A-7277, JANUARY 6, 1925, 4 COMP. GEN. 591

A-7277: Jan 6, 1925

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WAS GRANTED A LEAVE OF ABSENCE WITHOUT TERMINATION OF HIS ASSIGNMENT AT THE STATION IS NOT ENTITLED. IN WHICH WAS SUSTAINED DISALLOWANCE OF HIS CLAIM FOR RENTAL ALLOWANCE FOR THE PERIODS JULY 1 TO OCTOBER 15. CLAIMANT'S PERMANENT STATION DURING THE PERIOD WAS AT FORT AMADOR. HE WAS PAID RENTAL ALLOWANCE WHILE ON TEMPORARY DUTY AT GOVERNORS ISLAND AND CLAIMS THE RENTAL ALLOWANCE FOR THE PERIODS INDICATED WHILE ON LEAVE OF ABSENCE AND EN ROUTE TO THE PANAMA CANAL ZONE. SHALL HAVE THE ALLOWANCES FOR SUBSISTENCE AND RENTAL AUTHORIZED FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD. AT WHICH DATE I WAS SERVING UNDER MY PRESENT APPOINTMENT AS ARMY FIELD CLERK AND WAS STATIONED AT FORT AMADOR.

A-7277, JANUARY 6, 1925, 4 COMP. GEN. 591

RENTAL ALLOWANCE - LEAVE OF ABSENCE - TEMPORARY DUTY - ARMY FIELD CLERK AN ARMY FIELD CLERK, WHO, WHILE ATTACHED TO A PERMANENT STATION AND IN OCCUPANCY OF PUBLIC QUARTERS THEREAT, WAS GRANTED A LEAVE OF ABSENCE WITHOUT TERMINATION OF HIS ASSIGNMENT AT THE STATION IS NOT ENTITLED, UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, TO RENTAL ALLOWANCE WHILE ON SUCH LEAVE, NOR WHILE ASSIGNED TO TEMPORARY DUTY AT THE EXPIRATION OF SUCH LEAVE AND PRIOR TO HIS RETURN TO THE PERMANENT STATION.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 6, 1925:

CHARLES C. MCAFEE, ARMY FIELD CLERK, REQUESTED APRIL 21, 1924, RECONSIDERATION OF DECISION OF NOVEMBER 20, 1923, IN WHICH WAS SUSTAINED DISALLOWANCE OF HIS CLAIM FOR RENTAL ALLOWANCE FOR THE PERIODS JULY 1 TO OCTOBER 15, AND NOVEMBER 1 TO 7, 1922. CLAIMANT'S PERMANENT STATION DURING THE PERIOD WAS AT FORT AMADOR, CANAL ZONE, WHICH STATION HE LEFT ON LEAVE OF ABSENCE FOR THREE MONTHS JUNE 21, 1922, SUBSEQUENTLY EXTENDED FIFTEEN DAYS WITH DIRECTION TO REPORT TO THE COMMANDING GENERAL, SECOND CORPS AREA, GOVERNORS ISLAND, NEW YORK, FOR ASSIGNMENT TO TEMPORARY DUTY PENDING SAILING OF THE TRANSPORT ON OR ABOUT OCTOBER 26, 1922. HE LEFT NEW YORK NOVEMBER 1, AND ARRIVED IN THE PANAMA CANAL ZONE NOVEMBER 7, 1922. HE WAS PAID RENTAL ALLOWANCE WHILE ON TEMPORARY DUTY AT GOVERNORS ISLAND AND CLAIMS THE RENTAL ALLOWANCE FOR THE PERIODS INDICATED WHILE ON LEAVE OF ABSENCE AND EN ROUTE TO THE PANAMA CANAL ZONE.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, CONTAINS THE FOLLOWING PROVISION:

* * * ARMY FIELD CLERKS AND FIELD CLERKS, QUARTERMASTER CORPS, SHALL HAVE THE ALLOWANCES FOR SUBSISTENCE AND RENTAL AUTHORIZED FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

IN FILING HIS CLAIM CLAIMANT MADE THE FOLLOWING STATEMENT AS TO HIS SITUATION RESPECTING QUARTERS PRIOR TO GOING ON LEAVE:

ON FEBRUARY 1, 1922, AT WHICH DATE I WAS SERVING UNDER MY PRESENT APPOINTMENT AS ARMY FIELD CLERK AND WAS STATIONED AT FORT AMADOR, CANAL ZONE, I WAS REQUIRED TO VACATE QUARTERS AT FORT AMADOR TO MAKE ROOM FOR COMMISSIONED OFFICERS.

SHELTER WAS THEN FURNISHED ME IN A BUILDING IN BALBOA, CANAL ZONE, BELONGING TO THE PANAMA CANAL BUT SUITABLE QUARTERS WERE DENIED, AS WAS ALSO A REQUEST TO BE PLACED ON COMMUTATION STATUS UNDER THE REGULATIONS THEN IN FORCE.

ABOUT MARCH 10, 1922, QUARTERS IN BALBOA, CANAL ZONE, BELONGING TO THE PANAMA CANAL WERE ASSIGNED TO WARRANT OFFICER FRANK LANG, A.M.P.S., WHO SHARED HIS QUARTERS WITH ME UNTIL MY DEPARTURE ON LEAVE OF ABSENCE JUNE 21, 1922, AT WHICH DATE I UNCONDITIONALLY RELINQUISHED SAME. MR. LANG DEPARTED FROM THE ISTHMUS IN SEPTEMBER, 1922, AND THE QUARTERS WERE THEN RELINQUISHED BY THE ARMY AND TURNED BACK TO THE PANAMA CANAL.

CLAIMANT HAS FILED THE FOLLOWING CERTIFICATE IN CONNECTION WITH HIS CLAIM:

HEADQUARTERS COAST DEFENSES OF BALBOA,

FORT AMADOR, CANAL ZONE,

DECEMBER 28, 1922.

I CERTIFY THAT THERE WERE NO PUBLIC QUARTERS VACANT FOR THE ACCOMMODATION OF ARMY FIELD CLERK CHARLES C. MCAFEE BETWEEN FEBRUARY 1 AND NOVEMBER 7, 1922, BY REASON OF ALL QUARTERS AT THIS STATION BEING ASSIGNED TO THOSE AUTHORIZED TO OCCUPY THE SAME.

SIGNED:

JOHN T. GEARY,

COLONEL, COAST ARTILLERY CORPS, COMMANDING.

THE FIRST, FOURTH, AND FIFTH PARAGRAPHS OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED RETROACTIVELY TO JULY 1, 1922, BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDE:

SECTION 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 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.

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.

THE EXECUTIVE ORDER OF AUGUST 13, 1924, ISSUED PURSUANT TO PARAGRAPH 5 OF THE LAW QUOTED, 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.

THE WAR DEPARTMENT REGULATIONS ARE CONTAINED IN CIRCULAR 66 OF OCTOBER 17, 1924, AND PARAGRAPHS 2 (A) AND 3 ARE IN PART AS FOLLOWS:

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, EXCEPT AS PROVIDED IN PARAGRAPH 3C BELOW, UNDERNO OTHER CONDITIONS, UNLESS UPON SPECIFIC ORDER OF THE ADJUTANT GENERAL:

(3) ON HIS DEPARTURE FROM THE 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.

(4) WHEN ORDERS ARE RECEIVED FOR AN OFFICER ABSENT FROM HIS PERMANENT STATION ON FIELD OR SEA DUTY, ON TEMPORARY DUTY, IN HOSPITAL, ON LEAVE OF ABSENCE, OR ON SICK LEAVE, RELIEVING HIM FROM DUTY AT HIS PERMANENT STATION, DURING OR AT THE TERMINATION OF HIS ABSENCE, UNLESS THE OFFICER, OR HIS AUTHORIZED AGENT, FILES REQUEST TO THE CONTRARY.

3. ADEQUACY OF QUARTERS.---

(A) IN DETERMINING THE ADEQUACY OF QUARTERS, THE OFFICER CHARGED WITH MAKING ASSIGNMENT OF QUARTERS, WHO IS COMPETENT SUPERIOR AUTHORITY FOR THAT PURPOSE, WILL GIVE DUE CONSIDERATION TO THE RANK OF THE OFFICER AND TO THE NUMBER, AGE, AND SEX OF DEPENDENTS, IF ANY.

(B) ANY QUARTERS AT HIS PERMANENT STATION VOLUNTARILY ACCEPTED AND OCCUPIED BY AN OFFICER WHO HAS NO DEPENDENTS OR BY AN OFFICER WITH HIS DEPENDENTS SHALL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE.

(C) ANY QUARTERS AT THE PERMANENT STATION OF THE OFFICERS INVOLVED VOLUNTARILY OCCUPIED JOINTLY BY TWO OR MORE OFFICERS HAVING NO DEPENDENTS; * * * SHALL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE FOR THE OCCUPANCY OF SUCH OFFICERS OR OF SUCH OFFICERS AND THEIR DEPENDENTS. IF THE QUARTERS SO JOINTLY OCCUPIED WERE PREVIOUSLY ASSIGNED TO ONE OF THE OFFICERS, THE ASSIGNMENT TO THE ONE OFFICER WILL BE TERMINATED AND A JOINT ASSIGNMENT MADE. A JOINT ASSIGNMENT OF QUARTERS SHALL BE TERMINATED IN SO FAR AS ANY PARTICULAR OFFICER IS CONCERNED WHEN THAT OFFICER (WITH HIS DEPENDENTS, IF ANY) CEASES TO PARTICIPATE IN THE JOINT OCCUPANCY OF SUCH QUARTERS.

WHILE THE LANGUAGE OF THESE REGULATIONS IS PROSPECTIVE THEY ARE APPLICABLE TO THE FACTS OF A CASE ARISING AT ANY TIME BETWEEN JULY 1, 1922, AND THE DATE OF THEIR ISSUANCE. AS APPLIED TO THE FACTS OF THIS CASE THE CLAIMANT WAS IN THE JOINT OCCUPANCY OF PUBLIC QUARTERS WITH A WARRANT OFFICER WHEN HE WENT ON LEAVE, THAT CONSTITUTED AN ASSIGNMENT OF ADEQUATE QUARTERS AT HIS PERMANENT STATION; AND THE REGULATIONS CONTAIN NO AUTHORITY FOR THE TERMINATION OF THAT ASSIGNMENT ON HIS DEPARTURE ON LEAVE OF ABSENCE AS HIS ORDERS DID NOT RELIEVE HIM FROM DUTY THERE AND HE ACTUALLY RETURNED TO THE SAME STATION AND RESUMED HIS DUTIES. BOTH BY THE PRESIDENT'S ORDER AND THE WAR DEPARTMENT REGULATIONS THE OFFICER WAS ASSIGNED ADEQUATE PUBLIC QUARTERS DURING THE PERIOD OF HIS LEAVE AND HE IS NOT ENTITLED TO RENTAL ALLOWANCE WHILE SO ABSENT ON LEAVE.

CLAIMANT WAS PAID RENTAL ALLOWANCE OCTOBER 16 TO 31, 1922, BY THE FINANCE OFFICER AT GOVERNORS ISLAND, N.Y., WHILE ON TEMPORARY DUTY THEREUNDER PARAGRAPH 12 OF SPECIAL ORDERS, 219 DATED WAR DEPARTMENT, SEPTEMBER 18, 1922, WHILE AWAITING DEPARTURE OF TRANSPORT. AS SHOWN ABOVE, DURING THIS PERIOD HE WAS ASSIGNED ADEQUATE PUBLIC QUARTERS AT HIS PERMANENT STATION. SUCH PAYMENT WAS CONTRARY TO THE TERMS OF THE LAW, THE EXECUTIVE ORDER OF AUGUST 13, 1924, AND THE WAR DEPARTMENT REGULATIONS CONTAINED IN CIRCULAR 66 OF OCTOBER 17, 1924. HE HAS BEEN OVERPAID THE SUM OF $20 AND THAT AMOUNT IS CERTIFIED DUE THE UNITED STATES. REMITTANCE SHOULD BE MADE TO THIS OFFICE WITHOUT DELAY. OTHERWISE SETTLEMENT IS ADHERED TO, THE CHANGE IN THE LAW NOT HAVING INCREASED THE RIGHTS OF OFFICERS ON THE STATE OF FACTS HERE PRESENTED.