B-162038, AUG. 7, 1967

B-162038, AUG. 7, 1967

ARMED SERVICES - QUARTERS, ETC. ALLOWANCES - TEMPORARY LODGING ALLOWANCES - TIME LIMITATION DECISION TO AIR FORCE MEMBER. MILITARY MEMBER WHO WAS REQUIRED TO CONTINUE TO OCCUPY HOTEL ACCOMMODATIONS AT NEW STATION BEYOND 60 DAY LIMITATION PERIOD BECAUSE HOUSEHOLD GOODS FAILED TO ARRIVE AND WHO DID NOT HAVE REQUEST FOR EXTENSION MADE UNTIL AFTER PERMANENT ACCOMMODATIONS HAD BEEN OBTAINED MAY NOT HAVE CLAIM FOR TEMPORARY LODGING ALLOWED SINCE EXTENSION ACTION MUST BE TAKE BEFORE OR AT TIME 60 DAY PERIOD EXPIRES.

TO MASTER SERGEANT ALFRED C. LAUWA, JR., USAF:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 26, 1967, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 19, 1967, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM SEPTEMBER 3 THROUGH 16, 1965.

INCIDENT TO ORDERS DATED MAY 17, 1965, DIRECTING A PERMANENT CHANGE OF STATION FROM NELLIS AIR FORCE BASE, NEVADA, TO DET. 11, 1131STSPECIAL ACTIVITIES SQUADRON, FPO, SAN FRANCISCO, CALIFORNIA 96601, YOU AND YOUR DEPENDENTS ARRIVED IN THE VICINITY OF YOUR NEW DUTY STATION AND WERE REQUIRED TO OCCUPY HOTEL ACCOMMODATIONS FROM JULY 5 THROUGH SEPTEMBER 16, 1965. THE RECORD SHOWS THAT YOU WERE PAID THE MAXIMUM 60-DAY TEMPORARY LODGING ALLOWANCE AUTHORIZED UNDER THE JOINT TRAVEL REGULATIONS FOR THE PERIOD THROUGH SEPTEMBER 2, 1965. HOWEVER, DUE TO NON-RECEIPT OF YOUR HOUSEHOLD EFFECTS, YOU WERE REQUIRED TO OCCUPY HOTEL ACCOMMODATIONS UNTIL SEPTEMBER 16, 1965.

ON SEPTEMBER 8, 1965, YOU SUBMITTED THROUGH ADMINISTRATIVE CHANNELS, A REQUEST TO THE CHAIRMAN, PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, FOR EXTENSION OF THE 60-DAY LIMITATION ON PAYMENT OF TEMPORARY LODGING ALLOWANCE. YOU STATED THAT THE 60 DAYS EXPIRED ON SEPTEMBER 2, 1965, BUT DUE TO A DELAY IN DELIVERY OF YOUR HOUSEHOLD GOODS, YOU WERE REQUIRED TO CONTINUE TO OCCUPY LODGINGS IN THE HOTEL WHERE YOU HAD BEEN RESIDING. BY LETTER DATED JANUARY 11, 1966, THE COMMANDER OF YOUR BASE WAS ADVISED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE THAT HAD IT RECEIVED YOUR REQUEST WITHIN A FEW DAYS AFTER SUBMISSION, A SPECIAL DETERMINATION MIGHT HAVE BEEN ISSUED, PROSPECTIVE IN EFFECT UNTIL DATE OF ARRIVAL OF YOUR HOUSEHOLD GOODS. HOWEVER, IT WAS STATED THAT THE REQUEST WAS NOT RECEIVED UNTIL DECEMBER 14, 1965, AFTER YOU OBTAINED PERMANENT ACCOMMODATIONS, AND SINCE SPECIAL DETERMINATIONS COULD NOT LEGALLY BE MADE EFFECTIVE RETROACTIVELY, THERE WAS NO AUTHORITY UNDER WHICH YOUR REQUEST COULD BE APPROVED.

YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE WAS FORWARDED BY THE DEPARTMENT OF THE AIR FORCE TO OUR OFFICE FOR SETTLEMENT, FAVORABLE CONSIDERATION BEING RECOMMENDED IN VIEW OF THE FACT THAT YOUR REQUEST FOR EXTENSION OF THE 60-DAY LIMITATION WAS UNNECESSARILY DELAYED IN ITS TRANSMITTAL TO THE PER DIEM COMMITTEE, AND THEREFORE COULD NOT BE APPROVED BY THAT COMMITTEE. YOUR CLAIM, HOWEVER, WAS DISALLOWED BY OUR CLAIMS DIVISION ON JUNE 19, 1967, FOR THE REASON THAT THE SPECIAL DETERMINATION REQUIRED BY THE REGULATIONS HAD NOT BEEN MADE AND IN THE ABSENCE THEREOF ADDITIONAL TEMPORARY LODGING ALLOWANCE WAS NOT AUTHORIZED.

IN YOUR LETTER OF JUNE 26, 1967, REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU EXPRESSED YOUR BELIEF THAT OUR OFFICE SHOULD HELP YOU IN THE MATTER BECAUSE OF THE CIRCUMSTANCES INVOLVED. YOU EMPHASIZED THE FACT THAT IT WAS DUE TO ADMINISTRATIVE DELAY IN TRANSMITTING YOUR REQUEST FOR EXTENSION OF YOUR TEMPORARY LODGING ALLOWANCE THAT THE PER DIEM COMMITTEE WAS UNABLE TO MAKE A SPECIAL DETERMINATION AUTHORIZING SUCH ALLOWANCE.

PARAGRAPH M4303-2B, JOINT TRAVEL REGULATIONS, PROMULGATED UNDER THE PROVISIONS OF 37 U.S.C. 405, AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED IN PERTINENT PART THAT THE PERIOD OF ENTITLEMENT FOR TEMPORARY LODGING ALLOWANCE UPON ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES REQUIRING CHANGE IN RESIDENCE, WILL NOT EXCEED 60 DAYS, EXCEPT WHEN SPECIFICALLY EXTENDED BY ISSUANCE OF A SPECIAL DETERMINATION BY THE SECRETARIES OF THE SERVICES CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. THIS EXCEPTION WAS INCLUDED IN THE REGULATIONS EFFECTIVE AUGUST 25, 1965, BECAUSE IT WAS RECOGNIZED THAT THERE WOULD ARISE INSTANCES BEYOND THE CONTROL OF THE MEMBER WHICH WOULD NECESSITATE THE USE OF HOTEL-LIKE ACCOMMODATIONS BEYOND THE 60-DAY LIMITATION STATED IN THE REGULATIONS.

IN DECISION OF OUR OFFICE DATED SEPTEMBER 13, 1966, 46 COMP. GEN. 214, COPY ENCLOSED, WE CONSIDERED THE REQUEST OF THE UNDER SECRETARY OF THE ARMY FOR A DECISION AS TO WHETHER THE SPECIAL DETERMINATION AUTHORIZED UNDER THE PROVISIONS OF PARAGRAPH M4303-2C (FORMERLY M4303 2B) MAY BE MADE AFTER THE EXPIRATION OF THE AUTHORIZED 60-DAY PERIOD, TO PRESCRIBE ENTITLEMENT FROM AND INCLUDING THE 61ST DAY. WE HELD THAT THE REGULATIONS DO NOT PROVIDE AUTHORITY FOR RETROACTIVE APPROVAL FOR A PERIOD DURING WHICH ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE DID NOT EXIST, BUT CONTEMPLATES AN EXTENSION BY A SPECIAL DETERMINATION ISSUED NOT LATER THAN THE DATE OF EXPIRATION OF THE 60 DAY PERIOD WHICH IT IS TO EXTEND. FURTHER, WE SAID THAT UNLESS APPROPRIATE ACTION HAD BEEN TAKEN BEFORE OR AT THE TIME THE 60-DAY PERIOD EXPIRES, THE MEMBER'S AND THE GOVERNMENT'S RIGHTS BECOME VESTED AND A SPECIAL DETERMINATION THEREAFTER MADE IS WITHOUT EFFECT. WE HELD FURTHER THAT THERE WAS NO AUTHORITY UNDER REGULATIONS THEN IN EFFECT FOR THE ADMINISTRATIVE PRACTICE OF ISSUING DETERMINATIONS PROSPECTIVELY EFFECTIVE, UPON REQUESTS RECEIVED AFTER EXPIRATION OF THE 60-DAY PERIOD.

ALTHOUGH PARAGRAPH M4303-2C, JOINT TRAVEL REGULATIONS, WAS SUBSEQUENTLY AMENDED EFFECTIVE SEPTEMBER 16, 1966, TO PROVIDE FOR PERIODS OF ADDITIONAL ENTITLEMENT IN INCREMENTS OF 15 DAYS OR LESS TO BE APPROVED BY MAJOR OVERSEAS COMMANDERS, SUCH AMENDMENT WAS SPECIFICALLY DESIGNATED AS NOT APPLICABLE TO ANY DAY PRIOR TO THE EFFECTIVE DATE INDICATED ABOVE.

THEREFORE, SINCE THE 60-DAY LIMITATION IN YOUR CASE EXPIRED ON SEPTEMBER 2, 1965, YOUR REQUEST FOR EXTENSION MADE SEPTEMBER 8, 1965, COULD NOT PROPERLY HAVE BEEN APPROVED BY THE PER DIEM COMMITTEE UNDER THE PROVISIONS OF THE REGULATIONS THEN IN EFFECT, EVEN IF IT HAD BEEN FORWARDED TO THAT COMMITTEE WITHOUT UNDUE DELAY.

THIS OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE UNITED STATES SOLELY ON THE BASIS OF EQUITABLE OR MORAL CONSIDERATIONS. WE MAY AUTHORIZE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY WHEN SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. THEREFORE, SINCE PAYMENT OF THE ALLOWANCE IN YOUR CASE FOR A PERIOD IN EXCESS OF 60 DAYS WAS NOT AUTHORIZED UNDER THE REGULATIONS, THE SETTLEMENT DATED JUNE 19, 1967, IS SUSTAINED.

REGARDING YOUR STATEMENTS WITH RESPECT TO FURTHER PURSUING YOUR CLAIM, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF CLAIMS AGAINST THE GOVERNMENT OF THE UNITED STATES IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE AND OUR DECISIONS WITH RESPECT TO SUCH CLAIMS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY ALSO BE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS OR THE UNITED STATES DISTRICT COURTS. SEE 28 U.S.C. 1346 AND 1491. WITH CERTAIN EXCEPTIONS, PETITION MUST BE FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. U.S.C. 2401 AND 2501.