B-116779, FEBRUARY 1, 1954, 33 COMP. GEN. 328

B-116779, FEBRUARY 1, 1954, 33 COMP. GEN. 328

QUARTERS ALLOWANCE - RESERVE OFFICERS ON 15 DAYS ACTIVE DUTY FOR TRAINING - CONCURRENT RECEIPT OF QUARTERS ALLOWANCE INCIDENT TO CIVILIAN POSITION A CIVILIAN EMPLOYEE OF THE GOVERNMENT ON DUTY OVERSEAS ACCOMPANIED BY DEPENDENTS AND RECEIVING QUARTERS ALLOWANCE INCIDENT TO SUCH EMPLOYMENT WHO, AS RESERVE OFFICER, WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR 15 DAYS AND FURNISHED BACHELOR OFFICERS QUARTERS, IS ENTITLED TO QUARTERS ALLOWANCE AS OFFICER WITH DEPENDENTS FOR PERIOD OF SUCH TRAINING, EVEN THOUGH RECEIVING QUARTERS ALLOWANCE FOR SAME PERIOD INCIDENT TO CIVILIAN EMPLOYMENT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO FIRST LIEUTENANT R. L. THACKERY, DEPARTMENT OF THE ARMY, FEBRUARY 1, 1954:

BY THIRD ENDORSEMENT DATED AUGUST 24, 1953, THE CHIEF OF FINANCE DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF JUNE 29, 1953, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A SUPPLEMENTAL VOUCHER TRANSMITTED THEREWITH, STATED IN FAVOR OF MAJOR JOSEPH S. KORFANTY, AGC, USAR, XXX-XX-XXXX, COVERING BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT WIFE FOR THE PERIOD MAY 24 TO JUNE 7, 1953.

IT APPEARS THAT BY LETTER ORDERS DATED MAY 11, 1953, HEADQUARTERS, UNITED STATES ARMY, EUROPE, MAJOR KORFANTY WAS ORDERED TO ACTIVE DUTY FOR TRAINING FROM 7935 USAR CONTROL GROUP REINF) USAREUR COMMUNICATION ZONE MILITARY DISTRICT, APO 58, U.S. ARMY, AND ATTACHED TO HEADQUARTERS, USAREUR COMMUNICATION ZONE, APO 58, ORLEANS, FRANCE, FOR THE PERIOD FROM MAY 24 TO JUNE 7, 1953, TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS NOT BEING AUTHORIZED. IN YOUR LETTER YOU STATE THAT MAJOR KORFANTY IS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE ON DUTY IN FRANCE, ACCOMPANIED BY DEPENDENTS, AND RECEIVING A QUARTERS ALLOWANCE INCIDENT TO SUCH CIVILIAN EMPLOYMENT; THAT WHEN HE WAS ORDERED TO ACTIVE DUTY FOR TRAINING HE WAS GIVEN MILITARY LEAVE, WITH PAY AND ALLOWANCES, BY THE DEPARTMENT OF THE AIR FORCE; THAT HE WAS FURNISHED BACHELOR OFFICERS' QUARTERS WHILE ON ACTIVE-DUTY TRAINING, AND THAT UPON COMPLETION OF THE TRAINING HE WAS PAID BASE PAY AND BASIC ALLOWANCE FOR SUBSISTENCE ONLY. YOU FURTHER STATE THAT " DECISION 20 C.G. 282 PROVIDES FOR ACTIVE DUTY PAY BUT DOES NOT MAKE CLEAR THE POSSIBILITY OF DUAL QUARTERS ALLOWANCE PAYMENTS," AND YOU REQUEST TO BE ADVISED AS TO WHETHER THIS DUAL PAYMENT FOR QUARTERS MAY BE MADE UNDER DUAL COMPENSATION LAWS PRESENTLY EXISTING.

UNDER THE ACT OF MAY 12, 1918, 40 STAT. 72, AS AMENDED, 10 U.S.C.A. 371, OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES ARE ENTITLED TO A MAXIMUM OF 15 DAYS' MILITARY LEAVE OF ABSENCE FROM THEIR CIVILIAN DUTIES EACH YEAR FOR THE PERFORMANCE OF ACTIVE DUTY FOR TRAINING, ACTIVE DUTY, ETC., UNDER ORDERS OF COMPETENT MILITARY AUTHORITY. DURING SUCH LEAVE THEY ARE PROTECTED BY THE STATUTE AGAINST "LOSS OF PAY, TIME, OR EFFICIENCY RATING" IN THEIR CIVILIAN POSITIONS. THE SAID ACT, AS AMENDED, FURTHER PROVIDES AS FOLLOWS (QUOTING FROM 10 U.S.C.A. 371B):

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES * * * .

THE DOUBLE COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, PROHIBITS THE RECEIPT OF MORE THAN ONE FEDERAL "SALARY" WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, AND THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES THAT ONE HOLDING AN OFFICE WITH "SALARY OR ANNUAL COMPENSATION" AMOUNTING TO $2,500 SHALL NOT BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED "UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.'

WHILE THE SAID DUAL COMPENSATION OR EMPLOYMENT STATUTES REFER TO "SALARIES" AND "COMPENSATION" AND THAT THE ACT OF MAY 12, 1917, AS AMENDED, REFERS TO "PAY" (INSOFAR AS CIVILIAN SERVICE IS CONCERNED), IT SEEMS EVIDENT THAT ONE OF THE MAIN PURPOSES OF THE LATTER ACT, AS AMENDED, WAS TO PLACE OUTSIDE THE SCOPE OF SUCH DUAL COMPENSATION OR EMPLOYMENT STATUTES CASES INVOLVING RESERVISTS ON THE ANNUAL 14-DAY MILITARY LEAVE OF ABSENCE. HENCE, WHETHER EITHER OR BOTH OF THE TWO ALLOWANCES HERE INVOLVED ARE CONSIDERED AS SALARY, COMPENSATION, OR PAY, OR ARE TREATED AS SOME OTHER FORM OF BENEFIT, IT SEEMS CLEAR THAT THE PAYMENT OF BOTH OF SUCH ALLOWANCES FOR THE 15-DAY PERIOD HERE INVOLVED IS NOT PROHIBITED BY EITHER THE SAID 1916 ACT, AS AMENDED, OR THE SAID 1894 ACT, AS AMENDED.

THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR MEMBERS OF THE UNIFORM SERVICES IS PROVIDED FOR BY SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED, 37 U.S.C. 252, AND IS PAYABLE TO SUCH MEMBERS WHEN THEY ARE NOT ASSIGNED GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS. MAJOR KORFANTY WAS NOT ASSIGNED GOVERNMENT QUARTERS OR HOUSING FACILITIES ADEQUATE FOR HIMSELF AND DEPENDENTS WHILE ON ACTIVE-DUTY TRAINING AS A MEMBER OF THE UNIFORMED SERVICES, AND IT IS THE VIEW OF THIS OFFICE THAT IT WOULD BE INCONSISTENT WITH THE PURPOSE AND INTENT OF THE ABOVE-DESCRIBED PROVISIONS OF THE 1917 ACT, AS AMENDED, TO HOLD THAT HE DID NOT BECOME ENTITLED TO MILITARY QUARTERS ALLOWANCE AS AN OFFICER WITH DEPENDENTS DURING THE PERIOD INVOLVED SOLELY BECAUSE HE WAS IN RECEIPT OF A QUARTERS ALLOWANCE FOR SUCH PERIOD INCIDENT TO HIS CIVILIAN EMPLOYMENT. WHILE SUCH CIVILIAN ALLOWANCE WAS IN LIEU OF QUARTERS WHICH OTHERWISE MIGHT HAVE BEEN PROVIDED IN KIND BY THE GOVERNMENT, IT MAY OR MAY NOT HAVE COVERED THE COST OF THE PRIVATE QUARTERS WHICH HE HAD TO PROCURE FOR HIMSELF AND, IN ANY EVENT, SUCH PRIVATE QUARTERS WERE NOT ASSIGNED GOVERNMENT QUARTERS OR HOUSING FACILITIES AS SPECIFIED IN SAID SECTION 302 OF THE CAREER COMPENSATION ACT.

ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE SUPPLEMENTAL VOUCHER WHICH IS RETURNED HEREWITH.