BNUMBER:  B-261838
DATE:  February 14, 1996
TITLE:  Lieutenant Keith A. Manson, USNR-Claim for Variable Housing
Allowance

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Matter of:Lieutenant Keith A. Manson, USNR-Claim for Variable Housing 
          Allowance

File:     B-261838

Date:February 14, 1996

DIGEST

A Navy member was sentenced to confinement by a general court-martial.  
His dependents remained at his prior duty station while he was in 
confinement.  He was not entitled to variable housing allowance (VHA) 
at the place of confinement because he was assigned there for 
confinement, not for duty as required by statute.  He was not entitled 
to VHA based on the location of his dependents because he was not 
separated from them by reason of military necessity.

DECISION

This is in response to the appeal of Claims Group settlement 
Z-2869387, May 8, 1995, which denied the claim of Lieutenant Keith A. 
Manson, USNR, for variable housing allowance (VHA) during his 
confinement at the United States Disciplinary Barracks, Fort 
Leavenworth, Kansas.  We affirm the denial of Lieutenant Manson's 
claim.

The record indicates that Lieutenant Manson was convicted in a general 
court-martial and sentenced to confinement.  He then was assigned to 
the Disciplinary Barracks and began serving his sentence in June 1993.  
While Lieutenant Manson was in confinement, his family remained in 
Georgia, where he had been stationed.  While in confinement, he 
received basic allowance for quarters (BAQ) for his dependents, but 
the Navy denied his claim for VHA.  He claims VHA for 10 months.  
Lieutenant Manson questions our decision Private Vaughn Desha, USMC, 
B-214731, Sept. 4, 1984, in which we denied VHA to a member in 
confinement.  In this regard he cites our decision Lance Corporal J.F. 
Murphy, USMC, B-223425, Nov. 3, 1986, which he considers inconsistent 
with the above decision.  He also calls our attention to SECNAV 
Instruction 7220.82, July 31, 1987, which he believes supports his 
claim for VHA.

Under 37 U.S.C.  sec.  403a, a member entitled to BAQ is also entitled to 
VHA when he is assigned to duty in an area of the United States which 
has high housing costs with respect to that member.  Since January 1, 
1985, a member with dependents may be paid VHA based on the residence 
of the dependents if he is assigned to a duty station in the United 
States and the location or circumstances of the duty station prevent 
the member and his dependents from residing together.  Under 
SECNAVINST 7220.82, supra, payment is to be allowed when "military 
necessity" causes the member to reside separately.

Our decision B-214731, supra, dealt with a member whose duty station 
was Camp Lejeune, North Carolina, until he was transferred to Camp 
Pendleton, California, for confinement.  We held that a member 
assigned to confinement not serving in a duty status is not entitled 
to VHA, since the statute requires that a member be "assigned to duty" 
in a high-cost area.

In B-223425, supra, we dealt with a member who was stationed at Camp 
Lejeune, but chose to take leave in Chicago for 7 days while awaiting 
discharge.  While he was not entitled to VHA at Camp Lejeune, he 
claimed VHA for the 7 days he spent on leave in Chicago.  We said that 
Camp Lejeune remained his duty station because he chose to go to 
Chicago on leave while awaiting discharge rather than being "assigned 
to duty" there by military authorities.  Therefore, he was not 
entitled to VHA while he was in Chicago.

We do not believe that this case supports Lieutenant Manson's claim.  
Clearly, Lieutenant Manson was not entitled to VHA at Fort Leavenworth 
for the period in question because he was assigned there for 
confinement, not for duty.  B-214731, supra.  He was also not entitled 
to VHA based on the location of his dependents in Georgia because he 
was not residing separately by reason of military necessity within the 
meaning of the statute.  As Lieutenant Manson points out, he was not 
allowed to reside with his dependents and could not commute to their 
location on a regular basis.  His assignment to Fort Leavenworth for 
confinement was the result of his conviction and not a matter of 
military necessity.  That is, it was not in furtherance of the Navy's 
military mission, as assignment to duty would be.  See SECNAVINST 
7220.82, supra.

Accordingly, Lieutenant Manson's claim for VHA is denied.

/s/ Seymour Efros
for Robert P. Murphy
General Counsel