B-87471, AUGUST 11, 1949, 29 COMP. GEN. 67

B-87471, AUGUST 11, 1949, 29 COMP. GEN. 67

QUARTERS - RENTAL ALLOWANCE - OCCUPANCY OF QUARTERS FURNISHED BY CIVILIAN HOSPITAL WITHOUT CHARGE AN ARMY MEDICAL CORPS RESERVE OFFICER, WITHOUT DEPENDENTS, WHO WAS FURNISHED QUARTERS WITHOUT CHARGE WHILE SERVING HIS INTERNSHIP AT A CIVILIAN HOSPITAL AS A COMMISSIONED OFFICER UNDER THE CIVILIAN INTERN PROGRAM AUTHORIZED BY SECTION A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ACT OF AUGUST 5, 1947, IS NOT ENTITLED TO BE PAID THE STATUTORY RENTAL ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS.

COMPTROLLER GENERAL WARREN TO COL. C. B. LENOW, U.S. ARMY, AUGUST 11, 1949:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF THE CHIEF OF FINANCE DATED JUNE 28, 1949, YOUR LETTER DATED MAY 20, 1949, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF ANTHONY V. TORRE, FIRST LIEUTENANT, MEDICAL CORPS RESERVE, UNITED STATES ARMY, FOR $42 COVERING RENTAL ALLOWANCE FOR THE PERIOD AUGUST 10 TO 31, 1948, WHILE ON EXTENDED ACTIVE DUTY PURSUANT TO PARAGRAPH 20 OF DEPARTMENT OF THE ARMY SPECIAL ORDERS, NO. 155, DATED AUGUST 4, 1948.

IT APPEARS THAT DR. ANTHONY V. TORRE WAS ACCEPTED FOR INTERN TRAINING AT PROVIDENCE HOSPITAL, WASHINGTON, D.C., SUCH TRAINING TO COMMENCE JULY 1, 1948, AND TERMINATE JUNE 30, 1949, AND THAT BY PARAGRAPH 20 OF THE SAID SPECIAL ORDERS, NO. 155, HE WAS PLACED ON ACTIVE DUTY WITH STATION AT PROVIDENCE HOSPITAL EFFECTIVE AUGUST 10, 1948. IT IS STATED THAT HE WAS FURNISHED A ROOM IN PROVIDENCE HOSPITAL WITHOUT COST TO HIMSELF. A COPY OF LETTER FROM THE ADMINISTRATOR, PROVIDENCE HOSPITAL, TO THE SURGEON GENERAL, UNITED STATES ARMY, DATED MAY 25, 1948, RELATIVE TO DR. TORRE'S ACCEPTANCE FOR TRAINING IN THAT HOSPITAL, SHOWS THAT SUCH TRAINING WAS TO BE FURNISHED AT NO EXPENSE TO THE GOVERNMENT, EXCEPT THE PAY AND ALLOWANCES TO WHICH THE INTERN WAS ENTITLED AS A COMMISSIONED OFFICER IN THE ARMY.

THE CIVILIAN INTERN PROGRAM, WHEREBY SELECTED APPLICANTS SERVE THEIR INTERNSHIPS IN CIVILIAN HOSPITALS AS COMMISSIONED OFFICERS IN THE MEDICAL CORPS RESERVE, IS AUTHORIZED AND OUTLINED IN DEPARTMENT OF THE ARMY CIRCULAR 148, DATED MAY 20, 1948. SECTION 1 OF SAID CIRCULAR PROVIDES THAT THE CIVILIAN INTERN PROGRAM AND OTHER PROGRAMS SPECIFIED THEREIN WILL BE EFFECTIVE DURING THE PERIOD JULY 1, 1948, TO JUNE 30, 1950, AND SECTION 111 THEREOF PROVIDES, IN PART, THAT DURING EACH OF THESE YEARS COMMISSIONS IN THE MEDICAL CORPS RESERVE WILL BE TENDERED TO 300 SELECTED GRADUATE MEDICAL STUDENTS WHO HAVE BEEN ACCEPTED FOR INTERNSHIP IN A CIVILIAN HOSPITAL; THAT PHYSICIANS SELECTED FOR THIS PROGRAM WILL BE REQUIRED TO SERVE ONE YEAR ON A DUTY STATUS FOR EACH YEAR OF TRAINING RECEIVED, AND THAT THOSE SO COMMISSIONED WILL BE PERMITTED TO COMPLETE THEIR INTERNSHIP AS OFFICERS ON ACTIVE DUTY WITH FULL PAY AND ALLOWANCES.

THE STATUTORY AUTHORITY FOR THE PROGRAM OUTLINED IN THE SAID CIRCULAR 148 APPEARS TO BE CONTAINED IN SECTION A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ARMY-NAVY PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, PUBLIC LAW 365, APPROVED AUGUST 5, 1947, 61 STAT. 776, WHICH IS AS FOLLOWS:

SEC. A. (A) THE TERM "COMMISSIONED OFFICERS," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN ONLY (1) THOSE COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY AND COMMISSIONED MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION; (2) THOSE OFFICERS WHO ARE HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY OR AS MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION; (3) SUCH OFFICERS, NOW OR HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE CORPS, THE NAVAL RESERVE, THE NATIONAL GUARD, THE ARMY OF THE UNITED STATES, OR AS MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WHO MAY, DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER; (4) GENERAL OFFICERS APPOINTED FROM THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, OR THE ARMY OF THE UNITED STATES WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION; (5) GENERAL OFFICERS WHO MAY HEREAFTER BE APPOINTED FROM THOSE OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, OR THE ARMY OF THE UNITED STATES WHO ARE INCLUDED IN (1), (2), OR (3) ABOVE.

(B) IN ADDITION TO ANY PAY, ALLOWANCES, OR EMOLUMENTS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE FOLLOWING THE DATE OF ENACTMENT OF THIS SECTION: PROVIDED, THAT SUCH SUM SHALL NOT BE INCLUDED IN COMPUTING THE AMOUNT OF INCREASE IN PAY AUTHORIZED BY ANY OTHER PROVISION OF LAW OR IN COMPUTING RETIRED PAY: PROVIDED FURTHER, THAT THE TOTAL AMOUNT WHICH MAY BE PAID TO ANY OFFICER UNDER THE AUTHORITY CONTAINED IN THIS SECTION SHALL NOT EXCEED $36,000: AND PROVIDED FURTHER, THAT THE COMMISSIONED OFFICERS DESCRIBED IN SUBSECTION (A) (3) OF THIS SECTION SHALL RECEIVE THE PAY PROVIDED BY THIS SUBSECTION ONLY DURING PERIODS OF VOLUNTEER SERVICE.

PARAGRAPH 1 OF COPY OF LETTER FROM THE SURGEON GENERAL'S OFFICE, DATED FEBRUARY 3, 1949, TO THE OFFICE OF THE CHIEF OF FINANCE, TRANSMITTED WITH YOUR SUBMISSION, STATES, IN EFFECT, THAT RENTAL ALLOWANCE HAS NOT BEEN PAID TO UNMARRIED MEDICAL RESERVE CORPS OFFICERS SERVING THEIR INTERNSHIPS IN CIVILIAN HOSPITALS WHILE ON ACTIVE DUTY, AND THAT SUCH ACTION IS BASED ON FIRST INDORSEMENT OF OFFICE OF THE CHIEF OF FINANCE, FILE "FINE/1245.81/619240.' THE SAID INDORSEMENT, DATED SEPTEMBER 10, 10, 1948, IS AS FOLLOWS.

1. THIS OFFICE IS INFORMED THAT THERE IS NO CONTRACTUAL ARRANGEMENT BETWEEN THE GOVERNMENT AND HOSPITALS CONCERNING THE FURNISHING OF QUARTERS TO SUCH SINGLE MEDICAL RESERVE OFFICERS ON ACTIVE DUTY AS INTERNES. THAT IS, THE HOSPITALS ARE UNDER NO OBLIGATION TO FURNISH LIVING QUARTERS WITHOUT CHARGE, NOR IS THE GOVERNMENT OBLIGATED TO REIMBURSE THE HOSPITALS FOR QUARTERS FURNISHED. THE FURNISHING OF LIVING QUARTERS APPEARS TO BE ON A MUTUAL INTEREST BASIS.

2. IT IS THE VIEW OF THIS OFFICE THAT RENTAL ALLOWANCE IS NOT PAYABLE WHEN LIVING QUARTERS ARE FURNISHED WITHOUT CHARGE SO SUCH OFFICERS HAVING NO DEPENDENTS ON THE PRINCIPLE CITED IN PARAGRAPH 3 BASIC COMMUNICATION (VIZ. 24 (23) COMP. GEN. 856 AND OTHER SIMILAR DECISIONS). IT MAY ADDITIONALLY BE VIEWED THAT THESE QUARTERS ARE FURNISHED FOR AND ON BEHALF OF THE GOVERNMENT.

BY ORDER OF THE CHIEF OF FINANCE.

THE UNITED STATES COURT OF CLAIMS HAS HELD THAT THE ALLOWANCE FOR QUARTERS PROVIDED FOR BY STATUTE FOR OFFICERS OF THE ARMED SERVICES IS REIMBURSEMENT TO THE OFFICER FOR EXPENSES PAID BY HIM FOR PRIVATE QUARTERS WHEN HE IS NOT FURNISHED GOVERNMENT QUARTERS AND THAT SUCH ALLOWANCE IS NO PART OF THE PAY PROPER OF AN OFFICER. HENRY E. ODELL V. UNITED STATES, 38 C.CLS. 194, 197, 198. IN THE CASE OF WILLIAM M. IRWIN V. UNITED STATES, 38 C.CLS. 87, 103, IT WAS STATED IN THE OPINION OF THE COURT THAT "THE THEORY OF COMMUTATION IS COMPENSATION OR REIMBURSEMENT FOR SOMETHING PAID OUT," AND IN JAMES F. BYRNE V. UNITED STATES, 87 C.CLS. 241, IT WAS STATED AT PAGE 248 THAT ,COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING PRIVATE 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.'

IT HAS BEEN HELD IN DECISIONS OF THIS OFFICE THAT WHERE AN OFFICER IS FURNISHED QUARTERS AT HIS PLACE OF DUTY WITHOUT CHARGE, HE IS NOT ENTITLED TO THE RENTAL ALLOWANCE PROVIDED FOR BY LAW, EVEN THOUGH THE QUARTERS HE OCCUPIED WERE NOT FURNISHED BY THE UNITED STATES. 21 COMP. GEN. 1065; 27 ID. 479. IN THE CASES CONSIDERED IN THOSE DECISIONS THE CIRCUMSTANCES WERE SUCH THAT THE QUARTERS FURNISHED WERE CONSIDERED AS HAVING BEEN FURNISHED ON BEHALF OF THE UNITED STATES. WHILE THE CIRCUMSTANCES IN THE INSTANT CASE ARE NOT SIMILAR TO THE CASES CONSIDERED IN THE ABOVE-CITED DECISIONS, THE FACTS ARE THAT LIEUTENANT TORRE WHILE SERVING HIS INTERNSHIP AT PROVIDENCE HOSPITAL IN THE CAPACITY OF A COMMISSIONED OFFICER WAS FURNISHED QUARTERS AT THE HOSPITAL WITHOUT CHARGE. THEREFORE, THE PRINCIPLES STATED IN THE ABOVE CITED DECISIONS OF THE UNITED STATES COURT OF CLAIMS AND OF THIS OFFICE APPEAR TO BE PROPERLY FOR APPLICATION IN SUCH A CASE.

WITH RESPECT TO YOUR STATEMENT THAT LIEUTENANT TORRE LIVES WITH HIS PARENTS IN WASHINGTON, D.C., AND IS PUT TO EXPENSE TO PROVIDE THESE QUARTERS FOR HIMSELF, IT WOULD APPEAR, IF SUCH IS THE CASE, IT WAS PURELY FOR PERSONAL REASONS, IT BEING SHOWN THAT QUARTERS WERE FURNISHED FOR HIS USE AT THE HOSPITAL. UNDER SUCH CIRCUMSTANCES, IT MAY NOT BE CONSIDERED THAT HE WAS REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE.

ACCORDINGLY, PAYMENT OF THE VOUCHER WHICH IS RETAINED IN THIS OFFICE IS NOT AUTHORIZED.