B-153318, JULY 17, 1964, 44 COMP. GEN. 12

B-153318, JULY 17, 1964, 44 COMP. GEN. 12

QUARTERS ALLOWANCE - ENTITLEMENT - QUARTERS FURNISHED BY NORTH ATLANTIC TREATY ORGANIZATION WHEN OFFICERS OF THE UNIFORMED SERVICES AT HEADQUARTERS ALLIED FORCES SOUTHERN EUROPE ARE FURNISHED QUARTERS LEASED BY THE NORTH ATLANTIC TREATY ORGANIZATION FOR OCCUPANCY BY UNITED STATES AND FOREIGN PERSONNEL AND SECURED WITH FUNDS CONTRIBUTED IN PART BY THE UNITED STATES, THEY ARE NOT ENTITLED TO QUARTERS AND HOUSING ALLOWANCES, THE LEASED QUARTERS BEING CONSIDERED "GOVERNMENT QUARTERS" WITHIN THE CONTEMPLATION OF PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS, NOTWITHSTANDING A REDEFINITION OF THE TERM "GOVERNMENT QUARTERS" DELETED REFERENCE TO A FOREIGN GOVERNMENT, AND THE PAYMENT BY THE OFFICE OF A $25 MONTHLY SERVICE CHARGE, AMOUNTING TO 80 CENTS PER DAY, COVERNING CURRENT OPERATING COSTS FOR LAUNDERING, CLEANING, HEATING, ETC., AND NOT CAPITAL OUTLAY, THE SERVICE CHARGE DOES NOT CONSTITUTE RENTAL AND, THEREFORE, FURNISHES NO BASIS TO AUTHORIZE A QUARTERS AND HOUSING ALLOWANCE TO AN OFFICER OCCUPYING QUARTERS LEASED BY THE NORTH ATLANTIC TREATY ORGANIZATION.

TO CAPTAIN E. T. HARRIS, JULY 17, 1964:

THERE HAS BEEN FORWARDED HERE YOUR LETTER OF MAY 4, 1964, WITH ENCLOSURE (ADDRESSED TO HEADQUARTERS COMMANDANT, HEADQUARTERS COMMAND, AFSE NAVY 510, FPO, NY), IN THE NATURE OF A CLAIM FOR QUARTERS AND HOUSING ALLOWANCES WHILE OCCUPYING QUARTERS AT HEADQUARTERS ALLIED FORCES SOUTHERN EUROPE. IT IS NOT CLEAR FROM YOUR LETTER WHETHER YOU ARE FILING A CLAIM IN YOUR OWN BEHALF AS AN OFFICER AFFECTED BY OUR DECISION OF FEBRUARY 18, 1964, B-153318, WHICH YOU CITE, OR WHETHER YOUR LETTER IS INTENDED AS A CLAIM OF ALL THE OFFICERS CONCERNED--- WHICH IS NOT PROPERLY BEFORE US. ON THE ASSUMPTION THAT YOU ARE DIRECTLY CONCERNED, YOUR LETTER WILL BE TREATED AS A CLAIM FOR QUARTERS AND HOUSING ALLOWANCES.

IN OUR DECISION OF FEBRUARY 18, 1964, B-153318, CITED BY YOU, THERE WAS CONSIDERED THE QUESTION WHETHER THE OFFICERS' QUARTERS AT HEADQUARTERS ALLIED FORCES SOUTHERN EUROPE, ARE GOVERNMENT QUARTERS WITHIN THE MEANING OF PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS FOR QUARTERS AND HOUSING ALLOWANCE PURPOSES WHEN SUCH QUARTERS ARE OCCUPIED BY MEMBERS OF THE ARMED FORCES OF THE UNITED STATES ON A PERMANENT BASIS. IN THAT DECISION WE POINTED OUT THAT, SINCE THE COMPOUND WHICH INCLUDES THE FACILITIES IN QUESTION (AF SOUTH BOQ) ARE LEASED AND PAID FOR WITH NATO INTERNATIONAL FUNDS, WHICH FUNDS ARE CONTRIBUTED BY ALL THE NATIONS CONCERNED INCLUDING THE UNITED STATES,AND SINCE THE OFFICERS WHO OCCUPY THE QUARTERS INCUR NO EXPENSE FOR THE RENTAL OF SUCH QUARTERS, OTHER THAN A SMALL SERVICE CHARGE OF 80 CENTS A DAY, WHICH IS NOT IN THE NATURE OF A RENTAL CHARGE, IT WAS OUR VIEW THAT THE QUARTERS FURNISHED UNITED STATES PERSONNEL MUST BE CONSIDERED AS HAVING BEEN FURNISHED BY OR ON BEHALF OF THE UNITED STATES. WE CONCLUDED IN THAT DECISION THAT, CONSIDERING THAT THE RENTAL FUNDS INVOLVED WERE DERIVED DIRECTLY FROM CONTRIBUTIONS FROM THE UNITED STATES AND FOREIGN GOVERNMENTS, THE QUARTERS IN QUESTION COME WITHIN THE SCOPE OF THE DEFINITION OF "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS AND, CONSEQUENTLY, THERE IS NO ENTITLEMENT TO A QUARTERS OR HOUSING ALLOWANCE WHILE THE OFFICERS CONCERNED ARE OCCUPYING SUCH QUARTERS.

WITH YOUR LETTER YOU ENCLOSE A COPY OF SHAPE FINANCIAL DIRECTIVE NO. 9, DATED OCTOBER 31, 1963, GOVERNING FINANCIAL OPERATION OF BACHELOR OFFICERS' QUARTERS. YOU EXPRESS THE VIEW THAT IN THE LIGHT OF THE INFORMATION CONTAINED IN THAT DIRECTIVE, THE FACT THAT THE QUARTERS ARE NOT CONTROLLED BY A UNIFORMED SERVICE OF THE UNITED STATES AND SINCE A MONTHLY RENTAL OF $25 IS CHARGED, THE QUARTERS AND HOUSING ALLOWANCES SHOULD BE REINSTATED FOR U.S. OFFICERS RESIDING IN THE FACILITIES IN QUESTION. ALSO, YOU STATE THAT THE QUARTERS IN QUESTION DO NOT MEET THE ARMY REGULATIONS MINIMUM STANDARDS OF ADEQUACY AND THAT THE RENTAL CHARGE OF $25 IS GROSSLY EXCESSIVE IN COMPARISON TO SIMILAR QUARTERS IN CONTINENTAL UNITED STATES. YOU FURTHER REQUEST THAT, IN THE EVENT THE ALLOWANCES CANNOT BE REINSTATED, THE MONTHLY RENTAL FEE BE REDUCED.

PARAGRAPH 4301-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 405 OF TITLE 37, U.S. CODE, STATES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COST EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. PARAGRAPH 4301-3B (2) OF THE REGULATIONS EXPRESSLY AUTHORIZES PAYMENT OF A HOUSING ALLOWANCE TO A MEMBER WITHOUT DEPENDENTS ONLY FOR THOSE DAYS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE TO HIM AT HIS PERMANENT DUTY STATION.

WE FIND NOTHING IN THE FINANCIAL DIRECTIVE OF OCTOBER 31, 1963, WHICH WOULD CHANGE IN ANY WAY THE CONCLUSION IN OUR DECISION OF FEBRUARY 18, 1964. THAT DIRECTIVE, AS WE UNDERSTAND IT, GOVERNS THE FINANCIAL OPERATION OF BACHELOR OFFICER'S QUARTERS UNDER THE JURISDICTION OF THE NORTH ATLANTIC TREATY ORGANIZATION AS IMPLEMENTED BY SUPREME HEADQUARTERS, ALLIED POWERS, EUROPE. OUR DECISION OF FEBRUARY 18, 1964, INVOLVED LAWS AND REGULATIONS GOVERNING ENTITLEMENT TO A QUARTERS AND HOUSING ALLOWANCE FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND, THEREFORE, ANY DIRECTIVE OR INSTRUCTIONS NOT CONSISTENT WITH THE PROPER APPLICATION OF THOSE LAWS AND REGULATIONS ARE NOT FOR CONSIDERATION IN DETERMINING ENTITLEMENT TO ALLOWANCES OF MEMBERS OF SUCH ARMED FORCES. YOUR LETTER OF MAY 4, 1964, CONTAINS NOTHING WHICH WAS NOT PREVIOUSLY CONSIDERED IN OUR DECISION. THE INFORMATION WHICH YOU HAVE FURNISHED MERELY CONFIRMS OUR PREVIOUS UNDERSTANDING THAT THE QUARTERS INVOLVED WERE LEASED BY NATO WITH FUNDS CONTRIBUTED IN PART BY THE UNITED STATES AND THAT SUCH QUARTERS WERE OBTAINED FOR THE PURPOSE OF OCCUPANCY BY U.S. AND FOREIGN PERSONNEL ASSIGNED TO NATO. THE QUARTERS WERE ASSIGNED TO THE UNITED STATES OFFICERS CONCERNED BY REASON OF THEIR OFFICIAL POSITION AS AGENTS OF THE UNITED STATES AND WERE OBTAINED, IN PART, FOR THAT PURPOSE. THEREFORE, THERE IS NO PROPER BASIS TO CONCLUDE THAT YOU WERE NOT FURNISHED GOVERNMENT QUARTERS WITHIN THE CONTEMPLATION OF THE APPLICABLE LAW AND REGULATIONS.

AS TO THE MONTHLY RENTAL CHARGE OF $25, IT AMOUNTS TO A SERVICE CHARGE OF 80 CENTS A DAY AND THE QUESTIONS OF ADEQUACY OF QUARTERS AND THE AMOUNT TO BE CHARGED FOR THE USE OF SUCH QUARTERS ARE PRIMARILY ADMINISTRATIVE MATTERS. IT APPEARS FROM THE FINANCIAL DIRECTIVE WHICH YOU HAVE FURNISHED THAT THE $25 MONTHLY CHARGE DOES NOT INCLUDE ANY AMOUNT TO COVER THE CAPITAL OUTLAY IN ESTABLISHING THE BOQ'S OR FOR THE COST OF REPAIR AND MAINTENANCE OF THE BUILDINGS BUT MERELY COVERS CURRENT OPERATING COSTS FOR ITEMS SUCH AS LAUNDERING AND REPLACEMENT OF LINEN, CLEANING, HEATING AND ELECTRICITY. THUS, IT IS CLEAR THAT IT DOES NOT CONSTITUTE A RENTAL CHARGE FOR THE QUARTERS FURNISHED.

WE HAVE NOT OVERLOOKED THE FACT THAT THE TERM "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS AND CONSIDERED IN OUR DECISION OF FEBRUARY 18, 1964, HAS BEEN REDEFINED BY CHANGE 134 TO THE REGULATIONS DATED FEBRUARY 1, 1964. THE TERM "GOVERNMENT QUARTERS" AS NOW DEFINED IN PARAGRAPH 1150-5 OF THE REGULATIONS MEANS, IN PERTINENT PART,"ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBERS CONCERNED.' THE REFERENCE IN THE PRIOR DEFINITION WITH RESPECT TO QUARTERS FURNISHED BY A FOREIGN GOVERNMENT HAS BEEN DELETED. WE ARE NOT AWARE OF THE BASIS FOR REDEFINING THE TERM "GOVERNMENT QUARTERS," BUT THE NEW DEFINITION OF GOVERNMENT QUARTERS WOULD NOT ALTER OR CHANGE THE CONCLUSION WE REACHED IN THE DECISION OF FEBRUARY 18, 1964, INSOFAR AS IT IS APPLICABLE TO THE QUARTERS IN DECISION. SINCE THE UNITED STATES GOVERNMENT CONTRIBUTES PRO RATA TO THE INTERNATIONAL FUND FOR NATO'S OPERATION AND SINCE THE FACILITIES IN QUESTION ARE LEASED AND PAID FOR WITH THOSE FUNDS FOR THE USE OF THE PERSONNEL OF THE NATIONS CONCERNED INCLUDING THE UNITED STATES, THE QUARTERS MUST BE CONSIDERED AS COMING WITHIN THE SCOPE OF THE DEFINITION OF ,GOVERNMENT QUARTERS" AS REDEFINED IN PARAGRAPH 1150-5.

ON THE RECORD BEFORE US, THERE IS NO BASIS FOR A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF FEBRUARY 18, 1964. CONSEQUENTLY, THERE IS NO BASIS FOR AUTHORIZING A QUARTERS AND HOUSING ALLOWANCE TO YOU WHILE OCCUPYING THE QUARTERS IN QUESTION.