B-29424, FEBRUARY 2, 1943, 22 COMP. GEN. 734

B-29424: Feb 2, 1943

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QUARTERS ASSIGNED TO A NAVAL OFFICER WHICH WERE CONSIDERED INADEQUATE FOR HIMSELF AND HIS DEPENDENTS BECOME PRESUMPTIVELY ADEQUATE WHEN VOLUNTARILY OCCUPIED BY THE OFFICER AND HIS DEPENDENTS. NO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS IS PAYABLE FOR PERIODS DURING WHICH THE QUARTERS ARE SO OCCUPIED. IS ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FROM NOVEMBER 1. IT IS DISCLOSED THAT DURING THE PERIOD INVOLVED THE OFFICER'S PERMANENT STATION WAS UNITED STATES FLEET TRAINING BASE. THE EXACT DATES DURING WHICH THE OFFICER'S WIFE RESIDED WITH HIM IN THE QUARTERS WERE THE SUBJECT OF CONTROVERSY BUT THE OFFICER NOW HAS AGREED TO ACCEPT THE STATEMENTS IN THIS CONNECTION MADE BY LIEUTENANT R.

B-29424, FEBRUARY 2, 1943, 22 COMP. GEN. 734

RENTAL ALLOWANCE - PRESUMPTION OF ADEQUACY OF QUARTERS WHEN OCCUPIED BY OFFICER AND HIS DEPENDENTS INSOFAR AS CONCERNS THE RENTAL ALLOWANCE AUTHORIZED TO BE PAID UNDER THE CIRCUMSTANCES AND CONDITIONS OF SECTIONS 6 OF THE ACTS OF JUNE 10, 1922, AS AMENDED, AND JUNE 16, 1942, AND THE APPLICABLE REGULATIONS, QUARTERS ASSIGNED TO A NAVAL OFFICER WHICH WERE CONSIDERED INADEQUATE FOR HIMSELF AND HIS DEPENDENTS BECOME PRESUMPTIVELY ADEQUATE WHEN VOLUNTARILY OCCUPIED BY THE OFFICER AND HIS DEPENDENTS, AND, THEREFORE, NO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS IS PAYABLE FOR PERIODS DURING WHICH THE QUARTERS ARE SO OCCUPIED, BUT THE PRESUMPTION OF ADEQUACY DOES NOT EXTEND TO PERIODS DURING WHICH THE OFFICER'S DEPENDENTS DO NOT ACTUALLY OCCUPY THE QUARTERS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 2, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 7, 1942, REQUESTING DECISION WHETHER LIEUTENANT COMMANDER MARSHALL A. ANDERSON, U.S. NAVY, RETIRED, IS ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FROM NOVEMBER 1, 1941, TO AUGUST 7, 1942, FOR PERIODS DURING WHICH HIS DEPENDENT DID NOT OCCUPY PUBLIC QUARTERS AT HIS PERMANENT STATION.

IT IS DISCLOSED THAT DURING THE PERIOD INVOLVED THE OFFICER'S PERMANENT STATION WAS UNITED STATES FLEET TRAINING BASE, SAN CLEMENTE ISLAND, CALIFORNIA, AND THAT, AS COMMANDING OFFICER OF THE STATION, HE OCCUPIED PUBLIC QUARTERS CONSISTING OF A LIVING ROOM, TWO BEDROOMS AND A BATH. THE QUARTERS HAD NO KITCHEN FACILITIES. FOR CERTAIN PERIODS BETWEEN NOVEMBER 1, 1941, AND AUGUST 7, 1942, BOTH THE OFFICER AND HIS WIFE OCCUPIED THE QUARTERS. THE EXACT DATES DURING WHICH THE OFFICER'S WIFE RESIDED WITH HIM IN THE QUARTERS WERE THE SUBJECT OF CONTROVERSY BUT THE OFFICER NOW HAS AGREED TO ACCEPT THE STATEMENTS IN THIS CONNECTION MADE BY LIEUTENANT R. L. BUSWELL ( SC), USNR, THE DISBURSING OFFICER AT THE OFFICER'S STATION AT THAT TIME, WHO STATES THAT THE OFFICER'S WIFE OCCUPIED THE QUARTERS FROM NOVEMBER 1 TO 25, 1941, DECEMBER 9, 1941, TO JANUARY 20, 1942, FEBRUARY 10 TO APRIL 14, 1942, AND APRIL 28 TO JUNE 4, 1942, ALL DATES INCLUSIVE. ON THIS BASIS, IT APPEARS THAT THE OFFICER'S WIFE LIVED AT HIS STATION FOR PERIODS TOTALING MORE THAN FIVE MONTHS OUT OF THE APPROXIMATELY SEVEN MONTHS INVOLVED AND, HENCE, THAT SHE MAY NOT BE CONSIDERED AS MERELY MAKING BRIEF VISITS THERE. IT IS STATED THAT THE OFFICER WAS CREDITED WITH RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS FROM NOVEMBER 1, 1941, TO MARCH 31, 1942.

IT IS UNDERSTOOD THAT YOU ARE SATISFIED THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE FOR PERIODS HIS WIFE WAS ACTUALLY PRESENT AT HIS PERMANENT STATION AND OCCUPIED THE PUBLIC QUARTERS THERE, AND THAT YOUR ONLY DOUBT IN THE MATTER IS WITH REFERENCE TO THOSE PERIODS DURING WHICH THE QUARTERS WERE NOT IN FACT OCCUPIED BY HER.

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, PROVIDED:

EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF THIS SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS. * * *

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION IN PEACE AND IN WAR SHALL BE MADE BY THE PRESIDENT AND SHALL, WHEREVER PRACTICAL IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED, INCLUDING ADJUNCT FORCES THEREOF.

SECTION 6 OF THE ACT OF JUNE 16, 1942, 56 STAT. 361, PUBLIC LAW 607, EFFECTIVE JUNE 1, 1942, IS, IN PART, AS FOLLOWS:

SEC. 6. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE-DUTY PAY SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS.

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY, NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY: PROVIDED, THAT AN OFFICER ALTHOUGH FURNISHED WITH QUARTERS SHALL BE ENTITLED TO RENTAL ALLOWANCE AS AUTHORIZED IN THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS.

PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT BY THE QUOTED PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, REGULATIONS WERE PROMULGATED BY EXECUTIVE ORDER NO. 4063, AUGUST 13, 1924, IN PART, AS FOLLOWS:

(B) EVERY OFFICER PERMANENTLY STATIONED AT A POST, YARD, OR STATION WHERE PUBLIC QUARTERS ARE AVAILABLE, WILL BE ASSIGNED THEREAT AS QUARTERS THE NUMBER OF ROOMS PRESCRIBED BY LAW FOR AN OFFICER OF HIS RANK, OR A LESS NUMBER OF ROOMS DETERMINED BY COMPETENT SUPERIOR AUTHORITY, IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT CONCERNED, TO BE ADEQUATE IN THE PARTICULAR CASE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY; WHICH REGULATIONS SHALL PROVIDE AMONG OTHER THINGS THAT QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS SHALL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE AND SHALL BE ASSIGNED ACCORDINGLY.

U.S. NAVY REGULATIONS, C.N.R. 16, OCTOBER 9, 1934, ARTICLE 1819 (7), PROVIDES:

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 QUARTERS OCCUPIED BY THE OFFICER HERE INVOLVED WERE APPARENTLY CONSIDERED INADEQUATE FOR HIMSELF AND DEPENDENTS AND WERE NOT OFFICIALLY SO ASSIGNED. HOWEVER, IT IS CLEAR THAT, INSOFAR AS RENTAL ALLOWANCE IS CONCERNED, PUBLIC QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS ARE CONCLUSIVELY PRESUMED TO BE ADEQUATE DURING THE PERIOD OF OCCUPANCY. IN OTHER WORDS, IF PUBLIC QUARTERS OTHERWISE CONSIDERED INADEQUATE ARE VOLUNTARILY OCCUPIED BY AN OFFICER AND HIS DEPENDENTS, HIS SITUATION WITH RESPECT TO RENTAL ALLOWANCE IS THE SAME, DURING THE PERIOD OF SUCH OCCUPANCY, AS IF HE HAD BEEN OFFICIALLY ASSIGNED ADEQUATE QUARTERS. THIS PRESUMPTION OF ADEQUACY, HOWEVER, DOES NOT EXTEND BEYOND THE PERIODS OF OCCUPANCY. CONSEQUENTLY, THE CIRCUMSTANCE THAT QUARTERS OCCUPIED BY AN OFFICER AND HIS DEPENDENTS ARE CONCLUSIVELY PRESUMED TO BE ADEQUATE DOES NOT MAKE THE QUARTERS ACTUALLY ADEQUATE, WITHIN THE MEANING OF THE STATUTORY PROVISIONS, FOR PERIODS DURING WHICH THE OFFICER'S DEPENDENTS DO NOT ACTUALLY OCCUPY THE QUARTERS.

THE RECORD IN THIS CASE INDICATES THAT DURING THE PERIODS LIEUTENANT COMMANDER ANDERSON'S WIFE DID NOT OCCUPY PUBLIC QUARTERS HE WAS NOT ASSIGNED ADEQUATE PUBLIC QUARTERS AT HIS PERMANENT STATION WITHIN THE MEANING OF THE LAW AND REGULATIONS, AND IF OTHERWISE CORRECT, THE OFFICER'S ACCOUNT MAY BE ADJUSTED ON THE BASIS THAT HE WAS ENTITLED TO RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS DURING SUCH PERIODS, PROVIDED THAT FOR THE PERIOD JUNE 4 TO AUGUST 31, 1942, WHEN HIS WIFE DID NOT OCCUPY QUARTERS AT THE STATION, IT BE CERTIFIED BY COMPETENT SUPERIOR AUTHORITY, PURSUANT TO SECTION 6 OF THE ACT OF JUNE 16, 1942, SUPRA, EFFECTIVE JUNE 1, 1942, THAT THE QUARTERS OCCUPIED BY THE OFFICER WERE NOT ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.