A-6262, DECEMBER 27, 1924, 4 COMP. GEN. 571

A-6262, DECEMBER 27, 1924, 4 COMP. GEN. 571

RENTAL ALLOWANCE - OFFICERS OF THE NATIONAL GUARD AND RESERVE CORPS OFFICERS OF THE NATIONAL GUARD AND RESERVE CORPS UNDERGOING TRAINING ARE, UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, AND THE EXECUTIVE ORDER OF AUGUST 13, 1924, PURSUANT THERETO, ENTITLED TO RENTAL ALLOWANCE UNDER THE FOLLOWING CONDITIONS, THE STATION TO WHICH ASSIGNED FOR THE TRAINING PERIOD NOT BEING A PERMANENT STATION: OFFICERS OF THE NATIONAL GUARD ATTENDING ENCAMPMENTS UNDER SECTION 94, OR CAMPS OF INSTRUCTION UNDER SECTION 97 OF THE ACT OF JUNE 3, 1916, 39 STAT. 206 AND 207, FOR PERIODS OF 30 DAYS OR LESS, OR ATTENDING SERVICE SCHOOLS FOR PERIODS OF THREE MONTHS OR LESS UNDER SECTION 99 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035. (MODIFIED AND AMPLIFIED BY 4 COMP. GEN. 661; ID. 784.) MEMBERS OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 60 DAYS OR LESS UNDER SECTION 37-A OF THE ACT OF JUNE 3, 1916, AS ADDED BY SECTION 32 OF THE ACT OF JUNE 4, 1920, 41 STAT. 776.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 27, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 8, 1924, REQUESTING DECISION OF A QUESTION STATED AS FOLLOWS:

* * * WHETHER IN THE CASE OF A NATIONAL GUARD OR RESERVE OFFICER THE FACT THAT HE HAS NO PERMANENT STATION WILL, WHEN DULY CERTIFIED IN HIS PAY VOUCHER, BE A SUFFICIENT BASIS FOR THE PAYMENT OF RENTAL ALLOWANCE TO SUCH AN OFFICER WHEN TEMPORARILY ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY UNDER THE PROVISIONS OF SECTIONS 37A, 94, 97 OR 99 OF THE NATIONAL DEFENSE ACT AS AMENDED.

THE LEGALITY OF THE PAYMENT WILL DEPEND UPON THE FACTS OF THE CASE AND NOT MATTERS CERTIFIED TO BY THE OFFICER UNLESS THE CERTIFICATES CONFORM TO THE FACTS. IT IS APPREHENDED THAT WHAT IS DESIRED IS DECISION WHETHER MEMBERS OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY FOR TRAINING UNDER SECTION 37-A OF THE NATIONAL DEFENSE ACT FOR SHORT PERIODS NOT EXCEEDING 60 DAYS, AND MEMBERS OF THE NATIONAL GUARD ATTENDING ENCAMPMENTS FOR PERIODS OF APPROXIMATELY 15 DAYS, OR ATTENDING CAMPS OF INSTRUCTION OF LIMITED DURATION UNDER SECTION 97, OR ATTENDING SERVICE SCHOOLS FOR A COURSE OF INSTRUCTION OF DEFINITE AND LIMITED DURATION UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT AS AMENDED, MAY BE PAID RENTAL ALLOWANCE AS NOT HAVING BEEN ASSIGNED ADEQUATE QUARTERS AT A PERMANENT STATION. THE REASON FOR THE INQUIRY IS PROMPTED BY THE FACT THAT IT HAS BEEN HELD THE HOME OF THE OFFICER IS NOT A MILITARY STATION, 2 COMP. GEN. 243, AND THE DUTY AT THE TRAINING CAMP OR SCHOOL BEING TEMPORARY IN THAT THE ORDER IN TERMS FIXES ITS DURATION THE OFFICER THUS DOES NOT HAVE A PERMANENT STATION FROM WHICH HE IS TEMPORARILY ABSENT WHILE ATTENDING TRAINING OR INSTRUCTION CAMP, OR SERVICE SCHOOL.

SECTION 37-A OF THE NATIONAL DEFENSE ACT, ADDED BY SECTION 32 OF THE ACT OF JUNE 4, 1920, 41 STAT. 776, AUTHORIZED ACTIVE DUTY FOR OFFICERS OF THE RESERVE CORPS "AT ANY TIME AND FOR ANY PERIOD" TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE WITH THE QUALIFICATION THAT "EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN 15 DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT.'

SO, ALSO, THE PERIODS OF TRAINING OR INSTRUCTION UNDER SECTIONS 94 AND 97 OF THE ACT OF JUNE 3, 1916, 39 STAT. 206 AND 207 AND SECTION 99 AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1035, ARE NOT IN TERMS LIMITED BY THESE SECTIONS. OBVIOUSLY, WHILE PERIODS OF TRAINING AND INSTRUCTION ARE CONTEMPLATED FOR LIMITED PERIODS ONLY AND THE APPROPRIATIONS HAVE IN THE PAST EFFECTIVELY LIMITED THE PERIOD, THE STATUTES DO NOT IN TERMS LIMIT THE PERIOD OF INSTRUCTION. WHAT IS SAID HEREIN MUST THEREFORE BE UNDERSTOOD AS HAVING REFERENCE TO DEFINITELY LIMITED PERIODS OF TRAINING OR INSTRUCTION.

SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED AND REENACTED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, SO FAR AS HERE MATERIAL PROVIDES.

EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF 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. THE AMOUNT OF SUCH MONEY ALLOWANCE FOR THE RENTAL OF QUARTERS SHALL BE DETERMINED BY THE RATE FOR ONE ROOM TO BE FIXED BY THE PRESIDENT FOR EACH FISCAL YEAR IN ACCORDANCE WITH A CERTIFICATE FURNISHED BY THE SECRETARY OF LABOR SHOWING THE COST OF RENTS IN THE UNITED STATES FOR THE PRECEDING CALENDAR YEAR AS COMPARED WITH RENTS FOR THE CALENDAR YEAR 1922. SUCH RATE FOR ONE ROOM IS HEREBY FIXED AT $20 PER MONTH FOR THE FISCAL YEAR 1923, AND THIS RATE SHALL BE THE MAXIMUM AND SHALL BE USED BY THE PRESIDENT AS THE STANDARD IN FIXING THE SAME OR LOWER RATES FOR SUBSEQUENT YEARS.

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

PARAGRAPH 1 (E) OF THE EXECUTIVE ORDER OF AUGUST 13, 1924, PROVIDES:

THE TERM "PERMANENT STATION" AS USED IN THIS ACT SHALL BE CONSTRUED TO MEAN THE PLACE ON SHORE WHERE AN OFFICER IS ASSIGNED TO DUTY, OR THE HOME YARD OR THE HOME PORT OF A VESSEL ON BOARD WHICH AN OFFICER IS REQUIRED TO PERFORM DUTY, UNDER ORDERS IN EACH CASE WHICH DO NOT IN TERMS PROVIDE FOR THE TERMINATION THEREOF; AND ANY STATION ON SHORE OR ANY RECEIVING SHIP WHERE AN OFFICER IN FACT OCCUPIES WITH HIS DEPENDENTS PUBLIC QUARTERS ASSIGNED TO HIM WITHOUT CHARGE SHALL ALSO BE DEEMED DURING SUCH OCCUPANCY TO BE HIS PERMANENT STATION WITHIN THE MEANING OF THIS ACT.

SECTION 14 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES:

THAT OFFICERS OF THE NATIONAL GUARD RECEIVING FEDERAL PAY, EXCEPT FOR ARMORY DRILL, AND RESERVE OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHILE ON ACTIVE DUTY SHALL RECEIVE THE ALLOWANCES HEREIN PRESCRIBED FOR OFFICERS OF THE REGULAR SERVICES IN SECTIONS 5 AND 6 OF THIS ACT. * * *

THE FACT THAT THE TERMS OF AN ORDER ASSIGNING AN OFFICER TO A STATION DO NOT PROVIDE FOR TERMINATION THEREOF IS NOT NECESSARILY CONCLUSIVE OF THE PERMANENCY OF THE STATION, AS MIGHT SEEM TO BE THE DEFINITION SET FORTH IN THE EXECUTIVE ORDER. FOR EXAMPLE, BY THE ACT OF MARCH 4, 1915, 38 STAT. 1078, NO OFFICER OR ENLISTED MAN SHALL, EXCEPT UPON HIS OWN REQUEST, BE REQUIRED TO SERVE IN A SINGLE TOUR OF DUTY FOR MORE THAN TWO YEARS IN THE PHILIPPINE ISLANDS NOR MORE THAN THREE YEARS IN THE PANAMA CANAL ZONE. OBVIOUSLY, AN ORDER TO DUTY AT EITHER OF THE PLACES NAMED MUST BE UNDERSTOOD AS LIMITED IN DURATION BY THIS STATUTE. SO, ALSO, MERE CLERICAL FAILURE TO INDICATE THE TERMINATION OF AN ASSIGNMENT OBVIOUSLY TEMPORARY IN ITS NATURE, OR THE INADVERTENT INCLUSION OF A LIMITING DATE IN AN ORDER DESIGNED TO ASSIGN AN OFFICER PERMANENTLY, WOULD NOT CONSTITUTE THE STATION TEMPORARY OR PERMANENT. THE DEFINITION COULD WELL BE AMPLIFIED IF CONFUSION AND CONFLICT BETWEEN THE LAW AND THE REGULATION ARE TO BE AVOIDED. FOR THE PURPOSE OF THIS DECISION IT WILL BE UNDERSTOOD THAT IN NO CASE WILL THE ORDER FIX A PERIOD OF ACTIVE DUTY IN EXCESS OF 60 DAYS UNDER SECTION 37-A, A PERIOD OF TRAINING OR INSTRUCTION IN EXCESS OF 30 DAYS UNDER SECTION 94 OR 97, NOR IN EXCESS OF 3 MONTHS UNDER SECTION 99.

IT MIGHT BE SUGGESTED THAT AS THE OFFICERS ARE IN THE STATUS ENTITLING TO PAY FOR A LIMITED PERIOD AND THE STATION FIXED IS TO CONTINUE DURING THAT ENTIRE PERIOD IT IS AS PERMANENT A STATION IN A MILITARY SENSE AS THEY CAN HAVE, THE ORDER MERELY FIXING THE DURATION OF DUTY, TRAINING, OR INSTRUCTION. THIS, HOWEVER, WOULD BE NARROWER THAN THE LAW CONTEMPLATES, AS THE AMENDED LAW CLEARLY FIXED THE RENTAL ALLOWANCE TO ENABLE THE OFFICER TO ARRANGE HIS PERMANENT LIVING CONDITIONS, EITHER ON THE BASIS OF RENTAL ALLOWANCE OR THE ASSIGNMENT OF ADEQUATE PUBLIC QUARTERS. RESERVE OFFICERS OR NATIONAL GUARD OFFICERS MUST MAINTAIN THEIR PERMANENT LIVING ARRANGEMENTS, AND THE DUTY TO WHICH ASSIGNED IS BOTH IN FACT AND UNDER THE LAW TEMPORARY, THE STATION ASSIGNED FOR THE PURPOSE OF THAT DUTY NOT BEING A PERMANENT STATION WITHIN THE MEANING OF THE LAW. RENTAL ALLOWANCE IS PROPERLY PAYABLE IN SUCH CASES.