B-143506, DECEMBER 28, 1960, 40 COMP. GEN. 384

B-143506, DECEMBER 28, 1960, 40 COMP. GEN. 384

MILITARY PERSONNEL - QUARTERS ALLOWANCE - COMMENCEMENT AND TERMINATION DETACHMENT AND REPORTING DAYS IN VIEW OF REPRESENTATIONS THAT THE RULE DENYING MEMBERS OF THE UNIFORMED SERVICES QUARTERS ALLOWANCE ON THE DATE GOVERNMENT QUARTERS ARE TERMINATED, INCIDENT TO A PERMANENT CHANGE OF STATION, PUTS THE MEMBER TO HIS OWN EXPENSE TO PROCURE SLEEPING ACCOMMODATIONS FOR HIMSELF AND HIS FAMILY, BECAUSE QUARTERS ARE NORMALLY VACATED DURING WORKING HOURS AND SELDOM DOES THE MEMBER REPORT TO THE NEW STATION THE SAME DAY, THE RULE WILL NOT BE FOLLOWED; THEREFORE, THE ISSUANCE OF REGULATIONS WHICH WILL PERMIT PAYMENT OF QUARTERS ALLOWANCE ON THE DATE OF TERMINATION AND WILL PRECLUDE PAYMENT ON THE DATE OF ASSIGNMENT OF PUBLIC QUARTERS IS A REASONABLE AND PROPER EXERCISE OF AUTHORITY UNDER SECTION 302 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (E), AND EXECUTIVE ORDER NO. 10204. 38 COMP. GEN. 713, OVERRULED.

TO THE SECRETARY OF DEFENSE, DECEMBER 28, 1960:

REFERENCE IS MADE TO LETTER OF JULY 13, 1960, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION WHETHER THE MILITARY DEPARTMENTS MAY PROMULGATE REGULATIONS WHICH WOULD, IN EFFECT, PRECLUDE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON THE DATE OF ASSIGNMENT TO PUBLIC QUARTERS AND PERMIT PAYMENT OF SUCH ALLOWANCE FOR THE DATE OF TERMINATION OF SUCH QUARTERS UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 271 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTION AND REGULATION PROPOSED ARE PRESENTED AS FOLLOWS:

1. MAY THE SEVERAL SERVICE SECRETARIES PRESCRIBE THE FOLLOWING REGULATION PURSUANT TO SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (E), AND EXECUTIVE ORDER NO. 10204 OF 16 JANUARY 1951:

"ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS DOES NOT ACCRUE FOR THE PERIOD FROM AND INCLUDING THE DATE OF ASSIGNMENT TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES TO AND INCLUDING THE DATE PRIOR TO THE DATE OF TERMINATION OF THE ASSIGNMENT. FOR THIS PURPOSE, WHERE A DEFINITE ASSIGNMENT IS NOT REQUIRED, THE DATE OF COMMENCEMENT OF OCCUPANCY OF VOLUNTARY (HOTEL TYPE) GOVERNMENT QUARTERS SHALL BE CONSIDERED AS THE DATE OF ASSIGNMENT AND THE DATE SUCH QUARTERS ARE IN FACT VACATED SHALL BE CONSIDERED AS THE DATE OF TERMINATION OF THE ASSIGNMENT.'

SECTION 302 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (E), PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS GOVERNING PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS UNDER THAT SECTION. EXECUTIVE ORDER NO. 10204, JANUARY 16, 1951, THE PRESIDENT PRESCRIBED SUCH REGULATIONS AND IN PARAGRAPH 6 HE AUTHORIZED THE SEVERAL SERVICE SECRETARIES TO PRESCRIBE SUPPLEMENTARY REGULATIONS, WITH THE REQUIREMENT THAT THEY BE UNIFORM FOR ALL SERVICES TO THE EXTENT PRACTICABLE. SEE IN THAT CONNECTION SECTION 4 OF THE ACT OF SEPTEMBER 2, 1957, 71 STAT. 597, 37 U.S.C. 324.

THE COMMITTEE ACTION DISCUSSION OF THE PROPOSED REGULATION SAYS THAT THE REGULATIONS OF THE SEVERAL SERVICES DENYING ENTITLEMENT TO BASIC ALLOWANCES FOR QUARTERS ON THE DATES OF ASSIGNMENT AND TERMINATION OF GOVERNMENT QUARTERS ARE SOUND INSOFAR AS THE DATE OF ASSIGNMENT IS CONCERNED SINCE THE MEMBER IS NOT PUT TO ANY EXPENSE TO PROCURE QUARTERS ON THAT DATE AND, THEREFORE, HAS NO ARGUMENT TO SUPPORT A CLAIM. ALSO, IT IS EXPLAINED THAT IT HAS NEVER BEEN CONSIDERED PRACTICABLE TO PROVIDE, IN SERVICE REGULATIONS, FOR ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS ON THE DATE OF ASSIGNMENT TO QUARTERS IN ACCORDANCE WITH THE "RIGHTS ON DAY OF DETACHMENT" RULE ENUNCIATED IN OUR DECISION OF JULY 18, 1952, B-105517, AS IT IS VERY SELDOM THAT A MEMBER JOINS A NEW DUTY STATION ON THE SAME DATE AS HE WAS DETACHED FROM A PREVIOUS DUTY STATION WHERE HE WAS IN RECEIPT OF THE ALLOWANCE BECAUSE OF NONOCCUPANCY OF QUARTERS. ON THE BASIS, HOWEVER, THAT NORMALLY, QUARTERS MUST BE VACATED DURING WORKING HOURS DUE TO PICKUP OF HOUSEHOLD EFFECTS, INSPECTION FOR CLEANLINESS AND DAMAGE, ETC; IT IS URGED THAT THE DATE OF TERMINATION FEATURE OF THE REGULATIONS OPERATES TO DENY THE ALLOWANCE TO A MEMBER ON A DAY WHEN HE IS REQUIRED TO PROCURE SLEEPING ACCOMMODATIONS FOR HIMSELF AND FAMILY AT HIS OWN EXPENSE, CONTRARY TO THE PURPOSE FOR WHICH THE ALLOWANCE IS PROVIDED. IN THIS RESPECT THE VIEW IS EXPRESSED THAT ENTITLEMENT OR NONENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS SHOULD BE CONSIDERED SOLELY ON THE BASIS OF THE FACTS DEALING WITH THE ASSIGNMENT AND TERMINATION OF QUARTERS.

IN 39 COMP. GEN. 575, CITED IN COMMITTEE ACTION NO. 271, IT WAS HELD, ANSWER TO QUESTIONS, 4, 5 AND 6, QUOTING FROM THE SYLLABUS:

A REGULATION TO AUTHORIZE A QUARTERS ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES FOR THE DAY ON WHICH THE MEMBER REPORTS TO A NEW STATION, IN THE CASE OF MEMBERS WHO ARE NOT PAID A QUARTERS ALLOWANCE ON THE DAY OF DETACHMENT FROM THE OLD STATION, WOULD BE PROPER UNDER SECTION 302 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (E), WHICH AUTHORIZES THE PROMULGATION OF UNIFORM REGULATIONS, PROVIDED THAT THE REGULATIONS DO NOT AUTHORIZE QUARTERS ALLOWANCE FOR BOTH THE DAY OF DETACHMENT AND THE DAY OF ASSIGNMENT OF QUARTERS AT THE NEW STATION.

UNDER THE QUARTERS ALLOWANCE PROVISIONS IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, THE OCCUPANCY OF HOTEL-TYPE GOVERNMENT QUARTERS FOR PORTIONS OF 2 CALENDAR DAYS--- ONE NIGHT--- BY A MEMBER OF THE UNIFORMED SERVICES AND HIS DEPENDENTS DOES NOT REQUIRE THAT THE MEMBER LOSE ENTITLEMENT TO A QUARTERS ALLOWANCE FOR 2 DAYS, AND A REGULATION WHICH WOULD REQUIRE THE LOSS OF THE QUARTERS ALLOWANCE FOR ONLY 1 DAY WOULD BE PROPER UNDER THE ACT.

IT IS SUGGESTED IN THE COMMITTEE ACTION THAT THE PROPOSED REGULATION MAY BE IN CONSONANCE WITH SUCH ANSWERS, SINCE, WHILE SPECIFICALLY APPROVING ENTITLEMENT TO THE QUARTERS ALLOWANCE ONLY ON THE DATE OF ASSIGNMENT TO QUARTERS, SUBJECT TO CERTAIN RESTRICTIONS, WE RECOGNIZED THE AUTHORITY OF THE SECRETARIES CONCERNED TO PRESCRIBE REGULATIONS SUBJECT TO THE PROVISO THAT SUCH REGULATIONS COULD NOT AUTHORIZE THE ALLOWANCE FOR BOTH THE DAY OF DETACHMENT AND THE DAY OF ASSIGNMENT.

IN DECISION OF APRIL 22, 1959, 38 COMP. GEN. 713, WE HELD THAT, ON THE BASIS OF THE LONG-ESTABLISHED RULE ENUNCIATED IN 5 COMP. GEN. 723, AND FOLLOWED IN DECISION OF JULY 18, 1952, B-105517, NO ALLOWANCE FOR QUARTERS ACCRUED TO A MEMBER ON THE DATE HIS ASSIGNMENT TO QUARTERS AT HIS PERMANENT STATION IS TERMINATED AND, HENCE, THE ISSUANCE OF REGULATIONS OF THE UNIFORMED SERVICES IMPLEMENTING SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949 SHOULD BE GUIDED BY THE HOLDING IN 5 COMP. GEN. 723 AND THE DECISION OF JULY 18, 1952. IN OUR DECISION OF FEBRUARY 11, 1960, 30 COMP. GEN. 575, WE DISCUSSED THE EFFECT OF THE HOLDING IN DECISION OF APRIL 22, 1959, AND SAID THAT THE STATUTE AND THE EXECUTIVE ORDER WOULD SEEM TO PERMIT THE ISSUANCE OF REGULATIONS TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, UNDER THE CIRCUMSTANCES THERE DESCRIBED, ON THE DATE OF REPORTING AT THE NEW STATION EVEN THOUGH THE MEMBER IS ASSIGNED QUARTERS FOR PART OF THAT DAY. IN LINE, HOWEVER, WITH THE LONG-ESTABLISHED RULE FOLLOWED IN DECISION OF APRIL 22, 1959, THAT NO ALLOWANCE ACCRUES TO A MEMBER ON THE DATE HIS ASSIGNMENT TO QUARTERS AT HIS PERMANENT STATION IS TERMINATED, WE SAID THAT SUCH REGULATION SHOULD NOT PURPORT TO AUTHORIZE QUARTERS ALLOWANCE FOR BOTH THE DAY OF DETACHMENT FROM THE OLD STATION AND THE DAY OF ASSIGNMENT OF QUARTERS AT THE NEW STATION.

THE ISSUANCE OF THE REGULATIONS NOW PROPOSED WOULD BE CONTRARY TO THE CONCLUSION REACHED IN THE DECISION OF APRIL 22, 1959, 38 COMP. GEN. 713. HOWEVER, IN THE LIGHT OF THE POINTS ADVANCED IN COMMITTEE ACTION NO. 271 AND THE VIEWS WHICH WE EXPRESSED IN THE DECISION OF FEBRUARY 11, 1960, WE ARE OF THE OPINION THAT IT WOULD NOT BE LEGALLY UNTENABLE TO CONSIDER SUCH ISSUANCE AS A REASONABLE AND PROPER EXERCISE OF THE AUTHORITY GIVEN BY THE 1949 STATUTE AND THE 1951 EXECUTIVE ORDER TO ISSUE REGULATIONS FOR THE ADMINISTRATION OF THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. MOREOVER, IN THE LONG RUN THE PURPOSED REGULATIONS WILL NOT RESULT IN ANY ADDITIONAL EXPENDITURE BY THE GOVERNMENT (OVER THAT WHICH WOULD BE INCURRED UNDER THE RULES SANCTIONED IN OUR DECISION OF FEBRUARY 11, 1960), AND WILL PROVIDE A UNIFORM AND WORKABLE RULE FOR THE COMPUTATION OF TIME FOR THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. IN SUCH CIRCUMSTANCES, WE CONSIDER THAT WE ARE JUSTIFIED IN REVERSING THE CONCLUSION REACHED IN THE DECISION OF APRIL 22, 1959, AND IN APPROVING THE ISSUANCE OF THE REGULATIONS NOW PROPOSED. COMPARE THE ANSWER TO QUESTION 2 (B) IN 19 COMP. GEN. 183. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.