198 Syllabus The defendant first filed a counterclaim in this suit for the alleged overpayments to plaintiff, but, after the decision in this court in John Morrell & Company v. United States, 94 C. Cls. 490, defendant, upon application to and by leave of the court, withdrew this counterclaim. Upon the facts and the provisions of the contracts between the parties in this case, the question presented is governed by the decision of this court in John Morrell & Company, supra, and judgment will be entered in favor of plaintiff for $4,439.62. It is so ordered. JOE N. COLE v. THE UNITED STATES [No. 45295. Decided October 4, 1943] On the Proofs Pay and allowances; Medical Reserve officer, United States Army, on active duty at Civilian Conservation Corps camp entitled to adequate quarters as provided by statute.-Where plaintiff, a bachelor officer in the Medical Administration Corps Reserve, United States Army, on active duty with the Civilian Conservation Corps, was not assigned to quarters and was not paid rental allowance in lieu of quarters; it is held that plaintiff is entitled to recover for the period from September 1, 1935, to July 22, 1937. Same; Army regulations under Act of May 31, 1924.-The statute of May 31, 1924, contemplated that an Army officer be assigned for his personal use the number of rooms provided by law and that such quarters should be adequate for his exclusive occupancy; and the Army regulations made in accordance with the statute provided that adequate quarters be assigned. Same; decision of Secretary of War as to adequacy of quarters at Civilian Conservation Corps camps.-Where the Secretary of War (in War Department Regulations, Changes No. 4, June 24, 1935) determined that "in view of the improved conditions of quarters now [then] prevailing at Civilian Conservation Corps work camps," shelter furnished at such camps for personal use to Army officers, without dependents, constituted "adequate quarters" as contemplated by law, the Secretary of War did not decide, or intend to decide, that a less number of rooms than the number provided by law for a commissioned officer would be adequate quarters, unless so determined by a competent superior authority in a particular case. Reporter's Statement of the Case 100 C. Cls. Same; laches.-Where plaintiff on December 6, 1939, in accordance with Army Regulations 210-70 bj (2), August 20, 1934, filed his I claim with the Corps Area Commanding General for rental allowance for the periods June 1 to July 22, 1935, and September 1, 1935, to July 22, 1937; it is held that the defense of laches is not well founded, since under the Regulations of August 20, 1934, it is not mandatory that the officer concerned appeal to the Corps Area Commander as a condition of his right to claim rental allowance provided by statute. The Reporter's statement of the case: Mr. Fred W. Shields for plaintiff. King & King were on the brief. Mr. Wilbur R. Lester, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant. Mr. Milton Kramer and Mr. E. Leo Backus were on the brief. In this case plaintiff, a first lieutenant in the Medical Administration Corps Reserve, United States Army, from April 13, 1935, to April 28, 1939, and a captain from the last-mentioned date, sues under the act of June 10, 1922, as amended by the act of May 31, 1924, to recover rental allowance of $909.33 provided by law for a bachelor officer of his grade and rank without dependents for the period September 1, 1935, to July 22, 1937.* The court, having made the foregoing introductory statement, entered special findings of fact as follows: 1. August 11, 1931, plaintiff was appointed a second lieutenant in the Medical Administration Corps Reserve, United States Army, which appointment he accepted August 18, 1931. April 13, 1935, he was promoted to first lieutenant, accepting the appointment April 22, 1935, and on April 28, 1939, he was promoted to captain, accepting the appointment April 29, 1939, which rank he now holds. Plaintiff, at the times hereinafter mentioned, was a bachelor officer. 2. May 23, 1935, plaintiff reported for a two months' tour of active duty with the Civilian Conservation Corps at Fort Bragg, North Carolina, pursuant to paragraph 2 of Special Orders No. 95, Headquarters, Fourth Corps Area, dated May 18, 1935. 42 Stat. 625; 43 Stat. 250. 201 Reporter's Statement of the Case July 13, 1935, his assignment to active duty was extended for a period of six months by paragraph 2, Special OrdersNo. 95, Civilian Conservation Corps, Fort Bragg, North. Carolina. December 31, 1935, his assignment to active duty was again extended for a period of six months by paragraph 7, Special Orders No. 208, Headquarters District "A," Civilian Conservation Corps, Fort Bragg, North Carolina; and on July 6, 1936, his assignment to active duty was again extended for a period of six months by paragraph 4, Special Orders No. 152, Headquarters District "A," Civilian Conservation Corps, Fort Bragg, North Carolina. 3. During the entire period from May 23, 1935, to July 22, 1937, while plaintiff was assigned to and performed active duty with the Civilian Conservation Corps, he was stationed at Fort Bragg, North Carolina. 4. Plaintiff reported for duty at Fort Bragg, May 23, 1935, but was not given any written assignment to quarters. Instead, he was given verbal instructions by the Commanding Officer of the Supply Company of the Post to occupy quarters in a building formerly used as bachelor quarters for officers of the Regular Army but which had been turned over to the Civilian Conservation Corps. The quarters occupied by plaintiff consisted of a room approximately 13 x 14 feet, with adjoining bath, in a steam-heated two-story building. The quarters in the building were divided into suites of two rooms, with a bath for each two suites. They were unfurnished, except for Army cots. This building was the property of the Regular Army and was turned over to the Civilian Conservation Corps during the spring of 1935. Prior to its being turned over to the Civilian Conservation Corps, the building was occupied by bachelor officers of the Regular Army. The building was used as Civilian Conservation Corps work camp quarters for officers who were ordered to active duty with the Civilian Conservation Corps and assigned to duty at that station and was also used to quarter casual officers located temporarily at Fort Bragg in connection with their Civilian Conservation Corps activities. 5. The plaintiff occupied these quarters from May 23 to July 31, 1935, during which time he shared the two-room suite Reporter's Statement of the Case 100 C. Cls. with from one to as many as five or six officers. There was an average of three to four officers, including himself, occupying this two-room suite during the period from June 1 to August 1, 1935. During the initial portion of his occupancy from May 23 to June 1, 1935, plaintiff was paid rental allowance. 6. These quarters were noisy and overcrowded. Plaintiff at the time was working long hours and was unable to obtain sufficient rest. He protested orally several times to his commanding officer about the inadequacy of the quarters furnished him, and his commanding officer promised to take the matter up with the commanding general. Finally, on August 1, 1935, plaintiff was orally advised by his commanding officer that the commanding general had given him permission to vacate the quarters and move into the nearby town of Fayetteville, North Carolina, and draw rental allowance. Plaintiff accordingly vacated his quarters that night and rented quarters at his own expense in Fayetteville, which quarters he continued to occupy until July 6, 1937. 7. Plaintiff was paid rental allowance during the month of August 1935. Thereafter he received no rental allowance. He was informed that it had been discontinued in accordance with Changes No. 4, War Department Regulations, June 24, 1935, reading as follows: 45. Availability of public quarters for Army personnel at work camps.-a. Under the authority vested in him by the Act of March 4, 1915 (38 Stat. 1069), and in view of the improved conditions of quarters now prevailing at Civilian Conservation Corps work camps, the Secretary of War has determined that shelter furnished for personal use at such camps to commissioned and warrant officers who have no dependents constitutes adequate quarters as contemplated by law. b. Hereafter, commanding officers of Civilian Conservation Corps work camps, who, under the provisions of AR 210-70, are charged with the assignment and termination of assignment of quarters, will be guided in their determination as to availability of public quarters by the foregoing decision of the Secretary of War. Plaintiff protested the discontinuance of rental allowance through his finance officer and his commanding officer, who, in turn, took it up with the commanding general. The 201 Opinion of the Court decision (verbal) of the commanding general was that the plaintiff would have to take back his original quarters or let the matter drop. This the plaintiff declined to do. There were no other quarters available for his occupancy on the Post. 8. December 6, 1939, plaintiff filed claims in writing with the commanding general, Fourth Corps Area, Atlanta, Georgia, for rental allowance for the period June 1 to July 22, 1935; also from September 1, 1935, to July 22, 1937, the period at issue in this case. These claims were disallowed. He then filed with the General Accounting Office a claim for rental allowance during these same periods. This claim was likewise disallowed. 9. If plaintiff is entitled to the rental allowance of a bachelor officer of his rank and length of service for the period from September 1, 1935, to July 22, 1937, there is due him the sum of $909.33, as computed by the General Accounting Office. The court decided that the plaintiff was entitled to recover. LITTLETON, Judge, delivered the opinion of the court: The evidence in this case shows, and we have found as a fact, that the quarters furnished plaintiff—that is, the quarters which he was verbally told by his commanding officer were the only quarters available for his occupancywere manifestly inadequate under the terms of the pertinent statutes and regulations which required that quarters of the number of rooms for an officer of plaintiff's rank adequate for his occupancy be furnished, or that, in lieu thereof, a money allowance for rental of quarters be paid. No formal assignment of quarters to plaintiff was made during or prior to this claim, in the manner prescribed by the regulations made under the pertinent statutes. Plaintiff was simply told orally by his commanding officer that under the interpretations of the regulations issued by the Secretary of War June 24, 1935, (finding 7) he could occupy the quarters which the commanding officer had previously assigned to him verbally, which assignment had subsequently been terminated by the commanding officer, or let the matter drop. 574432-44-vol. 100-15 |