B-155403, NOV. 23, 1964

B-155403, NOV. 23, 1964

TO CAPTAIN RICHARD K. VOEHL, USAF:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED SEPTEMBER 16, 1964, DISALLOWING YOUR CLAIM FOR PAYMENT OF $372.65 REPRESENTING BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD AUGUST 26, 1959, TO JANUARY 21, 1960.

THE RECORD INDICATES THAT WHILE YOU WERE STATIONED AT MYRTLE BEACH AIR FORCE BASE, SOUTH CAROLINA, AND ASSIGNED PUBLIC QUARTERS, YOU VOLUNTARILY VACATED SUCH QUARTERS AND BY SPECIAL ORDER NO. A-36, DATED AUGUST 26, 1959, YOUR ASSIGNMENT TO BACHELOR OFFICERS QUARTERS WAS TERMINATED EFFECTIVE AUGUST 27, 1959. YOU SAY THAT YOU MOVED YOUR BELONGINGS TO A FELLOW OFFICER'S ROOM WHERE YOU SLEPT ON A COT UNTIL SEPTEMBER 4, 1959, AND THAT YOU OCCUPIED OFF-BASE QUARTERS AT THE TIME OF YOUR DEPARTURE TO AVIANO AIR FORCE BASE, ITALY, ON SEPTEMBER 10, 1959, FOR A PERIOD OF TEMPORARY DUTY. UPON BEING REFUSED QUARTERS ALLOWANCE ON THE DAT AFTER YOU VACATED YOUR ROOM YOU FOUND THAT IT WAS OCCUPIED BY A MAJOR OWN BY. ON SEPTEMBER 4, 1959, THE ADMINISTRATIVE OFFICER CERTIFIED THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR YOU EFFECTIVE THAT DATE AND THAT YOU WERE AUTHORIZED BASIC ALLOWANCE FOR QUARTERS IN YOUR OWN RIGHT. YOU INITIATED A MILITARY PAY ORDER DATED SEPTEMBER 10, 1959, ON THE BASIS OF THIS CERTIFICATE; HOWEVER, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WAS QUESTIONED BY THE ACCOUNTING AND FINANCE OFFICER AND IT APPEARS THAT UPON BEING INFORMED OF THE CIRCUMSTANCES INVOLVED THE CERTIFICATE OF NONAVAILABILITY OF QUARTERS WAS WITHDRAWN BY THE WING ADJUTANT. THUS, THOUGH QUARTERS WERE ASSIGNED TO YOU, YOU ELECTED TO LIVE OFF THE BASE, AND SINCE THERE EXISTS NO MILITARY PAY ORDER SUPPORTED BY A VALID CERTIFICATE BY THE BASE COMMANDER AUTHORIZING THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD INVOLVED, YOUR CLAIM WAS DISALLOWED.

SECTION 302/B) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 813, 37 U.S.C. 252/B), NOW 37 U.S.C. 403/B), PROVIDED AS FOLLOWS:

"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.'

BASIC ALLOWANCE FOR QUARTERS IS INTENDED TO PROVIDE AN OFFICER WITH A MONEY ALLOWANCE FROM WHICH HE MAY PROVIDE QUARTERS OF HIS OWN WHEN HE IS NOT FURNISHED QUARTERS BY THE GOVERNMENT. IT APPEARS THAT BECAUSE OF YOUR IMMINENT ASSIGNMENT TO TEMPORARY DUTY OVERSEAS, YOU RELINQUISHED YOUR ASSIGNED PUBLIC QUARTERS FOR THE PURPOSE OF ACQUIRING A STATUS WHICH WOULD ENTITLE YOU TO BASIC ALLOWANCE FOR QUARTERS. YOU APPARENTLY DID NOT ACQUIRE PERMANENT COMMERCIAL QUARTERS OFF THE BASE BUT OCCUPIED TEMPORARY QUARTERS FROM SEPTEMBER 4, TO 10, 1959, AFTER MOVING OUT OF YOUR FELLOW OFFICER'S ROOM AND BEFORE LEAVING ON YOUR TOUR OF TEMPORARY DUTY. THEREAFTER YOU RENTED SPACE FOR STORAGE OF YOUR PERSONAL BELONGINGS DURING YOUR TOUR OF DUTY IN ITALY.

THE ASSIGNMENT OF PUBLIC QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES IS PRIMARILY AN ADMINISTRATIVE MATTER. WHERE AS IN YOUR CASE ASSIGNED ADEQUATE QUARTERS ARE VOLUNTARILY RELINQUISHED FOR PERSONAL REASONS, TERMINATION OF THE QUARTERS ASSIGNMENT AND THE IMMEDIATE ASSIGNMENT OF SUCH VACATED QUARTERS TO ANOTHER OFFICER DOES NOT AUTOMATICALLY ESTABLISH ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER TO WHOM QUARTERS ARE REFUSED OR FOR WHOM THEY ARE UNAVAILABLE.

PARAGRAPH 12, AFR 30-6, CHANGE A, MARCH 26, 1959, PROVIDED IN PART THAT: "BASE COMMANDERS ARE LEGALLY REQUIRED TO EFFECT IMMEDIATE UTILIZATION AND OCCUPANCY OF ALL AVAILABLE PUBLIC QUARTERS BY PROMPT ASSIGNMENT TO ELIGIBLE MEMBERS.' NOTE TO PARAGRAPH 29B/6) OF THAT CHANGE PROVIDED IN PART THAT: "THERE IS NO LEGAL BASIS FOR ADEQUATE PUBLIC QUARTERS TO REMAIN VACANT WHEN ELIGIBLE PERSONNEL ARE AVAILABLE TO OCCUPY THEM.' UNDER SUCH REGULATIONS THE IMMEDIATE REASSIGNMENT OF THE QUARTERS YOU VACATED WAS REQUIRED. THE GOVERNMENT WAS NOT REQUIRED TO MAINTAIN EMPTY SINGLE QUARTERS AVAILABLE FOR ASSIGNMENT TO YOU IN ORDER TO AVOID LIABILITY FOR PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS TO YOU IN YOUR OWN RIGHT. THE GOVERNMENT'S OBLIGATION WAS FULFILLED WHEN QUARTERS WERE ASSIGNED TO YOU. IF YOU HAD REFUSED TO OCCUPY SUCH QUARTERS, YOU WOULD HAVE HAD NO RIGHT TO THE ALLOWANCE AND NO GREATER RIGHT ACCRUED TO YOU BY VOLUNTARILY VACATING THE ASSIGNED QUARTERS. THE RECORD INDICATES THAT YOUR PRINCIPAL, IF NOT SOLE, PURPOSE IN RELINQUISHING YOUR ASSIGNED QUARTERS WAS TO ESTABLISH A STATUS ON WHICH TO BASE A CLAIM FOR QUARTERS ALLOWANCE DURING THE PERIOD OF TEMPORARY DUTY OVERSEAS. IT DOES NOT APPEAR THAT AFTER WITHDRAWAL OF THE CERTIFICATE OF NONAVAILABILITY DATED SEPTEMBER 4, 1959, ANY OTHER DETERMINATION WAS MADE THAT QUARTERS WERE NOT AVAILABLE AT ANY OTHER TIME DURING THE PERIOD OF YOUR CLAIM, AND THE FACTS DISCLOSED DO NOT WARRANT A CONCLUSION THAT THE ADMINISTRATIVE ACTION IN WITHDRAWING SUCH CERTIFICATE WAS ERRONEOUS.

IN THE LIGHT OF THE CIRCUMSTANCES INVOLVED IN YOUR CASE AND SINCE NO VALID CERTIFICATE OF NONAVAILABILITY OF QUARTERS EXISTS--- PAYMENT IS NOT AUTHORIZED IN THE ABSENCE OF SUCH CERTIFICATE, SEE PARAGRAPH 20307, AFM 173-20, MARCH 30, 1955--- THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 16, 1964, IS SUSTAINED.