B-122288, JUN 28, 1955

B-122288, JUN 28, 1955

PRECIS-UNAVAILABLE

SECRETARY OF THE ARMY:

BY A LETTER DATED DECEMBER 7, 1954, THE HONORABLE CHARLES C. FINUCANS, ASSISTANT SECRETARY OF THE ARMY (DC, FORWARDED HERE A COPY OF A RECENT STUDY BY THE DEPARTMENT OF THE ARMY RELATIVE TO REDUCTION OF COSTS IN THE MOVEMENT OF HOUSEHOLD GOODS OF MILITARY AND CIVILIAN PERSONNEL TO FOREIGN STATIONS. THE STUDY INDICATES THAT CERTAIN CHANGES IN THE PRESENT SYSTEM WOULD RESULT IN SUBSTANTIAL ECONOMIES. WITH A VIEW TO EFFECTING THE CHANGES, AND THUS REALIZE THE POTENTIAL SAVINGS, FOUR QUESTIONS, TOGETHER WITH A DISCUSSION OF EACH, WERE SUBMITTED FOR OUR DECISION.

THE CHANGES AFFECT MILITARY AND CIVILIAN PERSONNEL WHO WHILE STATIONED IN FOREIGN AREAS WILL OCCUPY PRIVATELY RENTED HOUSING. THE DEPARTMENT CONTEMPLATES THE STORAGE IN THIS COUNTRY, AT GOVERNMENT EXPENSE, OF THE INDIVIDUAL'S FURNITURE - TRANSPORTATION OF HOUSEHOLD GOODS TO BE LIMITED TO SILVERWARE, GLASSWARE, CHINA, KITCHEN UTENSILS, LINENS, DRAPERIES, ETC. AT THE OVERSEAS STATION THE INDIVIDUAL IS TO BE PROVIDED THE BASIC ITEMS OF FURNITURE AND FURNISHINGS PROCURED WITH APPROPRIATED FUNDS. ACCOUNTABILITY FOR, AND CONTROL OVER, THE GOVERNMENT-OWNED FURNITURE AND FURNISHINGS WOULD REMAIN IN THE ARMY. THE STUDY INDICATES THAT OVER A PERIOD OF TWELVE YEARS THE OPERATION OF THE PLAN WOULD RESULT IN SUBSTANTIAL SAVINGS, IN THAT THE COST OF FURNITURE TO BE BOUGHT AND ISSUED BY THE GOVERNMENT, PLUS THE COST OF STORAGE IN THE UNITED STATES OF THE PERSONALLY-OWNED FURNITURE, WOULD BE LESS THAN THE COST OF SHIPMENT OF THE LATTER TO AND FROM FOREIGN STATIONS.

THE FIRST QUESTION: "MAY APPROPRIATED FUNDS BE EXPENDED FOR THE PROCUREMENT OF FURNITURE TO BE ISSUED TO MILITARY AND CIVILIAN PERSONNEL FOR USE IN PRIVATELY-RENTED HOUSING?"

TITLE IV, DEPARTMENT OF THE ARMY, MAINTENANCE AND OPERATIONS, OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, 68 STAT. 337, CONTAINS AN APPROPRIATION PROVISION FOR "EXPENSES, NOT OTHERWISE PROVIDED FOR, NECESSARY FOR THE MAINTENANCE AND OPERATION OF THE ARMY ***." THE QUESTION RELATES TO THE FUNDS THUS APPROPRIATED.

THE PURCHASE OF HOUSEHOLD FURNITURE FOR THE PRIVATE RESIDENCES OF PERSONNEL - EVEN THOSE OVERSEAS - AS NECESSARY FOR THE MAINTENANCE AND OPERATION OF THE ARMY, COULD ONLY BE JUSTIFIED UNDER THE MOST EXTRAORDINARY CIRCUMSTANCES. IN THE DISCUSSION ACCOMPANYING THE QUESTION, THE VIEW IS ADVANCED - AS INDICATED ABOVE - THAT THE USE OF THE APPROPRIATED FUNDS IS JUSTIFIED IN THIS INSTANCE BECAUSE OF THE ECONOMIES THAT WOULD RESULT FROM THE OPERATION OF THE PROGRAM IN CONNECTION WITH WHICH THE PURCHASES ARE TO BE MADE.

THE ARGUMENT OF ECONOMY IS USED IN CONNECTION WITH A PROGRAM WHICH WOULD HAVE THE EFFECT OF MODIFYING LEGISLATIVE POLICY AS REFLECTED IN SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND SECTIONS 1 AND 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806. THE SECTIONS AUTHORIZE THE TRANSPORTATION OF HOUSEHOLD GOODS OF MILITARY AND CIVILIAN PERSONNEL, AT GOVERNMENT EXPENSE, INCIDENT TO ASSIGNMENT OR RELIEF FROM OVERSEAS DUTY. THEY DO NOT PROVIDE FOR THE ISSUANCE OF GOVERNMENT-OWNED FURNITURE IN LIEU OF SUCH TRANSPORTATION. THE QUESTION IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION: "WOULD THE USE OF GOVERNMENT-ISSUED FURNITURE, BY MILITARY PERSONNEL RECEIVING QUARTERS ALLOWANCE, CONSTITUTE UNAUTHORIZED ADDITIONAL PAY, EXTRA ALLOWANCE OR COMPENSATION?"

THIS QUESTION INVOLVES SECTION 1765, REVISED STATUTES (5 U.S.C. 70), PROHIBITING THE RECEIPT, BY ANY PERSON WHOSE PAY OR EMOLUMENTS ARE FIXED BY LAW OR REGULATION, OF "ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER," UNLESS AUTHORIZED BY LAW AND FUNDS ARE SPECIFICALLY APPROPRIATED FOR THAT PURPOSE.

WHEN NOT ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES MILITARY PERSONNEL ARE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS, IN AN AMOUNT FIXED BY STATUTE. SECTION 302, CAREER COMPENSATION ACT OF 1949, 63 STAT. 812. INCIDENT TO OVERSEAS ASSIGNMENT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF THEIR HOUSEHOLD GOODS, SUBJECT TO CONDITIONS, LIMITATIONS, AND WEIGHT ALLOWANCES PRESCRIBED BY REGULATIONS. SECTION 303(C), ABOVE. IT IS CONTENDED IN THE DISCUSSION ACCOMPANYING THIS QUESTION THAT, NOTWITHSTANDING THE RECEIPT OF A BASIC QUARTERS ALLOWANCE, THE INDIVIDUAL'S USE OF GOVERNMENT-OWNED FURNITURE IN A PRIVATE RESIDENCE WOULD NOT CONSTITUTE ADDITIONAL PAY OR EXTRA ALLOWANCE WITHIN THE MEANING OF SECTION 1765, REVISED STATUTES, AS SUCH USE WOULD BE IN LIEU OF TRANSPORTATION OF THE INDIVIDUAL'S FURNITURE.

SECTION 1765, REVISED STATUTES, PRECLUDES THE GRANTING TO PERSONS TO WHOM IT APPLIES OF ANY EXTRA PAY OR ALLOWANCE UNLESS PROVIDED FOR BY LAW. IS IN EFFECT A CURB ON EXECUTIVE DISCRETION IN THE FIELD OF EXTRA PAY AND ALLOWANCES. SEE 4 OP. ATTY. GEN. 249. WE VIEW THE SUBSTITUTION OF AN UNAUTHORIZED ALLOWANCE FOR AN AUTHORIZED ALLOWANCE - DIFFERING APPRECIABLY IN CHARACTER - AS A VIOLATION OF THE PURPOSE AND SPIRIT OF THE ACT. CONSEQUENTLY, AND THE CONGRESS HAVING PROVIDED FOR THE GRANTING OF QUARTERS ALLOWANCES - AT RATES SPECIFIED BY STATUTE - TO MILITARY PERSONNEL WHEN NOT ASSIGNED GOVERNMENT QUARTERS, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE THIRD QUESTION: "WOULD A DEDUCTION OF THE REASONABLE VALUE OF USE OF FURNITURE BE REQUIRED FROM THE PAY OF CIVILIAN EMPLOYEES TO WHOM FURNITURE WAS ISSUED FOR USE IN PRIVATELY - RENTED QUARTERS?"

THE QUESTION IS UNDERSTOOD TO REFER TO EMPLOYEES GRANTED "AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT," PURSUANT TO THE ACT OF JUNE 26, 1930, 46 STAT. 818, AND THE APPLICABLE REGULATIONS, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). UNDER THE LATTER, AND UNLIKE QUARTERS ALLOWANCES OF MILITARY PERSONNEL, THE ACTUAL QUARTERS ALLOWANCE PAYMENT CONSISTS EITHER OF THE AMOUNT OF THE EMPLOYEE'S EXPENSES FOR ALLOWABLE ITEMS, OR THE MAXIMUM PRESCRIBED RATE, WHICHEVER IS SMALLER. SECTION 231.2. INCLUDED IN THE EMPLOYEE'S EXPENSES FOR DETERMINATION OF THE AMOUNT OF THE ALLOWANCE IS THE RENT FOR LIVING QUARTERS, FURNISHED OR UNFURNISHED. SECTION 236.11. WHEN APPROVED BY THE HEAD OF THE AGENCY AS NECESSARY TO PROVIDE ADEQUATE LIVING QUARTERS, RENT MAY INCLUDE, IN ADDITION TO THE BASIC ANNUAL RENTAL RATE, THE COST OF "SEPARATE RENTAL OF NECESSARY FURNITURE AT NOT TO EXCEED 25 PERCENT OF THE BASIC ANNUAL RENTAL RATE." SECTION 215R.

SINCE THE EMPLOYEE IS GRANTED A QUARTERS ALLOWANCE AND IN VIEW OF THE PROVISIONS OF THE REGULATIONS, RECOGNIZING ENTITLEMENT OF THE INDIVIDUAL TO REIMBURSEMENT OF THE COST OF OBTAINING FURNISHED QUARTERS, SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, AUTHORIZING THE FURNISHING OF QUARTERS, ETC., AS PART OF COMPENSATION, IS NOT CONSIDERED TO BE INVOLVED. THE QUESTION IS ANSWERED IN THE NEGATIVE. IN VIEW OF SECTION 1765, REVISED STATUTES, HOWEVER, THE QUARTERS ALLOWANCE AUTHORIZED THE EMPLOYEE, PLUS THE REASONABLE VALUE FOR USE OF THE GOVERNMENT-ISSUED FURNITURE, COULD NOT EXCEED THE MAXIMUM QUARTERS ALLOWANCE SPECIFIED IN THE STANDARDIZED REGULATIONS.

THE FOURTH QUESTION: "UNDER THE PROVISIONS OF SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, WOULD IT BE PERMISSIBLE TO AUTHORIZE THE COMMERCIAL STORAGE OF HOUSEHOLD GOODS OF MILITARY PERSONNEL IN THE UNITED STATES DURING THEIR TOUR OF DUTY IN FOREIGN AREAS WHERE FURNITURE IS ISSUED BY THE GOVERNMENT?

SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"IN ADDITION TO THE ALLOWANCES AUTHORIZED ABOVE, UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES *** SHALL BE ENTITLED *** IN CONNECTION WITH A CHANGE OF STATION (WHETHER TEMPORARY OR PERMANENT), TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES, WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION. ***."

THE SECTION PROVIDES MERELY FOR TEMPORARY STORAGE AS AN INCIDENT OF TRANSPORTATION OF HOUSEHOLD EFFECTS UPON CHANGE OF STATION. SEE 32 COMP. GEN. 410; 34 ID. 45. IT CANNOT REASONABLY BE VIEWED AS AUTHORIZING THE STORAGE CONTEMPLATED BY THE QUESTION - FOR A PERIOD OF OVERSEAS DUTY, NORMALLY TWO OR THREE YEARS, AND IN LIEU OF TRANSPORTATION OF EFFECTS TO THE OVERSEAS STATION. THE QUESTION IS ANSWERED IN THE NEGATIVE.