B-156740, MAY 28, 1965

B-156740, MAY 28, 1965

TO RONALD T. OLDENBURG, CAPTAIN, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1965, WITH ENCLOSURES, FORWARDED HERE AT YOUR REQUEST BY THE HONORABLE JOHN STENNIS, UNITED STATES SENATE, IN EFFECT CLAIMING BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD MARCH 6, 1964, TO THE PRESENT WHILE ON DUTY AT TAINAN AIR STATION, TAIWAN, REPUBLIC OF CHINA.

IN YOUR CLAIM, YOU STATE THAT YOU ARRIVED AT YOUR DUTY STATION AT TAINAN AIR STATION ON MARCH 6, 1964, AT WHICH TIME YOU WERE NOT GIVEN AN ELECTION OF QUARTERS BUT SIMPLY ASSIGNED SPACE IN THE BACHELOR OFFICERS' QUARTERS. YOU STATE FURTHER THAT YOU CONSIDERED THE ASSIGNED QUARTERS AS INADEQUATE FOR YOUR USE AND YOU VERBALLY PROTESTED THEIR ADEQUACY TO THE BASE COMMANDER WHO INDICATED A BELIEF THAT THE QUARTERS WERE ADEQUATE. YOU SAY THAT ON JUNE 1, 1964, YOU REQUESTED A CERTIFICATE OF NONAVAILABILITY OF QUARTERS AND ON JUNE 7, 1964, YOU VACATED YOUR QUARTERS TO MOVE TO HOUSING IN THE LOCAL COMMUNITY. WHEN THE CERTIFICATE WAS DENIED BY YOUR BASE COMMANDER, YOU REQUESTED SUCH CERTIFICATE FROM THE AIR FORCE FINANCE AND ACCOUNTING CENTER, DENVER, COLORADO, WHICH ALSO DENIED YOUR REQUEST. NOVEMBER 11, 1964, YOU MOVED BACK TO GOVERNMENT QUARTERS. YOU EXPLAIN IN DETAIL WHY YOU CONSIDERED THE ASSIGNED QUARTERS AS INADEQUATE, REFERRING TO INSUFFICIENT SPACE AND THE FAILURE OTHERWISE TO MEET THE MINIMUM STANDARDS SET FORTH IN AIR FORCE REGULATIONS 34 26. YOU CONTEND THAT LIVING CONDITIONS OTHER THAN THE PHYSICAL CONDITION OF THE BUILDING IN WHICH YOU LIVED SHOULD HAVE A BEARING ON THE ADEQUACY OF QUARTERS, STATING THAT BECAUSE OF SECURITY REGULATIONS THERE WAS A LACK OF FREEDOM OF THEIR USE AND OF INGRESS AND EGRESS THERETO. BECAUSE OF THE CURTAILMENT OF USE AND LACK OF FREEDOM OF INGRESS AND EGRESS TO THE ASSIGNED QUARTERS, YOU COMPARED THE SITUATION TO THAT CONSIDERED IN DECISION OF SEPTEMBER 16, 1960, 40 COMP. GEN. 169, WHEREIN WE HAD STATED THAT THESE CONDITIONS WOULD APPEAR TO BE BASIC CONSIDERATIONS IN THE MATTER AND THAT ADMINISTRATIVE DETERMINATION OF PHYSICAL ADEQUACY WOULD NOT BE CONTROLLING. YOU ALSO CHALLENGE THE STATEMENT OF THE AIR FORCE ACCOUNTING AND FINANCE CENTER THAT THE DETERMINATION BY THE BASE COMMANDER IN DENYING YOUR REQUEST FOR A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS PROPER UNDER DECISION DATED FEBRUARY 8, 1960, B 141316, (39 COMP. GEN. 561) AND 8 COMP. GEN. 82. YOU SAY THAT THESE DECISIONS DO NOT SUPPORT THE COMMANDING OFFICER'S RULING. FINALLY, YOU DENY THAT YOU ELECTED TO OCCUPY INADEQUATE QUARTERS, STATING THAT YOUR OCCUPANCY WAS NOT A MATTER OF CHOICE, BUT WAS BECAUSE OF FINANCIAL NECESSITY. YOU CLAIM BASIC ALLOWANCE FOR QUARTERS, LESS THE FAIR RENTAL VALUE OF THE GOVERNMENT QUARTERS OCCUPIED BY YOU, FOR THE PERIODS FROM MARCH 6 TO JUNE 6, 1964, AND FROM NOVEMBER 12, 1964, TO MARCH 8, 1965, AND SUCH ALLOWANCE WITHOUT DEDUCTIONS, FROM JUNE 7 TO NOVEMBER 11, 1964, COVERING THE PERIOD YOU DID NOT OCCUPY GOVERNMENT QUARTERS.

SECTION 403 (B) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO WAS 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. EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, 16 FEDERAL REGISTER 416, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES IN PARAGRAPH 3 THEREOF, THAT 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 WITHOUT DEPENDENTS AT HIS PERMANENT STATION, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. SEE, ALSO, SECTION 403, EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, 29 FEDERAL REGISTER 7973 AT PAGE 7979, WHICH SUPERSEDED EXECUTIVE ORDER NO. 10204 AND WHICH CONTAINS SIMILAR LANGUAGE. PARAGRAPH 20315A, AIR FORCE MANUAL 177-105 (CHANGE 23, DATED OCTOBER 31, 1962), IMPLEMENTED THE STATUTE AND EXECUTIVE ORDERS BY PROVIDING THAT UNLESS SPECIFICALLY AUTHORIZED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO A MEMBER WITHOUT DEPENDENTS ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE AND ADEQUATE TO HIS RANK, GRADE, OR RATING, AND THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES AT HIS PERMANENT STATION SHALL BE CONSIDERED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. IT PROVIDED FURTHER THAT THE RESPONSIBILITY FOR ASSIGNMENT AND TERMINATION OF QUARTERS, AND FOR THE DETERMINATION THAT QUARTERS ARE "ADEQUATE" AND "APPROPRIATE" FOR ASSIGNMENT RESTS WITH THE BASE COMMANDER. PARAGRAPH 10311B, AIR FORCE MANUAL 177-105, DATED JULY 1, 1964, AND, CURRENTLY, PARAGRAPHS 10311 AND 10312, CHANGE 8, DATED MAY 7, 1965, CONTAIN SIMILAR PROVISIONS. SUCH PROVISIONS CONTEMPLATE DETERMINATIONS MADE IN THE DISCRETIONARY JUDGMENT OF BASE COMMANDERS. AIR FORCE REGULATIONS 34-26, DATED AUGUST 7, 1963, AND JUNE 25, 1964, WHICH SERVE AS AN ADVISORY GUIDE FOR CURRENT AND FUTURE BOQ CONSTRUCTION, TO INSURE PROPER ASSIGNMENT OF QUARTERS TO OFFICERS WITHOUT DEPENDENTS, PROVIDE IN PARAGRAPH 3 THAT THE BASE COMMANDER IS AUTHORIZED TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WHEN BACHELOR OFFICER QUARTERS DO NOT MEET THE MINIMUM STANDARDS PRESCRIBED IN PARAGRAPH 2 THEREOF. SUCH REGULATIONS PROVIDE FURTHER THAT ANY PUBLIC QUARTERS VOLUNTARILY ACCEPTED AND OCCUPIED BY BACHELOR OFFICERS WILL BE PRESUMED TO BE ADEQUATE.

YOU CONTEND THAT THE ASSIGNED QUARTERS WERE PHYSICALLY INADEQUATE AND THAT THE AIR FORCE ACCOUNTING AND FINANCE CENTER ERRED IN REFERRING TO 39 COMP. GEN. 561 AS AUTHORITY THAT THE BASE COMMANDER'S DETERMINATION AS TO ADEQUACY OF QUARTERS WAS CONTROLLING SINCE IT WAS STATED IN THAT DECISION THAT SUCH A DETERMINATION, ALTHOUGH USUALLY CONSIDERED THE BEST EVIDENCE OF FACTS, IS NOT CONCLUSIVE WHERE THE FACTS ARE OTHERWISE CLEARLY ESTABLISHED. THE BASE COMMANDER INDICATED IN HIS STATEMENT DATED JUNE 12, 1964, RELATIVE TO THE REASONS FOR HIS DETERMINATION, THAT THE CONSTRUCTION DESIGN FOR SUCH QUARTERS HAD BEEN APPROVED BY PROPER AUTHORITY AND THAT BASED ON A QUALITY COMPARISON WITH OTHER FACILITIES IN THE SOUTHWEST PACIFIC AREA, HE COULD NOT DECLARE THE QUARTERS TO BE INADEQUATE. SINCE THE QUARTERS IN QUESTION PRESUMABLY WERE BUILT PRIOR TO AUGUST 7, 1963, THERE WOULD APPEAR TO BE NO CONFLICT BETWEEN THAT DETERMINATION AND THE PROVISIONS OF AIR FORCE REGULATION NO. 34-26 OF THAT DATE. UNDER THE CIRCUMSTANCES, WE MAY NOT CONCLUDE THAT THE BASE COMMANDER'S REFUSAL TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS NOT A PROPER USE OF HIS DISCRETIONARY JUDGMENT IN THE MATTER. SEE B-155572, DATED DECEMBER 31, 1964 (COPY ENCLOSED).

AS TO YOUR CONTENTION THAT THE QUARTERS WERE INADEQUATE BECAUSE OF THE LACK OF FREEDOM OF USE AND OF FREEDOM OF INGRESS AND EGRESS TO THE LACK OF FREEDOM OS USE AND OF FREEDOM OF INGRESS AND EGRESS TO YOUR ASSIGNED QUARTERS, WHICH YOU COMPARED TO THE SITUATION CONSIDERED IN DECISION OF SEPTEMBER 16, 1960, 40 COMP. GEN. 169, WE STATED THEREIN THAT THIS WAS A CASE OF A MEMBER WHO WAS FORCED TO OCCUPY QUARTERS AGAINST HIS WILL DURING A PERIOD OF CONFINEMENT IN A GUARDHOUSE OR BRIG, AND IN THAT SITUATION HE MAY NOT BE CONSIDERED AS HAVING "ELECTED" TO OCCUPY SUCH QUARTERS. WE DID INDICATE THAT FREEDOM OF USE AND INGRESS AND EGRESS WERE BASIC CONSIDERATIONS AS TO THE ADEQUACY OF QUARTERS IN SUCH MATTERS, BUT WE HELD IN DECISION OF JUNE 27, 1961, 40 COMP. GEN. 715 (COPY ENCLOSED), THAT WHEN A MEMBER IS CONFINED TO HIS OWN QUARTERS IN A STATUS OF ARREST, THE SAME REASONING DOES NOT APPLY, SINCE THE QUARTERS OCCUPIED WERE ASSIGNED TO AND ACTUALLY WERE ADEQUATE QUARTERS PRIOR TO THE PERIOD OF CONFINEMENT. WOULD APPEAR THAT SINCE YOU WERE NOT FORCED TO OCCUPY THE QUARTERS IN A STATUS OF ARREST AND INASMUCH AS ALL THE OTHER MEMBERS WHO OCCUPY BACHELOR OFFICERS' QUARTERS AT YOUR LOCATION OR OTHER LOCATIONS SIMILARLY SITUATED ARE SUBJECT TO THE SAME SECURITY RESTRICTIONS, COMPARISON BETWEEN THE SITUATIONS CONSIDERED IN 40 COMP. GEN. 169 AND 715 AND YOUR CASE IS NOT EVIDENT.

YOU STATE THAT YOU DID NOT ELECT TO OCCUPY GOVERNMENT QUARTERS, BUT THAT THE OCCUPANCY WAS BECAUSE OF FINANCIAL NECESSITY. HOWEVER, SINCE THE CHOICE OF WHETHER TO OCCUPY GOVERNMENT QUARTERS WAS MOTIVATED BY PERSONAL CONSIDERATIONS, FINANCIAL OR OTHERWISE, RATHER THAN REQUIRED BY MILITARY COMPULSION OR NECESSITY, SUCH OCCUPANCY IS CONSIDERED AS AN ELECTION BY YOU.

THE CITED PROVISIONS IN THE EXECUTIVE ORDERS AND APPLICABLE REGULATIONS THAT GOVERNMENT QUARTERS IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER WITHOUT DEPENDENTS SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE AND THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES, IS OF NECESSITY CONTROLLING FOR THE PERIOD YOU IN FACT OCCUPIED GOVERNMENT QUARTERS AT TAINAN AIR STATION. AS TO THE PERIOD YOU VACATED YOUR QUARTERS, INASMUCH AS THE BASE COMMANDER DID NOT FURNISH A CERTIFICATE OF NONAVAILABILITY OF QUARTERS, AND QUARTERS CONSIDERED ADEQUATE IN THE JUDGMENT OF THAT OFFICIAL WERE AVAILABLE FOR YOU, YOU ARE NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS DURING THAT PERIOD. ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.