B-40670, SEPTEMBER 20, 1944, 24 COMP. GEN. 229

B-40670: Sep 20, 1944

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IS CONFINED "FOR SECURITY REASONS" IN A CIVIL JAIL AT THE REQUEST OF NAVAL AUTHORITIES MAY INITIALLY BE CHARGED TO THE APPROPRIATION " PAY. 1944: REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM THE DIRECTOR NAVAL OFFICER PROCUREMENT. IT WILL BE OBSERVED THAT THE ENCLOSED CLAIMS ARE FOR LODGING AND SUBSISTENCE FURNISHED MEMBERS OF THE NAVAL SERVICE WHO WERE CONFINED IN THE CITY JAIL AT PHOENIX. THESE CLAIMS ARE FORWARDED FOR YOUR CONSIDERATION WITH THE RECOMMENDATION FOR DIRECT SETTLEMENT THEREOF BY THE GENERAL ACCOUNTING OFFICE AS A PROPER CHARGE AGAINST THE APPROPRIATION . IN CONNECTION WITH THE ABOVE PARTICULAR ATTENTION IS INVITED TO PARAGRAPH 5 OF THE ENCLOSED FOURTH ENDORSEMENT OF THE CHIEF OF NAVAL PERSONNEL.

B-40670, SEPTEMBER 20, 1944, 24 COMP. GEN. 229

APPROPRIATIONS - AVAILABILITY - LODGING AND SUBSISTENCE FURNISHED NAVY ENLISTED MEN DETAINED IN CIVIL JAILS THE COST OF LODGING AND SUBSISTENCE FURNISHED A NAVY ENLISTED MAN WHO, PENDING PROPER DISPOSITION, IS CONFINED "FOR SECURITY REASONS" IN A CIVIL JAIL AT THE REQUEST OF NAVAL AUTHORITIES MAY INITIALLY BE CHARGED TO THE APPROPRIATION " PAY, SUBSISTENCE, AND TRANSPORTATION OR NAVY PERSONNEL" IF A GOVERNMENTAL NECESSITY FOR SUCH CONFINEMENT BE SHOWN, AND ANY CONTRACT WITH LOCAL OFFICIALS IN RESPECT TO THE SUBSISTENCE AND LODGING WOULD NOT BE OBJECTIONABLE; HOWEVER, THE AMOUNT SO CHARGED SHOULD BE CHECKED AGAINST THE MAN'S PAY ACCOUNT AS IN THE CASE OF STRAGGLERS, FOR THE PURPOSE OF RECREDITING THE APPROPRIATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 20, 1944:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1944, WITH ENCLOSURES, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE DIRECTOR NAVAL OFFICER PROCUREMENT, LOS ANGELES, CALIFORNIA, DATED AUGUST 31, 1943, WITH ACCOMPANYING ENDORSEMENTS AND ENCLOSURE OF THREE CLAIMS SUBMITTED BY THE POLICE DEPARTMENT OF PHOENIX, ARIZONA, IN THE AMOUNTS OF $76, $111, AND $82, DATED AUGUST 6, 1943, AUGUST 27, 1943, AND SEPTEMBER 9, 1943, RESPECTIVELY.

IT WILL BE OBSERVED THAT THE ENCLOSED CLAIMS ARE FOR LODGING AND SUBSISTENCE FURNISHED MEMBERS OF THE NAVAL SERVICE WHO WERE CONFINED IN THE CITY JAIL AT PHOENIX, ARIZONA, ON REQUEST OF THE SHORE PATROL OR OTHER MEMBERS OF THE NAVY, FOR SAFEKEEPING DURING THE PERIODS SPECIFIED IN SAID CLAIMS. THESE CLAIMS ARE FORWARDED FOR YOUR CONSIDERATION WITH THE RECOMMENDATION FOR DIRECT SETTLEMENT THEREOF BY THE GENERAL ACCOUNTING OFFICE AS A PROPER CHARGE AGAINST THE APPROPRIATION ,1740802.07012 PAY, SUBSISTENCE, AND TRANSPORTATION 1944.'

IN CONNECTION WITH THE ABOVE PARTICULAR ATTENTION IS INVITED TO PARAGRAPH 5 OF THE ENCLOSED FOURTH ENDORSEMENT OF THE CHIEF OF NAVAL PERSONNEL, DATED FEBRUARY 11, 1944, REQUESTING INFORMATION AS TO WHETHER THE PAY ACCOUNTS OF ENLISTED PERSONNEL (INCLUDING STRAGGLERS AND DESERTERS DELIVERED TO NAVAL JURISDICTION AND HELD AT RECRUITING STATIONS), WHO ARE LODGED AND SUBSISTED IN CIVIL JAILS OR INSTITUTIONS WHILE BEING CONFINED FOR SECURITY REASONS AT THE REQUEST OF PROPER NAVAL AUTHORITY, ARE REQUIRED TO BE CHECKED WITH THE COST OF SUCH LODGING AND/OR SUBSISTENCE. IN THE OPINION OF THE NAVY DEPARTMENT, THE ACCOUNTS OF SUCH ENLISTED PERSONNEL WHO ARE HELD IN COUNTY OR MUNICIPAL JAILS OR INSTITUTIONS AT THE REQUEST OF NAVAL AUTHORITIES FOR SECURITY REASONS SHOULD NOT BE CHARGED WITH THE COST OF LODGING AND/OR SUBSISTENCE FURNISHED THEM UNDER SUCH CIRCUMSTANCES. AN EXPRESSION OF YOUR VIEWS ON THIS QUESTION IS REQUESTED, PARTICULARLY WITH RESPECT TO WHETHER OR NOT CURRENT NAVAL APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE FOR SUCH EXPENDITURES.

ALSO, THERE WAS RECEIVED YOUR LETTER OF AUGUST 22, 1944, WITH ENCLOSURES, RESPECTING THE SAME SUBJECT-MATTER.

IN THE ENDORSEMENT OF THE CHIEF OF NAVAL PERSONNEL DATED FEBRUARY 11, 1944, ACCOMPANYING YOUR LETTER OF MARCH 6, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

2. THIS BUREAU CONCURS IN THE REMARKS CONTAINED IN PARAGRAPH 1 OF THE 3RD ENDORSEMENT, NAMELY THAT THE COST OF SUBSISTING ENLISTED PERSONNEL HELD FOR SECURITY REASONS IN CIVIL JAILS ON REQUEST OF NAVAL AUTHORITIES IS PROPERLY CHARGEABLE TO THE APPROPRIATION " PAY, SUBSISTENCE AND TRANSPORTATION.'

3. HOWEVER, DESERTERS OR STRAGGLERS WHO HAVE BEEN DELIVERED, OR WHO SURRENDER, AT VARIOUS RECRUITING STATIONS OF THE NAVY, AND WHO ARE CONFINED IN CIVIL JAILS FOR SECURITY PURPOSES AT THE REQUEST OF RECRUITING OFFICER, ARE NOW BEING LODGED AND SUBSISTED UNDER LOCAL CONTRACTS CHARGEABLE TO SUBHEAD 19 OF THE APPROPRIATION " PAY, SUBSISTENCE AND TRANSPORTATION," WHICH SUBHEAD BEARS THE CHARGES FOR EXPENSES OF APPREHENSION AND DELIVERY OF STRAGGLERS AND DESERTERS TO NAVAL JURISDICTION. IN ACCORDANCE WITH THE PROVISIONS OF THE PAY ACCOUNTS OF REFERENCE (A) SUCH PERSONNEL ARE CHECKED FOR---

(A) FULL COST OF COMMERCIAL TRANSPORTATION FURNISHED.

(B) CASH ADVANCED FOR SUBSISTENCE AND TRANSPORTATION EN ROUTE.

(C) COST OF LODGING AND SUBSISTENCE FURNISHED AT RECRUITING STATIONS AFTER DELIVERY THERETO, AND

(D) AMOUNT OF THE REWARD PAID.

4. THE CHECK AGE, AS DIRECTED BY REFERENCE (A) ( ARTICLE 10-9 INSTRUCTIONS FOR THE RECRUITING SERVICE), FOR LODGING AND SUBSISTENCE FURNISHED WHILE BEING HELD AT RECRUITING STATIONS, OR WHILE CONFINED TO A CIVIL JAIL AFTER RETURN TO NAVAL JURISDICTION, WHILE AWAITING TRANSFER TO PERMANENT STATION OR SUCH OTHER PLACE AS MAY BE DESIGNATED, DOES NOT SEEM TO BE IN ACCORDANCE WITH THE STATEMENT MADE IN THE 3RD ENDORSEMENT THAT THE LODGING AND SUBSISTENCE OF NAVY ENLISTED MEN, HELD FOR SECURITY REASONS, IS A PROPER CHARGE AGAINST THE APPROPRIATION " PAY, SUBSISTENCE AND TRANSPORTATION.'

THE REFERRED TO FIRST PARAGRAPH OF THE ENDORSEMENT FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 3, 1944, IS AS FOLLOWS:

1. IT APPEARS FROM THE INFORMATION CONTAINED IN THE CORRESPONDENCE TRANSMITTED HEREWITH THAT CERTAIN ENLISTED MEN WERE CONFINED IN THE CITY JAIL OF PHOENIX, ARIZONA, ON REQUEST OF THE SHORE PATROL OR OTHER MEMBERS OF THE NAVY AND THAT NONE OF THE MEN WERE ARRESTED BY LOCAL LAW ENFORCEMENT OFFICERS FOR VIOLATION OF THE STATE, COUNTY OR CITY LAWS. INFORMATION IS FURNISHED AS TO WHETHER SUCH MEN WERE STRAGGLERS OR DESERTERS. THE APPROPRIATION ACT FOR THE FISCAL YEAR 1943 APPROVED JUNE 26, 1943, UNDER THE HEADING " SUBSISTENCE" PROVIDES FUNDS FOR SUBSISTENCE OF ENLISTED MEN AND IT WOULD APPEAR THAT COST OF SUBSISTING NAVY ENLISTED MEN HELD FOR SECURITY REASONS IN COUNTY OR MUNICIPAL JAILS ON REQUEST OF NAVAL AUTHORITIES WOULD BE A PROPER CHARGE AGAINST SUCH APPROPRIATION. THE MEN IN QUESTION WERE UNDER NAVAL JURISDICTION AND ENTITLED TO RATIONS AND QUARTERS IN KIND AT GOVERNMENT EXPENSE AND THE FACT THAT THEY WERE CONFINED IN A CITY JAIL AT THE REQUEST OF THE SHORE PATROL DOES NOT DEPRIVE THEM OF THAT RIGHT.

THE CLAIM OF THE CHIEF OF POLICE OF PHOENIX, ARIZONA, HAS BEEN TRANSMITTED TO THE CLAIMS DIVISION OF THIS OFFICE FOR CONSIDERATION AND DIRECT SETTLEMENT AS REQUESTED IN YOUR LETTER, LEAVING FOR CONSIDERATION THE QUESTIONS (1) WHETHER CURRENT NAVAL APPROPRIATIONS LEGALLY MAY BE CHARGED WITH THE COST OF LODGING AND SUBSISTENCE FURNISHED PERSONNEL OF THE NAVY WHO ARE CONFINED ,FOR SECURITY REASONS" IN COUNTY OR MUNICIPAL JAILS OR INSTITUTIONS AT THE REQUEST OF NAVAL AUTHORITIES AND (2) WHETHER THE ACCOUNTS OF SUCH PERSONNEL SHOULD BE CHECKED WITH THE COST OF SUCH LODGING AND SUBSISTENCE. THE CIRCUMSTANCES UNDER WHICH THE MEN HAVE BEEN, OR WILL BE, PLACED IN COMMON JAILS HAS NOT BEEN INDICATED AND NO INFORMATION HAS BEEN FURNISHED AS TO WHETHER IN ANY OR ALL OF THE CASES THEY ARE IN THE SAME CATEGORY AS STRAGGLERS OR DESERTERS. AS TO STRAGGLERS AND DESERTERS, THE PRACTICE AND PROCEDURE IN THE PAST APPEARS TO HAVE BEEN FIRMLY ESTABLISHED FOR MANY YEARS BY REGULATIONS AND INSTRUCTIONS OF THE NAVY WHICH, APPARENTLY, WERE BASED UPON SUBSTANTIVE LAW. THE RATION IS NOT A PART OF THE PAY BUT IS A LIMITED ALLOWANCE BY THE GOVERNMENT UNDER CERTAIN CONDITIONS DEFINED BY LAW AND EXECUTIVE REGULATIONS. SEE ARTICLE 1409, NAVY REGULATIONS, 1920.

UNDER NAVY REGULATIONS AS EARLY AS 1913, AND PROBABLY PRIOR THERETO, THE EXPENSES FOR THE APPREHENSION, TRANSPORTATION AND SUBSISTENCE OF STRAGGLERS AND DESERTERS WERE AUTHORIZED TO BE PAID ON PUBLIC BILLS, BUT THE AMOUNT THEREOF WAS REQUIRED TO BE CHECKED AGAINST SUCH PERSONS' ACCOUNTS. ARTICLE 4902, NAVAL INSTRUCTIONS, 1913. IN THOSE CASES WHERE AN OFFER OF REWARD WAS ACCEPTED BY DELIVERY IN ACCORDANCE WITH THE TERMS OF THE OFFER, PAYMENT OF THE REWARD WAS IN FULL SATISFACTION OF ALL EXPENSES FOR ARRESTING, KEEPING AND DELIVERY, AND SUCH REWARD WAS REQUIRED TO BE ENTERED AS A CHARGE AGAINST THE ENLISTED MAN'S PAY ACCOUNT. ARTICLE 3635, NAVY REGULATIONS. 1913. STRAGGLERS SURRENDERING THEMSELVES OR WHO ARE DELIVERED ON BOARD A CRUISING VESSEL, OTHER THAN THE ONE TO WHICH THEY BELONG, ARE REQUIRED TO BE TRANSFERRED AS SOON AS POSSIBLE TO THE RECEIVING SHIP, IF THERE BE ONE IN PORT. ARTICLE 3641, NAVY REGULATIONS, 1913. ARTICLE 3632 (3) OF THE SAME REGULATIONS REQUIRED THAT ANY PERSON IN THE NAVY OR MARINE CORPS WHO DOES NOT RETURN TO DUTY AT THE EXPIRATION OF LEAVE OR LIBERTY SHALL COMMUNICATE WITHOUT DELAY WITH HIS COMMANDING OFFICER, GIVING HIS REASON FOR SUCH UNAUTHORIZED ABSENCE, AN PARAGRAPH (5) OF THE SAME ARTICLE PROVIDED:

IF ANY PERSON IN THE NAVY OR MARINE CORPS BECOMES UNAVOIDABLY SEPARATED FROM HIS SHIP BY REASON OF SHIPWRECK OR ANY OTHER CIRCUMSTANCES EXCEPT CAPTURE BY AN ENEMY, IT SHALL BE HIS DUTY TO PROCEED AT ONCE TO THE NEAREST SHIP, FLEET, OR STATION AND REPORT HIMSELF TO THE OFFICER IN COMMAND. IN THE EVENT OF FAILURE TO DO THIS HE WILL BE REGARDED AS A DESERTER AND NO CLAIM FOR WAGES SHALL BE ALLOWED UNLESS HE PROVES TO THE SATISFACTION OF THE DEPARTMENT THAT HE WAS PREVENTED BY CIRCUMSTANCES BEYOND HIS CONTROL.

THE ABOVE REGULATIONS ARE CONTINUED, IN SUBSTANCE, IN CURRENT REGULATIONS. SEE ARTICLE 1692 ET SEQ., NAVY REGULATIONS, 1920, AS AMENDED. ALSO, THEY HAVE BEEN PUBLISHED FOR MANY YEARS IN THE MANUAL FOR SUPPLY OFFICERS AFLOAT AND AT THE PRESENT TIME APPEAR IN THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

ARTICLE 2503 (2) (C) OF NAVY TRAVEL INSTRUCTIONS PROVIDES THAT THE COST OF TRANSPORTATION TO HIS REGULAR DUTY STATION FURNISHED TO A STRAGGLER OR DESERTER WILL BE CHECKED AGAINST HIS ACCOUNT REGARDLESS OF WHETHER OR NOT HE IS TRIED AFTER ARRIVAL THERE.

THE REQUIREMENT FOR CHECKING THE PAY OF AN ENLISTED MAN NOT IN A DUTY STATUS UNDER SUCH CIRCUMSTANCES WAS PREDICATED UPON THE PROVISION OF THE ACT OF JANUARY 30, 1885, 23 STAT. 291, 34 U.S.C. 901, WHICH PROVIDES THAT ALL ENLISTED MEN AND BOYS ATTACHED TO ANY UNITED STATES VESSEL OR STATION AND DOING DUTY THEREON, AND MIDSHIPMEN, SHALL BE ALLOWED A RATION OR COMMUTATION THEREOF IN MONEY UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE. IN EARLIER ACTS CARRIED INTO THE REVISED STATUTES UNDER SECTION 1579 IT WAS PROVIDED THAT NO PERSON NOT ACTUALLY ATTACHED TO AND DOING DUTY ON BOARD A SEA-GOING VESSEL EXCEPT THE PETTY OFFICERS, SEAMEN AND ORDINARY SEAMEN ATTACHED TO RECEIVING SHIP AND TO THE ORDINARY OF A NAVY YARD SHOULD BE ALLOWED A RATION. SEE ARTICLE 1823 (2), NAVY REGULATIONS, 1920.

WITHOUT MORE DEFINITE INFORMATION AS TO THE DUTY OR NON-DUTY STATUS OF THE PERSONNEL REFERRED TO IN YOUR FIRST QUESTION IT MAY BE ASSUMED THAT THEIR STATUS IS NOT MATERIALLY DIFFERENT FROM THAT OF A STRAGGLER AND, HENCE, SUBJECT TO THE SAME LIMITATIONS AS TO THE RIGHT TO A RATION AT THE EXPENSES OF THE GOVERNMENT; AND IF SUCH PERSON BE ON LEAVE WHEN ARRESTED AND CONFINED IN A CIVIL JAIL HE PROBABLY RECEIVES A LEAVE RATION AS AUTHORIZED BY LAW AND REGULATIONS AND, OF COURSE, THE GOVERNMENT WOULD NOT BE EXPECTED TO PAY FOR HIS BOARD AND LODGING WHILE IN JAIL PENDING RETURN TO HIS PROPER STATION OR RELEASE FROM JAIL, IF HIS LEAVE STATUS CONTINUED, WITHOUT CHECKING THE COST THEREOF AGAINST HIS ACCOUNT. IF BY THE TERM "SECURITY REASONS" IT IS MEANT THAT THE MEN WERE ARRESTED AND CONFINED FOR THEIR OWN SAFETY PENDING RETURN TO THEIR PROPER SHIP OR STATION OR RELEASED WITHOUT SUCH RETURN, THE PERIOD OF SUCH CONFINEMENT WOULD SEEM TO BE MERELY A NECESSARY INCIDENT TO THEIR REPORTING AND NOT PROPER ITEM FOR WHICH THE GOVERNMENT SHOULD BEAR THE EXPENSES. WHETHER, THEREFORE, THE ARREST AND CONFINEMENT BY COMPETENT NAVAL AUTHORITIES BE FOR "SECURITY REASONS" OR AS AN INCIDENT TO APPREHENSION AS A STRAGGLER OR DESERTER, THE ULTIMATE PURPOSE IN EITHER CASE PRESUMABLY IS TO SECURE DELIVERY OF THE MAN TO HIS PROPER SHIP OR STATION OR TO SOME OTHER NAVAL ACTIVITY FOR SUCH DISPOSITION OF HIS CASE AS THE CIRCUMSTANCES WARRANT, AND THERE WOULD APPEAR TO BE NO VALID REASON FOR HANDLING THE CASES DIFFERENTLY. ACCORDINGLY, IF A GOVERNMENTAL NECESSITY BE SHOWN FOR THE CONFINEMENT OF NAVAL PERSONNEL IN CITY JAILS PENDING PROPER DISPOSITION, THERE WOULD APPEAR TO BE NO OBJECTION INITIALLY TO CHARGING THE COST OF THE ENLISTED MAN'S KEEP TO THE APPROPRIATION " PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL" IN THE NATURE OF AN ADVANCE WITH A CORRESPONDING CHECK AGE AGAINST THE MAN'S PAY ACCOUNT FOR THE PURPOSE OF RECREDITING SUCH APPROPRIATION, AND ANY CONTRACT NECESSARILY REQUIRED TO BE MADE WITH LOCAL OFFICIALS IN THAT RESPECT WOULD NOT BE OBJECTIONABLE, BUT WITH THE UNDERSTANDING THAT SUCH COST IS MERELY A TEMPORARY EXPEDIENT TO COVER THE EMERGENT NATURE OF THE CASE, AND REQUIRING A CORRESPONDING CHECK AGE AGAINST THE MAN'S PAY IN LIKE MANNER AS UNDER THE LONG SETTLED PRACTICE WITH RESPECT TO STRAGGLERS. IN REPLY TO YOUR SPECIFIC QUESTIONS, I HAVE TO ADVISE THAT, SUBJECT TO THE QUALIFICATIONS HEREIN MENTIONED, THEY BOTH ARE ANSWERED IN THE AFFIRMATIVE.