B-87300, DECEMBER 26, 1950, 30 COMP. GEN. 246

B-87300, DECEMBER 26, 1950, 30 COMP. GEN. 246

PAY - ADDITIONAL - RESERVE OFFICERS ON ACTIVE DUTY AS INTERNS IN PRIVATE HOSPITALS RESERVE OFFICERS ON ACTIVE DUTY AS INTERNS IN PRIVATE HOSPITALS WHO ARE PAID COMPENSATION BY THE HOSPITALS FOR SERVICES NORMALLY PERFORMED BY THEM AS RESERVE OFFICERS ON ACTIVE DUTY MAY NOT RETAIN SUCH COMPENSATION IN VIOLATION OF THE ADDITIONAL COMPENSATION RESTRICTIONS OF 18 U.S.C. 1914; ALSO, EXCEPT FOR INCREASED SUBSISTENCE ALLOWANCE FOR DEPENDENTS AS SAVED TO CERTAIN OFFICERS UNDER THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, SAID RESERVE OFFICERS MAY NOT BE PAID RENTAL OR SUBSISTENCE ALLOWANCE BY THE GOVERNMENT WHILE AT THE SAME TIME RECEIVING QUARTERS AND SUBSISTENCE IN KIND FROM THE HOSPITALS. 29 COMP. GEN. 163, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, DECEMBER 26, 1950:

THERE HAS BEEN CONSIDERED YOUR PREDECESSOR'S LETTER OF MAY 5, 1950, REQUESTING RECONSIDERATION AND MODIFICATION OF DECISION OF THIS OFFICE DATED OCTOBER 6, 1949, B-87300 (29 COMP. GEN. 163), RELATING TO THE RIGHT OF RESERVE OFFICERS ON ACTIVE DUTY AS OFFICER-INTERNS IN NON GOVERNMENT HOSPITALS, WHO ARE COMPENSATED AND FURNISHED QUARTERS AND SUBSISTENCE WITHOUT CHARGE BY SUCH HOSPITALS, TO RECEIVE RENTAL AND SUBSISTENCE ALLOWANCES AND TO RETAIN THE COMPENSATION RECEIVED FROM THE HOSPITALS IN ADDITION TO THEIR ACTIVE-DUTY PAY AS RESERVE OFFICERS.

ON THE BASIS OF DECISIONS OF THE UNITED STATES COURT OF CLAIMS, TO THE EFFECT THAT THE STATUTORY ALLOWANCE FOR QUARTERS FOR OFFICERS OF THE ARMED SERVICES IS PROVIDED AS REIMBURSEMENT FOR EXPENSES INCURRED FOR PRIVATE QUARTERS WHERE THE GOVERNMENT FAILS TO PROVIDE PUBLIC QUARTERS, AND ON THE BASIS OF DECISIONS OF THIS OFFICE THAT AN OFFICER FURNISHED QUARTERS WITHOUT CHARGE BY REASON OF HIS MILITARY DUTY IS NOT ENTITLED TO A RENTAL ALLOWANCE EVEN THOUGH THE QUARTERS OCCUPIED WERE NOT FURNISHED DIRECTLY BY THE UNITED STATES (21 COMP. GEN. 1065; 27 ID. 479), IT WAS HELD IN DECISION OF AUGUST 11, 1949, 29 COMP. GEN. 67, THAT AN ARMY MEDICAL CORPS RESERVE OFFICER WITHOUT DEPENDENTS WHO WAS FURNISHED QUARTERS WITHOUT CHARGE BY A CIVILIAN HOSPITAL WHERE HE WAS SERVING ON ACTIVE MILITARY DUTY AS AN OFFICER-INTERN UNDER THE CIVILIAN INTERN PROGRAM OF THE DEPARTMENT OF THE ARMY, INSTITUTED UNDER THE ARMY 1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, 61 STAT. 776, WAS NOT ENTITLED TO A RENTAL ALLOWANCE. IN THE DECISION OF OCTOBER 6, 1949, SUPRA, IT WAS HELD, LIKEWISE, THAT NAVAL RESERVE MEDICAL OFFICERS SIMILARLY SITUATED IN HOSPITALS WHERE QUARTERS AND SUBSISTENCE WERE FURNISHED WITHOUT CHARGE WERE NOT ENTITLED TO RENTAL ALLOWANCE OR, BY ANALOGY, TO SUBSISTENCE ALLOWANCE, THE FURNISHING OF SUBSISTENCE IN KIND AT NO EXPENSE TO THE OFFICER (THUS RELIEVING HIM OF THE NECESSITY FOR INCURRING PERSONAL SUBSISTENCE EXPENSES) BEING CONSIDERED AS DONE ON BEHALF OF THE GOVERNMENT. WITH RESPECT TO SUCH DECISIONS GENERALLY, I BELIEVE THERE SHOULD BE AGREEMENT WITH THE SIMPLE PROPOSITION THAT WHERE THE GOVERNMENT PAYS MILITARY OFFICERS ON ACTIVE DUTY THEIR FULL PAY AND ALLOWANCES WHILE SERVING AS INTERNS FOR CIVILIAN HOSPITALS, ANY RECOMPENSE FROM THE HOSPITALS FOR SUCH SERVICES PROVIDED AND PAID FOR BY THE GOVERNMENT SHOULD ACCRUE TO THE GOVERNMENT AND NOT AS A BONUS TO THE OFFICERS.

IN CONNECTION WITH THE CONCLUSIONS REACHED IN THE DECISION OF OCTOBER 6, 1949, YOUR DEPARTMENT'S LETTER OF MAY 5, 1950, REFERS TO THE LANGUAGE OF SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, PROVIDING THAT EACH COMMISSIONED OFFICER ON THE ACTIVE LIST, OR ON ACTIVE DUTY, SHALL BE ENTITLED "AT ALL TIMES" TO A MONEY ALLOWANCE FOR SUBSISTENCE IN ADDITION TO HIS PAY, AND TO THE SIMILAR LANGUAGE OF SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS RAISING A QUESTION WHETHER SUCH INDIVIDUALS, EITHER WITH OR WITHOUT DEPENDENTS, LAWFULLY MAY BE DENIED S SUBSISTENCE ALLOWANCE FROM THE GOVERNMENT BECAUSE SUBSISTENCE IS FURNISHED THEM BY A NON-FEDERAL AGENCY. THE LETTER REFERS, ALSO TO A DIRECTIVE ISSUED ON SEPTEMBER 20, 1949, BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS TO THE OFFICER IN CHARGE, NAVY ACCOUNTS DISBURSING OFFICE (BASED ON THE HOLDING IN 29 COMP. GEN. 67), INFORMING HIM THAT EFFECTIVE AUGUST 1, 1949, THE CREDIT OF RENTAL ALLOWANCES TO NAVAL OFFICERS ASSIGNED TO DUTY AS INTERNS AT CIVILIAN HOSPITALS, AND WHO ARE FURNISHED QUARTERS WITHOUT CHARGE, SHOULD BE DISCONTINUED. RECONSIDERATION OF THE SAID DECISION OF OCTOBER 6, 1949, IS REQUESTED, WITH A VIEW TO EFFECTING THE FOLLOWING MODIFICATIONS:

(A) THAT THAT PORTION OF SAID DECISION RELATING TO SUBSISTENCE ALLOWANCES BE MODIFIED TO PERMIT OFFICER-INTERNS, WITH AND WITHOUT DEPENDENTS, WHO ARE ENTITLED TO SUBSISTENCE ALLOWANCES PRESCRIBED PURSUANT TO SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942 (UNDER THE SAVED PAY PROVISIONS OF SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949), TO RECEIVE A SUBSISTENCE ALLOWANCE IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTION 5.

(B) THAT THAT PORTION OF SAID DECISION RELATING TO QUARTERS ALLOWANCES BE MODIFIED SO AS TO VALIDATE OTHERWISE PROPER PAYMENTS OF QUARTERS ALLOWANCES MADE PRIOR TO AUGUST 1, 1949, TO OFFICER-INTERNS WITHOUT DEPENDENTS.

WHERE QUARTERS ARE FURNISHED BY THE GOVERNMENT TO OFFICER PERSONNEL, SUCH QUARTERS GENERALLY ARE FURNISHED WITHOUT CHARGE. WHERE SUBSISTENCE IS FURNISHED BY THE GOVERNMENT TO OFFICERS, HOWEVER, CHARGE FOR THE VALUE THEREOF ALWAYS IS MADE AGAINST THE OFFICER. IN RECOGNITION OF THAT DISTINCTION SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, IN AUTHORIZING ALLOWANCES FOR SUBSISTENCE AND QUARTERS, RESPECTIVELY, PROVIDE THAT OFFICERS SHALL BE ENTITLED TO THE PRESCRIBED SUBSISTENCE ALLOWANCE AT ALL TIMES, AND THAT THEY SHALL BE ENTITLED TO A RENTAL ALLOWANCE AT ALL TIMES EXCEPT UNDER CERTAIN CIRCUMSTANCES WHERE QUARTERS ARE FURNISHED BY THE GOVERNMENT. SEE ALSO SECTIONS 301 AND 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812. THE INTENT OF SUCH STATUTORY PROVISIONS IS TO PROVIDE THE MEANS FOR OBTAINING QUARTERS AND SUBSISTENCE NOT FURNISHED BY THE GOVERNMENT AND IT SEEMS APPARENT THAT THE DIFFERENCE IN THE WORDING OF THE AUTHORIZATIONS FOR QUARTERS AND SUBSISTENCE ALLOWANCES STEMS DIRECTLY FROM THE INDICATED DISTINCTION BETWEEN THE METHODS EMPLOYED BY THE GOVERNMENT IN FURNISHING QUARTERS AND SUBSISTENCE WHEN THOSE ITEMS ARE FURNISHED IN KIND. TO CONCLUDE THAT THE UNUSUAL CIRCUMSTANCES HERE INVOLVED, WHERE SUBSISTENCE IS FURNISHED WITHOUT CHARGE TO OFFICERS ON BEHALF OF THE GOVERNMENT THUS RELIEVING THEM OF THE NECESSITY FOR INCURRING EXPENSES THEREFOR, WOULD NOT REQUIRE SOME ADJUSTMENT OF THEIR ACCOUNTS BECAUSE OF THE LITERAL STATUTORY WORDING WOULD SEEM CLEARLY TO DEFEAT THE LEGISLATIVE INTENT IN THE MATTER. WERE THE SITUATION TO ARISE WHERE AN OFFICER IN THE PERFORMANCE OF HIS NORMAL MILITARY DUTIES WAS FURNISHED SUBSISTENCE IN KIND BY THE GOVERNMENT WITHOUT CHARGE, SUCH LEGISLATIVE INTENT OBVIOUSLY WOULD NOT BE SERVED UNLESS ADJUSTMENT WERE ACCOMPLISHED ON SOME BASIS TO CHARGE HIM WITH THE VALUE OF THE SUBSISTENCE SO FURNISHED. CONSEQUENTLY, IT IS DEEMED PROPER IN THE SITUATION HERE CONSIDERED, WHERE SUBSISTENCE IS FURNISHED TO OFFICERS ON BEHALF OF THE GOVERNMENT--- WHICH IS TANTAMOUNT TO THE FURNISHING OF SUBSISTENCE BY THE GOVERNMENT--- TO REQUIRE A CHARGE AGAINST THE OFFICER OF THE REASONABLE VALUE OF THE SUBSISTENCE SO FURNISHED. AND WHILE SUCH REASONABLE VALUE MIGHT BE MORE, OR LESS, THAN THE AMOUNT OF THE SUBSISTENCE ALLOWANCE, SUCH ALLOWANCE IS DEEMED TO BE THE BEST MEASURE OF REASONABLE VALUE IN THE CIRCUMSTANCES AND IN THE ABSENCE OF A BETTER MEASURE. IN THE DECISION OF OCTOBER 6, 1949, WHICH WAS CONCERNED ONLY WITH OFFICERS SUBSISTED WITHOUT CHARGE BY THE HOSPITALS WHERE SERVING SHOULD NOT CONCURRENTLY BE PAID A SUBSISTENCE ALLOWANCE. IN THAT LIGHT, MODIFICATION OF THE DECISION OF OCTOBER 6, 1949, ON THE BASIS REQUESTED IN THE SAID LETTER (PARAGRAPH (A), QUOTED ABOVE) IS NOT CONSIDERED AS WARRANTED. WITH REGARD TO OFFICERS WHO HAVE BEEN OR ARE BEING PAID AN INCREASED SUBSISTENCE ALLOWANCE ON ACCOUNT OF DEPENDENTS UNDER PRIOR LAW OR AS PART OF THEIR SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, WHILE BEING FURNISHED SUBSISTENCE FOR THEMSELVES WITHOUT CHARGE BY HOSPITALS WHERE SERVING, IT WOULD APPEAR PROPER TO CONSIDER THEM ENTITLED TO CREDIT FOR THE DIFFERENCE BETWEEN THE SUBSISTENCE ALLOWANCE AUTHORIZED FOR OFFICERS OF THEIR RANK WITH DEPENDENTS AND THAT AUTHORIZED FOR SUCH OFFICERS WITHOUT DEPENDENTS.

SINCE FREE QUARTERS FURNISHED TO OFFICER-INTERNS BY HOSPITALS ARE CONSIDERED AS HAVING BEEN FURNISHED ON BEHALF OF THE GOVERNMENT, THE LAW DOES NOT AUTHORIZE THE PAYMENT OF A RENTAL ALLOWANCE TO AN OFFICER WITHOUT DEPENDENTS SO QUARTERED, HIS SITUATION BEING SUBSTANTIALLY THE SAME AS THAT OF ANY OFFICER WITHOUT DEPENDENTS WHO IS FURNISHED GOVERNMENT QUARTERS INCIDENT TO THE PERFORMANCE OF HIS DUTIES. THIS OFFICE, THEREFORE, IS WITHOUT AUTHORITY TO VALIDATE PAYMENTS OF RENTAL ALLOWANCES ON THE BASIS PROPOSED IN THE ABOVE QUOTED PARAGRAPHS (B) OF YOUR LETTER. HOWEVER, IN VIEW OF THE FACT THAT CASES CONSIDERED BY THIS OFFICE PRIOR TO THE DECISION OF AUGUST 11, 1949 (29 COMP. GEN. 67), CONCERNING THE RIGHT OF OFFICERS TO RENTAL ALLOWANCE WHILE OCCUPYING WITHOUT CHARGE QUARTERS FURNISHED ON BEHALF OF THE GOVERNMENT, GENERALLY HAVE INVOLVED SITUATIONS WHERE THE QUARTERS HAVE BEEN FURNISHED BY FOREIGN GOVERNMENTS RATHER THAN BY DOMESTIC INSTITUTIONS, CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF DISBURSING OFFICERS FOR OTHERWISE PROPER RENTAL ALLOWANCE PAYMENTS MADE TO OFFICER INTERNS PRIOR TO AUGUST 1, 1949, IN CASES SUCH AS THOSE HERE INVOLVED PROVIDED IT IS SATISFACTORILY ESTABLISHED THAT THE DISBURSING OFFICERS ARE UNABLE TO COLLECT THE OVERPAYMENTS, BUT OFFICERS WITHOUT DEPENDENTS RECEIVING SUCH PAYMENTS WILL BE CONSIDERED AS INDEBTED TO THE UNITED STATES TO THE EXTENT OF SUCH PAYMENTS.

THE VIEW WAS EXPRESSED IN THE DECISION OF OCTOBER 6, 1949, SUPRA, THAT THE RECEIPT BY OFFICERS OF COMPENSATION FROM HOSPITALS WHERE THEY ARE ON ACTIVE DUTY AS INTERNS, UNLESS SUCH COMPENSATION IS CONTRIBUTED OUT OF THE TREASURY OF A STATE, COUNTY, OR MUNICIPALITY WITHIN THE MEANING OF THE PROVISIONS OF 18 U.S. CODE, SUPP. II, 1914, WOULD BE UNLAWFUL UNDER THAT STATUTE AND THAT AMOUNTS SO RECEIVED SHOULD BE CONSIDERED AS RECEIVED FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT AND, THEREFORE, SHOULD BE COLLECTED FROM THE OFFICERS BY DEDUCTION FROM THEIR PAY, OR OTHERWISE, AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. IT IS STATED THAT INSTRUCTIONS HAVE BEEN ISSUED BY THE DEPARTMENT OF THE NAVY WHICH NOW PRECLUDE OFFICER-INTERNS ASSIGNED TO OTHER THAN STATE, COUNTY, OR MUNICIPAL HOSPITALS FROM RECEIVING COMPENSATION FROM SUCH HOSPITALS SUBSEQUENT TO AUGUST 1, 1949. IN THAT CONNECTION IT IS STATED THAT THE CITED STATUTORY PROVISIONS WOULD APPEAR TO IMPOSE RESTRICTIONS OF A PENAL NATURE AND THAT NOTHING THEREIN CONTAINED EITHER AUTHORIZES OR JUSTIFIES A COLLECTION FROM THE OFFICERS CONCERNED OF AMOUNTS SO RECEIVED, BY CHECK AGE OF PAY OR OTHERWISE, REFERENCE BEING MADE TO THE ESTABLISHED PRINCIPLE THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, SET-OFF MAY NOT BE MADE AGAINST CURRENT COMPENSATION OF OFFICERS STILL IN THE FEDERAL SERVICE WITHOUT THEIR CONSENT. IN VIEW OF THOSE CONSIDERATIONS, FURTHER MODIFICATION IS REQUESTED OF THE DECISION OF OCTOBER 6, 1949, AS FOLLOWS:

(C) THAT THAT PORTION OF SAID DECISION RELATING TO THE RECEIPT OF COMPENSATION FROM PRIVATE HOSPITALS, NOT CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY OR MUNICIPALITY, BE MODIFIED TO THE EXTENT THAT YOUR REQUEST THAT ACTION BE INITIATED TO COLLECT FROM OFFICER-INTERNS FOR COVERING INTO THE UNITED STATES TREASURY AMOUNTS SO RECEIVED BY THEM PRIOR TO OCTOBER 1, 1949, BE WITHDRAWN.

THE PROVISIONS OF 18 U.S. CODE, SUPP. II, 1914 (ACT OF JUNE 25, 1948, 62 STAT. 793), REFERRED TO, ARE AS FOLLOWS:

WHOEVER, BEING A GOVERNMENT OFFICIAL OR EMPLOYEE, RECEIVES ANY SALARY IN CONNECTION WITH HIS SERVICE AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY; OR

WHOEVER, WHETHER A PERSON, ASSOCIATION, OR CORPORATION, MAKES ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENTS THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES---

SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH. ( JUNE 25, 1948, CH. 645, SEC. 1, 62 STAT. 793, EFF. SEPT. 1, 1948.) UNDER SUCH PROVISIONS THE RECEIPT OF ANY SALARY FROM PRIVATE HOSPITALS BY OFFICER-INTERNS INCIDENT TO THE PERFORMANCE OF THEIR DUTIES AS OFFICERS, UNLESS MADE FROM FUNDS CONTRIBUTED OUT OF THE TREASURY OF A STATE, COUNTY, OR MUNICIPALITY WITHIN THE MEANING OF THE STATUTE WOULD APPEAR TO BE UNLAWFUL UNLESS CONSIDERED AS GIVEN AND RECEIVED FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT. IN CONCLUDING IN THE DECISION OF OCTOBER 6, 1949, THAT THE PAYMENTS IN QUESTION SHOULD BE SO CONSIDERED AND THAT THE AMOUNTS OF ANY SUCH PAYMENTS SHOULD BE COLLECTED FROM THE OFFICERS, BY DEDUCTION FROM THEIR PAY OR OTHERWISE, THIS OFFICE WAS NOT UNMINDFUL OF THE CONSIDERATION THAT IN THE ABSENCE OF THE OFFICERS' CONSENT THERE MIGHT BE NO AUTHORITY TO INSTITUTE CHECK AGE AGAINST AN OFFICER'S PAY, PRIOR TO HIS SEPARATION FROM THE SERVICE, TO RECOVER PAYMENTS SO RECEIVED BY HIM FOR THE ACCOUNT OF THE GOVERNMENT, UNLESS COGNIZABLE UNDER SECTION 1766, REVISED STATUTES, 5 U.S.C. 82. HOWEVER, SINCE THE AMOUNTS SO PAID ARE TO BE VIEWED EITHER AS RECEIVED ON ACCOUNT OF THE GOVERNMENT OR ELSE IN VIOLATION OF THE CRIMINAL STATUTE, SUPRA, IT WAS AND IS ASSUMED THAT CONSENT TO CHECK AGE OF PAY TO THE EXTENT OF SUCH PAYMENTS WILL BE GIVEN IN THE MAJORITY OF INSTANCES. IN ANY CASE WHERE SUCH CONSENT IS NOT GIVEN, AND WHERE COLLECTION IS NOT OTHERWISE EFFECTED, A REPORT OF THE NAME OF THE OFFICER INVOLVED TOGETHER WITH ALL AVAILABLE INFORMATION CONCERNING HIS INDEBTEDNESS SHOULD BE FORWARDED TO THIS OFFICE FOR THE PURPOSE OF DEBT RECORDING, AND NOTATION OF THE INDEBTEDNESS ALSO SHOULD BE MAINTAINED IN OR WITH THE APPROPRIATE PAY RECORDS SO THAT OFFSET MAY BE MADE AGAINST ANY AMOUNTS FOUND DUE THE OFFICER UPON HIS ULTIMATE SEPARATION FROM THE SERVICE.