B-132015, FEBRUARY 11, 1958, 37 COMP. GEN. 517
Highlights
OR A GUEST HOUSE WHILE ON A SOCIAL VISIT OF A TEMPORARY NATURE WITHOUT LOSS TO THE MEMBER OF HIS RIGHT TO CONTINUE TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT IS THREE MONTHS. THE FACT THAT THE MEMBER DOES NOT CONTINUE TO MAINTAIN PRIVATE QUARTERS FOR HIS WIFE DURING THE PERIOD OR THAT HE SUBLEASES HIS PRIVATE QUARTERS IS IMMATERIAL TO THE MEMBER'S RIGHT TO SUCH ALLOWANCE. 1958: FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 10. IS AS FOLLOWS: 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 (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.
B-132015, FEBRUARY 11, 1958, 37 COMP. GEN. 517
MILITARY PERSONNEL - QUARTERS ALLOWANCE - GOVERNMENT QUARTERS, VISITS, ETC. THE MAXIMUM PERMISSIBLE PERIOD UNDER EXECUTIVE ORDER NO. 10204, DURING WHICH THE WIFE OF A MEMBER OF THE UNIFORMED SERVICES MAY OCCUPY GOVERNMENT FACILITIES, PUBLIC QUARTERS ASSIGNED TO ANOTHER MEMBER, OR A GUEST HOUSE WHILE ON A SOCIAL VISIT OF A TEMPORARY NATURE WITHOUT LOSS TO THE MEMBER OF HIS RIGHT TO CONTINUE TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT IS THREE MONTHS; AND THE FACT THAT THE MEMBER DOES NOT CONTINUE TO MAINTAIN PRIVATE QUARTERS FOR HIS WIFE DURING THE PERIOD OR THAT HE SUBLEASES HIS PRIVATE QUARTERS IS IMMATERIAL TO THE MEMBER'S RIGHT TO SUCH ALLOWANCE.
TO THE SECRETARY OF DEFENSE, FEBRUARY 11, 1958:
FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 10, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS AS TO THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO BASIC ALLOWANCE FOR QUARTERS.
SECTION 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, IS AS FOLLOWS:
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 UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.
IN B-132015, JULY 23, 1957, 37 COMP. GEN. 47, THERE WAS CONSIDERED THE FOLLOWING QUESTIONS, PRESENTED AND DISCUSSED IN COMMITTEE ACTION NO. 184, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE:
2. IF A MEMBER OF THE UNIFORMED SERVICES IS PROPERLY IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS WIFE, MAY HE CONTINUE TO RECEIVE SUCH ALLOWANCE FOR PERIODS:
A. HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION AND HE AND HIS WIFE OCCUPY GOVERNMENT FACILITIES AT THE TEMPORARY DUTY STATION?
B. HE IS A PATIENT IN A GOVERNMENT HOSPITAL AWAY FROM HIS PERMANENT DUTY STATION AND HIS WIFE VISITS HIM AND OCCUPIES A GUEST HOUSE NEAR THE HOSPITAL?
C. HE AND HIS WIFE OCCUPY A GUEST HOUSE AWAY FROM HIS PERMANENT DUTY STATION WHILE SHE IS AWAITING CONFINEMENT IN A GOVERNMENT HOSPITAL?
3.QUESTIONS 1 AND 2 CONTEMPLATE OCCUPANCY OF GOVERNMENT FACILITIES (QUARTERS, GUEST HOUSE, AND/OR HOSPITAL, AS APPLICABLE) FOR A PERIOD OF ONE WEEK OR LESS. IF THESE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE, WOULD THE ANSWERS BE THE SAME IF THE PERIOD WERE LONGER?
IT WAS STATED IN THE ABOVE DECISION, AT PAGES 49 AND 50, THAT:
IN QUESTIONS 2 (A), 2 (B), AND 2 (C) IT REASONABLY MAY BE CONSIDERED THAT THE DEPENDENTS' OCCUPANCY OF GOVERNMENT QUARTERS IN EACH INSTANCE WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.' ACCORDINGLY, QUESTIONS 2 (A), 2 (B), AND 2 (C) ARE ANSWERED IN THE AFFIRMATIVE, SUCH QUESTIONS BEING UNDERSTOOD TO RELATE TO PERIODS OF OCCUPANCY OF GOVERNMENT QUARTERS OF ONE WEEK OR LESS.
A DIFFERENT ANSWER TO QUESTIONS 2 (A), 2 (B), AND 2 (C) WOULD NOT BE REQUIRED BY THE SOLE FACT THAT OCCUPANCY OF GOVERNMENT FACILITIES UNDER ANY OF THE CONDITIONS SET OUT IN THOSE QUESTIONS CONTINUES FOR MORE THAN ONE WEEK BUT THE LENGTH OF THE PERIOD OF OCCUPANCY WOULD BE AN IMPORTANT FACTOR IN DETERMINING WHETHER THE OCCUPANCY WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.' HENCE, IN ANY CASE WHEN THE OCCUPANCY CONTINUES FOR MORE THAN ONE WEEK, ALL THE FACTS AND CIRCUMSTANCES SHOULD BE EXAMINED CLOSELY BEFORE CONCLUDING THAT THE OCCUPANCY PROPERLY MAY BE CONSIDERED TO BE FOR THE PURPOSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. QUESTION 3 IS ANSWERED ACCORDINGLY.
THE LETTER OF DECEMBER 10, 1957, REFERS TO THE ABOVE DECISION OF JULY 23, 1957, AND REQUESTS DECISION ON THE FOLLOWING QUESTIONS, PRESENTED AND DISCUSSED IN COMMITTEE ACTION NO. 200, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE:
1. WHAT IS THE MAXIMUM PERIOD A MEMBER OF THE UNIFORMED SERVICES MAY CONTINUE TO RECEIVE OTHERWISE PROPER CREDIT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS WHERE HE AND HIS DEPENDENTS OCCUPY GOVERNMENT FACILITIES UNDER ANY OF THE CIRCUMSTANCES SET FORTH IN QUESTIONS 2A THROUGH 2C OF COMMITTEE ACTION NO. 184 IF DURING SUCH PERIOD:
A. HE CONTINUES TO MAINTAIN PRIVATE QUARTERS FOR THE OCCUPANCY OF HIS DEPENDENTS, AND NEITHER HE NOR HIS DEPENDENTS RECEIVE ANY REVENUE FOR THE USE OF THE QUARTERS?
B. HE DOES NOT CONTINUE TO MAINTAIN PRIVATE QUARTERS FOR THE OCCUPANCY OF HIS DEPENDENTS, OR CONTINUES TO MAINTAIN PRIVATE QUARTERS AND RECEIVES A RENTAL FROM AN INDIVIDUAL TO WHOM THE QUARTERS HAVE BEEN SUBLEASED FOR THE PERIOD OF THE ABSENCE OF THE DEPENDENTS?
2. WHAT IS THE MAXIMUM PERIOD A MEMBER OF THE UNIFORMED SERVICES MAY CONTINUE TO RECEIVE OTHERWISE PROPER CREDIT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS WHERE HE AND HIS DEPENDENTS OCCUPY, DURING A SOCIAL VISIT WITH ANOTHER MEMBER, THE PUBLIC QUARTERS ASSIGNED TO THAT MEMBER, OR A GUEST HOUSE AT THAT INSTALLATION? STATING THIS QUESTION DIFFERENTLY, WHAT IS THE MAXIMUM PERIOD OF A "SOCIAL VISIT OF A TEMPORARY NATURE" WITHIN THE MEANING OF SECTION 3 OF EXECUTIVE ORDER NO. 10204 OF 15 JANUARY 1951?
AS PRESENTED AND ANSWERED IN THE DECISION OF JULY 23, 1957, QUESTIONS 2 (A), 2 (B), AND 2 (C) PERTAINED TO THE MATTER OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE. THE SUPPLEMENTAL QUESTIONS NOW PRESENTED FOR DECISION WILL BE CONSIDERED AS ALSO PERTAINING TO A DEPENDENT WIFE.
AS WAS SAID IN THE DECISION OF JULY 23, 1957, THE DEPENDENTS' OCCUPANCY OF GOVERNMENT QUARTERS IN EACH INSTANCE SET OUT IN QUESTIONS 2 (A), 2 (B) AND 2 (C) WAS "BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.' HENCE, QUESTIONS 1 (A) AND 1 (B) OF THE PRESENT SUBMISSION INVOLVE A DETERMINATION OF THE MAXIMUM PERMISSIBLE PERIOD UNDER EXECUTIVE ORDER NO. 10204, DURING WHICH A MEMBER'S WIFE MAY OCCUPY GOVERNMENT FACILITIES WHILE ON "A SOCIAL VISIT OF A TEMPORARY NATURE" WITHOUT LOSS TO THE MEMBER OF HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS FOR HER.
IN CONNECTION WITH QUESTION 1 (A) THERE IS FOR COMPARISON SECTION 302 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (C), WHICH PROVIDES, IN EFFECT, THAT AN OFFICER MAY CONTINUE TO BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR HIMSELF WHILE ON SEA DUTY FOR "TEMPORARY PERIODS OF LESS THAN 3 MONTHS" DESPITE THE FACT THAT DURING SUCH TEMPORARY PERIODS HE MAY HAVE BEEN FURNISHED QUARTERS ABOARD SHIP. ALSO, COMPARE 29 COMP. GEN. 280, ANSWER TO QUESTIONS (6) AND (7) AT PAGE 285 AND 286, WHERE IT WAS HELD THAT--- UNDER THE STATUTE THEN IN EFFECT REQUIRING THAT A FATHER OR MOTHER, TO BE HELD DEPENDENT, MUST RESIDE IN THE HOUSEHOLD OF THE MEMBER--- A PARENT'S ABSENCE FROM THE MEMBER'S HOUSEHOLD FOR NOT EXCEEDING 3 MONTHS AT ANY ONE TIME OR AN AGGREGATE OF 91 DAYS IN ANY 6-MONTH PERIOD WOULD NOT DEPRIVE THE MEMBER OF A BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT TO WHICH HE OTHERWISE WAS ENTITLED. BY ANALOGY TO THE THEORY OF THE ABOVE STATUTE AND DECISION, NAMELY, THAT AN ABSENCE OF THREE MONTHS OR LESS FROM A PRIVATELY RENTED HOME DOES NOT CONSTITUTE A GIVING UP OF RESIDENCE WITHIN THE CONTEMPLATION OF LAWS GRANTING BASIC ALLOWANCE FOR QUARTERS, WE THINK THAT A REASONABLE MAXIMUM FOR THE VISITS REFERRED TO IN QUESTIONS 2 (A), 2 (B), AND 2 (C), OF THE DECISION OF JULY 23, 1957, WOULD BE THREE MONTHS.
QUESTION 1 (A) OF THE PRESENT SUBMISSION IS ANSWERED ACCORDINGLY.
IN REGARD TO QUESTION 1 (B) IT WAS SAID IN THE DECISION OF JULY 23, 1957, THAT THE RULE IS THAT, IF A MEMBER IS NOT FURNISHED QUARTERS IN KIND FOR HIMSELF AND HIS DEPENDENTS, HE IS ENTITLED TO AN ALLOWANCE FOR QUARTERS. THE TEST, THEN, IS NOT WHETHER THE MEMBER MAINTAINED QUARTERS FOR HIS WIFE DURING HER TEMPORARY ABSENCE THEREFROM, BUT WHETHER THE GOVERNMENT MAY BE CONSIDERED TO HAVE PROVIDED QUARTERS FOR HER ELSEWHERE DURING SUCH ABSENCE. ACCORDINGLY, THE FACT THAT A MEMBER DID NOT CONTINUE TO MAINTAIN QUARTERS FOR HIS WIFE DURING HER ABSENCE THEREFROM ON "A SOCIAL VISIT OF A TEMPORARY NATURE" IS IMMATERIAL.
AS TO THE MATTER OF SUBLEASING PRIVATELY RENTED QUARTERS DURING THE WIFE'S TEMPORARY ABSENCE THEREFROM, THERE IS FOR COMPARISON 35 COMP. GEN. 596. IN THAT DECISION THERE WAS CONSIDERED THE RIGHT OF AN OFFICER OF THE NAVY TO RENTAL ALLOWANCE FOR A PERIOD DURING WHICH HE HAD OCCUPIED GOVERNMENT QUARTERS RENTED TO A CIVILIAN EMPLOYEE OF THE NAVY AND SUBLEASED BY HIM TO THE OFFICER. IT WAS SAID AT PAGE 599 THAT: " WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO A CIVILIAN EMPLOYEE SUCH QUARTERS CONSTITUTE THE EMPLOYEE'S HOME AND, IN THE ABSENCE OF A STATUTE OR REGULATION TO THE CONTRARY, THE EMPLOYEE IS FREE TO SHARE THE QUARTERS WITH OTHERS, OR TO PERMIT THEIR OCCUPANCY BY OTHERS WHILE ON LEAVE OF ABSENCE, IF HE SEES FIT.' IT SEEMS TO US THAT THE PRINCIPLE ENUNCIATED ABOVE SHOULD APPLY WITH AT LEAST EQUAL FORCE IN THE CASE OF QUARTERS RENTED BY A MEMBER FROM A CIVILIAN LANDLORD. HENCE, THE MATTER OF SUBLEASING IS IMMATERIAL HERE.
ACCORDINGLY, THE MAXIMUM PERIOD UNDER QUESTION 1 (B) OF THE PRESENT SUBMISSION ALSO IS THREE MONTHS.
THE MAXIMUM PERIOD UNDER QUESTION 2 OF THE PRESENT SUBMISSION IS THREE MONTHS. COMPARE ANSWERS TO QUESTIONS 1 (A) AND 1 (B).
IT IS IMPOSSIBLE TO DETERMINE A FIXED PERIOD FOR A VISIT OF A "TEMPORARY NATURE" WHICH, UNDER ALL CIRCUMSTANCES, WOULD SAFEGUARD THE INTERESTS OF THE GOVERNMENT WHILE NOT INFRINGING UPON THE PRIVILEGES INTENDED TO BE GRANTED TO SERVICE PERSONNEL. ACCORDINGLY, IN THE CONSIDERATION OF THE FOREGOING QUESTIONS, A LIBERAL MAXIMUM HAS BEEN SET WITH THE THOUGHT THAT ADMINISTRATIVE REGULATIONS MIGHT WELL BE ISSUED RESTRICTING VISITS UNDER CERTAIN CONDITIONS TO PERIODS LESS THAN THAT MAXIMUM.