B-139133, MAY 13, 1959

B-139133, MAY 13, 1959

PRECIS-UNAVAILABLE

CAPTAIN J. COFFMAN, USAF:

BY LETTER DATED MARCH 25, 1959, THE DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, WASHINGTON 25, D. C., FORWARDED YOUR LETTER OF FEBRUARY 20, 1959, SUBMITTING FOR AN ADVANCE DECISION A DEPENDENCY CERTIFICATE (DD FORM 137) SIGNED BY MAJOR RICHARD J. HARTMAN, 15056A. THE REQUEST, WHICH WAS APPROVED FOR SUBMISSION BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, AS AIR FORCE REQUEST NO. 407, CONCERNS THE CLAIM OF MAJOR HARTMAN FOR BASIC ALLOWANCE FOR QUARTERS FOR A PERIOD DURING WHICH HE AND HIS WIFE OCCUPIED GUEST HOUSE FACILITIES, THE OFFICER BEING IN A LEAVE STATUS.

IT APPEARS THAT MAJOR HARTMAN, BY SPECIAL ORDERS NO. 44, DATED MAY 1, 1958, WAS RELIEVED FROM ASSIGNMENT WITH THE 49TH FIGHTER INTERCEPTOR SQUADRON, USAF, LAURENCE G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS, AND WAS ASSIGNED TO HEADQUARTERS, AIR COMMAND AND STAFF COLLEGE, MAXWELL AIR FORCE BASE, MONTGOMERY, ALABAMA, ON A PERMANENT CHANGE OF STATION. HE WAS AUTHORIZED A DELAY ENROUTE OF THIRTY DAYS CHARGEABLE AS LEAVE AND DIRECTED TO REPORT TO MAXWELL AIR FORCE BASE NOT EARLIER THAN 0800 HOURS, SEPTEMBER 2, 1958, AND NOT LATER THAN 1600 HOURS, SEPTEMBER 4, 1958. IT IS STATED THAT THE OFFICER DEPARTED HANSCOM FIELD ON JULY 30, 1958, AND PROCEEDED TO HIS LEAVE ADDRESS AT JEANETTE, PENNSYLVANIA; THAT ON AUGUST 1, 1958, HE AND HIS WIFE DEPARTED THE ABOVE ADDRESS AND ARRIVED AT MAXWELL AIR FORCE BASE ON AUGUST 2, 1958, AND THAT THEY OCCUPIED GOVERNMENT QUARTERS IN THE BASE GUEST HOUSE WHILE LOOKING FOR SUITABLE QUARTERS IN THE MONTGOMERY AREA. THEY DEPARTED THAT INSTALLATION ON AUGUST 5, 1958, AND ULTIMATELY RETURNED TO JEANETTE, PENNSYLVANIA, ON AUGUST 19, 1958. ON AUGUST 24, 1958, THE OFFICER AND HIS WIFE DEPARTED THE LEAVE ADDRESS AND ARRIVED IN THE CITY OF MONTGOMERY, ALABAMA, ON AUGUST 26, 1958, AND ON SEPTEMBER 3, 1958, HE REPORTED FOR DUTY IN COMPLIANCE WITH HIS ORDERS. THE BASE HOUSING OFFICER REPORTED BY A MILITARY PAY ORDER THE OCCUPANCY OF THE GUEST HOUSE BY MAJOR HARTMAN AND HIS DEPENDENT WIFE FOR THE PERIOD AUGUST 2 THROUGH 5, 1958, AND ON THE BASIS OF THIS INFORMATION THE OFFICER WAS NOT CREDITED WITH BASIC ALLOWANCE FOR QUARTERS FOR THE FOUR-DAY PERIOD FROM AUGUST 2 THROUGH 5, 1958.

IT IS STATED THAT THE ENTITLEMENT OF THE OFFICER TO THE BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD CLAIMED DEPENDS UPON THE DETERMINATION OF WHETHER OCCUPANCY OF THE GUEST HOUSE WAS BECAUSE OF A "SOCIAL VISIT OF A TEMPORARY NATURE." IT IS FURTHER STATED THAT YOUR DOUBT AS TO ENTITLEMENT ARISES BECAUSE OF OUR DECISION OF OCTOBER 12, 1956, B-129304, WHEREIN WE HELD THAT SINCE THE OFFICER THERE INVOLVED AND HIS DEPENDENTS TRAVELED TO STEWART AIR FORCE BASE ON PERMANENT CHANGE OF STATION ORDERS IT REASONABLY APPEARED "THAT HE AND HIS DEPENDENTS INTENDED TO STAY AT THE NEW STATION INDEFINITELY AND THAT THERE WAS NO INTENTION OF MAKING SUCH STAY THERE A SOCIAL VISIT OF A TEMPORARY NATURE WITHIN THE MEANING OF THAT PHRASE AS USED IN THE EXECUTIVE ORDER AND THE CITED REGULATIONS."

SECTION 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 15, 1951, PROVIDES IN PERTINENT PART 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, *** 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."

PARAGRAPH 20421, AFM 173-20, CHANGE 42, DATED SEPTEMBER 19, 1957, WHICH CONCERNS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS DURING PERIODS OF LEAVE, PROVIDES IN SUBSECTION C(1) AS FOLLOWS:

"C. BETWEEN PERMANENT DUTY STATIONS:

(1) GENERALLY, A MEMBER WITH DEPENDENTS IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS DURING THE INTERIM BETWEEN DEPARTURE FROM AN OLD PERMANENT STATION AND REPORTING TO A NEW PERMANENT STATION, INCLUDING PERIODS WHILE ON LEAVE, AND WHILE ON SICK LEAVE FROM HOSPITAL, REGARDLESS OF WHETHER SUCH SERVICE MEMBER WAS RECEIVING QUARTERS IN KIND OR WAS RECEIVING AN ALLOWANCE IN LIEU OF QUARTERS AT HIS FORMER PERMANENT STATION (23 COMP. GEN. 761)."

IN DECISION B-129304, CITED IN YOUR LETTER, THE PRESUMPTION THAT THE OFFICER AND HIS WIFE INTENDED TO REMAIN INDEFINITELY AT THE NEW STATION PRECLUDED THE DESIGNATION OF THEIR STAY IN THE STATION GUEST HOUSE AS A SOCIAL VISIT OF A TEMPORARY NATURE, WHICH FACTOR DISTINGUISHES THAT CASE FROM THE PRESENT CIRCUMSTANCES.

SINCE MAJOR HARTMAN WAS IN A LEAVE STATUS DURING THE PERIOD INVOLVED AND HAD NOT REPORTED FOR DUTY AT THE NEW STATION OR TRAVELED THERE FOR THAT PURPOSE BUT LEFT THE AREA WITH HIS WIFE AFTER REMAINING ONLY FOUR DAYS, THEIR USE OF THE GUEST HOUSE WHILE THERE MAY BE CONSIDERED AS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE WITHIN THE CONTEMPLATION OF THE EXCEPTION CONTAINED IN SECTION 3 OF THE CITED EXECUTIVE ORDER. COMPARE 23 COMP. GEN. 761; 37 ID. 47; B-129304, OCTOBER 12, 1956.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER OF FEBRUARY 20, 1959, ARE RETURNED AND YOU ARE AUTHORIZED TO CREDIT THE OFFICER'S ACCOUNT WITH BASIC ALLOWANCE FOR QUARTERS IN THE PROPER AMOUNT FOR THE FOUR DAYS INVOLVED.