUTHORIZED FOR OFFICERS ON TEMPORARY DUTY AT AN INSTALLATION WHERE GOVERNMENT QUARTERS ARE AVAILABLE AND GOVERNMENT MESS IS NOT AVAILABLE.

IN A LETTER DATED JUNE 4, 1971, THE DIRECTOR, NAVY MILITARY PAY SYSTEM, ADVISED THE CHIEF OF NAVAL OPERATIONS THAT, UNDER APPLICABLE REGULATIONS, IT IS THE ASSIGNMENT TO RATHER THAN THE AVAILABILITY OF GOVERNMENT QUARTERS WHICH IS THE GOVERNING FACTOR INSOFAR AS THE OFFICER'S BAQ ENTITLEMENT IS CONCERNED PRIOR TO MARCH 12, 1971, BUT HIS ENTITLEMENT THEREAFTER WAS CONTINGENT ON WHETHER A VALID ASSIGNMENT TO QUARTERS WAS MADE.

BY SECOND ENDORSEMENT TO THAT LETTER, THE COMMANDANT, EIGHTH NAVAL DISTRICT, INDICATES THAT IT WAS THOUGHT AT THAT COMMAND THAT AVAILABILITY AND ASSIGNMENT WERE THE SAME AND THEREFORE NO ASSIGNMENT WAS MADE OF AVAILABLE QUARTERS UNTIL MARCH 12, 1971, AT WHICH TIME IT WAS LEARNED THAT QUARTERS MUST BE ASSIGNED TO PRECLUDE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. HE SAYS, HOWEVER, THAT THE MEMBER WAS TOLD ON REPORTING THAT ADEQUATE BACHELOR QUARTERS WOULD BE AVAILABLE WITHIN THE NEXT FEW DAYS AND BECAUSE THE MEMBER KNEW ABOUT THE AVAILABILITY, HIS DECISION TO MOVE ASHORE WAS HIS OWN. THE COMMANDANT FURTHER INDICATES THAT THE MEMBER WAS NOT IN FACT INVOLUNTARILY ASSIGNED TO OCCUPANCY OF GOVERNMENT QUARTERS ON MARCH 12, 1971, SINCE HE HAD NOT BEEN AUTHORIZED TO OBTAIN CIVILIAN QUARTERS.

BY THIRD ENDORSEMENT THE CHIEF OF NAVAL PERSONNEL CITED 48 COMP. GEN. 216 (1968) AS APPARENTLY BEING APPLICABLE TO THIS CASE. THIS DECISION STATES THAT QUARTERS, ALTHOUGH AVAILABLE, MUST BE ADMINISTRATIVELY ASSIGNED BY THE LOCAL COMMANDER OR OTHER RESPONSIBLE OFFICIAL PURSUANT TO SERVICE DIRECTIVES BEFORE THE ENTITLEMENT TO BAQ IS AFFECTED. HE SAYS THAT THE QUARTERS IN QUESTION IN THIS CASE WERE LEASED TO BE AVAILABLE TO MEMBERS ASSIGNED ON TEMPORARY DUTY IN CONNECTION WITH THE CONSTRUCTION OF NEW SHIPS IN ORDER TO REDUCE PER DIEM COSTS. THEY WERE THEREFORE "AVAILABLE" ON AN "AS REQUIRED" BASIS FOR THE PURPOSE OF REDUCING PER DIEM.

THE CHIEF OF NAVAL PERSONNEL SAYS FURTHER THAT IT WAS UNDERSTOOD THAT THE LEASED QUARTERS WERE ORIGINALLY NOT ASSIGNED TO SINGLE OFFICERS WHO DID NOT DESIRE THE QUARTERS, BECAUSE THE LEASE COSTS EXCEEDED THE BAQ. SINCE, HE SAYS, THE QUARTERS WERE ASSIGNED ON MARCH 12, 1971, ONLY TO SATISFY THE REQUIREMENTS OF THE DODPM TO PRECLUDE PAYMENT OF BAQ, IT IS CONSIDERED THAT SIGNIFICANT CAUSE HAD NOT BEEN SHOWN TO INVOLUNTARILY ASSIGNED THE QUARTERS AS REQUIRED BY THE PROVISIONS OF OPNAVINST 11012.2A. THEREFORE RECOMMENDS PAYMENT OF THE CLAIM.

SECTION 403(F) OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER WITHOUT DEPENDENTS WHO IS IN PAY GRADE E-4 (4 OR MORE YEARS' SERVICE), OR ABOVE, IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY ENROUTE OR PROCEED TIME, WHEN HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES. SUBSECTION (G) OF SECTION 403, PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF SECTION 403.

SECTION 403 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, AS AMENDED (INCLUDING EXECUTIVE ORDER NO. 11511, FEBRUARY 27, 1970, 35 F.R. 3877), ISSUED UNDER THAT AUTHORITY, PROVIDES IN PERTINENT PART THAT ANY QUARTERS OR HOUSING FACILITY UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES "IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES *** (B) BY A MEMBER WITHOUT DEPENDENTS *** SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES," WITH EXCEPTIONS NOT HERE PERTINENT.

PARAGRAPH 30212, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), PROMULGATED PURSUANT TO SECTION 407 OF THE EXECUTIVE ORDER, PROVIDES THAT THE BASE OR INSTALLATION COMMANDER ASSIGNS AND TERMINATES ASSIGNMENT OF QUARTERS. HE ALSO DETERMINES WHETHER QUARTERS ARE "ADEQUATE" AND "SUITABLE" FOR ASSIGNMENT. RULE 14, TABLE 3-2 -3 OF THAT MANUAL, PROVIDES THAT WHEN AN ELIGIBLE MEMBER WITHOUT DEPENDENTS IS IN A TRAVEL STATUS ON PERMANENT CHANGE OF STATION, BASIC ALLOWANCE FOR QUARTERS DOES NOT ACCRUE IF HE IS ASSIGNED QUARTERS, OR OCCUPIES TRANSIENT QUARTERS FOR ANY PERIOD IN EXCESS OF 30 DAYS.

IMPLEMENTING NAVY DEPARTMENT INSTRUCTIONS, CONTAINED IN OFFICE OF THE CHIEF OF NAVAL OPERATIONS INSTRUCTION (OPNAVINST) 11012.2A, DATED SEPTEMBER 28, 1967, PROVIDE IN ENCLOSURE (2) THEREOF, THAT IN ACCORDANCE WITH THE PERTINENT EXECUTIVE ORDER, COMMANDING OFFICERS ARE LEGALLY REQUIRED TO ASSIGN ALL AVAILABLE ADEQUATE NAVY BACHELOR QUARTERS PROMPTLY TO ELIGIBLE PERSONNEL. QUARTERS DETERMINED TO BE ADEQUATE SHALL BE FULLY UTILIZED AT NORMAL CAPACITIES. AS A POLICY MATTER, THERE IS NO REQUIREMENT THAT MEMBERS WITHOUT DEPENDENTS PERMANENTLY ASSIGNED, OR MEMBERS IN A TRAVEL STATUS, RESIDE IN NAVY BACHELOR QUARTERS EXCEPT TO FULLY UTILIZE EXISTING ADEQUATE ACCOMMODATIONS OR AS DICTATED BY MILITARY NECESSITY.

PARAGRAPH D(9) OF ENCLOSURE (2) PROVIDES THAT COMMANDING OFFICERS SHALL ADVISE IN WRITING EACH NEWLY ASSIGNED OFFICER WHETHER ADEQUATE ACCOMMODATIONS WILL BE AVAILABLE FOR IMMEDIATE OCCUPANCY AND INDICATE WHETHER EITHER INVOLUNTARY ASSIGNMENT WILL BE MADE TO ADEQUATE QUARTERS; ADEQUATE (OR INADEQUATE) ACCOMMODATIONS WILL BE MADE AVAILABLE ON AN OPTIONAL BASIS, OR BOQ ACCOMMODATIONS WILL NOT BE AVAILABLE DURING HIS TOUR OF DUTY. PARAGRAPH F(5) OF THAT ENCLOSURE, AS QUOTED IN PART BY THE MEMBER, PROVIDES THAT, EXCEPT FOR CAUSE, A MEMBER WITHOUT DEPENDENTS AND IN A TRAVEL STATUS, ONCE AUTHORIZED TO RESIDE IN THE CIVILIAN COMMUNITY SHALL NOT BE INVOLUNTARILY ASSIGNED TO BACHELOR QUARTERS DURING HIS TOUR OF DUTY IN THE SAME AREA. IT PROVIDES FURTHER THAT TO FULLY UTILIZE BACHELOR QUARTERS WHICH BECOME AVAILABLE, THE COMMANDING OFFICER SHALL MAKE ASSIGNMENTS THERETO FROM AMONG ELIGIBLE PERSONNEL NEWLY REPORTING, BEFORE A COMMITMENT FOR CIVILIAN COMMUNITY HOUSING IS MADE BY SUCH INDIVIDUAL.

UNDER THE PROVISIONS OF 37 U.S.C. 403(F) AS AMENDED, A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHILE IN A PERMANENT CHANGE-OF-STATION TRAVEL STATUS "WHEN HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES." HOWEVER, THE LAW OBVIOUSLY DOES NOT CONTEMPLATE THE PAYMENT OF A QUARTERS ALLOWANCE TO AN OFFICER WITHOUT DEPENDENTS, IN GRADE O-1, WHO IS ASSIGNED ADEQUATE GOVERNMENT QUARTERS.

WE HAVE HELD THAT THE ASSIGNMENT OF PUBLIC QUARTERS TO MEMBERS, AND THEIR DEPENDENTS, IF WITH DEPENDENTS, IS PRIMARILY AN ADMINISTRATIVE MATTER. COMP. GEN. 561 (1960); 48 ID. 216 (1968). THE MERE AVAILABILITY OF QUARTERS TO AN OFFICER WHICH COULD HAVE BEEN ASSIGNED TO HIM DOES NOT DEFEAT THE RIGHT OF THAT OFFICER NOT ASSIGNED TO SUCH QUARTERS TO BASIC ALLOWANCE FOR QUARTERS. 48 ID. 216. HOWEVER, UNDER THE PERTINENT STATUTORY PROVISIONS, CLAIMS FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ARE FOR DETERMINATION ON THE BASIS OF THE FACTS APPEARING IN THE CASE RATHER THAN A SPECIFIC ADMINISTRATIVE AUTHORIZATION OR CERTIFICATION THAT IS CONTRARY TO THE ACTUAL FACTS. 39 ID. 561; 48 ID. 216.

IT WOULD SEEM FROM THE INFORMATION IN THE CASE THAT THROUGH AN ERROR IN INTERPRETATION BY THE EIGHTH NAVAL DISTRICT COMMAND OF THE DISTINCTION BETWEEN "AVAILABILITY" OF QUARTERS FOR PER DIEM PURPOSES AND "ASSIGNMENT" OF QUARTERS FOR BASIC ALLOWANCE FOR QUARTERS PURPOSES, ENSIGN ARNOLD'S ORDERS WERE ENDORSED ON DECEMBER 31, 1970, TO READ THAT QUARTERS WERE AVAILABLE ON DECEMBER 30, 1970, WHEN HE SHOULD HAVE BEEN ASSIGNED QUARTERS AND HIS ORDERS ENDORSED ACCORDINGLY.

IN HIS STATEMENT, THE COMMANDANT, EIGHTH NAVAL DISTRICT, SAYS THAT THE MEMBER WAS ADVISED WHEN HE REPORTED ABOARD THAT COMMAND ON DECEMBER 29, 1960, THAT ADEQUATE BACHELOR HOUSING (LEASED QUARTERS) WOULD BE AVAILABLE WITHIN THE NEXT FEW DAYS AND THERE IS NOTHING TO INDICATE THAT HE WAS AUTHORIZED TO RESIDE IN THE CIVILIAN COMMUNITY. THE RECORD SHOWS THAT QUARTERS WERE MADE AVAILABLE ON DECEMBER 30, 1970. THE COMMANDANT CONTENDS THAT ENSIGN ARNOLD KNEW AND UNDERSTOOD THAT GOVERNMENT QUARTERS WOULD BE AVAILABLE TO HIM IN A FEW DAYS. THIS IS SUBSTANTIATED BY THE FACT THAT COMMENCING DECEMBER 30, 1970, THE MEMBER WAS PAID PER DIEM FOR TEMPORARY DUTY ON THE BASIS THAT GOVERNMENT QUARTERS WERE AVAILABLE. THE COMMANDANT THEREFORE CONTENDS FURTHER THAT IT MAY NOT BE SAID THAT THE MEMBER WAS IN FACT INVOLUNTARILY ASSIGNED TO OCCUPANCY OF QUARTERS AND THAT THE DECISION TO MOVE ASHORE WAS THE SOLE DECISION OF THE MEMBER.

IT SEEMS REASONABLY CLEAR THAT ADEQUATE QUARTERS WERE MADE AVAILABLE TO ENSIGN ARNOLD ON OR ABOUT DECEMBER 30, 1970, AND HE WAS AWARE OF THEIR AVAILABILITY. ALSO, IN VIEW OF THE ASSIGNMENT POLICY IN EFFECT AT THAT COMMAND OF WHICH PRESUMABLY HE WAS AWARE, HE WAS NOT OFFICIALLY AUTHORIZED TO RESIDE IN THE CIVILIAN COMMUNITY AND WE CONCUR WITH THE VIEW OF THE COMMANDANT THAT THE MEMBER MAINTAINED A RESIDENCE IN THE CIVILIAN COMMUNITY FOR HIS OWN CONVENIENCE, 39 COMP. GEN. 561. HOWEVER, IN THE ABSENCE OF AN ASSIGNMENT OF QUARTERS, WE WILL NOT QUESTION THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD PRIOR TO MARCH 12, 1971. BUT, AFTER HE WAS ASSIGNED GOVERNMENT QUARTERS ON MARCH 12, 1971, THERE WAS NO AUTHORITY FOR THE FURTHER PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. ACCORDINGLY, PAYMENT OF ANY ADDITIONAL BASIC ALLOWANCE FOR QUARTERS IS NOT AUTHORIZED. THE ENCLOSURES RECEIVED WITH YOUR LETTER WILL BE RETAINED HERE.