B-164860, OCTOBER 18, 1968, 48 COMP. GEN. 216

B-164860, OCTOBER 18, 1968, 48 COMP. GEN. 216

QUARTERS ALLOWANCE - NONOCCUPANCY OF QUARTERS FOR PERSONAL REASONS - ENTITLEMENT TO ALLOWANCE THE ASSIGNMENT TO A GRADE E-4 ARMY SERGEANT WITH LESS THAN 2 YEARS SERVICE OF FAMILY TYPE QUARTERS NOTWITHSTANDING HIS INELIGIBILITY FOR QUARTERS, AS THE QUARTERS WERE IN EXCESS OF THE NEEDS OF THE COMMAND, ON THE ASSUMPTION THE MEMBER'S FAMILY WOULD JOIN HIM LATER, PROPERLY WAS TERMINATED WHEN THE FAMILY DID NOT JOIN THE MEMBER AFTER HE BECAME ELIGIBLE FOR THE ASSIGNMENT OF FAMILY QUARTERS UPON PROMOTION TO GRADE E- 5. THEREFORE, PURSUANT TO 37 U.S.C. 403 (A) AND (B), THE MEMBER IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS FROM THE DATE THE FAMILY QUARTERS ASSIGNMENT WAS TERMINATED.

TO LIEUTENANT COLONEL J. CARROLL, DEPARTMENT OF THE ARMY, OCTOBER 18, 1968:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1968, REQUESTING A DECISION AS TO WHETHER BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM JANUARY 18 TO APRIL 30, 1968, IS PAYABLE TO DARRELL L. ROLINITIS, E 5, RA, IN THE CIRCUMSTANCES PRESENTED. YOUR REQUEST WAS ASSIGNED NUMBER D.O.-A-1010, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN OCTOBER 1967, WHILE HE WAS SERVING IN GRADE E-4 WITH LESS THAN 2 YEARS' SERVICE, SERGEANT ROLINITIS APPLIED FOR AND WAS ASSIGNED FAMILY QUARTERS AT WHITE SANDS MISSILE RANGE, NEW MEXICO. WHILE HE WAS NOT ENTITLED TO ASSIGNMENT TO GOVERNMENT QUARTERS ADEQUATE FOR HIMSELF AND HIS DEPENDENTS BY VIRTUE OF HIS GRADE AND YEARS OF SERVICE, THE ASSIGNMENT WAS MADE BECAUSE THERE WERE A NUMBER OF FAMILY QUARTERS IN EXCESS OF THE NEEDS OF THE COMMAND. ON DECEMBER 26, 1967, HE WAS PROMOTED TO GRADE E-5 AND BECAME ENTITLED TO QUARTERS FOR HIS DEPENDENTS. HOWEVER, HIS DEPENDENTS DID NOT JOIN HIM AT HIS DUTY STATION AND HIS ASSIGNMENT TO SUCH QUARTERS WAS TERMINATED UNDER THE PROVISIONS OF PARAGRAPH 15A (4), ARMY REGULATIONS 210-14, EFFECTIVE JANUARY 18, 1968. THE HOUSING MANAGEMENT OFFICER ADVISED THAT ADEQUATE PUBLIC QUARTERS WERE AVAILABLE AT THE WHITE SANDS MISSILE RANGE AND THAT HE HAD NOT AND WOULD NOT ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS.

IN A LETTER DATED MARCH 19, 1968, SERGEANT ROLINITIS EXPLAINED THAT HE WAS ASSIGNED FAMILY QUARTERS UPON ARRIVAL AT HIS STATION, PENDING THE ARRIVAL OF HIS FAMILY. HE STATED THAT HIS DEPENDENTS WERE UNABLE TO COME TO HIS STATION DUE TO FINANCIAL REASONS, INASMUCH AS IT WOULD REQUIRE THAT HIS WIFE LIQUIDATE HER BUSINESS AT HIS PERMANENT HOME LOCATION AND SUFFER SUBSTANTIAL FINANCIAL LOSS. HE THEREFORE REQUESTED THE TERMINATION OF HIS QUARTERS AND A DUTY ASSIGNMENT TO A LOCATION CLOSER TO HIS FAMILY.

SECTION 403 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE ENTITLED TO RECEIVE BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES IN PERTINENT PART THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE 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.

PARAGRAPH 8F, ARMY REGULATIONS 210-14, PERTAINING TO ASSIGNMENT OF PUBLIC QUARTERS TO ELIGIBLE MILITARY PERSONNEL AND THEIR DEPENDENTS, PROVIDES THAT A MEMBER REPORTING AT A PERMANENT STATION WILL NOT BE ASSIGNED QUARTERS CONSIDERED ADEQUATE FOR A MEMBER WITH DEPENDENTS UNLESS SUCH MEMBER IS ACCOMPANIED BY DEPENDENTS, OR DEPENDENTS ARE EN ROUTE TO JOIN HIM. PARAGRAPH 8H PROVIDES THAT GENERALLY, MAXIMUM PRACTICABLE OCCUPANCY OF FAMILY HOUSING UNITS WILL BE MAINTAINED AT ALL TIMES. IT PROVIDES FURTHER THAT WHERE NECESSARY FOR MAINTAINING SUCH OCCUPANCY, THE COMMANDING OFFICER MAY MAKE INVOLUNTARY ASSIGNMENTS TO PUBLIC QUARTERS FOR MILITARY PERSONNEL REPORTING TO DUTY STATIONS IN HIS COMMAND. HOWEVER, IT IS ALSO PROVIDED THAT SUCH INVOLUNTARY ASSIGNMENTS WILL NOT BE MADE IN CASES WHERE EXTREME HARDSHIP WOULD RESULT FROM SUCH ASSIGNMENT. PARAGRAPH 15A (4) OF THAT REGULATION PROVIDES THAT ASSIGNMENT OF QUARTERS TO MILITARY PERSONNEL AT THEIR PERMANENT STATION WILL BE TERMINATED AUTOMATICALLY BY THE INSTALLATION COMMANDER, WHEN DEPENDENTS NO LONGER RESIDE PERMANENTLY WITH THE MEMBER OCCUPANT.

PARAGRAPH 30221 (A), MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES IN PERTINENT PART THAT A MEMBER WITH DEPENDENTS WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT RATES PRESCRIBED FOR MEMBERS WITH DEPENDENTS WHEN ADEQUATE GOVERNMENT QUARTERS ARE NOT FURNISHED FOR HIM AND HIS DEPENDENTS WITHOUT PAYMENT OF RENTAL CHARGES, AND ARE NOT AVAILABLE FOR HIS DEPENDENTS.

THE WORDING IN SECTION 403 (B) OF TITLE 37, U.S. CODE,"EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES * * * IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS" IS SOMEWHAT SIMILAR TO THE LANGUAGE CONTAINED IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, AS WELL AS SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250.

IN THE CONSIDERATION OF ENTITLEMENT OF OFFICERS TO RENTAL ALLOWANCE UNDER THE FORMER PROVISIONS, THE COURT OF CLAIMS HELD THAT THE MERE AVAILABILITY OF QUARTERS TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHICH COULD HAVE BEEN ASSIGNED TO HIM DOES NOT DEFEAT THE RIGHT OF THAT OFFICER NOT ASSIGNED TO SUCH QUARTERS TO RENTAL ALLOWANCE. SUCH QUARTERS MUST ACTUALLY BE ASSIGNED TO HIM. LAKE V UNITED STATES, 97 CT. CL. 447; AND LUNDBLAD V UNITED STATES, 98 CT. CL. 397. IN HADDEN V UNITED STATES, 125 CT. CL. 137, THIS RULE WAS CONSIDERED TO APPLY TO THE RIGHT OF ENLISTED MEMBERS TO QUARTERS ALLOWANCE UNDER SECTION 10 OF THE 1942 ACT, 56 STAT. 363, WHICH STATED IN EFFECT THAT AN ENLISTED MEMBER NOT FURNISHED QUARTERS IN KIND WAS ENTITLED TO A MONETARY ALLOWANCE FOR QUARTERS. THE COURT HELD IN THAT CASE THAT QUARTERS ARE NOT "FURNISHED" TO A MAN MERELY BECAUSE THERE ARE QUARTERS AVAILABLE FOR ASSIGNMENT. THEY MUST BE ASSIGNED TO HIM.

THE ASSIGNMENT OF PUBLIC QUARTERS FOR MEMBERS AND THEIR DEPENDENTS IS PRIMARILY AN ADMINISTRATIVE MATTER. 39 COMP. GEN. 561; B-155403, NOVEMBER 23, 1964. TO ACCOMPLISH THE MAXIMUM PRACTICABLE OCCUPANCY OF FAMILY HOUSING UNITS REQUIRED BY THE CITED REGULATIONS, THE BASE COMMANDER OR OTHER RESPONSIBLE OFFICIAL HAS THE OBLIGATION AND DUTY TO PROMPTLY ASSIGN AVAILABLE AND SUITABLE UNITS FOR THE USE OF MEMBERS WITH DEPENDENTS, BUT ONLY TO PROVIDE FOR THEIR LOCAL HOUSING REQUIREMENTS. SUCH REGULATIONS DO NOT REQUIRE THAT ASSIGNMENTS BE MADE ON THE BASIS OF EXISTING DEPENDENTS WHEREVER THEY MIGHT RESIDE, BUT EXPRESSLY PROHIBIT ASSIGNMENT OF FAMILY UNITS TO MEMBERS WHOSE DEPENDENTS DO NOT EITHER ACCOMPANY THEM TO THE DUTY STATION OR ARE EN ROUTE THERE UPON THEIR ARRIVAL. THEY ALSO REQUIRE A TERMINATION OF ASSIGNED QUARTERS IF THE DEPENDENTS LEAVE THE MEMBER'S DUTY STATION TO LIVE ELSEWHERE.

WHILE ON THE DATE OF HIS PROMOTION TO GRADE E-5 MR. ROLINITIS IN FACT OCCUPIED FAMILY TYPE QUARTERS APPARENTLY ASSIGNED TO HIM ON THE ASSUMPTION THAT HIS DEPENDENTS WERE LATER TO JOIN HIM AT HIS DUTY STATION, IT SEEMS CLEAR FROM THE RECORD THAT HIS SITUATION FOLLOWING HIS PROMOTION WAS NOT OF THE NATURE REQUIRING OR PERMITTING THE ASSIGNMENT TO HIM OF FAMILY TYPE QUARTERS AT HIS DUTY STATION SINCE HIS DEPENDENTS WERE NOT AT HIS STATION OR EN ROUTE THERETO. IN THE CIRCUMSTANCES, THE TERMINATION OF HIS FAMILY QUARTERS ASSIGNMENT WAS PROPER. THEREFORE, HE BECAME ELIGIBLE FOR BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS EFFECTIVE JANUARY 18, 1968, UNDER THE PROVISIONS OF SECTION 403 (A) AND (B), TITLE 37, U.S.C.

ACCORDINGLY, THE SUBMITTED VOUCHER IS RETURNED HEREWITH AUTHORIZED FOR PAYMENT, IF OTHERWISE CORRECT.