B-25706, SEPTEMBER 2, 1942, 22 COMP. GEN. 171

B-25706, SEPTEMBER 2, 1942, 22 COMP. GEN. 171

PAY - HIGHER COMMAND IN TIME OF WAR - MARINE CORPS OFFICERS ALTHOUGH SECTION 1612, REVISED STATUTES, ASSIMILATES THE PAY AND ALLOWANCES OF MARINE CORPS OFFICERS TO THOSE OF OFFICERS OF LIKE GRADES IN THE ARMY, SUBSEQUENT STATUTES SPECIFICALLY SETTING FORTH THE PAY AND THE RENTAL AND SUBSISTENCE ALLOWANCES OF MARINE CORPS OFFICERS MAKE SUCH ASSIMILATION INOPERATIVE WITH RESPECT TO SAID PAY AND ALLOWANCES, SO THAT MARINE CORPS OFFICERS MAY NOT OBTAIN ANY ADDITIONAL PAY AND RENTAL AND SUBSISTENCE ALLOWANCES UNDER SECTION 7 OF THE ACT OF APRIL 26, 1898, WHICH PROVIDES THAT, UNDER CERTAIN CIRCUMSTANCES, AN ARMY OFFICER WHO EXERCISES IN TIME OF WAR A COMMAND ABOVE THAT PERTAINING TO HIS GRADE SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. E. E. SHAUGHNESSEY, U.S. MARINE CORPS, SEPTEMBER 2, 1942:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF APRIL 28, 1942, YOUR LETTER OF APRIL 21, 1942, WITH WHICH YOU TRANSMITTED A VOUCHER IN FAVOR OF MAJ. D. M. SHOUP, U.S. MARINE CORPS, IN THE AMOUNT OF $94.86, COVERING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE AUTHORIZED FOR AN OFFICER ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE FOURTH PERIOD AND AN OFFICER ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE FIFTH PERIOD FROM FEBRUARY 19, 1942, TO MARCH 25, 1942. YOUR LETTER IS, IN PART, AS FOLLOWS:

MAJOR SHOUP BASES HIS CLAIM ON THE FACT THAT HE HAS COMMANDED THE SECOND BATTALION, SIXTH MARINES, SINCE FEBRUARY 19, 1942; THAT HE WAS ASSIGNED TO THIS COMMAND IN ORDERS ISSUED BY COMPETENT AUTHORITY; THAT THE GRADE APPROPRIATE TO THIS COMMAND IS LIEUTENANT COLONEL, AS SHOWN IN CURRENT TABLES OF ORGANIZATION; AND THAT THE COMMAND WAS EXERCISED IN ICELAND FROM FEBRUARY 19TH TO MARCH 8TH, AND ABOARD A SHIP OF THE U.S. NAVY, FORMING PART OF A CONVOY, IN THE NORTH ATLANTIC OCEAN FROM MARCH 8TH TO MARCH 25TH.

MAJOR SHOUP FURTHER STATES THAT THE ABOVE SERVICE WAS OPERATING AGAINST AN ENEMY IN TIME OF WAR. WHILE IN ICELAND THIS BATTALION WAS PREPARED AND DISPOSED FOR COMBAT. WHILE ABOARD SHIP THE BATTALION MAINTAINED REGULAR BATTLE LOOK-OUT AND GUN WATCHES. THE AREAS ABOVE MENTIONED HAD BEEN DESIGNATED AS COMBAT AREAS. THE BATTALION DID NOT ACTUALLY ENGAGE IN A BATTLE OR SKIRMISH DURING THE ABOVE PERIOD.

A DECISION IS REQUESTED AS TO WHETHER OR NOT THE ABOVE SERVICE CONSTITUTES OPERATION AGAINST AN ENEMY AS CONTEMPLATED IN THE ACT OF APRIL 26, 1898; 10 U.S.C. 694; AND WHETHER OR NOT THE ENCLOSED VOUCHER IS PROPER FOR PAYMENT. MAJOR SHOUP HAS BEEN PAID THE PAY AND ALLOWANCES OF A MAJOR WITH OVER 15 YEARS SERVICE FOR THE ABOVE PERIOD.

SUBMITTED WITH THE VOUCHER IS A COPY OF A LETTER DATED FEBRUARY 15, 1942, ADDRESSED TO MAJOR SHOUP BY THE COMMANDING OFFICER, SIXTH MARINES ( REINFORCED), FIRST MARINE BRIGADE ( PROVISIONAL), ICELAND BASE COMMAND, AS FOLLOWS:

1.UPON DEPARTURE OF COLONEL W. A. WORTON, USMC ON FEBRUARY 19, 1942, YOU WILL ASSUME COMMAND OF THE SECOND BATTALION, SIXTH MARINES ( REINFORCED). THE OFFICER HAS MADE THE FOLLOWING CERTIFICATION ON THIS LETTER:

I CERTIFY THAT I ASSUMED COMMAND OF THE SECOND BATTALION, SIXTH MARINES IN COMPLIANCE WITH THE ABOVE ORDER, AND FURTHER, THAT OPERATIONS AGAINST THE ENEMY CEASED UPON ARRIVAL AT PORT OF DEBARKATION IN THE UNITED STATES OF AMERICA ON 25 MARCH, 1942. IT IS NOT SHOWN WHETHER MAJOR SHOUP WAS PRIOR TO THE ORDER A MEMBER OF THE SECOND BATTALION, SIXTH MARINES ( REINFORCED). SEE 26 COMP. DEC. 1074. HOWEVER, IN VIEW OF WHAT IS HEREAFTER SAID, THE FAILURE TO GIVE EXACT INFORMATION AS TO THE ASSIGNMENT OF MAJOR SHOUP PRIOR TO ASSUMING THE COMMAND IS NOT IMPORTANT.

THE TABLES OF ORGANIZATION FOR AN INFANTRY BATTALION OF THE MARINE CORPS SHOW THAT THE HIGHEST RANKING OFFICER ATTACHED TO SUCH AN ORGANIZATION IS A LIEUTENANT COLONEL AND IT IS ON THE THEORY THAT HE EXERCISED A COMMAND ABOVE THAT PERTAINING TO HIS GRADE DURING THE PERIOD COVERED BY THE VOUCHER THAT MAJOR SHOUP PRESENTS HIS CLAIM.

YOU REQUEST DECISION WHETHER OR NOT THE SERVICE PERFORMED BY MAJOR SHOUP CONSTITUTES OPERATION AGAINST AN ENEMY AS CONTEMPLATED BY THE ACT OF APRIL 26, 1898, 30 STAT. 364. SECTION 7 OF THE ACT, 30 STAT. 365, PROVIDES IN PART AS FOLLOWS:

THAT IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE, SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE COMMAND SO EXERCISED: PROVIDED, THAT A RATE OF PAY EXCEEDING THAT OF A BRIGADIER-GENERAL SHALL NOT BE PAID IN ANY CASE BY REASON OF SUCH ASSIGNMENT: * * *

THE ACT OF APRIL 26, 1898, WAS AN ACT FOR THE BETTER ORGANIZATION OF THE LINE OF THE ARMY AND ALL OF ITS PROVISIONS RELATE TO MATTERS PERTAINING TO THE ARMY. SECTION 7 THEREOF AUTHORIZING A HIGHER RATE OF PAY IF THE CONDITIONS OF THE SECTION ARE MET IS A PROVISION FOR THE PAY OF THE ARMY AND OFFICERS OF THE MARINE CORPS WERE ENTITLED TO THE BENEFITS THEREOF ONLY BECAUSE OF SECTION 1612, REVISED STATUTES, WHICH PROVIDES THAT OFFICERS OF THE MARINE CORPS SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR OFFICERS OF LIKE GRADES IN THE INFANTRY OF THE ARMY. HOWEVER, SECTION 1612 IN NO WAY PREVENTS THE CONGRESS FROM MAKING PROVISIONS COVERING THE PAY OF THE ARMY DIFFERENT FROM THAT FOR THE MARINE CORPS. THE CONGRESS MAY CHANGE THE PAY OF THE MARINE CORPS AT ANY TIME AND MAY ALSO PROVIDE FOR THE PAY OF THE ARMY WITHOUT HAVING SUCH PROVISIONS APPLICABLE TO THE MARINE CORPS. CRAIG V. UNITED STATES, 61 C.1CLS. 687.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, PROVIDES THAT EFFECTIVE JULY 1, 1922, THE ANNUAL BASE PAY OF COMMISSIONED OFFICERS OF THE MARINE CORPS BELOW THE GRADE OF BRIGADIER-GENERAL, AS WELL AS FOR THE OFFICERS OF THE REGULAR ARMY OF CORRESPONDING GRADES SHALL BE AS INDICATED THEREIN AND SECTIONS 5 AND 6, 42 STAT. 628, PROVIDE FOR THE SUBSISTENCE AND RENTAL ALLOWANCES TO BE PAID AN OFFICER RECEIVING A PARTICULAR BASE PAY. SECTION 8 OF THE SAME ACT, 42 STAT. 629, PROVIDES FOR THE PAY OF GENERAL OFFICERS. SIMILAR PROVISIONS HAVE RECENTLY BEEN MADE IN THE ACT OF JUNE 16, 1942, PUBLIC LAW NO. 607, 56 STAT. 359, EFFECTIVE JUNE 1, 1942. THESE STATUTES CONTAIN SPECIFIC PROVISIONS FOR THE PAY OF OFFICERS OF THE MARINE CORPS.

THE VOUCHER SHOWS THAT MAJOR SHOUP HAS COMPLETED 15 YEARS' SERVICE AND IT IS INDICATED IN YOUR LETTER THAT HE HAS BEEN PAID THE PAY AND ALLOWANCES AUTHORIZED FOR SUCH AN OFFICER--- THAT IS, THE PAY OF THE FOURTH PERIOD. THE QUESTION PRESENTED IS WHETHER THE OFFICER IS ENTITLED TO THE PAY OF THE FIFTH PERIOD. PARAGRAPH 5 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 23, 1928, 45 STAT. 719, PROVIDES THAT THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO MAJORS OF THE ARMY AND OFFICERS OF CORRESPONDING GRADES WHO HAVE COMPLETED 14 YEARS' SERVICE. PARAGRAPH 4 OF THE SAME SECTION PROVIDES THAT THE PAY OF THE FIFTH PERIOD SHALL BE PAID TO MAJORS OF THE ARMY AND OFFICERS OF CORRESPONDING GRADES WHO HAVE COMPLETED 23 YEARS' SERVICE. PARAGRAPH 9 OF SUCH SECTION PROVIDES THAT---

DURING THE EXISTENCE OF A STATE OF WAR, FORMALLY RECOGNIZED BY CONGRESS, OFFICERS OF GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, AND FIRST LIEUTENANTS OF THE ARMY, HOLDING EITHER PERMANENT OR TEMPORARY COMMISSIONS AS SUCH, SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, AND SECOND PERIODS, RESPECTIVELY, UNLESS ENTITLED UNDER THE FOREGOING PROVISIONS OF THIS SECTION TO THE PAY OF A HIGHER PERIOD. SECTION 21 OF THE 1922 ACT, 42 STAT. 633, PROVIDES THAT THE PROVISIONS OF THAT ACT SHALL NOT OPERATE TO CHANGE CERTAIN EXISTING LAWS OR REGULATIONS MADE IN PURSUANCE TO LAW BUT NO PROVISION IS MADE THAT LAWS RELATING GENERALLY TO THE PAY OF OFFICERS ARE EXCEPTED.

IT HAS BEEN HELD THAT WHERE A SPECIFIC PROVISION HAS BEEN MADE FOR PAY OF THE MARINE CORPS SUCH PROVISION IS EXCLUSIVE INSOFAR AS IT COVERS THE PAY OF THE MARINE CORPS AND NOTHING ADDITIONAL MAY BE OBTAINED BECAUSE OF SECTION 1612, R.S., 5 COMP. GEN. 917; BRISTOW V. UNITED STATES, 47 C.1CLS. 46. SEE ALSO THOMAS V. UNITED STATES, 195 U.S. 418. IN THE BRISTOW CASE IT WAS STATED:

* * * THE PAY OF THE MARINE CORPS IS REGULATED BY THE LAWS WHICH GOVERN THE PAY OF THE ARMY, AND THIS IS DONE BY THE AUTOMATIC ACTION OF SECTION 1612, REVISED STATUTES. THIS SECTION, HOWEVER, DOES NOT PERFORM THIS FUNCTION WHEN CONGRESS HAS MADE ANY SPECIFIC PROVISION FOR THE PAY OF THE MARINE CORPS OR ANY ONE OF ITS OFFICERS OR ENLISTED MEN * * *.

ACCORDINGLY, SPECIFIC PROVISION HAVING BEEN MADE FOR THE PAY OF OFFICERS OF THE MARINE CORPS AND THE RENTAL AND SUBSISTENCE ALLOWANCES AUTHORIZED TO BE PAID OFFICERS RECEIVING THE PAY OF THE DESIGNATED PERIODS, OFFICERS OF THE MARINE CORPS ARE ENTITLED TO THE PAY THEREIN PROVIDED AND TO NO OTHER. YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.