B-10437, FEBRUARY 6, 1941, 20 COMP. GEN. 432

B-10437, FEBRUARY 6, 1941, 20 COMP. GEN. 432

QUARTERS - RENTAL ALLOWANCE - RESERVE OFFICERS ON ACTIVE DUTY FOR LESS THAN SIX MONTHS WHERE A MEMBER OF THE OFFICERS' RESERVE CORPS IS ON ACTIVE DUTY WITH THE ARMY--- AS DISTINGUISHED FROM TRAINING FOR SHORT PERIODS--- THE STATION WHERE HE IS ASSIGNED FOR THE PERFORMANCE OF HIS DUTIES IS HIS PERMANENT STATION, AND, HENCE, IF HE IS ASSIGNED PUBLIC QUARTERS AT SUCH STATION AND IS WITHOUT DEPENDENTS, HE IS NOT ENTITLED TO RENTAL ALLOWANCE, EVEN THOUGH HIS ACTIVE DUTY IS LIMITED BY HIS ORDERS TO LESS THAN 6 MONTHS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, FEBRUARY 6, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 22, 1940, AS FOLLOWS (REFERRED TO IN YOUR LETTER OF JANUARY 29, 1941, FILE W.D. 240 ORG.1RES. (1-29-41) M):

IT IS DESIRED TO BRING TO YOUR ATTENTION A CONDITION ARISING IN CONNECTION WITH ALLOWANCES AUTHORIZED FOR RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR TRAINING, AND TO REQUEST YOUR CONSIDERATION AND MODIFICATION OF DECISIONS OF YOUR OFFICE WITH REFERENCE TO THE MATTER IN ORDER THAT THE WAR DEPARTMENT MAY PERFECT ITS TRAINING PLANS IN THE PRESENT EMERGENCY AND ISSUE NECESSARY REGULATIONS IN CONNECTION THEREWITH.

DURING THE PRESENT FISCAL YEAR IT WAS PLANNED TO ORDER A NUMBER OF RESERVE OFFICERS TO ACTIVE DUTY FOR A PERIOD OF SIX MONTHS, BUT BECAUSE OF DELAY IN THE PASSAGE OF THE ARMY APPROPRIATION ACT FOR THIS FISCAL YEAR, IT WAS NECESSARY TO CURTAIL THE PERIOD OF ACTIVE TRAINING FOR THESE RESERVE OFFICERS. THE SAME CONDITION, OF COURSE, MAY ARISE IN THE FUTURE.

THE ACT MAKING APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1940, 53 STAT. 614, PROVIDES IN PART AS FOLLOWS:

"* * * FOR TRANSPORTATION OF BAGGAGE, INCLUDING PACKING AND CRATING, OF RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS; * *

A REFERENCE TO THE COMMITTEE HEARINGS ON THIS ITEM INDICATES AN INTENTION ON THE PART OF THE CONGRESS TO LIMIT THE RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS OF RESERVE OFFICERS TO THOSE CASES WHERE THE DUTY TO WHICH SUCH OFFICERS WERE ORDERED WAS FOR SIX MONTHS OR MORE, ON THE THEORY PRESUMABLY THAT ACTIVE DUTY FOR PERIODS OF LESS THAN SIX MONTHS IS TO BE CONSIDERED TEMPORARY DUTY, AND, CONVERSELY, THAT A PERIOD OF DUTY FOR SIX MONTHS OR MORE IS TO BE CONSIDERED PERMANENT DUTY, FOR PURPOSES OF THESE ALLOWANCES.

THEREFORE, UNDER EXISTING REGULATIONS AND THE CURRENT APPROPRIATION ACT, RESERVE OFFICERS WHO WERE OR ARE ORDERED TO DUTY FOR LESS THAN SIX MONTHS ARE NOT ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS, INCLUDING PACKING AND CRATING, FROM AND TO THEIR HOMES. MOREOVER, OFFICERS IN THIS CLASS ARE NOT ENTITLED TO PAYMENT OF RENTAL ALLOWANCE IF QUARTERS ARE AVAILABLE FOR ASSIGNMENT TO THEM SINCE, UNDER EXISTING REGULATIONS BASED ON DECISIONS OF YOUR OFFICE HEREINAFTER CITED, A STATION IS DEEMED TO BE PERMANENT IF THE DUTY THEREAT EXCEEDS SIXTY DAYS GENERALLY, OR FOUR MONTHS IN THE CASE OF SERVICE SCHOOL PERSONNEL. SEE IN THIS CONNECTION 4 C.G. 571, 661, AND 784.

WHILE THE INTENT OF THE CONGRESS IN CONNECTION WITH THE SHIPMENT OF HOUSEHOLD EFFECTS IS BY THE LANGUAGE OF THE ABOVE-QUOTED PROVISION OF LAW MADE APPLICABLE SPECIFICALLY TO THIS CLASS OF ALLOWANCES, IT WOULD SEEM LOGICAL IN THE ABSENCE OF A DIFFERENT STATUTORY RULE FOR DETERMINING THE QUESTION OF THE PERMANENCY OF STATION SPECIFICALLY APPLICABLE TO RENTAL ALLOWANCE RIGHTS THAT THE SAME LIMITATION UNDERWHICH RESERVE OFFICERS ARE ORDERED TO ACTIVE DUTY SHOULD GOVERN; OTHERWISE, A RESERVE OFFICER ORDERED TO ACTIVE DUTY FOR MORE THAN SIXTY DAYS (OR FOUR MONTHS IN THE SERVICE SCHOOL PERSONNEL) AND YET WHOSE TOUR OF DUTY IS NOT FOR SIX MONTHS OR MORE, WOULD FIND HIMSELF, BY REASON OF THESE DIFFERING RULES, IN A POSITION OF HAVING QUARTERS ASSIGNED TO HIM AT HIS DUTY STATION, AND YET BE NOT AUTHORIZED BY LAW OR REGULATIONS TO SHIP HOUSEHOLD EFFECTS FOR SAID QUARTERS.

UNDER THE CIRCUMSTANCES AND SINCE IT APPEARS THERE IS NO STATUTORY RULE REQUIRING THE LIMITATIONS SET FORTH IN YOUR ABOVE CITED DECISIONS AS TO THE PERIOD OF ACTIVE DUTY OF RESERVE OFFICERS, IT IS REQUESTED THAT RECONSIDERATION BE GIVEN TO DECISIONS OF YOUR OFFICE ABOVE CITED WITH A VIEW TO THEIR MODIFICATION SO AS TO BRING THE RULINGS OF YOUR OFFICE WITH REFERENCE TO RENTAL ALLOWANCE INTO HARMONY WITH THE APPARENT INTENTION OF CONGRESS AS EXPRESSED IN THE LEGISLATION CONCERNING SHIPMENT OF BAGGAGE, AND IN ORDER THAT THE WAR DEPARTMENT MAY AMEND ITS REGULATIONS TO PROVIDE, IN EFFECT, THAT RESERVE OFFICERS UNDERGOING TRAINING ON ACTIVE DUTY FOR PERIODS OF LESS THAN SIX MONTHS ARE, UNLESS THEIR DEPENDENTS OCCUPY QUARTERS WITH THEM, ENTITLED TO RENTAL ALLOWANCES, THE STATIONS TO WHICH ASSIGNED FOR THE TRAINING PERIOD NOT BEING THEIR PERMANENT STATIONS.

SECTION 6 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, AS AMENDED, 37 U.S.C. 10, PROVIDES FOR THE PAYMENT OF A RENTAL ALLOWANCE TO OFFICERS OF THE ARMY ACCORDING TO GRADE OR PAY PERIOD, IN GREATER NUMBERS (EXCEPT SECOND LIEUTENANT), AND UNDER DIFFERENT CONDITIONS, TO OFFICERS WITH DEPENDENTS (AS DEFINED IN SECTION 4, AS AMENDED) THAN TO OFFICERS WITHOUT DEPENDENTS, AND EXCEPT AS PROVIDED IN THE FOURTH PARAGRAPH OF SAID SECTION 6. THE FOURTH PARAGRAPH OF THE SECTION IS AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOW 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.

SEE, ALSO, SECTION 14 OF THE JOINT SERVICE PAY ACT, 37 U.S.C. 23. UNDER THESE PROVISIONS OFFICERS WITH DEPENDENTS WOULD BE ENTITLED TO THE RENTAL ALLOWANCE PERTAINING TO THEIR GRADES OR PAY PERIODS UNLESS ASSIGNED QUARTERS ADEQUATE FOR THEMSELVES AND THEIR DEPENDENTS WITHOUT REFERENCE TO THE PERIOD OF ACTIVE DUTY. IN VIEW OF THE LARGE NUMBER OF RESERVE OFFICERS NOW ON ACTIVE DUTY FOR EXTENDED PERIODS OF TIME AND THE NUMBER OF OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES NOW IN THE ACTUAL SERVICE OF THE UNITED STATES, IT IS BELIEVED, THAT FEW, IF ANY, OF SUCH OFFICERS WITH DEPENDENTS HAVE BEEN ASSIGNED, AT THEIR PERMANENT STATIONS, PUBLIC QUARTERS ADEQUATE FOR THEMSELVES AND THEIR DEPENDENTS. IN THESE CIRCUMSTANCES THE PRIMARY PURPOSE OF THE LETTER OF MAY 22, 1940, WOULD SEEM TO BE TO SECURE RENTAL ALLOWANCE FOR OFFICERS OF THE RESERVE COMPONENTS WITHOUT DEPENDENTS ON ACTIVE DUTY FOR SIX MONTHS OR LESS, ALTHOUGH THE OFFICERS CONCERNED ARE IN FACT ASSIGNED SUCH PUBLIC QUARTERS AS THEIR DUTIES PERMIT, AND THE OFFICERS ARE IN FACT PUT TO NO EXPENSE FOR MAINTAINING QUARTERS FOR THEMSELVES ELSEWHERE.

THE LETTER SUGGESTS THAT BECAUSE TRANSPORTATION OF BAGGAGE OF RESERVE OFFICERS ON ACTIVE DUTY FOR 6 MONTHS OR MORE IS AUTHORIZED, IF THE SECRETARY OF WAR SO PROVIDES (SEE 20 COMP. GEN. 71), ANY LESS PERIOD OF SERVICE THAN 6 MONTHS IS TEMPORARY AND, THEREFORE, THAT RENTAL ALLOWANCE SHOULD BE PAYABLE AS WAS HELD TO BE AUTHORIZED BY DECISIONS 4 COMP. GEN. 571, 661 AND 784, WHEN OFFICERS WERE ON TRAINING DUTY FOR LIMITED PERIODS; THAT THE RULE HELD TO BE AUTHORIZED IN THOSE DECISIONS WAS NOT FOUNDED ON STATUTE; AND THAT THIS OFFICE SHOULD MODIFY THE DECISIONS TO PERMIT PAYMENT OF RENTAL ALLOWANCES TO OFFICERS OF THE RESERVE COMPONENTS (IN EFFECT, THOSE WHO ARE WITHOUT DEPENDENTS) ON ACTIVE DUTY FOR ANY PERIOD LESS THAN 6 MONTHS WHILE AT THE SAME TIME THEY ARE FURNISHED WITH, AND OCCUPY, PUBLIC QUARTERS AND ARE, THEREFORE, PUT TO NO EXPENSE THEREFOR.

THE STATUTORY PROVISION IS THAT RENTAL ALLOWANCE SHALL NOT ACCRUE TO AN OFFICER WITHOUT DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS DETERMINED TO BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS. THE DECISIONS, CITED, CONSIDERED WHAT WOULD CONSTITUTE A PERMANENT STATION WITHIN THE MEANING OF THIS PROVISION FOR OFFICERS OF THE RESERVE COMPONENTS ON TRAINING DUTY OF THE CHARACTER AND FOR THE PERIODS INDICATED THEREIN. "PERMANENT STATION" IS NOT OTHERWISE DEFINED BY STATUTE, AND THE PRESIDENTIAL REGULATIONS WWERE QUOTED IN THE DECISIONS TO WHICH REFERENCE IS MADE. THOSE DECISIONS CONSIDERED THE ASSIGNMENT, DURING ORDINARY TIMES, OF OFFICERS OF THE RESERVE COMPONENTS TO THE VARIOUS FORMS OF TRAINING PRESCRIBED OR PERMITTED BY STATUTE, AND TOOK THE VIEW THAT SUCH TRAINING FOR LIMITED PERIODS IN ORDINARY PEACE TIME PROPERLY MIGHT BE CONSIDERED AS AN ASSIGNMENT TO DUTY AT A TEMPORARY STATION. HOWEVER, SO FAR AS THE NATIONAL GUARD OF THE UNITED STATES IS CONCERNED, SUBSTANTIAL PORTIONS THEREOF ARE, OR SHORTLY WILL BE, IN THE ACTUAL SERVICE OF THE UNITED STATES UNDER PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, AND LARGE NUMBERS OF RESERVE OFFICERS, IT IS UNDERSTOOD, ARE BEING PLACED ON ACTIVE DUTY UNDER THAT PUBLIC RESOLUTION IN CONNECTION WITH THE FORCE TO BE RAISED UNDER THE ACT OF SEPTEMBER 16, 1940, PUBLIC, NO. 783.

THE APPROPRIATION UNDER " ORGANIZED RESERVES," WITH RESPECT TO TRANSPORTATION OF BAGGAGE OF RESERVE OFFICERS ON ACTIVE DUTY, IS NOT IN PARI MATERIA WITH SECTION 6 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, FIXING A RENTAL ALLOWANCE FOR OFFICERS OF THE ARMY. IN FACT, IF THE PROVISION WERE IN PARI MATERIA IT COULD BE ARGUED THAT IT IS AUTHORITY FOR CONSIDERING ANY ASSIGNMENT TO ACTIVE DUTY FOR A PERIOD IN EXCESS OF 15 DAYS AS AN ASSIGNMENT OF THE OFFICER TO A PERMANENT STATION. THE LETTER SELECTED ONLY ONE PROVISION CONTAINED UNDER THAT APPROPRIATION FOR TRANSPORTATION--- PACKING AND CRATING THE EFFECTS OF RESERVE OFFICERS. THE APPROPRIATIONS UNDER " ORGANIZED RESERVES," SINCE THAT FOR THE FISCAL YEAR 1939, 52 STAT. 662, HAVE CONTAINED THE FOLLOWING PROVISIONS:

* * * FOR TRAVEL IN KIND, OR REIMBURSEMENT IN LIEU THEREOF, AS NOW AUTHORIZED BY LAW FOR OFFICERS OF THE REGULAR ARMY, OF DEPENDENTS OF RESERVE OFFICERS WHO HAVE BEEN ORDERED TO ACTIVE DUTY FOR PERIODS IN EXCESS OF FIFTEEN DAYS; * * * FOR THE ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN LIEU THEREOF, AT RATES AUTHORIZED BY LAW, INCURRED BY OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY AND RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR PERIODS IN EXCESS OF FIFTEEN DAYS TRAVELING ON DUTY IN CONNECTION WITH THE ORGANIZED RESERVES, AND FOR TRAVEL OF DEPENDENTS, AND PACKING AND TRANSPORTATION OF BAGGAGE OF SUCH PERSONNEL; * * * FOR TRANSPORTATION OF BAGGAGE, INCLUDING PACKING AND CRATING, OF RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS; * * *

THE APPROPRIATIONS FOR THE FISCAL YEAR 1940, 53 STAT. 613, ET SEQ., AND FOR THE FISCAL YEAR 1941, PUBLIC, NO. 611, APPROVED JUNE 13, 1940, PAGE 26, ET SEQ., ARE IN THE SAME FORM. SECTION 2 OF THE LAST CITED ACT AUTHORIZED RESERVE OFFICERS TO BE PLACED ON ACTIVE DUTY FOR PERIODS NOT IN EXCESS OF 2 YEARS. THE SUPPLEMENTAL APPROPRIATION ACT OF FEBRUARY 12, 1940, PUBLIC, NO. 415, UNDER " ORGANIZED RESERVES," CONTAINED A PROVISO---

* * * THAT THIS APPROPRIATION SHALL NOT BE SUBJECT TO THE LIMITATIONS AS TO RESERVE OFFICERS ON ACTIVE DUTY SPECIFIED UNDER THIS HEAD IN THE MILITARY APPROPRIATION ACT, 1940: * * *

THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED SEPTEMBER 9, 1940, PUBLIC, NO. 781, UNDER " RESERVE OFFICERS' TRAINING CORPS," PROVIDES:

FUNDS APPROPRIATED FOR ORGANIZED RESERVES FOR THE FISCAL YEAR 1941 SHALL BE AVAILABLE FOR THE PAY AND ALLOWANCES OF MEMBERS OF THE OFFICERS' RESERVE CORPS WHO MAY HAVE BEEN OR MAY HEREAFTER BE DETAILED FOR DUTY IN CONNECTION WITH THE RESERVE OFFICERS' TRAINING CORPS.

IT HAS BEEN HELD THAT THE PROVISION FOR RENTAL ALLOWANCE CONTAINED IN SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, MADE NO CHANGE IN THE METHOD OF PROVIDING QUARTERS FOR MEMBERS OF THE MILITARY SERVICE. CLIFFORD JONES V. UNITED STATES, 60 CT.1CLS. 552; JAMES F. BYRNE V. UNITED STATES, 87 CT.1CLS. 241. THE ALLOWANCE ESTABLISHED BY THAT SECTION DOES NOT ACCRUE WHEN THE OFFICER IS ASSIGNED PUBLIC QUARTERS AT HIS PERMANENT STATION. WHEN AN OFFICER OF THE OFFICERS' RESERVE CORPS IS ON ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES--- AS DISTINGUISHED FROM THE TRAINING FOR SHORT PERIODS AUTHORIZED OR PERMITTED BY LAW WHILE HE IS NORMALLY ENGAGED IN HIS CIVILIAN PURSUITS- - HIS PERMANENT STATION IS THE STATION ASSIGNED FOR THE PERFORMANCE OF HIS DUTIES. THE LIMITED PERIOD DURING WHICH HE MAY BE ON ACTIVE DUTY AS STATED IN HIS ORDERS, WHETHER IT BE FOR 4 OR 5 MONTHS OR FOR 1 OR 2 YEARS, MERELY MARKS THE PERIOD OF HIS ACTIVE DUTY; IT HAS NO RELATION TO THE STATION OR STATIONS TO WHICH HE MAY BE ASSIGNED DURING SUCH PERIOD OF ACTIVE DUTY, AND HIS RIGHT TO RENTAL ALLOWANCE AT HIS STATION, IF WITHOUT DEPENDENTS, WILL DEPEND ON WHETHER HE IS OR IS NOT FURNISHED PUBLIC QUARTERS FOR HIS OWN OCCUPANCY. IF SUCH AN OFFICER WITHOUT DEPENDENTS OCCUPIES PUBLIC QUARTERS AND IS PUT TO NO EXPENSE FOR PROCURING QUARTERS FOR HIMSELF, HE IS NOT ENTITLED TO RENTAL ALLOWANCE EVEN THOUGH HIS RETENTION IN THE ACTIVE SERVICE OF THE UNITED STATES IS LIMITED BY THE ORDERS PLACING HIM ON ACTIVE DUTY. SEE THE BYRNE CASE, SUPRA, WHERE THE MATTER IS FULLY DISCUSSED. ACCORDINGLY, NO BASIS IS PERCEIVED FOR MODIFYING THE INTERPRETATION OF "PERMANENT STATION" FOR THE PURPOSE OF RENTAL ALLOWANCE FOR OFFICERS OF THE RESERVE COMPONENTS OF THE ARMY, AS STATED IN THE DECISIONS TO WHICH REFERENCE IS MADE IN YOUR LETTER.