B-188481, JUN 13, 1978

B-188481, JUN 13, 1978

DIGEST: PAYMENT OF HOUSING AND COST-OF-LIVING ALLOWANCES PURSUANT TO 37 U.S.C. 405 (1976) IS AUTHORIZED FOR MEMBERS WITHOUT DEPENDENTS ASSIGNED TO A VESSEL HOMEPORTED IN A FOREIGN PORT WHOSE QUARTERS BECOME UNINHABITABLE, BECAUSE OF OVERHAUL OR REPAIRS, IF OTHERWISE ELIGIBLE, EVEN THOUGH THE MEMBER MAY BE RECEIVING THE MAXIMUM REIMBURSEMENT AUTHORIZED PURSUANT TO 10 U.S.C. 7572(B) (1976).

DOD MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 78-14:

IN A LETTER DATED JANUARY 14, 1978, FROM THE DISBURSING OFFICER, U.S.S. KIRK (FF-1087), A DECISION IS REQUESTED CONCERNING ENTITLEMENT TO HOUSING AND COST-OF-LIVING ALLOWANCES (COLA) TO CERTAIN MEMBERS ASSIGNED TO A SHIP HOMEPORTED OVERSEAS WHEN QUARTERS ABOARD THE SHIP BECOME UNINHABITABLE DUE TO OVERHAUL OR REPAIRS AND THERE ARE NO AVAILABLE GOVERNMENT QUARTERS ASHORE. THE REQUEST WAS FORWARDED TO THIS OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 78-14).

THE SUBMISSION INDICATES THAT WHILE THE U.S.S. KIRK WAS UNDERGOING OVERHAUL OR REPAIR IN A JAPANESE PORT OFFICERS' QUARTERS ABOARD THE SHIP BECAME UNINHABITABLE. PURSUANT TO 10 U.S.C. 7572(B) CERTAIN BACHELOR OFFICERS WERE REIMBURSED THE MAXIMUM AMOUNT AUTHORIZED, AN AMOUNT NOT TO EXCEED THE BASIC ALLOWANCE FOR QUARTERS (BAQ) FOR THE OFFICER'S GRADE, FOR THE PURPOSE OF SECURING PRIVATE QUARTERS ASHORE, THERE BEING NO GOVERNMENT QUARTERS AVAILABLE.

COMMITTEE ACTION NO. 78-14 PRESENTS THE FOLLOWING QUESTIONS CONCERNING THE PAYMENT OF COLA AND HOUSING ALLOWANCES (HOLA) PURSUANT TO 37 U.S.C. 405 (1976) AND PARAGRAPH M4301 OF VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR):

1. UNDER THE PRESENT RULES CONTAINED IN 1 JTR, ARE OFFICERS WHO HAVE BEEN DEPRIVED OF QUARTERS ABOARD SHIP, WHO ARE RECEIVING REIMBURSEMENT FOR LODGING COSTS IN ACCORDANCE WITH 10 U.S.C. 7572 (1976), ENTITLED TO HOLA AND IF GOVERNMENT MESSING IS NOT FURNISHED ARE THEY ENTITLED TO COLA?

2. IF SUCH OFFICERS ARE NOT ENTITLED TO HOLA AND COLA, MAY THE REGULATIONS BE AMENDED TO PRESCRIBE SUCH ALLOWANCES?

3. IF 10 U.S.C. 7572 IS AMENDED TO ALLOW REIMBURSEMENT OF ENLISTED MEMBERS IN THE SAME MANNER AS NOW PROVIDED FOR OFFICERS, MAY ENLISTED MEMBERS RECEIVE THE SAME ALLOWANCES AS OFFICERS?

4. IF THE ANSWER TO QUESTION ONE IS NEGATIVE, BUT THE ANSWER TO QUESTION TWO IS AFFIRMATIVE, IS IT NECESSARY TO RECOVER HOLA AND COLA ALREADY PAID TO OFFICERS ASSIGNED U.S.S. KIRK?

THE STATUTORY AUTHORITY FOR THE PAYMENT OF COLA AND HOLA IS 37 U.S.C. 405, WHICH PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. THE COLA AND HOLA MAY BE PRESCRIBED INDEPENDENTLY OF EACH OTHER.

REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 405 ARE CONTAINED IN PART G OF 1 JTR, PARAGRAPH M4301-1 OF WHICH PROVIDES THAT HOLA AND COLA ARE AUTHORIZED FOR PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES.

UNDER THE PROVISIONS OF PARAGRAPH M4301-3F(3), HOLA IS PAYABLE TO A MEMBER WITHOUT DEPENDENTS FOR ANY DAY UPON WHICH GOVERNMENT QUARTERS ARE NOT ASSIGNED TO HIM AT HIS PERMANENT DUTY STATION.

COST-OF-LIVING ALLOWANCES ARE PAYABLE TO A MEMBER UNDER THE PROVISIONS OF PARAGRAPH M4301-3F(1) ITEMS 1, 3, AND 4 FOR ANY DAY DURING WHICH A GOVERNMENT MESS IS NOT AVAILABLE TO HIM AT HIS PERMANENT STATION; FOR ANY DAY AN ACCOMPANIED ENLISTED MEMBER IS AUTHORIZED TO MESS SEPARATELY OR FOR ANY DAY AN UNACCOMPANIED ENLISTED MEMBER, FOR WHOM GOVERNMENT QUARTERS ARE NOT AVAILABLE, IS AUTHORIZED TO MESS SEPARATELY; AND, FOR ANY DAY DURING WHICH IT IS IMPRACTICABLE FOR AN OFFICER, WHO, BY ORDER OF COMPETENT AUTHORITY, IS AUTHORIZED TO OCCUPY HOUSING ON THE LOCAL ECONOMY, TO UTILIZE THE EXISTING GOVERNMENT MESS FOR ALL MEALS.

BASIC ALLOWANCES FOR QUARTERS AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 403 (1976) IS NOT PAYABLE TO A MEMBER WITHOUT DEPENDENTS WHO IS ASSIGNED GOVERNMENT QUARTERS OR IS ON SEA DUTY. THIS OFFICE HAS HELD AND THE REGULATIONS RECOGNIZE THAT WHEN A MEMBER IS ASSIGNED TO A SHIP, THE VESSEL ITSELF AND NOT ITS HOME YARD OR HOME PORT IS THE MEMBER'S PERMANENT DUTY STATION.

IN 53 COMP.GEN. 535 (1974), WE DEALT WITH THE UNIQUE PROBLEM PRESENTED BY THE TWO-CREW OPERATIONAL PROCEDURES OF CERTAIN NUCLEAR POWERED SUBMARINES. IN DETERMINING THAT THE OFF-CREW MEMBERS WERE ENTITLED TO THE COLA AND HOLA AUTHORIZED UNDER 37 U.S.C. 405, WE DETERMINED THAT IN VIEW OF 37 U.S.C. 403 AND 10 U.S.C. 7572, IT APPEARED 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. AS POINTED OUT IN THAT DECISION, WHEN CONGRESS ENACTED LEGISLATION PROVIDING AUTHORITY TO PRESCRIBE AN ALLOWANCE FOR THE PURPOSE OF DEFRAYING EXCESS COSTS EXPERIENCED BY MEMBERS ON DUTY AT PLACES OUTSIDE THE UNITED STATES, IT DID NOT INTEND TO PRECLUDE THE PAYMENT OF SUCH ALLOWANCES TO MEMBERS WHO ARE ACTUALLY EXPERIENCING HIGHER COSTS FOR HOUSING AND COST OF LIVING.

WHILE 53 COMP.GEN. 535 WAS STATED TO BE LIMITED TO HOLA AND COLA FOR TWO -CREW OPERATIONAL SUBMARINES, IT WOULD APPEAR THAT OFFICERS WHO ARE STATIONED ABOARD A SHIP BUT WHOSE QUARTERS BECOME UNINHABITABLE DUE TO OVERHAUL OR REPAIR AND WHO MUST SEEK PRIVATE QUARTERS IN A FOREIGN PORT, FALL INTO THE SAME CATEGORY AND SUFFER THE SAME ECONOMIC CONSEQUENCES AS THE OFF-BOARD CREW OF THE TWO-CREW SUBMARINE WHO CANNOT OCCUPY ASSIGNED QUARTERS SIMULTANEOUSLY WITH THE ON-SHIP CREW.

SECTION 7572(B) OF TITLE 10, U.S.C. DOES NOT PROVIDE FOR PAYMENT OF BAQ, BUT PROVIDES FOR REIMBURSEMENT OF EXPENSES INCURRED IN OBTAINING QUARTERS IN AN AMOUNT NOT TO EXCEED THE APPLICABLE BAQ RATE. SEE 56 COMP.GEN. 894 (1977); AND B-144363, DECEMBER 7, 1960. FUNDS AUTHORIZED TO BE PAID PURSUANT TO 37 U.S.C. 405 ARE IN THE NATURE OF PERSONAL ALLOWANCES ACCRUING TO THE MEMBER ON AN INDIVIDUAL BASIS. THUS, THE TWO ARE NOT RELATED AND THE RESTRICTION IN 10 U.S.C. 7572(B) IS TO BE CONSIDERED AS APPLYING ONLY TO THE AMOUNT THAT MAY BE PAID UNDER THAT SECTION. SHOULD NOT BE CONSIDERED AS LIMITING ANY ALLOWANCES THAT MAY BE PAID TO A MEMBER PURSUANT TO 37 U.S.C. 405.

SHOULD 10 U.S.C. 7572 BE AMENDED TO AUTHORIZE REIMBURSEMENT TO ENLISTED PERSONNEL ON THE SAME BASIS AS AUTHORIZED FOR OFFICERS IN SUBSECTION (B), THE SAME RULE WOULD APPLY, THAT IS, THE AMOUNT TO BE PAID A MEMBER UNDER THAT SECTION DOES NOT RESTRICT OR PRECLUDE THE PAYMENT OF AN ALLOWANCE AUTHORIZED TO BE PAID TO A MEMBER PURSUANT TO 37 U.S.C. 405.

ACCORDINGLY, PAYMENT OF HOLA AND COLA IS AUTHORIZED FOR MEMBERS WITHOUT DEPENDENTS ASSIGNED TO A VESSEL HOMEPORTED IN A FOREIGN PORT WHOSE QUARTERS BECOME UNINHABITABLE BECAUSE OF OVERHAUL OR REPAIRS, IF OTHERWISE ELIGIBLE, EVEN THOUGH THE MEMBER MAY BE RECEIVING THE MAXIMUM REIMBURSEMENT AUTHORIZED PURSUANT TO 10 U.S.C. 7572(B).

WHILE IT IS OUR VIEW THAT 1 JTR NEED NOT BE AMENDED TO AUTHORIZE PAYMENT OF THE ALLOWANCES IN QUESTION, AN ADDITION TO PARAGRAPH M4301 3(F)(3) MAY BE FOR CONSIDERATION TO MAKE IT CLEAR THAT HOLA IS ALSO AUTHORIZED WHERE DUE TO REPAIRS OR OVERHAUL QUARTERS ASSIGNED ABOARD A VESSEL BECOME UNINHABITABLE AND GOVERNMENT QUARTERS OR GOVERNMENT PROCURED QUARTERS ARE NOT OTHERWISE AVAILABLE.

ACCORDINGLY, SINCE QUESTIONS ONE AND THREE ARE ANSWERED AFFIRMATIVELY, THERE IS NO NEED FOR A RESPONSE TO QUESTIONS TWO AND FOUR.