A-35089, FEBRUARY 10, 1931, 10 COMP. GEN. 357

A-35089: Feb 10, 1931

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OATHS TO EXPENSE ACCOUNTS - CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHEN THE OFFICIAL BUSINESS INVOLVED IN THE EXPENSE ACCOUNT OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS INCIDENT TO THE ADMINISTRATION OF MILITARY JUSTICE OR FOR OTHER PURPOSES OF MILITARY ADMINISTRATION. WHEN THE OFFICIAL BUSINESS INVOLVED IN THE EXPENSE ACCOUNT OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS INCIDENT TO THE ADMINISTRATION OF NONMILITARY ACTIVITIES INVOLVING THE CHARGING OF APPROPRIATIONS FOR THE NONMILITARY ACTIVITIES OF THE WAR DEPARTMENT. AS FOLLOWS: IT HAS BEEN NOTED THAT CERTAIN SUSPENSIONS HAVE BEEN MADE IN THE ACCOUNTS OF DISBURSING OFFICERS ON ACCOUNT OF PAYMENTS OF TRAVELING EXPENSES TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT.

A-35089, FEBRUARY 10, 1931, 10 COMP. GEN. 357

OATHS TO EXPENSE ACCOUNTS - CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHEN THE OFFICIAL BUSINESS INVOLVED IN THE EXPENSE ACCOUNT OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS INCIDENT TO THE ADMINISTRATION OF MILITARY JUSTICE OR FOR OTHER PURPOSES OF MILITARY ADMINISTRATION, THE OATH TO SUCH EXPENSE ACCOUNT MAY BE ADMINISTERED EITHER BY AN OFFICER OR EMPLOYEE ENUMERATED IN SECTION 8 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, OR BY AN OFFICER OF ANY CLASS ENUMERATED IN THE 114TH ARTICLE OF WAR, AS AMENDED. WHEN THE OFFICIAL BUSINESS INVOLVED IN THE EXPENSE ACCOUNT OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS INCIDENT TO THE ADMINISTRATION OF NONMILITARY ACTIVITIES INVOLVING THE CHARGING OF APPROPRIATIONS FOR THE NONMILITARY ACTIVITIES OF THE WAR DEPARTMENT, THE OATH MAY NOT BE ADMINISTERED BY AN OFFICER OF ANY OF THE CLASSES ENUMERATED IN THE 114TH ARTICLE OF WAR, AS AMENDED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 10, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 24, 1931, AS FOLLOWS:

IT HAS BEEN NOTED THAT CERTAIN SUSPENSIONS HAVE BEEN MADE IN THE ACCOUNTS OF DISBURSING OFFICERS ON ACCOUNT OF PAYMENTS OF TRAVELING EXPENSES TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT, THE REASON FOR SUCH SUSPENSIONS BEING STATED TO BE THAT SECTION 8 OF THE ACT OF AUGUST 24, 1912 (37 STAT. 487; U.S.C. 5: 97: SEC. 1337, MIL. LAWS, 1929; PAR. 115, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS), DOES NOT AUTHORIZE OFFICERS OF THE ARMY TO ADMINISTER OATHS TO EXPENSE ACCOUNTS OF CIVILIAN EMPLOYEES.

THE ACT OF AUGUST 24, 1912, SUPRA, PROVIDED AS FOLLOWS:

"AFTER JUNE THIRTIETH, NINETEEN HUNDRED AND TWELVE, POSTMASTERS, ASSISTANT POSTMASTERS, COLLECTORS OF CUSTOMS, COLLECTORS OF INTERNAL REVENUE, CHIEF CLERKS OF THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS, OR CLERKS DESIGNATED BY THEM FOR THE PURPOSE, THE SUPERINTENDENT, THE ACTING SUPERINTENDENT, CUSTODIAN, AND PRINCIPAL CLERKS OF THE VARIOUS NATIONAL PARKS AND OTHER GOVERNMENT RESERVATIONS, SUPERINTENDENT, ACTING SUPERINTENDENTS, AND PRINCIPAL CLERKS OF THE DIFFERENT INDIAN SUPERINTENDENCIES OR INDIAN AGENCIES AND CHIEFS OF FIELD PARTIES, ARE REQUIRED, EMPOWERED, AND AUTHORIZED, WHEN REQUESTED, TO ADMINISTER OATHS, REQUIRED BY LAW OR OTHERWISE, TO ACCOUNTS FOR TRAVEL OR OTHER EXPENSES AGAINST THE UNITED STATES, WITH LIKE FORCE AND EFFECT AS OFFICERS HAVING A SEAL; FOR SUCH SERVICES WHEN SO RENDERED, OR WHEN RENDERED ON DEMAND AFTER SAID DATE BY NOTARIES PUBLIC, WHO AT THE TIME ARE ALSO SALARIED OFFICERS OR EMPLOYEES OF THE UNITED STATES, NO CHARGE SHALL BE MADE; AND ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND TWELVE, NO FEE OR MONEY PAID FOR THE SERVICES HEREIN DESCRIBED SHALL BE PAID OR REIMBURSED BY THE UNITED STATES.'

PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 24, 1912, REIMBURSEMENT WAS ALLOWED FOR FEES CHARGED FOR ADMINISTERING OATHS TO OFFICERS OR EMPLOYEES OF THE GOVERNMENT IN CONNECTION WITH AN ACCOUNT OR A VOUCHER IN AN ACCOUNT, AND A SCHEDULE OR SUCH FEES MAY BE FOUND IN TREASURY DEPARTMENT CIRCULAR NO. 19, MARCH 12, 1907 (13 COMP. DEC. 890), WHICH WAS QUOTED IN CIRCULAR NO. 66, WAR DEPARTMENT, SEPTEMBER 27, 1907. IT APPEARS THAT SECTION 8 OF THE ACT OF AUGUST 24, 1912, WAS DESIGNED TO REMOVE THE NECESSITY FOR THE PAYMENT OF FEES FOR OATHS REQUIRED IN CONNECTION WITH EXPENSE ACCOUNTS AND IT WAS HELD IN DECISION OF THE COMPTROLLER OF THE TREASURY DATED JULY 3, 1915, 22 COMP. DEC. 1, THAT SUCH FEES MIGHT NO LONGER BE PAID, EVEN WHERE THE OATH WAS ADMINISTERED BY AN OFFICER NOT WITHIN THE SCOPE OF THE ACT IN QUESTION.

CERTAIN ARMY OFFICERS WERE AUTHORIZED, PRIOR TO THE ENACTMENT OF THE ACT OF AUGUST 24, 1912, TO ADMINISTER OATHS FOR THE PURPOSES SET FORTH IN SECTION 4 OF THE ACT OF JULY 27, 1892 (27 STAT. 277), AS FOLLOWS:

"THAT JUDGE ADVOCATES OF DEPARTMENTS AND OF COURT-MARTIAL, AND THE TRIAL OFFICERS OF SUMMARY COURTS, ARE HEREBY AUTHORIZED TO ADMINISTER OATHS FOR THE PURPOSES OF THE ADMINISTRATION OF MILITARY JUSTICE, AND FOR OTHER PURPOSES OF MILITARY ADMINISTRATION.'

THE PROVISION QUOTED ABOVE WAS SUPERSEDED BY THE 114TH ARTICLE OF WAR,SECTION 3, ACT OF AUGUST 29, 1916 (39 STAT. 669), AS AMENDED BY SECTION 1, CHAPTER II, ACT OF JUNE 4, 1920 (41 STAT. 810; U.S.C. 10: 1586; SEC. 472, MIL. LAWS, 1929), PROVIDING AS FOLLOWS:

"ANY JUDGE ADVOCATE OR ACTING JUDGE ADVOCATE, THE PRESIDENT OF A GENERAL OR SPECIAL COURT-MARTIAL, ANY SUMMARY COURT-MARTIAL, THE TRIAL JUDGE ADVOCATE OR ANY ASSISTANT TRIAL JUDGE ADVOCATE OF A GENERAL OR SPECIAL COURT-MARTIAL, THE PRESIDENT OR THE RECORDER OF A COURT OF INQUIRY OR OF A MILITARY BOARD, ANY OFFICER DESIGNATED TO TAKE A DEPOSITION, ANY OFFICER DETAILED TO CONDUCT AN INVESTIGATION, AND THE ADJUTANT OF ANY COMMAND SHALL HAVE POWER TO ADMINISTER OATHS FOR THE PURPOSES OF THE ADMINISTRATION OF MILITARY JUSTICE AND FOR OTHER PURPOSES OF MILITARY ADMINISTRATION; AND IN FOREIGN PLACES WHERE THE ARMY MAY BE SERVING SHALL HAVE THE GENERAL POWERS OF A NOTARY PUBLIC OR OF A CONSUL OF THE UNITED STATES IN THE ADMINISTRATION OF OATHS, THE EXECUTION AND ACKNOWLEDGMENT OF LEGAL INSTRUMENTS, THE ATTESTATION OF DOCUMENTS, AND ALL OTHER FORMS OF NOTARIAL ACTS TO BE EXECUTED BY PERSONS SUBJECT TO MILITARY LAW.'

IT WILL BE NOTED THAT SECTION 8 OF THE ACT OF AUGUST 24, 1912, WHILE IT PROVIDED THAT NO FEE SHOULD BE PAID BY THE UNITED STATES FOR OATHS TO EXPENSE ACCOUNTS, DID NOT INCLUDE ANY OFFICERS CONNECTED WITH THE MILITARY ESTABLISHMENT IN THE ENUMERATION OF OFFICERS WHO WOULD ADMINISTER SUCH OATHS FREE OF CHARGE, AND IT APPEARS THAT, UNLESS CIVILIAN EMPLOYEES OF THE MILITARY ESTABLISHMENT ARE OTHERWISE PROVIDED FOR, THE ACT IN QUESTION DISCRIMINATED AGAINST THEM IN THIS RESPECT. IT IS BELIEVED, HOWEVER, THAT THE REASON FOR THE FAILURE OF THIS ACT TO PROVIDE FOR THE MILITARY ESTABLISHMENT WAS THAT PROVISION HAD BEEN OTHERWISE MADE BY LAW, AS SHOWN ABOVE, FOR THE ADMINISTERING OF OATHS BY CERTAIN OFFICERS OF THE ARMY "FOR THE PURPOSES OF THE ADMINISTRATION OF MILITARY JUSTICE AND FOR OTHER PURPOSES OF MILITARY ADMINISTRATION," AND IT APPEARS THAT FOR MANY YEARS, BOTH BEFORE AND AFTER THE ENACTMENT OF THE ACT OF AUGUST 24, 1912, THE OFFICERS SO AUTHORIZED HAVE IN FACT ADMINISTERED OATHS TO EXPENSE ACCOUNTS OF THE NATURE HERE IN QUESTION.

IT IS THE VIEW OF THE WAR DEPARTMENT THAT, WHILE OATHS OF CIVILIAN EMPLOYEES, NOT PERTAINING TO MILITARY ADMINISTRATION, SUCH AS OATHS TO APPLICATIONS FOR PENSIONS, ARE NOT WITHIN THE PURVIEW OF THE 114TH ARTICLE OF WAR, ALL OATHS WHICH CIVILIAN PERSONNEL OF THE ARMY MAY BE REQUIRED BY LAW OR REGULATION, TO TAKE IN CONNECTION WITH OFFICIAL BUSINESS PERTAINING TO THE MILITARY ESTABLISHMENT, MAY PROPERLY BE ADMINISTERED, EITHER BY ANY OF THE PERSONS ENUMERATED IN SECTION 8 OF THE ACT OF AUGUST 24, 1912, OR BY ANY OF THE OFFICERS ENUMERATED IN THE 114TH ARTICLE OF WAR, PROVIDED THAT IN EACH CASE A PROPER SHOWING BE MADE ON THE JURAT AS TO THE CAPACITY IN WHICH THE OFFICER ADMINISTERS THE OATH, I.E., "JUDGE ADVOCATE," "ADJUTANT," ETC.

IT IS REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS COVERING EXPENSE ACCOUNTS OF CIVILIAN PERSONNEL OF THE MILITARY ESTABLISHMENT, IF SUCH PAYMENTS ARE SUPPORTED BY OATHS ADMINISTERED AS SET FORTH ABOVE AND ARE OTHERWISE CORRECT.

IN SPECIFIC ANSWER TO THE QUESTION AS SUBMITTED IN YOUR LETTER, I HAVE TO ADVISE AS FOLLOWS:

1. WITH RESPECT TO EXPENSE ACCOUNTS OF CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHICH HAVE PARTICULAR REFERENCE TO, OR ARE INCIDENT TO, THE OFFICIAL BUSINESS OF THE ADMINISTRATION OF MILITARY JUSTICE, OR FOR OTHER PURPOSES OF MILITARY ADMINISTRATION, AND THERE IS INVOLVED THE CHARGING OF APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT THE OATH TO SUCH EXPENSE ACCOUNTS MAY BE ADMINISTERED EITHER (1) BY ANY OF THE OFFICERS OR EMPLOYEES ENUMERATED IN SECTION 8 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, QUOTED IN YOUR LETTER, OR (2) BY ANY OF THE OFFICERS ENUMERATED IN THE 114TH ARTICLE OF WAR, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 810, ALSO QUOTED IN YOUR LETTER, PROVIDED THAT IN EACH INSTANCE THERE IS A PROPER SHOWING AS TO THE CAPACITY IN WHICH THE OFFICER ADMINISTERS THE OATH.

2. AS TO THE EXPENSE ACCOUNTS OF CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT INCIDENT TO THE OFFICIAL BUSINESS OF NONMILITARY ACTIVITIES INVOLVING THE CHARGING OF APPROPRIATIONS FOR THE NONMILITARY ACTIVITIES OF THE WAR DEPARTMENT, SUCH AS RIVERS AND HARBORS WORKS, THE ADMINISTRATION OF NATIONAL CEMETERIES AND NATIONAL MILITARY PARKS, ETC., THE OATH MAY NOT BE ADMINISTERED BY AN OFFICER OF ANY OF THE CLASSES ENUMERATED IN THE 114TH ARTICLE OF WAR, AS AMENDED.