B-20826, NOVEMBER 10, 1941, 21 COMP. GEN. 444

B-20826, NOVEMBER 10, 1941, 21 COMP. GEN. 444

PUBLIC QUARTERS CONSTRUCTED FOR RENTAL TO ENLISTED MEN AND CIVILIAN EMPLOYEES - RENTAL OR ASSIGNMENT TO COMMISSIONED OFFICERS LOW-COST DEFENSE HOUSES CONSTRUCTED UNDER AUTHORITY OF TITLE II, SECTION 201 OF THE ACT OF SEPTEMBER 9, 1940, WHICH PROVIDES THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY MAY RENT THE HOUSES TO CERTAIN ENLISTED MEN AND CIVILIAN EMPLOYEES WITH FAMILIES, MAY NOT BE RENTED TO COMMISSIONED NAVY OFFICERS, BUT, IF ANY OF THE HOUSES ARE NOT NEEDED FOR THE PURPOSE FOR WHICH AUTHORIZED, THE SECRETARY OF THE NAVY MAY ASSIGN THEM TO OFFICERS ON A NONRENTAL BASIS, IN WHICH CASE THE OFFICERS WOULD NOT BE ENTITLED TO RENTAL ALLOWANCE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 10, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED SEPTEMBER 26, 1941, WHICH IS IN PART AS FOLLOWS:

IN THE LETTER OF AUGUST 22, 1941, THE COMMANDANT, U.S. NAVAL OPERATING BASE, GUANTANAMO BAY, CUBA, URGENTLY REQUESTS THAT AUTHORITY BE GRANTED TO SET ASIDE 30 HOUSES IN THE LOW COST DEFENSE HOUSING PROJECT AT THAT BASE FOR RENTAL TO COMMISSIONED NAVAL OFFICERS. IN VIEW OF THE CRITICAL SHORTAGE OF HOUSING FACILITIES AT THE GUANTANAMO NAVAL BASE, THE NAVY DEPARTMENT CONTEMPLATES APPROVAL OF THE COMMANDANT'S REQUEST. HOWEVER, BEFORE TAKING ANY FURTHER ACTION IN THIS MATTER, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT SUCH LOW COST DEFENSE HOUSES MAY BE LEGALLY ASSIGNED TO OFFICERS ON A RENTAL BASIS AT RATES SET UP AS SUITABLE FOR ENLISTED MEN AND CIVILIAN EMPLOYEES.

YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER OR NOT, IF IT IS HELD THAT THE OFFICERS IN QUESTION MAY BE PERMITTED TO OCCUPY SUCH LOW-COST DEFENSE HOUSES ON A RENTAL BASIS, THE OCCUPANCY OF SUCH GOVERNMENT OWNED AND CONTROLLED QUARTERS ON A RENTAL BASIS WILL PRECLUDE THE USE OF NAVAL APPROPRIATIONS FOR PAYMENT TO THE OFFICERS CONCERNED OF RENTAL ALLOWANCE TO WHICH THEY MIGHT OTHERWISE BE ENTITLED BUT FOR THE OCCUPANCY OF SUCH GOVERNMENT-OWNED AND CONTROLLED QUARTERS.

ACCOMPANYING YOUR REQUEST FOR DECISION IS A FIRST INDORSEMENT DATED SEPTEMBER 12, 1941, FROM THE CHIEF OF THE BUREAU OF NAVIGATION TO THE SECRETARY OF THE NAVY, AS FOLLOWS: REFERENCE: (A) SECNAV LTR. ND15/N4-1 (410524/K DU OF JUNE 14, 1941.

(B) ART. 1819 (4) (7), U.S. NAVY REGULATIONS, 1920, AS

AMENDED.

(C) COMPT. GEN. DECISION B-13039 OF NOV. 15, 1940.

1. FORWARDED, RECOMMENDING APPROVAL OF THE REQUEST CONTAINED IN PARAGRAPH 5 OF BASIC LETTER THAT 30 HOUSES IN THE LOW-COST DEFENSE HOUSING PROJECT BE SET ASIDE FOR COMMISSIONED NAVAL OFFICERS, PROVIDED THIS PROCEDURE IS CONSISTENT WITH THE PROVISION OF LAW.

2. IN REFERENCE (A) THE SECRETARY OF THE NAVY AUTHORIZED THE COMMANDANT, FIFTEENTH NAVAL DISTRICT TO ASSIGN OFFICERS TO UNITS IN A LOW COST HOUSING PROJECT UNDER CONDITIONS SIMILAR TO THOSE OUTLINED IN BASIC LETTER. WAS STIPULATED, HOWEVER, THAT THE COMMANDANT WOULD DETERMINE THE SUITABILITY OF THE QUARTERS FOR THE OFFICERS' OCCUPANCY. IT WAS ALSO STIPULATED THAT NO ADDITIONAL EXPENDITURE OF FUNDS FOR THE PURCHASE OF FURNITURE OR FURNISHINGS WOULD BE PROVIDED AND THAT DURING THE PERIOD OF VOLUNTARY OCCUPANCY, THE OFFICERS WOULD NOT BE ENTITLED TO PAYMENT OF RENTAL ALLOWANCE. IN ANY EVENT THE COMMANDANT MUST CERTIFY THAT THE QUARTERS SO ASSIGNED WERE NOT NEEDED FOR ENLISTED MEN OR CIVILIAN EMPLOYEES.

3. THE ACT UNDER WHICH THE APPROPRIATIONS WERE MADE FOR THE LOW COST HOUSING PROJECT PROVIDES IN PART AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AT THEIR DISCRETION, ARE HEREBY AUTHORIZED TO RENT SUCH HOUSING UNITS, UPON COMPLETION, TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS WITH FAMILIES, TO FIELD EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS WITH FAMILIES, AND TO WORKERS WITH FAMILIES WHO ARE ENGAGED, OR TO BE ENGAGED, IN INDUSTRIES ESSENTIAL TO THE MILITARY AND NAVAL NATIONAL DEFENSE PROGRAMS, INCLUDING WORK ON SHIPS UNDER THE CONTROL OF THE MARITIME COMMISSION. THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY ARE FURTHER AUTHORIZED TO USE SUCH RENTALS AS MAY BE COLLECTED FROM EACH HOUSING PROJECT FOR THE MANAGEMENT AND MAINTENANCE OF THE HOUSING UNITS THEREIN, INCLUDING UTILITIES, ROADS, WALKS, AND ACCESSORIES, AND TO SET UP SPECIAL RESERVE ACCOUNTS FOR THE AMORTIZATION OF THE COST OF THE PROJECT:

4. REFERENCE (B) STATES IN PART:

"/4)EVERY OFFICER, ON REPORTING FOR DUTY AT A PLACE WHICH IS HIS PERMANENT STATION AND WHERE PUBLIC QUARTERS ARE AVAILABLE, SHALL BE IMMEDIATELY ASSIGNED THEREAT, IN WRITING, BY THE COMMANDING OFFICER, WHO IS THE COMPETENT SUPERIOR AUTHORITY FOR THAT PURPOSE (OR IN THE CASE OF MARINE QUARTERS, BY THE COMMANDING OFFICER OF MARINES), THE QUARTERS DESIGNATED FOR HIS OCCUPANCY, OR, IF NONE HAVE BEEN DESIGNATED, SUCH QUARTERS AS MAY BE AVAILABLE, PROVIDED SUCH QUARTERS CONTAIN THE NUMBER OF ROOMS PRESCRIBED BY LAW FOR AN OFFICER OF HIS RANK, AS STATED IN THE TABLE BELOW OR THE EQUIVALENT OF SUCH TABLE, OR A LESS NUMBER OF ROOMS DETERMINED BY SUCH COMPETENT SUPERIOR AUTHORITY TO BE ADEQUATE IN THE PARTICULAR CASE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, GIVING DUE CONSIDERATION TO THE SUITABILITY OF THE QUARTERS FOR OCCUPANCY BY THE OFFICER CONCERNED, THE POSITION OF THE OFFICER IN THE ORGANIZATION, HIS RANK, THE NUMBER, AGE, AND SEX OF HIS DEPENDENTS, AND OTHER CIRCUMSTANCES AFFECTING THE ASSIGNMENT.'

"/7) THE VOLUNTARY OCCUPATION BY AN OFFICER WITHOUT DEPENDENTS OR BY AN OFFICER WITH HIS DEPENDENTS OF THE QUARTERS ASSIGNED SHALL BE CONCLUSIVE PROOF THAT THEY ARE ADEQUATE.'

THE ABOVE WAS BASED ON THE PREMISE THAT THERE WOULD BE SOME CHOICE REMAINING TO THE COMMANDING OFFICER AS TO WHETHER OR NOT QUARTERS WERE "SUITABLE OR ADEQUATE.' AT THE NAVAL OPERATING BASE, GUANTANAMO, CUBA, THE COMMANDING OFFICER IS UNDER THE NECESSITY OF CERTIFYING THAT QUARTERS ARE SUITABLE AND ADEQUATE OR LEAVING THE OFFICER WITHOUT ANY QUARTERS FOR HIS DEPENDENTS WHATSOEVER. IT ALSO PRESUMES THAT THE OFFICER HAS SOME CHOICE REMAINING, UNDER CERTAIN CIRCUMSTANCES, AS TO WHETHER OR NOT HE WILL OCCUPY THE GOVERNMENT QUARTERS AVAILABLE. AT THE ABOVE-MENTIONED STATION THE OFFICER MUST TAKE "VOLUNTARY OCCUPATION" OR FOREGO THE PRESENCE OF HIS FAMILY ON THE STATION.

5. REFERENCE (C) IS A DECISION ON CERTAIN QUESTIONS BROUGHT UP BY THE SECRETARY OF WAR IN HIS LETTER TO THE COMPTROLLER GENERAL DATED OCTOBER 14, 1940 AMONG WHICH WAS THE FOLLOWING:

"ALTHOUGH THERE IS NO DOUBT OF THE AUTHORITY OF THE SECRETARY OF WAR TO UNDERTAKE THE DEVELOPMENT, ADMINISTRATION, AND MANAGEMENT OF THE PROJECT IN QUESTION PURSUANT TO PUBLIC, NO. 671, SUPRA, THIS ACT DOES NOT SPECIFICALLY COVER SEVERAL LEGAL QUESTIONS WHICH WILL ARISE IN THE COURSE OF SUCH ADMINISTRATION. FOR EXAMPLE, ALTHOUGH THE SECRETARY OF WAR IS AUTHORIZED TO RENT DWELLINGS TO ENLISTED MEN, THE ACT IS SILENT ON THE QUESTION WHETHER SUCH ENLISTED LESSEES WOULD BE ENTITLED TO RECEIVE A MONETARY ALLOWANCE IN LIEU OF QUARTERS UNDER THE CIRCUMSTANCES. IF SUCH ALLOWANCE IS NOT LEGALLY AUTHORIZED, IT IS EXTREMELY DOUBTFUL WHETHER SUCH ENLISTED LESSEES WILL BE ABLE TO PAY A RENTAL SUFFICIENT TO INSURE THE SELF-LIQUIDATION OF THE PROJECT.'

6. THE ANSWER TO THE ABOVE WAS IN PART AS FOLLOWS:

"AS A GENERAL RULE WHEN THE WAR DEPARTMENT HAS GOVERNMENT-OWNED OR LEASED QUARTERS AVAILABLE FOR OCCUPANCY BY ENLISTED MEN SUCH QUARTERS ARE FURNISHED IN KIND AND NO RENTAL CHARGE IS PROPER. BUT IT APPEARS NOT TO HAVE BEEN CONTEMPLATED THAT THE QUARTERS HERE IN QUESTION WOULD BE AVAILABLE FOR OCCUPANCY BY ENLISTED MEN ON SUCH A BASIS. OF COURSE, TO THE EXTENT THAT QUARTERS, OTHER THAN THOSE CONSTRUCTED PURSUANT TO THE TERMS OF TITLE II OF THE ACT OF JUNE 28, 1940, SUPRA, ARE AVAILABLE FOR OCCUPANCY BY ENLISTED MEN, THEY SHOULD BE FURNISHED AND NO MONETARY ALLOWANCE IN LIEU OF QUARTERS PAID. HOWEVER, WHEN SUCH QUARTERS ARE NOT AVAILABLE, THE FACT THAT ENLISTED MEN MAY BE PERMITTED TO RENT PROJECT QUARTERS AT RENTALS FIXED IN ACCORDANCE WITH SECTION 204 OF THE ACT OF JUNE 28, 1940, SUPRA, WILL NOT PRECLUDE THEM FROM BEING PAID SUCH MONETARY ALLOWANCES FOR QUARTERS AS THEY WOULD BE ENTITLED TO RECEIVE IF OCCUPYING QUARTERS NOT OWNED BY THE GOVERNMENT.'

7. IN VIEW OF THE ABOVE IT IS RECOMMENDED THAT A DECISION OF THE COMPTROLLER GENERAL BE REQUESTED AS TO WHETHER OR NOT THE SUBJECT HOUSES CAN BE ASSIGNED TO OFFICERS ON A RENTAL BASIS AT RATES SET UP AS SUITABLE FOR ENLISTED MEN AND CIVILIAN EMPLOYEES. IT WOULD APPEAR THAT RENTALS WOULD BE REQUIRED IN ORDER TO PROVIDE FOR UP-KEEP, ADMINISTRATION, AND AMORTIZATION OF THE PROJECT. A DECISION IS ALSO REQUESTED THAT IF THE OFFICER DOES PAY SUCH RENTAL DOES THE FACT THAT HE IS OCCUPYING GOVERNMENT QUARTERS PRECLUDE HIS DRAWING RENTAL ALLOWANCE.

8. IF AN UNFAVORABLE DECISION IS RECEIVED IN THIS MATTER, IT IS URGENTLY RECOMMENDED THAT THE BUREAU OF YARDS AND DOCKS INSTITUTE A PROGRAM OF PROVIDING QUARTERS FOR OFFICERS ON OUTLYING STATIONS REMOTE FROM CIVILIAN COMMUNITIES WHERE QUARTERS FOR THEIR DEPENDENTS MIGHT BE FOUND IN ORDER TO BRING THE CONSIDERATION GIVEN TO OFFICERS MORE IN LINE WITH WHAT HAS BEEN GIVEN TO ENLISTED MEN AND CIVILIAN EMPLOYEES.

IT IS DISCLOSED THAT THE LOW-COST DEFENSE HOUSES WHICH YOU PROPOSE TO SET ASIDE FOR OCCUPANCY BY OFFICERS WERE CONSTRUCTED WITH FUNDS MADE AVAILABLE UNDER PUBLIC LAW NO. 781. APPARENTLY THE STATUTORY PROVISION TO WHICH REFERENCE IS MADE IS TITLE II, SECTION 201 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, 54 STAT. 883, WHICH PROVIDES:

SEC. 201. TO THE PRESIDENT FOR ALLOCATION TO THE WAR DEPARTMENT AND THE NAVY DEPARTMENT FOR THE ACQUISITION OF NECESSARY LAND AND THE CONSTRUCTION OF HOUSING UNITS, INCLUDING NECESSARY UTILITIES, ROADS, WALKS, AND ACCESSORIES, AT LOCATIONS ON OR NEAR MILITARY OR NAVAL ESTABLISHMENTS, NOW IN EXISTENCE OR TO BE BUILT, OR NEAR PRIVATELY OWNED INDUSTRIAL PLANTS ENGAGED IN MILITARY OR NAVAL ACTIVITIES, WHICH FOR THE PURPOSES OF THIS ACT SHALL BE CONSTRUED TO INCLUDE ACTIVITIES OF THE MARITIME COMMISSION, WHERE THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE CHAIRMAN OF THE MARITIME COMMISSION SHALL CERTIFY THAT SUCH HOUSING IS IMPORTANT FOR PURPOSES UNDER THEIR RESPECTIVE JURISDICTION AND NECESSARY TO THE NATIONAL DEFENSE PROGRAM, $100,000,000: PROVIDED, THAT THE AVERAGE UNIT COST OF SUCH HOUSING PROJECTS, INCLUDING ACQUISITIONS OF LAND, THE INSTALLATION OF NECESSARY UTILITIES, ROADS, WALKS, ACCESSORIES, AND COLLATERAL EXPENSES SHALL NOT BE IN EXCESS OF $3,500: PROVIDED FURTHER, THAT IN CARRYING OUT THE PURPOSES OF THIS SECTION THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY MAY UTILIZE SUCH OTHER AGENCIES OF THE UNITED STATES AS THEY MAY DETERMINE UPON: PROVIDED FURTHER, THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AT THEIR DISCRETION, ARE HEREBY AUTHORIZED TO RENT SUCH HOUSING UNITS, UPON COMPLETION, TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS WITH FAMILIES, TO FIELD EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS WITH FAMILIES, AND TO WORKERS WITH FAMILIES WHO ARE ENGAGED, OR TO BE ENGAGED, IN INDUSTRIES ESSENTIAL TO THE MILITARY AND NAVAL NATIONAL DEFENSE PROGRAMS, INCLUDING WORK ON SHIPS UNDER THE CONTROL OF THE MARITIME COMMISSION. THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY ARE FURTHER AUTHORIZED TO USE SUCH RENTALS AS MAY BE COLLECTED FROM EACH HOUSING PROJECT FOR THE MANAGEMENT AND MAINTENANCE OF THE HOUSING UNITS THEREIN, INCLUDING UTILITIES, ROADS, WALKS, AND ACCESSORIES, AND TO SET UP SPECIAL RESERVE ACCOUNTS FOR THE AMORTIZATION OF THE COST OF THE PROJECT: PROVIDED FURTHER, THAT THE AUTHORITY OF EXISTING LAW FOR THE NEGOTIATION OF COST-PLUS-A-FIXED-FEECONTRACTS SHALL BE APPLICABLE TO HOUSING PROJECTS FOR WHICH FUNDS MAY BE MADE AVAILABLE TO THE WAR AND NAVY DEPARTMENTS OR THE MARITIME COMMISSION.

ACCORDING TO THE EXPRESS TERMS OF THE STATUTE THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, AT THEIR DISCRETION, ARE AUTHORIZED TO RENT THE COMPLETED HOUSES TO "ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS WITH FAMILIES, TO FIELD EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS WITH FAMILIES, AND TO WORKERS WITH FAMILIES WHO ARE ENGAGED OR TO BE ENGAGED IN INDUSTRIES ESSENTIAL TO THE MILITARY OR NAVAL NATIONAL DEFENSE PROGRAMS, * * *.' NOWHERE IN THE PROVISION IS IT SUGGESTED THAT THE HOUSES AUTHORIZED THEREBY WERE INTENDED FOR THE OCCUPANCY OF OFFICERS OF EITHER OF THE SERVICES, NOR HAS ANY STATEMENT BEEN FOUND IN THE HISTORY OF THIS PARTICULAR LEGISLATION WHICH PERMITS THE ASSUMPTION THAT THEY WERE SO INTENDED. THE STATUTE AUTHORIZES THE RENTING OF THE HOUSES CONSTRUCTED THEREUNDER TO CERTAIN DESIGNATED PERSONS AND, SINCE OFFICERS OF THE NAVY ARE NOT INCLUDED AMONG SUCH DESIGNATED PERSONS, THE AUTHORITY GRANTED TO RENT SUCH HOUSES DOES NOT EXTEND TO OFFICERS. ACCORDINGLY, YOU ARE ADVISED THAT SUCH HOUSES MAY NOT BE LEGALLY ASSIGNED TO OFFICERS ON A RENTAL BASIS AT RATES SET UP AS SUITABLE FOR ENLISTED MEN AND CIVILIAN EMPLOYEES.

IN VIEW OF THE ANSWER TO YOUR FIRST QUESTION NO ANSWER TO YOUR SECOND QUESTION IS REQUIRED. HOWEVER, IT MAY BE STATED THAT IT IS CLEAR THAT THE HOUSES INVOLVED WERE OR ARE BEING CONSTRUCTED WITH PUBLIC FUNDS, AND THAT THE COMPLETED HOUSES ARE GOVERNMENT PROPERTY UNDER THE JURISDICTION OF THE SECRETARY OF THE NAVY. IF SUCH HOUSES ARE NOT NEEDED FOR THE PURPOSE FOR WHICH AUTHORIZED, THAT IS, FOR THE OCCUPANCY OF CERTAIN ENLISTED MEN OR CIVILIAN EMPLOYEES AS DESIGNATED IN THE STATUTE, IT APPEARS TO BE WITHIN YOUR AUTHORITY TO ASSIGN SUCH UNOCCUPIED AND UNNEEDED HOUSES UNDER YOUR SUPERVISION AND CONTROL TO COMMISSIONED OFFICERS, BUT, IF SUCH HOUSES ARE ASSIGNED TO OFFICERS, SUCH ASSIGNMENT WOULD BE AN ASSIGNMENT OF PUBLIC QUARTERS WITHIN THE MEANING OF THE RENTAL ALLOWANCE STATUTES AND WOULD PRECLUDE PAYMENT OF RENTAL ALLOWANCE DURING THE PERIOD THE OFFICERS OCCUPIED SUCH HOUSES.