A-13900, DECEMBER 13, 1926, 6 COMP. GEN. 400

A-13900: Dec 13, 1926

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RENTAL ALLOWANCE - OFFICER OF PHILIPPINE SCOUTS SICK IN HOSPITAL WHERE AN OFFICER OF THE PHILIPPINE SCOUTS WAS ASSIGNED QUARTERS FOR HIMSELF AND DEPENDENTS AT HIS PERMANENT STATION. THE RECORD SHOWS THAT CLAIMANT'S STATUS WITH RESPECT TO QUARTERS DURING THE PERIOD INDICATED WAS AS FOLLOWS: PRIOR TO OCTOBER 12. PAYMENTS WERE MADE TO CLAIMANT FOR RENTAL ALLOWANCE AS FOLLOWS: CHART PERIOD DATE OF AMOUNT PAYMENT AUG. 21. IS A SUBSTITUTE FOR AND IS A GRANT OF A MONEY ALLOWANCE IN LIEU OF QUARTERS IN KIND. OF THE NUMBER OF ROOMS THEREIN STATED FOR EACH GRADE TO OFFICERS AT POSTS OR STATIONS WHERE THERE ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES. THIS WAS PRECEDED BY SECTION 9 OF THE ACT OF JUNE 17.

A-13900, DECEMBER 13, 1926, 6 COMP. GEN. 400

RENTAL ALLOWANCE - OFFICER OF PHILIPPINE SCOUTS SICK IN HOSPITAL WHERE AN OFFICER OF THE PHILIPPINE SCOUTS WAS ASSIGNED QUARTERS FOR HIMSELF AND DEPENDENTS AT HIS PERMANENT STATION, FORT WILLIAM MCKINLEY, P.I., PRIOR TO OCTOBER 12, 1922, THEIR VACATION ON THAT DATE BY REASON OF ORDERS SENDING THE OFFICER TO A HOSPITAL IN THE UNITED STATES, WITHOUT DETACHING HIM FROM DUTY, DID NOT TERMINATE SUCH ASSIGNMENT UNDER THE RETROACTIVE PROVISIONS OF THE ACT OF MAY 31, 1924, 43 STAT. 250, AND THE EXECUTIVE ORDER AND REGULATIONS PROMULGATED THEREUNDER, SO AS TO ENTITLE HIM TO RENTAL ALLOWANCE WHILE EN ROUTE TO AND FROM THE HOSPITAL AND UNDER OBSERVATION AND TREATMENT THEREIN, OR WHILE ASSIGNED BACHELOR QUARTERS AFTER HIS RETURN TO HIS PERMANENT STATION, HIS DEPENDENTS NOT RETURNING TO THE PHILIPPINE ISLANDS.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 13, 1926:

FIRST LIEUT. HARRY A. SANFORD, COAST ARTILLERY, PHILIPPINE SCOUTS, HAS REQUESTED RECONSIDERATION OF THE DECISION TO HIM OF MAY 25, 1926, A-13900, DISALLOWING HIS CLAIMS FOR RENTAL ALLOWANCE AND RAISING A CHARGE FOR PAYMENTS MADE TO HIM THEREFOR, DURING THE PERIOD FROM OCTOBER 12, 1922, TO JUNE 30, 1924.

THE RECORD SHOWS THAT CLAIMANT'S STATUS WITH RESPECT TO QUARTERS DURING THE PERIOD INDICATED WAS AS FOLLOWS:

PRIOR TO OCTOBER 12, 1922, ASSIGNED PUBLIC QUARTERS AT HIS PERMANENT STATION, FORT WILLIAM MCKINLEY, P.I., WITH HIS DEPENDENTS, CONSISTING OF HIS WIFE AND 5-YEAR-OLD DAUGHTER.

OCTOBER 12, 1922, TO NOVEMBER 10, 1922, EN ROUTE FROM STERNBERG GENERAL HOSPITAL, MANILA, P.I., TO LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIF., PURSUANT TO SPECIAL ORDERS NO. 220, HEADQUARTERS PHILIPPINE DEPARTMENT, DATED SEPTEMBER 21, 1922.

NOVEMBER 11, 1922, TO APRIL 24, 1923, PATIENT IN LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIF.

APRIL 25, 1923, TO MAY 29, 1923, AWAITING TRANSPORTATION BACK TO HIS PROPER STATION, FORT WILLIAM MCKINLEY, P.I., UNDER SPECIAL ORDERS NO. 87, LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIF., DATED APRIL 23, 1923.

MAY 30, 1923, TO JUNE 24, 1923, EN ROUTE FROM SAN FRANCISCO, CALIF., TO FORT WILLAIM MCKINLEY, P.I., UNDER SPECIAL ORDERS NO. 87, CITED.

JUNE 25, 1923, TO DECEMBER 10, 1923, ON DUTY AT HIS STATION, FORT WILLIAM MCKINLEY; OCCUPIED ROOM B IN QUARTERS 73, WITH ANOTHER OFFICER, AUGUST 21, 1923, TO SEPTEMBER 13, 1923, AND SEPTEMBER 16, 1923, TO DECEMBER 10, 1923, AND ALONE THE REMAINDER OF THE PERIOD.

DECEMBER 11, 1923, TO MARCH 23, 1924, PATIENT IN STERNBERG GENERAL HOSPITAL, MANILA, P.I.

MARCH 24, 1924, TO APRIL 20, 1924, EN ROUTE FROM STERNBERG GENERAL HOSPITAL, MANILA, TO LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, PURSUANT TO SPECIAL ORDERS NO. 51, HEADQUARTERS PHILIPPINE DEPARTMENT, DATED MARCH 14, 1924.

APRIL 21, 1924, TO JUNE 30, 1924, PATIENT IN LETTERMAN GENERAL HOSPITAL. LATER RETURNED TO HIS PERMANENT STATION, FORT WILLIAM MCKINLEY.

PAYMENTS WERE MADE TO CLAIMANT FOR RENTAL ALLOWANCE AS FOLLOWS:

CHART

PERIOD DATE OF AMOUNT

PAYMENT AUG. 21, 1923, TO SEPT. 13, 1923 SEPT. 17, 1923, TO DEC. 10, 1923 ----------- JUNE 23, 1925 $285.33 DEC. 11, 1923, TO MAR. 23, 1924 -------- ---- JUNE 23, 1925 274.67 NOV. 24, 1924, TO APR. 20, 1924 ------------ JAN. 5, 1926

72.00 APR. 22, 1924, TO JUNE 30, 1924 ------------ JULY 7, 1924 184.00

816.00

THE RENTAL ALLOWANCE, FIRST AUTHORIZED BY SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, IS A SUBSTITUTE FOR AND IS A GRANT OF A MONEY ALLOWANCE IN LIEU OF QUARTERS IN KIND. DECISION TO SECRETARY OF WAR, MAY 22, 1923, 21 MS. COMP. GEN. 874. THE ACT OF MARCH 2, 1907, 34 STAT. 1168, AUTHORIZED THE FURNISHING OF QUARTERS IN KIND, OF THE NUMBER OF ROOMS THEREIN STATED FOR EACH GRADE TO OFFICERS AT POSTS OR STATIONS WHERE THERE ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES. THIS WAS PRECEDED BY SECTION 9 OF THE ACT OF JUNE 17, 1878.

UNDER DATE OF DECEMBER 20, 1922, THE OFFICE OF THE CHIEF OF FINANCE RULE THAT THERE WAS NO AUTHORITY FOR THE PAYMENT OF RENTAL ALLOWANCE TO CLAIMANT, AS THE MERE VACATION OF QUARTERS REGULARLY ASSIGNED HIS DEPENDENTS CONFERS NO RIGHT TO RENTAL ALLOWANCE, WHICH WAS PAYABLE ONLY WHEN PUBLIC QUARTERS ARE NOT AVAILABLE. THIS RULING WAS IN CONSONANCE WITH THE DECISIONS OF THIS OFFICE, 2 COMP. GEN. 399; ID. 430; 3 ID. 146. THE PAYMENTS TO CLAIMANT WERE NOT MADE CURRENTLY, BUT WERE BY REASON OF HIS CLAIM UNDER THE RETROACTIVE PROVISIONS OF THE AMENDATORY ACT OF MAY 31, 1924, 43 STAT. 250, THE FIRST, FOURTH, AND FIFTH PARAGRAPHS OF SECTION 6 AS AMENDED BY SECTION 2 OF THE ACT CITED AND SECTION 7 BEING AS FOLLOWS:

SEC. 6. EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF THIS SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY, SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS. * * *

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICE HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION IN PEACE AND IN WAR SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED, INCLUDING ADJUNCT FORCES THEREOF.

SEC. 7. THAT THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM AND AFTER JULY 1, 1922.

THESE PROVISIONS ARE NOT SELF-EXECUTING, THE STATUTE REQUIRES REGULATIONS TO MAKE IT OPERATIVE AND AS TO PAYMENTS FOR THE RETROACTIVE PERIOD COVERED BY THE ACT, THE REGULATIONS MAKING THE STATUTE OPERATIVE ARE ALSO RETROACTIVE TO JULY 1, 1922. THE EXECUTIVE ORDER OF AUGUST 13, 1924, PROMULGATED GENERAL REGULATIONS, AND AS TO ASSIGNMENT OF QUARTERS PROVIDES:

11. ASSIGNMENT OF QUARTERS.---

(A) THE ASSIGNMENT OF QUARTERS TO AN OFFICER SHALL CONSIST OF THE DESIGNATION IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT CONCERNED OF QUARTERS CONTROLLED BY THE GOVERNMENT FOR OCCUPANCY WITHOUT CHARGE BY THE OFFICER AND HIS DEPENDENTS, IF ANY.

(B) EVERY OFFICER PERMANENTLY STATIONED AT A POST, YARD, OR STATION WHERE PUBLIC QUARTERS ARE AVAILABLE, WILL BE ASSIGNED THEREAT AS QUARTERS THE NUMBER OF ROOMS PRESCRIBED BY LAW FOR AN OFFICER OF HIS RANK, OR A LESS NUMBER OF ROOMS DETERMINED BY COMPETENT SUPERIOR AUTHORITY, IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT CONCERNED, TO BE ADEQUATE IN THE PARTICULAR CASE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY; WHICH REGULATIONS SHALL PROVIDE AMONG OTHER THINGS THAT QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS SHALL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE AND SHALL BE ASSIGNED ACCORDINGLY.

THE WAR DEPARTMENT REGULATIONS ARE CONTAINED IN CIRCULAR 66 OF OCTOBER 17, 1924, AND WITH RESPECT TO THE TERMINATION OF ASSIGNMENT TO QUARTERS, PROVIDES:

2. TERMINATION OF ASSIGNMENTS.---

(A) AN OFFICER'S ASSIGNMENT OF QUARTERS AT HIS PERMANENT STATION SHALL BE TERMINATED BY THE OFFICER CHARGEABLE WITH MAKING ASSIGNMENTS OF QUARTERS THEREAT UNDER THE FOLLOWING CONDITIONS, AND * * * UNDER NO OTHER CONDITIONS, UNLESS UPON SPECIFIC ORDER OF THE ADJUTANT GENERAL:

(1) WHEN THE POST, CAMP, OR STATION CEASES TO BE THE PERMANENT STATION OF THE OFFICER CONCERNED.

(2) WHEN THE QUARTERS ASSIGNED TO HIM ARE REQUIRED FOR ASSIGNMENT TO AN OFFICER, SUPERIOR IN RANK.

(3) ON HIS DEPARTURE FROM HIS PERMANENT STATION ON FIELD OR SEA DUTY, ON TEMPORARY DUTY, TO HOSPITAL FOR OBSERVATION OR TREATMENT, ON LEAVE OF ABSENCE OR ON SICK LEAVE, UNDER ORDERS WHICH RELIEVE HIM FROM DUTY AT HIS PERMANENT STATION DURING OR AT THE TERMINATION OF HIS ABSENCE, UNLESS THE OFFICER FILES REQUEST TO THE CONTRARY.

APPLYING THESE REGULATIONS TO THE FACTS IN THIS CASE, THE CLAIMANT PRIOR TO OCTOBER 12, 1922, WAS ASSIGNED PUBLIC QUARTERS AT HIS PERMANENT STATION, FORT WILLIAM MCKINLEY, AND HE ACTUALLY OCCUPIED THEM WITH HIS DEPENDENTS, WHICH CONSTITUTED AN ASSIGNMENT OF ADEQUATE QUARTERS AT HIS PERMANENT STATION. THAT STATION HAS CONTINUED TO BE HIS PERMANENT STATION DURING THE PERIOD COVERED BY THE PAYMENTS HERE IN QUESTION, AND THE REGULATIONS CONTAIN NO AUTHORITY FOR THE TERMINATION OF THAT ASSIGNMENT ON HIS DEPARTURE FOR OBSERVATION AND TREATMENT AT GOVERNMENT HOSPITALS, AS HIS ORDERS DID NOT RELIEVE HIM FROM DUTY THERE, AND HE ACTUALLY RETURNED TO THE SAME STATION AND RESUMED HIS DUTIES AFTER EACH PERIOD OF ABSENCE IN THE HOSPITALS. THAT IS, THE LAW AND REGULATIONS CONTEMPLATE THAT WHERE AN OFFICER HAS BEEN ASSIGNED QUARTERS FOR HIMSELF AND DEPENDENTS HE MAY NOT BY HIS OWN CHOICE SECURE RENTAL ALLOWANCE BY MERELY VACATING THE QUARTERS.

THE PAYMENTS MADE TO CLAIMANT WHILE EN ROUTE TO AND FROM THE HOSPITALS AND UNDERGOING OBSERVATION AND TREATMENT THEREIN WERE INCORRECT, AS HIS STATUS DURING THE ENTIRE PERIOD SO FAR AS RENTAL ALLOWANCE IS CONCERNED WAS THAT OF AN OFFICER ASSIGNED AT HIS PERMANENT STATION ADEQUATE QUARTERS FOR OCCUPANCY OF HIMSELF AND DEPENDENTS. IT IS TO BE NOTED THE ARMY AUTHORITIES CORRECTLY DETERMINED THAT HE WAS NOT ENTITLED TO RENTAL ALLOWANCE MERELY BECAUSE HIS DEPENDENTS DID NOT RETURN TO THE PHILIPPINE ISLANDS WITH HIM. THE PAYMENTS WHILE OCCUPYING BACHELOR QUARTERS JOINTLY WITH ANOTHER OFFICER ARE SUBJECT TO THE SAME OBJECTION, AND IN ADDITION THOSE PARTICULAR PAYMENTS WERE MADE ON THE MISTAKEN VIEW OF THE COMMANDING GENERAL, PHILIPPINE ISLANDS, THAT AN OFFICER MAY BE QUARTERED IN PUBLIC QUARTERS, AND IN ADDITION PAID RENTAL ALLOWANCE, BECAUSE HE WAS OCCUPYING PERSONALLY A HALF OF A ROOM. IN THIS RESPECT THIS CASE IS SIMILAR TO THE CASE OF CHAPLAIN WILLIAM W. EDEL, UNITED STATES NAVY, DECIDED OCTOBER 30, 1926, A-14840, AND THE CASE OF CAPT. E. M. PEIZOTTO, DECIDED NOVEMBER 29, 1926, A-14722.

THE PAYMENT MADE TO CLAIMANT ON VOUCHER 466, JUNE, 1925, ACCOUNTS OF R. J. KENNEDY FOR RENTAL ALLOWANCE FROM AUGUST 21, 1923, TO SEPTEMBER 13, 1923, AND FROM SEPTEMBER 17, 1923, TO DECEMBER 10, 1923, IN THE AMOUNT OF $285.33 WAS INADVERTENTLY OMITTED FROM THE CHARGE RAISED BY THE DECISION OF MAY 25, 1926, WHICH DECISION UPON RECONSIDERATION IS HEREBY MODIFIED SO AS TO INCLUDE SUCH ITEM, MAKING THE TOTAL DISALLOWANCE $816.

TREASURER'S CHECK NO. 93938, ISSUED JANUARY 25, 1926, IN FAVOR OF CLAIMANT IN THE AMOUNT OF $72 FOR RENTAL ALLOWANCE FROM MARCH 24 TO APRIL 20, 1924, WHILE EN ROUTE FROM STERNBERG GENERAL HOSPITAL TO LETTERMAN GENERAL HOSPITAL, WAS RETURNED APRIL 24, 1926, TO THE TREASURER OF THE UNITED STATES UNCLAIMED AND WAS REMAILED TO CLAIMANT BY THE TREASURER,JULY 23, 1926, OVER TWO MONTHS AFTER THE DECISION TO HIM OF MAY 25, 1926, REVERSING THE SETTLEMENT IN WHICH SUCH AMOUNT WAS ALLOWED. NOTWITHSTANDING THIS FACT CLAIMANT CASHED THE CHECK; A STOPPAGE WAS PLACED WITH THE TREASURER OF THE UNITED STATES AGAINST THE PAYMENT THEREOF, AND THE AMOUNT REPRESENTED THEREBY IS NOW IN PROCESS OF RECLAMATION THROUGH THE INDORSERS THEREON AND WHEN COMPLETED $72 OF THE ABOVE CHARGE WILL BE REMOVED.