A-7432, JUNE 13, 1925, 4 COMP. GEN. 1043

A-7432: Jun 13, 1925

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SUCH OCCUPANCY CONSTITUTES AN ASSIGNMENT OF ADEQUATE PUBLIC QUARTERS FOR THE OFFICER'S DEPENDENTS AT HIS PERMANENT STATION WITHIN THE MEANING OF THE RENTAL ALLOWANCE LAW AND THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY. 1925: THERE IS FOR DECISION THE QUESTION WHETHER LIEUT. IS ENTITLED TO REFUND TO $1. PENSACOLA WAS ORDERED TO GUAM AS STATION SHIP. THAT AS COMMANDING OFFICER OF SAID SHIP LIEUTENANT COMMANDER LOWRY WAS GIVEN VERBAL PERMISSION BY THE COMMANDANT OF THE STATION FOR HIS WIFE TO LIVE ON BOARD THE VESSEL WHILE IN PORT. CLAIMANT STATES THAT THE SHIP WAS NOT ALTERED IN ANY WAY TO PROVIDE SUITABLE QUARTERS FOR HIS WIFE AND THAT NO SPACE WAS OCCUPIED EITHER BY HIMSELF OR WIFE OTHER THAN THE QUARTERS ASSIGNED TO HIM FOR HIS PERSONAL USE.

A-7432, JUNE 13, 1925, 4 COMP. GEN. 1043

RENTAL ALLOWANCE - NAVAL OFFICER AND WIFE OCCUPYING QUARTERS ABOARD SHIP WHERE THE WIFE OF THE COMMANDING OFFICER OF AN NAVY STATION SHIP, BY PERMISSION OF THE COMMANDANT OF THE STATION, OCCUPIES WITH HER HUSBAND QUARTERS ABOARD THE SHIP, SUCH OCCUPANCY CONSTITUTES AN ASSIGNMENT OF ADEQUATE PUBLIC QUARTERS FOR THE OFFICER'S DEPENDENTS AT HIS PERMANENT STATION WITHIN THE MEANING OF THE RENTAL ALLOWANCE LAW AND THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 13, 1925:

THERE IS FOR DECISION THE QUESTION WHETHER LIEUT. COMMANDER F. J. LOWRY, UNITED STATES NAVY, IS ENTITLED TO REFUND TO $1,177.56 COMMUTATION OF QUARTERS AND RENTAL ALLOWANCE RECEIVED FOR THE PERIOD MAY 13, 1922, TO SEPTEMBER 30, 1923, AND SUBSEQUENTLY CHECKED AGAINST HIS ACCOUNT.

IT APPEARS THAT THE U.S.S. PENSACOLA WAS ORDERED TO GUAM AS STATION SHIP, ARRIVING THERE MAY 13, 1922; THAT AS COMMANDING OFFICER OF SAID SHIP LIEUTENANT COMMANDER LOWRY WAS GIVEN VERBAL PERMISSION BY THE COMMANDANT OF THE STATION FOR HIS WIFE TO LIVE ON BOARD THE VESSEL WHILE IN PORT. CLAIMANT STATES THAT THE SHIP WAS NOT ALTERED IN ANY WAY TO PROVIDE SUITABLE QUARTERS FOR HIS WIFE AND THAT NO SPACE WAS OCCUPIED EITHER BY HIMSELF OR WIFE OTHER THAN THE QUARTERS ASSIGNED TO HIM FOR HIS PERSONAL USE, AND THAT BECAUSE SUCH SPACE WAS INADEQUATE HE RENTED QUARTERS ON SHORE FOR HIS WIFE'S BELONGINGS AND A PLACE OF PERMANENT ABODE. THE COMMANDANT OF THE STATION IN LETTER OF MAY 27, 1924, STATES THAT NO TIME HAD THERE BEEN PUBLIC QUARTERS ASHORE AVAILABLE FOR ASSIGNMENT TO LIEUTENANT COMMANDER LOWRY OR FOR HIS DEPENDENTS, AND THAT MRS. LOWRY CAME FROM SAN FRANCISCO IN THE PENSACOLA WHEN THAT SHIP WAS ORDERED TO GUAM AS STATION SHIP AND "HAS RESIDED ON BOARD THE SHIP EVER SINCE.'

THE LAW AUTHORIZES RENTAL ALLOWANCE TO OFFICERS WITH DEPENDENTS WHILE ON SEA DUTY AND HIS DEPENDENTS ARE NOT ASSIGNED PUBLIC QUARTERS. PARAGRAPH 4 OF SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 251, PROVIDES THAT:

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.

IN THIS CASE CLAIMANT'S DEPENDENT ACTUALLY OCCUPIED WITH HIM QUARTERS ASSIGNED HIM FOR HIS PERSONAL USE AND THE QUESTION IS WHETHER SUCH OCCUPANCY CONSTITUTES AN ASSIGNMENT AT THE OFFICER'S PERMANENT STATION OF ADEQUATE QUARTERS FOR HIS DEPENDENT. THE LAW PROVIDED THAT THE PRESIDENT SHOULD MAKE REGULATIONS FOR CARRYING INTO EFFECT THE PROVISIONS THEREOF. EXECUTIVE ORDER OF AUGUST 13, 1924, PURSUANT TO SUCH PROVISION, DEFINES THE TERMS "ASSIGNMENT," "PERMANENT STATION," AND ADEQUACY OF QUARTERS AS FOLLOWS:

I. (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. * * * (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.

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 THAT VOLUNTARY OCCUPATION BY AN OFFICER AND HIS DEPENDENTS OF QUARTERS ASSIGNED SHALL BE CONCLUSIVE PROOF THAT THEY ARE ADEQUATE.

IN NO SITUATION IS IT APPARENT THAT THE LAW CONTEMPLATES THAT AN OFFICER SHALL BE ENTITLED TO RENTAL ALLOWANCE WHILE HE AND HIS DEPENDENT ACTUALLY OCCUPY PUBLIC QUARTERS ASSIGNED TO HIM. IT IS NOT WITHIN THE SPIRIT AND PURPOSE OF THE LAW TO FURNISH AN OFFICER AND HIS DEPENDENTS QUARTERS AND ALLOW HIM RENTAL ALLOWANCE AT THE SAME TIME. FOR THAT REASON THE REGULATIONS QUOTED ABOVE PROVIDE THAT A RECEIVING SHIP ON WHICH AN OFFICER IN FACT OCCUPIES WITH HIS DEPENDENTS PUBLIC QUARTERS ASSIGNED TO HIM WITHOUT CHARGE SHALL BE DEEMED DURING SUCH OCCUPANCY TO BE HIS PERMANENT STATION. ALTHOUGH THE REGULATIONS MAKE NO SUCH PROVISION RELATIVE TO A STATION SHIP, THE CONDITION IN THIS INSTANCE IS ANALOGOUS TO THAT OF A RECEIVING SHIP. THE FACT THAT INSTEAD OF CRUISING ABOUT THE SHIP REMAINS AT THE STATION MAKES IT FEASIBLE FOR THE CAPTAIN'S DEPENDENTS TO LIVE ON BOARD AS DID CLAIMANT'S WIFE. CLAIMANT STATES IN SUPPORT OF HIS CLAIM THAT THE FORMER STATION SHIP AT GUAM, THE U.S.S. SUPPLY, WAS PROVIDED WITH SUITABLE QUARTERS FOR THE CAPTAIN'S DEPENDENTS, BUT THAT REQUEST FOR ALTERATIONS PROVIDING SUITABLE QUARTERS FOR HIS WIFE ON THE U.S.S. PENSACOLA WAS DISAPPROVED BY THE COMMANDER IN CHIEF; AND FURTHER STATES THAT IF ALTERATIONS OF QUARTERS ON THE SHIP HAD BEEN MADE FOR HIS WIFE'S USE AND CONVENIENCE HE WOULD ADMIT THAT HIS WIFE OCCUPIED PUBLIC QUARTERS WITHIN THE MEANING OF THE LAW. IT THUS APPEARS THAT AS A STATION SHIP THE PENSACOLA WAS IN A STATUS ANALOGOUS TO THAT OF A RECEIVING SHIP AND THAT WITHIN THE SPIRIT AND INTENT OF THE LAW, DURING THE PERIOD THAT LIEUTENANT COMMANDER LOWRY OCCUPIED WITH HIS WIFE QUARTERS THEREON ASSIGNED TO HIM IT SHOULD BE DEEMED HIS PERMANENT STATION WITHIN THE MEANING OF THE LAW GOVERNING RENTAL ALLOWANCE.

THE PERMISSION GRANTED CLAIMANT BY THE COMMANDANT OF THE STATION FOR HIS WIFE TO LIVE ON BOARD THE U.S.S. PENSACOLA WHILE IN PORT, AND THE VOLUNTARY OCCUPATION OF QUARTERS THEREON BY HIMSELF AND WIFE CONSTITUTED AN ASSIGNMENT OF ADEQUATE PUBLIC QUARTERS AT THIS PERMANENT STATION FOR HIMSELF AND DEPENDENTS WITHIN THE MEANING OF THE LAW.

ACCORDINGLY, PAYMENT OF COMMUTATION OF QUARTERS AND RENTAL ALLOWANCE FOR THE PERIOD IN QUESTION WAS ERRONEOUS AND CLAIMANT IS NOT ENTITLED TO REFUND OF THE AMOUNTS CHECKED AGAINST HIS ACCOUNT BY REASON OF SUCH ERRONEOUS PAYMENT.