B-126524, APRIL 30, 1956, 35 COMP. GEN. 596

B-126524, APRIL 30, 1956, 35 COMP. GEN. 596

QUARTERS ALLOWANCE - MILITARY PERSONNEL - DEPENDENTS - TEMPORARY OCCUPANCY OF QUARTERS ASSIGNED TO CIVILIAN EMPLOYEE THE TEMPORARY OCCUPANCY BY A NAVAL OFFICER AND HIS WIFE OF GOVERNMENT- OWNED QUARTERS WHICH WERE PERMANENTLY ASSIGNED A CIVILIAN EMPLOYEE WHO, DURING A LEAVE OF ABSENCE, RENTED THE QUARTERS TO THE OFFICER IS NOT OCCUPANCY OF ASSIGNED GOVERNMENT QUARTERS OR HOUSING FACILITIES WITH THE PURVIEW OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 WHICH PRECLUDES RECEIPT OF BASIC ALLOWANCE FOR QUARTERS DURING SUCH OCCUPANCY, EVEN THOUGH THE RENT IS PAID TO THE CIVILIAN EMPLOYEE RATHER THAN THE GOVERNMENT.

TO K. C. DEERE, DEPARTMENT OF THE NAVY, APRIL 30, 1956:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1955, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT (JG) BOBBY G. ALLEN, 574316, USNR, WITH A BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD FROM JUNE 10, 1955, TO JULY 24, 1955, WHEN HE OCCUPIED GOVERNMENT- OWNED QUARTERS UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER AND THE ACCOMPANYING ENDORSEMENTS WITH ENCLOSURES.

YOU SAY THAT WHEN THE OFFICER, ACCOMPANIED BY HIS WIFE, REPORTED AT THE NAVAL AIR STATION, GUANTANAMO BAY, CUBA, FOR A NORMAL TOUR OF DUTY ON PERMANENT CHANGE OF STATION ORDERS, HE AND HIS FAMILY TEMPORARILY OCCUPIED QUARTERS NO. AV-111 AT THAT STATION FOR APPROXIMATELY 43 DAYS. YOU SAY FURTHER THAT THOSE QUARTERS, WHICH WERE DESIGNATED " CIVILIAN RENTAL HOUSING" BY CHIEF OF NAVAL OPERATIONS LETTER, OP-442 H/JD SER 746 P44, DATED MARCH 10, 1954, WERE PERMANENTLY ASSIGNED TO A CIVIL-SERVICE EMPLOYEE WHO WAS ON LEAVE OF ABSENCE DURING THE PERIOD OF THEIR OCCUPANCY BY THE OFFICER, AND THAT FOR SUCH PERIOD, PAYROLL RENTAL DEDUCTIONS WERE MADE FROM THE CIVILIAN EMPLOYEE'S PAY.

AMONG THE ENCLOSURES WITH YOUR LETTER ARE AN EXPLANATORY LETTER, DATED NOVEMBER 1, 1955, FROM THE OFFICER, AND FIRST ENDORSEMENT ON THAT LETTER, DATED NOVEMBER 3, 1955, FROM THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, GUANTANAMO BAY, CUBA. IN HIS LETTER THE OFFICER EXPLAINS:

ON 4 MAY 1955, I WAS GIVEN ORDERS FROM COMMANDANT FOURTH NAVAL DISTRICT TO REPORT TO MY PRESENT DUTY STATION. A MESSAGE WAS SENT REQUESTING HOUSING FOR MY DEPENDENTS, AND A NEGATIVE REPLY RECEIVED TO IT. I THEN WROTE A LETTER THAT THE EXECUTIVE OFFICER HERE, TELLING HIM THAT MY WIFE WAS PREGNANT AND WOULD NOT BE ABLE TO TRAVEL BY THE TIME HOUSING BECAME AVAILABLE, AND ASKED HIM ABOUT ANY POSSIBLE RENTAL QUARTERS ON OR OFF THE BASE. I WAS DETACHED FROM 4ND AND DURING MY DELAY TIME MET MY WIFE AT HER HOME OF RECORD, AUSTIN, TEXAS. WHILE THERE I RECEIVED A LETTER FROM THE COMMANDING OFFICER, NAVAL AIR STATION, GUANTANAMO BAY, CUBA, SAYING THAT HIS ADMINISTRATIVE ASSISTANT, A CIVILIAN, WHO LIVED IN CIVILIAN RENTAL QUARTERS, WOULD BE GOING ON LEAVE AT THE SAME TIME I WOULD ARRIVE HERE, AND THAT IF I DESIRED I COULD RENT HIS QUARTERS AND NOT LOSE MY RENTAL ALLOWANCE, SINCE IT WAS A POLICY OF THE NAVAL BASE GUANTANAMO, TO ENCOURAGE CIVILIANS TO RENT THEIR QUARTERS WHILE ON LEAVE TO QUALIFIED MILITARY PERSONNEL IN ORDER TO ALLEVIATE THE CRITICAL HOUSING SITUATION HERE. I ACCEPTED THE OFFER AND OCCUPIED THE QUARTERS AFTER ARRIVAL HERE FOR A PERIOD OF ABOUT ONE AND ONE HALF MONTHS, PAYING RENT NEARLY EQUAL TO MY MONTHLY HOUSING ALLOWANCE. NEAR THE END OF MY TENANCY I WAS INFORMED BY THE DISBURSING OFFICER THAT THERE WAS SOME DOUBT ABOUT THE STATUS OF THE HOUSING AND I WOULD LOSE MY ALLOWANCE FOR THE PERIOD I WAS THERE. THIS WAS DONE AND AS A RESULT MY RENT FOR THE PERIOD OF ONE AND ONE HALF MONTHS AMOUNTED TO APPROXIMATELY THREE HUNDRED DOLLARS FOR A TWO BEDROOM HOUSE.

THE CIRCUMSTANCES SURROUNDING THE ARRIVAL OF THE OFFICER AT GUANTANAMO BAY AND THE OCCUPANCY OF QUARTERS NO. AV-111, AS RELATED BY HIM, ARE CONFIRMED IN THE COMMANDING OFFICER'S ENDORSEMENT OF NOVEMBER 3, 1955.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 252, AS AMENDED BY THE ACT OF MAY 19, 1952, 66 STAT. 79, 37 U.S.C. 232, PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED IN THAT SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS PROVIDED THEREIN; THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO " GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICE," APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS; AND THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE SECTION. EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, 16 F.R. 417, PROMULGATED PURSUANT TO SECTION 302 PROVIDES, IN PERTINENT PART, THAT ANY "QUARTERS OR HOUSING FACILITIES" IN FACT "OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES" (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, OR (C) BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR SEA DUTY AT STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, SHALL BE DEEMED TO HAVE BEEN "ASSIGNED" TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

THE ACT OF JULY 2, 1945, 59 STAT. 316, 37 U.S.C. 111A, 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 SUCH PERSONNEL AND THEIR DEPENDENTS), WITHOUT LOSS OF MONEY ALLOWANCES TO WHICH THEY ARE OTHERWISE ENTITLED FOR RENTAL OF QUARTERS. SEE 25 COMP. GEN. 25; 25 COMP. GEN. 246; 31 COMP. GEN. 603; AND B-98956, DATED NOVEMBER 29, 1950.

THERE IS ALSO FOR CONSIDERATION IN THIS CASE SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, 37 U.S.C. 75A, WHICH AUTHORIZES THE HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO FURNISH QUARTERS AND OTHER ALLOWANCES TO CIVILIANS EMPLOYED IN THE FIELD SERVICE, THE REASONABLE VALUE OF SUCH ALLOWANCES TO BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY OF SUCH CIVILIANS.

A COPY OF THE CHIEF OF NAVAL OPERATIONS LETTER OF MARCH 10, 1954, AND A COPY OF THE ASSIGNMENT OF QUARTERS NO. AV-111 TO THE CIVILIAN EMPLOYEE WERE NOT SUBMITTED WITH YOUR LETTER. WE HAVE BEEN ADVISED INFORMALLY, HOWEVER, BY THE DEPARTMENT OF THE NAVY THAT THE QUARTERS IN QUESTION WERE DESIGNATED CIVILIAN RENTAL HOUSING, AS STATED, AND IT APPEARS THAT THE QUARTERS WERE ASSIGNED TO THE COMMANDING OFFICER'S SUPERVISORY ADMINISTRATIVE ASSISTANT, A CIVILIAN EMPLOYEE, AND THAT DEDUCTIONS WERE MADE FROM HIS SALARY AS RENTAL FOR SUCH QUARTERS AS PROVIDED BY THE ACT OF MARCH 5, 1928. WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO A CIVILIAN EMPLOYEE SUCH QUARTERS CONSTITUTE THE EMPLOYEE'S HOME AND, IN THE ABSENCE OF A STATUTE OR REGULATION TO THE CONTRARY, THE EMPLOYEE IS FREE TO SHARE THE QUARTERS WITH OTHERS, OR TO PERMIT THEIR OCCUPANCY BY OTHERS WHILE ON LEAVE OF ABSENCE, AS HE SEES FIT. THEREFORE, IN VIEW OF THE CRITICAL HOUSING SHORTAGE AT THE NAVAL BASE, GUANTANAMO BAY, CUBA, AND THE ADMINISTRATIVE POLICY OF ENCOURAGING CIVILIANS TO TEMPORARILY RENT THEIR QUARTERS WHILE ON LEAVE TO QUALIFIED NAVAL PERSONNEL, THERE WOULD APPEAR TO BE NO SOUND BASIS FOR OBJECTING TO THE TEMPORARY RENTAL OF HIS QUARTERS BY THE CIVILIAN EMPLOYEE TO THE OFFICER. COMPARE 22 COMP. GEN. 136; 21 ID. 358.

RESPECTING THE RIGHT OF SERVICE PERSONNEL TO RENTAL AND QUARTERS ALLOWANCES, GENERALLY, THE DECISIONS OF THE COURT OF CLAIMS OF THE UNITED STATES AS WELL AS OUR DECISIONS HAVE INTERPRETED THE RENTAL AND QUARTERS ALLOWANCE STATUTES AS NOT AUTHORIZING THE PAYMENT OF SUCH ALLOWANCES WHERE THE DEPENDENTS OF AN OFFICER RESIDE IN GOVERNMENT OWNED OR CONTROLLED QUARTERS EVEN THOUGH SAID QUARTERS ARE NOT ASSIGNED TO THE OFFICER FOR OCCUPANCY BY HIMSELF AND HIS DEPENDENTS. THE QUARTERS HERE INVOLVED HOWEVER, WERE NOT "DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS" AS PROVIDED BY THE ACT OF JULY 2, 1945, AND, WHILE THE AMOUNT CHARGED THE OFFICER BY THE CIVILIAN EMPLOYEE WAS NOT PAID TO THE GOVERNMENT, THE QUARTERS WERE NOT ,OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES" AND, HENCE, WERE NOT "ASSIGNED" TO THE OFFICER WITHIN THE TERMS OF EXECUTIVE ORDER NO. 10204, AND SECTION 302 OF THE CAREER COMPENSATION ACT. MOREOVER, IT WOULD APPEAR THAT THE QUARTERS SHOULD NOT BE REGARDED AS " GOVERNMENT QUARTERS OR HOUSING FACILITIES," WITHIN THE MEANING OF SECTION 302 OF THE CAREER COMPENSATION ACT, AFTER THEIR ASSIGNMENT TO THE CIVILIAN EMPLOYEE. IT IS OUR VIEW, THEREFORE, THAT THE TEMPORARY OCCUPANCY OF SUCH QUARTERS BY THE OFFICER DID NOT AFFECT HIS RIGHT TO BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD INVOLVED.

ACCORDINGLY, IT IS CONCLUDED THAT LIEUTENANT ALLEN, IF OTHERWISE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS, DID NOT FORFEIT HIS RIGHT TO SUCH ALLOWANCE MERELY BECAUSE OF THE OCCUPANCY OF THE QUARTERS HERE INVOLVED UNDER THE CIRCUMSTANCES INDICATED.