« PreviousContinue »
the reservists be entitled to transportation and subsistence or to travel allowance.
The conclusion reached in the decision of July 1, 1940, was based upon the assumption of the Navy Department's determination that enlisted naval reservists were required to be discharged at expiration of enlistment notwithstanding the authority contained in section 5 of the Naval Reserve Act of 1938, 52 Stat. 1176, for their retention, throughout a war or until a national emergency ceases to exist. In this connection there is noted the statement contained in the second paragraph of your letter of May 3, 1941, quoted above, to the effect that the Navy Department has determined that enlisted men of the Naval Reserve on active duty are entitled to discharge at expiration of enlistment. It appears that the authority permitting reenlistment and extension of enlistment of naval reservists has now been rescinded by "ALNAV 59" dated June 10, 1941, which provides:
Effective upon receipt this ALNAV all Naval Reserve enlisted personnel on active duty or thereafter ordered to active duty will be retained on active duty for duration of the existing national emergency even though beyond their term of enlistment X this in accordance with agreement signed in shipping articles quote (50) in event of war or national emergency during my term of service I further obligate myself to serve throughout the war or national emergency if so required unquote
This necessarily affects the decision of July 1, 1940. From and after the date of receipt of ALNAV 59, the authority and necessity for reenlistments or extensions of enlistments in the Naval Reserve during the emergency ceases. In effect, and for purposes of travel allowance, the period of detention of naval reservists under section 5 of the Naval Reserve Act of 1938, and ALNAV 59 until termination of the emergency, is part of the current enlistment. Accordingly, a "reenlistment" thereafter entered into or an "extension" taking effect thereafter would be superfluous and inoperative to confer a right to travel allowance.
COMPENSATION-WITHIN-GRADE PROMOTIONS-APPLICABILITY OF
The within-grade promotion of the incumbent of a position pursuant to a statutory provision fixing the annual salary of the position at an increase over the prior rate is a legislative promotion and not an administrative one within the prohibition in section 302 of the act of July 3, 1941, against administrative within-grade promotions.
Acting Comptroller General Elliott to the Chairman, Interstate Commerce Commission, July 11, 1941:
I have your letter of July 3, 1941, as follows:
Public Law 28-77th Congress, making appropriations for the Executive Office and sundry independent executive bureaus, boards, commissions, and offices,
for the fiscal year ending June 30, 1942, contains the following provision under the appropriation for valuation of property of carriers:
"One valuation engineer at $7,500 per annum."
This provision was inserted on the recommendation of this Commission due to the following explanation given by me to the subcommittee of the Committee on Appropriations of the House of Representatives:
"Mr. EASTMAN. There is another matter that I think we should call to your attention, Mr. Chairman. In the Bureau of Valuation they have four men of practically equal rank, the head valuation engineer, the head valuation examiner, the head valuation appraiser, and the head valuation auditor. Those four men, during the time valuation was at its height, were each getting $9,000 a year. Under the Economy Act of 1933 they were cut down to $7,500 and put in grade P-7. So they were all getting $7,500.
"Then one of them died, or was retired, and a new man was appointed to take his place, and he came in at $6,500. He is anchored there until there are more deaths or resignations, because we cannot, under civil-service regulations, go beyond the average of the grade, the other three being in the top grade. So he is anchored definitely at $6,500.
"But he does work which is as important as that of the rest of them and I should think it ranks at the top, he being the engineer. We would like to see that corrected in the appropriation act, so he can be paid what these other men are being paid and restore that parity which has always existed in the case of those four positions.
"Mr. FITZPATRICK. When he was appointed, could you not have placed him at $7,500?
"Mr. EASTMAN. No; he would start at the initial salary of the grade, which is $6,500.
"Mr. HOUSTON. He is anchored at $6,500? "Mr. EASTMAN. Yes."
H. R. 5166-77th Congress, making appropriations to supply deficiencies in certain appropriations for the fiscal year ending June 30, 1941, and for prior fiscal years, to provide supplemental appropriations for the fiscal year ending June 30, 1942, provides:
"No appropriation or part of any appropriation available for obligation during the fiscal year 1942, including funds of Government-owned or controlled corporations, shall be used for granting within-grade salary advancements to any officer or employee of the Government of the United States, etc.: Provided, That this section shall cease to be operative whenever a uniform, within-grade, salaryadvancement plan for positions compensated according to such Classification Act, as amended, shall take effect, pursuant to law."
The appropriation act appears to make the salary for the valuation engineer statutory, but in view of the fact that this engineer is in grade P-7 at $6,500 and that in changing it to $7,500 we are still within the salary range of P-7, it is believed best to request a decision as to whether the Commission may pay a salary of $7,500 a year to the valuation engineer as of July 1, 1941.
Section 302 of the act of July 3, 1941, Public Law 150, 55 Stat. 575, provides as follows:
No appropriation or part of any appropriation available for obligation during the fiscal year 1942, including funds of Government-owned or controlled corporations, shall be used for granting within-grade salary advancements to any officer or employee of the Government of the United States, the District of Columbia, or of any such corporation, who is compensated on a per annum basis and who occupies a position the compensation of which is fixed (1) according to the schedules prescribed by the Classification Act of 1923, as amended, or (2) by Executive Order Numbered 6746, or (3) administratively according to schedules patterned after such Classification Act: Provided, That this section shall cease to be operative whenever a uniform, within-grade, salary-advancement plan for positions compensated according to such classification act, as amended, shall take effect, pursuant to law.
The above-quoted provision of law relates to administrative withingrade promotions. The salary rate of $7,500 per annum now has been fixed by statute for one valuation engineer under the appropria
tion for the Interstate Commerce Commission, subheading, "Valuation of property of carriers," Independent Offices Appropriation Act, 1942, approved April 5, 1941, Public Law 28, 55 Stat. 113, and that rate is the only one legally payable for that position for the fiscal year 1942. As the promotion of the incumbent of the position from $6,500 to $7,500 per annum is required by law, it is properly classed as a legislative or statutory promotion rather than an administrative one and, as such, is not within the prohibition contained in section 302 of the act of July 3, 1941, supra.
Accordingly, the question presented in the concluding paragraph of your letter is answered in the affirmative.
TRANSPORTATION AND SUBSISTENCE FOR NAVAL RESERVISTS UPON DISCHARGE-COMMUTATION IN LIEU OF
While a Naval Reserve enlisted man on active duty, discharged other than at expiration of enlistment for any of the causes which would entitle an enlisted man of the Regular Navy, if so discharged, to travel allowance, is entitled to transportation and subsistence in kind to the place from which taken for active duty, payment of the commuted value thereof is unauthorized. While Naval Reserve enlisted men on active duty, retained for an indefinite period of hospital treatment after discharge other than at expiration of enlistment upon recommendation of a board of medical survey, may be furnished transportation and subsistence at the termination of their hospitalization to the place from which taken for active duty, provided an appropriation is available therefor, they may not be paid, at the time of discharge from the service, the commuted value of such transportation and subsistence which would otherwise be furnished at that time.
Assistant Comptroller General Elliott to the Secretary of the Navy, July 14, 1941:
I have your letter of June 10, 1941, requesting decision on the questions presented by the Bureau of Supplies and Accounts in letter dated May 27, 1941, as follows:
1. Under the provisions of section 7 of the Naval Reserve Act of June 25, 1938, enlisted men of the Naval Reserve when employed on active duty or on training duty with pay or when employed in authorized travel to and from such duty are entitled to the same pay and allowances as enlisted men of the Regular Navy. This provision has been interpreted to mean that enlisted men of the Naval Reserve discharged at other than expiration of enlistment for any of the causes which would entitle an enlisted man of the Regular Navy, if so discharged, to travel allowance, are entitled only to transportation and subsistence from place of discharge to the place from which they entered on active duty. 2. It has been consistently held that an enlisted man of the Regular Navy given a medical survey discharge is entitled to travel allowance under the act of September 22, 1922, or to subsistence and transportation in kind to his home if a resident of the United States at the option of the man. The current naval appropriation act contains the following provision under the heading "Transportation and Recruiting of Naval Personnel":
* transportation to their home, if residents of the United States, of enlisted men and apprentice seamen discharged on medical survey, with subsistence and transfers en route, or cash in lieu thereof."
3. In connection with a small number of Naval Reservists on active duty who have been recommended by a Board of Medical Survey for discharge and
retention for treatment in a hospital for the insane or in a naval hospital, the duration of the period of detention being indefinite, the question has arisen as to the proper method of furnishing such men, upon discharge from treatment, with transportation and subsistence in kind, or cash in lieu thereof, to the place from which called to active duty. As illustrative of the cases in question, the following are cited:
Man enlisted August 22, 1940, at Benton Harbor, Michigan. Reported for active duty at the receiving station, Philadelphia, Pa., on October 11, 1940, pursuant to orders addressed to him at Coloma, Michigan. Transferred to St. Elizabeths Hospital, Washington, D. C., November 29, 1940. A Board of Medical Survey has found that he is suffering from dementia praecox, disability not the result of his own misconduct, not incurred in line of duty, and that he is unfit for service. The board recommended that he be discharged from the Naval Reserve and retained at St. Elizabeths for further treatment. Man enlisted December 29, 1938, at Los Angeles, Calif. Reported for active duty at the Naval Reserve Aviation Base, Long Beach, Calif., on June 1, 1940. A Board of Medical Survey has found that he is suffering from myelitis, disability incurred as a result of his own misconduct, not in line of duty and that he is unfit for service. The board recommended that he be discharged from the Naval Reserve and retained at the Naval Hospital, Pensacola, Fla., for further treatment.
3. The accounts of the men referred to will be closed out as of date of discharge from the Naval Reserve and at time of discharge from the hospital they will be in a civilian status. It is, therefore, requested that a decision be obtained from the Comptroller General as to whether the accounts of the men concerned may be credited with the commutation value of the transportation and subsistence in kind otherwise due at time of discharge, or, if not, whether they may be furnished with transportation and subsistence in kind at the time of discharge from hospital treatment regardless of time elapsing between date of discharge from the Naval Reserve and date of discharge from the hospital at which retained for treatment.
In decision of July 1, 1940, 20 Comp. Gen. 1, it was held that enlisted members of the Naval Reserve who are discharged at expiration of enlistment while on active duty in connection with the existing emergency are entitled to travel allowance prescribed by section 126 of the National Defense Act, as amended, 42 Stat. 1021, 34 U. S. C. 895, but see B-10730, to you, July 9, 1941, 21 Comp. Gen. 11. In decision of March 14, 1941, 20 Comp. Gen. 519, it was stated as follows:
The decision of July 1, 1940, 20 Comp. Gen. 1, considered the status of men of the Naval Reserve who are discharged at expiration of enlistment while on active duty and who may ship over. In that case they would not return to their homes and if the travel allowance of 5 cents a mile were denied them they would not receive the same allowance as enlisted men of the Regular Navy in the same situation. Where an enlisted man of the Naval Reserve is discharged before expiration of enlistment for any of the causes which would entitle an enlisted man of the Regular Navy, if so discharged, to travel allowance, there would be no reenlistment and the man would be free to return to his home. The Naval Reserve Act of 1925 was consistently interpreted, and administratively applied, as authorizing only transportation and subsistence for enlisted members traveling to and from active duty. The Naval Reserve Act of 1938 contains no provision expressly authorizing commutation of the cost of such travel. The obligation of the Government to return an enlisted man of the Naval Reserve to his home or the place from which taken for active duty upon release therefrom is not increased if at such time he is discharged from his enlistment contract. When so released from active duty (that is, by discharge) either during a time of war or national emergency or in time of peace, the man is entitled to nothing more than transportation and subsistence to the place from which he entered on active duty.
Accordingly, you are advised that enlisted men of the Naval Reserve who are discharged other than at expiration of enlistment when on active duty in
time of war or national emergency are not entitled to travel allowance at 5 cents per mile.
While an enlisted member of the Naval Reserve on active duty is entitled to transportation and subsistence to the place from which taken for active duty at the time of his discharge other than at expiration of enlistment for any of the causes which would entitle an enlisted man of the Regular Navy, if so discharged, to travel allowance, this is a right to transportation and subsistence in kind, that is, a service, and as the law makes no provision for paying the commuted value of the service, such payment is unauthorized. Compare 18 Comp. Gen. 588; 20 id. 361. The fact that some enlisted members of the Naval Reserve are retained for treatment in a naval hospital or a hospital for the insane after discharge upon recommendation of a board of medical survey, neither increases nor decreases their rights to transportation and subsistence in kind, and no legal objection is perceived to the furnishing of transportation and subsistence to such persons at the termination of their hospitalization, provided an appropriation is available therefor. Your submission is answered accordingly.
PAY-AVIATION DUTY-SCOPE OF NONFLYING OFFICER LIMITATION The provision in the Military Appropriation Act, 1941, limiting to $720 per annum the increased pay of "nonflying officers" for making aerial flights is applicable not only to the pay of flight surgeons and officers from other branches while flying in the capacity of observers but also to the pay of officers from any branch of the Army who cannot be classified as "flying officers" under the statutory definition of that term while undergoing training as aircraft pilots, observers, navigators, bombardiers, etc.
Assistant Comptroller General Elliott to the Secretary of War, July 14, 1941: I have your letter of June 12, 1941, as follows:
The Military Appropriation Act, 1941, approved June 13, 1940 (Public No. 611, 76th Congress), contains the following provision: "For pay of commissioned officers, aviation increase to commissioned and warrant officers of the Army, including not to exceed eighty-six medical officers * * none of which shall be available for increased pay for making aerial flights by nonflying officers at a rate in excess of $720 per annum, which shall be the legal maximum rate as to such officers, and such nonflying officers shall be entitled to such rate of increase by performing three or more flights within each ninety-day period, pursuant to orders of competent authority, without regard to the duration of such flight or flights."
The Military Appropriation Act, 1940, and prior acts contained language which limited aviation increase payments to $1,440 per annum for nonflying officers (except flight surgeons), but prescribed no flight requirements for such officers.
Section 13a of the National Defense Act, as amended by section 2 of the act approved July 2, 1926 (44 Stat. 780, 781), prescribes that "Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay when by orders of competent authority they are required to participate regularly and frequently in aerial flights, and when in consequence of such orders they do participate in regular and frequent aerial flights as defined by such Executive