A-29982, JANUARY 11, 1930, 9 COMP. GEN. 282

A-29982: Jan 11, 1930

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WITNESSES - ARMY COURTS-MARTIAL THE RIGHTS OF AN ENLISTED MAN OF THE MARINE CORPS TO REIMBURSEMENT OF EXPENSES INCURRED IN OBEDIENCE TO A SUMMONS AND A COMPETENT ORDER REQUIRING HIM TO PROCEED TO A DISTANT PLACE TO APPEAR AS A WITNESS BEFORE AN ARMY COURT-MARTIAL AND UPON COMPLETION OF HIS DUTY TO RETURN TO HIS STATION ARE GOVERNED BY SEC. 11 OF THE ACT OF JUNE 10. IT IS REQUESTED THAT DECISIONS IN THIS CASE. ALTHOUGH THE REASON FOR THE DISBURSING OFFICER'S DOUBT CONCERNING THIS PAYMENT IS NOT STATED. IT IS APPARENT IT IS BECAUSE OF THE FACT THAT CLAIMANT IS IN THE SERVICE OF THE UNITED STATES NAVY. 2. ALTHOUGH THE MANUAL FOR COURTS-MARTIAL IS SILENT CONCERNING THE TRAVEL ALLOWANCES OF ENLISTED MEN OF THE NAVY OR MARINE CORPS ORDERED OR SUBPOENAED TO APPEAR BEFORE AN ARMY COURT-MARTIAL.

A-29982, JANUARY 11, 1930, 9 COMP. GEN. 282

WITNESSES - ARMY COURTS-MARTIAL THE RIGHTS OF AN ENLISTED MAN OF THE MARINE CORPS TO REIMBURSEMENT OF EXPENSES INCURRED IN OBEDIENCE TO A SUMMONS AND A COMPETENT ORDER REQUIRING HIM TO PROCEED TO A DISTANT PLACE TO APPEAR AS A WITNESS BEFORE AN ARMY COURT-MARTIAL AND UPON COMPLETION OF HIS DUTY TO RETURN TO HIS STATION ARE GOVERNED BY SEC. 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630 AND THE EXECUTIVE ORDER ISSUED IN PURSUANCE THEREOF, THE AMOUNT DUE BEING PAYABLE FROM THE APPROPRIATION FOR EXPENSES OF ARMY COURTS-MARTIAL.

COMPTROLLER GENERAL MCCARL TO MAJ. GEORGE N. WATSON, UNITED STATES ARMY, JANUARY 11, 1930:

THERE HAS BEEN RECEIVED THROUGH THE CHIEF OF FINANCE YOUR LETTER OF DECEMBER 6, 1929, TRANSMITTING VOUCHER FOR $45 IN FAVOR OF FRED ROBINSON, GUNNERY SERGEANT, UNITED STATES MARINE CORPS, U.S.S. WEST VIRGINIA, SAN PEDRO, CALIFORNIA, COVERING REIMBURSEMENT OF EXPENSES INCURRED IN TRAVELING FROM SAN PEDRO, CALIF., TO FORT LEWIS, WASH., AND RETURN, AS A WITNESS BEFORE AN ARMY GENERAL COURT-MARTIAL SEPTEMBER 25, TO OCTOBER 9, 1929, UNDER A SUMMONS ISSUED BY THE TRIAL JUDGE ADVOCATE DATED SEPTEMBER 19, 1929, AND AN ORDER ISSUED BY THE COMMANDER IN CHIEF, BATTLE FLEET, DATED SEPTEMBER 25, 1929.

THE CHIEF OF FINANCE, IN HIS INDORSEMENT OF DECEMBER 19, 1929, STATES:

1. IT IS REQUESTED THAT DECISIONS IN THIS CASE, WHEN RENDERED, BE FORWARDED TO MAJOR WATSON THROUGH THIS OFFICE. ALTHOUGH THE REASON FOR THE DISBURSING OFFICER'S DOUBT CONCERNING THIS PAYMENT IS NOT STATED, IT IS APPARENT IT IS BECAUSE OF THE FACT THAT CLAIMANT IS IN THE SERVICE OF THE UNITED STATES NAVY.

2. ALTHOUGH THE MANUAL FOR COURTS-MARTIAL IS SILENT CONCERNING THE TRAVEL ALLOWANCES OF ENLISTED MEN OF THE NAVY OR MARINE CORPS ORDERED OR SUBPOENAED TO APPEAR BEFORE AN ARMY COURT-MARTIAL, PARAGRAPH 3 OF AR 35- 4120, WHICH IS BASED UPON A DECISION OF THE COMPTROLLER OF THE TREASURY OF JULY 15, 1903, 10 C.D. 51, PROVIDES---

"PERSONS IN THE MILITARY SERVICE, ON ACTIVE DUTY WHEN REQUIRED TO ATTEND AS WITNESSES BEFORE COURTS ARE ENTITLED TO THE ALLOWANCES PROVIDED BY LAW AND REGULATIONS FOR THE TRAVEL UNDER ORDERS GENERALLY OF SUCH PERSONS.'

FURTHERMORE, IN AN OPINION PUBLISHED ON PAGE 18 OF THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1923, IT WAS HELD THAT AN ENLISTED MAN OF THE MARINE CORPS MAY BE SUBPOENAED IN THE USUAL MANNER TO APPEAR AS A WITNESS BEFORE AN ARMY COURT-MARTIAL, THE NAVY DEPARTMENT BEING INFORMED OF SUCH ACTION.

3. THE APPROPRIATION FOR "EXPENSES OF COURTS-MARTIAL" CONTAINED IN THE ACT OF FEBRUARY 28, 1929, MAKING APPROPRIATION FOR THE SUPPORT OF THE ARMY FOR THE FISCAL YEAR ENDING JUNE 30, 1930, PROVIDES GENERALLY FOR THE COMPENSATION OF REPORTERS AND WITNESSES ATTENDING COURTS MARTIAL, COURTS OF INQUIRY, MILITARY COMMISSIONS, ETC., AND SINCE IN THE INSTANT CASE THE ATTENDANCE OF THE WITNESS WAS FOR THE BENEFIT OF THE ARMY, IT WOULD SEEM THAT PAYMENT MIGHT PROPERLY BE MADE FROM THE APPROPRIATION "EXPENSES OF COURTS-MARTIAL" IN AMOUNTS NOT EXCEEDING THE RATES ESTABLISHED BY EXECUTIVE ORDER FOR MONETARY ALLOWANCES OF ENLISTED MEN UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1922. IN THIS CONNECTION ATTENTION IS ALSO INVITED TO YOUR DECISION OF JUNE 29, 1925, 4 C.G. 1070.

THE FACT THAT CLAIMANT, BEING AN ENLISTED MAN IN THE MARINE CORPS, TRAVELED AS A WITNESS TO TESTIFY BEFORE AN ARMY INSTEAD OF A NAVY COURT MARTIAL IS IMMATERIAL AS AFFECTING HIS RIGHTS IN THE PREMISES. THE QUESTION ARISING IS WHETHER HE IS ENTITLED TO ACTUAL EXPENSES UNDER SEC. 850, REVISED STATUTES, OR TO THE MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE AS PROVIDED IN SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, AND THE EXECUTIVE ORDER NO. 4728, OF SEPTEMBER 29, 1927, ISSUED IN PURSUANCE THEREOF.

IT HAS BEEN HELD THAT SECTION 850, REVISED STATUTES, HAS NO APPLICATION TO AN OFFICER IN THE MILITARY OR NAVAL SERVICE WHEN HE TRAVELS UNDER COMPETENT ORDER TO APPEAR AS A WITNESS BEFORE A MILITARY COURT, AND THAT FOR SUCH TRAVEL HE IS ENTITLED TO MILEAGE AS AN OFFICER TRAVELING UNDER ORDER--- 69 MS. COMP. DEC. 285, APRIL 14, 1914. SEE ALSO IN THIS CONNECTION 3 COMP. GEN. 271. THE PROVISIONS OF THE ARMY REGULATIONS QUOTED BY THE CHIEF OF FINANCE ARE IN ACCORDANCE WITH THE PRACTICE RELATIVE TO PERSONS IN THE MILITARY SERVICE ORDERED TO PERFORM TRAVEL AS WITNESSES BEFORE MILITARY COURTS. GUNNERY SERGEANT ROBINSON'S RIGHTS IN THE PREMISES ARE, THEREFORE, UNDER SEC. 11 OF THE ACT OF JUNE 10, 1922, AND THE EXECUTIVE ORDER ISSUED IN PURSUANCE THEREOF, THE AMOUNT DUE BEING PAYABLE FROM THE APPROPRIATION FOR THE EXPENSES OF ARMY COURTS-MARTIAL AS SUGGESTED BY THE CHIEF OF FINANCE.

IT IS STATED ON THE VOUCHER THAT THIS MAN OBTAINED A ROOM AT PONDERS AUTO CAMP, AT PONDERS, WASH., 7 MILES NORTH OF FORT LEWIS, AT A COST OF $1.50 PER DAY FOR 11 DAYS, AND THAT HE BOUGHT AND COOKED HIS OWN FOOD AT THIS PLACE AND AT OTHER EATING PLACES IN THE VICINITY AT A COST OF $1.50 PER DAY FOR THE SAME PERIOD.

IT DOES NOT APPEAR AS TO WHAT WAS THE HOUR OF HIS DEPARTURE AND RETURN TO SAN PEDRO AND THE HOUR OF HIS ARRIVAL AT AND DEPARTURE FROM FORT LEWIS, NOR DOES IT APPEAR AS TO WHETHER HE WAS OFFERED QUARTERS AND SUBSISTENCE IN KIND AT FORT LEWIS. IF HE WAS SO OFFERED QUARTERS AND SUBSISTENCE IN KIND, SUCH OFFER WOULD CONSTITUTE A FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND WITHIN THE MEANING OF SECTION 11 OF THE ACT OF JUNE 10, 1922, AND THE EXECUTIVE ORDER REFERRED TO.

A NEW VOUCHER ON THE BASIS OUTLINED ABOVE SHOULD BE PREPARED.