B-3328, MAY 9, 1939, 18 COMP. GEN. 836

B-3328, MAY 9, 1939, 18 COMP. GEN. 836

UNIFORM GRATUITY - NAVAL RESERVE ACT OF 1938 - ACTIVE DUTY EXTENDING BEYOND EFFECTIVE DATE OF SAID ACT AN OFFICER IN THE VOLUNTEER NAVAL RESERVE WHO REPORTED FOR ACTIVE DUTY PRIOR TO JULY 1, 1938--- THE EFFECTIVE DATE OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175--- AND WHO, UNDER THE FORMER ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, WHICH MADE NO PROVISION FOR PAYMENT OF UNIFORM GRATUITY TO SUCH OFFICERS IN TIME OF PEACE, WAS NOT ENTITLED TO THE SAID ALLOWANCE, MAY UPON CONTINUANCE OF ACTIVE DUTY BEYOND JULY 1, 1938--- THE EFFECTIVE DATE OF THE NEW ACT--- BE CREDITED WITH THE UNIFORM ALLOWANCE PROVIDED BY SECTION 302 OF THE SAID ACT, 52 STAT. 1180, HIS RIGHT THERETO HAVING ACCRUED ON JULY 1, 1938.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE NAVY, MAY 9, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 25, 1939, INCLOSING A LETTER DATED APRIL 17, 1939, FROM THE PAYMASTER GENERAL OF THE NAVY, IN WHICH DECISION IS REQUESTED ON THE QUESTION WHETHER LIEUTENANT (JUNIOR GRADE) PHILLIP H. BASSETT, MC-V/G), UNITED STATES NAVAL RESERVE, IS ENTITLED TO BE PAID THE INITIAL UNIFORM ALLOWANCE OF $100 UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AND, IF SO, THE DATE UPON WHICH HE BECAME ENTITLED THERETO.

IT APPEARS THAT BASSETT WAS APPOINTED AN ASSISTANT SURGEON WITH RANK OF LIEUTENANT (JUNIOR GRADE) IN THE UNITED STATES NAVAL RESERVE TO RANK FROM MARCH 16, 1938, AND WAS ASSIGNED TO THE VOLUNTEER NAVAL RESERVE FOR GENERAL SERVICE UPON EXECUTING THE ACCEPTANCE AND OATH OF OFFICE UNDER HIS COMMISSION. THE OFFICER ACCEPTED APRIL 7, 1938, AND UPON HIS REQUEST, WAS ASSIGNED TO ACTIVE DUTY AT THE NAVAL RESERVE AVIATION BASE, KANSAS CITY, KANS., IN CONNECTION WITH THE INSTRUCTION, TRAINING AND DRILLING OF THE NAVAL RESERVE. HE REPORTED FOR SUCH DUTY JUNE 2, 1938.

THE QUESTION OF PAYMENT OF UNIFORM GRATUITY ARISES APPARENTLY BY REASON OF THE FACT THAT THE OFFICER WAS APPOINTED IN THE VOLUNTEER NAVAL RESERVE AND REPORTED FOR ACTIVE DUTY PRIOR TO JULY 1, 1938, THE EFFECTIVE DATE OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175, THE LAW THERETOFORE IN FORCE--- ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, 1090- -- CONTAINING NO PROVISION FOR PAYMENT IN TIME OF PEACE OF AN ALLOWANCE FOR UNIFORMS TO OFFICERS OF THE VOLUNTEER NAVAL RESERVE THEREBY CREATED. SEE SECTION 12 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083, AND ARTICLE H-3705, BUREAU OF NAVIGATION MANUAL.

SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, ABOLISHED THE NAVAL RESERVE ESTABLISHED UNDER THE ACT OF FEBRUARY 28, 1925; CREATED AND ESTABLISHED A NAVAL RESERVE CONSISTING OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE; TRANSFERRED THE MEMBERS OF THE VOLUNTEER NAVAL RESERVE TO THE VOLUNTEER RESERVE, AND PROVIDED FURTHER THAT SUCH TRANSFERS OF OFFICERS AND MEN SHALL BE FOR THE UNEXPIRED PERIOD OF THE CURRENT APPOINTMENTS OR ENLISTMENTS IN THE NAVAL RESERVE AND IN THE SAME GRADES, RANKS, OR RATINGS AND WITH THE SAME DATES OF PRECEDENCE HELD BY THEM ON THE DATE OF SUCH TRANSFER.

SECTION 11 OF THE ACT, 52 STAT. 1178, PROVIDES THAT THE ACT "SHALL TAKE EFFECT ON JULY 1, 1938, WHICH DATE SHALL BE CONSTRUED AS THE DATE OF THE PASSAGE OF APPROVAL THEREOF.'

SECTION 302, 52 STAT. 1180, PROVIDES:

IN TIME OF PEACE, UPON FIRST REPORTING FOR ACTIVE OR TRAINING DUTY WITH PAY, AFTER ENACTMENT HEREOF, AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, OR AFTER THE AUTHORIZED PERFORMANCE OF FOURTEEN DRILLS, A COMMISSIONED OR WARRANT OFFICER OF THE NAVAL RESERVE SHALL BE PAID A SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS, AND THEREAFTER HE SHALL BE PAID AN ADDITIONAL SUM OF $50 FOR THE SAME PURPOSE UPON THE COMPLETION OF EACH PERIOD OF NOT LESS THAN FOUR YEARS IN THE NAVAL RESERVE: PROVIDED, THAT THIS LATTER AMOUNT OF $50 SHALL NOT BECOME DUE ANY OFFICER UNTIL HE HAS COMPLETED NOT LESS THAN ONE HUNDRED AND FIFTY DRILLS OR PERIODS OF OTHER EQUIVALENT INSTRUCTION OR DUTY OR APPROPRIATE DUTIES AND FIFTY SIX DAYS' ACTIVE OR TRAINING DUTY, OR SEVENTY-FIVE DRILLS AND EIGHTY FOUR DAYS' ACTIVE OR TRAINING DUTY, OR ONE HUNDRED TWELVE DAYS' ACTIVE OR TRAINING DUTY: PROVIDED FURTHER, THAT ANY OFFICER WHO HAS HERETOFORE RECEIVED A UNIFORM GRATUITY SHALL NOT BE ENTITLED TO EITHER OF THE ABOVE-MENTIONED SUMS UNTIL THE EXPIRATION OF FOUR YEARS FROM THE DATE OF THE RECEIPT OF THE LAST SUCH GRATUITY: PROVIDED FURTHER, THAT UNIFORMS FOR AVIATION CADETS SHALL BE PROVIDED AS HERETOFORE OR HEREAFTER AUTHORIZED BY LAW: AND PROVIDED FURTHER, THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.

A LITERAL APPLICATION OF THE LANGUAGE CONTAINED IN THE FIRST PART OF SECTION 302 WOULD LIMIT PAYMENT OF THE $100 GRATUITY TO OFFICERS OF THE NAVAL RESERVE WHO HAD NOT, PRIOR TO ITS ENACTMENT AS DEFINED IN SECTION 11, REPORTED FOR ACTIVE OR TRAINING DUTY WITH PAY, AND WOULD PRECLUDE PAYMENT THEREOF TO OFFICERS OF THE VOLUNTEER RESERVE WHO HAD SO REPORTED AT A PRIOR DATE EVEN THOUGH THE TOUR EXTENDED BEYOND THE DATE OF PASSAGE OF THE ACT. SUCH AN INTERPRETATION WOULD REQUIRE DENYING PAYMENT TO AN OFFICER IN A STATUS SUCH AS THAT OF LIEUTENANT (JUNIOR GRADE) BASSETT, COMMISSIONED SHORTLY BEFORE PASSAGE OF THE NAVAL RESERVE ACT OF 1938, AND WHO WAS ASSIGNED TO ACTIVE DUTY IMMEDIATELY AFTER BEING COMMISSIONED, WHILE A VOLUNTEER RESERVE OFFICER APPOINTED AT THE SAME TIME, BUT WHO FIRST REPORTED FOR ACTIVE DUTY AFTER ENACTMENT OF THE ACT, WOULD ENCOUNTER NO SUCH PROHIBITION. IT WOULD BE UNREASONABLE TO ASSUME THAT SUCH WAS THE INTENT OR PURPOSE OF THE RESTRICTIVE CLAUSE "AFTER ENACTMENT HEREOF" WHICH EVIDENTLY WAS DESIGNED TO LIMIT CLAIMS UNDER THE NEW LAW TO THOSE ACCRUING AS A RESULT OF SERVICE AFTER ITS EFFECTIVE DATE, LEAVING CLAIMS ARISING FROM SERVICE FOR PRIOR PERIODS FOR DISPOSITION UNDER THE FORMER LAW. HERE THE OFFICER WAS NOT ENTITLED TO A UNIFORM GRATUITY IN TIME OF PEACE UNDER THE PRIOR LAW AND SUCH RIGHT AS HE HAS IS UNDER THE NEW LAW; THAT RIGHT ACCRUED BY REASON OF HIS ACTIVE DUTY "AFTER ENACTMENT" -- THAT IS, THE EFFECTIVE DATE--- OF THE ACT OF JUNE 25, 1938. HENCE, AS IT IS REPORTED THAT HE HAD NOT PREVIOUSLY RECEIVED ANY UNIFORM GRATUITY EITHER IN CASH OR IN KIND, PAYMENT TO HIM OF $100 AS PROVIDED BY SAID SECTION IS AUTHORIZED, HIS RIGHT THERETO HAVING ACCRUED ON JULY 1, 1938.