B-96836, JANUARY 31, 1951, 30 COMP. GEN. 330

B-96836: Jan 31, 1951

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AN OFFICER WHO REPORTS FOR ACTIVE DUTY ON A PEACETIME BASIS IN CONNECTION WITH THE NAVAL RESERVE PROGRAM UNDER ORDERS WHICH ARE SUBJECT TO HIS CONSENT. IS NOT PERFORMING WARTIME OR EMERGENCY DUTY CONTEMPLATED BY THE ACT SO AS TO BE ENTITLED TO THE $150 UNIFORM ALLOWANCE. 1951: I HAVE YOUR LETTER OF JULY 14. IS ENTITLED TO $150 UNIFORM ALLOWANCE INCIDENT TO REPORTING FOR ACTIVE DUTY UNDER ORDERS DATED APRIL 28. THE SAID ORDERS ARE DENOMINATED "ACTIVE DUTY WITH PAY. " NAVAL RESERVE.'" PARAGRAPHS 3 AND 4 OF THE ORDERS ARE AS FOLLOWS: 3. YOU WILL FURTHER REPORT TO THE CHIEF OF NAVAL OPERATIONS. THIS RECALL TO ACTIVE DUTY IS SUBJECT TO YOUR CONSENT AND ITS DURATION IS CONTINGENT UPON APPROPRIATION LIMITATIONS.

B-96836, JANUARY 31, 1951, 30 COMP. GEN. 330

UNIFORM ALLOWANCE - NAVAL RESERVIST - WARTIME OR EMERGENCY DUTY UNDER THE UNIFORM ALLOWANCE AUTHORIZATION PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 PRESCRIBING A $100 ALLOWANCE TO OFFICERS VOLUNTARILY PERFORMING TRAINING DUTY AND A $150 ALLOWANCE FOR PERIODS OF ACTIVE DUTY WHICH OFFICERS MAY BE REQUIRED TO PERFORM WITH OR WITHOUT THEIR CONSENT THROUGHOUT A PERIOD OF WAR OR NATIONAL EMERGENCY, AN OFFICER WHO REPORTS FOR ACTIVE DUTY ON A PEACETIME BASIS IN CONNECTION WITH THE NAVAL RESERVE PROGRAM UNDER ORDERS WHICH ARE SUBJECT TO HIS CONSENT, EVEN THOUGH HE REPORTED THEREFOR DURING A TIME WHEN THERE CONTINUED A TECHNICAL STATE OF WAR OR NATIONAL EMERGENCY, IS NOT PERFORMING WARTIME OR EMERGENCY DUTY CONTEMPLATED BY THE ACT SO AS TO BE ENTITLED TO THE $150 UNIFORM ALLOWANCE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 31, 1951:

I HAVE YOUR LETTER OF JULY 14, 1950, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER LIEUTENANT (JG) JOHN B. EWALD, JR., UNITED STATES NAVAL RESERVE, IS ENTITLED TO $150 UNIFORM ALLOWANCE INCIDENT TO REPORTING FOR ACTIVE DUTY UNDER ORDERS DATED APRIL 28, 1950, FROM THE CHIEF OF NAVAL PERSONNEL.

THE SAID ORDERS ARE DENOMINATED "ACTIVE DUTY WITH PAY, ALLOWANCES AND TRAVEL CHARGEABLE TO APPROPRIATION," NAVAL RESERVE.'" PARAGRAPHS 3 AND 4 OF THE ORDERS ARE AS FOLLOWS:

3. IF FOUND PHYSICALLY QUALIFIED, YOU WILL FURTHER REPORT TO THE CHIEF OF NAVAL OPERATIONS, NAVY DEPARTMENT, WASHINGTON, D.C., FOR ACTIVE DUTY IN CONNECTION WITH THE NAVAL RESERVE PROGRAM.

4. THIS RECALL TO ACTIVE DUTY IS SUBJECT TO YOUR CONSENT AND ITS DURATION IS CONTINGENT UPON APPROPRIATION LIMITATIONS. YOUR RETENTION ON ACTIVE DUTY MAY BE TERMINATED BY YOUR OWN REQUEST TWELVE MONTHS AFTER REPORTING FOR ACTIVE DUTY, OR AT THE DISCRETION OF THE CHIEF OF NAVAL PERSONNEL. THE EVENT YOU DO NOT DESIRE RECALL TO ACTIVE DUTY UNDER THE CONDITIONS ABOVE, PLEASE RETURN THESE ORDERS TO THE BUREAU OF NAVAL PERSONNEL.

IT APPEARS THAT, HAVING BEEN FOUND PHYSICALLY QUALIFIED, LIEUTENANT EWALD REPORTED FOR ACTIVE DUTY IN ACCORDANCE WITH THE ABOVE ORDERS ON MAY 1, 1950. IT IS STATED THAT ON JANUARY 19, 1950, HE WAS PAID A $100 UNIFORM ALLOWANCE UPON COMPLETION OF 14 DAYS' TRAINING DUTY. ALSO, IT IS STATED THAT THE NAVAL RESERVE HAS BEEN ACTIVATED ON A PEACETIME BASIS.

SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES:

ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: PROVIDED, THAT AVIATION CADETS MAY BE REQUIRED TO SERVE ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF FOUR YEARS FROM DATE OF APPOINTMENT: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SECTION 302 OF THE ABOVE ACT, 52 STAT. 1180, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IN TIME OF PEACE, UPON FIRST REPORTING FOR ACTIVE OR TRAINING DUTY WITH PAY, AFTER ENACTMENT HEREOF, AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, OR AFTER THE AUTHORIZED PERFORMANCE OF FOURTEEN DRILLS, A COMMISSIONED OR WARRANT OFFICER OF THE NAVAL RESERVE SHALL BE PAID A SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS * * * AND PROVIDED FURTHER, THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.

THE LAST PROVISO OF THE ABOVE SECTION GRANTS A UNIFORM ALLOWANCE OF $150 TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. WHILE LIEUTENANT EWALD REPORTED FOR ACTIVE DUTY AT A TIME WHEN THERE CONTINUED TO EXIST FOR CERTAIN PURPOSES A TECHNICAL STATE OF WAR, HE DID NOT REPORT FOR WAR OR EMERGENCY DUTY BUT IN CONNECTION WITH THE NAVAL RESERVE PROGRAM, THEN ON A PEACETIME BASIS, WHICH PROGRAM, IT IS ASSUMED, HAS FOR ITS PURPOSE ACCOMPLISHMENT OF THE ENDS CONTEMPLATED IN SECTIONS 4 AND 9 OF THE NAVAL RESERVE ACT, 52 STAT. 1176, 1177, WITHIN THE LIMITS OF APPROPRIATIONS MADE FOR SUCH PURPOSES AS INTENDED BY SECTION 10 OF THE SAME ACT, 52 STAT. 1178.

SECTION 5 OF THE ACT PRESCRIBES TWO TYPES OF ACTIVE DUTY BY OFFICERS OF THE NAVAL RESERVE, NAMELY, DUTY WHICH THEY MAY BE REQUIRED TO PERFORM DURING TIME OF WAR OR NATIONAL EMERGENCY, AND DUTY WITH THEIR CONSENT IN TIME OF PEACE. IT SEEMS OBVIOUS THAT THE $150 ALLOWANCE PRESCRIBED IN SECTION 302 FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY IS INTENDED TO ACCRUE IN CONNECTION WITH SUCH DUTY AS PRESCRIBED IN SECTION 5, WHICH AN OFFICER MAY BE REQUIRED TO PERFORM WITH OR WITHOUT HIS CONSENT THROUGHOUT A PERIOD OF WAR OR NATIONAL EMERGENCY. HENCE, ACTIVE DUTY ON A PEACETIME BASIS IN CONNECTION WITH THE NAVAL RESERVE PROGRAM, UNDER ORDERS WHICH ARE SUBJECT TO THE OFFICER'S CONSENT--- EVEN THOUGH HE REPORTED THEREFOR DURING A TIME WHEN THERE CONTINUED A TECHNICAL STATE OF WAR OR NATIONAL EMERGENCY--- IS NOT THE WARTIME OR EMERGENCY DUTY CONTEMPLATED BY SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, AND GIVES NO RIGHT TO A $150 UNIFORM ALLOWANCE UNDER THE LAST PROVISO OF SECTION 302 OF THAT ACT. SEE DECISION OF NOVEMBER 8, 1939, B-6777.

MOREOVER, IT APPEARS THAT IN PREPARING ESTIMATES OF EXPENDITURES TO BE MADE FROM THE APPROPRIATION " NAVAL RESERVE" FOR THE FISCAL YEAR 1950, THE NAVY DEPARTMENT INCLUDED ITEMS OF PAYMENT OF $100 UNIFORM ALLOWANCES AND OF $50 UNIFORM ALLOWANCES UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, BUT DID NOT INCLUDE ANY JUSTIFICATION FOR PAYMENTS OF $150 ALLOWANCES UNDER THAT SECTION. SEE PAGE 189, PART 3, HOUSE HEARINGS ON THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION BILL FOR 1950. THIS OMISSION EVIDENCES THE UNDERSTANDING OF THE NAVY DEPARTMENT THAT NO PAYMENT OF $150 UNIFORM ALLOWANCES WOULD BE REQUIRED IN CONNECTION WITH NAVAL RESERVE ACTIVITIES FOR THE FISCAL YEAR 1950.

FOR SUCH REASONS IT IS CONCLUDED, IN SPECIFIC ANSWER TO YOUR QUESTION, THAT LIEUTENANT EWALD IS NOT ENTITLED TO A $150 UNIFORM ALLOWANCE INCIDENT TO HIS ACTIVE DUTY UNDER THE ORDERS OF APRIL 28, 1950.