B-159080, JUN. 15, 1966

B-159080, JUN. 15, 1966

TO SECOND LIEUTENANT GERALD W. BYRN, FC, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1966, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 1, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR THE PERIOD AUGUST 11 TO SEPTEMBER 2, 1965, INCIDENT TO TEMPORARY DUTY AT FORT BENJAMIN HARRISON, INDIANA.

BY LETTER ORDERS A-06-1116 DATED JUNE 9, 1965, YOU WERE DIRECTED TO REPORT TO HEADQUARTERS FIFTH LOGISTICS COMMAND, FORT BRAGG, NORTH CAROLINA, FOR ACTIVE DUTY, WITH TEMPORARY DUTY EN ROUTE AT THE ARMY SCHOOL CENTER/POST HEADQUARTERS, FORT BENJAMIN HARRISON, INDIANA, FOR APPROXIMATELY 14 WEEKS, TO REPORT NOT LATER THAN JULY 4, 1965. YOU WERE PAID PER DIEM AT THE RATE OF $3.50, AUTHORIZED FOR OFFICERS WHEN GOVERNMENT QUARTERS AND MESS ARE AVAILABLE AT THE TEMPORARY DUTY STATION, FOR THE PERIOD JULY 5, 1965, TO OCTOBER 8, 1965, FOR THE TEMPORARY DUTY AT FORT BENJAMIN HARRISON. YOUR CLAIM FOR ADDITIONAL PER DIEM ON THE BASIS OF NONAVAILABILITY OF QUARTERS WAS DISALLOWED BY THE SETTLEMENT OF APRIL 1, 1966, FOR THE REASON THAT YOU WERE NOT ISSUED A STATEMENT OF NONAVAILABILITY OF GOVERNMENT QUARTERS BY THE COMMANDING OFFICER OF FORT BENJAMIN HARRISON. IN YOUR LETTER OF APRIL 20, 1966, YOU REQUEST INFORMATION AS TO THE REGULATION OR REFERENCE ON WHICH THE DISALLOWANCE OF YOUR CLAIM IS BASED.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH M1150-5 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY, PROVIDES THAT THE TERM "GOVERNMENT QUARTERS" MEANS ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT, PROVIDED THEY ARE MADE AVAILABLE TO, OR UTILIZED BY, THE MEMBER CONCERNED. WITH EXCEPTIONS NOT HERE INVOLVED, PARAGRAPH M4451 OF THE REGULATIONS REQUIRES MEMBERS IN A TRAVEL STATUS TO UTILIZE AVAILABLE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND PROVIDES FOR A STATEMENT BY THE COMMANDING OFFICER AT THE POINT OF TEMPORARY DUTY AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS FOR THE ENTIRE PERIOD OF TEMPORARY DUTY INVOLVED, IF THE LENGTH OF TEMPORARY DUTY IS FOR A PERIOD OF 24 HOURS OR MORE, IN SUPPORT OF A CLAIM FOR ALLOWANCES MADE ON THAT BASIS. IN VIEW OF SUCH PROVISIONS, THE EXISTENCE OF ANY AVAILABLE USABLE GOVERNMENT QUARTERS PROVIDING SLEEPING ACCOMMODATIONS WOULD PRECLUDE ENTITLEMENT TO THE QUARTERS PORTION OF PER DIEM TO MEMBERS ON TEMPORARY DUTY AT SUCH PLACE EVEN THOUGH THEY FAILED TO OCCUPY SUCH QUARTERS, AND WOULD PROVIDE NO LEGITIMATE BASIS FOR THE ISSUANCE BY THE COMMANDING OFFICER OF A STATEMENT OF NONAVAILABILITY FOR SUCH MEMBERS.

THE RECORD DOES NOT SHOW WHY THE BACHELOR OFFICERS' QUARTERS AT FORT BENJAMIN HARRISON WERE DECLARED NOT SUITABLE ON AUGUST 11, 1965, OR WHETHER SUCH DECLARATION WAS AS TO SUITABILITY FOR PURPOSES OF ASSIGNMENT FOR PERMANENT DUTY RESIDENCE ONLY. NOR HAS THE ARMY REPORTED WHY YOU WERE DENIED A CERTIFICATE OF NONAVAILABILITY OF QUARTERS FOR THE PERIOD OF YOUR CLAIM. THE FACT THAT THE BACHELOR OFFICERS' QUARTERS WERE DECLARED NOT SUITABLE WOULD NOT ESTABLISH THEIR NONAVAILABILITY FOR PER DIEM PURPOSES UNLESS CLEARLY SHOWN TO HAVE BEEN DONE BECAUSE THE QUARTERS WERE NOT AVAILABLE AS SLEEPING ACCOMMODATIONS SINCE, AS INDICATED ABOVE, THE REGULATIONS REQUIRE ONLY THAT THERE BE AVAILABLE TO THE MEMBER ON TEMPORARY DUTY USABLE GOVERNMENT QUARTERS PROVIDING SLEEPING ACCOMMODATIONS.

THE PURPOSE FOR THE REQUIREMENT OF THE STATEMENT BY THE COMMANDING OFFICER AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS IN SUPPORT OF A CLAIM FOR PER DIEM IS TO PROVIDE EVIDENCE FROM AN OFFICIAL WHOSE KNOWLEDGE OF THE FACTS IN THE MATTER PARTICULARLY QUALIFIES HIM FOR MAKING A DETERMINATION, AND THE REGULATIONS DO NOT AUTHORIZE OUR OFFICE TO QUESTION SUCH DETERMINATION. IN THE ABSENCE OF SUCH EVIDENCE, OR OTHER EVIDENCE TO SHOW THAT DURING THE PERIOD COVERED BY YOUR CLAIM QUARTERS SUITABLE TO PROVIDE SLEEPING ACCOMMODATIONS WOULD NOT HAVE BEEN AVAILABLE HAD YOU REQUESTED THEM, THERE IS NO AUTHORITY TO ALLOW YOUR CLAIM FOR ADDITIONAL PER DIEM.

ACCORDINGLY, THE SETTLEMENT OF APRIL 1, 1966, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

WITH REGARD TO YOUR STATEMENT THAT CERTIFICATES OF NONAVAILABILITY OF GOVERNMENT QUARTERS WERE ISSUED TO OTHER MEMBERS OF YOUR CLASS, THE CORRECTNESS OF PER DIEM PAYMENTS THAT MAY HAVE BEEN MADE TO THOSE MEMBERS ON THE BASIS OF THE CERTIFICATES WILL BE FOR CONSIDERATION IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS. HOWEVER, THE FACT, IF ESTABLISHED, THAT OTHER MEMBERS WERE ERRONEOUSLY PAID PER DIEM AFFORDS NO BASIS FOR ALLOWING YOUR CLAIM.