A-11877, DECEMBER 14, 1925, 5 COMP. GEN. 430

A-11877: Dec 14, 1925

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NAVY (INSULAR FORCE) - EXTRA DUTY PAY ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY ARE NOT ENTITLED TO THE EXTRA PAY PROVIDED BY EXECUTIVE ORDER OF OCTOBER 17. 1925: THERE IS FOR CONSIDERATION THE QUESTION WHETHER ALEJANDRE RIVAMONTE. IS ENTITLED TO EXTRA PAY OF $5 PER MONTH BY REASON OF DETAIL DUTY AS MESSMAN FROM MAY 1. EXTRA PAY FOR MEN DETAILED AS MESSMEN WAS PROVIDED BY EXECUTIVE ORDER. THE INSULAR FORCE OF THE NAVY WAS ESTABLISHED BY EXECUTIVE ORDER OF APRIL 5. DECISIONS OF THE COMPTROLLER OF THE TREASURY HELD THAT MEN OF THE INSULAR FORCE WERE ENTITLED IN ADDITION TO THE PAY FIXED BY SAID EXECUTIVE ORDER TO EXTRA PAY PROVIDED BY STATUTE FOR ENLISTED MEN. THE REASON THEREFOR BEING THAT IT WAS WITHIN THE POWER OF THE EXECUTIVE PRIOR TO MAY 13.

A-11877, DECEMBER 14, 1925, 5 COMP. GEN. 430

NAVY (INSULAR FORCE) - EXTRA DUTY PAY ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY ARE NOT ENTITLED TO THE EXTRA PAY PROVIDED BY EXECUTIVE ORDER OF OCTOBER 17, 1901, AS AMENDED BY EXECUTIVE ORDER OF JANUARY 7, 1902, WHEN DETAILED TO DUTY AS MESSMEN.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 14, 1925:

THERE IS FOR CONSIDERATION THE QUESTION WHETHER ALEJANDRE RIVAMONTE, NATIVE SEAMAN, FIRST CLASS (INSULAR FORCE), UNITED STATES NAVY, IS ENTITLED TO EXTRA PAY OF $5 PER MONTH BY REASON OF DETAIL DUTY AS MESSMAN FROM MAY 1, 1922, TO FEBRUARY 28, 1925. EXTRA PAY FOR MEN DETAILED AS MESSMEN WAS PROVIDED BY EXECUTIVE ORDER, OCTOBER 17, 1901, AS AMENDED BY EXECUTIVE ORDER, JANUARY 7, 1902, PROVIDING THAT:

ENLISTED MEN DETAILED AS CREW MESSMEN, SHALL, WHILE SO ACTING, EXCEPT WHEN ASSIGNED AS RELIEFS DURING THE TEMPORARY ABSENCE OF THE REGULAR CREW MESSMEN, RECEIVE EXTRA COMPENSATION AT THE RATE OF $5.00 PER MONTH.

THE INSULAR FORCE OF THE NAVY WAS ESTABLISHED BY EXECUTIVE ORDER OF APRIL 5, 1901. DECISIONS OF THE COMPTROLLER OF THE TREASURY HELD THAT MEN OF THE INSULAR FORCE WERE ENTITLED IN ADDITION TO THE PAY FIXED BY SAID EXECUTIVE ORDER TO EXTRA PAY PROVIDED BY STATUTE FOR ENLISTED MEN, BUT NOT TO EXTRA PAY PROVIDED BY OTHER EXECUTIVE ORDERS FOR ENLISTED MEN, THE REASON THEREFOR BEING THAT IT WAS WITHIN THE POWER OF THE EXECUTIVE PRIOR TO MAY 13, 1908, TO EXPRESSLY EXTEND TO THEM BENEFITS OF SUCH EXTRA PAY AND FAILURE TO DO SO SHOULD BE CONSTRUED AS AN INTENT THAT SUCH BENEFITS SHOULD NOT APPLY TO THEM. 12 COMP. DEC. 189; 26 ID. 428.

THE ACT OF MAY 13, 1908, 35 STAT. 127, TOOK FROM THE PRESIDENT POWER TO FIX RATES OF PAY AND EXTRA DUTY PAY FOR ENLISTED MEN BY PROVIDING THAT EXISTING RATES OF PAY SHALL REMAIN IN FORCE UNTIL CHANGED BY ACT OF CONGRESS. BY THAT ACT ALL REGULAR AND ADDITIONAL PAY BECAME STATUTORY. HOWEVER, THE MERE FACT OF MAKING SAID PAY STATUTORY DID NOT NECESSARILY EXTEND THE BENEFITS THEREOF TO MEN WHO THERETOFORE WERE NOT ENTITLED TO SUCH BENEFITS, AND IN VIEW OF THE PREVIOUS LIMITATIONS PLACED ON SUCH RIGHTS UNDER EXECUTIVE ORDERS, THE PRESUMPTION IS THAT IF CONGRESS HAD INTENDED THAT SUCH BENEFITS SHOULD EXTEND TO MEN IN THE INSULAR FORCE, IT WOULD HAVE SO PROVIDED. THE ACT OF JUNE 10, 1922, 42 STAT. 633, IN PROVIDING THAT "NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS, OR REGULATIONS MADE IN PURSUANCE OF LAW, GOVERNING * * * EXTRA PAY TO ENLISTED MEN * * * EMPLOYED AS COOKS OR MESSMEN," DID NOT EXTEND APPLICATION THEREOF TO MEN NOT ENTITLED TO SUCH PAY UNDER PRIOR LAWS. ACCORDINGLY, UNDER EXISTING LAWS ENLISTED MEN OF THE INSULAR FORCE OF THE NAVY ARE NOT ENTITLED TO EXTRA PAY FOR SERVICE AS MESSMEN.