B-45494, APRIL 18, 1945, 24 COMP. GEN. 755

B-45494: Apr 18, 1945

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LODGING AND SUBSISTENCE FURNISHED COAST GUARD ENLISTED MEN CONFINED IN CIVIL JAILS WHERE COAST GUARD ENLISTED MEN ARE CONFINED IN CIVIL JAILS AT THE REQUEST OF NAVAL AUTHORITIES FOR "SECURITY REASONS" PENDING DISPOSITION OF THEIR CASES. THE COST OF LODGING AND SUBSISTENCE FURNISHED DURING SUCH PERIOD OF CONFINEMENT IS REQUIRED TO BE CHECKED AGAINST THE MAN'S PAY ACCOUNT AND RECREDITED TO THE APPROPRIATION ORIGINALLY CHARGED WITH SUCH COST. WHERE ADEQUATE GOVERNMENT BRIG OR PRISON FACILITIES ARE NOT AVAILABLE AT PARTICULAR COAST GUARD UNITS. LOCAL CIVIL AUTHORITIES MAY BE PAID FOR FURNISHING LODGING AND SUBSISTENCE IN CIVIL JAILS TO COAST GUARD ENLISTED PERSONNEL WHO HAVE BEEN RETURNED TO THEIR UNITS.

B-45494, APRIL 18, 1945, 24 COMP. GEN. 755

LODGING AND SUBSISTENCE FURNISHED COAST GUARD ENLISTED MEN CONFINED IN CIVIL JAILS WHERE COAST GUARD ENLISTED MEN ARE CONFINED IN CIVIL JAILS AT THE REQUEST OF NAVAL AUTHORITIES FOR "SECURITY REASONS" PENDING DISPOSITION OF THEIR CASES, THE COST OF LODGING AND SUBSISTENCE FURNISHED DURING SUCH PERIOD OF CONFINEMENT IS REQUIRED TO BE CHECKED AGAINST THE MAN'S PAY ACCOUNT AND RECREDITED TO THE APPROPRIATION ORIGINALLY CHARGED WITH SUCH COST. COMP. GEN. 229, AMPLIFIED. WHERE ADEQUATE GOVERNMENT BRIG OR PRISON FACILITIES ARE NOT AVAILABLE AT PARTICULAR COAST GUARD UNITS, LOCAL CIVIL AUTHORITIES MAY BE PAID FOR FURNISHING LODGING AND SUBSISTENCE IN CIVIL JAILS TO COAST GUARD ENLISTED PERSONNEL WHO HAVE BEEN RETURNED TO THEIR UNITS--- OR TO UNITS DESIGNATED BY COMPETENT AUTHORITY--- AND ARE AWAITING TRIAL BY COURT-MARTIAL, OR ARE SERVING MINOR COURT-MARTIAL SENTENCES OF CONFINEMENT, AND SUCH PAYMENTS MAY BE CHARGED TO OTHERWISE PROPER APPROPRIATIONS WITHOUT CHECKING THE AMOUNT AGAINST THE MAN'S PAY ACCOUNT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 18, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 27, 1944, WITH ENCLOSURE FROM THE COMMANDANT, UNITED STATES COAST GUARD, REQUESTING DECISION AS TO WHETHER THE RULE SET FORTH IN THE DECISION OF SEPTEMBER 20, 1944, 24 COMP. GEN. 229, IS APPLICABLE TO ENLISTED MEN OF THE COAST GUARD UNDER CIRCUMSTANCES SIMILAR TO THOSE CONSIDERED IN THE SAID DECISION, THAT IS, WHETHER THE COST OF LODGING AND SUBSISTENCE FURNISHED ENLISTED MEN OF THE COAST GUARD WHO ARE CONFINED IN COUNTY OR MUNICIPAL JAILS "FOR SECURITY REASONS" AT THE REQUEST OF NAVAL AUTHORITIES SHOULD BE CHECKED AGAINST THE PAY ACCOUNTS OF SUCH MEN AND RECREDITED TO THE APPROPRIATION ORIGINALLY CHARGED WITH SUCH EXPENSE.

THE ENCLOSURE FROM THE COMMANDANT, ADDRESSED TO THE SECRETARY OF THE NAVY, IS IN PERTINENT PART AS FOLLOWS:

2. IT DOES NOT SEEM CLEAR, HOWEVER, WHETHER SAID DECISION IS ALSO APPLICABLE TO THE COAST GUARD PERSONNEL UNDER SIMILAR CONDITIONS, AND IT IS REQUESTED THAT DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL ON THIS QUESTION. THE DECISION IN QUESTION INVOLVED CONSTRUCTION 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 (ITALICS SUPPLIED), 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.'

IT SEEMS DOUBTFUL IF THE FOREGOING STATUTE, WHICH WAS ENACTED FOR THE NAVY IS APPLICABLE TO COAST GUARD PERSONNEL EVEN WHEN THE COAST GUARD IS OPERATING AS A PART OF THE NAVY, IN VIEW OF SPECIAL STATUTORY PROVISION FOR THEIR SUBSISTENCE AND RATIONING CONTAINED IN THE ACT OF JUNE 6, 1940 (54 STAT. 248, 14 U.S.C. 135), READING (IN PART) AS FOLLOWS:

"ENLISTED MEN OF THE COAST GUARD, AND CIVILIAN OFFICERS AND CIVILIAN CREWS OF LIGHTSHIPS AND TENDERS SHALL BE ALLOWED A RATION, OR COMMUTATION THEREOF IN MONEY, IN SUCH AN AMOUNT AND UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE.'

IN THE STATUTE LAST QUOTED IT WILL BE NOTED THAT THERE IS NO REQUIREMENT THAT THE PERSONNEL SHALL BE "ON DUTY," IN VIEW OF WHICH IT WOULD SEEM THAT THERE IS SUFFICIENT AUTHORITY, IN THE ABSENCE OF OTHER STATUTORY PROVISION OR REGULATION TO THE CONTRARY, FOR FURNISHING RATIONS OR COMMUTATION THEREOF TO ANY ENLISTED PERSON OF THE COAST GUARD, WHETHER CONFINED IN A CIVIL PRISON OR IN A NAVAL OR COAST GUARD BRIG.

3. UNDER EXISTING CONDITIONS THERE ARE SOME UNITS OF THE COAST GUARD WHICH HAVE INADEQUATE BRIG FACILITIES. AT THESE UNITS ARRANGEMENTS HAVE BEEN MADE WITH LOCAL CIVIL AUTHORITIES FOR THE CONFINEMENT FOR SAFE KEEPING OF COAST GUARD SERVICE PERSONNEL AWAITING TRIAL BY COURT MARTIAL AND, IN SOME CASES, WHILE SERVING MINOR SENTENCES OF CONFINEMENT BY SENTENCE OF COURT MARTIAL. IT IS BELIEVED THAT THE COST OF LODGING AND SUBSISTENCE SO INCURRED IS A PROPER EXPENSE OF THE GOVERNMENT, SINCE SUCH CONFINEMENTS ARE AT THE DIRECT REQUEST OF COAST GUARD AUTHORITIES.

4. UNDER THE PROVISIONS OF SECTION 4, ACT OF MAY 26, 1906, AS AMENDED (14 U.S.C. 146), THE SECRETARY OF THE TREASURY IS AUTHORIZED TO DESIGNATE, AS THE PLACE OF EXECUTION OF THE SENTENCE OF A COAST GUARD COURT INVOLVING IMPRISONMENT, ANY PRISON OR PENITENTIARY THAT RECEIVES FEDERAL PRISONERS. WHILE THE COAST GUARD IS OPERATING AS PART OF THE NAVY IT APPEARS THAT THIS STATUTORY PROVISION MAY BE INVOKED AND EXECUTED BY THE SECRETARY OF THE NAVY. PURSUANT TO SAID STATUTE THERE WAS ISSUED EXECUTIVE ORDER 4352, OF DECEMBER 5, 1925, AMENDED BY EXECUTIVE ORDER 4697 OF JULY 28, 1927, QUOTED IN INCLOSED COPY OF COAST GUARD CIRCULAR NO. 48, DATED 29 DECEMBER, 1925. CIRCULAR NO. 48 WAS AMENDED IN PART BY COAST GUARD HEADQUARTERS CIRCULAR NO. 205, DATED 11 DECEMBER, 1942 (COPY INCLOSED), BUT OTHERWISE REMAINING IN EFFECT. THE PROVISIONS OF CITED EXECUTIVE ORDERS AND COAST GUARD CIRCULARS COVER CONFINEMENT IN PRISONS PENDING FINAL DISCIPLINARY ACTION AS WELL AS THE EXECUTION OF SENTENCES OF COAST GUARD COURTS AND INCLUDE PROVISION FOR CONFINEMENT IN CIVIL JAILS WHERE THERE IS NO NAVAL PRISON, BRIG OR RECEIVING SHIP IN THE IMMEDIATE VICINITY. COAST GUARD CIRCULAR NO. 205 MAKES SPECIFIC PROVISION FOR THE EXPENSE INCIDENT TO THE LODGING AND/OR SUBSISTENCE OF PERSONNEL CONFINED IN ACCORDANCE WITH THE AUTHORITY GRANTED THEREIN TO BE PAID OUT OF PAY AND ALLOWANCES.

5. IT IS COAST GUARD'S VIEW THAT UNDER THE ABOVE DESCRIBED PROVISIONS OF LAW, EXECUTIVE ORDERS, AND COAST GUARD DIRECTIVES THE EXPENSE FOR LODGING AND SUBSISTENCE OF PERSONNEL CONFINED IN CIVIL JAILS, WHERE SUCH CONFINEMENT IS NECESSARY IS AN OFFICIAL EXPENSE CHARGEABLE TO COAST GUARD APPROPRIATIONS AND NOT FOR CHECKING AGAINST THE PAY ACCOUNTS OF THE INDIVIDUALS SO CONFINED.

IN THE DECISION OF SEPTEMBER 20, 1944, IT WAS CONCLUDED, ON THE BASIS OF THE FACTS PRESENTED, THAT THE STATUS OF NAVAL PERSONNEL CONFINED IN CIVIL JAILS AT THE REQUEST OF NAVAL AUTHORITIES FOR ,SECURITY REASONS" PENDING PROPER DISPOSITION OF THEIR CASES, IS NOT MATERIALLY DIFFERENT FROM THAT OF A STRAGGLER AND, HENCE, THAT THE COST OF LODGING AND SUBSISTENCE FURNISHED SUCH PERSONNEL MAY BE CHARGED INITIALLY TO OTHERWISE PROPER NAVAL APPROPRIATIONS BUT THAT THE AMOUNT SO CHARGED SHOULD BE CHECKED AGAINST THE MAN'S PAY ACCOUNT AND RECREDITED TO THE APPROPRIATION INVOLVED. THE REQUIREMENT FOR CHECKING THE PAY OF ENLISTED MEN OF THE NAVY NOT IN A DUTY STATUS IS CONTAINED IN REGULATIONS APPLICABLE TO THE NAVY AND IS 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 ATTACHED TO ANY UNITED STATES VESSEL OR STATION AND "DOING DUTY THEREON" SHALL BE ALLOWED A RATION, OR COMMUTATION THEREOF IN MONEY, UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE. PRESUMABLY, THE DOUBT AS TO THE APPLICABILITY OF THE RULE STATED IN THE DECISION OF SEPTEMBER 20, 1944, TO ENLISTED MEN OF THE COAST GUARD UNDER SIMILAR CIRCUMSTANCES, ARISES BY REASON OF THE FACT THAT THE SAID ACT OF JANUARY 30, 1885, SPECIFICALLY REFERS TO ENLISTED MEN "DOING DUTY" ON A UNITED STATES VESSEL OR AT A STATION, WHEREAS SECTION 10 (A) OF THE ACT OF JUNE 6, 1940, AUTHORIZING A RATION, OR COMMUTATION THEREOF, FOR ENLISTED MEN OF THE COAST GUARD, CONTAINS NO REQUIREMENT THAT THE MEN BE "DOING DUTY" IN ORDER TO BE ENTITLED TO A RATION. THE SAID SECTION 10 (A) OF THE ACT OF JUNE 6, 1940, 54 STAT. 248, READS AS FOLLOWS:

SEC. 10 (A) ENLISTED MEN OF THE COAST GUARD, AND CIVILIAN OFFICERS AND CIVILIAN CREWS OF LIGHTSHIPS AND TENDERS SHALL BE ALLOWED A RATION, OR COMMUTATION THEREOF IN MONEY, IN SUCH AN AMOUNT AND UNDER SUCH LIMITATIONS AND REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. MONEY FOR COMMUTED RATIONS AUTHORIZED HEREIN SHALL, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, AND SUBJECT TO SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, BE PAID ON PROPER VOUCHERS OR PAY ROLLS TO PERSONS ENTITLED TO RECEIVE IT, OR TO THE OFFICERS DESIGNATED BY THE COMMANDANT OF THE COAST GUARD TO ADMINISTER THE FINANCIAL AFFAIRS OF THE MESSES IN WHICH SUCH PERSONS MAY BE SUBSISTED.

IN THE PRESENT CASE--- LIKE THAT CONSIDERED IN 24 COMP. GEN. 229--- THE CIRCUMSTANCES UNDER WHICH ENLISTED MEN OF THE COAST GUARD HAVE BEEN, OR WILL BE, PLACED IN CIVIL JAILS HAVE NOT BEEN INDICATED--- EXCEPT AS HEREINAFTER NOTED--- AND NO INFORMATION HAS BEEN FURNISHED AS TO WHETHER IN ANY OR ALL THE CASES THEY ARE IN THE SAME CATEGORY AS STRAGGLERS OR DESERTERS. HOWEVER, THE PRACTICE AND PROCEDURE WITH RESPECT TO CHECKING THE PAY ACCOUNTS OF DESERTERS IN THE FORMER REVENUE CUTTER SERVICE AND THE REGULATIONS APPLICABLE TO DESERTERS AND STRAGGLERS IN THE COAST GUARD APPEAR TO BE SUBSTANTIALLY THE SAME AS THOSE FOLLOWED IN THE NAVY.

THE ACT OF MAY 26, 1906, 34 STAT. 201, GOVERNING PUNISHMENT IN THE REVENUE CUTTER SERVICE, AUTHORIZED THE COMMANDING OFFICER OF A REVENUE CUTTER VESSEL TO OFFER A REWARD OF $15 FOR THE APPREHENSION AND DELIVERY OF A DESERTER TO HIS VESSEL AND REQUIRED THE AMOUNT OF SUCH REWARD TO BE DEDUCTED FROM THE MAN'S PAY ACCOUNT. SEE ARTICLE 1171-3 (B), RULES AND REGULATIONS OF THE REVENUE CUTTER SERVICE, PROVIDING THAT THE SENTENCE IN THE CASE OF A DESERTER SHOULD PROVIDE FOR FORFEITURE OF AN AMOUNT AT LEAST EQUAL TO THE EXPENSE INCURRED IN HIS APPREHENSION, AND ALL CHARGES INCIDENT TO THE APPREHENSION AND ARREST OF A DESERTER WERE AUTHORIZED TO BE PAID ON PUBLIC VOUCHERS. ARTICLE 585 OF THE REVENUE CUTTER REGULATIONS. BY SECTION 2 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, 801, CREATING THE COAST GUARD BY COMBINING THEREIN THE REVENUE CUTTER SERVICE AND LIGHTHOUSE SERVICE, THE PROVISIONS OF THE SAID ACT OF MAY 26, 1906, SUPRA, WERE MADE APPLICABLE TO THE COAST GUARD.

THE FACT THAT THE ACT OF JUNE 6, 1940, DOES NOT EXPRESSLY REQUIRE THAT AN ENLISTED MAN OF THE COAST GUARD BE "DOING DUTY" ON BOARD A UNITED STATES VESSEL OR AT A STATION IN ORDER TO BE ENTITLED TO A RATION MAY NOT BE REGARDED AS AUTHORIZING A RATION UNDER ALL CIRCUMSTANCES WITHOUT REGARD TO THE MAN'S DUTY OR NON-DUTY STATUS. THE RATION IS NOT A PART OF THE PAY BUT IS A LIMITED ALLOWANCE BY THE GOVERNMENT UNDER CERTAIN CONDITIONS DEFINED BY LAW AND REGULATIONS. NEITHER THE SAID ACT OF JUNE 6, 1940, NOR THE REGULATIONS ISSUED PURSUANT THERETO, PURPORT TO AUTHORIZE THE PAYMENT OF COMMUTED RATIONS DURING THE PERIOD A MAN IS ABSENT FROM HIS SHIP OR STATION IN A NON DUTY STATUS, EXCEPT WHEN ON AUTHORIZED LEAVE OF ABSENCE WHEN A LEAVE RATION MAY BE AUTHORIZED. SEE ARTICLE 222, 227 ET SEQ; COAST GUARD PAY AND SUPPLY INSTRUCTIONS 1939. ARTICLE 222 (5) OF THE SAME INSTRUCTIONS PROVIDES THAT LEAVE RATIONS ARE NOT PAYABLE, IF LEAVE IS OVERSTAYED, EITHER FOR THE PERIOD OF THE AUTHORIZED LEAVE, WHICH CLEARLY INDICATES THAT COMMUTED RATIONS ARE NOT REGARDED AS PAYABLE DURING PERIODS AN ENLISTED MAN IS IN A NON-DUTY OR UNAUTHORIZED LEAVE STATUS AWAY FROM HIS SHIP OR STATION.

IN VIEW OF THE FOREGOING, IN CASES WHERE ENLISTED MEN OF THE COAST GUARD ARE PLACED IN CIVIL JAILS AT THE REQUEST OF NAVAL AUTHORITIES FOR "SECURITY REASONS" UNDER CIRCUMSTANCES SIMILAR TO THOSE CONSIDERED IN THE DECISION OF SEPTEMBER 20, 1944, THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR APPLYING A RULE DIFFERENT THAN THAT APPLIED IN THE SAID DECISION TO ENLISTED MEN OF THE NAVY.

HOWEVER, THE RULE SET FORTH IN THAT DECISION HAD REFERENCE TO "THE CONFINEMENT OF NAVAL PERSONNEL IN CITY JAILS PENDING PROPER DISPOSITION" OF THEIR CASES, AND WAS NOT INTENDED TO APPLY TO CASES SUCH AS THOSE DESCRIBED IN THE THIRD PARAGRAPH OF THE COMMANDANT'S ENCLOSURE, SUPRA, THAT IS, TO CASES WHERE THE ENLISTED MAN HAS BEEN RETURNED TO HIS PROPER UNIT, OR TO A UNIT DESIGNATED BY PROPER AUTHORITY, AND, DUE TO INADEQUATE BRIG FACILITIES, IS PLACED IN A CIVIL JAIL FOR SAFEKEEPING AWAITING TRIAL BY COURT-MARTIAL, OR FOR THE PURPOSE OF SERVING MINOR COURT-MARTIAL SENTENCES OF CONFINEMENT. AS EARLY AS 1907 (13 COMP. DEC. 481), IT APPEARS TO HAVE BEEN RECOGNIZED THAT PERSONNEL OF THE REVENUE CUTTER SERVICE WHO WERE SENTENCED BY REVENUE CUTTER SERVICE COURTS TO CONFINEMENT FOR SHORT PERIODS COULD BE PLACED IN CIVIL JAILS--- APPARENTLY NO GOVERNMENT FACILITIES BEING AVAILABLE--- AND THE COST OF THEIR LODGING AND SUBSISTENCE PAID FROM OTHERWISE PROPER APPROPRIATIONS. AFTER THE MAN IS RETURNED TO HIS PROPER UNIT, OR TO A UNIT DESIGNATED BY PROPER AUTHORITY, THE GOVERNMENT IS REQUIRED TO PROVIDE HIM WITH LODGING AND RATIONS, AND THE FACT THAT HE MAY BE AWAITING TRIAL BY COURT-MARTIAL OR SERVING A MINOR SENTENCE PURSUANT TO A COURT-MARTIAL SENTENCE, WOULD NOT OPERATE TO DEPRIVE HIM OF HIS RIGHT TO LODGING AND SUBSISTENCE AT GOVERNMENT EXPENSE, MERELY BECAUSE NO ADEQUATE GOVERNMENT BRIG FACILITIES WERE AVAILABLE. ACCORDINGLY IN SUCH CASES, IF IT BE ADMINISTRATIVELY DETERMINED THAT ADEQUATE GOVERNMENT BRIG OR PRISON FACILITIES ARE NOT AVAILABLE AT PARTICULAR COAST GUARD UNITS, THERE WOULD APPEAR TO BE NO NO LEGAL OBJECTION TO PAYING LOCAL CIVIL AUTHORITIES FOR FURNISHING LODGING AND SUBSISTENCE TO ENLISTED PERSONNEL WHO HAVE BEEN RETURNED TO THEIR UNITS--- OR TO UNITS DESIGNATED BY COMPETENT AUTHORITY--- AND ARE AWAITING TRAIL BY COURT-MARTIAL, OR IN THE CASE OF PERSONNEL SERVING MINOR SENTENCES OF CONFINEMENT PURSUANT TO COURT-MARTIAL SENTENCES, AND CHARGING SUCH EXPENSE TO OTHERWISE PROPER APPROPRIATIONS WITHOUT CHECKING THE AMOUNT AGAINST THE MAN'S PAY ACCOUNT.