A-11459, DECEMBER 5, 1925, 5 COMP. GEN. 408

A-11459: Dec 5, 1925

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RETIRED ENLISTED MAN - DOUBLE COMPENSATION WHERE A RETIRED ENLISTED MAN OF THE ARMY IS DETAILED TO ACTIVE DUTY PURSUANT TO LAW AND IS IN RECEIPT OF ACTIVE-DUTY PAY HE MAY NOT. WHERE A RETIRED ENLISTED MAN OF THE ARMY IS ON ACTIVE DUTY AND IS GRANTED A FURLOUGH FROM HIS STATION HE IS NOT ENTITLED TO THE ALLOWANCES FOR QUARTERS AND SUBSISTENCE DURING THE FURLOUGH PERIOD. WHERE A RETIRED ENLISTED MAN OF THE REGULAR ARMY ON ACTIVE DUTY UNDER A PROPER DETAIL PURSUANT TO LAW IS GRANTED A FURLOUGH FROM HIS REGULAR ARMY DUTY STATION AND ATTENDS AN ENCAMPMENT UNDER SECTION 94 OF THE ACT OF JUNE 3. HE IS NOT ENTITLED TO PAY AS AN OFFICER OF THE NATIONAL GUARD. 1925: THERE WAS RECEIVED BY YOUR INDORSEMENT OF SEPTEMBER 29.

A-11459, DECEMBER 5, 1925, 5 COMP. GEN. 408

ARMY PAY, RETIRED ENLISTED MAN - DOUBLE COMPENSATION WHERE A RETIRED ENLISTED MAN OF THE ARMY IS DETAILED TO ACTIVE DUTY PURSUANT TO LAW AND IS IN RECEIPT OF ACTIVE-DUTY PAY HE MAY NOT, AT THE SAME TIME, BE PAID FROM FEDERAL FUNDS THE PAY AND ALLOWANCES OF ANY OTHER MILITARY OFFICE. WHERE A RETIRED ENLISTED MAN OF THE ARMY IS ON ACTIVE DUTY AND IS GRANTED A FURLOUGH FROM HIS STATION HE IS NOT ENTITLED TO THE ALLOWANCES FOR QUARTERS AND SUBSISTENCE DURING THE FURLOUGH PERIOD. WHERE A RETIRED ENLISTED MAN OF THE REGULAR ARMY ON ACTIVE DUTY UNDER A PROPER DETAIL PURSUANT TO LAW IS GRANTED A FURLOUGH FROM HIS REGULAR ARMY DUTY STATION AND ATTENDS AN ENCAMPMENT UNDER SECTION 94 OF THE ACT OF JUNE 3, 1916, 39 STAT. 206, AS A CAPTAIN, FEDERALLY RECOGNIZED IN THE NATIONAL GUARD, HE IS NOT ENTITLED TO PAY AS AN OFFICER OF THE NATIONAL GUARD, THE PERFORMANCE OF DUTY UNDER HIS NATIONAL GUARD COMMISSION BEING INCOMPATIBLE WITH HIS REGULAR ARMY STATUS.

COMPTROLLER GENERAL MCCARL TO CAPT. F. J. BAKER, UNITED STATES ARMY, DECEMBER 5, 1925:

THERE WAS RECEIVED BY YOUR INDORSEMENT OF SEPTEMBER 29, 1925, VOUCHER OF JOSEPH W. HESSE, TECHNICAL SERGEANT, QUARTERMASTER CORPS, UNITED STATES ARMY, RETIRED, FOR ALLOWANCE FOR QUARTERS AND SUBSISTENCE JULY 12 TO 26, 1924, SUBMITTED AS TO WHETHER PAYABLE IN THE CIRCUMSTANCES HEREAFTER DESCRIBED.

THE VOUCHER SHOWS THAT SERGEANT HESSE, RETURNED, WAS PLACED ON ACTIVE DUTY WITH THE RESERVE OFFICERS' TRAINING CORPS AT THE CHATTANOOGA HIGH SCHOOLS PURSUANT TO WAR DEPARTMENT SPECIAL ORDERS, NO. 104, OF MAY 3, 1923, AND THE PAYMENT OF ALLOWANCE FOR QUARTERS AND SUBSISTENCE WAS AUTHORIZED FOR HIM BY SPECIAL ORDER NO. 61, HEADQUARTERS FOURTH CORPS AREA, MAY 11, 1923. SUBSEQUENTLY SERGEANT HESSE WAS COMMISSIONED BY THE GOVERNOR OF TENNESSEE A CAPTAIN OF THE ONE HUNDRED AND NINTH CAVALRY, TENNESSEE NATIONAL GUARD, AND WAS FEDERALLY RECOGNIZED AS SUCH. IT IS STATED THAT SERGEANT HESSE WAS GRANTED A "PASS" BY THE PROFESSOR OF MILITARY SCIENCE AND TACTICS UNDER WHOM HE WAS SERVING WHILE DETAILED TO ACTIVE DUTY TO ENABLE HIM TO ATTEND THE ANNUAL ENCAMPMENT OF THE ONE HUNDRED AND NINTH CAVALRY AT KNOXVILLE, TENN., JULY 12 TO 26, 1924; THAT HE HAS NOT BEEN PAID AS A NATIONAL GUARD OFFICER ATTENDING AN ENCAMPMENT AND HAS NOT BEEN PAID THE ALLOWANCE FOR QUARTERS AND SUBSISTENCE WHILE ON FURLOUGH FROM HIS ACTIVE DUTY STATION AS AN ENLISTED MAN, PRESUMABLY BECAUSE OF DECISION OF MARCH 3, 1924, 3 COMP. GEN. 579.

AS THE "PASS" ISSUED TO SERGEANT HESSE WAS IN FACT A FURLOUGH, NOTWITHSTANDING THE TERMINOLOGY EMPLOYED, THE DECISION CITED IS DECISIVE OF THE QUESTION YOU HAVE PRESENTED. HOWEVER, THE PAPERS INDICATE SOME DOUBT AS TO THE PROPRIETY OF WITHHOLDING FROM CAPTAIN HESSE PAY AS A DULY APPOINTED AND FEDERALLY RECOGNIZED CAPTAIN OF THE NATIONAL GUARD ATTENDING AN ENCAMPMENT UNDER SECTION 94 OF THE NATIONAL DEFENSE ACT, 39 STAT. 206.

THE COMMISSIONING OF RETIRED ENLISTED MEN OF THE ARMY IN THE NATIONAL GUARD WAS HELD TO BE LEGAL IN DECISION OF MAY 23, 1925, 4 COMP. GEN. 987, AND IT WAS THERE SAID WITH RESPECT TO THE PAY RIGHTS OF SUCH RETIRED ENLISTED MEN UNDER SUCH COMMISSION THAT THEY WERE---

* * * ENTITLED TO ANY PAY PROPERLY ACCRUING UNDER THEIR APPOINTMENT OR ENLISTMENT IN THE NATIONAL GUARD WHEN NOT IN FEDERAL SERVICE AND SUCH PAYMENTS WILL NOT AFFECT THEIR RETIRED PAY. 23 COMP. DEC. 444 AND 649; 27 ID., 995. WHERE, HOWEVER, ORGANIZATIONS OF THE NATIONAL GUARD OF WHICH RETIRED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE ARMY ARE MEMBERS ARE CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES OR ARE DRAFTED INTO THE ARMY OF THE UNITED STATES UNDER SECTION 111 OF THE NATIONAL DEFENSE ACT AND BECOME ENTITLED TO RECEIVE BY REASON OF SUCH ENTRY INTO THE FEDERAL SERVICE, THE FULL PAY AND ALLOWANCES PRESCRIBED BY LAW FOR THEIR RANK OR GRADE IN THE NATIONAL GUARD IN THE ACTUAL SERVICE OF THE UNITED STATES, THEY WILL NOT BE ENTITLED TO THEIR RETIRED PAY. COMP. DEC. 344. * * *.

THIS CONSIDERATION, AS THE LANGUAGE PLAINLY INDICATES, WAS ENTIRELY WITH RESPECT TO RETIRED PERSONNEL, WHO, UNDER THEIR REGULAR ARMY STATUS, WERE INACTIVE--- THAT IS, WERE IN THE NORMAL SITUATION OF RETIRED PERSONNEL. IT DID NOT EMBRACE RETIRED PERSONNEL ON ACTIVE DUTY WITH THE REGULAR ARMY PURSUANT TO LAW.

IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, AN ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY CAN HAVE NO RIGHT TO PAY OR ALLOWANCES FROM FEDERAL FUNDS IN ANY OTHER MILITARY OFFICE. THIS FACT WAS RECOGNIZED DURING THE WORLD WAR WHERE THE INVARIABLE PRACTICE WAS TO DISCHARGE AN ENLISTED MAN FROM HIS ENLISTMENT BEFORE HIS ACCEPTANCE OF OFFICE AS A COMMISSIONED OFFICER OR HIS REPORTING FOR ACTIVE DUTY AS A MEMBER OF THE OFFICERS' RESERVE CORPS. IT IS ONLY BY THIS METHOD THAT THE OBJECTION OF INCOMPATIBILITY CAN BE OVERCOME, FOR OBVIOUSLY A PERSON CAN NOT AT ONE AND THE SAME TIME PERFORM DUTY AS AN ENLISTED MAN AND AS AN OFFICER. SO LONG AS A MAN IS IN AN INACTIVE STATUS UNDER HIS COMMISSION THERE IS NO INCOMPATIBILITY, BUT IMMEDIATELY UPON REPORTING FOR ACTIVE DUTY AS AN OFFICER, WHETHER FOR A SHORT OR LONG PERIOD OF SERVICE, THE INCOMPATIBILITY ARISES AND THE ENLISTED STATUS MUST TERMINATE. THE SITUATION OF AN ENLISTED MAN ON THE RETIRED LIST DETAILED TO ACTIVE DUTY PURSUANT TO THE LAW IS THE SAME AS THAT OF AN ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY. THE DETAIL OF A RETIRED ENLISTED MAN TO ACTIVE DUTY UNDER A STATUTE AUTHORIZING IT, WITHIN THE LIMITS OF HIS ORDERS AND THE STATUTE UNDER WHICH DETAILED TO ACTIVE DUTY, RETURNS HIM TO A QUALIFIED STATUS ON THE ACTIVE LIST OF THE REGULAR ARMY, AND IF WHILE SO DETAILED TO ACTIVE DUTY HE ATTENDS AN ENCAMPMENT UNDER A NATIONAL GUARD COMMISSION, THE NATIONAL GUARD NOT BEING IN THE ACTUAL SERVICE OF THE UNITED STATES, HIS NATIONAL GUARD STATUS IS AS INCOMPATIBLE AS IT WOULD BE WERE HE ON THE ACTIVE LIST OF THE REGULAR ARMY.

SERGEANT HESSE WAS PROPERLY DENIED PAY AND ALLOWANCES AS A NATIONAL GUARD OFFICER ATTENDING AN ENCAMPMENT UNDER SECTION 94 OF THE NATIONAL DEFENSE ACT. HE IS NOT ENTITLED TO THE ALLOWANCES FOR QUARTERS AND SUBSISTENCE BECAUSE HE WAS ON FURLOUGH FROM HIS REGULAR ARMY STATION. 3 COMP. GEN. 579. YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER.