B-197605, JUN 25, 1981

B-197605, JUN 25, 1981

DIGEST: IN ORDER TO ENSURE ORDERLY INVESTIGATION INTO ALLEGED ILLEGAL ACTIVITIES ON BASE, AIR FORCE BASE COMMANDER ORDERED WITNESSES TO STAY IN TRANSIENT QUARTERS UNDER PROTECTIVE CUSTODY. WHILE IN TRANSIENT QUARTERS, MEMBERS RECEIVED MAID SERVICE FOR SERVICE CHARGE OF $4 A DAY. IN VIEW OF PURPOSE OF ASSIGNMENT TO TRANSIENT QUARTERS, SERVICE CHARGES MAY BE PAID OUT OF APPROPRIATED FUNDS.

BILLETING FUND REIMBURSEMENT:

THE QUESTION IS WHETHER APPROPRIATED FUNDS MAY BE USED TO REIMBURSE THE BILLETING FUND, A NONAPPROPRIATED FUND ENTITY, FOR CHARGES INCURRED FOR MILITARY MEMBERS WHO WERE ORDERED INTO TRANSIENT QUARTERS FOR PROTECTIVE CUSTODY. AS WILL BE EXPLAINED, THE BILLETING FUND MAY BE REIMBURSED OUT OF APPROPRIATED FUNDS.

THE QUESTION WAS SUBMITTED FOR AN ADVANCE DECISION BY CAPTAIN DALE K. BERGER, USAF, WHO IS THE CHIEF, ACCOUNTING AND FINANCE BRANCH OF THE HEADQUARTERS 351ST STRATEGIC MISSILE WING (SAC), WHITEMAN AIR FORCE BASE, MISSOURI.

DURING THE SUMMER AND FALL OF 1979, SEVERAL MEMBERS OF THE AIR FORCE AT WHITEMAN AIR FORCE BASE WERE ORDERED INTO TRANSIENT QUARTERS AND PLACED UNDER PROTECTIVE CUSTODY. THE MEMBERS WERE TO BE WITNESSES IN AN INVESTIGATION OF ALLEGED ILLEGAL ACTIVITY TAKING PLACE ON THE BASE. THE DECISION TO PLACE THE MEMBERS IN PROTECTIVE CUSTODY WAS MADE JOINTLY BY THE BASE COMMANDER AND THE STAFF JUDGE ADVOCATE.

WHILE IN PROTECTIVE CUSTODY, THE MEMBERS' ROOMS WERE CLEANED DAILY BY MAIDS EMPLOYED BY THE NONAPPROPRIATED FUND ACTIVITY AT A SERVICE CHARGE OF $4 A DAY. CAPTAIN BERGER QUESTIONS WHETHER PAYMENT MAY BE AUTHORIZED BECAUSE THERE IS NO APPLICABLE AIR FORCE REGULATION AUTHORIZING THIS AND BECAUSE OF OUR DECISION IN 20 COMP.GEN. 601 (1941). IN THAT CASE, WE HELD THAT SERVICE MEMBERS COULD NOT RECEIVE FREE MAID AND ROOM SERVICE SINCE FURNISHING SUCH SERVICES WOULD VIOLATE THE STATUTORY PROVISION, NOW CONTAINED IN 5 U.S.C. SEC. 5536, PROHIBITING MEMBERS OF THE UNIFORMED SERVICES FROM RECEIVING ADDITIONAL PAY WITHOUT STATUTORY AUTHORITY.

FIRST, WE POINT OUT THAT THE DECISION IN 20 COMP.GEN. 601 IS INAPPOSITE TO THE INSTANT CASE. THE CURRENT SITUATION CONCERNS MEMBERS WHO WERE ORDERED TO OCCUPY TRANSIENT QUARTERS FOR THE BENEFIT OF THE AIR FORCE. WHILE IN THESE TRANSIENT QUARTERS, THE MEMBERS HAD NO CHOICE BUT TO ACCEPT THE MAID SERVICES. SUCH FACTORS WERE NOT PRESENT IN 20 COMP.GEN. 601 WHERE ESSENTIALLY THE MEMBERS IN QUESTION, NURSES, RECEIVED FREE MAID SERVICE WHILE OCCUPYING THE GOVERNMENT QUARTERS FURNISHED TO THEM INCIDENT TO THEIR NORMAL PERFORMANCE OF DUTY.

THE LACK OF A SPECIFIC REGULATION APPLICABLE TO THE INSTANT SITUATION DOES NOT PRECLUDE THE AIR FORCE FROM PAYING THE SERVICE CHARGES OUT OF APPROPRIATED FUNDS. THE SERVICE CHARGES HAVE BEEN INCURRED INCIDENT TO THE NEEDS OF THE AIR FORCE TO KEEP MEMBERS UNDER PROTECTIVE CUSTODY SO AS TO PRESERVE THE INTEGRITY OF A FORTHCOMING INVESTIGATION INTO ILLEGAL ACTIVITIES ON THE BASE. IN VIEW OF THIS, PAYMENT OF THE SERVICE CHARGE OUT OF APPROPRIATED FUNDS WOULD BE PROPER.

ACCORDINGLY, THE VOUCHERS ARE BEING RETURNED AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.