assigned quarters in an unfinished and incompletely furnished Governmentowned building, are not entitled under the act of June 10, 1922, as amended, to rental allowance for any time during the period of such occupancy, the said act having been designed to authorize reimbursement to officers for expenses paid for private quarters when the Government is unable to furnish public quarters.

Assistant Comptroller General Elliott to the Secretary of the Navy, May 7, 1942: There has been considered your letter dated April 7, 1942, requesting decision whether Ensign Gordon F. Strobel, United States Navy, and certain other officers stationed at the United States Naval Ammunition Depot, Burns City, Indiana, occupying a Government building under the circumstances disclosed in the correspondence attached thereto may be credited with rental allowance. One of the letters attached to your request is dated March 12, 1942, and signed by Lieutenant Commander L. R. Corbin (SC), United States Navy, the disbursing officer at the station, and is as follows:

1. As suggested by the Secretary of the Navy in Reference (c), an advance decision is requested as to the right of Ensign Gordon F. Strobel to be credited with rental allowance.

2. Ensign Strobel and seven other Ensigns have occupied two houses which were originally intended for married officers. He has not been formally assigned quarters, nor has he been prohibited by orders from living off the depot. The quarters are not entirely completed nor completely furnished. They are not intended for bachelor quarters.

3. All married officers attached to this depot are occupying, with their dependents, quarters on the depot. None of these quarters are entirely completed nor completely furnished. The quarters have not been formally assigned.

4. In case Ensign Strobel and other bachelor officers are entitled to rental allowance, decision is also requested as to the right of the married officers to the rental allowance for their dependents.

5. Previous decisions of the Comptroller General which may cover similar cases are not available. No credits or payments have been made to any officer attached to this Depot on account of rental allowance for any period of time during which they or their dependents occupied quarters under. the conditions stated above.

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, providing for payment of rental allowance was designed to authorize reimbursement to the officer for expenses paid by him for private quarters when the Government is unable to furnish public quarters. Such allowance is not a part of the officer's "pay" for services rendered but is in lieu of public quarters in kind. Jones v. United States, 60 Ct. Cls. 552.

In the case of Byrne v. United States, 87 Ct. Cls. 241 (1938), 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.

The above-quoted letter, as well as the other correspondence submitted, indicates that Ensign Strobel is an officer without dependents

and that he and seven other officers having the same status occupied voluntarily, presumably with permission, at least, of the officer in charge, a Government-owned building intended for married officers with dependents. It is stated that the officers were not restricted by orders from living off the station and that the quarters occupied by them were not entirely completed nor completely furnished. It is indicated also that the quarters were not formally assigned to the officers and apparently it is because of these facts that the question of whether rental allowance is payable arises. However, the fact that any or all of these conditions obtained is immaterial insofar as rental allowance is concerned. The situation described is almost identical with that considered in decision to you dated February 14, 1942, B-23130. In that case bachelor officers without dependents on duty at Midway Island voluntarily occupied a Government building represented to be under construction and inadequately furnished and in connection with the question of rental allowance it was stated:

* The statutory provision for rental allowance was designed to reimburse officers who, by reason of the conditions under which they serve, are obliged to procure private quarters for themselves in lieu of the public quarters which would be furnished them if they were on duty at a place where public quarters could be assigned.

The bachelor officers at Midway Island, having occupied public quarters voluntarily, have not been required to incur any expense for quarters, and are not entitled to rental allowance for any part of the period in question.

See also decision to you dated April 18, 1942, A-95642, A-44001, in which, after making reference to many of the cases pertinent to the question, it was held that officers without dependents who actually occupied quarters referred to as "bunk space" at the Marine Barracks, Quantico, Virginia, were not entitled to rental allowance.

Accordingly, you are advised that officers without dependents who occupied a Government building at the United States Naval Ammunition Depot, Burns City, Indiana, under the conditions described above, are not entitled to rental allowance for any time during the period of such occupancy.

(B-25407)

TELEPHONES-PRIVATE RESIDENCES-MILITARY NECESSITY

Where military necessity requires the installation of telephones for use for official purposes in quarters at a naval air station assigned as private residences, the occupants of the living quarters to whom the telephones installed therein are available also for personal use must be charged under section 7 of the act of August 23, 1912, prohibiting expenditure of public funds "for telephone service installed in any private residence or private apartment," with the actual monthly rental incident to such telephones (including rental of instrument, dial terminal, and line mileage), but need not be charged with a pro rata share of the general expenses of maintaining the telephone system at the station. 4 Comp. Gen. 891, distinguished,

Comptroller General Warren to the Secretary of the Navy, May 7, 1942:

I have your letter of April 14, 1942, as follows:

There is transmitted herewith a copy of a letter from the Commandant, Seventh Naval District, file ND7/N28 (RSC-RBA-vw) Serial No., dated March 10, 1942, requesting a ruling on the legality and the equity of the present practice of charging to Naval Officers at the Naval Air Station, Key West, Florida, whose quarters are equipped with telephones, their pro-rata share of the cost or rental of switchboards and other equipment necessarily installed for use in connection with naval operations at said Station.

It appears that the usual or ordinary monthly rentals range from $2.30 to $2.90 per month, and that the Naval Officers' at said Station or individual's pro-rata share of costs of the other items mentioned in the preceding paragraph, calculated on the basis of recent rulings of your office, range from $1.49 to $5.28 per month per holder of phone privileges, making the total cost thereof excessive for those having phone connections with little or no opportunity or necessity for personal use thereof. Particular attention is invited to the following comments of the Commandant: The charges are considered unduly high. They are excessive in comparison with analogous charges at other naval activities. They are extremely high, considering the small amount of personal use made of the telephones. They represent, in the last analysis, a virtually compulsory payment by individuals for a service maintained in the public interest rather than for the benefit of the individual.

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* The high charges at this operating base in comparison with those made at naval activities of longer continuous commission result from the fact that the telephones at this base are not government-owned but are rented from the contractor.

Military necessity and not private convenience dictates the service provided for official quarters at this base. The telephones installed were placed in the quarters without consulting the occupants, and the service was provided with the motive of making these officers available for immediate call outside of their working hours. It will be noted that the bills show that extension telephones are installed in all quarters. These improve the individual's availability for call at any hour."

From the foregoing it is apparent that by order of and for the convenience of the Navy, and not the officers or individuals concerned, telephones are, in a great many instances, installed in their quarters for which they are obliged to pay the charges aforesaid.

The facts involved herein are somewhat analogous to those which prompted the ruling contained in your decision (A-7856) dated April 27, 1925, (4 Comp. Gen. 891) wherein it was held that regardless of the provisions of the act of August 23, 1912 (37 Stat. 414; 31 U. S. C. 679), the cost of installation and maintenance of a telephone in the residence of the superintendent of a lighthouse on the lighthouse reservation at San Juan, Puerto Rico, should be borne by the Government.

It is, therefore, requested that you advise the Navy Department whether the fact that military necessity, not private convenience, requires telephone service in the quarters of naval personnel at said isolated base, is not sufficient to permit the rental charges complained of to be borne by the Government without expectant refund from those in whose quarters the same is placed; furthermore, if the officers are to bear any part of said expense, whether it should not be limited to actual monthly rentals paid by the Government for use only of phones ordered installed by them.

Section 7 of the act of August 23, 1912, 37 Stat. 414, provides as follows:

That no money appropriated by this or any other act shall be expended for telephone service installed in any private residence or private apartment or for tolls or other charges for telephone service from private residences or private apartments, except for long-distance telephone tolls required strictly for the public business, and so shown by vouchers duly sworn to and approved by the head of the department, division, bureau, or office in which the official using such telephone or incurring the expense of such tolls shall be employed.

The language of this section is plain and comprehensive in prohibiting the payment from appropriated funds of any part of the expense of furnishing telephone service to a Government officer or employee in a private residence or quarters and has been so held in a long line of decisions. 19 Comp. Dec. 198; 22 id. 602; 4 Comp. Gen. 19; 7 id. 651; 11 id. 87; id. 365; 15 id. 885; id. 963; 16 id. 59; 21 id. 239.

The situation presented by your letter is somewhat similar to that upon which decision of this office dated January 11, 1939 (A-99355), was based. In that case a telephone had been installed in the private quarters of the officer in charge of the Naval Radio Station at Cheltenham, Maryland, for which he was required to pay a pro rata share of the total cost of telephone service at that station. The officer had very little personal use of the telephone and in fact had requested its removal. However, it was considered by naval authorities not only desirable but essential that this officer be instantly available for communication purposes 24 hours a day. It was held in said decision that payment from appropriated funds for the service would be in contravention of section 7 of the act of August 23, 1912, supra. In the decision reported in 4 Comp. Gen. 891, to which you refer as being somewhat analogous to the present situation, the telephone had been installed in the residence of the Superintendent of Lighthouses in Puerto Rico, but in a room of the building equipped and used only as an office wherein the public business of the administration of lighthouses was transacted at times when the regular office was closed. Consequently, that decision has no application to the instant case where it appears that the telephones are located in the living quarters of the officers and are available for personal, as well as official, use.

It may be, as set forth in the submission, that military necessity requires that there be some means of communication whereby officers stationed at the Naval Air Station at Key West, Fla., may be called to duty at all times. However, so far as telephone service is concerned, the above-quoted prohibition is mandatory and leaves no room for the exercise of discretion on the part of the accounting officers of the Government with reference to the matter. Hence, neither military necessity nor the fact that the Government and not the officer is responsible for the existence of the telephones in the quarters may be considered sufficient to permit payment of the cost of the telephone service from appropriated funds. Compare B-24823, April 3, 1942, 21 Comp. Gen. 905.

Where private telephones are connected to a system used for the official business of the base or station, the general rule has been for the users of such private telephones to bear a pro rata share of the

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entire cost of the system at such places. See 16 Comp. Gen. 59; 18 id. 502. The reason for such rule being that under the provisions of the act of 1912 the Government is precluded from bearing any extra expense by reason of the fact that telephone service is furnished for private purposes, and there appeared no other means of ascertaining the amount of such extra expense.

In the matter here presented it is understood from what is set forth in the submission and the enclosures transmitted therewith, that all telephones at the Naval Air Station at Key West, whether installed in quarters used for offices, shops, etc., or in living quarters, are installed and used for official purposes. Hence, the users of the private quarters in which such telephones are installed need be charged with only such costs as result directly from such installations.

Accordingly, in specific answer to the question presented. I have to advise that while the provisions of section 7 of the act of August 23, 1912, require that the persons in whose living quarters the telephones are installed be charged with the actual monthly rentals paid by the Government for the telephones (including the rental of instrument, dial terminal and line mileage), in view of the circumstances which are represented to exist at the Naval Air Station at Key West. such persons need not be charged with a pro rata share of the cost of the general expenses of maintaining the telephone system at that station.

(B-25559)

SET-OFF-RETIREMENT DEDUCTIONS AND ANNUITIES IN GENERAL Retirement deductions which are made from an employee's salary on and after the date of the act of January 24, 1942, amending the Civil Service Retire ment Act, and which, upon separation of the employee from the service, are required to remain in the retirement fund as a basis for future annuity payments if the employee has had 5 or more years of service, are not avalable after separation for set-off against an indebtedness to the Government, but if the employee dies prior to becoming eligible for an annuity, any amount to his credit in the retirement fund otherwise payable to his estate is available for set-off purposes. Retirement deductions made prior to January 24, 1942, from the salary of an employee within the purview of section 5 of the act of January 24, 1942 amending the Civil Service Retirement Act to provide in effect that retire ment deductions made prior to January 24, 1942-as distinguished from those made on and after such date where the employee has had 5 or more years of service-shall be subject to withdrawal at his election upon separation from the service, are available for set-off against an indebtedness to the Government if and when the employee makes claim for refund thereof. Annuity payments due a former employee pursuant to section 5 of the act of January 24, 1942, providing for annuity benefits at a certain age to former employees who have been separated from the service after serving 5 or more years, are available as a set-off against an indebtedness to the Government.