B-143249, JUL. 21, 1960

B-143249: Jul 21, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF HEALTH EDUCATION AND WELFARE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 17. WERE TRANSFERRED TO YOUR DEPARTMENT (42 U.S.C. 2001). GOVERNMENT QUARTERS WHICH WERE UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR. THAT AFTER SUCH QUARTERS WERE TRANSFERRED TO THE JURISDICTION OF YOUR DEPARTMENT. ADDITIONAL QUARTERS WERE CONSTRUCTED BY THE PUBLIC HEALTH SERVICE FOR "PERSONNEL" (CIVILIAN OR COMMISSIONED) ASSIGNED TO INDIAN HEALTH FACILITIES. THAT FUNDS FOR THIS PURPOSE WERE INCLUDED IN EACH OF THE APPROPRIATION ACTS FOR YOUR DEPARTMENT SINCE THE FISCAL YEAR 1956. WERE ASSIGNED FOR OCCUPANCY ON A RENTAL BASIS. DETERMINATION OF THE ADEQUACY OF THE HOUSING UNDER THE JURISDICTION OF YOUR DEPARTMENT WAS MADE AND THOSE QUARTERS CONSTRUCTED AFTER JULY 1955 WERE DETERMINED TO BE ADEQUATE.

B-143249, JUL. 21, 1960

TO THE SECRETARY OF HEALTH EDUCATION AND WELFARE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1960, REQUESTING DECISION ON THREE QUESTIONS CONCERNING BASIC ALLOWANCES FOR QUARTERS PAID TO COMMISSIONED OFFICERS OF THE UNITED STATES PUBLIC HEALTH SERVICE DURING THE PERIOD JULY 1, 1955, TO FEBRUARY 1, 1959.

YOU STATE THAT, EFFECTIVE JULY 1, 1955, THE FUNCTIONS OF THE DEPARTMENT OF THE INTERIOR RELATING TO THE PROVISIONS OF HEALTH AND HOSPITAL FACILITIES FOR INDIANS, WERE TRANSFERRED TO YOUR DEPARTMENT (42 U.S.C. 2001); THAT BEFORE THE TRANSFER, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ASSIGNED TO THE INDIAN HEALTH PROGRAM HAD OCCUPIED, ON A RENTAL BASIS, GOVERNMENT QUARTERS WHICH WERE UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR, AND THAT THESE OFFICERS RECEIVED THEIR BASIC ALLOWANCES FOR QUARTERS; THAT AFTER SUCH QUARTERS WERE TRANSFERRED TO THE JURISDICTION OF YOUR DEPARTMENT, THE PUBLIC HEALTH SERVICE ISSUED INSTRUCTIONS THAT ITS COMMISSIONED OFFICERS WOULD CONTINUE TO OCCUPY THESE QUARTERS ON A RENTAL BASIS WITHOUT LOSS OF QUARTERS ALLOWANCE. YOU STATE FURTHER THAT AFTER JULY 1, 1955, ADDITIONAL QUARTERS WERE CONSTRUCTED BY THE PUBLIC HEALTH SERVICE FOR "PERSONNEL" (CIVILIAN OR COMMISSIONED) ASSIGNED TO INDIAN HEALTH FACILITIES; THAT FUNDS FOR THIS PURPOSE WERE INCLUDED IN EACH OF THE APPROPRIATION ACTS FOR YOUR DEPARTMENT SINCE THE FISCAL YEAR 1956; THAT ALL QUARTERS CONSTRUCTED AFTER JULY 1, 1955, WERE ASSIGNED FOR OCCUPANCY ON A RENTAL BASIS, WITH PAYMENT OF QUARTERS ALLOWANCES. YOU REPORT THAT SUBSEQUENT TO ENACTMENT OF PUBLIC LAW 85-241, DATED AUGUST 30, 1957, 71 STAT. 556, 42 U.S.C. 1594 (J), DETERMINATION OF THE ADEQUACY OF THE HOUSING UNDER THE JURISDICTION OF YOUR DEPARTMENT WAS MADE AND THOSE QUARTERS CONSTRUCTED AFTER JULY 1955 WERE DETERMINED TO BE ADEQUATE, AND THAT AFTER THE EFFECTIVE DATES OF SUCH DETERMINATION (JANUARY AND FEBRUARY 1959), THE QUARTERS WERE DESIGNATED FOR OCCUPANCY WITHOUT CHARGE BY PUBLIC HEALTH SERVICE OFFICERS AND THEIR DEPENDENTS. YOU STATE FURTHER THAT AFTER THE DETERMINATION OF THE ADEQUACY OF THESE QUARTERS WAS EFFECTED, THE PUBLIC HEALTH SERVICE MADE DEMAND UPON THE 21 OFFICERS WHO HAD OCCUPIED SUCH QUARTERS FOR THE RETURN OF THE QUARTERS ALLOWANCE PAID TO THEM DURING THE PERIOD FROM JULY 1, 1955, TO FEBRUARY 1, 1959, RANGING FROM $45.42 TO $1,268.85; THAT WHILE SOME OFFICERS REFUNDED THE PAYMENTS THEY HAD RECEIVED, OTHERS REFUSED TO DO SO; AND THAT ALTHOUGH THE PUBLIC HEALTH SERVICE HAS MADE DEMAND FOR REFUNDS, YOU BELIEVE THERE IS SUFFICIENT DOUBT TO WARRANT REQUESTING OUR DECISION AS TO WHETHER THE QUARTERS ALLOWANCES WERE PROPERLY PAID, AND EVEN IF IMPROPERLY PAID, WHETHER EFFORTS SHOULD BE MADE TO OBTAIN REFUND FROM THE OFFICERS INVOLVED. IT APPEARS AT S. 2873, TO RELIEVE ONE OF THE OFFICERS FROM LIABILITY FOR REPAYMENT OF $1,268.85, RECEIVED BY HIM AS QUARTERS ALLOWANCES, WAS INTRODUCED IN THE SENATE ON JANUARY 21, 1960, AND WAS REFERRED TO THE SENATE COMMITTEE ON THE JUDICIARY. YOU STATE THAT YOU ARE ADVISING THE COMMITTEE THAT YOU HAVE REQUESTED OUR DECISION ON THE QUESTIONS RAISED BY THE BILL, AND YOU SUBMIT THE FOLLOWING QUESTIONS FOR DECISION:

"/1) WHERE THE OFFICERS IN QUESTION ENTITLED TO OCCUPY THE QUARTERS CONSTRUCTED AFTER JULY 1, 1955, AT INDIAN HEALTH FACILITIES ON A RENTAL BASIS, WITH PAYMENT OF QUARTERS ALLOWANCES, UP TO THE TIME THAT THESE QUARTERS WERE DETERMINED TO BE ADEQUATE?

"/2) (A) IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, NEED FURTHER ACTION BE TAKEN TO OBTAIN REFUNDS FROM THOSE OFFICERS WHO HAVE NOT MADE REPAYMENTS TO THE PUBLIC HEALTH SERVICE?

"/B) IF NO FURTHER ACTION NEED BE TAKEN, MAY THE PUBLIC HEALTH SERVICE RETURN THE REPAYMENTS ALREADY RECEIVED FROM SOME OFFICERS?

"/3)IF YOUR ANSWER TO QUESTION 2 (A) IS IN THE AFFIRMATIVE, MAY ACTION TO OBTAIN REFUNDS BE HELD IN ABEYANCE UNTIL CONGRESS HAS ACTED UPON OR HAS HAD A REASONABLE TIME TO ACT UPON S. 2873?

IN YOUR DISCUSSION OF QUESTIONS 1 AND 2, YOU AVER THAT THE PAYMENTS OF QUARTERS ALLOWANCE TO OFFICERS OCCUPYING QUARTERS CONSTRUCTED AFTER JULY 1, 1955, WERE MADE BY THE PUBLIC HEALTH SERVICE IN GOOD FAITH UNDER AN INTERPRETATION OF THE PERTINENT STATUTORY PROVISIONS WHICH ARE STATED TO BE THOSE FOUND IN 37 U.S.C. 111A, AND 37 U.S.C. 252 (A). YOU STATE ALSO, THAT THERE IS NOTHING IN THE LANGUAGE OF THE APPROPRIATION ACTS (WHICH AUTHORIZED CERTAIN CONSTRUCTION "INCLUDING QUARTERS FOR PERSONNEL" ASSIGNED TO INDIAN HEALTH FACILITIES), AND THAT NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THESE ACTS WHICH WOULD INDICATE THAT CONGRESS INTENDED THESE QUARTERS TO BE CONSTRUCTED FOR OCCUPANCY WITHOUT CHARGE. YOU POINT OUT THAT, AT THE TIME THE PUBLIC HEALTH SERVICE PERMITTED SUCH QUARTERS TO BE OCCUPIED ON A RENTAL BASIS, CRITERIA HAD NOT YET BEEN ESTABLISHED TO DETERMINE WHETHER SUCH QUARTERS WERE ADEQUATE WITHIN THE MEANING OF 37 U.S.C. 252 (B); THAT IT WAS NOT UNTIL AFTER THE ENACTMENT OF PUBLIC LAW 85-241 ON AUGUST 30, 1957, AND THE ISSUANCE ON MAY 2, 1958, OF EXECUTIVE ORDER NO. 10766 WHICH IMPLEMENTED PUBLIC LAW 85-241, THAT MACHINERY WAS SET UP IN YOUR DEPARTMENT FOR THE ESTABLISHMENT OF STANDARDS TO DETERMINE THE ADEQUACY OF QUARTERS ASSIGNED TO PUBLIC HEALTH SERVICE OFFICERS.

SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B), PROVIDES 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 SERVICES," APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS IF WITH DEPENDENTS. YOU REPORT THAT THE GOVERNMENT QUARTERS CONSTRUCTED SINCE JULY 1, 1955, ACTUALLY WERE ASSIGNED TO THE OFFICERS INVOLVED AND IT IS CLEAR THAT UNDER THE CITED PROVISIONS OF THE 1949 ACT, AN ADMINISTRATIVE DETERMINATION AS TO THE ADEQUACY OF SUCH QUARTERS SHOULD HAVE BEEN MADE IF ANY QUESTION AS TO THAT MATTER EXISTED AT THAT TIME. IT APPEARS THAT SUCH QUARTERS WERE ADEQUATE AND A DETERMINATION TO THAT EFFECT HAS NOW BEEN MADE. IN SUCH CIRCUMSTANCES, THERE REMAINS FOR CONSIDERATION ONLY THE MATTER OF WHETHER THE OFFICERS' PAYMENT OF RENT ENTITLED THEM TO THE BASIC ALLOWANCE FOR QUARTERS.

IT IS WELL ESTABLISHED THAT THE STATUTES AUTHORIZING PAYMENT OF QUARTERS ALLOWANCE AND RENTAL ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES DO NOT AUTHORIZE THE PAYMENT OF SUCH ALLOWANCES FOR PERIODS DURING WHICH THE MEMBER OCCUPIES GOVERNMENT OWNED OR CONTROLLED QUARTERS UNLESS SUCH OCCUPANCY IS ON A RENTAL BASIS AND THE OCCUPANCY ON THAT BASIS IS AUTHORIZED BY EXPRESS PROVISIONS OF LAW. SEE 21 COMP. GEN. 995; 23 ID. 230; ID. 346; 25 ID. 246; ID. 798. THE ACT OF JULY 2, 1945, AS AMENDED, 37 U.S.C. 111A, DOES NOT AUTHORIZE OCCUPANCY OF THE QUARTERS HERE INVOLVED ON SUCH BASIS. THAT ACT AUTHORIZES THE PAYMENT OF QUARTERS ALLOWANCES TO MEMBERS WHO OCCUPY HOUSING FACILITIES UNDER THE JURISDICTION OF THE GOVERNMENT ON A RENTAL BASIS,"OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS IF ANY.'

WE SAID IN 25 COMP. GEN. 798, THAT THE OBVIOUS PURPOSE OF THE ACT OF JULY 2, 1945, IS TO PERMIT MILITARY AND NAVAL PERSONNEL AND THEIR DEPENDENTS TO OCCUPY, ON A RENTAL BASIS, TEMPORARY OR EMERGENCY HOUSING FACILITIES, INCLUDING THOSE UNDER THE NAVY DEPARTMENT, OTHER THAN "PUBLIC QUARTERS" CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO OR OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS, WITHOUT LOSS OF OTHERWISE PROPER RENTAL OR MONEY ALLOWANCE IN LIEU OF QUARTERS; AND THAT IT MUST BE ASSUMED THAT APPROPRIATIONS FOR THE CONSTRUCTION OF QUARTERS PRIMARILY WERE MADE AVAILABLE FOR THE CONSTRUCTION OF "PUBLIC QUARTERS" TO BE OCCUPIED BY SUCH PERSONNEL WITHOUT CHARGE, WITHIN THE EXCEPTION CONTAINED IN THE ACT OF JULY 2, 1945, SUPRA, IN THE ABSENCE OF A DEFINITE SHOWING IN EACH CASE THAT THE PARTICULAR QUARTERS WERE CONSTRUCTED UNDER APPROPRIATIONS CLEARLY CONTEMPLATING THE CONSTRUCTION OF RENTAL HOUSING AT THE PARTICULAR NAVAL STATION OR BASE. THE AUTHORIZATION IN THE ANNUAL APPROPRIATION ACTS FOR CONSTRUCTION OF "QUARTERS FOR PERSONNEL" ASSIGNED TO INDIAN HEALTH FACILITIES, CONTAINS NO IMPLICATION OF AN INTENT THAT THE HOUSING TO BE CONSTRUCTED AT SUCH FACILITIES FOR THE USE OF PUBLIC HEALTH SERVICE OFFICERS SHOULD BE ASSIGNED TO THEM ON A RENTAL BASIS. SINCE THE PRACTICE OF RENTING GOVERNMENT QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES WHILE CONTINUING TO PAY THEM GREATER SUMS AS BASIC ALLOWANCE FOR QUARTERS RESULTS IN A GRATUITY OR ADDITIONAL COMPENSATION BEING PAID TO THEM TO THE EXTENT OF THE DIFFERENCE BETWEEN THE AMOUNT WHICH THEY MAY BE REQUIRED TO PAY AS RENT AND THE AMOUNT PAID TO THEM AS QUARTERS ALLOWANCE BECAUSE FREE QUARTERS ARE NOT FURNISHED, IT WOULD SEEM THAT SUCH PRACTICE COULD BE REGARDED AS PROPER ONLY IN THE EVENT OF A STATUTORY PROVISION EXPRESSLY SO PROVIDING. THE ABOVE CITED PROVISIONS IN THE APPROPRIATION ACTS LEND NO SUPPORT TO SUCH A PRACTICE.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

IN OUR DECISION TO YOU DATED MAY 2, 1960, B-141505, INVOLVING A SIMILAR SITUATION WITH RESPECT TO STATION QUARTERS ALLOWANCES, WE ADVISED THAT WHILE IT WAS REALIZED THAT CERTAIN DIFFICULTIES MAY BE ENCOUNTERED IN EFFECTING COLLECTION OF THE ERRONEOUS PAYMENTS THERE INVOLVED IT DID NOT APPEAR THAT SUCH FACTORS WERE ANY DIFFERENT IN THAT CASE THAN IN MANY OTHERS WHERE OVERPAYMENTS WERE MADE THROUGH ADMINISTRATIVE ERROR AND SOME RECIPIENTS WERE STILL IN THE SERVICE WHILE OTHERS HAVE BEEN RELEASED FROM ACTIVE DUTY. WE STATED ALSO, THAT SUCH FACTORS AND MATTERS OF MORALE DO NOT, OF COURSE, RENDER LEGAL PAYMENTS WHICH WERE CONTRARY TO LAW WHEN MADE, AND AFFORD NO BASIS FOR RELIEVING THE RECIPIENTS OF THE OBLIGATION OF REMITTING TO THE UNITED STATES THE MONEY THEY WERE NOT ENTITLED TO RECEIVE.

WITH RESPECT TO THE CONCLUSION IN 38 COMP. GEN. 656, THAT NO QUESTION WOULD BE RAISED AGAINST THE PAYMENTS ALREADY MADE IN GOOD FAITH IN THAT CASE, YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE OFFICERS WHO WERE PAID TRAVEL ALLOWANCES ACTUALLY TRAVELED UNDER CIRCUMSTANCE NORMALLY INDICATING A STATUS FOR WHICH SUCH ALLOWANCES WERE AUTHORIZED. ALSO, THERE APPARENTLY WAS NOT THERE INVOLVED ANY ELEMENT OF ENRICHMENT AT THE EXPENSE OF THE GOVERNMENT SUCH AS EXISTS IN THIS CASE. THEN TOO, OUR VIEWS WITH RESPECT TO THE PROPER INTERPRETATION OF THE ACT OF JULY 2, 1945, WAS AVAILABLE TO PUBLIC HEALTH SERVICE OFFICIALS IN PUBLISHED FORM FOR A NUMBER OF YEARS BEFORE THE ERRONEOUS PAYMENTS HERE INVOLVED WERE MADE, A FACTOR NOT PRESENT IN THAT CASE. IN THE CIRCUMSTANCES, QUESTION 2 (A) MUST BE ANSWERED IN THE AFFIRMATIVE AND 2 (B) REQUIRES NO ANSWER.

IN VIEW OF THE FACT THAT THERE IS NOW BEFORE THE CONGRESS S. 2873, WHICH IF ENACTED WOULD AFFORD ONE OF THE OFFICERS INVOLVED RELIEF FROM HIS INDEBTEDNESS, WE WOULD HAVE NO OBJECTION TO YOUR DEPARTMENT DEFERRING COLLECTION ACTION IN THESE CASES UNTIL THE END OF THE NEXT SESSION OF CONGRESS PENDING CONSIDERATION BY THE CONGRESS OF LEGISLATIVE RELIEF FOR ALL OF THE OFFICERS CONCERNED IF AN APPROPRIATE BILL IS INTRODUCED PROVIDED APPROPRIATE STEPS ARE TAKEN TO SAFEGUARD THE GOVERNMENT'S RIGHT OF RECOVERY IN ANY OF THESE CASES WHERE THE OFFICER IS SEPARATED FROM THE SERVICE WHILE RELIEF LEGISLATION IS PENDING. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE FACT THAT ENACTMENT OF S. 2873 RELIEVING ONE OF THE OFFICERS, WOULD FURNISH NO BASIS FOR RELIEVING THE OTHER OFFICERS INVOLVED FROM THEIR OBLIGATION TO REFUND THE AMOUNTS OF THE ERRONEOUS PAYMENTS THEY HAVE RECEIVED. ALSO, FROM THE INFORMATION FURNISHED IT APPEARS THAT THE AMOUNTS TO WHICH YOU REFER ($45.42 AND $1,268.85) MAY REPRESENT THE FULL AMOUNT OF BASIC ALLOWANCE FOR QUARTERS WHICH WAS PAID TO SUCH OFFICERS. THEY ARE INDEBTED ONLY FOR THE DIFFERENCE BETWEEN SUCH ALLOWANCE AND THE RENT PAID, IF SUCH RENT HAS NOT BEEN REPAID TO THEM.