B-174478, AUG 4, 1972, 52 COMP GEN 64

B-174478, AUG 4, 1972, 52 COMP GEN 64

QUARTERS - GOVERNMENT FURNISHED - ASSIGNMENT MORE COSTLY THAN PAYMENT OF AN ALLOWANCE COMMANDING OFFICERS WHO IN THE ASSIGNMENT OR NONASSIGNMENT OF PUBLIC QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES HAVE THE DUTY TO ACCOMPLISH THE MAXIMUM PRACTICABLE OCCUPANCY OF GOVERNMENT QUARTERS AND TO ISSUE A WRITTEN STATEMENT OR CERTIFICATE TO MEMBERS UPON THE ASSIGNMENT OR NONASSIGNMENT OF QUARTERS - AND A MEMBER'S PERSONAL DESIRE PROVIDES NO BASIS FOR THE NONASSIGNMENT OF AVAILABLE QUARTERS - MAY BE GRANTED SOME LATITUDE IN CIRCUMSTANCES REQUIRING THAT JUDGMENT BE USED AS TO WHETHER THE ASSIGNMENT OF QUARTERS WOULD BE MORE COSTLY TO THE GOVERNMENT THAN THE PAYMENT OF THE ALLOWANCE PRESCRIBED BY 37 U.S.C. 403, SINCE THERE IS NO REQUIREMENT THAT ALL AVAILABLE QUARTERS MUST BE OCCUPIED. HOWEVER, DETERMINATIONS SHOULD BE MADE ON AN INDIVIDUAL BASIS AND AN APPROVED ALLOWANCE SUPPORTED BY A WRITTEN CERTIFICATE OR STATEMENT. MILITARY PERSONNEL - DISLOCATION ALLOWANCE - MEMBERS WITHOUT DEPENDENTS - QUARTERS NOT ASSIGNED A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO IS TRANSFERRED TO A PERMANENT STATION AND FURNISHED A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS ON THE BASIS THAT IT WOULD BE ECONOMICALLY ADVANTAGEOUS TO THE UNITED STATES NOT TO REQUIRE THE MEMBER TO OCCUPY AVAILABLE QUARTERS IS ENTITLED TO A DISLOCATION ALLOWANCE PURSUANT TO PARAGRAPH M9003-1 OF THE JOINT TRAVEL REGULATIONS, IMPLEMENTING 37 U.S.C. 407(A), WHICH AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER THAT IS NOT ASSIGNED TO GOVERNMENT QUARTERS AND IS FURNISHED A CERTIFICATE OF NONAVAILABILITY OF QUARTERS.

TO THE SECRETARY OF THE NAVY, AUGUST 4, 1972:

BY LETTER DATED NOVEMBER 3, 1971, THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTS A DECISION WHETHER THE COMMANDING OFFICER AT A PERMANENT DUTY STATION MAY CERTIFY, FOR THE PURPOSE OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS, THAT ADEQUATE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO A MEMBER TRANSFERRED TO HIS ACTIVITY WHEN FOR PERSONAL REASONS THE MEMBER REQUESTS THAT HE BE PERMITTED TO RESIDE IN PRIVATE QUARTERS AND WHEN IN THE JUDGMENT OF THE COMMANDING OFFICER SUCH NONASSIGNMENT WOULD BE ECONOMICALLY ADVANTAGEOUS TO THE GOVERNMENT. FURTHER QUESTION PERTAINS TO THE ENTITLEMENT OF A MEMBER WITHOUT DEPENDENTS, NOT ASSIGNED QUARTERS UNDER SUCH CONDITIONS, TO A DISLOCATION ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 407(A). THE REQUEST HAS BEEN ASSIGNED CONTROL NO. SS-N-1135 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE ASSISTANT SECRETARY SUGGESTS THAT THERE IS AN APPARENT CONFLICT BETWEEN TWO DECISIONS OF OUR OFFICE, 39 COMP. GEN. 561(1960) AND 48 COMP. GEN. 216(1968), WITH RESPECT TO THE AVAILABILITY AND/OR ASSIGNMENT OF GOVERNMENT QUARTERS AS THEY PERTAIN TO THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICE TO BASIC ALLOWANCE FOR QUARTERS, IF OTHERWISE ENTITLED. HE SAYS THAT IN 39 COMP. GEN. 561 WE HELD THAT A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS NOT CONCLUSIVE WHEN THE FACTS IN THE CASE ARE CONTRARY TO SUCH CERTIFICATION.

APPARENTLY IN CONFLICT, HE SAYS, IS 48 COMP. GEN. 216 IN WHICH WE STATED (CITING SEVERAL COURT OF CLAIMS RULINGS) THAT THE MERE AVAILABILITY OF QUARTERS WHICH COULD HAVE BEEN ASSIGNED TO A MEMBER WITH OR WITHOUT DEPENDENTS AT A PERMANENT STATION DOES NOT DEFEAT THE RIGHT OF SUCH MEMBER TO BASIC ALLOWANCE FOR QUARTERS WHEN NOT ASSIGNED TO SUCH QUARTERS AND THAT QUARTERS ARE NOT "FURNISHED" TO A MEMBER MERELY BECAUSE THERE ARE QUARTERS AVAILABLE FOR ASSIGNMENT - THEY MUST BE ASSIGNED TO HIM.

IN VIEW OF THE APPARENT CONFLICT BETWEEN THESE DECISIONS, THE ASSISTANT SECRETARY QUESTIONS WHETHER THE AVAILABILITY OF GOVERNMENT QUARTERS SHOULD BE THE SOLE CRITERION GOVERNING THE ASSIGNMENT OR NON ASSIGNMENT OF SUCH QUARTERS AND THEREFORE DETERMINATIVE OF WHETHER ENTITLEMENT EXISTS TO BASIC ALLOWANCE FOR QUARTERS. HE SUGGESTS THAT IT IS DESIRABLE FOR REASONS OF ECONOMY THAT A COMMANDING OFFICER HAVE A CERTAIN AMOUNT OF FLEXIBILITY WHEN IT WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT NOT TO ASSIGN ADEQUATE GOVERNMENT QUARTERS. FOR EXAMPLE, HE SAYS IT MAY COST MORE TO STORE A MEMBER'S HOUSEHOLD EFFECTS AND MAINTAIN HIM IN GOVERNMENT QUARTERS THAN TO PAY A BASIC ALLOWANCE FOR QUARTERS.

ALSO, HE STATES THAT IT WOULD BE PRUDENT FOR THE COMMANDING OFFICER TO KEEP SOME ADEQUATE QUARTERS AVAILABLE FOR ASSIGNMENT TO TEMPORARY DUTY PERSONNEL WHEN IT IS KNOWN THAT SUCH PERSONNEL WILL NORMALLY BE THERE, WHICH WOULD RESULT IN A SAVINGS IN PER DIEM COSTS EXCEEDING AMOUNTS EXPENDED FOR BASIC ALLOWANCE FOR QUARTERS. FINALLY, HE INDICATES THAT WHEN THE GOVERNMENT IS LEASING QUARTERS ON A "WHEN OCCUPIED" BASIS, IT MAY COST MORE TO ASSIGN A MEMBER TO SUCH QUARTERS IF THE LEASE COST IS GREATER THAN THE BASIC ALLOWANCE FOR QUARTERS.

WITH RESPECT TO WHETHER A MEMBER WITHOUT DEPENDENTS NOT ASSIGNED ADEQUATE QUARTERS AT HIS PERMANENT STATION UNDER CONDITIONS DESCRIBED ABOVE WOULD BE ENTITLED TO A DISLOCATION ALLOWANCE, THE ASSISTANT SECRETARY CITES IN SUPPORT THEREOF THE PROVISIONS OF 37 U.S.C. 407(A), WHICH AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER WITHOUT DEPENDENTS WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES.

SECTION 403(A) OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) THEREOF PROVIDES THAT A MEMBER 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. SUBSECTION (G) AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION.

SECTION 407(A) OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER WITHOUT DEPENDENTS WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES IS ENTITLED TO A DISLOCATION ALLOWANCE. A MEMBER WHOSE DEPENDENTS MAY NOT MAKE AN AUTHORIZED MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION IS CONSIDERED A MEMBER WITHOUT DEPENDENTS.

SECTION 403 OF EXECUTIVE ORDER 11157, JUNE 22, 1964, AS AMENDED, IMPLEMENTING 37 U.S.C. 403, PROVIDES GENERALLY THAT ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) BY A MEMBER WITHOUT DEPENDENTS "*** SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES ***." SECTION 407 THEREOF PROVIDES THAT THE SECRETARIES CONCERNED ARE AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS NOT INCONSISTENT WITH THE EXECUTIVE ORDER AS THEY MAY DEEM NECESSARY OR DESIRABLE TO CARRY OUT THE PROVISIONS OF THAT ORDER, WITH RESPECT TO MEMBERS WITHIN THEIR RESPECTIVE DEPARTMENTS. ALL SUCH REGULATIONS ARE REQUIRED TO BE UNIFORM FOR ALL SERVICES TO THE FULLEST EXTENT PRACTICABLE.

WE BELIEVE THAT THE ALLEGED INCONSISTENCY BETWEEN OUR DECISIONS IN 39 COMP. GEN. 561 AND 48 COMP. GEN. 216 IS MORE APPARENT THAN REAL. IN BOTH CASES, WE RECOGNIZED THE PRINCIPLE THAT IT IS THE ASSIGNMENT OR NONASSIGNMENT OF GOVERNMENT QUARTERS (OR THE OFFER OF SUCH QUARTERS) BY A COMMANDING OFFICER WHICH WAS THE GOVERNING FACTOR IN THE ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS. WE STATED, HOWEVER, THAT CLAIMS FOR PAYMENT OF SUCH ALLOWANCES ARE FOR DETERMINATION ON THE BASIS OF THE FACTS IN EACH CASE.

IN THESE CASES, WE ADHERED TO THE PRINCIPLE STATED IN MCVANE V. UNITED STATES, 118 CT. CL. 500(1951), CONCERNING A CASE WHERE PLAINTIFF HAD BEEN ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE BUT RECEIVED PERMISSION TO LIVE IN PRIVATE QUARTERS. IN THAT CASE, PLAINTIFF CONTENDED THAT WHILE QUARTERS WERE AVAILABLE, THEY WERE NEVER ASSIGNED, CITING LAKE V. UNITED STATES, 97 CT. CL. 477(1942) AND LUNDBLAD V. UNITED STATES, 98 CT. CL. 397(1943). THE COURT SAID THAT THE FACTS IN THOSE CASES WERE NOT ANALOGOUS TO THOSE CONSIDERED IN THE MCVANE CASE. IN THOSE CASES, PLAINTIFFS HAD NO WAY OF KNOWING WHETHER QUARTERS WERE AVAILABLE OR WHETHER THE OMISSION OF ASSIGNMENT TO QUARTERS WAS INTENTIONAL. HOWEVER, IN THE CASE IT WAS CONSIDERING, PLAINTIFF HAD BEEN PERSONALLY ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE BUT HIS REQUEST TO RESIDE IN PRIVATE QUARTERS WAS APPROVED. UNDER THE CIRCUMSTANCES, IT WAS NOT NECESSARY FOR HIS COMMANDING OFFICER TO HAVE DELIVERED WRITTEN ORDERS ASSIGNING HIM TO SPECIFIC QUARTERS.

IN 39 COMP. GEN. 561 THE RECORD SHOWS THAT THE OFFICER HAD BEEN OCCUPYING ADEQUATE GOVERNMENT QUARTERS AT HIS DUTY STATION AND THAT OTHER ADEQUATE BACHELOR QUARTERS WERE ALSO AVAILABLE TO HIM IF HE DESIRED A CHANGE. HOWEVER, HE REQUESTED TO RESIDE OFF-BASE. NO JUSTIFICATION FOR THE ISSUANCE OF A CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS FURNISHED AND IT APPEARED FROM THE FACTS IN THE CASE THAT IT WAS ISSUED PRESUMABLY IN COMPLIANCE WITH THE MEMBER'S REQUEST AND "WITH THE ASSUMPTION THAT IT WOULD BE AT OFFICER'S EXPENSE." IT WAS ON THE BASIS OF THE FACTS IN THE RECORD INDICATING THAT THE OFFERING OF PUBLIC QUARTERS TO THE MEMBER IN THE CIRCUMSTANCES OF THAT CASE WAS REGARDED BY THE LOCAL FINANCE AND COMMANDING OFFICER AS TANTAMOUNT TO AN ASSIGNMENT OF QUARTERS EVEN THOUGH HE WAS NOT FORMALLY ASSIGNED SUCH QUARTERS OR REQUIRED TO OCCUPY THEM THAT WE CONCLUDED THAT THE CERTIFICATE WAS NOT CONCLUSIVE IN THE MATTER.

IN 48 COMP. GEN. 216 WE CONSIDERED THE CASE OF A MEMBER WHO HAD BEEN ASSIGNED FAMILY TYPE HOUSING FOR HIMSELF UPON ARRIVAL AT HIS NEW DUTY STATION. THESE QUARTERS WERE IN EXCESS OF THE NEEDS OF THE COMMAND AND THOUGH AT THAT TIME HE WAS INELIGIBLE FOR SUCH QUARTERS BY VIRTUE OF HIS GRADE AND HIS DEPENDENTS WERE NOT WITH HIM, SUCH ASSIGNMENT WAS PRESUMABLY MADE ON THE BASIS OF A PROJECTED PROMOTION AND HIS STATEMENTS THAT HIS DEPENDENTS WOULD JOIN HIM AT THAT STATION. WHEN HE WAS PROMOTED TO AN ELIGIBLE GRADE, HOWEVER, HIS DEPENDENTS DID NOT JOIN HIM. THE MEMBER REQUESTED TERMINATION OF THE ASSIGNMENT AND PERMISSIVE TRANSFER CLOSER TO HIS HOME BECAUSE CONTINUED ASSIGNMENT AT THAT STATION WOULD RESULT IN HARDSHIP TO HIM.

ON THAT BASIS AND UNDER AUTHORITY OF APPLICABLE ARMY REGULATIONS PROVIDING FOR TERMINATION OF ASSIGNMENT OF FAMILY QUARTERS WHEN DEPENDENTS DO NOT PERMANENTLY RESIDE WITH THE MEMBER OCCUPANT, HIS COMMANDING OFFICER TERMINATED THE MEMBER'S ASSIGNMENT TO FAMILY TYPE HOUSING. IN REVIEWING THE APPLICABLE REGULATIONS WE CONCLUDED THAT IN THE CIRCUMSTANCES DISCLOSED, EVEN THOUGH THE HOUSING OFFICER REFUSED TO FURNISH A CERTIFICATE OF NONASSIGNMENT OF QUARTERS, THE COMMANDING OFFICER'S ACTION WAS PROPER AND THEREFORE THE MEMBER WAS NOT ASSIGNED TO FAMILY TYPE QUARTERS AND WAS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS.

THE ASSIGNMENT OR NONASSIGNMENT OF PUBLIC QUARTERS FOR MEMBERS OF THE ARMED SERVICES, OF COURSE, IS PRIMARILY AN ADMINISTRATIVE MATTER AND IT IS THE DUTY OF THE RESPONSIBLE OFFICERS TO ACCOMPLISH THE MAXIMUM PRACTICABLE OCCUPANCY OF GOVERNMENT QUARTERS. SUPPLEMENTAL ADMINISTRATIVE REGULATIONS GOVERNING ASSIGNMENT OF AVAILABLE PUBLIC QUARTERS PROVIDE THAT IT IS THE RESPONSIBILITY OF THE INSTALLATION COMMANDER TO MAINTAIN MAXIMUM OCCUPANCY OF ALL GOVERNMENT QUARTERS FOR MEMBERS REPORTING AT HIS INSTALLATION. THESE REGULATIONS PROVIDE FURTHER THAT WRITTEN STATEMENTS OR CERTIFICATES BE FURNISHED THE MEMBER UPON THE ASSIGNMENT OR NONASSIGNMENT OF QUARTERS. THE PERSONAL DESIRES OF THE MEMBER PROVIDE NO BASIS FOR THE NONASSIGNMENT OF AVAILABLE GOVERNMENT QUARTERS.

WE AGREE, HOWEVER, WITH THE VIEWS EXPRESSED BY THE ASSISTANT SECRETARY THAT SOME LATITUDE SHOULD BE GIVEN THESE COMMANDERS IN CIRCUMSTANCES REQUIRING THAT JUDGMENT BE USED AS TO WHETHER ASSIGNMENT OF GOVERNMENT QUARTERS TO SPECIFIC CLASSES OF MEMBERS AND FAMILIES MAY BE MORE COSTLY TO THE GOVERNMENT THAN THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. CF. 51 COMP. GEN. 513(1972).

THEREFORE, IN VIEW OF THE CIRCUMSTANCES DISCLOSED, AND SINCE PERTINENT STATUTORY PROVISIONS AND IMPLEMENTING EXECUTIVE ORDERS DO NOT SPECIFICALLY REQUIRE THAT ALL AVAILABLE QUARTERS MUST BE OCCUPIED, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. HOWEVER, IT WOULD SEEM THAT UNDER THE PROVISIONS OF SECTION 407 OF THE CITED EXECUTIVE ORDER, ANY ACTION TAKEN IN THE MATTER SHOULD BE BASED UPON APPROPRIATE REGULATIONS WHICH WOULD PERMIT INSTALLATION COMMANDERS TO ASSIGN OR TO NOT ASSIGN AVAILABLE QUARTERS ON THE BASIS OF A DETERMINATION IN EACH INDIVIDUAL CASE THAT THE ACTION TAKEN WOULD BE MORE ECONOMICALLY ADVANTAGEOUS TO THE GOVERNMENT. TO SUPPORT THE PAYMENT OF QUARTERS ALLOWANCE IN SUCH CASES WE BELIEVE THAT SUCH REGULATIONS SHOULD REQUIRE THAT A CERTIFICATE OR STATEMENT BE FURNISHED BY THE COMMANDING OFFICER THAT ACTION WAS TAKEN IN ACCORDANCE WITH SUCH REGULATIONS.

WITH RESPECT TO THE ENTITLEMENT TO DISLOCATION ALLOWANCE BY A MEMBER WITHOUT DEPENDENTS TRANSFERRED TO A PERMANENT STATION AND FURNISHED A CERTIFICATE OF NONAVAILABILITY IN CIRCUMSTANCES DESCRIBED ABOVE, PARAGRAPH M9003-1, JOINT TRAVEL REGULATIONS, IMPLEMENTING 37 U.S.C. 407(A), AUTHORIZES PAYMENT OF THE ALLOWANCE TO SUCH MEMBER WHEN NOT ASSIGNED TO QUARTERS OF THE UNITED STATES. THEREFORE, UPON RECEIPT OF A CERTIFICATE OF NONASSIGNMENT OF QUARTERS UNDER THE CIRCUMSTANCES STATED IN THE QUESTION THE MEMBER WOULD BE ENTITLED TO A DISLOCATION ALLOWANCE, IF OTHERWISE ENTITLED. HOWEVER, THE ENTITLEMENT TO SUCH ALLOWANCE SHOULD ALSO BE CONSIDERED IN DETERMINING THE ECONOMIC ADVANTAGE TO THE UNITED STATES IN NOT REQUIRING THE OCCUPANCY OF AVAILABLE QUARTERS.