A-22784, JULY 18, 1928, 8 COMP. GEN. 21

A-22784: Jul 18, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RENTAL ALLOWANCE - FIELD DUTY - MARINE CORPS OFFICERS ON DUTY WITH NATIONAL GUARD OF NICARAGUA OFFICERS OF THE MARINE CORPS ACCEPTING OFFICES IN THE NATIONAL GUARD OF A FOREIGN GOVERNMENT WHICH WITH THE UNITED STATES IS OPERATING AGAINST A COMMON ENEMY ARE IN THE SAME STATUS AS THE OFFICERS ASSIGNED DIRECTLY TO DUTY IN THE OPERATIONS BY THE GOVERNMENT OF THE UNITED STATES AND ARE NOT ENTITLED TO RENTAL ALLOWANCE. IN SUBSTANCE WHETHER OFFICERS OF THE MARINE CORPS DETAILED TO ASSIST THE GOVERNMENT OF NICARAGUA IN MILITARY MATTERS ARE ENTITLED TO RENTAL ALLOWANCE. THE OFFICERS ARE UNDERSTOOD TO HAVE ACCEPTED OFFICES IN THE NATIONAL GUARD OF NICARAGUA UNDER THE AUTHORITY OF THE ACT OF MAY 19. HEREBY IS.

A-22784, JULY 18, 1928, 8 COMP. GEN. 21

RENTAL ALLOWANCE - FIELD DUTY - MARINE CORPS OFFICERS ON DUTY WITH NATIONAL GUARD OF NICARAGUA OFFICERS OF THE MARINE CORPS ACCEPTING OFFICES IN THE NATIONAL GUARD OF A FOREIGN GOVERNMENT WHICH WITH THE UNITED STATES IS OPERATING AGAINST A COMMON ENEMY ARE IN THE SAME STATUS AS THE OFFICERS ASSIGNED DIRECTLY TO DUTY IN THE OPERATIONS BY THE GOVERNMENT OF THE UNITED STATES AND ARE NOT ENTITLED TO RENTAL ALLOWANCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 18, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 30, 1928, REQUESTING DECISION OF MATTERS PRESENTED BY CAPT. L. L. DYE, UNITED STATES MARINE CORPS, PAYMASTER, NICARAGUA NATIONAL GUARD DETACHMENT, IN SUBSTANCE WHETHER OFFICERS OF THE MARINE CORPS DETAILED TO ASSIST THE GOVERNMENT OF NICARAGUA IN MILITARY MATTERS ARE ENTITLED TO RENTAL ALLOWANCE. THE OFFICERS ARE UNDERSTOOD TO HAVE ACCEPTED OFFICES IN THE NATIONAL GUARD OF NICARAGUA UNDER THE AUTHORITY OF THE ACT OF MAY 19, 1926, 44 STAT. 565, WHICH PROVIDES:

THAT THE PRESIDENT OF THE UNITED STATES BE, AND HEREBY IS, AUTHORIZED, UPON APPLICATION FROM THE FOREIGN GOVERNMENTS CONCERNED, AND WHENEVER IN HIS DISCRETION THE PUBLIC INTERESTS RENDER SUCH A COURSE ADVISABLE, TO DETAIL OFFICERS AND ENLISTED MEN OF THE UNITED STATES ARMY, NAVY, AND MARINE CORPS TO ASSIST THE GOVERNMENTS OF THE REPUBLICS OF NORTH AMERICA, CENTRAL AMERICA, AND SOUTH AMERICA AND OF THE REPUBLICS OF CUBA, HAITI, AND SANTO DOMINGO, IN MILITARY AND NAVAL MATTERS: PROVIDED, THAT THE OFFICERS AND ENLISTED MEN SO DETAILED BE, AND THEY ARE HEREBY, AUTHORIZED TO ACCEPT FROM THE GOVERNMENT TO WHICH DETAILED OFFICES AND SUCH COMPENSATION AND EMOLUMENTS THEREUNTO APPERTAINING AS MAY BE FIRST APPROVED BY THE SECRETARY OF WAR OR BY THE SECRETARY OF THE NAVY, AS THE CASE MAY BE: PROVIDED, FURTHER, THAT WHILE SO DETAILED SUCH OFFICERS AND ENLISTED MEN SHALL RECEIVE, IN ADDITION TO THE COMPENSATION AND EMOLUMENTS ALLOWED THEM BY SUCH GOVERNMENTS, THE PAY AND ALLOWANCES WHERETO ENTITLED IN THE UNITED STATES ARMY, NAVY, AND MARINE CORPS AND SHALL BE ALLOWED THE SAME CREDIT FOR LONGEVITY, RETIREMENT, AND FOR ALL OTHER PURPOSES THAT THEY WOULD RECEIVE IF THEY WERE SERVING WITH THE FORCES OF THE UNITED STATES.

THERE HAVE HERETOFORE BEEN PRESENTED TO THIS OFFICE QUESTIONS OF THE STATUS OF OFFICERS OF THE MARINE CORPS WHO HAVE BEEN SENT TO NICARAGUA IN THE INTEREST OF ORDERLY GOVERNMENT AND THAT WITH RESPECT TO RENTAL ALLOWANCES THEY ARE IN THE STATUS OF ON FIELD DUTY "OPERATING AGAINST AN ENEMY" AND ARE NOT ENTITLED TO RENTAL ALLOWANCES. DECISION OF OCTOBER 17, 1927, AND FEBRUARY 14, 1928, A-18654. THE OFFICERS CONCERNING WHOM THE PRESENT QUESTIONS ARE SUBMITTED ARE SUBSTANTIALLY IN THE SAME STATUS AS THE OFFICERS OF THE MARINE CORPS, BUT THE QUESTION WHICH ARISES IS WHETHER THE PROVISIONS OF THE ACT OF MAY 19, 1926, CITED, DISTINGUISH THEM FROM OFFICERS ON SUCH ACTIVE FIELD DUTY AT NICARAGUA THAT THE OFFICERS CONNECTED WITH THE GOVERNMENT OF NICARAGUA ARE ENTITLED TO RENTAL ALLOWANCES ALTHOUGH IN OTHER RESPECTS PRACTICALLY PERFORMING THE SAME SERVICES AS THE OFFICERS WHO ARE WITH THE MARINE CORPS OF THE UNITED STATES. THE DISTINCT AUTHORITY OF THE ACT OF MAY 19, 1926, CITED, IS THAT OFFICERS AND ENLISTED MEN MAY BE DETAILED TO ASSIST THE OTHER GOVERNMENTS "IN MILITARY AND NAVAL MATTERS.' IT IS NOT CLEAR WHETHER THIS IS LIMITED TO ASSISTANCE IN THE SENSE OF INSTRUCTION OR OBSERVATION UNDER PEACE CONDITIONS, OR WHETHER IT CONTEMPLATES ASSISTANCE IN THE SENSE OF ACTIVE PARTICIPATION IN HOSTILITY OPERATIONS OF SUCH GOVERNMENT. IT WOULD SEEM AN EXTRAORDINARY SITUATION THAT IF OFFICERS OF THIS GOVERNMENT PRACTICALLY IN THE SAME STATUS IN THE PERFORMANCE OF DUTY THERE MAY BE AUTHORIZED ALLOWANCES FOR THE ONE AND NOT FOR THE OTHER ALTHOUGH OTHERWISE ON THE SAME FOOTING--- THE ONE HAVING BEEN GIVEN AN ASSIGNMENT TO DIRECT DUTY UNDER THE FOREIGN GOVERNMENT WHILE THE OTHER IS UNDER AN ASSIGNMENT TO DUTY DIRECTLY WITH OUR OWN GOVERNMENT. I CAN REACH NO OTHER CONCLUSION THAN THAT THE RULE IN SUCH CASES MUST BE THAT THE STATUTE CITED DOES NOT PROVIDE FOR SUCH CONTINGENCY. IF UNITED STATES TROOPS ARE OPERATING AT THE SAME TIME THAT A FOREIGN GOVERNMENT IS OPERATING, THOSE OFFICERS WHO BY AUTHORITY OF LAW MAY BE DETAILED TO THE FOREIGN GOVERNMENT MUST BE CONSIDERED AS IN THE SAME STATUS WITH RESPECT TO RENTAL ALLOWANCES AS THE OFFICERS WITH THE TROOPS OF THE UNITED STATES SO OPERATING. IT WOULD APPEAR TO BE IMMATERIAL WHETHER THE OFFICERS ARE WITH THE UNITED STATES FORCES OR ARE PERMITTED TO TAKE SERVICE WITH THE FOREIGN FORCES. WITH RESPECT TO PAYMENT OF RENTAL ALLOWANCES BY THE UNITED STATES TO EITHER CLASS OF OFFICERS, THEY ARE TOBE CONSIDERED IN THE SAME STATUS AS TO ALLOWANCES AS BEING ON FIELD DUTY "OPERATING AGAINST AN ENEMY" AND THE PAYMENT OF RENTAL ALLOWANCES IS NOT AUTHORIZED.