A-63596, AUGUST 19, 1935, 15 COMP. GEN. 145

A-63596, AUGUST 19, 1935, 15 COMP. GEN. 145

PAY - AVIATION CADETS - NAVAL AND MARINE CORPS RESERVES AVIATION CADETS CREATED UNDER THE ACT OF APRIL 15, 1935, 49 STAT. 156- 157, ARE ENTITLED TO PAY WHILE TRAVELING TO OR FROM ACTIVE DUTY "NOT UNDERGOING TRAINING" AT THE RATE PRESCRIBED IN SECTION 2 OF THE ACT FOR SUCH DUTY, AND TO PAY AS AVIATION CADETS "UNDERGOING TRAINING" AT THE RATE PRESCRIBED BY SAID ACT WHILE TRAVELING TO SUCH DUTY AT PENSACOLA, FLORIDA, BUT AS SUCH DUTY IS LIMITED BY REGULATIONS TO DUTY WHILE AT THE NAVAL AIR STATION, PENSACOLA, FLORIDA, THEY ARE NOT ENTITLED TO PAY WHILE TRAVELING FROM ACTIVE DUTY FOR TRAINING TO THEIR HOMES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 19, 1935:

THERE HAS BEEN RECEIVED BY YOUR FIRST INDORSEMENT OF JULY 27, 1935, REQUEST OF THE PAYMASTER GENERAL FOR DECISION WHETHER AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE ARE ENTITLED TO "PAY AND ALLOWANCES FOR SUBSISTENCE" WHILE TRAVELING TO AND FROM "ACTIVE DUTY UNDERGOING TRAINING" AND "ACTIVE DUTY NOT UNDERGOING TRAINING.'

THE ACT OF APRIL 15, 1935, 49 STAT. 156, 157, SO FAR AS APPLICABLE TO THE QUESTION PRESENTED, PROVIDES:

THAT THE GRADE OF AVIATION CADET IS HEREBY CREATED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE. AVIATION CADETS SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY FROM MALE CITIZENS OF THE UNITED STATES UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE: PROVIDED, THAT EACH AVIATION CADET SHALL SIGN AN AGREEMENT, WITH THE CONSENT OF HIS PARENT OR GUARDIAN, IF HE BE A MINOR, TO SERVE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO DISCHARGE AT ANY TIME ANY AVIATION CADET, OR TO RELEASE HIM FROM ACTIVE DUTY. AVIATION CADETS SHALL, IF QUALIFIED, BE ELIGIBLE AFTER COMPLETION OF THEIR PERIOD OF ACTIVE DUTY, FOR COMMISSION IN THE NAVAL RESERVE OR THE MARINE CORPS RESERVE, WITH DATE OF PRECEDENCE AS OF DATE OF APPOINTMENT AS AVIATION CADET.

SEC. 2. THE PAY OF AVIATION CADETS WHILE ON ACTIVE DUTY UNDERGOING TRAINING SHALL BE AT THE RATE OF $75 PER MONTH, WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISK, AS PROVIDED BY LAW. THE PAY OF AVIATION CADETS WHILE ON ACTIVE DUTY NOT UNDERGOING TRAINING, SHALL BE AT THE RATE OF $125 PER MONTH, WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISK, AS PROVIDED BY LAW. THE DETERMINATION OF THE SECRETARY OF THE NAVY AS TO THE PERIOD DURING WHICH AVIATION CADETS ARE UNDERGOING TRAINING SHALL BE CONCLUSIVE FOR ALL PURPOSES. AVIATION CADETS SHALL BE PAID, IN ADDITION, A MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY. WHILE TRAVELING UNDER ORDERS TO OR FROM ACTIVE DUTY, OR WHILE IN THE PERFORMANCE OF SUCH DUTY, THEY SHALL, UNDER SUCH REGULATIONS OF (AS) THE SECRETARY OF THE NAVY MAY PRESCRIBE, RECEIVE TRANSPORTATION, AND OTHER NECESSARY EXPENSES INCIDENT TO SUCH TRAVEL, OR CASH IN LIEU THEREOF: PROVIDED, THAT WHEN TRAVELING BY AIR UNDER COMPETENT ORDERS, THEY SHALL RECEIVE THE SAME ALLOWANCES FOR TRAVELING EXPENSES AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED BY LAW FOR OFFICERS OF THE NAVY.

SEC. 4. AVIATION CADETS SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, BE SUBJECT TO ALL THE LAWS AND REGULATIONS PRESCRIBED FOR OTHER MEMBERS OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE. THEY SHALL TAKE PRECEDENCE NEXT BEFORE WARRANT OFFICERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE: PROVIDED, THAT WHEN AVIATION CADETS CONTRACT SICKNESS OR DISEASE OR SUFFER INJURY IN LINE OF DUTY WHILE PERFORMING ACTIVE DUTY, THEY MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE RETAINED ON SUCH ACTIVE-DUTY STATUS BEYOND THE SPECIFIED DATE OF TERMINATION THEREOF.

PURSUANT TO SECTION 2 OF THE ACT THE SECRETARY OF THE NAVY HAS ISSUED REGULATIONS RELATIVE TO TRAINING AND ACTIVE DUTY OF AVIATION CADETS BY CIRCULAR LETTER NO. 7-35, APRIL 26, 1935, AS FOLLOWS:

8. FLIGHT TRAINING.

THE TRAINING SHALL TAKE PLACE IN THREE PHASES:

(A) SELECTED CANDIDATES WILL BE ENLISTED AS SEAMEN 2C, V-5 IN THE U.S. NAVAL RESERVE AND SHALL BE GIVEN A COURSE OF ELIMINATION FLIGHT TRAINING, IN ACCORDANCE WITH INSTRUCTIONS AND SYLLABUS PRESCRIBED BY THE BUREAU OF NAVIGATION, BEFORE CONSIDERATION FOR APPOINTMENT AS AVIATION CADETS. THE CASES, HOWEVER, OF ENLISTED MEN OF THE REGULAR NAVY, SELECTED CANDIDATES SHALL RECEIVE ELIMINATION TRAINING IN THEIR CURRENT RATINGS, UPON THE SUCCESSFUL COMPLETION OF WHICH THEY SHALL BE DISCHARGED FROM THE REGULAR SERVICE BEFORE BEING APPOINTED AS AVIATION CADETS. THIS PRELIMINARY OR ELIMINATION COURSE WILL LAST ABOUT THIRTY DAYS, DURING WHICH TIME THE CANDIDATES WILL BE ENTITLED TO THE PAY AND ALLOWANCES OF THEIR RATINGS.

(B) AVIATION CADETS SHALL BE GIVEN PRIMARY AND ADVANCED FLIGHT TRAINING AT THE NAVAL AIR STATION, PENSACOLA, FLORIDA, THIS COURSE TO BE CONDUCTED IN ACCORDANCE WITH THE SAME SYLLABUS AS IS USED BY THE REGULAR SERVICE. THIS COURSE WILL LAST ABOUT ONE YEAR.

(C) UPON SUCCESSFUL COMPLETION OF THE FLIGHT COURSE AT THE NAVAL AIR STATION, PENSACOLA, FLORIDA, AND APPOINTMENT AS NAVAL AVIATORS, AVIATION CADETS SHALL BE ORDERED TO ACTIVE DUTY FOR THE REMAINDER OF THE PERIOD THEY HAVE AGREED TO SERVE, IN THE AIRCRAFT SQUADRONS OF THE U.S. FLEET, PROVIDED SUCH DUTY IS AUTHORIZED BY THE NAVY DEPARTMENT.

9. ACTIVE DUTY UNDERGOING TRAINING AND ACTIVE DUTY.

AVIATION CADETS SHALL BE DEEMED TO BE SERVING ON "ACTIVE DUTY UNDERGOING TRAINING" WHILE AT THE NAVAL AIR STATION, PENSACOLA, FLORIDA. UPON DETACHMENT FROM THE NAVAL AIR STATION, PENSACOLA, AND WHILE TRAVELING TO SUCH OTHER SHIP OR STATION TO WHICH THEY MAY BE ORDERED, AND DURING THE REMAINDER OF THEIR ACTIVE DUTY, AVIATION CADETS SHALL BE DEEMED TO BE ON "ACTIVE DUTY" AS DISTINGUISHED FROM "ACTIVE DUTY UNDERGOING TRAINING.'

ALSO CIRCULAR LETTER NO. 9-35, MAY 18, 1935, PROVIDES AS FOLLOWS: SUBJECT: NAVAL RESERVE AVIATION CADETS--- TRAVEL UNDER ORDERS. REFERENCE: (A) PUBLIC NO. 37, 74TH CONGRESS.

(B) NAVAL RESERVE CIRCULAR LETTER NO. 7-35 DATED 26 APRIL

1935.

1. REFERENCE (A) AUTHORIZES THE SECRETARY OF THE NAVY TO PRESCRIBE REGULATIONS CONCERNING THE TRAVEL, UNDER ORDERS, OF NAVAL RESERVE AVIATION CADETS.

2. ACCORDINGLY, NAVAL RESERVE AVIATION CADETS, WHILE TRAVELING UNDER ORDERS EN ROUTE TO PENSACOLA, FLORIDA, FOR ACTIVE DUTY UNDERGOING TRAINING, OR WHEN TRAVELING UNDER ORDERS IN THE PERFORMANCE OF ACTIVE DUTY UNDERGOING TRAINING, OR IN THE PERFORMANCE OF ACTIVE DUTY, OR WHEN TRAVELING UNDER ORDERS EN ROUTE TO THEIR HOMES OR PLACES OF APPOINTMENT UPON RELEASE FROM SUCH DUTY, WILL BE ISSUED TRANSPORTATION REQUESTS FOR RAILROAD AND PULLMAN ACCOMMODATIONS (LOWER STANDARD BERTH), AND CASH FOR SUBSISTENCE AT THE RATE OF 75 CENTS PER MEAL AND TRANSFERS OF PERSON AND BAGGAGE.

3. TRAVEL BY PRIVATELY OWNED CONVEYANCE IS AUTHORIZED SUBJECT TO REIMBURSEMENT AT THE RATE OF THREE CENTS PER MILE BY THE SHORTEST USUALLY TRAVELED ROUTE, IN LIEU OF TRANSPORTATION IN KIND.

4. WHEN TRAVELING BY AIR UNDER COMPETENT ORDERS, NAVAL RESERVE AVIATION CADETS SHALL RECEIVE THE SAME ALLOWANCES FOR TRAVELING EXPENSES AS ARE NOW, OR MAY HEREAFTER BE AUTHORIZED BY LAW FOR OFFICERS OF THE NAVY.

SECTION 1 OF THE ACT CREATES THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE. SECTION 2 FIXES A RATE OF PAY FOR AVIATION CADETS WHILE ON ACTIVE DUTY "UNDERGOING TRAINING" AND ANOTHER RATE WHILE ON ACTIVE DUTY "NOT UNDERGOING TRAINING; " ALSO A "MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY.' THE SUBSISTENCE ALLOWANCE OF $1 PER DAY SO AUTHORIZED IS IN LIEU OF RATIONS AND RIGHT THERETO DOES NOT ACCRUE WHEN A CADET IS TRAVELING AND ENTITLED TO TRAVEL SUBSISTENCE ALLOWANCE, OR TO ACTUAL EXPENSES OF SUBSISTENCE, OR PER DIEM IN LIEU OF SUBSISTENCE, AS AUTHORIZED IN CIRCULAR LETTER OF MAY 18, 1935. DECISION A -63596, JULY 26, 1935.

IT IS UNDERSTOOD THAT UNDER PROVISIONS OF PARAGRAPH 8 (A) OF NAVAL RESERVE CIRCULAR LETTER NO. 7-35, APRIL 26, 1935, APPOINTMENT AS AVIATION CADET IS MADE PRIOR TO ISSUE OF ORDERS TO PERFORM TRAVEL TO THE NAVAL AIR STATION, PENSACOLA, FLA.; THAT THE ENLISTED STATUS OF THE MAN IS TERMINATED BY HIS APPOINTMENT AS AVIATION CADET; AND THAT THE QUESTION SUBMITTED CONTEMPLATES TRAVEL AFTER SUCH APPOINTMENT. THE ACT PROVIDES A SPECIFIC RATE OF PAY FOR AVIATION CADETS "WHILE ON ACTIVE DUTY UNDERGOING TRAINING" AND AUTHORIZES THE SECRETARY OF THE NAVY TO DETERMINE "THE PERIOD DURING WHICH AVIATION CADETS ARE UNDERGOING TRAINING" WHICH DETERMINATION "SHALL BE CONCLUSIVE FOR ALL PURPOSES.' PURSUANT TO THAT AUTHORITY THE SECRETARY OF THE NAVY HAS PROVIDED IN PARAGRAPH 9 OF CIRCULAR LETTER NO. 7-35, APRIL 26, 1935, THAT "AVIATION CADETS SHALL BE DEEMED TO BE SERVING ON "ACTIVE DUTY UNDERGOING TRAINING" WHILE AT THE NAVAL AIR STATION, PENSACOLA, FLA.' BY THIS PROVISION THE SECRETARY OF THE NAVY HAS SO CIRCUMSCRIBED ACTIVE DUTY UNDERGOING TRAINING AS TO PRECLUDE THE PERFORMANCE OF SUCH DUTY AT ANY OTHER PLACE THAN AT THE NAVAL AIR STATION, PENSACOLA, FLA.

HOWEVER, THE REGULATIONS ARE INCONSISTENT. CIRCULAR LETTER 9-35 OF MAY 18, 1935, AUTHORIZES TRANSPORTATION AND CASH FOR SUBSISTENCE AS AN AVIATION CADET "WHILE TRAVELING UNDER ORDERS EN ROUTE TO PENSACOLA, FLA., FOR ACTIVE DUTY UNDERGOING TRAINING.' IT IS OBVIOUS THAT THE REGULATIONS, NOTWITHSTANDING THE LANGUAGE LIMITING THE STATUS OF "ACTIVE DUTY UNDERGOING TRAINING" WHILE AT THE NAVAL AIR STATION, PENSACOLA, FLA., CONTEMPLATED A STATUS OF AVIATION CADET UNDERGOING TRAINING WHILE TRAVELING UNDER ORDERS EN ROUTE TO PENSACOLA, AS WELL AS WHILE AT PENSACOLA.

ANSWERING THE QUESTIONS SPECIFICALLY, AVIATION CADETS CREATED UNDER THE ACT OF APRIL 15, 1935, 49 STAT. 156-157, ARE ENTITLED TO PAY WHILE TRAVELING TO OR FROM ACTIVE DUTY "NOT UNDERGOING TRAINING" AT THE RATE PRESCRIBED IN SECTION 2 OF THE ACT FOR SUCH DUTY AND ARE ENTITLED TO PAY AS AVIATION CADETS UNDERGOING TRAINING WHILE TRAVELING TO SUCH DUTY AT PENSACOLA, BUT AS SUCH DUTY IS LIMITED BY REGULATIONS TO DUTY WHILE AT THE NAVAL AIR STATION, PENSACOLA, FLA., THEY ARE NOT ENTITLED TO PAY WHILE TRAVELING FROM ACTIVE DUTY FOR TRAINING TO THEIR HOMES.