A-69778, JANUARY 24, 1936, 15 COMP. GEN. 659

A-69778: Jan 24, 1936

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PAYMENT OF RENTAL ALLOWANCE TO THE OFFICER WHILE OCCUPYING SUCH PUBLIC QUARTERS IS NOT AUTHORIZED. YOUR ENDORSEMENT IS AS FOLLOWS: 2. TOGETHER WITH ALL APPURTENANCES AND SUCH LIVESTOCK AND EQUIPMENT AS IS DESIRED BY THE ISLAND GOVERNMENT FOR ITS USE. WILL BE NOTED FROM INCLOSURE (B) THAT THE QUARTERS NOW OCCUPIED BY COMMANDER LEONARD. ARE LOCATED IN THE AREA FORMERLY OCCUPIED BY THE U.S. THAT SUCH QUARTERS WERE CONSTRUCTED FROM FUNDS APPROPRIATED BY CONGRESS FOR MAINTENANCE OF THAT EXPERIMENT STATION. THAT SINCE SUCH QUARTERS WERE ACQUIRED BY THE ISLAND GOVERNMENT OF GUAM ALL EXPENSES FOR THEIR MAINTENANCE AND UPKEEP HAVE BEEN DEFRAYED FROM FUNDS OF THE ISLAND GOVERNMENT. THE REQUEST FOR DECISION APPARENTLY IS BASED ON A PROVISION IN THE WAR DEPARTMENT APPROPRIATION ACTS FOR THE FISCAL YEARS 1935 AND 1936.

A-69778, JANUARY 24, 1936, 15 COMP. GEN. 659

RENTAL ALLOWANCE - NAVAL OFFICER OCCUPYING PUBLIC QUARTERS IN GUAM AS AN OFFICER OF THE NAVY MAY BE ASSIGNED PUBLIC QUARTERS LOCATED ON THE ISLAND OF GUAM WITHOUT PAYMENT OF RENT, ALL PUBLIC PROPERTY UNDER THE JURISDICTION OF THE NAVAL GOVERNMENT OF GUAM BEING PUBLIC PROPERTY OF THE UNITED STATES, PAYMENT OF RENTAL ALLOWANCE TO THE OFFICER WHILE OCCUPYING SUCH PUBLIC QUARTERS IS NOT AUTHORIZED, THERE NOT BEING FOR APPLICATION THE PROVISION IN THE ARMY APPROPRIATION ACT OF APRIL 9, 1935, 49 STAT. 124, 125, REGARDING PAYMENT OF RENTAL ALLOWANCE TO AN OFFICER WHILE OCCUPYING PUBLIC QUARTERS AT HIS PERMANENT STATION NOT UNDER THE JURISDICTION OF THE SERVICE IN WHICH SERVING.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JANUARY 24, 1936:

THERE HAS BEEN RECEIVED YOUR FIRST ENDORSEMENT OF JANUARY 7, 1936, OF BASIC LETTER FROM THE PAYMASTER GENERAL OF THE NAVY RELATIVE TO THE RIGHT OF COMDR. MORRIS M. LEONARD, CHAPLAIN CORPS, UNITED STATES NAVY, TO RENTAL ALLOWANCE WHILE OCCUPYING, ON A RENTAL BASIS, QUARTERS OWNED BY THE NAVAL GOVERNMENT OF GUAM. YOUR ENDORSEMENT IS AS FOLLOWS:

2. UNDER DATE OF JULY 7, 1932, THE SECRETARY OF AGRICULTURE, PURSUANT TO THE AUTHORITY VESTED IN HIM BY A PROVISION APPEARING IN THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF AGRICULTURE FOR THE FISCAL YEAR ENDING JUNE 30, 1933 (47 STAT. 609, 614),"TRANSFERRED TO THE ISLAND GOVERNMENT OF GUAM THE PROPERTY KNOWN AS THE PITI AND COTOT TRACTS OF THE AGRICULTURAL EXPERIMENT STATION OPERATED BY THE U.S. DEPARTMENT OF AGRICULTURE AS AN AGRICULTURAL EXPERIMENT STATION ON THE ISLAND OF GUAM, TOGETHER WITH ALL APPURTENANCES AND SUCH LIVESTOCK AND EQUIPMENT AS IS DESIRED BY THE ISLAND GOVERNMENT FOR ITS USE," AS PER INCLOSURE (C). WILL BE NOTED FROM INCLOSURE (B) THAT THE QUARTERS NOW OCCUPIED BY COMMANDER LEONARD, CHAPLAIN CORPS, ARE LOCATED IN THE AREA FORMERLY OCCUPIED BY THE U.S. AGRICULTURAL EXPERIMENT STATION IN THE ISLAND OF GUAM; THAT SUCH QUARTERS WERE CONSTRUCTED FROM FUNDS APPROPRIATED BY CONGRESS FOR MAINTENANCE OF THAT EXPERIMENT STATION; AND THAT SINCE SUCH QUARTERS WERE ACQUIRED BY THE ISLAND GOVERNMENT OF GUAM ALL EXPENSES FOR THEIR MAINTENANCE AND UPKEEP HAVE BEEN DEFRAYED FROM FUNDS OF THE ISLAND GOVERNMENT.

THE REQUEST FOR DECISION APPARENTLY IS BASED ON A PROVISION IN THE WAR DEPARTMENT APPROPRIATION ACTS FOR THE FISCAL YEARS 1935 AND 1936, 48 STAT. 618, AND 49 STAT. 124, AS FOLLOWS:

* * * THAT DURING THE FISCAL YEAR ENDING JUNE 30, 1936, (OR 1935) NO RENTAL ALLOWANCE SHALL ACCRUE TO ANY OFFICER OF THE GOVERNMENT IN CONSEQUENCE OF THE PROVISIONS FOUND IN SECTION 10, TITLE 37, UNITED STATES CODE, WHILE OCCUPYING QUARTERS AT HIS PERMANENT STATION NOT UNDER THE JURISDICTION OF THE SERVICE IN WHICH SERVING BUT WHICH BELONG TO THE GOVERNMENT OF THE UNITED STATES, OR TO A CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, IN EXCESS OF THE RENTAL RATE CHARGED FOR SUCH QUARTERS ON MARCH 5, 1934; * * *

THE ISLAND OF GUAM AND OTHER ISLANDS OF THE SAMOAN GROUP CONSTITUTE PART OF THE INSULAR POSSESSIONS OF THE UNITED STATES ACQUIRED UNDER THE TREATY OF PEACE WITH SPAIN IN 1898. UNDER SAID TREATY TITLE TO ALL PUBLIC PROPERTY PASSED TO THE UNITED STATES. THE NAVAL GOVERNMENT OF GUAM DERIVES ITS AUTHORITY FROM THE PRESIDENT OF THE UNITED STATES AS COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES. IT IS EXECUTED BY OFFICERS APPOINTED BY THE SECRETARY OF THE NAVY UNDER DIRECTION OF THE PRESIDENT, AND ALL PUBLIC PROPERTY BELONGING TO THE NAVAL GOVERNMENT OF GUAM IS THE PROPERTY OF THE UNITED STATES. 25 OP.ATTY.GEN. 59; ID. 242; 26 ID. 98. FROM THE FACTS APPEARING, THE QUARTERS OCCUPIED BY COMMANDER LEONARD, CONVEYED TO THE ISLAND GOVERNMENT OF GUAM BY THE SECRETARY OF AGRICULTURE, ARE QUARTERS BELONGING TO THE GOVERNMENT OF THE UNITED STATES AND UNDER THE JURISDICTION OF THE NAVY DEPARTMENT, THE SERVICE IN WHICH COMMANDER LEONARD IS SERVING. THEREFORE, THE PROVISIONS IN QUESTION IN THE WAR DEPARTMENT APPROPRIATION FOR THE FISCAL YEARS 1935 AND 1936, ARE NOT FOR APPLICATION TO THE CASE.

UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 42 STAT. 250 AND 251, OFFICERS ARE NOT ENTITLED TO RENTAL ALLOWANCES WHEN ASSIGNED QUARTERS AT THEIR PERMANENT STATION. THE EXECUTIVE ORDER OF AUGUST 13, 1924, PROVIDES:

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.

THE FACTS PRESENTED SHOW THAT COMMANDER LEONARD ACTUALLY OCCUPIES AT HIS PERMANENT STATION GOVERNMENT QUARTERS UNDER CONTROL OF THE NAVY DEPARTMENT AND ASSIGNED TO HIM ON A RENTAL BASIS. THE AUTHORITY GIVEN COMMANDER LEONARD TO OCCUPY THE QUARTERS IN QUESTION MUST BE CONSIDERED AN ASSIGNMENT OF PUBLIC QUARTERS AT HIS PERMANENT STATION WITHIN THE RENTAL- ALLOWANCE LAW. BEING ENTITLED TO QUARTERS AT GOVERNMENT EXPENSE THERE IS NO AUTHORITY OF LAW TO REQUIRE COMMANDER LEONARD TO PAY RENTAL FOR USE OF THOSE QUARTERS. 5 COMP. GEN. 663; DECISION A-12406, FEBRUARY 26, 1926. PROPER ADJUSTMENT OF THE MATTER REQUIRES THAT COMMANDER LEONARD REFUND THE DIFFERENCE BETWEEN THE AMOUNT PAID HIM AS RENTAL ALLOWANCE AND THE RENTAL PAID BY HIM DURING THE PERIOD HE HAS OCCUPIED THE QUARTERS IN QUESTION.