B-41592, MAY 27, 1944, 23 COMP. GEN. 895

B-41592, MAY 27, 1944, 23 COMP. GEN. 895

PAY; RENTAL AND SUBSISTENCE ALLOWANCES - CAPTURED, INTERNED, ETC., OFFICERS - EFFECT OF CONDITION CHANGES DURING ABSENCE WHILE AN OFFICER IN A MISSING STATUS IS ENTITLED UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY, AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THE ABSENCE, SUCH CREDITS ARE NOT REQUIRED OR AUTHORIZED TO BE CONTINUED UPON THE KNOWN HAPPENING OF AN EVENT WHICH WOULD CHANGE THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES, THE STATUTE, IN THIS RESPECT, NOT CONTEMPLATING THAT THE STATUS OF A MISSING PERSON FOR PAY PURPOSES BE DETERMINED DIFFERENTLY FROM THAT OF ANY OTHER OFFICER ON ACTIVE DUTY, NOT IN A MISSING STATUS, WHOSE PAY AND ALLOWANCES ARE AFFECTED BY A CHANGE OF CONDITIONS. THE PROVISION IN SECTION 2 OF THE ACT OF MARCH 7, 1942, AUTHORIZING IN THE CASE OF PERSONS ABSENT IN A MISSING, CAPTURED, ETC., STATUS, THE CONTINUANCE OF THE SAME PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED AT THE BEGINNING OF THE ABSENCE, DOES NOT CONTEMPLATE THE CONTINUED CREDITING TO THE ACCOUNT OF AN OFFICER, WHO IS A PRISONER OF WAR, OF RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS (LAWFUL WIFE) ON AND AFTER THE DATE HIS WIFE BECAME A MEMBER OF THE MARINE CORPS WOMEN'S RESERVE, BY REASON OF WHICH SHE THEREAFTER WAS FURNISHED SUBSISTENCE AND QUARTERS BY THE GOVERNMENT OR WAS PAID A MONETARY ALLOWANCE IN LIEU THEREOF. A MARINE CORPS OFFICER WHO, WHEN CAPTURED BY THE ENEMY AND WHILE ENTITLED TO RENTAL ALLOWANCE FOR DEPENDENTS (LAWFUL WIFE), WAS ON FIELD DUTY WITH NO LIKELIHOOD OF A CERTIFICATION, PURSUANT TO SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AS TO THE NECESSITY FOR PROCURING QUARTERS AT HIS OWN EXPENSE, IS TO BE CONSIDERED, FOR PURPOSES OF RENTAL ALLOWANCE SUBSEQUENT TO THE DATE HIS WIFE BECAME A MEMBER OF THE MARINE CORPS WOMEN'S RESERVE, AS AN OFFICER WITHOUT DEPENDENTS WHOSE RIGHTS ARE LIMITED TO THOSE OF AN OFFICER ON FIELD DUTY AND, HENCE, NOT ENTITLED UNDER SECTION 2 OF THE MISSING PERSONS STATUTE OF MARCH 7, 1942, TO BE CREDITED WITH RENTAL ALLOWANCE IN HIS OWN RIGHT. THE INCREASED SUBSISTENCE ALLOWANCE AUTHORIZED BY SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF A LAWFUL WIFE SHOULD NOT BE CREDITED TO AN OFFICER WHOSE WIFE IS ON ACTIVE DUTY AS A MEMBER OF THE ARMED FORCES AND IS FURNISHED SUBSISTENCE IN KIND OR IS PAID A CASH ALLOWANCE IN LIEU THEREOF.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 27, 1944:

REFERENCE IS MADE TO THE LETTER OF APRIL 21, JAG:II:WJG:Z A16-2/3) (L16- 7, ENCLOSING A LETTER FROM THE COMMANDANT, U.S. MARINE CORPS, DATED APRIL 17, 1944, RELATIVE TO QUESTIONS CONCERNING RENTAL AND SUBSISTENCE ALLOWANCES AUTHORIZED TO BE CREDITED TO OFFICER PRISONERS OF WAR WHOSE DEPENDENTS SUBSEQUENTLY BECAME MEMBERS OF THE ARMED SERVICES. THE SPECIFIC QUESTIONS PRESENTED ARE SET FORTH IN PARAGRAPHS 8 AND 9 OF SAID LETTER OF THE COMMANDANT, AS FOLLOWS:

8. SECTION 2 OF THE ACT OF 7 MARCH 1942, SUPRA, PROVIDES THAT A PERSON CAPTURED BY THE ENEMY SHALL BE ENTITLED TO RECEIVE OR TO HAVE "CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES" TO WHICH HE WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER. IN VIEW OF THE LANGUAGE USED IN SECTION 2 OF THE ACT OF 7 MARCH, 1942, SUPRA, AND OF THE CIRCUMSTANCES RELATED IN PARAGRAPH 1 HEREOF IT IS REQUESTED THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE ASKED TO RENDER AN OPINION ON THE FOLLOWING QUESTIONS:

(A) IS AN OFFICER WHO IS A PRISONER OF WAR ENTITLED TO CONTINUE TO HAVE CREDITED TO HIS ACCOUNT THE SAME RENTAL ALLOWANCE TO WHICH HE WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE ON AND AFTER THE DATE HIS DEPENDENT WIFE ENLISTS IN THE MARINE CORPS WOMEN'S RESERVE?

(B) IF THE ANSWER TO (A) IS IN THE NEGATIVE, IS AN OFFICER WHO IS A PRISONER OF WAR ENTITLED TO HAVE CREDITED TO HIS ACCOUNT THE RENTAL ALLOWANCE AS AN OFFICER OF THE SIXTH PAY PERIOD WITHOUT DEPENDENTS ON AND AFTER THE DATE HIS DEPENDENT WIFE ENLISTS IN THE MARINE CORPS WOMEN'S RESERVE?

(C) IS AN OFFICER WHO IS A PRISONER OF WAR ENTITLED TO CONTINUE TO HAVE CREDITED TO HIS ACCOUNT THE SUBSISTENCE ALLOWANCE AS AN OFFICER OF THE SIXTH PAY PERIOD WITH DEPENDENTS ON AND AFTER THE DATE HIS DEPENDENT WIFE ENLISTS IN THE MARINE CORPS WOMEN'S RESERVE?

9. AS PREVIOUSLY POINTED OUT THERE APPEARS TO BE NO REQUIREMENT OF LAW OTHER THAN THAT AN OFFICER HAVE A DEPENDENT, AS DEFINED IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, TO ENTITLE AN OFFICER TO THE PAYMENT OF THE SUBSISTENCE ALLOWANCE AS WITH DEPENDENTS AS PROVIDED IN SECTION 5 OF THE SAID ACT. THEREFORE, IS AN OFFICER WHOSE PAY ACCOUNT IS NOT AFFECTED BY THE PROVISIONS OF SECTION 2 OF THE ACT OF 7 MARCH 1942, SUPRA, AND WHOSE DEPENDENT WIFE IS A MEMBER OF THE ARMED SERVICES, ENTITLED TO CONTINUE TO BE CREDITED AND PAID THE SUBSISTENCE ALLOWANCE AS WITH DEPENDENTS AS PROVIDED FOR IN SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942?

THE EXAMPLE REFERRED TO IN THE LETTER AS GIVING RISE TO THE QUESTIONS, WAS THAT OF AN OFFICER WHO WHEN TAKEN A PRISONER OF WAR WAS ATTACHED TO AND SERVING WITH THE FOURTH MARINES IN THE FIELD, AND WHO, AT THE TIME OF HIS CAPTURE BY THE ENEMY, WAS IN RECEIPT OF PAY AND ALLOWANCES OF THE SIXTH PAY PERIOD WITH DEPENDENTS (LAWFUL WIFE). SUBSEQUENT TO THE DATE ON WHICH THE OFFICER WAS TAKEN PRISONER HIS WIFE ENLISTED IN THE MARINE CORPS WOMEN'S RESERVE.

SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, PUBLIC LAW 5, PROVIDE AS FOLLOWS:

SEC. 5. EACH COMMISSIONED OFFICER ON THE ACTIVE LIST, OR ON ACTIVE DUTY, BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, SHALL BE ENTITLED AT ALL TIMES, IN ADDITION TO HIS PAY, TO A MONEY ALLOWANCE FOR SUBSISTENCE. THE VALUE OF ONE SUBSISTENCE ALLOWANCE IS HEREBY FIXED AT 70 CENTS PER DAY. TO EACH OFFICER OF ANY OF THE SAID SERVICES RECEIVING THE BASE PAY OF THE FIRST, SECOND, THIRD, OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO TWO SUBSISTENCE ALLOWANCES AND TO EACH OFFICER RECEIVING THE BASE PAY OF THE FOURTH OR FIFTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THREE SUBSISTENCE ALLOWANCES: PROVIDED, THAT AN OFFICER WITH NO DEPENDENTS SHALL RECEIVE ONE SUBSISTENCE ALLOWANCE IN LIEU OF THE ABOVE ALLOWANCES.

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 SUCH 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.

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 CERTIFICATION 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.

SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144, PROVIDES IN PERTINENT PART AS FOLLOWS:

ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER * * *.

THE PURPOSE OF SAID SECTION 2 IS TO AUTHORIZE THE CONTINUATION OF THE PAY AND ALLOWANCES OF PERSONS IN A STATUS AS DESCRIBED THEREIN FROM THE BEGINNING OF THE ABSENCE, BASED UPON THE AMOUNTS TO WHICH SUCH PERSONS WERE LEGALLY ENTITLED TO RECEIVE AND, BY PROVIDING IN THE LAST CLAUSE OF THE QUOTED SENTENCE FOR FUTURE CREDITS PREDICATED UPON THE AMOUNTS SUCH PERSONS "MAY BECOME ENTITLED TO THEREAFTER," IT EVIDENTLY WAS CONTEMPLATED THAT SITUATIONS WOULD ARISE WHICH WOULD AFFECT OR CHANGE THE AMOUNT OF THE CREDIT FROM THAT BASED UPON THE PAY AND ALLOWANCES TO WHICH SUCH PERSONS WERE ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE. WHILE AN OFFICER IN A MISSING STATUS IS ENTITLED TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE LEGALLY WAS ENTITLED AT THE BEGINNING OF THE ABSENCE, SUCH CREDITS ARE NOT REQUIRED OR AUTHORIZED TO BE CONTINUED UPON THE KNOWN HAPPENING OF AN EVENT WHICH WOULD CHANGE THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. IN THIS RESPECT IT IS NOT TO BE PRESUMED THAT THE STATUTE CONTEMPLATES THAT THE PAY STATUS OF A MISSING PERSON IS TO BE COMPUTED DIFFERENTLY FROM THAT OF ANY OTHER OFFICER ON ACTIVE DUTY, NOT IN A MISSING STATUS, WHOSE PAY AND ALLOWANCES OBVIOUSLY ARE AFFECTED UPON THE HAPPENING OF CHANGED CONDITIONS. CF. 23 COMP. GEN. 21. AN OFFICER NOT IN A MISSING STATUS WOULD NOT BE ENTITLED TO A CONTINUATION OF RENTAL ALLOWANCE FOR A WIFE FOLLOWING HER DEATH OR UPON CESSATION OF THE MARITAL RELATIONSHIP; AND THE SAME RULE IS TO BE APPLIED IN THE CASE OF A MISSING OFFICER. SIMILARLY, THE SAME RULE WOULD BE FOR APPLICATION, INSOFAR AS RENTAL ALLOWANCE FOR DEPENDENTS IS CONCERNED, WHEN THE DEPENDENTS OCCUPY PUBLIC QUARTERS, WHETHER (1) SUCH OCCUPATION OF QUARTERS BE AN INCIDENT TO THEIR RELATIONSHIP TO THE OFFICER, THAT IS, THE ASSIGNMENT TO HIM OF QUARTERS FOR HIS DEPENDENTS, OR (2) BECAUSE OF THE DEPENDENT'S STATUS AS A MEMBER OF THE ARMED FORCES BY REASON OF WHICH SHE IS FURNISHED QUARTERS IN KIND OR PAID A CASH ALLOWANCE IN LIEU THEREOF. 22 COMP. GEN. 955; 23 ID. 216, 227, ANSWER TO QUESTION 14 (B).

THE LAWFUL ALLOWANCES OF AN OFFICER DO NOT INCLUDE INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ON BEHALF OF A WIFE WHO IS A MEMBER OF THE MARINE CORPS WOMEN'S RESERVE AND WHO IS FURNISHED QUARTERS AND SUBSISTENCE BY THE GOVERNMENT OR IS PAID A MONETARY ALLOWANCE IN LIEU THEREOF. ACCORDINGLY, QUESTIONS (A) AND (C) ARE ANSWERED IN THE NEGATIVE.

FROM THE FACTS PRESENTED IT APPEARS THAT THE OFFICER WAS OPERATING AGAINST AN ENEMY AND WAS ON DUTY IN THE FIELD AT THE TIME OF CAPTURE RECEIVING RENTAL ALLOWANCE FOR DEPENDENTS BECAUSE GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR HER OCCUPANCY, AND IT MAY BE ASSUMED THAT DURING SUCH ACTIVITY PRIOR TO CAPTURE THERE WAS NO PROPER BASIS FOR APPLICATION OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 6 OF THE ACT OF JUNE 16, 1942, AS AMENDED, 57 STAT. 13. THAT IS TO SAY, THE OFFICER PRESUMABLY WAS UTILIZING SUCH QUARTERS OR SHELTER AS THE CIRCUMSTANCES OF HIS SITUATION PERMITTED WITH NO LIKELIHOOD OF THE INCURRENCE OF PERSONAL EXPENSES BY VIRTUE OF INADEQUACY WHICH WOULD JUSTIFY OR WARRANT CERTIFICATION TO THE NECESSITY FOR PROCURING QUARTERS AT HIS OWN EXPENSE. HENCE, FOR THE PURPOSE OF RENTAL ALLOWANCE SUBSEQUENT TO THE DATE THAT HIS WIFE BECAME A MEMBER OF THE MARINE CORPS WOMEN'S RESERVES, IT MUST BE HELD THAT THE MISSING OFFICER WAS AN OFFICER WITHOUT DEPENDENTS WHOSE RIGHTS ARE LIMITED TO THOSE OF AN OFFICER ON FIELD DUTY. ACCORDINGLY, HE IS NOT ENTITLED TO CREDIT OF RENTAL ALLOWANCE IN HIS OWN RIGHT. QUESTION (B) IS ANSWERED IN THE NEGATIVE.

AN OFFICER SHOULD NOT BE CREDITED WITH INCREASED SUBSISTENCE ALLOWANCE ON ACCOUNT OF HIS WIFE WHILE SHE IS SERVING ON ACTIVE DUTY IN THE ARMED FORCES WHERE SUBSISTENCE IS FURNISHED HER IN KIND, OR SHE IS PAID A CASH ALLOWANCE IN LIEU THEREOF. SEE 23 COMP. GEN. 216, SUPRA. ACCORDINGLY, THE QUESTION CONTAINED IN PARAGRAPH 9 OF THE COMMANDANT'S LETTER IS ANSWERED IN THE NEGATIVE.