B-42762, AUGUST 8, 1944, 24 COMP. GEN. 79

B-42762, AUGUST 8, 1944, 24 COMP. GEN. 79

QUARTERS AND SUBSISTENCE - ENLISTED MEN - CONTRACTED FOR AT RATES EXCEEDING AUTHORIZED MONEY ALLOWANCES A CONTRACT FOR FURNISHING SUBSISTENCE AND QUARTERS FOR MARINE CORPS ENLISTED PERSONNEL AND APPLICANTS FOR ENLISTMENT--- WHICH CONSTITUTES THE FURNISHING OF QUARTERS AND RATIONS IN KIND--- AT RATES IN EXCESS OF THE MONEY ALLOWANCES IN LIEU OF RATIONS AND QUARTERS AUTHORIZED BY EXECUTIVE ORDER NO. 9386, ISSUED PURSUANT TO SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, WOULD NOT BE IN VIOLATION OF SAID EXECUTIVE ORDER WHERE THE EXIGENCY OF A PARTICULAR SITUATION WARRANTS THAT METHOD OF PROVIDING QUARTERS AND RATIONS IN KIND. PRIOR CONFLICTING DECISIONS NO LONGER WILL BE FOLLOWED. THE LIMITATIONS PRESCRIBED BY EXECUTIVE ORDER NO. 9386, ISSUED PURSUANT TO SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, ON MONEY ALLOWANCES FOR ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND ARE NOT NECESSARILY APPLICABLE TO THE PROCURING OF BOARD AND LODGING BY CONTRACT FOR SUCH MEN- -- WHICH CONSTITUTES THE FURNISHING OF QUARTERS AND RATIONS IN KIND; HOWEVER, A CONTRACTING FOR BOARD AND LODGING AT A COST IN EXCESS OF THE AUTHORIZED MONEY ALLOWANCES WOULD BE AN UNNECESSARY AND, THEREFORE, AN UNAUTHORIZED EXPENSE WHERE THERE IS NO COMPELLING REASON WHY A MONEY ALLOWANCE CANNOT BE MADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 8, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 15, 1944, REQUESTING DECISION ON A QUESTION PRESENTED BY THE COMMANDANT OF THE MARINE CORPS AS TO WHETHER THE MARINE CORPS MAY ENTER INTO CONTRACTS FOR FURNISHING SUBSISTENCE AND QUARTERS FOR ENLISTED PERSONNEL AND APPLICANTS FOR ENLISTMENT AT PRICES HIGHER THAN THOSE ESTABLISHED BY EXECUTIVE ORDER 9386, DATED OCTOBER 15, 1943, WHERE IT IS FOUND NECESSARY TO PAY SUCH HIGHER PRICES.

PARAGRAPH 1 OF SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, PROVIDES:

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.

EXECUTIVE ORDER 9386, DATED OCTOBER 15, 1943, ISSUED PURSUANT TO THE ABOVE-QUOTED SECTION, PRESCRIBES, INTER ALIA, ALLOWANCES UNDER VARIOUS CONDITIONS TO ENLISTED MEN OF THE MARINE CORPS ON DUTY WHERE QUARTERS OR RATIONS IN KIND ARE NOT FURNISHED, THE DAILY ALLOWANCES FOR GENERAL APPLICATION BEING $1.80 FOR SUBSISTENCE AND $1.25 FOR QUARTERS.

IN THE COMMANDANT'S LETTER OF JUNE 2, 1944, TRANSMITTED WITH YOUR LETTER, REFERENCE IS MADE TO A DECISION OF A FORMER COMPTROLLER GENERAL DATED AUGUST 10, 1940, 20 COMP. GEN. 79-80, QUOTED IN PART AS FOLLOWS:

AS TO SUBSISTENCE OF ENLISTED MEN, IT IS THE DUTY OF THE NAVY DEPARTMENT TO FURNISH SUBSISTENCE FOR THEM; AND IF * * * IT IS NOT POSSIBLE FOR THE NAVY TO FURNISH SUBSISTENCE TO THEM OTHERWISE THAN BY CONTRACT, THE STATUTE WILL PERMIT THE PROCURING OF SUBSISTENCE BY THAT METHOD. BUT IN ADOPTING THAT METHOD THE LIMIT OF COST SHOULD IN NO CIRCUMSTANCES EXCEED THE LIMIT FIXED BY THE EXECUTIVE ORDER ISSUED PURSUANT TO SECTION 11 OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 630. SEE 7 COMP. GEN. 781.

THE DECISION REFERRED TO IN THAT QUOTATION, 7 COMP. GEN. 781, 792, HELD (QUOTING FROM THE SYNOPSIS) AS FOLLOWS:

ENLISTED MEN OF THE NAVY ARE ENTITLED TO A QUARTERS AND SUBSISTENCE ALLOWANCE ONLY WHEN ON DETACHED DUTY AWAY FROM STATION; AND THERE IS NO AUTHORITY IN THE NAVY DEPARTMENT NOR IN COMMANDING OFFICERS OR ENLISTED MEN TO "CONTRACT" FOR THEIR LODGING AND SUBSISTENCE AT RATES IN EXCESS OF THOSE FIXED BY THE PRESIDENT UNDER THE AUTHORITY OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630.

A SOMEWHAT SIMILAR CASE WAS CONSIDERED IN A DECISION TO THE QUARTERMASTER, U.S. MARINE CORPS, DATED FEBRUARY 17, 1927, A-16604, WHERE SUBSISTENCE OF ENLISTED MEN OF THE MARINE CORPS WAS PROCURED BY CONTRACT WITH THE WIFE OF ONE OF THEM AT A PRICE IN EXCESS OF THE MONETARY ALLOWANCE PROVIDED BY THE EXECUTIVE ORDER THEN IN EFFECT. IN NONE OF THE CASES REFERRED TO WAS IT CONTENDED, AS A MATTER OF FACT, THAT THE ENLISTED MEN CONCERNED COULD NOT HAVE SECURED QUARTERS AND SUBSISTENCE UNDER THE CIRCUMSTANCES OF THEIR PARTICULAR SITUATION AND DUTY STATUS WITHIN THE LIMITATIONS OF THE RATES AUTHORIZED TO BE PAID AS MONETARY ALLOWANCES UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 730, AND THE APPLICABLE EXECUTIVE ORDER ISSUED PURSUANT THERETO, IF SUCH MONETARY ALLOWANCES HAD BEEN ADMINISTRATIVELY AUTHORIZED.

THE ACT OF JUNE 22, 1944, 58 STAT. 301, PUBLIC LAW 347, APPROPRIATES FUNDS FOR THE MARINE CORPS FOR THE FISCAL YEAR 1945. PAY AND ALLOWANCES OF ENLISTED PERSONNEL ARE PROVIDED FOR BY THE APPROPRIATION," PAY, MARINE CORPS," WHICH CONTAINS AN ITEM OF $14,380,481, AS "ALLOWANCE FOR LODGING AND SUBSISTENCE.' THE SAME ACT, UNDER," GENERAL EXPENSES, MARINE CORPS," CONTAINS THE FOLLOWING ITEM:

FOR PROVISIONS, SUBSISTENCE, BOARD, AND LODGING OF ENLISTED PERSONNEL, RECRUITS AND RECRUITING PARTIES, AND APPLICANTS FOR ENLISTMENT; CASH ALLOWANCE FOR LODGING AND SUBSISTENCE TO ENLISTED PERSONNEL TRAVELING ON DUTY; ICE, ICE MACHINES AND THEIR MAINTENANCE; $106,510,000.

SECTION 10 OF THE ACT OF JUNE 16, 1942, SUPRA, AND THE EXECUTIVE ORDER ISSUED PURSUANT THERETO, PERTAIN TO THE MATTER OF MONEY ALLOWANCES TO ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND, WHEREAS THE PROCUREMENT BY CONTRACT OF SUBSISTENCE AND QUARTERS FOR ENLISTED MEN CONSTITUTES THE FURNISHING TO THEM OF QUARTERS AND RATIONS IN KIND. HENCE, THE LIMITATIONS PRESCRIBED IN SAID EXECUTIVE ORDER ARE NOT NECESSARILY APPLICABLE TO THE PROCURING BY CONTRACT OF BOARD AND LODGING FOR SUCH PERSONNEL; AND A CONTRACTING FOR SUCH ACCOMMODATIONS AT RATES IN EXCESS OF THE AUTHORIZED MONEY ALLOWANCES IN LIEU OF RATIONS AND QUARTERS IS NOT IN VIOLATION OF THE SAID EXECUTIVE ORDER WHERE THE EXIGENCY OF A PARTICULAR SITUATION WARRANTS THAT METHOD OF PROVIDING QUARTERS AND RATIONS IN KIND.

HOWEVER, SINCE DEFINITE LIMITS HAVE BEEN SET ON THE PAYMENT OF MONEY ALLOWANCES IN LIEU OF RATIONS AND QUARTERS, AND SINCE THE PROCURING BY CONTRACT OF BOARD AND LODGING FOR AN ENLISTED MAN SERVES THE SAME ULTIMATE PURPOSE AS THE PAYMENT TO HIM OF SUCH MONEY ALLOWANCES IT WOULD APPEAR THAT WHERE THERE IS NO COMPELLING REASON WHY A MONEY ALLOWANCE CANNOT BE MADE, A CONTRACTING FOR BOARD AND LODGING AT A COST IN EXCESS OF THE AUTHORIZED MONEY ALLOWANCES WOULD BE AN UNNECESSARY AND, THEREFORE, AN UNAUTHORIZED EXPENSE. HENCE, THIS OFFICE WOULD NOT BE JUSTIFIED IN ALLOWING CREDIT FOR PAYMENTS MADE FOR MEALS AND LODGING FOR ENLISTED PERSONNEL OF THE MARINE CORPS CONTRACTED FOR AT RATES IN EXCESS OF THE AUTHORIZED MONEY ALLOWANCES THEREFOR, IN THE ABSENCE OF A SATISFACTORY SHOWING TO THE EFFECT THAT THE CIRCUMSTANCES WERE SUCH THAT THE PAYMENT OF A MONEY ALLOWANCE IN LIEU OF SUBSISTENCE AND QUARTERS WAS NOT POSSIBLE OR, AT LEAST, WAS NOT PRACTICABLE.

TO THE EXTENT THAT ANY PRIOR DECISIONS OF THIS OFFICE ARE INCONSISTENT WITH THE VIEWS HEREIN EXPRESSED THEY WILL NOT BE REGARDED AS CONTROLLING HEREAFTER.