B-25114, MAY 7, 1942, 21 COMP. GEN. 995

B-25114: May 7, 1942

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RENTAL ALLOWANCE - VOLUNTARY OCCUPATION OF UNFINISHED AND INCOMPLETELY FURNISHED GOVERNMENT QUARTERS NAVY OFFICERS WITHOUT DEPENDENTS WHO WERE NOT RESTRICTED BY ORDERS FROM LIVING OFF OF THE PREMISES OF THE NAVAL AMMUNITION DEPOT WHERE THEY WERE STATIONED BUT WHO. ARE NOT ENTITLED UNDER THE ACT OF JUNE 10. THE SAID ACT HAVING BEEN DESIGNED TO AUTHORIZE REIMBURSEMENT TO OFFICERS FOR EXPENSES PAID FOR PRIVATE QUARTERS WHEN THE GOVERNMENT IS UNABLE TO FURNISH PUBLIC QUARTERS. ONE OF THE LETTERS ATTACHED TO YOUR REQUEST IS DATED MARCH 12. IS AS FOLLOWS: 1. AN ADVANCE DECISION IS REQUESTED AS TO THE RIGHT OF ENSIGN GORDON F. ENSIGN STROBEL AND SEVEN OTHER ENSIGNS HAVE OCCUPIED TWO HOUSES WHICH WERE ORIGINALLY INTENDED FOR MARRIED OFFICERS.

B-25114, MAY 7, 1942, 21 COMP. GEN. 995

RENTAL ALLOWANCE - VOLUNTARY OCCUPATION OF UNFINISHED AND INCOMPLETELY FURNISHED GOVERNMENT QUARTERS NAVY OFFICERS WITHOUT DEPENDENTS WHO WERE NOT RESTRICTED BY ORDERS FROM LIVING OFF OF THE PREMISES OF THE NAVAL AMMUNITION DEPOT WHERE THEY WERE STATIONED BUT WHO, WITH PERMISSION OF THE OFFICER IN CHARGE, VOLUNTARILY OCCUPIED UNASSIGNED QUARTERS IN AN UNFINISHED AND INCOMPLETELY FURNISHED GOVERNMENT-OWNED BUILDING, ARE NOT ENTITLED UNDER THE ACT OF JUNE 10, 1922, AS AMENDED, TO RENTAL ALLOWANCE FOR ANY TIME DURING THE PERIOD OF SUCH OCCUPANCY, THE SAID ACT HAVING BEEN DESIGNED TO AUTHORIZE REIMBURSEMENT TO OFFICERS FOR EXPENSES PAID FOR PRIVATE QUARTERS WHEN THE GOVERNMENT IS UNABLE TO FURNISH PUBLIC QUARTERS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 7, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED APRIL 7, 1942, REQUESTING DECISION WHETHER ENSIGN GORDON F. STROBEL, UNITED STATES NAVY, AND CERTAIN OTHER OFFICERS STATIONED AT THE UNITED STATES NAVAL AMMUNITION DEPOT, BURNS CITY, INDIANA, OCCUPYING A GOVERNMENT BUILDING UNDER THE CIRCUMSTANCES DISCLOSED IN THE CORRESPONDENCE ATTACHED THERETO MAY BE CREDITED WITH RENTAL ALLOWANCE. ONE OF THE LETTERS ATTACHED TO YOUR REQUEST IS DATED MARCH 12, 1942, AND SIGNED BY LIEUTENANT COMMANDER L. R. CORBIN ( SC), UNITED STATES NAVY, THE DISBURSING OFFICER AT THE STATION, AND IS AS FOLLOWS:

1. AS SUGGESTED BY THE SECRETARY OF THE NAVY IN REFERENCE (C), AN ADVANCE DECISION IS REQUESTED AS TO THE RIGHT OF ENSIGN GORDON F. STROBEL TO BE CREDITED WITH RENTAL ALLOWANCE.

2. ENSIGN STROBEL AND SEVEN OTHER ENSIGNS HAVE OCCUPIED TWO HOUSES WHICH WERE ORIGINALLY INTENDED FOR MARRIED OFFICERS. HE HAS NOT BEEN FORMALLY ASSIGNED QUARTERS, NOR HAS HE BEEN PROHIBITED BY ORDERS FROM LIVING OFF THE DEPOT. THE QUARTERS ARE NOT ENTIRELY COMPLETED NOR COMPLETELY FURNISHED. THEY ARE NOT INTENDED FOR BACHELOR QUARTERS.

3. ALL MARRIED OFFICERS ATTACHED TO THIS DEPOT ARE OCCUPYING, WITH THEIR DEPENDENTS, QUARTERS ON THE DEPOT. NONE OF THESE QUARTERS ARE ENTIRELY COMPLETED NOR COMPLETELY FURNISHED. THE QUARTERS HAVE NOT BEEN FORMALLY ASSIGNED.

4. IN CASE ENSIGN STROBEL AND OTHER BACHELOR OFFICERS ARE ENTITLED TO RENTAL ALLOWANCE, DECISION IS ALSO REQUESTED AS TO THE RIGHT OF THE MARRIED OFFICERS TO THE RENTAL ALLOWANCE FOR THEIR DEPENDENTS.

5. PREVIOUS DECISIONS OF THE COMPTROLLER GENERAL WHICH MAY COVER SIMILAR CASES ARE NOT AVAILABLE. NO CREDITS OR PAYMENTS HAVE BEEN MADE TO ANY OFFICER ATTACHED TO THIS DEPOT ON ACCOUNT OF RENTAL ALLOWANCE FOR ANY PERIOD OF TIME DURING WHICH THEY OR THEIR DEPENDENTS OCCUPIED QUARTERS UNDER THE CONDITIONS STATED ABOVE.

SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDING FOR PAYMENT OF RENTAL ALLOWANCE WAS DESIGNED TO AUTHORIZE REIMBURSEMENT TO THE OFFICER FOR EXPENSES PAID BY HIM FOR PRIVATE QUARTERS WHEN THE GOVERNMENT IS UNABLE TO FURNISH PUBLIC QUARTERS. SUCH ALLOWANCE IS NOT A PART OF THE OFFICER'S "PAY" FOR SERVICES RENDERED BUT IS IN LIEU OF PUBLIC QUARTERS IN KIND. JONES V. UNITED STATES, 60 CT.CLS. 552.

IN THE CASE OF BYRNE V. UNITED STATES, 87 CT.CLS. 241 (1938), THE COURT SAID:

* * * COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENT FAILS TO PROVIDE PUBLIC QUARTERS. ON THIS THEORY ONLY CAN RECOVERY BE HAD AND, AS IT APPEARS IN THIS CASE THAT THE OFFICER HAS NOT BEEN PUT TO ANY EXPENSE, NO RIGHT TO REIMBURSEMENT HAS BEEN ESTABLISHED.

THE ABOVE-QUOTED LETTER, AS WELL AS THE OTHER CORRESPONDENCE SUBMITTED, INDICATES THAT ENSIGN STROBEL IS AN OFFICER WITHOUT DEPENDENTS AND THAT HE AND SEVEN OTHER OFFICERS HAVING THE SAME STATUS OCCUPIED VOLUNTARILY, PRESUMABLY WITH PERMISSION, AT LEAST, OF THE OFFICER IN CHARGE, A GOVERNMENT-OWNED BUILDING INTENDED FOR MARRIED OFFICERS WITH DEPENDENTS. IT IS STATED THAT THE OFFICERS WERE NOT RESTRICTED BY ORDERS FROM LIVING OFF THE STATION AND THAT THE QUARTERS OCCUPIED BY THEM WERE NOT ENTIRELY COMPLETED NOR COMPLETELY FURNISHED. IT IS INDICATED ALSO THAT THE QUARTERS WERE NOT FORMALLY ASSIGNED TO THE OFFICERS AND APPARENTLY IT IS BECAUSE OF THESE FACTS THAT THE QUESTION OF WHETHER RENTAL ALLOWANCE IS PAYABLE ARISES. HOWEVER, THE FACT THAT ANY OR ALL OF THESE CONDITIONS OBTAINED IS IMMATERIAL INSOFAR AS RENTAL ALLOWANCE IS CONCERNED. THE SITUATION DESCRIBED IS ALMOST IDENTICAL WITH THAT CONSIDERED IN DECISION TO YOU DATED FEBRUARY 14, 1942, B-23130. IN THAT CASE BACHELOR OFFICERS WITHOUT DEPENDENTS ON DUTY AT MIDWAY ISLAND VOLUNTARILY OCCUPIED A GOVERNMENT BUILDING REPRESENTED TO BE UNDER CONSTRUCTION AND INADEQUATELY FURNISHED AND IN CONNECTION WITH THE QUESTION OF RENTAL ALLOWANCE IT WAS STATED:

* * * THE STATUTORY PROVISION FOR RENTAL ALLOWANCE WAS DESIGNED TO REIMBURSE OFFICERS WHO, BY REASON OF THE CONDITIONS UNDER WHICH THEY SERVE, ARE OBLIGED TO PROCURE PRIVATE QUARTERS FOR THEMSELVES IN LIEU OF THE PUBLIC QUARTERS WHICH WOULD BE FURNISHED THEM IF THEY WERE ON DUTY AT A PLACE WHERE PUBLIC QUARTERS COULD BE ASSIGNED.

THE BACHELOR OFFICERS AT MIDWAY ISLAND, HAVING OCCUPIED PUBLIC QUARTERS VOLUNTARILY, HAVE NOT BEEN REQUIRED TO INCUR ANY EXPENSE FOR QUARTERS, AND ARE NOT ENTITLED TO RENTAL ALLOWANCE FOR ANY PART OF THE PERIOD IN QUESTION. SEE ALSO DECISION TO YOU DATED APRIL 18, 1942, A 95642, A- 44001, IN WHICH, AFTER MAKING REFERENCE TO MANY OF THE CASES PERTINENT TO THE QUESTION, IT WAS HELD THAT OFFICERS WITHOUT DEPENDENTS WHO ACTUALLY OCCUPIED QUARTERS REFERRED TO AS "BUNK SPACE" AT THE MARINE BARRACKS, QUANTICO, VIRGINIA, WERE NOT ENTITLED TO RENTAL ALLOWANCE.

ACCORDINGLY, YOU ARE ADVISED THAT OFFICERS WITHOUT DEPENDENTS WHO OCCUPIED A GOVERNMENT BUILDING AT THE UNITED STATES NAVAL AMMUNITION DEPOT, BURNS CITY, INDIANA, UNDER THE CONDITIONS DESCRIBED ABOVE, ARE NOT ENTITLED TO RENTAL ALLOWANCE FOR ANY TIME DURING THE PERIOD OF SUCH OCCUPANCY.