B-175775, JUL 27, 1972

B-175775, JUL 27, 1972

MILITARY PERSONNEL - TEMPORARY LODGING ALLOWANCE - WAIVER OF COLLECTION ACTION - MERITORIOUS CLAIMS ACT DENIAL OF CLAIM BY MSG FRANCISCO G. VASQUEZ, USAF, FOR REFUND OF A TEMPORARY LODGING ALLOWANCE ORIGINALLY PAID HIM FOR THE PERIOD DECEMBER 24, 1969, TO JANUARY 29, 1970, BUT LATER RECOLLECTED BY THE AIR FORCE. WHILE THIS COLLECTION ACTION MAY HAVE BEEN SUITABLE FOR REMISSION BY THE SECRETARY OF THE AIR FORCE UNDER THE AUTHORITY OF 10 U.S.C. 9837(D), THAT PROVISION APPLIES ONLY IN THOSE SITUATIONS WHERE THE COLLECTION ACTION HAS NOT BEEN COMPLETED. IT MAY NOT BE USED TO AUTHORIZE A REIMBURSEMENT OF ANY FUNDS COLLECTED FROM THE MEMBER. FURTHER, THIS CLAIM DOES NOT INVOLVE SUCH QUESTIONS OF EQUITY OR LEGAL LIABILITY AS WOULD WARRANT ITS SUBMISSION TO CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.

TO MASTER SERGEANT FRANCISCO G. VASQUEZ:

REFERENCE IS MADE TO YOUR CLAIM FOR REFUND OF TEMPORARY LODGING ALLOWANCE PAID YOU FOR THE PERIOD DECEMBER 24, 1969, THROUGH JANUARY 29, 1970, AND SUBSEQUENTLY RECOVERED FROM YOU. THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR CLAIM HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 45 STAT. 413, 31 U.S.C. 236.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO ZWEIBRUCKEN AIR FORCE BASE, GERMANY, ON A PERMANENT CHANGE OF STATION AND REPORTED FOR DUTY ON DECEMBER 19, 1969, ACCOMPANIED BY YOUR WIFE AND CHILDREN. ADEQUATE GOVERNMENT HOUSING WAS NOT AVAILABLE FOR YOU AND YOUR FAMILY AT THAT TIME, NOR WERE THERE APPROPRIATE ACCOMMODATIONS AVAILABLE IN THE LOCAL ECONOMY. AS A RESULT, YOU WERE OFFERED TEMPORARY LODGING IN TRANSIENT QUARTERS AT THE AIR BASE.

ON DECEMBER 24, 1969, YOU WERE OFFERED AND ACCEPTED TEMPORARY QUARTERS IN BUILDING 41 OF THE BASE HOUSING AREA, WHERE YOU REMAINED UNTIL JANUARY 29, 1970, WHEN YOU MOVED INTO YOUR PERMANENT GOVERNMENT QUARTERS. ACCORDING TO THE RECORD IT WAS ADMINISTRATIVELY DETERMINED THAT BUILDING 41 QUARTERS, WHILE UNDER THE JURISDICTION OF THE GOVERNMENT, WERE OPERATED WITH NONAPPROPRIATED FUNDS. PURSUANT TO PARAGRAPH M4303-3D, JOINT TRAVEL REGULATIONS, IT WAS DETERMINED THAT YOU WERE ENTITLED TO RECEIVE A TEMPORARY LODGING ALLOWANCE OF $20 A DAY OR $740 FOR THE PERIOD OF YOUR TEMPORARY OCCUPANCY IN BUILDING 41.

IT WAS SUBSEQUENTLY DISCOVERED THAT THE BUILDING 41 QUARTERS WERE ACTUALLY GOVERNMENT QUARTERS OPERATED WITH APPROPRIATED FUNDS AND THAT THE ADMINISTRATIVE DETERMINATION ALLOWING YOU A TEMPORARY LODGING ALLOWANCE WAS ERRONEOUS. AS A RESULT, THE TLA RECEIVED BY YOU FOR THE PERIOD OF DECEMBER 24, 1969, THROUGH JANUARY 29, 1970, WAS COLLECTED FROM YOUR PAY ACCOUNT IN MONTHLY INSTALLMENTS IN THE MONTHS OF SEPTEMBER, OCTOBER AND NOVEMBER 1970.

YOU SAY THAT FOUR OTHER INDIVIDUALS WHO WERE PAID TLA UNDER CIRCUMSTANCES SIMILAR TO YOURS DURING THE SAME PERIOD WERE EXEMPTED BY THE SECRETARY OF THE AIR FORCE FROM HAVING TO REPAY THE MONEY THAT THEY RECEIVED. BASED ON THAT ACTION, YOU CONTEND THAT YOU SHOULD BE GIVEN THE SAME CONSIDERATION AND REPAID THE $740.

SECTION 404 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 UPON A CHANGE OF PERMANENT STATION. SECTION 405 OF THE SAME TITLE PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM ALLOWANCE, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES TO A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

PART G, OF CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS, GOVERNS A MEMBER'S ENTITLEMENT TO VARIOUS STATION ALLOWANCES OUTSIDE THE UNITED STATES, INCLUDING A HOUSING ALLOWANCE UNDER THE VARIOUS CIRCUMSTANCES DESCRIBED THEREIN. PARAGRAPH M4301-3C(2) PROVIDES THE GENERAL RULE THAT HOUSING ALLOWANCES ARE PAYABLE TO A MEMBER WITH DEPENDENTS AT ALL TIMES, EXCEPT WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO OR OCCUPIED BY THE MEMBER AND HIS DEPENDENTS.

PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD INVOLVED, GOVERNS A MEMBER'S ENTITLEMENT TO A TEMPORARY LODGING ALLOWANCE AND PROVIDES IN PERTINENT PART THAT:

"1. GENERAL. 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:

"1. UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT TO GOVERNMENT QUARTERS, OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE; ***."

SINCE IT WAS DETERMINED THAT THE QUARTERS YOU AND YOUR FAMILY OCCUPIED DURING THE PERIOD IN QUESTION WERE ACTUALLY GOVERNMENT QUARTERS, YOU WERE NOT ENTITLED TO A TEMPORARY LODGING ALLOWANCE. THUS, ANY MONEY WHICH WAS PAID TO YOU AS A TEMPORARY LODGING ALLOWANCE FOR THE PERIOD DURING WHICH YOU OCCUPIED SUCH GOVERNMENT QUARTERS WAS SUBJECT TO COLLECTION, WHICH ACTION WAS TAKEN IN YOUR CASE UNDER THE PROVISIONS OF 5 U.S.C. 5514 AND AIR FORCE MANUAL 177-105.

WITH RESPECT TO EXEMPTING A SERVICE MEMBER FROM REPAYMENT OF AN OVERPAYMENT OF PAY AND ALLOWANCES, SECTION 9837(D) OF TITLE 10, U.S.C. PROVIDES THAT:

"IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY MAY HAVE REMITTED OR CANCELLED ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE."

SUCH PROVISION OF LAW HAS BEEN UNIFORMLY INTERPRETED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS AUTHORIZING THE REMISSION OF ONLY UNREPAID DEBTS, EXCLUDING AUTHORITY TO REFUND ANY AMOUNT THAT HAS ALREADY BEEN COLLECTED ON ACCOUNT OF A MEMBER'S INDEBTEDNESS.

THE GROUNDS UPON WHICH YOUR CLAIM IS BASED MIGHT HAVE SERVED AS A PROPER BASIS FOR AN APPLICATION FOR THE REMISSION OF YOUR INDEBTEDNESS IF TIMELY FILED. THERE IS, HOWEVER, NO STATUTORY AUTHORITY BY WHICH THIS OFFICE IS AUTHORIZED TO REMIT AN INDEBTEDNESS OF A MEMBER OF THE ARMED FORCES NO MATTER HOW REASONABLE SUCH CLAIM MAY BE, NOR IS THIS OFFICE AUTHORIZED TO REFUND AN AMOUNT PROPERLY COLLECTED FROM A MEMBER AS A RESULT OF AN ERRONEOUS PAYMENT OF A TEMPORARY LODGING ALLOWANCE. ACCORDINGLY, SINCE THE RECORD SHOWS THAT THE AMOUNT COLLECTED FROM YOUR PAY ON ACCOUNT OF SUCH INDEBTEDNESS WAS PROPERLY COMPUTED, WE FIND NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.

REGARDING THE RECOMMENDATION BY AIR FORCE ACCOUNTING AND FINANCE CENTER THAT WE CONSIDER YOUR CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928, THAT ACT PROVIDES THAT WHEN A CLAIM IS FILED WITH 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 RECOMMENDATIONS. IT IS TO BE NOTED THAT THIS REMEDY AFFORDED BY LAW IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

SINCE YOU OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD INVOLVED, YOU DID NOT INCUR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL- LIKE ACCOMMODATIONS FOR WHICH TLA IS AUTHORIZED AND CLEARLY WERE NOT ENTITLED TO THE PAYMENT YOU RECEIVED. WHILE A SIMILAR ERRONEOUS ADMINISTRATIVE DETERMINATION AND PAYMENT APPARENTLY WAS MADE IN AT LEAST ONE OTHER CASE, WHICH INDEBTEDNESS WAS REMITTED UNDER 10 U.S.C. 9837(D), SUCH ACTION DOES NOT, IN OUR OPINION, PROVIDE ANY BASIS FOR THE SUBMISSION OF YOUR CLAIM TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT.

THE REMISSION OF AN INDEBTEDNESS IS NOT A MATTER OF RIGHT BUT A MATTER SOLELY WITHIN THE DISCRETION OF THE SECRETARY CONCERNED, BASED ON THE FACTS IN EACH CASE. SUCH ACTION TAKEN IN ANOTHER CASE DOES NOT PROVIDE ANY ENTITLEMENT IN YOU, LEGAL OR EQUITABLE. THEREFORE, WE DO NOT REGARD YOUR CLAIM AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT OUR REPORTING YOUR CASE TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.