B-155855, FEB. 11, 1965

B-155855: Feb 11, 1965

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DEPARTMENT OF THE ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 6. WHILE HE WAS ASSIGNED PUBLIC QUARTERS DESIGNATED AS SUBSTANDARD. YOUR REQUEST WAS ASSIGNED D.O. SUITABLE QUARTERS FOR A BACHELOR CHAPLAIN WERE NOT AVAILABLE AND HE WAS ASSIGNED SUBSTANDARD FAMILY QUARTERS FOR WHICH HE PAID RENT. DURING THE PERIOD HE OCCUPIED SUCH SUBSTANDARD QUARTERS HE WAS CREDITED THE BASIC ALLOWANCE FOR QUARTERS DUE AN OFFICER IN HIS PAY GRADE WITHOUT DEPENDENTS. COLONEL BOYLE HAS PROTESTED COLLECTION ON THE GROUNDS THAT IT WAS HIS PERSONAL PREFERENCE TO RESIDE OFF THE POST. THAT IT WAS THE WISH OF THE COMMANDING OFFICER THAT HE LIVE ON THE POST. THAT HE WAS NOT TOLD HE COULD NOT DRAW QUARTERS ALLOWANCE WHILE OCCUPYING ANY TYPE OF QUARTERS ON THE POST.

B-155855, FEB. 11, 1965

TO LIEUTENANT COLONEL M. B. PHILLIPS, FC, HEADQUARTERS, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 6, 1964--- FORWARDED BY THIRD INDORSEMENT DATED DECEMBER 24, 1964, OF THE OFFICE, CHIEF OF FINANCE--- REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF EFFECTING A REFUND TO LIEUTENANT COLONEL WILLIAM R. BOYLE, 0 516 974, OF THE COLLECTED PORTION OF THE DEBT CHARGE RAISED AGAINST HIM REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT OF RENTAL PAID BY HIM AND THE BASIC ALLOWANCE FOR QUARTERS CREDITED IN HIS ACCOUNT DURING THE PERIOD MAY 24, 1961, THROUGH OCTOBER 31, 1963, WHILE HE WAS ASSIGNED PUBLIC QUARTERS DESIGNATED AS SUBSTANDARD. YOUR REQUEST WAS ASSIGNED D.O. NO. A-822 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT WHEN COLONEL BOYLE REPORTED AT FORT SHERIDAN, ILLINOIS, SUITABLE QUARTERS FOR A BACHELOR CHAPLAIN WERE NOT AVAILABLE AND HE WAS ASSIGNED SUBSTANDARD FAMILY QUARTERS FOR WHICH HE PAID RENT. DURING THE PERIOD HE OCCUPIED SUCH SUBSTANDARD QUARTERS HE WAS CREDITED THE BASIC ALLOWANCE FOR QUARTERS DUE AN OFFICER IN HIS PAY GRADE WITHOUT DEPENDENTS. A DEBT LIQUIDATION SCHEDULE HAS BEEN PREPARED AND ACTION INITIATED TO COLLECT THE AMOUNT OVERPAID BY REGULAR MONTHLY DEDUCTIONS FROM THE OFFICER'S PAY. COLONEL BOYLE HAS PROTESTED COLLECTION ON THE GROUNDS THAT IT WAS HIS PERSONAL PREFERENCE TO RESIDE OFF THE POST; THAT IT WAS THE WISH OF THE COMMANDING OFFICER THAT HE LIVE ON THE POST; THAT HE WAS NOT TOLD HE COULD NOT DRAW QUARTERS ALLOWANCE WHILE OCCUPYING ANY TYPE OF QUARTERS ON THE POST; THAT HE ACTED IN GOOD FAITH UNDER PROPER ORDERS; AND THAT TO BE REQUIRED TO MAKE REFUND AFTER AN INNOCENT ERROR ON THE PART OF THE GOVERNMENT OFFICERS AND HIMSELF IS IN THE NATURE OF A PECUNIARY PENALTY AND INFLICTS UPON HIM AN UNJUST HARDSHIP.

SINCE COLONEL BOYLE WAS NOT FURNISHED QUARTERS WITHOUT PAYMENT OF RENTAL CHARGES, YOU HAVE REQUESTED AN ADVANCE DECISION AS TO THE PROPRIETY OF EFFECTING A REFUND OF COLLECTIONS MADE ON ACCOUNT OF THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IN CONNECTION WITH WHICH YOU POSE THE FOLLOWING QUESTIONS:

"/1) WAS THE ASSESSMENT OF A RENTAL CHARGE TO CHAPLAIN BOYLE PROPER FOR ACCEPTANCE OF INADEQUATE DEPENDENT QUARTERS?

"/2) IF AFFIRMATIVE, IS REFUND PROPER TO CHAPLAIN BOYLE FOR COLLECTION OF BASIC ALLOWANCE FOR QUARTERS PAYMENTS DISALLOWED BY THIS OFFICE?

IT HAS LONG BEEN ESTABLISHED THAT QUARTERS AND RENTAL ALLOWANCES ARE PAYABLE TO A MILITARY MEMBER AS A REASONABLE COMMUTATION IN MONEY WHEN HE IS NOT FURNISHED PUBLIC QUARTERS AND HE MUST PROVIDE HIS OWN. SUCH ALLOWANCES ARE CONSIDERED TO BE IN THE NATURE OF REIMBURSEMENT FOR EXPENSES INCURRED IN SECURING PRIVATE QUARTERS AND NOT AS A PART OF THE MEMBER'S PAY OR A REWARD FOR HIS INCONVENIENCE IN HAVING TO SECURE HIS OWN PLACE OF ABODE. THUS IT HAS BEEN CONSISTENTLY HELD THAT VOLUNTARY OCCUPANCY OF ANY GOVERNMENT QUARTERS WHETHER CONSIDERED INADEQUATE OR NOT PRECLUDES PAYMENT OF RENTAL OR QUARTERS ALLOWANCE. THERE SHOULD BE NO PAYMENT IN THE NATURE OF REIMBURSEMENT WHERE NO EXPENSE HAS BEEN INCURRED.

AS A MATTER OF ECONOMY AND NECESSITY IN ORDER TO UTILIZE TO THE FULLEST POSSIBLE EXTENT WARTIME HOUSING CONSIDERED INADEQUATE OR BELOW THE STANDARD OF USUAL PUBLIC QUARTERS, CONGRESS BY THE ACT OF JULY 2, 1945, CH. 227, 59 STAT. 316, ENACTED AS PERMANENT LEGISLATION CERTAIN PRIOR TEMPORARY PROVISIONS OF LAW (FOR EXAMPLE, SECTION 21 OF THE MILITARY APPROPRIATION ACT, 1945, APPROVED JUNE 28, 1944, CH. 303, 58 STAT. 596), ALLOWING MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS TO BE ACCEPTED AS TENANTS IN AND TO OCCUPY ON A RENTAL BASIS ANY SUCH HOUSING FACILITIES, OTHER THAN PUBLIC QUARTERS CONSTRUCTED OR DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL AND THEIR DEPENDENTS, IF ANY, WITHOUT BEING DEPRIVED BY REASON OF SUCH OCCUPANCY OF MONEY ALLOWANCES TO WHICH THEY WOULD OTHERWISE BE ENTITLED FOR RENTAL OF QUARTERS. SEE 37 U.S.C. 403 (E) FOR PROVISIONS OF LAW CURRENTLY IN EFFECT. NO SIMILAR LEGISLATION HAS BEEN FOUND AUTHORIZING MILITARY MEMBERS WITHOUT DEPENDENTS TO OCCUPY SUBSTANDARD HOUSING ON A RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS.

ARMY REGULATIONS 210-14, DECEMBER 10, 1958, IN EFFECT AT THE TIME COLONEL BOYLE REPORTED TO FORT SHERIDAN, PROVIDED A UNIFORM PROCEDURE FOR ESTABLISHING ELIGIBILITY OF PERSONNEL FOR ASSIGNMENT TO BACHELOR AND FAMILY QUARTERS AND FOR DESIGNATION TO RENTAL HOUSING UNITS. WHILE PARAGRAPH 2F (4) OF SUCH REGULATIONS STATED THAT RENTAL HOUSING INCLUDED CERTAIN INADEQUATE PUBLIC QUARTERS, IT WAS SPECIFICALLY PROVIDED THAT THE MATTERS THERE COVERED WERE "NOT APPLICABLE TO BACHELOR OFFICER QUARTERS.' PARAGRAPH 7D PROVIDED THAT IN THE ASSIGNMENT OF QUARTERS TO BACHELOR CHAPLAINS, SPECIAL CONSIDERATION SHOULD BE GIVEN TO THE NECESSITY FOR SPECIALIZED HOUSING BECAUSE OF THE NATURE OF THEIR PROFESSIONAL DUTIES AND SETS OUT THE CRITERIA TO BE CONSIDERED IN AFFORDING LIVING ACCOMMODATIONS TO BACHELOR CHAPLAINS. WHILE IT MAY HAVE BEEN PROPER TO ASSIGN A BACHELOR CHAPLAIN QUARTERS ADMINISTERED AS RENTAL QUARTERS AND DESIGNATED BY THE SECRETARY OF THE ARMY AS INADEQUATE AND SUBSTANDARD FOR MILITARY PERSONNEL WITH DEPENDENTS, NO AUTHORITY OF LAW EXISTED FOR CHARGING HIM RENT NOR CREDITING HIM WITH BASIC ALLOWANCE FOR QUARTERS WHILE SUCH QUARTERS WERE VOLUNTARILY ACCEPTED BY THE BACHELOR CHAPLAIN, IT BEING SPECIFICALLY PROVIDED IN PARAGRAPH 13D (4) THAT "PUBLIC QUARTERS VOLUNTARILY ACCEPTED AND OCCUPIED BY BACHELOR OFFICERS WILL CONCLUSIVELY BE PRESUMED TO BE ADEQUATE AND NO BASIC ALLOWANCE FOR QUARTERS WILL ACCRUE DURING SUCH OCCUPANCY.' IT IS ONLY WHERE QUARTERS ARE NOT OCCUPIED EITHER BECAUSE AVAILABLE QUARTERS ARE INADEQUATE OR NO QUARTERS ARE AVAILABLE THAT MONETARY ALLOWANCE IN LIEU OF QUARTERS ACCRUES TO AN OFFICER WITHOUT DEPENDENTS. TO ALLOW SUCH OFFICERS TO OCCUPY GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES WITH A COMPARATIVELY LOW CHARGE FOR RENT AND AT THE SAME TIME PAY THEM A BASIC ALLOWANCE FOR QUARTERS WOULD RESULT IN A GRATUITY TO THE EXTENT OF THE DIFFERENCE BETWEEN THE AMOUNT PAID FOR RENTAL AND THE ALLOWANCE NOT AUTHORIZED BY LAW. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE AND QUESTION (2) REQUIRES NO ANSWER.

WHILE IT MAY BE THAT COLONEL BOYLE ACTED IN GOOD FAITH UNDER ORDERS ISSUED BY AUTHORIZED OFFICERS, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT OBLIGATED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. PRESUMABLY MANY, IF NOT MOST, OVERPAYMENTS BASED ON ERRONEOUS OR UNAUTHORIZED ACTS OF AGENTS OF THE GOVERNMENT ARE ACCEPTED IN GOOD FAITH. HOWEVER, THE COURTS OF THE UNITED STATES HAVE ESTABLISHED THE RULE THAT MONEY PAID UPON AN ERRONEOUS DETERMINATION BY OFFICERS OR AGENTS OF THE GOVERNMENT, WHETHER WITH OR WITHOUT JURISDICTION OF THE PARTICULAR SUBJECT MATTER, MAY BE RECOVERED BACK FROM THE RECIPIENT. WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190 (1896), AND UNITED STATES V. BENTLEY, 107 F.2D 382, 384 (1939).

PAYMENT NOT BEING AUTHORIZED ON THE VOUCHER RECEIVED WITH YOUR REQUEST, IT WILL BE RETAINED HERE.