B-176838, MAR 12, 1973

B-176838, MAR 12, 1973

MILITARY PERSONNEL - NON-GOVERNMENT QUARTERS - AVAILABILITY OF GOVERNMENT HOUSING DECISION SUSTAINING THE DISALLOWANCE OF A CLAIM BY MAJOR RUDOLPH M. LEE FOR ADDITIONAL PER DIEM BECAUSE NON-GOVERNMENT QUARTERS WERE USED WHILE ON ACTIVE DUTY FOR TRAINING AT FORT BENJAMIN HARRISON, IND. SINCE JTR, PARA. M4451-1, REQUIRES MILITARY MEMBERS IN A TRAVEL STATUS TO USE AVAILABLE, ADEQUATE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND THERE IS EVIDENCE THAT GOVERNMENT QUARTERS WERE IN FACT AVAILABLE, THE COMP. GEN. IS WITHOUT AUTHORITY TO AUTHORIZE PAYMENT OF A CLAIM FOR EXPENSES INCURRED IN THE USE OF NON-GOVERNMENT HOUSING ABSENT A STATEMENT FROM APPROPRIATE AUTHORITY THAT UTILIZATION OF GOVERNMENT FACILITIES WAS IMPRACTICAL.

TO MAJ. RUDOLPH M. LEE:

WE HAVE RECEIVED BY REFERENCE FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE YOUR LETTER, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL PER DIEM BECAUSE NON-GOVERNMENT QUARTERS WERE USED WHILE ON ACTIVE DUTY FOR TRAINING AT FORT BENJAMIN HARRISON, INDIANA, FROM JULY 6 TO JULY 23, 1971. OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED JUNE 13, 1972, DISALLOWED YOUR CLAIM STATING THAT OUR OFFICE IS WITHOUT AUTHORITY TO AUTHORIZE PAYMENT OF YOUR CLAIM SINCE THERE WAS EVIDENCE THAT GOVERNMENT QUARTERS WERE IN FACT AVAILABLE AND ABSENT A STATEMENT FROM THE APPROPRIATE AUTHORITY THAT UTILIZATION OF GOVERNMENT FACILITIES WAS IMPRACTICAL.

PURSUANT TO LETTER ORDER NO. T-06-43039 DATED JUNE 25, 1971, YOU REPORTED FOR ACTIVE DUTY FOR TRAINING AT FORT BENJAMIN HARRISON TO ATTEND A COURSE OF INSTRUCTION AT THE U.S. ARMY FINANCE SCHOOL. AT THE TIME YOU REPORTED FOR DUTY, GOVERNMENT QUARTERS WERE AVAILABLE AND YOU WERE INFORMED THAT YOU COULD NOT BE ISSUED A CERTIFICATE OF UNAVAILABILITY. YOU ELECTED TO OCCUPY NON-GOVERNMENT LODGING AT YOUR OWN EXPENSE AND ON JULY 9, 1971, SUBMITTED DA FORM 2496 REQUESTING THAT YOU BE PROVIDED A CERTIFICATE OF NONAVAILABILITY ALLEGING THAT GOVERNMENT QUARTERS HAD SUBSEQUENTLY BECOME UNAVAILABLE OR THAT A STATEMENT OF INADEQUACY OF QUARTERS BE ISSUED BECAUSE YOU WERE BEING TREATED FOR SINUSITIS WHICH YOU FELT WOULD BE AGGRAVATED BY THE HOT, STUFFY CONDITION OF GOVERNMENT QUARTERS. ALTHOUGH THE POST BILLETING OFFICER AND THE HOUSING OFFICER WERE APPARENTLY AWARE OF THE SHORT DURATION OF YOUR TOUR OF DUTY AND PROMISED EXPEDITIOUS ACTION, YOUR REQUEST WAS NOT DISAPPROVED UNTIL AUGUST 4, 1971, WHICH WAS SUBSEQUENT TO THE CONCLUSION OF YOUR ACTIVE DUTY FOR TRAINING.

ALTHOUGH YOU DO NOT QUESTION THE APPLICABILITY OF THE JOINT TRAVEL REGULATIONS (JTR) IN THE PRESENT CASE, YOU CONTEND THAT THE METHOD IN WHICH YOUR REQUEST WAS HANDLED AND THE REGULATIONS AT FORT BENJAMIN HARRISON RELATING TO THE ASSIGNMENT OF QUARTERS FOR VISITING OFFICERS HAVE FINANCIALLY PENALIZED YOU AS A RESULT OF YOUR TEMPORARY DUTY ASSIGNMENT CONTRARY TO YOUR UNDERSTANDING THAT THE UNDERLYING PURPOSE OF THE JTR IS THAT TRAVELERS SHOULD BE NEITHER FINANCIALLY REWARDED NOR PENALIZED AS A RESULT OF SUCH ASSIGNMENTS.

PARAGRAPH M4451-3 OF THE JTR PROVIDES IN PERTINENT PART THAT

*** IF THE LENGTH OF TEMPORARY DUTY OR DELAY IS FOR A PERIOD OF 24 HOURS OR MORE AND:

1. THE POINT OF TEMPORARY DUTY OR DELAY IS A RECOGNIZED MILITARY POST, CAMP, STATION, BASE, OR DEPOT OWNED OR OPERATED BY THE UNITED STATES; OR

A STATEMENT BY THE COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) *** AT THE POINT OF TEMPORARY DUTY OR DELAY, AS TO THE NON-AVAILABILITY OF ADEQUATE GOVERNMENT QUARTERS, GOVERNMENT MESS, AND OFFICERS' OR ENLISTED OPEN MESS, AS APPLICABLE, IS REQUIRED FOR THE ENTIRE PERIOD OF TEMPORARY DUTY OR DELAY INVOLVED, EXCEPT UNDER THE CONDITIONS OUTLINED IN SUBPAR. 1, ITEMS 1 AND 2. ***

IN THE PRESENT CASE, THERE IS NO STATEMENT AS TO THE UNAVAILABILITY OF ADEQUATE GOVERNMENT QUARTERS OR THAT UTILIZATION OF GOVERNMENT QUARTERS WAS IMPRACTICAL UNDER THE EXCEPTION OF ITEM 2 OF M4451-1, NOR IS ITEM 1, PAR. M4451-1, APPLICABLE TO THE PRESENT CIRCUMSTANCES. YOU STATE THAT UPON ARRIVAL AT FORT BENJAMIN HARRISON YOU WERE INFORMED THAT ADEQUATE GOVERNMENT QUARTERS WERE AVAILABLE AND THAT YOU COULD NOT BE ISSUED A CERTIFICATE OF UNAVAILABILITY. MOREOVER, THE RECORD CONTAINS NO EVIDENCE THAT GOVERNMENT QUARTERS WERE IN FACT UNAVAILABLE AT ANY TIME DURING YOUR TEMPORARY DUTY. IN THE ABSENCE OF STATEMENTS BY THE PROPER AUTHORITY OR EVIDENCE THAT QUARTERS WERE IN FACT UNAVAILABLE OR THAT OCCUPANCY WAS IMPRACTICABLE, AS REQUIRED BY THE REGULATIONS, THERE IS NO LEGAL AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

WHILE IT IS REGRETTABLE THAT A DECISION REGARDING YOUR REQUEST FOR A CERTIFICATE OF UNAVAILABILITY WAS NOT PROMPTLY RENDERED, SUCH CIRCUMSTANCES DO NOT PROVIDE A LEGAL BASIS FOR THE PAYMENT OF ADDITIONAL PER DIEM ALLOWANCES.

FURTHERMORE WE DO NOT AGREE THAT THE REGULATIONS OR PROCEDURE AT FORT BENJAMIN HARRISON ARE CONTRARY TO THE PURPOSE OF THE JTR. PARAGRAPH M4451 -1 OF THE JTR REQUIRES MEMBERS IN A TRAVEL STATUS TO USE AVAILABLE, ADEQUATE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE. IN THIS REGARD THE REGULATIONS AND PROCEDURE AT FORT BENJAMIN HARRISON ESTABLISH A STANDARD METHOD FOR ASSIGNING AVAILABLE GOVERNMENT QUARTERS TO MEMBERS IN TRAVEL STATUS ACCORDING TO THE DATE THEY REPORT FOR DUTY. THE EFFECT OF THIS PROCEDURE IS TO DETERMINE WHICH MEMBERS WILL RECEIVE A CERTIFICATE OF UNAVAILABILITY WHEN GOVERNMENT QUARTERS BECOME UNAVAILABLE. IN THE PRESENT CASE YOU UTILIZED NON-GOVERNMENT QUARTERS NOT BECAUSE QUARTERS WERE NOT PROVIDED AT GOVERNMENT EXPENSE OR BECAUSE OF YOUR DUTY STATUS, BUT BECAUSE OF YOUR DECISION NOT TO OCCUPY ASSIGNED GOVERNMENT QUARTERS DESIGNATED AS ADEQUATE, DUE TO PERSONAL CIRCUMSTANCES.

ACCORDINGLY, THE SETTLEMENT OF JUNE 13, 1972, IS SUSTAINED.