B-69826, FEBRUARY 18, 1948, 27 COMP. GEN. 455

B-69826, FEBRUARY 18, 1948, 27 COMP. GEN. 455

UNIFORM ALLOWANCE - ARMY RESERVE OFFICERS ORDERED TO ACTIVE-DUTY TRAINING THE $250 UNIFORM ALLOWANCE AUTHORIZED BY SECTION 2 OF THE ACT OF DECEMBER 4, 1942, FOR OFFICERS OF THE ARMY OF THE UNITED STATES "ACCEPTED FOR ACTIVE DUTY," MAY NOT BE PAID TO OFFICER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY FOR PERIODS OF ACTIVE-DUTY TRAINING OF THREE MONTHS OR LESS; HOWEVER, WHERE OFFICERS ARE ACCEPTED FOR ACTIVE DUTY FOR PERIODS IN EXCESS OF THREE MONTHS, FOR TRAINING OR OTHERWISE, PAYMENT OF SUCH CLOTHING ALLOWANCE MAY BE MADE, SUBJECT TO SUCH ADMINISTRATIVE LIMITATIONS AS MAY BE IMPOSED UPON THE RIGHT TO PAYMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, FEBRUARY 18, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 23, 1947, REQUESTING DECISION AS TO WHETHER THE ACT OF DECEMBER 4, 1942, 56 STAT. 1039, AUTHORIZES PAYMENT OF UNIFORM ALLOWANCES TO OFFICER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY WHEN ORDERED TO ACTIVE DUTY FOR TRAINING FOR LIMITED PERIODS OF TIME. FURTHER--- IF IT BE HELD THAT SUCH ALLOWANCE IS NOT AUTHORIZED FOR FOURTEEN-DAY TRAINING PERIODS--- DECISION IS REQUESTED AS TO WHETHER IT WOULD BE PAYABLE IN THE CASE OF OFFICERS WHO ARE ORDERED TO TRAINING DUTY FOR PERIODS OF THIRTY DAYS, THREE MONTHS, SIX MONTHS, OR LONGER.

THE ACT OF DECEMBER 4, 1942, 56 STAT. 1039, 1040, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

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 OF APRIL 3, 1939, OR AT THE TIME OF SUCH ACCEPTANCE FOR 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. (A) THE UNIFORM ALLOWANCE AUTHORIZED IN SECTION 2 HEREOF SHALL NOT BE PAID MORE THAN ONCE TO ANY PERSON WITHOUT REGARD TO APPOINTMENT IN OR PROMOTION TO A GRADE FOR WHICH THE ALLOWANCE IS AUTHORIZED.

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 IN NOW ENGAGED AND FOR SIX MONTHS THEREAFTER.

IT APPEARS THAT THE PRESENTLY CONTINUING EXISTENCE AND EFFECT OF SUCH STATUTE HAS BEEN RECOGNIZED AS UNAFFECTED BY LEGISLATION REPEALING VARIOUS STATUTES ENACTED TO BE EFFECTIVE FOR THE DURATION OF THE WAR OR FOR THE DURATION OF THE WAR AND SIX MONTHS. SEE PAGE 37, SENATE REPORT 339, PART 2, DATED JULY 1, 1947, IN CONNECTION WITH S.J.RES. 123, 80TH CONGRESS, IN WHICH IT WAS STATED---

195. PROVISIONS FOR UNIFORM ALLOWANCE OF $250 FOR CERTAIN OFFICERS AND WARRANT OFFICERS SERVING ON ACTIVE DUTY IN THE ARMY UNTIL 6 MONTHS AFTER THE PRESENT WAR.

DECEMBER 4, 1942 (56 STAT. 1039-1040, CH. 674).

UNAFFECTED. THIS PROVISION SHOULD BE RETAINED IN ITS PRESENT FORM PENDING ACTION BY THE CONGRESS ON PROPOSED LEGISLATION WITH RESPECT TO THIS SUBJECT. THE ARMED SERVICES COMMITTEE OF THE SENATE CONCURS.

THE LEGISLATIVE HISTORY OF THE STATUTE--- ENACTED IN TIME OF ACTUAL WARFARE WHEN, APPARENTLY, ACTIVE DUTY FOR TRAINING OF RESERVE OFFICERS HAD BEEN SUSPENDED--- GIVES NO DEFINITE INDICATION OF THE INTENT OF THE CONGRESS AS TO THE QUESTION PRESENTED IN YOUR LETTER. HOWEVER, THE PURPOSE OF THE LEGISLATION AS EXPLAINED BY THE WAR DEPARTMENT AND BY THE LEGISLATIVE COMMITTEE REPORTS ON THE MATTER WAS TO RELIEVE OFFICERS OF THE LOWER/PAY GRADES FROM THE FINANCIAL BURDEN OF PROVIDING THEMSELVES WITH THE UNIFORMS AND EQUIPMENT NECESSARY IN CONNECTION WITH THEIR ACTIVE DUTY. THE MATTER WAS DISCUSSED IN DECISION OF AUGUST 16, 1946, B-58017, IN THE CASE OF COLONEL THOMAS R. VAGUE, AIR CORPS, AUS, WHEREIN IT WAS SAID:

THE ACT OF DECEMBER 4, 1942, DOES NOT PROVIDE FOR PAYMENT OF THE UNIFORM ALLOWANCE UPON ACCEPTANCE FOR SHORT PERIODS OF PEACETIME ACTIVE-DUTY TRAINING OR UPON COMPLETION OF SUCH SHORT PERIODS OF PEACETIME ACTIVE-DUTY TRAINING AS WAS THE CASE UNDER THE REPEALED ACT OF MAY 14, 1940, BUT PROVIDES FOR PAYMENT OF THE UNIFORM ALLOWANCE ONLY TO OFFICERS ACCEPTED FOR ACTIVE DUTY SUBSEQUENT TO APRIL 3, 1939, IN THE GRADES AND ENTITLED TO THE PAY OF THE PAY PERIODS SPECIFIED, AND WHO WERE ON ACTIVE DUTY ON DECEMBER 4, 1942, OR WHO THEREAFTER SERVED ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER.

AT THE TIME OF REPORTING FOR ACTIVE DUTY, JANUARY 21, 1942, YOU WERE SERVING IN THE GRADE OF MAJOR, ENTITLED TO PAY OF A GRADE ABOVE THAT OF THE THIRD PAY PERIOD; AND, WHILE YOU MAY HAVE PERFORMED SHORT PERIODS OF ACTIVE-DUTY TRAINING DURING THE MONTHS OF AUGUST, 1939, AND 1940, PRIOR TO YOUR COMMISSION AS MAJOR, SUCH PEACETIME ACTIVE-DUTY TRAINING WAS NOT THE "ACTIVE DUTY" CONTEMPLATED BY THE ACT OF DECEMBER 4, 1942. * * *

WHILE THAT DECISION RELATED TO "SHORT PERIODS" OF "PEACETIME" ACTIVE DUTY TRAINING PRIOR TO THE DATE OF THE ACT OF DECEMBER 4, 1942, THE PERIODS INVOLVED WERE WITHIN THE RETROACTIVELY EFFECTIVE PERIOD OF SUCH ACT, AND IT WAS THUS CONCLUDED, IN EFFECT, THAT THE WORDS "ACCEPTED FOR ACTIVE DUTY" AS USED IN SUCH WARTIME STATUTE DID NOT COMPREHEND PREVIOUSLY COMPLETED "SHORT PERIODS" OF ACTIVE DUTY TRAINING. THAT VIEW IS SUPPORTED BY THE FACT THAT THE SAID ACT OF DECEMBER 4, 1942, WAS PRIMARILY A SUBSTITUTE FOR THE PROVISIONS OF THE ACT OF MARCH 9, 1942, 56 STAT. 148, WHICH, AMENDING AND SUPPLEMENTING THE ACT OF MAY 14, 1940, 54 STAT. 212, MADE A SUBSTANTIVE DISTINCTION BETWEEN SHORT PERIODS OF ACTIVE DUTY TRAINING AND ACCEPTANCE FOR ACTIVE DUTY FOR LONGER PERIODS. THE ACT OF MARCH 9, 1942, 56 STAT. 148, 149, WAS IN PART AS FOLLOWS:

THAT THE ACT OF MAY 14, 1940 ( PUBLIC, NUMBERED 511, SEVENTY-SIXTH CONGRESS), BE, AND THE SAME IS HEREBY, AMENDED TO READ AS FOLLOWS: "THAT OFFICERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY SHALL BE ENTITLED TO AN ALLOWANCE FOR UNIFORMS AND EQUIPMENT OF $50 PER ANNUM UPON COMPLETION, IN SEPARATE FISCAL YEARS, OF EACH OF THEIR FIRST THREE PERIODS OF ACTIVE DUTY TRAINING OF THREE MONTHS OR LESS, FOLLOWING THEIR ORIGINAL APPOINTMENT.'

SEC. 2. ANY PERSON ORIGINALLY COMMISSIONED BELOW THE GRADE OF MAJOR, ON OR SUBSEQUENT TO SEPTEMBER 26, 1941, AN OFFICER IN THE ARMY OF THE UNITED STATES OR IN ANY COMPONENT THEREOF, EXCEPT THE ARMY NURSE CORPS, FROM ANY SOURCE EXCEPT GRADUATES OF THE UNITED STATES MILITARY ACADEMY, SHALL BE ENTITLED TO AN ALLOWANCE OF $150 FOR UNIFORMS AND EQUIPMENT, WHICH SHALL BE PAYABLE, IN THE CASE OF AN OFFICER OF THE REGULAR ARMY, UPON ACCEPTANCE OF SUCH COMMISSION, AND IN THE CASE OF OTHER OFFICERS, WHEN THEY SHALL HAVE BEEN ORDERED TO, FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY IN THE MILITARY SERVICE OF THE UNITED STATES FOR A PERIOD OF MORE THAN THREE MONTHS WITHIN THREE YEARS FROM THE DATE OF, AND UNDER THEIR RESPECTIVE ORIGINAL COMMISSIONS * * *.

ALTHOUGH THAT ACT WAS REPEALED BY THE ACT OF DECEMBER 4, 1942, IT MAY BE LOOKED TO FOR LIGHT ON THE MEANING OF THE LANGUAGE USED IN THE LATTER ACT. ENACTED AFTER THE WAR HAD BEEN IN PROGRESS FOR A YEAR AND WHEN THE EMPHASIS WAS ON WAR SERVICE, IT IS UNDERSTANDABLE THAT NO SPECIFIC PROVISION WAS MADE IN THE ACT OF DECEMBER 4, 1942, FOR SHORT PERIODS OF ACTIVE DUTY TRAINING, AS IN THE PRIOR STATUTES. OFFICERS ORDERED TO SHORT PERIODS OF ACTIVE DUTY TRAINING, MORE USUALLY IN THE SUMMER MONTHS, ARE NOT REQUIRED TO BE FULLY OUTFITTED WITH UNIFORMS, SERVICE CLOTHING, AND EQUIPMENT, AS IN THE CASE OF OFFICERS ON EXTENDED ACTIVE DUTY, AND PRIOR STATUTES PROVIDED AN ALLOWANCE OF NOT MORE THAN $50 A YEAR FOR SUCH SHORT PERIODS. ON THE OTHER HAND, SECTION 2 OF THE ACT OF MARCH 9, 1942, PROVIDED AN ALLOWANCE OF $150 FOR OFFICERS ACCEPTED FOR ACTIVE DUTY "FOR A PERIOD OF MORE THAN THREE MONTHS.' IT SEEMS CLEAR THAT THE $250 ALLOWANCE AUTHORIZED BY SECTION 2 OF THE ACT OF DECEMBER 4, 1942, FOR OFFICERS "ACCEPTED FOR ACTIVE DUTY" WAS INTENDED AS A SUBSTITUTE FOR THE ALLOWANCE OF $150 AUTHORIZED BY SECTION 2 OF THE ACT OF MARCH 9, 1942, FOR OFFICERS "ACCEPTED FOR ACTIVE DUTY" FOR A PERIOD OF MORE THAN THREE MONTHS AND NOT AS A SUBSTITUTE FOR THE REPEALED $50 ALLOWANCE AUTHORIZED BY SECTION 1 OF THE ACT FOR "ACTIVE DUTY TRAINING OF THREE MONTHS OR LESS.' IN VIEW OF SUCH DEFINITE DISTINCTION MADE IN THE ACT OF MARCH 9, 1942, I THINK THE CONCLUSION IS REQUIRED THAT THE WORDS "ACCEPTED FOR ACTIVE DUTY" IN THE ACT OF DECEMBER 4, 1942, AUTHORIZING THE $250 ALLOWANCE, DID NOT CONTEMPLATE A PERIOD OF PROSPECTIVE ACTIVE DUTY (AT LEAST FOR TRAINING) LESS THAN THE MINIMUM PERIOD FIXED FOR THE $150 ALLOWANCE BY THE SUPERSEDED ACT, THAT IS, A PERIOD OF MORE THAN THREE MONTHS.

ON THAT BASIS, YOU ARE ADVISED THAT PAYMENT OF THE $250 ALLOWANCE UNDER THE ACT OF DECEMBER 4, 1942, MAY NOT BE VIEWED AS AUTHORIZED FOR PERIODS OF ACTIVE DUTY TRAINING OF THREE MONTHS OR LESS BUT THAT, WHILE THE MATTER IS NOT WHOLLY FREE FROM DOUBT, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO PAYMENTS OF SUCH ALLOWANCE, IF OTHERWISE CORRECT, IN CASES WHERE OFFICERS ARE ACCEPTED FOR ACTIVE DUTY FOR PERIODS IN EXCESS OF THREE MONTHS, FOR TRAINING OR OTHERWISE. IT IS TO BE NOTED IN THAT CONNECTION THAT THE ACT AUTHORIZES RATHER THAN DIRECTS PAYMENT OF THE ALLOWANCE, SO THAT THE RIGHT TO PAYMENT MAY BE VIEWED AS SUBJECT TO SUCH ADMINISTRATIVE LIMITATIONS AS MAY BE IMPOSED WITH RESPECT TO SITUATIONS WHERE UNIFORMS MAY NOT BE REQUIRED OR WHERE UNIFORM REQUIREMENTS ARE NOT MET.

IN VIEW OF THE EXPLANATION SET FORTH IN YOUR LETTER RESPECTING THE ADMINISTRATION OF THE ACT SUBSEQUENT TO THE TERMINATION OF HOSTILITIES AND PRIOR TO THE DIRECTIVE OF SEPTEMBER 4, 1947, BY YOUR DEPARTMENT SUSPENDING PAYMENTS PENDING A CLARIFICATION OF THE MATTER, YOU ARE FURTHER ADVISED THAT ANY PAYMENTS OF THE ALLOWANCE, OTHERWISE CORRECT, WHICH MAY HAVE BEEN MADE PRIOR TO THE DATE OF SUCH DIRECTIVE WILL NOT BE QUESTIONED IN THE AMOUNTS OF THE DISBURSING OFFICERS CONCERNED SOLELY ON THE BASIS THAT THE ACTIVE DUTY ORDERS WERE FOR PERIODS OF THREE MONTHS OR LESS.