Page images

Likewise in the report of the Senate Committee on Foreign Relations relative to the matter (Senate Report No. 45), the scope of the term. "defense article" is the subject of comment as follows:

The term "defense article" is defined so as to include the usual implements of war, such as guns, airplanes, and tanks, and also the food, clothing, medical supplies, and the like, without which warring nations would be helpless. In connection with the Defense Aid Supplemental Appropriation Act, 1941 (Public Law 23), making an appropriation of $7,000,000,000 to enable the President to carry out the provisions of the above act, the report of the Committee on Appropriations, House of Representatives (Report No. 276), in explanation of the omission of minute details concerning the matters covered by the appropriation, states: The procurements under the funds in this bill are for weapons and instruments of war to aid the countries which are engaged in a desperate struggle and whose success in that combat is vital to us.

However, the act provides in section 3 that

Any defense article procured from an appropriation made by this Act shall be retained by or transferred to and for the use of such department or agency of the United States as the President may determine, in lieu of being disposed of to a foreign government, whenever in the judgment of the President the defense of the United States will be best served thereby.

and it is assumed that if the 112 vessels to be constructed under these acts are not to be devoted to use by a foreign government, but instead are to be retained for use by the United States along with the 200 cargo ships to be constructed under the joint resolution of February 6, 1941, such action would be pursuant to this provision.

Therefore, viewing your question in the light of the purposes to be served, so far as is discernible from the legislation under which it appears the vessels are to be constructed, it would seem reasonably clear that while the construction of the vessels for which provision is made in the joint resolution of February 6, 1941, may have resulted from, or may have been necessitated by, the demands arising under the national defense program, the primary purpose of said joint resolution was to provide said ships as a means of preserving or furthering the interests of the commerce of the United States and to augment the depleted facilities available for that purpose, replacing vessels withdrawn from said service because of the demands of defense. On the other hand, in the Act to Promote the Defense of the United States and in the Defense Aid Supplemental Appropriation Act, 1941, the emphasis seems to be placed principally upon the rendering of direct aid in resistance to military aggression, though it is conceivable, at least, that in some instances articles authorized to be manufactured or procured under said acts might be put, as a matter of defense, to a use not directly connected with military operations. Within the scope of these objectives, it is realized that there

is possible a wide variation in the purpose to be served through the use of cargo vessels, ranging from the carrying of munitions and supplies for direct consumption by military forces in the theatre of war, on the one hand, to the transportation of cargoes for domestic consumption, related, as a matter of defense, to military operations only remotely, if at all, on the other. The question as to whether the materials to be procured for the construction of the cargo vessels here concerned under either act are to be directed to the accomplishment of the one or the other of these purposes is a question of fact concerning which information, initially at least, would seem to be an exclusive possession of the administrative agencies involved. The administrative determination, therefore, that the transportation involved in any particular instance embraces materials moving for military or naval and not for civil use will be given appropriate consideration. Having regard, however, to the purpose or use apparently intended to be served by the legislation concerned, it is believed that with respect to the materials for the construction of the cargo vessels authorized under the joint resolution of February 6, 1941, this office would not be required to object to the payment of transportation charges without deduction for land-grant in the absence of an administrative determination that, under the particular facts that may be involved in any instance, said materials are being transported for military or naval and not for civil use. Likewise, with respect to the materials for the construction of cargo vessels pursuant to the authorizations in the Act to Promote the Defense of the United States and the Defense Aid Supplemental Appropriation Act, 1941, if it be administratively determined that said vessels are to serve the purposes of commerce-as a matter of defenserather than to participate in the carrying of supplies for military purposes, and that, therefore, the transportation of materials for their construction is regarded as involving materials moving for civil rather than military or naval use, the administrative certification accordingly will be accepted by this office as prima facie correct. Your question is answered accordingly.



A National Guard enlisted man, who was sick in hospital at the time his organization was inducted into active Federal service, is entitled, upon later reporting to his unit pursuant to orders and subsequent discharge for disability, to pay from the date that he commenced travel under his orders until the date of his discharge and to travel allowance as provided by the act of September 22, 1922, notwithstanding the disqualifying nature


of his disability was known by his commanding officer prior to the issuance of the orders and that if pertinent Army Regulations had been followed he would have been examined at his home station.

Assistant Comptroller General Elliott to Lt. Col. R. F. Olson, U. S. Army, August 16, 1941:

There has been received, by reference from the Chief of Finance, your letter of May 22, 1941, transmitting with enclosures, a voucher stated for $144 in favor of Jack B. Lewis, No. 20929188 (NG), representing active duty pay as a private of Company C, 163d Infantry, for the period February 4 to May 13, 1941, and travel allowance upon discharge from Fort Lewis, Wash,, to Bozeman, Mont.

Under Executive Order No. 8530, dated August 31, 1940, issued by virtue of the authority contained in Public Resolution No. 96, approved August 27, 1940, 54 Stat. 858, and the National Defense Act of June 3, 1916, 39 Stat. 166, as amended, all members of the 163d Infantry, Montana National Guard, were ordered into the active military service of the United States effective September 16, 1940, for a period of 12 consecutive months unless sooner discharged. It appears that at the time of the induction of the organization Private Jack B. Lewis was confined to bed at the home station of his unit undergoing treatment for a compound fracture of his right leg, which was sustained during the latter part of August 1940, and as a consequence he was not physically examined by the medical board at his home station and was unable to accompany the unit to the training center. It appears from a first indorsement of the regimental commander, dated January 6, 1941, that the company commander was informed by the civilian physician who attended the soldier that it would be a matter of several months before the injury would be sufficiently healed; "that the soldier was not qualified to undergo a physical examination at this time"; that the soldier was interviewed at Bozeman, Mont., on or about December 30, 1940, by his company commander and it was found that he still had a very pronounced limp and was then receiving treatment from a civilian physician. According to that indorsement the company commander expressed the belief that the soldier should be discharged on account of physical disability.

It seems that if pertinent Army Regulations had been followed, the enlisted man would have been examined at his home station by a medical examining board and determination then and there made as to whether or not he was qualified for active military service and if found in the negative a discharge issued for physical disability as provided in Army Regulations 130-10, paragraph 62.

Notwithstanding the apparent inability of the National Guard enlisted man to qualify for extended active duty, an order was issued

January 27, 1941 (par. 16, Special Orders 22, Headquarters, 41st Division, Camp Murray, Wash.) as follows:

16. Pursuant to GO No. 5 this Headquarters, September 16, 1940, Private Jack B. Lewis, 20929188, Company "C", 163d Infantry, absent, sick in hospital at Bozeman, Montana, since departure of unit for Camp Murray, Washington, will proceed without delay by rail to Camp Murray, Washington, reporting upon arrival thereat to his Commanding Officer. The Quartermaster Corps will furnish the necessary transportation. It being impracticable for the government to furnish cooking facilities for rations, the finance department will pay the monetary travel allowances prescribed in paragraph 2a, table II, AR 35-4520, at the rate of two dollars and twenty-five cents ($2.25) per day for one (1) man for (1) day. The travel directed is necessary in the military service and is chargeable to FD 1584-P 31-0600-A-0310-01.

On February 11, 1941, the regimental commander of the 163d Infantry, Camp Murray, Wash., addressed a letter to The Adjutant General of the Army reciting the fact that the soldier had reported to Camp Lewis, Wash., on February 5, 1941, in accordance with paragraph 16, Special Orders 22; that on February 6, 1941, the soldier was found physically disqualified (as indicated on W. D. A. G. O. Form 135), and requested that appropriate orders be issued by higher headquarters for the discharge of this soldier, authorizing necessary transportation to soldier's home station, Bozeman, Mont. On the same day, February 11, 1941, the commanding general, 41st Division, requested that appropriate orders be issued by the commanding general, 9th Corps Area, for the discharge of the soldier, but that pending the issuance of the necessary orders the soldier would remain with his unit.

Paragraph 1 of Special Orders 93, Headquarters 163d Infantry, Port Lewis, Wash., May 13, 1941, provided:

Under the provisions of Paragraph 62, AR 130-10, and by direction of the President, Jack B. Lewis, 20929188, Company "C", 163d Infantry (Rifle), is this date discharged from the Army of the United States by reason of physical disability as determined by the physical examination board at Camp Murray, Washington, on February 6, 1941.

The former enlisted man is entitled to pay from the date that he commenced travel under the requirement of paragraph 16 of Special Orders 122 until date of discharge, May 13, 1941. He is entitled, also, upon discharge to travel allowance as provided in the act of September 22, 1922, 42 Stat. 1021.

You are authorized to pay the voucher, which is returned herewith, if otherwise correct.



Mail messengers and job cleaners at first and second class post offices, regularly employed and whose salary is fixed on an annual basis, may be paid the fees authorized by law and regulation for service as special delivery messengers

in addition to their regular salary without contravening any of the dual compensation statutes, provided such service is not performed during a regular tour of duty.

Comptroller General Warren to the Postmaster General, August 16, 1941:
I have your letter of July 10, 1941, as follows:

Question has been raised as to the application of the dual compensation statutes in the case of special delivery messengers. Two specific cases are under consideration by the Department wherein a mail messenger and a job cleaner regularly employed in the Boston post office have rendered additional services as special delivery messengers and the effect of such additional employment has been to increase their compensation to a sum in excess of $2,000 in each instance.

In view of the decision of your office reported in 16 C. G. 909, it is requested that you advise this Department whether special delivery messengers who are paid entirely on a fee basis come within the restrictive provisions of the dual compensation statutes.

It is understood that mail messengers and job cleaners are regular employees of the Post Office Department, whose compensation or salary is fixed on an annual basis (39 U. S. C. 101, taken from the act of February 28, 1925, 43 Stat. 1060).

Section 175, Title 39, U. S. Code, provides in pertinent part as follows:

At first- and second-class post offices the Postmaster General may establish rules under which special delivery may be effected by any salaried clerk or employee thereof, and the lawful special-delivery fees allowed therefor, in cases where such delivery can not be made by regular messengers. (June 2, 1900, c. 613, § 1, 31 Stat. 260.)

Compare 39 U. S. C. 167, taken from the act of August 4, 1886, 24 Stat. 220, relative to the use of employees at third- and fourth-class post offices as special-delivery messengers.

Section 169 (a), Title 39, U. S. Code, provides:

Special delivery; messenger service; schedule of rates. For making special delivery there may be paid to the messenger or other person making such delivery 9 cents, for matter of the first class weighing not in excess of two pounds, 10 cents for matter of other than the first class weighing not in excess of two pounds, 15 cents for mail matter of any class weighing more than two pounds but not in excess of ten pounds, and 20 cents for mail matter of any class weighing in excess of ten pounds. (Mar. 2, 1931, c. 372, § 3, 46 Stat.


Section 1096 (3), Postal Laws and Regulations, 1940, reads as follows:

When delivery of special-delivery matter can not be made promptly by regular special-delivery messengers, postmasters may cause such delivery to be made by any regular clerk or employee, who shall be allowed the same compensation as regular messengers, except that, at offices of the first and second classes, regular clerks or employees (other than rural carriers and clerks in charge of rural stations) shall not receive fees for delivering special-delivery mail during their regular tours of duty, and substitutes shall not receive fees for effecting special deliveries during the time for which they are paid at the hourly rate. Sections 1764 and 1765, Revised Statutes, provide:

SEC. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other Department; and no allowance or compensation shall

« PreviousContinue »