B-15992, MAY 2, 1941, 20 COMP. GEN. 727

B-15992, MAY 2, 1941, 20 COMP. GEN. 727

COMPENSATION - ALLOWANCES IN KIND - CIVILIAN EMPLOYEE OCCUPYING QUARTERS FURNISHED FATHER AS ARMY OFFICER THE OCCUPATION BY CIVILIAN EMPLOYEES OF PUBLIC QUARTERS ASSIGNED TO THEIR FATHERS AS ARMY OFFICERS UNDER THE ACT OF MARCH 2, 1907, DOES NOT CONSTITUTE THE FURNISHING OF QUARTERS TO CIVILIAN EMPLOYEES BY THE WAR DEPARTMENT WITHIN CONTEMPLATION OF SECTION 3, ACT OF MARCH 5, 1928, AND NO DEDUCTIONS ARE REQUIRED FROM THE COMPENSATION OF THE EMPLOYEES FOR THE VALUE OF THE QUARTERS IF SUCH OCCUPANCY IS NOT THE ALTERNATIVE OF OCCUPYING OTHER QUARTERS INCIDENT TO THEIR STATUS AS CIVILIAN EMPLOYEES.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MAY 2, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 4, 1941, AS FOLLOWS:

IT APPEARS THAT CERTAIN CLASSIFIED FIELD EMPLOYEES OF THE QUARTERMASTER GENERAL'S DEPARTMENT, SERVING AT HEADQUARTERS PUERTO RICAN DEPARTMENT, ARE UNMARRIED DAUGHTERS OF ARMY OFFICERS ON DUTY AT HEADQUARTERS PUERTO RICAN DEPARTMENT. THE EMPLOYEES CONCERNED ARE LIVING WITH THEIR PARENTS IN PUBLIC QUARTERS FURNISHED THEIR FATHERS AS ARMY OFFICERS.

THE QUESTION HAS ARISEN WHETHER APPROPRIATE DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF THESE EMPLOYEES FOR THE VALUE TO THEM OF THE PUBLIC QUARTERS THEY OCCUPY. THE EMPLOYEES CONCERNED HAVE NOT BEEN ASSIGNED QUARTERS AND THEIR APPOINTMENTS HAVE NOT BEEN MADE IN CLASSIFICATIONS FOR WHICH AN ALLOWANCE FOR QUARTERS IS AUTHORIZED.

INCLOSED HEREWITH ARE THE VOUCHERS PRESENTED FOR PAYMENT TO THE FINANCE OFFICER, UNITED STATES ARMY, PUERTO RICAN DEPARTMENT, SAN JUAN, PUERTO RICO, IN A SPECIFIC CASE INVOLVING THE QUESTION RAISED IN THIS CONNECTION. ADVANCE DECISION IS REQUESTED.

SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, PROVIDES:

THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER THERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.

THE VOUCHER PRESENTED COVERS A PROPOSED REFUND OF $7.50 EACH TO THREE EMPLOYEES OF THE QUARTERMASTER CORPS, PUERTO RICAN DEPARTMENT, IN GRADE CAF-3, $1,620 PER ANNUM, DEDUCTED FOR THE PERIOD DECEMBER 1 TO DECEMBER 15, 1940, ON VOUCHER NO. 867 OF THE DECEMBER, 1940, ACCOUNTS OF MAJ. C. T. GUNN, FINANCE DEPARTMENT, UNITED STATES ARMY, THE EVALUATION APPARENTLY HAVING BEEN COMPUTED IN ACCORDANCE WITH THE TABLE CONTAINED IN PARAGRAPH 2 (B) OF AR-35-3840, PROMULGATED IN ACCORDANCE WITH SECTION 3 OF THE ACT OF MARCH 5, 1928, SUPRA. THE TABLE OF EVALUATION REFERRED TO IS PRECEDED BY A PARAGRAPH IN PART AS FOLLOWS:

QUARTERS.--- * * * THE FOLLOWING EVALUATIONS WILL BE GIVEN HOUSES OR APARTMENTS FURNISHED AS QUARTERS TO EMPLOYEES OF THE FIELD SERVICES OF THE WAR DEPARTMENT WHOSE CASH RATES OF COMPENSATION FALL WITHIN THE RANGE INDICATED:

THE APPLICATION OF THE ACT OF MARCH 5, 1928, AND THE REGULATIONS ISSUED PURSUANT THERETO TO CASES SUCH AS ARE HERE PRESENTED, IS TO BE CONSIDERED IN THE LIGHT OF THE STATUTORY PROVISIONS AND REGULATIONS GOVERNING THE ASSIGNMENT OF QUARTERS, OR THE PAYMENT OF RENTAL ALLOWANCE IN LIEU THEREOF, TO OFFICERS OF THE ARMY. THE ACT OF MARCH 2, 1907, 34 STAT. 1168, PROVIDES THAT AT ALL POSTS AND STATIONS WHERE THERE ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES, OFFICERS MAY BE FURNISHED WITH QUARTERS IN KIND IN SUCH PUBLIC QUARTERS AND NOT ELSEWHERE, BY THE QUARTERMASTER'S DEPARTMENT ASSIGNING TO THE OFFICERS OF EACH GRADE THE NUMBER OF ROOMS THEREIN SPECIFIED; AND SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 251, PROVIDES FOR THE PAYMENT OF A MONEY ALLOWANCE AT ALL TIMES FOR THE RENTAL OF QUARTERS AT THE RATE OF $20 PER MONTH PER ROOM FOR THE NUMBER OF ROOMS BASED UPON THE PAY PERIOD OF THE OFFICER, EXCEPT THAT---

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

IF PUBLIC QUARTERS HAD NOT BEEN FURNISHED FOR THE ARMY OFFICERS HERE INVOLVED THEY WOULD HAVE BEEN ENTITLED TO RENTAL ALLOWANCE, AS PROVIDED BY THE ACT OF JUNE 10, 1922, AS AMENDED, AND UPON THE HIRE OR RENTAL OF PRIVATE QUARTERS BY THE OFFICERS CONCERNED, THERE WOULD APPEAR TO BE NO QUESTION THAT THE PERMISSIVE OCCUPANCY OF A PART OF SUCH QUARTERS BY THEIR DAUGHTERS WOULD NOT BE EQUIVALENT TO A FURNISHING BY THE WAR DEPARTMENT OF QUARTERS TO CIVIL EMPLOYEES OF THE FIELD SERVICES WITHIN THE MEANING OF THE ACT OF MARCH 5, 1928, AND ARMY REGULATIONS. SINCE THE PAYMENT OF A RENTAL ALLOWANCE UNDER THE ACT OF JUNE 10, 1922, IS MERELY A SUBSTITUTE FOR PUBLIC QUARTERS NOT FURNISHED, THE SAME RULE APPLIES, IN THE ABSENCE OF WAR DEPARTMENT REGULATIONS OTHERWISE, AS TO THE USE OF PUBLIC QUARTERS ASSIGNED TO ARMY OFFICERS WHERE THE DAUGHTERS OF THE OFFICER ARE PERMITTED TO OCCUPY A PART OF SAID PUBLIC QUARTERS. IT APPEARS OBVIOUS THAT THE ASSIGNMENT OF QUARTERS TO AN OFFICER, OR THE PAYMENT TO HIM OF A MONEY ALLOWANCE IN LIEU THEREOF, UNDER THE LAW REFERRED TO, HAS NO PROPER RELATION TO OR CONNECTION WITH THE FURNISHING OF QUARTERS TO CIVILIAN EMPLOYEES OF THE FIELD SERVICES OF THE WAR DEPARTMENT UNDER THE ACT OF MARCH 5, 1928, OR THE ARMY REGULATIONS REFERRED TO. THE RESPECTIVE STATUTORY PROVISIONS AND REGULATIONS ARE SO DIFFERENT THAT THEIR COMMON APPLICATION APPEARS TO BE NOT REASONABLY WARRANTED. ACCORDINGLY, WITHIN CONTEMPLATION OF SECTION 3 OF THE ACT OF MARCH 5, 1928, AND THE PERTINENT PROVISIONS OF THE ARMY REGULATION, THE OCCUPATION BY THE CIVILIAN EMPLOYEES CONCERNED OF PUBLIC QUARTERS LEGALLY ASSIGNED TO THEIR FATHERS WHO ARE ARMY OFFICERS, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, DOES NOT PRIMA FACIE CONSTITUTE THE FURNISHING OF QUARTERS TO CIVILIAN EMPLOYEES BY THE WAR DEPARTMENT; AND IF SUCH OCCUPANCY WAS NOT THE ALTERNATIVE OF OCCUPYING OTHER QUARTERS MADE AVAILABLE TO THEM BY THE WAR DEPARTMENT INCIDENT TO THEIR STATUS AS SUCH EMPLOYEES, THERE IS NO PROPER BASIS FOR THE DEDUCTIONS THEREFOR FROM THEIR STATUTORY COMPENSATION. PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.