B-6022, NOVEMBER 3, 1939, 19 COMP. GEN. 484

B-6022: Nov 3, 1939

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IF ADMINISTRATIVELY CERTIFIED THAT THE APPROPRIATE DUTIES WERE SATISFACTORILY PERFORMED BY HIM. HE IS OTHERWISE ENTITLED TO PAY. THAT THE OFFICER WAS ABSENT FROM HIS STATION IN CONNECTION WITH HIS CIVILIAN OCCUPATION FOR APPROXIMATELY 2 WEEKS DURING THE MONTH ALTHOUGH NOT IN A FORMAL LEAVE STATUS. THAT THE REGULAR ARMY INSTRUCTOR WAS NOT OFFICIALLY INFORMED REGARDING THIS ABSENCE AND UPON LEARNING THEREOF THROUGH UNOFFICIAL SOURCES HE REQUIRED THE INSERTION OF A REMARK ON A SUPPLEMENTAL FORM 100 TO SHOW NONPERFORMANCE OF APPROPRIATE DUTIES DURING THE PERIOD OF ABSENCE. HE WAS NOT PAID FOR THIS PERIOD ON THE ORIGINAL PAY ROLL (VOUCHER 2866 OF YOUR JUNE 1939 ACCOUNTS). THE QUESTION OF THE OFFICER'S STATUS DURING THE PERIOD APRIL 11 TO 26 WAS BROUGHT TO THE ATTENTION OF THE REGIMENTAL COMMANDER AND IT WAS REPORTED THAT HE IS OF THE OPINION THAT MAJOR HAUSAUER HAD SATISFACTORILY PERFORMED APPROPRIATE DUTIES DURING THE FULL MONTH OF APRIL 1939.

B-6022, NOVEMBER 3, 1939, 19 COMP. GEN. 484

PAY - DRILL - NATIONAL GUARD - APPROPRIATE DUTY PERFORMANCE INVOLVING LIMITED ABSENCES FROM STATION A NATIONAL GUARD OFFICER, PAID ON THE BASIS OF PERFORMANCE OF APPROPRIATE DUTIES AND NOT ATTENDANCE AT DRILLS, DOES NOT FORFEIT HIS RIGHT TO PAY AS FOR PERFORMANCE OF APPROPRIATE DUTIES MERELY BECAUSE OF A TEMPORARY AND LIMITED ABSENCE FROM STATION, OTHER THAN IN A FORMAL LEAVE OF ABSENCE STATUS, IN FURTHERANCE OF HIS CIVILIAN OCCUPATION, IF ADMINISTRATIVELY CERTIFIED THAT THE APPROPRIATE DUTIES WERE SATISFACTORILY PERFORMED BY HIM, AND HE IS OTHERWISE ENTITLED TO PAY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. A. J. MAXWELL, UNITED STATES ARMY, NOVEMBER 3, 1939:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE CHIEF OF FINANCE YOUR LETTER OF SEPTEMBER 9, 1939, TRANSMITTING SUPPLEMENTAL PAY ROLL OF ST BATTALION HEADQUARTERS, 106TH FIELD ARTILLERY, NEW YORK NATIONAL GUARD, MARCH 1 TO MAY 31, 1939, STATED FOR $22.21 IN FAVOR OF MAJ. KARL F. HAUSAUER, REPRESENTING PAY FOR SATISFACTORY PERFORMANCE OF APPROPRIATE DUTIES FOR THE PERIOD APRIL 11 TO 26, 1939, INCLUSIVE.

ACCORDING TO THE APPLICABLE NATIONAL GUARD BUREAU FORM 100 AS INITIALLY EXECUTED, MAJOR HAUSAUER SATISFACTORILY PERFORMED APPROPRIATE DUTIES FOR THE FULL MONTH OF APRIL 1939. IT APPEARS, HOWEVER, THAT THE OFFICER WAS ABSENT FROM HIS STATION IN CONNECTION WITH HIS CIVILIAN OCCUPATION FOR APPROXIMATELY 2 WEEKS DURING THE MONTH ALTHOUGH NOT IN A FORMAL LEAVE STATUS; THAT THE REGULAR ARMY INSTRUCTOR WAS NOT OFFICIALLY INFORMED REGARDING THIS ABSENCE AND UPON LEARNING THEREOF THROUGH UNOFFICIAL SOURCES HE REQUIRED THE INSERTION OF A REMARK ON A SUPPLEMENTAL FORM 100 TO SHOW NONPERFORMANCE OF APPROPRIATE DUTIES DURING THE PERIOD OF ABSENCE. THE EXTRACT OF THE ,SUPPLEMENTAL" FORM 100 CONTAINS REMARKS TO THE EFFECT THAT MAJOR HAUSAUER DID NOT PERFORM APPROPRIATE DUTIES DURING THE PERIOD APRIL 11 TO APRIL 26, 1939, DUE TO ABSENCE, AND HE WAS NOT PAID FOR THIS PERIOD ON THE ORIGINAL PAY ROLL (VOUCHER 2866 OF YOUR JUNE 1939 ACCOUNTS). THE QUESTION OF THE OFFICER'S STATUS DURING THE PERIOD APRIL 11 TO 26 WAS BROUGHT TO THE ATTENTION OF THE REGIMENTAL COMMANDER AND IT WAS REPORTED THAT HE IS OF THE OPINION THAT MAJOR HAUSAUER HAD SATISFACTORILY PERFORMED APPROPRIATE DUTIES DURING THE FULL MONTH OF APRIL 1939, NOTWITHSTANDING THE OFFICER'S ABSENCE FROM STATION DURING PART OF THE MONTH. THE CERTIFICATE ON THE SUPPLEMENTAL PAY ROLL HAS BEEN EXECUTED BY THE REGULAR ARMY INSTRUCTOR TO SHOW THAT MAJOR HAUSAUER SATISFACTORILY PERFORMED HIS APPROPRIATE DUTIES DURING THE PERIOD APRIL 11 TO APRIL 26, 1939, SUGGESTING THAT THE ONLY QUESTION INVOLVED IS WHETHER AN OFFICER ENTITLED TO ARMORY DRILL PAY ON THE BASIS OF PERFORMANCE OF APPROPRIATE DUTIES AND NOT ATTENDANCE AT DRILLS MAY BE PAID FOR PERFORMANCE OF HIS APPROPRIATE DUTIES DURING A TEMPORARY AND LIMITED ABSENCE FROM STATION.

SECTION 109 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 3, 1924, 43 STAT. 364, PROVIDES, IN PART, AS FOLLOWS:

* * * OFFICERS ABOVE THE GRADE OF CAPTAIN SHALL RECEIVE NOT MORE THAN $500 A YEAR, AND OFFICERS BELOW THE GRADE OF MAJOR, NOT BELONGING TO ORGANIZATIONS, SHALL RECEIVE NOT MORE THAN FOUR-THIRTIETHS OF THE MONTHLY BASE PAY PRESCRIBED FOR THEM IN SECTION 3 OF SAID PAY READJUSTMENT ACT FOR SATISFACTORY PERFORMANCE OF THEIR APPROPRIATE DUTIES UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE. * * *

PARAGRAPH 21, NATIONAL GUARD REGULATIONS 45, DATED AUGUST 7, 1934, PROVIDES, IN PART, AS OLLOWS:

APPROPRIATE DUTIES FOR OFFICERS NOT BELONGING TO ORGANIZATIONS.--- " APPROPRIATE DUTIES" REFERRED TO IN SECTION 109, NATIONAL DEFENSE ACT, FOR GENERAL AND FIELD OFFICERS, AND CAPTAINS AND LIEUTENANTS NOT BELONGING TO COMPANIES, ARE THOSE VARIOUS MILITARY DUTIES PRESCRIBED BY LAW AND REGULATIONS AND THOSE ASSIGNED FROM TIME TO TIME BY PROPER MILITARY AUTHORITY. WHILE THE APPROPRIATE DUTIES OF GENERAL AND FIELD OFFICERS, AND CAPTAINS AND LIEUTENANTS NOT BELONGING TO COMPANIES, SHOULD ORDINARILY PERTAIN TO THE OFFICER'S GRADE, ARM OR SERVICE, OR ASSIGNMENT, ATTENDANCE AT THE ASSEMBLIES OF LINE COMPANIES OR OTHER ORGANIZATIONS FOR PARTICIPATION IN TRAINING OR IMPARTING SPECIAL INSTRUCTIONS TENDS TO ADD TO THE MILITARY KNOWLEDGE OF SUCH FFICERS; AND WHERE THE ASSIGNMENT OF SUCH DUTIES IS AUTHORIZED BY PROPER MILITARY AUTHORITY, THE DUTIES SO ASSIGNED MAY BE CONSIDERED APPROPRIATE DUTIES WITHIN THE MEANING OF THE LAWS AND REGULATIONS. THE AGGREGATE OF THESE APPROPRIATE DUTIES FOR ANY GIVEN PERIOD OF TIME WILL BE COMMENSURATE WITH THOSE TRAINING DUTIES REQUIRED BY LAW FOR OFFICERS BELONGING TO COMPANIES. * *

PARAGRAPH 6B, NATIONAL GUARD REGULATIONS 58, DATED APRIL 1, 1928, PROVIDES AS FOLLOWS:

ARMORY DRILL PAY STATUS.--- A FEDERALLY RECOGNIZED OFFICER, WARRANT OFFICER, OR ENLISTED MAN IS IN AN ARMORY DRILL PAY STATUS, EXCEPT WHEN (1) HE IS ENTITLED TO FEDERAL PAY FOR OTHER FORMS OF TRAINING PRESCRIBED IN NGR 45; (2) WHEN HE IS ON AUTHORIZED LEAVE OF ABSENCE OR FURLOUGH; OR (3) WHEN HE IS ABSENT WITHOUT LEAVE FROM HIS HOME STATION.

IN DECISION A-96594, DATED AUGUST 12, 1938, THERE WAS CONSIDERED THE ARMORY DRILL PAY STATUS OF A GENERAL OFFICER OF THE NATIONAL GUARD WHO HAD BEEN GRANTED PERMISSION TO BE TEMPORARILY ABSENT FROM THE STATE (BUT WHO WAS NOT IN A FORMAL LEAVE OF ABSENCE STATUS), DURING WHICH PERIOD HE WAS STATED TO HAVE PERFORMED THE APPROPRIATE DUTIES ASSIGNED TO HIM BY HIGHER AUTHORITY. IN AUTHORIZING PAYMENT OF DRILL PAY DURING THE PERIOD OF ABSENCE IT WAS STATED IN THE DECISION OF AUGUST 12, 1938, AS FOLLOWS:

THE GRANT OF LEAVE OF ABSENCE, HOWEVER, IS A RELIEF FROM DUTY AND IS TO BE DISTINGUISHED FROM THE PRESENT CASE. THE NATIONAL GUARD IS THE ORGANIZED MILITIA. IT IS COMPOSED OF CITIZENS ENGAGED IN THEIR CIVILIAN PURSUITS. IT CONSTITUTES AN AVAILABLE MILITARY FORCE FOR USE BY THE STATE IF NECESSARY. IT IS FEDERALLY TRAINED, AS AUTHORIZED BY THE CONSTITUTION, AND THE NATIONAL DEFENSE ACT IS DESIGNED TO SECURE ADEQUATE TRAINING THAT WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES IT WILL BE AN EFFECTIVELY TRAINED MILITARY FORCE, AND PAY IS PROVIDED FOR SUCH TRAINING. THE TRAINING IS THAT PRESCRIBED BY OR BY AUTHORITY OF THE SECRETARY OF WAR. OCCASIONAL AND TEMPORARY ABSENCES FROM THE STATE WITH THE PERMISSION OF STATE MILITARY AUTHORITIES DO NOT DEPRIVE OF THE ARMORY DRILL PAY AUTHORIZED BY STATUTE IF THE PRESCRIBED TRAINING IS ACTUALLY PERFORMED. OBVIOUSLY, AN OFFICER OF AN INFANTRY COMPANY COULD NOT QUALIFY FOR ARMORY DRILL PAY WITH AND AT THE HOME STATION OF THE COMPANY WHEN HE IS ABSENT FROM THE STATE. BUT THAT IS NOT TRUE OF AN OFFICER NOT BELONGING TO AN ORGANIZATION WHO ACTUALLY PERFORMS THE APPROPRIATE DUTIES ASSIGNED TO HIM AND IS OTHERWISE ENTITLED TO ARMORY DRILL PAY. SEE, ALSO, TO THE SAME EFFECT, DECISION A-92878, DATED APRIL 29, 1939.

THESE DECISIONS CONSTITUTE AN INTERPRETATION OF THE QUOTED REGULATIONS AND REASONABLY GIVE EFFECT TO THE INTENT. UPON THE AUTHORITY THEREOF, PAYMENT OF THE SUPPLEMENTAL VOUCHER, RETURNED HEREWITH, IS AUTHORIZED TO THE EXTENT OTHERWISE CORRECT, BUT DUE TO AN APPARENT CONFLICT AS TO THE PERFORMANCE OF DUTIES DURING THE PERIOD INVOLVED, THE SUPPLEMENTAL VOUCHER SHOULD BE SUPPORTED BY A DEFINITE STATEMENT FROM HIGHER AUTHORITY THAT MAJOR HAUSAUER SATISFACTORILY PERFORMED HIS APPROPRIATE DUTIES DURING THE PERIOD COVERED BY THE VOUCHER AND THAT HE WAS NOT WITHIN ANY OF THE CONDITIONS REFERRED TO IN PARAGRAPH 6B, NATIONAL GUARD REGULATIONS 58.