A-97802, SEPTEMBER 30, 1938, 18 COMP. GEN. 299

A-97802: Sep 30, 1938

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THAT THE QUARTERS ASSIGNED TO AN ARMY OFFICER AND HIS DEPENDENTS WERE INADEQUATE WHILE ORDINARY REPAIRS WERE BEING MADE. REQUESTING DECISION WHETHER ON THE EVIDENCE SUBMITTED YOU ARE AUTHORIZED TO PAY VOUCHER IN FAVOR OF FIRST LT. FIRST LIEUTENANT REIDY WAS ASSIGNED QUARTERS 2'S AT THAT STATION. IT WAS DETERMINED THAT SAID QUARTERS WERE INADEQUATE FOR THE PERIOD FROM MAY 1 TO 31. APPARENTLY THAT DETERMINATION WAS BASED ON REPORT OF THE QUARTERMASTER OF THAT STATION UNDER DATE OF JUNE 13. THE PLASTERING THROUGHOUT QUARTERS 2'S WAS IN A DANGEROUS CONDITION AND THE BUILDING REQUIRED EXTENSIVE REPAIRS INCLUDING RECONDITIONING AND MODERNIZATION OF PLUMBING. THIS NECESSARY WORK WOULD HAVE BEEN ACCOMPLISHED PRIOR TO THE ASSIGNMENT OF THESE QUARTERS TO LIEUTENANT REIDY HAD IT NOT BEEN FOR THE FACT THAT THIS REQUIRED WORK WAS HALTED DUE TO ITS HAVING BEEN ORDERED ABANDONED ON ACCOUNT OF SICKNESS OF THE WIFE OF THE PREVIOUS OCCUPANT.

A-97802, SEPTEMBER 30, 1938, 18 COMP. GEN. 299

RENTAL ALLOWANCE - ASSIGNED QUARTERS UNDERGOING REPAIRS THE MERE DECLARING BY SPECIAL ORDERS ISSUED AFTER THE PERIOD INVOLVED, THAT THE QUARTERS ASSIGNED TO AN ARMY OFFICER AND HIS DEPENDENTS WERE INADEQUATE WHILE ORDINARY REPAIRS WERE BEING MADE, DOES NOT AUTHORIZE PAYMENT TO THE OFFICER OF RENTAL ALLOWANCE FOR THE PERIOD INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. CHARLES LEWIS, UNITED STATES ARMY, SEPTEMBER 30, 938:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 23, 1938, AND INCLOSURES, REQUESTING DECISION WHETHER ON THE EVIDENCE SUBMITTED YOU ARE AUTHORIZED TO PAY VOUCHER IN FAVOR OF FIRST LT. RICHARD F. REIDY, TWENTY-EIGHTH INFANTRY, FORT NIAGARA, N.Y., REPRESENTING RENTAL ALLOWANCE FOR THE PERIOD MAY 1 TO 31, 1938.

IT APPEARS THAT UNDER SPECIAL ORDERS NO. 138, AUGUST 4, 1936, HEADQUARTERS FORT NIAGARA, N.Y., FIRST LIEUTENANT REIDY WAS ASSIGNED QUARTERS 2'S AT THAT STATION; THAT BY SPECIAL ORDERS NO. 106, JULY 19, 1938, IT WAS DETERMINED THAT SAID QUARTERS WERE INADEQUATE FOR THE PERIOD FROM MAY 1 TO 31, 1938, INCLUSIVE. APPARENTLY THAT DETERMINATION WAS BASED ON REPORT OF THE QUARTERMASTER OF THAT STATION UNDER DATE OF JUNE 13, 1938, AS FOLLOWS:

1. THE PLASTERING THROUGHOUT QUARTERS 2'S WAS IN A DANGEROUS CONDITION AND THE BUILDING REQUIRED EXTENSIVE REPAIRS INCLUDING RECONDITIONING AND MODERNIZATION OF PLUMBING, ETC. THIS NECESSARY WORK WOULD HAVE BEEN ACCOMPLISHED PRIOR TO THE ASSIGNMENT OF THESE QUARTERS TO LIEUTENANT REIDY HAD IT NOT BEEN FOR THE FACT THAT THIS REQUIRED WORK WAS HALTED DUE TO ITS HAVING BEEN ORDERED ABANDONED ON ACCOUNT OF SICKNESS OF THE WIFE OF THE PREVIOUS OCCUPANT. SINCE, FUNDS HAVE BEEN MADE AVAILABLE FOR THE WORK AS AN APPROVED PROJECT UNDER THE CURRENT W.P.A. PROGRAM. THE PRESENT WORK WAS INITIATED AND SO ARRANGED AS TO PERMIT PERFORMING IT IN A ,PIECE-MEAL" FASHION IN ORDER THAT THE OCCUPANTS WOULD NOT BE UNDULY INCONVENIENCED.

2. PROGRESS WAS NATURALLY SLOW UNDER SUCH CONDITIONS AND CONSIDERABLE ANNOYANCE WAS OCCASIONED BY THE DUST AND GRIME CREATED IN THE REMOVAL OF THE OLD PLASTER AND UPON THE REQUEST OF LIEUTENANT REIDY TO SUSPEND WORK IN HIS QUARTERS DURING THE ABSENCE OF HIS FAMILY, WHO WERE CONTEMPLATING BEING AWAY FROM THE POST FOR THE PERIOD LIEUTENANT REIDY WAS TO BE ON DUTY AT PINE CAMP IT WAS MUTUALLY AGREED TO PLACE ALL OF HIS PROPERTY IN ONE ROOM, THUS PERMITTING THE REMAINING WORK TO BE RUSHED TO COMPLETION AT THE EARLIEST MOMENT. HOWEVER, DUE TO UNFORESEEN CIRCUMSTANCES WHICH NECESSITATED CLOSING THE W.P.A. WORK SCHEDULE FOR ONE WEEK THE WORK WAS NOT FULLY COMPLETED UPON LIEUTENANT REIDY'S RETURN TO THE POST.

3. THE QUARTERS WERE NOT SUITABLE FOR OCCUPANCY DURING THE PERIOD LIEUTENANT REIDY WAS ABSENT FROM THE POST FOR THE REASONS STATED AND FOR A PERIOD OF APPROXIMATELY FIVE (5) DAYS AFTER HIS RETURN. DUE TO THE NECESSITY FOR REPLACING THE CHIMNEY HE COULD NOT HEAT HIS QUARTERS. HOWEVER, SINCE THAT TIME THE QUARTERS COULD HAVE BEEN OCCUPIED, BUT IT IS ADMITTED THAT THEY WERE NOT PREPOSSESSING IN APPEARANCE DUE TO THE NEED OF PAINTING PARTICULARLY WHERE PLASTERING WORK HAD BEEN PERFORMED.

THE REGULATIONS AR 210-70, BK (1), PRESCRIBE CONDITIONS IN WHICH THE COMMANDING OFFICER OF THE STATION MAY TERMINATE AN OFFICER'S ASSIGNMENT OF QUARTERS, AND FURTHER PROVIDES IN PARAGRAPHS (2) AND (4) THEREOF AS FOLLOWS:

(2) UNDER CONDITIONS OTHER THAN THOSE ENUMERATED IN (1) ABOVE, AN OFFICER'S ASSIGNMENT TO QUARTERS AT HIS PERMANENT STATION WILL BE TERMINATED ONLY UPON THE SPECIFIC AUTHORITY OF THE CORPS AREA COMMANDER, OR THE ADJUTANT GENERAL IN CASE OF AN EXEMPTED STATION.

(4) THE COMMANDING OFFICER CHARGED WITH TERMINATING ASSIGNMENT TO QUARTERS WILL, IN ALL CASES, IMMEDIATELY NOTIFY THE OFFICER CONCERNED, IN WRITING, WHEN HIS ASSIGNMENT TO QUARTERS IS TERMINATED, STATING THE SPECIFIC CONDITION UNDER WHICH TERMINATION IS ACCOMPLISHED, WHICH CONDITION MUST BE ONE OF THOSE ENUMERATED IN (1) AND (2) ABOVE. THE ACTUAL DATE OF TERMINATION OF AN ASSIGNMENT OF QUARTERS WILL IN NO CASE BE EARLIER THAN THE DATE OF VACATION OF SUCH QUARTERS.

IN THIS CASE IT IS APPARENT THERE WAS NO TERMINATION OF CLAIMANT'S ASSIGNMENT TO QUARTERS UNDER THE PROVISIONS OF THE REGULATIONS CITED AND QUOTED ABOVE. AR 210-70, BL (1) PROVIDES:

IN DETERMINING THE ADEQUACY OF QUARTERS THE COMMANDING OFFICER MAKING ASSIGNMENT WILL GIVE DUE CONSIDERATION TO THE RANK OF THE OFFICER AND TO THE NUMBER, AGE, AND SEX OF DEPENDENTS, IF ANY.

UNDER THE REGULATIONS THE QUESTION AS TO ADEQUACY OF AVAILABLE QUARTERS FOR ASSIGNMENT TO A PARTICULAR OFFICER SEEMS TO BE FOR DETERMINATION BY THE COMMANDING OFFICER AT TIME OF ASSIGNMENT. THE REGULATIONS SEEM TO MAKE NO PROVISION THAT A SUBSEQUENT DETERMINATION THAT FOR A BRIEF PERIOD WHILE THE QUARTERS ARE BEING REPAIRED THEY ARE INADEQUATE, AUTOMATICALLY TERMINATES THE ASSIGNMENT FOR SUCH PERIOD. IF THE SPECIAL ORDER OF JULY 19, 1938, WAS INTENDED AS AUTHORITY TO TERMINATE CLAIMANT'S QUARTERS FOR THE MONTH OF MAY 1938, UNDER THE PROVISIONS OF PARAGRAPH (2) OF AR 210-70, BL, SUCH ACTION SEEMS NOT TO BE IN ACCORD WITH PROVISIONS OF PARAGRAPH (4) THEREOF. ALSO, SUCH ACTION SEEMS NOT TO BE IN ACCORD WITH AR 210-70, BJ (5), PROVIDING AS FOLLOWS:

REASSIGNMENT TO OFFICERS REQUIRED TO VACATE QUARTERS.--- EVERY OFFICER DEPRIVED OF HIS QUARTERS UNDER ANY CONDITIONS OTHER THAN THOSE STATED IN BK (1) (A), (C), AND (D) BELOW WILL BE IMMEDIATELY ASSIGNED OTHER ADEQUATE QUARTERS, IF AVAILABLE, AS DETERMINED UNDER THE PROVISIONS OF (3) ABOVE AND BELOW.

MOREOVER, IT IS NOT APPARENT THAT BY REASON OF THE ANNOYANCE AND INCONVENIENCE OCCASIONED BY ORDINARY REPAIRS TO QUARTERS, AS INDICATED IN THIS CASE, AT A TIME WHEN THE OFFICER'S DEPENDENTS FIND IT CONVENIENT TO BE ABSENT FROM THE POST IS A DEPRIVATION OF QUARTERS IN CONTEMPLATION OF THE REGULATIONS.

IN THE CIRCUMSTANCES APPEARING, IT IS CONCLUDED THAT CLAIMANT'S ASSIGNMENT OF QUARTERS WAS NOT TERMINATED BY SPECIAL ORDERS NO. 106 OF JULY 19, 1938, DECLARING HIS QUARTERS INADEQUATE FROM MAY 1 TO 31, 1938, AND, SINCE DURING SAID PERIOD CLAIMANT WAS ASSIGNED QUARTERS AT HIS REGULAR STATION, HE IS NOT ENTITLED TO RENTAL ALLOWANCE FOR SAID PERIOD.