A-27164, JUNE 12, 1929, 8 COMP. GEN. 643

A-27164: Jun 12, 1929

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IS ASSIGNED TO SPECIAL TEMPORARY DUTY WITH THE NATIONAL BOARD OF ELECTIONS IN NICARAGUA. WHICH DUTY ON SHORE WAS DETERMINED BY THE NAVY DEPARTMENT TO BE PARAMOUNT TO HIS DUTY ON BOARD SHIP. WAS DURING THE PERIOD OF SUCH OCCUPANCY ASSIGNED ADEQUATE QUARTERS AT HIS PERMANENT STATION WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10. IS NOT ENTITLED TO RENTAL ALLOWANCE. IS ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD JULY 20 TO NOVEMBER 15. YOU WILL PROCEED TO MANAGUA. UPON ARRIVAL WILL REPORT TO THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS FOR SPECIAL TEMPORARY DUTY. 3. YOU WILL RETURN TO THE U.S.S. THIS IS IN ADDITION TO YOUR PRESENT DUTIES. 5. YOU WILL KEEP AN ACCURATE ACCOUNT OF ACTUAL EXPENSES INCURRED BY YOU PRIOR TO REPORTING TO THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS.

A-27164, JUNE 12, 1929, 8 COMP. GEN. 643

RENTAL ALLOWANCE - ADEQUACY OF QUARTERS - NAVY OFFICER AN OFFICER OF THE NAVY WHO, WHILE ON SEA DUTY, IS ASSIGNED TO SPECIAL TEMPORARY DUTY WITH THE NATIONAL BOARD OF ELECTIONS IN NICARAGUA, WHICH DUTY ON SHORE WAS DETERMINED BY THE NAVY DEPARTMENT TO BE PARAMOUNT TO HIS DUTY ON BOARD SHIP, AND WHO ACTUALLY OCCUPIED QUARTERS ASSIGNED TO HIM ON SHORE, WAS DURING THE PERIOD OF SUCH OCCUPANCY ASSIGNED ADEQUATE QUARTERS AT HIS PERMANENT STATION WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, AND IS NOT ENTITLED TO RENTAL ALLOWANCE.

COMPTROLLER GENERAL MCCARL TO LIEUT. C. J. LANIER, UNITED STATES NAVY, JUNE 12, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 13, 1929, REQUESTING DECISION AS TO WHETHER ENSIGN J. L. BIRD, UNITED STATES NAVY, WITHOUT DEPENDENTS, IS ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD JULY 20 TO NOVEMBER 15, 1928, WHILE ON SPECIAL TEMPORARY DUTY WITH THE NATIONAL BOARD OF ELECTIONS IN NICARAGUA, UNDER ORDERS OF COMMANDER, SPECIAL SERVICE SQUADRON, DATED CORINTO, NICARAGUA, JULY 12, 1928, WHICH DIRECTED HIM AS FOLLOWS:

2. ON 12 JULY, 1928, YOU WILL PROCEED TO MANAGUA, NICARAGUA, AND UPON ARRIVAL WILL REPORT TO THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS FOR SPECIAL TEMPORARY DUTY.

3. UPON THE COMPLETION OF THIS DUTY, YOU WILL RETURN TO THE U.S.S. ROCHESTER AND RESUME YOUR REGULAR DUTIES.

4. THIS IS IN ADDITION TO YOUR PRESENT DUTIES.

5. YOU WILL KEEP AN ACCURATE ACCOUNT OF ACTUAL EXPENSES INCURRED BY YOU PRIOR TO REPORTING TO THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS, OBTAINING RECEIPTS WHERE POSSIBLE. THE SUPPLY OFFICER U.S.S. ROCHESTER WILL REIMBURSE YOU FOR SUCH EXPENSES UPON THE PRESENTATION OF THESE ORDERS AND NECESSARY SUBSTANTIATING VOUCHERS.

6. THE COMMANDER SPECIAL SERVICE SQUADRON HAS BEEN INFORMED BY THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS THAT, WHILE ON THIS SPECIAL TEMPORARY DUTY, REIMBURSEMENT WILL BE MADE YOU BY THE ELECTIONS BOARD FOR YOUR SUBSISTENCE EXPENSES AS MAY BE NECESSARY TO MAKE UP THE DIFFERENCE BETWEEN THE TOTAL AMOUNT OF SUCH EXPENSES AND THE AMOUNT YOUR SUBSISTENCE WOULD HAVE COST YOU HAD YOU REMAINED ON BOARD SHIP, PROVIDED THE FORMER IS GREATER THAN THE LATTER.

7. THE NECESSARY TRAVEL INVOLVED IN THE EXECUTION OF THESE ORDERS IS REQUIRED BY THE PUBLIC INTERESTS AND IS HEREBY AUHORIZED.

IT APPEARS THAT ENSIGN BIRD REPORTED AS DIRECTED, AND BY EXECUTIVE MEMORANDUM NO. 7, DATED JULY 14, 1928, OF AMERICAN ELECTORAL MISSION IN NICARAGUA, HE WAS DIRECTED TO PROCEED TO THE CAPITAL OF THE DEPARTMENT OF NUEVA SEGOVIA, REPORTING UPON ARRIVAL THEREAT TO THE CHAIRMAN OF THE ELECTORAL BOARD OF THAT DEPARTMENT FOR DUTY. HE SO REPORTED AT OCOTAL ON JULY 19, 1928, AND ON NOVEMBER 15, 1928, THE PRESIDENT OR CHAIRMAN OF THE DEPARTMENTAL BOARD OF ELECTIONS AT OCOTAL DIRECTED HIM:

DUTY COMPLETED THIS DATE. YOU WILL PROCEED AND REPORT TO THE CHAIRMAN AMERICAN ELECTORAL MISSION FOR FURTHER TRANSFER IN ACCORDANCE WITH BASIC LETTER.

HE SO REPORTED NOVEMBER 16, 1928, AND WAS THEREUPON DIRECTED:

YOU ARE THIS DATE DETACHED FROM SPECIAL TEMPORARY DUTY AND WILL PROCEED TO LEON, NICARAGUA, AND REPORT TO THE COMMANDING OFFICER NAVAL BLUEJACKET BATTALION.

BY ORDER OF COMMANDER SPECIAL SERVICE SQUADRON, DATED NOVEMBER 19, 1928, HE WAS DIRECTED:

1. YOUR DUTIES WITH THE NATIONAL BOARD OF ELECTIONS OF NICARAGUA HAVING BEEN COMPLETED, YOUR TEMPORARY DUTY ON SHORE IN NICARAGUA IS HEREBY COMPLETED.

2. YOU WILL PROCEED TO CORINTO, NICARAGUA, AND REPORT TO THE COMMANDING OFFICER U.S.S. VEGA FOR TRANSPORTATION TO THE WEST COAST OF THE UNITED STATES. UPON ARRIVAL ON THE WEST COAST OF THE UNITED STATES, PROCEED AND REPORT TO THE COMMANDING OFFICER U.S.S. YARBOROUGH AND RESUME YOUR REGULAR DUTIES.

IT FURTHER APPEARS THAT AFTER REPORTING FOR DUTY AT OCOTAL, ENSIGN BIRD, JULY 20, 1928, REQUESTED OF THE PRESIDENT OF THE ELECTORAL BOARD, DEPARTMENT OF NUEVA SEGOVIA, THAT, IN ACCORDANCE WITH ARTICLE 1819, NAVY REGULATIONS, HE BE FURNISHED QUARTERS, TO WHICH REQUEST REPLY WAS MADE AS FOLLOWS:

DEPARTMENTAL BOARD OF ELECTIONS,

OCOTAL, NICARAGUA, JULY 20, 1928. FROM: PRESIDENT. TO: ENSIGN J. L. BIRD, U.S. NAVY.

1. RETURNED. THERE ARE NO ADEQUATE GOVERNMENT QUARTERS AVAILABLE FOR YOU AT THIS STATION.

T. A. AUSTIN, JR.

IN HIS LETTER OF APRIL 22, 1929, ENSIGN BIRD STATES:

1. THE SHELTER OCCUPIED BY ME WAS DESIGNATED BY MY IMMEDIATE SUPERIOR IN COMMAND, CAPTAIN T. A. AUSTIN, JR., U.S. ARMY, WITH THE UNDERSTANDING THAT IT WAS INADEQUATE, BUT THAT THE NATIONAL BOARD OF ELECTIONS WOULD FURNISH NO BETTER. THE HOUSE HAD BEEN APPROPRIATED BY ARMED FORCES OCCUPYING THE TOWN OF OCOTAL AS A MILITARY NECESSITY, AND WHETHER OR NOT THE GOVERNMENT OF NICARAGUA PAID RENT FOR IT IS NOT KNOWN BY ME.

2. A BRIEF DESCRIPTION OF THE DISAGREEABLE FEATURES IS AS FOLLOWS:

IT WAS THE KITCHEN OF A NATIVE ADOBE HOUSE SITUATED BETWEEN AN INDESCRIBABLY FOUL-SMELLING LATRINE ON ONE SIDE AND A STABLE ON THE OTHER. THE LATTER WAS A CONSTANT SOURCE OF FLEAS, RATS, AND NONDESCRIPT ODORS. BATHING AND SANITATION FACILITIES WERE LIMITED WHEN IT DID NOT RAIN. WHEN IT DID RAIN THE WATER SPLASHING THROUGH THE ROOF WAS A SOURCE OF CONSIDERABLE ANNOYANCE. LIGHTING AT NIGHT WAS ACCOMPLISHED BY GASOLINE LANTERNS, WHICH WERE EXTREMELY TRYING ON THE EYES, AND OUR DUTIES REQUIRED CONSIDERABLE NIGHT WORK. DUE TO LACK OF SCREENS AND DOORS IN THE ROOM, BATS, FLIES, AND MOSQUITOES WERE ANNOYING AT ALL TIMES. IT WAS NECESSARY TO PROVIDE MY FURNITURE AT MY OWN EXPENSE. THIS WAS NOT CLAIMED AS AN EXPENSE FROM THE NATIONAL BOARD OF ELECTIONS, BECAUSE I UNDERSTOOD THAT IF THE U.S. GOVERNMENT DID NOT FURNISH ME WITH ADEQUATE QUARTERS I WOULD RECEIVE COMMUTATION FOR SAME, AND THESE EXPENSES WOULD BE COVERED BY THAT ALLOWANCE.

3. THE HIGH PRICE OF RENTS MADE IT IMPRACTICABLE TO SECURE BETTER QUARTERS IN THE TOWN AT MY OWN EXPENSE, BECAUSE ALL OTHERS WERE FILLED TO CAPACITY WITH NATIVES WHO HAD MOVED IN FOR PROTECTION. ARTICLE 1819 DOES NOT INCLUDE THE FEATURES ENUMERATED IN PARAGRAPH 2 OF THIS ENDORSEMENT AS CONSTITUTING ADEQUATE QUARTERS FOR A COMMISSIONED OFFICER IN THE U.S. NAVY, AND DUE CONSIDERATION WAS GIVEN THIS POINT IN THE FIRST ENDORSEMENT OF MY REQUEST FOR QUARTERS DATED JULY 20, 1928.

4. EXPENSES FOR OTHER ITEMS WERE PAID BY THE NATIONAL BOARD OF ELECTIONS WHEN IN EXCESS OF $28.00 PER MONTH.

IN FORWARDING THE MATTER TO THIS OFFICE, THE SECRETARY OF THE NAVY STATES:

2. IN CONNECTION WITH THE ATTACHED CLAIM FOR RENTAL ALLOWANCE, I HEREBY CERTIFY THAT THE DUTY PERFORMED BY ENSIGN JOSEPH L. BIRD, U.S. NAVY, WITH THE NATIONAL BOARD OF ELECTIONS IN NICARAGUA DURING THE PERIOD FROM JULY 12, 1928, TO NOVEMBER 16, 1928, WAS PARAMOUNT TO HIS DUTY ON BOARD THE U.S.S. YARBOROUGH.

3. IN YOUR DECISION TO THE SECRETARY OF THE NAVY OF FEBRUARY 14, 1928 (A- 18654), IT WAS TATED:

"THE QUESTION AS TO WHETHER AN OFFICER IS ON FIELD DUTY WITHIN THE MEANING OF THE ACTS CITED IS NOT DEPENDENT UPON OR DETERMINED BY THE FACT AS TO WHETHER HE WAS FURNISHED QUARTERS IN KIND OR NOT, BUT WHETHER THE SERVICE IN WHICH ENGAGED WAS UNDER ORDERS WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL. SEE 22 MS. COMP. GEN. 165, JUNE 7, 1923; 3 COMP. GEN. 272.'

IN THIS CONNECTION IT WILL BE NOTED FROM THE ORDERS, COPY ATTACHED, ISSUED TO ENSIGN BIRD UNDER DATE OF JULY 12, 1928, THAT THIS OFFICER WAS ORDERED TO PROCEED ON SAID DATE TO MANAGUA, NICARAGUA, AND UPON ARRIVAL AT THAT PLACE TO REPORT TO THE CHAIRMAN OF THE NATIONAL BOARD OF ELECTIONS FOR SPECIAL TEMPORARY DUTY. THE DUTY PERFORMED BY ENSIGN BIRD UNDER SAID ORDERS BEING IN CONNECTION WITH THE NATIONAL BOARD OF ELECTIONS IN NICARAGUA AND NOT "WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL," THE NAVY DEPARTMENT CONSIDERS THAT HE IS ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD CLAIMED, THE OCCUPANCY BY HIM OF NATIVE QUARTERS UNDER THE CONDITIONS DESCRIBED IN PARAGRAPH 2 OF THE SIXTH INDORSEMENT HEREON NOT BEING CONSIDERED SUFFICIENT TO PRECLUDE PAYMENT OF RENTAL ALLOWANCE FOR THE PERIOD CLAIMED.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250 AND 251, PROVIDES THAT COMMISSIONED OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, 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, EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH THEREOF AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, 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.

IT WAS FURTHER PROVIDED THAT REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION SHALL BE MADE BY THE PRESIDENT.

EXECUTIVE ORDER OF AUGUST 13, 1924, ISSUED PURSUANT TO SUCH PROVISION, PROVIDES:

I. (C) THE TERM "FIELD DUTY" SHALL BE CONSTRUED TO MEAN SERVICE, UNDER ORDERS, WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

(D) THE TERM "SEA DUTY" SHALL BE CONSTRUED TO MEAN SERVICE AT SEA BY AN OFFICER IN A VESSEL EMPLOYED BY AUTHORITY OF LAW UNDER ORDERS REQUIRING HIM TO REPORT FOR DUTY ON BOARD SAID VESSEL OR ASSIGNING HIM TO DUTY IN COMMAND OF VESSELS OR AS A MEMBER OF THE STAFF OF SUCH COMMANDER: PROVIDED, THAT THE OFFICER CONCERNED IS NOT DURING THE SAME PERIOD REQUIRED TO RENDER SERVICE ON SHORE OF A CHARACTER DETERMINED BY THE DEPARTMENT CONCERNED TO BE PARAMOUNT TO THE DUTY WHICH HE IS REQUIRED TO RENDER AT SEA.

(E) THE TERM "PERMANENT STATION" AS USED IN THIS ACT SHALL BE CONSTRUED TO MEAN THE PLACE ON SHORE WHERE AN OFFICER IS ASSIGNED TO DUTY, OR THE HOME YARD OR THE HOME PORT OF A VESSEL ON BOARD WHICH AN OFFICER IS REQUIRED TO PERFORM DUTY, UNDER ORDERS IN EACH CASE WHICH DO NOT IN TERMS PROVIDE FOR THE TERMINATION THEREOF; AND ANY STATION ON SHORE OR ANY RECEIVING SHIP WHERE AN OFFICER IN FACT OCCUPIES WITH HIS DEPENDENTS PUBLIC QUARTERS ASSIGNED TO HIM WITHOUT CHARGE SHALL ALSO BE DEEMED DURING SUCH OCCUPANCY TO BE HIS PERMANENT STATION WITHIN THE MEANING OF THIS ACT.

II. 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: *

III. * * *

(C) NO OFFICER SHALL BE PAID A RENTAL ALLOWANCE FOR ANY PERIOD DURING WHICH HE 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 WHICH HAVE BEEN DETERMINED IN ACCORDANCE WITH THESE REGULATIONS TO BE ADEQUATE IN THE PARTICULAR CASE.

PARAGRAPH 3 (B) OF ARTICLE 1819, NAVY REGULATIONS, PROVIDES:

THE VOLUNTARY OCCUPATION BY AN OFFICER WITHOUT DEPENDENTS OR BY AN OFFICER AND HIS DEPENDENTS OF THE QUARTERS ASSIGNED SHALL BE CONCLUSIVE PROOF THAT THEY ARE ADEQUATE, * * *.

IT IS CLEAR THAT DURING THE PERIOD IN QUESTION ENSIGN BIRD WAS NEITHER ON FIELD NOR SEA DUTY. IT APPEARS FROM THE STATEMENT OF ENSIGN BIRD THAT THE PRESIDENT OF THE ELECTORAL BOARD, DEPARTMENT OF NEUVA SEGOVIA, AT OCOTAL, ASSIGNED TO HIM QUARTERS CONTROLLED BY THE GOVERNMENT, CONSISTING OF ONE ROOM FOR OCCUPANCY WITHOUT CHARGE BY THE OFFICER, AND THAT NOTWITHSTANDING THE DISAGREEABLE FEATURES CONNECTED THEREWITH AS DESCRIBED BY HIM HE ACTUALLY OCCUPIED SUCH QUARTERS DURING THE PERIOD IN QUESTION.

HAVING ACTUALLY OCCUPIED GOVERNMENT-CONTROLLED QUARTERS SO ASSIGNED AT OCOTAL SUCH PLACE BECAME HIS PERMANENT STATION DURING SUCH OCCUPANCY WITHIN THE MEANING OF THE RENTAL ALLOWANCE LAW AND THE REGULATIONS MADE IN PURSUANCE THEREOF, AND AS THE VOLUNTARY OCCUPANCY BY AN OFFICER OF QUARTERS ASSIGNED IS CONCLUSIVE PROOF THAT THEY ARE ADEQUATE, NO QUESTION AS TO THE ADEQUACY OF SUCH QUARTERS CAN NOW ARISE.

IT IS CONCLUDED THAT AS ENSIGN BIRD WAS ASSIGNED ADEQUATE QUARTERS AT HIS PERMANENT STATION DURING THE PERIOD IN QUESTION WITHIN THE MEANING OF THE LAW AND REGULATIONS CITED ABOVE, HE IS NOT ENTITLED TO RENTAL ALLOWANCE FOR SUCH PERIOD.