Page images
PDF
EPUB

“personal property” would appear to have been dispelled by the uniform regulations prescribed by the President as contained in Executive Order No. 8588, November 7, 1940. Conceding that the meaning of the term “personal effects” is to be determined from the sense in which it is used and the object sought to be accomplished, and, therefore, a matter of construction, it appears the President has construed the term, in the regulations, as being synonymous with "personal property.” Thus, in section 2 of the regulations the President prescribed the authorized weight allowances as follows:

Maximum Allowances for Transportation.—(a) Weight.--The actual costs of transportation of the household effects and other personal property of the employee, not in excess of 5,000 pounds gross *: Provided, That employees who have no dependents living with them shall be entitled to the transportation of household effects and other personal property not in excess of 2,500 pounds gross.

(Italics supplied.] And in section 9 of the regulations it is provided :

Items not allowable.--For the purposes of these regulations household goods and other personal effects shall not include groceries, provisions, wines, liquors, animals not necessary in the performance of official duties, birds, or automobiles. [Italics supplied.]

Since the President has defined the term “personal effects” as not including animals not necessary in the performance of official duties, the conclusion is inescapable that animals necessary in the performance of official duties are "personal effects” within the meaning of the regulations prescribed pursuant to the 1940 statute.

In view of the foregoing there appears no sound basis for construing the term “personal effects” as used in the 1940 statute other than as synonymous with “personal property” generally and, therefore, the question presented by you necessarily must be answered in the negative.

(B-18661)

PAY-ADDITIONAL-PARACHUTE DUTY

Since the act of June 3, 1941, providing additional pay for parachute duty, re

quires the head of the department to designate the duty which shall con. stitute parachute duty, a proposed regulation which leaves such designation to commanding officers constitutes an unauthorized delegation of authority

and is not a compliance with the statute. If the regulations to be issued by the Secretary of the Navy under the act of

June 3, 1941, authorizing additional pay for parachute duty, shall pro for granting the rating of parachutist to Navy enlisted men on duty with Marine Corps parachute troops, their right to pay under that rating will

Dot be questioned if the other requirements of the statute are met. Under the act of June 3, 1941, providing for additional pay for parachute

duty, a parachute matériel school student whose course of instruction includes parachute jumping may be considered as undergoing training for the rating of parachutist and, therefore, entitled to the additional pay, if the regulations to be issued by the head of the department provide for giving such a rating upon successful completion of training at such a school Assistant Comptroller General Elliott to the Secretary of the Navy, July 17,

194 L: I have your letter of July 8, 1941, as follows:

The act approved June 3, 1941 (Public Law 98, 77th Congress), “To provide increased pay for certain military personnel while engaged on parachute duty," reads as follows:

"That hereafter any officer, warrant officer, or enlisted man of the Army, Navy, or Marine Corps of the United States not in flying-pay status who is assigned or attached as a member of a parachute unit, including parachute-jumping schools, and for whom parachute jumping is an essential part of his military duty and who, under such regulations as may be prescribed by the Secretary of War or the Secretary of the Navy, has received a rating as a parachutist or is undergoing training for such a rating shall receive, while engaged upon duty designated by the head of the department concerned as parachute duty, additional pay at the rate of $100 per month in the case of any such officer or warrant officer, and additional pay at the rate of $50 per month in the case of any such enlisted inan."

In connection with the foregoing, there is forwarded herewith a letter from the Bureau of Navigation, Navy Department, dated July 2, 1941, with enclosure of a proposed change in Article D-5326, Bureau of Navigation Manual, setting forth regulations as to the conditions under which enlisted men of the Nary may be entitled to parachute pay while engaged in the performance of parachute duty as authorized in the said act of June 3, 1941.

Your decision is requested as to whether payments of additional pay at the rate of $50 per month for enlisted men of the naval service for whom parachute jumping is an essential part of their military duty, will be passed in the audit, where such payments are made on the basis of the enclosed proposed regulations to be issued on this subject, and further,

(a) Whether or not the term “parachutist” as used in the act of June 3, 1941, may be construed to include naval enlisted personnel, while on duty with Marine Corps parachute troops who are required to jump with these troops, so as to entitle such naval enlisted personnel to additional pay as provided in the act of June 3, 1941; and

(b) Whether or not the phrase "undergoing training" as used in the act of June 3, 1941, may be held and considered to apply to parachute matériel students, during whose period of training parachute jumping is a prescribed duty,

as to entitle such parachute matériel students to the additional pay authorized by the act of June 3, 1941, for personnel engaged in the performance of parachute duty.

The paragraph proposed to be added to article D-5326, Bureau of Navigation Manual, reads as follows:

(6) An enlisted man, not in flying pay status, who is assigned or attached as a member of a parachute unit, including parachute jumping schools, and for whom parachute jumping is an essential part of his military duty and who, under such regulations as prescribed hereinafter, has received a designation as a parachutist or is undergoing training for such a designation shall receive, while engaged upon duty designated by his commanding officer as parachute duty, additional pay at the rate of fifty dollars ($50) per month :

(a) To be designated as a parachutist a man must:

(1) Be a student undergoing instruction at a Parachute Matériel School, where parachute jumping is part of the approved curriculum of the school.

(2) Be a student undergoing instruction at a Parachute Jumping School.

(b) To retain the designation of a parachutist a man must have successfully completed a course of instruction at a Parachute Training School, and be assigned duty with a unit or activity where parachute jumping is an essential part of his military duties.

The act of June 3, 1941, quoted in your letter, provides five conditions which must exist to entitle personnel of the specified classes to additional pay for parachute duty. These conditions are as follows:

(1) The officer or man must not be in a flying-pay status.

[ocr errors]

(2) He must be assigned or attached as a member of a parachute unit (including parachute-jumping schools).

(3) Parachute jumping must be an essential part of his military duty.

(4) He must have received a rating as a parachutist or must be undergoing training for such a rating under such regulations as may be prescribed by the Secretary of War or the Secretary of the Navy.

(5) He must be engaged upon duty designated as parachute duty by the head of the department concerned.

The first sentence of the proposed addition to article D-5326 of the Bureau of Navigation Manual contains conditions corresponding to those numbered 1, 2, and 3 above in approximately the same terms as those which appear in the statute. With respect to the fourth condition, while the statute provides that the officer or man must have received a rating as a parachutist or must be undergoing training for such a rating, the proposed regulation provides that the enlisted man must have received a designation as a parachutist or be undergoing training for such a designation, this difference in terminology is not such a material deviation from the terms of the statute as to require objection. The fifth condition to payment under the statute is that the officer or man must be “engaged upon duty designated by the head of the department concerned as parachute duty,” whereas the proposed regulation provides that the man must be “engaged upon duty designated by his commanding officer as parachute duty.” Such a delegation of authority to commanding officers was not intended. The proposed paragraph 6 (b) provides that the retention of the designation as parachutist after completion of training as a student at a parachute training school depends upon the enlisted man's assignment to duty with a unit or activity where “Parachute jumping is an essential part of his military duties,” but that is not a sufficient compliance with the fifth statutory condition is stated above. It would appear that the statute contemplates the issuance of a definition of "parachute duty” by "the head of the department concerned” to guide commanding officers and aid in the uniform application of the statute. Commanding officers should then be required to certify, in connection with proposed payments of parachute-duty pay, that during the entire period for which payment is proposed the payee was on parachute duty as so defined. A more definite answer as to payments under the proposed regulations cannot therefore be made.

In answer to question designated (a) in your letter the term “parachutist" is used but once in the act; it is so used to designate the rating, and that rating is to be conferred “under such regulations as may be prescribed by the Secretary of War or the Secretary of the Navy." If the regulations to be issued by the Secretary of the Navy for the

granting of the rating of parachutist shall provide for such a rating to enlisted men of the Navy on duty with Marine Corps parachute troops, this office will not question their right to pay under that rating if the other requirements of the statute are met.

As to question designated (b) in your letter the statute provides that parachute-duty pay may be paid under the stated conditions to one of the classes of personnel mentioned if he has received a "rating as a parachutist or is undergoing training for such a rating.” It is proposed to provide in the amendment of article D-5326 of the Bureau of Navigation Manual that students at parachute matériel schools (where parachute jumping is part of the approved curriculum of the school) may be designated parachutists. You ask whether the phrase "undergoing training" may be considered to apply to parachute matériel students. If training at a parachute matériel school includes parachute jumping, the student undergoing such instruction, although not previously engaged in training for the rating of parachutist, is engaged in duty requiring parachute jumping as an essential part of his military duty, and reasonably, within the statute, may be considered as undergoing training for the rating of parachutist if the regulations to be issued by the Secretary of the the Navy provide for the giving of such a rating upon successful completion of training at a parachute matériel school.

(B-17658)

AS

TO

APPROPRIATIONS-INDEFINITE AMOUNTS_REQUIREMENT

COVERING INTO SURPLUS FUND

The provisions of the act of June 20, 1874, as amended, requiring all unexpended

balances of appropriations which shall have remained on the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into the Treasury, are applicable to an indefinite appropriation, that is, an appropriation made for a particular fiscal year but indefinite as to amount, and, therefore, a claim may not be paid under such a lapsed appropriation but is for reporting to the Congress for an appropriation for its payment

as a certified claim. Comptroller General Warren to the Secretary of the Treasury, July 19, 1941:

There is returned herewith, without my countersignature, Appropriation Warrant No. 148—War Department, dated May 28, 1941, proposing to set up the amount of $13.05 to the credit of the appropriation account “21-0106 Increase of Compensation, War Department, 1922" for use in paying certificate of settlement No. 0622050 dated March 19, 1941, in favor of George B. Crumrine.

The said certificate was issued in settlement of the claim of Mr. Crumrine for the increase in compensation provided for in section 6 of the Legislative, Executive and Judicial Appropriation Act for the fiscal year ending June 30, 1922, 41 Stat. 1308–9. It is provided in that section, among other things, that the increase of compensation is to be provided “during the fiscal year ending June 30, 1922," and that "So much as may be necessary to pay the additional compensation provided in this section to employees of the Government of the United States is appropriated out of any money in the Treasury not otherwise appropriated.” Thus, the money is appropriated in an annual appropriation act and is made available to pay the increase of compensation during the fiscal year ending June 30, 1922."

It is provided in 31 U. S. C. 713 (taken from section 5 of the act of June 20, 1874, 18 Stat. 110, as amended) that

After the 1st day of July, in each year, the Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into the Treasury: Provided, That this provision shall not apply to permanent specific appropriations, appropriations for rivers and harbors, lighthouses, or public buildings, or the pay of the Navy and Marine Corps ; but the appropriations named in this proviso shall continue available until otherwise ordered by Congress.

The act of July 7, 1884, 23 Stat. 254, and prior laws, recognized the jurisdiction of the accounting officers to settle and allow claims under appropriations the balances of which had been carried to the surplus fund, said act of 1884 providing in part:

That the Secretary of the Treasury shall, at the commencement of each session of Congress, report the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who shall lay the same before their respective Houses for consideration.

The foregoing provision prescribes and recognizes a definite procedure with respect to appropriations which have remained upon the books of the Treasury for 2 fiscal years; and, with respect to the settlement and payment of claims chargeable to such appropriations. That is to say, the funds under such appropriations are no longer available for making payments but the claims may be certified and reported to the Congress for an appropriation for their payment. This procedure is that followed regularly in such cases and many claims chargeable to the appropriation here involved for the fiscal year 1922 and to appropriations for a like purpose for fiscal years heretofore have been certified and reported to the Congress under such procedure. I am advised that the proposed departure from such procedure in the present case is based upon the theory that the surplus fund provisions above quoted may not be applicable to an appropriation which is indefinite as to amount, such as the one here under consideration.

The proviso under section 713, supra, exempts from the provisions of the section appropriations of certain classes therein named including “permanent specific appropriations." The appropriation here involved does not come within any of these exempt classes. Obviously it is not an appropriation for rivers and harbors, lighthouses, public

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
« PreviousContinue »