B-144839, JANUARY 2, 1968, 47 COMP. GEN. 355

B-144839, JANUARY 2, 1968, 47 COMP. GEN. 355

QUARTERS ALLOWANCE - EVACUATION OF DEPENDENTS - GOVERNMENT FURNISHED OCCUPANCY A MEMBER OF THE UNIFORMED SERVICES WHO MUST CONTINUE TO MAINTAIN AND PAY RENTAL FOR PRIVATE HOUSING IN ANTICIPATION OF THE RETURN OF HIS DEPENDENTS EVACUATED TO GOVERNMENT HOUSING FACILITIES AT A TEMPORARY SAFE HAVEN FOR A RELATIVELY SHORT PERIOD PENDING FURTHER TRANSPORTATION TO A DESIGNATED PLACE PURSUANT TO PARAGRAPH M7101-1 OF THE JOINT TRAVEL REGULATIONS, OR RETURN TO THE PLACE FROM WHICH EVACUATED, DURING WHICH TIME HE OCCUPIES SINGLE-TYPE QUARTERS AT HIS PERMANENT STATION MAY CONTINUE TO BE CREDITED IN HIS PAY ACCOUNT WITH A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS AND THE TYPE II FAMILY SEPARATION ALLOWANCE UNTIL HIS DEPENDENTS ARE AUTHORIZED TO RETURN TO THE MEMBER'S PERMANENT DUTY STATION OR ARRIVE AT THE DESIGNATED PLACE CONTEMPLATED BY PARAGRAPH M7101-1, IN VIEW OF THE FACT THAT THE OCCUPANCY OF GOVERNMENT QUARTERS BY THE MEMBER AND HIS DEPENDENTS WILL BE OF SHORT DURATION AND WILL HAVE RESULTED FROM CIRCUMSTANCES BEYOND THEIR CONTROL. 46 COMP. GEN. 869, MODIFIED.

TO THE SECRETARY OF DEFENSE, JANUARY 2, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 28, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), IN EFFECT REQUESTING FURTHER CONSIDERATION OF CERTAIN ASPECTS OF OUR DECISION OF JUNE 21, 1967, 46 COMP. GEN. 869. IN THAT DECISION WE HELD THAT A MEMBER OF THE UNIFORMED SERVICES IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AND FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) DURING A PERIOD HIS DEPENDENTS ARE EVACUATED UNDER EMERGENCY CONDITIONS FROM PRIVATE HOUSING AT HIS PERMANENT STATION AND OCCUPY GOVERNMENT HOUSING AT A SAFE HAVEN AREA AND HE, AS A RESULT OF THE EMERGENCY, OCCUPIES SINGLE-TYPE QUARTERS AT HIS PERMANENT STATION. THE CIRCUMSTANCES GIVING RISE TO THE REQUEST ARE SET FORTH AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 402.

THE CIRCUMSTANCES SET FORTH ARE AS FOLLOWS:

DUE TO CONDITIONS BEYOND THE MEMBER'S CONTROL, AND BECAUSE OF THE EMERGENCY EVACUATION, HIS FURNITURE AND PERSONAL BELONGINGS ARE LEFT IN HIS PRIVATE HOUSING. AS A RESULT, HE IS REQUIRED TO MAINTAIN AND CONTINUE PAYMENT OF RENTAL FOR SUCH HOUSING IN ORDER TO HAVE QUARTERS AVAILABLE UPON RETURN OF HIS DEPENDENTS AFTER TERMINATION OF THE TEMPORARY EMERGENCY ABSENCE, AND TO PROVIDE A SAFEGUARD FOR HIS HOUSEHOLD GOODS AND PERSONAL BELONGINGS FOR THE DURATION OF THE EMERGENCY.

THE COMMITTEE REFERS PARTICULARLY TO OUR DECISION OF OCTOBER 18, 1960, 40 COMP. GEN. 215, WHICH WE CITED IN OUR DECISION OF JUNE 21, 1967. IN 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 QUARTERS ALLOWANCE DURING PERIODS OF HOSPITALIZATION OF THE DEPENDENT IN A GOVERNMENT FACILITY, IF DURING SUCH PERIODS THE MEMBER OCCUPIES GOVERNMENT QUARTERS. THE COMMITTEE SAYS THAT THIS DECISION APPARENTLY IS BASED ON THE PREMISE THAT NORMALLY A MEMBER IS NOT PUT TO ADDITIONAL EXPENSE TO PROVIDE QUARTERS FOR HIS DEPENDENTS DURING THE PERIOD THEY ARE FURNISHED GOVERNMENT HOUSING AND HE OCCUPIES QUARTERS AT HIS PERMANENT STATION.

IT INDICATES, HOWEVER, THAT UNDER OUR DECISION OF JUNE 21, 1967, AND IN THE CIRCUMSTANCES SET FORTH ABOVE, INEQUITIES ARE CREATED BY THE EMERGENCY EVACUATION WHEN, DUE TO CIRCUMSTANCES BEYOND HIS CONTROL, THE MEMBER MUST CONTINUE TO MAINTAIN AND PAY RENTAL FOR HIS PRIVATE HOUSING DURING THE EMERGENCY PERIOD. FURTHER, THE COMMITTEE SAYS THAT THE CONTINUED MAINTENANCE OF PRIVATE QUARTERS BY A MEMBER DURING AN EMERGENCY EVACUATION PERIOD APPEARS TO COME WITHIN THE PRINCIPLE CONTAINED IN THE LONG-STANDING RULE THAT A MEMBER WITHOUT DEPENDENTS IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS AT HIS PERMANENT STATION CONTINUES TO BE ENTITLED TO SUCH PAYMENT WHILE ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION, EVEN THOUGH SINGLE-TYPE QUARTERS ARE OCCUPIED AT THE TEMPORARY DUTY STATION.

IN THIS CONNECTION, THE COMMITTEE CITES OUR DECISION OF AUGUST 24, 1962, 42 COMP. GEN. 122, IN WHICH WE RECOGNIZED THAT THE PURPOSE OF SUCH CONTINUING PAYMENT IS TO ENABLE THE MEMBER TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING HIS PRIVATELY FINANCED QUARTERS AT HIS PERMANENT STATION DURING HIS ABSENCE THEREFROM.

SECTION 403 OF TITLE 37, U.S. CODE, 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.

EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, RELATING TO REGULATIONS GOVERNING BASIC ALLOWANCE FOR QUARTERS, ISSUED PURSUANT TO SECTION 403 AND SET OUT IN A NOTE UNDER SECTION 301 OF TITLE 37, U.S. CODE, PROVIDES IN PART AS FOLLOWS:

SEC. 403. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURIDICTION 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 * * *.

SEC. 405. A MEMBER AWAY FROM HIS PERMANENT STATION MAY OCCUPY QUARTERS OF THE UNITED STATES DESIGNATED FOR MEMBERS WITHOUT DEPENDENTS AT HIS TEMPORARY DUTY STATION WITHOUT AFFECTING HIS RIGHT TO RECEIVE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS OR ASSIGNMENT OF QUARTERS, IF ANY, AT HIS PERMANENT STATION. UNDER SUCH CIRCUMSTANCES, A MEMBER MAY NOT OCCUPY QUARTERS OF THE UNITED STATES WHICH EXCEED THE MINIMUM STANDARDS FOR MEMBERS OF HIS GRADE WITHOUT DEPENDENTS, AS PRESCRIBED BY THE SECRETARY CONCERNED, UNLESS THE ONLY QUARTERS AVAILABLE (A) EXCEED THE MINIMUM STANDARDS, AND (B) ARE MADE AVAILABLE FOR JOINT OCCUPANCY WITH OTHER MEMBERS.

BASICALLY, THE LAW AND REGULATIONS CONTEMPLATE THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES OCCUPIED WITHOUT PAYMENT OF A RENTAL CHARGE BY THE MEMBER AND HIS DEPENDENTS SHALL BE DEEMED TO BE ADEQUATE. WITH RESPECT TO A MEMBER OCCUPYING GOVERNMENT QUARTERS AT HIS TEMPORARY DUTY STATION, THE EXECUTIVE ORDER SPECIFICALLY MAKES AN EXCEPTION IN THOSE CASES SO AS TO PERMIT SUCH OCCUPANCY WITHOUT AFFECTING HIS RIGHT TO CONTINUE TO RECEIVE THE QUARTERS ALLOWANCE TO WHICH HE WAS OTHERWISE ENTITLED WHEN HE DEPARTED FOR THE TEMPORARY DUTY ASSIGNMENT. 42 COMP. GEN. 122. NO SUCH EXCEPTION IS PROVIDED IN THE LAW OR THE EXECUTIVE ORDER TO COVER THE SITUATION WHERE THE MEMBER OCCUPIES GOVERNMENT QUARTERS AT HIS PERMANENT STATION AND CONTINUES TO MAINTAIN HIS PRIVATELY FINANCED QUARTERS AT HIS PERMANENT STATION AND WE MAY NOT PROVIDE SUCH AN EXCEPTION ON THE BASIS THAT IT IS INEQUITABLE NOT TO DO SO. THE ABSENCE OF SUCH AN EXCEPTION STEMS FROM THE LAW WHICH PROVIDES IN SUBSTANCE THAT A MEMBER WHO IS ASSIGNED GOVERNMENT QUARTERS ADEQUATE FOR HIMSELF AND HIS DEPENDENTS IF WITH DEPENDENTS, IS NOT ENTITLED TO A MONEY ALLOWANCE FOR QUARTERS IN HIS OWN RIGHT WHILE IN A NONTRAVEL STATUS.

HOWEVER, THE TEMPORARY OCCUPANCY BY THE DEPENDENTS OF GOVERNMENT QUARTERS AT THE SAFE HAVEN IS SOMEWHAT ANALOGOUS TO A DEPENDENT'S OCCUPANCY OF GOVERNMENT FACILITIES WHILE ON A SOCIAL VISIT OF TEMPORARY NATURE SINCE IN THAT CASE THE MEMBER ALSO CONTINUES TO MAINTAIN QUARTERS FOR HIS DEPENDENT. IN OUR DECISION OF FEBRUARY 11, 1958, 37 COMP. GEN. 517, WE HELD THAT A MEMBER'S WIFE MAY OCCUPY GOVERNMENT FACILITIES WHILE ON A SOCIAL VISIT OF A TEMPORARY NATURE WITHOUT THE LOSS TO THE MEMBER OF HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS FOR HER FOR A PERIOD OF 3 MONTHS. ALSO, IN OUR DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332, IN ANSWER TO QUESTION 19, WE SAID THAT OTHERWISE PROPER FAMILY SEPARATION ALLOWANCE PAYMENTS MAY BE MADE TO A MEMBER UNDER 37 U.S.C. 427 (A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) FOR A SIMILAR MAXIMUM PERIOD WHERE THE FACTS CLEARLY SHOW THAT THE DEPENDENTS ARE MERELY VISITING AT OR NEAR THE PERMANENT DUTY STATION HAVE EFFECTED A CHANGE OF RESIDENCE.

ALSO, IN THE DECISION OF OCTOBER 9, 1963, IN ANSWER TO QUESTION 18, WE HELD THAT WHEN DEPENDENTS ARE EVACUATED FROM AREAS OUTSIDE THE UNITED STATES, UNDER PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS, DUE TO UNUSUAL OR EMERGENCY CIRCUMSTANCES (SUCH AS WAR, RIOTS, CIVIL UNREST, ETC.), THE EFFECT OF SUCH FORCED EVACUATION WOULD BE TO CONVERT THE MEMBER'S POST OF DUTY TO A RESTRICTED STATION. IN SUCH CASES, WE SAID THAT PAYMENT OF FAMILY SEPARATION ALLOWANCE WOULD BE PROPER IF THE CONDITIONS OF THE STATUTE OTHERWISE ARE MET. NO CONSIDERATION, HOWEVER, WAS GIVEN TO THE MATTER OF OCCUPANCY OF GOVERNMENT QUARTERS AT THE SAFE HAVEN AREA.

PRESUMABLY, DEPENDENTS WHO ARE EVACUATED TO A TEMPORARY SAFE HAVEN WILL REMAIN THERE FOR ONLY A RELATIVELY SHORT PERIOD PENDING FURTHER TRANSPORTATION TO A DESIGNATED PLACE AS PROVIDED IN PARAGRAPH M7101-1 OF THE REGULATIONS, OR RETURN TO THE PLACE FROM WHICH EVACUATED. IN VIEW OF THE REPRESENTATIONS MADE THAT THE MEMBER MUST CONTINUE TO MAINTAIN AND PAY RENTAL FOR HIS PRIVATE HOUSING DURING THE EMERGENCY EVACUATION PERIOD IN ORDER TO HAVE QUARTERS AVAILABLE UPON RETURN OF HIS DEPENDENTS AND TO HOUSE HIS PERSONAL EFFECTS DURING SUCH EMERGENCY PERIOD, WE HAVE CONCLUDED UPON FURTHER CONSIDERATION OF THE MATTER THAT, SINCE THE OCCUPANCY OF GOVERNMENT QUARTERS BY THE MEMBER AND HIS DEPENDENTS WILL BE OF SHORT DURATION AND RESULTS FROM CIRCUMSTANCES BEYOND THEIR CONTROL, THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS AND FAMILY SEPARATION ALLOWANCE, TYPE II, MAY CONTINUE TO BE CREDITED TO THE MEMBER'S PAY ACCOUNT IN THE CIRCUMSTANCES PRESENTED UNTIL SUCH TIME AS THE DEPENDENTS ARE AUTHORIZED TO RETURN TO MEMBER'S PERMANENT DUTY STATION OR ARRIVE AT THE DESIGNATED PLACE AS CONTEMPLATED BY PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS.

THE DECISION OF JUNE 21, 1967, 46 COMP. GEN. 869, IS MODIFIED ACCORDINGLY.