B-57360, DECEMBER 26, 1946, 26 COMP. GEN. 439

B-57360: Dec 26, 1946

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THIS OFFICE WILL NOT QUESTION DETERMINATIONS. AS TO WHETHER OR NOT OFFICERS WITHOUT DEPENDENTS ARE ON "FIELD DUTY" WITHIN THE MEANING OF THE PROHIBITION IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942. WHEN SUCH DUTY IS WITH TROOPS OUTSIDE THE UNITED STATES. OTHER THAN IN OCCUPIED ENEMY TERRITORY WHEREIN DUTY WITH OCCUPATION TROOPS CLEARLY IS FIELD DUTY WITHIN THE PURVIEW OF SAID PROHIBITION. 1946: REFERENCE IS MADE TO YOUR LETTER OF APRIL 9. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM LIEUTENANT COLONEL EDWARD M. REQUESTING THAT CERTIFICATION BE MADE TO THE EFFECT THAT ADEQUATE PUBLIC QUARTERS WERE NOT FURNISHED HIM SINCE OCTOBER 17. IT WAS HELD (SYLLABI). AS FOLLOWS: "THE QUESTION AS TO WHAT DUTY BY OFFICERS IN THE ARMED FORCES IS OR IS NOT "FIELD DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACTS OF JUNE 10.

B-57360, DECEMBER 26, 1946, 26 COMP. GEN. 439

RENTAL ALLOWANCE - OFFICERS WITHOUT DEPENDENTS - FIELD DUTY ON AND AFTER JANUARY 1, 1947, OFFICERS WITHOUT DEPENDENTS STATIONED IN THE UNITED STATES NEED NO LONGER BE REGARDED, NECESSARILY, AS CONTINUING ON "FIELD DUTY" WITHIN THE MEANING OF THE PROHIBITION IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AGAINST THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, HAVING NO DEPENDENTS, WHILE ON FIELD DUTY. COMPARE 22 COMP. GEN. 420. FOR THE TIME BEING, THIS OFFICE WILL NOT QUESTION DETERMINATIONS, NOT OTHERWISE SHOWN TO BE UNREASONABLE, BY THE SECRETARY OF THE NAVY OR THE SECRETARY OF WAR, AS THE CASE MAY BE, AS TO WHETHER OR NOT OFFICERS WITHOUT DEPENDENTS ARE ON "FIELD DUTY" WITHIN THE MEANING OF THE PROHIBITION IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AGAINST THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, HAVING NO DEPENDENTS, WHILE ON FIELD DUTY, WHEN SUCH DUTY IS WITH TROOPS OUTSIDE THE UNITED STATES, OTHER THAN IN OCCUPIED ENEMY TERRITORY WHEREIN DUTY WITH OCCUPATION TROOPS CLEARLY IS FIELD DUTY WITHIN THE PURVIEW OF SAID PROHIBITION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 26, 1946:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM LIEUTENANT COLONEL EDWARD M. STAAB, JR., USMC (05663), DATED OCTOBER 25, 1945, WITH ACCOMPANYING ENDORSEMENTS, REQUESTING THAT CERTIFICATION BE MADE TO THE EFFECT THAT ADEQUATE PUBLIC QUARTERS WERE NOT FURNISHED HIM SINCE OCTOBER 17, 1945, UNDER THE CONDITIONS STATED IN SUCH LETTER, AND THAT HE EITHER BE ASSIGNED ADEQUATE QUARTERS OR BE PAID RENTAL ALLOWANCE IN LIEU THEREOF UNTIL SUCH TIME AS ADEQUATE PUBLIC QUARTERS MAY BE ASSIGNED FOR HIS OCCUPANCY.

IN YOUR DECISION TO THE SECRETARY OF THE NAVY, DATED OCTOBER 30, 1942 (22 COMP. GEN. 420), IT WAS HELD (SYLLABI), AS FOLLOWS:

"THE QUESTION AS TO WHAT DUTY BY OFFICERS IN THE ARMED FORCES IS OR IS NOT "FIELD DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACTS OF JUNE 10, 1922, AS AMENDED, AND JUNE 16, 1942, RESPECTIVELY, PROHIBITING THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, HAVING NO DEPENDENTS, WHILE ON FIELD DUTY, IS FOR DETERMINATION BY THIS OFFICE AS A QUESTION PERTAINING TO THE CORRECT APPLICATION OF APPROPRIATED MONEYS.

"ALL DUTY OF OFFICERS WITH TROOPS FROM AND AFTER DECEMBER 7, 1941, WHETHER WITHIN OR WITHOUT THE UNITED STATES, WILL BE CONSIDERED AND TREATED AS "FIELD DUTY" WITHIN THE MEANING OF SECTIONS 6 OF THE ACTS OF JUNE 10, 1922, AS AMENDED, AND JUNE 16, 1942, RESPECTIVELY, PROHIBITING THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, HAVING NO DEPENDENTS, WHILE ON FIELD DUTY.'

UNDER THIS DECISION AN OFFICER, WITHOUT DEPENDENTS, ON DUTY WITH TROOPS FROM AND AFTER DECEMBER 7, 1941, EITHER WITHIN OR WITHOUT THE UNITED STATES, IS CONSIDERED AND TREATED AS ON FIELD DUTY WITHIN THE MEANING OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (37 U.S.C. 106), WHICH PROHIBITS THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, WITHOUT DEPENDENTS, WHILE ON FIELD DUTY. IN THE TEXT OF THE CITED DECISION IT IS STATED:

"PRIMA FACIE ALL DUTY WITH TROOPS, WHETHER WITHIN OR WITHOUT THE UNITED STATES DURING THIS GLOBAL WAR IS FIELD DUTY. OBVIOUSLY, WHEN ATTACKS HAVE BEEN MADE BY ENEMY VESSELS NOT ONLY ADJACENT TO BUT ACTUALLY ON THE COASTS OF THE UNITED STATES, WHEN ENEMY VESSELS HAVE LANDED SABOTEURS IN THE UNITED STATES, THE PROPER DEFENSE OF ALL COMMANDS OF TROOPS IN THE UNITED STATES REQUIRES THAT THE COMMANDING OFFICER SHALL HAVE AUTHORITY TO CONTROL AND DIRECT THE CONDUCT AND ACTIONS OF ALL PERSONS UNDER HIS AUTHORITY FOR THE PROTECTION OF THE COMMAND. WHEN HE HAS THAT AUTHORITY THE COMMAND, AND ALL MEMBERS THEREOF, ARE ON FIELD DUTY OR DUTY IN THE FIELD.'

IN VIEW OF THE ACTUAL CESSATION OF HOSTILITIES AND THE FACT THAT THE CONDITIONS RELIED UPON IN REACHING THE DECISION OF OCTOBER 30, 1942, NO LONGER EXIST, THE NAVY DEPARTMENT REQUESTS THAT THE RULE PRESCRIBED IN SAID DECISION, AS STATED IN THE SECOND PARAGRAPH OF THE SYLLABI, BE HELD AND CONSIDERED TO BE NO LONGER EFFECTIVE FROM AND AFTER APRIL 1, 1945, OR SUCH OTHER DATE AS YOU MAY DETERMINE TO BE APPROPRIATE IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES DISCLOSED.

IN THIS CONNECTION THE NAVY DEPARTMENT IS COGNIZANT OF THE FACT THAT LIEUTENANT COLONEL STAAB'S COMMANDING OFFICER IS WITHOUT AUTHORITY TO COMPLY WITH HIS REQUEST FOR CERTIFICATION THAT ADEQUATE PUBLIC QUARTERS WERE NOT FURNISHED THIS OFFICER SINCE OCTOBER 17, 1945. HOWEVER, IN THE EVENT THE RULE PRESCRIBED IN 22 COMP. GEN. 420, IS HELD TO BE NO LONGER EFFECTIVE, THE COMMANDING OFFICER MAY THEN CERTIFY THAT PUBLIC QUARTERS ASSIGNED TO LIEUTENANT COLONEL STAAB ARE NOT OCCUPIED BECAUSE OF BEING INADEQUATE FOR HIS OCCUPANCY, IF SUCH BE THE FACT, AND HE WOULD THEREAFTER BE ENTITLED TO PAYMENT OF RENTAL ALLOWANCE AS AN OFFICER WITH (OUT) DEPENDENTS.

THE ACT OF MARCH 6, 1943, 57 STAT. 13, PROVIDES:

THAT THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, IS HEREBY AMENDED 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.'

SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDED THAT "NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY.' SUCH LANGUAGE WAS REPEATED IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AND GOVERNED THE PAYMENT OF RENTAL ALLOWANCE IN SUCH CASES PRIOR TO THE AMENDMENT OF MARCH 6, 1943, SUPRA. UNDER THAT AMENDMENT, THE QUESTION OF WHETHER OR NOT AN OFFICER IS ON FIELD DUTY HAS LOST MUCH OF ITS IMPORTANCE, AN OFFICER WITHOUT DEPENDENTS BEING ENTITLED TO RENTAL ALLOWANCE THEREUNDER EVEN THOUGH HE IS ON FIELD DUTY, IF HE IS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE. HOWEVER, IF ON FIELD DUTY, HE MAY NOT BE REGARDED AS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE IF SHELTER BE PROVIDED OR QUARTERS BE ASSIGNED, IRRESPECTIVE OF ANY QUESTION OF ADEQUACY, AND, HENCE, THE QUESTION OF FIELD DUTY REMAINS MATERIAL IN CASES WHERE AN OFFICER MAY DECLINE TO OCCUPY QUARTERS DETERMINED TO BE "INADEQUATE.'

"FIELD DUTY" AS USED IN THE 1922 STATUTE WAS DEFINED IN EXECUTIVE ORDER 4063, AUGUST 13, 1924, AS FOLLOWS:

THE TERM "FIELD DUTY" SHALL BE CONSTRUED TO MEAN SERVICE, UNDER ORDERS, WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

THE SAME TERM IN THE 1942 STATUTE WAS DEFINED IN ALMOST IDENTICAL LANGUAGE IN EXECUTIVE ORDER 9255, OCTOBER 13, 1942, AS FOLLOWS:

THE TERM "FIELD DUTY" SHALL MEAN SERVICE, UNDER ORDERS, WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

WHETHER DUTY AT A PARTICULAR PLACE AND AT A PARTICULAR TIME IS OR IS NOT "FIELD DUTY" IS NOT DEPENDENT UPON THE EXISTENCE OR NONEXISTENCE OF A TECHNICAL STATE OF WAR. THAT THERE MIGHT BE ,FIELD DUTY," AS DEFINED IN EXECUTIVE ORDER 4063, SUPRA, WITHOUT ANY DECLARATION OF WAR, SEE 7 COMP. GEN. 205, AND CASES THEREIN CITED. ALSO, THAT THERE MIGHT BE "FIELD DUTY" WITHIN THE MEANING OF THE ACT OF JUNE 10, 1922, SUPRA, SUBSEQUENT TO A FORMAL DECLARATION THAT WAR HAD ENDED, SEE STEWART V. UNITED STATES, 70 C.1CLS. 540.

THE FIELD DUTY STATUS OF TROOPS MOBILIZED FOR ACTUAL WARFARE DOES NOT CEASE IMMEDIATELY, OF COURSE, UPON THE TERMINATION OF ACTIVE HOSTILITIES BUT REASONABLY IS TO BE REGARDED AS CONTINUING SUBSTANTIALLY THROUGH THE FOLLOWING PERIOD OF UNCERTAINTY AND PACIFICATION AND THE SHIFTING AND DEMOBILIZATION OF THE EMERGENCY FORCES PLACED IN THE FIELD INCIDENT TO SUCH WARFARE, DEPENDING MORE OR LESS ON THE PLACE AND CIRCUMSTANCES OF THE SERVICE.

THE DECISION OF THIS OFFICE, 22 COMP. GEN. 420, CITED IN YOUR LETTER, WAS RENDERED PRIOR TO THE SAID AMENDMENT OF MARCH 6, 1943, AND DURING A TIME OF ACTUAL HOSTILITIES WITH ENEMY NATIONS. THE CONDITIONS OF ACTUAL WARFARE REFERRED TO IN THE DECISION AS AFFECTING TROOPS WITHIN, AS WELL AS WITHOUT, THE UNITED STATES NO LONGER EXIST AND THE RETURN AND DEMOBILIZATION OF THE EMERGENCY FORCES NOW HAS REACHED A POINT WHERE I BELIEVE IT REASONABLY MAY BE AGREED THAT, BEGINNING JANUARY 1, 1946, OFFICERS STATIONED IN THE UNITED STATES NEED NO LONGER BE REGARDED, NECESSARILY, AS CONTINUING ON FIELD DUTY, WITHIN THE MEANING OF THE RENTAL ALLOWANCE STATUTE.

IT DOES NOT FOLLOW, HOWEVER, THAT THERE WILL BE NO FIELD DUTY OUTSIDE THE UNITED STATES AFTER THAT DATE. DUTY WITH OCCUPATION TROOPS IN GERMANY AND JAPAN AND OTHER OCCUPIED ENEMY TERRITORY APPEARS PROPERLY TO BE REGARDED AS CONTINUING TO BE FIELD DUTY. SEE STEWART V. UNITED STATES, SUPRA, IN WHICH IT WAS HELD THAT AN OFFICER OF THE ARMY ON DUTY IN GERMANY WITH THE ARMY OF OCCUPATION IN 1922 AND 1923 WAS ON FIELD DUTY.

AS TO TROOPS ON DUTY OUTSIDE OF THE UNITED STATES, EXCEPT IN SUCH OCCUPIED ENEMY TERRITORY, IT IS REALIZED THAT CONDITIONS WILL VARY AND THAT WHILE DUTY AT SOME STATIONS WILL NOT DIFFER ESSENTIALLY IN THAT RESPECT FROM DUTY IN THE UNITED STATES, THERE MAY BE AREAS WHERE THE CONDITIONS OF DUTY WILL MORE NEARLY APPROXIMATE THOSE IN OCCUPIED ENEMY TERRITORY. THE NAVY DEPARTMENT--- OR THE WAR DEPARTMENT, IN THE CASE OF ARMY PERSONNEL--- IN POSSESSION OF IMMEDIATE INFORMATION AS TO THE ACTUAL CONDITIONS OF SERVICE AT SUCH STATIONS AND IN SUCH AREAS, WILL BE IN A POSITION TO MAKE AN APPROPRIATE ADMINISTRATIVE DETERMINATION WHETHER THE DUTY SHOULD ANY LONGER BE CONSIDERED FIELD DUTY. AS TO EACH OF SUCH STATIONS AND AREAS, THIS OFFICE, AT LEAST FOR THE TIME BEING, WOULD NOT BE REQUIRED TO QUESTION DETERMINATIONS BY THE HEAD OF THE DEPARTMENT CONCERNED, NOT OTHERWISE SHOWN TO BE UNREASONABLE, AS TO WHETHER OR NOT OFFICERS SERVING THERE WITH TROOPS ARE ON FIELD DUTY.