B-27270, NOVEMBER 5, 1942, 22 COMP. GEN. 437

B-27270, NOVEMBER 5, 1942, 22 COMP. GEN. 437

PAY - ADDITIONAL - FOREIGN DUTY - ARMY OFFICER'S RIGHT AS AFFECTED BY TEMPORARY NATURE OF DUTIES AN ARMY OFFICER ON TEMPORARY DUTY IN CANADA, WHICH DUTY IS NOT MERELY INCIDENT TO OR IN CONNECTION WITH A PARAMOUNT OR PRIMARY DUTY IN THE UNITED STATES, IS ENTITLED TO THE 10 PERCENT INCREASE IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR COMMISSIONED OFFICERS FOR ANY PERIOD OF SERVICE WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJOR A. J. FEDALEI, U.S. ARMY, NOVEMBER 5, 1942:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF JULY 3, 1942, YOUR LETTER OF JUNE 11, 1942, AS OLLOWS:

1. THERE IS ENCLOSED VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL EDMUND M. GREGORIE, Q.M.C., IN THE AMOUNT OF $28.19, REPRESENTING FOREIGN PAY AT THE RATE OF 10 PERCENTUM OF THE BASE PAY FROM THE PERIOD FROM MAY 5, 1942, TO JUNE 3, 1942, INCLUSIVE, FOR ADVANCE DECISION AS TO WHETHER OR NOT PAYMENT MAY BE MADE.

2. SECTION 18 OF THE ACT OF MARCH 7, 1942, PUBLIC LAW NO. 490, PROVIDES IN PART AS FOLLOWS:

"* * * THE BASE PAY OF ANY COMMISSIONED OFFICER IN SUCH FORCES SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES AS NOW AUTHORIZED: * * *" ( ITALICS SUPPLIED.)

3. COLONEL GREGORIE ADVISES THAT HE HAS BEEN PAID MILEAGE FOR THE TRAVEL PERFORMED IN THE UNITED STATES AND PER DIEM IN LIEU OF SUBSISTENCE AT THE RATE OF $5.00 FOR THE TIME SPENT IN CANADA BY COLONEL WILLIAM M. DIXON, F.D., PURSUANT TO AUTHORITY CONTAINED IN PARAGRAPH 1, SPECIAL ORDERS 1, HEADQUARTERS, CANADIAN - AMERICAN MILITARY BOARD, WASHINGTON, D.C., DATED MAY 1, 1942.

4. DECISION B-25847, DATED MAY 25, 1942, FROM YOUR OFFICE STATES IN PART AS FOLLOWS:

"* * * ON THE ASSUMPTION THAT THE PERSONS REFERRED TO ARE, AS STATED IN THE QUESTION, ASSIGNED TO DUTY ON BOARD ARMY MINE PLANTERS, HARBOR BOATS OR SUPPLY SHIPS AND NOT ORDERED THEREON FOR TRAVEL INCIDENT TO "DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" THEY WOULD NOT BE ENTITLED TO THE INCREASES FOR FOREIGN SERVICE, MERE TRAVEL BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT AN ASSIGNMENT TO DUTY THEREAT NOT CONSTITUTING FOREIGN SERVICE. * * *" AND

" * * * IN 23 COMP. DEC. 82, IT WAS HELD, QUOTING FROM THE SYLLABUS:

" "OFFICERS AND ENLISTED MEN OF THE ARMY REGULARLY STATIONED IN THE CANAL ZONE ARE NOT ENTITLED TO FOREIGN-SERVICE PAY FOR DUTY OCCASIONALLY PERFORMED BY THEM IN THE REPUBLIC OF PANAMA WHEN SUCH DUTY, SUCH AS MANEUVER OPERATIONS, RECONNAISSANCE, ETC., IS MERELY INCIDENTAL TO THEIR REGULAR DUTY IN THE CANAL ZONE.'"

"IN THE COURSE OF THE DECISION, IT WAS STATED AT PAGE 83:

" "IN THE DECISION OF THIS OFFICE OF NOVEMBER 20, 1913 (20 COMP. DEC. 333, 335) IT WAS SAID, IN EFFECT, THAT ADDITIONAL COMPENSATION FOR FOREIGN SERVICE IS PROVIDED NOT BECAUSE OF ANY ASSUMED DIFFERENCE IN THE CHARACTER OF THE SERVICE TO BE PERFORMED, BUT BECAUSE THE FOREIGN SERVICE ENTAILS THE MEETING OF DIFFERENT LIVING CONDITIONS. IT HAS BEEN HELD ALSO THAT FOREIGN-SERVICE PAY IS NOT PAYABLE FOR DUTY IN A FOREIGN COUNTRY WHERE SUCH DUTY IS OF A TEMPORARY CHARACTER AND INCIDENT TO ANOTHER ASSIGNMENT (73 MS COMP. DEC. 87, APRIL 7, 1915).'"

5. WHILE THE ACT OF MARCH 7, 1942, STATES THAT THE BASE PAY SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF DUTY AT ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES; HOWEVER, IN VIEW OF THE STATEMENTS MADE IN DECISION B-25847, DATED MAY 25, 1942, REFERRED TO ABOVE AND THE FURTHER FACT THAT SAID DECISION DOES NOT APPEAR TO COVER AN IDENTICALLY ANALOGOUS CASE, THERE IS DOUBT IN THE MIND OF THE UNDERSIGNED DISBURSING OFFICER AS TO WHETHER OR NOT PAYMENT MAY BE MADE OF THE AMOUNT CLAIMED ON THIS VOUCHER.

BY ORDERS OF THE SECRETARY OF WAR, DATED APRIL 24, 1942, A BOARD OF OFFICERS WAS CONSTITUTED AS THEREIN SPECIFIED TO PROCEED AT THE APPROPRIATE TIME TO CANADA AS A MISSION FOR THE PURPOSE OF EFFECTING THE TRANSFER OF UNITED STATES CITIZENS THEN IN THE CANADIAN ARMED FORCES TO THE ARMED FORCES OF THE UNITED STATES. THE BOARD, WITH SUCH AUTHORIZED COMMISSIONED, ENLISTED AND CIVILIAN PERSONNEL AS MAY BE ATTACHED THERETO, WERE DIRECTED TO PROCEED ON TEMPORARY DUTY FROM WASHINGTON, D.C., TO HALIFAX, N.S., VANCOUVER, B.C., AND TO SUCH INTERMEDIATE POINTS IN CANADA AS MAY BE NECESSARY TO INTERVIEW ELIGIBLE APPLICANTS, AND TO RETURN TO WASHINGTON, D.C. UPON COMPLETION OF THEIR TEMPORARY DUTY THE MEMBERS OF THE BOARD AND ATTACHED PERSONNEL WERE DIRECTED TO RETURN TO THEIR PROPER STATION.

BY SPECIAL ORDERS NO. 1, DATED HEADQUARTERS, CANADIAN-1AMERICAN MILITARY BOARD, WASHINGTON, .C., MAY 1, 1942, LIEUTENANT COLONEL EDMUND M. GREGORIE, AND OTHER OFFICERS AND THE CIVILIAN EMPLOYEES THEREIN NAMED, HAVING BEEN ATTACHED TO THE BOARD, WERE ORDERED TO ACCOMPANY SAID BOARD FROM WASHINGTON, D.C., TO HALIFAX, N.S., VANCOUVER, B.C., AND RETURN TO WASHINGTON, D.C. IN LIEU OF SUBSISTENCE A FLAT PER DIEM OF $5 WAS AUTHORIZED FOR OFFICERS FOR THE TEMPORARY DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.

THIS OFFICER'S ITINERARY IS STATED ON THE VOUCHER AS FOLLOWS: LEFT: WASHINGTON, D.C. :00 P.M. MAY 4, 1942 AR: ST. JOHNS, QUE. 7:00 A.M. MAY 5, 1942 AR: HALIFAX, N.S. MAY 7, 1942 LV: HALIFAX, N.S. MAY 8, 1942 AR: VANCOUVER, B.C. JUNE 1, 1942 LV: VANCOUVER, B.C.

JUNE 3, 1942 AR: BORDER - BLAINE, WASH., U.S.A.

11:03 A.M. JUNE 3, 1942 AR: WASHINGTON, D.C. :30 P.M. JUNE 6, 1942 APPARENTLY, INTERMEDIATE STOPS WERE MADE BETWEEN THE TIME OF DEPARTURE FROM HALIFAX, N.S., AND ARRIVAL AT VANCOUVER, B.C., JUNE 1, 1942.

SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, PUBLIC LAW 490, PROVIDES:

HEREAFTER THE BASE PAY OF AN ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER IN SUCH FORCES SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES AS NOW AUTHORIZED: PROVIDED, THAT THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY FOR AVIATION AND SUBMARINE DUTY: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT. THIS SECTION WAS EXPRESSLY REPEALED BY SECTION 19 OF THE ACT OF JUNE 16, 1942, 56 STAT. 369, PUBLIC LAW 607, AND WAS REENACTED WITH A PROVISION NOT HERE MATERIAL AS SECTION 2 OF THE LATTER ACT, 56 STAT. 360, TO BE EFFECTIVE FROM DECEMBER 7, 1941. LIEUTENANT COLONEL GREGORIE WAS ATTACHED TO THE BOARD FOR TEMPORARY DUTY AS ACTING QUARTERMASTER AND AGENT FINANCE OFFICER AND, ACCORDING TO THE ITINERARY HEREINBEFORE QUOTED, PERFORMED THE DUTIES IN CANADA AS DIRECTED BY THE ORDERS. WHILE THE DUTY WAS OF A TEMPORARY NATURE IT WAS NOT MERELY INCIDENT TO OR IN CONNECTION WITH A PARAMOUNT OR PRIMARY DUTY IN THE UNITED STATES; IT THEREFORE CONSTITUTED A DUTY "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES" AND THUS REASONABLY FALLS WITHIN THE LANGUAGE AND PURVIEW OF SECTION 18 OF THE ACT OF MARCH 7 AND SECTION 2 OF THE ACT OF JUNE 16, 1942. YOU ARE AUTHORIZED TO PAY THE VOUCHER WHICH IS RETURNED HEREWITH, IF OTHERWISE CORRECT.