[Protests of Air National Guard Bureau Proposed Contract Awards for Meteorological Services]

B-3091, MAY 27, 1939, 18 COMP. GEN. 887

CLASSIFICATION - FIELD SERVICE - WAR DEPARTMENT CIVILIAN NURSES THE POSITIONS OF CIVILIAN NURSES IN THE FIELD SERVICE OF THE WAR DEPARTMENT WHOSE DUTIES ARE SIMILAR TO THOSE OF NURSES IN CLASSIFIED POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA SHOULD BE ADMINISTRATIVELY CLASSIFIED AS REQUIRED BY SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, UNLESS THERE IS OBTAINED EXPRESS STATUTORY AUTHORITY EXEMPTING SUCH POSITIONS FROM THE SAID REQUIREMENTS, AND PAYMENTS OF COMPENSATION ON AN UNCLASSIFIED BASIS AFTER JULY 1, 1939, MAY NOT BE PASSED TO CREDIT IN THE ACCOUNTS, BUT, AFTER CLASSIFICATION, THE VALUE OF QUARTERS, SUBSISTENCE AND OTHER ALLOWANCES NOW FURNISHED SUCH NURSES WITHOUT CHARGE MUST BE DEDUCTED FROM THE PAY SO ESTABLISHED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF WAR, MAY 27, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 8, 1939, AS FOLLOWS:

IT HAS COME TO MY ATTENTION THAT EXCEPTIONS HAVE BEEN REPORTED BY YOUR OFFICE ON PAY ROLLS CONTAINING PAYMENTS MADE TO CIVILIAN NURSES IN ARMY HOSPITALS BY REASON OF THE FACT THAT THEY WERE DESIGNATED "UNCLASSIFIED" WHILE, IN ACCORDANCE WITH LAWS AND REGULATIONS APPLICABLE THERETO THEY SHOULD BE ADMINISTRATIVELY PLACED OR ALLOCATED IN A FIELD GRADE CORRESPONDING TO THAT GRADE TO WHICH THE POSITION OF NURSE IN THE DEPARTMENTAL SERVICE HAS BEEN ALLOCATED.

SINCE 1933, WHEN CIVILIAN NURSES WERE FIRST EMPLOYED IN ARMY HOSPITALS TO ASSIST IN THE CARE AND TREATMENT OF CIVILIAN CONSERVATION CORPS ENROLLEES AND VETERANS' ADMINISTRATION BENEFICIARIES HOSPITALIZED THEREIN, THEY HAVE BEEN REGARDED AS NOT FALLING WITHIN THE SCOPE OF THE CLASSIFICATION ACT BECAUSE OF THE PECULIAR CIRCUMSTANCES SURROUNDING THEIR EMPLOYMENT. PRIOR TO THIS TIME ALL NURSING SERVICES IN ARMY HOSPITALS, EXCEPT FOR THE DURATION OF THE SUMMER TRAINING PERIOD EACH YEAR, WERE PERFORMED BY MEMBERS OF THE ARMY NURSE CORPS.

IT IS THE OPINION OF THE WAR DEPARTMENT THAT THE TEST FOR DETERMINING WHETHER A FIELD POSITION IS SUBJECT TO THE PRINCIPLES OF CLASSIFICATION UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 40 STAT. 1005, AS OUTLINED IN YOUR DECISION NO. 39789, JANUARY 6, 1932, 11 COMP. GEN. 259, IS NOT APPLICABLE TO THE INSTANT CASE. WHILE THE DUTIES OF CIVILIAN NURSES IN THE FIELD SERVICE OF THE WAR DEPARTMENT ARE OBVIOUSLY SIMILAR TO THOSE OF NURSES IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, IT IS BELIEVED THAT THE PECULIAR CONDITIONS SURROUNDING THE EMPLOYMENT OF CIVILIAN NURSES IN THE MEDICAL DEPARTMENT OF THE ARMY REMOVES THEM FROM THIS CATEGORY. CIVILIAN NURSES IN ARMY HOSPITALS ARE CONSIDERED "QUASI-MILITARY" AND ARE MERELY HIRED TO SUPPLEMENT THE ARMY NURSE CORPS. THEY ARE PROVIDED WITH THE SAME TYPE OF QUARTERS, AFFORDED THE SAME MESSING FACILITIES, WORK THE SAME HOURS, AND ARE SUBJECT TO THE SAME MILITARY DISCIPLINE AS ARMY NURSES. FOR THESE REASONS, WHEN THE NECESSITY FIRST AROSE IN 1933 FOR THE EMPLOYMENT OF NURSES IN A CIVILIAN CAPACITY BY REASON OF THE INADEQUACY OF THE STRENGTH OF THE ARMY NURSE CORPS TO CARE FOR THE ADDITIONAL PATIENTS ADMITTED TO ARMY HOSPITALS, IT WAS BELIEVED ONLY EQUITABLE THAT THE CIVILIAN NURSES BE PAID A SALARY COMPARABLE TO THE PAY OF ARMY NURSES,AND SINCE THAT TIME, CIVILIAN NURSES HAVE BEEN EMPLOYED ON THIS BASIS. SOME DEVIATION HAS BECOME NECESSARY, HOWEVER, IN A FEW LOCALITIES WHERE IT HAS BEEN IMPOSSIBLE TO SECURE THE SERVICES OF CIVILIAN NURSES AT THE RATE OF PAY STIPULATED, AND IN THOSE INSTANCES THEY HAVE BEEN HIRED AT A HIGHER RATE COMMENSURATE WITH THE RATE PREVAILING IN THE PARTICULAR LOCALITY. ARMY NURSES ARE APPOINTED AT $840 PER ANNUM PLUS MAINTENANCE AND ARE REQUIRED TO REMAIN AT THAT RATE FOR A PERIOD OF 3 YEARS; UPON THE EXPIRATION OF WHICH THEY ARE PROMOTED ACCORDING TO LAW TO THE NEXT PAY PERIOD WHICH ADVANCES THEIR PAY TO $1,080 PER ANNUM PLUS MAINTENANCE, AND AT THE EXPIRATION OF 6 YEARS SERVICE TO $1,380 PER ANNUM PLUS MAINTENANCE, ETC.

THE CLASSIFICATION OF THESE NURSES WOULD NECESSITATE THEIR ALLOCATION TO GRADE SP-4, $1,620, THE MINIMUM RATE SPECIFIED FOR GRADUATE NURSES, WHICH WOULD EXCEED THE RATES PAID ARMY NURSES IN THE FIRST PAY PERIOD. SUCH DISPARITY IN THE RATES OF PAY OF THESE TWO CLASSES OF NURSES OBVIOUSLY WOULD AFFECT THE MORALE OF THE ARMY NURSES AND MANIFESTLY REFLECT ON THEIR EFFICIENCY IN THE CARE OF THE SICK, THEREBY RESULTING IN THE IMPAIRMENT OF THE EFFICIENT FUNCTIONING OF ARMY HOSPITALS. FURTHERMORE, THE INCREASED COST INVOLVED WOULD APPROXIMATE $113,785.00 ANNUALLY, FUNDS FOR WHICH ARE INADEQUATE UNDER THE PRESENT RECIPROCAL RATE ESTABLISHED BY THE FEDERAL BOARD OF HOSPITALIZATION AS THE AMOUNT TO BE REIMBURSED AND FEDERAL AGENCY HOSPITALIZING PATIENTS OF ANY OTHER FEDERAL AGENCY. THIS RATE CAN ONLY BE INCREASED UPON THE RECOMMENDATION OF THE BOARD AND THE APPROVAL OF THE PRESIDENT.

IN VIEW OF THE DIFFICULTIES, BOTH ADMINISTRATIVE AND FISCAL, AS OUTLINED ABOVE, YOUR DECISION IS REQUESTED WHETHER OR NOT THE WAR DEPARTMENT MAY BE EXEMPTED FROM THE NECESSITY OF CLASSIFYING CIVILIAN NURSES IN ARMY HOSPITALS.

SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, PROVIDES AS FOLLOWS:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 604), TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1938 (U.S.C., SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: *

THIS PROVISION HAS BEEN HELD TO BE MANDATORY. SEE 10 COMP. GEN. 20. WAS HELD IN THE DECISION TO THE SECRETARY OF WAR DATED NOVEMBER 12, 1931, 11 COMP. GEN. 177, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE SALARY GRADES OR RANGES OF CIVILIAN EMPLOYEES IN THE FIELD UNDER THE QUARTERMASTER CORPS OF THE ARMY ARE REQUIRED TO BE FIXED BY THE WAR DEPARTMENT IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION AS EXTENDED TO THE FIELD SERVICE BY THE MANDATORY PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, AND THE SALARY RATE OF EACH EMPLOYEE MAY BE FIXED AT NO LESS THAN THE MINIMUM RATE OF THE FIELD GRADE OR SALARY RANGE IN WHICH THE POSITION IS PROPERLY PLACED OR ALLOCATED BY THE ADMINISTRATIVE OFFICE.

THE DECISION TO THE SECRETARY OF WAR DATED JANUARY 6, 1932, 11 COMP. GEN. 259, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE TEST FOR DETERMINING WHETHER A FIELD POSITION IS SUBJECT TO THE PRINCIPLES OF CLASSIFICATION UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IS THE ACTION TAKEN BY THE PERSONNEL CLASSIFICATION BOARD AS TO THE SAME OR SIMILAR POSITION IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA.

AS THE POSITION OF CHAUFFEUR IN THE DEPARTMENTAL SERVICE HAS BEEN ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD IN THE CUSTODIAL SERVICE AS PRESCRIBED BY THE CLASSIFICATION ACT, THE SAME OR SIMILAR POSITION IN THE FIELD SERVICE OF THE WAR DEPARTMENT SHOULD LIKEWISE BE ADMINISTRATIVELY PLACED OR ALLOCATED IN A CORRESPONDING FIELD GRADE OR SALARY RANGE AND A SALARY FIXED AT ONE OF THE RATES THEREIN PRESCRIBED.

SEE ALSO 14 COMP. GEN. 420; ID. 763; 15 ID. 128; 16 ID. 1107; 17 ID. 578.

OFFICE ACTION HERETOFORE TAKEN WITH REGARD TO THE POSITION OF CIVILIAN NURSE IN THE FIELD SERVICE OF THE WAR DEPARTMENT WAS TAKEN PURSUANT TO THE CITED STATUTE AND DECISIONS AND A NUMBER OF DISBURSING OFFICERS WERE ADVISED AS FOLLOWS (QUOTING FROM A LETTER DATED DECEMBER 21, 1938, FROM THE CHIEF, AUDIT DIVISION, TO CAPT. J. W. MCMANUS, F.D., U.S. ARMY, CAMP CUSTER, MICH.):

AS THE POSITION OF NURSE IN THE DEPARTMENTAL SERVICE HAS BEEN ALLOCATED IN THE SUBPROFESSIONAL SERVICE AS PRESCRIBED BY THE CLASSIFICATION ACT, THE SAME OR SIMILAR POSITION IN THE FIELD SERVICE OF THE WAR DEPARTMENT SHOULD LIKEWISE BE ADMINISTRATIVELY PLACED OR ALLOCATED IN A CORRESPONDING FIELD GRADE.

IT IS CONCEDED IN YOUR LETTER THAT "THE DUTIES OF CIVILIAN NURSES IN THE FIELD SERVICE OF THE WAR DEPARTMENT ARE OBVIOUSLY SIMILAR TO THOSE OF NURSES IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA," THE CLAIM FOR EXEMPTION OF THE POSITION FROM CLASSIFICATION BEING ON THE BASIS (1) THAT CIVILIAN NURSES ARE MERELY HIRED TO SUPPLEMENT THE ARMY NURSE CORPS AND ARE PROVIDED WITH THE SAME TYPE OF QUARTERS AND SUBSISTENCE, WORK THE SAME HOURS, AND ARE SUBJECT TO THE SAME DISCIPLINE AS ARMY NURSES, AND (2) THAT THE CLASSIFICATION ACT SALARY RATES FOR CIVILIAN NURSES WOULD BE IN EXCESS OF THE PAY RATES OF MEMBERS OF THE ARMY NURSE CORPS.

NEITHER THE CLASSIFICATION ACT OF 1923, AS ORIGINALLY ENACTED, NOR AS AMENDED, RECOGNIZES ANY EXEMPTION FROM CLASSIFICATION OF FIELD POSITIONS FOR THE REASONS YOU STATE. REFERRING TO THE SECOND REASON ABOVE STATED, WHILE THE RESPECTIVE MINIMUM SALARY RATES AND PAY OF CIVILIAN AND MILITARY POSITIONS STATED IN YOUR LETTER SOLELY ON A CASH BASIS SHOW A MATERIAL DIFFERENCE IN AMOUNT, IT IS BELIEVED THAT IF THERE BE COMPARED THE AVERAGE RATES AUTHORIZED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE CIVILIAN POSITION OF NURSE WOULD BE ALLOCATED (FROM WHICH IT WOULD BE NECESSARY TO DEDUCT THE VALUE OF QUARTERS AND SUBSISTENCE AND OTHER ALLOWANCES FURNISHED IN KIND UNDER SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, WHICH YOU STATE ARE THE SAME AS FURNISHED THE ARMY NURSE CORPS) WITH THE AVERAGE PAY RATES AUTHORIZED BY SECTION 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, FOR THE ARMY NURSE CORPS BASED ON LONGEVITY (TO WHICH SHOULD BE ADDED THE RENTAL AND SUBSISTENCE ALLOWANCE AND OTHER ALLOWANCES GRANTED BY LAW TO THE ARMY NURSE CORPS) THERE WOULD RESULT VERY LITTLE, IF ANY, DIFFERENCE IN THE TOTAL REMUNERATION RECEIVED AS BETWEEN A CIVILIAN AND MILITARY NURSE. HOWEVER THAT MAY BE, IT IS THE VIEW OF THIS OFFICE THAT THERE IS NOTHING IN THE CLASSIFICATION ACT AS ORIGINALLY ENACTED OR AS AMENDED JUSTIFYING OR AUTHORIZING THE EXEMPTION OF THE POSITION OF CIVILIAN NURSE IN THE FIELD SERVICE OF THE WAR DEPARTMENT FROM THE REQUIREMENTS OF CLASSIFICATION.

IN VIEW OF THE TIME THAT MUST NECESSARILY EXPIRE BEFORE THE POSITIONS MAY BE ADMINISTRATIVELY CLASSIFIED, AND OF THE ADMINISTRATIVE DIFFICULTIES STATED IN YOUR LETTER, CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICERS OF THE WAR DEPARTMENT FOR OTHERWISE PROPER PAYMENTS OF COMPENSATION MADE WITHOUT REGARD TO THE CITED STATUTES AND APPLICABLE DECISIONS PRIOR TO JULY 1, 1939, BUT CREDIT FOR SIMILAR PAYMENTS THEREAFTER MADE MAY NOT BE ALLOWED IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY EXEMPTING THE POSITION OF CIVILIAN NURSE IN THE FIELD SERVICE OF THE WAR DEPARTMENT FROM THE REQUIREMENT OF THE CLASSIFICATION ACT, AS AMENDED.