B-174495, MAR 7, 1972

B-174495, MAR 7, 1972

MILITARY PERSONNEL - AVAILABILITY OF GOVERNMENT QUARTERS - PER DIEM - REIMBURSEMENT - RIGHT OF APPEAL DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF LT. COL. HARRY K. NEAL FOR ADDITIONAL PER DIEM ON THE BASIS OF NON-AVAILABILITY OF ADEQUATE QUARTERS WHILE ON FULL TIME TRAINING DUTY AT THE USAR SCHOOL, SANDIA BASE, N.M. CIRCULAR NO. 210-2, ISSUED BY HEADQUARTERS, FOURTH ARMY, PROVIDES FOR STANDARDS OF ADEQUACY OF QUARTERS SIMILAR TO THOSE CONTAINED IN AR 210 16, WITH THE EXCEPTION THAT AN INSTALLATION OR MAJOR COMMANDER MAY REQUIRE DOUBLE OCCUPANCY OF ONE SLEEPING/LIVING ROOM WHERE TRAINING REQUIREMENTS DICTATE AND NO ALTERNATIVE BILLETING ARRANGEMENT EXISTS. IT IS THE OPINION OF THE COMP. GEN. THAT CIRCULAR NO. 210-2 GOVERNS THE DETERMINATION OF ADEQUACY FOR PAYMENT OF PER DIEM. FURTHER, IT HAS CONSISTENTLY BEEN THE POLICY OF THE DEPARTMENT OF DEFENSE AND THE VIEW OF THE COMP. GEN. THAT GOVERNMENT QUARTERS WILL BE UTILIZED TO THE MAXIMUM WHENEVER AVAILABLE AND PRACTICABLE. 45 COMP. GEN. 499 (1966). IN THE ABSENCE OF A STATEMENT OF NONAVAILABILITY OF GOVERNMENT QUARTERS PURSUANT TO PARAGRAPH 4451, JTR, IT MUST BE ASSUMED THAT SUCH QUARTERS WERE AVAILABLE FOR PURPOSES OF PER DIEM PAYMENT. ACCORDINGLY, THE PRIOR DISALLOWANCE MUST BE SUSTAINED. IT SHOULD BE NOTED THAT UNDER THE PROVISIONS OF 31 U.S.C. 74, THE DECISIONS OF THE COMP. GEN. ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF GOVERNMENT. HOWEVER, THE COURT OF CLAIMS AND DISTRICT COURTS MAY CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346(A)(2), 1491, 2401, AND 2501.

TO LIEUTENANT COLONEL HARRY K. NEAL:

FURTHER REFERENCE IS MADE TO YOUR LETTER IN WHICH YOU REQUEST RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM ON THE BASIS OF NON- AVAILABILITY OF ADEQUATE QUARTERS WHILE YOU WERE ON FULL TIME TRAINING DUTY AT THE USAR SCHOOL, SANDIA BASE, NEW MEXICO, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED AUGUST 17, 1971.

THE RECORD INDICATES THAT YOU WERE ORDERED TO FULL TIME TRAINING DUTY UNDER THE AUTHORITY OF 32 U.S.C. 505 BY SPECIAL ORDERS DATED JUNE 3, 1970, AT THE USAR SCHOOL, SANDIA BASE, NEW MEXICO, FOR THE PERIOD JUNE 21 THROUGH JULY 4, 1970.

THE RECORD ALSO INDICATES THAT ON YOUR ARRIVAL AT SANDIA BASE YOU WERE INFORMED THAT DOUBLE OCCUPANCY OF SLEEPING/LIVING QUARTERS WOULD BE REQUIRED. IT APPEARS THAT YOU THEN REQUESTED A CERTIFICATE OF NON AVAILABILITY OF ADEQUATE QUARTERS BE ISSUED, SINCE YOU BELIEVED THAT YOU WERE ENTITLED TO SINGLE SLEEPING QUARTERS. YOUR REQUEST WAS REFUSED, WHEREUPON YOU SECURED ACCOMMODATIONS OFF-BASE. YOU NOW ARE CLAIMING ADDITIONAL PER DIEM AS A RESULT OF HAVING SECURED QUARTERS OFF BASE, SINCE IN YOUR OPINION ADEQUATE QUARTERS WERE NOT MADE AVAILABLE AT SANDIA BASE.

OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM ON THE BASIS THAT MILITARY NECESSITY REQUIRED A GENERAL POLICY BASED ON AVAILABLE SPACE TO LIMIT OFFICERS ON TRAINING DUTY TO SHARED LIVING QUARTERS.

SUBSECTION 404(A)(4) OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES WHEN AWAY FROM HOME TO PERFORM DUTY AS A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD. PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY PROVIDES THAT THE TERM "GOVERNMENT QUARTERS" MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY THE MEMBER CONCERNED.

FOR TRAVEL AND TEMPORARY DUTY PERFORMED IN THE UNITED STATES THE JOINT TRAVEL REGULATIONS PRESCRIBE IN PARAGRAPH M4205 A PER DIEM ALLOWANCE, A PORTION OF WHICH IS PROVIDED TO REIMBURSE MEMBERS OF THE UNIFORMED SERVICES FOR EXPENSES INCURRED FOR QUARTERS WHILE ON TEMPORARY DUTY OR AWAY FROM HOME (SEE PARAGRAPH M6001).

THE TABLE OF PER DIEM RATES WITHIN THE UNITED STATES IN PARAGRAPH M4205 AUTHORIZES A PER DIEM ALLOWANCE OF $25 FOR TEMPORARY DUTY WHEN NEITHER GOVERNMENT QUARTERS NOR AN OPEN MESS ARE AVAILABLE; $11.80 A DAY WHEN GOVERNMENT QUARTERS ARE AVAILABLE AND AN OPEN MESS IS NOT AVAILABLE; AND $8 A DAY WHEN GOVERNMENT QUARTERS AND AN OPEN MESS ARE AVAILABLE. NOTE V TO THAT TABLE PROVIDES THAT FOR OFFICERS IN PAY GRADES 0-7, 0-8, 0-9 AND 0 -10, GOVERNMENT QUARTERS AND MESSING FACILITIES WILL NOT BE CONSIDERED AS AVAILABLE UNLESS ACTUALLY UTILIZED. NO SUCH PROVISION IS CONTAINED THEREIN FOR OFFICERS BELOW GRADE 0-7. FOR THE MEANING OF THE TERMS "AVAILABLE" AND "NOT AVAILABLE" AS USED IN THAT TABLE, NOTE S TO THAT TABLE REFERS TO THE DEFINITIONS IN PARAGRAPH M4451-2.

INSOFAR AS IS HERE PERTINENT, PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT AVAILABLE GOVERNMENT QUARTERS DESIGNATED AS ADEQUATE BY THE APPROPRIATE AUTHORITY OF THE SERVICES CONCERNED WILL BE USED BY MEMBERS IN A TRAVEL STATUS, AND THAT, IN THE ABSENCE OF A STATEMENT THAT UTILIZATION OF EXISTING GOVERNMENT FACILITIES WAS IMPRACTICABLE, IT WILL BE ASSUMED FOR PURPOSES OF PAYMENT OF PER DIEM ALLOWANCE THAT ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE.

SINCE ONLY GENERAL OFFICERS ARE EXEMPTED FROM THE REQUIREMENT OF UTILIZING AVAILABLE GOVERNMENT QUARTERS FOR THE PURPOSE OF PAYMENT OF A PER DIEM ALLOWANCE, WE MUST ASSUME THAT ADEQUATE QUARTERS WERE AVAILABLE TO YOU IN THE ABSENCE OF THE STATEMENT OF NON-AVAILABILITY OF GOVERNMENT QUARTERS REQUIRED BY THE JOINT TRAVEL REGULATIONS. THERE IS NOTHING IN THE JOINT TRAVEL REGULATIONS TO SUGGEST THAT THE REGULATIONS (AR 210-16) GOVERNING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ALSO GOVERNS THE PAYMENT OF PER DIEM ALLOWANCES. ON THE CONTRARY, IT WILL BE NOTED THAT THE JOINT TRAVEL REGULATIONS GOVERNING TRAVEL ALLOWANCES EXEMPT ONLY GENERAL OFFICERS FROM OCCUPYING AVAILABLE GOVERNMENT QUARTERS, WHEREAS THE PROVISIONS OF 37 U.S.C. 403(B) AND IMPLEMENTING REGULATIONS CONTAINED IN AR 210-16, WHICH RELATES TO OCCUPANCY OF QUARTERS AT A PERMANENT STATION PERMIT BACHELOR OFFICERS IN PAY GRADES ABOVE GRADE 0-3 TO ELECT NOT TO OCCUPY ADEQUATE QUARTERS ASSIGNED TO THEM AND RECEIVE THE BASIC ALLOWANCE FOR QUARTERS.

CIRCULAR NO. 210-2, DATED SEPTEMBER 30, 1969, ISSUED BY HEADQUARTERS, FOURTH UNITED STATES ARMY, SETS FORTH THE STANDARDS OF ADEQUACY OF BACHELOR HOUSING FOR RESERVE COMPONENT PERSONNEL CALLED TO ACTIVE DUTY FOR TRAINING AND FOR TRAINING OF LESS THAN 20 WEEKS. THAT CIRCULAR PROVIDES THAT THE STANDARDS OF ADEQUACY OF GOVERNMENT QUARTERS FOR ACTIVE ARMY, REGULAR ARMY, OR RESERVE COMPONENT PERSONNEL ON EXTENDED ACTIVE DUTY FOR 20 WEEKS ARE PROVIDED FOR IN AR 210-16. GENERALLY, THE STANDARDS OF ADEQUACY PROVIDED FOR IN THAT CIRCULAR ARE SIMILAR TO THOSE LISTED IN ARMY REGULATION 210-16, WITH THE EXCEPTION THAT AN INSTALLATION OR MAJOR COMMANDER MAY REQUIRE DOUBLE OCCUPANCY OF ONE SLEEPING/LIVING ROOM WHEN TRAINING REQUIREMENTS DICTATE AND NO ALTERNATIVE BILLETING ARRANGEMENT EXISTS. IN OUR VIEW THE REGULATIONS CONTAINED IN CIRCULAR 210-2 GOVERN THE DETERMINATION OF ADEQUACY FOR PURPOSES OF PAYMENT OF PER DIEM ALLOWANCES RATHER THAN THE REGULATIONS CONTAINED IN AR 210-16.

THE RECORD INDICATES THAT A MEETING WAS HELD AT SANDIA BASE ON DECEMBER 17, 1969, AT WHICH IT WAS DETERMINED THAT THOSE ATTENDING THE VARIOUS SCHOOLS WOULD BE HOUSED IN GOVERNMENT QUARTERS AND DOUBLE OCCUPANCY WOULD BE REQUIRED.

UNDER THE REGULATIONS THE RIGHT TO THE QUARTERS PORTION OF THE PER DIEM ALLOWANCE IS GOVERNED BY THE NON-AVAILABILITY OF GOVERNMENT QUARTERS. SEE PARAGRAPH M4451-1 AND 2, JOINT TRAVEL REGULATIONS. THE ASSIGNMENT OF PUBLIC QUARTERS TO A MEMBER OF THE ARMED SERVICES FOR PURPOSES OF PAYMENT OF A PER DIEM ALLOWANCE IS PRIMARILY AN ADMINISTRATIVE MATTER AND THE DETERMINATION BY THE INSTALLATION COMMANDER WITH RESPECT TO THE AVAILABILITY OF ADEQUATE QUARTERS NORMALLY IS CONCLUSIVE OF THE RIGHT OF THE INDIVIDUAL CONCERNED. THE ADMINISTRATIVE REPORT OF THE BILLETING OFFICER AT SANDIA BASE STATES THAT HE DID NOT ISSUE NOR AUTHORIZE THE ISSUANCE OF CERTIFICATES OF NON AVAILABILITY TO ANY OF YOUR CLASSMATES.

IT HAS BEEN THE CONSISTENT POLICY OF THE DEPARTMENT OF DEFENSE TO REQUIRE THAT, WHEN PRACTICABLE, GOVERNMENT QUARTERS WILL BE UTILIZED WHEN AVAILABLE AND IT HAS BEEN THE VIEW OF OUR OFFICE THAT, EXCEPT AS IT MAY OTHERWISE SPECIFICALLY PROVIDE, THE CONGRESS INTENDS THAT THE PUBLIC QUARTERS WHICH IT PROVIDES FOR THE UNIFORMED SERVICES MUST BE USED TO THE MAXIMUM EXTENT PRACTICABLE. 44 COMP. GEN. 626 (1965) AND 45 COMP. GEN. 499 (1966).

IN THE ABSENCE OF THE CERTIFICATE OF NON-AVAILABILITY OF GOVERNMENT QUARTERS REQUIRED BY PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS, PAYMENT OF THE QUARTERS PORTION OF THE PER DIEM ALLOWANCE IS NOT AUTHORIZED. ACCORDINGLY THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO WHAT APPEAL IS OPEN TO YOU, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 74 THE DECISIONS OF THE COMPTROLLER GENERAL ON CLAIMS SUCH AS YOURS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346(A)(2), 1491, 2401 AND 2501.