Comptroller General Warren to the Secretary of War, September 26, 1941: There has been considered your letter dated August 15, 1941, as follows:

Section 30 of the act of June 3, 1916 (39 Stat. 187), as amended by the act of April 25, 1938 (52 Stat. 221), reestablishing the Regular Army Reserve, provides in part as follows:

"Active duty for such purposes shall be deemed to begin on the date of acceptance for such duty following compliance with the order to report for active duty and shall terminate when relieved or discharged from such duty." Paragraph 27a, AR 155-5, as amended by section I, Circular No. 91, War Department, May 6, 1941, provides that a member of the Regular Army Reserve will be taken up on the pay rolls of the organization to which he is assigned or attached as of the date accepted and sworn in for active duty, after physical examination. Regular Army Reservists are sworn in when they enlist for the Regular Army Reserve and do not take a second oath when called to active duty. Although paragraph 25, AR 155-5, as amended by Circular No. 105, War Department, September 18, 1940, requires that "Members of the Regular Army Reserve will be given a physical examination immediately after they report for active duty * *," it has been demonstrated that in practice physical examinations have sometimes been delayed several days. As this delay is through no fault of the reservist, it appears that he should not be penalized as to his pay, but should, if he is accepted, be paid from the date of reporting.

*

There is also for consideration the question whether a reservist who fails of acceptance because he cannot pass a physical examination should be paid for the time he is in camp. It would appear that a reservist who reports in good faith and is rejected by the medical board should be compensated for the time he loses from his civil occupation. In this connection it will be noted that the above cited act provides for transportation to and from the camp and subsistence while in camp. Since he is entitled to these allowances, it would appear that he should also receive pay for this period.

Accordingly, your decision is requested as to what constitutes the "date of acceptance" for pay purposes under the provisions of the act of April 25, 1938 (52 Stat. 221).

Section 30 of the act of June 3, 1916, 39 Stat. 187, as amended by section 30 of the act of June 4, 1920, 41 Stat. 775, and by the act of April 25, 1938, 52 Stat. 221, is as follows:

SEC. 30. THE REGULAR ARMY RESERVE.-Under such regulations as the President may prescribe there shall be organized and maintained as a part of the Regular Army and in addition to the authorized strength thereof otherwise provided a Regular Army Reserve. Any person who has served in the Regular Army and who has been honorably discharged therefrom, and who is less than thirty-six years of age may, under regulations prescribed by the President, be reenlisted for the Regular Army Reserve. Each soldier thus reenlisted shall be entitled to receive, during each year of his service in the Regular Army Reserve, an enlistment allowance of $24 per annum payable in installments under such regulations and conditions as the President may prescribe. Service in the Regular Army Reserve not on active duty shall confer no right to pay, longevity pay, retirement or retired pay, or any other emoluments upon members thereof except as provided in this section; and member of the Regular Army Reserve shall become entitled to pensions only due to disability incurred while on active duty in the service of the United States. Active duty for such purposes shall be deemed to begin on the date of acceptance for such duty following compliance with the order to report for active duty and shall terminate when relieved or discharged from such duty. Members of the Regular Army Reserve may be ordered to active duty only in case of emergency declared by the President and when so ordered shall be furnished transporta tion and subsistence allowances at Government expense from their homes within the continental limits of the United States or its possessions to points where ordered to report for active duty. In addition, if found qualified and accepted for active duty following such order, they shall receive a sum at the rate of $3 per month for each month they have been enlisted in the Regular Army

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Reserve but not to exceed $150. While on active duty they shall have the same status and receive only the same pay and allowances provided by law for enlisted men of the active Regular Army of like grade and length of service. In computing length of service for pay purposes, time spent on active duty only will be counted. Within six months after the termination of an emergency declared by the President, they shall be placed in an inactive status or discharged, whichever is appropriate.

Members of the Regular Army Reserve shall be subject to military law only from the date they are required to obey an order to report for active duty.

Paragraph 27a, Army Regulations No. 155-5, as amended by section. I of War Department Circular 91 dated May 6, 1941, provides:

A member of the Regular Army Reserve will be taken up on the pay rolls of the organization to which he is assigned or attached as of the date accepted and sworn in for active duty, after physical examination,

* *

It is stated that when members of the Regular Army Reserve are ordered to active duty they are not required to take a second oath of office at that time, but it is required that they be physically examined to determine whether or not they are qualified for active duty, and certainly the statute requires this, as active duty is to begin "on the date of acceptance for such duty following compliance with the order to report for active duty," and an additional payment (with a limit) is authorized for time in the Reserve "if found qualified and accepted for active duty following such order." Paragraph 25, Army Regulations No. 155-5, as amended by War Department Circular 105, dated September 18, 1940, provides:

Members of the Regular Army Reserve will be given a physical examination immediately after they report for active duty under proper orders, to determine whether or not they are qualified for active duty.

*

Paragraph 29a of the Regulations as amended by the same War Department Circular is as follows:

Members of the Regular Army Reserve, when ordered to active duty in case of an emergency declared by the President, will be furnished coach transportation and subsistence allowance at Government expense from their last properly reported homes within the continental limits of the United States or its possessions to points where they are ordered to report for active duty, and for the return journey if rejected for active duty.

Your letter presents two questions: (1) whether or not a member of the Regular Army Reserve is entitled to pay for active duty from the date of reporting therefor if his acceptance is delayed through no fault of the reservist; and (2) whether or not a member of the Regular Army Reserve is entitled to pay as for active duty for the time he loses from his civil occupation where he reports in good faith for active duty but is rejected by the medical board.

The statute quoted above provides that service in the Regular Army Reserve not on active duty confers no right to pay except as provided therein, that is $24 per annum, and that active duty begins on the date of acceptance after compliance with the order to report for active duty. Undoubtedly where a reservist reports for active

duty and for reasons not disclosed he is not accepted until the lapse of several days, theoretically he suffers a loss. To compensate him for this loss you suggest that the man be paid active duty pay from the date of reporting. The statute seems to provide a form of reimbursement when accepted which would seem to cover such short delays. In the case of a reservist who is not accepted, it is suggested that he be paid active duty pay so that he would be "compensated for the time he loses from his civil occupation." Apparently, it is suggested that a rejected reservist be paid active duty pay for necessary travel time from his home to the place where he is ordered to report and return to his home. In other words your suggestion appears to be to pay a rejected reservist for necessary time for travel whereas, in the case of an accepted reservist you suggest pay from the date of reporting only. However, in both cases the question is whether or not a reservist is entitled to active duty pay prior to the date on which he is accepted for active duty.

The language of the statute is clear and unambiguous. It contemplates an acceptance for active duty before the reservist is deemed to be in an active duty status. The "date of acceptance" insofar as pay purposes are concerned is the date on which under the regulations the reservist is accepted for active duty "following compliance with the order to report for active duty." If more is believed to be justified the matter should be presented to the Congress.

(B-20568)

ASSIGNMENT OF CLAIMS-AMOUNTS DUE FOR TRANSPORTATION OF GOVERNMENT PROPERTY ON GOVERNMENT BILLS OF LADING

A Government bill of lading constitutes a contract for transportation of the goods involved and as such comes within the authority in the Assignment of Claims Act of 1940 to assign moneys due or to become due “under a contract providing for payments aggregating $1,000 or more." Where a carrier has assigned to a bank all moneys due for freights on the outward voyage of a vessel, and the Government bills of lading representing numerous shipments on the vessel constitute the only contract for the transportation, the assignment may be recognized, under the Assignment of Claims Act of 1940, as authorizing payment in the name of the assignee only with respect to each such bill of lading which involves a payment of $1,000 or more, but where the amount involved is less than $1,000, payment should be made in the name of the transportation company and the check mailed in care of the assignee.

Comptroller General Warren to the Secretary of the Navy, September 26, 1941: I have your letter of September 15, 1941, as follows:

There is forwarded herewith a letter from the Bank of America, San Francisco, California, dated July 1, 1941, with accompanying correspondence. Your decision is requested on the question presented by the Bureau of Supplies and Accounts, Navy Department, in the first endorsement herewith of July 18, 1941, as to

whether the Assignment of Claims Act of 1940 (54 Stat. 1029), approved October 9, 1940, is sufficiently broad to authorize the assignment of claims for transportation charges payable under Government bills of lading.

Since the Assignment of Claims Act of 1940 applies only with respect to "pay. ments aggregating $1,000 or more," if the answer to the above question is in the affirmative, your further decision is requested as to whether payment under said act is authorized of the aggregate amount represented by the seventeen bills of lading in question, copies of which are enclosed, or whether payment is restricted to the aggregate amount represented only by the four bills of lading, Nos. N563634, N559200, N559131, and N559024, and the respective amounts of $16,370.06, $2,206.76, $1,084.75, and $3,137.36.

It appears, from the papers enclosed with the above-quoted letter that the Supply Officer, Navy Yard, Mare Island, Calif., has made some 17 shipments on Government bills of lading, via steamship Admiral Y. S. Williams, of the American President Lines, John N. Raymond, owner, consigned to the Supply Officer, Naval Station, Guam. The bills of lading on which the shipments were made, together with the amounts reported to be due for shipment of the material covered thereby, are as follows:

Under date of June 3, 1941, there was executed by John N. Raymond an instrument purporting to assign to the Bank of America National Trust and Savings Association pursuant to the Assignment of Claims Act of 1940, 54 Stat. 1029, all moneys due or to become due for freights on the outward voyage of the Admiral Y. S. Williams, commencing April 24, 1941, on various bills of lading covering shipments for the United States Navy. Copies of said assignment and notices thereof are reported by the assignee to have been forwarded to this office, to the disbursing officer, Bureau of Supplies and Accounts, or to the contracting officer, Bureau of Supplies and Accounts, Navy Department.

In response to a request from the Chief, Bureau of Supplies and Accounts, for an opinion as to whether the Assignment of Claims Act of 1940 authorized assignment of amounts due for transportation of Government property on Government bills of lading, the Judge Advocate General of the Navy, by second indorsement of August 2, 1941, advised as follows:

1. The Assignment of Claims Act of 1940 (Public, No. 811, 76th Cong.), approved October 9, 1940, authorizes, under conditions as therein specified, the assignment of moneys due or to become due under "a contract providing for payments aggregating $1,000 or more."

2. It appears that no formal contract was entered into in the present case; otherwise, the question would not arise whether Government bills of lading are comprehended within the terms of the Assignment of Claims Act of 1940.

3. The accepted rule appears to be that a bill of lading is a receipt for a consignment of goods and operates both as a receipt and contract for the transportation of goods. In the case of Pollard v. Vinton (105 U. S. 7), a bill of lading is defined, as follows:

"It is an instrument of a twofold character; it is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel; in the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or deliver."

4. In accordance with this generally accepted definition of the term “bill of lading,” it would appear that the Assignment of Claims Act of 1940 is broad enough to authorize the assignment of claims for transportation charges payable under Government bills of lading. However, since the answer to this question will be of interest to other departments and agencies of the Government and also will involve the legal availability of naval appropriations, which latter question is exclusively one under the jurisdiction of the Comptroller General of the United States, it is the considered view of this office that an authoritative ruling on this question should be obtained from the Comptroller General.

5. With the return of papers, it is requested that this office be furnished a copy of the Government bills of lading referred to in the basic letter, together with a statement as to whether a contract or agreement of any description, other than the bills of lading referred to, was entered into in this particular case. Since, as indicated above, the Assignment of Claims Act of 1940 is applicable only with respect to "payments aggregating $1,000 or more," the additional information herein requested is for use in that connection.

6. Upon return of papers with the additional information herein requested, this office proposes to recommend reference of the question to the Comptroller General of the United States for decision.

Thereafter it was reported by the Chief, Bureau of Supplies and Accounts, that the bills of lading served as the sole basis and authority for the movement of the material covered thereby and that no other contract or agreement was made with the transportation company.

The Assignment of Claims Act of 1940, 54 Stat. 1029, provides in pertinent part as follows:

That sections 3477 and 3737 of the Revised Statutes be amended by adding at the end of each such section the following new paragraph:

"The provisions of the preceding paragraph shall not apply in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more, are assigned to a bank, trust company, or other financing institution, including any Federal lending agency:

The Judge Advocate General of the Navy has stated in his abovequoted indorsement the generally accepted view, expressed in Pollard v. Vinton, 105 U. S. 7, that bills of lading constitute not only a receipt for the goods involved, but a contract for their transportation. See, also, The Tongoy, 55 F. 329; Planters' Fertilizer Mfg. Co. v. Elder, 101 F. 1001; Cobb v. Brown, 193 F. 958, 960; In re Livingston & Turk, 205 F. 364, 366; Second National Bank of Hoboken v. Columbia Trust Co., 288 F. 17, 23, 30 A. L. R. 1299; and The Jean Jadot, 14 F. Supp. 161, 162.

Regarding each of the bills of lading as separate contracts it would appear that amounts due or to become due as a result of the trans