B-128509, AUG. 29, 1956

B-128509, AUG. 29, 1956

TO CHIEF WARRANT OFFICER HAROLD H. GOODWILL:

FURTHER REFERENCE IS MADE TO YOUR FIRST INDORSEMENT DATED JUNE 4, 1956, TO OUR SETTLEMENT OF JULY 8, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION QUARTERS AND SUBSISTENCE PER DIEM ALLOWANCE FOR THE PERIOD JUNE 16, 1949, TO FEBRUARY 28, 1951, WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. YOU ALSO CLAIM THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD MARCH 1 TO 31, 1951.

SINCE YOU SAY THAT QUARTERS WERE ASSIGNED TO YOU ON OCTOBER 21, 1949, THE INDORSEMENT WILL BE CONSIDERED AS A REQUEST FOR RECONSIDERATION OF THAT PART OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD JUNE 16 TO OCTOBER 20, 1949. AS TO THAT CLAIM YOU ARE ADVISED THAT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY WAS BASED ON NONAVAILABILITY OF GOVERNMENT QUARTERS TO THE OFFICER HIMSELF IRRESPECTIVE OF WHETHER DEPENDENTS ACCOMPANIED HIM. CONSEQUENTLY, AVAILABILITY OF BACHELOR QUARTERS WAS SUFFICIENT TO BAR PAYMENT OF THE QUARTERS PER DIEM. 31 COMP. GEN. 399. IT IS UNDERSTOOD THAT BACHELOR QUARTERS WERE AVAILABLE TO OFFICERS AT ALL TIMES DURING THE PERIOD OF YOUR CLAIM. HENCE, PAYMENT OF YOUR CLAIM FOR SUCH ALLOWANCE FOR THE PERIOD JUNE 16 TO SEPTEMBER 30, 1949, IS NOT AUTHORIZED.

RESPECTING THE CLAIM FOR SUCH ALLOWANCE FOR THE PERIOD OCTOBER 1 TO 20, 1949, SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, GRANTED AUTHORITY TO CONSIDER THE COST OF LIVING OF DEPENDENTS AS WELL AS PERSONAL COSTS IN FIXING RATES OF PER DIEM FOR FOREIGN DUTY. SECTION 303 (H) OF THE ACT, HOWEVER, PROVIDED FOR THE PROMULGATION OF REGULATIONS TO IMPLEMENT THE VARIOUS PROVISIONS OF SECTION 303 AND STIPULATED THAT "NO PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN ISSUED.' THE FIRST REGULATIONS WHICH PURPORT TO CONSIDER THE COST OF LIVING OF DEPENDENTS OF ARMY PERSONNEL WERE ISSUED UNDER DATE OF JUNE 30, 1950, AND THEY AMENDED PARAGRAPH 2E OF SPECIAL REGULATIONS 35-3080-1, TO PROVIDE THAT FOR PERSONNEL IN A NONTRAVEL STATUS WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF THEIR PERMANENT STATIONS, THE TERM "GOVERNMENT QUARTERS" SHALL INCLUDE ANY GOVERNMENT QUARTERS ADEQUATE FOR ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS OR GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT OCCUPIED BY THE MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS. WHILE SUCH REGULATIONS ARE STATED TO BE EFFECTIVE AS OF OCTOBER 1, 1949, THE PROVISIONS OF LAW ON WHICH THEY ARE BASED DID NOT BECOME EFFECTIVE UNTIL THE DATE OF ISSUANCE OF SUCH REGULATIONS. THEREFORE, THEY MAY NOT BE CONSIDERED AS EFFECTIVE PRIOR TO JUNE 30, 1950, AND YOU ARE NOT ENTITLED TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD OCTOBER 1 TO 20, 1949.

YOUR CLAIM FOR THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD JUNE 16, 1949, TO FEBRUARY 28, 1951, IS SUBSTANTIALLY SIMILAR TO THAT OF CAPTAIN FLOYD R. STANFIELD, CONSIDERED IN OUR DECISION DATED MAY 17, 1953, B-111431, COPY ENCLOSED. FOR THE REASONS STATED IN THAT DECISION THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR SUCH SUBSISTENCE PORTION DURING THE PERIOD INVOLVED.

ACCORDINGLY, THE SETTLEMENT OF JULY 8, 1952, IS SUSTAINED.

WITH REGARD TO YOUR CLAIM IN THE INDORSEMENT FOR THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD MARCH 1 TO 31, 1951, WHICH YOU SAY WAS COLLECTED FROM YOUR JUNE 1953 PAY PURSUANT TO A NOTICE OF EXCEPTION, YOU ARE ADVISED THAT SUCH CLAIM WILL BE BE GIVEN CONSIDERATION BY OUR CLAIMS DIVISION AND A FURTHER COMMUNICATION IN THAT REGARD WILL BE SENT TO YOU.