B-35874, AUGUST 17, 1943, 23 COMP. GEN. 109

B-35874, AUGUST 17, 1943, 23 COMP. GEN. 109

RENTAL ALLOWANCE - EFFECT OF WAIVER BY MEMBER OF WOMEN'S ARMY AUXILIARY CORPS UPON ALLOWANCE OF OFFICER-HUSBAND A WAIVER BY A MEMBER OF THE WOMEN'S ARMY AUXILIARY CORPS OF HER RIGHT TO THE RENTAL ALLOWANCE IN LIEU OF QUARTERS AUTHORIZED UNDER THE ACT OF OCTOBER 26, 1942, DOES NOT OPERATE TO ENTITLE HER HUSBAND--- WHO IS A COMMISSIONED OFFICER IN THE ARMY--- TO INCREASED RENTAL ALLOWANCE, ON HER ACCOUNT, AS AN OFFICER WITH DEPENDENTS.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. R. A. KOCH, U.S. ARMY, AUGUST 17, 1943:

THERE WAS RECEIVED JULY 22, 1943, BY INDORSEMENT OF JUNE 30, YOUR LETTER OF JUNE 5, 1943, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A SUPPLEMENTAL VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUTENANT JACK R. CARPENTER, AUS, COVERING RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (A WIFE WHO IS A THIRD OFFICER IN THE WOMEN'S ARMY AUXILIARY CORPS) FOR THE PERIOD MAY 1, TO 31, 1943, UNDER THE APPLICABLE STATUTES, AND THE FACTS AND CIRCUMSTANCES AS SHOWN HEREINAFTER.

SECTION 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, PRESCRIBES THE RENTAL ALLOWANCE TO BE PAID TO OFFICERS, 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.

TO AN OFFICER HAVING A DEPENDENT, RECEIVING THE BASE PAY OF THE FIRST PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $60 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE SECOND PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $75 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE THIRD PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $90 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FOURTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $105 PER MONTH, AND TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FIFTH OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $120 PER MONTH.

TO AN OFFICER HAVING NO DEPENDENTS, RECEIVING THE BASE PAY OF THE FIRST PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $45 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE SECOND PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $60 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE THIRD PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $75 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FOURTH PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $90 PER MONTH, AND TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FIFTH OR SIXTH PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $105 PER MONTH.

THE ACT OF MARCH 6, 1943, 57 STAT. 13, PUBLIC LAW 5, AMENDED THE PARAGRAPH OF THE ABOVE QUOTED SECTION TO READ AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD DUTY UNLESS HIS COMMANDING OFFICER CERTIFIES THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE, OR WHILE ON SEA DUTY, EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, 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 OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, AND SUCH CERTIFICATIONS SHALL BE CONCLUSIVE: 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.

THE TERM "DEPENDENT" IS DEFINED IN SECTION 4 OF THE ACT, 56 STAT. 361, INSOFAR AS IS HERE PERTINENT, TO "INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE.' HOWEVER, IN DECISION OF APRIL 14, 1943, B 32874, 22 COMP. GEN. 955, TO THE SECRETARY OF THE NAVY, IN ANSWER TO A QUERY AS TO WHETHER AN OFFICER, OR AN ENLISTED MAN OF THE FIRST THREE PAY GRADES, IS ENTITLED TO INCREASED OR ADDITIONAL ALLOWANCES FOR DEPENDENTS ON ACCOUNT OF A WIFE WHO IS SERVING IN THE MILITARY OR NAVAL SERVICES AND IS FURNISHED QUARTERS AT GOVERNMENT EXPENSE, IT WAS HELD (QUOTING PARAGRAPH 2 OF THE SYLLABUS):

AN OFFICER, OR ENLISTED MAN OF THE FIRST THREE PAY GRADES, IS NOT ENTITLED TO RENTAL OR QUARTERS ALLOWANCE AS WITH DEPENDENTS WHERE THE ONLY DEPENDENT IS HIS WIFE WHO IS SERVING IN OR WITH THE MILITARY OR NAVAL SERVICES AND IS FURNISHED PUBLIC QUARTERS AT GOVERNMENT EXPENSE OR IS PAID RENTAL OR QUARTERS ALLOWANCE IN LIEU THEREOF.

SECTION 1 OF THE ACT OF OCTOBER 26, 1942, 56 STAT. 988, AMENDING AMONG OTHER SECTION NOT HERE MATERIAL, SECTION 4 OF THE ACT OF MAY 14, 1942, ESTABLISHING A WOMEN'S ARMY AUXILIARY CORPS, PRESCRIBES THE PAY AND ALLOWANCES OF OFFICERS OF THE CORPS, IN PERTINENT PART, AS FOLLOWS:

SEC. 3. * * * FIRST OFFICERS, SECOND OFFICERS, AND THIRD OFFICERS SHALL RECEIVE PAY AND ALLOWANCES AT THE RATE NOW OR HEREAFTER PROVIDED BY LAW FOR COMMISSIONED OFFICERS OF THE REGULAR ARMY, WITHOUT DEPENDENTS, WHO ARE ENTITLED TO RECEIVE THE PAY OF THE THIRD, SECOND, AND FIRST PAY PERIODS, RESPECTIVELY. ( ITALICS SUPPLIED.)

THUS, THE RENTAL ALLOWANCE PAYABLE TO SUCH OFFICERS IS THAT PROVIDED FOR COMMISSIONED OFFICERS OF THE REGULAR ARMY, WITHOUT DEPENDENTS, UNDER THE CIRCUMSTANCES, CONDITIONS, AND LIMITATIONS OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED QUOTED HEREINABOVE.

IN SUPPORT OF THE PRESENT CLAIM YOU SUBMITTED A LETTER DATED MAY 7, 1943, OF THE OFFICER'S WIFE, DIRECTED TO THE FINANCE OFFICER BY WHOM, APPARENTLY, SHE IS BEING PAID, WHICH IS ENTITLED "RENTAL AND SUBSISTENCE ALLOWANCES FOR OFFICER, WAIVER OF," AND READS AS FOLLOWS:

1. THIS IS TO CERTIFY THAT THE UNDERSIGNED WAAC OFFICER, NOW ON DUTY AT THE JERSEY CITY SUBSTATION OF THE NORTHERN NEW JERSEY RECRUITING AND INDUCTION DISTRICT, IS THE WIFE OF FIRST LIEUTENANT JACK R. CARPENTER, SIGNAL CORPS, WHO IS NOW STATIONED AT CAMP WOOD, EATONTOWN, N.J.

LT. CARPENTER IS NOW DRAWING APPROPRIATE SUBJECT ALLOWANCES IN AMOUNTS PRESCRIBED FOR A SINGLE OFFICER, BECAUSE I AM ALSO RECEIVING THOSE ALLOWANCES AS AN OFFICER. HE HAS RECEIVED WORD FROM THE FINANCE OFFICE AT CAMP WOOD TO THE EFFECT THAT, IF I DO NOT CLAIM MY ALLOWANCES AS A SINGLE OFFICER, AND THAT THIS FACT IS VERIFIED BY LETTER FROM YOUR OFFICE, THEN HE CAN CLAIM SUBJECT ALLOWANCES IN AMOUNTS AUTHORIZED FOR A MARRIED OFFICER.

3. CONSEQUENTLY, THE UNDERSIGNED WILL NOT CLAIM EITHER RENTAL OR SUBSISTENCE ALLOWANCES AS AN OFFICER, BEGINNING WITH VOUCHER FOR MONTH OF MAY, 1943, AND FOR SUCH TIME AS THIS RULING IS IN EFFECT.

4. IN VIEW OF THIS STATEMENT, IT IS REQUESTED THAT AN APPROPRIATE LETTER BE INITIATED BY YOUR OFFICE, ADDRESSED TO FINANCE OFFICER, CAMP WOOD, EATONTOWN, N.J., SETTING FORTH THESE CIRCUMSTANCES AND AUTHORIZING FIRST LIEUTENANT JACK R. CARPENTER, SIGNAL CORPS, TO CLAIM ALLOWANCES IN AMOUNTS PRESCRIBED FOR A MARRIED OFFICER, BEGINNING WITH THE MONTH OF MAY, 1943. IT IS THE DESIRE OF THE F.O. AT CAMP WOOD THAT THE ABOVE REQUESTED LETTER REACH THAT OFFICE BY MAY 15, IF PRACTICABLE.

THE FINANCE OFFICER TO WHOM HER LETTER WAS ADDRESSED INDORSED SAID LETTER AS FOLLOWS: "NO ALLOWANCES (SUBSISTENCE AND RENTAL) WILL BE PAID TO 3RD OFFICER ELIZABETH S. CARPENTER, WAAC, SUBSEQUENT TO APRIL 30TH, 1943 BY THIS OFFICE.'

IN YOUR LETTER TRANSMITTING THE VOUCHER TO THIS OFFICE FOR ADVANCE DECISION AS TO THE VALIDITY OF THE CLAIM YOU STATE (QUOTING PARAGRAPHS 3, 4, AND 5 THEREOF):

3. IT WILL BE NOTED FROM THE EVIDENCE ATTACHED TO AND MADE A PART OF THE ENCLOSED CLAIM THAT LIEUTENANT CARPENTER'S LAWFUL WIFE IS SERVING WITH THE MILITARY FORCES AS A 3RD OFFICER OF THE WAAC AND FOR THE PERIOD CLAIMED SHE WAS NOT FURNISHED QUARTERS IN KIND NOR WAS SHE PAID A MONETARY ALLOWANCE IN LIEU THEREOF. THAT UNDER DATE OF 12 DECEMBER 1942, LIEUTENANT CARPENTER WAS ASSIGNED QUARTERS BY COMPETENT AUTHORITY WHICH WERE CONSIDERED ADEQUATE AT THAT TIME, SAID ASSIGNMENT HAS NOT BEEN TERMINATED. IT WILL ALSO BE NOTED THAT THE PROPER AUTHORITY HAS DETERMINED THAT SAID QUARTERS SO ASSIGNED WERE INADEQUATE FOR THE PERIOD COVERED BY THE CLAIM.

4. LIEUTENANT CARPENTER AND HIS WIFE ARE SO STATIONED AT THE PRESENT TO ENABLE THEM TO MAINTAIN AND OCCUPY PRIVATE QUARTERS NEAR THEIR STATIONS. HE DID NOT, DURING THE PERIOD COVERED BY THE CLAIM, OCCUPY THE QUARTERS ASSIGNED UNDER DATE OF 12 DECEMBER 1942. DURING THE PERIOD 13 AUGUST 1942 TO 11 DECEMBER 1942 INCLUSIVE HE WAS PAID ALLOWANCES AS AN OFFICER WITHOUT DEPENDENTS. DURING PART OF THAT PERIOD HIS LAWFUL WIFE WAS ALSO PAID ALLOWANCES AS AN OFFICER WITHOUT DEPENDENTS.

5. THE CLAIM AS SUBMITTED COMPLIED WITH EXISTING LAWS AND REGULATIONS, HOWEVER, INASMUCH AS THE ASSIGNMENT TO QUARTERS HAS NOT BEEN TERMINATED, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE CLAIM IS VALID. THERE IS ALSO THE DOUBT AS TO WHETHER AN OFFICER, IN THIS CATEGORY, WHO HAS BY PRECEDENT ESTABLISHED A METHOD THROUGH WHICH HE AND HIS LAWFUL WIFE HAVE BEEN PAID ALLOWANCES AS OFFICERS WITHOUT DEPENDENTS, MAY AT A LATER DATE CHANGE SUCH METHOD TO RESULT IN FURTHER INCREMENT TO HIMSELF OR TO HIS LAWFUL WIFE.

AS SHOWN HEREINBEFORE, SECTION 1 OF THE ACT OF OCTOBER 26, 1942, 56 STAT. 988, AMENDING THE ACT OF MAY 14, 1942, 56 STAT. 278, ESTABLISHING THE WOMEN'S ARMY AUXILIARY CORPS, PROVIDES, SO FAR AS HERE PERTINENT, THAT FIRST, SECOND, AND THIRD OFFICERS THEREOF "SHALL RECEIVE PAY AND ALLOWANCES AT THE RATE NOW OR HEREAFTER PROVIDED BY LAW FOR COMMISSIONED OFFICERS OF THE REGULAR ARMY, WITHOUT DEPENDENTS," AND SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, WHICH PRESCRIBES THE RENTAL ALLOWANCE TO BE PAID TO OFFICERS OF THE REGULAR ARMY, AND OFFICERS OF THE OTHER SERVICES MENTIONED IN THE TITLE OF THE ACT, PROVIDES, SUBJECT TO THE EXCEPTIONS THEREIN, THAT "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.' ( ITALICS SUPPLIED.) CONSEQUENTLY, THERE IS HERE PRESENTED THE QUESTION WHETHER THE WIFE OF AN OFFICER IN THE ARMY WHO IS NOT FURNISHED QUARTERS AT GOVERNMENT EXPENSE MAY WAIVE HER RIGHT TO A RENTAL ALLOWANCE IN LIEU OF SUCH QUARTERS IN ORDER THAT HER HUSBAND MAY CLAIM INCREASED RENTAL ALLOWANCE ON HER ACCOUNT.

THE RULE IS WELL ESTABLISHED THAT THE ACCEPTANCE BY AN EMPLOYEE OF LESS THAN THE LAWFUL SALARY OF HIS POSITION DOES NOT BAR A CLAIM BY HIM FOR THE DIFFERENCE. 14 COMP. GEN. 193; UNITED STATES V. BANCROFT, 260 U.S. 706; MACMATH V. UNITED STATES, 248, U.S. 151; UNITED STATES V ANDREWS, 240 U.S. 90; AND GLAVEY V. UNITED STATES, 182 U.S. 595.

IN THE CASE OF MACMATH V. UNITED STATES, SUPRA, THE COURT STATED (CITING UNITED STATES V. ANDREWS, AND GLAVEY V. UNITED STATES, SUPRA):

WHEN AN OFFICE WITH A FIXED SALARY HAS BEEN CREATED BY STATUTE, AND A PERSON DULY APPOINTED TO IT HAS QUALIFIED AND ENTERED UPON THE DISCHARGE OF HIS DUTIES, HE IS ENTITLED, DURING HIS INCUMBENCY, TO BE PAID THE SALARY PRESCRIBED BY STATUTE; AND EFFECT WILL NOT BE GIVEN TO ANY ATTEMPT TO DEPRIVE HIM OF THE RIGHT THERETO, WHETHER IT BE BY UNAUTHORIZED AGREEMENT, BY CONDITION, OR OTHERWISE. THE NECESSARY EFFECT OF THESE DECISIONS IS THAT WAIVER OF A STATUTORY RIGHT, SUCH AS, FOR EXAMPLE, RENTAL ALLOWANCE IN THIS CASE, WILL NOT ESTOP THE PERSON WAIVING THE RIGHT AND THAT THE COURTS WILL NOT GIVE ANY EFFECT TO SUCH A WAIVER. 20 COMP. GEN. 41, AT PAGE 43.

MOREOVER, EVEN THOUGH PAYMENT ON THE VOUCHER WERE NOT OBJECTIONABLE ON THIS GROUND, THERE APPEARS NO REASON FOR CONSIDERING THAT THE PROVISIONS OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, PRESCRIBING THE RENTAL ALLOWANCE TO BE PAID AN OFFICER ON ACCOUNT OF A LAWFUL WIFE, CONTEMPLATED THAT SAID ALLOWANCE SHOULD BE PAID AN OFFICER ON ACCOUNT OF A WIFE WHO, AS HERE, IS SERVING THE GOVERNMENT IN A CAPACITY WHICH ENTITLES HER, IN HER OWN RIGHT, TO A RENTAL ALLOWANCE WHERE QUARTERS IN KIND ARE NOT FURNISHED HER AT GOVERNMENT EXPENSE.

FROM THE FOREGOING IT IS CLEAR THAT LIEUTENANT CARPENTER IS NOT ENTITLED TO RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (WIFE), AND, SINCE IT IS SHOWN THAT HE WAS ASSIGNED QUARTERS ADEQUATE FOR HIS OCCUPANCY AT HIS PERMANENT STATION, IT DOES NOT APPEAR THAT HE WOULD BE ENTITLED TO RENTAL ALLOWANCE IN HIS OWN RIGHT.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH, TOGETHER WITH THE OTHER PAPERS SUBMITTED, WILL BE RETAINED IN THIS OFFICE.