B-192238, DECEMBER 4, 1978, 58 COMP.GEN. 136

B-192238, DECEMBER 4, 1978, 58 COMP.GEN. 136

QUARTERS ALLOWANCE - BASIC ALLOWANCE FOR QUARTERS (BAQ) - ASSIGNED TO GOVERNMENT QUARTERS - PARTIAL ALLOWANCE ENTITLEMENT A NAVY MEMBER ASSIGNED GOVERNMENT SINGLE-TYPE QUARTERS (BARRACKS), AND WHO IS INELIGIBLE FOR REGULAR BASIC ALLOWANCE FOR QUARTERS (BAQ) UNDER 37 U.S.C. 403(B), IS ENTITLED TO "PARTIAL" BAQ UNDER 37 U.S.C. 1009(D). NEITHER THE MEMBER'S TEMPORARY DUTY STATUS, BETWEEN PERMANENT DUTY STATIONS, NOR HIS PAY GRADE (E-4, LESS THAN 4 YEARS' SERVICE, OR BELOW) PRECLUDES HIM FROM RECEIVING PARTIAL BAQ.

IN THE MATTER OF SEAMAN RECRUIT STEVE R. KNERR, USN, DECEMBER 4, 1978:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JANUARY 31, 1978, FROM THE OFFICER IN CHARGE, NAVY FINANCE OFFICE, ORLANDO, FLORIDA, REQUESTING OUR DECISION AS TO THE PROPRIETY OF PAYING PARTIAL BASIC ALLOWANCE FOR QUARTERS (BAQ) TO SEAMAN RECRUIT STEVE R. KNERR, USN, XXX-XX-XXXX, WHILE ON TEMPORARY DUTY UNDER INSTRUCTION. THIS REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND FORWARDED TO US AS SUBMISSION NO. DO-N-1294.

APPARENTLY DOUBT HAS ARISEN AS TO MR. KNERR'S ENTITLEMENT TO PARTIAL BAQ BECAUSE HE IS IN PAY GRADE E-4 (LESS THAN 2 YEARS' SERVICE) OR LOWER AND HE WAS PERFORMING THE TEMPORARY DUTY BETWEEN PERMANENT DUTY STATIONS. RULE 16, TABLE 3-2-3, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), PRECLUDES PAYMENT OF BAQ IN SUCH CIRCUMSTANCES.

SECTION 403(A), TITLE 37, U.S.C. (1976), AUTHORIZES BAQ AT RATES PRESCRIBED UNDER 37 U.S.C. 1009 (1976) TO A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY. HOWEVER, SECTIONS 403(B) AND (C) BASICALLY DISALLOW BAQ TO A MEMBER WHO IS ASSIGNED ADEQUATE GOVERNMENT FURNISHED QUARTERS, OR IS ON FIELD OR SEA DUTY.

SECTIONS 1009(A) AND (B), TITLE 37, U.S.C. PERMIT THE PRESIDENT TO MAKE UPWARD ADJUSTMENTS IN MONTHLY BASIC PAY AND BASIC ALLOWANCES FOR SUBSISTENCE AND QUARTERS "WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES * * * IS ADJUSTED UPWARDS," AT THE SAME PERCENTAGE INCREASE AS IN THE GENERAL SCHEDULE. SECTION 1009(C) PERMITS THE PRESIDENT, WHENEVER HE DETERMINES IT TO BE IN THE BEST INTEREST OF THE GOVERNMENT, TO ALLOCATE THE INCREASE AMONG THE ELEMENTS OF COMPENSATION ON OTHER THAN AN EQUAL PERCENTAGE BASIS. WHEN SUCH A METHOD OF ALLOCATION IS CHOSEN, SECTION 1009(D) AUTHORIZES PAYMENT OF AMOUNTS TERMED BY THE SERVICES AS "PARTIAL BAQ" TO CERTAIN MEMBERS WITHOUT DEPENDENTS.

SECTION 1009(D) STATES:

UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, WHENEVER THE PRESIDENT EXERCISES HIS AUTHORITY UNDER SUBSECTION (C) TO ALLOCATE THE ELEMENTS OF COMPENSATION SPECIFIED IN SUBSECTION (A) ON A PERCENTAGE BASIS OTHER THAN AN EQUAL PERCENTAGE BASIS, HE MAY PAY TO EACH MEMBER WITHOUT DEPENDENTS WHO, UNDER SECTION 403(B) OR (C), IS NOT ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS, AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN (1) THE AMOUNT OF SUCH INCREASE UNDER SUBSECTION (C) IN THE AMOUNT OF THE BASIC ALLOWANCE FOR QUARTERS WHICH, BUT FOR SECTION 403(B) OR (C), SUCH MEMBER WOULD BE ENTITLED TO RECEIVE, AND (2) THE AMOUNT BY WHICH SUCH BASIC ALLOWANCE FOR QUARTERS WOULD HAVE BEEN INCREASED UNDER SECTION (B)(3) IF THE PRESIDENT HAD NOT EXERCISED SUCH AUTHORITY.

THE LEGISLATIVE PURPOSE BEHIND THIS SECTION WAS TO PAY PARTIAL BAQ TO MEMBERS WITHOUT DEPENDENTS WHO ARE INELIGIBLE FOR FULL BAQ UNDER 37 U.S.C. 403(A), DUE TO THEIR ASSIGNMENT TO GOVERNMENT QUARTERS (BARRACKS AND BACHELOR QUARTERS), OR BECAUSE THEY ARE ON FIELD OR SEA DUTY, SINCE IT IS RECOGNIZED THAT THE VALUE OF THE QUARTERS FURNISHED THEM IN SUCH CASES IS LESS THAN THE REGULAR BAQ FORFEITED. 56 COMP.GEN. 894, 897 (1977).

NO DISTINCTION BETWEEN ASSIGNMENT TO TEMPORARY OR PERMANENT DUTY STATION FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR PARTIAL BAQ WAS MADE IN THE LAW NOR APPEARS IN THE LEGISLATIVE HISTORY, NOR IS THE MEMBER'S PAY GRADE A FACTOR IN THIS CASE. IN THIS REGARD THE RESTRICTIONS IN RULE 16, TABLE 3-2-3, DODPM, APPLY ONLY TO REGULAR BAQ, NOT PARTIAL BAQ.

ACCORDINGLY, SINCE MR. KNERR WAS APPARENTLY ASSIGNED TO GOVERNMENT QUARTERS DURING HIS TEMPORARY DUTY AND WAS NOT RECEIVING REGULAR BAQ, HE IS ENTITLED TO PARTIAL BAQ.