B-150830, MAR. 18, 1963

B-150830, MAR. 18, 1963

TO MARTHA M. COLE, SP6, WA 8 114 113:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1963, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITHOUT DEPENDENTS FOR THE PERIOD JANUARY 4, 1961, TO JANUARY 31, 1962.

DENIAL OF YOUR CLAIM WAS BASED ON THE PROVISIONS OF ARMY REGULATIONS 37- 104, PARAGRAPH 5-52A (1) (A), WHICH STATES THAT WHERE HUSBAND AND WIFE ARE BOTH MEMBERS OF THE SERVICE AND STATIONED AT THE SAME OR ADJACENT POSTS OR INSTALLATIONS AND OCCUPY JOINT RESIDENCE OFF-POST OR STATION AND FAMILY- TYPE GOVERNMENT QUARTERS ARE NOT AVAILABLE, ELIGIBILITY TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS UNLESS GOVERNMENT QUARTERS FOR A MEMBER WITHOUT DEPENDENTS ARE NOT AVAILABLE FOR HER OCCUPANCY; AND THAT WHERE GOVERNMENT QUARTERS ARE AVAILABLE FOR HER OCCUPANCY THE FEMALE MEMBER WHO RESIDES WITH HER HUSBAND WILL NOT BE ENTITLED TO PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS. YOU STATE THAT THE BASIS FOR YOUR REQUEST FOR REVIEW IS THAT THE ABOVE PARAGRAPH 5-52A (1) (A), CHANGE NO. 11, AR 37-104, DATED FEBRUARY 9, 1959, AND PARAGRAPH 8B (1), CHANGE NO. 1, AR 210-14, DATED MAY 29, 1959, ARE INCONSISTENT WITH THE BASIC LAW AND IMPLEMENTING EXECUTIVE ORDER PERTAINING TO BASIC ALLOWANCE FOR QUARTERS; THAT DURING THE PERIOD IN QUESTION YOU DID NOT OCCUPY GOVERNMENT QUARTERS NOR WERE SUCH QUARTERS ASSIGNED TO YOU; AND HENCE, THAT DURING THAT PERIOD YOU WERE ENTITLED TO RECEIVE BASIC PAY. YOU CITE THE CASE OF HADDEN V. UNITED STATES, 125 CT.CL. 137, AS SUPPORTING YOUR VIEWS.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO WALTER REED ARMY MEDICAL CENTER, WASHINGTON, .C., PURSUANT TO SPECIAL ORDERS NO. 224, NOVEMBER 17, 1960. SPECIAL ORDERS NO. 6, DATED JANUARY 9, 1961, AUTHORIZED YOU TO MESS SEPARATELY APPARENTLY BECAUSE YOU DESIRED TO RESIDE WITH YOUR HUSBAND IN YOUR OFF-POST RESIDENCE. IT IS ADMINISTRATIVELY REPORTED THAT SUCH ORDERS WERE ISSUED FOR YOUR OWN PERSONAL CONVENIENCE RATHER THAN BECAUSE OF UNAVAILABILITY OF SINGLE QUARTERS FOR ASSIGNMENT TO YOU.

WHILE IT IS TRUE THAT UNDER SECTION 302 (A), (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 804, 37 U.S.C. 252 (A), (B), (1958 ED.), PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES WAS BASED ON ASSIGNMENT, RATHER THAN AVAILABILITY, OF GOVERNMENT QUARTERS, IT IS CLEAR THAT SINGLE QUARTERS WERE AVAILABLE AND WOULD HAVE BEEN ASSIGNED BUT FOR YOUR MARITAL SITUATION AND CONSEQUENT DESIRE TO LIVE OFF THE POST WITH YOUR HUSBAND. A MEMBER MAY NOT, IN EFFECT, INFORM THE ADMINISTRATIVE OFFICIALS THAT HE DOES NOT WANT AVAILABLE GOVERNMENT QUARTERS ASSIGNED FOR HIS USE BECAUSE HE PLANS ON LIVING IN PRIVATE QUARTERS, AND AT THE SAME TIME URGE NONASSIGNMENT AS A BASIS FOR ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS. BY REQUESTING PERMISSION TO MESS SEPARATELY, YOU ANNOUNCED YOUR INTENTION TO LIVE OFF THE POST. THE FACT THAT ASSIGNMENT OF QUARTERS WAS NOT MADE IN YOUR CASE WAS NOT BECAUSE OF ADMINISTRATIVE OVERSIGHT OR INADVERTENCE, BUT BECAUSE YOU PREFERRED TO LIVE OFF THE POST AS A MATTER OF FREE CHOICE. ACCEDING TO THIS DESIRE ON YOUR PART THE SERVICE WAS ADHERING TO ITS POLICY OF FOSTERING THE FAMILY RELATIONSHIP OF ITS MARRIED MEMBERS.

YOUR ATTENTION IS INVITED TO THE FACT THAT THE PAYMENT OF A "SINGLE" QUARTERS ALLOWANCE SEPARATELY TO EACH SPOUSE, WHERE THEY ARE SERVING ON ACTIVE DUTY AT OR NEAR THE SAME POST OF DUTY WITH PERMISSION TO RESIDE TOGETHER IN OFF-BASE, FAMILY-TYPE ACCOMMODATIONS, IRRESPECTIVE OF THE ACTUAL AVAILABILITY OF SINGLE-TYPE GOVERNMENT QUARTERS FOR THE FEMALE MEMBER, WOULD RESULT IN THE PAYMENT OF QUARTERS ALLOWANCE IN AN AMOUNT EXCEEDING THAT WHICH WOULD OTHERWISE BE PAYABLE TO THE MALE MEMBER AS A MEMBER WITH DEPENDENTS. NOTHING HAS BEEN FOUND IN THE 1949 ACT OR IN ITS LEGISLATIVE HISTORY WHICH EVIDENCES AN INTENT TO PLACE A MEMBER AND HIS FAMILY IN A MORE ADVANTAGEOUS POSITION WITH RESPECT TO THE QUARTERS ALLOWANCE MERELY BECAUSE HIS SPOUSE ALSO WAS A MEMBER. THE PROVISION IN SECTION 102 (G) OF THAT ACT WHICH BARRED A MEMBER FROM BEING PAID INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT IF THE DEPENDENT WAS ENTITLED TO RECEIVE BASIC PAY, EVIDENCED A CONTRARY INTENT. IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED THAT THE PAYMENT OF A SEPARATE BASIC "SINGLE" ALLOWANCE FOR QUARTERS TO BOTH WIFE AND HUSBAND, WHERE BOTH ARE SERVING ON ACTIVE DUTY IN THE ARMED FORCES AT OR NEAR THE SAME STATION AND ARE PERMITTED TO RESIDE TOGETHER IN OFF-BASE ACCOMMODATIONS OF THEIR OWN CHOICE, IS NOT AUTHORIZED BY LAW EXCEPT WHERE THERE ARE NO SINGLE-TYPE GOVERNMENT QUARTERS IN FACT AVAILABLE FOR ASSIGNMENT TO THE FEMALE MEMBER.

THE CASE OF HADDEN V. UNITED STATES, CITED BY YOU, PROVIDES NO BASIS FOR PAYMENT OF YOUR CLAIM SINCE THE FAILURE TO ASSIGN GOVERNMENT QUARTERS TO THE PLAINTIFF WHEN SUCH QUARTERS BECAME AVAILABLE, WAS THE RESULT OF ADMINISTRATIVE OVERSIGHT OR ERROR.