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room fixed by the President for each fiscal year in accordance with a certificate furnished by the Secretary of Labor showing the comparative cost of rents in the United States for the preceding calendar year as compared with the calendar year 1922. Such rate for one room is hereby fixed at $20 per month for the fiscal year 1923. and this rate shall be the maximum and shall be used by the President as the standard in fixing the same or lower rates for subsequent years. To each officer receiving the base pay of the first period the amount of this allowance shall be equal to that for two rooms, to each officer receiving the base pay of the second period the amount of this allowance shall be equal to that for three rooms, to each officer receiving the base pay of the third period the amount of this allowance shall be equal to that for four rooms, to each officer receiving the base pay of the fourth period the amount of this allowance shall be equal to that for five rooms, and to each officer receiving the base pay of the fifth or sixth period the amount of this allowance shall be equal to that for six rooms. The rental allowance shall accrue while the officer is on field or sea duty, temporary duty away from his permanent station, in hospital, on leave of absence or on sick leave, regardless of any shelter that may be furnished him for his personal use, if his dependent or dependents are not occupying public quarters during such period. In lieu of the above allowances an officer with no dependents receiving the base pay of the first or second period shall receive the allowance for two rooms, that such an officer receiving the base pay of the third or fourth period shall receive the allowance for three rooms, and that such an officer receiving the base pay of the fifth or sixth period shall receive the allowance for four rooms, but no rental allowance shall be made to any officer without dependents by reason of his employnient on field or sea duty.
SEC. 15. That existing laws authorizing increase of pay for foreign service and commutation of quarters, heat, and light are hereby repealed, effective July 1, 1922.
SEC. 21. That nothing in this act sball orerate to change in any way existing laws, or regulations made in pursuance of law, governing
allowances in kind for quarters, heat, and light for officers and warrant officers;
The act of March 2, 1907, 34 Stat., 1168, provided : That at all posts and stations where there are public quarters belonging to the United States officers may be furnished with quarters in kind in such public quarters, and not elsewhere, by the Quartermaster's Department, assigning to the officers of each grade, respectively, such number of rooms as is stated in the following table, namely: Second lieutenants, two rooms; first lieutenants, three rooms; captains, four rooms; majors, five rooms; lieutenant-colonels, six rooms; colonels, seven rooms; brigadier-generals, eight rooms; major-generals, nine rooms; lieutenant-generals, ten rooms: Provided further, That at places where there are no public quarters commutation therefor may be paid by the Pay Department to the officer entitled to the same at a rate not exceeding twelve dollars per month per room:
The act of March 4, 1915, 38 Stat., 1069, provided:
That hereafter, at places where there are no public quarters available. commutation for the authorized allowance therefor shall be paid to commissioned officers, acting dental surgeons, veterinarians, members of the Nurse Corps, and pay clerks at the rate of $12 per room per month; and, when specifically authorized by the Secretary of War, to enlisted men at the rate of $15 per month, or in lieu thereof he may, in his discretion, rent quarters for the use of said enlisted men when so on duty.
Provided further, That hereafter the Secretary of War may determine where and when there are no public quarters available within the meaning of this or any other Act.
The act of February 27, 1893, 27 Stat., 480, provided :
Hereafter officers temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent station while so temporarily absent.
It is to be observed that only the laws providing for commutation of quarters are repealed by the provisions of section 15 of the act of June 10, 1922; the laws relating to the furnishing of public quarters continue in effect, and there is substituted for commutation of quarters the money allowance for rental of quarters provided by section 6 of said act of June 10, 1922.
The questions submitted are respectively answered immediately following their quotation,
(a) An officer drawing rental allowance goes on a status of absent without leave, or sick not in line of duty. Does he lose his rights to rental allowances as provided by the above mentioned act while on a nonpay status? Does the fact that the officer has dependents who are not occupying public quarters have any bearing on the matter?
Section 1265, Revised Statutes, provides, in part:
without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.
An officer's compensation consists of his pay and allowances, the allowances being either in kind or their money value. Ordinarily when an officer is in a nonpay status by reason of not rendering the services required of him he would not be entitled to any part of the compensation, including the money value of the allowances. Otherwise, notwithstanding he was not rendering service he would receive a portion of the compensation of his office. The provision of the law that an officer “shall be at all times” entitled to the money allowance for rental of quarters if public quarters are not available is limited by the phrase immediately following: “in addition to his pay.” If the allowance accrued when not in a pay status it would not be in addition to his pay, no pay accruing. For the same reason, he would not be entitled to the money allowance for rental of quarters when absent from duty for any of the causes stated in the proviso contained in the act of April 27, 1914, 38 Stat., 353. See also 1 Comp. Gen., 105. This question is answered affirmatively, and the fact that the officer has dependents not occupying public quarters does not affect the question; any provision seemingly in their behalf found in the law is dependent on the officer's rights.
(0) An officer relieved from duty at his permanent station, ordered to temporary station where quarters are available. Is he entitled to rental allowance if dependents do not elect to occupy such quarters? In this connection it is remarked the Government makes no allowance for the transportation of the family or household goods of an officer on temporary change of station.
The money allowance for rental of quarters is payable only “if public quarters are not available.” If, therefore, public quarters are available at the temporary station, the officer having been relieved from his permanent station, there is no right to the money allowance for quarters when, at the only place he can claim quarters, public quarters are available for assignment to him. And his rights are not affected by the fact that the officer's personal situa
tion makes difficult and expensive the utilization of the public quarters available for him. The question is answered in the negative. It should be remarked, also, that the law gives neither to the dependents nor to the officer the privilege of election between available quarters, and the money allowance for rental. If the former are available, there is no authority for the payment of the latter.
(c) An officer having dependents is relieved from duty in the United States and ordered to a foreign station. He and his dependents journey on a commercial liner, cost of transportation for himself and dependents being borne by the United States. Is he entitled to rental allowance while traveling?
Such quarters as are necessary for the officer and his dependents in the situation described are furnished at the expense of the United States, and, within the meaning of the law, it must be held that these quarters are public quarters; that is, quarters provided by the United States, and the money allowance for rental of quarters would not accrue. It may be said as a general proposition that the law does not contemplate providing quarters in substance and at the same time paying the rental allowance. Quarters in this respect are not to be understood as limited to accommodations in structures of the United States. This question is answered in the negative.
(d) An officer without dependents traveling under identical conditions as described in (c). Is he entitled to rental allowance while traveling?
For reasons given in answer to question (c) this question is answered in the negative.
(e) Is phrase “public quarters," as used in fourth line of section 6, mentioned above, interpreted to mean personal commutation for officer as used in acts of March 2, 1907, and March 4, 1915, which are repealed by act approved June 10, 1922, or is it interpreted to mean full allowance of quarters as of grade held by the officer? For example: An unmarried officer has a dependent mother for whom no quarters are available at his permanent station. Is he entitled to rental allowance, or does the fact that he is furnished one room for his personal use preclude such payment?
The officer is entitled to public quarters and if they are not available he is entitled to a money allowance for rental of quarters. Such right as the officer has to public quarters is that given in the act of March 2, 1907; that right is personal to the officer and when available public quarters are assigned to him whether of the maximum number of rooms permitted by the act of March 2, 1907, or of a less number, he is not entitled to the money allowance for rental of quarters except that, subject to other provisions of the section not now construed or interpreted, “the rental allowance shall accrue while the officer is on field or sea duty, temporary duty away from his permanent station, in hospital, on leave of absence or on sick leave, regardless of any shelter that may be furnished him for his personal use, if his dependent or dependents are not occupying public quarters during
such period.” If, therefore, an officer with dependents is not in one of the situations described in the provision of law just quoted possibly entitling him to the rental allowance, and is furnished public quarters as defined in this paragraph, he is not entitled to the money allowance for rental of quarters in addition thereto because of the fact that he has dependents. This question is answered accordingly.
EMERGENCY OFFICERS RETAINED IN THE ARMY FOR PHYSICAL
Emergency Army officers retained in the service as authorized by the act of
June 4, 1920, 41 Stat., 786, for physical reconstruction, should be paid on the basis of pay provided by the act of June 10, 1922, 42 Stat., 625, for officers of the Regular Army of the same grade, length of service, and
assignment. Comptroller General McCarl to the Secretary of War, July 25, 1922.
I have your letter of June 30, 1922, requesting decision as to the rates of pay to be paid to certain disabled emergency officers of the World War retained in the service for physical reconstruction. It is understood the officers in question originally entered Federal service between April 6, 1917, and November 11, 1918, and were of one of the following classes :
1. National Guard officers drafted pursuant to section 111 of the national defense act, 39 Stat., 211.
2. Members of the Officers' Reserve Corps, ordered to active duty pursuant to section 38 of the national defense act, 39 Stat., 190.
3. Officers appointed by the President to serve during the emergency, pursuant to the authority contained in the act of May 18, 1917, 40 Stat., 76.
With respect to the right to pay of officers of the first class, section 111 of the national defense act provided that they “shall have the same pay and allowances as officers
of the Regular Army of the same grades and the same prior service.”
Section 38 of the national defense act provides as to officers of the second class that they “shall be entitled to the pay and allowances of the corresponding grades in the Regular Army, with increase of pay for length of active service, as allowed by law for officers of the Regular Army, from the date upon which they shall be required by the terms of their orders to obey the same." And section 10 of the selective service act provided that all officers
of the forces herein provided for other than the Regular Army shall be in all respects on the same footing as to pay, allowances, and pensions as officers • of corresponding grades and length of service in the Regular Army."
The act of June 4, 1920, 41 Stat., 786, provides:
The President is authorized and directed to retain in service disabled emer. gency officers until their treatment for physical reconstruction has reached a point wbere they will not be further benefited by retention in a military hospital or in the military service.
In the appropriation act for War Department activities for the fiscal year 1923, approved June 30, 1922, under “Pay, etc., of the Army,” 42 Stat., 722, it is provided :
Pay of Officers: For pay of officers of the line and staff $33,890,771: Provided, That after January 1, 1923, the sum herein appropriated for the pay of officers shall not be used for the pay of more than twelve thousand commissioned officers on the active list of the Regular Army and the emergency officers in service undergoing physical reconstruction :
Sections 1 and 3 of the act of June 10, 1922, 42 Stat., 625 and 627, so far as here material provide:
That beginning July 1, 1922, for the purpose of computing the annual pay of the commissioned officers of the Regular Army
below the grade of brigadier general,
pay periods are prescribed, and the base pay for each is fixed as follows:
During the existence of a state of war, formally recognized by Congress, officers of grades corresponding to those of colonel, lieutenant colonel, major, captain, and first lieutenants of the Army, holding either permanent or temporary commissions as such, shall receive the pay of the sixth, fifth, fourth, third, and second periods, respectively, unless entitled under the foregoing provisions of this section to the pay of a higher period.
Sec. 3. That when officers of the National Guard or of the reserve forces of any of the services mentioned in the title of this act are authorized by law to receive Federal pay, those serving in grades corresponding to those of colonel, lieutenant colonel, major, captain, first lieutenant, and second lieutenant of the Army shall receive the pay of the sixth, fifth, fourth, third, second, and first periods, respectively,
Section 3 seems to be prospective, and to relate to the officers therein described who may be entitled to Federal pay in time of peace on and after July 1, 1922; the officers here in question have been in service under Federal appointments since prior to November 11, 1918, and came into service for the World War; one of the classes of officers, those appointed for the emergency under authority of the act of May 18, 1917, are not provided for in section 3; and in the appropriation act their pay is provided in the same item as provides pay for officers of the Regular Army; not so respecting National Guard and reserve officers entitled to Federal pay. It seems evident that these officers are not within the intent of section 3.
All these officers by the terms of their appointments were in United States service for a limited period but were retained in service under those appointments notwithstanding the termination of the period for which they were brought into such service pursuant to specific legislation so directing. When brought into United States service the law provided that National Guard officers and officers of the Officers' Reserve Corps should receive the same pay as officers of the Regular Army, and emergency officers appointed under the act of May 18, 1917, were to be on the same footing as to pay and allowances as officers of the Regular Army. Any changes in the pay and allowances of officers of the Regular Army prior to the act of June