B-153318, JUL. 17, 1964

B-153318, JUL. 17, 1964

TO THE SECRETARY OF THE NAVY:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 24, 1964, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION WHETHER WE WOULD FOREGO REQUIRING REFUND OF PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS MADE PRIOR TO RECEIPT OF OUR DECISION OF FEBRUARY 18, 1964, B-153318, FOR THE REASONS THERE STATED. THE SUBMISSION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 64-13 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN OUR DECISION OF FEBRUARY 18, 1964, B-153318 TO YOU, THERE WAS CONSIDERED THE QUESTION WHETHER THE OFFICERS' QUARTERS AT HEADQUARTERS, ALLIED FORCES SOUTHERN EUROPE, ARE GOVERNMENT QUARTERS WITHIN THE MEANING OF PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS FOR QUARTERS AND HOUSING ALLOWANCE PURPOSES WHEN SUCH QUARTERS ARE OCCUPIED BY MEMBERS OF THE ARMED FORCES OF THE UNITED STATES ON A PERMANENT BASIS. IN THAT DECISION, WE CONSIDERED THE ARGUMENTS ADVANCED IN A LEGAL OPINION SUBMITTED BY THE LEGAL ADVISOR, HEADQUARTERS ALLIED FORCES SOUTHERN EUROPE. WE SAID THAT SINCE THE COMPOUND WHICH INCLUDES THE FACILITIES IN QUESTION IS LEASED AND PAID FOR WITH NATO INTERNATIONAL FUNDS, WHICH FUNDS ARE CONTRIBUTED BY ALL THE NATIONS CONCERNED INCLUDING THE UNITED STATES, AND SINCE THE OFFICERS WHO OCCUPY THE QUARTERS INCUR NO EXPENSE FOR THE RENTAL OF SUCH QUARTERS, OTHER THAN A SMALL SERVICE CHARGE OF 80 CENTS A DAY, WHICH IS NOT IN THE NATURE OF A RENTAL CHARGE, WE BELIEVED THAT THE QUARTERS FURNISHED UNITED STATES PERSONNEL MUST BE CONSIDERED AS HAVING BEEN FURNISHED BY OR ON BEHALF OF THE UNITED STATES. FOR THE REASONS STATED AND BASED ON THE AUTHORITIES THERE CITED, WE CONCLUDED THAT THE QUARTERS IN QUESTION COME WITHIN THE SCOPE OF THE DEFINITION OF "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS AND, THEREFORE, THERE IS NO ENTITLEMENT TO A QUARTERS OR HOUSING ALLOWANCE WHILE THE OFFICERS CONCERNED ARE OCCUPYING SUCH QUARTERS.

IN REQUESTING THAT WE FOREGO REQUIRING ANY COLLECTION ACTION, THE UNDER SECRETARY OF THE NAVY STATES THAT SINCE THE UNITED STATES CONTRIBUTES ONLY APPROXIMATELY 25 PERCENT OF THE NATO INTERNATIONAL FUND, THE APPLICATION OF THE TERM "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH 1150-5 OF THE REGULATIONS TO THE QUARTERS IN QUESTION WAS NOT OBVIOUS. IN THIS CONNECTION, THE UNDER SECRETARY SAYS THERE WERE STRONG ARGUMENTS FOR THE OPPOSITE VIEWPOINT WHICH ACCOMPANIED THE ORIGINAL ADMISSION. THE UNDER SECRETARY REQUESTS THAT WE NOT REQUIRE REFUND OF BASIC ALLOWANCE FOR QUARTERS RECEIVED BY THE OFFICERS CONCERNED PRIOR TO THE TIME THE ACTIVITY INVOLVED RECEIVED THE NAVY LETTER OF MARCH 9, 1964, ADVISING IT OF OUR DECISION. IT IS STATED FURTHER THAT WHEN THE PAYMENTS WERE MADE, IT WAS BELIEVED THEY WERE CORRECT AND TO REQUIRE REPAYMENT NOW WOULD IMPOSE A CONSIDERABLE HARDSHIP WHICH WOULD APPEAR TO BE UNWARRANTED IN VIEW OF THE CIRCUMSTANCES.

WHILE, STRICTLY SPEAKING, THE QUARTERS IN QUESTION MAY NOT BE "* * * ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, OR FURNISHED BY A FOREIGN GOVERNMENT EITHER UNDER AGREEMENT WITH THE UNITED STATES OR ON A COMPLIMENTARY BASIS * * *," WITHIN THE LITERAL DEFINITION OF "GOVERNMENT QUARTERS" AS PREVIOUSLY DEFINED IN PARAGRAPH 1150-5 OF THE REGULATIONS, THE UNITED STATES CONTRIBUTES A PORTION OF THE NATO INTERNATIONAL FUNDS PARTLY FOR THE PURPOSE OF OBTAINING SUCH QUARTERS AND, HENCE, WE CANNOT AGREE THAT THE QUARTERS PROVIDED FOR OUT OF NATO INTERNATIONAL FUNDS AND FURNISHED UNITED STATES PERSONNEL ARE NOT TO BE VIEWED AS HAVING BEEN FURNISHED BY OR ON BEHALF OF THE UNITED STATES. THE PERCENTAGE OF THE UNITED STATES CONTRIBUTION TO THE NATO INTERNATIONAL FUND WOULD NOT ALTER THIS FACT. OBVIOUSLY, THE OFFICERS INVOLVED WERE ASSIGNED THESE QUARTERS BY REASON OF THEIR OFFICIAL STATUS AS AGENTS OR OFFICERS OF THE UNITED STATES AND AS THE QUARTERS WERE OBTAINED BY FUNDS CONTRIBUTED IN PART BY OUR GOVERNMENT FOR THAT PURPOSE AND ASSIGNED TO THE MEMBERS WITHOUT CHARGE OTHER THAN A SMALL SERVICE CHARGE, IT SEEMS APPARENT THAT THE QUARTERS COME WITHIN THE SCOPE OF "GOVERNMENT QUARTERS" AS SUCH TERM LONG HAS BEEN CONSTRUED IN OUR DECISIONS. THE FACT THAT TECHNICALLY THE QUARTERS WERE NOT OWNED OR LEASED DIRECTLY BY THE UNITED STATES AFFORDS NO BASIS IN THESE CIRCUMSTANCES FOR VIEWING THEM AS OTHER THAN "GOVERNMENT QUARTERS.' CONSEQUENTLY, IT IS OUR VIEW THAT THE QUARTERS IN QUESTION MUST BE CONSIDERED AS COMING WITHIN THE SCOPE OF THE DEFINITION OF "GOVERNMENT QUARTERS" AS DEFINED IN PARAGRAPH 1150-5 OF THE REGULATIONS.

IN VIEW OF THE CIRCUMSTANCES SURROUNDING THE FURNISHING OF THE QUARTERS IN QUESTION, HOWEVER, AND SINCE THE FACT THAT THE QUARTERS OCCUPIED BY UNITED STATES PERSONNEL WERE PROVIDED FOR OUT OF NATO INTERNATIONAL FUNDS AND WERE NOT FURNISHED DIRECTLY BY EITHER THE UNITED STATES OR A FOREIGN GOVERNMENT LENDS SOME SUPPORT TO THE ADMINISTRATIVE POSITION THAT THE QUARTERS WERE NOT TO BE VIEWED AS COMING WITHIN THE MEANING OF THE LAWS AND REGULATIONS PERTAINING TO GOVERNMENT QUARTERS, PAYMENT OF A QUARTERS OR HOUSING ALLOWANCE TO THE OFFICERS CONCERNED MADE PRIOR TO THE DATE ON WHICH THE ACTIVITY INVOLVED RECEIVED NOTICE OF OUR DECISION OF FEBRUARY 18, 1964, WILL NOT BE FURTHER QUESTIONED, IF OTHERWISE CORRECT. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO CAPTAIN E. T. HARRIS AGC, 04074818, HEADQUARTERS, UNITED STATES ARMY ELEMENT, CONCERNING HIS CLAIM FOR A QUARTERS AND HOUSING ALLOWANCE WHILE OCCUPYING QUARTERS AT HEADQUARTERS ALLIED FORCES SOUTHERN EUROPE. IN OUR DECISION TO CAPTAIN HARRIS, WE ALSO CONSIDERED THE EFFECT OF THE DEFINITION OF THE TERM ,GOVERNMENT QUARTERS" AS REDEFINED BY CHANGE 134OF THE JOINT TRAVEL REGULATIONS DATED FEBRUARY 1, 1964. FOR THE REASONS THERE STATED, IT IS OUR VIEW THAT THE DEFINITION OF "GOVERNMENT QUARTERS" AS NOW DEFINED IN PARAGRAPH 1150-5 WOULD NOT ALTER OR CHANGE THE CONCLUSION IN OUR DECISION OF FEBRUARY 18, 1964, B-153318.