B-144839, JUNE 21, 1967, 46 COMP. GEN. 869

B-144839, JUNE 21, 1967, 46 COMP. GEN. 869

QUARTERS ALLOWANCE - EVACUATION OF DEPENDENTS - GOVERNMENT FURNISHED QUARTERS OCCUPANCY WHEN THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES ARE EVACUATED UNDER EMERGENCY CONDITIONS FROM ASSIGNED GOVERNMENT QUARTERS AT HIS PERMANENT STATION AND OCCUPY GOVERNMENT HOUSING FACILITIES AT A SAFE HAVEN AREA, CONSIDERED VOLUNTARY OCCUPATION OF ADEQUATE QUARTERS AS THE DEPENDENTS ARE NOT REQUIRED TO OCCUPY THE QUARTERS, NOR IS RENT PAID FOR THE FACILITIES, THE MEMBER NOT HAVING INCURRED ANY PERSONAL EXPENSE IS NOT ENTITLED TO PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS (BAQ) FOR DEPENDENTS PRESCRIBED BY 37 U.S.C. 427 (B) IN ORDER TO REIMBURSE A MEMBER FOR THE EXPENDITURE OF PERSONAL FUNDS, AND THE MEMBER NOT ENTITLED TO BAQ, A CONDITION PRECEDENT TO THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE ALSO IS NOT ENTITLED TO THIS ALLOWANCE. QUARTERS ALLOWANCE - EVACUATION OF DEPENDENTS - GOVERNMENT FURNISHED QUARTERS OCCUPANCY A MEMBER OF THE UNIFORMED SERVICES OCCUPYING PRIVATE HOUSING AND IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS (BAQ) FOR DEPENDENTS WHO ARE EVACUATED TO GOVERNMENT HOUSING FACILITIES AT A SAFE HAVEN AND HE THEN OCCUPIES SINGLE TYPE QUARTERS AT HIS PERMANENT STATION IS NOT ENTITLED TO CONTINUE TO RECEIVE BAQ WHILE HIS DEPENDENTS OCCUPY GOVERNMENT QUARTERS, EVEN IF INADEQUATE, AND HE OCCUPIES SINGLE TYPE QUARTERS AT HIS STATION, THE MEMBER NOT HAVING INCURRED ANY PERSONAL EXPENSE, AND UNDER 37 U.S.C. 427 (B), THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE CONDITIONED ON ENTITLEMENT TO BAQ FOR DEPENDENTS, THE MEMBER IS ALSO NOT ELIGIBLE TO RECEIVE PAYMENT OF A FAMILY SEPARATION ALLOWANCE. QUARTERS ALLOWANCE - EVACUATION OF DEPENDENTS - GOVERNMENT FURNISHED QUARTERS OCCUPANCY THE FACT THAT PARAGRAPH M4552-3 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT IN ESTABLISHING EMERGENCY EVACUATION ALLOWANCE RATES TO COVER THE EXTRAORDINARY EXPENSES OF THE DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES INCIDENT TO EVACUATION, CONSIDERATION WILL BE GIVEN TO THE AVAILABILITY OR USE OF GOVERNMENT QUARTERS AND/OR SUBSISTENCE AND THE PER DIEM ALLOWANCE REDUCED TO PREVENT THE PAYMENT OF AN ALLOWANCE TO DEPENDENTS FURNISHED QUARTERS AND SUBSISTENCE IN KIND, AFFORDS NO BASIS FOR THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AUTHORIZED BY 37 U.S.C. 427 (B) WHEN A MEMBER IS NOT PUT TO ANY EXPENSE FOR THE GOVERNMENT QUARTERS OCCUPIED BY HIS DEPENDENTS EVACUATED FROM HIS PERMANENT DUTY STATION.

TO THE SECRETARY OF DEFENSE, JUNE 21, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 29, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION WHETHER PAYMENT OF BASIC ALLOWANCE FOR QUARTERS AND FAMILY SEPARATION ALLOWANCE IS AUTHORIZED WHEN, BY ORDERS OF COMPETENT AUTHORITY, A MEMBER'S DEPENDENTS ARE EVACUATED FROM ASSIGNED GOVERNMENT QUARTERS AND OCCUPY GOVERNMENT HOUSING FACILITIES AT A SAFE HAVEN AREA UNDER CIRCUMSTANCES SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION 396.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. IS A SERVICE MEMBER ENTITLED TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS (BAQ) AND FAMILY SEPARATION ALLOWANCE (FSA) AS AUTHORIZED BY SECTION 427 (B) OF TITLE 37, U.S.C. WHEN, BY ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE EVACUATED FROM ASSIGNED GOVERNMENT QUARTERS AT HIS PERMANENT STATION AND OCCUPY GOVERNMENT HOUSING FACILITIES AT A SAFE HAVEN AREA?

2. WOULD THE ANSWER BE THE SAME IN THE CASE OF A MEMBER OCCUPYING PRIVATE HOUSING, AND IN RECEIPT OF BAQ AT THE SAME PERMANENT STATION WHEN HIS DEPENDENTS ARE EVACUATED THEREFROM AND OCCUPY GOVERNMENT HOUSING FACILITIES AT A SAFE HAVEN AREA AND HE, AS A RESULT OF THE EMERGENCY, OCCUPIES SINGLE TYPE QUARTERS AT HIS PERMANENT STATION?

IN ITS DISCUSSION OF THE PROBLEM INVOLVED, THE MILITARY PAY AND ALLOWANCE COMMITTEE POINTS OUT THAT UNDER 37 U.S.C. 403 (D) A MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IF THE DEPENDENTS ARE PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING ASSIGNED GOVERNMENT QUARTERS AND THEY RESIDE IN PRIVATE HOUSING AT THE SAFE HAVEN AREA. DOUBT IN THE INSTANT SITUATION IS SAID TO ARISE, HOWEVER, BECAUSE OF THE RESTRICTION CONTAINED IN SECTION 403 OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, WHICH READS, IN PART, AS FOLLOWS:

SEC. 403. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, OR (C) BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS 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 * * *.

THE COMMITTEE EXPRESSES DOUBT THAT A MEMBER WHOSE DEPENDENTS ARE EVACUATED UNDER EMERGENCY CONDITIONS COMES WITHIN THE SCOPE OF THE ABOVE PROVISION. IN ADDITION, IT IS SAID THAT THE EXECUTIVE ORDER WOULD SEEM TO BE DIRECTED TO A SITUATION IN WHICH THE OCCUPANCY OF GOVERNMENT HOUSING FACILITIES BY THE DEPENDENTS IS ON A VOLUNTARY BASIS, WHEREAS IN AN EMERGENCY EVACUATION, IT IS STATED, THE DEPENDENTS ARE ORDERED EVACUATED FROM THE PERMANENT STATION TO A SAFE HAVEN AND ARE ORDERED TO OCCUPY GOVERNMENT HOUSING THEREAT, IF AVAILABLE.

IN A MEMORANDUM OF MARCH 29, 1967, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE RELATIVE TO THIS MATTER, A COPY OF WHICH HAS BEEN INFORMALLY SUBMITTED TO US, IT IS STATED, HOWEVER, THAT THE QUESTION HAS BEEN RAISED WHETHER DEPENDENTS MAY BE "ORDERED" TO OCCUPY GOVERNMENT HOUSING. IT IS SAID THAT THE HOUSING AT A SAFE HAVEN AREA MAY INCLUDE TENT VILLAGES, SEMIPRIVATE OR COMMUNAL BARRICKS, BEDS IN CHURCHES OR GYMNASIUMS, SOLE OCCUPANCY OF ADEQUATE FAMILY QUARTERS OR AS A GUEST IN QUARTERS ASSIGNED ON A PERMANENT BASIS TO ANOTHER. THAT COMMITTEE SAYS THAT THE NATURE OF THE GOVERNMENT HOUSING FACILITIES IS GERMANE SINCE THE LAW DISCUSSES THE QUESTION OF APPROPRIATE AND ADEQUATE QUARTERS. APPEARS TO BE THE VIEW OF THE COMMITTEE THAT THE AFOREMENTIONED HOUSING FACILITIES MAY NOT BE APPROPRIATE AND ADEQUATE QUARTERS AS CONTEMPLATED BY THE LAW AND THEREFORE A MEMBER'S DEPENDENTS SHOULD BE PERMITTED TO OCCUPY SUCH QUARTERS AT THE SAFE HAVEN AREA WITHOUT HIS LOSS OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS.

ALSO, IT APPEARS TO BE THE BELIEF OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE THAT UNDER PARAGRAPH M4552-3, JOINT TRAVEL REGULATIONS, THE EMERGENCY EVACUATION ALLOWANCE RATES WILL BE PROPORTIONATELY REDUCED WHEN QUARTERS AND MEALS ARE FURNISHED WITHOUT CHARGE AND THEREFORE THE PAYMENT OF SUCH ALLOWANCE SHOULD NOT PRECLUDE THE PAYMENT OF A QUARTERS ALLOWANCE TO THE MEMBER FOR HIS DEPENDENTS, EVEN THOUGH THEY OCCUPY QUARTERS PROVIDED BY THE GOVERNMENT.

SECTION 403 OF TITLE 37, U.S.C. PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE ENTITLED TO RECEIVE BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED, NO SUCH ALLOWANCE SHALL ACCRUE TO A MEMBER ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF A UNIFORMED SERVICE APPROPRIATE TO HIS GRADE OR RANK AND ADEQUATE FOR HIMSELF AND DEPENDENTS, IF WITH DEPENDENTS.

THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER ON ACCOUNT OF DEPENDENTS IS IN THE NATURE OF A REIMBURSEMENT FOR FURNISHING QUARTERS FOR SUCH DEPENDENTS AT PERSONAL EXPENSE WHERE QUARTERS ARE NOT PROVIDED FOR THEM BY THE GOVERNMENT. IT IS NOT A GRATUITY BUT IS PAYABLE TO A MILITARY MEMBER AS A REASONABLE COMMUTATION IN MONEY WHEN HE IS NOT FURNISHED PUBLIC QUARTERS AND HE MUST PROVIDE QUARTERS AT HIS OWN EXPENSE.

WITH RESPECT TO THE STATEMENTS MADE BY THE COMMITTEE RELATIVE TO THE WORDS "APPROPRIATE" AND ,ADEQUATE" AS USED IN THE STATUTE, THE BASIC ALLOWANCE FOR QUARTERS IS CONSIDERED TO BE IN THE NATURE OF REIMBURSEMENT FOR EXPENSES INCURRED IN SECURING PRIVATE QUARTERS AND NOT AS A PART OF THE MEMBER'S PAY OR A REWARD FOR HIS INCONVENIENCE INHAVING TO SECURE HIS OWN PLACE OF ABODE. IT HAS BEEN CONSISTENTLY HELD THAT VOLUNTARY OCCUPANCY OF ANY GOVERNMENT QUARTERS WITHOUT THE PAYMENT OF A RENTAL CHARGE, WHETHER CONSIDERED INADEQUATE OR NOT, PRECLUDES PAYMENT OF RENTAL OR QUARTERS ALLOWANCE. THERE SHOULD BE NO PAYMENT IN THE NATURE OF REIMBURSEMENT WHERE NO EXPENSE HAS BEEN INCURRED.

THUS, THE PROVISIONS OF 37 U.S.C. 403 AND PRIOR SIMILAR LAWS LONG HAVE BEEN APPLIED BY THIS OFFICE AND THE COURT OF CLAIMS AS PRECLUDING THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS OR RENTAL ALLOWANCE WHEN PUBLIC QUARTERS OF ANY KIND ARE OCCUPIED VOLUNTARILY WITHOUT THE PAYMENT OF RENT BY A MEMBER OR HIS DEPENDENTS. SEE BYRNE V. UNITED STATES, 87 CT. CL. 241; ODELL V. UNITED STATES, 38 CT. CL. 194; CARTER V. UNITED STATES, 79 CT. CL. 166; BEERY V. UNITED STATES, 87 CT. CL. 577, AND HOLLISTER V. UNITED STATES, 92 CT. CL. 137. SEE, ALSO, 25 COMP. GEN. 798; ID. 246; 23 COMP. GEN. 856; ID. 230; ID. 346; AND 21 COMP. GEN. 995. COMPARE ANSWER TO QUESTION 1, 40 COMP. GEN. 169.

SECTION 405A OF TITLE 37, U.S.C. WAS ADDED BY PUBLIC LAW 89-26, APPROVED MAY 22, 1965, AND PROVIDES AUTHORITY FOR THE PAYMENT TO A MEMBER'S DEPENDENTS OF ALLOWANCES AUTHORIZED BY THE SECRETARY CONCERNED TO OFFSET THE EXPENSES INCIDENT TO THE EVACUATION WHEN THE DEPENDENTS ARE EVACUATED FROM THEIR PLACE OF RESIDENCE AT OR IN THE VICINITY OF HIS DUTY STATION TO ANOTHER PLACE WHETHER IN THE SAME OR IN ANOTHER COUNTRY. IN H.REPT. NO. 30, 89TH CONG., 1ST SESS., DATED FEBRUARY 9, 1965, ON H.R. 3043, WHICH WAS ENACTED AS PUBLIC LAW 89-26, IT IS STATED THAT UNDER THE BILL, A PER DIEM PAYMENT WOULD BE AUTHORIZED FOR DEPENDENTS OF UNIFORMED PERSONNEL EVACUATED FROM DANGER AREA EVEN THOUGH THEY ARE RETURNED TO THE UNITED STATES. THE PAYMENT, IT STATES, ORDINARILY WOULD BE LIMITED TO 30 DAYS UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. IN ADDITION THE REPORT SAYS THE BILL WOULD AUTHORIZE WAIVER OF NOT MORE THAN 1 MONTHS' PAY PREVIOUSLY ADVANCED UNDER SECTION 1006 (C) OF TITLE 37, UNITED STATES CODE, AND ALSO AUTHORIZE PAYMENT OF DISLOCATION ALLOWANCE. ON PAGE 5 OF THE REPORT IT IS STATED THAT IF THE LEGISLATION IS ENACTED, IT IS CONTEMPLATED THAT THE IMPLEMENTING REGULATIONS WILL PROVIDE FOR THE PAYMENT, AT A PER DIEM RATE, OF THE SPECIAL ALLOWANCES TO EVACUATED DEPENDENTS COMMENCING ON THE DAY THE DEPENDENTS ARRIVE AT THE SAFE HAVEN AREA AND CONTINUING FOR THE PERIOD REQUIRED FOR THEM TO REACH THE PLACE SELECTED FOR THEIR TEMPORARY RESIDENCE.

AS INDICATED ABOVE, THE PURPOSE OF THE EMERGENCY EVACUATION ALLOWANCE IS TO REIMBURSE THE DEPENDENTS FOR THE MORE THAN NORMAL EXPENSES WHICH THEY INCUR, INCLUDING EXPENSES IN OBTAINING QUARTERS AND SUBSISTENCE IF NOT PROVIDED BY THE GOVERNMENT, AS WELL AS OTHER INCIDENTAL EXPENSES WHILE IN SUCH TRANSIENT STATUS AS DISTINGUISHED FROM THE BASIC ALLOWANCE FOR QUARTERS WHICH IS PAID TO A MEMBER FOR THE PURPOSE OF PROVIDING PRIVATE QUARTERS FOR HIS DEPENDENTS IN A PERMANENT RESIDENCE.

IN THE SITUATION OF THE MEMBER INVOLVED IN THE FIRST QUESTION PRESENTED, HIS DEPENDENTS HAVE BEEN EVACUATED FROM ASSIGNED GOVERNMENT QUARTERS AT HIS PERMANENT STATION AND OCCUPY GOVERNMENT PROVIDED HOUSING FACILITIES AT A SAFE HAVEN. PRESUMABLY THE MEMBER CONTINUES TO OCCUPY THE ASSIGNED QUARTERS OR OTHER GOVERNMENT QUARTERS. BY REASON OF ORDERS OF COMPETENT AUTHORITY THE DEPENDENTS ARE NOT PERMITTED TO OCCUPY THE ASSIGNED QUARTERS, BUT THEY ARE PROVIDED OTHER QUARTERS BY THE GOVERNMENT AT THE SAFE HAVEN. WHILE CIRCUMSTANCES AT THE SAFE HAVEN MAY BE SUCH THAT THE DEPENDENTS HAVE LITTLE CHOICE BUT TO OCCUPY THE QUARTERS THERE PROVIDED, WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH DEPENDENTS OF A MEMBER MAY BE REQUIRED TO OCCUPY GOVERNMENT QUARTERS.

CONSEQUENTLY, THE OCCUPANCY OF THE QUARTERS AT THE SAFE HAVEN MUST BE CONSIDERED TO BE VOLUNTARY AND IF QUARTERS ARE VOLUNTARILY OCCUPIED WITHOUT THE PAYMENT OF A RENTAL CHARGE THEY ARE DEEMED TO BE ADEQUATE. THEREFORE, THE MEMBER INVOLVED IN QUESTION 1 IS NOT ENTITLED TO PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS.

IN OUR DECISION OF OCTOBER 18, 1960, 40 COMP. GEN. 215, WE HELD THAT A MEMBER RECEIVING BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH ONE DEPENDENT WOULD NOT BE ENTITLED TO THE ALLOWANCE DURING PERIODS OF HOSPITALIZATION OF THE DEPENDENT IN A GOVERNMENT FACILITY, WHETHER AT OR AWAY FROM THE MEMBER'S STATION, IF DURING SUCH PERIODS THE MEMBER OCCUPIES GOVERNMENT QUARTERS. SIMILARLY, IN ANSWER TO QUESTION 2, A MEMBER IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS WOULD NOT BE ENTITLED TO CONTINUE TO RECEIVE THE ALLOWANCE WHILE HIS DEPENDENTS OCCUPY GOVERNMENT PROVIDED QUARTERS AT THE SAFE HAVENAND HE OCCUPIES SINGLE TYPE QUARTERS AT HIS STATION.

SINCE UNDER THE PROVISIONS OF 37 U.S.C. 427 (B), THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY THAT SECTION IS PAYABLE ONLY TO MEMBERS WHO ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS, THE MEMBERS CONSIDERED HERE WOULD NOT BE ENTITLED TO FAMILY SEPARATION ALLOWANCE.

WITH RESPECT TO THE PROVISIONS IN PARAGRAPH M4552-3 OF THE JOINT TRAVEL REGULATIONS THAT IN ESTABLISHING EMERGENCY EVACUATION ALLOWANCE RATES CONSIDERATION WILL BE GIVEN TO THE AVAILABILITY OR USE OF GOVERNMENT QUARTERS AND/OR SUBSISTENCE, THE PURPOSE OF THIS PROVISION OBVIOUSLY IS TO PREVENT THE PAYMENT OF AN ALLOWANCE TO THE DEPENDENTS FOR THESE ITEMS IF QUARTERS AND SUBSISTENCE ARE FURNISHED IN KIND. SINCE THE EMERGENCY EVACUATION ALLOWANCES ARE AUTHORIZED TO DEFRAY THE EXTRAORDINARY EXPENSES OF THE DEPENDENTS INCIDENT TO THE EVACUATION, THE FACT THAT THE PER DIEM ALLOWANCE WILL BE REDUCED IF QUARTERS ARE PROVIDED BY THE GOVERNMENT AFFORDS NO BASIS FOR PAYMENT TO THE MEMBER OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AS HE IS PUT TO NO EXPENSE FOR THE GOVERNMENT QUARTERS WHICH THEY OCCUPY.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE AND QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.