A-10807, AUGUST 28, 1925, 5 COMP. GEN. 153

A-10807: Aug 28, 1925

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MILEAGE - MIDSHIPMEN OF THE NAVAL ACADEMY MIDSHIPMEN APPOINTED TO THE UNITED STATES NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN ARE NOT OFFICERS IN THE NAVAL SERVICE WITHIN THE MEANING OF SECTION 12 OF THE ACT OF JUNE 10. ARE NOT ENTITLED TO MILEAGE FOR TRAVEL PERFORMED IN COMPLIANCE WITH OFFICIAL ORDERS. C. BARKER IS ENTITLED TO MILEAGE FROM ANNAPOLIS. YOU WILL PROCEED TO PHILADELPHIA. THIS IS IN ADDITION TO YOUR PRESENT DUTIES. UPON THE COMPLETION THEREOF YOU WILL RETURN TO ANNAPOLIS. THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS. THE INDORSEMENTS THEREON SHOW THAT MIDSHIPMAN BARKER'S ORDERS WERE MADE EFFECTIVE JULY 30. THE SUPPLY OFFICER IN QUESTION STATES THAT MIDSHIPMAN BARKER IS ONE OF 153 MIDSHIPMEN WHO RECEIVED IDENTICAL ORDERS AND PERFORMED THE TRAVEL FROM ANNAPOLIS TO PHILADELPHIA AND RETURN.

A-10807, AUGUST 28, 1925, 5 COMP. GEN. 153

MILEAGE - MIDSHIPMEN OF THE NAVAL ACADEMY MIDSHIPMEN APPOINTED TO THE UNITED STATES NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN ARE NOT OFFICERS IN THE NAVAL SERVICE WITHIN THE MEANING OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AND ARE NOT ENTITLED TO MILEAGE FOR TRAVEL PERFORMED IN COMPLIANCE WITH OFFICIAL ORDERS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 28, 1925:

THERE HAS BEEN RECEIVED BY YOUR REFERENCE THE LETTER OF LIEUT. COMMANDER H. B. RANSDELL, SUPPLY CORPS, UNITED STATES NAVY, DATED AUGUST 1, 1925, REQUESTING DECISION WHETHER MIDSHIPMAN N. C. BARKER IS ENTITLED TO MILEAGE FROM ANNAPOLIS, MD., TO PHILADELPHIA, PA., AND RETURN ON ACCOUNT OF TRAVEL PERFORMED IN COMPLIANCE WITH ORDERS DATED JULY 23, 1925, AS FOLLOWS: TO: MIDSHIPMAN N. C. BARKER, 1ST CLASS. VIA: SUPERINTENDENT, U.S. NAVAL ACADEMY, ANNAPOLIS, MD. SUBJECT: TEMPORARY ADDITIONAL DUTY.

1. WHEN DIRECTED BY THE SUPERINTENDENT, U.S. NAVAL ACADEMY, YOU WILL PROCEED TO PHILADELPHIA, PA., AND REPORT TO THE COMMANDANT OF THE NAVY YARD FOR TEMPORARY DUTY.

2. THIS IS IN ADDITION TO YOUR PRESENT DUTIES, AND UPON THE COMPLETION THEREOF YOU WILL RETURN TO ANNAPOLIS, MD.

3. THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

THE INDORSEMENTS THEREON SHOW THAT MIDSHIPMAN BARKER'S ORDERS WERE MADE EFFECTIVE JULY 30, 925; THAT HE REPORTED AT THE NAVY YARD, LEAGUE ISLAND, PA., ON THE SAME DATE; THAT HE COMPLETED SAID DUTY AUGUST 1, 1925, AND RESUMED HIS REGULAR DUTIES AT THE UNITED STATES NAVAL ACADEMY ON THE SAME DATE.

THE SUPPLY OFFICER IN QUESTION STATES THAT MIDSHIPMAN BARKER IS ONE OF 153 MIDSHIPMEN WHO RECEIVED IDENTICAL ORDERS AND PERFORMED THE TRAVEL FROM ANNAPOLIS TO PHILADELPHIA AND RETURN. THE COMMANDANT OF MIDSHIPMEN STATES THAT DUE TO ILLNESS ONLY 149 MIDSHIPMEN ACTUALLY PERFORMED THIS TRAVEL.

THE LAW IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED IS FOUND IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AND PROVIDES:

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * *.

THE ACT OF MARCH 3, 1901, 31 STAT. 1029, WHICH PRIOR TO THE ACT OF JUNE 10, 1922, GOVERNED THE RIGHT OF NAVAL OFFICERS TO MILEAGE, PROVIDED:

* * * THAT IN LIEU OF TRAVELING EXPENSES AND ALL ALLOWANCES WHATSOEVER CONNECTED THEREWITH, INCLUDING TRANSPORTATION OF BAGGAGE, OFFICERS OF THE NAVY TRAVELING FROM POINT TO POINT WITHIN THE UNITED STATES UNDER ORDERS SHALL HEREAFTER RECEIVE MILEAGE AT THE RATE OF EIGHT CENTS PER MILE * *

SECTION 1520, REVISED STATUTES, PROVIDES THAT THE ACADEMIC COURSE OF CADET MIDSHIPMEN SHALL BE SIX YEARS, THE FIRST FOUR OF WHICH WERE SPENT IN PURSUING THE ACADEMIC STUDIES AT THE ACADEMY AND THE REMAINING TWO YEARS AT SEA, AND UPON THE SUCCESSFUL TERMINATION OF WHICH, AS DETERMINED BY A FINAL EXAMINATION, THE MIDSHIPMEN WERE COMMISSIONED ENSIGNS. THIS SECTION OF THE REVISED STATUTES WAS AMENDED BY THE ACT OF MARCH 7, 1912, 37 STAT. 73, WHEREIN THE COURSE AT THE NAVAL ACADEMY WAS FIXED AT FOUR YEARS. THE EFFECT OF THIS ACT WAS TO ELIMINATE THE TWO YEARS' SERVICE AT SEA. THE ONLY GRADE OF MIDSHIPMEN NOW AUTHORIZED IS THAT FOR THOSE PURSUING THE FOUR YEARS' COURSE AT THE ACADEMY.

THE ACT OF MARCH 4, 1913, 37 STAT. 891, PROVIDES:

HEREAFTER THE SERVICE OF A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, OR THAT OF A CADET AT THE UNITED STATES MILITARY ACADEMY * * * SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS.

BY THE ACT OF JULY 9, 1913, 38 STAT. 103, IT IS PROVIDED THAT:

* * * MIDSHIPMEN ON GRADUATION SHALL BE COMMISSIONED ENSIGNS IN THE NAVY, OR MAY BE ASSIGNED BY THE SECRETARY OF THE NAVY TO FILL VACANCIES IN THE LOWER COMMISSIONED GRADES OF THE MARINE CORPS OR STAFF CORPS OF THE NAVY.

IN 4 COMP. GEN. 822 THE QUESTION HERE PRESENTED WAS CONSIDERED AND IT WAS SAID THAT IT HAS BEEN THE PRACTICE TO ALLOW NAVAL CADETS AND MIDSHIPMEN MILEAGE FOR TRAVEL UNDER THE SAME CONDITIONS AS OTHER OFFICERS OF THE NAVY. DIGEST SECOND COMP. DEC., VOL. 3, SEC. 814; 7 MS. COMP. DEC. 1136, DECEMBER 16, 1898; 18 COMP. DEC. 141; FITZPATRICK V. UNITED STATES, 37 CT.CLS. 332.

FITZPATRICK WAS A NAVAL CADET AND HAD BEEN ORDERED TO TRAVEL FROM NEW ORLEANS, LA., TO PHILADELPHIA. THE ACCOUNTING OFFICERS ALLOWED MILEAGE ONLY FROM ANNAPOLIS, MD., TO PHILADELPHIA, PA. THE COURT ALLOWED MILEAGE FOR THE ENTIRE DISTANCE, LESS THE AMOUNT ALREADY RECEIVED. THE QUESTION, HOWEVER, AS TO WHETHER A NAVAL CADET WAS AN OFFICER OF THE NAVY WITHIN THE MEANING OF THE MILEAGE LAWS WAS NOT RAISED OR DISCUSSED, THE COURT APPARENTLY ASSUMING THAT HE WAS SUCH AN OFFICER.

IN HARTIGAN V. UNITED STATES, 196 U.S. 169, AND 38 CT.CLS. 346, THE CLAIMANT WAS SUMMARILY DISMISSED FROM THE WEST POINT MILITARY ACADEMY FOR MISCONDUCT, AND IT WAS HELD BOTH IN THE COURT OF CLAIMS AND IN THE SUPREME COURT THAT HE WAS NOT AN OFFICER WITHIN THE MEANING OF SECTION 1229, AND HENCE COULD BE DISMISSED WITHOUT TRIAL AND CONVICTION BY A COURT-MARTIAL. IN THE OPINIONS OF BOTH COURTS IN THAT CASE A CLEAR DISTINCTION IS POINTED OUT BETWEEN SERVICE AT THE ACADEMY AND IN THE ARMY, AND THAT WHILE MILITARY CADETS ARE PART OF THE ARMY THEY ARE NOT OFFICERS OF THE ARMY, BUT RATHER ARE UNDERGOING INSTRUCTION TO BECOME SUCH.

IN WELLER V. UNITED STATES, 41 CT.CLS. 324, IT WAS HELD THAT A MIDSHIPMAN WAS NOT AN OFFICER WITHIN THE MEANING OF SECTIONS 1229 AND 1624, REVISED STATUTES, PROHIBITING THE DISMISSAL IN TIME OF PEACE OF AN OFFICER IN THE MILITARY OR NAVAL SERVICE EXCEPT IN PURSUANCE OF THE SENTENCE OF A GENERAL COURT-MARTIAL OR IN MITIGATION THEREOF. AFTER REVIEWING THE STATUTORY HISTORY OF MIDSHIPMEN AND NAVAL CADETS AND OF THE NAVAL ACADEMY AND THE SIMILARITY AND DIFFERENCE OF NAVAL CADETS, MIDSHIPMEN, AND CADETS IN THE MILITARY ACADEMY, AND DECISIONS CONSTRUING THE TERM ,OFFICER," THE COURT STATED:

IT WILL THUS BE SEEN THAT OUR NAVAL ACADEMY IS A GROWTH AND AN EVOLUTION, AND IN THAT RESPECT SOMEWHAT DIFFERENT FROM THE MILITARY ACADEMY.

ITS FIRST PUPILS WERE OFFICERS ALREADY IN THE NAVAL SERVICE, HOLDING THEIR WARRANTS FROM THE PRESIDENT. THEY HAVE GRADUALLY CEASED TO BE MIDSHIPMEN IN THE ACTIVE SERVICE BELONGING TO THE LINE, AND ARE NOW NAVAL STUDENTS, THE SAME AS CADETS AT THE MILITARY ACADEMY ARE MILITARY STUDENTS.

WE KNOW OF NO REASON WHY A MIDSHIPMAN AT THE NAVAL ACADEMY AT THE PRESENT TIME SHOULD HAVE PRIVILEGES AND RIGHTS DENIED TO A CADET AT THE MILITARY ACADEMY, AND WE DO NOT BELIEVE THE LAW, PROPERLY CONSTRUED, MAKES ANY SUCH DISTINCTION. NEITHER OF THEM HOLDS EITHER A COMMISSION OR A WARRANT. BOTH ARE APPOINTED BY THE PRESIDENT; THOSE APPOINTED AT THE MILITARY ACADEMY ARE CALLED CADETS AND THOSE AT THE NAVAL ACADEMY ARE NOW CALLED MIDSHIPMEN.

THERE MAY HAVE BEEN A TIME IN THE HISTORY OF THE GOVERNMENT AND THE NAVAL ACADEMY WHEN A MIDSHIPMAN SHOULD HAVE BEEN REGARDED AS AN OFFICER IN THE NAVY WITHIN THE MEANING OF SECTION 1229, AND WHEN THE STUDENTS AT THE NAVAL ACADEMY WERE ON A DIFFERENT FOOTING IN THAT REGARD THAN THE STUDENTS AT THE MILITARY ACADEMY, BUT THE REASON FOR SO HOLDING NO LONGER EXISTS. THE ACT OF MARCH 3, 1883 (SUPRA), CHANGED THE TITLE OF MIDSHIPMEN IN THE NAVY TO ENSIGN, AND THE ACT OF MARCH 3, 1899, LEAVES MIDSHIPMEN OUT OF THE LIST OF LINE OFFICERS OF THE NAVY, SO THAT NOW THERE ARE NO MIDSHIPMEN EXCEPT THOSE APPOINTED TO THE NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN OR IN CONNECTION THEREWITH.

CADETS AT THE MILITARY ACADEMY HAVE NEVER BEEN CONSIDERED ENTITLED TO MILEAGE UNDER LAWS PROVIDING MILEAGE FOR OFFICERS OF THE ARMY.

WHATEVER MAY HAVE BEEN THE SITUATION WITH RESPECT TO MIDSHIPMEN UNDER PRIOR LAWS, IT IS CLEAR THAT MIDSHIPMEN APPOINTED TO THE NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN CAN NOT NOW BE CONSIDERED OFFICERS OF THE NAVY WITHIN THE MEANING OF SECTION 12 OF THE ACT OF JUNE 10, 1922, AND ACCORDINGLY PAYMENT OF MILEAGE TO MIDSHIPMAN BARKER UNDER ORDERS OF JULY 23, 1925, IS NOT AUTHORIZED.