B-115465, AUGUST 18, 1953, 33 COMP. GEN. 79

B-115465, AUGUST 18, 1953, 33 COMP. GEN. 79

QUARTERS ALLOWANCE - DEPENDENTS - TEMPORARY OCCUPANCY OF PUBLIC QUARTERS - OCCUPANCY NOT PRECLUDING PAYMENT OF QUARTERS ALLOWANCE WHILE SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 PRECLUDES PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS TO OFFICERS OF THE MILITARY AND NAVAL SERVICES WHEN THE DEPENDENTS ARE ,ASSIGNED" ADEQUATE GOVERNMENT QUARTERS, AN ARMY OFFICER WHO RECEIVES BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE DUE TO NON-AVAILABILITY OF PUBLIC QUARTERS, AND WHO AS STAFF DUTY OFFICER IS REQUIRED TO BE PHYSICALLY PRESENT ON THE POST FOR ONE NIGHT AND TOGETHER WITH WIFE OCCUPIES PUBLIC QUARTERS ( GUEST HOUSE) ON THE POST THAT NIGHT, MAY BE CREDITED WITH QUARTERS ALLOWANCE AS AN OFFICER WITH DEPENDENTS FOR SUCH PERIOD.

ACTING COMPTROLLER GENERAL MORROW TO CAPTAIN L. W. SWEET, DEPARTMENT OF THE ARMY, AUGUST 18, 1953:

BY SECOND ENDORSEMENT DATED MAY 21, 1953, FINEI 245.81 JOHNSON, EARLING H., OF THE OFFICE CHIEF OF FINANCE, THERE WAS FORWARDED TO THIS OFFICE YOUR COMMUNICATION DATED SEPTEMBER 11, 1952, AND ACCOMPANYING CORRESPONDENCE (INCLUDING MILITARY PAY ORDER) REQUESTING DECISION WHETHER IN THE SITUATION PRESENTED, EARLING H. JOHNSON, MAJOR, QUARTERMASTER CORPS, IS ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS FOR EITHER DAY OF THE TWO-DAY PERIOD FROM AUGUST 16 TO AUGUST 17, 1952.

IT APPEARS THAT THE OFFICER WAS PERMANENTLY STATIONED AT HEADQUARTERS FORT JAY, GOVERNORS ISLAND, NEW YORK 4, NEW YORK; THAT DUE TO NON- AVAILABILITY OF PUBLIC QUARTERS HE AND HIS DEPENDENT NORMALLY OCCUPIED NON -GOVERNMENT QUARTERS; AND THAT HE WAS RECEIVING CREDIT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS ON AUGUST 15, 1952. IT FURTHER APPEARS THAT IN THE PERFORMANCE OF HIS DUTY AS QUARTERMASTER STAFF DUTY OFFICER ON AUGUST 16, 1952, MAJOR JOHNSON WAS REQUIRED TO BE PHYSICALLY PRESENT ON THE POST OVERNIGHT; THAT, IN CONSEQUENCE OF SUCH REQUIREMENT, HE OCCUPIED ONE DOUBLE ROOM IN THE " HOSTESS HOUSE, OFFICERS OPEN MESS ANNEX" FROM 3:00 P.M., AUGUST 16, 1952, TO 11:00 A.M., AUGUST 17, 1952; AND THAT HIS DEPENDENT (WIFE) SHARED SUCH ROOM WITH HIM. THE FILE CONTAINS A SPECIAL MIMEOGRAPHED FORM, DATED AUGUST 16, 1952, CERTIFIED BY THE OFFICER, TO THE EFFECT THAT HE OCCUPIED "PUBLIC QUARTERS (WITH DEPENDENTS)" FOR SUCH PERIOD AND STATING, IN PART, THAT:

2. UNDER PROVISIONS OF SR 35-1465-15 SUBJECT OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE FOR PERIOD OF SUCH OCCUPANCY. * * *

PARAGRAPH 10 OF THE SAID SPECIAL REGULATIONS 35-1465-15 PROVIDES:

BASIS OF COMPUTATION.--- A. BASIC ALLOWANCE FOR QUARTERS IS COMPUTED ON THE BASIS OF A 30-DAY MONTH. THE 31ST DAY OF THE MONTH DOES NOT COUNT AND NO ALLOWANCE FOR QUARTERS IS PAYABLE FOR THAT DAY. BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS DOES NOT ACCRUE ON THE DATE OF ASSIGNMENT OR TERMINATION OF QUARTERS. SEE 5 COMP. GEN. 723.

B. BASIC ALLOWANCE FOR QUARTERS WILL BE PRORATED FOR A FRACTIONAL PART OF A MONTH IN WHICH ENTITLEMENT COMMENCES OR TERMINATES.

THE OFFICER WAS NOT CREDITED WITH BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS FOR EITHER AUGUST 16 OR 17, 1952, AND REQUESTS CREDIT OF ONE DAYS' QUARTERS ALLOWANCE FOR SUCH PERIOD.

SECTION 302 (A) AND 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 813, PROVIDE, IN MATERIAL PART, THAT:

EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION * * *.

EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS.

PRIOR STATUTES AUTHORIZING THE PAYMENT OF RENTAL ALLOWANCES TO OFFICERS OF THE MILITARY AND NAVAL SERVICE BY REASON OF DEPENDENTS, CONTAINED LANGUAGE SIMILAR TO THAT APPEARING IN SECTION 302 (B), SUPRA, PRECLUDING THE PAYMENT OF SUCH ALLOWANCES WHEN THE DEPENDENTS ARE "ASSIGNED" ADEQUATE QUARTERS, AND NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF SUCH SECTION TO INDICATE ANY INTENT THAT ITS PROVISIONS IN THAT RESPECT BE DIFFERENTLY CONSTRUED THAN THOSE OF THE PRIOR STATUTES.

RECOGNIZING THAT RENTAL ALLOWANCE WAS IN THE NATURE OF A REIMBURSEMENT TO COVER THE COST IMPOSED ON AN OFFICER IN PROVIDING QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENT DID NOT FURNISH HIM PUBLIC QUARTERS, IT LONG WAS HELD UNDER THE PRIOR STATUTES THAT NOT EVERY OCCUPANCY OF PUBLICLY OWNED SHELTER BY AN OFFICER AND HIS DEPENDENTS PRECLUDED PAYMENT OF RENTAL ALLOWANCE ON THEIR BEHALF. SEE B-36986, SEPTEMBER 21, 1943, AND THE DECISIONS CITED THEREIN. IN SUCH DECISION IT WAS POINTED OUT, ON THE AUTHORITY OF GLENNON V. UNITED STATES, 66 C.1CLS. 723, THAT, IF OTHERWISE PERMISSIBLE, THE DEPENDENTS OF AN OFFICER COULD EVEN MAKE HIM A VISIT AT A POST WHERE DEPENDENTS WERE EXCLUDED AS A GENERAL MATTER AND OCCUPY WITH HIM THERE FOR A SHORT PERIOD THE PERSONAL QUARTERS ASSIGNED HIM WITHOUT AFFECTING THE RIGHT TO RENTAL ALLOWANCE ON THEIR ACCOUNT. NO ESSENTIAL DIFFERENCE IS PERCEIVED BETWEEN THIS CASE AND THE BONA FIDE VISIT SITUATIONS CONSIDERED IN THE EARLIER CASES, SUPRA, AND OBVIOUSLY THE OVERNIGHT OCCUPANCY BY THIS OFFICER'S DEPENDENT OF HIS TEMPORARY QUARTERS DID NOT OPERATE TO RELIEVE HIM OF THE PERSONAL EXPENSE OF MAINTAINING OTHER QUARTERS FOR HER.

ACCORDINGLY, IN CONSONANCE WITH THE SAID DECISION OF SEPTEMBER 21, 1943, IT IS CONCLUDED THAT DURING THE 2-DAY PERIOD HERE INVOLVED THERE WAS NO ASSIGNMENT OF QUARTERS TO MAJOR JOHNSON WITHIN THE CONTEMPLATION OF THE QUOTED SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, AND THE SAID SPECIAL REGULATION, AND IF OTHERWISE ENTITLED THERETO HE MAY BE CREDITED WITH THE QUARTERS ALLOWANCE AS AN OFFICER WITH DEPENDENTS DURING THE ENTIRE 2-DAY PERIOD OF HIS AND HIS WIFE'S OCCUPANCY OF PUBLIC QUARTERS IN THE HOSTESS HOUSE.