B-41873, JULY 4, 1944, 24 COMP. GEN. 4

B-41873, JULY 4, 1944, 24 COMP. GEN. 4

UNIFORM ALLOWANCE - MARINE CORPS WARRANT OFFICERS ALTHOUGH SECTION 1612, REVISED STATUTES, ASSIMILATES THE PAY AND ALLOWANCES OF MARINE CORPS OFFICERS TO THOSE OF OFFICERS IN LIKE GRADES IN THE INFANTRY OF THE ARMY, THE ACT OF AUGUST 29, 1916, AS AMENDED, SPECIFICALLY ASSIMILATING THE PAY AND ALLOWANCES OF WARRANT OFFICERS OF THE MARINE CORPS TO THOSE APPLICABLE TO WARRANT OFFICERS OF THE NAVY RENDERS THE FORMER ASSIMILATION PROVISIONS INOPERATIVE AS TO WARRANT OFFICERS OF THE MARINE CORPS SO THAT THEY ARE NOT ENTITLED TO THE UNIFORM ALLOWANCE AUTHORIZED BY THE ACT OF DECEMBER 4, 1942, FOR WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. JOHN HALLA, U.S. MARINE CORPS, JULY 4, 1944:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF THE PAYMASTER GENERAL, U.S. MARINE CORPS, YOUR LETTER OF APRIL 26, 1944, IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF FIRST LIEUTENANT FLOYD MAURICE MCCORKLE, UNITED STATES MARINE CORPS, FOR UNIFORM ALLOWANCE OF $250. ACCOMPANYING THE VOUCHER IS A CERTIFICATE EXECUTED BY THE OFFICER TO THE EFFECT THAT HE WAS ACCEPTED FOR ACTIVE DUTY ON DECEMBER 28, 1940, IN THE GRADE OF MARINE GUNNER AND WAS THEN ENTITLED TO PAY OF THE FIRST PERIOD, THAT HE WAS ON ACTIVE DUTY ON DECEMBER 4, 1942, THAT HE IS NOT A GRADUATE OF THE UNITED STATES MILITARY ACADEMY OR NAVAL ACADEMY, AND THAT HE HAS NOT PREVIOUSLY RECEIVED ANY UNIFORM ALLOWANCE.

THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS, JULY 1, 1942, SHOWS THAT LIEUTENANT MCCORKLE ACCEPTED APPOINTMENT AS MARINE GUNNER, PERMANENT SERVICE, ON DECEMBER 28, 1940. THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT HE WAS APPOINTED A TEMPORARY FIRST LIEUTENANT ON FEBRUARY 28, 1943.

SECTION 1612, REVISED STATUTES, IS AS FOLLOWS:

THE OFFICERS OF THE MARINE CORPS SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES, AND THE ENLISTED MEN SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND BOUNTY FOR RE-ENLISTING, AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE OFFICERS AND ENLISTED MEN OF LIKE GRADES IN THE INFANTRY OF THE ARMY.

THE ACT OF DECEMBER 4, 1942, 56 STAT. 1039, PROVIDES IN PART:

THAT THE ACT OF MAY 14, 1940 (54 STAT. 212), THE ACT OF MARCH 9, 1942 ( PUBLIC LAW 492, SEVENTY-SEVENTH CONGRESS), AND ANY PROVISION OF ANY OTHER LAW AUTHORIZING THE PAYMENT OF A UNIFORM ALLOWANCE TO ANY PERSON UPON BEING APPOINTED A COMMISSIONED OR WARRANT OFFICER IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES, ARE HEREBY REPEALED, BUT ANY PAYMENTS HERETOFORE MADE PURSUANT THERETO, IF OTHERWISE CORRECT, ARE HEREBY VALIDATED.

SEC. 2. EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, AN ALLOWANCE OF $250 FOR UNIFORMS AND EQUIPMENT IS HEREBY AUTHORIZED TO BE PAID TO THE FOLLOWING PERSONNEL OF THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF:

(A) ANY PERSON ON ACTIVE DUTY ON APRIL 3, 1939, OR THEREAFTER ACCEPTED FOR ACTIVE DUTY, IN THE GRADE OF SECOND LIEUTENANT, FIRST LIEUTENANT,OR CAPTAIN, AND ENTITLED TO THE PAY OF THE FIRST, SECOND, OR THIRD PAY PERIODS ON APRIL 3, 1939, OR AT THE TIME OF SUCH ACCEPTANCE OF ACTIVE DUTY; AND

(B) ANY PERSON ON ACTIVE DUTY ON APRIL 3, 1939, OR THEREAFTER ACCEPTED FOR ACTIVE DUTY, IN ANY TEMPORARY OR PERMANENT GRADE OF WARRANT OFFICER (INCLUDING ANY PERSON APPOINTED FLIGHT OFFICER), EXCEPT THAT OF A CHIEF WARRANT OFFICER ENTITLED TO RECEIVE THE BASE PAY AND ALLOWANCES PROVIDED FOR OFFICERS OF THE FOURTH PAY PERIOD.

SEC. 3. * * *

(C) THE UNIFORM ALLOWANCE AUTHORIZED IN SECTION 2 HEREOF SHALL NOT BE PAID TO ANY GRADUATE OF THE UNITED STATES MILITARY ACADEMY.

SEC. 4. THE UNIFORM ALLOWANCE AUTHORIZED BY THIS ACT SHALL BE PAYABLE ONLY TO PERSONS NOW SERVING ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES OR WHO HEREAFTER SERVE ON ACTIVE DUTY THEREIN AT ANY TIME DURING THE PERIOD OF THE WARS IN WHICH THE UNITED STATES IS NOW ENGAGED AND FOR SIX MONTHS THEREAFTER.

LIEUTENANT MCCORKLE'S CLAIM IS PRESENTED ON THE THEORY THAT BY VIRTUE OF SECTION 1612, REVISED STATUTES, HE IS ENTITLED TO THE UNIFORM ALLOWANCE PROVIDED IN THE ACT OF DECEMBER 4, 1942, SUPRA, FOR WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES.

THE ACT OF AUGUST 29, 1916, 39 STAT. 611, AS AMENDED, IS CODIFIED IN 34 U.S.C. 640, AS FOLLOWS:

THE WARRANT GRADES OF MARINE GUNNER AND QUARTERMASTER CLERK SHALL CONSIST OF FIFTY MARINE GUNNERS AND FIFTY QUARTERMASTER CLERKS AND SUCH ADDITIONAL OFFICERS IN EACH SAID GRADE AS HAVE HERETOFORE BEEN APPOINTED THERETO IN ACCORDANCE WITH LAW. OFFICERS IN SAID GRADES SHALL HAVE THE RANK AND RECEIVE THE PAY, ALLOWANCES AND PRIVILEGES OF RETIREMENT OF WARRANT OFFICERS IN THE NAVY. THEY SHALL BE APPOINTED FROM NONCOMMISSIONED OFFICERS OF THE MARINE CORPS ( AUG. 29, 1916, CH 417, 39 STAT. 611; MAY 22, 1917, CH 20 SEC. 11, 40 STAT. 87.)

THE ACT JUNE 15, 1940, 54 STAT. 400, 34 U.S.C. 639A, PROVIDES AS FOLLOWS:

THE NUMBER OF WARRANT AND COMMISSIONED WARRANT OFFICERS IN THE MARINE CORPS AND THEIR DISTRIBUTION IN THE WARRANT AND COMMISSIONED WARRANT GRADES SHALL BE AS THE PRESIDENT MAY FROM TIME TO TIME DEEM NECESSARY. JUNE 15, 1940, CH 374, 54 STAT. 400.)

AS A PERMANENT WARRANT OFFICER OF THE MARINE CORPS, LIEUTENANT MCCORKLE WAS ENTITLED, UNDER THE ABOVE-QUOTED ACTS, TO PAY AND ALLOWANCES OF A PERMANENT WARRANT OFFICER OF THE NAVY. SPECIFIC PROVISION HAVING BEEN MADE FOR ASSIMILATION OF THE PAY AND ALLOWANCES OF WARRANT OFFICERS OF THE MARINE CORPS TO THOSE APPLICABLE TO WARRANT OFFICERS OF THE NAVY, SECTION 1612, OF THE REVISED STATUTES, IS INOPERATIVE. CF. BRISTOW V. UNITED STATES, 47 C.1CLS. 46. AS A PERMANENT WARRANT OFFICER OF THE NAVY IS NOT ENTITLED TO UNIFORM ALLOWANCE, LIEUTENANT MCCORKLE IS NOT ENTITLED THERETO BASED ON HIS SERVICE AS A PERMANENT WARRANT OFFICER OF THE MARINE CORPS.

NOR DOES IT APPEAR THAT LIEUTENANT MCCORKLE IS ENTITLED TO THE UNIFORM ALLOWANCE BY VIRTUE OF HIS SERVICE AS A TEMPORARY FIRST LIEUTENANT. APPARENTLY, HE WAS APPOINTED TO THAT GRADE UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS. SECTION 7 (B) OF SAID ACT, 55 STAT. 604, PROVIDES:

ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY SECTION 2 OF THIS ACT, BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY.

THE ABOVE-QUOTED PROVISION, PERTAINING ONLY TO PERSONS TEMPORARILY APPOINTED OR WARRANTED FROM AN ENLISTED STATUS, IS SPECIFIC AND HENCE CONFERS NO BENEFITS UPON PERMANENT WARRANT OFFICERS OF THE NAVY AND MARINE CORPS, WHEN APPOINTED OR ADVANCED TO COMMISSIONED RANK UNDER THE ACT OF JULY 24, 1941. ACCORDINGLY, LIEUTENANT MCCORKLE, APPOINTED FROM A WARRANT OFFICER STATUS, IS NOT ENTITLED TO A UNIFORM GRATUITY UNDER THE ACT OF JULY 24, 1941.

TO ALLOW THE CLAIMING OFFICER A UNIFORM ALLOWANCE BY INVOKING A STATUTE PERTAINING IN TERMS TO THE ARMY OF THE UNITED STATES ONLY, WOULD BE TO CONFER UPON HIM A BENEFIT INCIDENT TO HIS TEMPORARY COMMISSION UNDER THE ACT OF JULY 24, 1941, WHICH IS NOT CONFERRED UPON A WARRANT OFFICER OF THE NAVY TEMPORARILY COMMISSIONED, UNDER LIKE CIRCUMSTANCES, UNDER THE SAME ACT. THE SAID ACT PERTAINS EQUALLY TO THE NAVY AND TO THE MARINE CORPS AND PLACES THE TWO SERVICES ON A PARITY AS TO THE BENEFITS THEREIN CONFERRED. THERE IS NO SHOWING OF ANY INTENT TO DISCRIMINATE IN FAVOR OF THE MARINE CORPS OR TO BESTOW, DIRECTLY OR INDIRECTLY, ON A MARINE CORPS OFFICER AN ALLOWANCE FOR UNIFORMS NOT BESTOWED UNDER LIKE CIRCUMSTANCES UPON A NAVY OFFICER.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.