B-17769, JULY 15, 1941, 21 COMP. GEN. 25

B-17769, JULY 15, 1941, 21 COMP. GEN. 25

QUARTERS ALLOWANCE - DEPENDENTS - EFFECT OF PAY RESTRICTION DURING FIRST FOUR MONTHS OF FIRST ENLISTMENT WHILE A NAVY ENLISTED MAN OF THE THIRD GRADE SERVING IN HIS FIRST ENLISTMENT IS ENTITLED, BY REASON OF THE RESTRICTION IN SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, TO ONLY $21 PER MONTH DURING THE FIRST FOUR MONTHS OF HIS SERVICE IN SUCH FIRST ENLISTMENT, THE RESTRICTION IS ON THE BASE PAY AND IN NO WAY AFFECTS HIS RATING NOR HIS RIGHT AS AN ENLISTED MAN OF THE THIRD GRADE TO THE QUARTERS ALLOWANCE FOR DEPENDENTS AUTHORIZED BY THE ACT OF OCTOBER 17, 1940.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COMDR. M. C. ROBERTS, U.S. NAVY, JULY 15, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 23, 1941, REQUESTING DECISION AS TO WHETHER ROBERT HAROLD RUSH, RADIOMAN, SECOND CLASS, UNITED STATES NAVY, IS ENTITLED TO MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS DURING THE FIRST 4 MONTHS OF HIS SERVICE IN HIS FIRST ENLISTMENT IN THE REGULAR NAVY WHILE HIS PAY IS RESTRICTED TO $21 PER MONTH BY SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 895. SECTION 12 (A) PROVIDES:

THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL BE AS FOLLOWS: ENLISTED MEN OF THE FIRST GRADE, $126; ENLISTED MEN OF THE SECOND GRADE, $84; ENLISTED MEN OF THE THIRD GRADE, $72; ENLISTED MEN OF THE FOURTH GRADE, $60; ENLISTED MEN OF THE FIFTH GRADE, $54; ENLISTED MEN OF THE SIXTH GRADE, $36; ENLISTED MEN OF THE SEVENTH GRADE, $30; EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21. THE PAY FOR SPECIALISTS' RATINGS, WHICH SHALL BE IN ADDITION TO MONTHLY BASE PAY, SHALL BE AS FOLLOWS: FIRST CLASS, $30; SECOND CLASS, $25; THIRD CLASS, $20; FOURTH CLASS, $15; FIFTH CLASS, $6; SIXTH CLASS, $3. ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 10 PERCENTUM OF THEIR BASE PAY AND PAY FOR SPECIALISTS' RATINGS FOR EACH FOUR YEARS OF SERVICE THEREAFTER, BUT THE TOTAL OF SUCH INCREASES SHALL NOT EXCEED 25 PERCENTUM. ENLISTED MEN OF THE NAVY SHALL BE ENTITLED TO RECEIVE AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY AND MARINE CORPS.

THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, PROVIDES:

THAT EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAVING A DEPENDENT AS DEFINED IN SECTIONS 8 AND 8A, TITLE 37, U.S.C. SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONEY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND.

EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941, PROVIDES:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME BY THE ACT OF OCTOBER 17, 1940, PUBLIC, NO. 872, 76TH CONGRESS, I HEREBY PRESCRIBE TO ENLISTED MEN OF THE FIRST, SECOND, AND THIRD GRADES OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES HAVING DEPENDENTS, FOR PERIODS DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR THEIR DEPENDENTS:

1. DEFINITIONS.--- A. THE TERM "DEPENDENT" AS USED HEREIN SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE MOTHER OF THE ENLISTED MEN, PROVIDED SHE IS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT ( U.S.C., TITLE 37, SEC. 8).

B. THE TERM "CHILDREN" AS USED IN SUBDIVISION A ABOVE, SHALL BE HELD TO INCLUDE LEGITIMATE CHILDREN, STEPCHILDREN, AND ADOPTED CHILDREN, WHERE SUCH LEGITIMATE CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE ( U.S.C., TITLE 37, SEC. 8A).

2. PAYMENTS.--- A. EFFECTIVE AS OF OCTOBER 17, 1940, EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES, OTHER THAN PHILIPPINE SCOUTS, IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WHO IS NOT ENTITLED TO A MONEY ALLOWANCE FOR QUARTERS IN A NONTRAVEL STATUS UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630 ( U.S.C., TITLE 37, SEC. 19), AND WHO HAS A DEPENDENT AS DEFINED ABOVE, SHALL BE ENTITLED TO RECEIVE FOR ANY DEPENDENT, THE MONEY ALLOWANCES FOR QUARTERS PRESCRIBED FOR ENLISTED MEN IN A NONTRAVEL STATUS BY EXECUTIVE ORDER NO. 7293, OF FEBRUARY 14, 1936, OR ANY AMENDMENTS THERETO, ISSUED UNDER SECTION 11 OF THE SAID ACT OF JUNE 10, 1922.

B. PHILIPPINE SCOUTS, UNDER THE CONDITIONS OF SUBDIVISION A ABOVE, SHALL BE ENTITLED TO RECEIVE ACTUAL EXPENSES FOR LODGING NOT TO EXCEED FIFTY CENTS A DAY.

IT IS STATED THAT ROBERT HAROLD RUSH WAS DISCHARGED FROM CLASS V-3 RESERVE ON MARCH 10, 1941, FOR THE PURPOSE OF ENLISTING IN THE REGULAR NAVY AND THAT ON THE FOLLOWING DAY HE SO ENLISTED AND WAS TAKEN UP AS A RADIOMAN, SECOND CLASS. IN DECISION DATED APRIL 2, 1941, B-15439, 20 COMP. GEN. 596, IT WAS HELD THAT AN ENLISTED MAN OF THE REGULAR NAVY WHOSE ONLY PRIOR ENLISTMENT WAS IN THE NAVAL RESERVE IS NOT IN HIS SECOND ENLISTMENT PERIOD WITHIN THE MEANING OF SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND HENCE IS ENTITLED TO ONLY $21 PER MONTH BASE PAY DURING THE FIRST 4 MONTHS OF HIS SERVICE IN THE REGULAR NAVY. HOWEVER, THIS IS A RESTRICTION AS TO BASE PAY AND IN NO WAY AFFECTS THE ENLISTED MAN'S RATING. THE RATING OF RADIOMAN, SECOND CLASS, PLACES RUSH IN THE THIRD GRADE AND AS AN ENLISTED MAN IN SUCH GRADE HE IS ENTITLED TO THE BENEFITS AUTHORIZED BY THE ACT OF OCTOBER 17, 1940, SUPRA, AND THE EXECUTIVE REGULATIONS DATED FEBRUARY 19, 1941, QUOTED ABOVE, PROVIDED, OF COURSE, THAT HE CAN ESTABLISH (1) THAT HE HAS A DEPENDENT AS DEFINED IN SECTIONS 8 AND 8A, TITLE 37, U.S. CODE; (2) THAT HE IS NOT PERSONALLY ENTITLED TO THE MONEY ALLOWANCE FOR QUARTERS IN A NONTRAVEL STATUS UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630; AND (3) THAT FOR THE PERIOD OF HIS CLAIM PUBLIC QUARTERS WERE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT.