B-164618, SEPT. 5, 1968

B-164618, SEPT. 5, 1968

TO CAPTAIN D. E. FRITZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 30, 1968, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 13, 1968, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED AT PENSACOLA, FLORIDA, DURING THE PERIOD JULY 17 TO SEPTEMBER 13, 1965.

BY ORDERS DATED FEBRUARY 23, 1965, AS AMENDED, YOU WERE ORDERED TO TEMPORARY DUTY AT PENSACOLA, FLORIDA, AND GLYNCO, GEORGIA, FOR A PERIOD OF ABOUT 9 MONTHS TO ATTEND COURSES OF INSTRUCTION. YOU REPORTED FOR DUTY AT PENSACOLA ON FEBRUARY 28, 1965. SECOND ENDORSEMENT DATED SEPTEMBER 9, 1965, SHOWS YOU COMPLETED THE TEMPORARY DUTY UNDER INSTRUCTIONS AT PENSACOLA ON SEPTEMBER 10, 1965, AND THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. YOU WERE DETACHED FROM THAT STATION ON SEPTEMBER 14, 1965, AND THEREAFTER YOU PERFORMED TEMPORARY DUTY AT GLYNCO AND RETURNED TO YOUR PERMANENT DUTY STATION AT CHERRY POINT, NORTH CAROLINA, ON NOVEMBER 28, 1965.

ON FEBRUARY 15, 1966, A PURPORTED MODIFICATION OF YOUR ORDERS WAS ISSUED TO SHOW THAT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE TO YOU AT PENSACOLA DURING THE PERIOD FEBRUARY 24 TO JULY 16, 1965, AND THAT QUARTERS WERE AVAILABLE FROM JULY 17 TO SEPTEMBER 14, 1965. THIS WAS AMENDED ON MARCH 3, 1966. TO SHOW GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE FROM FEBRUARY 24 TO JULY 16, 1965, BUT QUARTERS WERE NOT AVAILABLE FROM JULY 17 TO SEPTEMBER 14, 1965.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 13, 1968, FOR THE REASON THAT THE RECORD DID NOT ESTABLISH THAT QUARTERS WERE NOT AVAILABLE TO YOU AT PENSACOLA.

IN YOUR PRESENT LETTER YOU SAY:

"* * * WHEN I ARRIVED AT PENSACOLA THERE WAS SPACE AVAILABLE IN THE BOQ. INADEQUATE AND AS OUTMODED AS -SPLINKERVILLE- WAS, IT WAS AVAILABLE TO ME. I CHOSE NOT TO LIVE IN THE BOQ. THE RESULTS OF THE INVESTIGATION YOU MENTION ARE GROSSLY IN ERROR IF THEY DO NOT SHOW THAT ON OR ABOUT 17 JULY 1965 THE BOQ AT NAS PENSACOLA WAS FILLED AND THAT PERSONNEL WHO WERE IN BNAO SCHOOL WERE AUTHORIZED TO -LIVE ON THE BEACH.- AT THIS TIME QUARTERS WERE NOT AVAILABLE TO ME. * * *"

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 RECEIVE 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 THAT 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.

PARAGRAPH M4451 OF THE REGULATIONS IN EFFECT AT THE TIME 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 IF THE LENGTH OF TEMPORARY DUTY IS FOR A PERIOD OF 24 HOURS OR MORE. 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, NOTWITHSTANDING THAT THEY FAILED TO OCCUPY SUCH QUARTERS.

ACCORDING TO THE EXPLANATION FURNISHED BY YOU, GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE TO YOU UPON YOUR ARRIVAL AT PENSACOLA. YOU CHOSE NOT TO OCCUPY THOSE QUARTERS BECAUSE YOU CONSIDERED THEM INADEQUATE. APPARENTLY, YOU RECOGNIZED AT THAT TIME THAT UNDER THOSE CIRCUMSTANCES YOU WERE NOT ENTITLED TO PER DIEM ALLOWANCE FOR QUARTERS. HOWEVER, YOU APPARENTLY BELIEVE THAT SINCE GOVERNMENT QUARTERS BECAME FILLED ON JULY 17, 1965, AND YOU HAVE FURNISHED A SUPPORTING CERTIFICATE AS TO UNAVAILABILITY OF QUARTERS, THAT YOU ARE ENTITLED TO PER DIEM TO COVER THE COST OF COMMERCIAL QUARTERS FROM JULY 17 TO SEPTEMBER 11, 1965.

IT HAS BEEN THE CONSISTENT POLICY OF THE DEPARTMENT OF DEFENSE TO REQUIRE THAT WHEN PRACTICABLE GOVERNMENT QUARTERS WILL BE UTILIZED WHEN AVAILABLE AND IT HAS BEEN THE VIEW OF OUR OFFICE THAT, EXCEPT AS IT MAY OTHERWISE SPECIFICALLY PROVIDE, THE CONGRESS INTENDS THAT THE PUBLIC QUARTERS WHICH IT PROVIDES FOR THE UNIFORMED SERVICES MUST BE USED TO THE MAXIMUM EXTENT PRACTICABLE. 44 COMP. GEN. 626 AND 45 COMP. GEN. 499.

IF YOU HAD MOVED INTO GOVERNMENT QUARTERS WHICH WERE AVAILABLE UPON YOUR ARRIVAL AT PENSACOLA, PRESUMABLY YOU WOULD HAVE BEEN PERMITTED TO OCCUPY THEM UNTIL YOUR DEPARTURE FOR GLYNCO. WHEN YOU CHOSE NOT TO OCCUPY SUCH AVAILABLE QUARTERS THE ASSIGNMENT OF SUCH QUARTERS TO ANOTHER MEMBER DID NOT ESTABLISH YOUR ENTITLEMENT TO PER DIEM ALLOWANCE WITHOUT REDUCTION FOR AVAILABLE QUARTERS. THE GOVERNMENT WAS NOT REQUIRED TO MAINTAIN EMPTY SINGLE QUARTERS AVAILABLE FOR ASSIGNMENT TO YOU IN ORDER TO AVOID LIABILITY FOR THE QUARTERS PORTION OF PER DIEM. THE GOVERNMENT'S OBLIGATION WAS FULFILLED WHEN QUARTERS WERE MADE AVAILABLE TO YOU. MCVANE V UNITED STATES, 118 CT. CL. 500 AND 39 COMP. GEN. 561.

SINCE THE CONTEMPORANEOUS ENDORSEMENT PLACED ON YOUR ORDERS, AND YOUR OWN STATEMENT SHOW THAT QUARTERS WERE AVAILABLE WHEN YOU ARRIVED AT PENSACOLA, THE PURPORTED AMENDMENT OF ORDERS ON MARCH 3, 1966, TO SHOW THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FROM JULY 17 TO SEPTEMBER 14, 1965, MAY NOT BE ACCEPTED AS AUTHORITY FOR THE PAYMENT OF THE QUARTERS PORTION OF PER DIEM, CONTRARY TO THE APPLICABLE LAW AND REGULATIONS.