B-96991, MAR 19, 1951

B-96991, MAR 19, 1951

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF DEFENSE:

THERE HAS BEEN CONSIDERED A LETTER DATED JULY 20, 1950, FROM YOUR PREDECESSOR, REQUESTING DECISION ON SEVERAL QUESTIONS RELATING TO BASIC ALLOWANCES FOR QUARTERS FOR ENLISTED PERSONNEL-- APPARENTLY OF THE ARMY - AND AS TO SAVED FAMILY ALLOWANCE BENEFITS TO SUCH PERSONNEL, UNDER THE PERTINENT PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, 81ST CONGRESS.

SUBSEQUENT TO THE PRESENTATION OF THE ABOVE QUESTIONS TO THIS OFFICE, THERE WAS ENACTED PUBLIC LAW 771, 81ST CONGRESS, APPROVED SEPTEMBER 8, 1950, EFFECTIVE IN MAJOR PART, FROM AUGUST 1, 1950, TO APRIL 30, 1953. THE SAID PUBLIC LAW 771 MODIFIES FOR SUCH PERIOD SEVERAL PROVISIONS OF PUBLIC LAW 351, SUPRA, RELATING TO BASIC ALLOWANCES FOR QUARTERS AND TO THE CONDITIONS UNDER WHICH SUCH ALLOWANCES ARE PAYABLE. THE QUESTIONS PRESENTED ARE ANSWERED ON THE BASIS OF THE PERMANENT LAW, PUBLIC 351, WITHOUT REGARD TO THE POSSIBLE EFFECT OF THE MODIFYING PROVISIONS OF THE TEMPORARY LAW, PUBLIC 771, DURING THE PERIOD OF ITS OPERATION.

THE SERVICEMEN'S DEPENDENTS ALLOWANCES ACT OF 1942, 56 STAT. 381, AS AMENDED, 37 U.S.C. 201-221, PROVIDED, INTER ALIA, FOR THE GRANTING OF FAMILY ALLOWANCES TO WIVES OF ENLISTED MEN AT THE RATE OF $50 PER MONTH, $28 BEING CONTRIBUTED BY THE GOVERNMENT, AND $22 BY THE MAN THROUGH DEDUCTIONS FROM HIS PAY. WITHIN CERTAIN LIMITATIONS, NOT HERE MATERIAL, ENLISTED MEN OF THE FIRST THREE PAY GRADES, OTHERWISE ENTITLED TO A MONETARY ALLOWANCE FOR QUARTERS FOR DEPENDENTS, WERE ALLOWED TO ELECT BETWEEN PAYMENT OF SUCH ALLOWANCES AND PAYMENT TO THEIR WIVES OF THE ABOVE FAMILY ALLOWANCE BENEFITS. THE SAID ACT, AS AMENDED, WAS REPEALED BY SECTION 531(D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA.

SECTIONS 302(A) AND 302(B) OF THE SAID CAREER COMPENSATION ACT PROVIDE:

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION: PROVIDED, THAT AN ENLISTED MEMBER IN PAY GRADE E-4 (LESS THAN SEVEN YEARS' SERVICE), E-3, E-2, AND E-1, SHALL BE CONSIDERED AT ALL TIMES AS A MEMBER WITHOUT DEPENDENTS FOR THE PURPOSES OF THIS SECTION.

"EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCES FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS."

SECTION 302(F) OF THE ABOVE ACT PROVIDED, INTER ALIA, THAT ENLISTED MEN OF ANY GRADE E-4, WITH SEVEN OR MORE YEARS' SERVICE, AND ENLISTED MEN OF PAY GRADES E-5, E-6, AND E-7, SHALL, IF ENTITLED TO RECEIVE BASIC ALLOWANCES FOR QUARTERS UNDER THE PROVISIONS OF SECTION 302, BE ENTITLED TO RECEIVE SUCH ALLOWANCES AT THE RATE OF $67.50 PER MONTH, IF WITH DEPENDENTS, AND AT THE RATE OF $45 PER MONTH, IF WITHOUT DEPENDENTS.

SECTION 515(B) OF THE SAID ACT PROVIDES, IN PERTINENT PART:

"ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBER WHOSE ENLISTMENT TERMINATED IN THE PERIOD BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO HAS ENTERED INTO A NEW ENLISTMENT WITHIN ONE MONTH OF SUCH TERMINATION SHALL NOT, PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE, OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT: PROVIDED, THAT FOR THE PURPOSES OF THIS SUBSECTION, UNLESS OTHERWISE PROVIDED, THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, AND FOLLOWING THAT DATE WHICH IS THE LAST DAY OF THE SIXTH CALENDAR MONTH FOLLOWING THE MONTH IN WHICH THIS ACT IS ENACTED, SHALL NOT INCLUDE THE CONTRIBUTION BY THE GOVERNMENT UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TO MONTHLY FAMILY ALLOWANCE (1) FOR A FATHER OR MOTHER DEPENDENT FOR SUBSTANTIAL SUPPORT OR (2) FOR A FATHER OR MOTHER DEPENDENT FOR CHIEF SUPPORT WHEN A MONTHLY FAMILY ALLOWANCE IS AUTHORIZED FOR A WIFE OR CHILD OF SUCH MEMBER OR (3) FOR A BROTHER OR SISTER DEPENDENT FOR CHIEF OR SUBSTANTIAL SUPPORT, BUT SHALL INCLUDE OTHER CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING PROVISO, IN THE CASE OF ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946, SUCH MEMBER SHALL NOT, PRIOR TO THE EXPIRATION OF SUCH ENLISTMENT OR REENLISTMENT OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT, THE COMPUTATION OF SUCH TOTAL COMPENSATION, FOR THE PURPOSE OF THIS PROVISO ONLY, NOT TO INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, BUT SHALL INCLUDE ALL CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED:

PROVIDED FURTHER, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION UNDER THE PROVISIONS OF THIS ACT IN EXCESS OF THE AMOUNT OF SUCH TOTAL COMPENSATION TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING THE EFFECTIVE DATE OF THIS ACT; AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER OR HIS DEPENDENT OR DEPENDENTS TO QUALIFY THEREFOR OR TO BE ENTITLED THERETO: PROVIDED FURTHER, THAT WHEN A MEMBER IS FURNISHED GOVERNMENT QUARTERS ADEQUATE FOR HIMSELF, IF WITHOUT DEPENDENTS, OR ADEQUATE FOR HIMSELF AND DEPENDENTS, IF WITH DEPENDENTS, THE TOTAL SUM SAVED FOR HIM BY THIS SUBSECTION SHALL BE REDUCED BY THE CASH VALUE OF THE BASIC ALLOWANCE FOR QUARTERS ESTABLISHED UNDER SECTION 302 OF THIS ACT

PRIOR STATUTES AUTHORIZING THE PAYMENT OF RENTAL ALLOWANCES TO OFFICERS OF THE MILITARY AND NAVAL SERVICE BY REASON OF DEPENDENTS, LONG HAVE CONTAINED LANGUAGE SIMILAR TO THAT APPEARING IN SECTION 302(B) OF THE CAREER COMPENSATION ACT, SUPRA; NAMELY, THAT SUCH ALLOWANCES SHALL NOT ACCRUE IF THE DEPENDENTS ARE ASSIGNED ADEQUATE QUARTERS. SEE, FOR EXAMPLE, SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 251, AND SECTION 6 OF THE ACT OF JUNE 16, 1942, 56 STAT. 362. COMPARE THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, AS TO MONEY ALLOWANCES FOR QUARTERS FOR DEPENDENTS OF ENLISTED MEN OF THE FIRST THREE PAY GRADES FOR PERIODS DURING WHICH PUBLIC QUARTERS WERE NOT PROVIDED AND AVAILABLE FOR SAID DEPENDENTS. IT MUST BE ASSUMED THAT THE CONGRESS IN ADOPTING THE LANGUAGE EMPLOYED IN THE SAID SECTION 302(B) WAS COGNIZANT OF THE SIMILAR LANGUAGE USED IN EARLIER STATUTES AND OF THE DECISIONS OF THE COURTS AND OF THIS OFFICE CONSTRUING SUCH LANGUAGE. NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE SECTION TO INDICATE ANY INTENT THAT ITS PROVISIONS ON SUCH RESPECT BE DIFFERENTLY CONSTRUED FROM THOSE OF THE SAID EARLIER STATUTES. HENCE, DECISIONS UNDER SUCH STATUTES PROPERLY ARE FOR CONSIDERATION HERE.

IF THERE IS, IN FACT, AN OCCUPANCY OF GOVERNMENT-OWNED QUARTERS, RENTAL ALLOWANCE IS NOT PAYABLE REGARDLESS OF WHETHER THERE HAS BEEN STRICTLY SPEAKING, AN ASSIGNMENT OF SUCH QUARTERS. 23 COMP.GEN. 346. INSOFAR AS RENTAL ALLOWANCE IS CONCERNED, PUBLIC QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS ARE CONCLUSIVELY PRESUMED TO BE ADEQUATE DURING THE PERIOD OF OCCUPANCY. 22 COMP.GEN. 734. "IT IS WELL ESTABLISHED THAT THE STATUTES AUTHORIZING PAYMENT OF QUARTERS ALLOWANCE AND RENTAL ALLOWANCE TO MILITARY AND NAVAL PERSONNEL DO NOT AUTHORIZE PAYMENT OF SUCH ALLOWANCES TO OFFICERS OR ENLISTED MEN OTHERWISE ENTITLED THERETO FOR PERIODS DURING WHICH THEIR DEPENDENTS OCCUPY GOVERNMENT-OWNED OR CONTROLLED QUARTERS UNLESS SUCH OCCUPANCY IS ON A RENTAL BASIS AND OCCUPANCY ON THAT BASIS IS AUTHORIZED BY EXPRESS PROVISION OF LAW." COMP.GEN. 246, 249. WHERE AN OFFICER'S DEPENDENT, EMPLOYED IN A CIVILIAN CAPACITY BY THE GOVERNMENT, IS FURNISHED QUARTERS INCIDENT TO SUCH EMPLOYMENT, AND AN AMOUNT IS DEDUCTED FROM THE DEPENDENT'S COMPENSATION AS PAYMENT FOR SUCH QUARTERS, THE OFFICER IS ENTITLED TO RENTAL ALLOWANCE AS FOR A DEPENDENT. B-49251, JUNE 5, 1945. ALSO FOR CONSIDERATION IN CASES WHERE DEPENDENTS ARE CIVILIAN EMPLOYEES OF THE GOVERNMENT IS SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, 5 U.S.C. 75A, AUTHORIZING, INTER ALIA, THE FURNISHING OF QUARTERS BY THE DEPARTMENT OF THE ARMY TO CIVILIANS EMPLOYED IN THE FIELD SERVICE, THE REASONABLE VALUE OF SUCH QUARTERS TO BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS. IN OTHER WORDS RENTAL AND QUARTERS ALLOWANCES, ON ACCOUNT OF DEPENDENTS, ARE NOT PAYABLE TO MILITARY AND NAVAL PERSONNEL FURNISHED QUARTERS FOR THEMSELVES IF THE DEPENDENTS ACTUALLY OCCUPY GOVERNMENT-OWNED OR CONTROLLED QUARTERS, REGARDLESS OF WHETHER THERE HAS BEEN A FORMAL ASSIGNMENT TO SUCH QUARTERS, AND REGARDLESS OF WHETHER THE OCCUPIED QUARTERS ARE CONSIDERED "ADEQUATE"-- UNLESS OCCUPANCY IS ON A RENTAL BASIS EXPRESSLY AUTHORIZED BY LAW, OR IS ON A QUASI-RENTAL BASIS INCIDENT TO THE DEPENDENT'S EMPLOYMENT BY THE GOVERNMENT IN A CIVILIAN CAPACITY, AS NOTED ABOVE.

THE QUESTIONS PRESENTED WILL BE QUOTED SEPARATELY AND ANSWERED IN THE ORDER PRESENTED. QUESTION 1 IS AS FOLLOWS:

"1A. A MASTER SERGEANT'S WIFE OCCUPIES THE SERVANT'S ROOM IN A COMMISSIONED OFFICER'S QUARTERS AS PART RENUMERATION FOR WORK AS A HOUSE MAID. THE QUARTERS ARE PUBLIC QUARTERS ASSIGNED TO THE OFFICER AND THE MASTER SERGEANT'S WIFE IS NOT CHARGED RENT FOR HER ROOM. THE MASTER SERGEANT IS FURNISHED QUARTERS FOR HIMSELF AND HIS DEPENDENT IS NOT IN RECEIPT OF FAMILY ALLOWANCE BENEFITS. MAY THE BASIC ALLOWANCE FOR QUARTERS OF $67.50 PER MONTH PROVIDED FOR IN SECTION 302(F) OF THE CAREER COMPENSATION ACT BE PAID TO THE MASTER SERGEANT?

"B. SAME CIRCUMSTANCES EXCEPT THAT FAMILY ALLOWANCE BENEFITS ARE SAVED TO THE MASTER SERGEANT UNDER SECTION 515(B) OF THE CAREER COMPENSATION ACT. SHOULD THE MASTER SERGEANT'S TOTAL COMPENSATION BE REDUCED BY $67.50 AS PROVIDED FOR IN THE FOURTH PROVISO OF SECTION 515(B) OF THE ACT?"

THE ENLISTED MAN IS FURNISHED QUARTERS BY THE GOVERNMENT AND HIS WIFE OCCUPIES GOVERNMENT-OWNED OR CONTROLLED QUARTERS NOT ON A RENTAL BASIS EXPRESSLY AUTHORIZED BY LAW, OR ON A QUASI-RENTAL BASIS INCIDENT TO EMPLOYMENT BY THE GOVERNMENT. HENCE, THE ENLISTED MAN MUST BE CONSIDERED TO BE ASSIGNED ADEQUATE GOVERNMENT QUARTERS FOR HIMSELF AND DEPENDENTS WITHIN THE INTENT AND PURPOSE OF SECTION 302(B) OF THE CAREER COMPENSATION ACT. ACCORDINGLY, QUESTION 1A IS ANSWERED IN THE NEGATIVE.

FROM THE ABOVE, IT MUST FOLLOW THAT THE ENLISTED MAN IS FURNISHED ADEQUATE GOVERNMENT QUARTERS FOR HIMSELF AND DEPENDENT WITHIN THE INTENT AND PURPOSE OF SECTION 515(B) OF THE CAREER COMPENSATION ACT. ACCORDINGLY, QUESTION 1B ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS AS FOLLOWS:

"2A. A CORPORAL, WITH OVER SEVEN YEARS' SERVICE, AND HIS WIFE OCCUPY TOGETHER THE SERVANT'S ROOM OF THE QUARTERS ASSIGNED TO A COMMISSIONED OFFICER IN RETURN FOR SERVICES RENDERED THE OFFICER. THE ENLISTED MAN'S DEPENDENT IS NOT IN RECEIPT OF FAMILY ALLOWANCE AND THEY ARE NOT CHARGED RENT FOR THEIR ROOM. MAY BASIC ALLOWANCE FOR QUARTERS OF $67.50 PROVIDED IN SECTION 302(F) OF THE ACT BE PAID TO THE CORPORAL?

"B. SAME CIRCUMSTANCES EXCEPT THAT FAMILY ALLOWANCE BENEFITS ARE SAVED TO THE CORPORAL UNDER SECTION 515(B) OF THE ACT. SHOULD THE CORPORAL'S TOTAL COMPENSATION BE REDUCED BY $67.50 AS PROVIDED FOR IN THE FOURTH PROVISO OF SECTION 515(B) OF THE ACT?"

ON THE BASIS OF THE ANSWERS TO QUESTION 1, QUESTION 2A IS ANSWERED IN THE NEGATIVE AND QUESTION 2B IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 IS AS FOLLOWS:

"3A. A SERGEANT'S WIFE OCCUPIES A ROOM IN THE DAY NURSERY SCHOOL ON A MILITARY POST WHERE SHE IS EMPLOYED AS AN ATTENDANT, AND $6.50 PER MONTH IS DEDUCTED FROM HER SALARY AS RENTAL. THE SERGEANT IS FURNISHED QUARTERS FOR HIMSELF AND THE WIFE IS NOT IN RECEIPT OF FAMILY ALLOWANCE. MAY BASIC ALLOWANCE FOR QUARTERS OF $67.50 PER MONTH PROVIDED IN SECTION 302(F) OF THE ACT BE PAID THE SERGEANT? "B. SAME CIRCUMSTANCES EXCEPT THAT FAMILY ALLOWANCE BENEFITS ARE SAVED TO THE SERGEANT UNDER THE PROVISIONS OF SECTION 515(B) OF THE ACT. SHOULD THE SERGEANT'S TOTAL COMPENSATION BE REDUCED BY $67.50 AS PROVIDED BY THE FORTH PROVISO OF SECTION 515(B) OF THE ACT?"

ARMY REGULATIONS 350-950, DECEMBER 20, 1949, "EDUCATION OF DEPENDENTS PROGRAM," PARAGRAPH 4B(1) PROVIDES:

"APPROPRIATED FUNDS ALLOTTED FOR THIS PURPOSE WILL BE USED TO PROVIDE ONLY ELEMENTARY AND SECONDARY EDUCATION (GRADES 1 THROUGH 12) TO ELIGIBLE DEPENDENTS AS DEFINED IN (2) BELOW, AND MAY BE LIMITED TO A SPECIFIED MAXIMUM AMOUNT OF SUCH FUNDS THAT CAN BE SPENT FOR EACH ELIGIBLE DEPENDENT IN ANY ONE FISCAL YEAR."

THE ABOVE REGULATIONS MAKE NO PROVISION FOR THE CARE OR EDUCATION OF CHILDREN OF PRE-SCHOOL AGE. HENCE, IT APPEARS THAT DAY NURSERY SCHOOLS ARE NOT COMPREHENDED IN THE ABOVE PROGRAM AND THAT THE SALARIES OF ATTENDANTS AT SUCH SCHOOLS ARE NOT PAID BY THE GOVERNMENT FROM APPROPRIATED FUNDS. ON THAT BASIS QUESTION 3A IS ANSWERED IN THE NEGATIVE AND QUESTION 3B IS ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWERS TO QUESTION 1.

QUESTION 4 IS AS FOLLOWS:

"4A. THE WIFE OF A SERGEANT FIRST CLASS OCCUPIES A ROOM IN THE POST EXCHANGE OF A MILITARY POST WHERE SHE IS EMPLOYED. THE ROOM IS CONSIDERED AS A PART OF THE SALARY SHE RECEIVES AND NO RENT IS CHARGED. THE SERGEANT FIRST CLASS IS FURNISHED QUARTERS FOR HIMSELF IN THE BARRACKS AND HIS WIFE IS NOT IN RECEIPT OF FAMILY ALLOWANCE BENEFITS. MAY THE BASIC ALLOWANCE FOR QUARTERS OF $67.50 PER MONTH PROVIDED FOR IN THE SECTION 302(F) OF THE ACT BE PAID THE SERGEANT FIRST CLASS?

"B. SAME CIRCUMSTANCES EXCEPT THAT FAMILY ALLOWANCE BENEFITS ARE SAVED TO THE SERGEANT FIRST CLASS UNDER SECTION 515(B) OF THE ACT. SHOULD THE SERGEANT FIRST CLASS' TOTAL COMPENSATION BE REDUCED BY $67.50 UNDER THE FOURTH PROVISO OF SECTION 515(B) OF THE ACT?"

IT IS NOT STATED THAT THE BUILDING IN WHICH THE ROOM OCCUPIED BY THE ENLISTED MAN'S WIFE IS LOCATED IS THE PROPERTY OF THE POST EXCHANGE ITSELF. HENCE, IT APPEARS THAT SHE OCCUPIES GOVERNMENT-OWNED OR CONTROLLED QUARTERS AND IT APPEARS ALSO THAT SUCH OCCUPANCY IS NOT ON A RENTAL BASIS EXPRESSLY AUTHORIZED BY LAW.

AN ARMY POST EXCHANGE IS A VOLUNTARY, UNINCORPORATED COOPERATIVE ASSOCIATION OF ARMY ORGANIZATIONS-- A KIND OF COOPERATIVE STORE-- IN WHICH ALL SHARE THE BENEFITS AND ALL ASSUME A POSITION ANALOGOUS TO THAT OF PARTNERS. DIGEST OF OPINIONS, JUDGE ADVOCATE GENERAL OF THE ARMY, 1912- 1940, PAGE 933. SUCH ARMY POST EXCHANGES ARE CONSIDERED TO BE INSTRUMENTALITIES OF THE GOVERNMENT AND THE CIVILIANS EMPLOYED THEREBY HAVE BEEN REGARDED AS "HOLDING A CIVILIAN OFFICER OR POSITION *** UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406. 24 COMP.GEN. 771. HOWEVER, SUCH CIVILIAN EMPLOYEES ARE NOT PAID FROM APPROPRIATED FUNDS NOR WOULD IT APPEAR THAT ANY AMOUNT DEDUCTED FROM THEIR SALARY FOR THE USE OF QUARTERS IN A GOVERNMENT BUILDING ACTUALLY IS PAID TO THE GOVERNMENT. UNDER SUCH CIRCUMSTANCES THERE WOULD APPEAR TO BE NO BASIC DIFFERENCE, INSOFAR AS THE OCCUPANCY OF QUARTERS AND PAYMENT OF RENTAL AND QUARTERS ALLOWANCE ARE CONCERNED, BETWEEN THE SITUATION PRESENTED IN QUESTION 4 AND THE SITUATION PRESENTED IN QUESTION 3.

ACCORDINGLY, QUESTION 4A IS ANSWERED IN THE NEGATIVE, AND QUESTION 4B IS ANSWERED IN THE AFFIRMATIVE.

"5A. A SERGEANT IS STATIONED AT A PLACE WHERE QUARTERS ARE NOT FURNISHED HIM. HIS WIFE OCCUPIES THE SERVANT'S ROOM OF A COMMISSIONED OFFICER'S QUARTERS AT A NEARBY MILITARY POST AS PART RENUMERATION FOR HER SERVICES AS COOK AND LAUNDRESS. THE WIFE IS NOT IN RECEIPT OF FAMILY ALLOWANCE BENEFITS AND IS CHARGED NO RENT. SHOULD BASIC ALLOWANCE FOR QUARTERS OF $67.50 BE PAID TO THE SERGEANT?

"B. SAME CIRCUMSTANCES EXCEPT THAT FAMILY ALLOWANCE BENEFITS ARE SAVED TO THE SERGEANT UNDER SECTION 515(B) OF THE ACT. SHOULD THE SERGEANT'S TOTAL COMPENSATION BE REDUCED BY $67.50 UNDER THE FOURTH PROVISO OF SECTION 151(B) OF THE ACT?"

IN 22 COMP.GEN. 955 AND 23 COMP.GEN. 216 IT WAS HELD, IN EFFECT, THAT WHERE AN OFFICER'S ONLY DEPENDENT WAS A WIFE WHO WAS IN THE MILITARY OR NAVAL SERVICE, AND THUS ENTITLED TO QUARTERS IN KIND OR TO AN ALLOWANCE IN LIEU THEREOF IN HER OWN RIGHT, THE OFFICER, IF NOT FURNISHED QUARTERS FOR HIMSELF, WAS ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS. IN SUCH A SITUATION THE OBLIGATION UPON THE GOVERNMENT TO FURNISH QUARTERS OR AN ALLOWANCE IN LIEU THEREOF TO THE DEPENDENT AROSE BECAUSE OF HER MILITARY OR NAVAL STATUS, IRRESPECTIVE OF HER MARITAL STATUS AND HENCE, HER HUSBAND'S RIGHT TO RENTAL ALLOWANCE WAS ALSO FOR DETERMINATION IRRESPECTIVE OF HIS MARITAL STATUS. HOWEVER, THOSE DECISIONS ARE NOT FOR APPLICATION WHERE ONLY THE HUSBAND OR WIFE IS IN THE MILITARY SERVICE.

IN THE PRESENT CASE, THE ENLISTED MAN, BEING AN ENLISTED MAN WITH DEPENDENTS, IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $67.50 PER MONTH UNLESS ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO HIS RANK, GRADE, OR RATING, AND ADEQUATE FOR HIMSELF AND HIS DEPENDENT. SECTION 302(B) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. IT SEEMS APPARENT THAT THE ONE ROOM OCCUPIED BY THE ENLISTED MAN'S WIFE INCIDENT TO HER EMPLOYMENT AS A MAID, AND NOT OCCUPIED BY THE ENLISTED MAN, MAY NOT BE CONSIDERED AS EITHER ASSIGNED TO OR ADEQUATE FOR HIM AND HIS DEPENDENT WITHIN THE MEANING OF THE RESTRICTIVE PROVISIONS CONTAINED IN THE SAID SECTION 302(B), AND, HENCE, IT IS CONCLUDED THAT SUCH PROVISIONS ARE NOT APPLICABLE TO HIS CASE.

ACCORDINGLY, QUESTION 5A IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 5B IS ANSWERED IN THE NEGATIVE.