B-35962, SEPTEMBER 27, 1943, 23 COMP. GEN. 230

B-35962, SEPTEMBER 27, 1943, 23 COMP. GEN. 230

RENTAL ALLOWANCE - NAVAL OFFICER OCCUPYING GOVERNMENT-OWNED QUARTERS ON ARMY POST ON RENTAL BASIS A NAVAL OFFICER WHO, WITH HIS WIFE, OCCUPIED ON A RENTAL BASIS GOVERNMENT -OWNED QUARTERS CONSTRUCTED AND MAINTAINED AT A MILITARY POST AND ASSIGNED TO ARMY OFFICERS WITHOUT CHARGE MUST BE REGARDED AS HAVING OCCUPIED PUBLIC QUARTERS, AND, THEREFORE, HE IS NOT ENTITLED TO THE MONEY ALLOWANCE FOR RENTAL OF QUARTERS AUTHORIZED UNDER SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR OFFICERS WITH DEPENDENTS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 27, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1943, TRANSMITTING--- WITH REQUEST FOR DECISION ON THE QUESTION PRESENTED THEREIN--- LETTER OF JUNE 30, 1943, FROM J. E. REID, DISBURSING OFFICER, SECTION BASE, U.S. NAVAL OPERATING BASE, BALBOA, CANAL ZONE, WITH ENDORSEMENT THEREON OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WITH RESPECT TO THE RIGHT OF COMMANDER WALTER S. K. TRAPNELL, DE-V (G), USNR, TO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS (WIFE) FOR THE PERIOD FEBRUARY 16, 1943, TO JUNE 30, 1943.

THE DISBURSING OFFICER'S LETTER OF JUNE 30, SUMMARIZING THE FACTS AND CIRCUMSTANCES OF THIS CASE, READS, IN PERTINENT PART, AS FOLLOWS:

(1) (A) ON JUNE 25, 1942, COMDR. TRAPNELL WAS ASSIGNED TO DUTY AS COMMANDER INSHORE PATROL-PACIFIC WITH HEADQUARTERS AT THE SECTION BASE, WEST BANK, BALBOA, CANAL ZONE. * * *

(B) AS OF FEBRUARY 10, 1943, COMDR. TRAPNELL, WHO HAD ESTABLISHED RESIDENCE ON THE EAST BANK OF THE CANAL IN PANAMA CITY, WAS GIVEN VERBAL ORDERS BY THE COMMANDANT FIFTEENTH NAVAL DISTRICT, COMPANSEA FRONTIER, TO CHANGE HIS RESIDENCE TO THE WEST BANK OF THE CANAL SO AS TO BE LOCATED NEARER TO HIS POST OF DUTY--- SECTION BASE. THIS MADE IT NECESSARY FOR COMDR. TRAPNELL AND HIS WIFE TO VACATE THEIR ESTABLISHED QUARTERS IN PANAMA CITY AND TO SEEK NEW QUARTERS ON THE WEST BANK OF THE CANAL IN CLOSER PROXIMITY TO HIS DUTY STATION. NO QUARTERS WERE AVAILABLE AT THE WEST BANK NAVAL STATION; HEADQUARTERS INSHORE PATROL-PACIFIC AND SECTION BASE, ARE LOCATED AT THE NAVAL STATION.

(C) COMDR. TRAPNELL SUCCEEDED IN OBTAINING QUARTERS AT THE U.S. ARMY FORT KOBBE, APO. 832. THE LATTER FORT IS SITUATED WITHIN A FEW MINUTES DRIVING DISTANCE OF THIS OFFICER'S DUTY STATION, INSHORE PATROL-PACIFIC, SECTION BASE, WEST BANK NAVAL STATION, BALBOA, CANAL ZONE. THESE QUARTERS, WHICH WERE OBTAINED BY AUTHORIZATION OF THE POST COMMANDER (ENCLOSURE "C") FOR A FIXED MONTHLY CHARGE OF APPROXIMATELY $81.44, WERE ONE OF A SET OF NUMEROUS QUARTERS CONSTRUCTED FOR THE USE OF ARMY OFFICERS BUT WHICH ARE NOW BEING OCCUPIED BY ARMY OFFICERS, CIVILIANS AND NAVAL OFFICERS WHO MAY DESIRE THEM. THESE QUARTERS DEFINITELY WERE NOT CONSTRUCTED UNDER A LOW COST HOUSING PROJECT. ACTUALLY COMDR. TRAPNELL IS OCCUPYING THESE QUARTERS ON A CIVILIAN BASIS. THE ARMY OFFICERS OCCUPYING THESE QUARTERS ARE NOT CHARGED FEES FOR RENTAL, UTILITIES, ETC.; HOWEVER, THEY RECEIVE NO RENTAL ALLOWANCE. THERE IS ONE EXCEPTION TO THE LATER (LATTER) AND THAT IS MARRIED ARMY OFFICERS WHOSE DEPENDENTS ARE LIVING IN THE STATES ARE RECEIVING THEIR RENTAL ALLOWANCE. THE LATTER IS TRUE REGARDLESS OF THE RANK OF AN OFFICER; THE ONLY RANK DISTINCTION MAKE (MADE) IS WITH REGARD TO THE NUMBER OF ROOMS CONTAINED IN THE QUARTERS ASSIGNED.

(D) THESE QUARTERS WHICH COMDR. TRAPNELL AND HIS WIFE ARE PRESENTLY OCCUPYING ARE LOCATED ON THE HOWARD FIELD, FORT KOBBE, MILITARY RESERVATION AND WERE CONSTRUCTED BY AUTHORITY OF CONTRACT NO. W-6708-QM-97

(E) AS PER ENCLOSURE "F" COMDR. TRAPNELL IS PAYING A TOTAL OF EIGHTY ONE DOLLARS AND FORTY FOUR CENTS ($81.44) PER MONTH FOR RENT, UTILITIES, ETC. WHILE OCCUPYING SUBJECT QUARTERS AT FORT KOBBE. * * * SUBJECT OFFICER OCCUPIED THESE QUARTERS AS OF 16 FEB. 1943, AND HAS THIS DATE GIVEN NOTICE TO THE APPROPRIATE LOCAL ARMY AUTHORITIES OF THIS VACATION OF THESE QUARTERS AS OF 30 JUNE 1943. THEREFORE, THE PERIOD FOR WHICH RENTAL ALLOWANCE IS CLAIMED IS 2/16-6/30/43, INCLUSIVE. ( ENCLOSURE " G.'' THE APPROPRIATION TO WHICH THE AMOUNTS COLLECTED AS RENTAL, ETC. ARE CREDITED, (ARE) AS FOLLOWS:RENTAL G.F.R. 210305; UTILITIES 212/30905 E.S.A. 1942-43 F.G.A. 17P430-05; AND OVERHEAD: G.F.R. 215230. IN CONCLUDING HIS LETTER, THE DISBURSING OFFICER STATES THAT THE ,OFFICER'S CLAIM TO RENTAL ALLOWANCE FOR THE PERIOD STATED IN PARAGRAPH 1. (E), ABOVE, IS BASED ON THE FACT THAT ALTHOUGH HE WAS OCCUPYING GOVERNMENT QUARTERS, HE WAS CHARGED FEES FOR RENTAL, UTILITIES AND OVERHEAD AS PER THE AGREEMENT ENTERED INTO WITH THE POST COMMANDER PRIOR TO THE OCCUPATION.'

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

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 $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.

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 * * *.

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

* * * 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: * * *

THE TERM " DEPENDENT" IS DEFINED IN SECTION 4 OF THE ACT, INSOFAR AS IS HERE PERTINENT, TO INCLUDE "A LAWFUL WIFE.'

IT WILL BE NOTED THAT THE DISBURSING OFFICER STATES IN HIS LETTER OF JUNE 30, 1943, SUPRA, THAT THE QUARTERS WHICH COMMANDER TRAPNELL AND HIS WIFE OCCUPIED DURING THE PERIOD CONCERNED "ARE LOCATED ON THE HOWARD FIELD, FORT KOBBE, MILITARY RESERVATION, AND WERE CONSTRUCTED BY AUTHORITY OF CONTRACT NO. W-6708-QM-97.' THIS CONTRACT, WHICH WAS ENTERED INTO ON APRIL 16, 1940, CALLED FOR THE " CONSTRUCTION OF OFFICERS' AND NON- COMMISSIONED OFFICERS' QUARTERS, FORT KOBBE AND PANAMA AC NEW BASE ( HOWARD FIELD) CANAL ZONE," THE COST OF SAID CONSTRUCTION TO BE PAID FROM FUNDS APPROPRIATED BY THE SUPPLEMENTAL MILITARY APPROPRIATION ACT, 1940, APPROVED JULY 1, 1939, 53 STAT. 994 (21X0540 CONSTRUCTION OF BUILDINGS, UTILITIES, AND APPURTENANCES AT MILITARY POSTS). FURTHER, THE DISBURSING OFFICER STATES THAT THE QUARTERS OCCUPIED BY THE OFFICER AND HIS WIFE WERE ONE OF A SET OF NUMEROUS QUARTERS CONSTRUCTED NOT UNDER A LOW COST HOUSING PROJECT BUT FOR THE USE OF ARMY OFFICERS WHO, WHEN OCCUPYING THESE QUARTERS, ARE NOT CHARGED THEREFOR BUT RECEIVE NO RENTAL ALLOWANCE. THUS, IT APPEARS CLEAR THAT THE QUARTERS CONSTRUCTED UNDER THIS CONTRACT ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES WHICH ARE BEING ASSIGNED TO ARMY OFFICERS WITHOUT CHARGE THEREFOR.

THE RIGHT OF THE OFFICERS IN THE ARMY TO QUARTERS IN KIND IS CONTAINED IN THE ACT OF MARCH 2, 1907, 34 STAT. 1168, 10 U.S.C. 728, WHICH, AS CODIFIED, PROVIDES:

AT ALL POSTS AND STATIONS WHERE THERE ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES OFFICERS MAY BE FURNISHED WITH QUARTERS IN KIND IN SUCH PUBLIC QUARTERS, AND NOT ELSEWHERE, BY THE QUARTERMASTER CORPS, ASSIGNING TO THE OFFICERS OF EACH GRADE, RESPECTIVELY, SUCH NUMBER OF ROOMS AS IS STATED IN THE FOLLOWING TABLE, NAMELY: SECOND LIEUTENANTS, TWO ROOMS; FIRST LIEUTENANTS, THREE ROOMS; CAPTAINS, FOUR ROOMS; MAJORS, FIVE ROOMS; LIEUTENANT COLONELS, SIX ROOMS; COLONELS, SEVEN ROOMS; BRIGADIER GENERALS, EIGHT ROOMS; MAJOR GENERALS, NINE ROOMS, LIEUTENANT GENERAL, TEN ROOMS.

WITH RESPECT TO THE RIGHT OF OFFICERS IN THE NAVY TO QUARTERS IN KIND IT WAS STATED IN DECISION OF OCTOBER 29, 1942, B-28005, 22 COMP. GEN. 406, AT PAGE 408," OFFICERS OF THE NAVY WERE ASSIMILATED TO ARMY OFFICERS AS TO RIGHT TO QUARTERS, OR AT LEAST TO COMMUTATION THEREFOR FOR THE NUMBER OF ROOMS INDICATED ABOVE, UNDER THE ACT OF MARCH 3, 1899, 30 STAT. 1007. SEE 24 COMP. DEC. 610.' THESE ARE THE QUARTERS AUTHORIZED BY LAW FOR OFFICERS; AND, SPEAKING BROADLY, IT IS ONLY WHEN THERE ARE NO PUBLIC QUARTERS ASSIGNED TO AN OFFICER THAT HE BECOMES ENTITLED TO THE RENTAL ALLOWANCE AUTHORIZED TO BE PAID TO HIM BY THE PROVISIONS OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA.

IN DECISION OF FEBRUARY 26, 1926, A-12406, 5 COMP. GEN. 663, CONCERNING THE RIGHT OF A NAVY OFFICER TO RENTAL ALLOWANCE WHILE OCCUPYING PUBLIC QUARTERS ON A RENTAL BASIS, IT WAS HELD (QUOTING THE SYLLABUS):

AN OFFICER OF THE NAVY ON DUTY IN CONNECTION WITH THE NAVAL ACADEMY DAIRY FARM, WHO WITH HIS DEPENDENTS OCCUPIED A HOUSE LOCATED ON AND FORMING A PART OF THE FARM PROPERTY AND FOR WHICH HE PAID A MONTHLY RENTAL OF $20 TO THE SUPERINTENDENT OF THE FARM, IS NOT ENTITLED TO RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY, AS SAID HOUSE BEING THE PROPERTY OF THE UNITED STATES WAS UNDER SUCH ADMINISTRATION CONTROL AS WOULD HAVE PERMITTED ITS ASSIGNMENT TO THE OFFICER AS QUARTERS WITHOUT CHARGE. AND, IN DECISION OF JANUARY 24, 1936, A 69778, 15 COMP. GEN. 659, CONCERNING THE RIGHT OF A NAVY OFFICER TO RETAIN RENTAL ALLOWANCE PAID HIM WHILE OCCUPYING ON A RENTAL BASIS, PUBLIC QUARTERS LOCATED ON THE ISLAND OF GUAM, IT WAS STATED (QUOTING THE CONCLUDING PARAGRAPH OF THE DECISION):

THE FACTS PRESENTED SHOW THAT COMMANDER LEONARD ACTUALLY OCCUPIES AT HIS PERMANENT STATION GOVERNMENT QUARTERS UNDER CONTROL OF THE NAVY DEPARTMENT AND ASSIGNED TO HIM ON A RENTAL BASIS. THE AUTHORITY GIVEN COMMANDER LEONARD TO OCCUPY THE QUARTERS IN QUESTION MUST BE CONSIDERED AN ASSIGNMENT OF PUBLIC QUARTERS AT HIS PERMANENT STATION WITHIN THE RENTAL- ALLOWANCE LAW. BEING ENTITLED TO QUARTERS AT GOVERNMENT EXPENSE THERE IS NO AUTHORITY OF LAW TO REQUIRE COMMANDER LEONARD TO PAY RENTAL FOR USE OF THOSE QUARTERS. 5 COMP. GEN. 663, DECISION A-12406, FEBRUARY 26, 1926. PROPER ADJUSTMENT OF THE MATTER REQUIRES THAT COMMANDER LEONARD REFUND THE DIFFERENCE BETWEEN THE AMOUNT PAID HIM AS RENTAL ALLOWANCE AND THE RENTAL PAID BY HIM DURING THE PERIOD HE HAS OCCUPIED THE QUARTERS IN QUESTION.

MOREOVER, IN LETTER OF MAY 20, 1943, THE COMMANDING OFFICER AT FORT KOBBE, IN FURNISHING INFORMATION AS TO THE AMOUNTS CHARGED COMMANDER TRAPNELL AND ANOTHER NAVAL OFFICER OCCUPYING QUARTERS AT THE POST ON A RENTAL BASIS, STATES, IN PART:

QUARTERS ON A RENTAL BASIS FOR THESE OFFICERS WAS APPROVED BY A FORMER POST COMMANDER. IT IS THE OPINION OF THE PRESENT POST COMMANDER THAT OFFICERS OF THE NAVY, OCCUPYING QUARTERS ON THIS POST, SHOULD BE ON THE SAME BASIS AS OFFICERS OF THE ARMY. AND THE COMMANDING GENERAL OF THE PANAMA CANAL DEPARTMENT, IN TRANSMITTING SAID LETTER TO THE COMMANDANT OF THE 15TH NAVAL DISTRICT, STATES:

IT IS FELT THAT THE TWO NAVAL OFFICERS SHOULD NOT BE RECEIVING COMMUTATION IN VIEW OF THE FACT THAT THEY ARE OCCUPYING REGULAR ARMY OFFICERS' QUARTERS.

FURTHERMORE, SINCE THE AMOUNTS CHARGED COMMANDER TRAPNELL MONTHLY FOR SAID QUARTERS ARE STATED AS BEING $75 FOR RENT (EXCEPT FOR THE PERIOD FEBRUARY 16 TO 28, WHEN THE RENTAL WAS $55.50 PER MONTH); $6.25 FOR UTILITIES; AND $0.19 FOR OVERHEAD, A TOTAL CHARGE OF $81.44 PER MONTH, TO HOLD THAT HE IS ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS (WIFE) DURING THE PERIOD OF SUCH OCCUPANCY WOULD BE TO AUTHORIZE A CREDIT OF RENTAL ALLOWANCE IN HIS ACCOUNT IN THE AMOUNT OF $120 PER MONTH UNDER CIRCUMSTANCES WHERE THE GOVERNMENT HAS RECEIVED FROM HIM MONTHLY DURING SAID PERIOD A TOTAL OF ONLY $81.44, A MONTHLY DIFFERENCE IN THE OFFICER'S FAVOR OF $38.56.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF A REQUIREMENT OR AUTHORIZATION OF LAW FOR THE OCCUPANCY BY COMMANDER TRAPNELL AND HIS WIFE OF THE QUARTERS HERE CONCERNED ON A RENTAL BASIS, THERE APPEARS NO REASON WHY THE RENTAL CHARGE SHOULD HAVE BEEN EXACTED FROM HIM.

ACCORDINGLY, IT MUST BE HELD THAT COMMANDER TRAPNELL AND HIS WIFE OCCUPIED QUARTERS IN KIND WITHIN THE MEANING OF THE RENTAL ALLOWANCE LAW (SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA) FOR THE PERIOD CONCERNED, AND THERE IS NO AUTHORITY FOR CREDITING HIM WITH RENTAL ALLOWANCE DURING SAID PERIOD.