B-11653, AUGUST 23, 1940, 20 COMP. GEN. 111

B-11653, AUGUST 23, 1940, 20 COMP. GEN. 111

CLOTHING ALLOWANCE - FLEET MARINE CORPS RESERVE TRANSFERRED MEMBERS OF THE FLEET MARINE CORPS RESERVE WHO ARE RECALLED TO ACTIVE DUTY IN CONNECTION WITH THE EXISTING NATIONAL EMERGENCY MAY BE PAID THE UNDRAWN CLOTHING ALLOWANCE ACCRUED WHILE ON SUCH ACTIVE DUTY UPON THEIR RELIEF THEREFROM. 24 COMP. DEC. 263; 25 ID. 493; DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 23, 1940:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1940, REQUESTING DECISION UPON THE QUESTION PROPOUNDED IN LETTER FROM THE PAYMASTERS, HEADQUARTERS, UNITED STATES MARINE CORPS, DATED JULY 30, 1940, AS FOLLOWS:

1. A LARGE NUMBER OF MEMBERS OF CLASS I, U.S. MARINE CORPS RESERVE (F) (16- AND 20-YEAR,) HAVE BEEN ASSIGNED TO ACTIVE DUTY IN CONNECTION WITH THE EXISTING LIMITED NATIONAL EMERGENCY.

2. DECISION IS REQUESTED IF THE SAVED OR UNDRAWN CLOTHING ALLOWANCE ACCRUED WHILE ON ACTIVE DUTY MAY BE PAID TO SUCH RESERVIST WHEN RELEASED FROM ACTIVE DUTY TO ASSUME AN INACTIVE STATUS IN THE RESERVE.

IT IS ASSUMED THAT THE REFERENCE IS TO MEN WHO WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1175, 1178, OR UNDER PRIOR LAWS (SEE SEC. 1 OF THE ACT OF JUNE 25, 1938) PROVIDING FOR TRANSFERS OF ENLISTED MEN OF THE REGULAR NAVY AND REGULAR MARINE CORPS TO THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE AFTER 16 OR MORE YEARS OF SERVICE IN THE REGULAR NAVY OR REGULAR MARINE CORPS. SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, PROVIDES THAT MEMBERS OF THE FLEET RESERVE SHALL BE AT ALL TIMES SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY AND SECTION 7 PROVIDES THAT:

* * * MIDSHIPMEN, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE INCLUDING THOSE * * * WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY MIDSHIPMEN, WARRANT OFFICERS, NURSES AND ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE. * * *

SECTION 2 PROVIDES FOR THE ESTABLISHMENT OF THE MARINE CORPS RESERVE UNDER THE SAME PROVISIONS IN ALL RESPECTS "/EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE MARINE CORPS)" AS CONTAINED IN THAT ACT OR MAY THEREAFTER BE ENACTED FOR THE NAVAL RESERVE, THE MARINE CORPS RESERVE TO CONSIST OF THE FLEET MARINE CORPS RESERVE, THE ORGANIZED MARINE CORPS RESERVE AND THE VOLUNTEER MARINE CORPS RESERVE "CORRESPONDING, AS NEAR AS MAY BE, TO SIMILAR CLASSES OF THE NAVAL RESERVE.' TITLE I (SECS. 1 TO 11) OF THE NAVAL RESERVE ACT RELATES GENERALLY TO THE NAVAL RESERVE. TITLE II IS ENTITLED " FLEET RESERVE.' TITLE III IS ENTITLED " PROVISIONS APPLICABLE ONLY TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE.' TITLE IV RELATES TO THE NAVAL MILITIA. TITLE II PERTAINING TO THE FLEET RESERVE MAKES NO PROVISION FOR A CLOTHING ALLOWANCE. SECTION 302 OF TITLE III MAKES PROVISION FOR CLOTHING ALLOWANCE FOR OFFICERS AND SECTION 303 PROVIDES:

IN TIME OF PEACE MIDSHIPMEN, MERCHANT MARINE CADETS, NURSES, AND ENLISTED MEN OF THE NAVAL RESERVE MAY BE ISSUED ARTICLES OF UNIFORM, BEDDING, AND EQUIPMENT IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY ENLISTED MEN OF THE NAVAL RESERVE MAY BE ISSUED SUCH ADDITIONAL ARTICLES AS ARE REQUIRED TO GIVE THEM THE SAME OUTFIT AS IS AUTHORIZED FOR ENLISTED PERSONNEL OF THE REGULAR NAVY UPON FIRST ENLISTMENT, AND MIDSHIPMEN, MERCHANT MARINE CADETS, AND NURSES SHALL BE ISSUED SUCH ADDITIONAL ARTICLES AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.

THESE PROVISIONS, IN VIEW OF THE SUBJECT OF THE TITLE, ARE NOT APPLICABLE TO THE FLEET RESERVE. TRANSFERRED MEMBERS OF THE FLEET RESERVE TRANSFERRED THERETO UNDER SECTION 203 OF THE ACT, OR THE LAWS IN EFFECT PRIOR THERETO, ARE ENTITLED TO ONE-THIRD OF THEIR BASE PAY ON TRANSFER AFTER 16 OR MORE YEARS OF SERVICE AND TO ONE-HALF OF THEIR BASE PAY WHEN TRANSFERRED AFTER 20 OR MORE YEARS OF SERVICE, PLUS THE PERMANENT ADDITIONS TO THEIR PAY, TOGETHER WITH CERTAIN OTHER INCREASES; WHEN PHYSICALLY DISABLED, OR WHEN THE TOTAL OF THEIR SERVICE BOTH IN THE REGULAR NAVY OR REGULAR MARINE CORPS AND IN THE RESERVE (TOGETHER WITH CERTAIN OTHER SERVICES THEREIN DESCRIBED) EQUALS 30 YEARS OF SERVICE THEY ARE REQUIRED TO BE RETIRED, AND AFTER 30 YEARS' SERVICE AS INDICATED IN THE ACT THEY ARE ENTITLED, IN ADDITION TO THE PAY FIXED, TO THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY OR REGULAR MARINE CORPS ARE ENTITLED WHEN RETIRED AFTER 30 YEAR'S SERVICE. WHEN TRANSFERRED MEMBERS OF THE FLEET RESERVE ARE CALLED TO ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY IT IS THE PURPOSE OF SECTION 7 OF THE ACT TO GIVE TO THEM THE SAME PAY AND ALLOWANCES A MAN OF THE SAME GRADE AND LENGTH OF SERVICE IN THE REGULAR NAVY OR REGULAR MARINE CORPS WOULD RECEIVE.

ON THE ACTIVE LIST OF THE MARINE CORPS ENLISTED MEN ARE ENTITLED UNDER SECTION 1612, REVISED STATUTES, TO THE SAME CLOTHING ALLOWANCE AS IS PROVIDED FOR ENLISTED MEN OF THE ARMY. 6 COMP. GEN. 197. SECTION 1296, REVISED STATUTES, 10 U.S.C. 831, PROVIDES THAT THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING THAT SHALL BE ISSUED ANNUALLY TO THE TROOPS OF THE UNITED STATES. SECTION 1302, REVISED STATUTES, 10 U.S.C. 874, PROVIDES:

THE MONEY VALUE OF ALL CLOTHING OVERDRAWN BY THE SOLDIER BEYOND HIS ALLOWANCE SHALL BE CHARGED AGAINST HIM EVERY SIX MONTHS ON THE PAY ROLL, OR ON HIS FINAL STATEMENTS, IF SOONER DISCHARGED, AND HE SHALL RECEIVE PAY FOR SUCH ARTICLES OF CLOTHING AS HAVE NOT BEEN ISSUED TO HIM IN ANY YEAR, OR WHICH MAY BE DUE TO HIM AT THE TIME OF HIS DISCHARGE, ACCORDING TO THE ANNUAL ESTIMATED VALUE THEREOF. THE AMOUNT DUE HIM FOR CLOTHING, WHEN HE DRAWS LESS THAN HIS ALLOWANCE, SHALL NOT BE PAID TO HIM UNTIL HIS FINAL DISCHARGE FROM THE SERVICE.

IN 24 COMP. DEC. 263 AND 25 COMP. DEC. 493 AT PAGE 497, AS TO ENROLLED MEMBERS OF THE MARINE CORPS RESERVE FORCE, IT WAS HELD THAT WHEN RELIEVED FROM ACTIVE DUTY AND NOT DISCHARGED THEY WERE NOT ENTITLED TO ANY CREDIT APPEARING IN THEIR CLOTHING ACCOUNT BECAUSE A RELIEF FROM ACTIVE DUTY WAS NOT A DISCHARGE. THESE DECISIONS HAVE NO REFERENCE TO THE CLOTHING ALLOWANCE PAYABLE TO TRANSFERRED MEMBERS OF THE FLEET MARINE CORPS RESERVE. UNDER THE PRESENT LAWS MEMBERS OF THE ORGANIZED MARINE CORPS RESERVE ARE ENTITLED TO THE BENEFIT OF THE PROVISIONS AS TO CLOTHING SPECIFICALLY MADE FOR MEMBERS OF THE ORGANIZED RESERVE IN SECTION 303. SECTION 1302, REVISED STATUTES, WAS ENACTED LONG BEFORE THERE WAS ANY PROVISION FOR RETIREMENT OF ENLISTED MEN OF THE ARMY AND THE ONLY METHOD OF SEPARATION WAS BY DISCHARGE OR DEATH. THE STATUTE SPECIFICALLY PROVIDED FOR PAYMENT UPON DISCHARGE, AND THE SECOND COMPTROLLER OF THE TREASURY, VOLUME 4, DIGEST 2D COMPT. DECISIONS, PARAGRAPH 125, HELD THAT UPON DEATH IN THE SERVICE A MAN WAS DISCHARGED FOR THE PURPOSE OF SECTION 1302, REVISED STATUTES, AND HIS ESTATE WAS ENTITLED TO CREDIT FOR THE CLOTHING SAVINGS OR UNDRAWN CLOTHING AS SHOWN BY HIS CLOTHING ACCOUNT.

AS TO THESE TRANSFERRED MEMBERS OF THE FLEET MARINE CORPS RESERVE, UPON RELIEF FROM ACTIVE DUTY DURING WAR OR NATIONAL EMERGENCY THEY ARE AS COMPLETELY SEPARATED FROM THE ACTIVE LIST AS WHEN ORIGINALLY TRANSFERRED TO THE FLEET MARINE CORPS RESERVE. THEY WILL NOT BE ENTITLED TO ADDITIONAL CLOTHING ALLOWANCES UNLESS AGAIN ORDERED TO ACTIVE DUTY; WHEN ON ACTIVE DUTY THEY ARE LIMITED TO THE AMOUNT OF CLOTHING THAT MAY BE ISSUED TO AN ENLISTED MAN OF THE REGULAR MARINE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE; ANY EXCESS ISSUE OF CLOTHING TO THEM IS CHARGEABLE TO THEM AT THE TIME AND IN THE MANNER PRESCRIBED BY THE STATUTE; AND ANY CREDIT IN THEIR FAVOR IN THE CLOTHING ACCOUNT IS APPROPRIATE FOR CONSIDERATION FOR ISSUE OF ADDITIONAL CLOTHING. NORMALLY THEY WILL NOT AGAIN BE DISCHARGED FROM THE MARINE CORPS OR FROM THE FLEET MARINE CORPS RESERVE AND TO WITHHOLD PAYMENT OF THE ACCUMULATED CLOTHING CREDIT UNTIL THEY ARE DISCHARGED--- AN EVENT THAT WILL PROBABLY NEVER ARISE--- DENIES TO THEM THE FAVORABLE PORTION OF THE STATUTE, LEAVING THEM SUBJECT TO CHARGES FOR ANY EXCESS CLOTHING DRAWN. IT IS NOW TO BE PRESUMED THAT SUCH WAS THE INTENT OF THE STATUTE. ACCORDINGLY, I HAVE TO ADVISE THAT, FOR THE PURPOSE OF SETTLEMENT OF THEIR CLOTHING ACCOUNTS, TRANSFERRED MEMBERS OF THE FLEET MARINE CORPS RESERVE UPON RELIEF FROM ACTIVE DUTY ARE TO BE REGARDED AS DISCHARGED WITHIN THE MEANING OF SECTION 1302, REVISED STATUTES.