B-127270, APR. 9, 1956

B-127270, APR. 9, 1956

TO A. R. PILKERTON, AUTHORIZED CERTIFYING OFFICER AND ACCOUNTING OFFICER, DISTRICT OF COLUMBIA:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT A VOUCHER STATED IN FAVOR OF W. H. ABENDROTH, NATIONAL GUARD ARMORY, 2001 EAST CAPITOL STREET, WASHINGTON 3, D.C., AND REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR HIS SERVICES AS COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD (RANK OF BRIGADIER GENERAL, PAY GRADE O-7, WITH DEPENDENTS AND WITH OVER THIRTY YEARS' SERVICE- FOR THE MONTHS OF JANUARY AND FEBRUARY, 1956.

IT APPEARS THAT ON JULY 16, 1949, WILLIAM H. ABENDROTH WAS APPOINTED BY THE PRESIDENT (UNDER AUTHORITY OF SECTION 39-201, DISTRICT OF COLUMBIA CODE) AS COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD; THAT HE HAS RECEIVED COMPENSATION FOR HIS SERVICES BY VIRTUE OF BEING ON THE ACTIVE-DUTY PAY ROLL OF THE ARMY OF THE UNITED STATES; AND THAT ON DECEMBER 31, 1955, HAVING REACHED THE AGE OF 60 YEARS, HE WAS RELEASED FROM ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES. HOWEVER, HIS NATIONAL GUARD STATUS AND HIS ASSIGNMENT AS COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD CONTINUE IN EFFECT. IT IS FURTHER STATED THAT "JUSTIFICATION FOR PAYMENT OF THIS VOUCHER IS PREDICATED UPON THE FACT THAT THE COMMANDING GENERAL HAS NOT BEEN RELIEVED OF HIS COMMAND BY THE PRESIDENT OF THE UNITED STATES" AND THAT "CONSEQUENTLY, HE IS STILL COMMANDING GENERAL OF THE MILITIA OF THE DISTRICT OF COLUMBIA, HAS CONTINUED TO PERFORM FULL TIME DUTY SINCE DECEMBER 31, 1955, AND SHOULD BE PAID FOR SUCH SERVICES.'

THE PRECISE QUESTION PRESENTED IS WHETHER THE PROPOSED CHARGE TO THE APPROPRIATION FOR THE DISTRICT OF COLUMBIA NATIONAL GUARD CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1956, IS PROPER.

THE MILITIA (NOW NATIONAL GUARD) OF THE DISTRICT OF COLUMBIA WAS ESTABLISHED UNDER THE ACT OF MARCH 1, 1889, 25 STAT. 772, LATER AMENDED BY THE ACT OF FEBRUARY 18, 1909, 35 STAT. 629. SECTION 7 OF THE 1889 ACT, 25 STAT. 773 (SECTION 39-201, DISTRICT OF COLUMBIA CODE) SPECIFICALLY PROVIDES THAT THERE SHALL BE APPOINTED AND COMMISSIONED BY THE PRESIDENT OF THE UNITED STATES A COMMANDING GENERAL OF THE MILITIA OF THE DISTRICT OF COLUMBIA "WITH THE RANK OF BRIGADIER GENERAL, WHO SHALL HOLD OFFICE UNTIL HIS SUCCESSOR IS APPOINTED AND QUALIFIED, BUT MAY BE REMOVED AT ANY TIME BY THE PRESIDENT.' NEITHER THE ORGANIC DISTRICT OF COLUMBIA MILITIA ACT OF 1889 NOR THE AMENDING ACT OF 1909 MAKES ANY PROVISION FOR THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA. SECTION 39-801 OF THE DISTRICT OF COLUMBIA CODE DOES PROVIDE IN PERTINENT PART THAT:

"WHENEVER THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA SHALL BE ORDERED TO DUTY IN CASE OF RIOT, TUMULT, BREACH OF THE PEACE, OR WHENEVER CALLED IN AID OF THE CIVIL AUTHORITIES, ALL ENLISTED MEN WHO DO DUTY SHALL BE PAID AT THE RATE EQUIVALENT TO TWO TIMES THE PAY OF ENLISTED MEN OF THE REGULAR ARMY OF LIKE GRADE. COMMISSIONED OFFICERS WHO DO DUTY SHALL BE ENTITLED TO AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS COMMISSIONED OFFICERS OF LIKE GRADE OF THE REGULAR ARMY. * * * PROVIDED, THAT WHEN THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA IS CALLED INTO ACTUAL SERVICE OF THE UNITED STATES THE OFFICERS AND ENLISTED MEN SHALL, DURING THEIR TIME OF SERVICE, BE ENTITLED TO THE SAME PAY AND ALLOWANCES AS ARE OR MAY BE PROVIDED BYLAW FOR THE REGULAR ARMY.'

THE LANGUAGE OF SUCH SECTION IS SOMEWHAT AMBIGUOUS AND APPARENTLY, DURING THE MANY YEARS IT HAS BEEN IN THE STATUTE, HAS NOT BEEN VIEWED, BY EITHER THE DISTRICT OF COLUMBIA AUTHORITIES (IN THE ADMINISTRATION OF NATIONAL GUARD AFFAIRS) OR CONGRESS (IN MAKING ANNUAL APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA NATIONAL GUARD), AS BEING SUFFICIENTLY BROAD TO AUTHORIZE THE PAYMENT OF PAY AND ALLOWANCES TO THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD DURING PERIODS WHEN HE MAY PERFORM FULL-TIME NON-FEDERAL DUTY OTHER THAN DUTY IN CONNECTION WITH "RIOT, TUMULT, BREACH OF THE PEACE, OR * * * AID OF THE CIVIL AUTHORITIES.' AND, OF COURSE, THE QUESTION WHETHER THE CURRENT APPROPRIATION FOR THE DISTRICT OF COLUMBIA NATIONAL GUARD IS AVAILABLE FOR THE PAYMENT HERE INVOLVED MUST BE RESOLVED IN SUCH A WAY AS TO GIVE EFFECT TO THE INTENT OF THE CONGRESS IN MAKING THAT APPROPRIATION.

THE FIRST SUMS SPECIFICALLY APPROPRIATED FOR THE DISTRICT OF COLUMBIA MILITIA FOLLOWING ENACTMENT OF THE ORGANIC ACT OF MARCH 1, 1889, ARE FOUND IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1891, 26 STAT. 309. THAT APPROPRIATION ACT AND THE SUCCEEDING ANNUAL DISTRICT OF COLUMBIA APPROPRIATION ACTS THROUGH THE FISCAL YEAR ENDING JUNE 30, 1900, SPECIFICALLY ENUMERATED THE PARTICULAR ITEMS COVERED BY SUCH APPROPRIATED FUNDS BUT CONTAINED NO PROVISION FOR PAYMENT OF ANY ACTIVE-DUTY PAY AND ALLOWANCES TO EITHER THE OFFICERS OR ENLISTED MEN OF THE DISTRICT OF COLUMBIA MILITIA. THE DISTRICT OF COLUMBIA APPROPRIATION ACTS WHICH COVER THE PERIOD BEGINNING WITH THE FISCAL YEAR 1901 (31 STAT. 577) AND ENDING WITH THE FISCAL YEAR 1933 (47 STAT. 375), INCLUDED IN EACH ANNUAL APPROPRIATION A SPECIFIC AMOUNT FOR "PAY OF TROOPS" OTHER THAN GOVERNMENT EMPLOYEES, TO BE DISBURSED UNDER AUTHORITY AND DIRECTION OF THE COMMANDING GENERAL. THERE HAVE NOT BEEN APPROPRIATED ANY FUNDS FOR "PAY OF TROOPS" FOR THE DISTRICT OF COLUMBIA NATIONAL GUARD SINCE THE FISCAL YEAR 1933.

IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1940 (53 STAT. 1030), THERE WAS INCLUDED AN AMOUNT "FOR PERSONAL SERVICES, $27,600, INCLUDING COMPENSATION TO THE COMMANDING GENERAL AT THE RATE OF $3,600 PER ANNUM.' SIMILAR PROVISIONS FOR THE COMPENSATION OF THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD APPEAR IN THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1941 (54 STAT. 331) AND 1942 (55 STAT. 526). THE DISTRICT OF COLUMBIA APPROPRIATIONS ACTS FOR THE FISCAL YEARS 1943 TO 1947, INCLUSIVE, MADE NO PROVISION WITH RESPECT TO THE COMPENSATION OF THE COMMANDING GENERAL. HOWEVER, SPECIFIC AUTHORIZATIONS COVERING THE COMPENSATION OF THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD--- "FOR EXPENSES NECESSARY FOR THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA INCLUDING COMPENSATION TO THE COMMANDING GENERAL AT THE RATE OF $3,600 PER ANNUM"--- AGAIN WERE MADE IN THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1948, 1949 AND 1950 (61 STAT. 446, 62 STAT. 556 AND 63 STAT. 32, RESPECTIVELY). IN THAT CONNECTION THE SENATE COMMITTEE ON APPROPRIATIONS IN REPORTING TO THE SENATE ON THE BILL H.R. 4106, 80TH CONGRESS, 1ST SESSION (LATER ENACTED INTO LAW AS THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1948) MADE THE FOLLOWING STATEMENT (PAGE 4, SENATE REPORT NO. 586), WITH RESPECT TO THE SUGGESTED PAYMENT OF COMPENSATION TO THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD:

"THE COMMITTEE RECOMMENDS THE DELETION OF THE LANGUAGE PROVIDING FOR COMPENSATION TO THE COMMANDING GENERAL AS THERE EXISTS NO LEGISLATION AUTHORIZING THE PAYMENT OF SUCH SALARY AT THE RATE OF $3,600 PER ANNUM.'

LATER, BY AMENDMENT IN CONFERENCE REPORT, THE AMOUNT OF $3,600 FOR THE COMPENSATION OF THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD FOR THE FISCAL YEAR 1948 WAS RESTORED. SEE HOUSE REPORT NO. 1022, 80TH CONGRESS, 1ST SESSION, PAGE 4, AMENDMENT NO. 26.

THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1951 TO 1956, INCLUSIVE, MAKE FUNDS AVAILABLE FOR EXPENSES NECESSARY FOR THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA AND THE SPECIFIC ITEMS FOR WHICH SUCH FUNDS WERE APPROPRIATED ARE STATED IN DETAIL. NO PROVISION IS MADE, HOWEVER, IN ANY OF SUCH APPROPRIATION ACTS FOR THE PAYMENT OF ANY COMPENSATION TO THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD. AT LEAST ONE REASON FOR THAT IS DISCLOSED IN THE LEGISLATIVE HEARINGS ON THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1951. SEE, FOR EXAMPLE, THE STATEMENT "BUT THE COMMANDING GENERAL IS NOW ASSIGNED AND PAID BY THE DEPARTMENT OF THE ARMY" AT PAGE 537, HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, 81ST CONGRESS, 2D SESSION, ON THE BILL H.R. 8568, WHICH WAS ENACTED INTO LAW AS THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1951.

THUS, IT APPEARS THAT THERE IS NO BASIC PROVISION IN THE PERTINENT ORGANIC STATUTES AUTHORIZING PAYMENT OF THE PAY AND ALLOWANCES HERE INVOLVED AND THAT, UNLESS EXPRESSLY PROVIDED FOR, THE FUNDS APPROPRIATED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1891 TO 1955, INCLUSIVE, WERE IN NO CASE DEEMED BY CONGRESS AS BEING AVAILABLE FOR THE PAYMENT OF ANY COMPENSATION TO THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD FOR THE PERFORMANCE OF HIS DUTIES AS SUCH COMMANDING GENERAL. THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1956 FOLLOWS THE IDENTICAL PATTERN AND LANGUAGE, INSOFAR AS HERE PERTINENT, OF THE DISTRICT OF COLUMBIA APPROPRIATION ACTS OF PRIOR YEARS AND HENCE THE AVAILABILITY OF THE FUNDS APPROPRIATED THEREIN FOR THE PAYMENT OF THE PAY AND ALLOWANCES OF A BRIGADIER GENERAL TO THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD IS A MATTER OF GRAVE DOUBT, PARTICULARLY SINCE THAT APPROPRIATION WAS BASED ON ESTIMATES (SEE PAGE 1007 OF THE BUDGET FOR 1956 AND PAGE 492 OF THE APPENDIX THERETO) WHICH DID NOT INCLUDE ANY ITEM FOR PERSONAL SERVICES OF MILITARY PERSONNEL.

WE ARE, THEREFORE, CONSTRAINED TO HOLD THAT SUCH APPROPRIATION IS NOT AVAILABLE FOR MAKING PAYMENT ON THE VOUCHER SUBMITTED, THUS RESERVING FOR THE CONGRESS THE DETERMINATION WHETHER, AND TO WHAT EXTENT, THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD SHOULD BE COMPENSATED FROM DISTRICT OF COLUMBIA FUNDS FOR HIS SERVICES AS COMMANDING GENERAL.

IT SEEMS PROPER TO ADD THAT IT IS UNDERSTOOD GENERAL ABENDROTH IS IN RECEIPT OF RETIRED PAY FROM THE ARMY AS A MAJOR GENERAL AND THAT IF HE WERE NOW HELD TO BE ENTITLED TO ACTIVE-DUTY PAY FROM THE DISTRICT OF COLUMBIA AS A BRIGADIER GENERAL THERE WOULD ARISE A SITUATION WHICH WOULD SEEM TO BE SOMEWHAT INCONSISTENT WITH THE SPIRIT, ALTHOUGH POSSIBLY NOT THE LETTER, OF THE DUAL COMPENSATION STATUTES. FOR THAT ADDITIONAL REASON WE DEEM IT APPROPRIATE THAT THE MATTER OF HIS RIGHT TO PAY AND ALLOWANCES SHOULD BE PLACED BEFORE THE CONGRESS.