B-169449, MAY 14, 1970

B-169449, MAY 14, 1970

STATION ALLOWANCES--MILITARY PERSONNEL--TEMPORARY LODGINGS AFTER MOVE TO PERMANENT QUARTERS UNDER CIRCUMSTANCES WHERE TRANSFERRED MEMBER REPORTED TO PERMANENT DUTY STATION IN JAPAN, JAN. 4, 1967, AND RECEIVED 12-DAY ADDITIONAL TEMPORARY LODGING ALLOWANCE UNTIL PERMANENT LIVING ACCOMMODATIONS WERE OBTAINED, MEMBER IS NOT ENTITLED TO SECOND PERIOD OF ADDITIONAL TEMPORARY LODGING ALLOWANCE BEGINNING MAR. 24, 1967, WHEN FIRE CAUSED VACATING OF PERMANENT QUARTERS AND USE OF HOTEL ACCOMMODATIONS, PENDING ARRANGEMENTS FOR OTHER PERMANENT QUARTERS, SINCE, WHILE AMENDMENT TO REGULATIONS EFFECTIVE AUG. 14, 1967, WOULD PROVIDE FURTHER ENTITLEMENT PERIOD, ENUMERATED APPLICABLE REGULATIONS PRIOR TO AUG. 14 MAKE NO PROVISION FOR FURTHER PERIOD AFTER PERMANENT QUARTERS WERE ORIGINALLY OBTAINED.

TO MR. JOHN R. DAVIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 15, 1970, IN WHICH YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT DATED AUGUST 25, 1969, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FROM MARCH 24 TO MAY 5, 1967, AS YEOMAN FIRST CLASS, UNITED STATES NAVY.

IT APPEARS THAT YOU WERE TRANSFERRED TO A PERMANENT DUTY STATION IN JAPAN AND REPORTED THERE FOR DUTY ON JANUARY 4, 1967. YOU INDICATE THAT, BEFORE MOVING INTO PERMANENT QUARTERS, YOU AND YOUR DEPENDENTS WERE REQUIRED TO OCCUPY TEMPORARY HOTEL ACCOMMODATIONS FOR 12 DAYS AFTER YOUR ARRIVAL, FOR WHICH YOU WERE PAID TEMPORARY LODGING ALLOWANCE. IT FURTHER APPEARS THAT ON MARCH 24, 1967, A FIRE FORCED YOU TO VACATE YOUR PERMANENT QUARTERS AND THAT YOU AND YOUR DEPENDENTS AGAIN OCCUPIED HOTEL ACCOMMODATIONS FROM THAT DATE TO MAY 5, 1967, PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT QUARTERS.

ON SEPTEMBER 18, 1967, YOU REQUESTED AN AUTHORIZATION TO BE PAID ADDITIONAL TEMPORARY LODGING ALLOWANCE AS FOR A MEMBER WITH DEPENDENTS FOR THE PERIOD FROM MARCH 24 THROUGH MAY 5, 1967, CITING PARAGRAPH M4303-2C (2)3, JOINT TRAVEL REGULATIONS, AS AUTHORITY. A CERTIFICATE OF NON- AVAILABILITY OF GOVERNMENT QUARTERS FOR THE PERIOD INVOLVED, DATED SEPTEMBER 8, 1967, TOGETHER WITH AN ADMINISTRATIVE STATEMENT DATED SEPTEMBER 18, 1967, TO THE EFFECT THAT THE DELAY IN SUBMITTING THE APPLICATION WAS DUE TO AN ADMINISTRATIVE ERROR, WAS TRANSMITTED WITH YOUR REQUEST TO THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FOR APPROVAL. IT IS NOTED THAT THE PARAGRAPH OF THE JOINT TRAVEL REGULATIONS YOU CITED IN YOUR REQUEST WAS HAND CHANGED TO CITE PARAGRAPH M4303-2F OF THE REGULATIONS.

BY 4TH INDORSEMENT DATED NOVEMBER 8, 1967, YOUR REQUEST WAS DENIED BY THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. IT STATED THAT ENTITLEMENT IN SUCH CIRCUMSTANCES WAS PROVIDED FOR IN PARAGRAPH M4303-1, ITEM 2, JOINT TRAVEL REGULATIONS, AND SINCE THAT ITEM OF THE REGULATION WAS ADDED EFFECTIVE AUGUST 14, 1967, IT HAD NO RETROACTIVE EFFECT AND THE COMMITTEE WAS WITHOUT AUTHORITY TO APPROVE YOUR REQUEST.

BY LETTER DATED DECEMBER 8, 1967, YOU RESUBMITTED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE, STATING THAT UPON INITIALLY REPORTING TO YOUR OVERSEAS DUTY STATION ON JANUARY 4, 1967, A 60-DAY PERIOD OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE BEGAN UNDER THE PROVISIONS OF PARAGRAPH M4303-2C (1) OF THE REGULATIONS. YOU CONTENDED THAT SINCE YOU UTILIZED ONLY 12 DAYS OF THE AUTHORIZED 60-DAY PERIOD BEFORE OBTAINING A PERMANENT RESIDENCE, AND SINCE THE FIRE ON MARCH 24 OCCURRED ONLY 80 DAYS AFTER YOU ARRIVED AT YOUR DUTY STATION AND MADE SUCH RESIDENCE PERMANENTLY UNAVAILABLE, THE INITIAL 60-DAY PERIOD OF ENTITLEMENT SHOULD BE EXTENDED TO COVER THE PERIOD YOU WERE AGAIN REQUIRED TO UTILIZE HOTEL ACCOMMODATIONS. YOU RELIED ON PARAGRAPH M4303-2C (2) 3 AS PROVIDING AUTHORITY FOR THE ADDITIONAL TEMPORARY LODGING ALLOWANCE REQUESTED.

BY LETTER DATED DECEMBER 27, 1967, THE COMMANDER, U.S. NAVAL FORCES, JAPAN, DISAPPROVED YOUR REQUEST FOR EXTENSION, STATING THAT UNDER REGULATIONS THEN IN EFFECT, ONCE PERMANENT LIVING ACCOMMODATIONS HAVE BEEN OCCUPIED, ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE ON INITIAL ARRIVAL TERMINATES AND MAY NOT THEREAFTER BE EXTENDED.

IN A LETTER DATED MAY 12, 1969, WITH ENCLOSURES COVERING PREVIOUS CORRESPONDENCE IN THE MATTER, YOU PRESENTED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE TO OUR CLAIMS DIVISION FOR SETTLEMENT, STATING THAT UNDER THE PROVISIONS OF PARAGRAPH M4303-2F OF THE REGULATIONS, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE DID HAVE AND STILL HAS THE AUTHORITY TO AUTHORIZE PAYMENT OF YOUR CLAIM.

BY SETTLEMENT DATED AUGUST 25, 1969, YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE WAS DISALLOWED FOR THE REASONS THEREIN STATED. IN YOUR LETTER OF MARCH 15, 1970, YOU AGAIN CONTEND THAT PARAGRAPH M4303-2F, JOINT TRAVEL REGULATIONS, PROVIDES A LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. YOU CONTEND FURTHER THAT PARAGRAPHS M4303-2C (2) AND M4303-2D (2) OF THE REGULATIONS CONTAIN PROVISIONS FOR AUTHORIZING ADDITIONAL PERIODS OF ENTITLEMENT WHICH ARE NOT LIMITED TO APPROVAL ON A 15-DAY INCREMENT PERIOD.

CHAPTER 4, PART G, JOINT TRAVEL REGULATIONS, CONTAINS THE REGULATIONS WITH RESPECT TO STATION ALLOWANCES OUTSIDE THE UNITED STATES, PROMULGATED UNDER 37 U.S.C. 405, WHICH AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE THE PAYMENT OF A PER DIEM TO MEMBERS AND THEIR DEPENDENTS WHILE ON DUTY OUTSIDE THE UNITED STATES OR IN ALASKA OR HAWAII. PARAGRAPH M4303 -1 OF THE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED PROVIDES AS FOLLOWS:

"1. GENERAL. 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 AND PUBLIC RESTAURANTS:

"1. UPON INITIAL ARRIVAL (REPORTING) 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; OR

"2. IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR AFTER SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS.

PARAGRAPH M4303-2 OF THE REGULATIONS PRESCRIBES THE CONDITIONS UNDER WHICH THE TEMPORARY LODGING ALLOWANCE IS PAYABLE DURING THE PERIODS AUTHORIZED IN SUBPARAGRAPH M4303-1, THAT IS, UPON INITIAL ARRIVAL AND PENDING ASSIGNMENT OF GOVERNMENT ORDERS OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT QUARTERS; ALSO, DURING THE PERIOD IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION AFTER TERMINATION OF ASSIGNMENT OF GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS.

PARAGRAPH M4303-2C (1) OF THE REGULATIONS LIMITS THE PERIOD OF ENTITLEMENT OF TEMPORARY LODGING ALLOWANCE PAYABLE TO MEMBERS UPON INITIAL ASSIGNMENT TO AN OVERSEAS PERMANENT DUTY STATION TO 60 DAYS, EXCEPT AS PROVIDED IN SUBPARAGRAPH (2). THAT SUBPARAGRAPH MAKES PROVISION FOR THE MAJOR OVERSEAS COMMANDER TO AUTHORIZE OR APPROVE ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE BEYOND THE 60-DAY MAXIMUM WHEN HE FINDS THAT THE EXTENSIONS ARE REQUIRED DUE TO CONDITIONS THERE SPECIFIED, INCLUDING "FIRE," WHICH ARE BEYOND THE CONTROL OF THE MEMBER OR HIS DEPENDENTS. THE PERIODS OF ADDITIONAL ENTITLEMENT TO BE AUTHORIZED OR APPROVED ARE LIMITED TO INCREMENTS OF 15 DAYS OR LESS AND APPROVAL DETERMINATIONS MUST BE ISSUED NO LATER THAN THE 15TH DAY AFTER THE EARLIEST DAY COVERED BY SUCH APPROVAL.

PARAGRAPH M4303-2F, JOINT TRAVEL REGULATIONS, ALSO CITED BY YOU IN SUPPORT OF YOUR CLAIM PROVIDES THAT THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION COMMITTEE MAY AUTHORIZE OR APPROVE NECESSARY ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCE IN ANY CASE NOT COVERED BY SUBPARAGRAPH C OR D, THAT IS, UPON INITIAL ARRIVAL AND UPON DEPARTURE IN CIRCUMSTANCES IN WHICH THE OVERSEAS COMMANDER MAY NOT AUTHORIZE ADDITIONAL PERIODS, PROVIDED THE DELAY INVOLVED WAS NOT DUE TO REASONS WITHIN THE CONTROL OF THE MEMBER AND HIS DEPENDENTS AND UNDUE HARDSHIP WILL RESULT IF SUCH ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCES ARE NOT AUTHORIZED.

UNDER THESE REGULATIONS, THE MEMBER WAS ENTITLED, INCIDENT TO AN ASSIGNMENT TO AN OVERSEAS STATION TO AN INITIAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD AFTER ARRIVAL AT THE STATION AND UNTIL ASSIGNED GOVERNMENT QUARTERS OR UNTIL HE OBTAINED OTHER PERMANENT LIVING ACCOMMODATIONS, SUCH ENTITLEMENT NOT TO EXCEED 60 DAYS, EXCEPT THAT IF PERMANENT LIVING ACCOMMODATIONS WERE NOT OBTAINED WITHIN SUCH PERIOD BECAUSE OF THE REASONS SPECIFIED IN THE REGULATIONS, THE OVERSEAS COMMANDER COULD AUTHORIZE ADDITIONAL ENTITLEMENT, IN INCREMENTS OF 15 DAYS OR LESS, UNTIL SUCH PERMANENT QUARTERS WERE OBTAINED.

ALSO, UNDER PARAGRAPH M4303-2F, IN CERTAIN CASES NOT COMING WITHIN THE AUTHORITY OF THE OVERSEAS COMMANDER, THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE COULD AUTHORIZE OR APPROVE ADDITIONAL PERIODS OF ENTITLEMENT UNTIL PERMANENT QUARTERS WERE OBTAINED. UNDER THE REGULATIONS IN EFFECT AT THE TIME INVOLVED, HOWEVER, NEITHER THE OVERSEAS COMMANDER NOR THE ADVISORY PANEL OF THE COMMITTEE HAD ANY AUTHORITY TO AUTHORIZE A SECOND PERIOD OF ENTITLEMENT, EXCEPT IN CONNECTION WITH A FURTHER CHANGE OF STATION, IF IT BECAME NECESSARY FOR THE MEMBER AND HIS DEPENDENTS TO AGAIN OCCUPY HOTEL ACCOMMODATIONS AFTER HAVING BECOME ESTABLISHED IN PERMANENT QUARTERS AT HIS OVERSEAS STATION.

EFFECTIVE AUGUST 14, 1967, PARAGRAPH M4303-1 OF THE REGULATIONS WAS AMENDED TO ADD ITEM 2 THERETO, PROVIDING AUTHORITY FOR TEMPORARY LODGING ALLOWANCES WHENEVER THE OVERSEAS COMMANDER DETERMINES THAT, FOR REASONS BEYOND THE CONTROL OF THE MEMBER, IT HAS BECOME NECESSARY FOR A MEMBER ONCE ESTABLISHED IN PERMANENT QUARTERS IN THE VICINITY OF HIS DUTY STATION TO AGAIN UTILIZE HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS WHILE SEEKING FURTHER PERMANENT QUARTERS. PARAGRAPH M4303-2D OF THE REGULATIONS PROVIDES THAT SUCH ENTITLEMENT CONTINUES FOR THE ENTIRE PERIOD AFTER AUGUST 14, 1967, THAT THE MEMBER IS REQUIRED TO USE HOTEL OR HOTEL- LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS IF AUTHORIZED OR APPROVED BY THE OVERSEAS COMMANDER.

WHILE THE AMENDMENT TO THE REGULATIONS EFFECTIVE AUGUST 14, 1967, WAS ISSUED TO PROVIDE A FURTHER PERIOD OF ENTITLEMENT IN CIRCUMSTANCES SUCH AS ARE INVOLVED IN YOUR CASE, THE AMENDMENT HAS NO APPLICATION TO ANY PERIOD PRIOR TO SUCH DATE. THUS, AS EXPLAINED ABOVE, THE APPLICABLE REGULATIONS MAKE NO PROVISION FOR AUTHORIZING PAYMENT OF TEMPORARY LODGING ALLOWANCE FOR A FURTHER PERIOD AFTER YOU OBTAINED PERMANENT LIVING ACCOMMODATIONS AT YOUR STATION AND THIS OFFICE HAS NO AUTHORITY TO ALLOW YOUR CLAIM ON EQUITABLE CONSIDERATIONS.