B-73303, FEBRUARY 27, 1948, 27 COMP. GEN. 479

B-73303, FEBRUARY 27, 1948, 27 COMP. GEN. 479

QUARTERS AND RENTAL ALLOWANCES - OCCUPATION OF QUARTERS FURNISHED BY FOREIGN GOVERNMENTS THE FURNISHING OF QUARTERS BY THE GREEK AND TURKISH GOVERNMENTS WITHOUT CHARGE TO NAVAL PERSONNEL DETAILED THERETO PURSUANT TO THE ACT OF MAY 22, 1947, IS A FURNISHING OF QUARTERS ON BEHALF OF THE UNITED STATES, AND, THEREFORE, SUCH PERSONNEL ARE NOT ENTITLED TO RENTAL AND QUARTERS ALLOWANCES AUTHORIZED BY SECTIONS 6 AND 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, EVEN THOUGH THE ACT OF MAY 19, 1926, AS AMENDED--- INCORPORATED BY REFERENCE IN THE 1947 ACT--- AUTHORIZES THE ACCEPTANCE OF SUCH QUARTERS IN ADDITION TO THE PAY AND ALLOWANCES "WHERETO ENTITLED" IN THE NAVY. 21 COMP. GEN. 1065, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 27, 1948:

THERE HAVE BEEN CONSIDERED YOUR LETTER OF JANUARY 29, 1948, AND LETTER OF JANUARY 12, 1948, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, TRANSMITTED THEREWITH, WHEREIN THERE IS POINTED OUT THE POSSIBILITY THAT NAVAL PERSONNEL DETAILED TO DUTIES IN GREECE AND TURKEY UNDER THE PROVISIONS OF PARAGRAPH (3) OF SECTION 1 OF THE ACT OF MAY 22, 1947, PUBLIC LAW 75, 61 STAT. 103, MAY BE FURNISHED QUARTERS FREE OF CHARGE BY THOSE GOVERNMENTS, IN VIEW OF WHICH DECISION IS REQUESTED AS FOLLOWS:

* * * ACCORDINGLY, YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTIONS PRESENTED IN THE ENCLOSURE, NAMELY, WHETHER OR NOT OFFICERS ASSIGNED TO DUTY IN CONNECTION WITH THE ADMINISTRATION OF AID TO THE GOVERNMENTS OF GREECE AND TURKEY ARE ENTITLED TO CREDIT OF RENTAL ALLOWANCE, IF OTHERWISE PROPER, WHERE THE OFFICER CONCERNED IS (1) A BACHELOR OFFICER FURNISHED QUARTERS BY THE GREEK OR TURKISH GOVERNMENT FOR HIMSELF; (2) AN OFFICER, WITH DEPENDENTS, FURNISHED QUARTERS BY THE GREEK OR TURKISH GOVERNMENT FOR HIMSELF ONLY; OR (3) AN OFFICER, WITH DEPENDENTS, FURNISHED QUARTERS BY THE GREEK OR TURKISH GOVERNMENT FOR HIMSELF AND HIS DEPENDENTS.

YOUR FURTHER DECISION IS REQUESTED AS TO THE RIGHT OF AN ENLISTED MAN IN ANY PAY GRADE TO CREDIT OF AN ALLOWANCE FOR QUARTERS UNDERSIMILAR CIRCUMSTANCES AS STATED ABOVE WITH RESPECT TO OFFICERS; ALSO, AS TO THE RIGHT OF AN ENLISTED MAN OF THE FIRST, SECOND OR THIRD PAY GRADE, OTHERWISE ENTITLED TO MONEY ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS WHILE NOT IN A TRAVEL STATUS, TO CONTINUE TO RECEIVE SUCH ALLOWANCES WHEN HIS DEPENDENTS ARE IN FACT FURNISHED QUARTERS BY THE GOVERNMENT OF GREECE OR TURKEY.

IT IS UNDERSTOOD INFORMALLY FROM A REPRESENTATIVE OF THE STATE DEPARTMENT THAT GENERALLY ALL PERSONNEL, INCLUDING NAVAL PERSONNEL, ON DUTY IN GREECE HAVE BEEN AND WILL BE FURNISHED QUARTERS BY THIS GOVERNMENT THROUGH THE CHIEF OF THE AMERICAN MISSION AND PRESUMABLY THE SAME SITUATION EXISTS WITH RESPECT TO PERSONNEL ASSIGNED TO DUTIES WITH A LIKE MISSION IN TURKEY. ALSO, IT IS NOT DISCLOSED WHETHER THE UNITED STATES WILL REIMBURSE GREECE OR TURKEY FOR ANY QUARTERS FURNISHED AMERICAN PERSONNEL. HOWEVER, IN VIEW OF WHAT IS STATED IN YOUR LETTER, THE QUESTIONS PRESENTED WILL BE CONSIDERED ON THE PREMISE THAT SOME NAVAL PERSONNEL POSSIBLY MAY BE FURNISHED QUARTERS DIRECTLY BY THE GREEK OR TURKISH GOVERNMENTS WITHOUT CHARGE.

SECTION 1 OF THE SAID ACT OF MAY 22, 1947, PROVIDES, IN PERTINENT PART---

THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE PRESIDENT MAY FROM TIME TO TIME WHEN HE DEEMS IT IN THE INTEREST OF THE UNITED STATES FURNISH ASSISTANCE TO GREECE AND TURKEY, UPON REQUEST OF THEIR GOVERNMENTS, AND UPON TERMS AND CONDITIONS DETERMINED BY HIM---

(3) BY DETAILING A LIMITED NUMBER OF MEMBERS OF THE MILITARY SERVICES OF THE UNITED STATES TO ASSIST THOSE COUNTRIES, IN AN ADVISORY CAPACITY ONLY; AND THE PROVISIONS OF THE ACT OF MAY 19, 1926 (44 STAT. 565), AS AMENDED, APPLICABLE TO PERSONNEL DETAILED PURSUANT TO SUCH ACT, AS AMENDED, SHALL BE APPLICABLE TO PERSONNEL DETAILED PURSUANT TO THIS PARAGRAPH;

THE ACT OF MAY 19, 1926, 44 STAT. 565, AS AMENDED, 34 U.S.C., SUPP. V, 441A, PROVIDES, IN PERTINENT PART---

* * * THAT WHILE SO DETAILED SUCH OFFICERS AND ENLISTED MEN SHALL RECEIVE, IN ADDITION TO THE COMPENSATION AND EMOLUMENTS ALLOWED THEM BY SUCH GOVERNMENTS, THE PAY AND ALLOWANCES WHERETO ENTITLED IN THE UNITED STATES ARMY, NAVY, AND MARINE CORPS AND SHALL BE ALLOWED THE SAME CREDIT FOR LONGEVITY, RETIREMENT, AND FOR ALL OTHER PURPOSES THAT THEY WOULD RECEIVE IF THEY WERE SERVING WITH THE FORCES OF THE UNITED STATES.

THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, PROVIDES, IN PART:

NO RENTAL ALLOWANCES 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 * * * 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 FIRST AND SECOND PARAGRAPHS OF SECTION 10 OF THE SAID PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDE IN PART:

TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE * * *.

EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND * * *.

IN DECISION OF MAY 28, 1942, 21 COMP. GEN. 1065, REFERRED TO IN YOUR LETTER AND IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IT WAS HELD THAT THE FURNISHING OF QUARTERS OF THE CANADIAN GOVERNMENT TO A NAVAL OFFICER, ON DUTY IN NOVA SCOTIA AS A NAVAL OBSERVER, CONSTITUTED THE FURNISHING OF QUARTERS ON BEHALF OF THE UNITED STATES GOVERNMENT AND THAT, THEREFORE, THE OFFICER WAS NOT ENTITLED TO RENTAL ALLOWANCE DURING THE PERIOD HE AND HIS DEPENDENTS OCCUPIED SUCH QUARTERS. WHILE THAT DECISION WOULD APPEAR TO GOVERN THE ANSWERS TO THE QUESTION HERE CONSIDERED, IT IS CONTENDED THAT SUCH DECISION IS NOT APPLICABLE IN VIEW OF THE PROVISIONS OF THE ACT OF MAY 19, 1926, SUPRA. THAT CONTENTION IS PREMISED ON THE PROPOSITION THAT THE FURNISHING OF QUARTERS TO SUCH PERSONNEL BY THE GREEK OR TURKISH GOVERNMENTS WOULD CONSTITUTE COMPENSATION OR EMOLUMENTS WHICH THE LAW PERMITS THEM TO ACCEPT IN ADDITION TO THE PAY AND ALLOWANCES TO WHICH THEY ARE ENTITLED AS NAVAL PERSONNEL AND THEREFORE IT SHOULD NOT BE TAKEN INTO CONSIDERATION IN DETERMINING THEIR RIGHT TO QUARTERS OR RENTAL ALLOWANCES. HOWEVER, EVEN COULD THE FURNISHING OF QUARTERS TO NAVAL PERSONNEL BY THE GREEK OR TURKISH GOVERNMENTS BE CONSIDERED AS CONSTITUTING COMPENSATION OR EMOLUMENTS FROM THOSE GOVERNMENTS--- SEE JONES V. UNITED STATES, 60 C.1CLS. 552--- IT DOES NOT FOLLOW THAT THAT WOULD ENTITLE THEM TO RENTAL OR QUARTERS ALLOWANCES UNDER THE CIRCUMSTANCES STATED IN YOUR LETTER.

AS POINTED OUT, THE SAID ACT OF MAY 19, 1926, INCORPORATED BY REFERENCE IN THE ACT OF MAY 22, 1947, PROVIDES THAT THE PERSONNEL HERE CONCERNED SHALL RECEIVE, IN ADDITION TO THE COMPENSATION AND EMOLUMENTS ALLOWED THEM BY THE GREEK OR TURKISH GOVERNMENTS, THE PAY AND ALLOWANCES "WHERETO ENTITLED" IN THE UNITED STATES NAVY. HOWEVER, WHILE NO PARTICULAR DIFFICULTY IS ENCOUNTERED IN DETERMINING THE PAY AND SOME OF THE ALLOWANCES TO WHICH SUCH PERSONNEL ARE OTHERWISE ENTITLED, BEFORE THEIR ENTITLEMENT TO RENTAL OR QUARTERS ALLOWANCES CAN BE DETERMINED THE LAW REQUIRES THAT IT FIRST BE ASCERTAINED WHETHER OR NOT THEY ARE BEING FURNISHED QUARTERS BY, OR ON BEHALF OF, THE UNITED STATES. IF THEY ARE BEING FURNISHED QUARTERS BY A FOREIGN GOVERNMENT, THE FACT THAT THEY MAY BE EXPRESSLY AUTHORIZED BY LAW TO ACCEPT SUCH QUARTERS IS IMMATERIAL.

THE PERSONNEL IN QUESTION ARE AUTHORIZED TO BE DETAILED TO GREECE AND TURKEY FOR THE PURPOSE OF PROVIDING ASSISTANCE, IN AN ADVISORY CAPACITY, TO THOSE COUNTRIES. THE SERVICES THEY RENDER ARE, OF COURSE, RENDERED BY THEM AS AGENTS OF THE UNITED STATES DIRECT TO THOSE COUNTRIES AND IT NECESSARILY WOULD SEEM TO FOLLOW THAT SUCH QUARTERS AS MAY BE FURNISHED THEM BY THOSE COUNTRIES MUST BE CONSIDERED AS HAVING BEEN FURNISHED IN RECOGNITION OF THE SERVICES THUS RENDERED BY THIS GOVERNMENT THROUGH THAT MEDIUM AND THEREFORE THAT THEY WERE FURNISHED ON BEHALF OF THIS GOVERNMENT. IN THE CASE CONSIDERED IN THE DECISION OF MAY 28, 1942, THE OFFICER WAS IN NOVA SCOTIA PRIMARILY FOR THE PURPOSE OF RENDERING SERVICE TO THE UNITED STATES AND ANY BENEFITS WHICH MAY HAVE FLOWED TO THE CANADIAN GOVERNMENT FROM HIS PRESENCE IN NOVA SCOTIA WERE MERELY INCIDENTAL. IT WAS HELD, NEVERTHELESS, THAT THE QUARTERS FURNISHED THE OFFICER BY THE CANADIAN GOVERNMENT WERE FURNISHED HIM IN HIS OFFICIAL CAPACITY AS A NAVAL OFFICER AND, THEREFORE, WERE FURNISHED HIM ON BEHALF OF THE UNITED STATES GOVERNMENT. IT FOLLOWS, A FORTIORI, THAT SUCH QUARTERS AS MAY BE FURNISHED THE PERSONNEL HERE CONCERNED BY THE GREEK OR TURKISH GOVERNMENTS WOULD HAVE TO BE CONSIDERED AS BEING FURNISHED ON BEHALF OF THE UNITED STATES. IT MAY BE NOTED, MOREOVER, THAT UNDER THE AMENDMENT OF MARCH 6, 1943, SUPRA, NO OFFICER WITHOUT DEPENDENTS ON FIELD DUTY IN GREECE OR TURKEY (SEE 26 COMP. GEN. 439) WOULD BE ENTITLED TO RENTAL ALLOWANCES IN ANY EVENT EXCEPT UPON THE CERTIFICATE OF HIS COMMANDING OFFICER THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS "AT HIS OWN EXPENSE," WHEREAS AN OFFICER WITH DEPENDENTS, NOT FURNISHED QUARTERS FOR SUCH DEPENDENTS, WOULD BE ENTITLED TO RENTAL ALLOWANCE ON THEIR ACCOUNT WITHOUT REGARD TO THE SOURCE OF THE QUARTERS OCCUPIED INDIVIDUALLY BY THE OFFICER.

FOR THE REASONS STATED AND ASSUMING THAT YOUR QUESTIONS (2), AND THE RELATED QUESTION CONCERNING PERSONNEL, REFER TO PERSONNEL WHO MAY BE FURNISHED QUARTERS BY THE GREEK OR TURKISH GOVERNMENTS AND WHOSE DEPENDENTS ARE OTHERWISE FURNISHED QUARTERS BY THIS GOVERNMENT, ALL THE QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE. OF COURSE, IF PERSONNEL, OTHERWISE ENTITLED TO RENTAL OR QUARTERS ALLOWANCES FOR THEIR DEPENDENTS, ARE FURNISHED QUARTERS FOR THEMSELVES BUT ARE NOT FURNISHED QUARTERS FOR THEIR DEPENDENTS FROM ANY SUCH OFFICIAL SOURCE, THEY WOULD BE ENTITLED TO BE PAID SUCH ALLOWANCES.