B-38910, JUNE 6, 1944, 23 COMP. GEN. 927

B-38910, JUNE 6, 1944, 23 COMP. GEN. 927

QUARTERS ALLOWANCE FOR DEPENDENTS - PAYMENT CONCURRENTLY WITH RECEIPT OF PERSONAL QUARTERS ALLOWANCE IN NONTRAVEL STATUS ENLISTED MEN OF THE FIRST THREE PAY GRADES WHOSE ORIGINAL ORDERS TO TEMPORARY DUTY AT A STATION IN THE UNITED STATES REQUIRED THEM TO LIVE AT A DESIGNATED PLACE AND PROHIBITED, FOR MILITARY REASONS, THEIR DEPENDENTS FROM DWELLING WITH THEM ARE ENTITLED, UNDER SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, TO PAYMENT OF THE MONTHLY ALLOWANCE FOR QUARTERS FOR DEPENDENTS FOR THE SAME PERIOD DURING WHICH THEY WERE PAID THE QUARTERS ALLOWANCE PROVIDED BY EXECUTIVE REGULATIONS FOR ENLISTED MEN IN A NONTRAVEL STATUS. 22 COMP. GEN. 180, DISTINGUISHED. THE PROVISION OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AND EXECUTIVE REGULATIONS THEREUNDER, RELATING TO THE RIGHT OF ENLISTED MEN OF THE FIRST THREE GRADES TO QUARTERS ALLOWANCE FOR DEPENDENTS AT THE SAME TIME THEY ARE RECEIVING A PERSONAL QUARTERS ALLOWANCE IN A NONTRAVEL STATUS, REQUIRES AS A CONDITION TO SUCH CONCURRENT PAYMENT THAT THE DEPENDENTS BE PREVENTED FROM DWELLING WITH THE ENLISTED MAN "BY REASON OF ORDERS OF COMPETENT AUTHORITY," AND, THEREFORE, IN THE ABSENCE OF INDIVIDUAL ORDERS SPECIFICALLY CONTAINING SUCH PROHIBITION, PAYMENT OF THE ADDITIONAL ALLOWANCE FOR DEPENDENTS WOULD BE UNAUTHORIZED, EVEN THOUGH, AS A MATTER OF FACT, THE DEPENDENTS WERE PREVENTED FROM DWELLING WITH THEM FOR MILITARY REASONS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JUNE 6, 1944:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1943, RELATIVE TO THE RIGHT OF ENLISTED MEN OF THE FIRST THREE GRADES TO RECEIVE A QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENTS DURING THE SAME PERIOD THAT SUCH ENLISTED MEN RECEIVE THE QUARTERS ALLOWANCE AUTHORIZED FOR ENLISTED MEN IN A NONTRAVEL STATUS DURING WHICH PERIOD THEIR DEPENDENTS, WHO WERE NOT FURNISHED QUARTERS BY THE GOVERNMENT, WERE PREVENTED FROM DWELLING WITH THEM.

AS ILLUSTRATIVE OF SUCH CASES YOU STATE THAT ENLISTED MEN OF THE FIRST THREE GRADES HAVE IN THE PAST BEEN ORDERED AWAY FROM THEIR PERMANENT STATIONS TO ATTEND COURSES OF INSTRUCTION LASTING 30, 60 AND 90 DAYS AND THAT DURING SUCH PERIOD THEY WERE PAID THE ALLOWANCES FOR QUARTERS PROVIDED IN TABLE I OF EXECUTIVE ORDER NO. 9206 (NOW SUPERSEDED BY EXECUTIVE ORDER NO. 9386) FOR ENLISTED MEN IN A NONTRAVEL STATUS NOT FURNISHED QUARTERS IN KIND.

YOU STATE THAT IN SOME CASES THE ORDERS ASSIGNING THESE ENLISTED MEN TO SUCH DUTY CONTAIN A SPECIFIC PROVISION SUBSTANTIALLY AS FOLLOWS:

ENLISTED MEN * * * WILL LIVE AT THE BROADWAY CENTRAL HOTEL, 673 BROADWAY, NEW YORK * * *. THE MILITARY MISSION OF THESE ENLISTED MEN NECESSITATES THE PROHIBITION OF THE DEPENDENTS FROM DWELLING WITH THE ENLISTED MEN THEREAT. (IT IS ASSUMED THAT SUCH PROVISION WAS CONTAINED IN THE ORIGINAL ORDERS AND NOT ADDED THERETO BY AMENDMENT AFTER THEIR EFFECTIVE DATE). OTHER ORDERS ARE SAID TO BE SILENT ON THAT POINT ALTHOUGH IT IS STATED THAT THEIR EFFECT WAS THE SAME SINCE BY ORDERS OF COMPETENT AUTHORITY THE DEPENDENTS WERE NOT PERMITTED TO DWELL IN THE QUARTERS WHICH THE ENLISTED MEN WERE REQUIRED TO OCCUPY.

YOU REQUEST DECISION OF A SPECIFIC QUESTION PRESENTED AS FOLLOWS:

IN VIEW OF THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER THE ENLISTED MEN DESCRIBED ABOVE MAY BE PAID THE MONTHLY ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS, FOR PERIODS DURING WHICH THEY WERE STATIONED IN THE UNITED STATES, FOR THE SAME PERIOD DURING WHICH THEY WERE PAID THE MONETARY ALLOWANCE IN LIEU OF QUARTERS UNDER TABLE I OF EXECUTIVE ORDER NO. 9206, IF BY REASON OF ORDERS OF COMPETENT AUTHORITY THEIR DEPENDENTS WERE PREVENTED FROM DWELLING WITH THEM AND WHEN IN FACT SUCH DEPENDENTS COULD NOT DWELL IN THE QUARTERS OCCUPIED BY THE ENLISTED MEN UNDER CIRCUMSTANCES SIMILAR TO THOSE REFERRED TO ABOVE. IF YOUR DECISION IS IN THE AFFIRMATIVE, FURTHER ADVICE IS REQUESTED AS TO WHETHER SUCH ALLOWANCE MAY BE PAID EVEN THOUGH THE INDIVIDUAL ORDERS DO NOT SPECIFICALLY PROHIBIT THE DEPENDENTS FROM DWELLING WITH THE ENLISTED MEN, IF, AS A MATTER OF FACT, SUCH DEPENDENTS WERE PREVENTED FROM DWELLING WITH THEM.

WITH REFERENCE TO THIS MATTER THERE WAS FURNISHED THIS OFFICE UNDER DATE OF MARCH 2, 1944, ADDITIONAL INFORMATION CONTAINED IN THIRD ENDORSEMENT DATED FEBRUARY 9, 1944, FROM HEADQUARTERS, 1244TH SERVICE COMMAND SERVICE UNIT, TECHNICAL TRAINING SCHOOLS, SECOND SERVICE COMMAND, ARMY SERVICE FORCES, AS FOLLOWS:

1. THE CIRCUMSTANCES WHICH MAKE IT NECESSARY FOR THE ENLISTED MEN TO RESIDE AT THE BROADWAY CENTRAL HOTEL ARE AS FOLLOWS:

A. NECESSITY OF STUDENT ENLISTED MEN ATTENDING CIVILIAN SCHOOLS TO BE QUARTERED IN ONE BUILDING TO INSURE PROPER SUPERVISION OF:

(1) GENERAL DISCIPLINE, INCLUDING BED CHECK AT 2300, TO INSURE SUFFICIENT SLEEP IN ORDER THAT ENLISTED MEN MAY BE FIT FOR THE NEXT DAY'S STUDY.

(2) AFTER SCHOOL HOURS--- HOME STUDY.

(3) MILITARY TRAINING AND SPECIAL EXERCISE GIVEN CONCURRENTLY WITH SPECIALIST TRAINING.

(4) MEALS BY THE COMMANDING OFFICER AND MEDICAL OFFICERS, TO ASSURE A BALANCED DIET AND SANITARY CONDITIONS. BREAKFAST AND SUPPER ARE SERVED AT THE HOTEL, AND LUNCH IS SERVED AT A SUPERVISED CAFETERIA AT THE VARIOUS CIVILIAN SCHOOLS.

B. NO GOVERNMENT OWNED OR GOVERNMENT LEASED QUARTERS ARE AVAILABLE.

C. ATTENTION IS INVITED TO DIRECTIVE CONTAINED IN PAR. 2A (2), MEMORANDUM NO. W350-26-43, DATED 3 FEBRUARY 1943, SUBJECT: " ADMINISTRATIVE DETAILS APPLICABLE TO ENLISTED MEN ORDERED TO ATTEND CIVILIAN SPECIALIST SCHOOLS OF THE SERVICES OF SUPPLY," DIRECTING THAT ORDERS SENDING ENLISTED MEN TO SCHOOLS INCLUDE THAT "ENLISTED MAN IS REQUIRED TO LIVE AND MESS IN THE PLACE OR PLACES DESIGNATED BY THE SCHOOL AUTHORITIES.'

2. THE REASONS PREVENTING DEPENDENTS OF ENLISTED MEN FROM LIVING WITH THEM AT THE HOTEL ARE:

A. PAR 1, MEMORANDUM NO. W600-30-42, DATED 13 DECEMBER 1942, READS: " IN NO CASE WILL DEPENDENTS OF MILITARY PERSONNEL BE HOUSED IN HOTELS LEASED BY THE WAR DEPARTMENT.' THIS DIRECTIVE IS INTERPRETED TO APPLY TO THE BROADWAY CENTRAL HOTEL, EVEN THOUGH ARRANGEMENTS FOR ITS USE WERE MADE INFORMALLY BY THE COMMANDING OFFICER, 1244TH, SCSU.

B. THE QUARTERING OF FEMALE DEPENDENTS IN, WHAT IS IN EFFECT, AN ARMY BARRACKS, IS OBVIOUSLY IMPRACTICABLE.

C. THE HOTEL LACKS FACILITIES AND SPACE FOR QUARTERING A LARGE NUMBER OF FEMALE DEPENDENTS.

4. A. ENLISTED MEN PAY FOR QUARTERS AND LODGING OUT OF COMMUTATIONS RECEIVED FROM THE GOVERNMENT FOR THAT PURPOSE. ENLISTED MEN DO NOT PAY FOR PERIODS OF FURLOUGH, HOSPITALIZATION, AND OTHER ABSENCES FOR WHICH COMMUTATION OF QUARTERS AND RATIONS ARE NOT PAYABLE.

B. THE AMOUNTS CURRENTLY PAID BY ENLISTED MEN TO THE HOTEL ARE:

$1.00 PER DAY FOR LODGING.

$1.10 PER DAY FOR THE TWO MEALS (BREAKFAST AND SUPPER)

5. THE HOTEL IS OCCUPIED EXCLUSIVELY BY MILITARY PERSONNEL EXCEPT FOR THE MANAGER AND HIS FAMILY.

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDES IN PERTINENT PART AS FOLLOWS:

TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $5 PER DAY: PROVIDED, THAT PAYMENTS OF ALLOWANCES FOR QUARTERS AND SUBSISTENCE MAY BE MADE IN ADVANCE TO ENLISTED MEN UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE. THESE REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. SUBSISTENCE FOR PILOTS SHALL BE PAID IN ACCORDANCE WITH EXISTING REGULATIONS AND RATIONS FOR ENLISTED MEN MAY BE COMMUTED AS NOW AUTHORIZED BY LAW.

EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND: PROVIDED, THAT SUCH ENLISTED MEN SHALL CONTINUE TO BE ENTITLED TO THIS ALLOWANCE ALTHOUGH RECEIVING THE ALLOWANCE PROVIDED IN THE FIRST PARAGRAPH OF THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENT IS PREVENTED FROM DWELLING WITH HIM.

EXECUTIVE ORDER NO. 9206 OF JULY 27, 1942, AND EXECUTIVE ORDER NO. 9386 OF OCTOBER 15, 1943, ISSUED PURSUANT TO THE ABOVE-QUOTED LAW, CONTAIN PROVISIONS SUBSTANTIALLY IN ACCORDANCE WITH SAID SECTION 10 AS TO THE RIGHT OF ENLISTED MEN OF THE FIRST THREE GRADES TO A QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENTS AT THE SAME TIME THEY ARE RECEIVING A PERSONAL QUARTERS ALLOWANCE IN A NONTRAVEL STATUS.

WHILE THE QUOTED LAW AND EXECUTIVE REGULATIONS ISSUED THEREUNDER WOULD SEEM TO AUTHORIZE THE PAYMENTS IN QUESTION, IN THOSE CASES WHERE COMPETENT ORDERS CONTAIN A SPECIFIC PROVISION PROHIBITING DEPENDENTS OF THE ENLISTED MEN CONCERNED FROM DWELLING WITH THEM, YOU EXPRESS DOUBT AS TO WHETHER SUCH PAYMENTS ARE AUTHORIZED IN ANY CASE WHERE THE DUTY ENJOINED IS IN THE CONTINENTAL UNITED STATES IN VIEW OF THE LANGUAGE CONTAINED IN DECISION OF SEPTEMBER 5, 1942, 22 COMP. GEN. 180.

THE DECISION REFERRED TO CONCERNED THE CASE OF A MARINE CORPS ENLISTED MAN WHO WAS ORDERED TO PROCEED FROM QUANTICO, VIRGINIA, TO CANTON, OHIO, FOR TEMPORARY DUTY. THE ORDERS PROVIDED THAT WHILE ON SUCH DUTY HE WOULD BE PAID THE ALLOWANCES FOR QUARTERS AS PROVIDED IN TABLE I OF EXECUTIVE ORDER NO. 9206 FOR ENLISTED MEN IN A NONTRAVEL STATUS. SOME TIME THEREAFTER HIS ORDERS WERE AMENDED TO PROVIDE THAT HIS DEPENDENTS WERE NOT AUTHORIZED TO ACCOMPANY HIM AND THE ENLISTED MAN SUBSEQUENTLY CLAIMED THE QUARTERS ALLOWANCES ON ACCOUNT OF DEPENDENTS FOR THE PERIOD HE WAS AT CANTON, IN ADDITION TO THE QUARTERS ALLOWANCE PAID HIM AS FOR AN ENLISTED MAN IN A NONTRAVEL STATUS, CONTENDING THAT BY THE AMENDED ORDERS HIS DEPENDENTS WERE PREVENTED FROM DWELLING WITH HIM. THERE WAS NO CONTENTION THAT HAD THE ENLISTED MAN'S DEPENDENTS GONE TO CANTON THEY WOULD HAVE BEEN PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM DWELLING WITH HIM. THE SOLE BASIS OF THE CLAIM WAS THAT THE ORDERS PROHIBITED HIS DEPENDENTS FROM ACCOMPANYING HIM AND PAYMENT OF THE CLAIM WAS HELD TO BE UNAUTHORIZED FOR THE REASON THAT NO AUTHORITY WAS KNOWN WHEREBY ANY OFFICER OF THE MARINE CORPS COULD PROHIBIT THE DEPENDENTS OF AN ENLISTED MAN FROM TRAVELING TO ANY PLACE IN THE UNITED STATES WHERE CITIZENS GENERALLY ARE PERMITTED TO GO AND, HENCE, THAT IT WOULD NOT APPEAR THE ENLISTED MAN'S DEPENDENTS WERE PREVENTED FROM DWELLING WITH HIM WITHIN THE MEANING OF THE PHRASE AS USED IN THE LAW AND EXECUTIVE REGULATIONS, SUPRA.

THE CONSIDERATIONS THAT LEAD TO THE CONCLUSION IN THAT CASE ARE NOT PRESENT HERE. IN THE CASE HERE PRESENTED BY YOU IT APPEARS THAT THE ORDERS ORIGINALLY CONTAINING THE SPECIFIC PROVISIONS REQUIRING THE ENLISTED MEN TO LIVE AT A DESIGNATED PLACE AND PROHIBITING THEIR DEPENDENTS FROM DWELLING WITH THEM WERE ISSUED BY COMPETENT AUTHORITY FOR STRICTLY MILITARY REASONS AND THAT THEY ACCOMPLISHED THAT PURPOSE. THEREFORE, YOUR QUESTION WITH RESPECT TO THOSE CASES IS ANSWERED IN THE AFFIRMATIVE.

AS TO YOUR FURTHER QUESTION WHETHER SUCH ALLOWANCES MAY BE PAID WHERE INDIVIDUAL ORDERS DO NOT SPECIFICALLY PROHIBIT THE DEPENDENTS FROM DWELLING WITH THE ENLISTED MAN, THE PERTINENT PROVISION OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, REQUIRES, AS A CONDITION PRECEDENT TO THE PAYMENT OF SUCH ALLOWANCES, THAT THE DEPENDENTS OF THE ENLISTED MAN BE PREVENTED FROM DWELLING WITH HIM "BY REASON OF ORDERS OF COMPETENT AUTHORITY," AND IN THE ABSENCE OF ORDERS CONTAINING SUCH PROHIBITION, ADDITIONAL ALLOWANCES WOULD NOT LAWFULLY BE AUTHORIZED. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.