MARCH 20, 1924, 3 COMP. GEN. 665

MARCH 20, 1924, 3 COMP. GEN. 665

COMPENSATION - INCREASE FOR PHILIPPINE SERVICE - CLERKS OF QUARTERMASTER DEPARTMENT OF THE ARMY A CIVILIAN CLERK OF THE QUARTERMASTER DEPARTMENT OF THE ARMY IS NOT A HEADQUARTERS' CLERK WITHIN THE MEANING OF THE ACTS OF APRIL 27, 1914, 38 STAT., 355, AND MARCH 4, 1915, 38 STAT., 1067, AND IS NOT ENTITLED THEREUNDER TO THE $200 PER ANNUM INCREASE AUTHORIZED FOR HEADQUARTERS' CLERKS WHILE SERVING IN THE PHILIPPINE ISLANDS.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 20, 1924:

REQUEST HAS BEEN MADE ON BEHALF OF FEDERICK G. KIMBALL FOR REVIEW OF SETTLEMENT NO. M-2273, DATED AUGUST 31, 1923, DISALLOWING HIS CLAIM UNDER THE ACTS OF APRIL 27, 1914, 38 STAT., 355, AND MARCH 4, 1915, 38 ID., 1067, FOR INCREASE OF PAY AT THE RATE OF $200 PER ANNUM FOR PERIOD JUNE 15, 1911, TO AUGUST 6, 1918, WHILE EMPLOYED AS A CLERK IN THE QUARTERMASTER DEPARTMENT OF THE ARMY IN THE PHILIPPINE ISLANDS.

THE QUARTERMASTER GENERAL REPORTS CLAIMANT'S SERVICE AS FOLLOWS:

JUNE 15, 1911; EMPLOYED AS CLERK AT $1,200 PER ANNUM BY THE CONSTRUCTING QUARTERMASTER, FORT MILLS, CORREGIDOR, P.I.

MARCH 26 (OR 25), 1912; PROBATIONALLY APPOINTED AS CLERK, Q.M.C., AT SAME STATION AND SALARY.

AUGUST 6, 1918; RESIGNED.

IT IS URGED THAT CLAIMANT IS ENTITLED TO THE $200 ADDITIONAL PER ANNUM IN ACCORDANCE WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF MORROW V. UNITED STATES, NO. 244-A, DECIDED JANUARY 2, 1923. AN APPEAL FROM THE DECISION OF THE COURT OF CLAIMS ALLOWING SUCH ADDITIONAL PAY TO MORROW FOR THE PERIOD FROM JULY 1, 1914, TO JANUARY 16, 1917, HAS BEEN TAKEN BY THE ATTORNEY GENERAL AND IS NOW PENDING BEFORE THE SUPREME COURT OF THE UNITED STATES AND PENDING THE RENDITION OF A DECISION BY SAID COURT NO ALLOWANCE IN SIMILAR CLAIMS IS BEING MADE BY THIS OFFICE.

THE ABOVE STATUTES OF 1914 AND 1915 UNDER WHICH THE CLAIM IS MADE ARE NOT RETROACTIVE AND DO NOT OPERATE TO CARRY THE PAY TO ANY ONE FOR A PERIOD PRIOR TO JULY 1, 1914. OTHERWISE NO MATERIAL DISTINCTION APPEARS BETWEEN THIS CLAIM AND THAT OF MORROW.

THE QUESTION INVOLVED IN BOTH THIS AND THE MORROW CASE IS WHETHER THEY WERE INCLUDED IN THE TERM "CLERKS AND MESSENGERS" AT HEADQUARTERS AS USED IN SAID ACTS OF APRIL 27, 1914, AND MARCH 4, 1915, AND THE DECISIONS OF THE ACCOUNTING OFFICERS IN SUCH CASES HAVE BEEN TO THE EFFECT THAT NOT BEING HEADQUARTERS CLERKS WITHIN THE PURVIEW OF THOSE STATUTES THEY IN CONSEQUENCE ARE NOT ENTITLED TO THE BENEFITS THEREOF. SEE 26 COMP. DEC., 589.

THE REASONS NEITHER WERE HEADQUARTERS CLERKS FOR A PERIOD ON AND AFTER JULY 1, 1914, FOR THE PURPOSE OF THESE STATUTES AS CLAIMED, ARE BECAUSE THE HEADQUARTERS CLERKS COVERED BY THEM WERE FOR THIS PERIOD THOSE APPROPRIATED FOR UNDER THE HEADING "CLERKS * * * AT HEADQUARTERS" IN LIMITED NUMBER AND AT STATED AMOUNTS PER ANNUM IN THE ACTS OF APRIL 27, 1914, 38 STAT., 355; MARCH 4, 1915, 38 ID., 1067; AND AUGUST 29, 1916, 39 ID., 625, UNDER WHICH IDENTICAL HEADING THESE PROVISIONS FOR THE $200 INCREASE ARE FOUND FOLLOWING SAID SPECIFIC APPROPRIATIONS "CLERKS * * * AT HEADQUARTERS" FOR THE FISCAL YEARS 1915 AND 1916 (ACTS APRIL 27, 1914, 38 STAT., 355; MARCH 4, 1915, 38 STAT., 1067). SAID $200 INCREASE PROVISION BEING CONFINED TO STATUTORY CLERKS AND MESSENGERS AS FOUND UNDER THE SAME HEADING WITH IT, WHO FOR ADMINISTRATIVE PURPOSES ARE UNDERSTOOD TO HAVE BEEN UNDER THE ADJUTANT GENERAL, HAD NO APPLICATION TO MISCELLANEOUS CLERKS AUTHORIZED ELSEWHERE IN THE APPROPRIATION ACTS WITHOUT STATUTORY LIMIT AS TO NUMBER OR SALARY, AS THE NUMEROUS CLERKS EMPLOYED UNDER VARIOUS LUMP SUM APPROPRIATIONS ELSEWHERE IN THE ACTS FOR THE STAFF BRANCHES OF THE ARMY, I.E., AS THE QUARTERMASTER, MEDICAL, ENGINEER, OR ORDNANCE CORPS.

FOR THE "CLERKS * * * AT HEADQUARTERS" THERE WAS AN EXPRESS PROVISION FOR ADDITIONAL PAY WHILE ON FOREIGN SERVICE FROM WHICH THIS $200 INCREASE FOR FOREIGN SERVICE WAS PAYABLE FOR 1915 AND 1916 IMMEDIATELY FOLLOWING THE STATUTES APPROPRIATING FOR THEIR STATUTORY PAY AND PRECEDING THE PROVISION FOR THE $200 INCREASE FOR THEM.

CLAIMANT WAS NOT A HEADQUARTERS CLERK, BUT A QUARTERMASTER CLERK, HAVING BEEN EMPLOYED UNDER LUMP-SUM APPROPRIATIONS FOR "TRANSPORTATION OF THE ARMY AND ITS SUPPLIES" AND "SUPPLIES, SERVICES, AND TRANSPORTATION" FOR 1916, 1917, AND 1918. SEE ACTS OF APRIL 27, 1914, 38 STAT., 364; MARCH 4, 1915, 38 STAT., 1072-1078; AUGUST 29, 1916, 39 STAT., 630-635; JUNE 15, 1917, 40 STAT., 90-196; AND MAY 12, 1917, 40 STAT., 50-55.

THE PURPOSE OF THESE PROVISIONS FOR THE $200 ADDITIONAL FOR "CLERKS AND MESSENGERS AT HEADQUARTERS" APPROPRIATED FOR IMMEDIATELY ABOVE IT IN THE ACTS OF 1914 AND 1915 WAS THE CORRECTION OF THE EXISTING INEQUALITY IN THE COMPENSATION OF HEADQUARTERS CLERKS (ADJUTANT GENERAL'S CLERKS) AND STAFF CORPS CLERKS (TO WHICH CLASS MORROW BELONGED) TRANSFERRED FROM THE UNITED STATES TO THE PHILIPPINES DURING FISCAL YEARS 1915 AND 1916.

THESE STAFF DEPARTMENT CLERKS WERE PAID FROM LUMP-SUM APPROPRIATIONS FOR THEIR RESPECTIVE BRANCHES AND ON BEING SENT TO THE PHILIPPINES DURING SUCH YEARS WERE GRANTED INCREASE IN THEIR LUMP-SUM COMPENSATION EFFECTIVE FROM DATE OF DEPARTURE FROM THE UNITED STATES TO DATE OF RETURN THERETO BY THE FIXING OF THEIR COMPENSATION FOR SAID PERIOD AT A HIGHER AMOUNT TO THE EXTENT OF $200; IN OTHER WORDS, THEY RECEIVED FORGOING TO THE PHILIPPINES COMPENSATION AT A HIGHER RATE TO THE EXTENT OF $200 ADDITIONAL THAN THAT RECEIVED BY THEM WHILE SERVING IN THE UNITED STATES. THE HEADQUARTERS CLERKS (ADJUTANT GENERAL'S CLERKS), HOWEVER, WHO IN THE UNITED STATES WERE ON A PAR WITH SAID STAFF CORPS CLERKS AS TO THE AMOUNT OF THEIR COMPENSATION, COULD NOT BE GIVEN BY THE DEPARTMENT THIS INCREASE ON BEING SENT TO THE PHILIPPINES BY REASON OF THEIR COMPENSATION BEING FIXED BY STATUTE, THUS RESULTING IN AN INEQUALITY IN THEIR CASE TO THE EXTENT OF $200 AS COMPARED WITH THE STAFF CORPS CLERKS WHO DURING THE SAME PERIOD WERE SENT TO THE PHILIPPINES.

IT WAS TO BRING THE COMPENSATION OF THE HEADQUARTERS CLERKS (STATUTORY ADJUTANT GENERAL'S CLERKS) UP TO THE AMOUNT OF THAT OF STAFF DEPARTMENT CLERKS (LUMP-SUM CLERKS) THAT THE SAID LEGISLATION AUTHORIZING THE $200 ADDITIONAL FOR THE HEADQUARTERS CLERKS (ADJUTANT GENERAL'S CLERKS) FOR 1915 AND 1916 WAS ENACTED.

HAD CLAIMANT BEEN SENT FROM THE PHILIPPINES TO THE UNITED STATES HE DOUBTLESS WOULD HAVE HAD HIS LUMP-SUM COMPENSATION REDUCED TO THE EXTENT OF $200, AS WAS DONE IN FACT IN THE CASE OF QUARTERMASTER CLERK JOHN PETERSON, WHO LIKEWISE WAS EMPLOYED AS SUCH IN THE PHILIPPINES, 26 COMP. DEC., 589. HAVING ORIGINALLY ENTERED THE SERVICE IN THE PHILIPPINES AND CONTINUED ON THERE FOR THE PERIOD IN QUESTION ACCOUNTS FOR A NEW CONTRACT NOT HAVING BEEN ENTERED INTO WITH HIM BY THE DEPARTMENT RAISING OR REDUCING HIS LUMP-SUM COMPENSATION $200 AS WAS DONE WITH THE CLERKS OF HIS CLASS SENT OVER FROM HERE AND EMPLOYED THERE AND SENT HERE. THIS DOES NOT, HOWEVER, CONVERT HIM INTO A HEADQUARTERS CLERK (AN ADJUTANT GENERAL'S STATUTORY CLERK) OR BRING HIM WITHIN THE STATUTES OF 1915 AND 1916 WHICH APPLIED ONLY TO SAID STATUTORY HEADQUARTERS, CLERKS.

SEE, IN THIS CONNECTION,"HEARINGS BEFORE THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, ON H.R. 0000 MAKING APPROPRIATIONS FOR THE SUPPORT OF THE ARMY FOR THE FISCAL YEAR 1915," PAGE 160:

THE CHAIRMAN (INTERPOSING). THEY HAVE SUGGESTED SOME LAW HERE WHICH WOULD INCREASE THE PAY OF CLERKS SERVING IN THE PHILIPPINES, 20 PERCENT *

THE CHAIRMAN. I SEE THERE IS AN INCREASE OF 20 PERCENT, WHICH WOULD ONLY APPLY TO THESE HEADQUARTERS?

GENERAL ALESHIRE. THAT IS ALL, SIR. MR. CHAIRMAN, THE CLERKS IN OTHER DEPARTMENTS GET AN INCREASE OF PAY. WHEN THEY LEAVE THIS COUNTRY AND GO TO THE PHILIPPINE ISLANDS, THE CLERKS IN THE QUARTERMASTER'S DEPARTMENT GET AN INCREASE OF $200.

THE CHAIRMAN. THAT IS UNDER A PROVISION MADE BY THE APPROPRIATIONS COMMITTEE.

GENERAL ALESHIRE. NO SIR; I THINK THAT IS A RULING OF THE SECRETARY OF WAR; AND WHEN THEY COME BACK THEY LOSE 20 PERCENT OF THEIR PAY.

THE CHAIRMAN. HOW ABOUT THE CLERKS IN THE OTHER BRANCHES OF THE DEPARTMENT?

GENERAL ALESHIRE. I THINK THAT APPLIES TO ALL EMPLOYEES EXCEPT THOSE SPECIFICALLY PROVIDED FOR IN THIS BILL. THAT IS WHY THEY PUT IN THIS INCREASE.

AS FURTHER CLARIFYING THE DISTINCTION BETWEEN HEADQUARTERS CLERKS (ADJUTANT GENERAL'S CLERKS) AND THE STAFF CORPS CLERKS (TO WHICH CLASS CLAIMANT BELONGED) ATTENTION IS INVITED TO THE LEGISLATION IN THE ACT OF AUGUST 29, 1916, 39 STAT., 625, FOR HEADQUARTERS CLERKS IMMEDIATELY FOLLOWING THE ANNUAL APPROPRIATIONS FOR THEM FOR 1917, AS FOLLOWS:

HEREAFTER HEADQUARTERS CLERKS SHALL BE KNOWN AS ARMY FIELD CLERKS AND SHALL RECEIVE PAY AT THE RATES HEREIN PROVIDED, AND AFTER TWELVE YEARS OF SERVICE, AT LEAST THREE OF WHICH SHALL HAVE BEEN ON DETACHED DUTY AWAY FROM PERMANENT STATION, OR ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, OR BOTH, SHALL RECEIVE THE SAME ALLOWANCES, EXCEPT RETIREMENT, AS HERETOFORE ALLOWED BY LAW TO PAY CLERKS, QUARTERMASTER CORPS, AND SHALL BE SUBJECT TO THE RULES AND ARTICLES OF WAR.

AND THE SEPARATE PROVISION FOLLOWING FOR CLERKS OF THE QUARTERMASTER CORPS, TO WHICH CLASS CLAIMANT BELONGED, AS FOLLOWS:

HEREAFTER NOT TO EXCEED TWO HUNDRED CLERKS, QUARTERMASTER CORPS, WHO SHALL HAVE HAD TWELVE YEARS OF SERVICE, AT LEAST THREE YEARS OF WHICH SHALL HAVE BEEN ON DETACHED DUTY AWAY FROM PERMANENT STATION, OR ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, OR BOTH, SHALL BE KNOWN AS FIELD CLERKS, QUARTERMASTER CORPS, AND SHALL RECEIVE THE SAME ALLOWANCES, EXCEPT RETIREMENT, AS HERETOFORE ALLOWED BY LAW TO PAY CLERKS, QUARTERMASTER CORPS, AND SHALL BE SUBJECT TO THE RULES AND ARTICLES OF WAR.

THIS LEGISLATION SHOWS CLEARLY THAT PRIOR TO IT, AND THEREFORE DURING FISCAL YEARS 1915 AND 1916 FOR WHICH THE $200 ADDITIONAL WAS AUTHORIZED, HEADQUARTERS CLERKS AND QUARTERMASTER CLERKS WERE SEPARATE AND DISTINCT CLASSES OF CLERKS, AND THAT BEING A QUARTERMASTER'S CLERK CLAIMANT WAS NOT A HEADQUARTERS CLERK DURING 1915 OR 1916 AND FOR 1916 WAS BY THIS LEGISLATION OF 1916 CONVERTED INTO ONE OF THE "FIELD CLERKS, QUARTERMASTER CORPS," WHILE THE HEADQUARTERS CLERKS WERE CHANGED TO "ARMY FIELD CLERKS," THUS CONTINUING THEM AS SEPARATE AND DISTINCT CLASSES UNDER NEW DESIGNATIONS. IT WILL BE FURTHER NOTICED THAT THE $200 ADDITIONAL PROVISION WAS NOT REPEATED IN THE ACT OF 1916, APPROPRIATING FOR 1917, IN WHICH THIS NEW LEGISLATION APPEARS.

IT WILL THUS BE SEEN THAT CLAIMANT NEVER WAS A HEADQUARTERS CLERK, BUT, ON THE OTHER HAND, WAS DURING 1915 AND 1916, A CLERK, QUARTERMASTER CORPS, AND AS SUCH, BECAME, BY THE ACT OF 1916, A FIELD CLERK, QUARTERMASTER CORPS.