A-8952, JULY 16, 1925, 5 COMP. GEN. 33

A-8952: Jul 16, 1925

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ARE ENLISTED MEN OF THE REGULAR COAST GUARD WITHIN THE MEANING OF THE ACT OF JUNE 4. WHERE THE CIRCUMSTANCES OF DEATH AND DEPENDENTS ARE OTHERWISE WITHIN THE PROVISIONS OF SAID ACT. WHEREIN WAS DISALLOWED THE CLAIM OF MRS. THE REPORT FURTHER SHOWS THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY. THE DISALLOWANCE IN THIS CASE WAS THAT THE ACT BY ITS SPECIFIC PROVISION WAS NOT APPLICABLE EXCEPT TO ENLISTED MEN OF THE REGULAR COAST GUARD AND THAT BITTER WAS SERVING IN A "SPECIAL TEMPORARY ENLISTMENT.'. WHILE IT IS SUGGESTED IN YOUR LETTER THAT THE PROVISIONS OF THE ACT ARE MADE APPLICABLE TO "THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD" WITHOUT QUALIFICATION.

A-8952, JULY 16, 1925, 5 COMP. GEN. 33

GRATUITIES, SIX MONTHS' DEATH - COAST GUARD ENLISTED MEN OF THE COAST GUARD SERVING IN THE SPECIAL TEMPORARY ENLISTMENTS AUTHORIZED BY THE ACT OF APRIL 21, 1924, 43 STAT. 106, ARE ENLISTED MEN OF THE REGULAR COAST GUARD WITHIN THE MEANING OF THE ACT OF JUNE 4, 1920, 41 STAT. 824, AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, AND WHERE THE CIRCUMSTANCES OF DEATH AND DEPENDENTS ARE OTHERWISE WITHIN THE PROVISIONS OF SAID ACT, THE DEATH GRATUITY MAY BE PAID TO THE WIDOW, CHILD, OR DESIGNATED DEPENDENT RELATIVE OF SUCH MAN DYING IN THE SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 16, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 31, 1925, REQUESTING REVIEW OF SETTLEMENT NO. C-51046, DATED FEBRUARY 18, 1925, WHEREIN WAS DISALLOWED THE CLAIM OF MRS. ESTHER BITTER, AS MOTHER AND DESIGNATED BENEFICIARY OF FRANK R. BITTER, ENGINE MAN, FIRST CLASS, TEMPORARY, UNITED STATES COAST GUARD, DECEASED, FOR AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY HER SON AT THE DATE OF HIS DEATH UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, 41 STAT. 824.

IT APPEARS THAT FRANK R. BITTER FIRST ENLISTED IN A SPECIAL TEMPORARY ENLISTMENT IN THE UNITED STATES COAST GUARD JULY 3, 1924, IN THE RATING OF ENGINE MAN, FIRST CLASS, AND SERVED AS SUCH UNTIL THE DATE OF HIS DEATH JULY 14, 1924. THE REPORT OF A BOARD OF INVESTIGATION SHOWS THAT HE BROKE HIS NECK BY DIVING INTO SHALLOW WATER IN THE DELAWARE RIVER CAUSING HIS DEATH. THE REPORT FURTHER SHOWS THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT.

THE SAID ACT PROVIDES:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS - PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. THE SECRETARY OF THE NAVY SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN OR NURSE HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS OR HER DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE NAVY AND PAY OF THE MARINE CORPS, RESPECTIVELY; PROVIDED, THAT NOTHING IN THIS SECTION OR IN OTHER EXISTING LEGISLATION SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS SECTION APPLICABLE TO OFFICERS, ENLISTED MEN, OR NURSES OF ANY FORCES OF THE NAVY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR NAVY AND MARINE CORPS, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY TO COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROBATIONARY APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD, AND THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY.

THE DISALLOWANCE IN THIS CASE WAS THAT THE ACT BY ITS SPECIFIC PROVISION WAS NOT APPLICABLE EXCEPT TO ENLISTED MEN OF THE REGULAR COAST GUARD AND THAT BITTER WAS SERVING IN A "SPECIAL TEMPORARY ENLISTMENT.'

WHILE IT IS SUGGESTED IN YOUR LETTER THAT THE PROVISIONS OF THE ACT ARE MADE APPLICABLE TO "THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD" WITHOUT QUALIFICATION, THE ENTIRE SECTION IS MADE APPLICABLE AND WHENEVER BY AUTHORITY OF STATUTE THE COAST GUARD HAS OFFICERS AND ENLISTED MEN OF FORCES OTHER THAN THOSE OF THE REGULAR COAST GUARD, THE LIMITATIONS OF THE STATUTE MUST CONTROL IN THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AS WHEN SIMILAR CONDITIONS EXIST IN THE NAVY OR MARINE CORPS.

THE EVIDENCE OF DEPENDENCY OF THE MOTHER IS SUFFICIENTLY ESTABLISHED AND THE QUESTION FOR CONSIDERATION IS WHETHER BITTER WAS AN ENLISTED MAN OF A FORCE OTHER THAN THE REGULAR COAST GUARD.

THE ACT OF APRIL 21, 1924, 43 STAT. 105, ENTITLED,"AN ACT TO AUTHORIZE A TEMPORARY INCREASE OF THE COAST GUARD FOR LAW ENFORCEMENT," CREATES TEMPORARY OFFICES IN COMMISSIONED GRADES; AUTHORIZES PROMOTION OF PERMANENT COMMISSIONED OFFICERS OF THE COAST GUARD TO FILL TEMPORARY OFFICES; BY SECTION 4 AUTHORIZES THE APPOINTMENT AS COMMISSIONED OFFICERS OF PERSONS FROM CIVIL LIFE AND THE APPOINTMENT OF WARRANT OFFICERS AND ENLISTED MEN OF THE PERMANENT COAST GUARD TO SUCH TEMPORARY OFFICES WITH RIGHT OF REVERSION TO THEIR PERMANENT GRADE OR RATING AND PROVIDES THAT:

(C) THE NAMES OF ALL PERSONS APPOINTED UNDER THIS SECTION SHALL BE PLACED UPON A SPECIAL LIST OF TEMPORARY OFFICERS, AS DISTINGUISHED FROM THE LIST OF PERMANENT OFFICERS, OF THE COAST GUARD. * * *

BY SECTION 5 TWENTY-FIVE TEMPORARY CHIEF WARRANT OFFICERS ARE AUTHORIZED, AND BY SECTIONS 6 AND 8 IT IS PROVIDED:

SEC. 6 (A) UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO APPOINT TEMPORARY WARRANT OFFICERS, AND TO MAKE SPECIAL TEMPORARY ENLISTMENTS, IN THE COAST GUARD. NO PERSON SHALL BE ENTITLED TO RETIREMENT BECAUSE OF HIS TEMPORARY APPOINTMENT OR ENLISTMENT UNDER THIS SECTION.

(B) ANY ENLISTED MAN IN THE PERMANENT COAST GUARD MAY BE APPOINTED AS A TEMPORARY WARRANT OFFICER. NOTWITHSTANDING SUCH TEMPORARY APPOINTMENT, ANY SUCH ENLISTED MAN SHALL BE ENTITLED TO RETIREMENT IN THE SAME MANNER AS THOUGH HE HAD CONTINUED TO HOLD HIS PERMANENT RATING, AND UPON THE TERMINATION OF SUCH TEMPORARY APPOINTMENT SHALL BE ENTITLED TO REVERT TO SUCH RATING. SERVICE UNDER ANY SUCH TEMPORARY APPOINTMENT SHALL BE INCLUDED IN DETERMINING LENGTH OF SERVICE AS AN ENLISTED MAN.

SEC. 8. NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE GRADE, RANK, PAY, ALLOWANCES, OR BENEFITS THAT ANY PERSON IN THE COAST GUARD WOULD HAVE BEEN ENTITLED TO IF THIS ACT HAD NOT BECOME LAW.

IT IS ALSO SUGGESTED THAT SECTION 8 PRESERVES ALL BENEFITS, THAT AMONG THE BENEFITS ACCRUING TO MEMBERS OF THE COAST GUARD IS THE SIX MONTHS' DEATH GRATUITY PAYABLE TO THE WIDOW, CHILD, OR DESIGNATED DEPENDENT RELATIVE SHOULD THE MEMBER DIE IN THE SERVICE UNDER CIRCUMSTANCES WITHIN THE ACT. I THINK IT MUST BE HELD THAT THE SAVING CLAUSE IS APPLICABLE ONLY IN CASE THE BENEFITS WOULD HAVE ACCRUED NOTWITHSTANDING THE ACT AND THAT IF A PERSON'S STATUS IN THE COAST GUARD IS DEPENDENT ENTIRELY UPON THE ACT, SECTION 8 WOULD HAVE NO APPLICATION.

IN THE CONSTRUCTION OF THE ACT OF JUNE 4, 1920, IT IS PROPER TO CONSIDER WHAT THE SITUATION WAS IN THE NAVY WHEN THAT ACT WAS PASSED AND WHAT FORCES OF THE NAVY AND MARINE CORPS WERE BEING EXCLUDED. AT THAT TIME THERE WERE SERVING IN THE NAVY OFFICERS, WARRANT OFFICERS, ENLISTED MEN, AND NURSES OF THE NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 587. PERSONNEL OF THE NAVAL RESERVE FORCE WERE CLEARLY DESIGNED TO BE EXCLUDED FROM THE BENEFITS OF THE ACT OF JUNE 4, 1920.

BY THE ACT OF MAY 22, 1917, 40 STAT. 84, THE AUTHORIZED ENLISTED STRENGTH OF THE ACTIVE LIST OF THE NAVY WAS TEMPORARILY INCREASED FROM 87,000 TO 150,000; BY SECTION 3 IT WAS PROVIDED THAT ENLISTMENTS IN THE NAVY AND MARINE CORPS DURING SUCH TIME AS THE UNITED STATES MIGHT BE AT WAR SHOULD BE FOR FOUR YEARS OR FOR SUCH SHORTER PERIOD OR PERIODS AS THE PRESIDENT MIGHT PRESCRIBE OR FOR THE DURATION OF THE PRESENT WAR. SECTION 4 PROVIDED FOR ADDITIONAL COMMISSIONED OFFICERS IN THE NAVY AND MARINE CORPS BASED UPON THE TEMPORARY INCREASE THEREIN AUTHORIZED IN THE NUMBER OF ENLISTED MEN, TO BE SECURED BY TEMPORARY APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE; BY SECTION 5 IT WAS PROVIDED THAT TEMPORARY APPOINTMENTS IN HIGHER COMMISSIONED GRADES MIGHT BE FILLED BY THE TEMPORARY APPOINTMENT OF COMMISSIONED OFFICERS HOLDING PERMANENT AND PROBATIONARY APPOINTMENTS, COMMISSIONED WARRANT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE REGULAR NAVY WITH A PROVISION FOR REVERSION UPON TERMINATION OF THE TEMPORARY APPOINTMENT. THE SPECIFIC LANGUAGE CONTAINED IN THE FIRST PROVISO OF THE ACT OF JUNE 4, 1920, EXCLUDED TEMPORARY OFFICERS WHO DID NOT HAVE A PERMANENT STATUS IN THE REGULAR NAVY. THE INCREASE IN THE ENLISTED FORCE AUTHORIZED BY THE ACT OF MAY 22, 1917, WAS AN INCREASE IN THE REGULAR NAVY, AND IF ON JUNE 4, 1920, ANY MEN WERE THEN SERVING WHO HAD BEEN ENLISTED IN THE REGULAR NAVY UNDER THAT PROVISION, WHETHER FOR FOUR YEARS, FOR THE DURATION OF THE WAR, OR A SHORTER PERIOD, THEY WERE ENTITLED TO THE BENEFITS OF THE ACT OF JUNE 4, 1920. ENLISTED MEN OF THE NAVY ARE ENTITLED TO RETIREMENT ONLY AFTER 30 YEARS' SERVICE.

THE ACT OF MAY 22, 1917, RELATING TO THE TEMPORARY INCREASE OF THE NAVY IS SPECIALLY TO BE NOTED AS THE ACT OF APRIL 21, 1924, AUTHORIZING THE TEMPORARY INCREASE IN THE COAST GUARD SEEMS TO HAVE BEEN IN SOME RESPECTS MODELED ON THE 1917 NAVAL ACT AND TO HAVE BEEN DESIGNED TO OBVIATE SOME OF THE DIFFICULTIES EXPERIENCED IN THE APPLICATION OF THAT LAW.

IT IS THUS SEEN THAT THE CLASSES DESIGNED TO BE EXCLUDED BY THE FIRST PROVISO IN THE ACT OF JUNE 4, 1920, WERE PERSONNEL OF THE NAVAL RESERVE FORCE, TEMPORARY OFFICERS OF ALL GRADES OR CLASSES WITHOUT A STATUS IN THE REGULAR NAVY, AND IN ADDITION ANY OFFICERS OR ENLISTED MEN OF THE NATIONAL NAVAL VOLUNTEERS AND NAVAL MILITIA (IF ANY) ON ACTIVE DUTY WITH THE NAVY.

IN THE ACT OF APRIL 21, 1924, NO INCREASE IN THE ENLISTED FORCE OF THE COAST GUARD IS PROVIDED FOR. A NEW FORM OF ENLISTMENT IS AUTHORIZED, BUT WHATEVER INCREASE IN THE ENLISTED FORCE WAS CONTEMPLATED WAS LEFT TO BE PROVIDED FOR BY INCREASED APPROPRIATIONS FOR THE COAST GUARD. BY THE DEFICIENCY ACT OF DECEMBER 5, 1924, 43 STAT. 672, FOR THE FISCAL YEARS 1924 AND 1925, $5,413,600 WAS PROVIDED FOR PAY OF OFFICERS, ETC., AND ENLISTED MEN OF THE COAST GUARD IN ADDITION TO THE $7,659,924 PROVIDED IN THE ACT OF APRIL 4, 1924, 43 STAT. 73, UNDER THIS HEADING FOR THE FISCAL YEAR 1925, AND $13,675,035, IS PROVIDED UNDER THIS HEADING FOR THE FISCAL YEAR 1926 IN THE ACT OF JANUARY 22, 1925, 43 STAT. 772; $8,300,000 AND THE TRANSFER FROM ANOTHER APPROPRIATION OF $397,000 WAS PROVIDED FOR THE FISCAL YEAR 1924, 42 STAT. 1098, SUPPLEMENTED BY THE DEFICIENCY ACT OF APRIL 2, 1924, 43 STAT. 50, BY $945,179.

THE TERM OF ENLISTMENT IN THE COAST GUARD IS UNDER THE ACT OF JANUARY 28, 1915, 38 STAT. 801, THAT PROVIDED FOR THE REVENUE CUTTER SERVICE IN THE ACT OF MAY 26, 1906, 34 STAT. 200, WHICH PROVIDES:

THAT ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE REVENUE-CUTTER SERVICE SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE.

THE PROVISION FOR RETIREMENT OF OFFICERS FOR PHYSICAL DISABILITY CONTAINED IN THE ACT OF APRIL 12, 1902, 32 STAT. 100, WAS EXTENDED TO ENLISTED MEN OF THE COAST GUARD BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 802. THE NEW FORM OF ENLISTMENT ESTABLISHED BY THE ACT OF APRIL 21, 1924, WAS CLEARLY DESIGNED TO EXCLUDE MEN OF LIMITED SERVICE FROM THE BENEFITS OF THE LIBERAL RETIREMENT PROVISIONS THAT ENLISTED MEN OF THE COAST GUARD HAVE; THE ENLISTMENT ALTHOUGH DENOMINATED "SPECIAL TEMPORARY" IS AN ENLISTMENT IN THE COAST GUARD FOR THE USUAL TERM OF SERVICE. COAST GUARD GENERAL ORDER NO. 4, ISSUED BY THE SECRETARY OF THE TREASURY, APRIL 22, 1924, BY PARAGRAPH 2 PROVIDES FOR TWO FORMS OF ENLISTMENT, (1) SPECIAL TEMPORARY ENLISTMENTS AND, (2) ENLISTMENTS IN THE REGULAR ESTABLISHMENT OF THE COAST GUARD AND PROVIDES:

UNTIL FURTHER DIRECTED BY COAST GUARD HEADQUARTERS ALL ORIGINAL ENLISTMENTS AND ALL REENLISTMENTS AFTER THREE MONTHS' SEPARATION FROM THE SERVICE SHALL BE SPECIAL TEMPORARY ENLISTMENTS. ALL REENLISTMENTS OF PERSONS DISCHARGED FROM A SPECIAL TEMPORARY ENLISTMENT SHALL BE SPECIAL TEMPORARY REENLISTMENTS, UNLESS OTHERWISE DIRECTED BY HEADQUARTERS. * *

NO SEPARATE AND DISTINCT ENLISTED FORCE IN THE COAST GUARD WAS CREATED BY THE ACT OF APRIL 21, 1924; INCREASED APPROPRIATIONS WERE PROVIDED FOR INCREASING THE REGULAR FORCE BY OTHER ACTS AND A SPECIAL FORM OF ENLISTMENT WAS AUTHORIZED WHICH OPERATED TO DEPRIVE PERSONS IN SUCH AN ENLISTMENT OF RIGHTS TO RETIREMENT; PERSONS SERVING IN SUCH SPECIAL TEMPORARY ENLISTMENTS ARE MEMBERS OF THE REGULAR COAST GUARD WITHIN THE MEANING OF THE ACT OF JUNE 4, 1920.

UPON REVIEW THE SETTLEMENT IS MODIFIED AND $504 (SIX TIMES $84, THE MONTHLY PAY OF ENGINE MAN, FIRST CLASS, FRANK R. BITTER, UNITED STATES COAST GUARD) IS CERTIFIED DUE MRS. ESTHER BITTER, MOTHER AND DESIGNATED DEPENDENT RELATIVE OF SAID FRANK R. BITTER.