B-14986, MARCH 3, 1941, 20 COMP. GEN. 493

B-14986: Mar 3, 1941

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ARE ENTITLED TO THE PAY OF THE GRADE HELD BY THEM AT THE TIME THEY ARE PLACED ON ACTIVE DUTY REGARDLESS OF LENGTH OF SERVICE. YOUR LETTER OF JANUARY 15 AND THE VOUCHER WERE TRANSMITTED TO THIS OFFICE BY SECOND ENDORSEMENT FROM THE CHIEF OF FINANCE. THIS REQUEST FOR ADVANCE DECISION IS MADE UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 31. IT IS REQUESTED THAT SUCH DECISION. BE FORWARDED TO THE DISBURSING OFFICER THROUGH THIS OFFICE. 2.THIS REQUEST HAS REFERENCE TO MEMBERS OF THE ENLISTED RESERVE CORPS WHO ARE BEING AND WILL BE ORDERED INTO ACTIVE DUTY IN THE PRESENT EMERGENCY AND SOME OF WHOM HOLD GRADES ABOVE THE 7TH GRADE WHEN SO ORDERED. YOUR DECISION IS REQUESTED AS TO WHETHER SUCH MEN IF THEY HAVE HAD NO PRIOR SERVICE OR LESS THAN 4 MONTHS' PRIOR SERVICE IN THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES ARE REQUIRED TO SERVE AT THE $21.00 RATE OF PAY UNTIL THEY HAVE COMPLETED 4 MONTHS' SERVICE.

B-14986, MARCH 3, 1941, 20 COMP. GEN. 493

PAY - LIMITATIONS - FIRST 4 MONTHS IN INITIAL ENLISTMENT - ENLISTED RESERVE CORPS MEMBERS OF THE ENLISTED RESERVE CORPS OF THE ARMY WHO HOLD GRADES OR RATINGS ABOVE THE SEVENTH GRADE UPON ENTRY INTO THE ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, AUGUST 27, 1940, ARE ENTITLED TO THE PAY OF THE GRADE HELD BY THEM AT THE TIME THEY ARE PLACED ON ACTIVE DUTY REGARDLESS OF LENGTH OF SERVICE, NOTWITHSTANDING THE LIMITATION AS TO PAY OF ENLISTED MEN WITH LESS THAN 4 MONTHS' SERVICE AS CONTAINED IN SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. C. T. GUNN, UNITED STATES ARMY, MARCH 3, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 15, 1941, TRANSMITTING A SUPPLEMENTAL PAY-ROLL VOUCHER STATED IN FAVOR OF BRAULIO RICO, FORMER SERGEANT, 44TH QUARTERMASTER COMPANY ( L.M.), FOR $7.85, REPRESENTING ACTIVE DUTY PAY AS A MEMBER OF THE ENLISTED RESERVE CORPS FOR THE 2-DAY PERIOD JANUARY 8 AND 9, 1941, INCLUDING TRAVEL ALLOWANCE FROM PLACE OF RESIDENCE TO FORT BUCHANAN, P.R., AND RETURN.

YOUR LETTER OF JANUARY 15 AND THE VOUCHER WERE TRANSMITTED TO THIS OFFICE BY SECOND ENDORSEMENT FROM THE CHIEF OF FINANCE, WAR DEPARTMENT, DATED FEBRUARY 12, 1941, AS FOLLOWS:

1. THIS REQUEST FOR ADVANCE DECISION IS MADE UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 31, 1894 (28 STAT. 208; U.S.C. 31:74). IT IS REQUESTED THAT SUCH DECISION, WHEN RENDERED, BE FORWARDED TO THE DISBURSING OFFICER THROUGH THIS OFFICE.

2.THIS REQUEST HAS REFERENCE TO MEMBERS OF THE ENLISTED RESERVE CORPS WHO ARE BEING AND WILL BE ORDERED INTO ACTIVE DUTY IN THE PRESENT EMERGENCY AND SOME OF WHOM HOLD GRADES ABOVE THE 7TH GRADE WHEN SO ORDERED. YOUR DECISION IS REQUESTED AS TO WHETHER SUCH MEN IF THEY HAVE HAD NO PRIOR SERVICE OR LESS THAN 4 MONTHS' PRIOR SERVICE IN THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES ARE REQUIRED TO SERVE AT THE $21.00 RATE OF PAY UNTIL THEY HAVE COMPLETED 4 MONTHS' SERVICE, OR WHETHER THEY ARE ENTITLED TO RECEIVE THE PAY OF THE GRADE HELD BY THEM AT THE TIME THEY ARE ORDERED TO ACTIVE DUTY REGARDLESS OF LENGTH OF SERVICE.

3. IN ADDITION TO THIS QUESTION YOUR DECISION ON THE FOLLOWING QUESTIONS PERTAINING TO THE ENLISTED RESERVE CORPS IS REQUESTED:

A. IF A MEMBER OF THE ENLISTED RESERVE CORPS HAS HAD ACTIVE SERVICE IN THE ENLISTED RESERVE CORPS, OR OTHER RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, PRIOR TO HIS INDUCTION UNDER THE ACT OF AUGUST 27, 1940 ( PUBLIC RESOLUTION NO. 96, 76TH CONGRESS), WILL HE BE REQUIRED TO SERVE 4 MONTHS AFTER INDUCTION AT THE $21 PER MONTH RATE OF PAY, OR WILL SUCH SERVICE BE COUNTED IN DETERMINING HIS RATE OF PAY WHEN INDUCTED?

B. IF A MEMBER OF THE ENLISTED RESERVE CORPS HAS HAD ACTIVE SERVICE IN THE ENLISTED RESERVE CORPS, OR OTHER RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, PRIOR TO INDUCTION, MAY SUCH SERVICE BE COUNTED FOR THE PURPOSE OF COMPUTING LONGEVITY?

C. IF A MEMBER OF THE ENLISTED RESERVE CORPS HAS HAD ACTIVE SERVICE IN THE NAVAL RESERVE AND/OR THE MARINE CORPS RESERVE PRIOR TO INDUCTION, MAY SUCH SERVICE BE COUNTED IN DETERMINING THE RATE OF PAY WHEN INDUCTED AND FOR THE PURPOSE OF COMPUTING LONGEVITY?

PARAGRAPH 8 OF SPECIAL ORDERS NO. 3, DATED HEADQUARTERS PUERTO RICAN DEPARTMENT, SAN JUAN, P.R., JANUARY 4, 1941, PROVIDES:

8. BY DIRECTION OF THE PRESIDENT UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, AND UNDER THE PROVISIONS OF LETTER AG 324.71 (10-29-40) R-A, DATED NOVEMBER 29, 1940, EACH OF THE FOLLOWING NAMED MEMBERS OF THE ENLISTED RESERVE CORPS IS CALLED TO ACTIVE DUTY EFFECTIVE JANUARY 8, 1941, AND IS ASSIGNED TO UNIT INDICATED. THEY WILL REPORT TO THE COMMANDING OFFICERS PUERTO RICAN GENERAL DEPOT, FORT BUCHANAN, P.R. FOR DUTY. THE TRAVEL DIRECTED IS NECESSARY IN THE PUBLIC SERVICE. REIMBURSEMENT FOR TRANSPORTATION IS AUTHORIZED AT THE RATE OF FIVE (5) CENTS PER MILE AND IS CHARGEABLE TO FD 1400 P 190-0623 A 1401- 01.

NAME RANK RESIDENCE UNIT ASSIGNED

* * * * * * * BRAULIO RICO------ SGT. SAN SEBASTIAN, P.R. 44TH Q.M. CO.

( LT. MAINT.)

PARAGRAPH 5 OF SPECIAL ORDERS NO. 6, DATED JANUARY 9, 1941, AND EMANATING FROM THE SAME AUTHORITY PROVIDES:

5. HAVING BEEN FOUND PHYSICALLY DISQUALIFIED FOR ACTIVE DUTY SERGEANT BRAULIO RICO, 44TH QUARTERMASTER COMPANY ( L.M.),PUERTO RICAN GENERAL DEPOT, FORT BUCHANAN, P.R., IS DISCHARGED UNDER THE PROVISIONS OF PARAGRAPH 22 B (1) AR 150-5. HE IS AUTHORIZED TRANSPORTATION TO HIS HOME, SAN SEBASTIAN, P.R. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. REIMBURSEMENT FOR TRANSPORTATION IS AUTHORIZED AT THE RATE OF FIVE CENTS ($0.05) PER MILE AND IS CHARGEABLE TO FD 1400 P 190-0623 A 1401 -01.

THE ENLISTED RESERVE CORPS IS AUTHORIZED BY SECTION 55 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 195, AS AMENDED BY SECTION 35 OF THE ACT OF JUNE 4, 1920, 41 STAT. 780, 10 U.S.C. 421 427. THE ENLISTED RESERVE CORPS CONSISTS OF PERSONS VOLUNTARILY ENLISTED THEREIN AND IS DEFINED AS A PART OF THE ARMY OF THE UNITED STATES. 10 U.S.C. 2. ENLISTMENTS THEREIN ARE FOR A TERM OF 3 YEARS EXCEPT FOR 1-YEAR PERIODS AND MAY BE DISCHARGED IN TIME OF PEACE WITHIN 90 DAYS, IF THEY MAKE APPLICATION THEREFOR. ENLISTMENTS IN FORCE AT THE OUTBREAK OF WAR CONTINUE IN FORCE UNTIL 6 MONTHS AFTER ITS TERMINATION UNLESS SOONER TERMINATED BY THE PRESIDENT. UNDER THE PROVISIONS OF SECTION 55A, THE PRESIDENT MAY FORM THE MEMBERS OF THE ENLISTED RESERVE CORPS INTO TACTICAL ORGANIZATIONS SIMILAR TO THOSE OF THE REGULAR ARMY, SIMILARLY ARMED, UNIFORMED, AND EQUIPPED, AND MAY OFFICER THEM BY ASSIGNMENT OF RESERVE OFFICERS OR OFFICERS OF THE REGULAR ARMY, ACTIVE OR RETIRED.

UNDER SECTION 55 AS FURTHER AMENDED BY THE ACT OF JUNE 8, 1926, 44 STAT. 704, IT WAS PROVIDED:

* * * ENLISTMENT SHALL BE LIMITED TO PERSONS ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY WHO HAVE HAD SUCH MILITARY OR TECHNICAL TRAINING AS MAY BE PRESCRIBED BY REGULATIONS OF THE SECRETARY OF WAR, EXCEPT THAT FOR ORIGINAL ENLISTMENTS IN RAILWAY OPERATING UNITS THE MAXIMUM AGE LIMIT SHALL BE FORTY-FIVE YEAR. * * *

SECTION 55B, 41 STAT. 780, 10 U.S.C. 426, PROVIDES:

MEMBERS OF THE ENLISTED RESERVE CORPS MAY BE PLACED ON ACTIVE DUTY, AS INDIVIDUALS OR ORGANIZATIONS, IN THE DISCRETION OF THE PRESIDENT, BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS NO RESERVIST SHALL BE ORDERED TO ACTIVE DUTY IN EXCESS OF THE NUMBER PERMISSIBLE UNDER APPROPRIATIONS MADE FOR THIS SPECIFIC PURPOSE, NOR FOR A LONGER PERIOD THAN FIFTEEN DAYS IN ANY ONE CALENDAR YEAR WITHOUT HIS OWN CONSENT. WHILE ON ACTIVE DUTY THEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS OTHER ENLISTED MEN OF LIKE GRADES AND LENGTH OF SERVICE.

UNDER ARMY REGULATIONS 150-5 A MEMBER OF THE ENLISTED RESERVE CORPS IS IN AN INACTIVE STATUS EXCEPT WHEN PLACED ON ACTIVE DUTY FOR TRAINING, INSTRUCTIONS, OR OTHER DUTY IN TIME OF PEACE, AND IN THE EVENT OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS. UNDER PARAGRAPH 5 OF THESE REGULATIONS, INDIVIDUALS WITH PRIOR HONORABLE MILITARY OR NAVAL SERVICES, PERSONS WHO ATTEND C.M.T.C. CAMPS, OR WHO HAVE BEEN MEMBERS OF R.O.T.C. UNITS AS THEREIN DESCRIBED, AND PERSONS WHOSE OCCUPATION OR TRAINING IN CIVILIAN LIFE PROPERLY QUALIFIES THEM FOR TECHNICAL DUTIES, INCLUDING CREDITS OF RECOGNIZED UNIVERSITIES OR COLLEGES, ARE ELIGIBLE FOR ENLISTMENTS IN GRADES ABOVE THE LOWEST ENLISTED GRADE IN THE REGULAR ARMY.

SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 895, 37 U.S.C. 13A, PROVIDES, IN PART, AS FOLLOWS:

THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL BE AS FOLLOWS: * * * 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. * * *

SECTION 14 (C) OF THE SAME ACT, 54 STAT. 896, PROVIDES:

NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REPEAL, AMEND, OR SUSPEND THE LAWS NOW IN FORCE AUTHORIZING VOLUNTARY ENLISTMENT OR REENLISTMENT IN THE LAND AND NAVAL FORCES OF THE UNITED STATES, INCLUDING THE RESERVE COMPONENTS THEREOF.

IT SEEMS CLEAR FROM THE PROVISIONS OF SECTION 55 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND ARMY REGULATIONS ISSUED PURSUANT THERETO, THAT THERE WAS A DEFINITE PURPOSE TO ORGANIZE AND MAINTAIN THE ENLISTED RESERVE CORPS, IN SUBSTANTIAL PART, FROM PERSONS WITH MILITARY AND TECHNICAL TRAINING AND TO ENLIST THEM IN HIGHER GRADES OR RATINGS THAN PRIVATES; AND SECTION 55B PROVIDES THAT WHEN ON ACTIVE DUTY THEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ENLISTED MEN OF THE REGULAR ARMY.

IN VIEW OF THE SPECIFIC PROVISIONS OF THE LAW AND STATUTORY REGULATIONS GOVERNING THE ENLISTED RESERVE CORPS, THE MEMBERS THEREOF WHO HOLD GRADES OR RATINGS ABOVE THE SEVENTH GRADE UPON ENTRY INTO THE ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, SEVENTY-SIXTH CONGRESS, APPROVED AUGUST 27, 1940, 54 STAT. 864, ARE ENTITLED TO THE PAY OF THEIR GRADES REGARDLESS OF THE AMOUNT OF PRIOR SERVICE IN SAID RESERVE. ACCORDINGLY, MEMBERS OF THE ENLISTED RESERVE CORPS WHO HOLD GRADES ABOVE THE SEVENTH ARE ENTITLED TO RECEIVE THE PAY OF THE GRADE HELD BY THEM AT THE TIME THEY ARE PLACED ON ACTIVE DUTY REGARDLESS OF LENGTH OF SERVICE.

THE QUESTIONS PROPOUNDED IN THE ENDORSEMENT OF THE CHIEF OF FINANCE ARE NOT INVOLVED IN THE VOUCHER PRESENTED; WHEN NOT SO INVOLVED A BINDING DECISION THEREON CAN ONLY BE RENDERED ON THE APPLICATION OF THE HEAD OF A DEPARTMENT OR ESTABLISHMENT. PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.