B-37696, NOVEMBER 8, 1943, 23 COMP. GEN. 346

B-37696, NOVEMBER 8, 1943, 23 COMP. GEN. 346

RENTAL OF GOVERNMENT-OWNED QUARTERS TO COMMISSIONED OFFICERS A NAVAL OFFICER WHO, WITH HIS DEPENDENTS, OCCUPIED ON A RENTAL BASIS GOVERNMENT-OWNED QUARTERS, UNDER THE CONTROL OF THE DEPARTMENT OF THE INTERIOR AND NORMALLY OCCUPIED BY TEMPORARY PARK SERVICE EMPLOYEES, MAY NOT BE PAID RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 8, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 15, 1943, REQUESTING DECISION ON A QUESTION PRESENTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN HIS LETTER OF OCTOBER 2, 1943, IN PART AS FOLLOWS:

1. IN VIEW OF THE ACUTE SHORTAGE OF HOUSING FACILITIES NEAR CERTAIN NAVAL ACTIVITIES, REMOTE FROM POPULATION CENTERS WHERE PRIVATELY OWNED QUARTERS ARE AVAILABLE, PERSONNEL OF THE NAVY HERE IN SOME CASES ENTERED INTO AGREEMENTS WITH NATIONAL LARK SUPERINTENDENTS OR THE REGIONAL DIRECTOR OF THE FISH AND WILD LIFE SERVICE, TO RENT BUILDINGS UNDER THE JURISDICTION AND CONTROL OF THE DEPARTMENT OF THE INTERIOR. ENCLOSURE (A) IS ILLUSTRATIVE OF THE SPECIAL PERMIT UNDER WHICH SUCH QUARTERS ARE OCCUPIED ON A RENTAL BASIS. THE BUILDING MENTIONED IN ENCLOSURE (A) IS A ONE-STORY FRAME STRUCTURE, APPROXIMATELY 24 FEET X 24 FEET, WHICH IS COMPLETELY UNFURNISHED AND WHICH, ACCORDING TO THE STATEMENT OF THE LESSEE, REQUIRED CONSIDERABLE REPAIR AT HIS OWN EXPENSE BEFORE IT WAS HABITABLE.

2. CERTAIN PERSONNEL ATTACHED TO THE NAVAL CONVALESCENT HOSPITAL, YOSEMITE NATIONAL PARK, CALIFORNIA HAVE ALSO LEASED, AT A RENTAL WHICH RANGES FROM $15 TO $30 PER MONTH, BUILDINGS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR. THESE BUILDINGS WERE ORIGINALLY CONSTRUCTED FOR PARK EMPLOYEES, BUT WERE LEFT VACANT IN THE SPRING OF 1943 AFTER TRANSFER OF SOME OF THE PARK SERVICE PERSONNEL DURING THE WAR PERIOD. NORMALLY TEMPORARY PARK SERVICE EMPLOYEES WOULD HAVE OCCUPIED SUCH BUILDINGS DURING THE SUMMER, BUT IN VIEW OF THE URGENT NEED OF THE NAVY PERSONNEL FOR SUCH QUARTERS, NOT MERELY FOR THE SUMMER BUT ALSO FOR THE WINTER MONTHS, THEY WERE LEASED TO THEM IN ORDER THAT THEY MIGHT BE WITHIN A REASONABLE DISTANCE OF THEIR DUTY STATION. THE HOUSES IN QUESTION ARE DEFICIENT IN SEVERAL WAYS, ONLY A FEW HAVE FIXED EQUIPMENT SUCH AS REFRIGERATORS, RANGES, ETC., AND REQUIRE MAINTENANCE AND IMPROVEMENT AT THE EXPENSE OF THE LESSEES IN ORDER TO MAKE THEM SATISFACTORILY HABITABLE. FOR THIS REASON THE PERSONNEL WHO OCCUPY THESE BUILDINGS ARE SUBJECTED TO CONSIDERABLE MONTHLY EXPENSE IN RENTING FURNISHING FOR THE BUILDINGS AND IN MAKING THEM HABITABLE. THERE ARE NO PRIVATELY OWNED HOMES IN YOSEMITE NATIONAL PARK, AND NO TOWNS OR CITIES OF SUFFICIENT SIZE TO AFFORD SUITABLE QUARTERS FOR RENTAL ARE LOCATED NEAR ENOUGH TO THE PARK HEADQUARTERS TO ENABLE THE PERSONNEL TO COMMUTE. DURING THE SEVERE STORMS OF THE WINTER, COMMUTING WOULD BE PRACTICALLY IMPOSSIBLE EVEN IF PRIVATE ACCOMMODATIONS WERE OBTAINABLE IN NEARBY AREAS.

3. THE BUILDINGS REFERRED TO HEREIN WERE NOT CONSTRUCTED AS QUARTERS FOR EITHER ARMY OR NAVY PERSONNEL, ARE NOT UNDER THE JURISDICTION AND CONTROL OF THE NAVY AND COULD NOT, THEREFORE, BE ASSIGNED TO NAVY PERSONNEL, THE LEASING ARRANGEMENT BEING A PURELY PERSONAL MATTER BETWEEN THE INDIVIDUAL AND THE REPRESENTATIVE OF THE DEPARTMENT OF THE INTERIOR. IN VIEW OF THE FACT THAT A RENTAL COMMENSURATE WITH THE VALUE OF THE BUILDINGS IS BEING CHARGED BY THE AGENCY OF THE GOVERNMENT HAVING CONTROL THEREOF, IT IS THE CONSIDERED OPINION OF THIS BUREAU THA OCCUPANCY UNDER SUCH CIRCUMSTANCES SHOULD NOT OPERATE TO DEPRIVE PERSONNEL, EITHER WITH OR WITHOUT DEPENDENTS, OF OTHERWISE PROPER PAYMENTS FOR QUARTERS. WEIGHT IS LENT TO THIS CONCLUSION BY REASON OF THE FACT THAT THIS SITUATION IS NO DIFFERENT THAN A CASE WHERE AN OFFICER OF THE RANK OF LIEUTENANT IS OCCUPYING A LOW COST DEFENSE HOUSING PROJECT UNDER THE JURISDICTION OF THE NATIONAL HOUSING AGENCY AND CHARGED A RENTAL THEREFOR, SUCH RENTAL BEING APPLIED FOR MAINTENANCE OPERATION, AND AMORTIZATION PURPOSES. IN SUCH CASES THE RENTAL CHARGED FOR A THREE BEDROOM DWELLING, PLUS THE UTILITY CHARGES IS MUCH LESS THAN THE AMOUNT OF RENTAL ALLOWANCE TO WHICH THE OFFICER CONCERNED IS ENTITLED.

THERE WAS SUBMITTED AS ENCLOSURE (A) A COPY OF SPECIAL USE PERMIT WHEREBY C. G. PRAHL, LIEUTENANT ( CEC) USN, STATIONED AT THE UNITED STATES MARINE CORPS AIR STATION, EDENTON, NORTH CAROLINA, WAS GIVEN PERMISSION BY THE REGIONAL DIRECTOR, FISH AND WILDFIRE SERVICE, UNITED STATES DEPARTMENT OF THE INTERIOR, TO USE AS A DOMICILE FOR HIMSELF AND FAMILY QUARTERS "Q-2" LOCATED ON THE UNITED STATES FISHERIES STATION APPROXIMATELY ONE MILE WEST OF EDENTON, NORTH CAROLINA, FOR THE PERIOD MAY 1, 1943, TO APRIL 30, 1944, AT THE RENTAL RATE OF $13.20 PER MONTH.

SECTION 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, PRESCRIBES, THE RENTAL ALLOWANCE TO BE PAID TO OFFICERS, IN PERTINENT PART, AS FOLLOWS:

SEC. 6. EXCEPT AS OTHERWISE PROVIDED IN 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 MONEY ALLOWANCE FOR RENTAL OF QUARTERS.

TO AN OFFICER HAVING A DEPENDENT, RECEIVING BASE PAY OF THE FIRST PERIOD THE AMOUNT OF SAID ALLOWANCE SHALL BE $60 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE SECOND PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $75 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE THIRD PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $90 PER MONTH, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FOURTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $105 PER MONTH, AND TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FIFTH OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE $120 PER MONTH.

* * * * * * * NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY, NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY * * *.

THE ACT OF MARCH 6, 1943, 57 STAT. 13, AMENDED THE FOURTH PARAGRAPH OF THE ABOVE-QUOTED SECTION TO READ IN PERTINENT PART AS FOLLOWS:

* * *NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, AND SUCH CERTIFICATION SHALL BE CONCLUSIVE* * *.

IT IS NOTED THAT ALTHOUGH THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS STATES THE BUILDINGS REFERRED TO WERE NOT UNDER THE JURISDICTION AND CONTROL OF THE NAVY AND COULD NOT, THEREFORE, BE ASSIGNED TO NAVY PERSONNEL, IT IS STATED AS TO THE BUILDINGS LOCATED IN THE YOSEMITE NATIONAL PARK, CALIFORNIA, THAT NORMALLY THE TEMPORARY PARK SERVICE EMPLOYEES WOULD HAVE OCCUPIED SUCH BUILDINGS DURING THE SUMMER, BUT IN VIEW OF THE URGENT NEED OF THE NAVY PERSONNEL FOR SUCH QUARTERS THEY WERE LEASED TO THEM IN ORDER THAT THEY MIGHT BE WITHIN A REASONABLE DISTANCE OF THEIR DUTY STATION. WHETHER SUCH DISPOSITION OF QUARTERS MAY, STRICTLY SPEAKING, BE AN ASSIGNMENT OF QUARTERS IS NOT CONTROLLING, AS THERE WAS, IN FACT, AN OCCUPANCY OF GOVERNMENT-OWNED QUARTERS. IN THIS CONNECTION SEE WILLIAM W. HOLLISTER V. UNITED STATES, DECIDED NOVEMBER 12, 1940, 92 C. CLS. 137, WHEREIN IT WAS HELD THAT SINCE PLAINTIFF AND HIS DEPENDENTS DURING THE PERIOD OF HIS CLAIM RESIDED IN GOVERNMENT QUARTERS THERE COULD BE NO RECOVERY FOR RENTAL ALLOWANCE. THE DECISION OF THE COURT IS, IN PART, AS FOLLOWS:

* * *PLAINTIFF CANNOT AVOID THE ESTABLISHED RULE FOLLOWED IN THAT DECISION ( BYRNE. V. UNITED STATES, 87 C.1CLS. 241) BY INSISTENCE UPON AN UNDULY FORMALIZED AND TECHNICAL APPLICATION OF THE WORDS "ASSIGNED" AND "PERMANENT STATION" IN THE ACT OF MAY 31, 1934, SUPRA.

PLAINTIFF FURTHER CONTENDS THAT QUARTERS 3-C WERE INADEQUATE. THE FACT IS THAT PLAINTIFF WHILE LIVING AT FRANCE FIELD OCCUPIED A GREATER NUMBER OF ROOMS THAN AUTHORIZED BY LAW FOR AN OFFICER OF HIS RANK WITH DEPENDENTS. IT IS TRUE THAT THE BUILDING WAS NOT IN THE BEST OF CONDITION AND THAT PLAINTIFF MADE NECESSARY REPAIRS AT HIS OWN EXPENSE. HOWEVER, QUARTERS FURNISHED BY THE GOVERNMENT NEED NOT BE ELABORATE, AND UNDER THE STATUTE PLAINTIFF IS ENTITLED TO RECOVER ONLY REASONABLE EXPENSES WHICH IN HIS JUDGMENT IT WAS ESSENTIAL TO EXPEND ON THE QUARTERS FURNISHED. FRANCIS V. UNITED STATES. 89 C.1CLS. 78. * * *

IN DECISION OF FEBRUARY 26, 1926, 5 COMP. GEN. 663, CONCERNING THE RIGHT OF A NAVY OFFICER TO RENTAL ALLOWANCE WHILE OCCUPYING PUBLIC QUARTERS ON A RENTAL BASIS, IT WAS HELD (QUOTING THE SYLLABUS):

AN OFFICER OF THE NAVY ON DUTY IN CONNECTION WITH THE NAVAL ACADEMY DAIRY FARM, WHO WITH HIS DEPENDENTS OCCUPIED A HOUSE LOCATED ON AND FORMING A PART OF THE FARM PROPERTY AND FOR WHICH HE PAID A MONTHLY RENTAL OF $20 TO THE SUPERINTENDENT OF THE FARM, IS NOT ENTITLED TO RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY, AS SAID HOUSE BEING THE PROPERTY OF THE UNITED STATES WAS UNDER SUCH ADMINISTRATIVE CONTROL AS WOULD HAVE PERMITTED ITS ASSIGNMENT TO THE OFFICER AS QUARTERS WITHOUT CHARGE.

IN DECISION OF JANUARY 24, 1936, 15 COMP. GEN. 659, CONCERNING THE RIGHT OF A NAVY OFFICER TO RETAIN RENTAL ALLOWANCES PAID HIM WHILE OCCUPYING, ON A RENTAL BASIS, PUBLIC QUARTERS LOCATED ON THE ISLAND OF GUAM, IT WAS STATED (QUOTING THE CONCLUDING PARAGRAPH OF THE DECISION):

THE FACTS PRESENTED SHOW THAT COMMANDER LEONARD ACTUALLY OCCUPIES AT HIS PERMANENT STATION GOVERNMENT QUARTERS UNDER CONTROL OF THE NAVY DEPARTMENT AND ASSIGNED TO HIM ON A RENTAL BASIS. THE AUTHORITY GIVEN COMMANDER LEONARD TO OCCUPY THE QUARTERS IN QUESTION MUST BE CONSIDERED AN ASSIGNMENT OF PUBLIC QUARTERS AT HIS PERMANENT STATION WITHIN THE RENTAL- ALLOWANCE LAW. BEING ENTITLED TO QUARTERS AT GOVERNMENT EXPENSE THERE IS NO AUTHORITY OF LAW TO REQUIRE COMMANDER LEONARD TO PAY RENTAL FOR USE OF THOSE QUARTERS. 5 COMP. GEN. 663; DECISION A-12406, FEBRUARY 26, 1926. PROPER ADJUSTMENT OF THE MATTER REQUIRES THAT COMMANDER LEONARD REFUND THE DIFFERENCE BETWEEN THE AMOUNT PAID HIM AS RENTAL ALLOWANCE AND THE RENTAL PAID BY HIM DURING THE PERIOD HE HAS OCCUPIED THE QUARTERS IN QUESTION.

THE UNITED STATES COURT OF CLAIMS AND THE ACCOUNTING OFFICERS CONSISTENTLY HAVE INTERPRETED THE RENTAL ALLOWANCE STATUTES AS NOT AUTHORIZING RENTAL ALLOWANCE WHERE GOVERNMENT-CONTROLLED QUARTERS WERE OCCUPIED, EXCEPT WHERE A SPECIFIC PROVISION OF LAW--- SUCH AS THE ACT OF JANUARY 21, 1942, 56 STAT. 11, CONSIDERED IN 21 COMP. GEN. 882--- PERMITS OFFICERS TO OCCUPY ON A RENTAL BASIS QUARTERS IN GOVERNMENT OWNED LOW-COST DEFENSE HOUSES.

IN THE PRESENT CASE IT APPEARS THAT THE NAVAL OFFICERS HAVE OBTAINED THE USE OF AND OCCUPIED GOVERNMENT QUARTERS, PRESUMABLY CONSTRUCTED FOR THE USE OF CIVILIAN EMPLOYEES OF THE INTERIOR DEPARTMENT WHICH, DUE TO WAR CONDITIONS, ARE NO LONGER REQUIRED FOR THE USE OF SUCH CIVILIAN EMPLOYEES. IN THE HOLLISTER CASE, SUPRA, THE QUARTERS OCCUPIED BY THE NAVAL OFFICER WERE ABANDONED QUARTERS AT AN ARMY STATION APPROXIMATELY ONE AND ONE-HALF MILES FROM THE OFFICER'S PERMANENT STATION, BUT THE CONCLUSION OF THE COURT NEGATIVED THE PAYMENT OF RENTAL ALLOWANCE DURING THE PERIOD OF SUCH OCCUPANCY. UNDER THE AUTHORITY OF THAT DECISION AND THE DECISIONS OF THIS OFFICE HEREINBEFORE CITED, I HAVE TO ADVISE THAT PAYMENT OF RENTAL ALLOWANCES TO COMMANDER PRAHL FOR THE PERIOD HE HAS OCCUPIED GOVERNMENT-OWNED OR CONTROLLED QUARTERS IS NOT AUTHORIZED.