B-18786, JULY 29, 1941, 21 COMP. GEN. 83

B-18786, JULY 29, 1941, 21 COMP. GEN. 83

GENERAL ACCOUNTING OFFICE - DECISIONS - HYPOTHETICAL QUESTIONS SINCE THE QUESTION PRESENTED FOR DECISION IS OF A HYPOTHETICAL NATURE DEPENDING UPON THE CONTINGENCY OF THE PRESIDENT PROMULGATING A PROPOSED AMENDMENT TO EXISTING EXECUTIVE REGULATIONS WHICH MAY OR MAY NOT BE APPROVED, AN AUTHORITATIVE DECISION ON SUCH QUESTION AT THE PRESENT TIME WOULD NOT BE APPROPRIATE OR PROPER UNDER THE PROVISIONS OF THE ACT OF JULY 31, 1894, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 29, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER, DATED JULY 11, 1941, AS FOLLOWS:

THE ACT APPROVED OCTOBER 17, 1940 ( PUBLIC, NO. 872, 76TH CONGRESS), ENTITLED "AN ACT TO PROVIDE FOR AN EXTENSION OF THE CONDITIONS UNDER WHICH A MONEY ALLOWANCE FOR QUARTERS MAY BE PAID TO CERTAIN NONCOMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES," PROVIDES:

"THAT EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAVING A DEPENDENT AS DEFINED IN SECTIONS 8 AND 8A, TITLE 37, U.S.C. SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONEY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND.'

REGULATIONS ISSUED IN PURSUANCE OF THIS ACT ARE SET FORTH IN EXECUTIVE ORDER NO. 8688 OF FEBRUARY 19, 1941, COPY ENCLOSED.

IN THE COMPTROLLER GENERAL'S DECISIONS OF MARCH 17, 1941, AND APRIL 15, 1941, B-15346, IT WAS HELD THAT, BY VIRTUE OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940 ( PUBLIC, NO. 783, 76TH CONGRESS), ENLISTED MEN OF THE NAVY WERE ENTITLED TO THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, ON A PARITY WITH ENLISTED MEN OF THE FIRST THREE GRADES OF THE ARMY. ACCORDINGLY, IT WAS HELD THAT ENLISTED MEN OF THE NAVY, MARINE CORPS AND COAST GUARD WERE ENTITLED TO THE MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER THE SAME CONDITIONS AS APPLICABLE TO ENLISTED MEN OF THE FIRST THREE GRADES OF THE ARMY. IN THIS CONNECTION, THE NAVY DEPARTMENT HAS UNDER CONSIDERATION A RECOMMENDATION TO THE PRESIDENT FOR A CHANGE IN PARAGRAPH 2 OF EXECUTIVE ORDER NO. 8688 OF FEBRUARY 19, 1941, SO AS TO AUTHORIZE ENLISTED MEN OF THE FIRST THREE GRADES, WHILE IN RECEIPT OF QUARTERS ALLOWANCE IN THEIR OWN RIGHT UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922 (42 STAT. 630; 37 U.S.C. 19), AND EXECUTIVE ORDER NO. 8704 OF MARCH 4, 1941, COPY ENCLOSED, BY REASON OF NO PUBLIC QUARTERS BEING AVAILABLE FOR THEMSELVES, TO BE PAID AN ADDITIONAL MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS WHILE ON DUTY AT STATIONS FROM WHICH THEIR DEPENDENTS ARE BARRED BY COMPETENT AUTHORITY.

PARAGRAPH 2 OF SAID EXECUTIVE ORDER NO. 8688, MODIFIED TO ACCOMPLISH THIS PURPOSE, WOULD READ AS FOLLOWS:

"2. PAYMENTS. A. EFFECTIVE AS OF OCTOBER 17, 1940, EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES, OTHER THAN PHILIPPINE SCOUTS, IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WHO IS NOT ENTITLED TO A MONEY ALLOWANCE FOR QUARTERS IN A NONTRAVEL STATUS UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630 ( U.S.C., TITLE 37, SEC. 19), OR WHO IS SO ENTITLED AT STATIONS FROM WHICH DEPENDENTS ARE BARRED BY COMPETENT AUTHORITY, AND WHO HAS A DEPENDENT AS DEFINED ABOVE, SHALL BE ENTITLED TO RECEIVE FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONEY ALLOWANCE FOR QUARTERS PRESCRIBED FOR ENLISTED MEN IN A NONTRAVEL STATUS BY EXECUTIVE ORDER NO. 8704 OF MARCH 4, 1941, OR ANY AMENDMENTS THERETO, ISSUED UNDER SECTION 11 OF THE SAID ACT OF JUNE 10, 1922.'

THE REASON FOR THE CHANGES WHICH THE NAVY DEPARTMENT PROPOSES TO RECOMMEND IN EXECUTIVE ORDER NO. 8688 OF FEBRUARY 19, 1941, SO AS TO PROVIDE FOR PAYMENT OF THE ADDITIONAL MONEY ALLOWANCE TO ENLISTED MEN OF THE FIRST THREE GRADES, IS THAT THERE ARE NAVAL ENLISTED MEN ON DUTY ASHORE IN VARIOUS FOREIGN COUNTRIES WHO HAVE DEPENDENTS. THE NAVY DEPARTMENT DOES NOT FURNISH TRANSPORTATION FOR DEPENDENTS TO THESE STATIONS. WHEN THE ENLISTED MEN CONCERNED ARE NOT FURNISHED GOVERNMENT QUARTERS, THEY MUST ESTABLISH A RESIDENCE FOR THEMSELVES. IF THEIR DEPENDENTS ARE NOT PRESENT THEY MUST ALSO ESTABLISH A RESIDENCE FOR THEM ELSEWHERE. THE PROPOSED AMENDMENT WILL PERMIT PAYMENT OF AN ADDITIONAL MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER SUCH CONDITIONS.

THE FURTHER PROPOSED CHANGE IN PARAGRAPH 2 OF EXECUTIVE ORDER NO. 8688 IS NECESSITATED BY THE FACT THAT EXECUTIVE ORDER NO. 7293 OF FEBRUARY 14, 1936, WITH AMENDMENTS THERETO, WAS EXPRESSLY SUPERSEDED BY THE LAST PARAGRAPH OF EXECUTIVE ORDER NO. 8704 OF MARCH 4, 1941. THIS CHANGE IN REFERENCE TO THE APPLICABLE EXECUTIVE ORDER WILL BRING THE EXECUTIVE REGULATIONS INTO ACCORD WITH THE CURRENT REGULATIONS ON THE SUBJECT.

THE PROPOSED PAYMENT OF THE ADDITIONAL MONEY ALLOWANCE FOR QUARTERS TO ENLISTED MEN OF THE FIRST THREE PAY GRADES, WHO ARE ALREADY ENTITLED TO SUCH ALLOWANCE IN THEIR OWN RIGHT AT STATIONS FROM WHICH THEIR DEPENDENTS ARE BARRED BY COMPETENT AUTHORITY, APPEARS TO BE WITHIN THE MEANING AND INTENT OF THE ACT OF OCTOBER 17, 1940. THE PAYMENT OF THIS ADDITIONAL MONEY ALLOWANCE FOR QUARTERS, EVEN THOUGH IT MAY RESULT IN EXCEEDING THE MAXIMUM DAILY ALLOWANCE OF $4.00 FOR COMMUTATION OF QUARTERS AND SUBSISTENCE TO BE PAID TO ENLISTED MEN IN THEIR OWN RIGHT UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922, SUPRA, IS CONSIDERED PROPER AS A PAYMENT AUTHORIZED TO BE MADE SEPARATE AND DISTINCT FROM THOSE PROVIDED FOR IN SAID SECTION 11.

YOUR EARLY DECISION IS REQUESTED AS TO WHETHER, IF EXECUTIVE ORDER NO. 8688 OF FEBRUARY 19, 1941, SHOULD BE AMENDED AS HEREIN PROPOSED, PAYMENTS FROM CURRENT NAVAL APPROPRIATIONS OF THE ADDITIONAL MONEY ALLOWANCE FOR DEPENDENTS OF ENLISTED MEN OF THE FIRST THREE GRADES ON DUTY AT STATIONS FROM WHICH THEIR DEPENDENTS ARE BARRED BY COMPETENT AUTHORITY, EVEN THOUGH SUCH ENLISTED MEN ARE CONTEMPORANEOUSLY IN RECEIPT OF QUARTERS ALLOWANCE IN THEIR OWN RIGHT UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922, SUPRA, AND EXECUTIVE ORDER NO. 8704 OF MARCH 4, 1941, BY REASON OF NO PUBLIC QUARTERS BEING AVAILABLE FOR THEMSELVES AT THEIR DUTY STATIONS, WILL BE PASSED IN THE AUDIT.

INASMUCH AS THE QUESTION UPON WHICH DECISION IS REQUESTED IS OF A HYPOTHETICAL NATURE DEPENDING UPON THE CONTINGENCY OF THE PROMULGATION BY THE PRESIDENT OF AN AMENDMENT TO EXISTING EXECUTIVE REGULATION WHICH MAY OR MAY NOT ABE APPROVED, I AM INCLINED TO THE VIEW THAT AN AUTHORITATIVE DECISION THEREON AT THE PRESENT TIME WOULD NOT BE APPROPRIATE OR PROPER UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208, AS AMENDED.