suffered the same damage because of the delay in furnishing one roll of fabric as it would have if the entire 64 rolls covered by the contract were delayed, was referred to the War Department for a report, and with respect to such contention the contracting officer has stated as follows: * In the present case, the Government advertised for 384,000 square feet of galvanized welded wire fabric (64 rolls) and specified liquidated damages of $75.00 per day. This figure is not an estimate of the damage which would be incurred by a shutdown of the plant for which the material was purchased, as this would run into thousands of dollars per day, but is the esti mated expense involved in additional towing, handling of material for the plant, rescheduling of operations, etc., and, therefore, is not in any sense a penalty. b. The amount of liquidated damages, namely, $1,875.00, which accrued because of the 25 days' delay in delivery of one roll of wire, the contract price for which was $154.20, has no relationship to the value of one roll of wire but is a measure of the expense involved in additional towing, handling, administration, etc. e. This is not a large quantity stock item contract and it was not intended that a partial delivery of the material within the specified time should relieve the contractor from payment of a portion of the liquidated damages, as delivery of a quantity short of the estimated requirement for a project could affect operating schedules of the plant, the matter of whether nondelivery of 4 of the order (6.000 square feet) would have damaged the United States as much as delay in delivery of the whole order depending upon circumstances. It appears therefrom-and also is stated in paragraph 10 of the specification-that the wire fabric purchased under the contract was not to be stocked by the Government for supply purposes, but that it was to be used by the Government immediately as a part of the material for asphalt mattresses which the Government was in the process of manufacturing at the time. It appears further from said report that at the time the contract was made the stipulation for liquidated damages was included therein to protect the Government against increased costs in the nature of additional towing, handling of material for the plant in which the asphalt mattresses were being manufactured, rescheduling of operations, etc. Also, it appears from said report that at the time the contract was made it was contemplated that the delivery of any quantity of wire fabric short of the estimated requirement for the project could affect the operating schedule of the plant, and that it was possible for the nondelivery of one roll of wire fabric to have damaged the United States as much as delay in delivery of the whole order would have, depending upon existing circumstances. Therefore, since the record shows that the stipulation in the contract providing for the assessment of liquidated damages at the rate of $75 a day until complete delivery of the wire fabric was made, constituted a reasonable and bona fide estimation at the time the contract was executed of the amount of the loss per day, which would have been sustained by the United States if complete delivery of the fabric was not made within the time specified, it must be held that said liquidated damage provision is not penalty but is valid and enforcible, and the fact that it may now appear that the amount of liquidated damages exceeded the actual damages sustained by the United States is immaterial. Accordingly, the settlement of October 28, 1941, must be, and is, sustained. (B-21022) UNIFORM GRATUITIES RETIRED NAVAL RESERVE FORCE MEMBERS ON ACTIVE DUTY Officers, now on active duty, who were retired under the acts of June 4, 1920, and July 12, 1921, for disability incurred while on active duty in time of war as members of the Naval Reserve Force established under the act of August 29, 1916, are not entitled to payment of uniform gratuities provided by section 302 of the Naval Reserve Act of 1938. Assistant Comptroller General Elliott to the Secretary of the Navy, December 8, 1941: There has been considered your letter of October 4, 1941, requesting a decision on the question whether certain retired officers of the Naval Reserve Force (established under the act of August 29, 1916, 39 Stat. 587), now on active duty, are entitled to uniform gratuities under section 302 of the Naval Reserve Act of 1938 (approved June 25, 1938), 52 Stat. 1180, which provides as follows: In time of peace, upon first reporting for active or training duty with pay, after enactment hereof, at a location where uniforms are required to be worn, or after the authorized performance of fourteen drills, a commissioned or warrant officer of the Naval Reserve shall be paid a sum not to exceed $100 as reimbursement for the purchase of the required uniforms, and thereafter he shall be paid an additional sum of $50 for the same purpose upon the completion of each period of not less than four years in the Naval Reserve. Provided, That this latter amount of $50 shall not become due any officer until he has completed not less than one hundred and fifty drills or periods of other equivalent instruction or duty or appropriate duties and fifty-six days' active or training duty, or seventy-five drills and eighty-four days' active or training duty, or one hundred twelve days' active or training duty: Provided further, That any officer who has heretofore received a uniform gratuity shall not be entitled to either of the above-mentioned sums until the expiration of four years from the date of the receipt of the last such gratuity: Provided further, That uniforms for aviation cadets shall be provided as heretofore or hereafter authorized by law: And provided further, That in time of war or national emergency a further sum of $150 for the purchase of required uniforms shall be paid to officers of the Naval Reserve when they first report for active duty. You have submitted a letter from the Officer in Charge, Retainer Pay Division, Bureau of Supplies and Accounts, which is as follows: 1. I have received two sets of uniform gratuity vouchers from each of two officers who were placed on the Retired List of the Naval Reserve Force in 1920 and 1925, respectively, but hesitate to make the desired disbursement because of the unusual conditions in the respective cases. 2. There is submitted below a synopsis of the record of service of lieutenant, junior grade, Rufus Hayward Knight, United States Naval Reserve, retired, as an officer, and as an enrolled enlisted man in the Naval Reserve Force. Enrolled enlisted service Enrolled April 17, 1917; reported April 19, 1917; accepted appointment as Ensign, Naval Reserve Force, on January 28, 1918. 1918 Jan. 25. Jan. 28----- Oct. 13. 1920 Jan. 2__. May 1--------- Officer service Having enrolled in the U. S. N. R. F. for a period of 4 yrs. from April 17, 1917, hereby given the provisional rank of Ensign in the Naval Coast Defense Reserve, Cl. 4, for G. S. Accepted appointment. Transferred to the Naval Reserve, Cl. 2, as of Oct. 29, 1918. Det. (Leviathan) relieved from all active duty. (Det. Oct. 13.) Orders of Oct. 13, 1919, modified; upon det. Leviathan report to the Naval Hospital, New York, N. Y., for treatment. Upon discharge from hospital carry out orders of Oct. 13, 1919. (Disc. Dec. 18.) Given the provisional rank of Lt. (j. g.) in the Naval Reserve, Given the confirmed commission as Ensign in the Naval Reserve, Accepted appointment of confirmed commission. Authority contained in Bureau's letter of July 29, 1920, modified. Recalled into active service as of July 1, 1920, and ordered to report to the Naval Hospital, New York, N. Y., for observation and further treatment. Nov. 15-------. Found by Naval Retiring Board incapacitated for active service by reason of intraspinal injury; that incapacity is permanent and was incurred in line of duty as result of incident of service; that disability is 90% for Naval service and 70% for civil occupation. Nov. 2, 1920, President of U. S. approved proceedings and findings of Retiring Board and directed retirement from active service and placement on Retired List in conformity with provisions of section 1453 of Revised Statutes [34 U. S. C. 417] and those of act of June 4, 1920 [41 Stat. 834]. Accordingly transferred to Retired List of U. S. N. R. F. from Nov. 2, 1920, in accordance with provisions of law above referred to. Nov. 18‒‒‒‒‒‒. Having been placed on Retired List, U. S. N. R. F., upon discharge from treatment at Naval Hospital, New York, N. Y., to home and relieved from all active duty. 1941 Aug. 13------- Reported for active duty at Navy Yard, Boston, Mass. Below is a transcript of the record of service of Lieutenant Roy Andrew Darling, U. S. N. R. F., retired, as shown on the records: Enlisted service Enlisted in U. S. Navy, Sept. 28, 1903; discharged December 28, 1906 (expiration of enlistment), as Elec. 2/c; enlisted in Naval Militia of Michigan, June 1, 1913. 1916 May 31. 1917 June 18.... July 14.. Officer service Commissioned Lieutenant in the Naval Militia of Michigan. Commissioned Lieutenant (j. g.) in the Naval Militia of ...Commissioned Lieutenant (j. g.) in the National Naval Volun- Officer service-Continued 1918 May 2... July 1. 1919 Dec. 12.... 1920 June 19. 1925 May 14.. 1940 Commissioned Lieutenant (L. D. O.) in the National Naval ..Det. (Naval Hospital, Washington, D. C.) and honorably discharged from active service. Enrollment expired this date. Found by Naval Retiring Board before which recently appeared, to be incapacitated for active service by reason of an old fracture, right femur (airplane fall) accompanied by shortening of right leg and partial ankylosis of right knee joint; that there is also deformity of lower jaw from fracture received at the time of the crash; that this incapacity is permanent and was incurred in line of duty in time of war as the result of an incident of the service. The President of the U. S. under date of May 8, 1925, approved the proceedings and findings of the Naval Retiring Board and directed that you be placed on the Retired List, in accordance with the provisions of the act of July 12, 1921, and those of the act of March 4, 1925. Accordingly placed upon the Retired List of officers of the U. S. Naval Reserve Force in the rank of Lieutenant from May 8, 1925. June 5---------- Reported for active duty. Thus in December 1919 Lieutenant Darling became a civilian and he retained that status until he was placed on the Retired List of the U. S. Naval Reserve Force in the rank of Lieutenant from May 8, 1925. (Private bill No. 268, 68th Congress [approved March 4, 1925, 43 Stat. 1600]). A decision of the Comptroller of August 5, 1918 [25 Comp. Dec. 120], held that officers and men of the Naval Militia and National Naval Volunteers transferred to the Naval Reserve Force, as provided by the act of July 1, 1918, are not entitled to the uniform gratuity provided for enrollment in the Naval Reserve Force. 4. Public, 512, 68th Congress [act of February 28, 1925, 43 Stat. 1080, effective July 1, 1925], abolished the Naval Reserve Force created by the 1916 law. The last proviso of section I read: “And provided further, That nothing contained in this act shall affect the status or pay of members of the Naval Reserve Force heretofore retired with or without pay." This appears to have continued each officer on the Retired List of the Naval Reserve Force rather than to have made them a part of the new Naval Reserve therein created. The Naval Reserve Act of 1938, in section I, contained similar language with respect to the status and pay of members of the Naval Reserve Force theretofore retired. 5. It is recommended that this matter be presented to the Comptroller General for his consideration and advice as to whether these officers may legally be paid the uniform gratuities authorized by section 302 of the Naval Reserve Act of 1938, they having certified to the possession of the required uniforms and otherwise met the conditions precedent to payment. The last paragraph of section 2 of the act of June 4, 1920, 41 Stat. 834, provides as follows: That all officers of the Naval Reserve Force and temporary officers of the Navy who have heretofore incurred or may hereafter incur physical disability in line of duty shall be eligible for retirement under the same conditions as now provided by law for officers of the Regular Navy who have incurred physical disability in line of duty. Section 6 of the act of July 12, 1921, 42 Stat. 140, provides as follows: That the last paragraph of section 2 of the Act entitled "An act making appropriations for the naval service for the fiscal year ending June 30, 1921, and for other purposes," approved June 4, 1920, is hereby amended to read as follows: "That all officers of the Naval Reserve Force and temporary officers of the Navy who have heretofore incurred or may hereafter incur physical disability in line of duty in time of war shall be eligible for retirement under the same conditions as now provided by law for officers of the Regular Navy who have incurred physical disability in line of duty: Provided, however, That application for such retirement shall be filed with the Secretary of the Navy not later than October 1, 1921." Section 1453 of the Revised Statutes (34 U. S. C. 417), is as follows: When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of the service, such officer shall, if said decision is approved by the President, be retired from active service with retired pay, as allowed by Chapter Eight of this Title. Private act No. 268, approved March 4, 1925, 43 Stat. 1600, provides as follows: That so much of section 6 of the Naval Appropriation Act approved July 12, 1921, as provides that the application for retirement of officers of the Naval Reserve Force and temporary officers of the Navy who have heretofore incurred or who may hereafter incur physical disability in line of duty in time of war shall be filed with the Secretary of the Navy not later than October 1, 1921, be, and hereby is, waived in the case of Roy A. Darling, former lieutenant, United States Naval Reserve Force, and his case is hereby authorized to be considered and acted upon under the remaining provisions of said section if his application for retirement is filed not later than sixty days from the approval of this Act. Pursuant to the statutory provisions quoted above, the two officers in question were retired for disability incurred while on active duty in time of war as members of the Naval Reserve Force established under the act of August 29, 1916, 39 Stat. 587. The act of February 28, 1925 (effective July 1, 1925), 43 Stat. 1080, expressly repealed the act of August 29, 1916, supra; abolished the Naval Reserve Force established thereunder; and created in lieu thereof a Naval Reserve consisting of the Fleet Naval Reserve, the Merchant Marine Naval Reserve, and the Volunteer Naval Reserve. Section 1 of this act contains a proviso as follows: * That nothing contained in this act shall affect the status or pay of members of the Naval Reserve Force heretofore retired with or without pay. The Naval Reserve Act of 1938 (approved June 25, 1938), 52 Stat. 1175, expressly repealed the act of February 28, 1925, as amended; abolished the Naval Reserve established thereunder; and created in lieu thereof a Naval Reserve consisting of a Fleet Reserve, an Organized Reserve, a Merchant Marine Reserve, and a Volunteer Reserve. The last proviso of section 1 of the 1938 act is as follows: That nothing contained in this act shall affect the status or pay of members of the Naval Reserve Force or the Naval Reserve heretofore retired with or without pay, except that members of the Honorary Retired List on the date of the approval hereof are hereby transferred to the Honorary Retired List for the Naval Reserve created by section 309, title III, of this act. |