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A MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO CONFINEMENT TO A GUARDHOUSE OR BRIG IS ASSIGNED GOVERNMENT QUARTERS. WILL BE REGARDED AS HAVING THE ASSIGNMENT TO GOVERNMENT QUARTERS CONTINUED AFTER CONFINEMENT. THERE BEING NO EXPENSE INCURRED BY THE MEMBER FOR QUARTERS WHILE IN CONFINEMENT EVEN THOUGH HE IS NOT PERMITTED TO OCCUPY HIS ASSIGNED QUARTERS. SO THAT THE PRACTICE OF NOT CREDITING THE QUARTERS ALLOWANCE DURING THE PERIOD THE ASSIGNMENT REMAINS IN EFFECT WILL NOT BE QUESTIONED. IN THE EVENT THE ASSIGNMENT TO QUARTERS IS TERMINATED. WHEN HE IS CONFINED UNDER ARREST OR RESTRICTED TO THOSE SAME QUARTERS MAY NOT HAVE THE ACT OF CONFINEMENT ALONE REGARDED AS TERMINATING THE ASSIGNMENT TO ADEQUATE QUARTERS SO THAT DENIAL OF CREDIT FOR QUARTERS ALLOWANCE UPON CONFINEMENT IN SUCH CASE WOULD BE PROPER.

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B-142690, JUNE 27, 1961, 40 COMP. GEN. 715

MILITARY PERSONNEL - QUARTERS ALLOWANCE - CONFINEMENT IN GUARDHOUSE, ETC. A MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO CONFINEMENT TO A GUARDHOUSE OR BRIG IS ASSIGNED GOVERNMENT QUARTERS, WHICH ASSIGNMENT PRECLUDES CREDIT OF BASIC ALLOWANCE FOR QUARTERS PURSUANT TO SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B), WILL BE REGARDED AS HAVING THE ASSIGNMENT TO GOVERNMENT QUARTERS CONTINUED AFTER CONFINEMENT, THERE BEING NO EXPENSE INCURRED BY THE MEMBER FOR QUARTERS WHILE IN CONFINEMENT EVEN THOUGH HE IS NOT PERMITTED TO OCCUPY HIS ASSIGNED QUARTERS, SO THAT THE PRACTICE OF NOT CREDITING THE QUARTERS ALLOWANCE DURING THE PERIOD THE ASSIGNMENT REMAINS IN EFFECT WILL NOT BE QUESTIONED; HOWEVER, IN THE EVENT THE ASSIGNMENT TO QUARTERS IS TERMINATED, PAYMENT OF THE QUARTERS ALLOWANCE WOULD BE AUTHORIZED. A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS WHO HAS BEEN ASSIGNED BACHELOR OFFICE QUARTERS, WHICH ASSIGNMENT PRECLUDES CREDIT OF BASIC ALLOWANCE FOR QUARTERS PURSUANT TO SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B), WHEN HE IS CONFINED UNDER ARREST OR RESTRICTED TO THOSE SAME QUARTERS MAY NOT HAVE THE ACT OF CONFINEMENT ALONE REGARDED AS TERMINATING THE ASSIGNMENT TO ADEQUATE QUARTERS SO THAT DENIAL OF CREDIT FOR QUARTERS ALLOWANCE UPON CONFINEMENT IN SUCH CASE WOULD BE PROPER.

TO THE SECRETARY OF DEFENSE, JUNE 27, 1961:

REFERENCE IS MADE TO LETTER OF MAY 19, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE (1COMPTROLLER), REQUESTING DECISION WHETHER MEMBERS OF THE UNIFORMED SERVICES, WITHOUT DEPENDENTS AND OCCUPYING GOVERNMENT QUARTERS, MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS FOR PERIODS OF CONFINEMENT IN A GUARDHOUSE OR BRIG, WHEN THE MEMBER WAS NOT IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS IMMEDIATELY PRECEDING THE DATE OF CONFINEMENT. DECISION IS ALSO REQUESTED AS TO WHETHER A MEMBER, IN THE SAME CIRCUMSTANCES, MAY BE SO CREDITED WHEN HE IS NOT CONFINED BUT IS MERELY RESTRAINED UNDER ARREST OR RESTRICTION IN BACHELOR OFFICER QUARTERS.

THE QUESTIONS, WHICH ARE DISCUSSED AND SET FORTH IN COMMITTEE ACTION NO. 284 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, ARE AS FOLLOWS:

1. WOULD THE ANSWERS CONTAINED IN B-142690 DATED SEPTEMBER 16, 1960, TO QUESTIONS 1 THROUGH 10 OF COMMITTEE ACTION 267, BE THE SAME IF THE MEMBER WAS NOT IN RECEIPT OF A CREDIT OF BASIC ALLOWANCE FOR QUARTERS AT THE RATE PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS IMMEDIATELY PRECEDING THE DATE OF CONFINEMENT?

2. AN OFFICER WITHOUT DEPENDENTS QUARTERED IN BOQ (NOT ENTITLED TO BAQ) IS CHARGED WITH A VIOLATION OF THE UNIFORMED CODE OF MILITARY JUSTICE, INSTEAD OF BEING CONFINED, IS RESTRAINED IN A STATUS OF ARREST OR RESTRICTION IN LIEU OF ARREST IN THE BOQ UNDER CONDITIONS WHICH LIMIT HIS FREEDOM OF INGRESS AND EGRESS. TO WHAT EXTENT IF ANY WOULD SUCH A SITUATION CHANGE THE ANSWERS IN B-142690?

THE BASIC CONCLUSION IN THE DECISION OF SEPTEMBER 16, 1960, 40 COMP. GEN. 169, WAS THAT THE SERVICE MEMBER--- BEING PAID A BASIC ALLOWANCE FOR QUARTERS PRIOR TO CONFINEMENT--- WAS ENTITLED TO SUCH ALLOWANCE DURING THE PERIOD OF CONFINEMENT DESCRIBED IN QUESTION 1, BECAUSE "QUARTERS" ORDINARILY PROVIDED FOR CONFINEMENT IN A GUARDHOUSE OR BRIG MAY NOT BE PROPERLY REGARDED AS ADEQUATE QUARTERS ASSIGNED TO AN OFFICER APPROPRIATE TO HIS RANK WITHIN THE MEANING OF SECTION 302 OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 252. AS TO THE MATTER OF WHETHER THE SLEEPING ACCOMMODATIONS PROVIDED IN A GUARDHOUSE OR BRIG MAY BE REGARDED AS "ANY QUARTERS" WITHIN THE PURVIEW OF PARAGRAPH 3 OF EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, 16 F.R. 417, WE EXPRESSED THE BELIEF THAT THE QUARTERS THERE MENTIONED ARE QUARTERS WHICH ARE VOLUNTARILY OCCUPIED. SAID FURTHER THAT A MEMBER WHO ELECTS TO OCCUPY INADEQUATE QUARTERS SHOULD NOT THEREAFTER BE PERMITTED TO URGE THEIR INADEQUACY AS A BASIS FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, BUT, THAT THE SAME CONSIDERATIONS DO NOT APPLY WHERE A MEMBER IS FORCED TO OCCUPY QUARTERS AGAINST HIS WILL DURING A PERIOD OF CONFINEMENT IN A GUARDHOUSE OR BRIG.

THE COMMITTEE DISCUSSION OF THE PROBLEM HERE INVOLVED INDICATES THAT IT IS A PRACTICE OF LONG STANDING IN THE SERVICES NOT TO CREDIT BASIC ALLOWANCE FOR QUARTERS UNDER CIRCUMSTANCES OF CONVICTION OR ACQUITTAL IF THE MEMBER IS QUARTERED IN BACHELOR OFFICER QUARTERS OR BARRACKS IMMEDIATELY PRIOR TO CONFINEMENT. IT IS STATED THAT THIS PRACTICE IS CONSISTENT WITH THE THEORY THAT THE MEMBER CARRIES INTO CONFINEMENT THE SAME ENTITLEMENT HE HAD JUST BEFORE HE WENT IN, AND THAT THE SERVICES ARE ALSO INCLINED TO CONSIDER CONFINEMENT IN A GUARDHOUSE OR BRIG, OR ANY SERVICE CONFINEMENT FACILITY AS OCCUPANCY OF GOVERNMENT QUARTERS. IT IS REPORTED THAT UNDER NORMAL PROCEDURES IN THE SERVICES IN ALL CASES IN WHICH A MEMBER WITHOUT DEPENDENTS IS PAID A BASIC ALLOWANCE FOR QUARTERS, GOVERNMENT QUARTERS ARE EITHER NOT MAINTAINED OR ARE UNAVAILABLE; THAT THE FACT OF NONASSIGNMENT IS CERTIFIED BY THE COMMAND INVOLVED; AND THAT IN THE ABSENCE OF SUCH APPROPRIATE SUBSTANTIATION UNDER THE REGULATIONS BASIC ALLOWANCE FOR QUARTERS WOULD NOT BE PROPERLY PAYABLE. IT IS REPORTED FURTHER THAT UPON THE REMOVAL OF THE MEMBER WITHOUT DEPENDENTS FROM BACHELOR OFFICER QUARTERS OR BARRACKS TO THE CONFINEMENT FACILITY, THE ABOVE CERTIFICATION IS NOT MADE. SUCH WITHHOLDING OF CERTIFICATION ALSO IS STATED TO BE CONSISTENT WITH THE THEORY THAT THE MEMBER CARRIES INTO CONFINEMENT THE SAME ENTITLEMENT HE HAD JUST BEFORE HE WENT IN AND THAT THE MEMBER, ALTHOUGH IN DIFFERENT QUARTERS, CONTINUES TO OCCUPY GOVERNMENT QUARTERS.

SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252 (B), PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS IF WITH DEPENDENTS. A MEMBER WITHOUT DEPENDENTS WHO WAS LIVING IN ASSIGNED GOVERNMENT QUARTERS PRIOR TO THE COMMENCEMENT OF HIS CONFINEMENT IN A GUARDHOUSE OR BRIG WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS, BECAUSE OF THE FACT OF SUCH ASSIGNMENT. IT IS OUR VIEW THAT UNLESS SUCH ASSIGNMENT ACTUALLY IS TERMINATED PRIOR TO OR DURING THE PERIOD OF CONFINEMENT, THE ALLOWANCE IS NOT PROPERLY PAYABLE DURING THAT PERIOD. WHILE HE IS NOT PERMITTED TO OCCUPY HIS ASSIGNED QUARTERS WHILE SO CONFINED, HE WILL INCUR NO EXPENSES FOR QUARTERS DURING THAT PERIOD. IN SUCH CIRCUMSTANCES, AND IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION TO THE CONTRARY, PAYMENT OF THE ALLOWANCE APPEARS TO BE OF SUCH DOUBTFUL VALIDITY THAT WE WILL NOT QUESTION THE ADMINISTRATIVE PRACTICE OF NOT CREDITING THE ALLOWANCE, INSOFAR AS SUCH PRACTICE RELATES TO THE PERIOD THE ASSIGNMENT REMAINS IN EFFECT. IN THE EVENT THE ASSIGNMENT TO QUARTERS IS TERMINATED, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WOULD BE AUTHORIZED.

THE SAME CONSIDERATIONS APPEAR TO BE INVOLVED IN QUESTION 2. NOT ONLY WAS THERE AN ASSIGNMENT OF ADEQUATE GOVERNMENT QUARTERS, BUT THE MEMBER CONTINUED TO OCCUPY SUCH QUARTERS DURING THE PERIOD INVOLVED. WHILE, IN THE DECISION OF SEPTEMBER 16, 1960, WE VIEWED THE LACK OF FREEDOM OF USE AND OF INGRESS AND EGRESS AS AN IMPORTANT FACTOR IN DETERMINING WHETHER A CONFINEMENT FACILITY SUCH AS A GUARDHOUSE COULD BE REGARDED AS ADEQUATE GOVERNMENT QUARTERS, THE SAME REASONING MAY NOT BE APPLIED HERE SINCE THE QUARTERS OCCUPIED WERE ASSIGNED AS, AND ACTUALLY WERE, ADEQUATE GOVERNMENT QUARTERS PRIOR TO THE PERIOD OF CONFINEMENT. THE ACT OF CONFINEMENT DID NOT TERMINATE THE ASSIGNMENT IN ANY WAY AND THE FACT OF CONFINEMENT ALONE FURNISHES NO BASIS FOR THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS.

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