A-18654, SEPTEMBER 15, 1927, 7 COMP. GEN. 205

A-18654: Sep 15, 1927

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WHO WERE ORDERED TO NICARAGUA WITH AND AS MEMBERS OF AN EXPEDITIONARY FORCE TO PROTECT THE LIVES AND PROPERTY OF AMERICAN CITIZENS SOJOURNING THERE DURING THE PROGRESS OF AN ORGANIZED ARMED REBELLION AGAINST THE GOVERNMENT OF NICARAGUA ARE. ARE NOT ENTITLED TO RENTAL ALLOWANCE. ADDITIONAL FORCES ARE BEING SENT TO NICARAGUA ON BOARD THE ARGONNE. THE ARGONNE IS EXPECTED TO ARRIVE AT GUANTANAMO ON SIX JANUARY. 2. THIS FORCE WILL EMBARK ON BOARD THE ARGONNE IMMEDIATELY UPON HER ARRIVAL. PROVIDES THAT NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY. THE DISALLOWANCE WAS BASED ON THE GROUND THAT THESE OFFICERS WERE ON FIELD DUTY. IT IS CONTENDED THAT THE WORD "ENEMY" IN THIS CONNECTION IS CONFINED TO ITS MEANING IN INTERNATIONAL LAW AS "A NATION AT WAR WITH ANOTHER.

A-18654, SEPTEMBER 15, 1927, 7 COMP. GEN. 205

RENTAL ALLOWANCE - FIELD DUTY - NAVY AND MARINE CORPS OFFICERS OFFICERS OF THE NAVY AND MARINE CORPS, WITHOUT DEPENDENTS, WHO WERE ORDERED TO NICARAGUA WITH AND AS MEMBERS OF AN EXPEDITIONARY FORCE TO PROTECT THE LIVES AND PROPERTY OF AMERICAN CITIZENS SOJOURNING THERE DURING THE PROGRESS OF AN ORGANIZED ARMED REBELLION AGAINST THE GOVERNMENT OF NICARAGUA ARE, WHILE PERFORMING SUCH DUTY, ON "FIELD DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 251, AND ARE NOT ENTITLED TO RENTAL ALLOWANCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 15, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 23, 1927, REQUESTING REVIEW OF SETTLEMENTS NOS. K-6224-N AND K-7851-N, DATED MAY 6, 1927, DISALLOWING IN THE ACCOUNTS OF CAPT. JOSEPH G. WARD, ASSISTANT PAYMASTER, UNITED STATES MARINE CORPS, THE AMOUNTS PAID BY HIM AS RENTAL ALLOWANCE FOR THE PERIOD JANUARY 7 TO FEBRUARY 28, 1927, TO THE FOLLOWING OFFICERS HAVING NO DEPENDENTS:

CAPT. RICHARD LIVINGSTON, 2ND LIEUTENANTS F. H. BRINK, LEP. CRONMILLER, JR., AND M. S. SWANSON, UNITED STATES MARINE CORPS, AND LIEUT. MAX SILVERMAN (M.C.), UNITED STATES NAVY.

IT APPEARS THAT BY ORDER DATED JANUARY 5, 1927, THE COMMANDANT, UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, DIRECTED THE SECOND BATTALION, FIFTH REGIMENT, UNITED STATES MARINE CORPS, WHICH INCLUDED THESE OFFICERS, THEN ON DUTY AT THAT STATION, TO EMBARK ON BOARD THE ARGONNE IMMEDIATELY UPON HER ARRIVAL, EQUIPPED FOR EXPEDITIONARY WORK IN NICARAGUA FOR 400 MEN. THE ORDER RECITED:

1. SPECIAL SERVICE SQUADRON HAS LANDED NAVAL FORCES IN NICARAGUA TO PROTECT LIVES AND PROPERTY OF AMERICAN CITIZENS. ADDITIONAL FORCES ARE BEING SENT TO NICARAGUA ON BOARD THE ARGONNE, INCLUDING TWENTY FIVE MARINES FROM KEY WEST AND TWENTY-FIVE MARINES FROM COCO SOLO. THE ARGONNE IS EXPECTED TO ARRIVE AT GUANTANAMO ON SIX JANUARY.

2. THIS FORCE WILL EMBARK ON BOARD THE ARGONNE IMMEDIATELY UPON HER ARRIVAL, EQUIPPED FOR EXPEDITIONARY WORK IN NICARAGUA FOR FOUR HUNDRED MEN.

3. (A) PREPARE IMMEDIATELY FOR EMBARKATION AND EXPEDITIONARY SERVICE. REINFORCE BATTALION BY SIXTY-FOUR MEN AND NECESSARY REPLACEMENTS OF SICK MEN OF BATTALION FROM MARINE BARRACKS, DETACHMENT, TO TOTAL FOUR HUNDRED MEN.

THIS FORCE EMBARKED AS DIRECTED JANUARY 7, 1927, AND ARRIVED AT BLUE FIELDS, NICARAGUA, JANUARY 11, 1927.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 251, PROVIDES THAT NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY.

THE DISALLOWANCE WAS BASED ON THE GROUND THAT THESE OFFICERS WERE ON FIELD DUTY.

THE EXECUTIVE ORDER OF AUGUST 13, 1924, ISSUED UNDER THE PROVISIONS OF THE ACT OF MAY 31, 1924, DEFINES THE TERM "FIELD DUTY" AS FOLLOWS:

(C) THE TERM "FIELD DUTY" SHALL BE CONSTRUED TO MEAN SERVICE, UNDER ORDERS, WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

IT IS CONTENDED THAT THE WORD "ENEMY" IN THIS CONNECTION IS CONFINED TO ITS MEANING IN INTERNATIONAL LAW AS "A NATION AT WAR WITH ANOTHER," AND AS THE UNITED STATES IS NOT AT WAR WITH NICARAGUA, THE SERVICE OF ALL THE OFFICERS IN QUESTION WHO ARE REGULARLY ATTACHED TO THE EXPEDITIONARY FORCES OF THE MARINE CORPS IN NICARAGUA IS SERVICE, UNDER ORDERS, WITH TROOPS, OPERATING, HOWEVER, AGAINST NO ENEMY, ACTUAL OR POTENTIAL. IT HAS NOT BEEN SUGGESTED THAT ANY OF THESE OFFICERS WERE PUT TO EXPENSE TO PROCURE QUARTERS, NOR THAT THEY WERE NOT IN FACT FURNISHED BY OR AT THE INSTANCE OF THE UNITED STATES (DIRECTLY OR INDIRECTLY) WITH QUARTERS ADEQUATE AND PROPER FOR THE DUTY TO WHICH ASSIGNED.

IN 25 MS. COMP. GEN. 279, SEPTEMBER 8, 1923, IN CONSIDERING WHAT WAS "DUTY IN THE FIELD" UNDER THE ACT OF APRIL 16, 1918, 40 STAT. 530, AND "FIELD DUTY" UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT.628, AND REFERRING TO THE ACT OF FEBRUARY 27, 1893, 27 STAT. 480, PROVIDING THAT OFFICERS TEMPORARILY ABSENT ON DUTY IN THE FIELD SHALL NOT LOSE THEIR RIGHT TO QUARTERS, OR COMMUTATION THEREOF, AT THEIR PERMANENT STATION, IT WAS STATED:

OFFENSIVE OR DEFENSIVE MILITARY OPERATIONS WITH A VIEW TO AN ACTUAL OR POTENTIAL ENEMY IS CONTEMPLATED BY THE ACT OF 1893, AND IT HAS NOT BEEN HELD THAT A DECLARATION OF WAR BY CONGRESS WAS NECESSARY BEFORE THERE COULD BE FIELD DUTY FOR OFFICERS OF THE ARMY. THE TERM "IN THE FIELD" OR "FIELD DUTY" IS USED BY THE WAR DEPARTMENT IN THIS SENSE TO RECENT DATES:

IN 3 COMP. GEN. 272, 273, OCTOBER 31, 1923, IT WAS SAID:

THE TERM "FIELD DUTY" AS USED WITH RESPECT TO THE ORGANIZATION OF THE ARMY CONVEYS THE IDEA OF OPERATION AGAINST AN ENEMY, ACTUAL OR POTENTIAL. THIS IS THE SENSE IN WHICH THE TERM IS USED IN THE ACT OF JUNE 10, 1922, 42 STAT. 628, AUTHORIZING RENTAL ALLOWANCE. DUTY WITH AN ORGANIZATION MOVING FROM ONE POST TO ANOTHER BY MARCHING IN TIME OF PEACE AND IN THE HOME COUNTRY IS NOT FIELD DUTY FOR THE PURPOSE OF RENTAL ALLOWANCE. (SEE ALSO 17 MS. COMP. GEN. 927, JANUARY 27, 1923; 22 ID. 185, JUNE 7, 1923.)

IN 14 OP.ATTY.GEN. 22, IT WAS SAID:

TO DETERMINE WHEN AN ARMY IS "IN THE FIELD" IS TO DECIDE THE QUESTION RAISED. THESE WORDS IMPLY MILITARY OPERATIONS WITH A VIEW TO AN ENEMY. HOSTILITIES WITH INDIANS SEEM TO BE AS MUCH WITHIN THEIR MEANING AS ANY OTHER KIND OF WARFARE. * * * WHEN AN ARMY IS ENGAGED IN OFFENSIVE OR DEFENSIVE OPERATIONS, I THINK IT SAFE TO SAY THAT IT IS AN ARMY "IN THE FIELD.' (SEE ALSO 61 MS. DEC.SEC.COMP. 80, QUOTED IN PART IN 25 MS. COMP. GEN. 279; DIG.OP. J.A.G. 1912, P. 151.)

THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS ALSO HELD:

I A5A. NO FORMAL DECLARATION OF WAR BY CONGRESS OR PROCLAMATION BY THE PRESIDENT IS NECESSARY TO DEFINE AND CHARACTERIZE AN INDIAN WAR. IT IS SUFFICIENT THAT HOSTILITIES EXIST AND MILITARY OPERATIONS ARE CARRIED ON.

I B4. HELD THAT A WAR STATUS EXISTED IN BEHALF OF OFFICERS AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES WHO WERE IN CHINA BEGINNING WITH MAY 26, 1900. THIS GAVE THEM THE INCREASED ALLOWANCE OF PAY FOR SERVICE IN TIME OF WAR. (DIG.OP. J.A.G. 1912, P. 1055.)

WITHIN THE FIELD OF OPERATIONS OF THE EXPEDITIONARY FORCES IN MEXICO IT WAS "TIME OF WAR" WITHIN THE MEANING OF THE FIFTY-EIGHTH ARTICLE OF WAR. (DIG.OP. J.A.G. 1918, P. 378.)

IN 5 COMP. GEN. 443 IT WAS HELD THAT AN OFFICER OF THE MARINE CORPS, WITHOUT DEPENDENTS, WHO AS A MEMBER OF A MARINE DETACHMENT ON BOARD A NAVAL VESSEL SERVED WITH A LANDING FORCE TO PROTECT AND DEFEND THE INTERNATIONAL SETTLEMENT AT SHANGHAI, CHINA, AGAINST POSSIBLE ATTACK BY CHINESE WARRING FACTIONS IS, WHILE PERFORMING SUCH DUTY, ON "FIELD DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 251, AND IS NOT ENTITLED TO RENTAL ALLOWANCE.

THE PAYMASTER OF THE MARINE CORPS, IN HIS LETTER TO YOU DATED MAY 20, 1927, ATTACHED TO YOUR LETTER, STATES:

10. THESE FORCES OF THE MARINE CORPS ARE UNDERSTOOD HERE TO HAVE BEEN SENT TO THE REPUBLIC OF NICARAGUA, A GOVERNMENT FRIENDLY TO THE UNITED STATES, SOLELY AT THE REQUEST OF THAT FRIENDLY GOVERNMENT AND SOLELY TO ASSIST IT IN THERE PRESERVING PUBLIC ORDER WITHIN THE REPUBLIC OF NICARAGUA, AND TO PROTECT THE LIVES AND PROPERTY OF AMERICAN CITIZENS SOJOURNING THERE. * * *

IT IS ALSO UNDERSTOOD THAT DURING THE PERIOD IN QUESTION THERE WAS AN ORGANIZED ARMED REBELLION AGAINST THE GOVERNMENT IN NICARAGUA, AND THAT THERE WAS ACTUAL FIGHTING BETWEEN THE TWO FORCES. UNDER SUCH CIRCUMSTANCES IT WOULD SEEM THAT SUCH REBEL FORCES MIGHT LOOK UPON THE MILITARY FORCES OF THE UNITED STATES LANDED IN NICARAGUA FOR THE PURPOSE STATED AS THEIR ENEMY AND ATTACK THEM ACCORDINGLY. IN FACT, IT HAS BEEN REPORTED THAT SUCH ATTACKS HAVE BEEN MADE, RESULTING IN SEVERAL MARINES BEING KILLED OR WOUNDED AND MORE THAN 300 OF THE REBELS KILLED OR WOUNDED. BUT IT IS UNNECESSARY TO DETERMINE ANY QUESTION OF THE INTERNATIONAL RELATION BETWEEN THE UNITED STATES AND NICARAGUA WITH RESPECT TO OPERATING AGAINST AN ENEMY. THE MILITARY ORDERS FOR SERVICE WERE FOR EXPEDITIONARY WORK. THERE HAVE BEEN OTHERS OF A SIMILAR CHARACTER IN GENERAL AND ALL CLASSED AS FIELD DUTY--- VERA CRUZ, 1914; MEXICO, 1916.

IT MUST BE HELD, THEREFORE, THAT THE DUTY ON WHICH THE EXPEDITIONARY FORCE IN NICARAGUA WAS ENGAGED DURING THE PERIOD IN QUESTION WAS FIELD DUTY WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924.