A-90200, NOVEMBER 18, 1937, 17 COMP. GEN. 406

A-90200: Nov 18, 1937

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUBSISTENCE - MESSES - RETIRED NAVY OFFICER ON RECEIVING SHIP AS COURT MARTIAL PRISONER THE NAVY APPROPRIATION "MISCELLANEOUS EXPENSES" FOR THE FISCAL YEAR 1938 IS NOT AVAILABLE FOR PAYMENT TO MESSES FOR SUBSISTENCE FURNISHED A RETIRED NAVAL OFFICER WHILE IN THE STATUS OF A GENERAL COURT-MARTIAL PRISONER ABOARD A RECEIVING SHIP CLASSIFIED AS A "SHORE ESTABLISHMENT. " IS AVAILABLE FOR PAYMENT OF THE SUM OF $97.50 TO THE WARDROOM MESS OF THE RECEIVING SHIP AT NEW YORK. YOU STATE THAT LIEUTENANT ALDEN WAS SUBSISTED IN THE WARDROOM MESS CONDUCTED ABOARD THE RECEIVING SHIP AT NEW YORK FOR A PERIOD OF 65 DAYS (INCLUSIVE DATES NOT STATED) WHILE IN THE STATUS OF A GENERAL COURT- MARTIAL PRISONER ABOARD SAID RECEIVING SHIP.

A-90200, NOVEMBER 18, 1937, 17 COMP. GEN. 406

SUBSISTENCE - MESSES - RETIRED NAVY OFFICER ON RECEIVING SHIP AS COURT MARTIAL PRISONER THE NAVY APPROPRIATION "MISCELLANEOUS EXPENSES" FOR THE FISCAL YEAR 1938 IS NOT AVAILABLE FOR PAYMENT TO MESSES FOR SUBSISTENCE FURNISHED A RETIRED NAVAL OFFICER WHILE IN THE STATUS OF A GENERAL COURT-MARTIAL PRISONER ABOARD A RECEIVING SHIP CLASSIFIED AS A "SHORE ESTABLISHMENT," EITHER UNDER AUTHORITY OF THE NAVY REGULATION PROVIDING FOR PAYMENT TO MESSES FOR SUBSISTENCE OF PRISONERS "EMBARKED" IN NAVAL VESSELS, OR OTHERWISE, THE REGULATION INVOLVED IMPLYING PRESENCE ON BOARD FOR TRANSPORTATION PURPOSES AND THE DECISIONS IN 17 COMP. DEC. 743 AND 71 MS. COMP. DEC. 655, BEING APPLICABLE TO RETIRED OFFICERS AS WELL AS THOSE ON THE ACTIVE LIST, WHETHER OR NOT THEIR COMPENSATION EXPRESSLY INCLUDES A SUBSISTENCE ALLOWANCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 18, 1937.

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 2, 1937, REQUESTING DECISION WHETHER THE APPROPRIATION "MISCELLANEOUS EXPENSES" FOR THE FISCAL YEAR 1938, COVERING "EXPENSES OF PRISONERS AND PRISONS," IS AVAILABLE FOR PAYMENT OF THE SUM OF $97.50 TO THE WARDROOM MESS OF THE RECEIVING SHIP AT NEW YORK, FOR SUBSISTENCE AT THE RATE OF $1.50 PER DAY OF LT. HAROLD W. ALDEN, UNITED STATES NAVY, RETIRED, WHILE A GENERAL COURT-MARTIAL PRISONER ABOARD SAID SHIP AND SUBSISTED IN THE WARDROOM MESS THEREOF.

YOU STATE THAT LIEUTENANT ALDEN WAS SUBSISTED IN THE WARDROOM MESS CONDUCTED ABOARD THE RECEIVING SHIP AT NEW YORK FOR A PERIOD OF 65 DAYS (INCLUSIVE DATES NOT STATED) WHILE IN THE STATUS OF A GENERAL COURT- MARTIAL PRISONER ABOARD SAID RECEIVING SHIP. THE QUESTION IS WHETHER LIEUTENANT ALDEN'S SUBSISTENCE AT THE RATE OF $1.50 PER DAY MAY BE PAID FROM THE CURRENT APPROPRIATION (MISCELLANEOUS EXPENSES) UNDER 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 PRIMARY MEANING OF THE WORD "EMBARK" IS "TO GO ON BOARD A VESSEL OR BOAT FOR A VOYAGE" (WEBSTER'S INTERNATIONAL DICTIONARY). THE EXPRESSION IN THE QUOTED REGULATION "PRISONERS EMBARKED IN A NAVAL VESSEL" IMPLIES THE PRESENCE OF PRISONERS ON BOARD A VESSEL FOR PURPOSE OF TRANSPORTATION. THE NAVY REGULATIONS HAVE LONG CONTAINED A PROVISION SUBSTANTIALLY THE SAME AS ARTICLE 1824. ARTICLE 1498 OF THE 1870 REGULATIONS PROVIDING FOR THE SUBSISTENCE OF PRISONERS ON BOARD PUBLIC VESSELS CONTAINED THE FOLLOWING:

* * * NO OTHER CHARGE SHALL BE MADE NOR SHALL ANY SUCH PERSON CONVEYED ON BOARD SUCH VESSELS BE REQUIRED TO PAY THE MESS IN WHICH HE MAY LIVE ANY COMPENSATION FOR SUBSISTENCE OR PASSAGE.

THE WORD "PASSAGE" THEREIN LIKE THE WORD "EMBARKED" IN THE PRESENT REGULATIONS CLEARLY INDICATES A PRISONER ON BOARD THE VESSEL FOR PURPOSES OF TRANSPORTATION. THE RECEIVING SHIP AT NEW YORK SEEMS NOT TO BE A SHIP IN COMMISSION BUT IS CLASSIFIED AS A "SHORE ESTABLISHMENT.' PAGE 309, NAVY DIRECTORY, APRIL 1, 1937. IT IS OBVIOUS THAT ARTICLE 1824, NAVY REGULATIONS, DOES NOT APPLY TO A SITUATION WHERE A NAVAL PRISONER IS SUBSISTED IN AN OFFICERS' MESS AT A SHORE STATION AND THEREFORE SAID ARTICLE HAS NO APPLICATION TO THE SUBSISTENCE OF LIEUTENANT ALDEN ON THE RECEIVING SHIP AT NEW YORK (25 COMP. DEC. 459).

AS TO THE FURTHER QUESTION WHETHER, NOTWITHSTANDING ARTICLE 1824 OF THE REGULATIONS DOES NOT APPLY, THE APPROPRIATION "MISCELLANEOUS EXPENSES" IS OTHERWISE AVAILABLE TO PAY COST OF SUBSISTENCE OF LIEUTENANT ALDEN IN THE CIRCUMSTANCES INVOLVED, THE ANSWER MUST BE IN THE NEGATIVE. THE DECISION OF NOVEMBER 16, 1914 (71 MS. COMP. DEC. 655), TO WHICH YOU REFER, STATES THE CORRECT RULE. IN THAT CASE THE OFFICER CONCERNED REPORTED ON BOARD THE VESSEL "UNDER ARREST WITH PROPER GUARD.' HOWEVER, HE WAS NOT A PRISONER ON BOARD THE VESSEL FOR TRANSPORTATION BUT ONLY FOR PURPOSES OF TRIAL AND WHILE AWAITING THE ACTION OF THE CONVENING AUTHORITY. FOR THAT REASON THE REGULATION (ARTICLE 4518, NAVY REGULATIONS, 1913, SUBSTANTIALLY THE SAME AS ARTICLE 1824 IN THE PRESENT REGULATION) WAS HELD NOT APPLICABLE. ALSO BY REASON OF THE FACT THAT THE OFFICER WAS ALSO IN A PAY STATUS IT WAS HELD THAT THE MESS WAS NOT ENTITLED TO REIMBURSEMENT AT PUBLIC EXPENSE BUT MUST LOOK TO THE OFFICER FOR THE PAYMENT OF HIS SUBSISTENCE. IN 17 COMP. DEC. 743, THERE WAS CONSIDERED THE CASE OF A WARRANT OFFICER UNDER ARREST AND SUBSISTED IN THE WARRANT OFFICERS' MESS ON BOARD THE U.S.S. PHILADELPHIA AND WHILE IN SUCH STATUS HIS APPOINTMENT WAS REVOKED. IT WAS HELD THAT THE OFFICER WAS PERSONALLY RESPONSIBLE TO THE MESS FOR HIS SUBSISTENCE UNTIL HIS APPOINTMENT WAS REVOKED AND THEREAFTER THE APPROPRIATION "PAY, MISCELLANEOUS" WAS AVAILABLE TO REIMBURSE THE MESS.

THE RULE APPLIED IN THOSE DECISIONS APPLIES TO ALL OFFICERS IN A PAY STATUS WHETHER OR NOT COMPENSATION EXPRESSLY INCLUDES A SUBSISTENCE ALLOWANCE. IT APPLIES TO AN OFFICER ON THE RETIRED LIST ORDERED TO A PLACE FOR GENERAL COURT-MARTIAL THE SAME AS TO OFFICERS ON THE ACTIVE LIST. THE RETIRED OFFICER'S PAY IS INTENDED TO COVER HIS LIVING EXPENSES INCLUDING SUBSISTENCE. IT IS NOT STATED THAT LIEUTENANT ALDEN WAS ACTUALLY UNDER ARREST AND IT IS NOT APPARENT THAT ANYTHING MORE THAN AN ORDER TO APPEAR BEFORE THE COURT WAS NECESSARY, SO LONG AS HE WAS IN A PAY STATUS. WHETHER OR NOT LIEUTENANT ALDEN WAS ACTUALLY UNDER ARREST DURING THE PERIOD IN QUESTION, THE FACT THAT HE IS RETIRED DOES NOT TAKE HIS CASE OUT OF THE RULE APPLIED TO OFFICERS ON THE ACTIVE LIST. SO LONG AS HE REMAINED IN A PAY STATUS HE MUST BEAR THE EXPENSES OF HIS OWN SUBSISTENCE. IN THE CIRCUMSTANCES APPEARING, THE CURRENT APPROPRIATION "MISCELLANEOUS EXPENSES" IS NOT AVAILABLE TO REIMBURSE THE WARDROOM MESS FOR THE SUBSISTENCE OF LIEUTENANT ALDEN DURING THE PERIOD IN QUESTION.