B-40770, MAY 6, 1944, 23 COMP. GEN. 856

B-40770, MAY 6, 1944, 23 COMP. GEN. 856

RENTAL AND SUBSISTENCE ALLOWANCES - OFFICER'S WIFE SERVING WITH AMERICAN RED CROSS OVERSEAS AN ARMY OFFICER WHOSE WIFE IS SERVING WITH THE AMERICAN RED CROSS OVERSEAS AND IS NOT FURNISHED SUBSISTENCE BY THE GOVERNMENT WITHOUT COST TO HER IS ENTITLED TO THE STATUTORY INCREASED SUBSISTENCE ALLOWANCE AUTHORIZED FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), BUT, IN THE ABSENCE OF EVIDENCE THAT THE OFFICER'S WIFE WAS NOT FURNISHED QUARTERS BY THE GOVERNMENT WITHOUT COST TO HER, PAYMENT OF INCREASED RENTAL ALLOWANCE ON HER ACCOUNT IS UNAUTHORIZED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, MAY 6, 1944:

BY INDORSEMENT OF MARCH 10, 1944, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF FEBRUARY 9, 1944, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF BEN D. MILLS, FIRST LIEUTENANT (NOW CAPTAIN), AIR CORPS, AUS, COVERING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD JANUARY 1 TO 31, 1944.

CAPTAIN MILLS CERTIFIES ON HIS VOUCHER THAT HIS WIFE, HELEN C. MILLS, IS " OVERSEAS WITH THE AMERICAN RED CROSS.' HE STATES, IN PART, IN PARAGRAPH 2 OF HIS LETTER OF FEBRUARY 1, 1944, WHICH WAS SUBMITTED WITH YOUR LETTER AS FOLLOWS:

A. INFORMATION HAS BEEN OBTAINED FROM MR. AUSTIN THOMPSON, CHIEF OF PERSONNEL ADMINISTRATION, S.A.F., AMERICAN RED CROSS, THAT THE RED CROSS IS PURELY A PRIVATE AGENCY WHICH DOES NOT UNDER ANY CIRCUMSTANCES RELY UPON APPROPRIATIONS FROM CONGRESS OR OTHER PUBLIC MONIES TO PAY OR PROVIDE MAINTENANCE FOR ITS EMPLOYEES. IT APPEARS, THEREFORE, THAT THE RED CROSS IS SIMILAR IN NATURE TO ANY PRIVATE CORPORATION WHICH DETERMINES THE BASIS OF REIMBURSEMENT OF ITS EMPLOYEES AS IT SEES FIT.

B. THE BASIS OF REIMBURSEMENT FOR MRS. MILLS IS AS FOLLOWS: (1) SHE IS PAID A BASE PAY OF A FIXED CASH AMOUNT; (2) THE RED CROSS FURNISHES EITHER FOOD AND LODGING OR REIMBURSEMENT FOR EXPENSES INCURRED BY MRS. MILLS IN PROVIDING HER OWN FOOD AND LODGING. IN OTHER WORDS, THE RED CROSS CAN EITHER PROVIDE FOOD AND LODGING, AS IS PERHAPS THE PRACTICAL SOLUTION IN CERTAIN THEATERS, OR IT CAN ALLOW THE EMPLOYEE TO PROVIDE HER OWN FOOD AND LODGING AND SUBMIT A VOUCHER COVERING EXPENSES INCURRED. THIS WOULD APPEAR TO BE SIMILAR IN NATURE TO AN EXPENSE ACCOUNT, AND, AS A MATTER OF FACT, THIS IS EXACTLY THE WAY IT WAS HANDLED WHILE MRS. MILLS WAS IN THE EMPLOY OF THE RED CROSS IN THIS COUNTRY. IF ANY QUESTION EXISTS AS TO MRS. MILLS' STATUS OVERSEAS, THE SAME QUESTION MUST CERTAINLY BE RAISED AS TO HER STATUS IN THIS COUNTRY--- THE CONDITIONS ARE IDENTICAL.

C. IT IS CLEARLY UNDERSTOOD THAT IF RATIONS AND QUARTERS WERE PROVIDED MRS. MILLS BY A PUBLIC AGENCY, THEN CERTAINLY THE UNDERSIGNED OFFICER SHOULD NOT BE ENTITLED TO CLAIM ALLOWANCES FOR A DEPENDENT. HOWEVER, THE RED CROSS BEING A PRIVATE AGENCY SUPPORTED ENTIRELY BY ITS OWN FUNDS GAINED THROUGH CONTRIBUTIONS, THE FURNISHING OF RATIONS AND QUARTERS (OR REIMBURSEMENT THEREFOR) IS MERELY A CONDITION OF EMPLOYMENT BETWEEN A PRIVATE AGENCY AND A PRIVATE INDIVIDUAL--- AND THIS CONDITION OF EMPLOYMENT IS THE SAME IN THIS COUNTRY AS WELL AS OVERSEAS. MR. THOMPSON INFORMS THAT SOME RED CROSS EMPLOYEES OVERSEAS LIVE IN HOTELS AT THEIR OWN EXPENSE AND SUBMIT VOUCHERS FOR REIMBURSEMENT, SIMPLY BECAUSE THIS ARRANGEMENT IS THE MOST SATISFACTORY UNDER THE CONDITIONS. THERE IS A POSSIBILITY THAT MRS. MILLS HAS MADE SUCH AN ARRANGEMENT.

D. IF THE CONDITIONS UNDER WHICH MRS. MILLS IS NOW EMPLOYED BY THE RED CROSS SHALL ACT AS A BAR TO THE UNDERSIGNED OFFICER CLAIMING AN ALLOWANCE FOR A DEPENDENT, THEN A SIMILAR BAR EXISTS IN THE CASE OF OTHER OFFICERS WHOSE WIVES ARE EMPLOYED--- EITHER IN THIS COUNTRY OR OVERSEAS--- BY PRIVATE CONCERNS. THE FACT THAT THE RED CROSS SPECIFIES THAT PAYMENT SHALL BE MADE ON A FIXED BASE PAY PLUS EXPENSES BASIS DOESN-T SEEM TO ALTER THE SITUATION. OTHER CONCERNS PROVIDE EXPENSE ACCOUNTS AND STILL OTHERS PREFER TO PAY A LUMP SUM SALARY. THE RED CROSS MIGHT HAVE CHOSEN THE LATTER, IN WHICH CASE THE PRESENT QUESTION WOULD NEVER HAVE BEEN RAISED. (ITALICS SUPPLIED).

THE ACT OF JUNE 29, 1943, PUBLIC LAW 99, 57 STAT. 247, 248, TO AMEND AN ACT ENTITLED " AN ACT TO PROVIDE FOR THE USE OF THE AMERICAN NATIONAL RED CROSS IN AID OF THE LAND AND NAVAL FORCES IN TIME OF ACTUAL OR THREATENED WAR," PROVIDES AS FOLLOWS:

THAT EFFECTIVE FROM DECEMBER 5, 1941, THE ACT OF APRIL 24, 1912 (37 STAT. 90; 36 U.S.C. 10, 11), ENTITLED " AN ACT TO PROVIDE FOR THE USE OF THE AMERICAN NATIONAL RED CROSS IN AID OF THE LAND AND NAVAL FORCES IN TIME OF ACTUAL OR THREATENED WAR," IS AMENDED TO READ AS FOLLOWS: "THAT WHENEVER IN TIME OF WAR, OR WHEN WAR IS IMMINENT, THE PRESIDENT SHALL FIND THE COOPERATION AND USE OF THE AMERICAN NATIONAL RED CROSS WITH THE LAND AND NAVAL FORCES TO BE NECESSARY, HE IS AUTHORIZED TO ACCEPT THE ASSISTANCE TENDERED BY THE SAID RED CROSS AND TO EMPLOY THE SAME UNDER THE LAND AND NAVAL FORCES IN CONFORMITY WITH SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE.

"SEC. 2. THAT WHEN THE SAID RED CROSS COOPERATION AND ASSISTANCE WITH THE LAND AND NAVAL FORCES IN TIME OF WAR OR THREATENED HOSTILITIES SHALL HAVE BEEN ACCEPTED BY THE PRESIDENT, THE PERSONNEL ENTERING UPON THE DUTY SPECIFIED IN SECTION 1 OF THIS ACT SHALL, WHILE PROCEEDING TO THEIR PLACE OF DUTY, WHILE SERVING THEREAT, AND WHILE RETURNING THEREFROM, BE TRANSPORTED AND SUBSISTED AT THE COST AND CHARGE OF THE UNITED STATES AS CIVILIAN EMPLOYEES EMPLOYED WITH THE SAID FORCES, AND NO PASSPORT FEE SHALL BE CHARGED OR COLLECTED FOR ANY PASSPORT ISSUED TO SUCH PERSONNEL SO SERVING OR PROCEEDING ABROAD TO ENTER UPON SUCH SERVICE, AND THE RED CROSS SUPPLIES THAT MAY BE TENDERED AS A GIFT AND ACCEPTED FOR USE BY THE LAND AND NAVAL FORCES SHALL BE TRANSPORTED AT THE COST AND CHARGE OF THE UNITED STATES.' THE PROVISION IN THE PRIOR ACT REGARDING THE SUBSISTING OF SUCH PERSONNEL IS IDENTICAL WITH THAT CONTAINED IN THE ACT, SUPRA.

BY PROCLAMATION OF DECEMBER 12, 1941, ( NO. 2530), 55 STAT. 1712, THE PRESIDENT DESIGNATED THE AMERICAN NATIONAL RED CROSS "AS AN ESSENTIAL AUXILIARY OF OUR ARMED FORCES," AND IN SECTION III OF WAR DEPARTMENT CIRCULAR NO. 66, DATED MARCH 5, 1943--- REFERRED TO IN THE INDORSEMENT OF THE FISCAL DIRECTOR TRANSMITTING TO THIS OFFICE YOUR REQUEST FOR ADVANCE DECISION--- IT IS PROVIDED:

AMERICAN RED CROSS WORKERS WITH MEDICAL DEPARTMENT OF UNITED STATES ARMY- -- SUBSISTENCE AND QUARTERS.--- 1. AMERICAN RED CROSS WORKERS ENGAGED IN SERVICE WITH HOSPITALS AND MEDICAL UNITS OF THE UNITED STATES ARMY ARE ENTITLED TO SUBSISTENCE CONSISTING OF LIVING QUARTERS AND MESSES UPON THE SAME PRO RATA COST AS CIVILIAN EMPLOYEES EMPLOYED WITH SAID FORCES, AS SET FORTH IN ORDERS B, WAR DEPARTMENT, JANUARY 15, 1943, SUBJECT, SUBSISTENCE AND QUARTERS FURNISHED TO CIVILIAN EMPLOYEES IN THE FIELD SERVICE. SEE ACT APRIL 24, 1912 (37 STAT. 90, 91; 36 U.S.C. 10, 11; M.L., 1939, SEC. 2116, 2171).

2. AMERICAN RED CROSS WORKERS MAY CHOOSE BETWEEN SUCH SUBSISTENCE AS PROVIDED FOR CIVILIAN EMPLOYEES, AND USING SIMILAR FACILITIES AVAILABLE TO THE ARMY NURSE CORPS, AS SET FORTH BELOW:

3. AMERICAN RED CROSS WORKERS, WITH THE CONCURRENCE OF THE ARMY NURSES, MAY MESS WITH THE ARMY NURSES AND PAY FOR SUCH MESS UPON THE SAME PRO RATA BASIS AS CHARGED TO MEMBERS OF TH ARMY NURSE CORPS.

4. AMERICAN RED CROSS WORKERS ARE ENTITLED TO LIVING QUARTERS AS FOLLOWS:

A. THEY MAY, WITHOUT COST, BE LODGED IN THE HOSPITAL RECREATIONAL BUILDINGS GENERALLY OCCUPIED BY THE RED CROSS IN CONNECTION WITH THEIR SERVICES WERE THESE BUILDINGS HAVE AVAILABLE LIVING QUARTERS FOR STAFF AND GUESTS.

B. THEY MAY HAVE LIVING QUARTERS WITHOUT COST IN THE SAME OR SIMILAR BUILDINGS, IF AVAILABLE, AS THOSE WHICH ARE OCCUPIED BY MEMBERS OF THE ARMY NURSE CORPS.

5. THEY MAY HAVE INCIDENTAL MAID SERVICE AND ANY OTHER EXTRA SERVICES UPON THE SAME PRO RATA BASIS AS CHARGED TO MEMBERS OF THE ARMY NURSE CORPS.

6. RED CROSS WORKERS' UNIFORMS AND BED LINENS WILL BE LAUNDERED AS A PART OF HOSPITAL LAUNDRY WITHOUT COST.

7. PAYMENTS BY MEMBERS OF THE AMERICAN RED CROSS, AS MAY BE REQUIRED BY THIS CIRCULAR, WILL BE MADE DIRECT FOR SUCH SERVICE BY THE AMERICAN RED CROSS WORKERS INDIVIDUALLY.

WHILE THERE HAS NOT BEEN FURNISHED THIS OFFICE A COPY OF THE " ORDERS B" REFERRED TO IN THE FIRST PARAGRAPH OF SAID CIRCULAR 66, THE WAR DEPARTMENT HAS ADVISED INFORMALLY THAT THE CONTEXT OF THAT ORDER IS SET FORTH IN ARMY REGULATIONS UNDER AR 35-3840, OF FEBRUARY 5, 1943, AND, WHILE IT APPEARS FROM THE PROVISIONS OF SAID CIRCULAR AND ARMY REGULATIONS THAT AMERICAN RED CROSS WORKERS MAY, UNDER THE CIRCUMSTANCES SPECIFIED, BE FURNISHED LIVING QUARTERS BY THE GOVERNMENT WITHOUT COST TO THEMSELVES, IT ALSO APPEARS THEREFROM THAT SUCH WORKERS ARE NOT FURNISHED SUBSISTENCE WITHOUT CHARGE THEREFOR.

WITH REGARD, GENERALLY, TO AN ARMY OFFICER'S RIGHT TO RECEIVE INCREASED SUBSISTENCE OR RENTAL ALLOWANCE ON ACCOUNT OF A WIFE WHO IS BEING FURNISHED BY THE GOVERNMENT WITH SUBSISTENCE OR QUARTERS IN KIND, ARMY REGULATIONS 35-4220, SECTION 4, PARAGRAPH 28C, PROVIDES IN PART, AS FOLLOWS:

AN ARMY OFFICER WHOSE WIFE IS A MEMBER OF THE ARMY NURSE CORPS, WOMEN'S ARMY AUXILIARY CORPS ( WOMEN'S ARMY CORPS, BY CHANGES NO. 3 OF SAID REGULATIONS), OR OTHER SIMILAR ORGANIZATIONS, SUCH WIFE BEING FURNISHED SUBSISTENCE OR QUARTERS IN KIND, IS NOT ENTITLED TO RECEIVE INCREASED SUBSISTENCE OR RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS, BUT IS ENTITLED TO SUBSISTENCE AND RENTAL ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS IF NOT FURNISHED SUCH ALLOWANCES IN KIND. * * *

ALSO, IT HAS BEEN HELD IN DECISION BOTH BY THIS OFFICE AND BY THE COURT OF CLAIMS THAT WHERE AN OFFICER'S DEPENDENTS RESIDE IN PUBLIC QUARTERS SO THAT HE IS NOT REQUIRED TO PROVIDE QUARTERS FOR THEM RENTAL ALLOWANCE ON THEIR ACCOUNT IS NOT PAYABLE. FOR EXAMPLE, IN THE CASE OF BYRNE V. UNITED STATES, 87 C.1CLS. 241, AT PAGE 248, THE COURT SAID:

* * * COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENTAL FAILS TO PROVIDE PUBLIC QUARTERS. 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. SEE, ALSO, TO THAT EFFECT, ODELL V. UNITED STATES, 38 C.1CLS. 194; IRWIN V. UNITED STATES, ID. 87; JONES V. UNITED STATES, 60 ID. 552; CARTER V. UNITED STATES, 79 ID. 166; AND, GENERALLY, A-68837, JANUARY 6, 1942; B-28634, DECEMBER 10, 1942, 22 COMP. GEN. 528; B-32874, APRIL 14, 1943, 22 ID. 955.

SINCE IT APPEARS FROM THE FOREGOING THAT THE WIFE OF CAPTAIN MILLS IS NOT FURNISHED SUBSISTENCE BY THE GOVERNMENT WITHOUT COST TO HER, IT WOULD APPEAR THAT THE OFFICER IS ENTITLED TO THE INCREASED SUBSISTENCE ALLOWANCE CLAIMED ON THE VOUCHER, WHICH IS RETURNED HEREWITH. HOWEVER, IN THE ABSENCE OF AUTHORITATIVE EVIDENCE THAT THE OFFICER'S WIFE WAS NOT FURNISHED QUARTERS BY THE GOVERNMENT WITHOUT COST TO HER, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT OF THE INCREASED RENTAL ALLOWANCE CLAIMED ON THE VOUCHER.