B-140200, NOVEMBER 10, 1959, 39 COMP. GEN. 369

B-140200, NOVEMBER 10, 1959, 39 COMP. GEN. 369

MILITARY PERSONNEL - QUARTERS ALLOWANCE - QUARTERS IN AN OFFICERS' MESS OTHER THAN VISITS WHILE APARTMENT QUARTERS WHICH ARE VOLUNTARILY OCCUPIED BY AN ARMY OFFICER AND DEPENDENT FOR A NOMINAL SERVICE CHARGE AT AN OFFICERS' OPEN MESS, WHICH HAS SOME SLEEPING FACILITIES PRIMARILY FOR THE ACCOMMODATION OF VISITORS, UNTIL THE OFFICER IS ASSIGNED PERMANENT QUARTERS ARE NOT STRICTLY CONSIDERED TO BE PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE, THEY ARE, NEVERTHELESS, PUBLIC QUARTERS UNDER THE JURISDICTION OF THE ARMY AND AS SUCH ,GUEST HOUSING" WITHIN THE PURVIEW OF PARAGRAPH 5-47, ARMY REGULATIONS 37-104, WHICH PROHIBITS PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS WHEN SUCH QUARTERS ARE OCCUPIED BY SERVICE MEMBERS AND THEIR FAMILIES ON A VOLUNTARY BASIS FOR OTHER THAN SOCIAL VISITS.

TO LIEUTENANT THOMAS R. BROWN, DEPARTMENT OF THE ARMY, NOVEMBER 10, 1959:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 25, 1959, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NO. 432, FORWARDED HERE BY ENDORSEMENT DATED JULY 13, 1959, OF THE FIELD DIVISION, OFFICE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER IN FAVOR OF LIEUTENANT COLONEL GOMER S. REES COVERING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR A MEMBER OF HIS GRADE WITH DEPENDENTS FOR THE PERIOD FEBRUARY 9 TO MARCH 31, 1959, WHILE/HE AND HIS DEPENDENT OCCUPIED ROOMS IN THE OPEN MESS ( OFFICERS' CLUB) AT FORT RITCHIE, MARYLAND.

IT APPEARS THAT FORT RITCHIE WAS PURCHASED WITH APPROPRIATED FUNDS BY THE UNITED STATES GOVERNMENT FROM THE STATE OF MARYLAND AND THE FORT RITCHIE OFFICERS' OPEN MESS IS LOCATED ON AND IS A PART OF FORT RITCHIE. THE OFFICERS' OPEN MESS HAS NO QUARTERS DESIGNATED FOR USE BY MEMBERS AND THEIR DEPENDENTS; HOWEVER, ROOMS ARE SOMETIMES OCCUPIED VOLUNTARILY BY MEMBERS AND THEIR DEPENDENTS WHILE AWAITING EITHER ADEQUATE GOVERNMENT QUARTERS OR OFF-POST HOUSING. THE QUARTERS WHICH WERE FURNISHED COLONEL REES AT THE OFFICERS' OPEN MESS CONSIST OF A TWO ROOM UTILITY APARTMENT WITH LIMITED COOKING JOINING BATHS ARE AVAILABLE FOR ADDITIONAL DEPENDENTS. BASED ON AN INTERPRETATION OF TITLE 37, U.S.C. SECTION 111A, AS PROMULGATED BY HEADQUARTERS SECOND ARMY, THE POST COMMANDER OF FORT RITCHIE ESTABLISHED A "FAIR RENTAL VALUE" OF $2 PER DAY PAID ON A MONTHLY RATE FOR MARRIED OFFICERS WO OCCUPY WITH THEIR DEPENDENTS QUARTERS AT THE OFFICERS' OPEN MESS. WE HAVE BEEN ADVISED INFORMALLY THAT THE $2 "RENT" WAS INTENDED TO ACCRUE TO THE OFFICERS' OPEN MESS TO DEFRAY ITS EXPENSES IN CONNECTION WITH MAINTENANCE OF THE QUARTERS, BUT THAT SINCE IT WAS COLLECTED AS "RENT" IT ACCRUED TO THE GOVERNMENT AS A MISCELLANEOUS RECEIPT, AND THE OFFICERS' OPEN MESS MAINTAINED THE QUARTERS WITHOUT RECOMPENSE. WE ALSO UNDERSTAND THAT AT PRESENT NO "RENT" IS COLLECTED, BUT THAT A "SERVICE CHARGE" IS MADE BY THE OFFICERS' OPEN MESS FOR THE USE OF THE QUARTERS TO DEFRAY ONLY THE ACTUAL EXPENSE OF OPERATION.

PARAGRAPH 5-47, AR 37-104, JULY 8, 1958, PROVIDES AS FOLLOWS:

UNLESS SPECIFICALLY PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS WILL ACCRUE TO A MEMBER WITH DEPENDENTS, ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO HIS GRADE, AND ADEQUATE, FOR HIMSELF AND DEPENDENTS. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER AND HIS DEPENDENTS OR BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, WILL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS. NO BASIC ALLOWANCE FOR QUARTERS WILL ACCRUE TO SUCH MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. ANY GOVERNMENT QUARTERS OCCUPIED WILL BE DEEMED TO HAVE BEEN ASSIGNED.

RESPECTING THE RIGHT OF SERVICE PERSONNEL TO RENTAL AND QUARTERS ALLOWANCES, GENERALLY, WE HAVE LONG 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. THESE DECISIONS HAVE BEEN INCORPORATED IN ARMY REGULATIONS. SEE PARAGRAPH 5-47, AR 37 104, ABOVE. SEE ALSO EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, 16 F.R. 417. SECTION 111A, TITLE 37, U.S.C. (ACT OF JULY 2, 1945, 59 STAT. 316), WHICH 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, CONSTITUTES AN EXCEPTION TO THAT GENERAL RULE. BUT GUEST HOUSES AND OTHER FACILITIES OPERATED AS GUEST HOUSES AT MILITARY INSTALLATIONS HAVE NOT BEEN VIEWED AS RENTAL HOUSING FOR THE PURPOSES OF SUCH STATUTE AND THE CHARGES MADE FOR OCCUPANCY OF GUEST-HOUSE TYPE QUARTERS, EVEN THOUGH DESIGNATED AS RENT, HAVE BEEN REGARDED BY THE ACCOUNTING OFFICERS AS BEING IN FACT SERVICE CHARGES. SEE B-122825, AUGUST 1, 1955; 34 COMP. GEN. 515; 37 COMP. GEN. 47; COMPARE 31 COMP. GEN. 603.

WHILE THE QUARTERS IN THE FORT RITCHIE OFFICERS' OPEN MESS ARE NOT STRICTLY SPEAKING PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE, THEY ARE, NEVERTHELESS, PUBLIC QUARTERS UNDER THE JURISDICTION OF THE ARMY AND NO BASIS IS SEEN FOR REGARDING THEM AS OTHER THAN "GUEST HOUSING.' THE PRIMARY PURPOSE OF THE SLEEPING FACILITIES IN THE FORT RITCHIE OFFICERS' OPEN MESS APPEARS TO BE THE ACCOMMODATION OF VISITORS TO THE INSTALLATION FOR SHORT PERIODS OF TIME, EVEN THOUGH, AS IN THIS CASE, MEMBERS ASSIGNED TO DUTY AT FORT RITCHIE MAY OCCUPY SUCH QUARTERS WHILE OBTAINING PERMANENT QUARTERS. IT FOLLOWS, THEREFORE, UNDER THE PROVISIONS OF PARAGRAPH 5-47, ARMY REGULATIONS 37- 104, THAT WHEN SUCH QUARTERS ARE IN FACT OCCUPIED BY SERVICE MEMBERS AND THEIR FAMILIES ON A VOLUNTARY BASIS FOR OTHER THAN SOCIAL VISITS THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IN PROHIBITED.

SEE 22 COMP. GEN. 734. SEE ALSO, PARAGRAPH 15, AR 210-14. OBVIOUSLY, A SOCIAL VISIT IS NOT INVOLVED IN THE PRESENT MATTER.

IT IS WITHIN THE DISCRETION OF THE POST COMMANDER, PURSUANT TO THE AUTHORITY GRANTED AND RESPONSIBILITY PLACED IN HIM BY PERTINENT REGULATIONS GOVERNING THE OPERATION OF NONAPPROPRIATED FUND ACTIVITIES OF THE ARMY (SEE ARMY REGULATIONS 230-60), TO FIX THE AMOUNT TO BE CHARGED FOR OCCUPANCY OF ROOMS IN THE OFFICERS' OPEN MESS AT FORT RITCHIE. SINCE, HOWEVER, TITLE 37, UNITED STATES CODE, SECTION 11A, HAS NO APPLICATION TO GUEST HOUSE OPERATIONS HIS PURPORTED ESTABLISHMENT UNDER AUTHORITY OF THAT LAW OF A FAIR RENTAL VALUE ON ROOMS IN THAT ACTIVITY WHICH ARE OCCUPIED BY MARRIED OFFICERS AND THEIR DEPENDENTS IS WITHOUT EFFECT TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THE OFFICERS DURING THE PERIOD OF SUCH OCCUPANCY.

PAYMENT ON THE VOUCHER ACCOMPANYING YOUR LETTER IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED HERE.