B-45103, MARCH 15, 1948, 27 COMP. GEN. 517

B-45103, MARCH 15, 1948, 27 COMP. GEN. 517

APPROPRIATIONS - AVAILABILITY - UTILITIES FOR NAVY OFFICERS' MESSES IN VIEW OF THE PROVISIONS OF SECTIONS 15 AND 16 OF THE ACT OF AUGUST 2, 1946, RESPECTING NAVY OFFICERS' MESSES ASHORE, APPROPRIATED FUNDS AVAILABLE FOR UTILITIES GENERALLY AT NAVAL INSTALLATIONS MAY BE USED TO PAY FOR UTILITIES CONSUMED IN OFFICERS' MESSES OF THE CLOSED TYPE; HOWEVER, SUCH FUNDS ARE NOT AVAILABLE TO PAY FOR UTILITIES CONSUMED IN CONNECTION WITH THOSE ACTIVITIES OF OFFICERS' MESSES OF THE OPEN TYPE WHICH ARE OF A SOCIAL OR RECREATIONAL NATURE, AS DISTINGUISHED FROM ACTIVITIES PRIMARILY RELATED TO THE FUNCTION OF PROVIDING ADEQUATE MEALS FOR NAVAL PERSONNEL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 15, 1948:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1947, JAG:II:RT:ED, WITH ENCLOSURES (ACKNOWLEDGED OCTOBER 21, 1947), REQUESTING A DECISION "AS TO THE LIABILITY OF A COMMISSIONED OFFICERS MESS ( OPEN) FOR THE PAYMENT FOR UTILITIES TO THE TREASURER OF THE UNITED STATES.' APPEARS THAT YOUR REQUEST FOR DECISION ARISES AS A RESULT OF A QUESTION RAISED BY REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE WHO, WHILE MAKING AN INSPECTION OF THE ACCOUNTS AND RECORDS OF LIEUTENANT S. G. HALE, SUPPLY CORPS, U.S. NAVY, NAVAL AIR TRAINING BASES, PENSACOLA, FLORIDA, FOUND THAT DURING THE PERIOD MAY, 1945, TO APRIL, 1947, THE COST OF UTILITIES (ELECTRICITY, GAS, WATER, STEAM AND SEWERAGE DISPOSAL) FOR ALL ACTIVITIES OF THE COMMISSIONED OFFICERS' MESS ( OPEN) AT THE SAID BASE WAS PAID FROM APPROPRIATED FUNDS.

IT HAS BEEN REPORTED THAT SUCH ACTIVITIES ARE: THE MUST IN BEACH OFFICERS' CLUB (WHICH INCLUDES A RESTAURANT, BAR, FOOD AND EQUIPMENT STOREROOM, ENTERTAINMENT AREA, AND LIQUOR SALESROOM); THE MUST IN BEACH OFFICERS' GOLF CLUB (WHICH INCLUDES A GOLF CLUB BAR, CAFE, AND GOLF COURSE); THE SAUFLEY FIELD OFFICERS' CLUB; THE CORROY FIELD OFFICERS' CLUB; THE CADET BAR; AND THE BUILDING 600 BAR. IT HAS BEEN REPORTED, ALSO, THAT FOR SOME YEARS PRIOR TO MAY, 1945, THE COST OF UTILITIES USED BY SUCH ACTIVITIES WAS BILLED TO THE OFFICERS' MESS AND APPARENTLY PAID FROM NONAPPROPRIATED MESS FUNDS, AND THAT SUCH BILLING AND PAYMENT WERE DISCONTINUED IN MAY, 1945, IN CONFORMITY WITH LETTER OF THE BUREAU OF NAVAL PERSONNEL REGULATIONS FOR COMMISSIONED OFFICERS' AND WARRANT OFFICERS' MESSES ASHORE), A COPY OF WHICH WAS RECEIVED WITH YOUR LETTER AND WHICH, IN PARAGRAPH 10 THEREOF, STATES THAT---

WATER, HEAT, GAS, LIGHT AND POWER MAY BE FURNISHED FROM APPROPRIATED FUNDS FOR COMMISSIONED OFFICERS' MESSES OPEN AND CLOSED.

YOU INDICATE THAT THE ABOVE-QUOTED PARAGRAPH WAS BASED ON AN ADVISORY OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED DECEMBER 13, 1944 (COPY OF WHICH WAS RECEIVED WITH YOUR LETTER), WHERE IN IT WAS HELD, IN PERTINENT PART, THAT---

* * * ALL OPERATING SERVICES, SUCH AS WATER, HEAT, ELECTRICITY, GAS, REFRIGERATION, OFFICIAL TELEPHONE, ETC., WHICH ARE NECESSARY TO THE GENERAL OPERATION OF THE BUILDING AS A NAVAL ACTIVITY, MAY BE FURNISHED AT GOVERNMENT EXPENSE, TO AN OFFICERS' MESS OF THE CLOSED TYPE. IT IS A MATTER FOR POLICY DETERMINATION WHETHER THIS PRIVILEGE SHALL ALSO BE EXTENDED TO A MESS OF THE OPEN TYPE, WHICH IS GENERALLY OPERATED FOR THE CONVENIENCE AND SOCIAL BENEFIT OF OFFICERS AND THEIR CIVILIAN GUESTS.

UNDER THE ABOVE-MENTIONED REGULATIONS ISSUED BY THE BUREAU OF NAVAL PERSONNEL, COMMISSIONED OFFICERS' MESSES ASHORE ARE DIVIDED INTO TWO CATEGORIES," OPEN" AND " CLOSED.' GUESTS MAY BE INVITED TO AN OPEN MESS UNDER CONDITIONS SPECIFIED BY THE COMMANDING OFFICER; WHILE CLOSED MESSES INCLUDE THE TYPE OF ORGANIZATIONS FORMERLY KNOWN AS BACHELOR OFFICERS' MESSES, AND THE CLASSES OF PERSONS WHO MAY USE THE FACILITIES OF A CLOSED MESS ARE RESTRICTED WITHIN NARROW LIMITS. NAVY OFFICERS' MESSES HAVE BEEN LIKENED TO ARMY POST EXCHANGES, FOR SOME PURPOSES (26 COMP. GEN. 122), AND IT IS UNDERSTOOD THAT BOTH ARMY EXCHANGES AND ARMY OFFICERS' CLUBS ARE REQUIRED, UNDER CURRENT REGULATIONS OF THE DEPARTMENT OF THE ARMY, TO PAY FOR UTILITIES CONSUMED BY THEM IN EXCESS OF A NORMAL AMOUNT,"NORMAL" BEING DEFINED AS "RELATING DIRECTLY TO PROVISIONS OR SHELTER (FUEL FOR SPACE HEATING, LIGHT FOR SPACE LIGHTING, WATER FOR DRINKING AND BATHROOM FACILITIES).'

BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 103-46, DATED MAY 3, 1946, PROMULGATING THE POLICY, APPROVED BY THE CHIEF OF NAVAL OPERATIONS, CONCERNING OFFICERS' MESSES AND CLUBS ASHORE, IS, IN PART, AS FOLLOWS:

(A) COMMISSIONED OFFICERS' MESSES ASHORE ARE ESTABLISHED FOR THE PURPOSE OF PROMOTING AND MAINTAINING THE WELL-BEING, MORALE AND EFFICIENCY OF COMMISSIONED OFFICERS. SUCH MESSES ARE CLASSIFIED AS NECESSARY WHEN OPERATED TO MAINTAIN ESSENTIAL ( BOQ) FACILITIES, AND AS DESIRABLE WHEN OPERATED TO PROVIDE SOCIAL AND RECREATIONAL NEEDS. ALL SUCH ORGANIZATIONS SHALL BE OPERATED AS AN INTEGRAL PART OF THE NAVY AND SHALL BE DESIGNATED AS COMMISSIONED OFFICERS' MESSES.

(B) ADEQUATE PROVISIONS MUST BE MADE TO PROVIDE THE MESSES NECESSARY FOR BOQ ACTIVITIES. PROVISIONS SHALL BE MADE, AS PRACTICABLE WITHIN THE LIMITS OF FUNDS AND FACILITIES AVAILABLE, TO PROVIDE MESSES FOR THE SOCIAL AND RECREATIONAL NEEDS OF OFFICERS PERMANENTLY ATTACHED TO THE LOCAL SHORE ACTIVITIES, FLEET OFFICERS, TRANSIENT OFFICERS AND INACTIVE RESERVE OFFICERS. FACILITIES FOR MESSES SHALL BE LIMITED IN SCOPE AND NUMBER TO THOSE REQUIRED FOR THE PARTICULAR LOCALITY. CONSOLIDATION OF MESS ACTIVITIES INTO EXISTING FACILITIES SHALL BE ACCOMPLISHED WHERE PRACTICABLE; NEW FACILITIES SHALL BE CONSTRUCTED (WHEN BUILDING RESTRICTIONS ARE REMOVED) AT LOCATIONS LACKING ADEQUATE FACILITIES.

(G) MESSES OPERATED TO MAINTAIN ESSENTIAL ( BACHELOR OFFICERS' QUARTERS) FACILITIES, THE OPERATION OF WHICH FULFILLS A NAVY RESPONSIBILITY TO PROVIDE HOUSING AND/OR FEEDING, SHALL BE STAFFED AND EQUIPPED ON THE BASIS OF APPROPRIATED MONIES, WHILE THOSE NOT OPERATED TO PROVIDE SUCH ESSENTIAL FACILITIES, HENCE SERVING SOCIAL AND RECREATIONAL NEEDS, SHALL BE STAFFED AND EQUIPPED ON THE BASIS OF NON APPROPRIATED FUNDS.

(H) IN THOSE MESSES THAT MAY BE CLASSIFIED BY BUPERS AS PERFORMING BOTH ESSENTIAL AND PURELY RECREATIONAL FUNCTIONS AND IN WHICH APPROPRIATED FUNDS OR PERSONNEL STAFFS MAY BE ALLOWED ON ACCOUNT OF THE "ESSENTIAL" FEATURES, THE USE OF SUCH FUNDS AND PERSONNEL WILL BE RESTRICTED TO OUTFITTING, MAINTENANCE AND SERVICE IN THAT PART OF THE ESTABLISHMENT AND FOR THOSE SERVICES WHICH ARE ESSENTIAL FUNCTIONS WITHIN THE MEANING OF PARAGRAPH (G).

(I) THE DESIGNATION OF OFFICERS' MESSES AS OPEN AND CLOSED, AS OUTLINED IN BUPERS REGULATIONS FOR COMMISSIONED OFFICERS' MESSES, SHALL CONTINUED IN EFFECT. ALL MESSES WILL CONTINUE TO BE OPERATED IN ACCORDANCE WITH REFERENCES (A) AND (B) AND SUCH OTHER REGULATIONS AS MAY BE PROMULGATED BY THE CHIEF OF NAVAL PERSONNEL.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 604, APPROVED AUGUST 2, 1946, 60 STAT. 853, THERE WAS NO PERMANENT STATUTORY PROVISION RELATING TO NAVY OFFICERS' MESSES ASHORE, AND THE ONLY STATUTORY REFERENCE TO SUCH MESSES APPEARED IN THE ANNUAL NAVAL APPROPRIATION ACTS. SEE, FOR EXAMPLE, THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1947, WHICH, UNDER THE APPROPRIATION HEADING " PAY AND SUBSISTENCE OF NAVAL PERSONNEL," CONTAINED A PROVISO AS FOLLOWS (QUOTING FROM 60 STAT. 486):

THAT, EXCEPT FOR THE PUBLIC QUARTERS OCCUPIED BY THE CHIEF OF NAVAL OPERATIONS THE SUPERINTENDENT OF THE NAVAL ACADEMY, AND THE COMMANDANT OF THE MARINE CORPS, AND MESSES TEMPORARILY SET UP ON SHORE FOR OFFICERS ATTACHED TO SEAGOING VESSELS, AVIATION UNITS BASED ON SEAGOING VESSELS (INCLUDING OFFICERS' MESSES AT NAVAL AIR STATIONS), SUBMARINE BASES, OVERSEAS BASES (INCLUDING ALASKA), MOBILE HOSPITALS, LANDING FORCES AND EXPEDITIONS, AND SUCH BACHELOR OFFICERS' QUARTERS AND MESSES AS MAY BE SPECIFICALLY DESIGNATED BY THE SECRETARY AND, IN ADDITION, NOT TO EXCEED THREE HUNDRED IN NUMBER AT SUCH OTHER PLACES AS SHALL BE DESIGNATED BY THE SECRETARY, NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY, ALLOWANCES, OR OTHER EXPENSES OF ANY ENLISTED MAN OR CIVIL EMPLOYEE PERFORMING SERVICE IN THE RESIDENCE OR QUARTERS OF AN OFFICER OR OFFICERS ON SHORE AS A COOK, WAITER, OR OTHER WORK OF A CHARACTER PERFORMED BY A HOUSEHOLD SERVANT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS PREVENTING THE VOLUNTARY EMPLOYMENT IN ANY SUCH CAPACITY OF A RETIRED ENLISTED MAN OR A TRANSFERRED MEMBER OF THE FLEET RESERVE WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, NOR THE SALE OF MEALS TO OFFICERS BY GENERAL MESSES ON SHORE AS REGULATED BY DETAILED INSTRUCTIONS FROM THE NAVY DEPARTMENT. ( ITALICS SUPPLIED.)

THE CURRENT NAVAL APPROPRIATION ACT (FISCAL YEAR 1948) CONTAINS NO REFERENCE TO OFFICERS' MESSES AS SUCH. BUT SECTIONS 15 AND 16 OF THE ACT OF AUGUST 2, 1946, SUPRA, CONTAIN THE FOLLOWING PROVISIONS (QUOTING FROM 60 STAT. 854, 855):

SEC. 15. (A) WITHIN SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, NAVAL PERSONNEL, INCLUDING MEMBERS OF THE NURSE CORPS, MAY BE FURNISHED PUBLIC QUARTERS, INCLUDING HEAT, LIGHT, WATER, AND REFRIGERATION.

(B) WHERE SUFFICIENT QUARTERS ARE NOT POSSESSED BY THE UNITED STATES, THE SECRETARY OF THE NAVY IS AUTHORIZED TO PROVIDE LODGING ACCOMMODATIONS FOR NAVAL PERSONNEL, INCLUDING NAVAL PERSONNEL ON SEA DUTY AT SUCH TIMES AS THEY MAY BE DEPRIVED OF THEIR QUARTERS ON BOARD SHIP DUE TO REPAIRS OR OTHER CONDITIONS WHICH MAY RENDER THEM UNINHABITABLE: PROVIDED, THAT SUCH ACCOMMODATIONS SHALL NOT BE OCCUPIED BY THE DEPENDENTS OF NAVAL PERSONNEL.

SEC. 16 (A) NO TABLE LINEN, DISHES, GLASSWARE, SILVER, AND KITCHEN UTENSILS SHALL BE FURNISHED FOR USE IN THE RESIDENCE OR QUARTERS OCCUPIED BY OFFICERS WITH THEIR DEPENDENTS EXCEPT FOR MESSES TEMPORARILY SET UP ON SHORE FOR BACHELOR OFFICERS AND OFFICERS ATTACHED TO SEAGOING VESSELS, TO THE FLEET AIR BASES, TO THE SUBMARINE BASES, OR TO LANDING FORCES AND EXPEDITIONS.

(B) ENLISTED NAVAL PERSONNEL MAY BE ASSIGNED TO DUTY IN A SERVICE CAPACITY IN OFFICERS' MESSES AND PUBLIC QUARTERS, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, WHERE THE SECRETARY FINDS THAT THE USE OF SUCH PERSONNEL FOR SUCH WORK IS DESIRABLE FOR MILITARY REASONS. NO PROVISIONS OF LAW SHALL BE CONSTRUED AS PREVENTING THE VOLUNTARY EMPLOYMENT IN ANY SUCH CAPACITY OF A RETIRED ENLISTED PERSON OR A TRANSFERRED MEMBER OF THE FLEET RESERVE WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT.

(C) THE SALE OF MEALS BY GENERAL MESSES AFLOAT AND ASHORE IS AUTHORIZED UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.

FROM SUCH PROVISIONS AND PRIOR RELATED PROVISIONS IN THE NAVAL APPROPRIATION ACTS FOR RECENT YEARS, IT APPEARS THAT THE CONGRESS CONTEMPLATED THAT APPROPRIATED FUNDS WOULD BE USED TO SOME LIMITED EXTENT IN CONNECTION WITH THE OPERATION OF NAVY OFFICERS' MESSES ASHORE, NOTWITHSTANDING THAT AN OFFICER OF THE NAVY IS "ENTITLED AT ALL TIMES, IN ADDITION TO HIS PAY, TO A MONEY ALLOWANCE FOR SUBSISTENCE" (SECTION 5, PAY READJUSTMENT ACT OF 1942, 56 STAT. 361), AND THAT, UNDER EXISTING LAW AND REGULATIONS, NAVY OFFICERS' MESSES ARE, IN THE WORDS OF THE ABOVE- MENTIONED OPINION OF THE JUDGE ADVOCATE GENERAL,"EXPECTED TO BE OPERATED ON A NON-PROFIT, SELF-SUSTAINING BASIS INDEPENDENT OF THE SUPPLY DEPARTMENT, ON FUNDS PAID INTO THE MESS' TREASURY BY SUCH OFFICERS.'

SINCE THE STATUTE EXPRESSLY AUTHORIZES THE ASSIGNMENT OF ENLISTED PERSONNEL (PAID FROM APPROPRIATED FUNDS), FOR SERVICE IN OFFICERS' MESSES, UNDER SPECIFIED CONDITIONS, AND EXPRESSLY PROVIDES FOR THE FURNISHING OF HEAT, LIGHT, WATER, AND REFRIGERATION FOR USE IN PUBLIC QUARTERS ASSIGNED TO NAVAL PERSONNEL, AND SINCE IT IS UNDERSTOOD THAT NAVY OFFICERS' MESSES (CLOSED) ARE OPERATED PRIMARILY TO PROVIDE MESSING FACILITIES FOR OFFICERS ASSIGNED PUBLIC QUARTERS--- THUS, IN EFFECT, SUPPLEMENTING THE FACILITIES PROVIDED IN THE PUBLIC QUARTERS--- THIS OFFICE WILL NOT OBJECT TO THE USE OF APPROPRIATED FUNDS, AVAILABLE FOR UTILITIES GENERALLY AT NAVAL INSTALLATIONS, TO PAY FOR UTILITIES CONSUMED IN NAVY OFFICERS' MESSES OF THE CLOSED TYPE. HOWEVER, NOTHING IS FOUND IN THE ACT OF AUGUST 2, 1946, SUPRA, OR ELSEWHERE IN THE STATUTES, WHICH WOULD JUSTIFY THE CONCLUSION THAT FUNDS APPROPRIATED TO PAY FOR UTILITIES CONSUMED IN THE PERFORMANCE OF NAVAL OPERATIONS AND FUNCTIONS AT NAVAL INSTALLATIONS ARE AVAILABLE TO PAY FOR UTILITIES CONSUMED IN CONNECTION WITH THOSE ACTIVITIES OF NAVY OFFICERS' MESSES OF THE OPEN TYPE WHICH ARE OF A SOCIAL OR RECREATIONAL NATURE. MOREOVER, THE FACT THAT THE ANNUAL NAVAL APPROPRIATION ACTS MAKE SPECIFIED AMOUNTS AVAILABLE FOR "WELFARE AND RECREATION OF THE NAVY * * * TO BE EXPENDED IN THE DISCRETION OF THE SECRETARY," TENDS TO NEGATIVE ANY SUGGESTION THAT THE CONGRESS INTENDS OTHER NAVAL APPROPRIATIONS TO BE USED FOR ACTIVITIES WHICH ARE PRIMARILY OF A WELFARE, SOCIAL OR RECREATIONAL NATURE. IN FACT, THE USE OF OTHER APPROPRIATIONS FOR SUCH PURPOSES WOULD CONSTITUTE, IN EFFECT, AN UNAUTHORIZED AUGMENTATION OF THE APPROPRIATION FOR WELFARE AND RECREATION OF THE NAVY. IN THIS CONNECTION, SEE 15 COMP. GEN. 390, 392; 23 COMP. GEN. 694, 697; AND SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, WHICH PROVIDES THAT---

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

ACCORDINGLY, IN SPECIFIC REPLY TO YOUR REQUEST, I HAVE TO ADVISE THAT SO LONG AS THE APPLICABLE STATUTES REMAIN UNCHANGED, THE LIABILITY OF COMMISSIONED OFFICERS' MESSES ( OPEN) FOR PAYMENTS TO THE TREASURER OF THE UNITED STATES FOR UTILITIES WOULD APPEAR TO BE COEXTENSIVE WITH THE COST OF ANY UTILITIES FURNISHED THERETO FROM APPROPRIATED FUNDS (OTHER THAN FUNDS APPROPRIATED FOR WELFARE AND RECREATION OF THE NAVY) ABOVE AND BEYOND THOSE NECESSARY TO THE NORMAL CONDUCT OF ESSENTIAL MESS ACTIVITIES IN PROVIDING ADEQUATE MEALS. THAT IS, NON-APPROPRIATED MESS FUNDS SHOULD BE CHARGED FOR UTILITIES CONSUMED IN CONNECTION WITH ANY SOCIAL, ENTERTAINMENT OR RECREATIONAL ACTIVITIES OF SUCH MESSES, AS DISTINGUISHED FROM ACTIVITIES PRIMARILY RELATED TO THE FUNCTION OF PROVIDING ADEQUATE MEALS FOR NAVAL PERSONNEL. IT IS REQUESTED THAT THIS OFFICE BE INFORMED OF ANY REIMBURSEMENT MADE BY THE COMMISSIONED OFFICERS' MESS ( OPEN) OF THE PENSACOLA NAVAL AIR TRAINING BASE ON ACCOUNT OF UTILITIES FURNISHED FROM APPROPRIATED FUNDS FOR SOCIAL AND RECREATIONAL MESS ACTIVITIES, AND OF THE COVERING INTO THE TREASURY OF ANY SUCH REIMBURSEMENT.