B-24238, MARCH 19, 1942, 21 COMP. GEN. 882

B-24238, MARCH 19, 1942, 21 COMP. GEN. 882

RENTAL OF GOVERNMENT-OWNED QUARTERS TO COMMISSIONED OFFICERS THE ACT OF JANUARY 21, 1942, AUTHORIZING OFFICERS IN CERTAIN GRADES OF THE ARMY, MARINE CORPS, NAVY AND COAST GUARD TO OCCUPY ON A RENTAL BASIS QUARTERS IN GOVERNMENT-OWNED LOW-COST DEFENSE HOUSES CONSTRUCTED UNDER AUTHORITY OF THE ACT OF OCTOBER 14, 1940, MAY NOT BE CONSTRUED TO EXTEND THE SAME AUTHORIZATION WITH RESPECT TO HOUSES CONSTRUCTED UNDER AUTHORITY OF THE ACTS OF JUNE 28, 1940, AND SEPTEMBER 9, 1940. OFFICERS OF THE ARMY, MARINE CORPS, NAVY AND COAST GUARD SPECIFICALLY AUTHORIZED BY THE ACT OF JANUARY 21, 1942, TO OCCUPY ON A RENTAL BASIS QUARTERS IN GOVERNMENT-OWNED LOW-COST DEFENSE HOUSES CONSTRUCTED UNDER AUTHORITY OF THE ACT OF OCTOBER 14, 1940, MAY BE PAID OTHERWISE PROPER RENTAL ALLOWANCES WHILE OCCUPYING SUCH HOUSES.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MARCH 19, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED MARCH 4, 1942, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH FOR YOUR CONSIDERATION THE REQUEST OF THE DISBURSING OFFICER, U.S. NAVAL TRAINING STATION, NEWPORT, R.I., DATED FEBRUARY 12, 1942, WITH ACCOMPANYING CORRESPONDENCE, FOR YOUR DECISION AS TO WHETHER OR NOT HE IS AUTHORIZED TO PAY RENTAL ALLOWANCE TO OFFICERS OCCUPYING QUARTERS IN LOW-COST DEFENSE HOUSING PROJECTS IN THE NARRAGANSETT BAY AREA, AS FOLLOWS: TONOMY HILL, THE ANCHORAGE, CODDINGTON PARK, AND PARK-HOLM.

IN CONNECTION WITH THE SUBMISSION, ATTENTION IS INVITED TO THE PRIOR REQUEST OF THIS SAME DISBURSING OFFICER FOR YOUR DECISION ON THE QUESTION AS TO THE RIGHT OF NAVAL OFFICERS, WHILE OCCUPYING GOVERNMENT QUARTERS AT THE TONOMY HILL HOUSING PROJECT, NEWPORT, R.I., TO PAYMENT OF RENTAL ALLOWANCES, WHICH REQUEST, WITH ACCOMPANYING PAPERS, WAS FORWARDED FOR YOUR CONSIDERATION BY THE NAVY DEPARTMENT'S LETTER OF FEBRUARY 28, 1942, FILE OO/L16-7 (420214).

PARTICULAR ATTENTION IS INVITED TO SECTION 2 OF THE ACT APPROVED JANUARY 21, 1942 ( PUBLIC LAW 409--- 77TH CONGRESS), WHICH AMENDED SECTION 2 OF THE ACT APPROVED OCTOBER 14, 1940 (54 STAT. 1125), SO AS TO AUTHORIZE THE RENTAL OF LOW-COST DEFENSE HOUSES TO OFFICERS OF THE ARMY AND MARINE CORPS NOT ABOVE THE GRADE OF CAPTAIN, AND TO OFFICERS OF THE NAVY AND COAST GUARD, NOT ABOVE THE GRADE OF LIEUTENANT, SENIOR GRADE, ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATION, POSTS, OR BASES, OR TO DUTY AT DEFENSE INDUSTRIES.

THE QUESTION AS TO WHETHER OR NOT OFFICERS OCCUPYING LOW-COST DEFENSE HOUSES ERECTED UNDER THE AUTHORITY OF THE ACTS APPROVED JUNE 28, 1940 ( PUBLIC, 671; 54 STAT. 676, WITH PARTICULAR REFERENCE TO SEC. 201), SEPTEMBER 9, 1940 ( PUBLIC, NO. 781; 54 STAT. 883), OCTOBER 14, 1940 ( PUBLIC, NO. 849; 54 STAT. 1125), AND JANUARY 21, 1942 ( PUBLIC LAW 409--- 77TH CONGRESS, WITH PARTICULAR REFERENCE TO SECTION 2), MAY BE PAID RENTAL ALLOWANCES DURING SUCH OCCUPANCY IS OF SUCH URGENCY AS TO REQUEST THAT YOUR REPLY IN THIS MATTER BE EXPEDITED AS MUCH AS POSSIBLE.

YOUR REQUEST FOR DECISION DATED FEBRUARY 28, 1942, REFERRED TO IN THE SECOND PARAGRAPH OF THE ABOVE LETTER HAS BEEN INCORPORATED IN YOUR PRESENT REQUEST AND IS ANSWERED HEREIN.

FROM THE INFORMATION SUBMITTED, IT IS DISCLOSED THAT THE DEFENSE HOUSING PROJECT KNOWN AS " TONOMY HILL" WAS CONSTRUCTED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 14, 1940, 54 STAT. 1125, AND PUBLIC RESOLUTION NO. 106 OF THE SAME DAY, 54 STAT. 1115; THAT THE PROJECTS KNOWN AS " THE ANCHORAGE" AND " CODDINGTON PARK" WERE CONSTRUCTED UNDER THE PROVISIONS OF SECTION 201 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, ACT OF SEPTEMBER 9, 1940, 54 STAT. 883, AND THAT THE PROJECT KNOWN AS " PARK-HOLM" WAS CONSTRUCTED UNDER THE PROVISIONS OF TITLE II OF THE ACT OF JUNE 28, 1940, 54 STAT. 681. YOUR QUESTION IS WHETHER OFFICERS OF THE NAVY MAY BE PAID RENTAL ALLOWANCES IF SUCH OFFICERS OCCUPY HOUSES ERECTED UNDER THE AUTHORITY OF THE STATUTES ABOVE MENTIONED.

WITH REFERENCE TO THE LOW-COST DEFENSE HOUSES CONSTRUCTED UNDER THE PROVISIONS OF SECTION 201 OF THE ACT OF SEPTEMBER 9, 1940, THE QUESTION WHETHER OFFICERS OCCUPYING SUCH HOUSES MAY BE PAID RENTAL ALLOWANCES WAS CONSIDERED IN A DECISION TO YOU DATED NOVEMBER 10, 1941, 21 COMP. GEN. 444. THE STATUTE THERE CONSIDERED AUTHORIZED THE RENTAL OF HOUSES CONSTRUCTED THEREUNDER TO CERTAIN DESIGNATED PERSONS--- NOT COMMISSIONED OFFICERS--- AND IT WAS HELD, QUOTING THE SYLLABUS, THAT:

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 NON-RENTAL BASIS, IN WHICH CASE THE OFFICERS WOULD NOT BE ENTITLED TO RENTAL ALLOWANCE.

TITLE II OF THE ACT OF JUNE 28, 1940, 54 STAT. 681, 682, SUPRA, CONTAINS THE FOLLOWING PROVISIONS:

SEC. 201. IN CONNECTION WITH THE NATIONAL DEFENSE PROGRAM, THE NAVY AND WAR DEPARTMENTS AND THE UNITED STATES HOUSING AUTHORITY ARE HEREBY AUTHORIZED TO COOPERATE IN MAKING NECESSARY HOUSING AVAILABLE FOR PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES, AS HEREINAFTER PROVIDED. "PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES" (AS THAT TERM IS USED IN THIS TITLE) SHALL INCLUDE (I) ENLISTED MEN WITH FAMILIES, WHO ARE IN THE NAVAL AND MILITARY SERVICE (EXCLUDING OFFICERS) AND EMPLOYEES OF THE NAVY AND WAR DEPARTMENTS WHO ARE ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS, OR BASES, AND (II) WORKERS WITH FAMILIES, WHO ARE ENGAGED OR TO BE ENGAGED IN INDUSTRIES CONNECTED WITH AND ESSENTIAL TO THE NATIONAL DEFENSE PROGRAM. NO PROJECT SHALL BE DEVELOPED OR ASSISTED FOR THE PURPOSES OF THIS TITLE EXCEPT WITH THE APPROVAL OF THE PRESIDENT AND UPON A DETERMINATION BY HIM THAT THERE IS AN ACUTE SHORTAGE OF HOUSING IN THE LOCALITY INVOLVED WHICH IMPEDES THE NATIONAL DEFENSE PROGRAM.

SEC. 202. (A) PROJECTS MAY BE INITIATED HEREUNDER BY THE NAVY OR WAR DEPARTMENT TO PROVIDE DWELLINGS ON OR NEAR NAVAL OR MILITARY RESERVATIONS, POSTS OR BASES FOR RENTAL TO THE ENLISTED MEN AND EMPLOYEES OF THE NAVY AND WAR DEPARTMENTS DESCRIBED IN SECTION 201. SUCH PROJECTS SHALL BE DEVELOPED BY THE NAVY OR WAR DEPARTMENT OR BY THE AUTHORITY, WHICHEVER THE PRESIDENT DETERMINES IS BETTER SUITED TO THE FULFILLMENT OF THE PURPOSES OF THIS TITLE WITH RESPECT TO ANY PARTICULAR PROJECT. IF THE DEVELOPMENT OF SUCH PROJECT IS TO BE UNDERTAKEN BY THE NAVY OR WAR DEPARTMENT, THE AUTHORITY IS AUTHORIZED TO AID THE DEVELOPMENT OF THE PROJECT BY FURNISHING TECHNICAL ASSISTANCE AND BY TRANSFERRING TO SUCH DEPARTMENT THE FUNDS NECESSARY FOR THE DEVELOPMENT OF THE PROJECT. ANY PROJECT DEVELOPED FOR THE PURPOSE OF THIS SECTION SHALL BE LEASED TO THE NAVY OR WAR DEPARTMENT BY THE AUTHORITY (WHICH SHALL HAVE TITLE TO SUCH PROJECT UNTIL REPAYMENT OF THE COST THEREOF TO THE AUTHORITY AS PRESCRIBED IN SUCH LEASE) UPON SUCH TERMS AS SHALL BE PRESCRIBED IN THE LEASE, WHICH MAY BE THE SAME TERMS AS ARE AUTHORIZED BY THE UNITED STATES HOUSING ACT OF 1937, AS AMENDED, WITH RESPECT TO LEASES TO PUBLIC HOUSING AGENCIES. ALL THE PROVISIONS OF SAID ACT WHICH APPLY TO THE DEVELOPMENT OF PROJECTS BY THE AUTHORITY SHALL (INSOFAR AS APPLICABLE AND NOT INCONSISTENT HEREWITH) APPLY TO THE DEVELOPMENT OF PROJECTS BY THE NAVY OR WAR DEPARTMENT. NOTWITHSTANDING OTHER PROVISIONS OF THIS OR ANY OTHER LAW, THE DEPARTMENT LEASING A PROJECT SHALL HAVE THE SAME JURISDICTION OVER SUCH PROJECT AS IT HAS OVER THE RESERVATION, POST OR BASE IN CONNECTION WITH WHICH THE PROJECT IS DEVELOPED.

IN DECISION DATED NOVEMBER 15, 1940, B-13039, THE PROVISIONS OF THIS ACT WERE CONSIDERED IN CONNECTION WITH THE QUESTION WHETHER ENLISTED MEN WHO OCCUPY HOUSES ERECTED UNDER THE ACT COULD BE REQUIRED TO PAY RENT AND AT THE SAME TIME RECEIVE A MONETARY ALLOWANCE IN LIEU OF QUARTERS. IN THAT DECISION, IT WAS HELD THAT OCCUPANCY OF SUCH HOUSES ON A RENTAL BASIS BY ENLISTED MEN WAS AUTHORIZED AND THAT DURING THE PERIOD OF SUCH OCCUPANCY, PAYMENT OF QUARTERS ALLOWANCE WAS AUTHORIZED. HOWEVER, LIKE THE ACT OF SEPTEMBER 9, 1940, SUPRA, THE ACT OF JUNE 28, 1940, WAS ENACTED FOR THE PURPOSE OF MAKING NECESSARY HOUSING AVAILABLE FOR "PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES" AND THE PERSONS PLACED IN THAT CATEGORY ARE EXPRESSLY DESIGNATED IN THE STATUTE. THAT DWELLINGS CONSTRUCTED UNDER THE TERMS OF THIS ACT WERE TO BE AVAILABLE FOR OCCUPANCY OF OFFICERS ON A RENTAL BASIS IS NEGATIVED BY THE EXPRESS WORDS OF THE STATUTE. HOWEVER, FROM THE PROVISIONS OF THE STATUTE, IT IS INDICATED THAT AT LEAST SOME OF THE COMPLETED HOUSES MAY BE UNDER YOUR JURISDICTION AND CONTROL, AND THE RULE STATED IN 21 COMP. GEN. 444 AS TO THE ASSIGNMENT OF SUCH HOUSES TO OFFICERS ON A NONRENTAL BASIS IS EQUALLY APPLICABLE TO THIS STATUTE.

THE ACT OF OCTOBER 14, 1940, 54 STAT. 1125-1127, SUPRA, PROVIDES:

SECTION 1. IN ORDER TO PROVIDE HOUSING FOR PERSONS ENGAGED IN NATIONAL- DEFENSE ACTIVITIES, AND THEIR FAMILIES, IN THOSE AREAS OR LOCALITIES IN WHICH THE PRESIDENT SHALL FIND THAT AN ACUTE SHORTAGE OF HOUSING EXISTS OR IMPENDS WHICH WOULD IMPEDE NATIONAL-DEFENSE ACTIVITIES AND THAT SUCH HOUSING WOULD NOT BE PROVIDED BY PRIVATE CAPITAL WHEN NEEDED, THE FEDERAL WORKS ADMINISTRATOR (HEREINAFTER REFERRED TO AS THE " ADMINISTRATOR") IS AUTHORIZED:

SEC. 6. MONEYS DERIVED FROM RENTAL OR OPERATION OF PROPERTY ACQUIRED OR CONSTRUCTED UNDER THE PROVISIONS OF THIS ACT SHALL BE RETURNED TO THE APPROPRIATION AUTHORIZED BY THIS ACT AND SHALL BE AVAILABLE FOR EXPENSES OF OPERATION AND MAINTENANCE INCLUDING ADMINISTRATIVE EXPENSES IN CONNECTION THEREWITH, AND THE UNOBLIGATED BALANCE OF THE MONEYS SO DEPOSITED SHALL BE COVERED INTO THE TREASURY AT THE END OF EACH FISCAL YEAR AS MISCELLANEOUS RECEIPTS.

SEC. 7. * * * PROVIDED FURTHER, THAT THE ADMINISTRATOR SHALL FIX FAIR RENTALS, ON PROJECTS DEVELOPED PURSUANT TO THIS ACT, WHICH SHALL BE WITHIN THE FINANCIAL REACH OF PERSONS ENGAGED IN NATIONAL DEFENSE: * * *

SECTION 2 OF THE ACT PROVIDES THAT:

AS USED IN THIS ACT (A) THE TERM "PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES" SHALL INCLUDE (1) ENLISTED MEN IN THE NAVAL OR MILITARY SERVICES OF THE UNITED STATES; (2) EMPLOYEES OF THE UNITED STATES IN THE NAVY AND WAR DEPARTMENTS ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS, OR BASES; (3) WORKERS ENGAGED OR TO BE ENGAGED IN INDUSTRIES CONNECTED WITH AND ESSENTIAL TO THE NATIONAL DEFENSE; * * *

THIS SECTION WAS AMENDED BY SECTION 2 OF THE ACT OF JANUARY 21, 1942, PUBLIC LAW 409, 56 STAT. 11, BY ADDING A FOURTH GROUP OF "PERSONS ENGAGED IN NATIONAL-DEFENSE ACTIVITIES" AS FOLLOWS:

* * * OFFICERS OF THE ARMY AND MARINE CORPS NOT ABOVE THE GRADE OF CAPTAIN, AND OFFICERS OF THE NAVY AND COAST GUARD, NOT ABOVE THE GRADE OF LIEUTENANT, SENIOR GRADE, ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS, OR BASES, OR TO DUTY AT DEFENSE INDUSTRIES: * * *

THIS PROVISION WAS NOT CONTAINED IN THE BILL WHICH BECAME THE ACT OF JANUARY 21, 1942, WHEN THE MATTER WAS SUBMITTED FOR THE CONSIDERATION OF THE CONGRESS; IT WAS A SENATE AMENDMENT SUGGESTED TO THE SUBCOMMITTEE OF THE COMMITTEE ON EDUCATION AND LABOR, UNITED STATES SENATE, BY AN OFFICER FROM THE WAR DEPARTMENT. IT APPEARS FROM THE HEARINGS BEFORE THIS COMMITTEE ON H.R. 6128, PAGES 26-28, THAT THE PURPOSE OF THE AMENDMENT WAS TO SECURE AUTHORIZATION FOR THE OFFICERS INDICATED THEREIN TO OCCUPY DEFENSE HOUSING UNITS CONSTRUCTED UNDER THE ACT OF OCTOBER 14, 1940. THE COMMITTEE WAS TOLD BY THE REPRESENTATIVE FROM THE WAR DEPARTMENT THAT THE OFFICERS TO WHOM THE AMENDMENT WOULD APPLY WERE "THE YOUNG SECOND LIEUTENANTS AND YOUNG FIRST LIEUTENANTS AND YOUNG CAPTAINS WHO ARE MAKING APPROXIMATELY $1,800 TO $2,400 A YEAR, INCLUDING THEIR ALLOWANCES.' AS A MATTER OF FACT THE PAY AND ALLOWANCES OF A SECOND LIEUTENANT OR ENSIGN WITH DEPENDENTS IS BASE PAY $1,500, SUBSISTENCE ALLOWANCE $219, AND RENTAL ALLOWANCE $480, A TOTAL OF $2,199; THAT OF A FIRST LIEUTENANT OR LIEUTENANT, JUNIOR GRADE, WITH DEPENDENTS, IS BASE PAY OF $2,000, SUBSISTENCE ALLOWANCE $438, RENTAL ALLOWANCE $720, A TOTAL OF $3,158; AND OF A CAPTAIN IN THE ARMY OR MARINE CORPS OR A LIEUTENANT IN THE NAVY OR COAST GUARD IS BASE PAY $2,400, SUBSISTENCE ALLOWANCE $438, AND RENTAL ALLOWANCE $960, A TOTAL OF $3,798. IF, IN ANY CASE, THE OFFICER HAS HAD SERVICE AUTHORIZED TO BE COUNTED FOR LONGEVITY OF 3 YEARS OR MORE THE TOTAL WOULD BE INCREASED BY 5 PERCENT OF THE BASE PAY GIVEN FOR EACH 3 YEARS OF SUCH SERVICE, NOT EXCEEDING 30 YEARS.

THE AMENDMENT OF JANUARY 21, 1942, MAY NOT BE CONSTRUED AS AN AMENDMENT TO EITHER THE ACT OF JUNE 28, 1940, OR THE ACT OF SEPTEMBER 9, 1940, SO AS TO AUTHORIZE OFFICERS TO OCCUPY ON A RENTAL BASIS LOW COST DEFENSE UNITS CONSTRUCTED UNDER THOSE ACTS. THERE IS NO INDICATION THAT THE CHANGE WAS INTENDED TO APPLY TO ANY ACT EXCEPT THE ACT OF OCTOBER 14, 1940, AND WHEN THE AMENDMENT IS READ IN CONNECTION WITH THE SECTION AMENDED, IT IS CLEAR THAT IT IS IN CONNECTION WITH THE ACT OF OCTOBER 14, 1940, ONLY THAT "PERSONS ENGAGED IN NATIONAL-DEFENSE ACTIVITIES" SHALL BE DEEMED TO INCLUDE THE OFFICERS MENTIONED IN THE AMENDMENT. THE LANGUAGE USED BY THE CONGRESS BEING CLEAR AND UNAMBIGUOUS, THERE IS NO ROOM FOR CONSTRUCTION.

HOWEVER, AS AMENDED, THE ACT OF OCTOBER 14, 1940, PLACES OFFICERS OF THE ARMY AND MARINE CORPS NOT ABOVE THE GRADE OF CAPTAIN AND OFFICERS OF THE NAVY AND COAST GUARD NOT ABOVE THE GRADE OF LIEUTENANT, SENIOR GRADE, ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS, AIR BASES, OR TO DUTY AT DEFENSE INDUSTRIES, WITHIN THE DEFINITION OF THE TERM "PERSONS ENGAGED IN NATIONAL-DEFENSE ACTIVITIES.' THE ACT CONTEMPLATES THAT PERSONS WITHIN THIS DEFINED CLASS MAY OCCUPY HOUSES BUILT UNDER THE AUTHORITY OF THE ACT ON A RENTAL BASIS AND THEREFORE, OFFICERS WITHIN THE GRADES INDICATED IN THE AMENDMENT MAY OCCUPY SUCH HOUSES ON A RENTAL BASIS, THE RENTAL TO BE CHARGED BEING THAT FIXED FOR SUCH HOUSES IN ACCORDANCE WITH THE TERMS OF THE STATUTE. UNDER SUCH CONDITIONS OTHERWISE PROPER PAYMENTS OF RENTAL ALLOWANCE MAY BE MADE TO THE OFFICERS OCCUPYING SUCH HOUSES.