B-62581, MARCH 11, 1947, 26 COMP. GEN. 665

B-62581, MARCH 11, 1947, 26 COMP. GEN. 665

PAY - FOREIGN DUTY - MEMBERS OF NATIONAL GUARD OF U.S. TERRITORIES AND POSSESSIONS MEMBERS OF THE NATIONAL GUARD OF UNITED STATES TERRITORIES AND POSSESSIONS WHO ARE IN FEDERAL SERVICE OR ARE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PRESCRIBED IN SECTIONS 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED (ENCAMPMENTS, MANEUVERS, SCHOOLS OF INSTRUCTION, ETC.), AND, HENCE, ARE ENTITLED TO PAY IN ACCORDANCE WITH SECTION 14, PARAGRAPH TWO, OF THE PAY READJUSTMENT ACT OF 1942, ARE ENTITLED TO A PERCENTAGE INCREASE IN SUCH PAY, AS PROVIDED BY SECTION 2 OF SAID 1942 ACT, AS AMENDED WITHOUT REGARD TO PLACE OF NATIVITY OR RESIDENCE, WHEN BEYOND THE FORTY-EIGHT STATES AND THE DISTRICT OF COLUMBIA. THE ADDITIONAL PAY PROVIDED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR DUTY OUTSIDE CONTINENTAL UNITED STATES MAY NOT BE INCLUDED IN THE COMPUTATION UNDER SECTION 14, PARAGRAPH THREE, OF SAID ACT OF THE ARMORY DRILL PAY OF MEMBERS OF THE NATIONAL GUARD OF UNITED STATES TERRITORIES AND POSSESSIONS WHEN ENGAGING IN DRILLS, ETC., PURSUANT TO SECTION 92 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUCH ADDITIONAL PAY NOT BEING PART OF THE MONTHLY BASE PAY UPON WHICH ARMORY DRILL PAY MUST BE COMPUTED (26 COMP. GEN. 621).

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, MARCH 11, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 13, 1946, AS FOLLOWS:

WITH THE RESUMPTION OF PEACETIME ACTIVITIES OF THE NATIONAL GUARD, A QUESTION HAS ARISEN AS TO THE ENTITLEMENT OF MEMBERS OF THE NATIONAL GUARD OF THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES TO FOREIGN SERVICE PAY FOR ATTENDANCE AT ARMORY DRILLS, FIELD EXERCISES, SCHOOLS, ETC., WITHIN THE TERRITORIAL LIMITS OF THEIR HOMES, UNDER SECTIONS 92, 94, 97 AND 99 OF THE NATIONAL DEFENSE ACT (39 STAT. 166), AS AMENDED.

ATTENTION IS INVITED TO SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 360), AS AMENDED, AND MADE PERMANENT LEGISLATION, BY SECTION 12 OF THE ACT OF 6 OCTOBER 1945 (56 STAT. 538) (59 STAT. 542), AUTHORIZING ADDITIONAL PAY FOR FOREIGN SERVICE, AS FOLLOWS:

"THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES OTHERWISE AUTHORIZED * * *"

SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 367), WHICH ESTABLISHED THE RATES OF PAY FOR MEMBERS OF THE NATIONAL GUARD, PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM THE SECOND AND THIRD PARAGRAPHS, RESPECTIVELY):

"OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD, WHEN IN THE FEDERAL SERVICE OR WHEN PARTICIPATING IN EXERCISES OR PERFORMING THE DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY.'

"UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, OFFICERS OF THE NATIONAL GUARD, OTHER THAN GENERAL OFFICERS, AND WARRANT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD, SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY PAY AUTHORIZED FOR SUCH PERSONS WHEN IN THE FEDERAL SERVICE, FOR EACH REGULAR DRILL, PERIOD OF APPROPRIATE DUTY, OR OTHER EQUIVALENT PERIOD OF TRAINING, AUTHORIZED BY THE SECRETARY OF WAR, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR THE ENTIRE PRESCRIBED PERIOD OF TIME. PROVIDED, THAT SUCH PAY SHALL BE IN ADDITION TO COMPENSATION FOR ATTENDANCE AT FIELD OR COAST-DEFENSE INSTRUCTION OR MANEUVERS * * *"

SINCE THE MEMBERS OF THE NATIONAL GUARD IN THE TERRITORIES AND POSSESSIONS ARE LOCAL RESIDENTS AND SERVE WITHIN THE TERRITORIAL LIMITS OF THEIR HOMES, DOUBT IS BELIEVED TO EXIST AS TO WHETHER SUCH MEMBERS ARE ENTITLED TO FOREIGN SERVICE PAY FOR SERVICES PERFORMED UNDER THE ABOVE REFERRED TO SECTIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED.

ACCORDINGLY, YOUR DECISION IS REQUESTED AS TO WHETHER MEMBERS OF THE NATIONAL GUARD OF THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES ARE ENTITLED TO ADDITIONAL PAY UNDER THE PROVISIONS OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SUPRA, FOR PARTICIPATING IN THE DRILLS OR EXERCISES, OR PERFORMING THE DUTIES, PROVIDED FOR BY SECTIONS 92, 94, 97 AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WITHIN THE TERRITORIAL LIMITS OF THEIR HOME STATIONS.

THE SECOND PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C., SUPP. V. 114 (QUOTED IN YOUR LETTER ABOVE), PROVIDES THAT OFFICERS, WARRANT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD, WHEN IN THE FEDERAL SERVICE OR WHEN PARTICIPATING IN EXERCISES OR PERFORMING THE DUTIES PROVIDED FOR BY SECTIONS 94, 97 AND 99 OF THE NATIONAL DEFENSE ACT, 39 STAT. 206, 207, AS AMENDED, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY. SECTION 2 OF THE SAID ACT, 56 STAT. 360, AS AMENDED, 37 U.S.C., SUPP. 102 V. 1 (ALSO QUOTED, IN PERTINENT PART, IN YOUR LETTER ABOVE), AUTHORIZES PERCENTAGE INCREASES IN THE PAY OF THE PERSONNEL SPECIFIED THEREIN, INCLUDING, AMONG OTHERS, OFFICERS, WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, FOR ANY PERIODS WHEN SUCH PERSONNEL MAY BE SERVING ON "DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.'

WHEN THE PROVISIONS OF THE SECOND PARAGRAPH OF SECTION 14, SUPRA, ARE READ IN CONJUNCTION WITH THE PROVISIONS OF SECTION 2, AS AMENDED, SUPRA, THE CONCLUSION IS REQUIRED THAT A MEMBER OF THE NATIONAL GUARD OF A TERRITORY OR POSSESSION OF THE UNITED STATES IS ENTITLED TO A PERCENTAGE INCREASE IN PAY AS SPECIFIED IN THE SAID SECTION 2, AS AMENDED, WITHOUT REGARD TO HIS PLACE OF NATIVITY OR RESIDENCE, FOR ANY PERIOD WHEN HE IS BEYOND THE LIMITS OF THE FORTY-EIGHT STATES AND THE DISTRICT OF COLUMBIA AND IS IN THE FEDERAL SERVICE OR IS PERFORMING DUTIES AS PRESCRIBED IN SECTION 94 (ENCAMPMENTS, MANEUVERS, ETC.), 97 (ASSEMBLAGES FOR INSTRUCTION AT SPECIAL SCHOOLS CONDUCTED BY REGULAR ARMY OFFICERS, ETC.), OR 99 (REGULAR COURSES OF STUDY AT MILITARY SERVICE SCHOOLS, ETC.), OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 63, 64 AND 65. IN SUCH CONNECTION, SEE A-2076, JANUARY 7, 1927, HOLDING THAT THE PANAMA CANAL ZONE IS "BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES" WITHIN THE MEANING OF A STATUTORY PROVISION RELATING TO TRAVELING EXPENSES. SEE, ALSO, A 18397, MAY 21, 1927 ( ALASKA), AND COMPARE 16 COMP. GEN. 772, AND 24 ID. 536 ( HAWAII); 21 COMP. GEN. 932, 938 ( PHILIPPINE ISLANDS); 13 COMP. DEC. 150, AND 20 ID. 821 ( PUERTO RICO). HAS BEEN NOTED, ALSO, THAT PARAGRAPH 7B, ARMY REGULATIONS 35-1490, PROVIDES AS FOLLOWS:

NATIVES OF PUERTO RICO, HAWAII, AND THE PHILIPPINE ISLANDS, WHILE PERFORMING ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, ARE ENTITLED TO FOREIGN SERVICE PAY WHILE SERVING IN THE ISLANDS OF WHICH THEY ARE NATIVES OR IN ANY OTHER COUNTRY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. HOWEVER, FOREIGN SERVICE PAY WILL NOT BE PAID FOR DUTY PERFORMED IN THE UNITED STATES.

WHILE IT APPEARS, IN THAT CONNECTION, THAT A PROVISION IN THE MILITARY APPROPRIATION ACT FOR THE FISCAL YEAR 1913 (ACT OF AUGUST 24, 1912, 37 STAT. 576) THAT THEREAFTER THE LAWS ALLOWING INCREASE OF PAY TO OFFICERS AND ENLISTED MEN FOR FOREIGN SERVICE SHOULD NOT APPLY TO SERVICE IN THE CANAL ZONE, PANAMA, HAWAII, OR PUERTO RICO, MUST BE CONSIDERED AS HAVING BEEN REPEALED BY SECTIONS 15 AND 22 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, 633, IT IS NOTEWORTHY THAT THE CONGRESS APPARENTLY DEEMED SUCH A SPECIFIC PROVISION NECESSARY TO EXCLUDE SERVICE IN THE PLACES MENTIONED FROM THE SERVICE CREDITABLE FOR FOREIGN SERVICE PAY PURPOSES UNDER THE STATUTES EXISTING PRIOR TO 1922.

THE ANSWER TO THAT PART OF YOUR QUESTION WHICH PERTAINS TO ARMORY DRILL PAY (I.E., PAY FOR ENGAGING IN DRILLS, ETC., IN ACCORDANCE WITH SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 206, AS AMENDED, 32 U.S.C. 62) DEPENDS, PRINCIPALLY, ON THE MEANING OF THE PHRASE ,ONE- THIRTIETH OF THE MONTHLY PAY AUTHORIZED FOR SUCH PERSONS WHEN IN THE FEDERAL SERVICE" AS USED IN THE THIRD PARAGRAPH OF SECTION 14, QUOTED IN YOUR LETTER. IN DECISION OF FEBRUARY 21, 1947, B-63233, 26 COMP. GEN. 621, TO YOU, IT WAS HELD THAT SUCH PHRASE AS USED IN THE SAID PARAGRAPH MEANS ONE-THIRTIETH OF THE MONTHLY BASE PAY OF THE GRADE HELD BY THE PERSON CONCERNED, IT BEING CONCLUDED THAT THE EXCEPTION CONTAINED IN SECTION 3 OF THE ACT, 56 STAT. 360, RESPECTING ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY FOR THE NATIONAL GUARD SHOWS THAT THE LANGUAGE USED IN THE SAID THIRD PARAGRAPH OF SECTION 14 WAS NOT INTENDED TO CHANGE THE BASIS FOR COMPUTING DRILL PAY WHICH HAD BEEN ESTABLISHED BY PRIOR STATUTORY PROVISIONS (SECTIONS 109 AND 110 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 143, 154, AND SECTION 14 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 631). IT WAS SAID IN THAT DECISION:

THE HISTORY OF THE LEGISLATION RELATING TO DRILL PAY INDICATES THAT, FOR MANY YEARS, THE CONGRESS HAS TAKEN THE VIEW THAT, GENERALLY AND UNDER NORMAL CONDITIONS OF PARTICIPATION IN DRILLS, A MEMBER OF THE NATIONAL GUARD IS AMPLY COMPENSATED WHEN HE RECEIVES ONE-THIRTIETH OF THE MONTHLY BASE PAY OF HIS GRADE FOR PARTICIPATING IN A DRILL OF "AT LEAST ONE AND ONE-HALF HOURS' DURATION" (AS SPECIFIED IN SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, TO AUTHORIZE THE INCLUSION OF FLYING PAY IN THE COMPUTATION OF DRILL PAY, IT HAS USED CLEAR AND UNMISTAKABLE TERMS IN DOING SO AND HAS PLACED SPECIFIC CONDITIONS AND LIMITATIONS UPON SUCH INCLUSION. SEE SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C. SUPP. V, 118; ALSO, SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782. * * *

SINCE THE PAY AUTHORIZED BY SECTION 2, AS AMENDED, SUPRA, COMMONLY REFERRED TO AS FOREIGN SERVICE PAY, IS NOT A PART OF THE MONTHLY BASE PAY OF THE GRADE HELD BY A MEMBER OF THE NATIONAL GUARD AND SINCE IT DOES NOT APPEAR THAT THE CONGRESS EVER INTENDED THAT MEMBERS OF THE NATIONAL GUARD IN THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES SHOULD RECEIVE A HIGHER RATE OF ARMORY DRILL PAY THAN MEMBERS OF THE NATIONAL GUARD WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, IT IS CONCLUDED THAT THE PROVISIONS OF THE SAID SECTION 2, AS AMENDED, ARE NOT APPLICABLE IN THE COMPUTATION OF THE ARMORY DRILL PAY.

ACCORDINGLY, THAT PART OF YOUR QUESTION WHICH RELATES TO SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUPRA, IS ANSWERED IN THE AFFIRMATIVE AND THAT PART OF YOUR QUESTION WHICH RELATES TO SECTION 92 OF THE SAID ACT, AS AMENDED, IS ANSWERED IN THE NEGATIVE.