B-18204, JULY 31, 1941, 21 COMP. GEN. 88

B-18204, JULY 31, 1941, 21 COMP. GEN. 88

PAY - FIRST FOUR MONTHS IN INITIAL ENLISTMENT - LIMITATION APPLICABILITY TO COAST GUARD RESERVES ON ACTIVE DUTY AN ENLISTED MEMBER OF THE COAST GUARD RESERVE HOLDING A GRADE ABOVE THE SEVENTH WHEN ORDERED TO ACTIVE DUTY IS ENTITLED TO THE PAY OF HIS GRADE WITHOUT REGARD TO THE PROVISION IN SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, LIMITING THE BASE PAY OF ENLISTED MEN TO $21 PER MONTH DURING THE FIRST FOUR MONTHS OF SERVICE IN THEIR FIRST ENLISTMENT, AND THIS IS SO EVEN THOUGH THE MAN WAS ENROLLED IN THE HIGHER GRADE AND ENTERED ON ACTIVE DUTY THE SAME DAY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JULY 31, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 18, 1941, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO SECTION 206 OF THE ACT OF FEBRUARY 19, 1941 ( PUBLIC NO. 8) TITLED THE " COAST GUARD AUXILIARY AND RESERVE ACT OF 1941," WHICH READS IN PART AS FOLLOWS:

"COMMISSIONED OFFICERS, CHIEF WARRANT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE WHEN ENGAGED ON ACTIVE DUTY, OR ON ACTIVE DUTY WHILE UNDERGOING TRAINING, OR WHEN ENGAGED IN AUTHORIZED TRAVEL TO OR FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE RECEIVED BY COMMISSIONED OFFICERS, CHIEF WARRANT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE REGULAR COAST GUARD OF THE SAME RANK, GRADE, RATING, AND LENGTH OF SERVICE. IN DETERMINING LENGTH OF SERVICE FOR THE PURPOSES OF THIS SECTION, THERE SHALL BE INCLUDED (A) ALL PERIODS OF ACTIVE DUTY UNDER THIS ACT, EXCEPT ACTIVE DUTY WHILE UNDERGOING TRAINING, AND (B) ALL OTHER SERVICE FOR WHICH CREDIT IS GIVEN BY LAW TO MEMBERS OF THE REGULAR COAST GUARD. WHEN MEMBERS OF THE RESERVEPERFORM ACTIVE DUTY OR ACTIVE DUTY WHILE UNDERGOING TRAINING FOR A PERIOD OF LESS THAN THIRTY DAYS, SUCH DUTY PERFORMED ON THE THIRTY-FIRST DAY OF ANY MONTH SHALL BE PAID FOR AT THE SAME RATE AS FOR OTHER DAYS: * * *"

HAVING IN MIND YOUR DECISION TO THE SECRETARY OF THE NAVY ON OCTOBER 3, 1940 (B-12506), WITH RESPECT TO RATES OF PAY FIXED BY SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940 ( SELECTIVE SERVICE ACT), AND YOUR DECISION OF MARCH 17, 1941, AS MODIFIED BY YOUR DECISION OF APRIL 15, 1941 (B- 15346), WITH RESPECT TO THE RIGHT OF ENLISTED MEN OF THE FIRST THREE PAY GRADES OF THE NAVY TO THE BENEFITS CONFERRED BY THE ACT OF OCTOBER 17, 1940 (MONEY ALLOWANCES FOR QUARTERS FOR DEPENDENTS), YOUR DECISION IS REQUESTED IN THE FOLLOWING CASE.

WILLIARD J. KOPPEN WAS ENROLLED IN THE COAST GUARD RESERVE AS CHIEF BOATSWAIN'S MATE ON MAY 15, 1941, CALLED TO ACTIVE DUTY ON MAY 15, 1941, AND ENTERED ON SUCH ACTIVE DUTY ON MAY 15, 1941. AS KOPPEN HAS HAD NO PREVIOUS MILITARY SERVICE AND IS NOW SERVING IN HIS FIRST ENLISTMENT IN THE COAST GUARD RESERVE, DOES THE RESTRICTION IN SECTION 12 (A) OF THE SELECTIVE SERVICE ACT WHICH READS IN PART AS FOLLOWS: "EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED * * * SHALL BE $21.00" APPLY TO KOPPEN WITH RESPECT TO HIS PAY DURING THE FIRST FOUR MONTHS SERVED?

AS KOPPEN IS A CHIEF PETTY OFFICER AND HOLDS A RATING WHICH IS INCLUDED IN THE FIRST THREE PAY GRADES, IS HE, IF YOUR ANSWER TO THE PREVIOUS QUESTION IS IN THE AFFIRMATIVE, ENTITLED TO THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, WITH RESPECT TO MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS, SUBJECT TO THE CONDITIONS PROVIDED IN EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941?

AN EARLY REPLY WILL BE GREATLY APPRECIATED AS A NUMBER OF ORIGINAL ENLISTMENTS IN THE HIGHER PAY GRADES IN THE COAST GUARD RESERVE ARE NOW BEING UNDERTAKEN, AND YOUR DECISION ON THE TWO QUESTIONS IS NECESSARY IN DETERMINING THE PROPER RATES OF PAY AND ALLOWANCES IN THE CITED CASE AND OTHERS SIMILAR TO IT.

THE APPLICABILITY OF THE $21 LIMITATION IN SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, 54 STAT. 895, TO THE PAY OF ENLISTED MEN OF THE REGULAR COAST GUARD DURING THE FIRST 4 MONTHS OF THEIR INITIAL ENLISTMENT PERIOD HAS BEEN RECOGNIZED BY AMENDMENT NO. 28 TO THE PAY AND SUPPLY INSTRUCTIONS, UNITED STATES COAST GUARD, DATED JANUARY 22, 1941. IN THIS CONNECTION, SEE DECISION TO YOU DATED NOVEMBER 19, 1940, B-13249, IN WHICH IT WAS STATED:

WHERE LEGISLATION HAS NOT SPECIFICALLY PROVIDED PAY OR ALLOWANCES FOR MEMBERS OF THE COAST GUARD (AS IS DONE IN THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 625) THE MEMBERS OF THE COAST GUARD ARE ENTITLED TO THE BENEFITS, AND SUBJECT TO THE RESTRICTIONS, IMPOSED BY SECTION 8 OF THE ACT OF MAY 18, 1920, QUOTED IN YOUR LETTER, AND, THEREFORE, THE LAST SENTENCE OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, IS APPLICABLE TO ENLISTED MEN OF THE COAST GUARD TO THE SAME EXTENT THAT IT IS APPLICABLE TO ENLISTED MEN OF THE NAVY.

IT HAS BEEN HELD THAT MEMBERS OF THE NATIONAL GUARD HOLDING GRADES ABOVE THE SEVENTH WHEN INDUCTED INTO THE ACTIVE SERVICE OF THE UNITED STATES ARE NOT SUBJECT TO THE LIMITATION OF $21 PER MONTH DURING THE FIRST FOUR MONTHS OF THEIR ACTIVE SERVICE, REGARDLESS OF THE PERIODS OF THEIR MEMBERSHIP IN THE NATIONAL GUARD PRIOR TO INDUCTION. 20 COMP. GEN. 251, ID. 490.

IN DECISION OF JUNE 25, 1941, B-15190, TO THE SECRETARY OF THE NAVY, IT WAS HELD AS FOLLOWS:

WHEN A MEMBER OF THE NAVAL RESERVE IN THE SEVENTH GRADE REPORTS FOR ACTIVE DUTY HE IS ENTITLED TO THE SAME PAY AS IS RECEIVED BY AN ENLISTED MAN OF THE REGULAR NAVY OF THE SAME GRADE AND LENGTH OF SERVICE. SINCE ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED TO $21 PER MONTH DURING THE FIRST FOUR MONTHS OF THEIR INITIAL ENLISTMENT IN THE REGULAR NAVY IRRESPECTIVE OF THE GRADE TO WHICH THEY MAY BE PROMOTED DURING THAT PERIOD OF FOUR MONTHS, A MEMBER OF THE NAVAL RESERVE IN THE SEVENTH GRADE WHEN REPORTING FOR ACTIVE DUTY IS ENTITLED TO NO GREATER PAY. THUS, AN ENLISTED MAN IN THE SEVENTH GRADE IN THE NAVAL RESERVE WHO REPORTS FOR ACTIVE DUTY DURING HIS FIRST FOUR MONTHS OF SERVICE IN HIS INITIAL ENLISTMENT IS ENTITLED TO ONLY $21 PER MONTH UNTIL HE HAS COMPLETED FOUR MONTHS' SERVICE, INCLUDING INACTIVE NAVAL RESERVE SERVICE, EVEN THOUGH HE MAY BE PROMOTED TO A GRADE ABOVE THE SEVENTH AFTER ENTERING ON ACTIVE DUTY AND DURING THAT PERIOD. ON THE OTHER HAND, AN ENLISTED MAN IN THE NAVAL RESERVE WHO HAS NOT COMPLETED HIS FIRST FOUR MONTHS OF SERVICE IN HIS INITIAL ENLISTMENT AND WHO IS PROMOTED TO A GRADE ABOVE THE SEVENTH PRIOR TO REPORTING FOR ACTIVE DUTY, IS ENTITLED TO THE SAME BASE PAY AS IS RECEIVED BY AN ENLISTED MAN IN THE REGULAR NAVY WITH THE SAME GRADE. THUS, IF AN ENLISTED MAN IN THE NAVAL RESERVE REPORTS FOR ACTIVE DUTY DURING HIS FIRST FOUR MONTHS OF SERVICE IN HIS INITIAL ENLISTMENT IN THE NAVAL RESERVE AFTER HE HAS BEEN PROMOTED TO A GRADE ABOVE THE SEVENTH, HIS BASE PAY IS NOT LIMITED TO $21 PER MONTH EVEN THOUGH HIS FIRST FOUR MONTHS' SERVICE HAS NOT BEEN COMPLETED.

IN DECISION TO THE SECRETARY OF THE NAVY, DATED OCTOBER 3, 1940, B 12506, THE FOLLOWING WAS AID:

THE NAVAL RESERVE LAW PERMITS, AND THE REGULATIONS PROVIDE, THAT MEN MAY BE ENLISTED IN THE NAVAL RESERVE OR MARINE CORPS RESERVE IN GRADES ABOVE THE LOWEST; AND WHERE THAT IS DONE THE MAN WILL BE ENTITLED TO THE PAY FIXED FOR ENLISTED MEN OF THE REGULAR NAVY OR REGULAR MARINE CORPS OF THE SAME GRADE OR RATING AND LENGTH OF SERVICE IRRESPECTIVE OF THE TIME HE HAS SERVED IN THE NAVAL RESERVE OR IN THE MARINE CORPS RESERVE WHEN ORDERED TO ACTIVE DUTY.

THERE IS NO SPECIFIC PROVISION IN THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941 WITH RESPECT TO GRADES OR RATINGS IN WHICH MEN MAY BE INITIALLY ENLISTED IN THE COAST GUARD RESERVE, BUT YOUR AUTHORITY TO PROVIDE FOR ENLISTING MEN IN THE RESERVE IN GRADES ABOVE THE SEVENTH IS NOT QUESTIONED.

IN THE LIGHT OF THE FOREGOING, A MEMBER OF THE COAST GUARD RESERVE HOLDING A GRADE ABOVE THE SEVENTH WHEN ORDERED TO ACTIVE DUTY IS ENTITLED TO THE PAY OF HIS GRADE WITHOUT REGARD TO THE LIMITATION OF $21 PER MONTH IN SECTION 12 (A), SUPRA, EVEN THOUGH FOUR MONTHS HAVE NOT ELAPSED SINCE HE BECAME A MEMBER OF THE RESERVE AND HE HAS HAD NO OTHER MILITARY SERVICE. THIS RULE IS NOT RENDERED INAPPLICABLE IN THE CASE YOU PRESENT BY REASON OF THE FACT THAT THE ENLISTED MAN WAS ENROLLED IN THE COAST GUARD RESERVE AND ENTERED ON ACTIVE DUTY ON THE SAME DAY, AND, ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

BEING A CHIEF BOATSWAIN'S MATE AND ENTITLED TO THE PAY OF THAT GRADE HE IS ALSO ENTITLED TO THE ALLOWANCES TO WHICH AN ENLISTED MAN OF THAT GRADE IS ENTITLED WHEN PROPERLY PAYABLE.