A-28056, SEPTEMBER 16, 1929, 9 COMP. GEN. 122

A-28056: Sep 16, 1929

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IS APPLICABLE TO ENLISTED MEN OF THE NAVY AND MARINE CORPS. THE AGREEMENT OF AN ENLISTED MAN OF THE NAVY IN HIS CONTRACT OF ENLISTMENT TO SURRENDER HIS OUTER CLOTHING IN EXCHANGE FOR CIVILIAN CLOTHING OUTFIT IF DISCHARGED BY SENTENCE OF COURT-MARTIAL IS INCONSISTENT WITH THE LAW REQUIRING THAT UPON DISCHARGE OTHERWISE THAN HONORABLY. ANY REGULATION BASED ON SUCH AN AGREEMENT IS ILLEGAL. IN SO FAR AS THEY INVOLVE DISBURSEMENTS ARE IN CONFORMITY WITH LAW. THE PROPOSED CHANGES ARE AS FOLLOWS: UNDER PARAGRAPH 71 INSERT A NEW SUBPARAGRAPH (A) TO READ AS FOLLOWS: "THOSE PRISONERS WHO. IN ANY CASE WHERE A UNIFORM OVERCOAT IS NOT RETAINED BY THE GOVERNMENT THE PRISONER CONCERNED WILL ONLY BE FURNISHED AN OVERCOAT UNDER THE CONDITIONS SET FORTH BELOW WITH RESPECT TO OTHER PRISONERS.'.

A-28056, SEPTEMBER 16, 1929, 9 COMP. GEN. 122

CLOTHING - DISCHARGED NAVAL PRISONERS SECTION 125 OF THE NATIONAL DEFENSE ACT RELATIVE TO "PROTECTION OF THE UNIFORM," 39 STAT. 166, 216, AS AMENDED BY THE ACT OF JULY 9, 1918, 40 STAT. 891, AND THE ACT OF JUNE 4, 1920, 41 STAT. 836, IS APPLICABLE TO ENLISTED MEN OF THE NAVY AND MARINE CORPS, AND UNDER ITS PROVISIONS ALL UNIFORM OUTER CLOTHING IN THE POSSESSION OF SUCH ENLISTED MEN WHEN DISCHARGED OTHERWISE THAN HONORABLY, MUST BE RETAINED FOR MILITARY USE; UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, A SUIT OF CITIZEN'S OUTER CLOTHING TO COST NOT TO EXCEED $15 MAY BE ISSUED TO SUCH DISCHARGED MAN, IRRESPECTIVE OF WHETHER HE WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING, OR WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS. THE AGREEMENT OF AN ENLISTED MAN OF THE NAVY IN HIS CONTRACT OF ENLISTMENT TO SURRENDER HIS OUTER CLOTHING IN EXCHANGE FOR CIVILIAN CLOTHING OUTFIT IF DISCHARGED BY SENTENCE OF COURT-MARTIAL IS INCONSISTENT WITH THE LAW REQUIRING THAT UPON DISCHARGE OTHERWISE THAN HONORABLY, THE UNIFORM OUTER CLOTHING OF ENLISTED MEN SHALL BE RETAINED FOR MILITARY USE IRRESPECTIVE OF ANY AGREEMENT ON THE PART OF THE MAN, AND ANY REGULATION BASED ON SUCH AN AGREEMENT IS ILLEGAL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 16, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 19, 1929, REQUESTING MY VIEWS AS TO WHETHER CERTAIN PROPOSED CHANGES IN CHAPTER VI OF THE MANUAL FOR THE GOVERNMENT OF THE UNITED STATES NAVAL PRISONS, TRANSMITTED THEREWITH, IN SO FAR AS THEY INVOLVE DISBURSEMENTS ARE IN CONFORMITY WITH LAW.

THE PROPOSED CHANGES ARE AS FOLLOWS:

UNDER PARAGRAPH 71 INSERT A NEW SUBPARAGRAPH (A) TO READ AS FOLLOWS:

"THOSE PRISONERS WHO, UNDER THE TERMS OF THEIR CONTRACT OF ENLISTMENT IN THE UNITED STATES NAVY, AGREE TO SURRENDER THEIR OUTER UNIFORM CLOTHING IN EXCHANGE FOR A CIVILIAN CLOTHING OUTFIT IF DISCHARGED BY SENTENCE OF COURT -MARTIAL, AND FROM WHOSE PAY THERE HAS NOT BEEN EXEMPTED FROM FORFEITURE UNDER THE TERMS OF THE SENTENCE THE PURCHASE PRICE OF THE CIVILIAN CLOTHING OUTFIT FURNISHED UPON DISCHARGE, SHALL, WHEN SO DISCHARGED, BE FURNISHED WITH A SUIT OF CIVILIAN CLOTHING, NOT TO EXCEED IN VALUE THE SUM OF $15 AND TO COMPRISE THE ARTICLES, OR SUCH ITEMS THEREOF MENTIONED IN PARAGRAPH 71 (B), AS THEY MAY NOT ALREADY POSSESS, THE COST THEREOF TO BE CHARGED AGAINST THE APPROPRIATION "PAY, MISCELLANEOUS--- SUBHEAD 5.' CIVILIAN OVERCOAT NOT TO EXCEED $10 IN VALUE MAY BE INCLUDED IN THE CIVILIAN OUTFIT THUS FURNISHED PROVIDED ONLY THAT A UNIFORM OVERCOAT BELONGING TO ANY SUCH PRISONER HAS BEEN RETAINED BY THE GOVERNMENT; IN ANY CASE WHERE A UNIFORM OVERCOAT IS NOT RETAINED BY THE GOVERNMENT THE PRISONER CONCERNED WILL ONLY BE FURNISHED AN OVERCOAT UNDER THE CONDITIONS SET FORTH BELOW WITH RESPECT TO OTHER PRISONERS.'

CHANGE PRESENT SUBPARAGRAPH "/A)" TO "/B)," STRIKE OUT THE WORDS "UPON DISCHARGE PRISONERS" APPEARING IN THE FIRST LINE OF THIS SUBPARAGRAPH AND INSERT IN LIEU THEREOF THE FOLLOWING:

"IN ALL OTHER CASES NOT COVERED BY PARAGRAPH 71 (A), PRISONERS, UPON DISCHARGE,"--- SO THAT THIS SUBPARAGRAPH WILL READ:

"IN ALL OTHER CASES NOT COVERED BY PARAGRAPH 71 (A), PRISONERS, UPON DISCHARGE, SHALL BE FURNISHED A SUIT OF CIVILIAN CLOTHING," ETC.

RELETTER REMAINING SUBPARAGRAPHS "/B)," "/C)," AND "/D)," TO READ "/C)," "/D)," AND "/E)," RESPECTIVELY.

UNDER PARAGRAPH 73 (2C), LINE 9, CHANGE THE PERIOD TO A COMMA AND ADD: "* * * PROVIDED THE BALANCE DUE AT DATE OF APPROVAL OF SENTENCE IS INSUFFICIENT TO SO PROVIDE; OR, IF THE BALANCE DUE AT DATE OF CONVICTION IS LESS THAN $25, SUCH AMOUNT WHICH WILL, WHEN ADDED TO THE BALANCE DUE AT DATE OF CONVICTION, EQUAL $25; "--- SO THAT THIS SUBPARAGRAPH WILL READ:

"GRATUITY OF $25 PAYABLE UPON DISCHARGE, PROVIDED THE BALANCE DUE AT DATE OF APPROVAL OF THE SENTENCE IS INSUFFICIENT TO SO PROVIDE; OR, IF THE BALANCE DUE AT DATE OF CONVICTION IS LESS THAN $25, SUCH AMOUNT WHICH WILL, WHEN ADDED TO THE BALANCE DUE AT DATE OF CONVICTION, EQUAL $25.'

IN PARAGRAPH 75 (3), LINE 1, INSERT AT THE BEGINNING OF THE LINE THE WORDS:

"EXCEPT IN THE CASES OF THOSE PRISONERS DESCRIBED IN PARAGRAPH 71 (2),"-- - SO THAT THIS SUBPARAGRAPH WILL READ:

"EXCEPT IN THE CASES OF THOSE PRISONERS DESCRIBED IN PARAGRAPH 71 (A), THE CIVILIAN CLOTHING OUTFIT FURNISHED UPON DISCHARGE WILL THEN BE CHECKED," ETC.

YOU STATE THAT IN THE ENLISTMENT CONTRACT IN THE NAVY THERE IS A PROVISION READING AS FOLLOWS:

IF DISCHARGED BY SENTENCE OF COURT-MARTIAL OR BY REASON OF BAD CONDUCT, UNDESIRABILITY, OR INAPTITUDE, I AGREE TO SURRENDER UNIFORM IN EXCHANGE FOR CIVILIAN CLOTHING.

THIS PROVISION IT IS UNDERSTOOD HAS BEEN INCLUDED IN THE ENLISTMENT CONTRACT FOR SOME YEARS, BUT WHETHER FIRST INCLUDED BEFORE OR SUBSEQUENT TO THE ACTS OF FEBRUARY 16 AND MARCH 3, 1909, 35 STAT. 622 AND 756, HAS NOT BEEN ASCERTAINED. THOSE STATUTES CLEARLY CONTEMPLATED THE DEPRIVATION OF THE UNIFORM OUTER CLOTHING IN THE CASE OF NAVAL PRISONERS.

THE MANUAL NOW PROVIDES (SECTIONS 71 (D), 73 (2C), AND 75 (3) ( THAT COST OF CIVILIAN OUTFITS SHALL BE CHARGED IN THE PAY ACCOUNTS OF THE PRISONER AGAINST ANY SUM REMAINING DUE HIM IF, DURING THE PERIOD OF HIS CONFINEMENT, THE PAY EXEMPTED FROM FORFEITURE AS PROVIDED IN SECTION 883, NAVAL COURTS AND BOARDS, IS INSUFFICIENT TO MEET SUCH COST, AND IS IN COMPLIANCE WITH THE LAST-CITED STATUTES. THE PROPOSED CHANGES WOULD MODIFY THAT PROVISION IN ANY CASE WHERE THE PRISONER POSSESSED OUTER UNIFORM CLOTHING TO EXCHANGE FOR A CIVILIAN CLOTHING OUTFIT. IN SUCH INSTANCE THE COST OF THE CIVILIAN CLOTHING, WITHIN THE LIMIT PRESCRIBED, WOULD BE BORNE BY THE GOVERNMENT AND CHARGED AGAINST THE APPROPRIATION "PAY, MISCELLANEOUS--- SUBHEAD 5.'

INSTRUCTIONS IN THE PRISON MANUAL PRIOR TO SEPTEMBER 16, 1925, CONTAINED A PROVISION AUTHORIZING EXCHANGE OF OUTER UNIFORM FOR CIVILIAN CLOTHING. THAT PROVISION WAS OMITTED IN THE REVISED MANUAL. IN DECISION A-18243, JUNE 6, 1927, IT WAS STATED:

IN VIEW OF THE FACT THAT THE INSTRUCTIONS, APPROVED BY THE SECRETARY OF THE NAVY ON SEPTEMBER 16, 1925, SUPERSEDED CHAPTER VI OF THE "MANUAL FOR THE GOVERNMENT OF THE UNITED STATES NAVAL PRISONS" IT SHOULD BE OBSERVED THAT THE RIGHT OF A DISCHARGED NAVAL PRISONER TO A CIVILIAN CLOTHING OUTFIT IN EXCHANGE FOR AN OUTER NAVY OR MARING CORPS UNIFORM NO LONGER EXISTS; AND SUCH SEEMS NECESSARILY TO RESULT FROM THE PROVISION OF SECTION 125 OF THE ACT OF JUNE 3, 1916, 39 STAT. 217, AND AMENDED BY THE ACTS OF JULY 9, 1918, 40 STAT. 891, AND JUNE 4, 1920, 41 STAT. 836, PROVIDING:

"THAT WHEN AN ENLISTED MAN IS DISCHARGED OTHERWISE THAN HONORABLY, ALL UNIFORM OUTER CLOTHING IN HIS POSSESSION SHALL BE RETAINED FOR MILITARY USE, AND WHEN AUTHORIZED BY REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, OR THE SECRETARY OF THE NAVY, A SUIT OF CITIZENS' OUTER CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO SUCH ENLISTED MAN. * * *"

YOU NOW REFER TO THAT DECISION AND SUGGEST THE CLOTHING ISSUED TO ENLISTED MEN OF THE NAVY, AS AUTHORIZED IN ACCORDANCE WITH LAW, AS A BOUNTY ON FIRST ENLISTMENT BECOMES THEIR PRIVATE PROPERTY, CITING 25 OP.ATTY.GEN. 270, AND STATE THAT NO OTHER CLOTHING IS ISSUED TO ENLISTED MEN OF THE NAVY, SUCH ADDITIONAL CLOTHING AS THEY MAY REQUIRE DURING THEIR FIRST AND SUBSEQUENT ENLISTMENTS BEING BOUGHT AND PAID FOR BY THE ENLISTED MEN OUT OF THEIR PRIVATE FUNDS AND BECOMES THEIR PRIVATE PROPERTY. YOU SUGGEST THAT THE SITUATION WITH RESPECT TO THE FURNISHING OF UNIFORM CLOTHING TO ENLISTED MEN OF THE ARMY AND MARINE CORPS IS DIFFERENT IN THAT THEY ARE SUPPLIED WITH CLOTHING, THE TITLE TO WHICH IS RETAINED BY THE UNITED STATES, AND ADD:

* * * UNDER YOUR DECISION OF JUNE 6, 1927, THIS CLAUSE IN THE ENLISTMENT CONTRACT BECOMES A NULLITY AND THEREBY OPERATES TO DEPRIVE ENLISTED MEN IN THE NAVY OF THEIR PRIVATE PROPERTY WITHOUT COMPENSATION THEREFOR IN THE EVENT THEY ARE ULTIMATELY DISCHARGED FROM THE NAVY PURSUANT TO SENTENCE OF COURT-MARTIAL.

THE AMENDMENT OF JUNE 9, 1918, OF SECTION 125 OF THE NATIONAL DEFENSE ACT, CITED ABOVE, ADDED FOUR PROVISOS TO SAID SECTION, THE FIRST OF SAID PROVISOS REQUIRING THAT ALL UNIFORM OUTER CLOTHING IN THE POSSESSION OF AN ENLISTED MAN WHEN DISCHARGED OR FURLOUGHED TO THE RESERVE BE RETAINED FOR MILITARY USE WITH THE EXCEPTION OF SUCH ARTICLES AS HE MIGHT LAWFULLY BE PERMITTED TO WEAR TO HIS HOME. THIS PROVISO WAS REENACTED IN PART BY THE ACT OF/JULY 3, 1926 (44 STAT. 891). THE THIRD OF SAID PROVISOS, WHICH IS THE ONE CITED IN YOUR DECISION OF JUNE 6, 1927, REQUIRED THAT WHEN AN ENLISTED MAN IS DISCHARGED OTHERWISE THAN HONORABLY ALL UNIFORM OUTER CLOTHING IN HIS POSSESSION SHALL BE RETAINED FOR MILITARY USE AND WHEN AUTHORIZED BY REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR A SUIT OF CITIZEN'S OUTER CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO SUCH ENLISTED MAN. ALL FOUR OF THESE PROVISOS RELATED SOLELY TO THE ARMY. THE AMENDMENT OF JUNE 4, 1920, CITED IN YOUR DECISION, PROVIDED THAT THE WORDS "OR THE SECRETARY OF THE NAVY" SHALL BE INSERTED IMMEDIATELY AFTER THE WORDS "SECRETARY OF WAR" WHEREVER THOSE WORDS APPEAR IN SECTION 125 OF THE NATIONAL DEFENSE ACT. IN SO FAR AS CONCERNS THE PRESENT MATTER, IT WOULD APPEAR THAT THE ONLY EFFECT OF THIS AMENDMENT WAS TO AUTHORIZE REGULATIONS BY THE SECRETARY OF THE NAVY UNDER WHICH SUIT OF CITIZEN'S OUTER CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO ENLISTED MEN WHEN DISCHARGED OTHERWISE THAN HONORABLY.

IT THEREFORE SEEMS CLEAR TO THE NAVY DEPARTMENT THAT THE AMENDMENT APPROVED JUNE 4, 1920, OF SECTION 125 OF THE NATIONAL DEFENSE ACT DID NOT MAKE APPLICABLE TO ENLISTED MEN OF THE NAVY THE PROVISO UNDER WHICH THE UNIFORMS OF ENLISTED MEN OF THE ARMY WERE TO BE RETAINED WHEN DISCHARGED, HONORABLY OR OTHERWISE. FURTHERMORE, EVEN HAD THIS BEEN THE INTENTION OF THE ENACTMENT, IT WOULD HAVE BEEN INEFFECTIVE IN SO FAR AS CONCERNED ENLISTED MEN OF THE NAVY WHOSE UNIFORMS ARE THEIR PRIVATE PROPERTY AND CAN NOT LAWFULLY BE TAKEN FROM THEM WITHOUT COMPENSATION EVEN BY AUTHORITY OF CONGRESS.

SECTION 125 OF THE NATIONAL DEFENSE ACT WAS INCLUDED IN THE ORIGINAL ACT OF JUNE 3, 1916, 39 STAT. 166, 216, AND, OMITTING THE EXCEPTIONS AND THE PENALTY, PROVIDED:

SEC. 125. PROTECTION OF THE UNIFORM.--- IT SHALL BE UNLAWFUL FOR ANY PERSON NOT AN OFFICER OR ENLISTED MAN OF THE UNITED STATES ARMY, NAVY, OR MARINE CORPS, TO WEAR THE DULY PRESCRIBED UNIFORM OF THE UNITED STATES ARMY, NAVY, OR MARINE CORPS, OR ANY DISTINCTIVE PART OF SUCH UNIFORM, OR A UNIFORM ANY PART OF WHICH IS SIMILAR TO A DISTINCTIVE PART OF THE DULY PRESCRIBED UNIFORM OF THE UNITED STATES ARMY, NAVY, OR MARINE CORPS. * *

BY SECTION 10 OF CHAPTER XVII OF THE ACT OF JULY 9, 1918, THE ARMY APPROPRIATION ACT FOR THE FISCAL YEAR 1919, 40 STAT. 891, FOUR PROVISOS WERE ADDED TO SECTION 125, THE FIRST AND THIRD OF WHICH PROVIDED:

* * * THAT HEREAFTER, UPON THE DISCHARGE OR FURLOUGH TO THE RESERVE OF AN ENLISTED MAN, ALL UNIFORM OUTER CLOTHING THEN IN HIS POSSESSION, EXCEPT SUCH ARTICLES AS HE MAY BE PERMITTED TO WEAR FROM THE PLACE OF TERMINATION OF HIS ACTIVE SERVICE TO HIS HOME, AS AUTHORIZED BY THIS SECTION, WILL BE RETAINED FOR MILITARY USE; AND WITHIN FOUR MONTHS AFTER SUCH TERMINATION OF HIS ACTIVE SERVICE HE SHALL RETURN ALL UNIFORM CLOTHING, WHICH HE WAS PERMITTED TO RETAIN FOR WEAR TO HIS HOME, BY MAIL, UNDER A FRANKED LABEL WHICH SHALL BE FURNISHED/HIM FOR THE PURPOSE, AND IN CONFORMITY WITH THE INSTRUCTIONS GIVEN HIM AT THE TIME OF SUCH TERMINATION OF HIS ACTIVE SERVICE; AND IN CASE HE SHALL FAIL TO RETURN THE SAME WITHIN SUCH PERIOD, AND IN ACCORDANCE WITH SUCH INSTRUCTIONS, HE SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND, UPON CONVICTION, SUFFER THE PUNISHMENT PRESCRIBED BY THIS SECTION. * * *

THAT WHEN AN ENLISTED MAN IS DISCHARGED OTHERWISE THAN HONORABLY, ALL UNIFORM OUTER CLOTHING IN HIS POSSESSION SHALL BE RETAINED FOR MILITARY USE, AND, WHEN AUTHORIZED BY REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, A SUIT OF CITIZEN'S CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO SUCH ENLISTED MAN. * * *

IN VIEW OF THE SUBJECT MATTER OF THE SECTION, I AM NOT PREPARED TO SAY THAT THESE PROVISOS DID NOT APPLY TO ENLISTED MEN OF THE NAVY AND MARINE CORPS AND THIS SEEMS TO HAVE BEEN THE UNDERSTANDING OF THE CONGRESS, FOR, BY THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1202, IT WAS PROVIDED:

THAT ANY PERSON WHO SERVED IN THE UNITED STATES ARMY, NAVY, OR MARINE CORPS IN THE PRESENT WAR, MAY, UPON HONORABLE DISCHARGE AND RETURN TO CIVIL LIFE, PERMANENTLY RETAIN ONE COMPLETE SUIT OF OUTER UNIFORM CLOTHING, INCLUDING THE OVERCOAT, AND SUCH ARTICLES OF PERSONAL APPAREL AND EQUIPMENT AS MAY BE AUTHORIZED, RESPECTIVELY, BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AND MAY WEAR SUCH UNIFORM CLOTHING AFTER SUCH DISCHARGE: PROVIDED, THAT THE UNIFORM ABOVE REFERRED TO SHALL INCLUDE SOME DISTINCTIVE MARK OF INSIGNIA TO BE PRESCRIBED, RESPECTIVELY, BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, SUCH MARK OR INSIGNIA TO BE ISSUED, RESPECTIVELY, BY THE WAR DEPARTMENT OR NAVY DEPARTMENT TO ALL ENLISTED PERSONNEL SO DISCHARGED. THE WORD (NAVY) SHALL INCLUDE THE OFFICERS AND ENLISTED PERSONNEL OF THE COAST GUARD WHO HAVE SERVED WITH THE NAVY DURING THE PRESENT WAR.

IT IS TO BE NOTED HERE THAT IN ADDITION TO THE TWO PROVISOS QUOTED TWO OTHER PROVISOS WERE ADDED TO THE SECTION BY THE ACT OF JULY 9, 1918, ONE RELATING TO ENLISTED MEN OF THE NATIONAL GUARD RELEASED FROM FEDERAL SERVICE AND THE OTHER TO THE WEARING OF UNIFORMS IN THE NATIONAL HOMES FOR DISABLED VOLUNTEER SOLDIERS, AND THAT THE APPLICATION OF THE ACT OF FEBRUARY 28, 1919, WAS PRIMARILY LIMITED TO THE FIRST OF THE TWO PROVISOS QUOTED ABOVE. IF THAT PROVISO WAS LIMITED TO THE ARMY, AS SUGGESTED BY YOU, IT WOULD HAVE BEEN UNNECESSARY TO INCLUDE ENLISTED MEN OF THE NAVY AND MARINE CORPS AMONG THOSE AUTHORIZED TO RETAIN ONE COMPLETE SUIT OF OUTER UNIFORM CLOTHING.

SUBSEQUENTLY, BY SECTION 8 OF THE NAVAL APPROPRIATION ACT OF JUNE 4, 1920, FOR THE FISCAL YEAR 1921, 41 STAT. 836, IT WAS PROVIDED THAT SECTION 125 OF THE NATIONAL DEFENSE ACT AS ORIGINALLY ENACTED SHOULD THEREAFTER BE IN FORCE NOTWITHSTANDING ANYTHING CONTAINED IN THE ACT OF FEBRUARY 28, 1919, WITH THE PROVISO: * * * THAT THE WORDS "OR THE SECRETARY OF THE NAVY" SHALL BE INSERTED IMMEDIATELY AFTER THE WORDS "THE SECRETARY OF WAR" WHEREVER THOSE WORDS APPEAR IN SECTION 125 OF THE ACT APPROVED JUNE 3, 1916, HERINBEFORE REFERRED TO.

IT IS UNDER THIS LATTER ACT THAT THE PROVISO HERE IN QUESTION IS, BY THE COMPILERS OF THE U.S.C. CARRIED INTO THE CODE AS SEC. 1393, TITLE 10, IN THE FOLLOWING LANGUAGE:

* * * THAT WHEN AN ENLISTED MAN IS DISCHARGED OTHERWISE THAN HONORABLY, ALL UNIFORM OUTER CLOTHING IN HIS POSSESSION SHALL BE RETAINED FOR MILITARY USE, AND, WHEN AUTHORIZED BY REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, A SUIT OF CITIZEN'S OUTER CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO SUCH ENLISTED MAN: * *

THE SECTION WAS FURTHER AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 891, TO AMEND THE FIRST OF THE PROVISOS ADDED BY THE ACT OF JULY 9, 1918 BY STRIKING OUT OF THE PROVISO THE PORTION WHICH FOLLOWED THE WORDS "RETAINED FOR MILITARY USE.' IN VIEW OF THE LANGUAGE OF THE STATUTE AND THE AMENDMENTS THERETO, I FIND NO BASIS TO SUPPORT THE CONCLUSION WHICH YOU STATE THE NAVY HAS REACHED THAT THE PROVISOS ADDED TO THE SECTION BY THE ACT OF JULY 9, 1918, AND SUBSEQUENTLY MODIFIED ARE APPLICABLE ONLY TO THE ARMY.

YOUR LETTER ALSO SUGGESTS THAT IF THE PURPOSE WAS TO INCLUDE THE UNIFORM OUTER CLOTHING OF ENLISTED MEN OF THE NAVY WITHIN ITS TERMS, IT AMOUNTS TO A CONFISCATION OF PRIVATE PROPERTY AND WAS PROBABLY BEYOND THE POWER OF CONGRESS. IN THE SETTLEMENT AND ADJUSTMENT OF ACCOUNTS AND CLAIMS THIS OFFICE HAS LITTLE OCCASION TO QUESTION THE CONSTITUTIONALITY OF ACTS OF CONGRESS. HOWEVER, IN THIS CASE I HAVE NO DOUBT OF THE CONSTITUTIONALITY OF THE ACT, INCLUSIVE OF ENLISTED MEN OF THE NAVY. IT IS PROPER TO NOTICE FIRST THAT ALL UNIFORM OUTER CLOTHING "IN HIS OSSESSION" IS TO BE RETAINED. THE ASSUMPTION THAT ALL UNIFORM OUTER CLOTHING IN THE POSSESSION OF AN ENLISTED MAN OF THE ARMY IS GOVERNMENT ISSUE IS ERRONEOUS. MANY ENLISTED MEN OF THE ARMY BUY FROM THEIR PRIVATE FUNDS UNIFORM OUTER CLOTHING, AND WITH RESPECT TO SUCH PRIVATELY PURCHASED UNIFORMS THEIR SITUATION IS IDENTICALLY THE SAME AS IS THAT OF ENLISTED MEN OF THE NAVY. CONGRESS, BY CLAUSE 1 OF SECTION 8 OF THE CONSTITUTION HAS POWER TO "PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF THE UNITED STATES; " BY CLAUSES 12 AND 13 TO RAISE AND SUPPORT ARMIES, AND TO PROVIDE AND MAINTAIN A NAVY; BY CLAUSE 14, TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND AND NAVAL FORCES; AND BY CLAUSE 18 TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE POWERS GIVEN AND ALL OTHER POWERS VESTED BY THE CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES OR IN ANY DEPARTMENT OF OFFICER THEREOF. IN HAMILTON V. KENTUCKY DISTILLERIES CO., 251 U.S. 146, 156, THE SUPREME COURT CONSIDERED AN ANALOGOUS SITUATION AND USED THE FOLLOWING LANGUAGE:

THAT THE UNITED STATES LACKS THE POLICE POWER, AND THAT THIS WAS RESERVED TO THE STATES BY THE TENTH AMENDMENT, IS TRUE. BUT IT IS NONE THE LESS TRUE THAT WHEN THE UNITED STATED EXERTS ANY OF THE POWERS CONFERRED UPON IT BY THE CONSTITUTION, NO VALID OBJECTION CAN BE BASED UPON THE FACT THAT SUCH EXERCISE MAY BE ATTENDED BY THE SAME INCIDENTS WHICH ATTEND THE EXERCISE BY A STATE OF ITS POLICE POWER, OR THAT IT MAY TEND TO ACCOMPLISH A SIMILAR PURPOSE. (CITING AUTHORITIES) * * * THE WAR POWER OF THE UNITED STATES, LIKE ITS OTHER POWERS AND LIKE THE POLICE POWER OF THE STATES, IS SUBJECT TO APPLICABLE CONSTITUTIONAL LIMITATIONS * * *; BUT THE FIFTH AMENDMENT IMPOSES THIS RESPECT NO GREATER LIMITATION UPON THE NATIONAL POWER THAN DOES THE FOURTEENTH AMENDMENT UPON STATE POWER. * * * IF THE NATURE AND CONDITION OF A RESTRICTION UPON THE USE OR DISPOSITION OF PROPERTY IS SUCH THAT A STATE COULD, UNDER THE POLICE POWER, IMPOSE IT CONSISTENTLY WITH THE FOURTEENTH AMENDMENT WITHOUT MAKING COMPENSATION, THEN THE UNITED STATES MAY FOR A PERMITTED PURPOSE IMPOSE A LIKE RESTRICTION CONSISTENTLY WITH THE FIFTH AMENDMENT WITHOUT MAKING COMPENSATION; * * *.

IF THE CONGRESS UNDER ITS AUTHORITY TO PROVIDE FOR THE NATIONAL DEFENSE SHOULD PROVIDE, AS IT HAS, THAT AN ENLISTED MAN DISCHARGED OTHERWISE THAN HONORABLY AND WHO COULD NOT WEAR THE UNIFORM WITHOUT VIOLATION OF A PENAL STATUTE SHOULD NOT BE PERMITTED TO RETAIN THE UNIFORMS IN HIS POSSESSION WHEN SO DISCHARGED, CERTAINLY SUCH ACTION IS AUTHORIZED UNDER ITS AUTHORITY TO MAKE RULES FOR THE GOVERNMENT AND REGULATIONS OF THE LAND AND NAVAL FORCES. TO THOSE IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES MILITARY LAW IS DUE PROCESS. REAVES V. AINSWORTH, 219 U.S. 296. IN HALTER V. NEBRASKA, 205 U.S. 34, THE SUPREME COURT HELD THAT A STATUTE OF NEBRASKA, QUOTING FROM THE SYLLABUS---

* * * PREVENTING AND PUNISHING THE DESECRATION OF THE FLAG OF THE UNITED STATES AND PROHIBITING THE SALE OF ARTICLES UPON WHICH THERE IS A REPRESENTATION OF THE FLAG FOR ADVERTISING PURPOSES IS NOT UNCONSTITUTIONAL EITHER AS DEPRIVING THE OWNER OF SUCH ARTICLES OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW, OR AS DENYING HIM THE EQUAL PROTECTION OF THE LAWS * * * BECAUSE OF THE EXCEPTION OF CERTAIN CLASSES FROM THE OPERATION OF THE STATUTE.

THE IMPROPRIETY, MOREOVER, SEEMS APPARENT OF BRINGING IN QUESTION THE CONSTITUTIONALITY OF AN ACT OF CONGRESS IN CONNECTION WITH REGULATIONS OR INSTRUCTIONS PROPOSED FOR ISSUANCE TO THE NAVAL SERVICE. IN THE CASE OF GLAVEY V. THE UNITED STATES, 182 U.S. 605, MR. JUSTICE HARLAN, IN DELIVERING THE OPINION OF THE COURT, SAID:

* * * THE AUTHORITY OF THE SECRETARY TO ISSUE ORDERS, REGULATIONS, AND INSTRUCTIONS, WITH THE APPROVAL OF THE PRESIDENT, IN REFERENCE TO MATTERS CONNECTED WITH THE NAVAL ESTABLISHMENT, IS SUBJECT TO THE CONDITION, NECESSARILY IMPLIED, THAT THEY MUST BE CONSISTENT WITH THE STATUTES WHICH HAVE BEEN ENACTED BY CONGRESS IN REFERENCE TO THE NAVY. HE MAY, WITH THE APPROVAL OF THE PRESIDENT, ESTABLISH REGULATIONS IN EXECUTION OF, OR SUPPLEMENTAL TO, BUT NOT IN CONFLICT WITH, THE STATUTES DEFINING HIS POWERS OR CONFERRING RIGHTS UPON OTHERS. THE CONTRARY HAS NEVER BEEN HELD BY THIS COURT. * * *

THIS OPINION BY THE SUPREME COURT OF THE UNITED STATES IS CITED AS CONTROLLING IN THE VERY OPINION OF THE ATTORNEY GENERAL (25 OP.ATTY.GEN. 270, 275) WHICH IS CITED IN YOUR COMMUNICATION AS SUPPORTING THE SUGGESTION THAT THE CITED ACT OF JULY 9, 1918, AS AMENDED, IS UNCONSTITUTIONAL. THE OPINION OF THE ATTORNEY GENERAL SEEMS MERELY TO HOLD THAT "IN THE ABSENCE OF ANY AUTHORITY WHATEVER IN THE ACT OF CONGRESS, IN PURSUANCE OF WHICH THE REGULATIONS * * * WERE ISSUED," NAVY REGULATIONS REQUIRING REFUND, UNDER CERTAIN CONDITIONS, OF ENLISTMENT BOUNTY UNCONDITIONALLY AUTHORIZED IN THE STATUTE WERE "INCONSISTENT WITH LAW AND VOID.'

THE AGREEMENT OF AN ENLISTED MAN IN HIS CONTRACT OF ENLISTMENT TO SURRENDER HIS OUTER UNIFORM IN EXCHANGE FOR CIVILIAN CLOTHING OUTFIT, IF DISCHARGED BY SENTENCE OF COURT-MARTIAL, IS EQUALLY INCONSISTENT WITH EXISTING LAW AND VOID, THE LAW REQUIRING THAT THE "UNIFORM OUTER CLOTHING" BE RETAINED FOR MILITARY USE IRRESPECTIVE OF ANY AGREEMENT ON THE PART OF THE MAN, IF HE IS DISCHARGED OTHERWISE THAN HONORABLY. THE AGREEMENT BEING VOID, ANY REGULATION OR INSTRUCTION BASED THEREON NECESSARILY WOULD BE HELD ILLEGAL AND VOID.

IN EACH CASE OF A NAVY PRISONER WHO ACTUALLY HAS UNIFORM OUTER CLOTHING AT THE TIME OF HIS DISCHARGE IT MUST BE RETAINED FOR MILITARY USE AND IN SUCH CASE "WHEN AUTHORIZED BY REGULATIONS PRESCRIBED BY * * * THE SECRETARY OF THE NAVY, A SUIT OF CITIZEN'S OUTER CLOTHING TO COST NOT EXCEEDING $15 MAY BE ISSUED TO SUCH ENLISTED MAN," IRRESPECTIVE OF WHETHER THE PRISONER "WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING OR WITHOUT FUNDS TO MEET THEIR (HIS) IMMEDIATE NEEDS.'

IN THE CASE OF A NAVY PRISONER WHO HAS NO UNIFORM OUTER CLOTHING AT THE TIME OF HIS DISCHARGE THE CITED SECTION 125 OF THE ACT OF JUNE 3, 1916, AS AMENDED, HAS NO APPLICATION AND UNDER SECTION 13, ACT FEBRUARY 16, 1909, 35 STAT. 622, AND THE ACT OF MARCH 3, 1909, 35 STAT. 756, WHERE SAID DISCHARGED PRISONER WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING TO MEET HIS IMMEDIATE NEEDS, THE SECRETARY OF THE NAVY IS AUTHORIZED, IN HIS DISCRETION, TO FURNISH THE DISCHARGED PRISONER WITH SUITABLE CIVILIAN CLOTHING.

THE INSTRUCTIONS SUBMITTED SO FAR AS IN CONFLICT WITH THE VIEWS HEREIN INDICATED MAY NOT BE ACCEPTED AS CONTROLLING IN THE AUDIT.