B-39424, MARCH 16, 1944, 23 COMP. GEN. 673

B-39424, MARCH 16, 1944, 23 COMP. GEN. 673

RENTAL AND SUBSISTENCE ALLOWANCES - OFFICER-HUSBANDS OF STUDENT NURSES OF UNITED STATES CADET NURSE CORPS AN ARMY OFFICER WHOSE WIFE IS A STUDENT NURSE IN THE UNITED STATES CADET NURSE CORPS AND IS FURNISHED "MAINTENANCE"--- INCLUDING QUARTERS, FOOD, ETC.--- BY A PRIVATE SCHOOL OR INSTITUTION PARTICIPATING IN THE STUDENT NURSE TRAINING PROGRAM AUTHORIZED BY THE ACT OF JUNE 15, 1943, IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS (WIFE), NOTWITHSTANDING THE FACT THAT THE GOVERNMENT IS REQUIRED UNDER SECTION 3 OF THE SAID ACT TO REIMBURSE THE SCHOOL OR INSTITUTION A PORTION OF THE EXPENSE INCIDENT TO PROVIDING MAINTENANCE TO STUDENT NURSES DURING THE FIRST NINE MONTHS OF THEIR TRAINING.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT M. A. KORDECKI, U.S. ARMY, MARCH 16, 1944:

BY INDORSEMENT OF JANUARY 13, 1944, THERE WAS TRANSMITTED HERE YOUR LETTER OF DECEMBER 31, 1943, REQUESTING ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF JOHN M. MOTT, JR., FIRST LIEUTENANT, MC, AUS, FOR $125.50 COVERING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), FOR THE PERIOD NOVEMBER 22 TO DECEMBER 31, 1943, THE WIFE BEING A MEMBER OF THE UNITED STATES CADET NURSE CORPS AT STANFORD UNIVERSITY HOSPITAL, SAN FRANCISCO, CALIFORNIA, PRESUMABLY A STUDENT NURSE IN THE FIRST NINE-MONTHS' PERIOD OF HER TRAINING.

THE OFFICER CERTIFIES IN PARAGRAPH 10 OF THE VOUCHER THAT HE DID NOT OCCUPY WITH HIS DEPENDENTS ANY PUBLIC QUARTERS ASSIGNED TO HIM WITHOUT CHARGE AT ANY STATION, NOR DID HIS DEPENDENTS OCCUPY PUBLIC QUARTERS ASSIGNED TO THEM OR TO ANY OTHER OFFICER OR HIS DEPENDENTS (EXCEPT FOR BONA FIDE SOCIAL VISITS) OR RECEIVE A MONTHLY ALLOWANCE IN LIEU THEREOF. HIS COMMANDING OFFICER CERTIFIES THAT DURING THE PERIOD FOR WHICH RENTAL ALLOWANCE IS CLAIMED ON THE VOUCHER, THE OFFICER AND HIS DEPENDENTS DID NOT OCCUPY QUARTERS ASSIGNED AT THE OFFICER'S PERMANENT STATION BECAUSE SAID QUARTERS WERE INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS. YOU EXPRESS DOUBT WHETHER OR NOT PAYMENT MAY BE MADE IN THE ABSENCE OF REGULATIONS WHICH CONTAIN PROVISIONS FOR FURNISHING SUBSISTENCE AND QUARTERS TO MEMBERS OF THE UNITED STATES CADET NURSE CORPS.

SECTION 5 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, PROVIDES THAT EACH COMMISSIONED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT RECEIVING THE BASE PAY OF THE FIRST, SECOND, THIRD, OR SIXTH PERIOD SHALL BE ENTITLED AT ALL TIMES, IN ADDITION TO HIS PAY, TO TWO SUBSISTENCE ALLOWANCES, OR $1.40 PER DAY; FOR EACH OFFICER RECEIVING THE BASE PAY OF THE FOURTH OR FIFTH PERIOD THE AMOUNT OF THIS ALLOWANCE IS FIXED AS THREE SUBSISTENCE ALLOWANCES, OR $2.10 PER DAY," PROVIDED, THAT AN OFFICER WITH NO DEPENDENTS SHALL RECEIVE ONE SUBSISTENCE ALLOWANCE IN LIEU OF THE ABOVE ALLOWANCES.'

SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF THAT SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT, WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY, SHALL BE ENTITLED AT ALL TIMES TO A MONEY ALLOWANCE FOR RENTAL OF QUARTERS. THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942 IS AS FOLLOWS:

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 * * *.

FOR THE PURPOSE OF SAID SECTIONS 5 AND 6 THE TERM "DEPENDENTS" IS DEFINED IN SECTION 4 OF THE ACT TO "INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE.' WHERE THE NORMAL MARRIAGE STATUS OF HUSBAND AND WIFE EXISTS NO QUESTION ORDINARILY ARISES AS TO THE RIGHT OF AN OFFICER TO THE SUBSISTENCE ALLOWANCES PROVIDED IN SECTION 5 FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE). HOWEVER, AS TO RENTAL ALLOWANCE THE SITUATION IS DIFFERENT. THE DECISIONS OF THE UNITED STATES COURT OF CLAIMS, AS WELL AS THOSE OF THIS OFFICE, HAVE INTERPRETED THE RENTAL ALLOWANCE STATUTES AS NOT AUTHORIZING PAYMENT OF SUCH ALLOWANCES WHERE THE DEPENDENTS OF AN OFFICER RESIDE IN GOVERNMENT-OWNED OR CONTROLLED QUARTERS, THOUGH SAID QUARTERS ARE NOT ASSIGNED TO THE OFFICER FOR THE OCCUPANCY OF HIMSELF AND DEPENDENTS. SEE, FOR EXAMPLE, THE CASE OF JAMES F. BYRNE V. UNITED STATES, 87 C.1CLS. 241, AND WILLIAM W. HOLLISTER V. UNITED STATES, 92 C. CLS. 137. IT HAS BEEN HELD THAT NEITHER AN OFFICER NOR AN ENLISTED MAN IS ENTITLED TO RENTAL OR QUARTERS ALLOWANCE ON ACCOUNT OF A WIFE WHERE SHE IS FURNISHED PUBLIC QUARTERS AT GOVERNMENT EXPENSE, OR, IN LIEU THEREOF, IS PAID QUARTERS OR RENTAL ALLOWANCE. B-32874, APRIL 14, 1943, 22 COMP. GEN. 955, 963. ALSO, IT HAS BEEN HELD IN THE SITUATION WHERE THE WIFE OF AN ARMY OFFICER WAS A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT AND FURNISHED QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH WAS CONSIDERED AS A PART OF HER COMPENSATION IN FIXING THE SALARY RATE OF HER POSITION, THAT THE OFFICER WAS NOT ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE). A-68837, JANUARY 6, 1942; B-35717, NOVEMBER 19, 1943.

PUBLIC LAW 74, 78TH CONGRESS, APPROVED JUNE 15, 1943, 57 STAT. 153, 154, IS, IN PERTINENT PART, AS FOLLOWS:

THAT FOR THE PURPOSE OF ASSURING A SUPPLY OF NURSES FOR THE ARMED FORCES, GOVERNMENTAL AND CIVILIAN HOSPITALS, HEALTH AGENCIES, AND WAR INDUSTRIES, THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUMS SUFFICIENT TO CARRY OUT THE PURPOSES OF THIS ACT: PROVIDED, THAT THERE SHALL BE NO DISCRIMINATION IN THE ADMINISTRATION OF THE BENEFITS AND APPROPRIATIONS MADE UNDER THE RESPECTIVE PROVISIONS OF THIS ACT, ON ACCOUNT OF RACE, CREED, OR COLOR. SUCH SUMS SHALL BE USED FOR MAKING PAYMENTS TO SCHOOLS OF NURSING OR OTHER INSTITUTIONS WHICH HAVE SUBMITTED, AND HAD APPROVED BY THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (HEREINAFTER REFERRED TO AS THE SURGEON GENERAL), PLANS FOR NURSES' TRAINING, FOR MAKING PAYMENTS UNDER SECTION 4, AND FOR ALL NECESSARY EXPENSES OF THE PUBLIC HEALTH SERVICE IN ADMINISTERING THE PROVISIONS OF THIS ACT.

SEC. 2. A PLAN FOR TRAINING OF NURSES MAY BE LIMITED TO STUDENT NURSE TRAINING, OR TO POSTGRADUATES OR REFRESHER-NURSING COURSES, OR MAY INCLUDE BOTH. A PLAN SUBMITTED BY ANY INSTITUTION MAY BE APPROVED ONLY IF IT PROVIDES---

(C) THAT THE INSTITUTION WILL FURNISH STUDENT NURSES UNDER THE PLAN (WITHOUT CHARGE FOR TUITION, FEES, OR OTHER EXPENSES) COURSES OF STUDY AND TRAINING, UNIFORMS, INSIGNIA, AND MAINTENANCE IN ACCORDANCE WITH REGULATIONS OF THE SURGEON GENERAL;

(D) THAT THE INSTITUTION WILL PAY STUDENT NURSES UNDER THE PLAN A STIPEND AT NOT LESS THAN THE FOLLOWING MONTHLY RATES: $15 FOR THE FIRST NINE MONTHS OF STUDY; $20 FOR THE FOLLOWING FIFTEEN TO TWENTY ONE MONTHS OF COMBINED STUDY AND PRACTICE, DEPENDING UPON THE CURRICULUM OF EACH INSTITUTION;

SEC. 3. FROM THE SUMS APPROPRIATED THEREFOR THE SECRETARY OF THE TREASURY SHALL PAY EACH INSTITUTION, WITH A PLAN APPROVED UNDER SECTION 2-

(1) WITH RESPECT TO ITEMS FURNISHED STUDENT NURSES THEREUNDER, AMOUNTS DETERMINED BY THE SURGEON GENERAL TO COMPENSATE SUCH INSTITUTION FOR---

(A) REASONABLE TUITION AND FEES FOR THE COURSES OF STUDY AND TRAINING;

(B) REASONABLE MAINTENANCE PROVIDED PURSUANT TO SECTION 2 FOR THE FIRST NINE MONTHS OF THEIR COURSE OF STUDY AND TRAINING, TO THE EXTENT THAT SUCH MAINTENANCE IS NOT COMPENSATED FOR BY THE VALUE OF THEIR SERVICES DURING SUCH PERIOD;

(C) UNIFORMS AND INSIGNIA, PROVIDED IN ACCORDANCE WITH SECTION 2; AND

(D) THE MINIMUM RATE OF STIPEND SPECIFIED IN SECTION 2 FOR PERIODS PRIOR TO COMPLETION OF THE COURSE OF COMBINED STUDY AND TRAINING REFERRED TO IN SUCH SECTION; AND

(2) WITH RESPECT TO ITEMS FURNISHED GRADUATE NURSES THEREUNDER, AMOUNTS DETERMINED BY THE SURGEON GENERAL TO COMPENSATE SUCH INSTITUTION FOR REASONABLE TUITION AND FEES FOR POSTGRADUATE AND REFRESHER COURSE OF STUDY, AND REASONABLE MAINTENANCE FOR GRADUATE NURSES UNDERTAKING POSTGRADUATE COURSES, OR SUCH PORTION OF SUCH AMOUNTS AS MAY BE DETERMINED IN ACCORDANCE WITH REGULATIONS OF THE SURGEON GENERAL.

SECTION 9 OF THE ACT, 57 STAT. 155, AUTHORIZES THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, WITH THE APPROVAL OF THE FEDERAL SECURITY ADMINISTRATOR, TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT. THE REGULATIONS OF THE SURGEON GENERAL ( FEDERAL REGISTER, JULY 9, 1943, P. 9423, TITLE 42, CHAPTER 1, SECTION 28) PROVIDE THAT ALL STUDENTS ENROLLED IN THE STUDENT NURSE TRAINING PROGRAMS UNDER THE PROVISIONS OF PUBLIC LAW 74 SHALL BE MEMBERS OF THE UNITED STATES CADET NURSE CORPS. THE REGULATIONS EMBRACE A PROGRAM OF COURSES DESIGNED TO PREPARE INACTIVE GRADUATE NURSES FOR THE ACTIVE PRACTICE OF NURSING, TO PREPARE GRADUATE NURSES IN SPECIAL FIELDS, AND TO TRAIN PRECADET NURSES, JUNIOR CADET NURSES AND SENIOR CADET NURSES. PARAGRAPH 28.2J OF THE REGULATIONS PROVIDES THAT "THE SCHOOL MUST PROVIDE SATISFACTORY LIVING FACILITIES AND ADEQUATE STUDENT HEALTH SERVICE WHICH MUST CONTINUE THROUGHOUT THE ENTIRE PERIOD OF TRAINING.'

UNDER THE REGULATIONS, SUPRA, SCHOOLS AND INSTITUTIONS PARTICIPATING IN STUDENT NURSE TRAINING PROGRAMS ARE REQUIRED TO PROVIDE REASONABLE MAINTENANCE, INCLUDING SATISFACTORY LIVING FACILITIES AND SUCH OTHER SERVICE, NOT OTHERWISE SPECIFICALLY PROVIDED FOR BY THE SAID 1943 ACT, AS REASONABLY ARE NECESSARY FOR THE PHYSICAL COMFORT AND WELL BEING OF THE STUDENT NURSES THROUGHOUT THE ENTIRE PERIOD OF THEIR TRAINING. HOWEVER, PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT, THE FEDERAL GOVERNMENT IS OBLIGATED TO REIMBURSE THE SCHOOLS, ETC., FOR MAINTENANCE FURNISHED STUDENT NURSES ONLY DURING THE FIRST NINE MONTHS OF THE STUDENTS' TRAINING. OBVIOUSLY, SINCE REIMBURSEMENT BY THE GOVERNMENT FOR THE MAINTENANCE OF STUDENT NURSES DOES NOT CONTINUE BEYOND THE FIRST NINE MONTHS OF THEIR TRAINING, THE LIVING FACILITIES OR QUARTERS THEREAFTER FURNISHED THEM BY PRIVATE INSTITUTIONS DO NOT CONSTITUTE PUBLIC QUARTERS OR QUARTERS FURNISHED AT GOVERNMENT EXPENSE. HENCE, IT IS ONLY WITH RESPECT TO THE QUARTERS OCCUPIED BY STUDENT NURSES DURING THEIR INITIAL NINE MONTHS OF TRAINING THAT ANY QUESTION ARISES AS TO THE CHARACTER OF SUCH QUARTERS, THAT IS, WHETHER THEY ARE TO BE CONSIDERED AS GOVERNMENT- OWNED OR CONTROLLED QUARTERS SO AS TO PRECLUDE THE PAYMENT OF INCREASED RENTAL ALLOWANCES TO AN OFFICER HUSBAND OF A STUDENT NURSE, AS AN OFFICER WITH DEPENDENTS (WIFE).

CLEARLY, THE QUARTERS FURNISHED STUDENT NURSES BY PRIVATE INSTITUTIONS IN ACCORDANCE WITH A PLAN APPROVED UNDER THE SAID ACT ARE NOT GOVERNMENT- OWNED OR GOVERNMENT-CONTROLLED QUARTERS. THE FACT THAT A PARTICIPATING SCHOOL RECEIVES AID FROM FEDERAL APPROPRIATIONS PARTIALLY TO DEFRAY THE EXPENSE INCIDENT TO PROVIDING QUARTERS FOR THE TRAINEES DOES NOT AFFECT THE SCHOOL'S JURISDICTION OVER AND CONTROL OF THE QUARTERS. THE STUDENT NURSE MUST LOOK TO THE PARTICIPATING INSTITUTION FOR THE ASSIGNMENT AND MAINTENANCE OF HER QUARTERS--- NOT TO THE FEDERAL GOVERNMENT. FURTHERMORE, IT IS PERTINENT TO NOTE THAT REIMBURSEMENT FOR MAINTENANCE FURNISHED STUDENT NURSES DURING THE INITIAL NINE-MONTHS' TRAINING PERIOD SPECIFICALLY IS LIMITED TO THE EXTENT THAT "SUCH MAINTENANCE IS NOT COMPENSATED FOR BY THE VALUE OF THEIR SERVICES DURING SUCH PERIOD.' HENCE, IT DOES NOT APPEAR THAT THE FEDERAL GOVERNMENT REIMBURSES A PARTICIPATING SCHOOL TO THE FULL EXTENT OF THE EXPENSE INCURRED BY IT IN FURNISHING MAINTENANCE. FURTHERMORE, CONSIDERING THE VARIOUS SERVICES AND FACILITIES IN ADDITION TO QUARTERS WHICH CONSTITUTE "MAINTENANCE" WITHIN THE MEANING OF THE ACT HERE INVOLVED--- SUCH AS FOOD, LAUNDRY, HOSPITALIZATION, MEDICAL AND DENTAL CARE AND TREATMENT, ETC.--- TOGETHER WITH THE FACT THAT REIMBURSEMENT IS CONTEMPLATED IN AN AMOUNT ESTIMATED AT $45 A MONTH FOR EACH STUDENT NURSE BEFORE DEDUCTING THEREFROM THE VALUE OF THE SERVICES RENDERED BY THE NURSE, ESTIMATED AT $118 FOR THE FIRST YEAR, IT WOULD APPEAR THAT, WITH RESPECT TO THE AMOUNT BY WHICH THE SCHOOL IS COMPENSATED FOR "MAINTENANCE," THE PORTION THEREOF IDENTIFIED AS APPLYING AGAINST THE COST OF PROVIDING QUARTERS NECESSARILY MUST REPRESENT LITTLE MORE THAN COMPENSATION FOR MAINTENANCE AND UPKEEP OF SUCH QUARTERS RATHER THAN AN AMOUNT COMMENSURATE WITH THEIR RENTAL VALUE.

ACCORDINGLY, IT MUST BE HELD THAT STUDENT NURSES OCCUPYING QUARTERS PROVIDED FOR THEM BY PRIVATE SCHOOLS AND INSTITUTIONS AS REQUIRED UNDER THE SAID ACT OF JUNE 15, 1943--- EVEN THOUGH A PART OF THE EXPENSE THEREOF MAY BE ASSUMED INDIRECTLY BY THE FEDERAL GOVERNMENT--- ARE NOT FURNISHED PUBLIC QUARTERS AT GOVERNMENT EXPENSE WITHIN THE MEANING OF THE DECISIONS HEREINBEFORE CITED, AND, THEREFORE, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.