B-20641, OCTOBER 22, 1941, 21 COMP. GEN. 356

B-20641, OCTOBER 22, 1941, 21 COMP. GEN. 356

CLOTHING - UNIFORMS - FLEET RESERVE THE RIGHT UNDER TITLE III, SECTION 303, OF THE NAVAL RESERVE ACT OF 1938 TO AN ISSUE OF UNIFORMS, ETC., UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY IS LIMITED TO MEMBERS OF THE COMPONENTS OF THE NAVAL RESERVE MENTIONED IN THE HEADING OF SAID TITLE III, NAMELY, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE, AND, THEREFORE, MEMBERS OF THE FLEET RESERVE ARE NOT ENTITLED TO THE ISSUE OF UNIFORMS, ETC., PROVIDED THEREIN.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 22, 1941:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1941, REQUESTING DECISION ON THE QUESTION WHETHER ENLISTED MEN OF THE FLEET RESERVE (CLASS F-2) OF THE NAVAL RESERVE ARE "ENTITLED TO AN ISSUE OF UNIFORMS UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY, IN THE SAME MANNER AS NOW AUTHORIZED TO BE ISSUED TO OTHER ENLISTED MEMBERS OF THE NAVAL RESERVE UNDER PROVISIONS OF SECTION 303 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181; 34 U.S.C., SUPP. V, SEC. 855 B) AND INSTRUCTIONS ISSUED PURSUANT THERETO, AS SET FORTH IN ARTICLE H-8705, BUREAU OF NAVIGATION MANUAL.'

SECTION 303 OF THE NAVAL RESERVE ACT OF 1938, IS AS FOLLOWS:

IN TIME OF PEACE MIDSHIPMEN, MERCHANT MARINE CADETS, NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE MAY BE ISSUED ARTICLES OF UNIFORM, BEDDING, AND EQUIPMENT IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY ENLISTED MEN OF THE NAVAL RESERVE MAY BE ISSUED SUCH ADDITIONAL ARTICLES AS ARE REQUIRED TO GIVE THEM THE SAME OUTFIT AS IS AUTHORIZED FOR ENLISTED PERSONNEL OF THE REGULAR NAVY UPON FIRST ENLISTMENT, AND MIDSHIPMEN, MERCHANT MARINE CADETS, AND NURSES SHALL BE ISSUED SUCH ADDITIONAL ARTICLES AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.

SECTION 1 OF THE SAME ACT ABOLISHED THE NAVAL RESERVE ESTABLISHED UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, AND CREATED AND ESTABLISHED IN LIEU THEREOF A NAVAL RESERVE CONSISTING OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE. TITLE III OF THE NAVAL RESERVE ACT OF 1938, UNDER WHICH SECTION 303 IS INCLUDED, IS HEADED AS FOLLOWS: " TITLE III--- PROVISIONS APPLICABLE ONLY TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE"

CERTAIN OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AND THE ATTORNEY GENERAL OF THE UNITED STATES, WHICH YOU DEEM PERTINENT TO THE QUESTION PRESENTED, ARE REFERRED TO IN YOUR LETTER AS FOLLOWS:

* * * YOUR ATTENTION IS INVITED TO THE FACT THAT THE JUDGE ADVOCATE GENERAL OF THE NAVY, IN AN APPROVED OPINION DATED MARCH 31, 1941, STATED THAT THE CAPTION OF TITLE III OF THE NAVAL RESERVE ACT OF 1938 "CANNOT BE GIVEN CONTROLLING EFFECT AS LIMITING THE SCOPE OF EXPLICITLY WORDED ENACTMENTS IN THE BODY OF SAID TITLE.'

ON THIS SAME POINT ATTENTION IS FURTHER INVITED TO AN OPINION RENDERED BY THE ATTORNEY GENERAL TO THE SECRETARY OF THE NAVY MAY 15, 1941, TO THE EFFECT THAT THERE WAS NO LEGAL OBJECTION TO THE ORDER OF THE SECRETARY OF THE NAVY TRANSFERRING AN OFFICER OF THE FLEET RESERVE TO THE HONORARY RETIRED LIST ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938.

THE SUBJECT OF TITLE III WAS ENACTED BY THE CONGRESS WITH THE OTHER PROVISIONS OF THE ACT. IT IS POSSIBLE THAT SOME PROVISIONS APPEARING IN TITLE III INCLUDE MEMBERS OF THE NAVAL RESERVE OTHER THAN MEMBERS OF THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE AND THE VOLUNTEER RESERVE; BUT THE WORDS ENACTED IN DEFINING THE SUBJECT MATTER OF TITLE III MUST BE GIVEN THE EFFECT CLEARLY IMPORTED BY THE WORDS USED WHERE THEY ARE RESTRICTIVE, AS HERE, AND THE PARTICULAR PROVISION CONSIDERED WAS INTENDED TO APPLY ONLY TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE.

THE ENLISTED MEN OF THE FLEET RESERVE CREATED BY THE NAVAL RESERVE ACT OF 1938, ALL ARE MEN WITH AT LEAST FOUR YEARS' PRIOR SERVICE IN THE REGULAR NAVY. THE LAW AUTHORIZES THE ISSUANCE OF ONLY ONE CLOTHING OUTFIT TO AN ENLISTED MAN OF THE REGULAR NAVY, AND WHEN HE HAS RECEIVED THAT ONE OUTFIT IN HIS FIRST ENLISTMENT HE IS NOT ENTITLED TO ANY FURTHER ISSUANCE OF CLOTHING AT GOVERNMENT EXPENSE, REGARDLESS OF THE NUMBER OF TIMES HE REENLISTS IN THE REGULAR NAVY, AND SECTION 303 OF THE ACT GIVES TO THE MEMBERS INCLUDED WITHIN ITS TERMS ONLY "THE SAME OUTFIT AS IS AUTHORIZED FOR ENLISTED PERSONNEL OF THE REGULAR NAVY UPON FIRST ENLISTMENT.' THE CHIEF OF THE BUREAU OF NAVIGATION IN HIS LETTER OF SEPTEMBER 10, 1941, WHICH YOU FORWARDED, STATES THAT THE REGULATIONS ISSUED UNDER THE NAVAL RESERVE ACT OF 1938 HAVE NOT PROVIDED, AND DO NOT PROVIDE, FOR SUCH AN ISSUE TO ANY MEMBER OF THE FLEET RESERVE.

IN THE REPORT OF THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES ( REPT. NO. 2465, 75TH CONG. 3D SESS.), THE SCOPE AND PURPOSE OF SECTION 303 OF THE NAVAL RESERVE ACT WERE EXPLAINED AS FOLLOWS:

SECTION 303 PROVIDES THAT ENLISTED MEMBERS OF THE ORGANIZED MERCHANT MARINE AND VOLUNTEER RESERVES MAY BE ISSUED UNIFORMS, BEDDING, AND EQUIPMENT AS PRESCRIBED BY THE SECRETARY OF THE NAVY. IT IS ESSENTIALLY THE SAME AS SECTION 13 OF EXISTING LAW ( U.S.C., TITLE 34, SEC. 761; 43 STAT. 1083) EXCEPT THAT INSTEAD OF BEING GIVEN A COMPLETE NEW AND ADDITIONAL OUTFIT WHEN FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR, THEY ARE GIVEN ONLY SUCH ADDITIONAL ITEMS AS ARE REQUIRED TO COMPLETE THE OUTFIT ALREADY FURNISHED THEM.

IN THE LIGHT OF THE FOREGOING, IT IS NOT OPEN TO QUESTION THAT THE RESTRICTIVE PROVISIONS OF THE SUBJECT OF TITLE III OF THE ACT WERE INTENDED TO APPLY TO SECTION 303 APPEARING IN THAT TITLE, AND THAT MEMBERS OF THE FLEET RESERVE ARE NOT ENTITLED TO AN ISSUE OF UNIFORMS, ETC., UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY.