B-139902, AUG. 13, 1959

B-139902, AUG. 13, 1959

TO FIRST LIEUTENANT ROBERT E. ORKAND:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1959, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 24, 1959, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS A FIRST LIEUTENANT WITHOUT DEPENDENTS FOR THE PERIOD FEBRUARY 5, 1958, THRU MAY 30, 1958.

DEPARTMENT OF THE ARMY, PERMISSIVE TRAVEL ORDERS, DATED JANUARY 13, 1958, PERMITTED YOU TO PROCEED TO COLUMBIA UNIVERSITY, NEW YORK, NEW YORK, FOR TEMPORARY DUTY FOR APPROXIMATELY 115 DAYS FOR THE STATED PURPOSE OF FULFILLING REQUIREMENTS FOR A BACCALAUREATE DEGREE. THE ORDERS EXPRESSLY PROVIDED THAT NO EXPENSE TO THE GOVERNMENT WOULD BE INCURRED BY REASON OF THIS TEMPORARY DUTY. THE RECORD INDICATES THAT A DA FORM 137, INSTALLATION CLEARANCE RECORD, WAS EXECUTED IN YOUR CASE AND SIGNED BY YOU ON JANUARY 25, 1958, IN PREPARATION FOR YOUR DEPARTURE FROM FORT ORD ON JANUARY 26TH IN ORDER TO REPORT ON FEBRUARY 5, 1958, AT COLUMBIA UNIVERSITY. YOU HAVE PRESENTED EVIDENCE INDICATING THAT NO GOVERNMENT QUARTERS WERE ASSIGNED TO OR OCCUPIED BY YOU WHILE AT COLUMBIA UNIVERSITY. IT APPEARS TO BE YOUR CONTENTION THAT THE FACT THAT YOU WERE REQUIRED TO CLEAR YOUR BACHELOR OFFICER'S QUARTERS AT FORT ORD ENTITLES YOU TO THE BASIC ALLOWANCE FOR QUARTERS WHILE IN NEW YORK. FURTHER, YOU STATE IN YOUR REQUEST FOR REVIEW THAT YOU ARE NOT SEEKING THIS ALLOWANCE BECAUSE OF EXPENSE OF MAINTAINING PRIVATELY PROCURED QUARTERS AT YOUR PERMANENT STATION, SINCE NONE WAS INCURRED, BUT AS RECOMPENSE FOR LIKE EXPENSES INCURRED AT YOUR TEMPORARY DUTY STATION.

PARAGRAPH 2 OF EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, ISSUED PURSUANT TO THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 813, STATES THAT EXCEPT AS OTHERWISE PROVIDED BY STATUTE A MEMBER SHALL BE ENTITLED TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS "IN ACCORDANCE WITH THESE AND ANY REGULATIONS PRESCRIBED PURSUANT HERETO" DURING SUCH TIME AS THE MEMBER IS ENTITLED TO RECEIVE BASIC PAY. PARAGRAPH 6 OF EXECUTIVE ORDER NO. 10204 AUTHORIZES THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS CONSISTENT WITH THAT EXECUTIVE ORDER AS THEY MAY DEEM NECESSARY OR DESIRABLE. ARMY REGULATIONS 37-104, PARAGRAPH 5-6A, PROMULGATED UNDER THIS AUTHORITY PROVIDE AS FOLLOWS:

"5-6. TEMPORARY DUTY OR TRAVEL STATUS

"A. TEMPORARY DUTY. A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS WHEN ON TEMPORARY DUTY (INCLUDING TEMPORARY DUTY ON TRANSPORT) IF IN BASIC ALLOWANCE FOR QUARTERS STATUS AND PERMANENT STATION REMAINS UNCHANGED. THIS IS TRUE WHETHER OR NOT QUARTERS ARE FURNISHED AT TEMPORARY DUTY STATIONS. A MEMBER WILL NOT BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, HOWEVER, IF FURNISHED OR ASSIGNED QUARTERS AT PERMANENT STATION.'

THUS, MEMBERS, WITHOUT DEPENDENTS, PERFORMING TEMPORARY DUTY AWAY FROM A PERMANENT STATION AT WHICH THEY WERE NOT ASSIGNED, OR FURNISHED, QUARTERS, BUT AT WHICH THEY WERE PAID A RENTAL ALLOWANCE AND REQUIRED TO PROCURE THEIR OWN QUARTERS, CONTINUE TO RECEIVE THE RENTAL ALLOWANCE TO MEET THE CONTINUING EXPENSE OF MAINTAINING SUCH PRIVATELY FINANCED QUARTERS AT THE PERMANENT STATION DURING THEIR TEMPORARY ABSENCE FROM THAT STATION. THE OTHER HAND, MEMBERS WHO OCCUPY GOVERNMENT QUARTERS WHILE PERFORMING DUTY AT THE PERMANENT STATION, AND HENCE ARE NOT IN RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS, DO NOT ACQUIRE A RIGHT TO RECEIVE SUCH ALLOWANCE UPON DEPARTING FOR A PERIOD OF TEMPORARY DUTY. WITH RESPECT TO THE FACT THAT YOU WERE REQUIRED TO CLEAR YOUR QUARTERS, PRESUMABLY IN ANTICIPATION OF YOUR PROLONGED ABSENCE, IT SEEMS REASONABLE TO ASSUME THAT, IN SUCH CIRCUMSTANCES, PUBLIC QUARTERS AT THE PERMANENT STATION ORDINARILY WOULD BE MADE AVAILABLE FOR INTERIM ASSIGNMENT TO OTHER MEMBERS TEMPORARILY IN NEED OF QUARTERS. NORMALLY A MEMBER ASSIGNED BACHELOR OFFICERS' QUARTERS AT HIS PERMANENT STATION IS NOT CONCERNED ABOUT THE USE TO WHICH SUCH QUARTERS ARE PUT DURING HIS TEMPORARY ABSENCE SINCE MEMBERS PERFORMING DUTY AWAY FROM THEIR PERMANENT STATION UNDER ORDERS ARE IN RECEIPT OF PER DIEM ALLOWANCES WHICH, IF NO QUARTERS ARE FURNISHED AT THE TEMPORARY DUTY STATION, INCLUDE AN ALLOWANCE FOR QUARTERS. THE ORDERS OF JANUARY 13, 1958, WERE NOT ORDERS WHICH YOU WERE REQUIRED TO OBEY BUT WERE PERMISSIVE ORDERS WHICH YOU COULD EITHER ACCEPT OR REJECT AS YOU SAW FIT. HOWEVER, HAVING ACCEPTED THESE ORDERS YOU ARE BOUND BY THEIR CONDITIONS, ONE OF WHICH WAS THAT NO ENTITLEMENT TO TRAVEL ALLOWANCES, THAT IS, TO TRANSPORTATION OR PER DIEM, WOULD ACCRUE TO YOU BY REASON OF YOUR ABSENCE FROM YOUR PERMANENT STATION. SINCE YOUR STATUS AT YOUR PERMANENT STATION WAS THAT OF A MEMBER FURNISHED OR ASSIGNED GOVERNMENT QUARTERS, YOU ARE NOT ENTITLED UNDER APPLICABLE LAW AND REGULATIONS TO THE BASIC ALLOWANCE FOR QUARTERS WHILE ABSENT FROM SUCH STATION, NOTWITHSTANDING THE FACT THAT YOU WERE REQUIRED UNDER THE PROVISIONS OF YOUR PERMISSIVE TRAVEL ORDERS TO PROCURE QUARTERS AT YOUR OWN EXPENSE WHILE ATTENDING COLUMBIA UNIVERSITY.