B-154624, NOV. 9, 1964

B-154624, NOV. 9, 1964

TO LIEUTENANT COLONEL THOMAS E. MAHONEY, JR., USAF, 15841A, CHIEF, SPACE EXPERIMENTS DIVISION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1964, WITH ENCLOSURES, REQUESTING REVIEW OF OFFICE SETTLEMENT DATED JANUARY 23, 1964, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCES FOR QUARTERS AS AN OFFICER WITHOUT DEPENDENTS FOR THE PERIOD JULY 9 TO 31, 1963.

SPECIAL ORDER NO. A-58, HEADQUARTERS, 6594TH AEROSPACE TEST WING (AFSC), UNITED STATES AIR FORCE, SUNNYVALE, CALIFORNIA, DATED APRIL 10, 1963, RELIEVED YOU FROM THAT ORGANIZATION AND ASSIGNED YOU TO DUTY WITH HEADQUARTERS, SPACE SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, LOS ANGELES 45, CALIFORNIA. THOSE ORDERS SPECIFIED THE REPORTING DATE AS NOT LATER THAN JULY 31, 1963, AND AUTHORIZED A DELAY EN ROUTE CHARGEABLE TO ORDINARY LEAVE. THE RECORD SHOWS THAT PURSUANT TO THOSE ORDERS YOU COMPLETED PERMANENT CHANGE OF STATION CLEARANCE PROCEDURES AND ,SIGNED OUT" ON LEAVE ON JULY 8, 1963, AND THAT EFFECTIVE THAT DATE YOU WERE RELIEVED FROM DUTY AT YOUR OLD STATION. YOU SAY THAT YOU CONTINUED TO MAINTAIN QUARTERS AT SUNNYVALE UNTIL JULY 23, 1963, ON WHICH DATE YOU TRAVELED TO AND ARRIVED AT LOS ANGELES. YOU CONTINUED IN A LEAVE STATUS THERE UNTIL JULY 31, 1963, ON WHICH DATE YOU REPORTED FOR DUTY AT YOUR NEW STATION.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE GROUND THAT SINCE YOU WERE IN A LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS DURING THE PERIOD OF YOUR CLAIM, PAYMENT THEREON WAS PRECLUDED BY THE PROVISIONS OF 37 U.S.C. 320 (NOW 37 U.S.C. 403/F) ). YOU HAVE PROTESTED THIS DISALLOWANCE BY YOUR LETTERS OF FEBRUARY 5 AND APRIL 28, 1964, SAYING THAT WHILE YOU MAY NOT BE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF SUBPARAGRAPH 20316A, AFM 177-105, DURING THE PERIOD YOU WERE ON LEAVE, YOU COULD HAVE QUALIFIED FOR THE PAYMENT BY FOLLOWING CERTAIN ALTERNATIVE PRACTICES WHICH WOULD HAVE TERMINATED AND RECOMMENCED YOUR LEAVE STATUS PRIOR TO AND AFTER THE TIME OF YOUR ARRIVAL IN LOS ANGELES. YOU MAINTAIN THAT YOU ARE BEING PENALIZED FOR HAVING PROCEEDED IN A MANNER WHICH MINIMIZED THE COST TO THE AIR FORCE AND, THEREFORE, YOU RECOMMEND THAT PARAGRAPH 20316, AFM 177-105, BE AMENDED TO AUTHORIZE PAYMENT OF QUARTERS ALLOWANCE TO A MEMBER WITHOUT DEPENDENTS AS LONG AS HE MAINTAINS A RESIDENCE AND ADEQUATE QUARTERS ARE NOT AVAILABLE.

SECTION 403/F) OF TITLE 37 U.S.C. PROVIDES, IN PERTINENT PART, THAT APPROPRIATIONS MAY NOT BE USED TO PAY ANY MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS A BASIC ALLOWANCE FOR QUARTERS WHILE HE IS IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT-DUTY STATIONS, INCLUDING TIME GRANTED AS DELAY EN ROUTE OR PROCEED TIME. THE REGULATIONS OF THE AIR FORCE WHICH WERE PROMULGATED IN ACCORDANCE WITH THE LAW AND WHICH WERE IN EFFECT DURING THE PERIOD OF YOUR CLAIM, SUBPARAGRAPH 20316A, AFM 177-105, DATED OCTOBER 31, 1962, PROVIDED, AMONG OTHER THINGS, THAT A MEMBER WITHOUT DEPENDENTS WAS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS WHILE ON LEAVE IF RELIEVED FROM DUTY AT HIS PERMANENT STATION. ALSO, PARAGRAPH 20318/B) PROVIDED THAT SUCH A MEMBER WAS NOT ENTITLED TO THE ALLOWANCE WHILE IN A TRAVEL STATUS INCLUDING DELAY EN ROUTE BETWEEN PERMANENT DUTY STATIONS.

THE LAW AND REGULATIONS CLEARLY PRECLUDE THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS WHILE TRAVELING OR ON LEAVE BETWEEN PERMANENT DUTY STATIONS. WHILE IT MAY BE, AS YOU STATE, THAT YOU COULD HAVE USED YOUR LEAVE BEFORE BEING RELIEVED FROM DUTY AT SUNNYVALE AND AFTER REPORTING FOR DUTY AT LOS ANGELES, THE FACT REMAINS THAT YOU SIGNED OUT ON THE PERMANENT CHANGE OF STATION MOVEMENT ON JULY 8, 1963, AND WERE EFFECTIVELY RELIEVED FROM YOUR DUTY ASSIGNMENT AT SUNNYVALE, WITH LEAVE BEING AUTHORIZED EN ROUTE TO YOUR NEW STATION. THE FACT THAT YOU CHOSE TO REMAIN AT SUNNYVALE DURING A PORTION OF YOUR LEAVE AND USED THE BALANCE AT LOS ANGELES AFFORDS NO BASIS TO ALLOW YOUR CLAIM SINCE YOU WERE IN A LEAVE STATUS "BETWEEN PERMANENT-DUTY STATIONS" AND FREE TO USE THE LEAVE AT THE PLACE OF YOUR CHOICE. ACCORDINGLY, THE SETTLEMENT OF JANUARY 23, 1964, IS SUSTAINED.

WITH RESPECT TO YOUR RECOMMENDED CHANGE IN PARAGRAPH 20316, AFM 177 105, YOU ARE ADVISED THAT ANY CHANGE IN THE REGULATION IS A MATTER FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE. ANY CHANGE IN THE REGULATION, HOWEVER, COULD NOT OPERATE TO CHANGE THE STATUTORY RESTRICTION IN 37 U.S.C. 403/F).