B-101546, NOVEMBER 28, 1951, 31 COMP. GEN. 193

B-101546, NOVEMBER 28, 1951, 31 COMP. GEN. 193

PAY - DRILL - NATIONAL GUARD - WAIVER OF MAXIMUM DRILL LIMITATION INASMUCH AS A STATUTORY REGULATION MADE PURSUANT TO, OR IN EXECUTION OF, A STATUTE CANNOT BE CHANGED BY A WAIVER OR EXCEPTION THERETO, THE CHIEF, NATIONAL GUARD BUREAU, IS WITHOUT AUTHORITY TO AUTHORIZE DRILLS TO BE HELD BY A PARTICULAR UNIT OF THE NATIONAL GUARD IN EXCESS OF THE MAXIMUM NUMBER OF DRILLS PRESCRIBED IN NATIONAL GUARD REGULATIONS ISSUED BY DIRECTION OF THE SECRETARY OF WAR PURSUANT TO THE AUTHORITY CONTAINED IN THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED.

COMPTROLLER GENERAL WARREN TO COLONEL J. E. ALLEN, DEPARTMENT OF THE ARMY, NOVEMBER 28, 1951:

BY FIRST INDORSEMENT DATED FEBRUARY 21, 1951, THE ACTING CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 19, 1951, WITH ENCLOSURES, REQUESTING REVIEW OF THE AUDIT ACTION IN WITHHOLDING CREDIT IN THE ACCOUNTS OF COLONEL W. C. STEIGER, F. C., FOR AMOUNTS PAID TO OFFICERS AND ENLISTED MEN OF COMPANY A, 110TH INFANTRY, PENNSYLVANIA NATIONAL GUARD, ON VOUCHERS NOS. 45599 AND 122852, JUNE 1948 AND MAY 1949 ACCOUNTS, RESPECTIVELY, OF COLONEL STEIGER.

IT APPEARS FROM THE RECORDS ON FILE IN THIS OFFICE THAT THE SAID ORGANIZATION WAS FEDERALLY RECOGNIZED ON DECEMBER 15, 1947, AND THAT FROM THAT DATE TO FEBRUARY 29, 1948, IT HELD 20 ASSEMBLIES FOR DRILL PURPOSES; 8 EACH IN MARCH, APRIL AND MAY, AND 4 IN JUNE, 1948, A TOTAL AND THAT NOTICES OF EXCEPTION WERE STATED AGAINST THE AFORESAID VOUCHERS COVERING PAYMENTS FOR ATTENDANCE AT ASSEMBLIES FOR DRILL IN EXCESS OF 29, THE MAXIMUM NUMBER AUTHORIZED FOR THE ORGANIZATION FOR THE FISCAL YEAR ENDING JUNE 30, 1948--- ONE DRILL EACH WEEK THE COMPANY HELD FEDERAL RECOGNITION- -- AS PROVIDED IN NATIONAL GUARD BUREAU LETTER WDSNG 240.9, GENERAL, DATED JULY 11, 1947. IN REPLY TO THE NOTICES OF EXCEPTION, YOU SUBMITTED ON MAY 5, 1950, A COPY OF 14TH INDORSEMENT DATED MARCH 2, 1949, OF THE CHIEF, NATIONAL GUARD BUREAU, WHICH PURPORTED TO WAIVE THE PROVISIONS OF THE SAID LETTER OF JULY 11, 1947, SO AS TO AUTHORIZE 48 ASSEMBLIES FOR ARMORY DRILL PURPOSES FOR THE ORGANIZATION DURING THE PERIOD FROM DECEMBER 15, 1947 TO JUNE 30, 1948. THE NOTICES OF EXCEPTION WERE RESTATED ON SEPTEMBER 28, 1950, WITH THE INFORMATION THAT THE PROVISIONS OF THE NATIONAL GUARD BUREAU LETTER OF JULY 11, 1947, HAVE THE FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED IN INDIVIDUAL CASES, CITING 22 COMP. GEN. 895. IN YOUR LETTER OF JANUARY 19, 1951, YOU STATE THAT THE RULE SET FORTH IN THAT DECISION HAD REFERENCE TO STATUTORY REGULATIONS, THAT IS," EXECUTIVE ORDER OF THE PRESIDENT SPECIFICALLY AUTHORIZED TO BE PROMULGATED BY AND IN ACCORDANCE WITH AN ACT OF CONGRESS," WHEREAS THE SAID LETTER OF JULY 11, 1947, OF THE CHIEF, NATIONAL GUARD BUREAU,"IS IN EFFECT AN ADMINISTRATIVE REGULATION WHICH MAY BE AMENDED, OR TO WHICH EXCEPTIONS MAY BE MADE IN INDIVIDUAL CASES, AND NOT THEREFORE WITHIN THE RULE OF 22 COMP. GEN. 895, AND CASES CITED THEREIN, BUT WITHIN THE PRINCIPLE ANNOUNCED IN 21 COMP. GEN. 550 (AT PAGE 555).'

SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C., SUPP. III, 62, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY SHALL PRESCRIBE, EACH COMPANY * * * IN THE NATIONAL GUARD SHALL ASSEMBLE FOR DRILL AND INSTRUCTION * * * NOT LESS THAN FORTY-EIGHT TIMES EACH YEAR * * * UNLESS SUCH COMPANY * * * SHALL HAVE BEEN EXCUSED FROM PARTICIPATION IN ANY PART THEREOF BY THE SECRETARY OF THE ARMY * * *

PRIOR TO ITS AMENDMENT BY SECTION 5 (B) OF THE ACT OF MARCH 25, 1948, 62 STAT. 91, SECTION 109 OF THE NATIONAL DEFENSE ACT AS "REPEALED AND REENACTED" BY SECTION 3 OF THE ACT OF OCTOBER 14, 1940, 54 STAT. 1136, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD, EXCEPT GENERAL OFFICERS, SHALL RECEIVE COMPENSATION * * * FOR EACH REGULAR DRILL * * * AUTHORIZED BY THE SECRETARY OF WAR, NOT EXCEEDING EIGHT IN ANY ONE CALENDAR MONTH AND NOT EXCEEDING SIXTY IN ANY ONE FISCAL YEAR, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR THE ENTIRE PERIOD * * *.

SECTION 109 OF THE NATIONAL DEFENSE ACT AS PRESENTLY AMENDED, 32 U.S.C., SUPP. III, 143, PROVIDES:

UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES MAY RECEIVE COMPENSATION AS PROVIDED IN SECTION 301 OF TITLE 37 (SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949) FOR ATTENDING REGULAR PERIODS OF INSTRUCTION, OR PERIODS OF APPROPRIATE DUTY, DULY PRESCRIBED UNDER THE AUTHORITY OF THE SECRETARY OF THE ARMY, INCLUDING DRILLS PERFORMED ON SUNDAYS AND HOLIDAYS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE ARMY.

SECTION 110 OF THE NATIONAL DEFENSE ACT, AS AMENDED, PRIOR TO ITS AMENDMENT BY SECTION 5 (C) OF THE ACT OF MARCH 25, 1948, 62 STAT. 91, SUPRA, PROVIDED THE SAME MAXIMUM LIMITATIONS ON DRILLS WITH RESPECT TO ENLISTED MEN AS WAS PROVIDED BY SECTION 109, SUPRA, PRIOR TO MARCH 25, 1948, FOR OFFICERS AND WARRANT OFFICERS.

PARAGRAPH 11, NATIONAL GUARD REGULATIONS NO. 45, DATED NOVEMBER 30, 1946, PROMULGATED BY ORDER OF THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN SECTION 92 OF THE SAID NATIONAL DEFENSE ACT, SUPRA, PROVIDES:

MAXIMUM LIMITATIONS.--- NO MAXIMUM NUMBER OF ASSEMBLIES FOR DRILL OR INSTRUCTION IS PRESCRIBED, BUT NO PAY CAN ACCRUE FOR ASSEMBLIES IN EXCESS OF THOSE AUTHORIZED FROM TIME TO TIME BY THE SECRETARY OF WAR. ( ITALICS SUPPLIED.)

PURSUANT TO THE ABOVE AUTHORITY AND BY DIRECTION OF THE SECRETARY OF WAR, THE CHIEF, NATIONAL GUARD BUREAU, IN LETTER WDSNG 240.9, GENERAL, DATED JULY 11, 1947, ISSUED INSTRUCTIONS REGARDING THE NUMBER OF DRILLS AUTHORIZED FOR THE FISCAL YEAR 1948, WHICH INSTRUCTIONS ARE, IN PERTINENT PART, AS FOLLOWS:

2. THE SECRETARY OF WAR DIRECTS THAT YOU BE INFORMED THAT THE MEMBER OF PRESCRIBED ASSEMBLIES FOR DRILL, INSTRUCTION OR OTHER AUTHORIZED TRAINING FOR WHICH FEDERAL PAY IS AUTHORIZED FOR THE NATIONAL GUARD DURING FISCAL YEAR 1948 WILL BE AS FOLLOWS:

A. DUE TO BUDGETARY LIMITATIONS, EACH COMPANY IN THE NATIONAL GUARD WILL ASSEMBLE FOR DRILL AND INSTRUCTION, INCLUDING INDOOR TARGET PRACTICE (FOR PAY PURPOSES) ONE (1) TIME FOR EACH WEEK THE UNIT HAS HELD FEDERAL RECOGNITION STATUS DURING THE FISCAL YEAR 1948 (1 JULY 1947-30 JUNE 1948) EXCEPT THAT NO UNIT MAY CONDUCT ASSEMBLIES (FOR PAY PURPOSES) MORE THAN 48 TIMES DURING THE FISCAL YEAR. THE FOLLOWING EXAMPLES ARE CITED.

(1) A UNIT HOLDING FEDERAL RECOGNITION STATUS FOR 48 TO 52 WEEKS DURING FISCAL YEAR 1948 WILL CONDUCT 48 ASSEMBLIES DURING FISCAL YEAR 1948.

(2) A UNIT HOLDING FEDERAL RECOGNITION STATUS 47 WEEKS DURING FISCAL YEAR 1948 WILL CONDUCT 47 ASSEMBLIES DURING FISCAL YEAR 1948.

(3) A UNIT HOLDING FEDERAL RECOGNITION STATUS ONE (1) WEEK DURING FISCAL YEAR 1948 WILL CONDUCT ONE (1) ASSEMBLY DURING FISCAL YEAR 1948.

3. IT WILL BE NOTED THAT WITHIN THE ABOVE LIMITATIONS, THE NUMBER OF ASSEMBLIES WHICH WILL BE HELD DURING A WEEK OR A MONTH IS LEFT TO THE DISCRETION OF THE STATE ADJUTANTS GENERAL.

THE DECISION IN 21 COMP. GEN. 550, 555, APPARENTLY HAS BEEN CITED BY YOU AS JUSTIFICATION FOR CONSIDERING THE ABOVE-MENTIONED NATIONAL GUARD BUREAU LETTER OF JULY 11, 1947, AS AN ,ADMINISTRATIVE REGULATION" WHICH MAY BE WAIVED IN INDIVIDUAL CASES. THAT DECISION INVOLVED A CIVIL SERVICE COMMISSION CIRCULAR WHICH WAS ISSUED UNDER THE GENERAL AUTHORITY OF THE COMMISSION TO PRESCRIBE RULES OF PROCEDURE FOR REPORTING CHANGES AND TRANSFERS OF PERSONNEL. SINCE SUCH CIRCULAR WAS NOT ISSUED UNDER EXPRESS AUTHORITY OF A STATUTE OR EXECUTIVE ORDER, IT WAS NOT CONSIDERED AS HAVING THE FORCE AND EFFECT OF LAW OR AS BEING IN THE NATURE OF A STATUTORY REGULATION. IN THE INSTANT CASE THE NATIONAL GUARD BUREAU LETTER OF JULY 11, 1947, WAS ISSUED, BY DIRECTION OF THE SECRETARY OF WAR, TO SUPPLEMENT THE ABOVE-QUOTED STATUTORY REGULATION WITH RESPECT TO THE MAXIMUM NUMBER OF DRILLS TO BE HELD BY EACH UNIT OF THE NATIONAL GUARD. HENCE, IT MUST BE CONCLUDED THAT THE SAID NATIONAL GUARD BUREAU LETTER IS IN THE NATURE OF A STATUTORY REGULATION, HAVING THE FORCE AND EFFECT OF LAW, AND THAT THE CHIEF, NATIONAL GUARD BUREAU, WAS WITHOUT AUTHORITY TO WAIVE ANY OF THE PROVISIONS THEREOF IN THE CASE OF A PARTICULAR INDIVIDUAL OR A PARTICULAR COMPANY OR OTHER UNIT. SUCH CONCLUSION IS REQUIRED UNDER THE ESTABLISHED RULE THAT A REGULATION MADE PURSUANT TO, OR IN EXECUTION OF, A STATUTE CANNOT BE CHANGED BY A WAIVER OR EXCEPTION THERETO, BUT ONLY BY AN EFFECTIVE MODIFICATION IN THE OLD REGULATION. 21 COMP. DEC. 482; 22 COMP. GEN. 895, AND CASES CITED THEREIN. CF. DECISION OF OCTOBER 21, 1941, B 17265, TO THE SECRETARY OF THE NAVY, HOLDING WITH RESPECT TO NAVAL RESERVE DRILLS THAT A PROVISION IN THE BUREAU OF NAVIGATION MANUAL LIMITING PERIODS OF "EQUIVALENT INSTRUCTIONS" TO ONE A WEEK, THREE A MONTH, AND SIXTEEN A YEAR, COULD NOT BE WAIVED.

ACCORDINGLY, THE ACTION OF THE AUDIT DIVISION IN WITHHOLDING CREDIT FOR THE AMOUNTS PAID ON THE ABOVE-CITED VOUCHERS FOR DRILLS IN EXCESS OF 29 DURING THE PERIOD DECEMBER 15, 1947, TO JUNE 30, 1948, MUST BE SUSTAINED.