B-160588, MAR. 10, 1967

B-160588, MAR. 10, 1967

TO MAJOR IRVING C. HOAG, JR., FC:

BY LETTER DATED DECEMBER 20, 1966, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 12, 1966, WITH ENCLOSURES, REQUESTING A DECISION WHETHER CAPTAIN STEPHEN J. BORYS, U.S. ARMY, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITHOUT A DEPENDENT FOR THE PERIOD FROM JULY 1 THROUGH SEPTEMBER 30, 1966, AND BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD FROM JUNE 1, 1965, TO MAY 31, 1966, UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NO. A-938, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER INDICATES DOUBT AS TO THE LEGALITY OF PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO CAPTAIN BORYS FOR THE REASON THAT DURING THE PERIOD OF THE PROPOSED PAYMENT HE WAS CONFINED AS A PRISONER IN THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, AND THAT, PRIOR TO HIS CONFINEMENT, HE LIVED IN GOVERNMENT QUARTERS UNDER RESTRICTION IN FORT GORDON, GEORGIA. YOU INDICATE FURTHER THAT ACTION ON AN ADJUSTMENT VOUCHER TO EFFECT A COLLECTION OF PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS IN THE AMOUNT OF $1,813 FOR THE PERIOD FROM JANUARY 23, 1965, TO JUNE 30, 1966, IS BEING WITHHELD PENDING A DETERMINATION OF THE OFFICER'S ENTITLEMENT IN THE MATTER.

WITH RESPECT TO THE OFFICER'S CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE, YOUR DOUBT IS SAID TO PERTAIN ONLY TO THE PROPER AMOUNT THAT SHOULD BE COLLECTED FROM HIM FOR THE MEALS HE CONSUMED DURING THE PERIOD FROM MAY 25, 1965, TO MARCH 31, 1966.

THE RECORD SHOWS THAT IN JUNE 1963, WHILE CAPTAIN BORYS WAS ASSIGNED TO FORT GORDON BUT ON LEAVE UNDER ORDERS TO DEPART ON AN OVERSEAS ASSIGNMENT, HE WAS APPREHENDED BY CIVIL AUTHORITIES. HE WAS RELEASED TO MILITARY CONTROL ON JUNE 19, 1964, AND ON JUNE 22, 1964, THE OFFICER WAS ORDERED RESTRICTED TO THE FORT GORDON MILITARY RESERVATION, FORT GORDON, GEORGIA. HIS FREEDOM OF MOVEMENT WAS RESTRICTED TO THE AREA BETWEEN THE QUARTERS ASSIGNED TO HIM AND SEVERAL OTHER BUILDINGS ON THE RESERVATION, AS SPECIFIED IN THE ORDERS. ON JANUARY 23, 1965, PURSUANT TO COURT-MARTIAL PROCEEDINGS CAPTAIN BORYS WAS SENTENCED TO BE DISMISSED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR A PERIOD OF 60 YEARS. ON THE BASIS OF THAT SENTENCE, HE WAS TRANSFERRED AND CONFINED AT THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS. THE FINDINGS AND SENTENCE WERE APPROVED ON MAY 25, 1965, BUT ON APRIL 12, 1966, UPON REVIEW SUCH FINDINGS AND SENTENCE WERE SET ASIDE AND A REHEARING WAS ORDERED.

IN A LETTER DATED MAY 20, 1966, HEADQUARTERS, UNITED STATES ARMY, FORT MCPHERSON, GEORGIA, REQUESTED GUIDANCE AS TO THE PROCEDURE TO FOLLOW FOR PAYMENT TO CAPTAIN BORYS ON THE BASIS OF THE COURT-MARTIAL SENTENCE BEING SET ASIDE. REFERENCE WAS MADE TO OUR DECISION, 43 COMP. GEN. 645 IN WHICH WE CONSIDERED THE CASE OF A MEMBER WHOSE COURT MARTIAL SENTENCE AS APPROVED PROVIDED FOR FORFEITURE OF ALL PAY AND ALLOWANCES TO BECOME DUE AFTER THE DATE OF APPROVAL. SUBSEQUENTLY, ON APPEAL, THE SENTENCE WAS SET ASIDE AND A REHEARING ORDERED. UPON REHEARING THE MEMBER WAS AGAIN SENTENCED, AMONG OTHER THINGS, TO FORFEIT ALL PAY AND ALLOWANCES TO BECOME DUE.

WE HELD THAT THE MEMBER WAS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD BETWEEN THE TIME OF APPROVAL OF THE ORIGINAL SENTENCE AND THE APPROVAL OF THE SENTENCE FOLLOWING THE REHEARING. BY 2ND INDORSEMENT DATED JUNE 6, 1966, THE OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, ADVISED IN RESPONSE TO THE REQUEST OF MAY 20, 1966, THAT IN VIEW OF THE CITED DECISION AND IF OTHERWISE PROPER, CAPTAIN BORYS WAS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD IN QUESTION.

BY LETTER DATED JUNE 10, 1966, INFORMATION WAS REQUESTED BY THE COMMANDING OFFICER AT FORT GORDON AS TO THE COST OF MEALS CONSUMED BY CAPTAIN BORYS FOR THE PERIOD FROM MARCH 1, 1965, THROUGH MAY 18, 1966, WHILE HE WAS AT THE DISCIPLINARY BARRACKS AT FORT LEAVENWORTH. BY 1ST INDORSEMENT DATED JUNE 30, 1966, THE COMMANDING OFFICER OF THE BARRACKS STATED THAT CAPTAIN BORYS WAS CHARGED FOR MEALS CONSUMED FROM FEBRUARY 5, 1965, DATE OF ARRIVAL, THROUGH MAY 24, 1965, BECAUSE HE WAS IN A PAY STATUS DURING THAT PERIOD. IT WAS FURTHER STATED THAT NO RECORD WAS MADE OF THE ACTUAL MEALS CONSUMED FOR THE PERIOD FROM MAY 25, 1965, THROUGH MARCH 31, 1966, AS THE OFFICER WAS CONSIDERED TO BE IN A NON-PAY STATUS. HOWEVER, IT WAS STATED THAT THE OFFICER WAS SERVED THREE MEALS PER DAY. COPIES OF DOCUMENTS COVERING CHARGES FOR MEALS CONSUMED DURING THE PERIOD FROM APRIL 1 THROUGH MAY 19, 1966, WERE FORWARDED.

IT APPEARS THAT ON THE BASIS OF THE AUTHORITY CONTAINED IN THE 2ND INDORSEMENT DATED JUNE 6, 1966, FROM THE OFFICE, CHIEF OF FINANCE, TO LETTER DATED MAY 20, 1966, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WAS MADE TO CAPTAIN BORYS AT THE RATE OF $105 PER MONTH FOR THE PERIOD FROM JANUARY 23, 1965, THROUGH JUNE 30, 1966, FOR A TOTAL OF $1,813. BASIC ALLOWANCE FOR SUBSISTENCE WAS NOT PAID BECAUSE OF THE DOUBT AS TO THE PROPER AMOUNT TO CHARGE FOR MEALS CONSUMED BY THE OFFICER.

AT THE TIME OF HIS SENTENCE, JANUARY 23, 1965, AND FOR THE PERIOD IMMEDIATELY PRIOR THERETO, YOU SAY THAT CAPTAIN BORYS WAS NOT IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS FOR THE REASON THAT HE WAS OCCUPYING GOVERNMENT QUARTERS. THEREFORE, SINCE HE WAS OCCUPYING GOVERNMENT QUARTERS IMMEDIATELY PRIOR TO HIS CONFINEMENT, YOU EXPRESS DOUBT AS TO HIS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS FOR THE ENTIRE PERIOD HE WAS CONFINED AT THE FORT LEAVENWORTH DISCIPLINARY BARRACKS, CITING 40 COMP. GEN. 715.

AS FOR ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE, YOU REFER TO PARAGRAPH 10415, ARMY REGULATIONS 37-104, WHICH PROVIDES THAT BASIC ALLOWANCE FOR SUBSISTENCE TO PRISONERS BE REDUCED BY THE VALUE OF THE MEALS FURNISHED AND INDICATE THAT OFFICER PRISONERS IN A PAY STATUS AT YOUR INSTALLATION HAVE BEEN PAID BASIC ALLOWANCE FOR SUBSISTENCE, LESS MEALS CONSUMED. IN VIEW OF THIS SITUATION, YOU QUESTION WHETHER THE PHRASE "MEALS FURNISHED" SHOULD BE CONSTRUED AS MEANING MEALS ACTUALLY CONSUMED BY THE PRISONER OR AS MEALS MADE AVAILABLE TO THE PRISONER IN THE NORMAL COURSE OF PRISON ROUTINE. IF THE FORMER, INASMUCH AS THE DISCIPLINARY BARRACKS DID NOT KEEP A RECORD OF THE ACTUAL MEALS CONSUMED BY CAPTAIN BORYS DURING THE PERIOD FROM MAY 25, 1965, THROUGH MARCH 31, 1966, YOU ASK WHETHER WE WOULD OBJECT IF HE WERE CHARGED FOR AN AVERAGE OF TWO MEALS PER DAY OR SOME LESSER AMOUNT WHICH HE AGREES HE CONSUMED.

SECTION 402 (C) OF TITLE 37, U.S.C. PROVIDES THAT AN OFFICER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY, IS AT ALL TIMES ENTITLED TO BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS. SECTION 403 (B) OF TITLE 37, PROVIDES IN PERTINENT PART THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER 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.

PART IV OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, 29 F.R. 7973- 7979, IMPLEMENTING THE PROVISIONS OF 37 U.S.C. 403 PROVIDES IN PERTINENT PART OF SECTION 403 THEREOF, THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED AT HIS PERMANENT DUTY STATION WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER WITHOUT DEPENDENTS, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. THESE PROVISIONS ARE FURTHER IMPLEMENTED BY SECTION B, CHAPTER 3, ARMY REGULATIONS 37-104, WHICH PROVIDES IN PARAGRAPH 10317-A, THAT A MEMBER WITHOUT DEPENDENTS, IN CONFINEMENT IN A GUARD HOUSE OR BRIG, PURSUANT TO A COURT-MARTIAL BY WHICH HE IS ACQUITTED, OR THE SENTENCE IS SET ASIDE OR DISAPPROVED, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS DURING SUCH PERIOD PROVIDED HE WAS IN RECEIPT OF SUCH ALLOWANCE PRIOR TO COMMENCEMENT OF HIS CONFINEMENT OR HE WAS LIVING IN ASSIGNED GOVERNMENT QUARTERS PRIOR TO COMMENCEMENT OF THE CONFINEMENT AND SUCH ASSIGNMENT WAS IN FACT TERMINATED PRIOR TO OR DURING THE PERIOD OF CONFINEMENT, CITING 40 COMP. GEN. 169; ID. 715.

SUBSECTION B OF THAT PARAGRAPH PROVIDES THAT A MEMBER WITHOUT DEPENDENTS WHO IS RESTRAINED TO HIS ASSIGNED GOVERNMENT QUARTERS IN A STATUS OF ARREST OR RESTRICTION IN LIEU OF ARREST PURSUANT TO A COURT MARTIAL, IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, CITING 40 COMP. GEN. 715. PARAGRAPH 10415, ARMY REGULATIONS 37-104, PERTAINING TO BASIC ALLOWANCE FOR SUBSISTENCE, PROVIDES THAT WHILE IN CONFINEMENT, ANY AMOUNT CREDITED TO AN OFFICER FOR BASIC ALLOWANCE FOR SUBSISTENCE, SHALL BE REDUCED BY THE VALUE OF THE MEALS FURNISHED, ALSO CITING 40 COMP. GEN. 169.

IN 40 COMP. GEN. 169, WE HELD THAT AN OFFICER WITHOUT DEPENDENTS AND OTHERWISE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, WHO IS CONFINED IN A GUARDHOUSE, BRIG OR DISCIPLINARY BARRACKS, MAY NOT BE REGARDED WHILE SO CONFINED AS OCCUPYING ADEQUATE QUARTERS WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS OR THE EXECUTIVE ORDER ISSUED PURSUANT THERETO. WE STATED THAT THE FREEDOM OF USE AND OF INGRESS AND EGRESS WERE BASIC CONSIDERATIONS IN THE MATTER. WE HELD FURTHER THAT WHERE A COURT MARTIAL SENTENCE INVOLVING CONFINEMENT HAD BEEN SET ASIDE OR DISAPPROVED, THE OFFICER WOULD BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR THE ENTIRE PERIOD OF CONFINEMENT, INCLUDING ANY PERIOD OF PRE-TRIAL CONFINEMENT.

IN 40 COMP. GEN. 715, WE STATED, HOWEVER, THAT IT IS OUR VIEW THAT WHERE A MEMBER WITHOUT DEPENDENTS WAS LIVING IN ASSIGNED GOVERNMENT QUARTERS PRIOR TO THE COMMENCEMENT OF HIS CONFINEMENT IN A GUARDHOUSE OR BRIG, HE IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS, BECAUSE OF THE FACT OF SUCH ASSIGNMENT, BASED ON THE THEORY THAT THE MEMBER CARRIES INTO CONFINEMENT THE SAME ENTITLEMENT HE HAD JUST BEFORE HE WENT IN. ALSO, WE SAID THAT WHILE HE IS NOT PERMITTED TO OCCUPY HIS ASSIGNED QUARTERS WHILE SO CONFINED, HE WILL INCUR NO EXPENSE FOR QUARTERS DURING THAT PERIOD. THEREFORE HELD THAT IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION TO THE CONTRARY, WE WILL NOT QUESTION THE ADMINISTRATIVE PRACTICE OF NOT CREDITING THE ALLOWANCE, INSOFAR AS SUCH PRACTICE RELATES TO THE PERIOD THE ASSIGNMENT REMAINS IN EFFECT. BUT, IN THE EVENT THE ASSIGNMENT OF QUARTERS IS TERMINATED WE CONCLUDE THAT PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WOULD BE AUTHORIZED.

WE ALSO CONSIDERED THE QUESTION OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS TO AN OFFICER WITHOUT DEPENDENTS WHO, QUARTERED IN BACHELOR OFFICER QUARTERS, WAS RESTRAINED IN A STATUS OF ARREST OR RESTRICTED IN LIEU OF ARREST TO SUCH QUARTERS UNDER CONDITIONS WHICH LIMITED HIS FREEDOM OF INGRESS AND EGRESS, AND WE HELD THAT IN SUCH CASES, SINCE THE QUARTERS WERE ADEQUATE WHEN ASSIGNED PRIOR TO THE PERIOD OF CONFINEMENT, THE QUESTION OF FREEDOM OF USE AND OF INGRESS AND EGRESS WAS NOT INVOLVED, SINCE THE ACT OF CONFINEMENT DID NOT TERMINATE THE ASSIGNMENT IN ANY WAY. THEREFORE, THE FACT OF CONFINEMENT ALONE FURNISHED NO BASIS FOR THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS

AT THE TIME CAPTAIN BORYS RETURNED TO FORT GORDON UPON HIS RELEASE FROM CIVIL AUTHORITIES ON JUNE 19, 1964, NO AUTHORIZATION FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS AS REQUIRED BY PARAGRAPH 10311-G, ARMY REGULATIONS 37-104, WAS FURNISHED HIM PRESUMABLY FOR THE REASON THAT HE WAS FURNISHED QUARTERS OR THEY WERE AVAILABLE FOR HIS OCCUPANCY AND, AS FAR AS THE RECORD SHOWS, HE WAS NOT AUTHORIZED TO RESIDE OFF THE BASE. THEREFORE, THE RECORD DOES NOT PROVIDE ANY BASIS TO CONCLUDE THAT AT THE TIME THE ORDERS OF JUNE 22, 1964, RESTRICTED HIM TO THE QUARTERS ASSIGNED UNDER THOSE ORDERS, HE WAS ENTITLED TO QUARTERS ALLOWANCE. THUS HE HAD NO ENTITLEMENT TO SUCH AN ALLOWANCE TO CONTINUE WHEN HE ENTERED THAT RESTRICTED STATUS. NEITHER IS THERE ANY SHOWING THAT ADEQUATE QUARTERS WERE NOT AVAILABLE FOR HIS OCCUPANCY DURING THE PERIOD HE WAS RESTRICTED IN THE USE OF HIS ASSIGNED QUARTERS AND, OF COURSE, HE WAS PUT TO NO PERSONAL EXPENSE FOR PRIVATE QUARTERS. ACCORDINGLY, AT THE TIME OF HIS TRANSFER TO FORT LEAVENWORTH DISCIPLINARY BARRACKS UNDER COURT-MARTIAL ORDER DATED JANUARY 23, 1965, HE WAS NOT ENTITLED TO A QUARTERS ALLOWANCE AND THEREFORE DURING THE PERIOD HE WAS CONFINED AT FORT LEAVENWORTH, HE WAS NOT ENTITLED TO SUCH AN ALLOWANCE.

WITH RESPECT TO THE PROPER AMOUNT TO BE COLLECTED FROM CAPTAIN BORYS FOR MEALS FURNISHED HIM, OUR DECISIONS HAVE CONSISTENTLY HELD THAT FOR MEALS FURNISHED BY THE GOVERNMENT TO AN OFFICER ENTITLED TO BASIC ALLOWANCE FOR SUBSISTENCE, A CHARGE FOR THE VALUE OF THE MEALS FURNISHED SHOULD BE MADE AGAINST THE OFFICER. 30 COMP. GEN. 246; 40 ID. 169. SEE ALSO, B-129407, OCTOBER 19, 1954, AND B-139600, JUNE 23, 1959. THE BEST EVIDENCE OF THE MEALS FURNISHED IS THE OFFICIAL RECORD, BUT WHERE SUCH RECORDS ARE INCOMPLETE, IT HAS BEEN OUR RULE TO ACCEPT THE REPORT BY AN ADMINISTRATIVE OFFICE AS TO THE FACTS, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. SEE 38 COMP. GEN. 527 AND CASES THEREIN CITED. THEREFORE, THE REPORT FROM THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, DATED JUNE 30, 1966, THAT THE OFFICER WAS SERVED THREE MEALS PER DAY, SHOULD BE ACCEPTED AS A BASIS FOR DETERMINING THE CHARGE FOR THE VALUE OF THE MEALS FURNISHED FOR THE PERIOD FROM MAY 25, 1965, TO MARCH 31, 1966, UNLESS IT SHOULD BE FURTHER DETERMINED ON THE BASIS OF THE AVAILABLE RECORDS THAT HE WAS NOT SERVED THREE MEALS DAILY DURING THE PERIOD INVOLVED.

ACCORDINGLY, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD STATED IN THE VOUCHER PRESENTED IS NOT AUTHORIZED. ALSO, FURTHER STEPS SHOULD BE TAKEN TO COLLECT PREVIOUS PAYMENTS MADE ON ACCOUNT OF BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD OF JANUARY 23, 1965, TO JUNE 30, 1966. PAYMENT OF THAT PORTION OF THE VOUCHER PERTAINING TO BASIC ALLOWANCE FOR SUBSISTENCE MAY BE MADE, IF OTHERWISE CORRECT, LESS THE VALUE OF THE MEALS DETERMINED TO HAVE BEEN FURNISHED ON THE BASIS STATED ABOVE.