A-20285, JUNE 12, 1928, 7 COMP. GEN. 781

A-20285: Jun 12, 1928

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REVISED STATUTES ENLISTED MEN OF THE NAVY ARE ENTITLED TO A QUARTERS AND SUBSISTENCE ALLOWANCE ONLY WHEN ON DETACHED DUTY AWAY FROM STATION. THERE IS NO AUTHORITY IN THE NAVY DEPARTMENT NOR IN COMMANDING OFFICERS OR ENLISTED MEN TO "CONTRACT" FOR THEIR LODGING AND SUBSISTENCE AT RATES IN EXCESS OF THOSE FIXED BY THE PRESIDENT UNDER THE AUTHORITY OF SECTION 11 OF THE ACT OF JUNE 10. HE IS NOT ENTITLED TO RELIEF UNDER SECTION 285 OF THE REVISED STATUTES. IN EFFECT REQUESTING REMOVAL OF AN ITEM OF $58.90 (CREDIT FOR WHICH WAS DISALLOWED IN HIS DISBURSING ACCOUNTS BY CERTIFICATE K-9326-N. YOUR INDORSEMENT IS AS FOLLOWS: 1. FOR THE REASON THAT THIS PAYMENT WAS DULY PROTESTED BY THIS OFFICER IN ACCORDANCE WITH PROVISIONS OF ARTICLE 1748.

A-20285, JUNE 12, 1928, 7 COMP. GEN. 781

QUARTERS AND SUBSISTENCE ALLOWANCE - NAVY ENLISTED MEN ON DETACHED DUTY RELIEF OF NAVY DISBURSING OFFICERS UNDER SECTION 285, REVISED STATUTES ENLISTED MEN OF THE NAVY ARE ENTITLED TO A QUARTERS AND SUBSISTENCE ALLOWANCE ONLY WHEN ON DETACHED DUTY AWAY FROM STATION; AND THERE IS NO AUTHORITY IN THE NAVY DEPARTMENT NOR IN COMMANDING OFFICERS OR ENLISTED MEN TO "CONTRACT" FOR THEIR LODGING AND SUBSISTENCE AT RATES IN EXCESS OF THOSE FIXED BY THE PRESIDENT UNDER THE AUTHORITY OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630. WHERE A DISBURSING OFFICER OF THE NAVY AIDS IN THE PREPARATION OF AN IRREGULAR VOUCHER, THE PROPOSED PAYMENT BEING CONTRARY TO EXISTING DECISIONS, HE IS NOT ENTITLED TO RELIEF UNDER SECTION 285 OF THE REVISED STATUTES, ALTHOUGH HE PROTESTED PAYMENT TO THE COMMANDING OFFICER AND THE LATTER REITERATED HIS ORDER TO PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 12, 1928:

THERE HAS BEEN RECEIVED YOUR SECOND INDORSEMENT OF OCTOBER 19, 1927, ON THE REQUEST OF LIEUT. S. P. VAUGHN (S.C.), UNITED STATES NAVY, IN EFFECT REQUESTING REMOVAL OF AN ITEM OF $58.90 (CREDIT FOR WHICH WAS DISALLOWED IN HIS DISBURSING ACCOUNTS BY CERTIFICATE K-9326-N, JANUARY 1 TO 31, 1927), AND CHARGED AGAINST THE COMMANDING OFFICER UNDER WHOSE ORDER HE PAID THE ITEM, THE REQUEST BEING BASED ON THE PROVISIONS OF SECTION 285 OF THE REVISED STATUTES. YOUR INDORSEMENT IS AS FOLLOWS:

1. RESPECTFULLY FORWARDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, REQUESTING THAT ITEM 4 ($58.90), GENERAL ACCOUNTING OFFICE CERTIFICATE K-9326-N, JANUARY 1 TO JANUARY 31, 1927, BE REMOVED FROM THE ACCOUNTS OF LIEUTENANT S. P. VAUGHN, SUPPLY CORPS, U.S.N., FOR THE REASON THAT THIS PAYMENT WAS DULY PROTESTED BY THIS OFFICER IN ACCORDANCE WITH PROVISIONS OF ARTICLE 1748, NAVY REGULATIONS, 1920, AND SECTION 285, U.S. REVISED STATUTES.

2. ATTENTION IS INVITED IN THIS CONNECTION TO THE INFORMATION CONTAINED IN THE INCLOSURES FORWARDED WITH BASIC LETTER. IT APPEARS THEREFROM THAT THE COMMANDING OFFICER, NAVAL AIR STATION, PEARL HARBOR, T.H., DIRECTED PAYMENT OF LODGING AND SUBSISTENCE EXPENSES FOR THE ENLISTED MEN CONCERNED AT THE CHEAPEST AND MOST REASONABLE RATES THAT COULD BE OBTAINED. THE QUARTERING AND SUBSISTING OF THESE ENLISTED MEN UNDER THE CIRCUMSTANCES HAS ALWAYS BEEN REGARDED BY THIS DEPARTMENT AS EQUIVALENT TO THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND, AS CONTRADISTINGUISHED FROM THOSE CASES IN WHICH A CASH ALLOWANCE ONLY SHOULD BE GIVEN, IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER OF JUNE 10, 1922 (SINCE SUPERSEDED BY EXECUTIVE ORDER NO. 4630 OF APRIL 13, 1927). TO HOLD OTHERWISE WOULD MEAN THAT THE NAVAL AUTHORITIES WERE PROHIBITED FROM CONTRACTING FOR THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND TO ENLISTED MEN IN EXCEPTIONAL AND UNUSUAL CIRCUMSTANCES, AS WAS THE SITUATION IN THE PRESENT CASE. THAT THE CONDITIONS NECESSITATING THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND TO THE ENLISTED MEN CONCERNED IN THIS CASE WERE EXCEPTIONAL IS CLEARLY EVIDENCED BY THE FACTS DISCLOSED. THIS DEPARTMENT, THEREFORE, FEELS MOST STRONGLY THAT THE COMMANDING OFFICER, NAVAL AIR STATION, PEARL HARBOR, T.H., WAS FULLY JUSTIFIED, IN THE EMERGENCY CONDITIONS EXISTING AT THE TIME, IN DIRECTING PAYMENT FOR QUARTERS AND SUBSISTENCE IN KIND FURNISHED THE ENLISTED MEN INVOLVED.

3. IN VIEW OF ALL THE FOREGOING, THE NAVY DEPARTMENT HOPES THAT YOU WILL SEE YOUR WAY CLEAR TO ACQUIESCE IN ITS VIEWS AS HEREIN EXPRESSED AND DIRECT THAT CREDIT BE ALLOWED FOR PAYMENT OF QUARTERS AND SUBSISTENCE FURNISHED IN THIS CASE.

YOUR REQUEST HAS A DOUBLE ASPECT. IF THE ITEM IS REMOVED FROM LIEUTENANT VAUGHN'S ACCOUNT PURSUANT TO SECTION 285, REVISED STATUTES, THAT STATUTE IS MANDATORY THAT "THE COMMANDING OFFICER BY WHOSE ORDER SUCH DISBURSEMENT OR DISPOSAL WAS MADE SHALL BE HELD ACCOUNTABLE FOR THE SAME.' BY THE LAST PARAGRAPH OF YOUR INDORSEMENT YOU ALSO REQUEST THAT THE ITEM BE CREDITED ON ITS MERITS. BEFORE DISCUSSING EITHER OF THE ALTERNATIVES SUGGESTED BY YOUR INDORSEMENT, THE FACTS OF THE TRANSACTION WILL BE BRIEFLY STATED. ORDER ISSUED BY THE COMMANDING OFFICER OF THE UNITED STATES NAVAL AIR STATION, DECEMBER 17, 1926, IS AS FOLLOWS:

U.S. NAVAL AIR STATION,

PEARL HARBOR, T.H., 17 DECEMBER, 1926. OPERATION ORDER NO. 17-26 TASK ORGANIZATION

(A) PATROL SQUADRON FOURTEEN, LIEUTENANT MCDONNEL, FIRST DIVISION VP-14.

(B) U.S.S. PELICAN, LIEUTENANT DANIELSON.

1. ONE DIVISION PATROL SQUADRON FOURTEEN AND U.S.S. PELICAN WILL MAKE A TRIP TO KAUAI, T.H., FOR THE PURPOSE OF TRANSPORTING NAVY ATHLETIC TEAMS TO PARTICIPATE IN NEW YEARS CELEBRATION OF THAT ISLAND.

2. PELICAN WILL TRANSPORT ATHLETICS AND ACT AS TENDER AND GUARD FOR PLANES OF VP-14. PLANES WILL LAND AT NAWILIWILI BAY, MAKE LOCAL FLIGHTS AS ORDERED, AND RETURN TO PEARL HARBOR THREE JANUARY.

3. (A) PLANES, VP-14, TAKE OFF PEARL HARBOR 0700, THIRTY DECEMBER, PROCEED NAWILIWILI BAY, LAND AND DISEMBARK PASSENGERS. TAKE OFF FROM NAWILIWILI BAY WHEN ORDERED BY DIVISION COMMANDER AND RETURN PEARL HARBOR.

(B) PELICAN LEAVE PEARL HARBOR IN SUFFICIENT TIME TO TAKE STATION MIDWAY IN KAUAI CHANNEL 0800 THIRTY DECEMBER. AFTER PASSAGE OF PLANES PROCEED NAWILIWILI BAY, LAND PASSENGERS, AND ACT AS PLANE TENDER DURING STAY OF DETACHMENT AT KAUAI. LEAVE NAWILIWILI BAY WHEN ORDERED BY COMMANDING OFFICER OF DETACHMENT.

(C) REPORT ALL ARRIVALS AND DEPARTURES TO COMMANDANT OF FOURTEENTH NAVAL DISTRICT AND NAVAL AIR STATION, PEARL HARBOR. PLANES REPORT POSITION AT FIFTEEN-MINUTE INTERVALS DURING ALL FLIGHTS TO COMMANDANT AND TO PELICAN.

4. PELICAN FURNISH SUBSISTENCE DURING TRANSPORTATION TO MEN OF ATHLETIC TEAMS. BE PREPARED TO QUARTER AND SUBSIST PLANE CREWS FROM ARRIVAL TO DEPARTURE OF PLANES AT NAWILIWILI BAY. ALSO TRANSPORT SUCH AVIATION STORES AND SUPPLIES AS MAY BE TURNED OVER BY MATERIAL OFFICER OF VP-14.

5. USE 580 KCS. COMMANDING OFFICER OF SEAPLANE DIVISION IN 14-P 1.

M. B. MCCOMB,

LIEUTENANT COMMANDER, U.S. NAVY, COMMANDING.

IT IS INFERRED THAT THE PURPOSE OF THE JOURNEY WAS TO TRANSPORT ON THE PELICAN NAVAL ATHLETES TO PARTICIPATE IN A NEW YEAR CELEBRATION AND THAT THE DIVISION OF AIRPLANES WAS TO GIVE EXHIBITION FLIGHTS AT SUCH NEW YEAR CELEBRATION. YOUR INDORSEMENT IMPLIES AN APPROVAL OF THE USE OF NAVAL PERSONNEL AND EQUIPMENT FOR THAT PURPOSE; OTHERWISE THERE IS NO INDICATION OF YOUR APPROVAL THEREOF. WHILE THIS OFFICE HAS JURISDICTION TO PASS UPON THE AVAILABILITY OF AN APPROPRIATION FOR THE PAYMENT OF EXPENSES DIRECTLY RESULTING FROM AN ENTERPRISE OF THIS CHARACTER (THE REGULAR PAY AND ALLOWANCES OF THE PERSONNEL NOT BEING INVOLVED, AND THE LEGALITY OF THE USE OF STORES FOR SUCH A PURPOSE BEING COMMITTED TO THE SECRETARY OF THE NAVY BY THE ACT OF MARCH 29, 1894, 28 STAT. 47), ISOLATED INCIDENTS SUCH AS THIS COMING TO ATTENTION IN THE AUDIT HAVE NOT BEEN OF SUFFICIENT MAGNITUDE TO WARRANT RAISING A QUESTION ON THAT GROUND. ATTENTION IS MERELY CALLED TO THIS FEATURE AS IN THE VIEW OF THIS OFFICE ON THE FACTS NOW PRESENTED THE ENTIRE JOURNEY WAS NOT NECESSARILY IN THE PUBLIC SERVICE BUT SUGGESTS A PRIVATE ENTERPRISE FOR WHICH, PROPERLY, NAVAL APPROPRIATIONS ARE NOT AVAILABLE AND THERE SHOULD HAVE BEEN A SHOWING OF FACTS AS TO THE NAVAL NECESSITY--- THE PRIMA FACIE PRIVATE NATURE OF THE MATTER ITSELF SUGGESTING THAT THERE SHOULD ACCOMPANY AN EXPLANATION OF THE PUBLIC OR NAVAL CONNECTION. IN KEEPING WITH ITS ACTION IN THE PAST WHERE ISOLATED SIMILAR ACTIVITIES HAVE COME TO ATTENTION, THIS OFFICE WILL IN THIS CASE DEFER TO YOUR IMPLIED APPROVAL OF THE JOURNEY AND CONSIDER THE MATTER ON THE BASIS PRESENTED--- AS AN ORDERED AND LEGALLY AUTHORIZED JOURNEY OF THE NAVAL PERSONNEL INVOLVED, THE EXPENSES OF WHICH ARE PROPERLY CHARGEABLE TO NAVAL APPROPRIATIONS.

ON THE COMPLETION OF THE NEW YEAR CELEBRATION, AND ON JANUARY 3, 1927, THE PELICAN PROCEEDED TO MID-CHANNEL TO TAKE STATION UNTIL THE PLANES OF THE DIVISION PASSED. BETWEEN THE DEPARTURE OF THE PELICAN AND ITS ARRIVAL IN MID-CHANNEL A CHANGE IN WEATHER CONDITIONS, WITH HIGH WINDS, DEVELOPED, MAKING IMPRACTICABLE, IF NOT ACTUALLY DANGEROUS, THE FLIGHT OF THE DIVISION. THE PELICAN PROCEEDED TO PEARL HARBOR, DISCHARGED HER PASSENGERS, AND DID NOT RETURN TO KAUAI UNTIL LATE IN THE AFTERNOON OF JANUARY 5, TO RESUME ITS FUNCTION AS TENDER FOR THE DIVISION OF PLANES. THE WEATHER CONDITIONS DURING THE INTERVAL ARE DESCRIBED BY THE COMMANDING OFFICER OF THE DIVISION OF PLANES AS FOLLOWS:

THE SEA AND WIND EVEN INSIDE THE HARBOR OF NAWILIWILI WERE, FROM NOON JANUARY 3RD, TO NOON JANUARY 5TH, OF SUCH INTENSITY AS TO MAKE CONDITIONS EXTREMELY HAZARDOUS FOR THE PELICAN HAD SHE REMAINED THERE AND DURING THIS PERIOD A PLANE BROKE LOOSE FROM ITS MOORINGS THREE SEPARATE TIMES AND WAS ONLY PREVENTED FROM BECOMING A TOTAL LOSS THROUGH GREAT DIFFICULTY. THE AFTERNOON OF JANUARY FIFTH THE REGULAR PASSENGER STEAMER FROM KAUAI TO HONOLULU DID NOT MAKE HER SCHEDULE RUN BECAUSE OF THE DANGER IN CLEARING THE HARBOR ENTRANCE.

THE PELICAN NOT BEING PRESENT TO ACT AS TENDER, AND NO OTHER PROVISION FOR SUBSISTING THE ENLISTED MEN BEING AVAILABLE, THEY WERE QUARTERED AND SUBSISTED AT THE LIHUE HOTEL (FAIRVIEW) LIHUE, KAUAI, T.H., UNDER AN ARRANGEMENT MADE BY THE COMMANDING OFFICER OF THE DIVISION OF PLANES FOR ROOM AT $2, BREAKFAST $0.75, LUNCH $1, AND DINNER $1.25--- A TOTAL OF $5 PER DAY.

THERE IS ATTACHED TO THE VOUCHER A SUPPORTING BILL OF THE HOTEL AND A "PROPOSAL FOR SUPPLIES OR SERVICES," S. AND A. FORM NO. 101, REPRESENTED AS DATED "3RD JANUARY, 1927, ADDRESSED TO THE LIHUE HOTEL, AND SIGNED BY S. P. VAUGHN (S.C.), UNITED STATES NAVY, ON WHICH IS AN UNDATED BID BY THE LIHUE HOTEL AND ACCEPTANCE INDORSED THEREON BY THE COMMANDING OFFICER OF THE DIVISION OF PLANES. THE VOUCHER BEARS A CERTIFICATE BY S. P. VAUGHN THAT THE PURCHASE WAS MADE "IN ACCORDANCE WITH SECTIONS 4 AND C OF THE METHODS ON THE REVERSE" OF THE VOUCHER FORM; THAT IS, WITHOUT ADVERTISING BECAUSE OF "ABSENCE OF COMPETITION" AND UNDER A "WRITTEN PROPOSAL AND ACCEPTANCE.' IT DOES NOT APPEAR THAT THE SUPPLY OFFICER WAS ATTACHED TO THE PLANE DIVISION OR ON DUTY ON THE ISLAND OF KAUAI, AND, AS ON JANUARY 3, 1927, WHEN THE PROPOSAL IS PURPORTED TO HAVE BEEN ISSUED, TRAVEL BETWEEN THE NAVAL AIR STATION AT PEARL HARBOR AND KAUAI, WAS DIFFICULT, IF NOT IMPRACTICABLE, IT WOULD APPEAR THAT THE PROPOSAL WAS ANTEDATED AND COMPLETED MERELY TO GIVE A SEMBLANCE OF REGULARITY TO THE TRANSACTION. IS NOTED IN THIS CONNECTION THAT THE APPARENTLY ANTEDATED PROPOSAL IS SIGNED BY LIEUTENANT VAUGHN AND THE VOUCHER IS CERTIFIED BY HIM AS THE SUPPLY AND DISBURSING OFFICER, AND THAT HE IS THE SAME OFFICER WHO PROTESTED PAYMENT OF THE ACCOUNT AND WHO, IN THE LETTER WHICH YOU TRANSMIT WITH YOUR SECOND INDORSEMENT, HAS STATED AS FOLLOWS:

IN RENDERING A DECISION AS TO RESPONSIBILITY FOR THE OVERPAYMENT, I HAVE TO REQUEST THAT A DECISION BE RENDERED AS TO WHETHER EXECUTIVE ORDER BASED ON ACT OF 10 JUNE 1922, AND CITED BY THE COMPTROLLER GENERAL IN MANY DECISIONS RELATIVE TO EXPENSE ALLOWANCES OF ENLISTED MEN, HAS ANY BEARING WHATEVER UPON THE COSTS OF QUARTERING AND SUBSISTING A BODY OF TROOPS. THIS CONNECTION ATTENTION IS INVITED TO INCLOSURES 1 AND 2 IN WHICH THE COMMANDING OFFICER OF PATROL SQUADRON FOURTEEN AND THE COMMANDING OFFICER OF THE NAVAL AIR STATION HAVE SET FORTH THEIR VIEWS.

IN THE AUDIT CREDIT WAS ALLOWED PURSUANT TO PROVISIONS OF EXECUTIVE ORDER NO. 4473, DATED JULY 8, 1926, WHICH FIXES AN ALLOWANCE OF $3.10 PER DAY FOR ENLISTED MEN AWAY FROM THEIR SHIP OR STATION WHERE QUARTERS AND RATIONS IN KIND ARE NOT FURNISHED, AND THE DIFFERENCE, $58.90, WAS DISALLOWED. THIS IS THE ACTION OF WHICH COMPLAINT IS MADE. THE COMMANDING OFFICER OF PATROL SQUADRON 14, IN LETTER DATED JUNE 7, 1927, TO THE BUREAU OF NAVIGATION, IN CONNECTION WITH THE CASE, SUGGESTS THAT THE ENLISTED MEN WERE "ENTITLED TO BE FED AND LODGED BY THE GOVERNMENT UNDER THEIR ENLISTMENT AGREEMENTS" AND THE COMMANDING OFFICER OF THE NAVAL AIR STATION, PEARL HARBOR, STATES:

2. SECTION 1580 AND 1581 R.S. AND ACT OF 29 JUNE 1906, PROVIDES AN ALLOWANCE OF PROVISIONS BY WEIGHT FOR EACH ENLISTED MAN IN THE NAVY. DEFINITE ALLOWANCE IS PROVIDED FOR AND NO MONETARY LIMIT IS ESTABLISHED, AND I KNOW OF NO LAW THAT LIMITS THE COST OF THE NAVY RATION TO THE AMOUNTS PRESCRIBED IN THE EXECUTIVE ORDER BASED ON THE ACT OF 10 JUNE 1922. THIS ACT STATES "TO EACH ENLISTED MAN NOT FURNISHED QUARTERS AND RATIONS IN KIND THERE SHALL BE GRANTED * * * AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE * * * WHICH SHALL NOT EXCEED $4 PER DAY.' I CONSTRUE THIS LAW TO MEAN THAT EACH MAN SHALL BE PAID PERSONALLY THIS ALLOWANCE WHEN HE SUBSISTS AND QUARTERS HIMSELF, AND THAT THE ALLOWANCE HAS NO BEARING WHATEVER ON WHAT IT MAY COST THE GOVERNMENT TO FURNISH AN ENLISTED MAN WITH QUARTERS AND RATIONS TO WHICH HE IS MOST CERTAINLY ENTITLED UNDER ANY CONDITIONS WHEN MOVING AS A BODY OF TROOPS. I KNOW OF NO LAW THAT LIMITS EXPENDITURES NECESSARY TO PROVIDE QUARTERS AND RATIONS FOR THE ENLISTED PERSONNEL, EXCEPT THE TOTAL OF THE APPROPRIATIONS PROVIDED FOR BY CONGRESS FOR THAT PARTICULAR PURPOSE.

THE VIEWS OF THE TWO OFFICERS HAVE APPARENTLY BEEN EMBODIED IN THE SECOND PARAGRAPH OF YOUR INDORSEMENT, BUT THEY ARE NOT ONLY NOT BASED UPON THE LAW, BUT ARE IN DIRECT CONFLICT WITH IT, ALSO WITH NAVAL PUBLICATIONS, HAVING THE EFFECT OF REGULATIONS OF MANY YEARS' STANDING. THE VIEWS OF THE OFFICERS ARE PROBABLY BASED UPON ASSUMPTIONS, THE RESULT OF THE GREAT LATITUDE PERMITTED IN MATTERS OF EXPENDITURE DURING THE WORLD WAR. SECTION 1579, REVISED STATUTES, PROVIDES:

NO PERSON NOT ACTUALLY ATTACHED TO AND DOING DUTY ON BOARD A SEAGOING VESSEL, EXCEPT THE PETTY OFFICERS, SEAMEN, AND ORDINARY SEAMEN ATTACHED TO RECEIVING SHIPS OR TO THE ORDINARY OF A NAVY YARD, AND MIDSHIPMEN, SHALL BE ALLOWED A RATION.

THIS IS THE BASIC PROVISION. WHILE IT HAS BEEN MODIFIED BY SUBSEQUENT PROVISIONS OF LAW, BOTH PERMANENT AND TEMPORARY, IT HAS NOT BEEN REPEALED, AND ONLY TO THE EXTENT THAT IT HAS BEEN MODIFIED IS THERE ANY AUTHORITY TO RATION OR SUBSIST ENLISTED MEN WHILE NOT DOING DUTY ON A VESSEL. THERE IS NOTHING IN THE ENLISTMENT AGREEMENT OF A MAN WHICH ENTITLES HIM TO RATIONS OR SUBSISTENCE CONTRARY TO LAW. YOU WILL OBSERVE THE COMMANDING OFFICER OF THE NAVAL AIR STATION AT PEARL HARBOR MAKES EXTENDED REFERENCES TO SECTIONS 1580 AND 1581, RESPECTING THE NAVY RATION, BUT THIS PROVISION IN SECTION 1579, REVISED STATUTES, SEEMS TO HAVE ESCAPED HIS ATTENTION. THE ACT OF JANUARY 30, 1885, 23 STAT. 291, IT WAS PROVIDED:

* * * THAT ALL ENLISTED MEN AND BOYS IN THE NAVY, ATTACHED TO ANY UNITED STATES VESSEL OR STATION AND DOING DUTY THEREON, AND NAVAL CADETS, SHALL BE ALLOWED A RATION, OR COMMUTATION THEREOF IN MONEY, UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.

THESE TWO PROVISIONS OF LAW AND THE PROVISION CONTAINED IN SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, ARE THE ONLY PERMANENT LAWS RESPECTING THE RATIONING OR SUBSISTENCE OF ENLISTED MEN OF THE NAVY. YOU WILL OBSERVE THAT UNDER THE 1885 ACT IT WAS NOT ONLY NECESSARY THAT THE MAN BE ATTACHED TO THE VESSEL OR STATION TO BE ENTITLED TO A RATION, BUT ALSO THAT HE WAS REQUIRED TO BE "DOING DUTY THEREON," AND THIS WAS THE CONSTRUCTION OF THOSE LAWS. 4 COMP. DEC. 690; 5 ID. 40; 171.

IN CONNECTION WITH THE EXTREME VIEW ADVANCED BY THE TWO OFFICERS, IT IS INTERESTING TO OBSERVE THE CONTEMPORANEOUS NAVY DEPARTMENT VIEW OF THE ACT OF 1885, CONTAINED IN GENERAL ORDER NO. 333 OF FEBRUARY 16, 1885, PUBLISHING TO THE SERVICE THE ACT (CONTAINED IN "GENERAL ORDERS AND CIRCULARS, NAVY DEPARTMENT, 1863-1887).' PARTICULARS WERE ALSO PUBLISHED RELATING TO THE SUBJECT FOR THE INFORMATION OF THE SERVICE AND THE GUIDANCE OF THOSE IMMEDIATELY CONCERNED. AMONG THE LATTER THE FOLLOWING OCCUR:

THE RATION IS NOT A PART OF THE PAY, BUT IS A LIMITED ALLOWANCE BY GOVERNMENT, UNDER CERTAIN CONDITIONS DEFINED BY LAW, TO THE OFFICERS AND ENLISTED MEN OF THE SERVICE, AS A MILITARY NECESSITY.

COMMUTATION OF THE RATION BY THE ENLISTED MEN IS NOT A RIGHT, BUT AN ALLOWANCE GRANTED ONLY BY EXECUTIVE AUTHORITY.

THE SAME APPEARS IN ARTICLE 1325 OF THE UNITED STATES NAVAL REGULATIONS OF 1893 AND IN ARTICLE 1236 OF THE REGULATIONS FOR THE GOVERNMENT OF THE NAVY OF THE UNITED STATES, 1909. INDEED, THE LIMITATION ON FURNISHING RATIONS OR PAYING COMMUTATION THEREFOR TO ENLISTED MEN OF THE NAVY WAS SO DEFINITE THAT APPARENT CASES OF GENUINE HARDSHIP OCCURRED AMONG ENLISTED MEN WHEN DEPRIVED OF A DUTY STATUS ABOARD A VESSEL BY AN INCIDENT OF THE SERVICE, FOR THE APPROPRIATION UNDER ,PROVISIONS, NAVY," WAS, COMMENCING WITH THE ACT OF JULY 19, 1892, 27 STAT. 236, BROADENED TO BE MADE AVAILABLE FOR---

* * * SUBSISTENCE OF OFFICERS AND MEN WHEN UNAVOIDABLY DETAINED OR ABSENT FROM VESSELS TO WHICH ATTACHED UNDER ORDERS (DURING WHICH SUBSISTENCE RATIONS TO BE STOPPED ON BOARD SHIP AND NO CREDIT FOR COMMUTATION THEREFOR TO BE GIVEN) * * *.

THIS PROVISION HAS CONTINUED TO APPEAR EVERY YEAR SINCE IN CONNECTION WITH THE APPROPRIATION ,PROVISIONS, NAVY.' IT IS TEMPORARY LEGISLATION AND IS APPLICABLE ONLY TO THE APPROPRIATION IN CONNECTION WITH WHICH THE LANGUAGE IS USED. PRIOR TO THE ACT OF MAY 18, 1920, 41 STAT. 601, THE RATES OF PAY OF ENLISTED MEN OF THE NAVY HAD BEEN FIXED BY EXECUTIVE REGULATIONS, AND THOSE RATES WERE MADE PERMANENT BY THE ACT OF MAY 13, 1908. SO WELL WAS IT ESTABLISHED THAT AN ENLISTED MAN NOT IN ONE OF THE CIRCUMSTANCES DEFINED BY THE STATUTES AS ENTITLING HIM TO RATIONS OR COMMUTATION THEREFOR WAS NOT ENTITLED TO SUBSISTENCE, THAT A SPECIFIC INCREASE IN THE RATE OF PAY HAD BEEN PROVIDED FOR SUCH MEN. SEE PARAGRAPH 4427 OF THE REGULATIONS FOR THE NAVY, 1913, PUBLISHING THE RATES OF PAY OF ENLISTED MEN, AND SUBPARAGRAPH 6 THEREOF, PROVIDING:

(6) PETTY OFFICERS OF THE NAVY PERFORMING DUTY WHICH DEPRIVES THEM OF QUARTERS AND OF THEIR RATIONS OR COMMUTATION THEREOF SHALL RECEIVE NINE DOLLARS PER MONTH IN ADDITION TO THE PAY OF THEIR RATING.

IT WAS NOT UNTIL THE APPROPRIATION ACT OF MARCH 4, 1917, 39 STAT. 1182, THAT THE APPROPRIATION UNDER "PROVISIONS, NAVY," WAS BROADENED TO MAKE THE FUNDS THEREIN APPROPRIATED AVAILABLE FOR ,SUBSISTENCE OF MEN ON DETACHED DUTY.' WITH THE ACT OF JULY 1, 1922, 42 STAT. 800, THIS LATTER CLAUSE WAS BROADENED TO PROVIDE FOR "QUARTERS AND SUBSISTENCE OF MEN ON DETACHED DUTY.' IT IS TO BE OBSERVED THAT THE ACT OF JUNE 10, 1922, PROVIDING IN SECTION 11 FOR A QUARTERS AND SUBSISTENCE ALLOWANCE FOR ENLISTED MEN HAD BECOME LAW SINCE THE PRIOR APPROPRIATION AND WAS TO BECOME EFFECTIVE JULY 1, 1922, AND THE APPROPRIATION WAS BROADENED TO PROVIDE SPECIFICALLY FOR QUARTERS AND FOR SUBSISTENCE AS AUTHORIZED BY SECTION 11 OF THE ACT OF JUNE 10, 1922.

THE CLAUSE FIRST INSERTED IN THE ACT OF 1892 AND THE CLAUSE FIRST INSERTED IN THE ACT OF 1917 NOW APPEAR IN THE APPROPRIATION UNDER"PROVISIONS, NAVY" FOR THE FISCAL YEAR 1927 (THE YEAR HERE IN QUESTION), ACT OF MAY 21, 1926, 44 STAT. 604, AS FOLLOWS:

FOR PROVISIONS AND COMMUTED RATIONS FOR ENLISTED MEN OF THE NAVY, WHICH COMMUTED RATIONS MAY BE PAID TO CATERERS OF MESSES IN CASE OF DEATH OR DESERTION UPON ORDERS OF THE COMMANDING OFFICERS, AT 50 CENTS PER DIEM, AND MIDSHIPMEN AT 80 CENTS PER DIEM, AND COMMUTED RATIONS STOPPED ON ACCOUNT OF SICK IN HOSPITAL AND CREDITED AT THE RATE OF 75 CENTS PER RATION TO THE NAVAL HOSPITAL FUND; SUBSISTENCE OF MEN UNAVOIDABLY DETAINED OR ABSENT FROM VESSELS TO WHICH ATTACHED UNDER ORDERS (DURING WHICH SUBSISTENCE RATIONS TO BE STOPPED ON BOARD SHIP AND NO CREDIT FOR COMMUTATION THEREFOR TO BE GIVEN); QUARTERS AND SUBSISTENCE OF MEN ON DETACHED DUTY; SUBSISTENCE OF MEMBERS OF THE NAVAL RESERVE DURING THE PERIOD OF ACTIVE SERVICE; EXPENSES OF HANDLING PROVISIONS AND FOR SUBSISTENCE IN KIND AT HOSPITALS AND ON BOARD SHIP IN LIEU OF SUBSISTENCE ALLOWANCE OF FEMALE NURSES AND NAVY AND MARINE CORPS GENERAL COURTS- MARTIAL PRISONERS UNDERGOING IMPRISONMENT WITH SENTENCES OF DISHONORABLE DISCHARGE FROM THE SERVICE AT THE EXPIRATION OF SUCH CONFINEMENT; IN ALL, $19,207,000: PROVIDED, THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO COMMUTE RATIONS FOR SUCH GENERAL COURTS-MARTIAL PRISONERS IN SUCH AMOUNTS AS SEEM TO HIM PROPER, WHICH MAY VARY IN ACCORDANCE WITH THE LOCATION OF THE NAVAL PRISON, BUT WHICH SHALL IN NO CASE EXCEED 30 CENTS PER DIEM FOR EACH RATION SO COMMUTED; AND FOR THE PURCHASE OF UNITED STATES ARMY EMERGENCY RATIONS AS REQUIRED.

IT IS UNDER THIS LEGISLATION AND THE ASSUMED OBLIGATION OF THE GOVERNMENT TO SUBSIST AN ENLISTED MAN OF THE NAVY AT ALL TIMES THAT THE TWO OFFICERS CONTEND THEY HAVE AUTHORITY TO ,CONTRACT" WITH HOTELS TO FURNISH LODGING AND SUBSISTENCE AT LEAST AT THE RATE OF $5 PER DAY AS A "SPECIAL CONCESSION," BUT WHICH, IF RECOGNIZED AS VALID, AT RATES POSSIBLY IN EXCESS OF THE MAXIMUM AUTHORIZED BY LAW FOR OFFICERS AS REIMBURSEMENT FOR ACTUAL AND NECESSARY EXPENSES. THE OFFICERS CITE NO REGULATIONS ISSUED BY THE DEPARTMENT AUTHORIZING THEM TO "CONTRACT" FOR THE LODGING AND SUBSISTENCE OF ENLISTED MEN ON DETACHED DUTY, AND DILIGENT SEARCH HAS FAILED TO DISCOVER THAT ANY EXIST. THE MATTER COULD THUS BE DISPOSED OF WERE IT NOT FOR THE SUGGESTION IN YOUR SUBMISSION THAT

* * * THAT QUARTERING AND SUBSISTING OF THESE ENLISTED MEN UNDER THE CIRCUMSTANCES HAS ALWAYS BEEN REGARDED BY THIS DEPARTMENT AS EQUIVALENT TO THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND, AS CONTRADISTINGUISHED FROM THOSE CASES IN WHICH A CASH ALLOWANCE ONLY SHOULD BE GIVEN IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER. * * *

FROM THE LEGISLATION HEREINABOVE QUOTED, IT IS NOT CLEAR WHEN THE NAVY DEPARTMENT FIRST DETERMINED IT HAD AUTHORITY TO CONTRACT FOR THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND FOR ENLISTED MEN ON DETACHED DUTY. THERE WAS NO SUGGESTION THAT THAT WAS THE PURPOSE IN REQUESTING THE ADDITIONAL AUTHORITY UNDER THE APPROPRIATION "PROVISIONS, NAVY," IN THE ACT OF 1917. THE HEARINGS BEFORE THE COMMITTEE ON NAVAL AFFAIRS OF THE HOUSE OF REPRESENTATIVES ON THE ESTIMATES FOR THE NAVY FOR THE FISCAL YEAR 1918, PAGES 101-2, CONTAIN THE FOLLOWING EXPLANATION OF THE PURPOSE OF THE NEW LANGUAGE:

THE CHAIRMAN. NOW WE COME TO "PROVISIONS, NAVY.' I SEE * * * YOU HAVE INSERTED THIS NEW LANGUAGE,"SUBSISTENCE OF MEN ON DETACHED DUTY; SUBSISTENCE OF MEMBERS OF THE NAVAL RESERVE FORCE, DURING PERIOD OF ACTIVE SERVICE.' * * *

MR. MCGOWAN. AT THE PRESENT TIME THERE ARE A GREAT MANY ENLISTED MEN FROM TIME TO TIME DOING DUTY AWAY FROM THEIR SHIPS, TEMPORARY DUTY, SPECIAL DUTY; AND IT IS VERY TROUBLESOME TO HAVE TO TECHNICALLY ATTACH THEM AND CREDIT THEM TO A RECEIVING SHIP IN ORDER TO HAVE THEIR RATIONS PAID FOR, IT MAKES DELAY AND TROUBLE AND, IN SOME CASES, ADDED EXPENSE.

THE CHAIRMAN. THIS DOES NOT ADD ANYTHING TO THE APPROPRIATION?

MR. MCGOWAN. NOT AT ALL.

THE CHAIRMAN. IT IS JUST A METHOD OF---

MR. MCGOWAN. JUST EXPEDITES THE PAYMENTS.

THE CHAIRMAN. IT JUST RELATES TO THE MANNER OF DEALING WITH THE ENLISTED MEN?

MR. MCGOWAN. EXACTLY SO; YES, SIR.

MR. MCGOWAN. * * * THE INSERTION OF THE FOLLOWING LANGUAGE HAS BEEN RECOMMENDED: "AND SUBSISTENCE OF MEN ON DETACHED DUTY; SUBSISTENCE OF MEMBERS OF NAVAL RESERVE FORCE DURING PERIOD OF ACTIVE SERVICE.'

AT THE PRESENT TIME IN ORDER THAT ENLISTED MEN ON DETACHED DUTY AT RECRUITING STATIONS, RADIO STATIONS, AND LIKE PLACES MAY BE FURNISHED SUBSISTENCE IT IS NECESSARY THAT THEY BE ATTACHED TO A RECEIVING SHIP, OR OTHER VESSEL AND THEIR ACCOUNTS CARRIED ON SUCH VESSEL. THIS IS INCONVENIENT IN MANY INSTANCES AND RESULTS IN DELAY IN MAKING PAYMENTS TO THEM FOR PAY AND SUBSISTENCE. AS IT IS ABSOLUTELY NECESSARY THAT ENLISTED MEN SHOULD BE EMPLOYED ON SHORE AT TIMES THERE SHOULD BE AUTHORITY TO PAY FOR THEIR SUBSISTENCE WITHOUT THE NECESSITY OF HAVING THEM ATTACHED TO NAVAL VESSELS.

THERE IS IN THE FOREGOING NO SUGGESTION THAT THE DEPARTMENT PROPOSED TO CONTRACT WITH HOTELS FOR THE LODGING AND SUBSISTENCE OF ENLISTED MEN ON DETACHED DUTY. THE IMPRESSION WOULD RATHER BE LEFT THAT THE PROPOSAL WAS MERELY TO AUTHORIZE A METHOD OF PAYING. OF COURSE PETTY OFFICERS ON DETACHED DUTY WERE ENTITLED THEN, UNDER THE PROVISIONS OF THE 1913 REGULATIONS QUOTED ABOVE, TO $9 ADDITIONAL PAY IN LIEU OF QUARTERS AND RATIONS; BY "TECHNICALLY" (?) ATTACHING THEM TO A SHIP, THEY WERE PROBABLY BEING PAID A SUBSISTENCE ALLOWANCE AT A HIGHER RATE THAN COMMUTATION OF RATIONS AS "UNAVOIDABLY DETAINED OR ABSENT" FROM THE VESSEL TO WHICH ATTACHED. DOUBT AS TO THE LEGALITY OF THIS PROCEDURE SEEMS TO HAVE BEEN THE FOUNDATION FOR REQUESTING THE LEGISLATION. BY LETTER OF MARCH 13, 1917, NINE DAYS AFTER THE PASSAGE OF THE BILL, THE SECRETARY OF THE NAVY ADDRESSED THE COMPTROLLER OF THE TREASURY, QUOTING THE NEW LANGUAGE OF THE APPROPRIATION, REFERRED TO A DECISION OF DECEMBER 31, 1915, IN WHICH IT WAS HELD THAT THE PAYMENT OF SUBSISTENCE, WHEN UNAVOIDABLY DETAINED OR ABSENT FROM VESSEL TO WHICH ATTACHED AT THE RATE ALLOWED BY THE DEPARTMENT OR REGULATIONS, TO AN ENLISTED MAN, WHEN SO UNAVOIDABLY DETAINED OR ABSENT, MIGHT BE PAID TO HIM WITHOUT EVIDENCE OF ITS EXPENDITURE BY HIM, REQUESTED DECISION.

AS TO WHETHER SUCH ALLOWANCE FOR SUBSISTENCE MAY NOT BE CREDITED ON THE PAY ROLL IN THE SUNDRY CREDIT COLUMN TO EACH MAN CONCERNED INSTEAD OF MAKING PAYMENT ON PUBLIC BILL AS IS NOW THE PRACTICE.

IN DECISION OF MARCH 23, 1917, 80 MS. COMP. DEC. 1211, THE COMPTROLLER OF THE TREASURY REPLIED:

I SEE NO REASON WHY SUCH A PREVIOUSLY FIXED PER DIEM ALLOWANCE MAY NOT AS WELL BE CREDITED ON THE PAY ROLLS IN THE SUNDRY CREDIT COLUMN TO EACH MAN ENTITLED THERETO AS PAID TO HIM ON A PUBLIC BILL, WHETHER HE BE AN ENLISTED MAN OF THE NAVY PROPER OR AN ENROLLED MAN OF THE NAVAL COAST DEFENSE RESERVE.

IN EITHER EVENT THE MAN MUST, OF COURSE, BE ON DUTY ENTITLING HIM TO THE SUBSISTENCE, THE PER DIEM RATE AS CREDITED MUST HAVE BEEN PREVIOUSLY FIXED FOR HIM WHILE UPON SUCH DUTY, AND, IN CASES OF THOSE UNAVOIDABLY DETAINED OR ABSENT FROM VESSELS TO WHICH ATTACHED UNDER ORDERS, HIS SUBSISTENCE RATION MUST BE STOPPED ON BOARD HIS SHIP AND NO CREDIT FOR COMMUTATION THEREFOR BE GIVEN TO HIM.

BY CIRCULARS COMMENCING IN 1917 THE BUREAU OF NAVIGATION FIXED RATES OF SUBSISTENCE FOR ENLISTED AND ENROLLED PERSONNEL OF THE NAVY, NAVAL RESERVE, AND NATIONAL NAVAL VOLUNTEERS WHERE QUARTERS WERE NOT AVAILABLE AND FOR ENLISTED MEN ON DETACHED DUTY FROM VESSEL OR STATION, THE RATES OF PAYMENT VARYING ACCORDING TO THE DUTY AND WHETHER MESSING FACILITIES WERE AVAILABLE, AND CONTAINED THE FOLLOWING PARAGRAPH:

IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL APPROPRIATION BILL PASSED ON MARCH 4, 1917, IT IS NO LONGER REQUIRED THAT ACCOUNTS OF MEN ON DETACHED DUTY BE CARRIED ON A RECEIVING SHIP OR OTHER NAVAL VESSEL. SEE THE FOLLOWING BUREAU OF NAVIGATION CIRCULAR LETTERS:

TABLE N6K. AUGUST 9, 1917. 45-17. DECEMBER 10, 1917. 54-18. MARCH 12, 1918. 131-18. JULY 29, 1918. 98-19. JULY 23, 1919. 155 19. DECEMBER 3, 1919.

THE MAXIMUM RATE PROVIDED BY ANY OF THE CIRCULAR LETTERS WAS $4 FOR DUTY ASSIGNMENTS INVOLVING TRAVEL.

THE CONTEMPORANEOUS AND IMMEDIATE REACTION IN THE NAVY DEPARTMENT TO THE CHANGE IN THE LANGUAGE OF THE APPROPRIATION UNDER "PROVISIONS, NAVY," FOR THE FISCAL YEAR 1918, MAKING IT AVAILABLE FOR "SUBSISTENCE OF MEN ON DETACHED DUTY," WAS TO FIX RATES FOR PAYMENT IN MONEY THEREUNDER TO THE MEN, THE AMOUNT TO BE CREDITED TO THEM IN THE SUNDRY CREDIT COLUMN ON THE PAY ROLL, AND THE PRACTICE OF THE DEPARTMENT HAD SO CRYSTALLIZED IN THIS RESPECT THAT ON THE ISSUANCE OF ,INSTRUCTIONS GOVERNING THE HANDLING OF ENLISTED PERSONNEL" BY THE BUREAU OF NAVIGATION, JANUARY 1, 1920, UNDER A CHAPTER HEADING "SUBSISTENCE," PARAGRAPH 9300 DEFINED THE TERM AS FOLLOWS:

SUBSISTENCE IS AN ALLOWANCE IN LIEU OF QUARTERS AND MESSING FACILITIES.

THE ENTIRE CHAPTER, CONSISTING OF PARAGRAPHS 9300 TO 9307, INCLUSIVE, IS DEVOTED TO RATES AND METHODS OF SECURING AUTHORITY FOR "PAYING" SUBSISTENCE. IT IS BARE OF ANY SUGGESTION THAT COMMANDING OFFICERS MAY "CONTRACT" FOR SUBSISTENCE FOR ENLISTED MEN EXCEPT AS PARAGRAPH 9304 NEGATIVES SUCH A SUGGESTION BY THE FOLLOWING:

NO SUBSISTENCE SHALL BE PAID EXCEPT IN ACCORDANCE WITH THE FOREGOING AND UNTIL THE AUTHORITY OF THE BUREAU SHALL HAVE BEEN OBTAINED.

BUREAU OF NAVIGATION MANUAL, 1921, UNDER A CHAPTER HEADING "SUBSISTENCE," CONTAINING PARAGRAPHS D9300 TO D9330, IS SUBSTANTIALLY THE SAME, THERE HAVING BEEN ADDED PARAGRAPHS D9310, D9311, D9312, AND D9313 ON SUBSISTENCE FOR SHIP RECRUITING PARTIES, D9320 "INSTRUCTIONS FOR PAYING SUBSISTENCE IN SPECIAL CASES," AND D9330 REQUIRING "SUBSISTENCE REPORTS.' PARAGRAPH D9313 IS ESPECIALLY TO BE NOTED IN CONNECTION WITH THE SUGGESTION THAT COMMANDING OFFICERS MAY CONTRACT FOR SUBSISTENCE, IT BEING PROVIDED THAT ORDERS TO MEMBERS OF SHIP RECRUITING PARTIES ARE TO SHOW SPECIFIC INFORMATION AS TO THE AMOUNT OF CASH FURNISHED FOR NOONDAY MEALS, WITH THE FOLLOWING PROVISION:

WHERE IT IS IMPRACTICABLE TO ADVANCE CASH FOR THIS PURPOSE FOR THE REASONS GIVEN IN THE ABOVE PARAGRAPH, NOTATION WILL BE MADE ON THE ORDERS TO THE MEN THAT THE RECRUITING OFFICERS WILL FURNISH ALLOWANCE FOR NOONDAY MEALS.

BUREAU OF NAVIGATION MANUAL, 1925, BY CHAPTER 10, ENTITLED "QUARTERS, SUBSISTENCE, CLAIMS, TC., " PROVIDES, UNDER PARAGRAPH D1010:

ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE IN KIND; GENERAL.

(1) ENLISTED MEN ON SHORE DUTY WHEN QUARTERS OR RATIONS IN KIND ARE NOT FURNISHED AND ENLISTED MEN ON SEA DUTY WHILE ABSENT FROM THEIR SHIPS ON TEMPORARY DUTY NOT INVOLVING TRAVEL ARE PAID ALLOWANCES IN LIEU OF SUBSISTENCE AND QUARTERS IN ACCORDANCE WITH AN EXECUTIVE ORDER BASED ON THE ACT OF JUNE 10, 1922.

THE SUBSEQUENT PROVISIONS FOLLOW THE EXECUTIVE ORDER, BUT NOWHERE THEREIN IS THERE ANY SUGGESTION THAT A COMMANDING OFFICER MAY CONTRACT FOR THE SUBSISTENCE OF ENLISTED MEN EITHER AT THE ENLISTED MAN'S SHORE STATION OR WHILE TEMPORARILY ABSENT THEREFROM. IN OTHER WORDS, THE FORMER DEFINITION OF SUBSISTENCE IS CONFINED TO THE PAYMENTS PRESCRIBED BY THE EXECUTIVE ORDER. IT IS AN ALLOWANCE IN LIEU OF QUARTERS AND MESSING FACILITIES AND IS THE ONLY SUBSTITUTE FOR FURNISHING THE MAN RATIONS OR COMMUTATION THEREOF PURSUANT TO THE REQUIREMENTS OF THE REVISED STATUTES GOVERNING THE NAVY RATION AND THE APPROPRIATION MADE UNDER "PROVISIONS, NAVY.' THIS WAS SO WELL SETTLED WHEN THE BILL, WHICH BECAME THE ACT OF JUNE 10, 1922, WAS UNDER CONSIDERATION BY THE SPECIAL JOINT COMMITTEE OF THE SENATE AND HOUSE OF REPRESENTATIVES THAT THE REPRESENTATIVES OF THE SERVICES IN EXPLAINING THE EFFECT OF THE VARIOUS PROVISIONS OF THE BILL (SEE P. 31 OF HEARINGS ON H.R. 10972, 67TH CONG., 2D SESS.) STATED, WITH RESPECT TO THE PROVISION IN SECTION 11, AS FOLLOWS:

TO ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND, THERE ARE NOW ALLOWED VARYING AMOUNTS FOR SUBSISTENCE, OR FOR SUBSISTENCE AND ROOM. EXCEPTIONAL CASES, WHERE THESE MEN TRAVEL FROM PLACE TO PLACE FOR SHORT PERIODS, INCURRING EXPENSES FOR TRANSIENT ACCOMMODATIONS AT HOTELS, MEALS, ETC., AN AMOUNT EQUAL TO $4 PER DAY IS ALLOWED. IN THE GREAT MAJORITY OF CASES THESE AMOUNTS ARE MUCH SMALLER.

THIS BILL ESTABLISHES, UNDER THE DIRECTION OF THE PRESIDENT, UNIFORM REGULATIONS FOR ALL SERVICES. THERE IS NO ADDITIONAL EXPENSE INVOLVED.

SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, CONTAINS THE FOLLOWING PROVISION, TO WHICH THIS COMMENT WAS ADDRESSED:

* * * TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $4 PER DAY. THESE REGULATIONS SHALL BE UNIFORM FOR ALL OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. SUBSISTENCE FOR PILOTS SHALL BE PAID IN ACCORDANCE WITH EXISTING REGULATIONS, AND RATIONS FOR ENLISTED MEN MAY BE COMMUTED AS NOW AUTHORIZED BY LAW.

UPON THE PASSAGE OF THAT BILL, APPROPRIATE STEPS WERE TAKEN BY THE NAVY DEPARTMENT TO HAVE THE PENDING APPROPRIATION BILL UNDER "PROVISIONS, NAVY," BROADENED TO BE AVAILABLE FOR "QUARTERS AND SUBSISTENCE FOR ENLISTED MEN ON DETACHED DUTY.' THERE IS NO AUTHORITY IN THE NAVY DEPARTMENT NOR IN THE APPROPRIATION UNDER "PROVISIONS, NAVY," TO "CONTRACT" FOR SUBSISTENCE OF ENLISTED MEN. THE APPROPRIATION "PROVISIONS, NAVY," IN ITS PRINCIPAL FEATURES HAS BEEN IN ITS PRESENT FORM FOR MANY YEARS. IT WAS NEVER CONTENDED PRIOR TO THE ACT OF 1885, THAT UNDER THE AUTHORITY OF THE APPROPRIATION FOR "PROVISIONS, NAVY," AND SECTION 1579, REVISED STATUTES, THERE WAS AUTHORITY TO CONTRACT FOR LODGING AND SUBSISTENCE FOR ENLISTED MEN NOT DOING DUTY ON THE VESSEL; SUCH AUTHORITY WAS NOT GIVEN BY THE ACT OF 1885; UNDER THE 1892 MODIFICATION OF THE APPROPRIATION ,PROVISIONS, NAVY," PROVIDING FOR SUBSISTENCE OF MEN UNAVOIDABLY DETAINED OR ABSENT FROM THE VESSEL TO WHICH ATTACHED UNDER ORDERS, IT APPEARS THE PRACTICE AT FIRST WAS TO REIMBURSE MEN WITHIN THE LIMITS FIXED BY REGULATION THE AMOUNTS THEY HAD EXPENDED. BUT BY 1915 THE PRACTICE HAD DEVELOPED OF PAYING A MONEY ALLOWANCE IN SUCH CIRCUMSTANCES, FIXED BY REGULATION, OR BY SPECIAL ORDER WITHIN MAXIMUM LIMITS ESTABLISHED BY REGULATIONS OR ORDERS OF THE SECRETARY OF THE NAVY, AND THAT PRACTICE HAD THE APPROVAL OF THE ACCOUNTING OFFICERS, PAYMENT BEING AUTHORIZED WITHOUT EVIDENCE THAT THE AMOUNT PAID THE MAN HAD BEEN ACTUALLY EXPENDED BY HIM FOR SUBSISTENCE. UNDER THE PROVISION IN THE 1918 APPROPRIATION ACT, THE DEPARTMENT IMMEDIATELY AND WITH THE APPROVAL OF THE COMPTROLLER OF THE TREASURY FIXED A MONEY ALLOWANCE TO BE PAID TO MEN ON DETACHED DUTY. WITH THE PASSAGE OF THE ACT OF JUNE 10, 1922, AND FURTHER MODIFICATION OF THE APPROPRIATION ,PROVISIONS, NAVY," IN THE APPROPRIATION ACT EFFECTIVE JULY 1, 1922, TO PROVIDE FOR PAYMENT FOR QUARTERS AND SUBSISTENCE TO MEN ON DETACHED DUTY, THE AMOUNTS PRESCRIBED BY THE EXECUTIVE ORDER ISSUED UNDER AUTHORITY OF SECTION 11 OF THE PAY ACT OF 1922 HAVE BEEN PAID.

THE STATUTES BY THEIR TERMS AND IN ACCORD WITH THE LONG AND UNBROKEN CONSTRUCTION AND PRACTICE AUTHORIZE (1) THE FURNISHING OF RATIONS IN KIND PURSUANT TO THE CONDITIONS AND LIMITATIONS FIXED IN SECTIONS 1581, 1582, AND 1583, REVISED STATUTES, FIXING THE PROVISIONS TO BE INCLUDED IN THE NAVY RATION, THE PERMITTED SUBSTITUTES THEREFOR, AND MAKING PROVISION FOR PAYMENT WHEN THOSE ALLOWANCES ARE DIMINISHED; (2) THE PAYMENT OF COMMUTATION OF RATIONS AT THE AUTHORIZED RATE; (3) THE PAYMENT OF AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE PURSUANT TO THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, AND PRESIDENTIAL ORDERS ISSUED THEREUNDER. THERE ARE NO STATUTES AFFIRMATIVELY GIVING BROADER AUTHORITY TO THE NAVY DEPARTMENT; AND THE STATUTES AFTER THE LONG AND UNIFORM CONSTRUCTION OTHERWISE, MAY NOT NOW BE CONSTRUED AS IMPLIEDLY AUTHORIZING WHAT WAS CLEARLY NOT AUTHORIZED UNDER THE IDENTICAL STATUTES FOR MANY YEARS.

IT IS TO BE OBSERVED IN THIS CONNECTION THAT IT IS ONLY WHEN THE LIMITS FIXED BY THE ACT OF JUNE 10, 1922, AND THE PRESIDENT'S ORDER THEREUNDER ARE DESIRED TO BE EXCEEDED THAT IT IS ATTEMPTED TO SECURE SUCH A RESULT BY THE EXPEDIENT OF "CONTRACTING" FOR WHAT THE MAN SHOULD OBTAIN HIMSELF WITH THE PAYMENT TO HIM OF THE ALLOWANCES AUTHORIZED BY LAW AND REGULATION. THIS CASE IS AN EXAMPLE OF SUCH AN ATTEMPT. A MORE OUTSTANDING ABUSE WAS THE CASE OF GUNNERY SERGT. CHARLES B. HUGHES, UNITED STATES MARINE CORPS, WHO, WHILE STATIONED AT YEMASSEE, S.C., WAS ENTITLED UNDER THE LAW AND REGULATIONS TO THE PAYMENT FOR SUBSISTENCE AT THE RATE OF $1.20 PER DAY AND THE OFFICER IN CHARGE ATTEMPTED TO INCREASE HIS ALLOWANCE THROUGH THE EXPEDIENT OF CONTRACTING WITH THE WIFE OF HUGHES TO FEED HIM FOR $1.35 PER DAY. SEE A-16604, FEBRUARY 17, 1927, ADDRESSED TO THE QUARTERMASTER, UNITED STATES MARINE CORPS, IN CONNECTION WITH DISALLOWANCE IN THE ACCOUNTS OF LEONARD E. REA, ACTING QUARTERMASTER, UNITED STATES MARINE CORPS, MARINE BARRACKS, PARRIS ISLAND, S.C., CERTIFICATE M-22115-N, DATED OCTOBER 2, 1926. AS WAS STATED IN 5 COMP. GEN. 518, 520:

* * * IT IS NOT APPARENT WHY, IF THE CONGRESS HAS PROVIDED $4 AS A MAXIMUM, AND THE PRESIDENT HAS FIXED A LESS AMOUNT, WHERE THE MAN ARRANGES FOR HIS OWN SUBSISTENCE AND LODGING, IT SHOULD BE NECESSARY WHEN AN OFFICER ARRANGES FOR THE SUBSISTENCE AND LODGING OF THE ENLISTED MAN, THE EXPENDITURE THEREFOR SHOULD EXCEED THE LIMIT FIXED BY CONGRESS BY 25 PERCENT AND THE RATES ESTABLISHED BY THE PRESIDENT IN A STILL GREATER PROPORTION.

THE LIMITS FIXED BY LAW AND THE PRESIDENT'S REGULATIONS CAN NOT BE MODIFIED BY THE EXPEDIENT OF HAVING AN OFFICER "CONTRACT" FOR THAT WHICH THE ALLOWANCE WAS ESTABLISHED TO ENABLE THE ENLISTED MAN TO SECURE FOR HIMSELF. WHILE THE ALLOWANCES, IN THE NATURE OF COMMUTATION OF RATIONS, INCLUDING LODGING AND SUBSISTENCE, NOW PROVIDED FOR ENLISTED MEN OF THE ARMY AND NAVY ARE GREATLY IN EXCESS OF THE RATES EVER BEFORE AUTHORIZED IN THE HISTORY OF THE ARMY AND THE NAVY, IF THOSE PRESENT RATES ARE DEEMED NOT SUFFICIENT TO ADEQUATELY PROVIDE FOR THE ENLISTED MEN, THE PROPER, THE LEGAL METHOD, IS TO SUGGEST TO THE PRESIDENT A MODIFICATION OF THE REGULATIONS, OR TO THE CONGRESS AN INCREASE IN THE MAXIMUM AUTHORIZED PAYMENT.

I HAVE THUS ANSWERED THE SECOND OF YOUR SUGGESTIONS FIRST. THE FURTHER QUESTION IS PRESENTED WHETHER PURSUANT TO THE PROVISIONS OF SECTION 285, REVISED STATUTES, LIEUTENANT VAUGHN SHOULD BE CREDITED WITH THE AMOUNT DISALLOWED AND A CHARGE RAISED AGAINST THE COMMANDING OFFICER WHO ISSUED THE ORDER. WHILE LIEUTENANT VAUGHN FOLLOWED THE REQUIREMENTS OF THE STATUTE IN PROTESTING AGAINST THE PAYMENT TO LIEUT. COMMANDER M. B. MCCOMB, UNITED STATES NAVY, THE COMMANDING OFFICER WHO ORDERED THE PAYMENT, AND THAT OFFICER REITERATED HIS ORDER, THE STATUTE IS ADDRESSED TO CASES WHERE THERE IS A BONA FIDE REFUSAL AND A BONA FIDE REITERATED ORDER TO PAY AFTER REASONS FOR NONPAYMENT ARE STATED. IT HAS NO PROPER APPLICATION TO A SITUATION WHERE A DISBURSING OFFICER ACTING IN CONJUNCTION WITH THE COMMANDING OFFICER PRESENTS A MERE PAPER RECORD OF A PROTEST AND AN ORDER WITH A VIEW TO CHALLENGING THE VALIDITY AND LEGAL SOUNDNESS OF A DECISION OF THE ACCOUNTING OFFICERS TO ENABLE THE DISBURSING OFFICER TO ESCAPE LIABILITY FOR REFUND OF THE PAYMENT, EITHER DIRECTLY TO THE TREASURY, OR TO HIS BONDSMEN AFTER RECOVERY BY THE UNITED STATES. THE RECORD APPEARS TO DISCLOSE THAT LIEUTENANT VAUGHN PARTICIPATED AS A PRINCIPAL IN THE PREPARATION AND SUBMISSION OF A VOUCHER WITH SUPPORTING PAPERS NOT REFLECTING THE TRUE SITUATION; THAT HE ANTEDATED THE PROPOSAL WHICH WAS IN FACT NOT SUBMITTED TO THE HOTEL UNTIL AFTER THE SERVICES WERE RENDERED; AND THAT HE CERTIFIED THE VOUCHER WAS IN PAYMENT FOR SERVICES RENDERED UNDER AN AGREEMENT BASED ON SUCH PROPOSAL, THAT IS, UNDER A WRITTEN PROPOSAL AND ACCEPTANCE. IN REQUESTING RELIEF UNDER SECTION 285, REVISED STATUTES, OF RESPONSIBILITY HE DEMANDS THAT A DECISION BE RENDERED AS TO THE AUTHORITY OF THE COMMANDING OFFICER TO SUBSIST A "BODY OF TROOPS.' A DISBURSING OFFICER WHO MISLEADS OR AIDS OR ABETS A COMMANDING OFFICER INTO ORDERING A PAYMENT CONTRARY TO DECISIONS BINDING ON HIM, EVEN THOUGH BELIEVED BY THE DISBURSING OFFICER TO BE UNSOUND IN LAW, WITH A VIEW TO SECURING CONSIDERATION OF THE PAYMENT ON A BASIS HE CONSIDERS PROPER, IS NOT ENTITLED TO RELIEF UNDER SECTION 285, REVISED STATUTES.

THE DISALLOWANCE IN THE ACCOUNTS OF LIEUTENANT VAUGHN IS SUSTAINED AND WILL BE CONTINUED AS A CHARGE AGAINST HIM.