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192.00 Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) - Payment of basic allowance for quarters

Board Members' Recommendation and Decision on Appeal of: XXXX Xxxxxxxxxxxxxx, Xxxxxxxxxxxxxxxxxxxxxxxxxx, Case Number 226-01

Officer's Appeal

Xxxxxxxxxxxx appeal was originally submitted on Xxxxxxx, 2000 (it was resubmitted and received on Xxxxxxx, 2001) asking the Board to return $6,964.97 in Basic Allowance for Quarters (BAQ) deducted from his pay and that all documents related to overpayment of BAQ be removed from his record. When the error or injustice occurred, he was assigned to the xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxx. He had retired from the commissioned corps when he appealed.

Arguments by Officer

On Xxxxxxxxxx, 1990, he reported to the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, his new duty station. He was receiving BAQ when he reported. His dependents were not with him nor were they en route so he was assigned to bachelor rental quarters and paid rent on a daily basis. According to the PHS Quarters Management Handbook (1985):

When an officer's dependents are not en route or do not accompany the member to the permanent duty station, the officer will be assigned to bachelor quarters and receive basic allowance for quarters.

Title 37, Pay and Allowances of the Uniformed Services, 403, Page 303 (e) states:

Notwithstanding any other law (including those restricting the occupancy of housing facilities under the jurisdiction of the department or agency of the United States by members and their dependents of the armed forces above specified grades, or by members, and their dependents of the National Oceanic and Atmospheric Administration and the Public Health Service, a member of a uniformed service and his dependents may be accepted as tenants in, and may occupy on a rental basis, any of those housing facilities, other than public quarters constructed or designated for assignment to and occupancy without charge by such a member, and his dependents, if any. Such a member may not, because of his occupancy under this subsection, be deprived of any money allowance to which he is otherwise entitled for the rental of quarters.

On Xxxxxxxxxx 1991, he moved out of bachelor rental quarters into transient rental quarters and continued to pay rent on a daily basis (his dependents still were not with him nor were they en route) . DCP informed him on Xxxxxxxxxx, 1991 that since Xxxxxxxxxx, 1990, the date he began occupying bachelor quarters, he had been overpaid BAQ through Xxxxx, 1991 and that BAQ would discontinue as of Xxxxxxx, 1991 (his xxx had joined him on Xxxxxxx, 1991 and his xxxx at the end of Xxxx 1991) .

Arguments by Division of Commissioned Personnel

DCP concluded that the record did not document or give reason why Xxxxxxxxxxx should have been denied BAQ. DCP expressed no objection to granting the relief requested. DCP did not have the legal authority to issue a retroactive order effecting a correction to Xxxxxxxxxxxx record due to a Comptroller General's ruling denying the commissioned corps the authority to issue a retroactive personnel order altering an officer's entitlement to pay. DCP recommended that the Board "correct the record" to show that Xxxxxxxxxxx occupied rental quarters and was entitled to BAQ.

Board Recommendation on Officer's Appeal

The Board members met on Xxxx xx, 2001. They agreed, in the interest of justice, to waive the three year statute of limitations for appealing to the Board after discovery of an error or injustice. They recommended that Xxxxxxxxxxxx appeal be upheld, that his record be corrected to show he occupied rental quarters and was entitled to BAQ, that he be reimbursed $6,964.97, and that all documents related to overpayment of BAQ be removed from his record.

Board Staff:

Norman E. Prince, Jr. Staff Director
Program Support Center Executive Director
Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D.
Executive Secretary
Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Joseph H. Autry, III.
M.D. Chairperson of the Board and Acting Administrator for SAMHSA

We certify that the Board members' recommendations and corrections to the record reflect their views and actions after considering Xxxxxxxxxxxx appeal and that they have concurred in this matter.

We certify, further, that the Case Record, shown as an Attachment, contains all documentation received on Xxxxxxxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by Board members.

Finally, we certify that a quorum was present on Xxxx xx, 2001 when Xxxxxxxxxxxx appeal was considered.

If you approve, please sign below.

Joseph H. Autry, III
M.D. Chairperson of the Board and Acting Administrator for SAMHSA

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendations and corrections to the record on Xxxxxxxxxxxx appeal received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-76 as amended), and 42 U.S.C. 213a(a) (12), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1552, and empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision and correct his record as stipulated. He is entitled to review his record to ensure compliance with this decision.

Curt L. Coy
Director
Program Support Center

Attachment: Case Record

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.