B-81391, JANUARY 24, 1949, 28 COMP. GEN. 423

B-81391, JANUARY 24, 1949, 28 COMP. GEN. 423

LEAVES OF ABSENCE - MILITARY - PAY EQUIVALENT PAYMENTS - RENTAL ALLOWANCE INCLUSION UNDER THE PROVISIONS OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, RENTAL ALLOWANCE SHOULD BE INCLUDED IN DETERMINING THE ALLOWANCES "APPLICABLE" TO AN OFFICER FOR PURPOSES OF COMPENSATING HIM FOR UNUSED LEAVE TO HIS CREDIT ON THE DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY, NOTWITHSTANDING THE FACT THAT THE OFFICER MAY NOT HAVE BEEN IN RECEIPT OF RENTAL ALLOWANCE ON THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY DUE TO OCCUPANCY OF PUBLIC QUARTERS ON THAT DATE OR FOR SOME OTHER REASON.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 24, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 3, 1948, WITH ENCLOSURES, CONCERNING TWO EXCEPTIONS TAKEN BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE TO THE INCLUSION OF RENTAL ALLOWANCE IN PAYMENTS MADE TO NAVY OFFICERS WITHOUT DEPENDENTS, FOR UNUSED LEAVE STANDING TO THEIR CREDIT ON THE DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY WHERE ADEQUATE PUBLIC QUARTERS WERE AVAILABLE BUT NOT ASSIGNED OR THE OFFICER WAS FURNISHED PUBLIC QUARTERS ON THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY. YOU REQUEST DECISION AS TO WHETHER PAYMENTS OF RENTAL ALLOWANCE MADE IN THE TWO CASES DESCRIBED IN THE ENCLOSURES, AND IN SIMILAR CASES, WILL BE PASSED TO CREDIT IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS.

IN THE FIRST CASE REFERRED TO IN THE ENCLOSURES, IT APPEARS THAT LIEUTENANT (JG) ROBERT M. DONOVAN, U.S. NAVY, REPORTED FOR TEMPORARY DUTY AT THE DEMOBILIZATION SEPARATION CENTER, LONG BEACH, CALIFORNIA, ON MARCH 16, 1948; THAT ALTHOUGH ADEQUATE PUBLIC QUARTERS WERE AVAILABLE FOR HIS OCCUPANCY AT THAT STATION, NO QUARTERS WERE ASSIGNED HIM; AND THE HE WAS DETACHED FROM DUTY AND HIS RESIGNATION FROM THE NAVAL SERVICE ACCEPTED ON THE FOLLOWING DAY, MARCH 17, 1948, AT WHICH TIME HE HAD 36 DAYS' UNUSED LEAVE TO HIS CREDIT. IN THE OTHER CASE REFERRED TO IN THE ENCLOSURES, IT APPEARS THAT LIEUTENANT (JG) JOSEPH 1. DEMERI, MCR, U.S. NAVAL RESERVE, WAS RELEASED FROM ACTIVE DUTY BY ORDERS DATED MARCH 17, 1948, ON WHICH DATE HE VACATED HIS BACHELOR OFFICER QUARTERS. HE HAD 53 DAYS' UNUSED LEAVE TO HIS CREDIT ON THE DATE OF HIS RELEASE FROM ACTIVE DUTY. IN EACH CASE, EXCEPTION WAS TAKEN BY THE AUDIT DIVISION OF THIS OFFICE TO THE INCLUSION OF RENTAL ALLOWANCE IN THE LUMP-SUM LEAVE PAYMENT ON THE GROUND THAT THE OFFICER WAS NOT IN A RENTAL ALLOWANCE STATUS ON THE DATE OF DETACHMENT.

SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(C) ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES, APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE INCLUDING FOR ENLISTED PERSONS THE ALLOWANCES AS PROVIDED FOR SUCH ENLISTED PERSONS IN SUBSECTION (A) OF THIS SECTION: * * * UNUSED LEAVE SETTLED AND COMPENSATED FOR IN CASH IN ACCORDANCE WITH THIS SUBSECTION SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE. * * *

SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, AS AMENDED, 37 U.S.C. 106, IS IN PART AS FOLLOWS:

EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT, IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE, 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.

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD DUTY UNLESS HIS COMMANDING OFFICER CERTIFIES THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE, OR WHILE ON SEA DUTY, EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, 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 CERTIFICATIONS SHALL BE CONCLUSIVE: PROVIDED, THAT AN OFFICER ALTHOUGH FURNISHED WITH QUARTERS SHALL BE ENTITLED TO RENTAL ALLOWANCE AS AUTHORIZED IN THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, SUPRA, AUTHORIZES MEMBERS OF THE ARMED FORCES DISCHARGED (WHICH INCLUDES SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS--- SEE SECTION 2 OF THE SAID ACT, 60 STAT. 963) AFTER AUGUST 31, 1946, TO BE COMPENSATED FOR UNUSED LEAVE ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES,"APPLICABLE" TO SUCH MEMBER ON THE DATE OF DISCHARGE. THE RENTAL ALLOWANCE "APPLICABLE" TO COMMISSIONED OFFICERS OF THE ARMED FORCES IS SET FORTH IN SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SUPRA, WHICH PROVIDES, GENERALLY, FOR A MONEY ALLOWANCE FOR RENTAL OF QUARTERS TO COMMISSIONED OFFICERS WHILE EITHER ON ACTIVE DUTY OR ENTITLED TO ACTIVE DUTY PAY UNLESS THE OFFICER AND HIS DEPENDENTS (IF ANY) ARE ASSIGNED QUARTERS AT A PERMANENT STATION OR, IN THE CASE OF AN OFFICER HAVING NO DEPENDENTS, HE IS ON FIELD DUTY OR SEA DUTY. THE FACT AN OFFICER MAY NOT HAVE BEEN IN RECEIPT OF RENTAL ALLOWANCE ON THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY--- BY REASON OF THE CIRCUMSTANCE THAT HE OCCUPIED PUBLIC QUARTERS ON THAT DATE OR FOR SOME OTHER REASON--- WOULD NOT APPEAR TO PRECLUDE THE INCLUSION OF RENTAL ALLOWANCE IN DETERMINING THE ALLOWANCES "APPLICABLE" TO THE OFFICER ON THE DATE OF DISCHARGE WITHIN THE MEANING OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. THE PRIMARY PURPOSE OF SECTION 4 (C) OF THE SAID ACT WAS TO PROVIDE A BASIS FOR COMPENSATING MEMBERS OF THE ARMED FORCES FOR UNUSED LEAVE TO THEIR CREDIT ON THE DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY AND IT SEEMS REASONABLY CLEAR FROM AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT THAT THERE WAS NO INTENT OR PURPOSE TO DISCRIMINATE IN THE MATTER OF COMPUTING LUMP-SUM LEAVE PAYMENTS BETWEEN OFFICERS WHO WERE IN RECEIPT OF RENTAL ALLOWANCE ON THE DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY AND THOSE WHO WERE OCCUPYING PUBLIC QUARTERS ON THAT DATE. ACCORDINGLY, THE EXCEPTIONS REFERRED TO IN THE ENCLOSURES, AS WELL AS SIMILAR EXCEPTIONS, WILL BE WITHDRAWN AND CREDIT WILL BE ALLOWED IN THE DISBURSING OFFICERS' ACCOUNTS FOR THE PAYMENTS HERE INVOLVED, AND FOR SIMILAR PAYMENTS, IF OTHERWISE CORRECT.