B-155799, FEB. 24, 1965, 44 COMP. GEN. 515

B-155799, FEB. 24, 1965, 44 COMP. GEN. 515

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - ASSIGNMENT OF GOVERNMENT QUARTERS AN OFFICER OF THE UNIFORMED SERVICES TRANSFERRED TO AN OVERSEAS DUTY STATION WHO NOTWITHSTANDING THE AVAILABILITY OF GOVERNMENT QUARTERS CONSIDERED ADEQUATE FOR TEMPORARY OCCUPANCY CHOOSES TO STAY AT A HOTEL UNTIL PERMANENT QUARTERS ARE ASSIGNED TO HIM IS NOT ENTITLED TO PAYMENT OF A TEMPORARY LODGING ALLOWANCE FOR THE PERIOD THAT HE OCCUPIES HOTEL ACCOMMODATIONS ON THE BASIS THAT THE QUARTERS OFFERED WERE DECLARED INADEQUATE FOR PERMANENT OCCUPANCY UNLESS VOLUNTARILY ACCEPTED, AND THE OFFICER HAVING DECLINED TO UTILIZE THE QUARTERS MADE AVAILABLE TO HIM, CONSIDERED ADEQUATE FOR TEMPORARY OCCUPANCY, IS UNABLE TO SUPPORT ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE PRESCRIBED BY PARAGRAPH 4303-2A OF THE JOINT TRAVEL REGULATIONS FOR MEMBERS WHO WHEN NOT FURNISHED GOVERNMENT QUARTERS SECURE TEMPORARY LODGINGS AND OCCUPY HOTEL OR HOTEL- LIKE ACCOMMODATIONS.

TO LIEUTENANT (JG) R. L. WENZ, DEPARTMENT OF THE NAVY, FEBRUARY 24, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1964 (FD:BS 7220), FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION COMMITTEE (PDTATAC CONTROL NO. 64-39) ON DECEMBER 17, 1964, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE TO CAPTAIN WILLIAM HENRY SHEA, JR., UNITED STATES NAVY, UNDER THE CIRCUMSTANCES PRESENTED.

IT APPEARS THAT INCIDENT TO A DUTY ASSIGNMENT AS COMMANDING OFFICER, MILITARY SEA TRANSPORTATION SERVICE OFFICE, HONOLULU, HAWAII, CAPTAIN SHEA REPORTED AT HIS PERMANENT DUTY STATION ON JULY 13, 1964. THE OFFICER CERTIFIED THERE WERE NO GOVERNMENT QUARTERS AVAILABLE FOR ASSIGNMENT TO HIM, THAT HE WAS REQUIRED TO SECURE TEMPORARY LODGING PENDING COMPLETION OF ARRANGEMENTS FOR PERMANENT LIVING ACCOMMODATIONS AND THAT A GOVERNMENT MESS WAS NOT AVAILABLE TO HIM. HE CLAIMS TEMPORARY LODGING ALLOWANCE FOR THE PERIOD HE STAYED AT THE CORALSEAS HOTEL IN HONOLULU, FROM JULY 13 TO 26, 1964.

THE RECORD INDICATES THAT PRIOR TO THE OFFICER'S ARRIVAL AT OVERSEAS STATION, A DETERMINATION HAD BEEN MADE THAT BACHELOR OFFICERS'QUARTERS AVAILABLE FOR ASSIGNMENT BY THAT OFFICE WERE NOT CONSIDERED APPROPRIATE FOR A NAVY CAPTAIN AND A REQUEST WAS MADE FOR THE OFFICER TO BE ACCOMMODATED AT THE BACHELOR OFFICERS' QUARTERS AT A NEARBY INSTALLATION. THIS REQUEST WAS DENIED. AT THE TIME OF HIS ARRIVAL, THE OFFICER WAS ADVISED ABOUT THE BACHELOR OFFICERS' QUARTERS AVAILABLE FOR HIM AT U.S. NAVAL STATION, PEARL HARBOR, BUT SINCE HE DID NOT CONSIDER THE ROOM SUITABLE FOR AN OFFICER WITH THE RANK OF CAPTAIN AND INASMUCH AS HE HAD BEEN ADVISED THAT THE COMMANDING OFFICER DID NOT CONSIDER IT SUITABLE FOR PERMANENT OCCUPANCY, HE DID NOT ACCEPT SUCH QUARTERS BUT CHOSE TO STAY AT A HOTEL UNTIL PERMANENT QUARTERS WERE ASSIGNED TO HIM. ON THAT BASIS, HE CLAIMS TEMPORARY LODGING ALLOWANCE FOR THE PERIOD HE OCCUPIED HOTEL ACCOMMODATIONS.

COMFOURTEEN INSTRUCTION 1746.1C, DATED JUNE 1, 1964, STATES THAT THE COMMANDANT, FOURTEENTH NAVAL DISTRICT HAS DETERMINED THAT THE QUARTERS AVAILABLE IN THE COMMISSIONED OFFICERS' MESS (CLOSED) ARE NOT ADEQUATE FOR PERMANENT OCCUPANCY BY SINGLE OFFICERS ASSIGNED TO DUTY WITH NAVY AND MARINE ACTIVITIES IN THE PEARL HARBOR AREA IN LIEU OF BASIC ALLOWANCE FOR QUARTERS, BUT HAS DETERMINED THAT THESE QUARTERS ARE ADEQUATE FOR OFFICERS ON TEMPORARY DUTY IN THAT AREA AND FOR THOSE OFFICERS ON PERMANENT DUTY WHO VOLUNTARILY ACCEPT QUARTERS THEREIN. IN YOUR LETTER REQUESTING ADVANCE DECISION, YOU SAY THAT CAPTAIN SHEA'S DECISION TO DECLINE TO OCCUPY BACHELOR OFFICERS' QUARTERS THEREIN. IN YOUR LETTER REQUESTING ADVANCE DECISION, YOU SAY THAT CAPTAIN SHEA'S DECISION TO DECLINE TO OCCUPY BACHELOR OFFICERS' QUARTERS IN THE COMMISSIONED OFFICERS' MESS (CLOSED) PEARL HARBOR, WHICH WERE AVAILABLE, AND HIS CHOICE TO OCCUPY HOTEL-LIKE ACCOMMODATIONS WERE BASED ON THE FACT THAT THE GOVERNMENT QUARTERS IN QUESTION HAD BEEN DECLARED INADEQUATE FOR PERMANENT OCCUPANCY, EVEN THOUGH THEY HAD BEEN DETERMINED TO BE ADEQUATE FOR ASSIGNMENT TO ALL OFFICERS ON TEMPORARY DUTY. YOU STATE FURTHER THAT PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT GOVERNMENT QUARTERS MUST NOT BE AVAILABLE NOR FURNISHED TO THE MEMBER, AS ONE OF THE CONDITIONS PRECEDENT FOR THE PAYMENT OF TEMPORARY LODGING ALLOWANCE AND THAT PARAGRAPH 4153-3, NAVY TRAVEL INSTRUCTIONS, PROVIDES THAT SUCH ALLOWANCES WILL NOT BE PAID UNLESS THE NECESSITY FOR OCCUPANCY OF HOTEL OR HOTEL-LIKE ACCOMMODATIONS IS ESTABLISHED. YOU THEREFORE QUESTION THE PROPRIETY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE WHERE GOVERNMENT QUARTERS WERE AVAILABLE UPON THE OFFICER'S ARRIVAL AND THESE QUARTERS WERE DETERMINED TO BE ADEQUATE FOR ALL OFFICERS ON TEMPORARY DUTY.

BY SECOND INDORSEMENT OF NOVEMBER 30, 1964, AS AMENDED, THE COMPTROLLER OF THE NAVY POINTS OUT THAT WE HAVE HELD THAT TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION EMOLUMENT AND ON THAT BASIS HE SAYS IT WOULD APPEAR THAT SINCE THE QUARTERS IN QUESTION WERE NOT AVAILABLE FOR PERMANENT OCCUPANCY, PAYMENT OF THE TEMPORARY LODGING ALLOWANCE IS PROPER. HOWEVER, SINCE PARAGRAPH 4303-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT ONE OF THE CONDITIONS UNDER WHICH SUCH ALLOWANCE IS PAYABLE IS THAT "GOVERNMENT QUARTERS ARE NOT FURNISHED," HE FURTHER STATES THAT IF THE DEFINITION OF GOVERNMENT QUARTERS CONTAINED IN PARAGRAPH 1150-5 OF THE REGULATIONS IS CONTROLLING IT WOULD APPEAR THAT UNDER THE PRINCIPLE ENUNCIATED IN OUR DECISION B 147521, DATED JULY 2, 1962, PAYMENT OF TEMPORARY LODGING ALLOWANCE WOULD NOT BE PROPER IN THIS INSTANCE.

THE STATUTORY AUTHORITY FOR PAYMENT OF STATION ALLOWANCES OUTSIDE CONTINENTAL UNITED STATES, 37 U.S.C. 405, PROVIDES THAT 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. REGULATIONS PERTAINING TO STATION ALLOWANCES ARE CONTAINED IN PART G, CHAPTER 4 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4300-4 LISTS THE STATION ALLOWANCES FOR QUARTERS AND SUBSISTENCE. PARAGRAPH 4303-2A OF THE REGULATIONS PROVIDES THAT TEMPORARY LODGING ALLOWANCE IS PAYABLE TO MEMBERS OTHERWISE ELIGIBLE WHEN ALL OF THE FOLLOWING CONDITIONS EXIST: (1) GOVERNMENT QUARTERS ARE NOT FURNISHED THE MEMBER, HIS DEPENDENTS, OR THE MEMBER AND HIS DEPENDENTS, IF WITH DEPENDENTS; (2) THE MEMBER IS REQUIRED TO SECURE TEMPORARY LODGINGS; AND (3) THE MEMBER, HIS DEPENDENTS, OR BOTH ACTUALLY OCCUPY HOTEL OR HOTEL -LIKE ACCOMMODATIONS.

PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD INVOLVED, DEFINES THE TERM "GOVERNMENT QUARTERS" AS MEANING "ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE U.S. GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED.'

AS THE COMPTROLLER OF THE NAVY POINTS OUT IN HIS SECOND ENDORSEMENT OF NOVEMBER 30, 1964, IT IS WELL SETTLED THAT TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION EMOLUMENT. IN OUR DECISION OF MARCH 5, 1964, 43 COMP. GEN. 584, WE STATED THAT WHEN A MEMBER REPORTS TO 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 PRESCRIBES ON THE BASIS OF CONDITIONS THAT PREVAIL AT HIS PERMANENT STATION. IT DOES NOT FOLLOW, HOWEVER, THAT TEMPORARY LODGING ALLOWANCE IS PAYABLE TO A MEMBER FOR THE PERIOD OF OCCUPANCY OF HOTEL ACCOMMODATIONS IN CIRCUMSTANCES WHERE GOVERNMENT QUARTERS ARE AVAILABLE FOR HIS OCCUPANCY MERELY BECAUSE THE QUARTERS ARE NOT DEEMED TO BE ADEQUATE FOR PERMANENT ASSIGNMENT. TO SUPPORT ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE IT MUST BE SHOWN THAT NO QUARTERS ARE FURNISHED TO THE MEMBER AND THAT HE IS REQUIRED TO PROCURE TEMPORARY LODGINGS.

THE RECORD SHOWS THAT BACHELOR OFFICER'S QUARTERS AT THE COMMISSIONED OFFICERS' MESS (CLOSED) PEARL HARBOR, WERE AVAILABLE FOR AND WOULD HAVE BEEN FURNISHED TO CAPTAIN SHEA HAD HE NOT DECLINED TO UTILIZE SUCH QUARTERS. IN THESE CIRCUMSTANCES IT IS CLEAR THAT HE WAS NOT REQUIRED TO SECURE TEMPORARY LODGINGS ELSEWHERE. HENCE, THE CONDITIONS PRESCRIBED IN PARAGRAPH 4303-2A OF THE JOINT TRAVEL REGULATIONS TO SUPPORT ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE HAVE NOT BEEN MET AND HE IS NOT ELIGIBLE FOR THE ALLOWANCE AS CLAIMED. ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE SUBMITTED CLAIM WHICH IS BEING RETAINED HERE TOGETHER WITH THE SUPPORTING PAPERS.