A-57186, AUGUST 25, 1934, 14 COMP. GEN. 166

A-57186: Aug 25, 1934

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SUBSISTENCE OF OFFICER OF THE NAVY WHILE PAY IS STOPPED UNDER SECTION 1766. REVISED STATUTES THERE IS NO AUTHORITY FOR FURNISHING SUBSISTENCE IN KIND TO AN OFFICER OF THE NAVY IN A PAY STATUS WHOSE PAY AND ALLOWANCES ARE STOPPED IN ACCORDANCE WITH SECTION 1766. DURING THE PERIOD WHILE THE PAY AND ALLOWANCES OF THIS OFFICER ARE SUSPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1766. WAS SUBSISTED IN THE SUBMARINE OFFICERS' MESS. THE QUESTION IS WHETHER SAID MESS MAY BE REIMBURSED AT THE RATE OF $1.50 PER DAY FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES. IT IS SUGGESTED THAT THE EXPENSE IN QUESTION COMES WITHIN THE PROVISIONS OF ARTICLE 1824. IT IS NOT APPARENT THAT THE SUBMARINE OFFICERS' MESS IN WHICH LIEUTENANT ROBINSON WAS SUBSISTED FROM JULY 1 TO 14.

A-57186, AUGUST 25, 1934, 14 COMP. GEN. 166

SUBSISTENCE OF OFFICER OF THE NAVY WHILE PAY IS STOPPED UNDER SECTION 1766, REVISED STATUTES THERE IS NO AUTHORITY FOR FURNISHING SUBSISTENCE IN KIND TO AN OFFICER OF THE NAVY IN A PAY STATUS WHOSE PAY AND ALLOWANCES ARE STOPPED IN ACCORDANCE WITH SECTION 1766, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 25, 1934:

THERE HAS BEEN RECEIVED YOUR 3RD INDORSEMENT OF AUGUST 13, 1934, REQUESTING DECISION:

* * * UPON THE SPECIFIC QUESTION SET FORTH IN PARAGRAPH 1 OF THE 2D INDORSEMENT HEREON, RELATIVE TO WHETHER THE COST OF SUBSISTENCE OF LIEUTENANT DON M. ROBINSON, SUPPLY CORPS, U.S. NAVY, MAY BE PAID FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES," AS CONTAINED IN THE NAVAL APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR, APPROVED MARCH 15, 1934 (PUBLIC, NO. 122, 73D CONGRESS), DURING THE PERIOD WHILE THE PAY AND ALLOWANCES OF THIS OFFICER ARE SUSPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1766, REVISED STATUTES.

2. UNDER DATE OF AUGUST 9, 1934, THE ACTING SECRETARY OF THE NAVY DIRECTED THAT THE COMMANDER, AIRCRAFT, BATTLE FORCE, BRING LIEUTENANT ROBINSON, SUPPLY CORPS, TO TRIAL BY GENERAL COURTS-MARTIAL UPON SUCH CHARGES AND SPECIFICATIONS AS MAY BE WARRANTED BY THE PAPERS IN THE CASE.

IT APPEARS THAT LIEUTENANT D. M. ROBINSON (SC) UNITED STATES NAVY, WAS SUBSISTED IN THE SUBMARINE OFFICERS' MESS, SUBMARINE BASE, COCO SOLO, CANAL ZONE, FOR THE PERIOD JULY 1 TO 14, 1934, AND THE QUESTION IS WHETHER SAID MESS MAY BE REIMBURSED AT THE RATE OF $1.50 PER DAY FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES, 1935.'

SAID APPROPRIATION PROVIDES FOR:

* * * EXPENSES OF COURTS-MARTIAL * * * PRISONERS AND PRISONS, COURTS OF INQUIRY, BOARDS OF INVESTIGATION * * *.

IT IS SUGGESTED THAT THE EXPENSE IN QUESTION COMES WITHIN THE PROVISIONS OF ARTICLE 1824, NAVY REGULATIONS, PROVIDING:

PRISONERS EMBARKED IN A NAVAL VESSEL SHALL BE SUBSISTED, AND PAYMENT SHALL BE MADE BY THE SUPPLY OFFICER TO MESSES FOR EACH PRISONER SUBSISTED THEREIN AT THE FOLLOWING DAILY RATES: CABIN, $2; WARDROOM, $1.50; OTHER OFFICERS' MESSES, $1. IF NOT IN AN OFFICERS' MESS, ONE RATION SHALL BE ALLOWED. NO OTHER CHARGE SHALL BE MADE, NOR SHALL ANY PERSON THUS SUBSISTED BE REQUIRED TO PAY ANY COMPENSATION TO THE MESS IN WHICH HE MAY LIVE.

THE LANGUAGE IN ARTICLE 1824, NAVY REGULATIONS,"PRISONERS EMBARKED IN A NAVAL VESSEL" LIMITS ITS APPLICATION TO PRISONERS SUBSISTED IN MESSESON BOARD VESSELS. IT IS NOT APPARENT THAT THE SUBMARINE OFFICERS' MESS IN WHICH LIEUTENANT ROBINSON WAS SUBSISTED FROM JULY 1 TO 14, 1934, IS A MESS MAINTAINED ON BOARD A VESSEL OR THAT LIEUTENANT ROBINSON WAS A "PRISONER" WITHIN THE STATUTE. ARTICLE 1824, NAVY REGULATIONS, HAS NO APPLICATION TO AN OFFICER SUBSISTED IN AN OFFICERS' MESS MAINTAINED ON SHORE. 25 COMP. DEC. 459.

WHETHER ON THE FACTS STATED IN PARAGRAPH 2 OF YOUR INDORSEMENT, THE STATUS OF LIEUTENANT ROBINSON WHILE BEING HELD AWAITING TRIAL BY GENERAL COURT-MARTIAL WAS THAT OF A "PRISONER" WITHIN THE APPROPRIATION ACT IS NOT HERE DETERMINED. THE STATUS OF AN OFFICER WHOSE PAY IS SUSPENDED UNDER SECTION 1766, REVISED STATUTES, IS SIMILAR TO THAT OF AN OFFICER WHO HAS BEEN OVERPAID AND FOR THAT REASON IS NOT ENTITLED TO ANY PAY UNTIL HIS ACCRUED PAY HAS LIQUIDATED THE OVERPAYMENT. IN SUCH CASE THE FACT THAT THE OFFICER MAY HAVE NO FUNDS TO MEET HIS MESS EXPENSES IS DUE TO THE OVERPAYMENT AND NOT TO THE FACT, IF IT BE A FACT, THAT HE HAS BEEN PLACED UNDER ARREST. 25 COMP.DEC. 459. THE SUSPENSION OF AN OFFICER'S PAY UNDER SECTION 1766, REVISED STATUTES, DOES NOT WORK A FORFEITURE OF HIS COMPENSATION BUT SIMPLY SUSPENDS HIS RIGHT TO RECEIVE ACCRUING COMPENSATION UNTIL HE HAS LIQUIDATED HIS INDEBTEDNESS. THE TEMPORARY DEPRIVATION OF PAY AND ALLOWANCES OVER THE PERIOD OF SUSPENSION IS NOT DUE TO THE OFFICER'S BEING UNDER ARREST DURING THE PERIOD HE MAY BE AWAITING TRIAL OR IS BEING TRIED, BUT IS DUE TO HIS FAILURE TO PROPERLY ACCOUNT FOR GOVERNMENT FUNDS. THE LAW DOES NOT AUTHORIZE THE FURNISHING OF SUBSISTENCE IN KIND TO AN OFFICER IN A PAY STATUS BUT TEMPORARILY WITHOUT FUNDS BY REASON OF HIS PAY BEING REQUIRED TO LIQUIDATE AN OVERPAYMENT. COMP. DEC. 743; 25 ID. 459; 26 ID. 884. FOR THE SAME REASON THE LAW DOES NOT AUTHORIZE FURNISHING AN OFFICER WITH SUBSISTENCE DURING A PERIOD HIS CURRENT PAY AND ALLOWANCES ARE SUSPENDED UNDER SECTION 1766, REVISED STATUTES.

ACCORDINGLY, YOU ARE ADVISED THAT THE COST OF SUBSISTENCE OF LIEUTENANT D. M. ROBINSON, SUPPLY CORPS, UNITED STATES NAVY, DURING THE PERIOD HIS PAY AND ALLOWANCES ARE SUSPENDED IN ACCORDANCE WITH SECTION 1766, REVISED STATUTES, IS NOT CHARGEABLE TO THE UNITED STATES, AND MAY NOT BE PAID FROM THE APPROPRIATION,"MISCELLANEOUS EXPENSES, 1935.'