B-106613, DEC 11, 1953

B-106613, DEC 11, 1953

PRECIS-UNAVAILABLE

LIEUTENANT LEWIS CASTNER, JR., ASC:

IN DECISION DATED MAY 15, 1952, B-106613, IT WAS HELD THAT NO AUTHORITY EXISTED UNDER THE LAW FOR THE ALLOWANCE OF YOUR CLAIM FOR A STATION PER DIEM ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD JANUARY 6 TO NOVEMBER 16, 1950, INCIDENT TO DUTY PERFORMED BY YOU AS AN ENLISTED MEMBER OF THE UNITED STATES MILITARY MISSION WITH THE IRANIAN ARMY AT TEHERAN, IRAN. YOU WERE ADVISED IN THAT DECISION, HOWEVER, THAT IT APPEARED THAT YOU WERE ENTITLED FOR THAT PERIOD TO A STATION QUARTERS ALLOWANCE AT THE RATE OF $1.25 PER DAY AND THAT SETTLEMENT WOULD ISSUE ON THAT BASIS. BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MAY 28, 1952, YOU WERE ALLOWED THE SUM OF $391.25 REPRESENTING STATION QUARTERS ALLOWANCE AT THE $1.25 RATE FOR 313 DAYS COVERING THE INDICATED PERIOD.

PARAGRAPH 4A, DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35- 3080-1, DATED MAY 23, 1949, PROVIDED THAT MILITARY PERSONNEL IN A PAY STATUS PERMANENTLY STATIONED IN A COUNTRY WHERE FOREIGN DUTY STATION ALLOWANCE RATES HAD BEEN ESTABLISHED WERE ENTITLED TO THE PRESCRIBED ALLOWANCES UPON THE BASIS OF AVAILABILITY OF GOVERNMENT QUARTERS AND GOVERNMENT MESSES. HOWEVER, IN RECOGNITION OF THE DIFFERENCE IN STATUS BETWEEN ENLISTED PERSONNEL GENERALLY AND THOSE WHO WERE ASSIGNED TO SERVE AS MEMBERS OF MILITARY MISSIONS TO FOREIGN GOVERNMENTS AND WHO RECEIVED ADDITIONAL PAY OR ALLOWANCES FROM SUCH FOREIGN GOVERNMENTS, PARAGRAPH 10C OF THOSE REGULATIONS PROVIDED THAT PERSONNEL SO ASSIGNED SHOULD BE PAID ONLY THE ALLOWANCES PRESCRIBED IN CLASS I, SECTION II OF THE REGULATIONS IN ADDITION TO ANY ALLOWANCES RECEIVED FROM THE FOREIGN GOVERNMENT. THE DECISION OF MAY 19, 1952, WAS ON THE BASIS THAT AS A MEMBER OF A MILITARY MISSION YOU WERE ENTITLED UNDER SUCH REGULATIONS TO A STATION QUARTERS ALLOWANCE OF $1.25 PER DAY FOR THE PERIOD OF YOUR CLAIM, THAT RATE BEING THE ONE PRESCRIBED IN CLASS I FOR ENLISTED PERSONNEL.

HOWEVER, PARAGRAPH 4C, DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 35 3080 -1, AS ADDED BY CHANGE 4, DATED DECEMBER 22, 1949, IN EFFECT DURING THE PERIOD COVERED BY YOUR CLAIM, PROVIDED AS FOLLOWS:

"EFFECTIVE 1 OCTOBER 1949, WHEN ENLISTED PERSONNEL ARE PAID THE BASIC ALLOWANCES FOR QUARTERS UNDER THE CAREER COMPENSATION ACT OF 1949 (PUBLIC LAW, 351-81ST CONG., JAAF BUL. 30, 1949), THEY SHALL BE ENTITLED IN ADDITION THERETO, TO THE QUARTERS PORTION OF THE STATION ALLOWANCE PER DIEM PROVIDED FOR OFFICERS WHICH WILL BE IN LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS."

PRIOR TO OCTOBER 1, 1949, A MONETARY ALLOWANCE FOR QUARTERS WAS NOT AUTHORIZED FOR ENLISTED MEN RECEIVING FOREIGN STATION QUARTERS ALLOWANCES. CONSEQUENTLY, TO RELIEVE THE RESULTING DISPARITY ARISING BECAUSE OFFICERS WERE ENTITLED TO RENTAL ALLOWANCE IN ADDITION TO STATION QUARTERS ALLOWANCES, THE RATES FOR THE STATION QUARTERS ALLOWANCES WERE FIXED SOMEWHAT HIGHER FOR ENLISTED PERSONNEL THAN FOR OFFICERS. UPON THE ENACTMENT OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, HOWEVER, ENLISTED PERSONNEL NOT FURNISHED GOVERNMENT QUARTERS AND NOT DRAWING "SAVED PAY" UNDER THE PRIOR PAY LAWS BECAME ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN ADDITION TO THE FOREIGN STATION QUARTERS ALLOWANCES, THUS MAKING THEIR SITUATION IN THAT RESPECT COMPARABLE TO THAT OF OFFICERS, AND GIVING RISE TO THE NEED FOR FURTHER ADJUSTMENT OF STATION QUARTERS ALLOWANCE RATES. THE ABOVE-QUOTED PARAGRAPH 4E WAS ISSUED FOR THE PURPOSE OF EFFECTING THAT ADJUSTMENT. THE PROVISIONS OF THAT PARAGRAPH WERE APPLICABLE TO ENLISTED MISSION PERSONNEL IN THE SAME MANNER AND TO THE SAME EXTENT AS TO NON-MISSION PERSONNEL ON FOREIGN DUTY, THE ONLY DIFFERENCE BEING THAT THE MISSION PERSONNEL, DUE TO THEIR RECEIVING ADDITIONAL PAY OR ALLOWANCES FROM THE FOREIGN GOVERNMENT, WERE PLACED IN A LOWER RATE CLASSIFICATION IN ORDER THAT THEIR ECONOMIC POSITION MIGHT MORE NEARLY APPROXIMATE THAT OF NON-MISSION PERSONNEL.

CONSEQUENTLY, UNDER SUCH PROVISIONS ENLISTED MISSION PERSONNEL WERE ENTITLED TO THE QUARTERS PORTION OF THE STATION ALLOWANCE PROVIDED FOR OFFICERS IN SAID CLASS I WHICH WAS "NONE," RATHER THAN TO THE $1.25 PER DAY PROVIDED FOR ENLISTED MEN IN THAT CLASS WHO WERE DRAWING "SAVED PAY" AND THEREFORE WERE NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. THAT CONNECTION, IT WILL BE NOTED THAT THE REDUCTION IN STATION QUARTERS ALLOWANCE SO EFFECTED BY THE PROVISIONS OF PARAGRAPH 4E QUOTED ABOVE WAS MORE THAN OFFSET IN THE CASES OF BOTH MISSION AND REGULAR ENLISTED PERSONNEL BY THE BASIC ALLOWANCE FOR QUARTERS TO WHICH THEY BECAME ENTITLED UNDER THE CAREER COMPENSATION ACT WHEN NOT FURNISHED GOVERNMENT QUARTERS.

FOR THE INDICATED REASONS THAT PORTION OF THE DECISION OF MAY 15, 1952, CONCERNING YOUR RIGHT TO STATION QUARTERS ALLOWANCE IS REVERSED. THE ALLOWANCE TO YOU OF A STATION QUARTERS ALLOWANCE IN THE SETTLEMENT OF MAY 28, 1952, WAS IN ERROR UNDER THE LAW AND, ACCORDINGLY, YOU ARE REQUESTED TO RETURN TO THIS OFFICE BY CHECK, OR MONEY ORDERS, MADE PAYABLE TO THE TREASURER OF THE UNITED STATES, THE AMOUNT OF $391.25 ERRONEOUSLY ALLOWED ON YOUR CLAIM.