B-178144, JUN 6, 1973

B-178144, JUN 6, 1973

DENIAL OF CLAIM FOR REFUND OF AMOUNT DEDUCTED FROM FINAL PAYMENT INCIDENT TO RELEASE FROM ACTIVE DUTY AS AN AIR FORCE CAPTAIN SUSTAINED UPON REVIEW.

TO SSGT. PAUL SIDORAN:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING RECONSIDERATION OF THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED FEBRUARY 5, 1973, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT DEDUCTED FROM YOUR FINAL PAYMENT ON DECEMBER 15, 1970, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS AN AIR FORCE CAPTAIN. THIS AMOUNT ($206.42) WAS DEDUCTED IN ORDER TO COVER THE COST OF CLEANING YOUR GOVERNMENT QUARTERS AND FOR A RENTAL CHARGE.

THE ADMINISTRATIVE REPORT STATES THAT THE ABOVE CHARGES WERE IMPOSED DUE TO YOUR VACATING OF FAMILY-TYPE GOVERNMENT QUARTERS PRIOR TO INSPECTION BY HOUSING INSPECTION PERSONNEL. IT FURTHER STATES THAT AN INSPECTION OF SUCH QUARTERS AFTER YOUR DEPARTURE REVEALED CONDITIONS REQUIRING THE CONTRACTING OF PROFESSIONAL CLEANING AND REPAIRING SERVICES PRIOR TO ASSIGNING THE FAMILY QUARTERS TO THE NEXT TENANT. THE TOTAL CHARGE FOR THESE PROFESSIONAL SERVICES WAS $150. IN ADDITION TO THIS AMOUNT, A CHARGE OF $56.42 WAS ASSESSED FOR RENT WHILE THE QUARTERS WERE BEING CLEANED. CONSEQUENTLY, THE AMOUNT OF $206.42 WAS DEDUCTED FROM YOUR FINAL PAYMENT ON DECEMBER 15, 1970.

YOUR CLAIM FOR A REFUND OF THIS AMOUNT WAS DENIED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON THE BASIS OF PARAGRAPH 3A(1) OF AIR FORCE REGULATION (AFR, 91-1, DATED JUNE 1, 1970. THIS PARAGRAPH PROVIDES IN PERTINENT PART THAT AT THE TIME A MEMBER VACATES GOVERNMENT QUARTERS, SUCH QUARTERS MUST BE IN A CONDITION THAT IS READILY ACCEPTABLE TO THE NEXT TENANT. IT IS FURTHER PROVIDED THEREIN THAT IF THE OCCUPANT ABANDONS HOUSING WITHOUT PASSING FINAL INSPECTION, THE COMMANDER MAY ARRANGE FOR A COMMERCIAL VENDOR OR VENDORS WHOSE QUALITY OF WORK IS ACCEPTABLE TO THE GOVERNMENT TO PERFORM THIS CLEANING SERVICE, AND THEN MAY FILE FOR REIMBURSEMENT AGAINST THE OCCUPANT.

THE BASIS OF YOUR CLAIM FOR A REFUND IN THE AMOUNT OF $206.42 IS THAT THE ABOVE CHARGES WERE BOTH EXCESSIVE AND UNJUST. YOU ALSO CONTEND THAT YOU HAD RECEIVED THE VERBAL APPROVAL OF COLONEL C. B. SLAUGHTER, JR., TO LEAVE YOUR QUARTERS IN REASONABLY GOOD CONDITION BY DOING ALL YOU COULD DO BY WAY OF CLEANING. YOU STATE THAT COLONEL SLAUGHTER WAS THE COMMANDER OF THE 4500TH AIR BASE WING LOCATED AT LANGLEY AIR FORCE BASE, VIRGINIA, YOUR ASSIGNED UNIT AT THE TIME OF YOUR SEPARATION.

WITH RESPECT TO YOUR CLAIM THAT THE CHARGE WAS EXCESSIVE, IT IS ADMINISTRATIVELY REPORTED THAT THE CHARGE FOR CLEANING YOUR QUARTERS ($150) WAS THE AMOUNT PAID TO A PRIVATE CONTRACTOR TO CLEAN YOUR QUARTERS. THIS CONTRACTOR WAS PROCURED AFTER A DETERMINATION WAS MADE THAT YOU HAD ABANDONED YOUR QUARTERS WITHOUT PASSING FINAL INSPECTION, IN ACCORDANCE WITH PARAGRAPH 3A(1) ABOVE.

REGARDING YOUR STATEMENT THAT WE HAVE ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER IN ACCEPTING THE REPORT OF THE AIR FORCE, YOU ARE ADVISED THAT WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES. WE, THEREFORE, ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE AIR FORCE. MOREOVER, OTHER THAN YOUR ALLEGATIONS THAT THE STATEMENTS MADE BY SEVERAL MEMBERS IN CONNECTION WITH AN INSPECTOR GENERAL INQUIRY WERE INCORRECT, YOU HAVE NOT PRESENTED EVIDENCE TO INDICATE THAT THE ABOVE DETERMINATION WAS ERRONEOUS.

FURTHER, YOU HAVE NOT PRESENTED EVIDENCE THAT THE CHARGE ITSELF WAS EXCESSIVE. IN THIS REGARD, THE FINAL INSPECTION REPORT, CITING THE CONDITION OF 13 OF THE 16 ITEMS ON THE REPORT AS UNSATISFACTORY, AND THE BASE CIVIL ENGINEER JOB ORDER ESTIMATING THAT 31.5 MAN-HOURS WERE NECESSARY TO REPAIR THE DAMAGE TO YOUR QUARTERS, ARE STRONG EVIDENCE THAT THE $150 CHARGE BY THE PRIVATE CONTRACTOR WAS REASONABLE. THE AMOUNT OF $56.42 WHICH YOU WERE ASSESSED FOR RENT WHILE THE QUARTERS WERE BEING CLEANED ALSO APPEARS TO BE A REASONABLE CHARGE, BEING CALCULATED ON THE BASIS OF THE DAILY RATE OF BAQ $130.05 PER MONTH FOR 13 DAYS ($4.34 PER DAY). IT IS REPORTED THAT THE 13-DAY PERIOD COVERS DECEMBER 16, 1970, THROUGH DECEMBER 28, 1970.

WHILE AFR 91-1 DOES NOT SPECIFICALLY AUTHORIZE THE CHARGING OF RENT FOR THE PERIOD OF TIME REQUIRED TO RENDER THE PREMISES FIT FOR THE OCCUPANCY OF ANOTHER MEMBER, THIS CHARGE AND DEDUCTION FROM FINAL PAY APPEAR TO BE IN ACCORD WITH THE AIR FORCE'S AUTHORITY IN CONNECTION WITH THE OPERATION AND MAINTENANCE OF SUCH PROPERTY, AND IS INCIDENT TO RENDERING THE HOUSING FIT FOR FURTHER OCCUPANCY AT THE EXPENSE OF THE PRIOR OCCUPANT, WHERE IT IS ABANDONED WITHOUT PASSING FINAL INSPECTION.

YOU ALSO CONTEND THAT THIS CHARGE WAS UNJUST IN THAT YOUR PHYSICAL HEALTH AND THE SHORT PERIOD OF TIME BETWEEN THE DATE YOU WERE NOTIFIED OF YOUR PENDING DISCHARGE (DECEMBER 1, 1970) AND THE DATE OF YOUR DISCHARGE (DECEMBER 15, 1970), PREVENTED YOU FROM SUFFICIENTLY CLEANING YOUR QUARTERS IN ORDER TO PASS THE FINAL INSPECTION. CONCERNING YOUR CLAIM THAT YOUR PHYSICAL HEALTH PREVENTED YOU FROM CLEANING YOUR QUARTERS, PARAGRAPH 3A(1) ABOVE PERMITS AN OCCUPANT TO HAVE HIS QUARTERS CLEANED BY MEANS OTHER THAN HIS OWN EFFORT, PROVIDED OF COURSE THAT THE QUARTERS ARE ADEQUATELY CLEANED IN ORDER TO PASS THE FINAL INSPECTION. IN VIEW OF THIS PROVISION, IT WOULD APPEAR THAT, IN THE EVENT AN OCCUPANT IS PHYSICALLY UNABLE TO CLEAN HIS QUARTERS, THE APPROPRIATE COURSE OF ACTION WOULD BE TO OBTAIN A PRIVATE CONTRACTOR TO ACCOMPLISH THIS TASK. THUS, WE DO NOT BELIEVE THAT AN OCCUPANT'S PHYSICAL INABILITY IS A VALID BASIS TO RELIEVE HIM OF HIS OBLIGATION TO MAKE THE QUARTERS READILY ACCEPTABLE TO THE NEXT TENANT.

AS TO YOUR CONTENTION THAT YOU DID NOT HAVE SUFFICIENT TIME PRIOR TO YOUR DISCHARGE TO ADEQUATELY CLEAN YOUR QUARTERS, THE FACT THAT YOU MAY NOT HAVE HAD SUFFICIENT TIME TO CLEAN THEM, YOURSELF, CONSTITUTES NO BASIS FOR RELIEF. IN THIS CONNECTION, THE SIGNED STATEMENTS OF SEVERAL MEMBERS OF THE LANGLEY AIR FORCE BASE HOUSING OFFICE CLEARLY SHOW THAT ON DECEMBER 2, 1970, APPROXIMATELY TWO WEEKS BEFORE YOUR DEPARTURE, YOU WERE INFORMED OF THE INSPECTION PROCEDURES AND STANDARDS FOR TERMINATING FAMILY GOVERNMENT QUARTERS. THESE STATEMENTS FURTHER SHOW THAT YOU WERE ADVISED OF THE CONSEQUENCES OF DISREGARDING YOUR RESPONSIBILITIES WITH RESPECT TO THE ABOVE STANDARDS. IF IN FACT YOU DID NOT HAVE THE TIME TO CLEAN YOUR QUARTERS BY YOURSELF PRIOR TO YOUR DEPARTURE, THE ABOVE WARNINGS SHOULD HAVE PROMPTED YOU TO PROCURE THE SERVICES OF A PRIVATE CONTRACTOR.

WITH RESPECT TO YOUR CONTENTION THAT YOU HAD A RIGHT TO RELY ON THE ALLEGED VERBAL APPROVAL OF COLONEL SLAUGHTER TO LEAVE YOUR QUARTERS IN REASONABLY GOOD CONDITION BY DOING ALL YOU COULD DO BY WAY OF CLEANING, THE WEIGHT OF THE EVIDENCE IN THE RECORD, AS POINTED OUT ABOVE, INDICATES THAT YOUR QUARTERS WERE NOT IN "REASONABLY GOOD CONDITION" AT THE TIME OF THE FINAL INSPECTION. IN FACT, THERE IS SUBSTANTIAL EVIDENCE THAT YOUR QUARTERS WERE IN NOTICEABLY POOR CONDITION AT THAT TIME.

ACCORDINGLY, THE SETTLEMENT DATED FEBRUARY 5, 1973, DISALLOWING YOUR CLAIM FOR A REFUND IN THE AMOUNT OF $206.42, IS SUSTAINED.

YOU REQUEST THAT ALL DOCUMENTS BE RETURNED TO YOU IN ORDER THAT YOU MAY BE ABLE TO SEEK REVERSAL OF OUR DECISION IN THE COURT OF CLAIMS IN THE EVENT THAT WE DISALLOW YOUR CLAIM. WE ARE THEREFORE ENCLOSING COPIES OF THE PERTINENT DOCUMENTS.