B-124401, AUG. 30, 1955

B-124401, AUG. 30, 1955

TO DR. ALBERT B. SHULMAN:

REFERENCE IS MADE TO THE LETTER DATED MAY 13, 1955, WRITTEN IN YOUR BEHALF BY MR. SAMUEL F. GRANDON, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 7, 1955, WHICH DISALLOWED YOUR CLAIM FOR $1,977.86 BELIEVED TO BE DUE YOU AS RENTAL ALLOWANCE FOR THE PERIOD FROM JUNE 26, 1943, TO JANUARY 31, 1946, INCIDENT TO YOUR SERVICE AS AN OFFICER IN THE U.S. ARMY.

IT APPEARS THAT DURING THE PERIOD INVOLVED YOU OCCUPIED PUBLIC FAMILY QUARTERS AT HOOD VILLAGE, CAMP HOOD, TEXAS; THAT YOU WERE NOT CHARGED FOR RENT AND SERVICES, AND THAT YOU WERE NOT CREDITED WITH A RENTAL ALLOWANCE. IT APPEARS, FURTHER, THAT THE AMOUNT CLAIMED BY YOU, $1,977.86, REPRESENTS THE DIFFERENCE BETWEEN $2,695, WHICH YOU SAY WAS YOUR ENTIRE RENTAL ALLOWANCE FOR THE PERIOD INVOLVED, AND $717.14, WHICH YOU SAY IS THE AMOUNT WHICH A CIVILIAN EMPLOYEE RECEIVING COMPENSATION COMPARABLE TO YOURS WOULD HAVE PAID FOR THE SAME QUARTERS. YOU APPARENTLY ARE OF THE OPINION THAT IN THE CIRCUMSTANCES YOU "PAID" RENTAL FOR YOUR QUARTERS AND THAT THE AMOUNT CLAIMED REPRESENTS AN OVERPAYMENT BY YOU. YOU BASE YOUR CLAIM ON THE PROVISIONS OF PUBLIC LAW 120, 79TH CONGRESS, WHICH WAS THE ACT OF JULY 2, 1945, 59 STAT. 316, AND REFER TO PARAGRAPH 8B OF ARMY REGULATIONS NO. 35-4220, NOVEMBER 17, 1944.

THE ACT OF JULY 2, 1945, PROVIDES THAT PERSONNEL OF THE ARMED SERVICES AND THEIR DEPENDENTS SHALL BE ELIGIBLE TO OCCUPY, ON A RENTAL BASIS, HOUSING FACILITIES UNDER THE JURISDICTION OF ANY GOVERNMENT DEPARTMENT OR AGENCY (OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY PERSONNEL AND THEIR DEPENDENTS), WITHOUT LOSS OF MONEY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED FOR RENTAL OF QUARTERS.

PARAGRAPH 8B, ARMY REGULATIONS NO. 35-4220, NOVEMBER 17, 1944, IS AS FOLLOWS:

"OFFICERS OF THE ARMY, NOT ABOVE THE GRADE OF CAPTAIN, SPECIFICALLY AUTHORIZED BY THE ACT OF 21 JANUARY 1942 (56 STAT. 11) TO OCCUPY ON A RENTAL BASIS QUARTERS IN GOVERNMENT-OWNED LOW-COST DEFENSE HOUSES CONSTRUCTED UNDER AUTHORITY OF THE ACT OF 14 OCTOBER 1940 (54 STAT. 1125), MAY BE PAID OTHERWISE PROPER RENTAL ALLOWANCES WHILE OCCUPYING SUCH HOUSES. (SEE 21 COMP. GEN. 882.) THE ACT OF 26 OCTOBER 1942 (56 STAT. 988) EXTENDED SUCH AUTHORIZATION TO HOUSING CONSTRUCTED UNDER AUTHORITY OF THE ACTS OF 28 JUNE 1940 (54 STAT. 681) AND 9 SEPTEMBER 1940 (54 STAT. 833). WHERE SUCH LOW-COST HOUSING HAS BEEN TAKEN OVER BY THE WAR DEPARTMENT AND OCCUPIED BY MILITARY PERSONNEL, NO RENTAL ALLOWANCE WILL ACCRUE NOR WILL RENTAL BE CHARGED. WHERE RENTAL IS CHARGED FOR HOUSING WHICH HAS NOT BEEN TAKEN OVER BY THE WAR DEPARTMENT, THE OFFICER NOT ABOVE THE GRADE OF CAPTAIN WILL BE ENTITLED TO RENTAL ALLOWANCE.'

DURING THE PERIOD INVOLVED AN OFFICER'S RIGHT TO RENTAL ALLOWANCE WAS SUBJECT TO THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, AS FOLLOWS:

"NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD DUTY UNLESS HIS COMMANDING OFFICER CERTIFIES THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE, OR WHILE ON SEA DUTY, EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, AND SUCH CERTIFICATIONS SHALL BE CONCLUSIVE: PROVIDED, THAT AN OFFICER ALTHOUGH FURNISHED WITH QUARTERS SHALL BE ENTITLED TO RENTAL ALLOWANCE AS AUTHORIZED IN THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS.'

UNDER THOSE STATUTORY PROVISIONS NO RENTAL ALLOWANCE ACCRUED TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO WAS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIED THAT SUCH QUARTERS WERE NOT OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS. IT WAS PROVIDED, HOWEVER, THAT AN OFFICER ALTHOUGH FURNISHED WITH QUARTERS SHOULD BE ENTITLED TO THE RENTAL ALLOWANCE IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS WERE PREVENTED FROM OCCUPYING SUCH QUARTERS. HENCE, YOUR APPARENT BELIEF THAT YOU HAD TO "PAY" FOR OCCUPANCY, WITH YOUR DEPENDENTS, OF GOVERNMENT QUARTERS OR HOUSING FACILITIES ASSIGNED YOU IS OBVIOUSLY ERRONEOUS SINCE THE STATUTE IN EXPRESS TERMS PRECLUDED THE ACCRUAL OF ANY RENTAL ALLOWANCE UNDER SUCH CONDITIONS.

IT HAS ALWAYS BEEN THE PRACTICE TO PROVIDE QUARTERS FOR PERSONNEL OF THE MILITARY SERVICE WITHOUT CHARGE AS AN ESSENTIAL PART OF THEIR MILITARY LIFE AND IT IS THE LONG ESTABLISHED RULE THAT THE LAWS AUTHORIZING PAYMENT OF RENTAL AND QUARTERS ALLOWANCES TO MILITARY AND NAVAL PERSONNEL DO NOT AUTHORIZE PAYMENT OF SUCH ALLOWANCES FOR PERIODS DURING WHICH THEIR DEPENDENTS ACTUALLY OCCUPY GOVERNMENT QUARTERS, UNLESS SUCH OCCUPANCY IS ON A RENTAL BASIS AND OCCUPANCY ON THAT BASIS IS EXPRESSLY AUTHORIZED BY SPECIFIC PROVISIONS OF LAW. SEE 25 COMP. GEN. 798. SINCE IT APPEARS THAT DURING THE PERIOD INVOLVED YOU AND YOUR DEPENDENTS OCCUPIED PUBLIC QUARTERS DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY MILITARY PERSONNEL AND THEIR DEPENDENTS, THERE IS NO AUTHORITY UNDER THE LAW AND REGULATIONS CITED BY YOU, OR UNDER ANY OTHER LAWS AND REGULATIONS, FOR THE PAYMENT OF YOUR CLAIM.

THE AMOUNT WHICH WOULD HAVE BEEN PAID FOR THE "SAME QUARTERS" BY A CIVILIAN EMPLOYEE RECEIVING COMPENSATION COMPARABLE TO YOURS HAS NO BEARING ON YOUR CASE. ON THE ONE HAND, A MILITARY MAN RECEIVES HIS PAY AND HIS QUARTERS AND IF THE GOVERNMENT CANNOT PROVIDE THE QUARTERS, HE IS GIVEN AN ALLOWANCE TO PROVIDE THEM FOR HIMSELF. ON THE OTHER HAND, A CIVILIAN EMPLOYEE RECEIVES HIS SALARY AND MUST PROVIDE HIS OWN QUARTERS AND IF HE OCCUPIES GOVERNMENT QUARTERS HE MUST PAY A REASONABLE RENTAL FOR THEIR USE. ANY APPARENT DISPARITY RESULTS FROM THE DIFFERENCES IN THE GENERAL LAW AND METHODS UNDER WHICH THE MILITARY SERVICE AND THE CIVIL SERVICE OPERATE AND ARE COMPENSATED.