A-50287, AUGUST 8, 1933, 13 COMP. GEN. 41

A-50287: Aug 8, 1933

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AMENDED - ALLOWANCES - RATIONS OF CADETS AT THE UNITED STATES MILITARY ACADEMY THE COMMUTED RATION ALLOWANCE TO CADETS AT THE UNITED STATES MILITARY ACADEMY IS A PART OF THE COMPENSATION OF SUCH CADETS AND IS SUBJECT TO THE PERCENTAGE REDUCTION PRESCRIBED BY THE EXECUTIVE ORDER ISSUED UNDER TITLE II OF THE ACT OF MARCH 20. AS FOLLOWS: REFERENCE IS MADE TO DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES. IN WHICH IT WAS HELD THAT COMMUTED RATIONS FOR MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY ARE SUBJECT TO THE 15 PERCENT REDUCTION IN COMPENSATION PRESCRIBED IN EXECUTIVE ORDER NO. 6085. IN THIS CONNECTION IT IS PROVIDED IN SECTION 19. THAT THE CADETS AT THE MILITARY ACADEMY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE PROVIDED BY LAW FOR MIDSHIPMEN IN THE NAVY.

A-50287, AUGUST 8, 1933, 13 COMP. GEN. 41

ECONOMY ACT, AMENDED - ALLOWANCES - RATIONS OF CADETS AT THE UNITED STATES MILITARY ACADEMY THE COMMUTED RATION ALLOWANCE TO CADETS AT THE UNITED STATES MILITARY ACADEMY IS A PART OF THE COMPENSATION OF SUCH CADETS AND IS SUBJECT TO THE PERCENTAGE REDUCTION PRESCRIBED BY THE EXECUTIVE ORDER ISSUED UNDER TITLE II OF THE ACT OF MARCH 20, 1933, SUCH REDUCTION TO BE BASED UPON THE VALUE OF THE RATION OTHERWISE FIXED AS OF APRIL 1, 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST, 8, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 31, 1933, AS FOLLOWS:

REFERENCE IS MADE TO DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, A-49018, DATED MAY 19, 1933, TO THE SECRETARY OF THE NAVY, IN WHICH IT WAS HELD THAT COMMUTED RATIONS FOR MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY ARE SUBJECT TO THE 15 PERCENT REDUCTION IN COMPENSATION PRESCRIBED IN EXECUTIVE ORDER NO. 6085, DATED MARCH 28, 1933, ISSUED PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 20, 1933 (PUBLIC, NO. 2, 73D CONGRESS).

IN THIS CONNECTION IT IS PROVIDED IN SECTION 19, ACT OF JUNE 10, 1922, 42 STAT. 632; U.S.C. 0:1146; 37:28, THAT THE CADETS AT THE MILITARY ACADEMY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE PROVIDED BY LAW FOR MIDSHIPMEN IN THE NAVY. THE COMMUTED VALUE OF THE RATION FOR MIDSHIPMEN IS NOT FIXED BY PERMANENT LEGISLATION, BUT ANNUALLY IN NAVAL APPROPRIATION ACTS. PRIOR TO THE FISCAL YEAR 1933 THE SEVERAL NAVAL APPROPRIATION ACTS HAD FIXED THIS EACH YEAR AT 80 CENTS, BUT BY THE ACT OF JUNE 30, 1932, 47 STAT. 431, IT WAS FIXED FOR THE FISCAL YEAR 1933 AT 75 CENTS AND HAS BEEN AGAIN FIXED AT THE SAME RATE FOR THE FISCAL YEAR 1934 BY THE ACT OF MARCH 3, 1933, PUBLIC, NO. 429, 72D CONGRESS. THE COMMUTED VALUE OF THE RATION FOR CADETS AT THE MILITARY ACADEMY HAS CONFORMED TO THE ABOVE.

IT THEREFORE APPEARS THAT THERE IS NO PERMANENT COMMUTED VALUE OF THE RATION FOR MIDSHIPMEN AND CADETS; THAT IT IS VARIED FROM TIME TO TIME ACCORDING TO CHANGES IN THE COST OF LIVING, AS IS THE CASE WITH THE COMMUTED VALUE OF THE RATION FOR ENLISTED MEN OF THE ARMY, WITH THIS DIFFERENCE ONLY, THAT IN THE FORMER CASE THE CHANGES ARE MADE BY CONGRESS AND IN THE LATTER BY ADMINISTRATIVE ACTION.

IT IS THEREFORE SUBMITTED THAT THE 15 PERCENT REDUCTION PRESCRIBED BY EXECUTIVE ORDERS 6085 AND 6188 FOR THE FISCAL YEARS 1933 AND 1934, RESPECTIVELY, MAY WELL BE HELD INAPPLICABLE TO CADETS AT THE MILITARY ACADEMY FOR LACK OF A PERMANENT FIXED BASE TO WHICH TO APPLY IT, AS WAS HELD BY YOU IN THE CASE OF CERTAIN OTHER EMPLOYEES IN A-49565, JUNE 20, 1933, A-49751, JULY 6, 1933, AND A-49756, JULY 8, 1933.

FURTHERMORE, IT IS BELIEVED THAT THE COMMUTED VALUE OF RATIONS FOR CADETS AND MIDSHIPMEN, FIXED BY THE CONGRESS EACH YEAR ON THE BASIS OF ESTIMATED CURRENT COSTS OF SUCH RATIONS, IS NOT COMPENSATION WITHIN THE PURVIEW OF EXECUTIVE ORDERS NOS. 6085 AND 6188, PRESCRIBING REDUCTIONS IN COMPENSATION, BUT IS RATHER INTENDED AS A SUBSTITUTE FOR RATIONS IN KIND SIMILAR TO THE COMMUTED RATION FOR ENLISTED MEN OF THE NAVY CONSIDERED IN DECISION A-48348, DATED MAY 8, 1933. IT IS NOTED THAT THE COMMUTED VALUE OF THE RATIONS OF MIDSHIPMEN AND THAT OF ENLISTED MEN ARE FIXED BY THE SAME SENTENCE AND IN THE SAME LANGUAGE IN THE NAVAL APPROPRIATION ACTS.

IF, NOTWITHSTANDING THE FACTS SET FORTH ABOVE, IT IS INSISTED THAT REDUCTIONS MUST BE MADE IN THE COMMUTED VALUE OF RATIONS FOR CADETS UNDER THE PROVISIONS OF EXECUTIVE ORDERS ISSUED PURSUANT TO THE ACT OF MARCH 20, 1933, SUPRA, IT IS BELIEVED THT SUCH REDUCTIONS SHOULD BE APPLIED TO THE RATE OF 80 CENTS PER DIEM PAYABLE FOR THE FISCAL YEAR 1928, RATHER THAN TO THE REDUCED RATE OF 75 CENTS PER DIEM FIXED FOR THE FISCAL YEARS 1933 AND 1934, INASMUCH AS THE ACT OF MARCH 20, 1933, PROVIDED THAT THE PRESCRIBED REDUCTIONS SHOULD BE BASED UPON THE PERCENTAGE OF REDUCTION IN THE COST OF LIVING FROM THE COST DURING THE BASIC SIX-MONTH PERIOD ENDING JUNE 30, 1928. WHILE IT IS BELIEVED, AS STATED ABOVE, THAT THE COMMUTED VALUE OF RATIONS FOR CADETS AND MIDSHIPMEN IS NOT COMPENSATION WITHIN THE PURVIEW OF THE ACT OF MARCH 20, 1933, IT IS BELIEVED FURTHER TO BE CLEARLY EVIDENT THAT IT WAS NOT THE INTENTION OF THE CONGRESS IN ANY EVENT TO APPLY THE PRESCRIBED COMPENSATION REDUCTIONS TO BASIC RATES OF COMPENSATION HIGHER THAN THOSE IN EFFECT ON JUNE 30, 1928, WHICH RATE, IN THE CASE OF THE COMMUTED RATIONS FOR CADETS AND MIDSHIPMEN, WAS THE RATE OF 80 CENTS PER DIEM PRESCRIBED IN THE NAVAL APPROPRIATION ACT OF MARCH 2, 1927 (44 STAT. 1286). AS SHOWING THE INTENT OF THE CONGRESS IN THIS RESPECT, REFERENCE IS MADE TO THE PROVISION IN THE ACT OF MARCH 20, 1933, THAT THE MAXIMUM REDUCTION OF 15 PERCENT SHALL INCLUDE REDUCTIONS MADE UNDER ANY EXISTING LAW, REGULATION, OR EXECUTIVE ORDER, IN THE CASE OF SUBSISTENCE AND RENTAL ALLOWANCES FOR THE SERVICES MENTIONED IN THE PAY ACT OF JUNE 10, 1922 (42 STAT. 625; U.S.C. 37; 1).

AS AN ILLUSTRATION OF THE FACT THAT THE CADET RATIONS ARE ENTIRELY USED BY THE CADET MESS AND THAT NO COMPENSATION IS RECEIVED BY CADETS FROM RATION FUNDS, THE FOLLOWING FIGURES ARE QUOTED FROM THE REPORT OF THE AUDIT BOARD FOR THE TREASURER'S MESS ACCOUNTS FOR THE PERIOD FROM JANUARY 1933 TO MAY 1933, INCLUSIVE:

TABLE

ALLOWANCE AMOUNT

DAILY COST CREDITED CHARGED TO

TO CADETS CADETS JANUARY 1933 ------------------------- $0.75 $23.25 $23.49 FEBRUARY 1933 ------------------------ .75 21.00 21.00 MARCH 1933 - -------------------------- .75 23.25 23.28 APRIL 1933 -------------------- -------.75 22.50 22.53 MAY 1933 - --------------------------- .75 23.25 23.25

IT IS REQUESTED THAT CONSIDERATION BE GIVEN TO THE FACTS SET FORTH ABOVE AND THAT A DECISION BE RENDERED ON THE FOLLOWING QUESTIONS:

A. IS THE COMMUTED RATION FOR CADETS A FIXED BASE TO WHICH THE 15 PERCENT REDUCTION PRESCRIBED BY THE EXECUTIVE ORDERS CITED IS APPLICABLE?

B. IS THE COMMUTED RATION FOR CADETS TO BE CONSIDERED AS COMPENSATION WITHIN THE PURVIEW OF THE ACT OF MARCH 20, 1933, SUPRA?

C. IF B IS ANSWERED IN THE AFFIRMATIVE, IS THE PERCENTAGE OF REDUCTION IN THE COMMUTED VALUE OF THE RATION TO BE COMPUTED ON THE BASIS OF 80 CENTS PER DIEM IN EFFECT ON JUNE 30, 1928, AND ON JUNE 30, 1932, OR ON THE BASIS OF 75 CENTS PER DIEM IN EFFECT ON APRIL 1, 1933, THE EFFECTIVE DATE OF THE ACT OF MARCH 20, 1933?

THE DECISIONS OF JUNE 20, 1933, A-45365, AND JULY 6, 1933, A-49751, 13 COMP. GEN. 3, AND JULY 8, 1933, A-49756, 13 COMP. GEN. 6, IN WHICH IT WAS HELD THAT THE 15 PERCENT REDUCTION PRESCRIBED BY THE EXECUTIVE ORDER OF MARCH 28, 1933, UNDER TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, WAS NOT APPLICABLE TO EMPLOYEES OF THOSE EMERGENCY OR TEMPORARY ORGANIZATIONS ESTABLISHED AFTER APRIL 1, 1933, AND WHICH WERE EXPRESSLY EXCEPTED FROM THE CIVIL SERVICE RULES AND REGULATIONS AND THE CLASSIFICATION ACTS, HAVE NO APPLICATION TO THE SUBJECT MATTER OF YOUR SUBMISSION AS THEY RESTED UPON THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF MARCH 20, 1933, WHICH PROVIDES---

FOR THAT PORTION OF THE FISCAL YEAR 1933 BEGINNING WITH THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED, AND FOR THE FISCAL YEAR ENDING JUNE 30, 1934, THE COMPENSATION OF EVERY OFFICER OR EMPLOYEE SHALL BE DETERMINED AS FOLLOWS:

(A) THE COMPENSATION WHICH SUCH OFFICER OR EMPLOYEE WOULD RECEIVE UNDER THE PROVISIONS OF ANY EXISTING LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER SHALL FIRST BE DETERMINED AS THOUGH THIS TITLE (EXCEPT SECTION 4) HAD NOT BEEN ENACTED.

(B) THE COMPENSATION AS DETERMINED UNDER SUBPARAGRAPH (A) OF THIS SECTION SHALL BE REDUCED BY THE PERCENTAGE, IF ANY, DETERMINED IN ACCORDANCE WITH SECTION 3 OF THIS TITLE.

AS THE VALUE OF THE COMMUTED RATION FOR MIDSHIPMEN AT THE NAVAL ACADEMY IS PRESCRIBED BY STATUTE IT IS POSSIBLE TO ASCERTAIN THE VALUE THEREOF UNDER "AN EXISTING LAW" OTHER THAN THE ECONOMY ACTS AND THE VALUE SO ASCERTAINED IS ACCORDINGLY SUBJECT TO THE 15 PERCENT REDUCTION. ALL OF THE OTHER ARGUMENTS ADVANCED IN YOUR SUBMISSION WERE CONSIDERED AND ANSWERED IN THE DECISION OF MAY 19, 1933, TO THE SECRETARY OF THE NAVY, A- 49018.

QUESTIONS A AND B ARE ANSWERED IN THE AFFIRMATIVE, THE 15 PERCENT REDUCTION (QUESTION C) TO BE APPLIED TO AND BASED UPON THE 75-CENT RATION ALLOWANCE IN EFFECT APRIL 1, 1933.

THE FOREGOING ANSWERS YOUR QUESTIONS AS SUBMITTED. HOWEVER, IT IS PROPER TO POINT OUT THAT THE DECISION OF MAY 19, 1933, A-49018, WAS BASED ON THE FACTS THEREIN SET OUT, WHICH SHOWED CONCLUSIVELY THAT THE COMMUTATION OF RATIONS FOR MIDSHIPMEN IS COMPENSATION, THE AMOUNT BEING ENTERED IN THEIR ACCOUNT AND ANY UNUSED PORTION PAID TO THEM. ON THIS STATE OF FACTS, IT IS OBVIOUS THAT COMMUTATION OF RATIONS FOR MIDSHIPMEN FROM APRIL 1, 1933, TO DECEMBER 31, 1933, MUST BE REDUCED IN ACCORDANCE WITH THE ACT OF MARCH 20, 1933, AND THE EXECUTIVE ORDERS OF THE PRESIDENT, AND THAT THE COMMUTED VALUE OF THE RATION DURING THIS PERIOD IS $0.6375. UNDER SECTION 19 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, CADETS AT THE MILITARY ACADEMY RECEIVE ONLY "THE SAME PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW FOR MIDSHIPMEN OF THE Y.' IT IS THEREFORE IMMATERIAL WHETHER THE MESS AT THE MILITARY ACADEMY IS CONDUCTED ON A DIFFERENT BASIS THAN THAT AT THE NAVAL ACADEMY AND THAT THE RATION THERE MAY COST MORE. IN NO CIRCUMSTANCES CAN THE CADET BE CREDITED WITH COMMUTATION OF RATIONS IN AN AMOUNT GREATER THAN IS UNDER THE LAW AUTHORIZED TO BE CREDITED TO MIDSHIPMEN AT THE NAVAL ACADEMY.