DECEMBER 29, 1922, 2 COMP. GEN. 406

DECEMBER 29, 1922, 2 COMP. GEN. 406

NATIONAL GUARD OFFICERS ATTENDING ENCAMPMENTS, MANEUVERS, AND SERVICE SCHOOLS - PAY AND SUBSISTENCE AND RENTAL ALLOWANCES THE BASE-PAY PERIODS OF OFFICERS OF THE NATIONAL GUARD FOR FEDERAL-PAY PURPOSES, INCLUDING ARMORY DRILL PAY, ON AND AFTER JULY 1, 1922, ARE THOSE EXPRESSLY FIXED FOR THEIR RESPECTIVE GRADES BY SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT., 627, IRRESPECTIVE OF PRIOR SERVICE. OFFICERS OF THE NATIONAL GUARD ARE NOT ENTITLED TO BE CREDITED WITH THE LONGEVITY INCREASE PRESCRIBED IN SECTIONS 3 AND 1 OF THE ACT OF JUNE 10, 1922, 42 STAT., 627, 625, IN COMPUTING PAY TO WHICH THEY ARE ENTITLED UNDER SECTIONS 94 AND 97 OF THE ACT OF JUNE 3, 1916, 39 STAT., 206, 207, AND SECTION 99 OF SAID ACT AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT., 1035, FOR ATTENDANCE AT ENCAMPMENTS, MANEUVERS, AND SERVICE SCHOOLS, OR IN COMPUTING THEIR ARMORY DRILL PAY UNDER SECTION 109 OF THE ACT OF JUNE 4, 1920, 41 STAT., 783. OFFICERS OF THE NATIONAL GUARD ARE ENTITLED TO A SUBSISTENCE ALLOWANCE AS PRESCRIBED BY SECTION 5 OF THE ACT OF JUNE 10, 1922, 42 STAT., 628, WHEN ENTITLED TO FEDERAL PAY UNDER SECTIONS 94 AND 97 OF THE ACT OF JUNE 3, 1916, 39 STAT., 206, 207, AND SECTION 99 OF SAID ACT AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT., 1035. OFFICERS OF THE NATIONAL GUARD ARE ENTITLED TO A RENTAL ALLOWANCE AS PRESCRIBED BY SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT., 628, WHILE ATTENDING ARMY SERVICE SCHOOLS UNDER SECTION 99 OF THE ACT OF JUNE 3, 1916, 39 STAT., 207, AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT., 1035, WHERE PUBLIC QUARTERS ARE NOT AVAILABLE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 29, 1922:

I RECEIVED, DECEMBER 7, 1922, YOUR LETTER OF DECEMBER 2, 1922, REQUESTING DECISION OF FOUR QUESTIONS ARISING UNDER THE ACT OF JUNE 10, 1922, 42 STAT., 625, RESPECTING THE PAY AND ALLOWANCES OF OFFICERS OF THE NATIONAL GUARD ENTITLED TO FEDERAL PAY UNDER SECTIONS 94 AND 97 OF THE ACT OF JUNE 3, 1916, 39 STAT., 206 AND 207, AND SECTION 99 OF THE SAME ACT AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT., 1035, AND THE ARMORY DRILL PAY OF OFFICERS OF THE NATIONAL GUARD UNDER SECTION 109 OF THAT ACT AS AMENDED BY SECTION 47 OF THE ACT OF JUNE 4, 1920, 41 STAT., 783.

THE QUESTIONS ARE STATED AND ANSWERED IN THEIR ORDER.

(A) ARE NATIONAL GUARD OFFICERS OF GRADES CORRESPONDING TO THOSE OF THE REGULAR ARMY, ENTITLED TO THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, REGARDLESS OF PERIOD OF PRIOR SERVICE WHEN PARTICIPATING IN THE EXERCISES AND DUTIES SET FORTH IN SECTIONS 94, 97, AND 99 OF THE ACT OF JUNE 3, 1916; AND IF SO, WHAT WOULD BE THE BASE PAY OF NATIONAL GUARD OFFICERS OF EACH GRADE? FOR INSTANCE, IS A CAPTAIN OF THE NATIONAL GUARD TO BE PAID AT THE RATE OF $2,000 OR $2,400 PER YEAR, DEPENDING UPON HIS LENGTH OF SERVICE?

THE FIRST PORTION OF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE 2 COMP. GEN., 113, 114, ANSWER TO QUESTION 3.

ANSWERING THE LATTER PORTION OF THE FIRST QUESTION, THE PERMANENT BASE PAY OF COMMISSIONED OFFICERS OF THE NATIONAL GUARD IN GRADES FROM SECOND LIEUTENANT TO COLONEL, INCLUSIVE, AND WHICH ARE NOT AFFECTED BY LENGTH OF SERVICE, EITHER FEDERAL OR STATE, ARE: SECOND LIEUTENANT, FIRST PERIOD, $1,500; FIRST LIEUTENANT, SECOND PERIOD, $2,000; CAPTAIN, THIRD PERIOD, $2,400; MAJOR, FOURTH PERIOD, $3,000; LIEUTENANT COLONEL, FIFTH PERIOD, $3,500; AND COLONEL, SIXTH PERIOD, $4,000. ANSWER TO THE QUESTION ASKED IN THE ILLUSTRATION IS CONTAINED IN THE FOREGOING. THE QUESTION ASKED IN THE ILLUSTRATION IS CONTAINED IN THE FOREGOING.

(B) ARE NATIONAL GUARD OFFICERS ENTITLED TO ALLOWANCES FOR SUBSISTENCE FOR THEMSELVES OR DEPENDENTS, AS PROVIDED IN THE ACT OF JUNE 10, 1922, WHEN ENTITLED TO FEDERAL PAY, UNDER THE PROVISIONS OF SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT?

SECTIONS 5 AND 14 OF THE ACT OF JUNE 10, 1922, 42 STAT., 628 AND 631, SO FAR AS HERE MATERIAL, PROVIDE:

SEC. 5. THAT EACH COMMISSIONED OFFICER ON THE ACTIVE LIST, * * * SHALL BE ENTITLED AT ALL TIMES, IN ADDITION TO HIS PAY, TO A MONEY ALLOWANCE FOR SUBSISTENCE, * * *. THE VALUE OF ONE ALLOWANCE IS HEREBY FIXED AT 60 CENTS PER DAY FOR THE FISCAL YEAR 1923, AND THIS VALUE SHALL BE THE MAXIMUM AND SHALL BE USED BY THE PRESIDENT AS THE STANDARD IN FIXING THE SAME OR LOWER VALUES FOR SUBSEQUENT YEARS. TO EACH OFFICER OF ANY OF THE SAID SERVICES RECEIVING THE BASE PAY OF THE FIRST PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO ONE SUBSISTENCE ALLOWANCE, TO EACH OFFICER RECEIVING THE BASE PAY OF THE SECOND, THIRD, OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO TWO SUBSISTENCE ALLOWANCES, AND TO EACH OFFICER RECEIVING THE BASE PAY OF THE FOURTH OR FIFTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THREE SUBSISTENCE ALLOWANCES: PROVIDED, THAT AN OFFICER WITH NO DEPENDENTS SHALL RECEIVE ONE SUBSISTENCE ALLOWANCE IN LIEU OF THE ABOVE ALLOWANCES.

SEC. 14. THAT OFFICERS OF THE NATIONAL GUARD RECEIVING FEDERAL PAY, EXCEPT FOR ARMORY DRILL, * * * SHALL RECEIVE THE ALLOWANCES HEREIN PRESCRIBED FOR OFFICERS OF THE REGULAR SERVICES IN SECTION 5 AND 6 OF THIS ACT.

SECTIONS 94 AND 97 OF THE ACT OF JUNE 3, 1916, PROVIDE IN PART AS FOLLOWS:

SEC. 94. ENCAMPMENTS AND MANEUVERS.--- * * * AND THE OFFICERS AND ENLISTED MEN OF SUCH NATIONAL GUARD WHILE SO ENGAGED SHALL BE ENTITLED TO THE SAME PAY, SUBSISTENCE, AND TRANSPORTATION AS OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES OF THE REGULAR ARMY ARE OR HEREAFTER MAY BE ENTITLED BY LAW.

SEC. 97. * * * OFFICERS AND ENLISTED MEN ATTENDING SUCH CAMPS SHALL BE ENTITLED TO PAY AND TRANSPORTATION, AND ENLISTED MEN TO SUBSISTENCE IN ADDITION, AT THE SAME RATES AS FOR ENCAMPMENTS OR MANEUVERS FOR FIELD OR COAST-DEFENSE INSTRUCTION.

SECTION 99 OF THE SAME ACT, AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT., 1035, RESPECTING ATTENDANCE AT SERVICE SCHOOLS, PROVIDES AS TO PAY, THAT---

* * * ANY SUCH OFFICER SHALL RECEIVE OUT OF ANY NATIONAL GUARD ALLOTMENT OF FUNDS AVAILABLE FOR THE PURPOSE, THE PAY AND ALLOWANCES PROVIDED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, FOR OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AND THE TRAVEL ALLOWANCES PROVIDED IN SECTION 12 THEREOF, AND ANY SUCH ENLISTED MAN SHALL RECEIVE THEREFROM, EXCEPT AS OTHERWISE PROVIDED IN SECTION 14 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, THE SAME PAY AND ALLOWANCES, * * * TO WHICH AN ENLISTED MAN OF THE REGULAR ARMY OF LIKE GRADE WOULD BE ENTITLED FOR ATTENDING SUCH SCHOOL, COLLEGE, OR PRACTICAL COURSE OF INSTRUCTION UNDER ORDERS FROM PROPER MILITARY AUTHORITY, * * *.

NATIONAL GUARD OFFICERS, WHEN ENTITLED TO RECEIVE THE PAY PROVIDED BY SECTIONS 94, 97, AND 99, AS AMENDED, ARE NOT IN FEDERAL SERVICE. 2 COMP. GEN., 189. THEY ARE, HOWEVER, ENTITLED TO RECEIVE THE PAY PROVIDED BY THOSE SECTIONS, AS MODIFIED BY SECTION 3 OF THE ACT OF JUNE 10, 1922, AND WHEN ENTITLED TO FEDERAL PAY OTHER THAN FOR ARMORY DRILL ARE ENTITLED TO THE SUBSISTENCE ALLOWANCE PROVIDED BY SECTION 5 OF THAT ACT.

(C) ARE NATIONAL GUARD OFFICERS ATTENDING THE ARMY WAR COLLEGE OR OTHER ARMY SCHOOLS, WHERE QUARTERS ARE NOT AVAILABLE FOR EITHER THEMSELVES OR MEMBERS OF THEIR FAMILIES, ENTITLED TO ALLOWANCES FOR RENTAL AND SUBSISTENCE?

IT IS ASSUMED THAT THE OFFICERS ARE ATTENDING THE SCHOOLS MENTIONED PURSUANT TO THE PROVISIONS OF SECTION 99 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 5 OF THE ACT OF SEPTEMBER 22, 1922.

THE PORTION OF THE QUESTION RELATING TO THE SUBSISTENCE ALLOWANCE IS FULLY COVERED BY THE ANSWER TO QUESTION (B).

IF NATIONAL GUARD STUDENT OFFICERS ARE, UNDER SECTION 99, AS AMENDED, ORDERED TO ATTEND AN ARMY SERVICE SCHOOL IN NUMBERS IN EXCESS OF THE QUARTERS AVAILABLE, OR IF THEY ARE ORDERED TO ATTEND A SERVICE SCHOOL AT WHICH NO QUARTERS ARE AVAILABLE, SO THAT IN FACT NO PUBLIC QUARTERS ARE AVAILABLE, THEY ARE ENTITLED TO RENTAL ALLOWANCE AS PROVIDED IN SECTION 6 OF THE ACT OF JUNE 10, 1922. BUT ANY PUBLIC QUARTERS AT A SERVICE SCHOOL AVAILABLE FOR ASSIGNMENT ARE "AVAILABLE PUBLIC QUARTERS" AND RENTAL ALLOWANCE MAY NOT BE PAID TO A STUDENT OFFICER SO LONG AS SUCH QUARTERS ARE AVAILABLE. AND SEE DECISION TO YOU OCTOBER 30, 1922, 14 MS. COMP. GEN., 2047.

(D) WHAT BASE PAY FOR EACH GRADE SHOULD BE CONSIDERED FOR THE PURPOSE OF PAYMENT TO NATIONAL GUARD OFFICERS FOR ARMORY DRILLS, AND WILL THIS BASE PAY CHANGE ACCORDING TO YEARS OF SERVICE?

THE FIRST PORTION OF THIS QUESTION HAS BEEN ANSWERED UNDER (A), AND THE SECOND PORTION IS ANSWERED BY SAYING THAT SECTION 3 OF THE ACT OF JUNE 10, 1922, FIXES A PERMANENT BASE PAY FOR EACH OF THE GRADES OF NATIONAL GUARD OFFICERS FROM SECOND LIEUTENANT TO COLONEL, INCLUSIVE; THE PURPOSE AND INTENT OF SECTION 3 IS TO FIX A BASE PAY FOR OFFICERS OF THE NATIONAL GUARD OF THESE GRADES WITHOUT REFERENCE TO LENGTH OF SERVICE, EITHER STATE OR FEDERAL; THE EFFECT OF THE PROVISION IS TO LEAVE THE BASE PAY OF OFFICERS OF THE NATIONAL GUARD AS IT WAS UNDER PRIOR LAWS EXCEPT AS TO SECOND LIEUTENANTS. SEE SECTION 1261, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 11, 1908, 35 STAT., 108.

IN VIEW OF THE PHRASING OF YOUR LETTER IT MAY BE WELL TO POINT OUT THAT THE PROVISIONS FOR LONGEVITY PAY CONTAINED IN SECTION 3 OF THE ACT OF JUNE 10, 1922, ARE NOT APPLICABLE TO OFFICERS RECEIVING PAY UNDER SECTIONS 94, 97, OR 99, AS AMENDED, OR ARMORY DRILL PAY UNDER SECTION 109 OF THE NATIONAL DEFENSE ACT AS AMENDED. SEE ACT OF JUNE 4, 1920, 41 STAT., 783. THIS PROVISION IS APPLICABLE ONLY WHEN UNDER BASIC PRIOR LAWS NATIONAL GUARD OFFICERS ARE ENTITLED TO PAY FOR LENGTH OF SERVICE AND IT FIXES A BASIS OF CALCULATION DIFFERENT FROM THAT PROVIDED FOR OFFICERS OF THE REGULAR ARMY. SEE ANSWER TO QUESTION (A). 2 COMP. GEN., 85. AND SEE ALSO 1 COMP. GEN., 257; 2 ., 274, 275. THE DECISION OF OCTOBER 6, 1922, 2 COMP. GEN., 264, CONSIDERED ONLY SERVICE THAT MIGHT BE COUNTED BY NATIONAL GUARD OFFICERS IF LONGEVITY WERE OTHERWISE PAYABLE.