B-160354, JAN. 9, 1967

B-160354, JAN. 9, 1967

TO MR. LOUIS H. CERASO, ATTORNEY AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1966, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE SUM OF $185.54, REPRESENTING THE AGGREGATE AMOUNT PAID BY YOU FOR ELECTRICITY WHILE OCCUPYING INADEQUATE GOVERNMENT QUARTERS DURING THE PERIOD JUNE 1964 TO AUGUST 1965, AS A FIRST LIEUTENANT, UNITED STATES ARMY.

THE FILE SHOWS THAT YOU AND YOUR DEPENDENTS OCCUPIED INADEQUATE GOVERNMENT QUARTERS ASSIGNED WITH YOUR CONSENT IN ACQUIRED WHERRY HOUSING AT THE LETTERKENNY ARMY DEPOT, CHAMBERSBURG, PENNSYLVANIA (APARTMENT 111, KENNY GARDENS), UNDER QUARTERS ASSIGNMENT ORDERS EFFECTIVE OCTOBER 1, 1964. FOR EACH MONTH DURING THE PERIOD OF YOUR OCCUPANCY OF SUCH QUARTERS YOU PAID A RENTAL OF $93.50 AND RECEIVED A BASIC ALLOWANCE FOR QUARTERS OF $120. ALSO, DURING THAT PERIOD CHARGES FOR ELECTRICITY WERE BILLED DIRECTLY TO YOU BY THE UTILITY COMPANY, SOUTH PENN POWER COMPANY, CHAMBERSBURG, PENNSYLVANIA.

IN A LETTER DATED JANUARY 6, 1966, TO YOUR LOCAL FINANCE AND ACCOUNTING OFFICER YOU SOUGHT REIMBURSEMENT OF THE SUM OF $185.54, REPRESENTING THE AGGREGATE AMOUNT PAID BY YOU FOR ELECTRICITY DURING THE PERIOD JUNE 1964 TO AUGUST 1965. YOU BASED YOUR CLAIM ON THE PREMISE THAT UNDER THE PROVISIONS OF PARAGRAPH 8B (1), CHANGE 2, DATED MAY 1, 1956, TO ARMY REGULATIONS 420-80, THE GOVERNMENT WAS OBLIGATED TO FURNISH ALL UTILITIES SERVICES, INCLUDING ELECTRICITY, AT GOVERNMENT EXPENSE. YOUR CLAIM WAS DENIED BY THAT OFFICER'S LETTER OF JANUARY 21, 1966. IT WAS STATED IN THE LETTER THAT THE RENTAL RATES COVERING YOUR QUARTERS WERE ESTABLISHED BY THE BALTIMORE DISTRICT ENGINEER IN CONFORMANCE WITH ARMY REGULATIONS 210- 12 AND THAT THE APPROVED RENTAL SCHEDULE SPECIFICALLY EXCLUDES ELECTRIC SERVICE FROM THE COMPUTATION. ON JANUARY 26, 1966, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM, MAINTAINING, AMONG OTHER THINGS, THAT THE PROVISIONS OF THE ABOVE-MENTIONED CHANGE 2 TO ARMY REGULATIONS 420-80 MUST BE APPLIED IN YOUR CASE SINCE ITS DATE IS LATER THAN THAT OF ARMY REGULATIONS 210-12.

THE FINANCE CENTER, U.S. ARMY, FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION FOR APPROPRIATE DISPOSITION. BY SETTLEMENT DATED OCTOBER 12, 1966, THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE RENTAL RATE FOR YOUR QUARTERS APPEARS TO HAVE BEEN PROPERLY ESTABLISHED UNDER ARMY REGULATIONS 210-12 AND WAS COMPUTED ON THE BASIS THAT YOU WOULD BE CHARGED DIRECTLY FOR ELECTRICITY. IT WAS STATED IN THAT SETTLEMENT THAT THE PROVISIONS OF ARMY REGULATIONS 420-80 APPEAR TO RELATE TO ADEQUATE GOVERNMENT QUARTERS AND ARE NOT APPLICABLE TO RENTAL HOUSING, INCLUDING INADEQUATE PUBLIC QUARTERS.

IN YOUR LETTER OF OCTOBER 14, 1966, YOU HAVE QUESTIONED THE PROPRIETY OF THE ACTION TAKEN BY OUR CLAIMS DIVISION, PARTICULARLY THEIR HOLDING THAT THE PROVISIONS OF ARMY REGULATIONS 420-80 ARE NOT APPLICABLE TO RENTAL HOUSING. YOU APPARENTLY DO NOT QUESTION THE FACT THAT THE RENTAL RATE FOR THE QUARTERS WHICH YOU OCCUPIED WAS PROPERTY ESTABLISHED IN CONFORMITY WITH ARMY REGULATIONS 210-12 AND DID NOT INCLUDE ELECTRICITY, BUT YOU CONTEND THAT UNDER THE LATER DATED CHANGE NO. 2, ARMY REGULATIONS 420-80, THE GOVERNMENT WAS OBLIGATED TO FURNISH ALL UTILITIES, INCLUDING ELECTRICITY, WITHOUT CHARGE.

SINCE YOU DO NOT CONTEND THAT THE RENTAL CHARGED FOR THE HOUSING WHICH YOU OCCUPIED WAS NOT PROPERLY ESTABLISHED IN ACCORDANCE WITH ARMY REGULATIONS 210-12, AND DID NOT INCLUDE ELECTRICITY IT APPEARS TO BE UNNECESSARY TO SET FORTH THE PROVISIONS OF THOSE REGULATIONS AND THE STATUTORY AUTHORITY THEREFOR. ARMY REGULATIONS 420-80 DATED OCTOBER 30, 1950, AND THE CHANGES THERETO ON WHICH YOU RELY WERE ISSUED TO IMPLEMENT THE ACT OF JULY 30, 1947, 61 STAT. 675. THE 1947 ACT IS SET FORTH IN PARAGRAPH 1 OF THE REGULATION AND PROVIDES THAT THE SECRETARY OF THE ARMY OR HIS DESIGNEE IS AUTHORIZED TO SELL AND CONTRACT TO SELL, UNDER PRESCRIBED REGULATIONS, TO PURCHASERS WITHIN OR IN THE IMMEDIATE VICINITY OF ARMY INSTALLATIONS, SUCH UTILITIES AND RELATED SERVICES AS ARE NOT OTHERWISE AVAILABLE FROM LOCAL PRIVATE OR PUBLIC SOURCES. SIMILAR PROVISIONS ARE NOW CONTAINED IN 10 U.S.C. 2481.

PARAGRAPH 4 OF THE REGULATION PROVIDES THAT BEFORE ANY AGREEMENT IS ENTERED INTO FOR THE SALE OR DISTRIBUTION OF A UTILITY OR RELATED SERVICE, IT MUST BE DETERMINED THAT THE UTILITY OR RELATED SERVICE IS NOT AVAILABLE FROM LOCAL PRIVATE OR PUBLIC SOURCES. THUS, THE PURPOSE OF THE REGULATION (PARAGRAPH 6) IS TO ESTABLISH POLICIES FOR PROVIDING UTILITIES AND RELATED SERVICES TO ARMY INSTALLATIONS AND ACTIVITIES WHEN SUCH UTILITIES ARE NOT AVAILABLE FROM LOCAL SOURCES.

PARAGRAPH 8B (1), CHANGE NO. 2 OF THE REGULATION DATED MAY 1, 1956, PROVIDES, AS YOU INDICATE, THAT "GOVERNMENT-OWNED QUARTERS ASSIGNED TO MILITARY PERSONNEL WILL BE FURNISHED UTILITIES SERVICES AT GOVERNMENT EXPENSE.' THAT PROVISION, BEING A PART OF ARMY REGULATIONS 420-80, RELATES ONLY TO UTILITIES THAT ARE PROVIDED BY THE GOVERNMENT WHEN NOT AVAILABLE FROM LOCAL PRIVATE OR PUBLIC SOURCES. SINCE YOU OBTAINED ELECTRICITY FROM THE SOUTH PENN POWER COMPANY, A PRIVATE SOURCE, THE REGULATION HAS NO APPLICATION IN YOUR CASE AND PROVIDES NO AUTHORITY TO REIMBURSE YOU FOR THE AMOUNT PAID TO THAT COMPANY. SINCE THE REGULATION HAS NO APPLICATION IN YOUR CASE, IT IS UNNECESSARY TO DECIDE AT THIS TIME WHETHER IT WOULD APPLY IN AN OTHERWISE PROPER CAUSE ONLY TO ASSIGNED PUBLIC QUARTERS OR WHETHER IT WOULD ALSO BE APPLICABLE IN THE CASE OF INADEQUATE QUARTERS VOLUNTARILY OCCUPIED ON A RENTAL BASIS.

REGARDING YOUR INQUIRY AS TO THE FURTHER PURSUIT OF YOUR CLAIM, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE AND THAT THE DECISIONS OF THE COMPTROLLER GENERAL RENDERED ON SUCH CLAIMS ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE IN THIS CONNECTION 31 U.S.C. 74. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.