B-166935, JUN. 19, 1969

B-166935, JUN. 19, 1969

TO CMSGT FRANK S. ELFMAN, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 24, 1969, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 16, 1968, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM OCTOBER 2, 1967, THROUGH JANUARY 1, 1968, INCIDENT TO YOUR ASSIGNMENT WITH 7500AIR BASE GROUP (USAFE), UNDER ORDERS DATED JUNE 16, 1967.

PURSUANT TO PERMANENT CHANGE-OF-STATION ORDERS OF JUNE 16, 1967, YOU AND YOUR WIFE ARRIVED AT YOUR DUTY STATION AT 7500 AIR BASE GROUP (SOUTH RUISLIP, ENGLAND) ON OCTOBER 2, 1967. SUPPORTING PAPERS AND RECEIPTS SHOW THAT YOU BOTH STAYED AT THE DOUGLAS HOUSING ANNEX (GOVERNMENT GUEST HOUSE) FROM OCTOBER 2 THROUGH 7, 1967. THEREAFTER, YOU AND YOUR WIFE STAYED AT VARIOUS HOTELS THROUGH JANUARY 1, 1968, EATING AT VARIOUS PLACES DURING THAT PERIOD, INCLUDING THE EES SNACK BAR AND NCO CLUB AT THE AIR BASE AND AT OTHER PLACES OUTSIDE THE BASE. BY PARAGRAPH 2, SPECIAL ORDER M-313, DATED DECEMBER 18, 1967, YOU WERE ASSIGNED GOVERNMENT QUARTERS EFFECTIVE JANUARY 2, 1968.

IN YOUR CLAIM DATED MAY 20, 1968, YOU STATED THAT THE ADMINISTRATIVE POLICY WHICH DECLARED THE DOUGLAS HOUSE ADEQUATE FOR ENLISTED PERSONNEL WITHOUT CHILDREN BUT INADEQUATE IF ACCOMPANIED BY CHILDREN DISCRIMINATED AGAINST A MEMBER WITH A WIFE BUT NO CHILDREN AS IN YOUR CASE. YOU EXPRESSED THE OPINION THAT THE FACILITIES THERE WERE INADEQUATE FOR ALL PERSONNEL. YOU THEREFORE DECLINED TO RESIDE THERE AND CLAIMED TEMPORARY LODGING ALLOWANCE FOR THE PERIOD PRIOR TO ASSIGNMENT OF QUARTERS, BECAUSE YOU RESIDED AT HOTEL OR HOTEL-LIKE ACCOMMODATIONS AFTER MOVING FROM THE DOUGLAS HOUSE.

AN ADMINISTRATIVE REPORT DATED JUNE 25, 1968, CITED THE PROVISIONS OF PARAGRAPH 2D, 7500 ABGP REGULATION NR 177-1, DATED APRIL 3, 1967 (A COPY OF WHICH IS PART OF THE FILE), WHICH PRESCRIBED POLICIES UNDER WHICH TEMPORARY LODGING ALLOWANCES WOULD BE APPROVED. THE REPORT STATED THAT UNDER THE CITED REGULATION TEMPORARY LODGING ALLOWANCE IS NOT AUTHORIZED TO MEMBERS ACCOMPANIED BY DEPENDENTS IF SUITABLE QUARTERS ARE AVAILABLE AT DOUGLAS HOUSING ANNEX (FOR AIRMEN), BUT THAT THE MANDATORY OCCUPANCY REQUIREMENT MAY BE WAIVED IF UNDUE HARDSHIP WOULD RESULT. SINCE QUARTERS WERE AVAILABLE FOR USE BY YOU AND YOUR DEPENDENT AND YOU DID NOT FURNISH A WAIVER OF OCCUPANCY BY THE COMMANDER OR A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WITH YOUR CLAIM, IT WAS RECOMMENDED THAT YOUR CLAIM NOT BE GIVEN FAVORABLE CONSIDERATION. BY SETTLEMENT DATED OCTOBER 16, 1968, YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASONS STATED.

WITH YOUR LETTER OF APRIL 24, 1969, REQUESTING REVIEW OF THE SETTLEMENT, YOU ENCLOSED A COPY OF A LETTER BY HEADQUARTERS, 7500 AIR BASE GROUP, DATED JULY 16, 1968, WHICH ESTABLISHES PROCEDURES FOR CONTROLLING PAYMENTS OF TEMPORARY LODGING ALLOWANCE. YOU CALL ATTENTION TO THAT PORTION OF THE LETTER WHICH STATES THAT THE COLUMBIA CLUB (FOR OFFICERS) AND DOUGLAS HOUSE (FOR ENLISTED PERSONNEL) ARE NOT CONSIDERED ADEQUATE FOR PERSONNEL WITH DEPENDENTS AND THEY ARE NOT REQUIRED TO LIVE IN THESE ACCOMMODATIONS. THE LETTER PROVIDES FURTHER THAT IF MEMBERS VOLUNTARILY LIVE IN SUCH QUARTERS, THEY WILL BE PAID AT A REDUCED RATE, AS SHOWN ELSEWHERE IN THAT LETTER.

PARAGRAPH M4303-1 (1), JOINT TRAVEL REGULATIONS, ISSUED UNDER AUTHORITY CONTAINED IN 37 U.S.C. 405, PROVIDES THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL LIKE ACCOMMODATIONS UPON INITIAL ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE.

PARAGRAPH M403-2A OF THE REGULATIONS PROVIDES THAT THE TEMPORARY LODGING ALLOWANCE IS PAYABLE TO MEMBERS OTHERWISE ELIGIBLE WHEN ALL OF THE FOLLOWING CONDITIONS EXIST: (1) GOVERNMENT QUARTERS ARE NOT FURNISHED THE MEMBER, HIS DEPENDENTS, OR THE MEMBER AND HIS DEPENDENTS, IF WITH DEPENDENTS; AND (2) THE MEMBER IS REQUIRED TO SECURE HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND HE, HIS DEPENDENTS, OR BOTH, ACTUALLY OCCUPY SUCH ACCOMMODATIONS AT PERSONAL EXPENSE.

PARAGRAPH M4303-3D OF THE REGULATIONS, EFFECTIVE FEBRUARY 23, 1968, PROVIDES IN PERTINENT PART THAT WHEN HOTEL OR HOTEL-LIKE ACCOMMODATIONS ARE OCCUPIED IN FACILITIES UNDER THE JURISDICTION OF THE GOVERNMENT, SUCH AS GUEST HOUSES OR SIMILAR TRANSIENT FACILITIES, THE AMOUNT OF THE TEMPORARY LODGING ALLOWANCE WILL BE EQUAL TO ONE-HALF OF THE DAILY AMOUNT OF THE TEMPORARY LODGING ALLOWANCE COMPUTED UNDER SUBPARAGRAPH A, PLUS THE AMOUNT OF THE RENTAL OR SERVICE CHARGE PAID BY THE MEMBER. IT IS FURTHER PROVIDED THAT THE ALLOWANCE WILL BE REDUCED 14 PERCENT FOR EACH MEAL AVAILABLE IN A GOVERNMENT MESS TO THE MEMBER AND HIS DEPENDENTS, AND FOR ENLISTED MEMBERS A FURTHER REDUCTION WILL BE MADE OF THE AMOUNT OF BASIC ALLOWANCE FOR SUBSISTENCE TO WHICH THE MEMBER IS ENTITLED.

AS INDICATED ABOVE, 7500 AB GP REGULATION NR 177-1, DATED APRIL 3, 1967, AND IN EFFECT DURING THE PERIOD UNDER CONSIDERATION, PROVIDES IN PERTINENT PART OF PARAGRAPH 2D THAT TEMPORARY LODGING ALLOWANCE WILL NOT BE AUTHORIZED FOR PAYMENT TO MEMBERS ACCOMPANIED BY DEPENDENTS IF SUITABLE QUARTERS ARE AVAILABLE AT THE DOUGLAS HOUSING ANNEX (FOR AIRMEN). THE REQUIREMENT FOR MANDATORY OCCUPANCY COULD BE WAIVED IF UNDUE HARDSHIP WOULD RESULT. IT PROVIDES FURTHER THAT TO RECEIVE SUCH WAIVER, THE MEMBER MUST FORWARD HIS REQUEST TO THE COMMANDER FOR APPROVAL, WITH DETAILED JUSTIFICATION FOR THE WAIVER.

SUBPARAGRAPH 2E OF THE REGULATION PROVIDES THAT THE SECRETARY OF THE HOUSING ANNEX WILL MAKE DETERMINATIONS AS TO THE SUITABILITY OF ROOMS FOR FAMILY OCCUPANCY TAKING INTO CONSIDERATION AGE, NUMBER AND SEX OF DEPENDENTS, AND PROXIMITY OF AVAILABLE ROOMS. SUBPARAGRAPH 2H PROVIDES THAT INITIAL TEMPORARY LODGING ALLOWANCE CLAIMS MUST BE ACCOMPANIED BY CERTIFICATES OF NONAVAILABILITY OF QUARTERS OR BY COPY OF WAIVER OF REQUIREMENT FOR OCCUPANCY.

PARAGRAPH 3 OF THE LETTER OF JULY 16, 1968, ISSUED BY HEADQUARTERS, 7500 AIR BASE GROUP (USAFE), RELATING TO PAYMENT OF TEMPORARY LODGING ALLOWANCE TO PERSONNEL DEPARTING FROM THAT STATION, PROVIDES THAT PERSONNEL OCCUPYING GOVERNMENT SPONSORED HOUSING, SUCH AS THE COLUMBIA CLUB OR DOUGLAS HOUSE WILL BE PAID AT A REDUCED RATE (ONE-HALF TLA PLUS REIMBURSEMENT FOR ROOM RENT PAID). IT PROVIDES FURTHER THAT THE COLUMBIA CLUB AND DOUGLAS HOUSE ARE NOT CONSIDERED ADEQUATE FOR PERSONNEL WITH DEPENDENTS AND THEY ARE NOT REQUIRED TO LIVE IN THESE ACCOMMODATIONS. THEY VOLUNTARILY LIVE IN SUCH QUARTERS, IT PROVIDES THAT THEY WILL BE PAID AT THE REDUCED RATE. SUBSEQUENT PARAGRAPHS REQUIRE A CERTIFICATE OF NONAVAILABILITY FOR PERSONNEL WHO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS, BUT A CERTIFICATE IS NOT REQUIRED FOR PERSONNEL WHO RESIDE IN THE DOUGLAS HOUSE OR COLUMBIA CLUB.

AS EXPLAINED ABOVE, THE REGULATIONS WHICH WERE IN EFFECT AT THE TIME OR YOUR ARRIVAL WITH YOUR DEPENDENT WIFE AT YOUR OVERSEA DUTY STATION PROVIDED THAT TEMPORARY LODGING ALLOWANCE WAS NOT AUTHORIZED IF SUITABLE QUARTERS WERE AVAILABLE AT THE DOUGLAS HOUSING ANNEX FOR AIRMEN. THEY PROVIDED FURTHER, THAT MEMBERS WHO DESIRED A WAIVER OF THE MANDATORY OCCUPANCY OF SUCH QUARTERS WERE REQUIRED TO REQUEST APPROVAL OF SUCH ACTION FROM THE COMMANDING OFFICER AND FURTHER REQUIRED THAT THE CLAIM BE ACCOMPANIED BY CERTIFICATES OF NONAVAILABILITY OF QUARTERS.

THE RECORD SHOWS THAT QUARTERS WERE ASSIGNED YOU AT THE DOUGLAS HOUSING ANNEX AND THAT YOU RESIDED THERE FROM OCTOBER 2 TO 7, 1967, AT WHICH TIME YOU VOLUNTARILY MOVED TO TEMPORARY HOTEL ACCOMMODATIONS. IT DOES NOT SHOW THAT ANY WAIVER WAS REQUESTED NOR HAVE YOUR FURNISHED CERTIFICATES OF NONAVAILABILITY OF QUARTERS AS REQUIRED. AND IT WOULD SEEM THAT UNDER THE CIRCUMSTANCES INVOLVED SUCH CERTIFICATE COULD NOT HAVE BEEN OBTAINED. SINCE GOVERNMENT QUARTERS WERE FURNISHED AND YOU WERE NOT REQUIRED TO SECURE HOTEL OR HOTEL-LIKE ACCOMMODATIONS, IT IS EVIDENT THAT THE CONDITIONS PRESCRIBED IN PARAGRAPH M4303-2A OF THE JOINT TRAVEL REGULATIONS TO SUPPORT ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE HAVE NOT BEEN MET.

WITH RESPECT TO THE CHANGE IN PROCEDURES FOR CONTROLLING PAYMENTS OF TEMPORARY LODGING ALLOWANCE CONTAINED IN THE LETTER OF JULY 16, 1968, IT IS A WELL SETTLED PRINCIPLE OF LAW THAT ONCE ADMINISTRATIVE REGULATIONS ARE ISSUED, THE RIGHTS THEREUNDER BECOME FIXED AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY. COMPARE ARIZONA GROCERY V ATCHISON RY., 284 U.S. 370. SEE 40 COMP. 242. THEREFORE, NEITHER THE CHANGE CONTAINED IN PARAGRAPH M4303-3D, JOINT TRAVEL REGULATIONS, EFFECTIVE FEBRUARY 23, 1968, NOR THE PROCEDURES OUTLINED IN THE LETTER OF JULY 16, 1968, HAD ANY RETROACTIVE EFFECT SO AS TO CHANGE YOUR ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE UNDER PREVIOUS REGULATIONS IN EFFECT AT THE TIME YOU OCCUPIED HOTEL OR HOTEL-LIKE ACCOMMODATIONS.

ACCORDINGLY, THE SETTLEMENT DATED OCTOBER 16, 1968, IS CORRECT AND IS SUSTAINED.