A-86415, JUNE 1, 1937, 16 COMP. GEN. 1047

A-86415: Jun 1, 1937

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IS NOT ENTITLED TO RENTAL ALLOWANCE. NOTWITHSTANDING THE QUARTERS ARE NOT THE EXACT NUMBER OF ROOMS WHICH MAY BE ASSIGNED. 937: THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF SECOND LIEUTENANT GEORGE F. THE ABOVE REQUEST IS MADE FOR THE FOLLOWING REASONS: A. THE OFFICER SUBMITTING THE VOUCHER IS A RESERVE OFFICER ON ACTIVE DUTY UNDER THE PROVISIONS OF THE THOMASON BILL. COPY OF WHICH WAS FURNISHED YOUR CORPS AREA HAS EQUAL APPLICATION IN THE CASE OF RESERVE OFFICERS CALLED TO ACTIVE DUTY UNDER THE THOMASON BILL AND NO OFFICER WITHOUT DEPENDENTS OCCUPYING GOVERNMENT QUARTERS OF ANY KIND WILL BE PAID RENTAL ALLOWANCE.

A-86415, JUNE 1, 1937, 16 COMP. GEN. 1047

QUARTERS - RENTAL ALLOWANCE - RESERVE OFFICERS ON DUTY WITH REGULAR ARMY - ADEQUACY OF QUARTERS ASSIGNED A RESERVE OFFICER OF THE ARMY, WITHOUT DEPENDENTS, ON ACTIVE DUTY WITH THE REGULAR ARMY UNDER AUTHORITY OF THE ACT OF AUGUST 30, 1935, 49 STAT. 1028, AND ASSIGNED PUBLIC QUARTERS, IS NOT ENTITLED TO RENTAL ALLOWANCE, NOTWITHSTANDING THE QUARTERS ARE NOT THE EXACT NUMBER OF ROOMS WHICH MAY BE ASSIGNED, IF AVAILABLE, TO AN OFFICER OF HIS RANK.

ACTING COMPTROLLER GENERAL ELLIOTT TO CAPTAIN E. H. DESAUSSURE, UNITED STATES ARMY, JUNE 1, 937:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF SECOND LIEUTENANT GEORGE F. ANDERSON, CHEMICAL WARFARE SERVICE RESERVE, UNITED STATES ARMY, COVERING RENTAL ALLOWANCE FOR THE PERIOD FROM JULY 5, 1936, TO FEBRUARY 28, 1937, WHILE ON ACTIVE DUTY WITH THE REGULAR ARMY UNDER AUTHORITY OF THE ACT OF AUGUST 30, 1935, 49 STAT. 1028. YOU STATE IN PART:

2. THE ABOVE REQUEST IS MADE FOR THE FOLLOWING REASONS:

A. THE OFFICER SUBMITTING THE VOUCHER IS A RESERVE OFFICER ON ACTIVE DUTY UNDER THE PROVISIONS OF THE THOMASON BILL.

B. 3RD INDORSEMENT, A.G. 353 O.R.C. (9-2-36) MISC.D, DATED SEPTEMBER 29, 1936 TO THE COMMANDING GENERAL, 3RD CORPS AREA STATES: "THE OPINION OF THE COMPTROLLER GENERAL REFERRED TO IN RADIOGRAM OF AUGUST 9, 1935, A.A.G. 324.5, C.C.C. (8-2-36) (MISC.) C. OF F., COPY OF WHICH WAS FURNISHED YOUR CORPS AREA HAS EQUAL APPLICATION IN THE CASE OF RESERVE OFFICERS CALLED TO ACTIVE DUTY UNDER THE THOMASON BILL AND NO OFFICER WITHOUT DEPENDENTS OCCUPYING GOVERNMENT QUARTERS OF ANY KIND WILL BE PAID RENTAL ALLOWANCE. YOU WILL TAKE THE NECESSARY ACTION TO RECOVER ANY RENTAL ALLOWANCE PAID CONTRARY TO THE ABOVE.'

C. PARAGRAPHS 2, 3, AND 4 OF LETTER FROM THE COMMANDING OFFICER, EDGEWOOD ARSENAL, MD., DATED JANUARY 19, 1937, TO THE ADJUTANT GENERAL, WASHINGTON, D.C., SUBJECT: COMMUTATION OF QUARTERS FOR RESERVE OFFICERS (THOMASON ACT) ARE AS FOLLOWS:

"2. IT IS NOTED IN THE ARMY AND NAVY JOURNAL OF JANUARY 16, 1937, THAT IN TWO TEST CASES DECIDED BY THE COURT OF CLAIMS, BACHELOR OFFICERS OF THE ARMY WHO LIVED IN TENTS WHILE ASSIGNED TO DUTY WITH THE C.C.C. WERE HELD TO BE ENTITLED TO RENTAL ALLOWANCES AND THAT THE COURT UNANIMOUSLY HELD THAT OFFICERS WERE ENTITLED TO RENTAL ALLOWANCE EXCEPT WHEN AN OFFICER WAS ON FIELD OR SEA DUTY OR WHILE OCCUPYING PUBLIC QUARTERS FOUND TO BE ADEQUATE BY PROPER AUTHORITY.

"3.A SECOND LIEUTENANT IS ENTITLED BY REGULATIONS TO TWO ROOMS AND BATH. PARAGRAPH 12, II (C), ARMY REGULATIONS 35-4220, INDICATES THAT ONE ROOM AND BATH IS CONSIDERED INADEQUATE FOR ANY OFFICER. THE RESERVE OFFICERS ON ACTIVE DUTY AT EDGEWOOD ARSENAL UNDER THE THOMASON ACT ARE QUARTERED IN A TEMPORARY WAR-TIME BUILDING WHICH WAS REMODELED AS A SCHOOL DORMITORY. EACH OFFICER HAS ONE ROOM, ABOUT 9 FEET BY 10 FEET WHICH CONTAINS A QUARTERMASTER BED, A BUREAU, A TABLE, A CHAIR, AND AN OPEN CLOSET BUILT OUT INTO THE ROOM. THERE ARE SEVENTEEN OF THESE OFFICERS OCCUPYING THESE ROOMS AND THERE ARE EIGHT MORE OFFICERS IN SIMILAR ROOMS IN THE SAME BUILDING WHEN THE CHEMICAL WARFARE SCHOOL IS IN SESSION. FOR THE TWENTY- FIVE OFFICERS IN THIS BUILDING, THERE ARE THREE TOILETS, SIX WASH BASINS, AND FIVE SHOWERS IN A COMMON LAVATORY.

"4. THE OFFICERS ORIGINALLY CONCERNED, ACCEPTED, UNDER PROTEST, THESE MANIFESTLY INADEQUATE ACCOMMODATIONS ON THE POST TO OBVIATE THE INTERFERENCE WITH THEIR DUTIES WHICH WOULD BE CAUSED BY LIVING IN BEL AIR, NINE MILES AWAY, WHICH IS THE NEAREST PLACE WHERE THEY COULD OBTAIN SUITABLE ACCOMMODATIONS. LATER, THE COMMANDING OFFICER, EDGEWOOD ARSENAL, WAS INFORMED BY THE COMMANDING GENERAL, 3RD CORPS AREA, THAT THESE OFFICERS COULD NOT BE PERMITTED TO LIVE OFF THE POST AND BE GRANTED RENTAL ALLOWANCE UNLESS THERE WAS NO SHELTER OF ANY KIND AVAILABLE FOR ASSIGNMENT TO THEM AT EDGEWOOD ARSENAL.'

WHILE OFFICERS MAY BE ASSIGNED THE NUMBER OF ROOMS PROVIDED FOR THEIR RANK BY THE ACT OF MARCH 2, 1907, 34 STAT. 1169, THE EXECUTIVE ORDER OF AUGUST 13, 1924, PROMULGATED IN THE EXECUTION OF THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, AUTHORIZES THE ASSIGNMENT OF A LESS NUMBER OF ROOMS IN A PARTICULAR CASE OR OF A GREATER NUMBER OF ROOMS WHERE THE ARRANGEMENT OF ROOMS IN A DWELLING IS SUCH THAT SEPARATION INTO SMALLER QUARTERS IS IMPRACTICABLE AND DIRECTS THAT THE REGULATIONS SHALL PROVIDE, AMONG OTHER THINGS, THAT QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS SHALL BE ASSIGNED ACCORDINGLY. ARMY REGULATIONS 210-70 2 (BL) (2) PROVIDES:

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

THE RENTAL ALLOWANCE STATUTE AND THE REGULATIONS IN EXECUTION THEREOF DO NOT PERMIT AN OFFICER TO BE ASSIGNED AND TO OCCUPY QUARTERS AT HIS PERMANENT STATION AND FOR THE PERIOD OF OCCUPANCY BE PAID AN ALLOWANCE PROVIDED SOLELY FOR THE HIRE OF QUARTERS WHEN QUARTERS IN KIND ARE NOT FURNISHED. SUCH WAS THE CONSTRUCTION OF THE LAW BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF HENRY P. CARTER V. THE UNITED STATES, 79 CT.CLS. 166. THE OPINION IS IN PART AS FOLLOWS:

THE QUARTERS OCCUPIED BY PLAINTIFF WERE REGULARLY ASSIGNED TO HIM BY COMPETENT SUPERIOR AUTHORITY AND WERE OCCUPIED WITHOUT PROTEST UNTIL APRIL 30, 1931. ON THAT DATE HE PROTESTED THE INADEQUACY OF THE QUARTERS THEN BEING OCCUPIED BUT CONTINUED TO OCCUPY THEM. HE INCURRED NO ADDITIONAL EXPENSE FOR OTHER QUARTERS OUTSIDE OF THE GOVERNMENT RESERVATION UNTIL THE ASSIGNMENT OF SUCH QUARTERS WAS TERMINATED BY THE SECRETARY OF WAR ON FEBRUARY 20, 1932, IN THE MANNER PROVIDED BY THE STATUTE AND THE REGULATIONS. IN THESE CIRCUMSTANCES THE COURT IS OF THE OPINION THAT UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED BY SECTION 2, ACT OF MAY 31, 1924, 43 STAT. 250, 251, EXECUTIVE ORDER NO. 4063, PROMULGATED AUGUST 13, 1924, AND ARMY REGULATIONS 210-70, THE PLAINTIFF IS NOT ENTITLED TO RECOVER THE RENTAL ALLOWANCES CLAIMED FOR THE PERIOD MAY 1, 1931, TO JANUARY 31, 1932, INCLUSIVE, AND THAT THE DEFENDANT'S COUNTERCLAIM FOR $400, WITH INTEREST, FOR RENTAL ALLOWANCES PAID FOR THE PERIOD MAY 1, 1931, TO SEPTEMBER 30, 1931, MUST BE ALLOWED. ODELL V. UNITED STATES, 38 CT.CLS. 194, 197-198; IRWIN V. UNITED STATES, 38 CT.CLS. 87.

IN RESPECT TO THE "TWO TEST CASES DECIDED BY THE COURT OF CLAIMS" YOU ARE ADVISED THAT IN THE VIEW OF THIS OFFICE THE DECISION OF THE COURT OF CLAIMS RENDERED THEREIN HAS NO APPLICATION TO THE RIGHT OF SECOND LIEUTENANT ANDERSON TO RENTAL ALLOWANCE. IN THE CASES OF BOTH LEE AND O- MOHUNDRO, THE CLAIMANTS WERE AWAY FROM THEIR RESPECTIVE PERMANENT STATIONS ON TEMPORARY DUTY AT CIVILIAN CONSERVATION CORPS CAMPS AND THE QUESTION INVOLVED WAS NOT WHETHER THEY WERE ASSIGNED ADEQUATE QUARTERS AT CIVILIAN CONSERVATION CORPS CAMPS BUT WAS WHETHER THEY WERE IN FACT ASSIGNED QUARTERS AT THEIR RESPECTIVE PERMANENT STATIONS FROM WHENCE THEY WERE AWAY. IT IS NOT UNDERSTOOD THAT THE COURT OF CLAIMS REVERSED ITS DECISION IN THE CARTER CASE. THE OPINION AND THE FINDINGS IN BOTH CASES INDICATE THAT THE HOLDING OF THE COURT WAS THAT WHERE AN OFFICER'S ASSIGNMENT OF QUARTERS AT HIS PERMANENT STATION IS NOT FORMALLY TERMINATED UPON HIS DEPARTURE THEREFROM FOR TEMPORARY DUTY THERE IS NEVERTHELESS A TERMINATION IN FACT OF SUCH ASSIGNMENT WHERE HIS PERSONAL EFFECTS ARE REMOVED FROM HIS QUARTERS AND HIS QUARTERS ARE OCCUPIED BY OTHERS.

UNDER THE TERMS OF THE RENTAL ALLOWANCE STATUTE, THE REGULATIONS, AND THE DECISION OF THE COURT OF CLAIMS IN THE CARTER CASE, SECOND LIEUTENANT GEORGE F. ANDERSON IS NOT ENTITLED TO RENTAL ALLOWANCE FOR THE PERIOD OF HIS CLAIM. YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.