B-132581, JUL. 26, 1957

B-132581, JUL. 26, 1957

TO S. F. LEADER, DISBURSING OFFICER, U.S. MARINE CORPS:

BY FIRST ENDORSEMENT OF JULY 15, 1957, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF JULY 9, 1957, REQUESTING ADVANCE DECISION AS TO THE LEGALITY OF MAKING PAYMENTS OF STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE TO CAPTAIN MELVIN W. MCLAUGHLIN, USMC, AND MASTER SERGEANT FRANK J. DIDDLEMEYER, USMC, FOR THE PERIODS FEBRUARY 1 TO MARCH 9, 1957, AND JANUARY 16 TO MARCH 1, 1957, RESPECTIVELY, IN THE CIRCUMSTANCES DISCUSSED BELOW.

IT IS STATED THAT CAPTAIN MCLAUGHLIN REPORTED AT THE MARINE CORPS AIR STATION, NAVY NO. 990, C/O FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA, FOR DUTY ON JANUARY 23, 1957, WITH HIS DEPENDENTS, AND OCCUPIED TRANSIENT OFFICER QUARTERS FURNISHED BY THE GOVERNMENT UNTIL JANUARY 31, 1957. THEN RENTED FURNISHED QUARTERS IN LANIKAI (KAILUA), OAHU, T.H., KNOWING THAT NEGOTIATIONS WERE UNDERWAY FOR THE SALE OF THE PROPERTY AND WITH THE UNDERSTANDING THAT HE AND HIS FAMILY COULD OCCUPY THE PREMISES ON A TEMPORARY BASIS UNTIL PERMANENT HOUSING COULD BE OBTAINED. SUCH PERMANENT HOUSING WAS SECURED AND OCCUPIED ON MAY 5, 1957.

SERGEANT DIDDLEMEYER'S DEPENDENTS ARE REPORTED TO HAVE ARRIVED WITH HIM AT THE AIR STATION ON JANUARY 15, 1957, AND IT APPEARS THAT THEY MOVED INTO THE HOUSE FURNISHED ONLY WITH A STOVE AND A REFRIGERATOR, IN LANIKAI, IN WHICH THEY STILL RESIDE, ALTHOUGH IT WAS UP FOR SALE AT THAT TIME. IS STATED THAT HE PURCHASED SOME ELECTRICAL APPLIANCES FROM HIS LESSOR AT A COST OF $200 AND THAT THE LESSOR CANCELLED HIS PLAN TO SELL THE HOUSE WHEN IT APPEARED THAT THE ENLISTED MAN WOULD BE A DESIRABLE TENANT AS EVIDENCED BY HIS PAYMENT OF RENT AND CARE OF THE HOUSE IN REPAINTING A PART OF IT. APPARENTLY THE ENLISTED MAN'S HOUSEHOLD GOODS DID NOT ARRIVE IN HAWAII UNTIL JANUARY 30 AND PART OF SUCH EFFECTS DID NOT BECOME AVAILABLE FOR HIS USE, BECAUSE OF DAMAGE, UNTIL AFTER THE PERIOD COVERED BY HIS CLAIM. WHILE IT SEEMS CLEAR THAT SOME INCONVENIENCE RESULTED FROM THE LACK OF FURNITURE AND THAT SOME EXPENSE WAS INCURRED IN THE PURCHASE OF SMALL HOUSEHOLD ITEMS, IT APPEARS THAT WITH THE USE OF FURNITURE LOANED BY FRIENDS, HIS FAMILY ACTUALLY USED THE HOUSE FOR BOTH SHELTER AND A PLACE TO PREPARE MEALS.

AS WAS STATED IN 33 COMP. GEN. 451, THE APPARENT PURPOSE OF THE REGULATIONS CONTAINED IN PARAGRAPH 4303-2A, JOINT TRAVEL REGULATIONS, IN ALLOWING THE TRAVEL RATE FOR PERIODS UP TO 45 DAYS FOLLOWING DATE OF ARRIVAL AT A STATION OUTSIDE THE UNITED STATES, IS TO PROVIDE REIMBURSEMENT FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS AND PUBLIC RESTAURANTS PENDING ASSIGNMENT OF PUBLIC QUARTERS OR WHILE THE MEMBER CONCERNED MAKES ARRANGEMENTS FOR SECURING OTHER PERMANENT LIVING ACCOMMODATIONS AT A STATION WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE. THE RECORD DOES NOT SHOW THAT THE MEMBERS HERE INVOLVED UTILIZED COMMERCIAL FACILITIES OF THAT KIND. THEY LIVED IN THE RENTED QUARTERS SECURED AND APPARENTLY PREPARED AND ATE THEIR MEALS IN SUCH QUARTERS. WHILE THEY FIRST WERE LED TO BELIEVE THAT THEY COULD NOT CONTINUE TO LIVE IN SUCH QUARTERS ON A PERMANENT BASIS, AND CAPTAIN MCLAUGHLIN LATER MOVED TO NEW PERMANENT QUARTERS, A MEMBER'S INTENT TO OCCUPY PRIVATE HOUSING FOR A TEMPORARY PERIOD IS NOT A DECISIVE FACTOR IN DETERMINING WHETHER SUCH HOUSING SHOULD BE REGARDED AS TEMPORARY LODGING WITHIN THE MEANING OF THE REGULATIONS. PARAGRAPH 4303-3A, JOINT TRAVEL REGULATIONS, AUTHORIZE PAYMENT OF STATION PER DIEM AT THE TRAVEL RATE ONLY WHEN A MEMBER IS REQUIRED TO SECURE TEMPORARY LODGINGS FOR HIMSELF AND HIS FAMILY. IF THE HOUSING SECURED AND OCCUPIED IS COMPARABLE TO HOUSING OCCUPIED BY OTHERS IN THE SAME LOCALITY ON A PERMANENT BASIS, IT IS NOT REGARDED AS TEMPORARY LODGING. B-129960, DECEMBER 21, 1956. THE QUARTERS OCCUPIED BY CAPTAIN MCLAUGHLIN AND SERGEANT DIDDLEMEYER APPEAR TO HAVE BEEN PERMANENT TYPE HOUSING AND WHILE THE FORMER STATES THAT HIS RENTAL WAS ON A TEMPORARY BASIS, NO INFORMATION HAS BEEN FURNISHED WHICH SHOWS THAT THE RENT PAID WAS SUBSTANTIALLY GREATER THAN THAT PAID BY OTHERS OCCUPYING SIMILAR QUARTERS ON A PERMANENT BASIS IN THAT LOCALITY. AS FAR AS THE ELECTRICAL APPLIANCES PURCHASED BY SERGEANT DIDDLEMEYER ARE CONCERNED, IT IS ASSUMED, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THEY WERE NEEDED FOR HIS FAMILY'S USE AND WOULD HAVE BEEN OBTAINED IN ANY EVENT.

THE PRESENT RECORD DOES NOT ESTABLISH THAT CAPTAIN MCLAUGHLIN AND SERGEANT DIDDLEMEYER WERE REQUIRED TO SECURE "TEMPORARY LODGINGS" WITHIN THE MEANING OF THE REGULATIONS AND THEY ARE NOT ENTITLED TO THE PER DIEM CLAIMED ON THE SUBMITTED VOUCHERS WHICH ARE RETAINED HERE.