Matter of:Captain Michael Stek, Jr., USN (Retired) File: B-248554 Date: November 24, 1992

Matter of:Captain Michael Stek, Jr., USN (Retired) File: B-248554 Date: November 24, 1992

MILITARY PERSONNEL Relocation Housing allowances Advances Debt collection Waiver Member of the Navy was advanced $43,548 in housing allowances at his permanent duty station overseas with which he paid 1 year of rent in advance. Two months later he was transferred under permanent change of station orders and his monthly housing allowances were terminated. Since the member acted reasonably in the matter and through no fault of his own was forced to vacate the residence because of government action, he should not be required to refund the advance payment that he used to pay his rent. Any recovery of the rent payment from the landlord should be paid to the government.

DECISION This action is in response to a request from Captain Michael Stek, Jr., USN (Retired) for reconsideration of his request for waiver of his debt of $30,868.28. The member was required to pay rent in advance but was transferred to a new permanent duty station within a short time after payment. It is our view that the member should not be required to refund the advance payment for the reasons stated below.

Captain Stek received permanent change of station orders to Cairo, Egypt, for June 1984. Since government housing was unavailable, he was required to rent local housing for himself and his dependents. Captain Stek located suitable housing, requested and was paid advance housing allowance under Volume 1 of the Joint Travel Regulations, paragraph M1100-7. The advance would be paid back from his monthly housing allowance. Local Egyptian practice required that he pay rent for 1 year in advance. For the second year of his tour in Egypt, he was paid the amount of $43,548 for the period July 1, 1985 to June 30, 1986. He then paid this amount to his landlord as required, and extended his lease.

On September 2, 1985, Captain Stek left Egypt on temporary additional duty to Bethesda, Maryland. On September 11, 1985, Captain Stek received permanent change of station orders to Bethesda. Captain Stek apparently remained in the United States, but his dependents occupied the house in Egypt until October 15, obtain a refund of the rent and although a refund is apparently required by Egyptian law under these circumstances, the landlord has refused to refund the money. Captain Stek has instituted legal proceedings, but as of yet has not received a refund of his rental payment.

In accordance with applicable regulations, the service calculated the debt and began collection of $35,080.33. The debt was reduced to $31,039.72, since Captain Stek paid $4,041.61. The Navy has since stated that the correct amount of the debt, the unrefunded rent, is $30,867.28.

The matter was forwarded to our Claims Group. By letter dated August 26, 1987, the Claims Group held that since the advance housing allowance was a legal and proper payment when made, and the debt arose later because the member was transferred to another duty station, the debt could not be considered for waiver under the provisions of 10 U.S.C. Sec. 2774.

Captain Stek has requested reconsideration of the matter. The Navy has recommended that all avenues be pursued to relieve Captain Stek of the debt since he has not received any benefit from the funds advanced to him and the debt arose due to circumstances beyond his control. The Navy Family Allowance Activity has also pointed out that Captain Stek has taken every possible step to try to obtain a refund, including use of his own funds to take legal action in Egypt. He has also promised to refund the money to the Navy should it be refunded by his landlord.

We need not consider whether waiver is appropriate in this situation since we do not believe that Captain Stek is required to refund the advanced allowance in the first instance. In various decisions of this Office we have allowed reimbursement to be made to individuals who through no fault of their own incurred expenses which were caused by government or other action. See 60 Comp.Gen. 630 (1981), 59 Comp.Gen. 612 (1980), 59 Comp.Gen. 609 (1980), 52 Comp.Gen. 69 (1972) and 51 Comp.Gen. 12 (1971). While generally these cases have arisen in travel situations when the individual could not perform his temporary duty and incurred expenses as a dire the rationale authorizing payment in those cases should be applied here to relieve Captain Stek from having to refund the funds advanced to him that are not recovered from his landlord.

Captain Stek received the advance housing allowances authorized under the regulations in effect at the time. He then used them for the purpose for which they had been provided, i.e., he entered a long term lease in accordance with the local custom. Presumably, he would have finished his tour of duty in Cairo but for the Navy ordering him to make a permanent change of station from Cairo to Bethesda, Maryland. Under these circumstances, it is our view that he is entitled to housing allowances from the date they were terminated through the end of the lease and that this amount should be used to pay back the advance. Any amounts which were deducted from his pay in partial reimbursement of the amount advanced should be refunded to him. Captain Stek must assign his rights under the lease to the government, and any amount recovered in the Egyptian court must be turned over to the government. The Navy may wish to explore the possibility of pursuing its rights under the assignment.

James F. Hinchman General Counsel

Date:

To: Director, Claims Group/GGD - Sharon Green From: General Counsel - James F. Hinchman Subject: Z-2879062 (B-248554)

Returned herewith is your file Z-2879062 and our decision Captain Michael Stek, Jr., USN (Retired), B-248554, dated today, in which we conclude the member was entitled to housing allowance for the period involved.