B-159649, JAN. 31, 1967

B-159649, JAN. 31, 1967

TO CORPORAL PHILLIP E. MENDOZA, USMC:

REFERENCE IS MADE TO LETTER DATED DECEMBER 7, 1966, WRITTEN IN YOUR BEHALF BY MR. GEORGE S. PARISH REQUESTING RECONSIDERATION OF YOUR ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AND FAMILY SEPARATION ALLOWANCE. THE MATTER WAS THE SUBJECT OF OUR LETTER OF JULY 20, 1966, B- 159649, TO THE HONORABLE ROMAN L. HRUSKA, UNITED STATES SENATE, AND MR. PARISH QUESTIONS OUR CONCLUSION THAT ON THE BASIS OF THE INFORMATION BEFORE US THE MARINE CORPS PROPERLY DETERMINED THAT YOU ARE NOT ENTITLED TO THE ALLOWANCES CLAIMED.

IN OUR LETTER OF JULY 20, 1966, TO SENATOR HRUSKA, WE EXPLAINED THAT WE HAVE NO INFORMATION CONCERNING THE MATTER OTHER THAN THAT FURNISHED WITH HIS LETTER TO US AND OTHER PERTINENT INFORMATION WE HAVE OBTAINED INFORMALLY FROM HEADQUARTERS, UNITED STATES MARINE CORPS, WASHINGTON, D.C.

IT APPEARS THAT IN JUNE 1965 YOU WERE TRANSFERRED TO OKINAWA, A RESTRICTED STATION, AND GOVERNMENT TRANSPORTATION OF YOUR DEPENDENT (WIFE) WAS NOT AUTHORIZED. HOWEVER, YOUR WIFE TRAVELED TO OKINAWA AT PERSONAL EXPENSE. LATER YOU WERE ASSIGNED TO DUTY IN VIETNAM. ON AUGUST 2, 1965, YOUR WIFE OBTAINED EMPLOYMENT IN OKINAWA WITH THE DEPARTMENT OF THE ARMY AND WAS FURNISHED QUARTERS IN THE WOMEN'S BACHELOR OFFICERS' QUARTERS. SUBSEQUENTLY, IT WAS ADMINISTRATIVELY DETERMINED BY THE MARINE CORPS, BASED UPON OFFICIAL INFORMATION IT RECEIVED FROM THE DEPARTMENT OF THE ARMY, THAT YOUR WIFE OCCUPIED GOVERNMENT QUARTERS AND THAT EXCEPT FOR A MINIMUM SERVICE CHARGE, SHE WAS NOT CHARGED FOR THE OCCUPANCY OF HER QUARTERS.

THE APPLICABLE LAW AND REGULATIONS PRECLUDE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO A MEMBER ON HIS OWN ACCOUNT IF HE IS FURNISHED QUARTERS IN KIND FOR HIMSELF, OR TO A MEMBER WITH DEPENDENTS IF HIS DEPENDENTS ARE OTHERWISE FURNISHED GOVERNMENT QUARTERS OR THEIR EQUIVALENT. SINCE IT WAS OFFICIALLY DETERMINED THAT YOUR WIFE OCCUPIED GOVERNMENT QUARTERS, THE MARINE CORPS CONCLUDED THAT YOU WERE NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT. ALSO, SINCE FAMILY SEPARATION ALLOWANCE IS PAYABLE UNDER 37 U.S.C. 427 (B) ONLY TO MEMBERS WHO ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS, THE MARINE CORPS DETERMINED YOU WERE NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE.

ON THE BASIS OF THE FACTS AS PRESENTED TO US, WE ADVISED SENATOR HRUSKA THAT YOU HAD BEEN CORRECTLY ADVISED BY THE MARINE CORPS THAT YOU WERE NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS OR FAMILY SEPARATION ALLOWANCE WHILE YOUR WIFE OCCUPIED THE GOVERNMENT QUARTERS.

IN HIS LETTER TO US, MR. PARISH SAYS THAT APPARENTLY WE FELT THAT YOUR WIFE'S ASSIGNMENT TO A CUBICLE WHENCE SHE COULD OPERATE AS A MAID IN OKINAWA CONSTITUTED QUARTERS WITHIN THE MEANING OF THE LAW. FURTHER HE SAYS IN PERTINENT PART:

"YOUR DECISION MIGHT BE UNDERSTOOD IF MRS. MENDOZA WERE A TYPIST OR AN ARMY EMPLOYEE WHO DID NOT ACTUALLY WORK AS A MAID IN THE OFFICERS' COMPOUND. THESE MAIDS MUST "LIVE IN.' THIS IS TO HAVE THEM READILY AVAILABLE FOR THEIR DUTY AND TO PREVENT THEFT. THEY ARE AN ANALOGOUS TO A FIREMAN WHO MIGHT HAVE TO STAY IN THE FIRE HOUSE TO BE READILY AVAILABLE FOR MOUNTING THE FIRE ENGINES IN CASE OF FIRE. THE SECURITY OF THE OFFICER'S QUARTERS MUST BE PRESERVED. THE MAIDS ARE THE ONLY ONES ABOUT WHEN THEY ARE GONE TO WORK. INDEED, EVEN WHEN THE OFFICERS ARE GONE AT NIGHT, THERE SHOULD BE SOMEONE, A MAID, IN THE BUILDING. IT IS PREPOSTEROUS TO DESIGNATE A MAID'S CUBICLE IN AN OFFICERS' COMPOUND AS QUARTERS. YOU CAN VERY WELL UNDERSTAND THAT THE CUBICLE OF THE MAIDS IS CERTAINLY NOT AS SPACIOUS OR ON THE SAME STANDARD AS THE QUARTERS PROVIDED FOR THE OFFICERS.'

SINCE THE CONTENTIONS OF MR. PARISH AS TO THE FACTS IN THE MATTER APPEAR TO BE INCONSISTENT WITH THE FACTS AS ADMINISTRATIVELY REPORTED TO THIS OFFICE, WE ASKED THE MARINE CORPS WHETHER YOUR WIFE WAS EMPLOYED AS A MAID AND TO FURNISH US INFORMATION RELATIVE TO YOUR WIFE'S EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY IN OKINAWA. THE MARINE CORPS FURNISHED US A COPY OF LETTER DATED MARCH 3, 1966, TO SENATOR HRUSKA APPARENTLY WRITTEN BY YOUR WIFE AND WHICH BOTH YOU AND SHE SIGNED. IN THE LETTER IT IS STATED IN PERTINENT PART AS FOLLOWS:

"I TOLD THE CIVIL SERVICE BOARD HERE THAT I WAS A MARINE WIFE, BUT THAT MY HUSBAND WAS TO BE LEAVING FOR VIETNAM SOON. I WAS HIRED ON 2 AUGUST 1965, AS A DEPARTMENT OF THE ARMY CIVILIAN (DAC) AS A CLERK STENOGRAPHER WITH A QUALIFIED RATING OF 93.6 TO WORK FOR THE COMPTROLLER OFFICE AT HQ USARYIS.

"I AM NOW A SECRETARY--- (STENOGRAPHY), GS-4 WORKING FOR COMMUNICATIONS ELECTRONICS ACTIVITY. SINCE MY EMPLOYMENT ON OKINAWA, I HAVE DEVOTED MYSELF TO MY JOBS AND HAVE WORKED FOR COMPTROLLER AND PARTICULARLY FELT I HELPED IN THE WAR EFFORT WHILE EMPLOYED AT HQ 2ND LOGISTICAL COMMAND SINCE THIS ORGANIZATION'S MISSION IS SENDING SUPPLIES TO VIETNAM.'

MR. PARISH MAY HAVE BELIEVED THAT YOUR WIFE WAS EMPLOYED AS A MAID BECAUSE SHE CITED A NAVY REGULATION WITH RESPECT TO ENTITLEMENT TO QUARTERS ALLOWANCE IN CIRCUMSTANCES WHERE A MEMBER'S WIFE OCCUPIED A ROOM IN THE QUARTERS OF A COMMISSIONED OFFICER INCIDENT TO HER EMPLOYMENT BY HIM AS A MAID. IN ANY EVENT, THE STATEMENTS MADE IN YOUR LETTER OF MARCH 3, 1966, TO SENATOR HRUSKA CLEARLY SHOW THAT SHE WAS EMPLOYED AS A CIVILIAN GOVERNMENT EMPLOYEE AND NOT AS A MAID ENGAGED IN PRIVATE EMPLOYMENT. THEREFORE, SINCE YOUR WIFE OCCUPIED PUBLIC QUARTERS AS A GOVERNMENT EMPLOYEE, BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT WAS NOT AUTHORIZED AND SINCE YOU WERE NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR HER, THE LAW PRECLUDES PAYMENT TO YOU OF FAMILY SEPARATION ALLOWANCE.

IN THE CIRCUMSTANCES SHOWN WE MUST AGAIN CONCLUDE THAT THE MARINE CORPS PROPERLY DENIED YOUR CLAIM AND THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.