B-157530, NOV. 9, 1965, 45 COMP. GEN. 245

B-157530, NOV. 9, 1965, 45 COMP. GEN. 245

STATION ALLOWANCES - MILITARY PERSONNEL - EXCESS LIVING COSTS OUTSIDE UNITED STATES, ETC. - TEMPORARY DUTY AN ARMY OFFICER WHO IS PERMITTED UNDER "NO EXPENSE" ORDERS TO BE ABSENT FROM HIS PERMANENT DUTY ASSIGNMENT TO ATTEND A NEARBY UNIVERSITY FOR 125 DAYS TO ACQUIRE A DEGREE IS ENTITLED FOR THE PERIOD OF THE PERMISSIVE TEMPORARY DUTY TO HOUSING AND COST-OF-LIVING ALLOWANCES INCIDENT TO HIS PERMANENT DUTY AS FOR A MEMBER WITH DEPENDENTS RESIDING IN NONGOVERNMENTAL HOUSING NEAR HIS STATION, 37 U.S.C. 405 AND IMPLEMENTING REGULATIONS AUTHORIZING THE PAYMENT OF HOUSING AND COST-OF LIVING ALLOWANCES TO COVER THE EXTRA COST OF MAINTAINING RENTAL QUARTERS OUTSIDE THE UNITED STATES OR HAWAII OR ALASKA, WHETHER OR NOT A MEMBER IS IN A TRAVEL STATUS OR IS ON TEMPORARY DUTY THAT IS NOT REGARDED AS OFFICIAL BUSINESS, AND THE "NO EXPENSE" PROVISION IN THE TRAVEL ORDERS OF THE OFFICER PERTAINING ONLY TO TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO HIS NONOFFICIAL TEMPORARY DUTY, THE OFFICER ENTITLED TO THE PAY AND ALLOWANCES OF HIS PERMANENT DUTY ASSIGNMENT, MAY BE PAID HOUSING AND COST-OF-LIVING ALLOWANCES WHILE ATTENDING SCHOOL.

TO CAPTAIN E. H. BUNDICK, DEPARTMENT OF THE ARMY, NOVEMBER 9, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 17, 1965, WITH ENCLOSURES, FORWARDED HERE BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AND RECEIVED HERE ON AUGUST 23, 1965. YOU REQUEST AN ADVANCE DECISION CONCERNING THE ENTITLEMENT OF MAJOR JACK A. DODDS, AGC, 079257, TO HOUSING AND COST-OF-LIVING ALLOWANCES UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 65-26 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY LETTER ORDERS 12-209 DATED DECEMBER 23, 1964, HEADQUARTERS, U.S. ARMY, ALASKA SUPPORT COMMAND AND FORT RICHARDSON, APO 949, SEATTLE, WASHINGTON, MAJOR DODDS WAS PERMITTED TO PROCEED FROM HIS DUTY STATION AT ALASKA SUPPORT COMMAND ON JANUARY 25, 1965, ON TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 125 DAYS TO ALASKA METHODIST UNIVERSITY, ANCHORAGE, ALASKA, A SHORT DISTANCE FROM HIS PERMANENT STATION, FOR THE PURPOSE OF FULFILLING REQUIREMENTS FOR A BACHELOR OF ARTS DEGREE. THE ORDERS EXPRESSLY PROVIDED THAT NO EXPENSE TO THE GOVERNMENT WOULD BE INCURRED BY REASON OF THIS TEMPORARY DUTY.

THE MEMBER WAS PAID THE SUM OF $468.60 REPRESENTING HOUSING AND COST-OF- LIVING ALLOWANCES AS A MEMBER WITH DEPENDENTS FOR THE PERIOD JANUARY 2 TO APRIL 30, 1965, INCIDENT TO HIS PERMANENT DUTY ASSIGNMENT, WHICH AMOUNT WAS COLLECTED IN FULL FROM HIM FOR THE REASON THAT THE TEMPORARY DUTY ORDERS PROVIDED THAT HE BEAR ALL EXPENSES INCURRED BY REASON OF SUCH ASSIGNMENT. APPARENTLY MAJOR DODDS AND HIS WIFE RESIDED IN NON-GOVERNMENT HOUSING NEAR HIS STATION DURING THE PERIOD INVOLVED.

UNDER THE PROVISIONS OF 37 U.S.C. 405, 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 AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER "WHO IS ON DUTY" OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. CONFORMITY WITH THIS STATUTORY PROVISION, PARAGRAPH M4301 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY THE MEMBERS "ON PERMANENT DUTY" AT PLACES OUTSIDE THE UNITED STATES.

WITH RESPECT TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, SECTION 402 OF EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964, ISSUED PURSUANT TO THE PROVISIONS OF 37 U.S.C. 403 (G), STATES THAT EXCEPT AS OTHERWISE PROVIDED BY STATUTE A MEMBER SHALL BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IN ACCORDANCE WITH THESE REGULATIONS AND ANY REGULATIONS PRESCRIBED PURSUANT THERETO, DURING SUCH TIME OR TIMES AS HE IS ENTITLED TO BASIC PAY. ARMY REGULATIONS 37-104, PARAGRAPH 10322 (E) (2), DATED JUNE 28, 1965, PROMULGATED UNDER THIS AUTHORITY PROVIDES AS FOLLOWS:

(2) TEMPORARY DUTY NOT INCIDENT TO PCS.--- BAQ ACCRUES TO A MEMBER WITH DEPENDENTS WHILE HE IS ON TDY, IF HE WAS RECEIVING BAQ AT HIS PERMANENT DUTY STATION AND SUCH STATION REMAINS UNCHANGED, UNLESS GOVERNMENT QUARTERS OR HOUSING FACILITIES ARE OCCUPIED AT THE TDY STATION BY THE MEMBER AND HIS DEPENDENTS. * * * WHILE SUCH PROVISION WAS INCORPORATED IN THE REGULATIONS SUBSEQUENT TO THE PERIOD COVERED BY MAJOR DODD'S CLAIM, IT MERELY STATES THE RULE THAT WAS IN EFFECT DURING SUCH PERIOD. THUS, MEMBERS, WITH DEPENDENTS, PERFORMING TEMPORARY DUTY AWAY FROM A PERMANENT STATION AT WHICH THEY WERE NOT ASSIGNED, OR FURNISHED, QUARTERS, BUT AT WHICH THEY WERE PAID A QUARTERS ALLOWANCE AND REQUIRED TO PROCURE THEIR OWN QUARTERS, CONTINUE TO RECEIVE THE QUARTERS ALLOWANCE TO MEET THE CONTINUING EXPENSE OF MAINTAINING SUCH PRIVATELY FINANCED QUARTERS AT THE PERMANENT STATION DURING THEIR TEMPORARY ABSENCE FROM THAT STATION. COMPARE B-139902, AUGUST 13, 1959.

PARAGRAPH 11012 (A) OF ARMY REGULATIONS 37-104 DATED FEBRUARY 15, 1965, PROVIDES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED TO COVER INCREASED HOUSING AND LIVING COSTS AT OVERSEAS STATIONS. FURTHER, IT STATES THAT THESE ALLOWANCES ARE IN ADDITION TO BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE. PARAGRAPHS 11012 (D) (1) AND (2) OF THESE REGULATIONS PROVIDE THAT A MEMBER WITH DEPENDENTS IS ENTITLED TO COST-OF-LIVING ALLOWANCE AND HOUSING ALLOWANCE AT ALL TIMES INCIDENT TO HIS PERMANENT ASSIGNMENT OVERSEAS EXCEPT IN CERTAIN SPECIFIC SITUATIONS NOT APPLICABLE HERE. THUS, IT IS INDICATED THAT IT IS THE INTENT OF THE STATUTE AND REGULATIONS, WHERE IT IS NECESSARY FOR A MEMBER WITH DEPENDENTS TO MAINTAIN RENTAL QUARTERS AT AN ASSIGNED OVERSEAS STATION, NOT TO DENY HIM THE BASIC ALLOWANCE FOR QUARTERS OR HOUSING AND COST-OF-LIVING ALLOWANCES FOR ANY PERIOD DURING WHICH SUCH MEMBER IS ABSENT FROM HIS PERMANENT DUTY STATION ON TEMPORARY DUTY EVEN THOUGH SUCH DUTY IS NOT REGARDED AS OFFICIAL BUSINESS AND NO TRAVEL ALLOWANCES ARE AUTHORIZED. COMPARE 39 COMP. GEN. 718.

WE HAVE HELD THAT NO EXPENSE PROVISION IN TRAVEL ORDERS IS DIRECTED AGAINST THE PAYMENT OF TRAVEL AND PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY WHICH DOES NOT INVOLVE PUBLIC BUSINESS. 9 COMP. GEN. 414; 30 ID. 19; AND 36 ID. 257. ALSO WE HAVE HELD THAT SUCH PROHIBITION IS NOT DIRECTED AGAINST THE PAYMENT OF QUARTERS ALLOWANCE TO AN OFFICER WITHOUT DEPENDENTS IN PAY GRADE ABOVE 0-3 WHO IS ENTITLED TO BASIC PAY AND WHO IS NOT IN A TRAVEL OR LEAVE STATUS BETWEEN PERMANENT DUTY STATIONS (SECTION 403 (F) OF TITLE 37) PERFORMING TEMPORARY DUTY UNDER PERMISSIVE ORDERS, IF OTHERWISE PROPER. 45 COMP. GEN. 143. THE SAME REASONING WOULD APPEAR TO BE FOR APPLICATION WITH RESPECT TO THE PAYMENT OF HOUSING AND COST-OF- LIVING ALLOWANCES WHICH ARE PAYABLE INCIDENT TO A MEMBER'S ASSIGNMENT AT HIS PERMANENT DUTY STATION.

BASED ON THE FOREGOING, AND SINCE THE MEMBER WAS AUTHORIZED TO BE ABSENT FROM HIS PERMANENT DUTY ASSIGNMENT TO ATTEND SCHOOL NEAR HIS STATION IN ALASKA, WE ARE OF THE VIEW THAT HE IS ENTITLED TO PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD NOT BEEN AWAY FROM HIS PERMANENT DUTY STATION ON PERMISSIVE TEMPORARY DUTY. COMPARE 42 COMP. GEN. 689.

ACCORDINGLY, MAJOR DODDS IS ENTITLED TO THE HOUSING AND COST-OF LIVING ALLOWANCES FOR THE PERIOD INVOLVED. THE PAPERS WHICH ACCOMPANIED YOUR LETTER ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED.