B-153361, MARCH 5, 1964, 43 COMP. GEN. 584

B-153361, MARCH 5, 1964, 43 COMP. GEN. 584

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - PERMISSIVE TRANSFER ORDERS. STATION ALLOWANCES - MILITARY PERSONNEL - DEPENDENTS - STATUS OF HOUSING ALLOWANCE SINCE MEMBERS OF THE UNIFORMED SERVICES ARRIVING AT NEW PERMANENT DUTY STATIONS OVERSEAS UNDER PERMISSIVE TRAVEL ORDERS ISSUED AT THEIR REQUEST FOR PERSONAL CONVENIENCE ARE REQUIRED TO PAY THEIR OWN TRAVEL AND TRANSPORTATION EXPENSES UNDER SUCH PERMISSIVE ORDERS, THE TEMPORARY LODGING ALLOWANCE, WHICH IS IN SUBSTANCE A CONTINUATION OF THE TRAVEL PER DIEM TO REIMBURSE THE MEMBERS FOR MORE THAN NORMAL EXPENSES DIRECTLY ATTRIBUTABLE TO THE CHANGE OF STATION, ARE NOT PAYABLE; HOWEVER, HOUSING AND COST-OF-LIVING ALLOWANCES, WHICH ARE BASED ON AVERAGE COSTS NORMALLY INCURRED ON PERMANENT DUTY OVERSEAS, ARE TO BE DISTINGUISHED FROM COSTS INCIDENT TO THE CHANGE OF STATION AND SUCH ALLOWANCES ARE PAYABLE TO THE MEMBERS. THE INTERIM HOUSING ALLOWANCE WHICH IS AUTHORIZED TO MEMBERS OF THE UNIFORMED SERVICES UNDER PARAGRAPH 4302 OF THE JOINT TRAVEL REGULATIONS AND PAYABLE FROM THE DATE THE MEMBER PROCURES NON-GOVERNMENT FAMILY TYPE HOUSING UNTIL THE ARRIVAL OF THE DEPENDENTS IS NOT REGARDED AS A CONTINUATION OF THE TRAVEL PER DIEM, AND THE FACT THAT THE TRANSFER OF THE MEMBER IS MADE UNDER PERMISSIVE ORDERS WHICH DO NOT ENTITLE THE MEMBER TO TRAVEL AND TRANSPORTATION EXPENSES DOES NOT BAR ENTITLEMENT TO THE HOUSING ALLOWANCE, AND OTHERWISE PROPER PAYMENTS OF INTERIM HOUSING ALLOWANCE UNDER PERMISSIVE ORDERS WILL NOT BE QUESTIONED.

TO THE SECRETARY OF THE NAVY, MARCH 5, 1964:

REFERENCE IS MADE TO LETTER DATED JANUARY 17, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING AN ADVANCE DECISION WHETHER THE FACT THAT PERMANENT CHANGE-OF-STATION ORDERS ARE PERMISSIVE HAS ANY BEARING ON THE MEMBER'S ENTITLEMENT TO HOUSING ALLOWANCE, COST-OF-LIVING ALLOWANCE AND TEMPORARY LODGING ALLOWANCE AT HIS NEW STATION. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 64-2, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES IT IS A WELL-ESTABLISHED RULE THAT SINCE A PERMISSIVE CHANGE OF STATION IS MADE AT THE REQUEST OF AND FOR THE PERSONAL CONVENIENCE OF THE MEMBER ALL COSTS INVOLVED IN EFFECTING SUCH A TRANSFER MUST BE BORNE BY THE MEMBER. ALSO, HE STATES THAT SUCH ORDERS DO NOT REQUIRE FORFEITURE OF THE BASIC ALLOWANCES FOR QUARTERS OR SUBSISTENCE WHICH ACCRUE TO A MEMBER BY REASON OF THE FACT THAT GOVERNMENT QUARTERS AND MESS ARE NOT FURNISHED TO HIM AT HIS NEW DUTY STATION SINCE THESE ALLOWANCES ARE NOT COSTS INVOLVED IN EFFECTING THE TRANSFER. THEREFORE, HE EXPRESSES THE VIEW THAT PERMISSIVE ORDERS SHOULD HAVE NO BEARING ON ENTITLEMENT TO STATION ALLOWANCES WHICH SUPPLEMENT BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE. HOWEVER, THE UNDER SECRETARY SAYS THAT BECAUSE SITUATIONS HAVE OCCURRED WHEREIN THE PERMISSIVE CHANGE OF STATION INVOLVED A TRANSFER FROM A STATION FOR WHICH STATION ALLOWANCES WERE NOT PRESCRIBED TO A STATION WHERE THEY WERE PRESCRIBED, AND BECAUSE ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE ACCRUES INCIDENT TO DEPARTURE FROM THE OLD STATION AND ARRIVAL AT THE NEW STATION, SOME DOUBT HAS ARISEN AS TO WHETHER THE ALLOWANCES SO ACCRUING MIGHT POSSIBLY BE CONSIDERED AS COSTS RELATED TO THE PERMISSIVE TRANSFER, SINCE SUCH ALLOWANCES WERE NOT INVOLVED AT THE OLD STATION PRIOR TO THE ISSUANCE OF THE PERMISSIVE CHANGE-OF-STATION ORDERS.

THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES AS FOLLOWS: SEC. 405. TRAVEL AND TRANSPORTATION ALLOWANCES: PER DIEM WHILE ON

DUTY OUTSIDE UNITED STATES OR IN HAWAII OR ALASKA.

WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. HOWEVER, DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS.

PURSUANT THERETO PART G, CHAPTER 4, JOINT TRAVEL REGULATIONS, PRESCRIBES REGULATIONS FOR THE PAYMENT OF STATION ALLOWANCES FOR MILITARY PERSONNEL AT THEIR PERMANENT DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES WHICH ARE IN ADDITION TO THE BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE. THE ADDITIONAL STATION ALLOWANCES INCLUDE HOUSING AND COST- OF-LIVING ALLOWANCES, INTERIM HOUSING ALLOWANCES, AND TEMPORARY LODGING ALLOWANCES.

PAYMENT OF MILEAGE OR OTHER TRAVEL EXPENSE INCIDENT TO A CHANGE OF STATION IS AUTHORIZED ONLY IF THE TRAVEL IS PERFORMED ON PUBLIC BUSINESS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; 33 COMP. GEN. 196; 37 ID. 53; AND B-117577, JUNE 16, 1955. SEE, ALSO, PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS. IN CIRCUMSTANCES WHERE A MEMBER HAS REQUESTED THAT HE BE TRANSFERRED TO ANOTHER STATION AND HIS SERVICES CAN BE EFFECTIVELY UTILIZED AT SUCH STATION, BUT THE TRANSFER IS NOT DEEMED NECESSARY IN THE INTERESTS OF THE SERVICE, IT HAS BEEN THE PRACTICE OF THE UNIFORMED SERVICES TO ISSUE PERMISSIVE-TYPE ORDERS PERMITTING THE PERFORMANCE OF TRAVEL WHILE THE TRAVELER REMAINS IN A DUTY STATUS, PROVIDING, OF COURSE, THAT HE WILL ASSUME THE COSTS OF TRAVEL. TRAVEL OF THAT TYPE IS NOT CONSIDERED TO BE ON PUBLIC BUSINESS BY DIRECTION OF COMPETENT ORDERS WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS, THE ORDERS BEING EFFECTIVE ONLY AS AN ASSIGNMENT TO DUTY AT THE DESIGNATED STATION TO WHICH THE MEMBER ELECTS TO TRAVEL. SEE B-137583, NOVEMBER 28, 1958, AND B- 132195, MARCH 27, 1958.

WHEN A MEMBER REPORTS AT HIS PERMANENT DUTY STATION OUTSIDE THE UNITED STATES HIS TRAVEL STATUS TERMINATES, AND HIS ENTITLEMENT TO STATION ALLOWANCES UNDER 37 U.S.C. 405 GENERALLY IS FOR DETERMINATION IN ACCORDANCE WITH THE APPLICABLE REGULATIONS AND AT THE RATES PRESCRIBED ON THE BASIS OF CONDITIONS THAT PREVAIL AT HIS PERMANENT STATION. 40 COMP. GEN. 271. PARAGRAPH 4301 OF THE JOINT TRAVEL REGULATIONS INDICATES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. PARAGRAPH 4302 STATES THAT A MEMBER WHO IS REQUIRED TO, AND DOES, PROCURE NON-GOVERNMENT FAMILY-TYPE HOUSING (IN THE VICINITY OF HIS PERMANENT DUTY STATION) PRIOR TO ARRIVAL OF HIS DEPENDENTS WILL BE ENTITLED TO AN INTERIM HOUSING ALLOWANCE. PARAGRAPH 4303 AUTHORIZES TEMPORARY LODGING ALLOWANCES TO A MEMBER FOR THE PURPOSE OF PARTIALLY REIMBURSING HIM FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL REPORTING AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES, PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR THE COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS, OR IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT OF GOVERNMENT QUARTERS OR AFTER SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS.

UNLIKE THE HOUSING AND COST-OF-LIVING ALLOWANCES WHICH ARE BASED ON AVERAGE EXCESS COSTS NORMALLY EXPERIENCED BY MEMBERS ON PERMANENT DUTY OUTSIDE THE UNITED STATES, THE TEMPORARY LODGING ALLOWANCE IS PAYABLE AT A SUBSTANTIALLY HIGHER RATE, BEING BASED ON THE APPLICABLE TRAVEL PER DIEM RATE FOR THE STATION INVOLVED AND VARYING WITH THE NUMBER OF PERSONS CONCERNED. CURRENT REGULATIONS PRESCRIBE RATES VARYING FROM 50 PERCENT OF THE APPLICABLE TRAVEL PER DIEM FOR THE MEMBER ONLY, TO 150 PERCENT OF SUCH PER DIEM FOR A MEMBER AND THREE OR MORE DEPENDENTS. OBVIOUSLY, THIS ALLOWANCE IS PRESCRIBED ON THE BASIS THAT DURING THE PERIODS FOR WHICH IT IS PAYABLE INCIDENT TO THE CHANGE OF STATIONS THE MEMBER'S EXPENSES CORRESPOND MORE NEARLY TO THOSE WHICH WOULD PREVAIL IF HE WERE IN A TRAVEL STATUS RATHER THAN THE NORMAL EXCESS COSTS INCIDENT TO PERMANENT DUTY AT THE STATIONS. THUS, IN SUBSTANCE, IT IS A CONTINUATION OF THE TRAVEL PER DIEM. THEREFORE, SINCE THE MEMBER IS NOT ENTITLED TO REIMBURSEMENT FOR TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO A PERMANENT CHANGE OF STATION UNDER PERMISSIVE ORDERS, IT IS OUR VIEW THAT HE IS NOT ENTITLED TO A TEMPORARY LODGING ALLOWANCE AS PARTIAL REIMBURSEMENT FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS AND PUBLIC RESTAURANTS IMMEDIATELY PRECEDING DEPARTURE FROM THE OLD STATION AND UPON INITIAL ARRIVAL AT THE NEW STATION, THESE EXPENSES BEING DIRECTLY ATTRIBUTABLE TO THE CHANGE OF STATIONS. THE PERMISSIVE ORDERS UNDER WHICH THE MEMBER REPORTS TO HIS NEW STATION ARE EFFECTIVE ORDERS, HOWEVER, FOR THE PURPOSE OF ASSIGNING HIM TO DUTY AT SUCH STATION, AND CONSEQUENTLY THERE APPEARS TO BE NO PROPER BASIS TO CONCLUDE THAT HE IS NOT ENTITLED TO THE HOUSING AND COST-OF-LIVING ALLOWANCES AUTHORIZED TO DEFRAY THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT SUCH STATION.

AS INDICATED ABOVE, PARAGRAPH 4302 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO IS REQUIRED TO, AND DOES, PROCURE NON GOVERNMENT FAMILY-TYPE HOUSING IN ORDER TO BRING HIS DEPENDENTS TO HIS OVERSEAS STATION WILL BE ENTITLED TO A HOUSING ALLOWANCE AS A MEMBER WITH DEPENDENTS FROM THE DATE OF PROCUREMENT OF SUCH HOUSING UNTIL THE ARRIVAL OF HIS DEPENDENTS BUT NOT TO EXCEED A PERIOD OF 60 DAYS. ONE OF THE CONDITIONS PRECEDENT TO PAYMENT OF THE ALLOWANCE IS THAT THE MEMBER HAS MADE APPLICATION FOR TRANSPORTATION OF HIS DEPENDENTS TO HIS PERMANENT DUTY STATION. OF COURSE, HE WOULD NOT BE ENTITLED TO SUCH TRANSPORTATION AT GOVERNMENT EXPENSE UNDER HIS PERMISSIVE ORDERS. HOWEVER, THAT WOULD NOT PRECLUDE THE UTILIZATION OF GOVERNMENT TRANSPORTATION IF A PROPER CHARGE IS MADE THEREFOR AND CONSEQUENTLY THIS REQUIREMENT APPARENTLY WOULD NOT BAR ENTITLEMENT. WHILE THE ALLOWANCE IS PAYABLE PRIOR TO ARRIVAL OF THE DEPENDENTS AND, HENCE, DOES INVOLVE SOME COSTS ABOVE THE NORMAL EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT SUCH STATION, IT IS IN NO SENSE A CONTINUATION OF THE TRAVEL PER DIEM BUT IS PAYABLE AT THE NORMAL HOUSING ALLOWANCE RATE PRESCRIBED FOR A MEMBER WITH DEPENDENTS AT THE STATION. THEREFORE, WE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF THE INTERIM HOUSING ALLOWANCE BY REASON OF THE FACT THAT THE CHANGE OF STATION WAS UNDER PERMISSIVE ORDERS. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.