A-6262, MARCH 20, 1925, 4 COMP. GEN. 784

A-6262, MARCH 20, 1925, 4 COMP. GEN. 784

RENTAL ALLOWANCE - OFFICERS OF THE RESERVE CORPS AND NATIONAL GUARD UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, AND THE EXECUTIVE ORDER OF AUGUST 13, 1924, MEMBERS OF THE OFFICERS' RESERVE CORPS IN ATTENDANCE AT SERVICE SCHOOLS MAY BE PAID RENTAL ALLOWANCE ON THE SAME BASIS AS OFFICERS OF THE NATIONAL GUARD. 4 COMP. GEN. 571, MODIFIED. THE TIME NECESSARY FOR TRAVEL TO AND FROM SCHOOLS OF INSTRUCTION, IN ADDITION TO THE TIME LIMITS PRESCRIBED FOR ACTUAL ATTENDANCE THEREAT, MAY BE INCLUDED FOR THE PURPOSE OF PAYMENT OF RENTAL ALLOWANCE TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND OFFICERS OF THE NATIONAL GUARD IN ATTENDANCE AT SUCH SCHOOLS. J COMP. GEN. 571; ID. 661, AMPLIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MARCH 20, 1925:

I HAVE YOUR LETTER OF FEBRUARY 26, 1925, ASKING FURTHER CONSIDERATION WITH RESPECT TO THE RIGHTS TO RENTAL ALLOWANCE OF RESERVE OFFICERS AND NATIONAL GUARD OFFICERS, AS DEFINED IN DECISIONS OF DECEMBER 27, 1924, 4 COMP. GEN. 571, AND FEBRUARY 6, 1925, 4 COMP. GEN. 661. YOU CALL ATTENTION TO THE FACT THAT IN DECISION OF DECEMBER 27, 1924, IT WAS HELD THAT:

FOR THE PURPOSE OF THIS DECISION IT WILL BE UNDERSTOOD THAT IN NO CASE WILL THE ORDER FIX A PERIOD OF ACTIVE DUTY IN EXCESS OF 60 DAYS UNDER SECTION 37-A, A PERIOD OF TRAINING OR INSTRUCTION IN EXCESS OF 30 DAYS UNDER SECTION 94 OR 97 NOR IN EXCESS OF 3 MONTHS UNDER SECTION 99.

ON JANUARY 15, 1925, YOU REQUESTED A RECONSIDERATION WITH RESPECT TO THE LIMITATION OF THREE MONTHS PLACED BY THE DECISION OF DECEMBER 27, 1924, ON THE ATTENDANCE OF NATIONAL GUARD OFFICERS AT SERVICE SCHOOLS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT, 42 STAT. 1035. RECONSIDERATION WAS REQUESTED AS IT SEVERAL SERVICE SCHOOLS THE COURSE EXCEEDED THAT PERIOD, THE FLYING COURSE AT BROOK'S FIELD, TEX., BEING FOR A PERIOD OF 4 MONTHS; THE COURSE AT THE COMMAND AND GENERAL STAFF SCHOOL, FORT LEAVENWORTH, KANS., BEING FOR A PERIOD OF 3 MONTHS AND 10 DAYS, AND IN SOME OTHER COURSES THE 3-MONTHS' PERIOD IS EXCEEDED BY SEVERAL DAYS. TO MEET THE REQUIREMENTS OF THESE COURSES IT WAS HELD IN DECISION OF FEBRUARY 6, 1925, THAT:

THE BASIC CONDITION MUST BE ATTENDANCE AT A MILITARY SERVICE SCHOOL TO PURSUE A REGULAR COURSE OF STUDY AS AUTHORIZED BY SECTION 99, 42 STAT. 1035. THE ENACTMENT DOES NOT LIMIT THE PERIOD OF THE STUDY AND OBVIOUSLY THIS IS DEPENDENT TO SOME EXTENT UPON THE COURSE OF STUDY. THE DECISION OF DECEMBER 27, 1924, CALLED ATTENTION THERETO AND THAT FOR THE PURPOSES OF THE DECISION WHICH CONCERNED RENTAL ALLOWANCE IT WILL BE UNDERSTOOD ORDERS TO SUCH ACTIVE DUTY UNDER SECTION 99 WILL FIX A PERIOD NOT IN EXCESS OF THREE MONTHS. THIS MUST BE THE GENERAL RULE, BUT THERE MAY BE THE EXCEPTIONAL CASE OF MINOR VARIATION FROM THE PERIOD OF THREE MONTHS BY REASON OF THE LENGTH OF THE COURSE OF THE PARTICULAR SCHOOL AND WHERE THAT IS STATED IN THE ORDER, THE SERVICE MAY BE CONSIDERED AS TEMPORARY DUTY WITHIN THE DECISION IN QUESTION. THE INSTANCES GIVEN IN THE SUBMISSION OF FOUR MONTHS, THREE MONTHS AND TEN DAYS AND ALSO SEVERAL DAYS IN EXCESS OF THREE MONTHS ARE UNDERSTOOD AS REPRESENTING THE MAXIMUM OF VARIATION FROM THREE MONTHS AND ACTION WILL BE GOVERNED ACCORDINGLY.

YOUR SUBMISSION OF JANUARY 15, 1925, HAD REFERENCE TO NATIONAL GUARD OFFICERS ONLY. YOU NOW SUGGEST THAT AS RESERVE OFFICERS ATTEND SERVICE SCHOOLS UNDER THE SAME CONDITIONS AS DO NATIONAL GUARD OFFICERS SIMILAR EXTENSION OF TIME SHOULD BE MADE FOR SUCH DUTY UNDER SECTION 37-A OF THE NATIONAL DEFENSE ACT.

FOR SOME YEARS THERE HAS APPEARED A RESTRICTION IN THE APPROPRIATION UNDER WHICH ACTIVE DUTY PAY FOR MEMBERS OF THE OFFICERS' RESERVE CORPS IS PAID, SEE 43 STAT. 507, SUBSTANTIALLY AS OLLOWS:

NO PORTION OF THIS APPROPRIATION SHALL BE EXPENDED FOR THE PAY OFA RESERVE OFFICER ON ACTIVE DUTY FOR A LONGER PERIOD THAN FIFTEEN DAYS, EXCEPT SUCH AS MAY BE DETAILED FOR DUTY WITH THE WAR DEPARTMENT GENERAL STAFF UNDER SECTION 3A AND SECTION 5 (B) OF THE ARMY REORGANIZATION ACT APPROVED JUNE 4, 1920, OR WHO MAY BE DETAILED FOR COURSES OF INSTRUCTION AT THE GENERAL OR SPECIAL SERVICE SCHOOLS OF THE ARMY, OR WHO MAY BE DETAILED FOR DUTY AS INSTRUCTORS AT CIVILIAN MILITARY TRAINING CAMPS, APPROPRIATED FOR IN THIS ACT, OR WHO MAY BE DETAILED FOR DUTY WITH TACTICAL UNITS OF THE AIR SERVICE, AS PROVIDED IN SECTION 37A OF THE ARMY REORGANIZATION ACT APPROVED JUNE 4, 1920 * * *.

THIS IS A RESTRICTION AND LIMITATION ON THE AUTHORITY CONTAINED IN SECTION 37-A. IN ADDITION TO THE EXCEPTION MADE IN DECISION OF DECEMBER 27, 1924, AS TO MEMBERS OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY FOR TRAINING UNDER SECTION 37-A OF THE NATIONAL DEFENSE ACT FOR SHORT PERIODS NOT EXCEEDING SIXTY DAYS, WHAT HAS BEEN SAID WITH RESPECT TO OFFICERS OF THE NATIONAL GUARD ATTENDING SERVICE SCHOOLS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT MAY BE APPLIED TO MEMBERS OF THE OFFICERS' RESERVE CORPS ATTENDING SERVICE SCHOOLS PURSUANT TO LAW WHEN THEIR ORDERS CLEARLY SHOW THE DUTY TO WHICH ORDERED, THE COURSE TO BE ATTENDED, AND THE DURATION OF THE COURSE. IT SHOULD BE UNDERSTOOD THIS DOES NOT INCLUDE ANY OTHER FORM OF TRAINING, WHAT WAS SAID IN THE DECISION OF DECEMBER 27, 1924, BEING APPLICABLE TO SUCH OTHER TRAINING ONLY IF THE DURATION BE SIXTY DAYS OR LESS.

YOUR LETTER STATES:

FOR CONSIDERATION IN THIS CONNECTION IS THE FACT THAT, WHILE THE PERIOD OF INSTRUCTION AT ANY PARTICULAR SERVICE SCHOOL IS UNIFORM FOR ALL THE OFFICERS IN ATTENDANCE THEREAT, THE PERIOD OF ACTIVE DUTY OF THE INDIVIDUAL OFFICERS ATTENDING SUCH SCHOOL VARIES BY A FEW DAYS BECAUSE OF THE VARYING LENGTH OF TIME CONSUMED IN TRAVEL TO AND FROM THE SCHOOL.

YOUR DECISION IS REQUESTED, THEREFORE, AS TO WHETHER THE LENGTH OF THE SCHOOL TERM OR THE ENTIRE PERIOD OF ACTIVE DUTY (SCHOOL TERM PLUS TRAVEL TIME) SHOULD BE CONSIDERED IN DETERMINING WHETHER OR NOT THE DUTY PERIOD OF ANY INDIVIDUAL OFFICER IS WITHIN THE LIMITS PRESCRIBED WITH REFERENCE TO PERMANENT DUTY STATION.

AS THE AMENDMENT OF SECTION 99 OF THE NATIONAL DEFENSE ACT, SEPTEMBER 22, 1922, 42 STAT. 1035, SPECIFICALLY INCLUDES RIGHT TO PAY "FOR THE NECESSARY PERIOD OF TRAVEL FROM AND TO HIS HOME STATION" SUCH TIME IN TRANSIT MAY BE TREATED AS INCLUDED WITHIN THE LIMITS AS HEREIN AND HERETOFORE FIXED.

YOUR LETTER CONTAINS THE FOLLOWING PARAGRAPH:

IT IS FURTHER REQUESTED THAT THE STATUS WITH REFERENCE TO PERMANENT STATION BE DECIDED WHERE OFFICERS OF THE TWO CLASSES ARE ORDERED TO DUTY FOR PERIODS IN EXCESS OF THE PRESCRIBED LIMITS AS WELL AS WHERE THE DUTY PERIODS ARE WITHIN SUCH LIMITS.

IN THIS CONNECTION DECISION OF DECEMBER 27, 1924, STATES:

IT MIGHT BE SUGGESTED THAT AS THE OFFICERS ARE IN THE STATUS ENTITLING TO PAY FOR A LIMITED PERIOD AND THE STATION FIXED IS TO CONTINUE DURING THAT ENTIRE PERIOD IT IS AS PERMANENT A STATION IN A MILITARY SENSE AS THEY CAN HAVE, THE ORDER MERELY FIXING THE DURATION OF DUTY, TRAINING, OR INSTRUCTION. THIS, HOWEVER, WOULD BE NARROWER THAN THE LAW CONTEMPLATES, AS THE AMENDED LAW CLEARLY FIXED THE RENTAL ALLOWANCE TO ENABLE THE OFFICER TO ARRANGE HIS PERMANENT LIVING CONDITIONS, EITHER ON THE BASIS OF RENTAL ALLOWANCE OR THE ASSIGNMENT OF ADEQUATE PUBLIC QUARTERS. RESERVE OFFICERS OR NATIONAL GUARD OFFICERS MUST MAINTAIN THEIR PERMANENT LIVING ARRANGEMENTS, AND THE DUTY TO WHICH ASSIGNED IS BOTH IN FACT AND UNDER THE LAW TEMPORARY, THE STATION ASSIGNED FOR THE PURPOSE OF THAT DUTY NOT BEING A PERMANENT STATION WITHIN THE MEANING OF THE LAW. * * *

THE LANGUAGE LAST QUOTED FROM YOUR LETTER CONFUSES THE PRONOUNCED DIFFERENCE IN THE STATUS OF OFFICERS OF THE NATIONAL GUARD AND MEMBERS OF THE OFFICERS' RESERVE CORPS. OFFICERS OF THE NATIONAL GUARD ARE MEMBERS OF THE MILITIA. THEY ARE A PART OF THE ARMY OF THE UNITED STATES ONLY WHEN IN THE SERVICE OF THE UNITED STATES AND, EXCEPT WHEN IN THE SERVICE OF THE UNITED STATES EITHER UNDER A CALL OR DRAFT, THEY ARE ENTITLED TO PAY ONLY WHEN AND TO THE EXTENT THE STATUTE SPECIFICALLY PROVIDES. THE PERIODS HERETOFORE FIXED AS TO OFFICERS OF THE NATIONAL GUARD WHEN ENTITLED TO PAY UNDER SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT WERE FIXED ON THE ASSUMPTION THAT PERIODS OF SERVICE UNDER THOSE PROVISIONS OF LAW WOULD NOT EXCEED THE LIMITS FIXED. THE PRACTICE FOR MANY YEARS HAS BEEN TO LIMIT ENCAMPMENT TRAINING IN THE NATIONAL GUARD UNDER SECTION 94 AND UNDER THE EARLIER STATUTES APPLICABLE TO THE ORGANIZED MILITIA TO 15 DAYS PER YEAR; THE LIMIT OF 30 DAYS WAS FIXED IN THE DECISION FOR THIS CLASS OF SERVICE TO PROVIDE FOR POSSIBLE EXCESS OF A FEW DAYS. IF THE APPROPRIATIONS FOR THE NATIONAL GUARD SHOULD MAKE POSSIBLE A LONGER PERIOD OF ENCAMPMENT TRAINING THAN 30 DAYS, IT MAY THEN BE NECESSARY TO CONSIDER WHAT THE SITUATION OF THE OFFICERS WILL BE WITH RESPECT TO PERMANENT OR TEMPORARY STATION, BUT UNTIL THAT SITUATION ARISES THE NECESSITY FOR DECISION IS NOT APPARENT. CAMPS OF INSTRUCTION UNDER SECTION 97 HAVE NOT BEEN OF EXTENDED DURATION AND SHOULD ANY BE HELD OR CONTEMPLATED FOR A LONGER PERIOD THAN 30 DAYS SPECIFIC SUBMISSION, GIVING THE FACTS, SHOULD BE PRESENTED THAT THE MATTER MAY BE PROPERLY CONSIDERED. IF ATTENDANCE AT A SERVICE SCHOOL SHOULD EXCEED THE TIME HEREIN AND HERETOFORE FIXED, THE OFFICER WILL BE CONSIDERED AS ON DUTY AT HIS PERMANENT STATION AND HIS RIGHTS TO RENTAL ALLOWANCE DETERMINED ON THE FACTS OF THE SITUATION UNDER THE LAW AND REGULATIONS APPLICABLE.

SO FAR AS MEMBERS OF THE OFFICERS' RESERVE CORPS ARE CONCERNED, THEY ARE OFFICERS OF THE UNITED STATES SERVING UNDER COMMISSIONS OF LIMITED DURATION, FIVE YEARS. THE VERY NATURE OF THEIR RELATION IS TEMPORARY WHEN CONTRASTED WITH THE RELATION EXISTING BETWEEN AN OFFICER OF THE REGULAR ARMY AND THE GOVERNMENT. THE PROVISION RESPECTING RENTAL ALLOWANCE AND THE CONSTRUCTION OF THE TERM "PERMANENT STATION" MUST, HOWEVER, HAVE APPLICATION TO THEM, AND THIS PROVISION MUST OPERATE IN THE IDENTICAL MANNER IT DOES IN THE CASE OF OFFICERS OF THE REGULAR ARMY. WHEN, THEREFORE, A MEMBER OF THE OFFICERS' RESERVE CORPS IS ORDERED TO ACTIVE DUTY OTHER THAN FOR TRAINING FOR ANY PERIOD, FOR TRAINING DUTY IN EXCESS OF 60 DAYS, OR TRAINING DUTY AT A SERVICE SCHOOL IN EXCESS OF THE PERIODS HEREIN AND HERETOFORE FIXED, HIS RIGHTS TO RENTAL ALLOWANCE WILL BE DETERMINED BY THE FACTS EXISTING AND UNDER THE SAME RULES AS ARE APPLICABLE TO OFFICERS OF THE REGULAR ARMY. IT SHOULD BE OBSERVED THAT THE EFFECT OF THE DECISIONS OF DECEMBER 27, 1924, FEBRUARY 6, 1925, AND HEREIN IS TO PERMIT CITIZENS HOLDING COMMISSIONS IN FORCES SUPPLEMENTAL TO THE REGULAR ARMY TO OCCUPY PUBLIC QUARTERS WHEN UNDERGOING TRAINING FOR LIMITED PERIODS AND RECEIVE THE RENTAL ALLOWANCE AS ON DUTY AT A TEMPORARY STATION, ALTHOUGH THE QUARTERS SO OCCUPIED ARE OBVIOUSLY ADEQUATE FOR THE DUTY TO WHICH ASSIGNED, HAVING BEEN PROVIDED FOR THAT SPECIFIC PURPOSE. THE REASONS FOR THE HOLDING WERE SET FORTH IN DECISION OF DECEMBER 27, 1924. SUCH REASONING HAS NO APPLICATION WHEN THE OFFICER IS ENTITLED TO PAY OTHERWISE THAN AS INDICATED IN THOSE DECISIONS. A RIGHT TO RENTAL ALLOWANCE WILL NOT BE CREATED BY CONSTRUCTION BY THIS OFFICE OF THE TERMS "PERMANENT STATION" AND "TEMPORARY DUTY STATION" TO RELIEVE THE WAR DEPARTMENT OF ITS DUTY UNDER THE LAW TO PROVIDE FOR THE ASSIGNMENT OF ADEQUATE QUARTERS WHERE SUCH ARE AVAILABLE.