B-19904, DECEMBER 12, 1941, 21 COMP. GEN. 562

B-19904, DECEMBER 12, 1941, 21 COMP. GEN. 562

PAY - ADDITIONAL - OVER 12 MONTHS' SERVICE THE PROVISION IN SECTION 8 (B) OF THE SERVICE EXTENSION ACT OF 1941 LIMITING THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 (A) OF SAID ACT FOR ARMY, ETC., ENLISTED MEN FOR EACH MONTH OF SERVICE IN EXCESS OF 12 TO THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941, DOES NOT REQUIRE THAT THE ADDITIONAL PAYMENTS AUTHORIZED BY SECTION 8 (A) BE DISCONTINUED IN TIME OF WAR OCCURRING DURING THE CONTINUANCE OF SUCH UNLIMITED EMERGENCY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 12, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 9, 1941, AS FOLLOWS:

SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, APPROVED AUGUST 18, 1941 ( PUBLIC LAW 213 - 77TH CONGRESS), AUTHORIZES PAYMENT "DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941," IN ADDITION TO AMOUNTS OTHERWISE PAYABLE, OF $10 PER MONTH, INTER ALIA, TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER AUGUST 18, 1941, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS TWELVE MONTHS. THIS PROVISION OF LAW WAS HELD APPLICABLE TO PERSONNEL OF THE NAVY AND MARINE CORPS BY THE COMPTROLLER GENERAL'S DECISION OF OCTOBER 29, 1941, B-19904 (21 COMP. GEN. 392).

IN THE CITED DECISION OF OCTOBER 29, 1941, THE QUESTION WAS CONSIDERED, AMONG OTHERS, AS TO WHETHER OR NOT, IN VIEW OF THE WORDING OF PARAGRAPH (B) OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, PARAGRAPH (A) OF SAID SECTION 8 BECAME INOPERATIVE IN CASE OF CHANGE FROM AN UNLIMITED EMERGENCY TO A LIMITED EMERGENCY OR WAR. THIS SPECIFIC QUESTION WAS NOT DECIDED FOR THE STATED REASON THAT IT "IS BASED ON CONDITIONS WHICH MAY NOT ARISE AND IT IS BELIEVED PROPER THAT NO DECISION WITH RESPECT THERETO SHOULD BE RENDERED AT THIS TIME.'

IN VIEW OF THE DECLARATION BY CONGRESS THAT A STATE OF WAR EXISTS BETWEEN THE IMPERIAL GOVERNMENT OF JAPAN AND THE GOVERNMENT AND THE PEOPLE OF THE UNITED STATES ( SENATE JOINT RESOLUTION 116, PASSED BY BOTH THE SENATE AND THE HOUSE OF REPRESENTATIVES ON DECEMBER 8, 1941), YOUR DECISION IS NOW REQUESTED ON THE FOLLOWING SPECIFIC QUESTION:

IN VIEW OF THE WORDING OF PARAGRAPH (B) OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 ( PUBLIC LAW 213, APPROVED AUGUST 18, 1941), DOES PARAGRAPH (A) OF SAID SECTION 8 BECOME INOPERATIVE FROM AND AFTER DECEMBER 8, 1941?

IN VIEW OF THE URGENCY OF THIS MATTER, IT IS REQUESTED THAT YOUR REPLY BE EXPEDITED.

SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 (APPROVED AUGUST 18, 1941), 55 STAT. 627, IS AS FOLLOWS:

(A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR ACTIVE TRAINING AND SERVICE, UNDER SECTION 3 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 SHALL, IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE TO SUCH PERSON WITH RESPECT TO SUCH TRAINING AND SERVICE, BE ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH TRAINING AND SERVICE IN EXCESS OF TWELVE. THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY (1) TO ANY ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, OR SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, FOR ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL, IN EXCESS OF TWELVE MONTHS, AND (2) TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER THE DATE OF ENACTMENT OF THIS JOINT RESOLUTION, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS TWELVE MONTHS.

(B) THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE ONLY DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941.

ON MAY 27, 1941, THE PRESIDENT ISSUED A PROCLAMATION ( NO. 2487) WHICH IS, IN PART, AS FOLLOWS:

NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, PRESIDENT OF THE UNITED STATES OF AMERICA, DO PROCLAIM THAT AN UNLIMITED NATIONAL EMERGENCY CONFRONTS THIS COUNTRY, WHICH REQUIRES THAT ITS MILITARY, NAVAL, AIR, AND CIVILIAN DEFENSES BE PUT ON THE BASIS OF READINESS TO REPEL ANY AND ALL ACTS OR THREATS OF AGGRESSION DIRECTED TOWARD ANY PART OF THE WESTERN HEMISPHERE.

PUBLIC LAW 328 (77TH CONG., ST SESS.), APPROVED DECEMBER 8, 1941, IS AS FOLLOWS:

WHEREAS THE IMPERIAL GOVERNMENT OF JAPAN HAS COMMITTED UNPROVOKED ACTS OF WAR AGAINST THE GOVERNMENT AND THE PEOPLE OF THE UNITED STATES OF AMERICA: THEREFORE BE IT

RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE STATE OF WAR BETWEEN THE UNITED STATES AND THE IMPERIAL GOVERNMENT OF JAPAN WHICH HAS THUS BEEN THRUST UPON THE UNITED STATES IS HEREBY FORMALLY DECLARED; AND THE PRESIDENT IS HEREBY AUTHORIZED AND DIRECTED TO EMPLOY THE ENTIRE NAVAL AND MILITARY FORCES OF THE UNITED STATES AND THE RESOURCES OF THE GOVERNMENT TO CARRY ON WAR AGAINST THE IMPERIAL GOVERNMENT OF JAPAN; AND, TO BRING THE CONFLICT TO A SUCCESSFUL TERMINATION, ALL OF THE RESOURCES OF THE COUNTRY ARE HEREBY PLEDGED BY THE CONGRESS OF THE UNITED STATES.

THE PROVISIONS OF THE ENACTMENT DECLARING THAT A STATE OF WAR EXISTS BETWEEN THE UNITED STATES AND THE IMPERIAL GOVERNMENT OF JAPAN ARE CONSISTENT WITH THE TERMS OF THE PROCLAMATION AND INDICATE AN INTENSIFICATION OF THE CONDITION REFERRED TO BY THE PRESIDENT. NEITHER THE TERMS OF PUBLIC LAW 328, NOR THE PROVISIONS OR LEGISLATIVE HISTORY OF THE SERVICE EXTENSION ACT OF 1941, INDICATE THAT THE CONGRESS INTENDED THE PAYMENTS AUTHORIZED BY SECTION 8 (A), SUPRA, TO BE DISCONTINUED IN TIME OF WAR SHOULD THAT OCCUR DURING THE CONTINUANCE OF THE UNLIMITED NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT MAY 27, 1941.

ACCORDINGLY, THE UNLIMITED NATIONAL EMERGENCY DECLARED BY THE PRESIDENT MAY BE CONSIDERED AS STILL IN EXISTENCE FOR THE PURPOSES OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AND THE SAID SECTION IS EFFECTIVE TO AUTHORIZE THE CONTINUATION OF PAYMENTS IN ACCORDANCE WITH ITS TERMS ON AND AFTER DECEMBER 8, 1941.