B-25239, MAY 28, 1942, 21 COMP. GEN. 1065

B-25239, MAY 28, 1942, 21 COMP. GEN. 1065

QUARTERS - RENTAL ALLOWANCE - OCCUPATION OF QUARTERS FURNISHED BY FOREIGN GOVERNMENT THE FURNISHING OF QUARTERS BY THE CANADIAN GOVERNMENT WITHOUT COST, EXCEPT FOR CHARGE FOR THE USE OF THE FURNITURE, TO A UNITED STATES NAVAL OFFICER IN HIS OFFICIAL CAPACITY IS IN FACT A FURNISHING OF QUARTERS ON BEHALF OF THE UNITED STATES, AND, THEREFORE, THE OFFICER IS NOT ENTITLED TO THE RENTAL ALLOWANCE AUTHORIZED BY SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 28, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED APRIL 9, 1942, REQUESTING DECISION WHETHER CAPT. H. D. MCHENRY, UNITED STATES NAVY, UNITED STATES NAVAL OBSERVER, HALIFAX, NOVA SCOTIA, IS ENTITLED TO PAYMENTS OF RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) WHILE OCCUPYING QUARTERS BELONGING TO THE CANADIAN GOVERNMENT. THERE WAS ATTACHED TO YOUR REQUEST A LETTER SIGNED BY LT. (JR. GR.) F. F. FALLIS, BUREAU OF SUPPLIES AND ACCOUNTS, WASHINGTON, D.C., AS FOLLOWS:

1. ON JANUARY 31, 1942, CAPTAIN H. D. MCHENRY, U.S.N., U.S. NAVAL OBSERVER, HALIFAX, N.S., AND LAWFUL DEPENDENT WIFE, VACATED PRIVATE QUARTERS AT THE LORD NELSON HOTEL, HALIFAX, N.S., AND COMMENCED OCCUPANCY OF QUARTERS NO. 6, H.M.C., DOCKYARD, HALIFAX, N.S.

2. FOR INFORMATION, THE FOLLOWING EXCERPTS ARE QUOTED FROM RECENT CORRESPONDENCE OF CAPTAIN MCHENRY:

"ON JANUARY 31, 1942, WE MOVED INTO THESE QUARTERS IN H.M.C. DOCKYARD. THE QUARTERS ARE OWNED BY THE CANADIAN NAVAL AUTHORITIES. I DO NOT PAY RENT ON THE HOUSE, BUT DO PAY RENT ON THE GOVERNMENT FURNITURE IN THE HOUSE. WE, OF COURSE, HAVE A FEW SMALL THINGS OF OUR OWN. THE FURNITURE RENTAL IS 10 PERCENT PER YEAR ON THE TOTAL AMOUNT OF FURNITURE IN THE HOUSE THAT IS OWNED BY THE CANADIAN NAVAL AUTHORITIES. IT IS MY OPINION THAT MY RENTAL ALLOWANCE IS AVAILABLE FOR THIS PURPOSE. SO FAR, ALL THE FURNITURE HAS NOT BEEN BOUGHT; THEREFORE I DO NOT KNOW HOW MUCH THE RENTAL WILL BE. THE OCCUPANCY, UPKEEP, MAINTENANCE, ETC., OF THESE QUARTERS AND FURNITURE IS ON A PURELY GRATUITOUS BASIS INSOFAR AS THE UNITED STATES GOVERNMENT IS CONCERNED. THESE QUARTERS WERE SUPPOSED TO BE OCCUPIED BY THE ENGINEERING OFFICER OF THE DOCKYARD, BUT HE DID NOT DESIRE TO LIVE IN THE DOCKYARD; AND THE COMMANDING OFFICER, ATLANTIC COAST, KNOWING THAT I COULD NOT LOCATE A SUITABLE HOUSE IN THE CITY, OBTAINED PERMISSION FROM THE CHIEF OF NAVAL STAFF AT OTTAWA FOR ME TO OCCUPY THESE QUARTERS.'

3. IT WILL BE NOTED IN THIS CONNECTION THAT THE RENTAL VOUCHER SUBMITTED (ENCLOSURE A), HAS BEEN CERTIFIED BY CAPTAIN MCHENRY, AS COMMANDING OFFICER, THAT NO QUARTERS HAVE BEEN ASSIGNED AT HIS PERMANENT DUTY STATION, OFFICE OF U.S. NAVAL OBSERVER, HALIFAX, N.S.

4. IN CONSIDERATION OF THIS OCCUPANCY OF FOREIGN GOVERNMENT QUARTERS BY SUBJECT U.S. NAVAL OFFICER AND DEPENDENT WIFE, YOUR DECISION IS REQUESTED AS TO THE PROPRIETY OF FURTHER PAYMENT OF THE RENTAL ALLOWANCE CLAIMED.

THE QUARTERS OCCUPIED BY CAPTAIN MCHENRY ARE OWNED BY THE CANADIAN GOVERNMENT AND SUCH QUARTERS HAVE BEEN MADE AVAILABLE BY THAT GOVERNMENT FOR THE OFFICER'S USE. IT IS STATED THAT CAPTAIN MCHENRY PAYS NO RENTAL FOR THE QUARTERS, BUT DOES PAY A CHARGE FOR FURNITURE. IT IS, OF COURSE, APPARENT THAT SUCH QUARTERS WERE MADE AVAILABLE TO HIM BECAUSE OF HIS OFFICIAL STATUS AS AN OFFICER OF THE UNITED STATES NAVY, AND BECAUSE OF THE JOINT EFFORTS OF THE UNITED STATES AND CANADA IN THE WAR AGAINST A COMMON ENEMY.

THE LAW AUTHORIZING PAYMENT OF RENTAL ALLOWANCE (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, 37 U.S.C. 10) WAS DESIGNED TO PROVIDE REIMBURSEMENT TO AN OFFICER FOR EXPENSES PAID BY HIM FOR PRIVATE QUARTERS WHEN THE UNITED STATES IS UNABLE TO FURNISH QUARTERS IN KIND. SEE CARTER V. UNITED STATES, 79 CT.1CLS. 166; JONES V. UNITED STATES, 60 CT.1CLS. 552; BYRNE V. UNITED STATES, 87 CT.1CLS. 241. IN THE BYRNE CASE, DECIDED IN 1938, THE COURT STATED:

* * * 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.

IN THIS CASE THE OFFICER IS ASSIGNED TO HIS PRESENT STATION BECAUSE OF THE WAR, AND THE ACTIVITIES OF UNITED STATES NAVAL VESSELS AND UNITED STATES NAVAL OFFICERS AT THAT PLACE ARE OF EQUAL BENEFIT TO THE GOVERNMENT OF CANADA. BECAUSE OF THIS FACT A COURTESY HAS BEEN EXTENDED TO THE OFFICER PERSONALLY, IN THE USE, WITHOUT CHARGE, OF QUARTERS BELONGING TO THE CANADIAN GOVERNMENT, AS HIS PRESENCE THERE ON DUTY AS AN OFFICER OF THE UNITED STATES NAVY IS OF BENEFIT TO THAT GOVERNMENT. WERE IT NOT SO IT IS NOT PROBABLE CANADIAN GOVERNMENT QUARTERS WOULD BE MADE AVAILABLE FOR HIM. SUCH BEING THE CASE, IT IS HIS OFFICIAL POSITION AS AN OFFICER OF THE UNITED STATES NAVY ON DUTY THERE THAT HAS PROMPTED THE COURTESY. THE QUARTERS ARE, THEREFORE, IN FACT, FURNISHED ON BEHALF OF THE UNITED STATES. BY REASON OF HIS STATUS AND DUTY HE IS NOT PUT TO EXPENSE TO RENT QUARTERS. ACCORDINGLY, YOU ARE ADVISED THAT CAPTAIN MCHENRY IS NOT ENTITLED TO RENTAL ALLOWANCE DURING ANY PERIOD HE OCCUPIED QUARTERS UNDER THE CIRCUMSTANCES DISCLOSED.