B-28634, DECEMBER 10, 1942, 22 COMP. GEN. 528

B-28634, DECEMBER 10, 1942, 22 COMP. GEN. 528

RENTAL ALLOWANCE - OFFICER'S DEPENDENT FURNISHED GOVERNMENT SHELTER AS AN EMPLOYEE OF AN AIR RAID DEFENSE UNIT WHERE A NAVY OFFICER'S WIFE IS A CIVILIAN EMPLOYEE OF THE GOVERNMENT EMPLOYED IN THE WOMEN'S AIR RAID DEFENSE UNIT, FORT SHAFTER, TERRITORY OF HAWAII, AND IS FURNISHED, UNDER AN ARRANGEMENT FOR THE PURPOSE OF ELIMINATING THE NECESSITY FOR EMPLOYEES RETURNING TO THEIR HOMES AFTER BLACKOUT HOURS WHEN WORKING NIGHT SHIFTS, WITHOUT CHARGE, GOVERNMENT SHELTER CONSISTING OF A ROOM SHARED WITH ANOTHER EMPLOYEE, THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE AS FOR A DEPENDENT WIFE UNLESS IT BE SHOWN THAT THE SHELTER FURNISHED THE WIFE WAS ONLY FOR PART TIME USE, THAT QUARTERS ARE MAINTAINED ELSEWHERE FOR HER OCCUPANCY, AT THE EXPENSE OF HERSELF OR THE OFFICER, AND THAT THE OFFICER IS NOT ASSIGNED ADEQUATE QUARTERS FOR DEPENDENTS AT HIS PERMANENT STATION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 10, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 2, 1942, WITH ACCOMPANYING CORRESPONDENCE, REQUESTING DECISION ON THE QUESTION PRESENTED BY THE DISBURSING OFFICER, UNITED STATES SUBMARINE BASE, PEARL HARBOR, T.H., AS TO THE RIGHT OF LIEUTENANT (JG) F. T. COOPER, U.S. NAVY, TO RENTAL ALLOWANCE AS AN OFFICER WITH DEPENDENTS (WIFE). THE ATTACHED CORRESPONDENCE INCLUDES A LETTER FROM OFFICER IN CHARGE, WOMEN'S AIR RAID DEFENSE UNIT, FORT SHAFTER, T.H., DATED JULY 11, 1942, AS FOLLOWS:

SUBJECT: RENTAL ALLOWANCE.

1. LT. F. T. COOPER OF THE SUBMARINE BASE HAS ASKED THIS ORGANIZATION, THE WOMEN'S AIR RAID DEFENSE UNIT, FOR A STATEMENT REGARDING THE SHELTER FURNISHED BY THE ARMY TO HIS WIFE, MRS. KATHRYN COOPER, EMPLOYED AT PRESENT BY THE WOMEN'S AIR RAID DEFENSE UNIT.

2. MRS. COOPER HAS BEEN ASSIGNED SHELTER IN A BLOCK OF HOUSES SET ASIDE FOR THE W.A.R.D. THE ORGANIZATION IS QUARTERED THREE TO AN APARTMENT, AND MRS. COOPER SHARES A ROOM WITH ANOTHER OF OUR EMPLOYEES.

3. THE PURPOSE OF THESE SHELTERS IS TO ELIMINATE THE NECESSITY OF OUR EMPLOYEES RETURNING TO THEIR HOMES AFTER BLACKOUT HOURS WHEN THEY ARE WORKING NIGHT SHIFTS.

4. NO DEDUCTION OF PAY IS MADE FOR THE USE OF THESE SHELTERS.

5. RATIONS ARE NOT FURNISHED TO ANY MEMBERS OF THIS ORGANIZATION. EMPLOYEES EAT AT A BOARDER'S MESS AT THE OFFICERS' MESS, FORT SHAFTER FOR WHICH THEY PAY A FLAT RATE.

6. NO AGREEMENT MRS. COOPER HAS SIGNED WITH THE NAVY DEPARTMENT RELATES IN ANY WAY TO QUARTERS OR RATIONS.

7. THE SHELTERS FURNISHED TO OUR EMPLOYEES ARE NOT CONSIDERED BY THE ARMY AS "ADEQUATE QUARTERS.'

SECTION 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, 362, INSOFAR AS CONCERNS THE QUESTION HERE PRESENTED, IS NOT MATERIALLY DIFFERENT FROM SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, WHICH PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED IN THE FOURTH PARAGRAPH OF THAT SECTION, EACH COMMISSIONED OFFICER BELOW THE GRADE OF BRIGADIER GENERAL OR ITS EQUIVALENT IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT, 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. THE FOURTH AND FIFTH PARAGRAPHS OF THE AMENDMENT ARE AS FOLLOWS:

NO RENTAL ALLOWANCES SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION IN PEACE AND IN WAR SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED, INCLUDING ADJUNCT FORCES THEREOF.

THE EXECUTIVE ORDER NO. 4063 OF AUGUST 13, 1924, ISSUED PURSUANT TO PARAGRAPH 5 OF THE LAW QUOTED, PROVIDES:

II. ASSIGNMENT OF QUARTERS.--- (A) THE ASSIGNMENT OF QUARTERS TO AN OFFICER SHALL CONSIST OF THE DESIGNATION IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT CONCERNED OF QUARTERS CONTROLLED BY THE GOVERNMENT FOR OCCUPANCY WITHOUT CHARGE BY THE OFFICER AND HIS DEPENDENTS, IF ANY.

(B) EVERY OFFICER PERMANENTLY STATIONED AT A POST, YARD OR STATION WHERE PUBLIC QUARTERS ARE AVAILABLE, WILL BE ASSIGNED THEREAT AS QUARTERS THE NUMBER OF ROOMS PRESCRIBED BY LAW FOR AN OFFICER OF HIS RANK, OR A LESS NUMBER OF ROOMS DETERMINED BY COMPETENT SUPERIOR AUTHORITY, IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT CONCERNED, TO BE ADEQUATE IN THE PARTICULAR CASE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY; WHICH REGULATIONS SHALL PROVIDE AMONG OTHER THINGS THAT QUARTERS VOLUNTARILY OCCUPIED BY AN OFFICER WITH HIS DEPENDENTS SHALL BE CONCLUSIVELY PRESUMED TO BE ADEQUATE AND SHALL BE ASSIGNED ACCORDINGLY: *

THE UNITED STATES COURT OF CLAIMS HELD IN JONES V. UNITED STATES, 60 C.1CLS. 552, A CASE INVOLVING RENTAL ALLOWANCE, THAT THE PROVISIONS CONTAINED IN SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, IN NO WAY REVOLUTIONIZED THE SUBJECT OF COMMUTATION OF QUARTERS AND IN NO WAY REVERSES THE FUNDAMENTAL PRINCIPLE ORIGINALLY PROVIDED FOR IN ARMY REGULATIONS AND SUBSEQUENTLY ADOPTED BY THE CONGRESS, AND THAT THE THEORY OF COMMUTATION IS COMPENSATION FOR REIMBURSEMENT FOR SOMETHING PAID OUT AND THAT WHERE AN OFFICER HAS PAID OUT NOTHING FOR SUITABLE QUARTERS FOR HIMSELF OR HIS DEPENDENTS, HE CANNOT BE ENTITLED TO REIMBURSEMENT FOR OR ON ACCOUNT OF A MATTER IN WHICH HE HAS INCURRED NO EXPENSE. SEE ODELL V. UNITED STATES, 38 C.1CLS. 194, AND IRWIN V. UNITED STATES, 38 C.1CLS. 87, CITED WITH APPROVAL IN THE CASE OF JAMES F. BYRNE V. UNITED STATES, 87 C.1CLS. 241, WHERE THE COURT, IN DENYING THE OFFICER'S CLAIM SAID:

* * * THE DEPENDENTS OF THE PLAINTIFF RESIDING CONTINUOUSLY DURING THE ENTIRE PERIOD OF THIS CLAIM WITH ADMIRAL STANDLEY, WHO OCCUPIED PUBLIC QUARTERS WHICH WERE A PART OF THE NAVAL ESTABLISHMENT OF THE UNITED STATES. 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 MADE AND, AS IT APPEARS IN THIS CASE THAT THE OFFICER HAS NOT BEEN PUT TO ANY EXPENSE, NO RIGHT TO REIMBURSEMENT HAS BEEN ESTABLISHED.

IN THE CASE OF GLENNON V. UNITED STATES, 66 C.1CLS. 723, IT WAS HELD THAT WHERE A WIFE OF AN OFFICER VISITED HER FATHER AS A GUEST FOR A SHORT PERIOD OF TIME WHILE HER HUSBAND WAS AT SEA AND THE FATHER OCCUPIED GOVERNMENT QUARTERS ASSIGNED TO HIM AS A RESIDENCE--- THE PERMANENT STATION OF THE TWO OFFICERS BEING AT DIFFERENT PLACES--- THE VISITS OF THE DAUGHTER TO THE FATHER DID NOT PREVENT RECOVERY OF RENTAL ALLOWANCE BY THE OFFICER.

IN HIS SECOND ENDORSEMENT OF AUGUST 27, 1942, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS CITES DECISIONS OF THIS OFFICE INVOLVING SITUATIONS WHERE THE DEPENDENTS OF AN OFFICER ARE OCCUPYING PUBLIC QUARTERS WITHOUT CHARGE FOR RENTAL OF THE QUARTERS AND STATES:

1. THE SITUATION PRESENTED IN THE BASIS LETTER HAS NOT, HERETOFORE, BEEN CONSIDERED BY THE COMPTROLLER GENERAL WITH RESPECT TO AN OFFICER'S RIGHT TO RENTAL ALLOWANCE. HOWEVER, THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT AN OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE FOR ANY PERIOD DURING WHICH HIS DEPENDENTS OCCUPY PUBLIC QUARTERS AND SUCH RULING HAS BEEN EXTENDED TO APPLY TO THOSE OFFICERS WHOSE DEPENDENTS OCCUPY PUBLIC QUARTERS UNDER THE JURISDICTION OF THE WAR DEPARTMENT AT CAMP JOHN HAY RECUPERATION CENTER, BAGUIO, P.I., AND TEMPORARY CONSTRUCTION QUARTERS AT NAVAL ACTIVITIES UNDER CONSTRUCTION, THE COST OF WHICH IS BORNE BY THE GOVERNMENT AND TITLE THERETO RESTS WITH THE UNITED STATES.

IN DECISION OF JANUARY 6, 1942, A-68837, THERE WAS CONSIDERED THE QUESTION OF THE RIGHT OF AN OFFICER OF THE UNITED STATES ARMY TO RENTAL ALLOWANCE AS WITH DEPENDENTS (WIFE), HIS WIFE BEING A CIVILIAN EMPLOYEE EMPLOYED AS A DIETITIAN AT POST HOSPITAL, FORT LEAVENWORTH, KANSAS, AND FURNISHED QUARTERS THEREAT, FOR WHICH A FIXED SUM WAS NOT DEDUCTED EACH MONTH. IT WAS HELD IN SAID DECISION THAT FOR THE PURPOSE OF THE STATUTE UNDER WHICH THE CLAIM OF THE OFFICER WAS MADE HIS DEPENDENT WAS IN FACT FURNISHED PUBLIC QUARTERS AND PAYMENT OF RENTAL ALLOWANCE FOR A DEPENDENT NOT FURNISHED PUBLIC QUARTERS WAS NOT AUTHORIZED. SEE, ALSO, 4 COMP. GEN. 1043.

IT APPEARS THAT MRS. KATHRYN COOPER IS IDENTICAL WITH KATHLEEN B. COOPER, A CIVILIAN EMPLOYEE OF THE UNITED STATES ARMY, SIGNAL CORPS, WHOSE RATE OF PAY AS SHOWN BY THE RECORDS ON FILE IN THIS OFFICE IS $1,440 PER ANNUM WITH NO DEDUCTION THEREFROM FOR QUARTERS FURNISHED HER. THE STATEMENTS OF THE OFFICER IN CHARGE, WOMEN'S AIR RAID DEFENSE GROUP, ARE NOT ENTIRELY CLEAR. THE STATEMENT THAT "THE PURPOSE OF THESE SHELTERS IS TO ELIMINATE THE NECESSITY OF OUR EMPLOYEES RETURNING TO THEIR HOMES AFTER BLACKOUT HOURS WHEN THEY ARE WORKING NIGHT SHIFTS" SUGGESTS THAT THE EMPLOYEES MAY HAVE OTHER QUARTERS AND ARE ONLY FURNISHED SHELTER BY THE GOVERNMENT FOR PART TIME USE WHEN THE PERFORMANCE OF THEIR DUTIES REQUIRES SUCH SHELTER. ON AN ADEQUATE SHOWING BY COMPETENT AUTHORITY THAT THE SHELTER FURNISHED THE WIFE OF LIEUTENANT COOPER IS ONLY FOR PART TIME USE AND THAT QUARTERS ARE MAINTAINED ELSEWHERE FOR HER OCCUPANCY, AND THAT THE OFFICER IS NOT ASSIGNED ADEQUATE QUARTERS FOR DEPENDENTS AT HIS PERMANENT STATION, PAYMENT TO HIM OF RENTAL ALLOWANCE AS WITH DEPENDENTS (WIFE) WOULD APPEAR TO BE PROPER. HOWEVER, IF THE WIFE OF THE OFFICER IS ACTUALLY RESIDING IN AN APARTMENT OF ONE OF THE HOUSES SET ASIDE FOR THE USE OF THE W.A.R.D., AND NO OTHER QUARTERS ARE PROVIDED FOR HER AT THE EXPENSE OF HERSELF OR THE OFFICER, THE OFFICER'S DEPENDENT WAS IN FACT FURNISHED PUBLIC QUARTERS AND HE IS NOT ENTITLED TO RENTAL ALLOWANCE ON HER BEHALF.