B-120742, DECEMBER 9, 1954, 34 COMP. GEN. 281

B-120742, DECEMBER 9, 1954, 34 COMP. GEN. 281

MARITIME SERVICE ENROLLEES - CLOTHING ALLOWANCE THE AUTHORITY OF THE MARITIME ADMINISTRATION PURSUANT TO SECTION 216 OF THE MERCHANT MARINE ACT, 1936, TO PRESCRIBE CLOTHING ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE IS NOT CHANGED BY SECTION 509 OF THE CAREER COMPENSATION ACT OF 1949 WHICH GRANTED INCREASED PAY AND ALLOWANCE BENEFITS TO SUCH ENROLLEES. MARITIME TRAINING APPROPRIATIONS FOR 1954 AND 1955, WHICH ARE EXPRESSLY AVAILABLE FOR PAY AND ALLOWANCES FOR PERSONNEL OF THE MARITIME SERVICE COMPARABLE TO THOSE OF THE COAST GUARD, MAY BE USED TO PAY FOR CLOTHING MAINTENANCE ALLOWANCES FOR MARITIME SERVICE ENROLLEES AT RATES CORRESPONDING TO THE CLOTHING ALLOWANCES PRESCRIBED FOR COAST GUARD PERSONNEL. THE PAY AND ALLOWANCE RATE-FIXING AUTHORITY VESTED IN SECRETARY OF COMMERCE BY SECTION 216, MERCHANT MARINE ACT, 1936, MAY NOT BE DELEGATED TO THE COMMANDANT OF MARITIME SERVICE AND WHILE CLOTHING ALLOWANCE PAYMENTS HERETOFORE MADE AND ACCRUING PRIOR TO END OF THE CURRENT FISCAL YEAR BASED ON THE COMMANDANT'S INSTRUCTIONS WILL NOT BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE, SIMILAR PAYMENTS THEREAFTER MUST BE PRESCRIBED OR APPROVED BY THE SECRETARY OF COMMERCE.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, DECEMBER 9, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1954, STATING THAT UPON REVIEW BY THE MARITIME ADMINISTRATION OF THE PAY AND ALLOWANCES OF ENROLLEES OF THE UNITED STATES MARITIME SERVICE IN THE LIGHT OF DECISION OF OCTOBER 8, 1953, 33 COMP. GEN. 151, A QUESTION HAS ARISEN AS TO THE AUTHORITY OF THAT ADMINISTRATION TO PRESCRIBE AND PAY CLOTHING MAINTENANCE ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE BELOW OFFICER RANK WHILE ON ACTIVE ADMINISTRATIVE DUTY.

IT APPEARS THAT THE QUESTION AROSE AS THE RESULT OF THE STATEMENT IN THAT DECISION THAT THE LANGUAGE OF SECTION 509 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 828, AS AMENDED BY SECTION 3 OF THE ACT OF MAY 19, 1952, 66 STAT. 80, OPERATES AS A "POSITIVE STATUTORY PRESCRIPTION OF THE RATES OF PAY AND ALLOWANCES SET FORTH IN TITLE II AND III OF THE 1949 ACT, AS AMENDED, FOR ENROLLEES OF THE MARITIME SERVICE WHILE SERVING ON ACTIVE ADMINISTRATIVE DUTY AND, HENCE, HAS SUPERSEDED THE AUTHORITY VESTED IN THE MARITIME ADMINISTRATION BY SECTION 216 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1126 (A) TO "FIX THE RATES OF PAY OF SUCH PERSONS.'" THE SAID DECISION DEALT SPECIFICALLY WITH QUARTERS ALLOWANCES AND HELD THAT SUCH ENROLLEES BELOW OFFICER RANK ARE ENTITLED TO THE INCREASED QUARTERS ALLOWANCES FOR DEPENDENTS AUTHORIZED BY SECTION 302 (F) OF THE SAID 1949 ACT, AS AMENDED, SUBJECT TO THE PROVISIONS RESPECTING DEPENDENCY ALLOTMENTS CONTAINED IN SECTIONS 302 (H) TO 302 (K) OF SUCH ACT AS ADDED BY SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 795.

YOU EXPRESS THE VIEW THAT THE AUTHORITY OF MARITIME ADMINISTRATION TO PRESCRIBE CLOTHING MAINTENANCE ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE SHOULD NOT BE REGARDED AS AFFECTED BY THE PROVISIONS OF SECTION 509 AS AMENDED, PARTICULARLY SINCE THE ACT OF MAY 19, 1952, DID NOT PLACE THE PERSONNEL OF THE MARITIME SERVICE WITHIN THE SCOPE OF SECTION 505, TITLE V, CAREER COMPENSATION ACT OF 1949, 63 STAT. 828, WHICH AUTHORIZES THE PRESIDENT TO PRESCRIBE THE QUANTITY AND KIND OF CLOTHING TO BE FURNISHED ANNUALLY TO ENLISTED MEMBER OF THE UNIFORMED SERVICE.

AS STATED IN DECISION OF DECEMBER 21, 1953, B-115145, TO YOU, THE PRIMARY PURPOSE OF THE ACT OF MAY 19, 1952, WAS TO INCREASE THE RATES OF PAY AND ALLOWANCES PRESCRIBED IN TITLES II AND III OF THE 1949 ACT, 63 STAT. 805, 812, AS AMENDED, AND IT IS APPARENT FROM THE WORDING OF THAT ACT THAT IT WAS THE INTENTION TO GRANT SUCH BENEFITS TO MARITIME SERVICE ENROLLEES. BUT BY THE EXTENSION OF THE PROVISIONS OF TITLES II AND III TO SUCH ENROLLEES THEY BECAME ENTITLED TO THE BENEFITS AUTHORIZED BY THE SAID TITLES, NAMELY, INCREASED PAY UNDER TITLE II AND INCREASES IN CERTAIN ALLOWANCES UNDER TITLE III, IN LIEU OF SIMILAR BENEFITS THERETOFORE PRESCRIBED BY REGULATION. NO REFERENCE IS MADE HOWEVER IN EITHER TITLE II OR TITLE III TO CLOTHING ALLOWANCES OF ANY KIND. HENCE, IT REASONABLY MAY BE CONCLUDED, AS SUGGESTED BY YOU, THAT SECTION 509, AS AMENDED, WAS NOT INTENDED TO CHANGE, IN ANY WAY, SUCH AUTHORITY AS THE MARITIME ADMINISTRATION THERETOFORE MAY HAVE HAD TO PRESCRIBE CLOTHING ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE.

WITH RESPECT TO THE STATEMENTS MADE ON PAGE 4 OF YOUR LETTER THAT, IN THE EVENT THIS OFFICE CONCURS WITH YOUR VIEWS IN THE MATTER, THERE WOULD APPEAR TO BE NO QUESTION RELATIVE TO THE USE OF MARITIME TRAINING FUNDS AS PROVIDED BY PUBLIC LAW 195, 83D CONGRESS, APPROVED AUGUST 5, 1953, 67 STAT. 367, TO PAY CLOTHING ALLOWANCES DURING THE FISCAL YEAR 1954, IT IS NOTED THAT SUCH APPROPRIATION ACT AND ITS COUNTERPART FOR THE FISCAL YEAR 1955 PROVIDE THAT FUNDS MADE AVAILABLE FOR MARITIME TRAINING "MAY BE USED TO PROVIDE PAY AND ALLOWANCES FOR PERSONNEL OF THE UNITED STATES MARITIME SERVICE COMPARABLE TO THOSE OF THE COAST GUARD AS AUTHORIZED BY LAW (46 U.S.C. 1126, 14 F.R. 7707).' YOU STATE THAT THE DEPARTMENT'S BUDGET ESTIMATES FOR THE FISCAL YEAR 1954 MADE IT CLEAR THAT CLOTHING MAINTENANCE ALLOWANCES IN AMOUNTS CORRESPONDING TO THOSE PRESCRIBED IN THE MARITIME SERVICE INSTRUCTIONS HAVE BEEN PROVIDED FOR THE PERSONNEL OF THE MARITIME SERVICE. ALSO, YOU INDICATE THAT SUCH ALLOWANCES HAVE BEEN PAID UNDER EARLIER APPROPRIATION ACTS WHICH CONTAIN THE SAME LANGUAGE AS THAT CONTAINED IN PUBLIC LAW 195.

GENERAL ORDER NO. 23, REVISED, ISSUED BY THE ADMINISTRATION, WAR SHIPPING ADMINISTRATION, EFFECTIVE JULY 1, 1946, PURSUANT TO THE AUTHORITY OF SECTION 216 OF THE MERCHANT MARINE ACT OF 1936, 53 STAT. 1192, AS AMENDED, AND EXECUTIVE ORDERS NOS. 9054, 9083, AND 9198 DATED FEBRUARY 7, 1942, FEBRUARY 28, 1942, AND JULY 11, 1942, RESPECTIVELY, PRESCRIBED CERTAIN REGULATIONS "FOR THE GOVERNING OF THE UNITED STATES MARITIME SERVICE.' SECTION 310.24 OF THOSE REGULATIONS PROVIDED CERTAIN CASH CLOTHING AND EQUIPMENT ALLOWANCES FOR OFFICERS AND WARRANT OFFICERS OF THE MARITIME SERVICE AND FOR SUPPLYING, WITHOUT CHARGE, TO ENROLLEES BELOW THE RANK OF WARRANT OFFICER "SUCH CLOTHING AND EQUIPMENT AS FIXED THROUGH CLOTHING BOUNTIES APPROVED BY THE COMMANDANT.' APPARENTLY ON THE BASIS OF SUCH SECTION AND SECTION 310.16 OF THE SAME ORDER, WHICH SETS FORTH THE DUTIES AND RESPONSIBILITIES OF THE COMMANDANT, UNITED STATES MARITIME SERVICE, THAT OFFICIAL ISSUED INSTRUCTIONS EFFECTIVE DECEMBER 31, 1946, PRESCRIBING CLOTHING MAINTENANCE ALLOWANCES FOR CHIEF PETTY OFFICERS AND ENROLLEES BELOW OFFICER RANK IN OTHER RATINGS.

SINCE THE 1954 AND 1955 APPROPRIATIONS FOR MARITIME TRAINING ARE EXPRESSLY MADE AVAILABLE FOR PAY AND ALLOWANCES FOR PERSONNEL OF THE MARITIME SERVICE COMPARABLE TO THOSE OF THE COAST GUARD AND SINCE IT APPEARS THAT THE CLOTHING ALLOWANCES PRESCRIBED AS ABOVE INDICATED FOR ENROLLEES OF THE MARITIME SERVICE ARE COMPARABLE TO CLOTHING ALLOWANCES PRESCRIBED FOR COAST GUARD PERSONNEL PURSUANT TO SECTION 505 OF THE CAREER COMPENSATION ACT, THIS OFFICE WILL NOT OBJECT TO THE USE OF SUCH APPROPRIATIONS FOR THE PAYMENT OF CLOTHING MAINTENANCE ALLOWANCES AS PROPOSED. HOWEVER, ATTENTION IS INVITED TO THE FACT THAT THE RATE FIXING AUTHORITY CONFERRED BY SECTION 216 OF THE MERCHANT MARINE ACT, AS AMENDED, IS VESTED IN THE SECRETARY OF COMMERCE (FORMERLY THE MARITIME COMMISSION AND THE WAR SHIPPING ADMINISTRATION) AND NOT IN THE COMMANDANT OF THE MARITIME SERVICE. SUCH AUTHORITY IS VIEWED AS BEING NOT SUBJECT TO DELEGATION. SEE 21 COMP. GEN. 921; 22 COMP. GEN. 1083; AND 29 COMP. GEN. 151. HENCE THE RATES OF CLOTHING MAINTENANCE ALLOWANCES FOR THE MARITIME SERVICE SHOULD BE FIXED BY, OR WITH THE EXPRESS APPROVAL OF THE SECRETARY OF COMMERCE. WHILE PAYMENTS OF SUCH ALLOWANCES ACCRUING PRIOR TO THE END OF THE CURRENT FISCAL YEAR WILL NOT BE QUESTIONED ON THE GROUND THAT THE COMMANDANT'S INSTRUCTIONS RESPECTING SUCH RATES DO NOT SHOW THAT THEY WERE APPROVED BY COMPETENT AUTHORITY, SIMILAR PAYMENTS THEREAFTER WILL BE QUESTIONED FOR THAT REASON UNLESS AN APPROPRIATE PRESCRIPTION OR APPROVAL OF SUCH RATES IS ACCOMPLISHED BY THE SECRETARY IN THE MEANTIME.