B-13566, DECEMBER 2, 1940, 20 COMP. GEN. 291

B-13566, DECEMBER 2, 1940, 20 COMP. GEN. 291

PAY - FLYING CADETS - EFFECT OF LIMITATION RELATING TO ENLISTED MEN GENERALLY SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, FIXING RATES OF PAY OF ENLISTED MEN OF THE ARMY AND MARINE CORPS GENERALLY OF THE SEVEN PAY GRADES THEREIN ENUMERATED, DOES NOT AFFECT EXISTING SPECIAL PROVISIONS OF LAW APPLICABLE EXCLUSIVELY TO FLYING CADETS, AND THE PROVISION IN SAID SECTION LIMITING ENLISTED MEN'S MONTHLY PAY TO $21 FOR THE FIRST FOUR MONTHS OF THEIR FIRST ENLISTMENT PERIOD HAS APPLICATION TO THE RATE OF PAY OF SUCH CADETS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. G. A. SUMMA, UNITED STATES ARMY, DECEMBER 2, 1940:

THERE HAS BEEN RECEIVED BY FIRST ENDORSEMENT FROM THE CHIEF OF FINANCE DATED NOVEMBER 16, 1940, YOUR LETTER OF OCTOBER 28, 1940, WITH ENCLOSURE, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR A DECISION IN ADVANCE OF PAYMENT, THE CLAIM OF FLYING CADET FRANCIS J. POPE, 6561686, FLYING CADET DETACHMENT, RANDOLPH FIELD, TEXAS, FOR PAY FOR THE PERIOD OCTOBER 1 TO OCTOBER 31, 1940, IN THE AMOUNT OF $75.00 WHICH WAS SUBMITTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

DOUBT IS ENTERTAINED AS TO WHETHER CLAIMANT IS ENTITLED TO PAYMENT AT THE RATE OF $75.00 PER MONTH OR $21.00 PER MONTH FOR THE PERIOD OCTOBER 1 TO OCTOBER 23, INCLUSIVE, 1940, DURING WHICH PERIOD CLAIMANT HAD SERVED LESS THAN FOUR MONTHS DURING HIS FIRST ENLISTMENT PERIOD. THIS DOUBT IS BASED UPON THE PROVISIONS OF SECTION 12 (A), SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, A PORTION OF WHICH READS AS FOLLOWS: * * * EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21. * * * A FLYING CADET, IS, BY THE ACT OF JULY 11, 1919, 41 STAT. 109, GIVEN THE STATUS OF AN ENLISTED MAN IN THE ARMY, ACCORDING TO DECISION A-34397, 10 COMP. GEN. 264, DECEMBER 11, 1930. DEDUCTION FOR THE MAINTENANCE OF THE UNITED STATES SOLDIERS' HOME, UNDER THE ACT OF FEBRUARY 13, 1936 (49 STAT. 1137), IS MADE FROM THE PAY OF A FLYING CADET IN VIEW OF THE ABOVE QUOTED DECISION.

DECISION IS FURTHER REQUESTED AS TO THE DATE UPON WHICH AN ENLISTED MAN CHANGES FROM THE PAY OF $21.00 PER MONTH TO THE HIGHER RATE OF PAY. DOES HE RECEIVE THE HIGHER OR LOWER RATE OF PAY ON THE DATE HE ACTUALLY COMPLETES FOUR MONTHS SERVICE ON HIS FIRST ENLISTMENT PERIOD?

THE ACT OF JULY 11, 1919, 41 STAT. 109, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

THE SECRETARY OF WAR IS HEREBY AUTHORIZED AND DIRECTED TO ESTABLISH AND MAINTAIN AT ONE OR MORE ESTABLISHED FLYING SCHOOLS COURSES OF INSTRUCTION FOR AVIATION STUDENTS.

AVIATION STUDENTS SHALL BE ENLISTED IN OR APPOINTED TO THE GRADE OF FLYING CADET, AIR SERVICE, WHICH GRADE IS HEREBY ESTABLISHED: PROVIDED THAT THE TOTAL NUMBER OF FLYING CADETS SHALL NOT AT ANY TIME EXCEED ONE THOUSAND THREE HUNDRED. THE BASE PAY OF A FLYING CADET SHALL BE $75 PER MONTH, INCLUDING EXTRA PAY FOR FLYING RISK AS PROVIDED BY LAW. THE RATION ALLOWANCE OF A FLYING CADET SHALL NOT EXCEED $1 PER DAY, AND HIS OTHER ALLOWANCES SHALL BE THOSE OF A PRIVATE, FIRST CLASS, AIR SERVICE.

UPON COMPLETION OF A COURSE PRESCRIBED FOR FLYING CADETS, EACH FLYING CADET, IF HE SO DESIRE, MAY BE DISCHARGED AND COMMISSIONED AS A SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORPS: PROVIDED, THAT THE SECRETARY OF WAR IS AUTHORIZED TO DISCHARGE AT ANY TIME ANY FLYING CADET WHOSE DISCHARGE SHALL HAVE BEEN RECOMMENDED BY A BOARD OF NOT LESS THAN THREE OFFICERS.

EXTENSIVE REGULATIONS GOVERNING THE GENERAL ELIGIBILITY REQUIREMENTS QUALIFICATIONS, ETC., FOR FLYING CADETS ARE PUBLISHED IN ARMY REGULATIONS NO. 615-160, THE LATEST DATED JUNE 30, 1938.

SECTION 13 OF THE ACT OF JUNE 4, 1920, 41 STAT. 768, AMENDING SECTION 13 (A) OF THE ACT OF JUNE 3, 1916, CREATED AN AIR SERVICE CONSISTING, AMONG OTHER PERSONNEL, OF 16,000 ENLISTED MEN, INCLUDING NOT TO EXCEED 2,500 FLYING CADETS, SUCH PART OF WHOM AS THE PRESIDENT MAY DIRECT BEING FORMED INTO TACTICAL UNITS ORGANIZED AS HE MAY PRESCRIBE, WITH A PROVISO THAT NOTHING CONTAINED IN THAT ACT SHALL BE CONSTRUED AS AMENDING EXISTING PROVISIONS OF LAW RELATING TO FLYING CADETS.

SECTION 4 (B) OF THE SAME ACT, 41 STAT. 761, PROVIDED THAT ON AND AFTER JULY 1, 1920, THE GRADES OF ENLISTED MEN SHALL BE SUCH AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE WITH MONTHLY BASE PAY BEGINNING AT $75 FOR THE FIRST GRADE TO $30 FOR THE SEVENTH GRADE. SECTION 4 (B) REPEALED EXISTING LAW FOR CONTINUOUS SERVICE PAY TO TAKE EFFECT JULY 1, 1920, AND PROVIDED THAT ENLISTED MEN THEREAFTER SHOULD RECEIVE A 10 PERCENTUM INCREASE FOR EACH 5 YEARS' SERVICE, NOT EXCEEDING 40 PERCENT, WITH A FURTHER PROVISION, UNDER REGULATIONS OF THE SECRETARY OF WAR, THAT ENLISTED MEN OF THE SIXTH AND SEVENTH GRADES MAY BE RATED AS SPECIALISTS AND RECEIVE EXTRA PAY PER MONTH FROM $25 TO $3. THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY OF THE SEVEN PAY GRADES WAS AGAIN FIXED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, BEGINNING WITH $126 FOR ENLISTED MEN OF THE ARMY OF THE FIRST GRADE TO $21 FOR ENLISTED MEN OF THE SEVENTH GRADE, WITH PAY FOR SPECIALIST RATINGS AS THEREIN PROVIDED. SECTION 21 OF THE ACT, 42 STAT. 633, PROVIDED THAT NOTHING THEREIN OPERATE TO CHANGE IN ANY WAY, EXISTING LAWS OR REGULATIONS GOVERNING THE PAY AND ALLOWANCES OF FLYING CADETS.

SECTION 2 OF THE ACT OF JULY 2, 1926, 44 STAT. 780, AMENDING SECTION 13 (A) OF THE NATIONAL DEFENSE ACT AS PREVIOUSLY AMENDED, CREATED AN AIR CORPS TO CONSIST, AMONG OTHERS, OF 16,000 ENLISTED MEN, INCLUDING NOT TO EXCEED 2,500 FLYING CADETS, WITH A PROVISO THAT NOTHING THEREIN SHALL BE CONSTRUED AS AMENDING EXISTING PROVISIONS OF LAW RELATING TO FLYING CADETS.

THE LIMITATION UPON THE NUMBER OF ENLISTED MEN AND FLYING CADETS CONTAINED IN SECTION 13 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED 10 U.S.C. 291, WAS REMOVED BY A PROVISION CONTAINED IN THE MILITARY APPROPRIATION ACT, 1941, APPROVED JUNE 13, 1940, UNDER " PAY OF THE ARMY.'

SECTION 12 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PUBLIC NO. 783, APPROVED SEPTEMBER 16, 1940, PROVIDES AS FOLLOWS:

SEC. 12. (A) THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL BE AS FOLLOWS: ENLISTED MEN OF THE FIRST GRADE, $126; ENLISTED MEN OF THE SECOND GRADE, $84; ENLISTED MEN OF THE THIRD GRADE, $72; ENLISTED MEN OF THE FOURTH GRADE, $60; ENLISTED MEN OF THE FIFTH GRADE, $54; ENLISTED MEN OF THE SIXTH GRADE, $36; ENLISTED MEN OF THE SEVENTH GRADE, $30; EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21. THE PAY FOR SPECIALISTS' RATINGS, WHICH SHALL BE IN ADDITION TO MONTHLY BASE PAY, SHALL BE AS FOLLOWS: FIRST CLASS, $30; SECOND CLASS, $25; THIRD CLASS, $20; FOURTH CLASS, $15; FIFTH CLASS, $6; SIXTH CLASS $3. ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY AN INCREASE OF 10 PERCENTUM OF THEIR BASE PAY AND PAY FOR SPECIALISTS' RATINGS UPON COMPLETION OF THE FIRST FOUR YEARS OF SERVICE, AND AN ADDITIONAL INCREASE OF 5 PERCENTUM OF SUCH BASE PAY AND PAY FOR SPECIALISTS' RATINGS FOR EACH FOUR YEARS OF SERVICE THEREAFTER, BUT THE TOTAL OF SUCH INCREASES SHALL NOT EXCEED 25 PERCENTUM. ENLISTED MEN OF THE NAVY SHALL BE ENTITLED TO RECEIVE AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY AND MARINE CORPS.

(B) THE PAY FOR SPECIALISTS' RATING RECEIVED BY AN ENLISTED MAN OF THE ARMY OR THE MARINE CORPS AT THE TIME OF HIS RETIREMENT SHALL BE INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY.

(C) THE PAY OF ENLISTED MEN OF THE SIXTH GRADE OF THE NATIONAL GUARD FOR EACH ARMORY DRILL PERIOD, AND FOR EACH DAY OF PARTICIPATION IN EXERCISES UNDER SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, SHALL BE $1.20.

(D) NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THIS ACT FOR ANY PERIOD PRIOR TO OCTOBER 1, 1940.

(E) NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY NOW BEING RECEIVED BY ANY RETIRED ENLISTED MAN.

(F) THE PROVISIONS OF THIS SECTION SHALL BE EFFECTIVE ON AND AFTER OCTOBER 1, 1940. THEREAFTER ALL LAWS AND PARTS OF LAWS INSOFAR AS THE SAME ARE INCONSISTENT HEREWITH OR IN CONFLICT WITH THE PROVISIONS HEREOF ARE HEREBY REPEALED.

THE EFFECT OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, WAS TO AMEND SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, SO AS TO PROVIDE DIFFERENT MONTHLY BASE PAY RATES FOR ENLISTED MEN OF THE ARMY AND MARINE CORPS FOR CERTAIN OF THE SEVEN PAY GRADES THERETOFORE ESTABLISHED, THE PRIMARY PURPOSE OF THE SECTION BEING TO EQUALIZE THEIR PAY WITH THE RATES THERETOFORE PROVIDED FOR ENLISTED MEN OF THE NAVY UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, AND, AMONG OTHER THINGS, MODIFYING THE PERCENTUM INCREASE FOR LONGEVITY PAY PREVIOUSLY PROVIDED FOR SUCH ARMY AND MARINE CORPS ENLISTED MEN. THE PROVISIONS OF SECTION 12 (A) IN PLAIN LANGUAGE ARE DIRECTED TO RATES OF PAY OF THE ENLISTED MEN OF THE ARMY AND MARINE CORPS GENERALLY OF THE SEVEN PAY GRADES THEREIN ENUMERATED AND ARE NOT INTENDED TO AFFECT EXISTING SPECIAL PROVISIONS OF LAW APPLICABLE EXCLUSIVELY TO FLYING CADETS.

WHILE THIS OFFICE AND THE FORMER COMPTROLLER OF THE TREASURY HAVE HELD THAT FLYING CADETS HAVE AN ENLISTED STATUS, IT HAS NEVER BEEN HELD NOR INTIMATED THAT THE PAY AND ALLOWANCES OF THESE FLYING CADETS WERE ASSIMILATED TO THE PAY AND ALLOWANCES OF ENLISTED MEN GENERALLY.

IN THE SAME ACT THAT ORIGINALLY ESTABLISHED THE GRADE OF FLYING CADET, 41 STAT. 109, PROVISION WAS MADE FOR CONTINUING IN FORCE THE TEMPORARY INCREASES PROVIDED BY SECTION 10 OF THE ACT OF MAY 18, 1917, 40 STAT. 82, AND THERE WAS PRESENTED TO THE FORMER COMPTROLLER OF THE TREASURY THE QUESTION WHETHER FLYING CADETS WERE ENTITLED TO SUCH INCREASE IN PAY. AFTER CITING THE PERTINENT PROVISIONS OF LAW THEN IN EFFECT, IT WAS STATED IN DECISION DATED MARCH 6, 1920, 26 COMP. DEC. 727 AS FOLLOWS (728-729):

WHILE AVIATION STUDENTS ARE GIVEN THE GRADE "FLYING CADET" AND THE STATUS OF ENLISTED MEN WHILE UNDERGOING TRAINING, THEY MAY BE DISCHARGED IF THEY SO DESIRE UPON COMPLETION OF THE PRESCRIBED COURSE. THEY ARE ENLISTED MEN, BUT WHEN ENLISTED FROM CIVIL LIFE THEY ARE ENLISTED FOR A SPECIFIC PURPOSE, TO TRAIN FOR FLYING, AND FOR AN INDEFINITE PERIOD; WHETHER ENLISTED FROM CIVIL LIFE OR APPOINTED FROM AN ENLISTED GRADE OF THE ARMY, UPON COMPLETION OF THE PRESCRIBED COURSE THEY ARE ENTITLED TO DISCHARGE; A SOMEWHAT DIFFERENT STATUS FROM THAT OF THE GREAT BODY OF ENLISTED MEN OF THE ARMY.

THE PROVISION FOR THE PERMANENT PAY OF ENLISTED MEN GENERALLY OF THE ARMY IS GENERAL LEGISLATION, WHILE THE PROVISION FOR FLYING CADETS IS SPECIFIC, AND ANY DOUBT WHICH ARISES IN CONNECTION WITH THESE TWO PROVISIONS MUST, I THINK, BE DETERMINED BY THE RULE OF CONSTRUCTION THAT THE MORE SPECIFIC OF TWO PROVISIONS OF LAW MUST BE CONTROLLING. 6 COMP. DEC. 960. CONSIDERATION OF THE PURPOSE OF THE LEGISLATION IN THE LIGHT OF THIS RULE INDICATES THAT THE BASE RATE OF PAY FOR FLYING CADETS IS NOT FIXED WITH REFERENCE TO THE TEMPORARY INCREASES IN THE PAY OF ENLISTED MEN OF THE ARMY AUTHORIZED IN THE ACT OF MAY 18, 1917, AND MADE PERMANENT BY THE ACT CREATING THE GRADE OF FLYING CADET. 26 COMP. DEC. 612.

I AM OF THE OPINION THEREFORE, THAT THE SPECIFIC PROVISION MADE FOR THE PAY OF FLYING CADETS IS EXCLUSIVE AND IS NOT MODIFIED BY THE PROVISION IN THE SAME ACT MAKING THE TEMPORARY RATES OF PAY THERETOFORE AUTHORIZED FOR ENLISTED MEN OF THE ARMY THE PERMANENT RATES FOR SUCH ENLISTED MEN; AND THAT THE BASE PAY OF FLYING CADETS IS THAT FIXED BY THE STATUTE WITHOUT THE ADDITION OF THE TEMPORARY INCREASES, NOW MADE PERMANENT, CONTAINED IN THE ACT OF MAY 18, 1917.

IT HAS BEEN HELD, ALSO, THAT THE PAY AND ALLOWANCES SPECIALLY FIXED FOR THEM BY THE ACT OF JULY 11, 1919, SUPRA, ARE NOT SUBJECT TO INCREASE FOR QUALIFICATION IN THE USE OF ARMS PRESCRIBED FOR USE IN THE AIR CORPS FOR WHICH THEY HAVE BEEN ENLISTED. 15 COMP. GEN. 195. IT APPEARS PLAIN FROM WHAT HAS BEEN STATED THAT THE PROVISIONS OF SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ARE APPLICABLE TO THE PAY RATES OF ENLISTED MEN OF THE ARMY AND MARINE CORPS BELONGING TO AND FALLING WITHIN ONE OF THE SEVEN GRADES ESTABLISHED IN SECTION 9 OF THE ACT OF JUNE 10, 1922, SUPRA. THE PROVISIONS APPLICABLE TO FLYING CADETS ARE NOT AFFECTED BY THE PROVISION CONTAINED IN SECTION 12 (A) FIXING PAY RATES FOR THE SEVEN ENLISTED GRADES OF THE ARMY AND MARINE CORPS. THE RULE IS WELL STATED BY JUSTICE BREWER IN RODGERS V. UNITED STATES, 185 U.S. 87, 46 L.1ED. 816, AS FOLLOWS:

IT IS A CANON OF STATUTORY CONSTRUCTION THAT A LATER STATUTE, GENERAL IN ITS TERMS AND NOT EXPRESSLY REPEALING A PRIOR SPECIAL STATUTE, WILL ORDINARILY NOT AFFECT THE SPECIAL PROVISIONS OF SUCH EARLIER STATUTE. OTHER WORDS, WHERE THERE ARE TWO STATUTES, THE EARLIER SPECIAL AND THE LATER GENERAL--- THE TERMS OF THE GENERAL BROAD ENOUGH TO INCLUDE THE MATTER PROVIDED FOR IN THE SPECIAL--- THE FACT THAT THE ONE IS SPECIAL AND THE OTHER IS GENERAL CREATES A PRESUMPTION THAT THE SPECIAL IS TO BE CONSIDERED AS REMAINING AN EXCEPTION TO THE GENERAL, AND THE GENERAL WILL NOT BE UNDERSTOOD AS REPEALING THE SPECIAL, UNLESS A REPEAL IS EXPRESSLY NAMED, OR UNLESS THE PROVISIONS OF THE GENERAL ARE MANIFESTLY INCONSISTENT WITH THOSE OF THE SPECIAL. * * * THE EXCEPTION IN SECTION 12 (A) RELATIVE TO THE $21 PER MONTH RATE OF PAY FOR ENLISTED MEN OF THE ARMY UNDER THE CONDITIONS THEREIN STATED IS MERELY COEXTENSIVE WITH ITS ANTECEDENT; IT HAS REFERENCE ONLY TO THE ENLISTED MAN FOR WHOM RATES OF PAY WERE ESTABLISHED IN THE ENACTING CLAUSE AND MAY NOT REASONABLY BE CONSTRUED AS HAVING ANY APPLICATION TO FLYING CADETS OR THE RATE OF PAY OF FLYING CADETS. PAYMENT OF THE VOUCHER RETURNED HEREWITH IS AUTHORIZED, IF OTHERWISE CORRECT.

IN VIEW OF THE FOREGOING, ANSWER TO THE QUESTION CONTAINED IN THE LAST PARAGRAPH OF YOUR LETTER IS NOT REQUIRED. HOWEVER, YOU MAY BE INFORMED THAT THE $21 MONTHLY RATE OF PAY REMAINS APPLICABLE UNTIL MIDNIGHT OF THE DAY OF COMPLETION OF FOUR MONTHS' SERVICE PLUS ANY TIME LOST, WHICH IS NOT COUNTED FOR SERVICE, UNLESS THAT RATE IS CONTINUED BY REASON OF INEFFICIENCY OR OTHER UNFITNESS AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY.