B-124401, DEC. 9, 1955

B-124401, DEC. 9, 1955

TO DR. ALBERT B. SHULMAN:

REFERENCE IS MADE TO THE LETTER DATED OCTOBER 25, 1955, WRITTEN IN YOUR BEHALF BY MR. SAMUEL F. GRANDON, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR $1,977.86 AS RENTAL ALLOWANCE FROM JUNE 26, 1943, TO JANUARY 31, 1946, DURING WHICH PERIOD YOU SERVED AS AN OFFICER IN THE ARMY OF THE UNITED STATES AND OCCUPIED PUBLIC FAMILY QUARTERS AT HOOD VILLAGE, CAMP HOOD, TEXAS.

IN OUR DECISION OF AUGUST 30, 1955, B-124401, YOU WERE ADVISED THAT SINCE IT APPEARS THAT DURING THE PERIOD INVOLVED YOU AND YOUR DEPENDENTS OCCUPIED PUBLIC QUARTERS DESIGNATED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY MILITARY PERSONNEL AND THEIR DEPENDENTS, THERE IS NO AUTHORITY UNDER PUBLIC LAW 120, APPROVED JULY 2, 1945, 59 STAT. 316, AND PARAGRAPH 8B OF ARMY REGULATIONS NO. 35-4220, NOVEMBER 17, 1944, OR ANY OTHER LAWS AND REGULATIONS, FOR THE PAYMENT OF YOUR CLAIM. THE REQUEST FOR RECONSIDERATION OF THE MATTER IS BASED PRINCIPALLY UPON ALLEGATIONS THAT DURING THE PERIOD INVOLVED THE DEPARTMENT OF THE ARMY NEVER TOOK OVER THE PREMISES OCCUPIED BY YOU; THAT THE FAMILY QUARTERS AT HOOD VILLAGE, CAMP HOOD, WERE THEN UNDER THE DIRECT JURISDICTION OF THE "FEDERAL PUBLIC HOUSING AUTHORITY" AND THAT THE CIVILIAN EMPLOYEES WHO THEN RESIDED THERE MADE ALL RENTAL PAYMENTS TO THAT AGENCY. ON SUCH BASIS IT IS URGED THAT YOU ARE ENTITLED TO YOUR APPROPRIATE RENTAL ALLOWANCE LESS THE RENTAL CHARGED BY THE GOVERNMENT FOR THE PREMISES OCCUPIED BY YOU.

AS EXPLAINED IN THE DECISION OF AUGUST 30, 1955, DURING THE PERIOD INVOLVED AN OFFICER'S RIGHT TO RENTAL ALLOWANCE WAS SUBJECT TO THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, AND THE REGULATIONS ISSUED PURSUANT TO IT. IT IS NOT MATERIAL WHETHER THE FEDERAL HOUSING ADMINISTRATION THEN HAD CONTROL OF THE PREMISES IN QUESTION OR WHETHER THEY HAD BEEN TAKEN OVER BY THE DEPARTMENT OF THE ARMY SINCE IT SEEMS CLEAR THAT THE RIGHT REMAINED IN THE GOVERNMENT TO ASSIGN SUCH QUARTERS ON A NONRENTAL BASIS TO MILITARY PERSONNEL AS PUBLIC QUARTERS IN LIEU OF PAYMENT TO THEM OF RENTAL ALLOWANCE; THAT QUARTERS WERE SO ASSIGNED TO YOU, AND THAT YOU DID NOT CURRENTLY PAY RENTAL FOR THE USE AND OCCUPANCY OF SUCH HOUSING FACILITIES--- A NECESSARY PREREQUISITE TO THE PAYMENT TO YOU OF RENTAL ALLOWANCE RETROACTIVELY.

IT HAS BEEN HELD IN DECISIONS BOTH BY US AND THE COURT OF CLAIMS OF THE UNITED STATES THAT WHEN 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.CLS. 241, 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 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.'

SEE, ALSO, 21 COMP. GEN. 995; 23 ID. 230; ID. 346; 25 ID. 246; 798; ODELL V. UNITED STATES, 38 C.CLS. 194; JONES V. UNITED STATES, 60 ID. 552; CARTER V. UNITED STATES, 79 ID. 166; BEERY V. UNITED STATES, 87 ID. 557; AND HOLLISTER V. UNITED STATES, 92 ID. 137.

HENCE, UPON REEXAMINING THE MATTER, IT MUST BE HELD THAT THE CONCLUSION REACHED IN THE DECISION OF AUGUST 30, 1955, IS CORRECT, AND THAT THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM. AS TO THE QUESTION OF FILING SUIT IN THE COURT OF CLAIMS OF THE UNITED STATES, OR IN ANY OTHER COURT, YOUR ATTENTION IS INVITED TO 28 U.S.C. 2401 AND 2501.