B-22785, JANUARY 23, 1942, 21 COMP. GEN. 702

B-22785, JANUARY 23, 1942, 21 COMP. GEN. 702

CLOTHING - NAVY NURSE CORPS (FEMALE) - APPROPRIATION AVAILABILITY UNLESS AND UNTIL THERE IS DEFINITE AND SPECIFIC STATUTORY PROVISION THEREFOR, MEMBERS OF THE NAVY NURSE CORPS (FEMALE) MAY NOT BE GRATUITOUSLY ISSUED A QUANTITY OF CLOTHING IN EXCESS OF THAT UPON WHICH APPROPRIATIONS HAVE BEEN BASED SINCE THE ACT OF JANUARY 22, 1923, WHICH FOR THE FIRST TIME PROVIDED FOR THE AUTHORIZED ISSUE OF CLOTHING AND EQUIPMENT TO MEMBERS OF SAID NURSE CORPS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 23, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 26, 1941, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION OF THE WEARING OF AN OUTDOOR UNIFORM BY MEMBERS OF THE NAVY NURSE CORPS (FEMALE), WHICH IN TURN RAISES THE FURTHER QUESTION AS TO WHETHER AN ALLOWANCE TO COVER THE COST OF THIS ADDITIONAL ITEM OF CLOTHING MAY BE GRANTED. THIS PROPOSED ISSUE OF AN OUTDOOR UNIFORM WOULD BE MADE IN THE CASE OF ALL NAVY NURSES (FEMALE), INCLUDING THOSE ALREADY APPOINTED.

THE NAVY NURSE CORPS (FEMALE) WAS ESTABLISHED BY THE ACT OF MAY 13, 1908 (35 STAT. 146; 34 U.S.C. 41). PROVISION FOR THE PAY AND ALLOWANCE OF FEMALE NURSES OF THE NAVY IS FOUND IN SECTION 13 OF THE ACT OF JUNE 10, 1922 (42 STAT. 631; 37 U.S.C. 22), AS FOLLOWS:

"THAT, COMMENCING JULY 1, 1922, THE ANNUAL PAY OF FEMALE NURSES OF THE ARMY AND NAVY SHALL BE AS FOLLOWS: DURING THE FIRST THREE YEARS OF SERVICE, $840; FROM THE BEGINNING OF THE FOURTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE SIXTH YEAR OF SERVICE, $1,080; FROM THE BEGINNING OF THE SEVENTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE NINTH YEAR OF SERVICE, $1,380; FROM THE BEGINNING OF THE TENTH YEAR OF SERVICE, $1,560. SUPERINTENDENTS OF THE NURSE CORPS SHALL RECEIVE A MONEY ALLOWANCE AT THE RATE OF $2,500 A YEAR, ASSISTANT SUPERINTENDENTS, DIRECTORS, AND ASSISTANT DIRECTORS AT THE RATE OF $1,500 A YEAR, AND CHIEF NURSES AT THE RATE OF $600 A YEAR, IN ADDITION TO THEIR PAY AS NURSES. NURSES SHALL BE ENTITLED TO THE SAME ALLOWANCE FOR SUBSISTENCE AS IS AUTHORIZED IN SECTION 5 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD, AND TO THE SAME ALLOWANCE FOR RENTAL OF QUARTERS AS IS AUTHORIZED IN SECTION 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.'

APPOINTMENTS OF NAVY NURSES ARE MADE BY THE SURGEON GENERAL OF THE NAVY WITH THE APPROVAL OF THE SECRETARY OF THE NAVY. THE QUESTION IS WELL SETTLED THAT NAVY NURSES ARE NOT OFFICERS, NOR ARE THEY ENTITLED TO RELATIVE RANK, AS PROVIDED FOR NURSES OF THE ARMY. THE COMPTROLLER GENERAL HAS RULED THAT MEMBERS OF THE NAVY NURSE CORPS ARE NOT OFFICERS OF THE NAVY, AND, NOT BEING ENTITLED TO MILEAGE, ARE ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSES AND PER DIEM IN LIEU OF ACTUAL SUBSISTENCE WHILE TRAVELING UNDER ORDERS. (COMP. GEN. A-50986, OCTOBER 7, 1933.) THE COMPTROLLER GENERAL HAS ALSO RULED THAT THE APPOINTMENT AND SERVICE OF FEMALE NURSES OF THE NAVY ARE SUCH AS TO GIVE THEM GENERALLY A MILITARY STATUS, AS DISTINGUISHED FROM A CIVILIAN STATUS, AND, AS SUCH, DEDUCTION ON ACCOUNT OF LAND-GRANT SHOULD BE MADE ON THE PAYMENT OF CHARGES FOR TRANSPORTATION REQUIRED OR AUTHORIZED BY THE GOVERNMENT IN CONNECTION WITH THEIR DUTY. (1 COMP. GEN. 355, CITING 1 ID. 233, WHICH HELD THAT COMMISSIONED ARMY NURSES ARE "TROOPS" OF THE UNITED STATES WITHIN THE MEANING OF THE LAND-GRANT STATUTES.)

WHILE MEMBERS OF THE NAVY NURSE CORPS ARE NEITHER OFFICERS NOR ENLISTED MEN, THEY HAVE A MILITARY STATUS AS DISTINGUISHED FROM A CIVILIAN STATUS, ARE PERSONS IN THE NAVAL SERVICE, AND WHEN ON DUTY IN ACCORDANCE WITH LAW ARE AMENABLE TO NAVAL DISCIPLINE THE SAME AS ARE MEMBERS OF OTHER CORPS OF THE NAVY. THERE IS, HOWEVER, NO PROVISION OF LAW WHICH IN TERMS SPECIFICALLY AUTHORIZES THE FURNISHING OF HEAT AND LIGHT TO MEMBERS OF THE NAVY NURSE CORPS AS EXPRESSLY PROVIDED FOR OFFICERS AND ENLISTED MEN UNDER THE ACT OF MARCH 2, 1907 (34 STAT. 1167; 10 U.S.C. 723), NOR IS THERE ANY SPECIFIC STATUTORY AUTHORITY FOR FURNISHING UNIFORM CLOTHING AT PUBLIC EXPENSE TO MEMBERS OF THE NAVY NURSE CORPS (FEMALE).

SECTION 1296, REVISED STATUTES (10 U.S.C. 831), PROVIDES THAT THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING THAT SHALL BE ISSUED ANNUALLY TO THE ARMY AND MARINE CORPS PURSUANT TO HIS AUTHORITY TO PRESCRIBE SUCH ISSUES OF CLOTHING FOR "TROOPS OF THE UNITED STATES," BUT SINCE THE COMPTROLLER GENERAL HAS RULED THAT ENLISTED MEN OF THE NAVY ARE NOT "TROOPS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1296, R.S., THE PRESIDENT IS WITHOUT AUTHORITY TO PRESCRIBE ISSUES OF CLOTHING TO ENLISTED MEN OF THE NAVY. IT WOULD THEREFORE APPEAR THAT IF ENLISTED MEN OF THE NAVY ARE NOT "TROOPS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1296, R.S., THERE IS CONSIDERABLE DOUBT THAT NAVY NURSES ARE "TROOPS OF THE UNITED STATES," AS ARE ARMY NURSES, AND THAT NAVY NURSES ARE NOT, THEREFORE, ENTITLED TO CLOTHING AT GOVERNMENT EXPENSE UNDER THE AUTHORITY OF THE PRESIDENT TO PRESCRIBE ISSUES OF CLOTHING TO "TROOPS OF THE UNITED STATES.'

IN CONSIDERATION OF ALL THE FOREGOING, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) ARE CURRENT NAVAL APPROPRIATIONS LEGALLY AVAILABLE TO MEET THE COST OF ARTICLES OF UNIFORM CLOTHING, HAVING A CURRENT VALUE OF ABOUT $91, ISSUED TO MEMBERS OF THE NAVY NURSE CORPS (FEMALE) ON ORIGINAL APPOINTMENT?

(2) ARE CURRENT NAVAL APPROPRIATIONS LEGALLY AVAILABLE TO MEET THE COST OF ISSUANCE OF AN ADDITIONAL ITEM OF CLOTHING TO MEMBERS OF THE NAVY NURSE CORPS (FEMALE), CONSISTING OF AN OUTDOOR UNIFORM AT AN ESTIMATED COST OF $75 PER UNIFORM?

(3) IN CONNECTION WITH QUERIES 1 AND 2, YOUR FURTHER DECISION IS REQUESTED AS TO THE TOTAL AMOUNT OR VALUE OF THE CLOTHING AUTHORIZED TO BE ISSUED AT GOVERNMENT EXPENSE TO MEMBERS OF THE NAVY NURSE CORPS, BOTH ON ORIGINAL APPOINTMENT AND SUBSEQUENT THERETO.

THE ACT OF MAY 13, 1908, 35 STAT. 146, ESTABLISHING THE NAVY NURSE CORPS (FEMALE), PROVIDED THAT NAVY NURSES SHALL "RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS, AND PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE NURSE CORPS (FEMALE) OF THE ARMY.' THE NURSE CORPS (FEMALE) OF THE ARMY WAS PROVIDED FOR BY SECTION 19 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 753. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE BENEFITS AUTHORIZED BY SECTION 19 OF THE ACT OF FEBRUARY 2, 1901, APPEAR TO BE EXCLUSIVE, AND INASMUCH AS NOTHING APPEARS THEREIN AUTHORIZING THE FURNISHING TO MEMBERS OF THE ARMY NURSE CORPS OF FREE CLOTHING, THE VIEW COULD HAVE BEEN TAKEN ADMINISTRATIVELY THAT SUCH ARMY NURSES BE REQUIRED TO EQUIP THEMSELVES WITH SUCH CLOTHING AS MAY HAVE BEEN NECESSARY IN THE PERFORMANCE OF NURSING DUTIES. HOWEVER, FOLLOWING THE ACT OF FEBRUARY 2, 1901, WAR DEPARTMENT GENERAL ORDERS NO. 13 OF AUGUST 22, 1901, WERE PUBLISHED COVERING THE ARMY NURSE CORPS, AND PARAGRAPH 15 THEREOF PRESCRIBED THE UNIFORM TO CONSIST OF A WAIST AND SKIRT OF SUITABLE WHITE MATERIAL, ADJUSTABLE WHITE CUFFS, BISHOP COLLAR, WHITE APRON AND CAP, ACCORDING TO PATTERNS AND SPECIFICATIONS IN THE SURGEON GENERAL'S OFFICE. IT WAS PROVIDED FURTHER THAT WHEN A NURSE WAS APPOINTED SHE SHOULD IMMEDIATELY PROCURE HER UNIFORM WHICH WOULD BE WORN DURING HER HOURS OF DUTY AND WHEN NOT IN UNIFORM SHE WOULD NOT BE ALLOWED IN THE WARDS WITHOUT SPECIAL PERMISSION OF THE CHIEF NURSE OR THE OFFICER IN CHARGE. CHAPTER V OF THE ACT OF JULY 9, 1918, 40 STAT. 879, 880, PROVIDED THAT THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY SHALL THEREAFTER BE KNOWN AS THE ARMY NURSE CORPS, FIXED THE PAY AND ALLOWANCES OF ITS MEMBERS, INCLUDING CUMULATIVE LEAVE PRIVILEGES, BUT THIS ACT, LIKE THE ANTECEDENT LEGISLATION ON THE SAME SUBJECT, WAS SILENT AS TO THE FREE ISSUE OF CLOTHING OR UNIFORMS TO ITS MEMBERS. BY SECTION 10 OF THE ACT OF JUNE 4, 1920, 41 STAT. 766, 767, MEMBERS OF THE ARMY NURSE CORPS WERE GIVEN RELATIVE RANK WITH OFFICERS OF THE ARMY AS THEREIN PROVIDED.

PARAGRAPH 21, ARMY REGULATIONS 40-20 (A), PROVIDES THAT UPON INITIAL ENTRY INTO THE MILITARY SERVICE NURSES OF THE REGULAR CORPS WILL BE ISSUED FREE OF CHARGE A UNIFORM AS LISTED IN THE TABLES OF BASIC ALLOWANCES. UNDER THE APPLICABLE WAR DEPARTMENT TABLE OF BASIC ALLOWANCES FREE ITEMS OF CLOTHING OR UNIFORM ARE ISSUED ONLY UPON INITIAL ENTRY INTO THE SERVICE; SOME OF THEM ARE ISSUED ONLY IN LOCALITIES WHERE THE UNIFORM IS REQUIRED TO BE WORN AT ALL TIMES; THE AUTHORITY TO ISSUE CERTAIN ITEMS FREE IS LIMITED TO THOSE NURSES ASSIGNED TO FIELD OR OVERSEAS SERVICE WHEN AUTHORIZED BY THE CORPS AREA COMMANDERS, AND SOME ITEMS REMAIN THE PROPERTY OF THE UNITED STATES TO BE TURNED IN ON CHANGE OF STATION.

THE LONG-CONTINUED PRACTICE OF THE WAR DEPARTMENT OF FURNISHING FREE OF CHARGE CERTAIN ITEMS OF CLOTHING AND UNIFORM TO MEMBERS OF THE NURSE CORPS OF THE ARMY WAS EVIDENTLY BASED UPON THE AUTHORITY CONTAINED IN SECTION 1296 OF THE REVISED STATUTES (10 U.S.C. 831) AND THIS PRACTICE HAVING APPARENTLY EXISTED PRIOR TO THE ACT WHICH CONFERRED RELATIVE RANK UPON SUCH MEMBERS OF THE ARMY NURSE CORPS, THE APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT UNDER CLOTHING AND EQUIPAGE HAVE APPARENTLY BEEN BASED UPON ESTIMATES FOR THE CONTINUANCE THEREOF.

IN THE NAVY, HOWEVER, AUTHORITY FOR THE ISSUANCE OF FREE CLOTHING, EVEN TO ENLISTED MEN AND RECRUITS, APPARENTLY DID NOT BEGIN UNTIL PASSAGE OF THE ACT OF MARCH 1, 1889, 25 STAT. 781, PROVIDING A BOUNTY NOT TO EXCEED $45 IN ORDER TO ENCOURAGE ENLISTMENTS OF BOYS AS APPRENTICES, AND EXCEPT AS EXTENDED BY SPECIFIC PROVISIONS, THE AUTHORITY IN THE NAVY TO ISSUE UNIFORM CLOTHING AND EQUIPMENT APPEARS TO BE LIMITED IN SCOPE. ALTHOUGH THE ACT OF MAY 13, 1908, 35 STAT. 146, PROVIDED THAT MEMBERS OF THE NAVY NURSE CORPS (FEMALE) SHALL RECEIVE THE SAME PAY AND ALLOWANCES, PRIVILEGES, AND EMOLUMENTS AS WERE THEN OR MIGHT THEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR MEMBERS OF THE ARMY NURSE CORPS, NO PROVISION APPEARS TO HAVE BEEN MADE FOR THE ISSUE OF CLOTHING AND EQUIPMENT TO MEMBERS OF THE NAVY NURSE CORPS UNTIL PASSAGE OF THE ACT OF JANUARY 22, 1923, 42 STAT. 1145, WHICH PROVIDED FOR THE AUTHORIZED ISSUES OF CLOTHING AND EQUIPMENT TO MEMBERS OF THE NAVY NURSE CORPS, THE CLOTHING AND SMALL STORES FUND TO BE CHARGED WITH THE VALUE OF SUCH ISSUES. SINCE 1928 SUCH ISSUES HAVE BEEN CHARGED TO THE APPROPRIATION FOR THE PAY OF NAVAL PERSONNEL INSTEAD OF THE CLOTHING AND SMALL STORES FUND, AND IT IS UNDERSTOOD THAT THE AMOUNT APPROPRIATED ANNUALLY FOR THIS PARTICULAR PURPOSE HAS BEEN CONSISTENTLY BASED UPON ESTIMATES WHICH CONTEMPLATED ONLY THE VALUE OF THE ISSUE UPON ORIGINAL ENTRY INTO THE ACTIVE NAVAL SERVICE OF THE CLOTHING NECESSARY FOR WARD AND HOSPITAL DUTIES OF THE NURSES CONCERNED, ANY ADDITIONAL UNIFORM EQUIPMENT BEING PROCURED AT THE EXPENSE OF THE INDIVIDUAL NURSE. SEE ARTICLE 1431, S. AND A. MANUAL (1931 REVISION), AS TO THE PROCEDURE FOR CREDITING THE COST OF THE ISSUE OF CLOTHING TO NURSES ON FIRST APPOINTMENT, THE APPROPRIATION TO BE CHARGED, AND THE PROVISION THAT REPLACEMENTS OR ADDITIONS TO THE ORIGINAL GRATUITOUS OUTFIT SHALL BE PURCHASED BY THE NURSE INDIVIDUALLY.

THIS OFFICE HAS NOT BEEN APPRISED OF THE INDIVIDUAL ITEMS WHICH CONSTITUTE THE GRATUITOUS ISSUE UPON FIRST APPOINTMENT TO NAVY NURSES, BUT UPON THE BASIS THAT THE ANNUAL APPROPRIATION PROVISIONS MERELY CONTEMPLATED THE FURNISHING OF A GRATUITOUS ISSUE SIMILAR TO THAT WHICH HAS HERETOFORE BEEN FURNISHED FOR THE PAST 18 YEARS, SUCH QUANTITY SHOULD NOT BE INCREASED UNLESS AND UNTIL A DEFINITE AND SPECIFIC PROVISION OF LAW HAS BEEN ENACTED AUTHORIZING THE FREE ISSUE OF ADDITIONAL CLOTHING.