A-10126, JULY 9, 1925, 5 COMP. GEN. 16

A-10126, JULY 9, 1925, 5 COMP. GEN. 16

GRATUITIES, DISCHARGE - NAVAL ENLISTED MEN IN ACCORDANCE WITH REGULATIONS MADE BY THE SECRETARY OF THE NAVY, PURSUANT TO SECTION 10 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1274, ENLISTED MEN OF THE NAVAL SERVICE WHO ARE DISCHARGED WITH A ,DISHONORABLE DISCHARGE, BAD-CONDUCT DISCHARGE, OR ANY OTHER DISCHARGE FOR THE GOOD OF THE RVICE," AND WHO HAVE AT THE TIME LESS THAN A TOTAL OF $25 FROM ACCRUED PAY, PERSONAL FUNDS, AND FUNDS OTHERWISE AVAILABLE, MAY BE PAID A GRATUITY IN SUCH AN AMOUNT AS WILL WHEN ADDED THERETO PROVIDE THEM WITH A TOTAL SUM OF $25.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 9, 1925:

I HAVE YOUR LETTER OF JUNE 15, 1925, SUBMITTING PROPOSED CHANGES IN SECTION B OF "INSTRUCTIONS FOR CARRYING INTO EFFECT THE JOINT SERVICE PAY BILL, ACT OF 10 JUNE 1922," WITH REQUEST FOR AN EXPRESSION OF VIEWS AS TO WHETHER THE PROPOSED CHANGES IN SO FAR AS THEY INVOLVED DISBURSEMENTS ARE IN CONFORMITY WITH LAW.

THE PROPOSED CHANGES ARE BASED UPON SECTION 10 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1274, WHICH PROVIDES:

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 PROPOSED CHANGES ARE THE ADDITION OF A NEW PARAGRAPH 6, AND ARE AS FOLLOWS:

7 (A) UNDER SECTION 10 OF THE ACT OF 4 MARCH 1925 (PUBLIC NO. 611) PERSONS DISCHARGED FROM THE NAVAL SERVICE "FOR THE GOOD OF THE SERVICE" SHALL, UPON DISCHARGE, BE PAID A SUM NOT TO EXCEED $25, WHERE THE PERSON SO DISCHARGED WOULD OTHERWISE BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS.

(B) THE PAYMENT OF THIS GRATUITY SHALL BE DIRECTED BY COMMANDING OFFICERS IN ALL CASES WHERE THE MAN OTHERWISE WOULD BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS. WHEN SO DIRECTED, THE GRATUITY WILL BE PAID IN SUCH SUM AS WILL TOTAL $25 WHEN ADDED TO FUNDS DUE OR OTHERWISE AVAILABLE TO THE MAN (SUCH AS ACCRUED PAY, PERSONAL FUNDS, ETC., BUT EXCLUSIVE OF ANY AMOUNTS CREDITED AS TRAVEL ALLOWANCE OR CASH ADVANCED FOR SUBSISTENCE AND TRANSFERS INCIDENT TO TRANSPORTATION IN KIND).

(C) THE FORMS OF DISCHARGE DESCRIBED BELOW ARE "FOR THE GOOD OF THE SERVICE" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF 4 MARCH 1925:

DISCHARGED BY REASON OF MEDICAL SURVEY FOR MENTAL OR PHYSICAL DISABILITY:

CHART

CHARACTER OF SERVICE FORM CONDITIONS GOOD ------------------ N. NAV. 62 - ---- DISCHARGED AS A RESULT OF

APPROVED BOARD OF MEDICAL

SURVEY FOR PHYSICAL OR

MENTAL DISABILITY THE

RESULT OF OWN MISCONDUCT.

DISCHARGED FOR INAPTITUDE:

CHART

CHARACTER OF SERVICE FORM CONDITIONS GOOD ---- ------------- N. NAV. 62 C ---- GENERAL QUALIFICATIONS SUCH

AS NOT TO WARRANT FURTHER

RETENTION IN THE SERVICE;

NO REFLECTION ON THE MORAL

CHARACTER OF THE MAN; DOES

NOT LEAVE THE SERVICE UNDER

DISHONORABLE CONDITIONS.

AVERAGE OF MARKS NOT LESS

THAN 2.5 ARE PROFICIENCY OF

RATING AND 2.75 IN CONDUCT. INDIFFERENT -----------

N. NAV. 62 C ---- SAME AS ABOVE EXCEPT THAT

AVERAGE OF MARKS IS LESS

THAN 2.5--- PROFICIENCY IN

RATING OR 2.75 IN CONDUCT.

DISCHARGED BY REASONS OF UNDESIRABILITY:

CHART

CAUSE FORM CONDITIONS FRAUDULENT ------------ N. NAV. 63 B ---- DISCHARGED BY AUTHORITY OF

THE BUREAU OF NAVIGATION

PRIOR TO EXPIRATION OF

ENLISTMENT BECAUSE OF

FRAUDULENT UNDERAGE

ENLISTMENT, NOT AT REQUEST

OF PARENT OR GUARDIAN. FRAUDULENT ENLISTMENT - N. NAV. 63 B ---- DISCHARGED BY AUTHORITY OF

THE BUREAU OF NAVIGATION

FOR FRAUDULENT ENLISTMENT

OTHER THAN BECAUSE OF

UNDERAGE. DESERTION WITHOUT TRIAL N. NAV. 63 B ---- DISCHARGED BY AUTHORITY OF

THE BUREAU OF NAVIGATION

BECAUSE OF DESERTION WITHOUT

BEING BROUGHT TO TRIAL FOR

THAT OFFENSE. TRIAL AND CONVICTION BY N. NAV. 63 B ---- DISCHARGED BY AUTHORITY OF

CIVIL AUTHORITIES. THE BUREAU OF NAVIGATION

BECAUSE OF TRIAL AND

CONVICTION BY CIVIL

AUTHORITIES. UNFITNESS ----------- - N. NAV. 63 B ---- DISCHARGED BY AUTHORITY OF

THE BUREAU OF NAVIGATION, OR

BY AUTHORITY OF COMMANDING

OFFICER BECAUSE UNFITTED

FOR FURTHER RETENTION IN THE

NAVAL SERVICE.

DISCHARGES IN ACCORDANCE WITH SENTENCES OF COURTS-MARTIAL:

CHART

CHARACTER OF DISCHARGE FORM CONDITIONS DISHONORABLE ---------- N. NAV. 63 ------ DISCHARGED IN ACCORDANCE

WITH THE APPROVED SENTENCE

OF A GENERAL COURT-MARTIAL. BAD CONDUCT -----------

N. NAV. 63 A ---- DISCHARGED IN ACCORDANCE WITH

THE APPROVED SENTENCE OF A

GENERAL OR SUMMARY

COURT-MARTIAL.

(D) PAYMENT OF THE GRATUITY SHALL BE DIRECTED ON S. AND A. FORM 35 D (ORDER TO CLOSE ACCOUNT) BY ADDING TO THE OTHER DIRECTIONS CONTAINED ON THIS FORM THE FOLLOWING NOTATION, USING THE SPACE DIRECTLY ABOVE THE SIGNATURE OF THE COMMANDING OFFICER:

"PAYMENT OF GRATUITY DIRECTED IN SUCH AMOUNT AS WILL TOTAL $25 WHEN ADDED TO FUNDS DUE OR OTHERWISE AVAILABLE.'

(E) THE GRATUITY IN THE AMOUNT FOUND NECESSARY WILL BE CREDITED IN THE ACCOUNT OF THE MAN PRIOR TO DISCHARGE, IN THE SUNDRY CREDIT COLUMN, UNDER THE CAPTION "DIS.GRAT. PAY MISCELL. SUB. "

(F) THE CONDITIONS GOVERNING THE AMOUNT OF GRATUITY CREDITED WILL BE NOTED ON THE REVERSE SIDE OF THE FORM 35-D, SHOWING THE AMOUNT, IF ANY, OF FUNDS OTHERWISE AVAILABLE TO THE MAN, VIZ:

CHART

(SPECIMEN A) DUE AT DISCHARGE ---------- ------------------------------ $12.15 PERSONAL FUNDS ----------------- ------------------------- NONE. GRATUITY CREDITED ------------------- -------------------- 12.85

25.00

(SPECIMEN B) DUE AT DISCHARGE ------------- --------------------------- NONE. PERSONAL FUNDS -------------------- ---------------------- $15.00 GRATUITY CREDITED ---------------------- ----------------- 10.00

25.00

AS SENTENCES OF GENERAL COURTS-MARTIAL AND REGULATIONS MADE IN RELATION THERETO TAKE CARE OF THE GRATUITY FOR MEN WHO ARE SENTENCED TO CONFINEMENT IN PRISON, IT WOULD APPEAR THAT THE HEADING "DISCHARGES IN ACCORDANCE WITH SENTENCES OF COURTS-MARTIAL" SHOULD HAVE ADDED THERETO "NOT INVOLVING CONFINEMENT.'

THE GENERAL WORDS "OR ANY OTHER DISCHARGE FOR THE GOOD OF THE SERVICE" ARE NECESSARILY RESTRICTED BY THE GENERAL WORDS WHICH PRECEDE THEM. SEPARATION "FOR THE GOOD OF THE SERVICE" IS UNDERSTOOD USUALLY AS NOT REFLECTING CREDIT UPON THE PERSON WHO IS SO SEPARATED AND UNDER THE DOCTRINE OF EJUSDEM GENERIS DISCHARGES OF THE SAME GENERAL KIND OR CLASS AS DESCRIBED IN THE PRECEDING SPECIFIC WORDS ARE CONTEMPLATED; THAT IS, A DISCHARGE NOT CREDITABLE TO THE MAN. ALL OF THE FORMS OF DISCHARGE ENUMERATED SEEM TO BE WITHIN THE INTENT OF THE STATUTE; THE ANNUAL APPROPRIATION ACTS UNDER "BUREAU OF SUPPLIES AND ACCOUNTS," "MAINTENANCE," HAVING PROVIDED THAT THE CLOTHING AND SMALL STORES FUND SHALL BE CHARGED WITH THE COST OF "CIVILIAN CLOTHING NOT TO EXCEED $15 PER MAN TO MEN GIVEN DISCHARGE FOR BAD CONDUCT, FOR UNDESIRABILITY, OR INAPTITUDE.' ACT OF FEBRUARY 11, 1925, 43 STAT. 873.

IT IS NOTED THAT THE INSTRUCTIONS INCLUDE DIRECTION FOR PAY ROLL ENTRY SHOWING CHARGE TO THE APPROPRIATION "PAY, MISCELLANEOUS.' THAT APPROPRIATION FOR THE FISCAL YEAR 1926, 43 STAT. 862, PROVIDES FOR "EXPENSES OF * * * PRISONERS AND PRISONS, * * * AND OTHER NECESSARY AND INCIDENTAL EXPENSES.' IT MAKES NO PROVISION FOR PAYMENTS OF ANY PAY OR GRATUITY ACCRUING TO PERSONNEL OF THE NAVY EXCEPT AS SUCH GRATUITY MAY BE EXPENSES OF PRISONERS AND PRISONS. THE APPROPRIATION "PAY OF THE NAVY, 1926," PROVIDES IN PART AS FOLLOWS:

FOR * * * EXTRA PAY TO MEN REENLISTING AFTER BEING HONORABLY DISCHARGED, $1,459,775; INTEREST ON DEPOSITS BY MEN, $7,500; PAY OF PETTY OFFICERS, SEAMEN, LANDSMEN, AND APPRENTICE SEAMEN, INCLUDING MEN IN THE ENGINEER'S FORCE AND MEN DETAILED FOR DUTY WITH THE FISH COMMISSION, ENLISTED MEN, MEN IN TRADE SCHOOLS, PAY OF ENLISTED MEN OF THE HOSPITAL CORPS, EXTRA PAY TO MEN FOR DIVING AND CASH PRIZES FOR MEN FOR EXCELLENCE IN GUNNERY, TARGET PRACTICE, AND ENGINEERING COMPETITIONS, $66,588,000; PAY OF ENLISTED MEN UNDERGOING SENTENCE OF COURT-MARTIAL, $198,000; * * * AND APPRENTICE SEAMEN UNDER TRAINING AT TRAINING STATIONS AND ON BOARD TRAINING SHIPS AT THE PAY PRESCRIBED BY LAW, $1,512,000; * * * REIMBURSEMENT FOR LOSSES OF PROPERTY UNDER ACT OF OCTOBER 6, 1917, $10,000; PAYMENT OF SIX MONTHS' DEATH GRATUITY, $150,000; * * * AND THE MONEY HEREIN SPECIFICALLY APPROPRIATED FOR "PAY OF THE NAVY" SHALL BE DISBURSED AND ACCOUNTED FOR IN ACCORDANCE WITH EXISTING LAW AS "PAY OF THE NAVY" AND FOR THAT PURPOSE SHALL CONSTITUTE ONE FUND: * * *.

NEITHER OF THE APPROPRIATIONS MAKES SPECIFIC PROVISION FOR THE PAYMENT HERE IN QUESTION. PROVISION IS MADE UNDER "PAY, MISCELLANEOUS," FOR MISCELLANEOUS EXPENSES, WHILE, UNDER "PAY OF THE NAVY," PROVISION IS MADE FOR ALL PAY AND SOME ALLOWANCES AND GRATUITIES ACCRUING TO ENLISTED MEN BY REASON OF THEIR SERVICES. THE PAYMENTS NOW CONSIDERED SHOULD BE TREATED FOR APPROPRIATION PURPOSES AS ACCRUING BY REASON OF SERVICE AND PAYABLE UNDER THE APPROPRIATION GENERALLY AVAILABLE FOR THAT PURPOSE; THAT IS,"PAY OF THE NAVY.' THIS PORTION OF THE INSTRUCTION SHOULD BE MODIFIED ACCORDINGLY.

OTHERWISE THAN IS INDICATED, THERE APPEARS NO REASON WHY THE PROPOSED CHANGES IN INSTRUCTIONS MAY NOT BE ISSUED.

IT IS TO BE UNDERSTOOD IN A SUBMISSION OF THIS KIND THAT THE LEGAL EFFECT OF THE INSTRUCTIONS MUST BE FOR DETERMINATION OF THIS OFFICE WHEN PARTICULAR FACTS ARISE BRINGING THEM INTO QUESTION, AND THAT THE INSTRUCTIONS MUST THEREFORE BE SUBJECT TO SUCH INTERPRETATION AS MAY THEN BE MADE.