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B-154522, APRIL 4, 1968, 47 COMP. GEN. 527

B-154522 Apr 04, 1968
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QUARTERS ALLOWANCE - ENTITLEMENT - SUBMARINE DUTY - TEMPORARY DUTY ASHORE - INADEQUATE QUARTERS MEMBERS OF THE NAVY WITHOUT DEPENDENTS ATTACHED TO TWO-CREW NUCLEAR POWERED SUBMARINES WHO ARE TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS DURING PERIODS OF TRAINING AND REHABILITATION AT A STATION WHERE QUARTERS ARE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON EITHER PERMANENT OR TEMPORARY DUTY MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS. GEN. 161 THAT OFF-BOARD CREW MEMBERS HAVE NO RIGHT TO ELECT NOT TO OCCUPY GOVERNMENT QUARTERS WHILE ASHORE AND INSTEAD RECEIVE BASIC ALLOWANCE FOR QUARTERS. 1968: REFERENCE IS MADE TO LETTER DATED FEBRUARY 15. REQUESTING A DECISION WHETHER MEMBERS OF THE NAVY WITHOUT DEPENDENTS WHO ARE ATTACHED TO TWO-CREW NUCLEAR POWERED SUBMARINES MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS WHILE TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS DURING PERIODS OF TRAINING AND REHABILITATION WHEN QUARTERS AVAILABLE FOR ASSIGNMENT TO THEM HAVE BEEN DECLARED INADEQUATE.

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B-154522, APRIL 4, 1968, 47 COMP. GEN. 527

QUARTERS ALLOWANCE - ENTITLEMENT - SUBMARINE DUTY - TEMPORARY DUTY ASHORE - INADEQUATE QUARTERS MEMBERS OF THE NAVY WITHOUT DEPENDENTS ATTACHED TO TWO-CREW NUCLEAR POWERED SUBMARINES WHO ARE TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS DURING PERIODS OF TRAINING AND REHABILITATION AT A STATION WHERE QUARTERS ARE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON EITHER PERMANENT OR TEMPORARY DUTY MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS. THIS CONCLUSION PREDICATED UPON THE CURRENT PROVISIONS OF OPNAV INSTRUCTION 11012.2A AND PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS RELATING TO THE ASSIGNMENT OF QUARTERS TO MEMBERS ON TEMPORARY DUTY DOES NOT CHANGE THE CONCLUSION IN 46 COMP. GEN. 161 THAT OFF-BOARD CREW MEMBERS HAVE NO RIGHT TO ELECT NOT TO OCCUPY GOVERNMENT QUARTERS WHILE ASHORE AND INSTEAD RECEIVE BASIC ALLOWANCE FOR QUARTERS.

TO THE SECRETARY OF THE NAVY, APRIL 4, 1968:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 15, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY, REQUESTING A DECISION WHETHER MEMBERS OF THE NAVY WITHOUT DEPENDENTS WHO ARE ATTACHED TO TWO-CREW NUCLEAR POWERED SUBMARINES MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS WHILE TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS DURING PERIODS OF TRAINING AND REHABILITATION WHEN QUARTERS AVAILABLE FOR ASSIGNMENT TO THEM HAVE BEEN DECLARED INADEQUATE. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N-985, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

WITH HIS LETTER, THE ASSISTANT SECRETARY ENCLOSED A COPY OF OPNAV INSTRUCTION 11012.2A, DATED SEPTEMBER 28, 1967, IMPLEMENTING DEPARTMENT OF DEFENSE INSTRUCTION 4165.47, DATED APRIL 6, 1967. THE OPNAV INSTRUCTION SETS FORTH THE POLICY OF THE NAVY REGARDING THE HABITABILITY AND OCCUPANCY CRITERIA FOR BACHELOR HOUSING AT PERMANENT AND TEMPORARY DUTY STATIONS.

ENCLOSURE (2) TO THE INSTRUCTION,"OCCUPANCY CRITERIA FOR ASSIGNMENT OF OFFICERS AND ENLISTED PERSONNEL TO NAVY BACHELOR QUARTERS," PROVIDES IN PART G, FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS, OR FULL PER DIEM TO A MEMBER IN A TRAVEL STATUS, WHEN THERE ARE NO GOVERNMENT QUARTERS AVAILABLE FOR ASSIGNMENT TO HIM OR THOSE AVAILABLE HAVE BEEN DECLARED INADEQUATE BY THE COGNIZANT COMMANDING OFFICER AND THE MEMBER IS NOT ASSIGNED INADEQUATE QUARTERS. WITH REGARD TO PAYMENT OF PER DIEM THE PARAGRAPH SAYS THAT THE FORM OF CERTIFICATION OF NON-AVAILABILITY OF ADEQUATE QUARTERS REQUIRED TO SUPPORT CLAIMS FOR PER DIEM IS SPECIFIED IN PARAGRAPH M4451, JOINT TRAVEL REGULATIONS. WHILE THE PARAGRAPH PERMITS THE PAYMENT OF FULL PER DIEM UNDER CONDITIONS WHERE FULL PER DIEM HAD NOT BEEN PREVIOUSLY AUTHORIZED, THE SECRETARIES ARE PERMITTED BY 37 U.S.C. 404 (B) TO PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL ALLOWANCES ARE AUTHORIZED.

THE ASSISTANT SECRETARY STATES THAT IN THE SPECIAL CIRCUMSTANCES OF MEMBERS (WITHOUT DEPENDENTS) ATTACHED TO TWO-CREW NUCLEAR-POWERED SUBMARINES WHILE TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS DURING PERIODS OF TRAINING AND REHABILITATION, IT IS THE PRESENT POLICY OF THE NAVY TO ASSIGN ALL SUCH MEMBERS QUARTERS, WHETHER ADEQUATE OR INADEQUATE. HE EXPRESSES THE VIEW, HOWEVER, THAT A MORE DESIRABLE POLICY WOULD BE TO CREDIT SUCH MEMBERS WITH BASIC ALLOWANCE FOR QUARTERS AT SINGLE RATES WHEN THE QUARTERS WHICH MAY BE AVAILABLE HAVE BEEN DECLARED INADEQUATE BY THE COGNIZANT COMMANDING OFFICER AND ARE NOT ASSIGNED TO THE MEMBERS, AS WELL AS IN CASES WHERE NO GOVERNMENT BACHELOR QUARTERS ARE AVAILABLE FOR ASSIGNMENT TO THEM.

IN THIS RESPECT HE SAYS THAT VIEWING SINGLE MEMBERS PERMANENTLY ATTACHED TO A SHORE ACTIVITY AS BEING ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS WHEN AVAILABLE QUARTERS ARE NOT ASSIGNED TO THEM BECAUSE THEY HAVE BEEN DETERMINED TO BE INADEQUATE AND DENYING SUCH CREDIT TO SINGLE MEMBERS OF THE OFF-CREW OF TWO-CREW NUCLEAR POWERED SUBMARINES TEMPORARILY SERVING ASHORE IN LIKE CIRCUMSTANCES RESULTS IN AN UNDESIRABLE SITUATION.

THE ASSISTANT SECRETARY STATES FURTHER THAT THE HOLDING IN DECISION OF AUGUST 27, 1964, 44 COMP. GEN. 105, THAT THE MEMBERS HERE CONCERNED ARE ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS ONLY WHEN NO GOVERNMENT QUARTERS ARE AVAILABLE FOR THEIR OCCUPANCY GIVES RISE TO DOUBT AS TO WHETHER THE PROPOSED NEW POLICY MAY BE ADOPTED. HE NOTES THAT WE POINTED OUT IN THE DECISION THAT WHILE CONGRESS SAW FIT TO COMPENSATE MEMBERS FOR THE DISCOMFORTS AND DANGERS OF SERVICE ON NUCLEAR POWERED SUBMARINES BY AUTHORIZING INCENTIVE PAY FOR PERIODS OF TRAINING AND REHABILITATION, SUCH ACTION AFFORDS NO BASIS FOR CONCLUDING THAT CONGRESS INTENDED TO AUTHORIZE CREDIT OF QUARTERS ALLOWANCE TO MEMBERS WITHOUT DEPENDENTS WHILE TEMPORARILY SERVING ASHORE EVEN THOUGH AVAILABLE QUARTERS HAVE BEEN DETERMINED TO BE INADEQUATE.

SECTION 403 (B) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. THUS, THE LAW PROHIBITS THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WHEN MEMBERS ARE ASSIGNED ADEQUATE GOVERNMENT QUARTERS.

AS POINTED OUT ABOVE, THE BASIC ALLOWANCE FOR QUARTERS IS NOT LEGALLY PAYABLE TO MEMBERS ASSIGNED ADEQUATE QUARTERS. SINCE ADEQUATE QUARTERS ON BOARD THE VESSEL ARE ALWAYS AVAILABLE FOR MEMBERS SERVING ON A VESSEL AND THE ASSIGNMENT TO DUTY ABOARD A VESSEL (SEA DUTY) CARRIES WITH IT A CONCOMITANT ASSIGNMENT TO THOSE QUARTERS, WE HAVE HELD THAT MEMBERS WITHOUT DEPENDENTS ASSIGNED TO DUTY ON A VESSEL ARE NOT ENTITLED TO AN ALLOWANCE FOR QUARTERS EXCEPT WHERE AUTHORITY FOR A PAYMENT MAY EXIST UNDER THE PROVISIONS OF 10 U.S.C. 7572 WHEN THE QUARTERS ARE UNINHABITABLE AND THE MEMBERS ARE FURNISHED NO OTHER QUARTERS. 35 COMP. GEN. 10; 42 ID. 65.

THE TWO-CREW OPERATIONAL PROCEDURES OF CERTAIN NUCLEAR-POWERED SUBMARINES, HOWEVER, PRESENT A UNIQUE QUARTERS ALLOWANCE PROBLEM SINCE THE OFF-BOARD CREW CANNOT AVAIL ITSELF OF THE ASSIGNED QUARTERS ABOARD THE VESSEL AND NO PER DIEM IS PAYABLE TO MEMBERS OF THE CREW WHILE TEMPORARILY ASHORE. IN THOSE CIRCUMSTANCES AND SINCE, AS REFLECTED IN 37 U.S.C. 403 AND 10 U.S.C. 7572, IT APPEARS TO BE THE INTENT OF CONGRESS THAT MEMBERS OF THE UNIFORMED SERVICES SHALL EITHER BE FURNISHED QUARTERS WHICH THEY ARE ABLE TO OCCUPY OR BE PAID AN ALLOWANCE FOR QUARTERS, WE CONCLUDED IN THE DECISION OF AUGUST 27, 1964, THAT THE MEMBERS OF THE OFF-BOARD CREW COULD BE PAID A BASIC ALLOWANCE FOR QUARTERS WHEN NO QUARTERS OF ANY KIND WERE AVAILABLE FOR THEM AT THEIR TEMPORARY DUTY STATION, EVEN THOUGH THEIR ASSIGNMENT TO THE VESSEL CONTINUED IN EFFECT.

WHEN THE DECISION OF AUGUST 27, 1964, WAS RENDERED, THE QUESTION OF WHETHER QUARTERS AT A TEMPORARY DUTY STATION WERE ADEQUATE FOR ASSIGNMENT TO MEMBERS ON PERMANENT DUTY AT THAT STATION WAS NOT A MATTER FOR CONSIDERATION IN DETERMINING WHETHER SUCH QUARTERS WERE AVAILABLE FOR ASSIGNMENT TO MEMBERS ON TEMPORARY DUTY AT THAT STATION. HENCE, THE QUARTERS PORTION OF THE PER DIEM ALLOWANCE WAS NOT PAYABLE TO MEMBERS ON TEMPORARY DUTY AT A STATION WHEN ANY QUARTERS WERE AVAILABLE FOR THEM. SINCE THE MEMBERS OF THE OFF-BOARD CREWS HERE CONCERNED WERE IN A TEMPORARY DUTY STATUS ASHORE, IT WAS CONSIDERED THAT THE SAME RULE SHOULD BE APPLIED IN DETERMINING THEIR ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS.

UNDER THE PROVISIONS OF OPNAV INSTRUCTION 11012.2A AND PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS, HOWEVER, QUARTERS AT A TEMPORARY DUTY STATION WHICH ARE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON PERMANENT DUTY AT THAT STATION ARE ALSO DEEMED TO BE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON TEMPORARY DUTY AT THE STATION AND, GENERALLY, THE MEMBERS ON TEMPORARY DUTY ARE ENTITLED TO FULL PER DIEM UNLESS THEY VOLUNTARILY OCCUPY THE INADEQUATE QUARTERS.

THUS, UNDER THE PRESENT REGULATIONS, INADEQUATE QUARTERS ARE NOT REGARDED AS QUARTERS WHICH ARE AVAILABLE FOR ASSIGNMENT TO MEMBERS ON EITHER PERMANENT OR TEMPORARY DUTY. IT REASONABLY MAY BE CONCLUDED THEREFORE, THAT FOR PURPOSES OF THE DECISION OF AUGUST 27, 1964, QUARTERS AT THE TEMPORARY STATION ASHORE WHICH ARE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON TEMPORARY DUTY AT THAT STATION AND CONSEQUENTLY, ARE NOT AVAILABLE QUARTERS FOR PER DIEM PAYMENT PURPOSES, SHOULD NO LONGER BE VIEWED AS QUARTERS WHICH ARE AVAILABLE FOR MEMBERS OF THESE OFF-BOARD CREWS, TEMPORARILY SERVING ASHORE FOR MORE THAN 15 DAYS, FOR PURPOSES OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE CONCLUSION REACHED HEREIN THAT QUARTERS WHICH ARE INADEQUATE FOR ASSIGNMENT TO MEMBERS ON TEMPORARY DUTY ARE NOT TO BE REGARDED AS QUARTERS AVAILABLE FOR ASSIGNMENT TO MEMBERS OF THE OFF-BOARD CREW OF THESE TWO- CREW NUCLEAR-POWERED SUBMARINES FOR PURPOSES OF THE DECISION OF AUGUST 27, 1964, IS PREDICATED ENTIRELY UPON THE CURRENT REGULATIONS RELATING TO THE ASSIGNMENT OF QUARTERS TO MEMBERS ON TEMPORARY DUTY. IN SUCH CIRCUMSTANCES AND SINCE THERE HAS BEEN NO CHANGE IN THEIR PERMANENT STATION ASSIGNMENT OR THE CONDITIONS OF THEIR TEMPORARY ASSIGNMENT ASHORE, THIS DECISION IS NOT TO BE VIEWED AS REQUIRING ANY CHANGE IN THE CONCLUSION REACHED IN DECISION OF AUGUST 23, 1966, 46 COMP. GEN. 161, THAT OFFICERS WITHOUT DEPENDENTS WHO ARE IN PAY GRADES ABOVE O-3, ARE MEMBERS OF THE OFF-BOARD CREW OF A NUCLEAR-POWERED SUBMARINE, AND ARE TEMPORARILY ASHORE FOR TRAINING AND REHABILITATION, HAVE NO RIGHT TO ELECT NOT TO OCCUPY GOVERNMENT QUARTERS ASHORE WHICH ARE ADEQUATE FOR ASSIGNMENT TO THEM AND RECEIVE INSTEAD A BASIC ALLOWANCE FOR QUARTERS.

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