NOVEMBER 19, 1923, 3 COMP. GEN. 316

NOVEMBER 19, 1923, 3 COMP. GEN. 316

ARMY PAY - EXTRA DUTY - GUARDS AT UNITED STATES DISCIPLINARY BARRACKS THE EXTRA-DUTY PAY TO ENLISTED MEN ASSIGNED AS GUARDS AT THE UNITED STATES DISCIPLINARY BARRACKS WAS REPEALED BY THE ACT OF JUNE 4, 1920, 41 STAT., 761, AND WAS NOT SAVED TO THEM DURING THEIR CURRENT ENLISTMENT BY THE SAVING CLAUSE IN THAT ACT. UNDER THE ACT OF JUNE 10, 1921, 42 STAT., 24, THE RESPONSIBILITY TO DETERMINE THE AVAILABILITY OF APPROPRIATIONS FOR THE PAYMENT OF CLAIMS IS UPON THIS OFFICE, AND IN SUCH CONNECTION DECISIONS OF THE COURTS ARE GIVEN MOST CAREFUL CONSIDERATION ESPECIALLY WHERE IT APPEARS THAT THE MATTER OR LEGAL PRINCIPLE INVOLVED HAS BEEN FAIRLY PRESENTED TO AND FULLY CONSIDERED BY A COURT.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 19, 1923:

JACK MULLER REQUESTED JULY 30, 1923, ALLOWANCE OF EXTRA-DUTY PAY FOR THE PERIOD FROM JULY 1, 1920, TO JUNE 30, 1921, WHEN HE WAS ENGAGED IN THE PERFORMANCE OF DUTY AS A GUARD OVER GENERAL PRISONERS AT THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANS., WHILE HOLDING THE GRADES OF PRIVATE, CORPORAL, AND SERGEANT. THE CLAIM IS BASED ON A CONTENTION THAT THE ACT OF JUNE 4, 1920, 41 STAT., 761, SAVED TO HIM EXTRA-DUTY PAY AS A GUARD, A DECISION OF THE COURT OF CLAIMS IN MANNING V. UNITED STATES, 58 CT.CLS., 195, DECIDED APRIL 2, 1923, SO HOLDING. AS THIS IS ONE OF A LARGE NUMBER OF CLAIMS INVOLVING SIMILAR PRINCIPLES THE MATTER WILL BE CONSIDERED AT SOME LENGTH.

THE ACT OF JUNE 12, 1906, 34 STAT., 242, AUTHORIZED THE SECRETARY OF WAR TO DETACH FROM THE LINE OF THE ARMY SUCH NUMBER OF ENLISTED MEN AS MIGHT BE NECESSARY FOR MILITARY PRISON GUARDS AND PROVIDED THAT OF THE MEN SO DETACHED "ONE SHALL HAVE THE RANK, PAY, AND AND ALLOWANCES OF A BATTALION OR SQUADRON SERGEANT MAJOR, * * * AND FOR EACH * * * PRISON COMPANY ONE SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF A SERGEANT, AND SIX THE RANK, PAY, AND ALLOWANCES OF CORPORAL OF THE ARM OF THE SERVICE TO WHICH THEY RESPECTIVELY BELONG.' THE ARMY APPROPRIATION ACTS OF MARCH 2, 1907, 34 STAT., 1167, AND OF MAY 11, 1908, 35 STAT., 118, PROVIDED FUNDS FOR THE "PAYMENT OF EXTRA PAY * * * FOR NONCOMMISSIONED OFFICERS OF THE UNITED STATES PRISON GUARD.' THE ARMY APPROPRIATION ACTS FOR THE FISCAL YEARS WHICH BEGAN JULY 1, 1909, AND ENDED JULY 30, 1915, OMITTED THE PHRASE "NONCOMMISSIONED OFFICERS" AND PROVIDED FUNDS FOR "EXTRA PAY * * * FOR UNITED STATES MILITARY PRISON GUARD.' THE REASON FOR THE OMISSION IS STATED IN SCHWANZ V. UNITED STATES, 50 CT.CLS., 277, AS FOLLOWS:

THE APPROPRIATION ACTS MENTIONED MADE NO PROVISION FOR EXTRA-DUTY PAY TO THE PRIVATES WHO WERE MEMBERS OF SAID MILITARY PRISON GUARD, AND THIS FACT WAS CALLED TO THE ATTENTION OF THE MILITARY COMMITTEES OF CONGRESS BY THE WAR DEPARTMENT AND A RECOMMENDATION WAS MADE THAT PROVISION BE MADE FOR THE PAYMENT OF EXTRA-DUTY PAY TO BOTH NONCOMMISSIONED OFFICERS AND PRIVATES. IN RESPONSE TO THIS RECOMMENDATION CONGRESS * * * OMITTED THE ABOVE PROVISION FOR EXTRA DUTY PAY FOR NONCOMMISSIONED OFFICERS AND PUT IN ITS PLACE THE FOLLOWING PROVISION: "FOR PRISON OVERSEERS AT POSTS DESIGNATED BY THE WAR DEPARTMENT FOR THE CONFINEMENT OF GENERAL PRISONERS, AND FOR THE UNITED STATES MILITARY GUARD.'

THE ACT OF MARCH 4, 1915, 38 STAT., 1074, 1084, CHANGED THE NAME OF THE UNITED STATES MILITARY PRISON AT FORT LEAVENWORTH TO THE UNITED STATES DISCIPLINARY BARRACKS, AND CHANGED THAT OF THE GUARD TO THE UNITED STATES DISCIPLINARY BARRACKS GUARD, AND PROVIDED THAT "SAID GUARDS AND ALSO ENLISTED MEN ASSIGNED TO DUTY AS NONCOMMISSIONED OFFICERS OF DISCIPLINARY ORGANIZATIONS SHALL BE DETACHED FROM THE LINE OF THE ARMY, OR ENLISTED FOR THAT PURPOSE, WITH A FURTHER PROVISION THAT ,AT LEAST ONE OF SAID GUARDS SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF A BATTALION SERGEANT MAJOR.' THE ACT OF MAY 12, 1917, 40 STAT., 52, PROVIDED:

THAT HEREAFTER THE EXTRA-DUTY PAY TO THE UNITED STATES DISCIPLINARY BARRACKS GUARD SHALL BE AT THE FOLLOWING RATES PER DAY: BATTALION SERGEANT MAJOR, FIRST SERGEANTS, MESS SERGEANTS, SUPPLY SERGEANTS, AND SERGEANTS, 35 CENTS; CORPORALS, 30 CENTS; COOKS AND MECHANICS, PRIVATES FIRST CLASS, PRIVATES AND BUGLERS, 20 CENTS; * * *.

WHETHER MEMBERSHIP IN THE DISCIPLINARY BARRACKS GUARD WITHOUT MORE ENTITLED TO ENLISTED MEN PRIOR TO JUNE 30, 1920, TO EXTRA DUTY PAY IS QUESTIONABLE. THE UNITED STATES SUPREME COURT IN ROSS V. UNITED STATES, 239 U.S., 531, IN DENYING THE CLAIM OF AN ENLISTED MAN OF THE LINE, TRANSFERRED TO THE HOSPITAL CORPS, FOR EXTRA DUTY PAY BY REASON OF PERFORMANCE OF DUTY AS A TELEPHONE OPERATOR SAID:

THE TERM IS OBVIOUSLY A RELATIVE ONE, AND IT CAN NOT BE DETERMINED THAT THE ENLISTED MAN WAS PERFORMING EXTRA DUTY WITHOUT A COMPLETE UNDERSTANDING OF THE SCOPE OF THE DUTIES WHICH HE MIGHT PROPERLY BE EXPECTED TO PERFORM IN ACCORDANCE WITH HIS ENLISTMENT WITHOUT RECEIVING EXTRA PAY. WHAT MIGHT BE EXTRA DUTY IN A CASE OF A MAN OF THE LINE MIGHT NOT BE EXTRA DUTY IN THE CASE OF A MAN IN THE STAFF DEPARTMENTS. THE CLAIMANT HAD BEEN TRANSFERRED TO THE HOSPITAL CORPS; BY THAT TRANSFER HE BECAME A MEMBER OF THAT CORPS AND BOUND TO PERFORM WITHOUT EXTRA PAY ANY OF THE DUTIES WHICH PERTAINED TO THAT SERVICE.

ASSUMING ARGUENDO THAT MEMBERSHIP IN THE DISCIPLINARY GUARD AND PERFORMANCE OF THE ORDINARY DUTIES OF THE GUARD IPSO FACTO ENTITLED THE ENLISTED MAN TO EXTRA-DUTY PAY, THERE IS THE FURTHER QUESTION WHETHER THE EXTRA-DUTY PAY WAS SAVED TO THE ENLISTED MAN DURING HIS CURRENT ENLISTMENT AND WHILE HE HOLDS HIS PRESENT GRADE.

IT IS TO BE BORNE IN MIND, IN ANY CONSIDERATION OF THIS QUESTION, THAT ENLISTED MEN OF THE DISCIPLINARY BARRACKS WERE ENTITLED UNDER THE ACTS OF MAY 11, 1908, 35 STAT., 109, AND OF JUNE 3, 1916, 39 STAT., 186, TO THE PAY OF THEIR PARTICULAR GRADES, WHICH WAS TEMPORARILY INCREASED BY THE ACT OF MAY 18, 1917, 40 STAT., 82, AND MADE PERMANENT BY THE ACT OF JULY 11, 1919, 41 STAT., 110. THEY WERE ALSO ENTITLED UNDER THE ACTS OF MAY 11, 1908, 35 STAT., 109, AND OF JUNE 3, 1916, 39 STAT., 186, TO CONTINUOUS SERVICE PAY. THE ACT OF JUNE 4, 1920, 41 STAT., 761, IN SECTION 4B, REQUIRED THE PLACING OF ALL ENLISTED MEN OF THE ARMY IN ONE OF SEVEN GRADES THEREBY ESTABLISHED. THE BASE PAY OF EACH OF THESE GRADES WAS FIXED WITH SUBSTITUTION OF LONGEVITY FOR CONTINUOUS SERVICE PAY, AND THERE WERE ESTABLISHED CERTAIN SPECIALISTS RATINGS FOR THE MEN IN THE LOWEST TWO GRADES. THE PERCENTAGE OF THE ENLISTED PERSONNEL THAT COULD BE PLACED IN THE HIGHER GRADES WAS ALSO FIXED. THE SECTION THEN PROVIDED THAT---

ALL LAWS AND PARTS OF LAWS PROVIDING FOR EXTRA DUTY PAY FOR ENLISTED MEN ARE HEREBY REPEALED, TO TAKE EFFECT JULY 1, 1920: PROVIDED, THAT NOTHING IN THIS SECTION SHALL OPERATE TO REDUCE THE PAY WHICH ANY ENLISTED MAN IS NOW RECEIVING, DURING HIS CURRENT ENLISTMENT, AND WHILE HE HOLDS HIS PRESENT GRADE, * * *

AS TO THE REAL AND SEEMINGLY CLEAR PURPOSE OF THE SAVING CLAUSE IT DOES NOT APPEAR TO HAVE BEEN BROUGHT IMMEDIATELY TO THE ATTENTION OF THE COURT OF CLAIMS THAT BY THE SECTION IN WHICH THE SAVING CLAUSE APPEARS, SECTION 4B, THE APPROXIMATELY 200 DIFFERENT CLASSIFICATIONS OF ENLISTED MEN IN THE ARMY WITH 12 DISTINCT PAY GRADES (AS TO WHICH SEE 26 COMP. DEC., 835 TO 839, AND 2 COMP. GEN. 9), WERE REDUCED TO 7 CLASSIFICATIONS AND 7 PAY GRADES. THIS SEEMS EVIDENT FROM THE FACT THAT THE COURT CONFINED ITS DISCUSSION AND CONSIDERATION OF THE OFFICE OF THE SAVING CLAUSE TO THE SINGLE AND LAST SENTENCE OF THE SECTION, WHICH CLAUSE REPEALED THE EXTRA DUTY PAY, RATHER THAN TO THE SECTION AS A WHOLE, WHICH LEAD IT TO CONSTRUE THE WORD "PAY" IN THE SAVING CLAUSE TO MEAN "EXTRA DUTY PAY" AND THUS TO MAKE THE CLAUSE READ: "THAT NOTHING IN THIS SECTION SHALL OPERATE TO REDUCE THE EXTRA DUTY PAY WHICH ANY ENLISTED MAN IS NOW RECEIVING, DURING HIS CURRENT ENLISTMENT AND WHILE HE HOLDS HIS PRESENT GRADE," ETC. IN EFFECT, THE COURT INTERPOLATED THE TERM ,EXTRA DUTY" BEFORE THE WORD "PAY" IN SAID SAVING CLAUSE.

IT SEEMS CLEAR, HOWEVER, THAT THE REAL PURPOSE OF THE SAVING CLAUSE WAS TO SAVE TO THE ENLISTED MAN THE PAY HE WAS RECEIVING ON THE DATE OF THE ENACTMENT, JUNE 4, 1920, AND WHICH MIGHT OTHERWISE BE CHANGED BY HIS BEING PLACED IN ONE OF THE SEVEN GRADES WITH ITS NEW AND POSSIBLY LOWER RATE OF PAY IN VIEW OF THE LIMITATION UPON THE NUMBER THAT COULD BE PLACED IN THE HIGHER GRADES; THAT IS, A SERGEANT UNDER THE OLD ORGANIZATION MIGHT BE PLACED IN THE LOWEST GRADE OF THE NEW, AS MANY OF THEM WERE, AND THE PURPOSE OF THE SAVING CLAUSE WAS, NOTWITHSTANDING, TO CONTINUE THE OLD AND HIGHER RATE OF PAY UNTIL THE END OF HIS CURRENT ENLISTMENT AND WHILE HE CONTINUED TO HOLD HIS ,PRESENT GRADE.' IF THIS CONSTRUCTION NEEDED SUPPORT IT IS FOUND IN THE SUBSEQUENT APPROPRIATION ACTS WHEREIN NO FUNDS WERE PROVIDED FOR EXTRA DUTY OF THE MILITARY PRISON GUARD AND WHICH WOULD HAVE BEEN NECESSARY UNTIL THE MEN HAD SERVED OUT THEIR ENLISTMENTS OR HAD THEIR GRADES CHANGED, IF THE PURPOSE OF THE SAVING CLAUSE WAS TO SAVE THE EXTRA DUTY PAY.

UNDER THE ACT OF JUNE 10, 1921, 42 STAT., 24, THE RESPONSIBILITY TO DETERMINE THE AVAILABILITY OF APPROPRIATIONS FOR THE PAYMENT OF CLAIMS IS UPON THIS OFFICE, AND IN SUCH CONNECTION DECISIONS OF THE COURTS ARE GIVEN MOST CAREFUL CONSIDERATION ESPECIALLY WHERE IT APPEARS THAT THE MATTER OR LEGAL PRINCIPLE INVOLVED HAS BEEN FAIRLY PRESENTED TO AND FULLY CONSIDERED BY A COURT. BUT SEE 6 LAWRENCE COMP. DEC., 233.