B-130107, FEB. 7, 1957

B-130107, FEB. 7, 1957

TO LIEUTENANT COLONEL G. A. SEAMANDS, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT OF DECEMBER 17, 1956, THE CHIEF OF FINANCE FORWARDED HERE YOUR LETTER OF NOVEMBER 23, 1956, SUBMITTING DEPENDENCY CERTIFICATE (DD FORM 137) EXECUTED BY SERGEANT FRANKLIN A. CAMPANA, RA 31 435 299, FOR ADVANCE DECISION WHETHER CREDIT OF INCREASED BASIC ALLOWANCE FOR QUARTERS BECAUSE OF A DEPENDENT (WIFE) IS AUTHORIZED.

IT APPEARS THAT THE MEMBER'S WIFE, MRS. WALTRAUT CAMPANA, WAS HOSPITALIZED AT FITZSIMONS ARMY HOSPITAL, DENVER, COLORADO, ON JULY 3, 1955; THAT, FOR COMPASSIONATE REASONS, THE MEMBER WAS TRANSFERRED FROM HIS DUTY STATION AT CAMP STEWART, GEORGIA, TO DUTY AT FITZSIMONS ARMY HOSPITAL, DENVER, COLORADO, EFFECTIVE AUGUST 31, 1955; AND THAT THE MEMBER OCCUPIES "SINGLE" GOVERNMENT QUARTERS AT DENVER. IT IS REPORTED THAT HE DOES NOT MAINTAIN ANY PRIVATE QUARTERS FOR HIMSELF AND HIS WIFE--- HIS ONLY DEPENDENT; THAT BECAUSE HIS WIFE IS HOSPITALIZED BY THE GOVERNMENT BASIC ALLOWANCE FOR QUARTERS PAID TO HIM FOR THE PERIOD FROM JULY 3, 1955, THROUGH AUGUST 31, 1955, WAS COLLECTED FROM HIM; AND THAT HE HAS NOT BEEN CREDITED WITH OR PAID BASIC ALLOWANCE FOR QUARTERS SINCE SEPTEMBER 1, 1955. IN EFFECT, SERGEANT CAMPANA'S CLAIM IS FOR BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT (WIFE) FROM JULY 3, 1955.

UNDER CIRCUMSTANCES WHERE A MEMBER OF THE ARMED SERVICES HAS BEEN HOSPITALIZED IN A GOVERNMENT HOSPITAL WITHOUT BEING PUT TO ANY EXPENSE TO PROVIDE QUARTERS FOR HIMSELF, OUR DECISIONS HAVE HELD THAT HE WAS FURNISHED THE EQUIVALENT OF QUARTERS IN KIND. THIS HAS BEEN GROUNDED ON THE THEORY THAT DURING SUCH HOSPITALIZATION HE IS FURNISHED ALL THE QUARTERS HE CAN UTILIZE AND THAT WE WOULD NOT BE WARRANTED IN CONSTRUING THE LAW SO AS TO AUTHORIZE THE PAYMENT OF RENTAL ALLOWANCE (OR BASIC ALLOWANCE FOR QUARTERS) IN ADDITION TO THE QUARTERS THUS FURNISHED. SEE 6 COMP. GEN. 17; 23 COMP. GEN. 761; BYRNE V. UNITED STATES, 87 C.CLS. 241. IN THE BYRNE CASE, THE COURT SAID, AT PAGE 248 (87 C.CLS.

"* * * COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENT FAILS TO PROVIDE PUBLIC QUARTERS. ON THIS THEORY ONLY CAN RECOVERY BE HAD AND, AS IT APPEARS IN THIS CASE THAT THE OFFICER HAS NOT BEEN PUT TO ANY EXPENSE, NO RIGHT TO REIMBURSEMENT HAS BEEN ESTABLISHED.'

UNDER THE PRINCIPLES INDICATED IN THE CITED DECISIONS, IT SEEMS CLEAR THAT SINCE THE GOVERNMENT FURNISHED SERGEANT CAMPANA FACILITIES WHICH RELIEVED HIM OF THE OBLIGATION OF PROVIDING QUARTERS EITHER FOR HIMSELF OR FOR HIS WIFE--- HE HAVING BEEN FURNISHED GOVERNMENT QUARTERS FOR HIS OWN USE AND HIS WIFE HAVING BEEN FURNISHED ALL THE QUARTERS SHE COULD UTILIZE- -- THERE IS NO AUTHORITY ON THE PRESENT RECORD FOR PAYMENT TO HIM OF THE BASIC ALLOWANCE FOR QUARTERS CLAIMED. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT IN CONNECTION WITH THE SUBMITTED DEPENDENCY CERTIFICATE (DD FORM 137) WHICH IS BEING RETAINED HERE.