B-13238, NOVEMBER 7, 1940, 20 COMP. GEN. 253

B-13238: Nov 7, 1940

Additional Materials:

Contact:

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

 

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

PAY - MILITARY PERSONNEL CONNECTED WITH PUBLICATIONS CARRYING PAID ADVERTISING AN OFFICER OF THE ACTIVE NATIONAL GUARD IN THE ACTUAL SERVICE OF THE UNITED STATES WHOSE PAY AND ALLOWANCE ARE PROVIDED FOR UNDER APPROPRIATION "PAY OF THE ARMY" IS AN OFFICER ON THE ACTIVE LIST OF THE ARMY AND. MAY NOT BE PAID UNDER SAID APPROPRIATION WHILE HE IS AN OFFICER OF AN ASSOCIATION OF MILITARY PERSONNEL WHICH ISSUES A PUBLICATION CARRYING PAID ADVERTISING OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT EVEN THOUGH HE IS NOT ENGAGED IN THE ADVERTISING ACTIVITIES OF THE PUBLICATION. 1940: I HAVE YOUR LETTER OF OCTOBER 29. CONTAINS THE FOLLOWING LANGUAGE WHICH HAS APPEARED ANNUALLY IN APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT SINCE THE FISCAL YEAR 1932: "NO APPROPRIATION FOR THE PAY OF THE ARMY SHALL BE AVAILABLE FOR THE PAY OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE ARMY WHO IS ENGAGED IN ANY MANNER WITH ANY PUBLICATION WHICH IS OR MAY BE ISSUED BY OR FOR ANY BRANCH OR ORGANIZATION OF THE ARMY OR MILITARY ASSOCIATION IN WHICH OFFICERS OR ENLISTED MEN HAVE MEMBERSHIP AND WHICH CARRIES PAID ADVERTISING OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT: PROVIDED.

B-13238, NOVEMBER 7, 1940, 20 COMP. GEN. 253

PAY - MILITARY PERSONNEL CONNECTED WITH PUBLICATIONS CARRYING PAID ADVERTISING AN OFFICER OF THE ACTIVE NATIONAL GUARD IN THE ACTUAL SERVICE OF THE UNITED STATES WHOSE PAY AND ALLOWANCE ARE PROVIDED FOR UNDER APPROPRIATION "PAY OF THE ARMY" IS AN OFFICER ON THE ACTIVE LIST OF THE ARMY AND, HENCE, IN VIEW OF THE PROHIBITION IN THE MILITARY APPROPRIATION ACT, 1941, MAY NOT BE PAID UNDER SAID APPROPRIATION WHILE HE IS AN OFFICER OF AN ASSOCIATION OF MILITARY PERSONNEL WHICH ISSUES A PUBLICATION CARRYING PAID ADVERTISING OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT EVEN THOUGH HE IS NOT ENGAGED IN THE ADVERTISING ACTIVITIES OF THE PUBLICATION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, NOVEMBER 7, 1940:

I HAVE YOUR LETTER OF OCTOBER 29, 1940, AS FOLLOWS:

THE MILITARY APPROPRIATION ACT, 1941 ( PUBLIC, NO. 611--- 76TH CONGRESS), CONTAINS THE FOLLOWING LANGUAGE WHICH HAS APPEARED ANNUALLY IN APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT SINCE THE FISCAL YEAR 1932:

"NO APPROPRIATION FOR THE PAY OF THE ARMY SHALL BE AVAILABLE FOR THE PAY OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE ARMY WHO IS ENGAGED IN ANY MANNER WITH ANY PUBLICATION WHICH IS OR MAY BE ISSUED BY OR FOR ANY BRANCH OR ORGANIZATION OF THE ARMY OR MILITARY ASSOCIATION IN WHICH OFFICERS OR ENLISTED MEN HAVE MEMBERSHIP AND WHICH CARRIES PAID ADVERTISING OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT: PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO PROHIBIT OFFICERS FROM WRITING OR DISSEMINATING ARTICLES IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY OF WAR.'

THE LANGUAGE CONTAINED IN THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED OCTOBER 8, 1940 ( PUBLIC, NO. 800--- 76TH CONGRESS) WHICH PROVIDES FOR THE PAY OF THE NATIONAL GUARD AFTER INDUCTION INTO THE FEDERAL SERVICE, READS AS FOLLOWS:

( TITLE I--- WAR DEPARTMENT, MILITARY ACTIVITIES)

"FOR ADDITIONAL AMOUNTS FOR APPROPRIATION FOR THE MILITARY ESTABLISHMENT, FISCAL YEAR 1941, TO BE SUPPLEMENTAL TO, AND MERGED WITH, THE APPROPRIATIONS UNDER THE SAME HEADS IN THE MILITARY ESTABLISHMENT ACT, 1941, INCLUDING THE OBJECTS AND SUBJECT TO THE LIMITATIONS AND CONDITIONS SPECIFIED THEREIN EXCEPT AS OTHERWISE PROVIDED HEREIN, AND FOR ALL PURPOSES NECESSARY TO CARRY INTO EFFECT THE PROVISIONS OF THE ACT OF AUGUST 27, 1940 ( PUBLIC RESOLUTION NO. 96--- 76TH CONGRESS), AUTHORIZING THE PRESIDENT, TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS INTO ACTIVE MILITARY SERVICE, AND OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC, NO. 783--- 76TH CONGRESS), AS FOLLOWS:

MILITARY ACTIVITIES

PAY OF THE ARMY * * * (LANGUAGE OMITTED DOES NOT PERTAIN TO THE RESTRICTION UNDER CONSIDERATION) $ -------.

"THE QUARTERMASTER REVIEW," THE OFFICIAL PUBLICATION OF THE QUARTERMASTER ASSOCIATION, WHICH ASSOCIATION IS COMPOSED OF OFFICERS PERMANENTLY COMMISSIONED IN THE QUARTERMASTER CORPS, TEMPORARY OFFICERS COMMISSIONED OR ASSIGNED TO THE QUARTERMASTER CORPS, COMMISSIONED QUARTERMASTER OFFICERS OF THE NATIONAL GUARD, THE QUARTERMASTER RESERVE CORPS, AND OTHER MILITARY AND CIVILIAN PERSONNEL WHO ARE OR HAVE BEEN CONNECTED IN VARIOUS WAYS WITH QUARTERMASTER CORPS ACTIVITIES, CARRIES PAID ADVERTISING OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT.

COLONEL F. G. HETZEL OF THE NEW YORK NATIONAL GUARD WHO IS NOW PRESIDENT OF THE QUARTERMASTER ASSOCIATION, WILL LIKELY BE INDUCTED INTO FEDERAL SERVICE UNDER THE PROVISIONS OF THE ACT OF AUGUST 27, 1940. THE BYLAWS OF THE ASSOCIATION PROVIDE THAT THE PRESIDENT SHALL BE THE CHIEF EXECUTIVE OF THE ASSOCIATION AND SHALL PRESIDE AT THE MEETINGS OF THE BOARD OF MANAGERS AND OF THE EXECUTIVE COMMITTEE, AND THAT HE SHALL APPOINT ALL COMMITTEES NOT OTHERWISE PROVIDED FOR IN THE BYLAWS. HE RECEIVES NO CASH REMUNERATION FOR HIS SERVICES.

THE ADVERTISING ACTIVITIES OF " THE QUARTERMASTER REVIEW" ARE SEGREGATED FROM THE SERVICE ACTIVITIES OF THE MAGAZINE, AND ARE HANDLED BY A CIVILIAN ADVERTISING MANAGER ON A COMMISSION BASIS, AND THE PRESIDENT TAKES NO PART IN SOLICITING ADVERTISING AND HAS NO DIRECT OR INDIRECT CONTACT WITH ADVERTISERS.

YOUR DECISION IS REQUESTED AS TO WHETHER A DISTINCTION MAY BE MADE BETWEEN OFFICERS PERMANENTLY COMMISSIONED IN THE ARMY AND AN OFFICER OF THE NATIONAL GUARD INDUCTED INTO FEDERAL SERVICE FOR A LIMITED PERIOD OF TIME, AND IF NOT, WILL IT BE NECESSARY FOR COLONEL HETZEL TO VACATE THE OFFICE OF PRESIDENT OF THE QUARTERMASTER ASSOCIATION IN ORDER TO ENTITLE HIM TO RECEIVE THE PAY AND ALLOWANCES TO WHICH HE WILL BE ENTITLED UPON HIS INDUCTION INTO FEDERAL SERVICE.

AS COLONEL HETZEL'S ORGANIZATION IS NOW SCHEDULED FOR EARLY INDUCTION INTO FEDERAL SERVICE AN EARLY DECISION IN THIS MATTER WILL BE APPRECIATED.

THE APPROPRIATION UNDER " PAY OF THE ARMY" FOR 1941 CONTAINED IN THE ACT OF JUNE 13, 1940, PUBLIC, NO. 611, CONTAINS THE FOLLOWING LANGUAGE PRECEDING THE FIRST QUOTATION IN YOUR LETTER (WHICH IS THE LAST SENTENCE UNDER THAT APPROPRIATION) AS FOLLOWS:

FOR PAY OF COMMISSIONED OFFICERS, $38,055,754; PAY OF OFFICERS, NATIONAL GUARD, $100; * * * PAY OF ENLISTED MEN OF NATIONAL GUARD, $100; * * * AND THE MONEY HEREIN APPROPRIATED FOR " PAY OF THE ARMY" SHALL BE ACCOUNTED FOR AS ONE FUND: * * *

THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, CONTAINS THE LANGUAGE UNDER " WAR DEPARTMENT--- MILITARY ACTIVITIES" AS QUOTED IN YOUR LETTER AND UNDER " FINANCE DEPARTMENT--- PAY OF THE ARMY" THE PROVISION IS AS FOLLOWS:

FOR PAY OF THE ARMY, INCLUDING NOT MORE THAN EIGHT HUNDRED THOUSAND SELECTIVE TRAINEES UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND INCLUDING NOT TO EXCEED $345,000 FOR THE EMPLOYMENT OF CIVILIAN CLERKS AT MILITARY HEADQUARTERS, $280,174,652: PROVIDED, THAT THIS APPROPRIATION SHALL NOT BE SUBJECT TO ANY LIMITATION ON THE ENLISTED STRENGTH OF THE ARMY, ON THE NUMBER OF RETIRED OFFICERS WHO MAY BE CALLED TO ACTIVE DUTY, ON THE NUMBER OF MEDICAL OFFICERS ENTITLED TO AVIATION INCREASE, NOR ON THE NUMBER OF ASSISTANT SUPERINTENDENTS OF THE ARMY NURSE CORPS: PROVIDED FURTHER, THAT EXCLUSIVE OF OFFICERS OF THE ARMY NURSE CORPS, INCLUDING THOSE ASSIGNED THERETO FOR TRAINING, THE NUMBER OF OFFICERS OF THE ARMY WHO MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS DURING THE FISCAL YEAR 1941 SHALL NOT EXCEED 5 PERCENTUM OF THE TOTAL AUTHORIZED COMMISSIONED STRENGTH OF THE ARMY, NOTWITHSTANDING THE PROVISIONS OF SECTION 20, ACT OF JUNE 10, 1922, AS AMENDED.

IN THE HEARINGS ON THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION BILL FOR 1941 BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, SEVENTY-SIXTH CONGRESS, AT PAGE 46, THERE IS CONTAINED THE TESTIMONY OF MAJ. T. P. WALSH, FINANCE DEPARTMENT, UNITED STATES ARMY, THAT THE ESTIMATE "PROVIDES FOR 17,670 NATIONAL GUARD OFFICERS IN GRADES FROM SECOND LIEUTENANT TO MAJOR GENERAL, PAY AND ALLOWANCES, $44,880,289.' TO THE SAME EFFECT IS GENERAL MARSHALL'S STATEMENT, PAGE 2 ET SEQ., OF THE HEARINGS BEFORE THE " SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS OF THE UNITED STATES SENATE, SEVENTY-SIXTH CONGRESS, THIRD SESSION, ON H.R. 10572, A BILL MAKING SUPPLEMENTAL APPROPRIATIONS FOR THE NATIONAL DEFENSE FOR THE FISCAL YEAR ENDING JUNE 30, 1941.'

IN VIEW OF THE FACT THAT THE NATIONAL GUARD OF THE UNITED STATES AND THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES ARE INCLUDED IN THE DEFINITION OF THE ARMY OF THE UNITED STATES, SECTION 1, ACT OF JUNE 15, 1933, 48 STAT. 153, 10 U.S.C. 2, THAT THE APPROPRIATION IS SPECIFICALLY MADE AVAILABLE FOR PAY AND ALLOWANCES OF OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD, AND THAT THE APPROPRIATION WAS INCREASED TO PROVIDE FOR MEMBERS OF THE NATIONAL GUARD IN THE SERVICE OF THE UNITED STATES IN THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT THAT THE LIMITATION WHICH YOU FIRST QUOTE IN YOUR LETTER APPLIES TO ALL FUNDS APPROPRIATED UNDER " PAY OF THE ARMY" FOR THE FISCAL YEAR 1941.

THE RESTRICTION APPLIES TO ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE ARMY "WHO IS ENGAGED IN ANY MANNER WITH ANY PUBLICATION" AS THEREIN DESCRIBED, AND YOU STATE THE PUBLICATION TO WHICH YOU REFER CARRIES PAID ADVERTISEMENTS OF FIRMS DOING BUSINESS WITH THE WAR DEPARTMENT. THE BROAD LANGUAGE "ENGAGED IN ANY MANNER" CANNOT BE CONSTRUED AS INCLUDING ONLY THOSE OFFICERS WHO ARE ENGAGED IN THE ADVERTISING ACTIVITIES OF THE PUBLICATION, BUT NECESSARILY MUST BE CONSTRUED AS INCLUDING ALSO, THE OFFICERS OF THE ORGANIZATION--- THE ORGANIZATION, IN FACT, BEING RESPONSIBLE FOR THE PUBLICATION AND THE PUBLICATION BEING, APPARENTLY, THE ORGAN OF THE ORGANIZATION.

THE ONLY REMAINING QUESTION IS WHETHER A NATIONAL GUARD OFFICER IN THE ACTUAL SERVICE OF THE UNITED STATES AND ENTITLED TO RECEIVE HIS PAY AND ALLOWANCE%S UNDER THE APPROPRIATION " PAY OF THE ARMY" IS "ON THE ACTIVE LIST OF THE ARMY.' SECTION 77 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 19, 1935, 49 STAT. 391, 32 U.S.C. 114, AND SECTION 78 AS AMENDED BY SECTION 15 OF THE ACT OF JUNE 15, 1933, 48 STAT. 159, 32 U.S.C. 133, RECOGNIZE AN ACTIVE NATIONAL GUARD AND AN INACTIVE NATIONAL GUARD. SECTION 101 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 208, 32 U.S.C. 82, PROVIDES:

THE NATIONAL GUARD WHEN CALLED AS SUCH INTO THE SERVICE OF THE UNITED STATES, SHALL FROM THE TIME THEY ARE REQUIRED BY THE TERMS OF THE CALL TO RESPOND THERETO, BE SUBJECT TO THE LAWS AND REGULATIONS GOVERNING THE REGULAR ARMY, SO FAR AS SUCH LAWS AND REGULATIONS ARE APPLICABLE TO OFFICERS AND ENLISTED MEN WHOSE PERMANENT RETENTION IN THE MILITARY SERVICE, EITHER ON THE ACTIVE LIST ON THE RETIRED LIST, IS NOT CONTEMPLATED BY EXISTING LAW.

THE LAST PROVISO OF SECTION 110 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF MAY 12, 1928, 45 STAT. 500, PROVIDES:

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN NO MONEY APPROPRIATED UNDER THE PROVISIONS OF THIS OR THE LAST PRECEDING SECTION (ARMORY DRILL PAY OF OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD) SHALL BE PAID TO ANY PERSON NOT ON THE ACTIVE LIST, NOR TO ANY PERSON OVER SIXTY-FOUR YEARS OF AGE, NOR TO ANY PERSON WHO SHALL FAIL TO QUALIFY AS TO FITNESS FOR MILITARY SERVICE UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE.

SECTION 111 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 18 OF THE ACT OF JUNE 15, 1933, 48 STAT. 160, 32 U.S.C. 81, RESPECTING THE ORDERING OF THE NATIONAL GUARD OF THE UNITED STATES INTO FEDERAL SERVICE PROVIDES:

* * * ALL PERSONS SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES SHALL FROM THE DATE OF SUCH ORDER STAND RELIEVED FROM DUTY IN THE NATIONAL GUARD OF THEIR RESPECTIVE STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA SO LONG AS THEY SHALL REMAIN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, AND DURING SUCH TIME SHALL BE SUBJECT TO SUCH LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE ARMY OF THE UNITED STATES AS MAY BE APPLICABLE TO MEMBERS OF THE ARMY WHOSE PERMANENT RETENTION IN ACTIVE MILITARY SERVICE IS NOT CONTEMPLATED BY LAW. * * *

I HAVE TO ADVISE, THEREFORE, THAT AN OFFICER OF THE ACTIVE NATIONAL GUARD IN THE ACTUAL SERVICE OF THE UNITED STATES AND ENTITLED TO RECEIVE AND REQUIRED TO BE PAID, HIS PAY AND ALLOWANCES UNDER THE APPROPRIATION " PAY OF THE ARMY," IS AN OFFICER ON THE ACTIVE LIST OF THE ARMY WITHIN THE MEANING OF THAT TERM AS USED IN THE LAST PARAGRAPH UNDER THE APPROPRIATION WHICH YOU FIRST QUOTE IN YOUR LETTER, AND THAT THAT RESTRICTION IS APPLICABLE TO HIM. HENCE, IF COL. F. G. HETZEL OF THE NEW YORK NATIONAL GUARD IS PRESIDENT OF THE QUARTERMASTER ASSOCIATION WHEN HE IS ORDERED INTO ACTUAL SERVICE OF THE UNITED STATES THE APPROPRIATION UNDER " PAY OF THE ARMY," 1941, IS NOT AVAILABLE FOR HIS PAY AND ALLOWANCES SO LONG AS HE CONTINUES IN THAT CAPACITY.