A-19924, A-19999, A-20001, AUGUST 23, 1928, 8 COMP. GEN. 82

A-19924,A-20001,A-19999: Aug 23, 1928

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THAT FOR PRACTICAL PURPOSES MESSING FACILITIES OR QUARTERS WERE NOT AVAILABLE FOR THE MAN FOR WHOM PAYMENT OF THE ALLOWANCE IS AUTHORIZED. GIVE NO RIGHT TO AN ENLISTED MAN TO PAYMENT OF A MONEY ALLOWANCE FOR SUBSISTENCE OR QUARTERS MERELY ON A SHOWING THAT NONE WERE FURNISHED HIM. THE DETERMINATION BY THE DEPARTMENT CONCERNED THAT EITHER OR BOTH WERE AVAILABLE IS CONCLUSIVE OF THE RIGHTS OF THE MAN. 1928: THERE ARE FOR CONSIDERATION APPLICATIONS BY ENLISTED MEN OF THE ARMY AND NAVY FOR REVIEW OF SETTLEMENTS IN WHICH WERE DISALLOWED THEIR CLAIMS FOR DIFFERENCES BETWEEN AMOUNTS PAID THEM AS COMMUTATION OF RATIONS AND ALLOWANCE FOR SUBSISTENCE ESTABLISHED BY SECTION 11 OF THE ACT OF JUNE 10.

A-19924, A-19999, A-20001, AUGUST 23, 1928, 8 COMP. GEN. 82

QUARTERS AND SUBSISTENCE ALLOWANCES - ARMY AND NAVY ENLISTED MEN MONEY ALLOWANCE FOR SUBSISTENCE OR QUARTERS UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, MAY NOT BE PAID IN THE ABSENCE OF AN AUTHORIZATION FOR SUCH PAYMENT BY THE DEPARTMENT CONCERNED, ISSUED CONTEMPORANEOUSLY AFTER DETERMINATION IN ACCORDANCE WITH ITS REGULATIONS, THAT FOR PRACTICAL PURPOSES MESSING FACILITIES OR QUARTERS WERE NOT AVAILABLE FOR THE MAN FOR WHOM PAYMENT OF THE ALLOWANCE IS AUTHORIZED. SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, AND THE REGULATIONS MADE PURSUANT THERETO, GIVE NO RIGHT TO AN ENLISTED MAN TO PAYMENT OF A MONEY ALLOWANCE FOR SUBSISTENCE OR QUARTERS MERELY ON A SHOWING THAT NONE WERE FURNISHED HIM, THE PURPOSE OF THE STATUTE BEING TO PROVIDE FOR PAYMENT WHERE THE DUTY ASSIGNMENT OF THE MAN MAKES IMPRACTICAL THE FURNISHING OF THE RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED, AND THE DETERMINATION BY THE DEPARTMENT CONCERNED THAT EITHER OR BOTH WERE AVAILABLE IS CONCLUSIVE OF THE RIGHTS OF THE MAN.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 23, 1928:

THERE ARE FOR CONSIDERATION APPLICATIONS BY ENLISTED MEN OF THE ARMY AND NAVY FOR REVIEW OF SETTLEMENTS IN WHICH WERE DISALLOWED THEIR CLAIMS FOR DIFFERENCES BETWEEN AMOUNTS PAID THEM AS COMMUTATION OF RATIONS AND ALLOWANCE FOR SUBSISTENCE ESTABLISHED BY SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, AND THE EXECUTIVE ORDER OF JUNE 19, 1922, ISSUED THEREUNDER, AND IN THE CASES OF TWO OF THE CLAIMANTS FOR ALLOWANCES FOR RENTAL OF QUARTERS IN ADDITION, AS FOLLOWS:

A-19924--- TECHNICAL SERGT. WINSTON H. WILKINSON, ORDNANCE DEPARTMENT, UNITED STATES ARMY, SETTLEMENT NO. 0175535, MAY 4, 1927. CLAIM FOR DIFFERENCE BETWEEN $1.20 PER DAY ALLOWANCE FOR SUBSISTENCE AND COMMUTATION OF RATIONS 33 CENTS PER DAY (GARRISON RATION PLUS 10 PERCENT) JULY 1, 1925, TO MARCH 22, 1926, WHILE STATIONED AT COLUMBUS GENERAL RESERVE DEPOT, COLUMBUS, OHIO, AND ASSIGNED PUBLIC QUARTERS FOR HIMSELF AND FAMILY.

A-19999--- EMILO ANGELES, YEOMAN, 1ST CLASS, UNITED STATES NAVY, SETTLEMENT NO. 0164451, FEBRUARY 18, 1927. CLAIM FOR DIFFERENCE BETWEEN 50 CENTS PER DAY COMMUTATION OF RATIONS AND ALLOWANCES FOR QUARTERS AND SUBSISTENCE MARCH 18, 1924, TO DECEMBER 31, 1924, $1.95 PER DAY, AND IN ADDITION QUARTERS ALLOWANCE JANUARY 1, 1925, TO APRIL 8, 1926, 75 CENTS PER DAY WHILE ON DUTY IN THE DISBURSING OFFICE OF THE NAVAL STATION AT GUAM.

A-20001--- MARCOS CAJULIAS MATA, YEOMAN, 1ST CLASS, UNITED STATES NAVY, SETTLEMENT NO. 0124726, DECEMBER 9, 1926. CLAIM FOR DIFFERENCE BETWEEN 50 CENTS PER DAY COMMUTATION OF RATIONS AND AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE MARCH 17, 1924, TO DECEMBER 31, 1924, $1.95 PER DAY, AND IN ADDITION ALLOWANCE FOR QUARTERS AT 75 CENTS PER DAY JANUARY 1 TO DECEMBER 15, 1925, WHILE ON DUTY IN THE DISBURSING OFFICE OF THE NAVAL STATION AT GUAM.

IN EACH OF THE CASES THE MAN, IMMEDIATELY PRIOR TO THE DATE FOR WHICH HE MAKES CLAIM, WAS BEING PAID THE ALLOWANCE FOR SUBSISTENCE AND, IN THE CASE OF THE TWO NAVAL ENLISTED MEN, THE ALLOWANCE FOR QUARTERS. EFFECTIVE ON THE DATE OF THE COMMENCEMENT OF THE PERIOD FOR WHICH THE ALLOWANCES WERE CLAIMED THE ALLOWANCES WERE DISCONTINUED AND PAYMENT WAS MADE OF COMMUTATION OF RATIONS ONLY. ALL ARE MARRIED, ALL WERE RESIDING WITH THEIR FAMILIES; IN THE CASE OF SERGEANT WILKINSON IN QUARTERS FURNISHED BY THE UNITED STATES APPARENTLY AT HIS STATION. THE BASIS OF THEIR CLAIM IS THAT CONDITIONS HAD NOT CHANGED, MESSING FACILITIES WERE NO MORE NOR NO LESS AVAILABLE FOR THEM DURING THE PERIOD THEY WERE NOT PAID THE ALLOWANCE FOR SUBSISTENCE THAN DURING THE PERIOD THEY WERE PAID THE ALLOWANCE, AND IN THE CASE OF ANGELES AND MATA QUARTERS WERE NO MORE NOR NO LESS AVAILABLE DURING THE PERIOD COVERED BY THEIR CLAIM THAN IMMEDIATELY PRIOR THERETO. ON SUCH A STATE OF FACTS THEY, AS ENLISTED MEN OF THE ARMY AND NAVY, HAVE FILED CLAIMS WITH THIS OFFICE IN EFFECT ASKING, AND NECESSARILY REQUIRING, A DETERMINATION BY THIS OFFICE WHETHER IN FACT MESSING FACILITIES OR QUARTERS COULD HAVE BEEN FURNISHED BY THE ARMY OR NAVY HAD THE CLAIMANTS DESIRED TO BE FURNISHED SUBSISTENCE AND/OR QUARTERS IN KIND INSTEAD OF LIVING SEPARATELY WITH THEIR FAMILIES.

IT APPEARS THAT IN BOTH SERVICES THERE HAD BEEN LIBERALITY IN AUTHORIZING PAYMENT OF THE ALLOWANCES TO MARRIED NONCOMMISSIONED OFFICERS OR MARRIED PETTY OFFICERS ON SHORE DUTY WHO WERE RESIDING WITH THEIR FAMILIES; THAT THE NECESSITY FOR CONSERVING FUNDS REQUIRED A REDUCTION IN THE NUMBER OF MEN PERMITTED TO DRAW THE ALLOWANCES, AND IN EACH OF THE CASES THE CLAIMANTS ARE LABORING UNDER THE IMPRESSION THAT THERE WAS DISCRIMINATION IN WITHDRAWING THE ALLOWANCES FROM THEM AND NOT FROM OTHER ENLISTED MEN SIMILARLY SITUATED AT THE SAME TIME AND PLACE, AND EACH HAS PRESENTED EXAMPLES OF MEN WHO WERE PERMITTED TO CONTINUE TO DRAW THE ALLOWANCES UNDER WHAT ARE REPRESENTED AS IDENTICAL CIRCUMSTANCES.

THE BASIS OF THE CLAIMS AS A LEGAL RIGHT IS THAT THE LAW AND THE EXECUTIVE ORDER BY A STRICT AND LITERAL CONSTRUCTION REQUIRE THE PAYMENTS HERE CONSIDERED WHEN THE MAN IS "NOT FURNISHED QUARTERS OR RATIONS IN KIND.' SECTION 11 OF THE ACT OF JUNE 10, 1922, PROVIDES, IN PART:

* * * TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $4 PER DAY. THESE REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. SUBSISTENCE FOR PILOTS SHALL BE PAID IN ACCORDANCE WITH EXISTING REGULATIONS, AND RATIONS FOR ENLISTED MEN MAY BE COMMUTED AS NOW AUTHORIZED BY LAW.

THE LAW PLAINLY IS NOT SELF-EXECUTING. ENLISTED MEN ARE ENTITLED TO NOTHING BY VIRTUE OF THE LAW ALONE. THE EFFECT OF THE LAW IS TO PRESCRIBE LIMITS WITHIN WHICH REGULATIONS MAY BE MADE BY THE PRESIDENT. THE CONDITIONS UNDER WHICH ANY PAYMENT MAY BE MADE AND THE RATE OF PAYMENT ARE ENTIRELY WITHIN THE AUTHORITY OF THE PRESIDENT. IF NO REGULATIONS ARE PRESCRIBED, NO PAYMENT UNDER THE TERMS OF THE SECTION IS AUTHORIZED, AND IN SUCH AN UNUSUAL SITUATION "RATIONS FOR ENLISTED MEN MAY BE COMMUTED AS NOW AUTHORIZED BY LAW" ONLY.

THE REGULATIONS IN EFFECT, EXECUTIVE ORDER OF JUNE 19, 1922 (PUBLISHED IN WAR DEPARTMENT BULLETIN 13 OF 1922), FIXING THE CONDITIONS FOR PAYMENT FOLLOW THE STATUTE IN AUTHORIZING PAYMENT TO "ENLISTED MEN, WHO ARE NOT FURNISHED QUARTERS OR RATIONS IN KIND.' THIS PROVISION IS NOT ARBITRARY AND COULD NOT BE MADE ARBITRARY, AND DOES NOT EXCLUDE CONTROLLING FACTS WHERE QUARTERS OR RATIONS ARE NOT FURNISHED; OTHERWISE MERE FAILURE TO ACCEPT FOOD OR QUARTERS MIGHT BE A BASIS FOR VALID CLAIMS. SUCH, OF COURSE, WAS NOT CONTEMPLATED. WHAT WAS INTENDED WAS TO PROVIDE FOR SITUATIONS WHERE A MAN BY REASON OF HIS DUTY SITUATION COULD NOT WITH REASONABLE PRACTICABILITY BE FURNISHED WITH QUARTERS OR RATIONS IN KIND. THAT THIS IS THE CORRECT VIEW IS EVIDENT BY THE PROVISIONS OF PARAGRAPH 2A/1) OF THE AR 35 4520, DECEMBER 8, 1922, PROVIDING, UNDER THE HEADING ,WHEN PAYABLE.--- A GENERAL":

THE MONETARY ALLOWANCES IN LIEU OF RATIONS AND QUARTERS WILL BE PAID ONLY WHEN IT IS IMPRACTICABLE FOR THE GOVERNMENT TO FURNISH RATIONS AND QUARTERS IN KIND, AS DEFINED IN (2) AND (3) BELOW, OR WHEN REIMBURSEMENT OF ACTUAL EXPENSES IS NOT AUTHORIZED.

THIS PROVISION WAS REPEATED WITHOUT MODIFICATION IN THE REPUBLICATION OF THIS PORTION OF THE ARMY REGULATIONS DECEMBER 30, 1924, AND IN THE REPUBLICATION OF THE REGULATIONS SEPTEMBER 10, 1926. IN THE LATTER REPUBLICATION AN EXCEPTION IN THIS PARAGRAPH IS MADE AS TO MEN COMING WITHIN THE TERMS OF THE ACT OF APRIL 15, 1926, 44 STAT. 257, AND IN AN ADDED SUBPARAGRAPH (4) UNDER PARAGRAPH 2A, AFTER QUOTING THE LANGUAGE OF THE EXECUTIVE ORDER OF JUNE 19, 1922, THERE IS AN EXPRESSION OF OPINION INCONSISTENT WITH THE TERMS OF PARAGRAPH 2A (1) AS QUOTED ABOVE AS FOLLOWS:

THE RIGHT OF AN ENLISTED MAN TO THE ALLOWANCE FOR QUARTERS AND RATIONS IS THUS MADE DEPENDENT (EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 1B) (ACT OF APRIL 15, 1926, 44 STAT. 257) UNDER THE TERMS OF BOTH LAW AND EXECUTIVE ORDER, ON THE SOLE QUESTION OF WHETHER OR NOT HE IS FURNISHED QUARTERS AND RATIONS IN KIND, THE QUESTION OF THE AVAILABILITY OF QUARTERS NOT ENTERING INTO THE MATTER.

EXCEPT FOR THIS EXPRESSION OF OPINION, THE CONSTRUCTION OF THE ACT BY THE NAVY DEPARTMENT WAS THE SAME. PARAGRAPH D-10104 OF THE BUREAU OF NAVIGATION MANUAL, 1925, IS AS FOLLOWS:

(1) ALLOWANCE IN LIEU OF QUARTERS AND SUBSISTENCE IN KIND WILL BE PAID TO ENLISTED MEN ON SHORE DUTY ONLY UPON THE APPROVAL OF THE BUREAU OF NAVIGATION IN EACH CASE. THIS DOES NOT APPLY TO MEN ABSENT FROM THEIR SHIPS OR STATIONS ON TEMPORARY DUTY NOT INVOLVING TRAVEL. (SEE D-10102 (4).)

(3) WHEN PREPARING AND FORWARDING THESE REQUESTS THE FOLLOWING INSTRUCTIONS SHALL BE FOLLOWED:

(D) INCLUDE AS APPLICABLE, A DEFINITE STATEMENT AS TO WHETHER OR NOT QUARTERS AND (OR) MESSING FACILITIES ARE AVAILABLE AT THE STATION FROM WHICH THE REQUEST IS SUBMITTED.

(E) COMMANDING OFFICERS SHOULD BE GUIDED BY THE GENERAL RULE THAT EXISTING FACILITIES FOR QUARTERING AND MESSING THE PERSONNEL AT SHORE STATIONS MUST BE EMPLOYED TO THE LIMIT OF CAPACITY.

(4) THE BUREAU WILL NOT APPROVE REQUESTS FOR THE BENEFIT OF ANY SPECIAL CLASS OF MEN.

OBVIOUSLY IT WAS NOT THE PURPOSE OF THE STATUTE TO CHANGE THE METHOD OF MAINTAINING THE ENLISTED FORCES OF THE ARMY OR THE NAVY. IN BOTH SERVICES RATIONS AND QUARTERS ARE PROVIDED FOR ENLISTED MEN ON DUTY AND HAVE BEEN FROM TIME IMMEMORIAL. BECAUSE OF SOME DUTY ASSIGNMENTS IT IS SOMETIMES NOT PRACTICABLE TO RATION A MAN WITH AN ORGANIZATION OR QUARTER HIM IN BARRACKS BELONGING TO THE GOVERNMENT. PROVISION WAS MADE PRIOR TO THE ACT OF JUNE 10, 1922, FOR COMMUTATION OF RATIONS AND COMMUTATION OF QUARTERS FOR ENLISTED MEN OF THE ARMY AND MARINE CORPS, AND SUBSISTENCE ALLOWANCE (INCLUSIVE OF RATIONS AND QUARTERS) WAS AUTHORIZED FOR ENLISTED MEN OF THE NAVY ON DETACHED DUTY. SEE 7 COMP. GEN. 781. NEITHER FORM OF ALLOWANCE WAS PAYABLE WHEN THE MAN COULD BE FURNISHED RATIONS OR QUARTERS--- THAT IS, WERE AVAILABLE--- AND IN SUCH A CASE WHETHER THEY WERE ACTUALLY ACCEPTED WAS IMMATERIAL. PROVISION WAS MADE IN BOTH SERVICES TO COMMUTE THE RATIONS FOR MARRIED ENLISTED MEN WHO WERE RESIDING WITH THEIR FAMILIES --- THAT IS, PAYMENT OF AN AMOUNT EQUIVALENT TO THE COST OF FURNISHING HIM RATIONS IN KIND- - BUT THERE NEVER WAS AUTHORITY IN THE ARMY TO PAY COMMUTATION OF QUARTERS WHERE PUBLIC QUARTERS WERE AVAILABLE, NOR IN EITHER SERVICE TO PAY ANYTHING BUT COMMUTATION OF RATIONS AT THE GARRISON RATE WHERE THE MAN COULD BE SUBSISTED. THE PURPOSE OF SECTION 11 OF THE ACT OF JUNE 10, 1922, IS STATED IN HEARINGS ON H.R. 10972, READJUSTMENT OF SERVICE PAY, PAGE 31, AS FOLLOWS:

ENLISTED MEN.--- TO ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND, THERE ARE NOW ALLOWED VARYING AMOUNTS FOR SUBSISTENCE, OR FOR SUBSISTENCE AND ROOM. IN EXCEPTIONAL CASES, WHERE THESE MEN TRAVEL FROM PLACE TO PLACE FOR SHORT PERIODS, INCURRING EXPENSES FOR TRANSIENT ACCOMMODATIONS AT HOTELS, MEALS, ETC., AN AMOUNT EQUAL TO $4 PER DAY IS ALLOWED. IN THE GREAT MAJORITY OF CASES THESE AMOUNTS ARE MUCH SMALLER.

THIS BILL ESTABLISHES, UNDER THE DIRECTION OF THE PRESIDENT, UNIFORM REGULATIONS FOR ALL SERVICES. THERE IS NO ADDITIONAL EXPENSE INVOLVED.

THAT IS, NO CHANGE WAS INTENDED FROM THE THEN EXISTING AUTHORITY OTHER THAN TO PROVIDE FOR UNIFORM REGULATIONS BY THE PRESIDENT. IT WAS NOT DESIGNED TO GIVE GREATER OR DIFFERENT RIGHTS TO THE ENLISTED MAN WHO WAS AND IS, WHEN ON DUTY, TO BE FURNISHED RATIONS AND QUARTERS, AND THE SECTION DOES NOT AUTHORIZE PAYMENT OF THE ALLOWANCES WHEN IN FACT SUBSISTENCE AND QUARTERS ARE AVAILABLE AND CAN BE FURNISHED IN KIND. THE EXERCISE OF THE AUTHORITY REPOSED IN THE RESPECTIVE DEPARTMENTS IT IS PROPER TO CONSIDER THE PARTICULAR DUTIES BEING PERFORMED BY THE MAN AND WHERE, BY THE UTILIZATION OF EXISTING FACILITIES, PERFORMANCE OF THE ASSIGNED DUTIES WOULD BE ADVERSELY AFFECTED IT IS COMPETENT TO AUTHORIZE THE ALLOWANCES BECAUSE OF SUCH DUTY ASSIGNMENT, ALTHOUGH MEN OF THE SAME GRADE ON DUTY AT THE SAME PLACE BUT ASSIGNED TO OTHER DUTIES MAY BE REQUIRED TO UTILIZE EXISTING FACILITIES. THIS SEEMS TO HAVE BEEN THE SITUATION IN THE PRESENT CASES AND THE BASIS FOR AUTHORIZING THE ALLOWANCES IN THE CASES OF THE MEN, PAYMENT TO WHOM IS PRESENTED AS EVIDENCE THAT FACILITIES WERE NOT IN FACT AVAILABLE FOR THE CLAIMANTS HEREIN. QUESTION MAY THEREFORE ARISE AS TO THE LEGALITY OF PAYMENT OF THE ALLOWANCES, IF IN ANY CASE THEY ARE PAID WHERE IN FACT QUARTERS AND SUBSISTENCE ARE AVAILABLE FOR THE MAN. THESE CLAIMS DO NOT PRESENT SUCH A QUESTION. HERE THE CLAIM IS THAT THE ALLOWANCES SHOULD BE PAID NOTWITHSTANDING THE DEPARTMENTS HAVE REPORTED THAT RATIONS AND QUARTERS WERE AVAILABLE AND PAYMENT OF THE ALLOWANCES HAS NOT BEEN AUTHORIZED.

CLAIMANTS BY IMPLICATION REQUEST THIS OFFICE TO GO BEHIND SUCH A REPORT AND DETERMINE THAT IN FACT RATIONS AND/OR QUARTERS WERE NOT AVAILABLE. THE VERY NATURE OF THE ENLISTED MAN'S STATUS REQUIRES THAT HE BE FED AND QUARTERED, AND IT IS THE UNIVERSAL CUSTOM IN ALL MILITARY FORCES TO PROVIDE FOR THEIR SUBSISTENCE AND SHELTER. THE ENLISTED MAN'S NORMAL SITUATION THEREFORE SECURES FOR HIM FOOD AND SHELTER, AND THE DETERMINATION BY THE MILITARY OR NAVAL AUTHORITIES THAT IN A GIVEN CASE RATIONS OR QUARTERS WERE AVAILABLE IS, AND, FROM THE VERY NATURE OF THE SITUATION NORMALLY MUST BE, FINAL AND CONCLUSIVE. THE FINALITY OF THE FINDING BY THE SERVICE CONCERNED IN SUCH A SITUATION MAKES POSSIBLE THE FORMULATION OF A SIMPLE RULE FOR APPLICATION IN THE SETTLEMENT OF ACCOUNTS OR CLAIMS, WHICH IS, THAT IN NO CASE MAY THE ALLOWANCE FOR SUBSISTENCE OR QUARTERS BE PAID, UNLESS THE PAYMENT IS AUTHORIZED BY THE SERVICE IN ACCORD WITH REGULATIONS AND CONTEMPORANEOUSLY WITH THE PERIOD COVERED. IN EACH OF THESE CASES THE DEPARTMENTAL REPORTS SHOW NOT ONLY THAT PAYMENT WAS NOT AUTHORIZED IN ACCORD WITH THE REGULATIONS OF THE DEPARTMENT CONCERNED BUT THAT RATIONS AND/OR QUARTERS WERE AVAILABLE, THE ACTION IN DISALLOWING THE CLAIMS WAS CORRECT AND ON REVIEW THE SETTLEMENTS MUST BE SUSTAINED.