B-156309, APR. 16, 1965

B-156309, APR. 16, 1965

TO MAJOR J. J. CLUBA, JR., FC, FINANCE AND ACCOUNTING OFFICE, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1965, AJXCO-F E, REQUESTING A DECISION WHETHER ON THE FACTS PRESENTED BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD NOVEMBER 16 TO DECEMBER 1, 1964, IN PAYABLE TO SECOND LIEUTENANT DAVID DEAN, 05532612, USAR. THE REQUEST WAS ASSIGNED DO NUMBER A-832 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

LIEUTENANT DEAN WAS ORDERED TO ACTIVE DUTY BY ORDERS DATED JUNE 26, 1964, AND BY ORDERS DATED JULY 10, 1964, WAS ASSIGNED TO DUTY AT FORT MCPHERSON, GEORGIA, WITH TEMPORARY DUTY EN ROUTE AT FORT BENJAMIN HARRISON, INDIANA. HE REPORTED AT FORT MCPHERSON ON NOVEMBER 16, 1964, APPARENTLY AS A MEMBER WITHOUT DEPENDENTS. ADEQUATE QUARTERS, AS DEFINED IN PARAGRAPH 14D (3), ARMY REGULATIONS 210-14, WERE NOT AVAILABLE FOR HIS OCCUPANCY AND A CERTIFICATE TO THAT EFFECT WAS ISSUED BY THE BILLETING OFFICER. DURING THE PERIOD NOVEMBER 16 TO DECEMBER 1, 1964, LIEUTENANT DEAN OCCUPIED TRANSIENT OFFICER QUARTERS AT FORT MCPHERSON PENDING LOCATION OF SUITABLE CIVILIAN QUARTERS IN ATLANTA, GEORGIA. IT APPEARS THAT BASIC ALLOWANCE FOR QUARTERS WAS PAID TO LIEUTENANT DEAN FOR THAT PERIOD AND WAS LATER RECOVERED.

YOU SAY THAT EXECUTIVE ORDER NO. 11146, DATED MARCH 13, 1964, PROVIDES THAT BASIC ALLOWANCE FOR QUARTERS MAY ACCRUE TO A MEMBER WITHOUT DEPENDENTS WHO OCCUPIES GOVERNMENT QUARTERS AT HIS PERMANENT STATION WHEN THE OCCUPANCY IS IN A DUTY STATUS INCIDENT TO A CHANGE OF PERMANENT STATION AND IS OF A TEMPORARY NATURE UNDER STANDARDS PRESCRIBED BY REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE. THAT EXECUTIVE ORDER WAS REVOKED BY EXECUTIVE ORDER NO. 11157 OF JUNE 22, 1964, SECTION 403 OF WHICH CONTAINS IDENTICAL PROVISIONS IN THAT RESPECT. YOU STATE THAT PARAGRAPH 16, ARMY REGULATIONS 210-14 AS AMENDED BY CHANGE 1, MAY 10, 1964, PROVIDES THAT INSTALLATION COMMANDERS ARE AUTHORIZED TO FURNISH GUEST OR HOSTESS HOUSES OR SIMILAR TYPE QUARTERS TO NEWLY ASSIGNED PERSONNEL WHEN GOVERNMENT HOUSING IS NOT IMMEDIATELY AVAILABLE AND TO PERSONNEL DEPARTING THE INSTALLATION ON A PERMANENT CHANGE OF STATION; THAT IF SUCH PERIOD OF TEMPORARY OCCUPANCY INCIDENT TO A PERMANENT CHANGE OF STATION DOES NOT EXCEED 30 CONSECUTIVE DAYS AT ONE LOCATION, FORFEITURE OF BASIC ALLOWANCE FOR QUARTERS FOR SUCH OCCUPANCY IS NOT REQUIRED, AND THAT SUCH PROVISIONS APPARENTLY ARE NOT LIMITED TO MEMBERS WITH DEPENDENTS.

YOU FURTHER STATE THAT DEPARTMENT OF THE ARMY MESSAGE 972393, DATED JUNE 8, 1964, AMENDED CHAPTER 5, ARMY REGULATIONS 37-104, TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITH DEPENDENTS WHO OCCUPIES GOVERNMENT QUARTERS IN A LEAVE OR DUTY STATUS INCIDENT TO A CHANGE OF PERMANENT STATION NOT TO EXCEED 30 CONSECUTIVE DAYS AT ONE PLACE. SINCE, HOWEVER, ARMY REGULATIONS 37-104 WERE NOT AMENDED TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WITHOUT DEPENDENTS UNDER THE SAME CIRCUMSTANCES, YOU QUESTION WHETHER LIEUTENANT DEAN IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD HERE INVOLVED.

SECTION 403 (A) OF TITLE 37, U.S.C. PROVIDES THAT, EXCEPT AS PROVIDED BY THAT SECTION OR BY ANOTHER LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES, OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.

SUBSECTION (G) AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE SECTION. PARAGRAPH 3 OF EXECUTIVE ORDER NO. 11146 ISSUED PURSUANT THERETO PROVIDES THAT:

"ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS * * * SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIS ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY (I) OCCURS WHILE SUCH MEMBER IS IN A DUTY OR LEAVE STATUS INCIDENT TO A CHANGE OF PERMANENT STATION AND IS OF A TEMPORARY NATURE UNDER STANDARDS PRESCRIBED BY REGULATIONS * * *.'

SECTION 3 OF EXECUTIVE ORDER NO. 10204 OF JANUARY 15, 1951, ISSUED UNDER PRIOR STATUTORY AUTHORITY SIMILAR TO 37 U.S.C. 403 CONTAINED PROVISIONS THE SAME AS THE ABOVE PARAGRAPH TO THE EFFECT THAT QUARTERS OCCUPIES "SHALL BE DEEMED TO HAVE BEEN ASSIGNED" AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO QUARTERS ALLOWANCE ACCRUED IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY WAS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. THAT SECTION DID NOT CONTAIN THE EXCEPTION IN CLAUSE (I), QUOTED ABOVE, RESPECTING OCCUPANCY WHILE IN A LEAVE OR DUTY STATUS INCIDENT TO A PERMANENT CHANGE OF STATION. IT WAS THE RULE UNDER THE PRIOR REGULATIONS THAT A MEMBER WHO ELECTS TO OCCUPY INADEQUATE QUARTERS MAY NOT THEREAFTER BE PERMITTED TO URGE THEIR INADEQUACY AS A BASIS FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. 42 COMP. GEN. 122, 124. COMPARE 40 COMP. GEN. 169, 171; ID. 715. THE SAME RULE IS FOR APPLICATION HERE. THEREFORE, SINCE THE OFFICER VOLUNTARILY OCCUPIED TRANSIENT QUARTERS HE IS DEEMED TO HAVE OCCUPIED ADEQUATE QUARTERS NOTWITHSTANDING THE CERTIFICATE OF THE BILLETING OFFICER THAT ADEQUATE QUARTERS (REGULAR) WERE NOT AVAILABLE FOR ASSIGNMENT. CONSEQUENTLY, HE IS NOT ENTITLED TO QUARTERS ALLOWANCE UNLESS HE COMES WITHIN THE EXCEPTION IN CLAUSE (I) OF THE EXECUTIVE ORDER AS IMPLEMENTED BY THE REGULATIONS.

IN OUR DECISION OF APRIL 14, 1955, 34 COMP. GEN. 515, WE HELD THAT THE TEMPORARY OCCUPANCY OF A STATION GUEST HOUSE BY AN OFFICER AND HIS DEPENDENTS DURING PROCESSING INCIDENT TO THE OCCUPATION OF OFF-BASE HOUSING AT PERSONAL EXPENSE WAS NOT OCCUPANCY AS FOR A "SOCIAL VISIT" WITHIN THE CONTEMPLATION OF EXECUTIVE ORDER NO. 10204, SO AS TO ENTITLE THE OFFICER TO A QUARTERS ALLOWANCE DURING SUCH PERIOD SINCE THE DEPENDENTS INTENDED TO REMAIN INDEFINITELY WITH THE OFFICER. IT IS OUR UNDERSTANDING THAT THE CHANGE IN EXECUTIVE ORDER NO. 11146 WAS TO MAKE IT CLEAR THAT IT WAS INTENDED TO PERMIT THE TEMPORARY OCCUPANCY OF QUARTERS BY A MEMBER AND HIS DEPENDENTS INCIDENT TO A CHANGE OF PERMANENT STATION WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS.

DEPARTMENT OF THE ARMY MESSAGE 972393 WAS ISSUED TO IMPLEMENT EXECUTIVE ORDER 11146. ITS PROVISIONS BECAME EFFECTIVE MARCH 13, 1964, EXCEPT FOR THE PORTIONS RELATING TO 30 DAYS INCIDENT TO A CHANGE OF PERMANENT STATION WHICH BECAME EFFECTIVE MARCH 27, 1964. IT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"5-47. MEMBERS ASSIGNED OR OCCUPYING GOVERNMENT QUARTERS.

"UNLESS SPECIFICALLY PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS WILL ACCRUE TO A MEMBER WITH DEPENDENTS, ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO HIS GRADE, AND ADEQUATE FOR HIMSELF AND HIS DEPENDENTS. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER AND HIS DEPENDENTS OR BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, WILL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY (1) OCCURS WHILE SUCH MEMBER IS IN A DUTY OR LEAVE STATUS INCIDENT TO A CHANGE OF PERMANENT STATION AND SUCH OCCUPANCY DOES NOT EXCEED 30 CONSECUTIVE DAYS AT ONE LOCATION, * * *.'

IT WILL BE SEEN THAT THE MESSAGE AMENDING THE REGULATIONS PURSUANT TO THE EXECUTIVE ORDER TO AUTHORIZE THE OCCUPANCY OF GOVERNMENT QUARTERS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS FOR A PERIOD NOT TO EXCEED 30 DAYS IN CONNECTION WITH A PERMANENT CHANGE OF STATION SPECIFICALLY LIMITS SUCH BENEFITS TO A MEMBER WITH DEPENDENTS, THUS CARRYING OUT THE INTENT OF THE EXECUTIVE ORDER. SUCH BENEFITS FOR A MEMBER WITH DEPENDENTS ARE NOW PRESCRIBED IN PARAGRAPH 10322 (4/E/1) OF ARMY REGULATIONS 37-104, EFFECTIVE MARCH 27, 1964, BUT NO SIMILAR PROVISIONS ARE CONTAINED IN CHAPTER 3, SECTION B OF SUCH REGULATIONS RELATING TO THE QUARTERS ALLOWANCES PAYABLE TO MEMBERS WITHOUT DEPENDENTS.

AS YOU POINT OUT, PARAGRAPH 16, ARMY REGULATIONS 210-14, AS AMENDED BY CHANGE 1 OF MAY 10, 1964, IS NOT STATED TO BE APPLICABLE ONLY TO MEMBERS WITH DEPENDENTS. THOSE REGULATIONS (AR 210-14), HOWEVER, RELATE TO PROCEDURES TO BE USED IN ESTABLISHING ELIGIBILITY OF PERSONNEL FOR ASSIGNMENT OF QUARTERS RATHER THAN ENTITLEMENT OF PAY AND ALLOWANCES. PARAGRAPH 16 WERE TO BE VIEWED AS PROVIDING FOR THE PAYMENT OF A QUARTERS ALLOWANCE FOR A 30-DAY PERIOD TO A MEMBER WITHOUT DEPENDENTS WHILE OCCUPYING GOVERNMENT QUARTERS, IT WOULD APPEAR TO EXCEED THE ENTITLEMENT PRESCRIBED BY THE SECRETARY OF THE ARMY IN THE MESSAGE OF JUNE 8, 1964.

SINCE LIEUTENANT DEAN APPARENTLY WAS WITHOUT DEPENDENTS AND OCCUPIED TRANSIENT OFFICER QUARTERS AT FORT MCPHERSON, HE DOES NOT COME WITHIN THE PURVIEW OF THE 30-DAY EXCEPTION PRESCRIBED IN THE REGULATIONS AND THERE IS NO AUTHORITY FOR PAYMENT OF THE ALLOWANCE FOR THE PERIOD CLAIMED. THE PAPERS WHICH ACCOMPANIED YOUR LETTER WILL BE RETAINED.