B-70438, APRIL 2, 1948, 27 COMP. GEN. 572

B-70438, APRIL 2, 1948, 27 COMP. GEN. 572

ALLOWANCE OF COAST GUARD PERSONNEL - ASSIMILATION TO NAVY PERSONNEL - EFFECT OF ACT OF OCTOBER 26, 1942 THE ACT OF OCTOBER 26, 1942, SPECIFICALLY EXTENDING TO PERSONNEL OF THE COAST GUARD, WHEN THAT SERVICE IS OPERATING AS A PART OF THE NAVY, THE PROVISIONS OF LAW AUTHORIZING, IN THE CASE OF PERSONNEL OF THE NAVY DISCHARGED FROM NAVAL PRISONS, THE FURNISHING OF CIVILIAN CLOTHING AND TRANSPORTATION AND THE PAYMENT OF A GRATUITY, AS WELL AS THE GRATUITY PAYMENT PRESCRIBED BY STATUTE UPON THE DISHONORABLE DISCHARGE OF NAVAL PERSONNEL, MAY NOT BE REGARDED AS AFFECTING, WHEN THE COAST GUARD IS OPERATING UNDER THE TREASURY, THE PRE-EXISTING RIGHTS OF COAST GUARD PERSONNEL UNDER SAID STATUTORY PROVISIONS WHICH WERE MADE APPLICABLE TO THAT SERVICE BY THE ASSIMILATING PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, APRIL 2, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 16, 1947, ENCLOSING A COPY OF A PROPOSED AMENDMENT TO COAST GUARD PAY AND SUPPLY INSTRUCTIONS AND REQUESTING A DECISION AS TO WHETHER CERTAIN PROVISIONS IN THE ACTS OF FEBRUARY 16, 1909, 35 STAT. 622, MARCH 3, 1909, 35 STAT. 756, AND MARCH 4, 1925, 43 STAT. 1274, PROPERLY MAY BE REGARDED AS NOW APPLICABLE TO THE COAST GUARD IN VIEW OF THE ACT OF OCTOBER 26, 1942, 56 STAT. 987. THE MATTER IS DISCUSSED IN YOUR LETTER, IN PART AS FOLLOWS:

TRANSPORTATION AND THE PAYMENT OF A GRATUITY NOT TO EXCEED TWENTY FIVE DOLLARS ($25) TO PERSONS IN THE NAVY DISCHARGED FROM NAVAL PRISON WAS AUTHORIZED BY THE ACTS OF FEBRUARY 16 AND MARCH 3, 1909 (35 STAT. 622 AND 756; 34 U.S.C. 961 AND 962). IN A DECISION OF SEPTEMBER 9, 1920, THE COMPTROLLER OF THE TREASURY RULED THAT THESE ACTS WERE APPLICABLE TO THE COAST GUARD BY VIRTUE OF AN ASSIMILATING STATUTE, THE ACT OF MAY 18, 1920, 41 STAT. 603. 27 COMP. DEC. 234. THE ACT OF MARCH 4, 1925 (43 STAT. 1274; 34 U.S.C. 197) AUTHORIZED THE PAYMENT OF A GRATUITY OF PERSONS DISCHARGED FROM THE NAVAL SERVICE BY DISHONORABLE DISCHARGE, BAD CONDUCT DISCHARGE, OR ANY OTHER DISCHARGE FOR THE GOOD OF THE SERVICE. BY PARITY OF REASONING THIS ACT WAS CONSIDERED, PRIOR TO 1942, TO BE LIKEWISE APPLICABLE TO THE COAST GUARD.

HOWEVER, THE ACT OF OCTOBER 26, 1942 (56 STAT. 987; 14 U.S.C. 3A) PROVIDED THAT "WHENEVER THE COAST GUARD IS OPERATING AS A PART OF THE NAVY" THE ABOVE-MENTIONED STATUTES "SHALL BE CONSIDERED APPLICABLE TO PERSONNEL OF THE COAST GUARD.' THE QUESTION IS NOW RAISED AS TO WHETHER THE ACT OF OCTOBER 26, 1942, OPERATES TO PREVENT THE APPLICATION OF THE THREE ASSIMILATED STATUTES TO COAST GUARD PERSONNEL WHILE THE COAST GUARD IS UNDER THE JURISDICTION OF THE TREASURY DEPARTMENT.

IN THE VIEW OF THE DEPARTMENT, THE ACT OF OCTOBER 26, 1942, DOES NOT SO OPERATE, AND WAS INTENDED ONLY TO SET AT REST ANY DOUBTS AS TO THE APPLICABILITY OF THE STATUTES IN QUESTION TO COAST GUARD PERSONNEL DURING THE TIME THAT THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY. IT IS NOTED THAT A SUBSEQUENT ACT OF DECEMBER 23, 1943 (57 STAT. 628; 14 U.S.C. 148) RAISING THE LIMITATION IN THE COST OF CLOTHING FURNISHED DISCHARGED PERSONNEL, EXPRESSLY INCLUDES THE COAST GUARD, IS NOT LIMITED IN RESPECT TO TIME OF APPLICATION, AND CAN BE GIVEN EFFECT ONLY IN CONNECTION WITH THE ACT OF FEBRUARY 16, 1909, ABOVE MENTIONED. IT IS FURTHER NOTED THAT THE ACT OF MAY 18, 1920 (41 STAT. 603; 14 U.S.C. 121), ASSIMILATING THE PAY AND ALLOWANCES OF COAST GUARD PERSONNEL TO THAT PRESCRIBED FOR THE NAVY, HAS NEVER BEEN REPEALED, ALTHOUGH IT HAS BEEN RENDERED INOPERATIVE AS TO THOSE MATTERS DEALT WITH BY SUBSEQUENT SPECIFIC LEGISLATION. CF. 22 COMP. GEN. 171 AND 723 (1943).

SECTION 13 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT. 622, PROVIDES:

THAT PERSONS CONFINED IN PRISONS IN PURSUANCE OF THE SENTENCE OF A NAVAL COURT-MARTIAL SHALL, DURING SUCH CONFINEMENT, BE ALLOWED A REASONABLE SUM, NOT TO EXCEED THREE DOLLARS PER MONTH, FOR NECESSARY PRISON EXPENSES, AND SHALL UPON DISCHARGE BE FURNISHED WITH SUITABLE CIVILIAN CLOTHING AND PAID A GRATUITY, NOT TO EXCEED TWENTY-FIVE DOLLARS: PROVIDED, THAT SUCH ALLOWANCES SHALL BE MADE IN AMOUNTS TO BE FIXED BY, AND IN THE DISCRETION OF, THE SECRETARY OF THE NAVY AND ONLY IN CASES WHERE THE PRISONERS SO DISCHARGED WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING OR WITHOUT FUNDS TO MEET THEIR IMMEDIATE NEEDS.

THE ACT OF MARCH 3, 1909, 35 STAT. 756, IS, IN PERTINENT PART:

* * * PROVIDED, THAT THE SECRETARY OF THE NAVY IS HEREAFTER AUTHORIZED TO TRANSPORT TO THEIR HOMES OR PLACES OF ENLISTMENT, AS HE MAY DESIGNATE, ALL DISCHARGED NAVAL PRISONERS; THE EXPENSE OF SUCH TRANSPORTATION SHALL BE PAID OUT OF ANY MONEY THAT MAY BE TO THE CREDIT OF PRISONERS WHEN DISCHARGED; WHERE THERE IS NO SUCH MONEY, THE EXPENSE SHALL BE PAID OUT OF MONEY RECEIVED FROM FINES AND FORFEITURES IMPOSED BY NAVAL COURTS-MARTIAL: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO FURNISH NAVAL PRISONERS UPON DISCHARGE SUITABLE CIVILIAN CLOTHING IN CASE, AND ONLY WHERE, SAID DISCHARGE PRISONERS WOULD OTHERWISE BE UNPROVIDED WITH SUITABLE CLOTHING TO MEET THEIR IMMEDIATE NEEDS.

SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, PROVIDES, IN PERTINENT PART:

THAT COMMISSIONED OFFICERS, WARRANT OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED MEN OF THE COAST GUARD SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND INCREASES AS NOW ARE, HEREIN ARE, OR HEREAFTER MAY BE PRESCRIBED FOR CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE AVY; AND THE GRADES AND RATINGS OF WARRANT OFFICERS, CHIEF PETTY OFFICERS, PETTY OFFICERS AND OTHER ENLISTED PERSONS IN THE COAST GUARD SHALL BE THE SAME AS IN THE NAVY, IN SO FAR AS THE DUTIES OF THE COAST GUARD MAY REQUIRE * *

SECTION 10 OF THE ACT OF MARCH 4, 1925, 43 STAT 1274, PROVIDES, IN PERTINENT PART:

THAT HEREAFTER PERSONS DISCHARGED FROM THE NAVAL SERVICE BY DISHONORABLE DISCHARGE, BAD-CONDUCT DISCHARGE, OR ANY OTHER DISCHARGE FOR THE GOOD OF THE SERVICE, MAY, UPON DISCHARGE, BE PAID A SUM NOT TO EXCEED $25: PROVIDED, THAT THE SAID SUM SHALL BE FIXED BY, AND IN THE DISCRETION OF, THE SECRETARY OF THE NAVY, AND SHALL BE PAID ONLY IN CASES WHERE THE PERSON SO DISCHARGED WOULD OTHERWISE BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS * * *.

THE ACT OF OCTOBER 26, 1942, 56 STAT. 987, PROVIDES:

THAT WHENEVER THE COAST GUARD IS OPERATING AS A PART OF THE NAVY THE PROVISIONS OF SECTION 1563 OF THE REVISED STATUTES; OF SECTION 13 OF THE ACT APPROVED FEBRUARY 16, 1909 (35 STAT. 622); OF THE ACT APPROVED MARCH 3, 1909, RELATIVE TO DISCHARGED NAVAL PRISONERS (35 STAT. 756); OF THE ACT APPROVED MARCH 4, 1917, RELATIVE TO ADVANCES TO OFFICERS (39 STAT. 1181); OF SECTION 10 OF THE ACT APPROVED MARCH 4, 1925 (43 STAT. 1274); AND OF THE ACT APPROVED MAY 22, 1928 (45 STAT. 712); SHALL BE CONSIDERED APPLICABLE TO PERSONNEL OF THE COAST GUARD.

IT WAS HELD BY THE COMPTROLLER OF THE TREASURY IN DECISION OF SEPTEMBER 9, 1920, 27 COMP. DEC. 234, THAT THE ALLOWANCES PRESCRIBED IN THE ACTS OF FEBRUARY 16, 1909, AND MARCH 3, 1909, SUPRA, FOR NAVAL PRISONERS WERE, BY THE ACT OF MAY 18, 1920, APPLICABLE TO COAST GUARD PRISONERS UNDER LIKE CIRCUMSTANCES AND CONDITIONS. YOU ADVISE THAT BY "PARITY OF REASONING" THE PROVISIONS OF THE ACT OF MARCH 4, 1925, AUTHORIZING A GRATUITY FOR NAVAL PERSONNEL UPON DISHONORABLE DISCHARGE OR DISCHARGE FOR THE GOOD OF THE SERVICE HAVE LIKEWISE BEEN CONSIDERED APPLICABLE TO PERSONNEL OF THE COAST GUARD.

BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, ET SEQ., THE CONGRESS MADE SPECIFIC PROVISION FOR PERSONNEL OF THE COAST GUARD AS TO VARIOUS MATTERS OF PAY AND ALLOWANCES INCLUDING, INTER ALIA, BASE PAY, PERIOD PAY, LONGEVITY PAY, SUBSISTENCE ALLOWANCE, AND RENTAL ALLOWANCE. BY THE ACT OF JUNE 16, 1942, 56 STAT. 359, ET SEQ., THE CONGRESS MADE SPECIFIC PROVISION FOR PERSONNEL OF THE COAST GUARD AS TO THE MATTERS OF PAY AND ALLOWANCES FORMERLY COVERED BY THE ACT OF JUNE 10, 1922, AND AS TO CERTAIN ADDITIONAL MATTERS, INCLUDING INCREASED PAY FOR SEA OR FOREIGN SERVICE DUTY. NEITHER OF SUCH ACTS MADE ANY PROVISION FOR THE TYPE OF ALLOWANCES COVERED BY THE ACTS OF FEBRUARY 16, 1909, MARCH 3, 1909, AND MARCH 4, 1925. HOWEVER, THE ACT OF OCTOBER 26, 1942, SPECIFICALLY MADE SUCH PROVISIONS APPLICABLE TO THE COAST GUARD WHEN "OPERATING AS A PART OF THE NAVY.' BUT IT DOES NOT APPEAR THAT THE CONGRESS INTENDED SUCH PROVISION AS A LIMITATION ON SUCH RIGHTS AS MAY HAVE SURVIVED TO THE COAST GUARD UNDER THE SAID ASSIMILATION PROVISION IN THE ACT OF MAY 18, 1920, WHEN NOT OPERATING AS A PART OF THE NAVY, THAT MATTER BEING QUESTIONABLE, THE EFFECT BEING TO MAKE CERTAIN THAT SUCH PROVISIONS SHOULD APPLY TO THE COAST GUARD WITHOUT QUESTION DURING THE WAR WHILE THE COAST GUARD ACTUALLY OPERATED AS A PART OF THE NAVY.

THE ACT OF JUNE 10, 1922, SUPRA, COVERING A BROAD FIELD OF PAY AND ALLOWANCES GENERALLY TO MEMBERS OF THE COAST GUARD, INDICATED A LEGISLATIVE POLICY OF MAKING SPECIFIC PROVISIONS FOR COAST GUARD PAY AND ALLOWANCES INSTEAD OF LEAVING SUCH MATTERS TO BE DETERMINED BY REFERENCE TO THE PAY AND ALLOWANCE PROVISIONS FOR NAVAL PERSONNEL, PURSUANT TO THE ASSIMILATION PROVISIONS IN THE ACT OF MAY 18, 1920. THAT POLICY WAS CONTINUED IN THE 1942 PAY ACT AND IN SUBSEQUENT LEGISLATION MAKING SPECIFIC PROVISIONS FOR THE COAST GUARD PERSONNEL, SO THAT THE SAID ASSIMILATION PROVISION IN THE ACT OF MAY 18, 1920, HAS BEEN LARGELY, IF NOT ENTIRELY, SUPERSEDED, EXCEPT AS TO MATTERS FORMERLY GRANTED THEREUNDER AND NOT DISCONTINUED. IN SUCH CONNECTION, IT IS NOTED THAT IT APPARENTLY IS THE OPINION OF THE COMPILERS OF THE U.S.C. 1940 EDITION, THAT THE ASSIMILATION PROVISION OF SECTION 8 OF THE ACT OF MAY 18, 1920, IS NOW ENTIRELY INOPERATIVE. SEE TITLE 14, SECTION 121. IN VIEW OF THESE CIRCUMSTANCES, I THINK THE CONCLUSION IS NOW REQUIRED THAT MATTERS OF PAY AND ALLOWANCES PROVIDED FOR THE NAVY AT LEAST SINCE THE SAID PAY ACT OF JUNE 16, 1942, MAY NOT BE REGARDED AS INTENDED TO APPLY TO THE COAST GUARD BY ASSIMILATION, SINCE IT IS TO BE ASSUMED, AT LEAST SINCE THAT DATE, THAT IF THE CONGRESS HAD INTENDED SUCH MATTERS TO APPLY TO THE COAST GUARD, SPECIFIC PROVISION WOULD HAVE BEEN MADE THEREFOR. CF. 26 COMP. GEN. 78. HOWEVER, IT IS NOT CONSIDERED THAT BY SUCH LEGISLATIVE POLICY OF MAKING SPECIFIC PROVISION FOR THE COAST GUARD, THE CONGRESS INTENDED TO ABOLISH RIGHTS PREVIOUSLY CONFERRED ON THE COAST GUARD UNDER THE ASSIMILATION PROVISION, EXCEPT, OF COURSE, TO THE EXTENT THAT SPECIFIC PROVISION WAS MADE IN THE 1922 ACT OR IN LATER ACTS FOR THE COAST GUARD. THUS, FOR EXAMPLE, TRAVEL ALLOWANCE CONTINUES TO ACCRUE TO COAST GUARD ENLISTED PERSONNEL ON DISCHARGE UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, BY VIRTUE OF THE ASSIMILATION PROVISION IN THE ACT OF MAY 18, 1920. SEE DECISION OF JUNE 9, 1947, B-63472. IT FOLLOWS THAT THE RIGHTS LIKEWISE CONFERRED ON THE COAST GUARD BY ASSIMILATION UNDER THE ACTS OF FEBRUARY 16, 1909, AND MARCH 3, 1909, SUPRA, CONTINUE TO APPLY, UNLESS OTHERWISE REPEALED, OR SUPERSEDED. THE APPLICATION TO THE COAST GUARD BY ASSIMILATION OF THE RIGHTS CONFERRED ON NAVAL PERSONNEL BY THE ACT OF MARCH 4, 1925, SUPRA, IS MORE DOUBTFUL, SINCE THAT STATUTE WAS ENACTED AFTER THE POLICY OF MAKING SPECIFIC PROVISIONS FOR THE COAST GUARD HAD AT LEAST BEEN INDICATED IN THE PAY ACT OF JUNE 10, 1922. THE INTENT OF THE CONGRESS IN THAT RESPECT WAS STILL INDEFINITE, HOWEVER, AND APPARENTLY THIS OFFICE NEVER QUESTIONED THE ADMINISTRATIVE DETERMINATION THAT THE 1925 ACT APPLIED TO THE COAST GUARD BY ASSIMILATION THE SAME AS THE TWO 1909 ACTS CONSIDERED IN THE DECISION OF SEPTEMBER 9, 1920, BY THE COMPTROLLER OF THE TREASURY. MOREOVER, THE MATTER HAVING BEEN INDEFINITE, THIS OFFICE HAS CONSIDERED THAT STATUTES ENACTED FOR NAVAL PERSONNEL AS LATE AS 1940 WERE INTENDED TO BE APPLICABLE TO COAST GUARD PERSONNEL BY ASSIMILATION UNDER THE SAID ACT OF MAY 18, 1920. SEE, FOR EXAMPLE, DECISION OF NOVEMBER 19, 1940, B-13249. UNDER SUCH CONDITIONS, THE CONCLUSION APPEARS JUSTIFIED THAT THE ACT OF MARCH 4, 1925, WAS PROPERLY REGARDED AS APPLICABLE TO THE COAST GUARD BY ASSIMILATION, NOTWITHSTANDING THAT IT WAS ENACTED SUBSEQUENT TO THE PAY ACT OF JUNE 10, 1922.

RESPECTING THE EFFECT OF THE ACT OF OCTOBER 26, 1942, SUPRA, UPON THE THERETOFORE EXISTING RIGHTS BY ASSIMILATION OF THE COAST GUARD UNDER THE SAID ACTS OF FEBRUARY 16, 1909, MARCH 3, 1909, AND MARCH 4, 1925, THE LEGISLATIVE HISTORY OF SUCH 1942 ACT DISCLOSES NO MENTION OF THE ACT OF MAY 18, 1920, NOR ANY INTENT TO LIMIT EXISTING RIGHTS THEREUNDER. APPEARS RATHER THAT SPECIFIC REFERENCE TO THE SAID THREE STATUTES, AMONG OTHERS, WAS MADE IN THE ACT OF OCTOBER 26, 1942, WITHOUT PARTICULAR KNOWLEDGE THAT THEY WERE APPLICABLE TO THE COAST GUARD BY ASSIMILATION UNDER THE 1920 ACT AND, AS STATED ABOVE, TO MAKE CERTAIN THAT THEY WOULD APPLY TO THE COAST GUARD WHEN OPERATING AS PART OF THE NAVY DURING THE WAR, WITH NO INTENT TO TAKE AWAY BENEFITS APPLICABLE TO THAT SERVICE BY ASSIMILATION UNDER THE 1920 ACT WHEN NOT SO OPERATING. THE MATTER IS NOT FREE FROM DOUBT, BUT IT IS CONCLUDED THAT THE ACT OF OCTOBER 26, 1942, DID NOT INTENT TO ABOLISH THE LONG PREEXISTING RIGHTS OF THE COAST GUARD UNDER THE THREE STATUTES WHEN OPERATING UNDER THE TREASURY.

ACCORDINGLY, YOU ARE ADVISED THAT THE SAID PROVISIONS OF THE ACTS OF FEBRUARY 16, 1909, AND MARCH 3, 1909, AND MARCH 4, 1925, CONTINUE TO APPLY TO PERSONNEL OF THE COAST GUARD IN LIKE MANNER AND UNDER THE SAME CONDITIONS AS THEY APPLY TO PERSONNEL OF THE NAVY, AND THAT TO THE EXTENT THE PROVISIONS OF THE PROPOSED AMENDMENT TO THE COAST GUARD PAY AND SUPPLY INSTRUCTIONS ARE BASED ON THAT VIEW THEY APPEAR TO BE IN CONFORMITY WITH LAW, SUCH PROVISIONS BEING SUBJECT, OF COURSE, TO THE DETERMINATION OF ANY QUESTIONS WHICH MAY ARISE IN THIS APPLICATION TO PARTICULAR CASES.