B-155572, DEC. 31, 1964

B-155572, DEC. 31, 1964

TO MR. EUGENE R. THOMAS:

REFERENCE IS MADE TO YOUR LETTERS DATED OCTOBER 30, 1964, AND DECEMBER 10, 1964, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 1, 1964, WHICH DISALLOWED YOUR CLAIM FOR STATION ALLOWANCES AND BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD JANUARY 9, 1963 TO JANUARY 31, 1964, WHILE YOU WERE ON DUTY AT DON MUANG AIR BASE, THAILAND, INCIDENT TO ORDERS DATED DECEMBER 3, 1962. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 1, 1964, FOR THE REASON THAT THE RECORD SHOWED THAT QUARTERS, NOT DETERMINED AS INADEQUATE AND SO NONAVAILABLE AS BACHELOR OFFICER QUARTERS, WERE AVAILABLE FOR YOUR OCCUPANCY AND WOULD HAVE BEEN ASSIGNED TO YOU BUT FOR YOUR ELECTION TO LIVE OFF THE POST.

IN YOUR REQUEST FOR REVIEW YOU SAY THAT THE QUARTERS AT DON MUANG AIR BASE, THAILAND, WERE IN FACT INADEQUATE BUT THAT THE BASE COMMANDER REFUSED TO ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS FOR PERSONAL REASONS. ALSO, YOU SAY THAT THE SUBSEQUENT BASE COMMANDER DID ISSUE SUCH CERTIFICATE ON FEBRUARY 10, 1964, AND THAT THIS FACT TOGETHER WITH THE OTHER EVIDENCE WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM CLEARLY SHOWS THAT THE QUARTERS AT DON MUANG AIR BASE WERE INADEQUATE.

YOU REFER TO OUR DECISION IN 39 COMP. GEN. 561, IN WHICH WE CONSIDERED A CLAIM FOR QUARTERS ALLOWANCE UNDER SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B) (NOW CODIFIED IN 37 U.S.C. 403 (B) ( WHICH PRECLUDES PAYMENT OF QUARTERS ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING APPROPRIATE TO THEIR GRADE OR RANK AND ADEQUATE FOR THEMSELVES AND DEPENDENTS. THAT DECISION WE HELD THAT A CLAIM FOR QUARTERS ALLOWANCE WAS FOR DETERMINATION ON THE BASIS OF THE FACTS IN THE CASE RATHER THAN ON THE BASIS OF A SPECIFIC ADMINISTRATIVE AUTHORIZATION OR CERTIFICATION THAT IS CONTRARY TO THE ACTUAL FACTS, AND ALTHOUGH A CONTEMPORANEOUS AUTHORIZATION OR CERTIFICATION BY PROPER AUTHORITY OF QUARTERS AVAILABILITY OR ADEQUACY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT EXCLUSIVE WHERE FACTS ARE OTHERWISE ESTABLISHED. BASED ON THIS REASONING, YOU BELIEVE THAT OUR OFFICE MAY ALLOW YOUR CLAIM FOR PAYMENT ON THE BASIS OF THE FACTS APPEARING IN YOUR CASE EVEN THOUGH YOU ARE UNABLE TO FURNISH THE CONTEMPORANEOUS CERTIFICATE BY PROPER AUTHORITY THAT QUARTERS WERE UNAVAILABLE REQUIRED UNDER THE PROVISIONS OF AIR FORCE REGULATION NO. 34- 26.

IN OUR DECISION, 39 COMP. GEN. 561, THE RECORD CLEARLY SHOWED THAT BEFORE THE MEMBER VACATED TRANSIENT OFFICER QUARTERS WHICH HE WAS OCCUPYING AT FORT ORD, CALIFORNIA, A DETERMINATION WAS MADE BY THE BILLETING OFFICER THAT ADEQUATE QUARTERS WERE AVAILABLE FOR HIM IN NEW BACHELOR OFFICER QUARTERS; THAT HE WAS FURNISHED SUCH DETERMINATION BEFORE HE MOVED OFF THE BASE, AND THAT SUCH QUARTERS WOULD HAVE BEEN ASSIGNED TO HIM BUT FOR THE FACT THAT HE RESIDED OFF THE BASE FOR PERSONAL REASONS. SINCE IT WAS CLEARLY ESTABLISHED IN THE RECORD, THAT ADEQUATE QUARTERS WERE AVAILABLE WE CONCLUDED THAT THE ADMINISTRATIVE CERTIFICATE THAT QUARTERS WERE UNAVAILABLE WAS CONTRARY TO THE ACTUAL FACTS AND COULD NOT BE CONSIDERED CONCLUSIVE OF THE MATTER.

IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED PHOTOGRAPHS OF THE FACILITIES AT DON MUANG AIR BASE. IN YOUR COMMENTS ACCOMPANYING THE PHOTOGRAPHS YOU STATE IN PART:

"1. THE PHOTOGRAPH ABOVE, IS OF THE LATRINE FACILITIES SHARED BY FOUR OFFICERS AT DON MUANG AB, THAILAND, BOQ. * * *.

"3. THE PHOTOGRAPH ABOVE, IS OF THE SLEEPING FACILITIES SHARED BY TWO OFFICERS AT THE DON MUANG AB, THAILAND, BOQ. * * *.

"4. THE PHOTOGRAPH ABOVE, IS OF THE SLEEPING QUARTERS SHARED BY TWO OFFICERS AT DON MUANG AB, THAILAND, BOQ. * * *.'

IT IS CLEARLY SHOWN BY SUCH STATEMENTS THAT OTHER OFFICERS WERE USING THE QUARTERS AT DON MUANG AIR BASE. WHILE AIR FORCE REGULATION NO. 34-26 DATED APRIL 6, 1956, PROVIDES GUIDE LINES OF ACCEPTABILITY FOR USE BY BASE COMMANDERS IN DETERMINING ADEQUACY OF BACHELOR OFFICERS' QUARTERS, THEY ARE GIVEN DISCRETIONARY AUTHORITY IN PARAGRAPH 5 AS TO THE APPLICATION OF SUCH GUIDE LINE STANDARDS TO THEIR LOCAL CIRCUMSTANCES, AND IT IS FURTHER PROVIDED IN THE REGULATIONS THAT "ANY PUBLIC QUARTERS VOLUNTARILY ACCEPTED AND OCCUPIED BY BACHELOR OFFICERS WILL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE.' THE PRESUMPTION IN THE LATTER PROVISION UNDOUBTEDLY WAS INTENDED AS APPLICABLE ONLY TO THE INDIVIDUAL AFFECTED. HOWEVER, IF, AS YOU HAVE INDICATED, OTHER OFFICERS OCCUPIED THE FACILITIES IN QUESTION IN THE FACE OF THE INDICATED PRESUMPTION, THAT FACT MAY HAVE ENTERED INTO THE DETERMINATION BY THE COMMANDING OFFICER TO NOT ISSUE A CERTIFICATE OF NONAVAILABILITY OF QUARTERS IN YOUR CASE. THUS, WHILE YOU DID NOT CONSIDER THE QUARTERS ADEQUATE AND ELECTED TO LIVE OFF THE POST, SINCE THE RECORD SHOWS THAT OTHER OFFICERS ACTUALLY OCCUPIED THOSE QUARTERS, WE MAY NOT CONCLUDE THAT THE BASE COMMANDER'S REFUSAL TO ISSUE A CERTIFICATE THAT THE QUARTERS WERE INADEQUATE AND WERE UNAVAILABLE WAS NOT A PROPER USE OF HIS DISCRETIONARY JUDGMENT IN THE MATTER BUT WAS BASED ON A DETERMINATION THAT WAS CONTRARY TO THE ACTUAL FACTS SO AS TO COME WITHIN THE PRINCIPLE STATED IN OUR DECISION 39 COMP. GEN. 561.

UNDER THE APPLICABLE LAW AND REGULATIONS THE RIGHT OF MILITARY PERSONNEL TO TEMPORARY LODGING ALLOWANCE FOR OVERSEAS DUTY AND FOR BASIC ALLOWANCE FOR QUARTERS IS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS. ALSO, IT HAS BEEN HELD ON NUMEROUS OCCASIONS THAT WHEN ADEQUATE PUBLIC QUARTERS ARE AVAILABLE FOR OCCUPANCY BY PERSONNEL OF THE ARMED SERVICES, THOUGH NOT OCCUPIED FOR PERSONAL REASONS, NO AUTHORITY EXIST FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS. 32 COMP. GEN. 368, 369; 8 COMP. GEN. 82; COMPARE 37 COMP. GEN. 369.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF A CONTEMPORANEOUS OFFICIAL DETERMINATION THAT THE QUARTERS AT YOUR STATION WERE UNAVAILABLE BECAUSE THEY WERE NOT ADEQUATE FOR YOU, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM.