B-19904, OCTOBER 27, 1941, 21 COMP. GEN. 365

B-19904, OCTOBER 27, 1941, 21 COMP. GEN. 365

PAY - ADDITIONAL - OVER TWELVE MONTHS' SERVICE - REGULAR ARMY RESERVISTS AND PHILIPPINE SCOUTS A REGULAR ARMY RESERVIST ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER AUTHORITY OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MUST HAVE 12 MONTHS' ACTIVE MILITARY SERVICE UNDER AUTHORITY OF SAID PUBLIC RESOLUTION- -- AS DISTINGUISHED FROM THE MILITARY SERVICE WHICH MAY BE COUNTED IN THE CASE OF ENLISTED PERSONNEL OF THE REGULAR ARMY--- BEFORE HE IS ENTITLED TO THE $10 PER MONTH ADDITIONAL PAY AUTHORIZED BY SECTION 8 (A) OF THE SERVICE EXTENSION ACT OF 1941, BUT IT IS IMMATERIAL WHETHER THE 12 MONTHS' SERVICE BE RENDERED BEFORE OR AFTER AUGUST 18, 1941, THE DATE OF APPROVAL OF THE LATTER ACT. IN VIEW OF THE PROVISIONS OF THE ACT OF MAY 10, 1926, WITH RESPECT TO THE PAY AND ALLOWANCES OF PHILIPPINE SCOUTS, IT IS DISCRETIONARY WITH THE SECRETARY OF WAR TO PROVIDE FOR ADDITIONAL PAY FOR THEM UNDER THE CONDITIONS AND LIMITATIONS FIXED FOR ENLISTED PERSONNEL OF THE REGULAR ARMY BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AUTHORIZING $10 PER MONTH ADDITIONAL PAY FOR EACH MONTH OF SERVICE IN EXCESS OF 12, AND THE SECRETARY MAY FIX THE MONTHLY RATE OF SUCH ADDITIONAL PAY AT ANY AMOUNT NOT EXCEEDING $10.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 27, 1941:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 7, 1941, AS FOLLOWS:

QUESTIONS HAVE ARISEN WITH RESPECT TO THE STATUS OF MEMBERS OF THE REGULAR ARMY RESERVE, CALLED TO ACTIVE DUTY, AND THE PHILIPPINE SCOUTS IN CONNECTION WITH THE PAY INCREASE AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, APPROVED AUGUST 18, 1941 ( PUBLIC LAW 213, 77TH CONGRESS), ON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED.

SECTION 8 OF THE ACT OF AUGUST 18, 1941, SUPRA, PROVIDES AS FOLLOWS:

"/A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR ACTIVE TRAINING AND SERVICE, UNDER SECTION 3 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 SHALL, IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE TO SUCH PERSON WITH RESPECT TO SUCH TRAINING AND SERVICE, BE ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH TRAINING AND SERVICE IN EXCESS OF TWELVE. THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY (1) TO ANY ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, OR SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, FOR ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL IN EXCESS OF TWELVE MONTHS, AND (2) TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER THE DATE OF ENACTMENT OF THIS JOINT RESOLUTION, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS TWELVE MONTHS.

"/B) THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE ONLY DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941.'

THE ACT OF APRIL 25, 1938 (52 STAT. 221), AUTHORIZING THE ORGANIZATION OF THE REGULAR ARMY RESERVE, PROVIDES IN PART AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE.'

SECTION 1 OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, APPROVED AUGUST 27, 1940 (54 STAT. 858), PROVIDES AS FOLLOWS:

"THAT DURING THE PERIOD ENDING JUNE 30, 1942, THE PRESIDENT BE, AND IS HEREBY, AUTHORIZED FROM TIME TO TIME TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR A PERIOD OF TWELVE CONSECUTIVE MONTHS EACH, ANY OR ALL MEMBERS AND UNITS OF ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES (EXCEPT THAT ANY PERSON IN THE NATIONAL GUARD OF THE UNITED STATES UNDER THE AGE OF 18 YEARS SO ORDERED INTO THE ACTIVE MILITARY SERVICE SHALL BE IMMEDIATELY ISSUED AN HONORABLE DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES), AND RETIRED PERSONNEL OF THE REGULAR ARMY, WITH OR WITHOUT THEIR CONSENT, TO SUCH EXTENT AND IN SUCH MANNER AS HE MAY DEEM NECESSARY FOR THE STRENGTHENING OF THE NATIONAL DEFENSE: PROVIDED, THAT THE MEMBERS AND UNITS OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES ORDERED INTO ACTIVE FEDERAL SERVICE UNDER THIS AUTHORITY SHALL NOT BE EMPLOYED BEYOND THE LIMITS OF THE WESTERN HEMISPHERE EXCEPT IN THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, INCLUDING THE PHILIPPINE ISLANDS.'

WITH REFERENCE TO THE REGULAR ARMY RESERVE, DECISION IS REQUESTED AS TO WHETHER MEMBERS OF THE REGULAR ARMY RESERVE ORDERED INTO ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940 (54 STAT. 858), MAY, IN COMPUTATION OF THE 12 MONTHS' SERVICE UNDER THE ACT OF AUGUST 18, 1941, SUPRA, COUNT MILITARY SERVICE RENDERED BEFORE AND AFTER THE DATE OF THE ACT AS PROVIDED FOR IN THE CASE OF ENLISTED PERSONNEL OF THE REGULAR ARMY, OR SHOULD THEY COUNT ONLY THE 12 MONTHS' SERVICE RENDERED AFTER INDUCTION AS PROVIDED FOR ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES.

WITH REFERENCE TO THE PHILIPPINE SCOUTS, DECISION IS REQUESTED AS TO WHETHER THEY ARE A COMPONENT OF THE REGULAR ARMY AND, AS SUCH, ARE ENTITLED TO THE ADDITIONAL $10 PER MONTH AS AUTHORIZED BY THE ACT OF AUGUST 18, 1941, SUPRA, OR IN ANY LESSER AMOUNT FIXED BY THE SECRETARY OF WAR AS AUTHORIZED BY THE ACT OF FEB. 2, 1901, AS AMENDED (44 STAT. 496; U.S.C. 10-334).

SECTION 30 OF THE ACT OF JUNE 3, 1916, 39 STAT. 187, AS AMENDED BY SECTION 30 OF THE ACT OF JUNE 4, 1920, 41 STAT. 775, AND THE ACT OF APRIL 25, 1938, 52 STAT. 221 (10 U.S.C.A. 343), IS AS OLLOWS:

THE REGULAR ARMY RESERVE.--- UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE. ANY PERSON WHO HAS SERVED IN THE REGULAR ARMY AND WHO HAS BEEN HONORABLY DISCHARGED THEREFROM, AND WHO IS LESS THAN THIRTY- SIX YEARS OF AGE MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE REENLISTED FOR THE REGULAR ARMY RESERVE. EACH SOLDIER THUS REENLISTED SHALL BE ENTITLED TO RECEIVE, DURING EACH YEAR OF HIS SERVICE IN THE REGULAR ARMY RESERVE, AN ENLISTMENT ALLOWANCE OF $24 PER ANNUM PAYABLE IN INSTALLMENTS UNDER SUCH REGULATIONS AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE. SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY SHALL CONFER NO RIGHT TO PAY, LONGEVITY PAY, RETIREMENT OR RETIRED PAY, OR ANY OTHER EMOLUMENTS UPON MEMBERS THEREOF EXCEPT AS PROVIDED IN THIS SECTION; AND MEMBERS OF THE REGULAR ARMY RESERVE SHALL BECOME ENTITLED TO PENSIONS ONLY DUE TO DISABILITY INCURRED WHILE ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. ACTIVE DUTY FOR SUCH PURPOSES SHALL BE DEEMED TO BEGIN ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY AND SHALL TERMINATE WHEN RELIEVED OR DISCHARGED FROM SUCH DUTY. MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY. IN ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE BUT NOT TO EXCEED $150. WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. WITHIN SIX MONTHS AFTER THE TERMINATION OF AN EMERGENCY DECLARED BY THE PRESIDENT, THEY SHALL BE PLACED IN AN INACTIVE STATUS OR DISCHARGED, WHICHEVER IS APPROPRIATE.

MEMBERS OF THE REGULAR ARMY RESERVE SHALL BE SUBJECT TO MILITARY LAW ONLY FROM THE DATE THEY ARE REQUIRED TO OBEY AN ORDER TO REPORT FOR ACTIVE DUTY.

SECTION 1 OF THE NATIONAL DEFENSE ACT, 48 STAT. 153, 10 U.S.C. 2, PROVIDES:

THAT THE ARMY OF THE UNITED STATES SHALL CONSIST OF THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, THE OFFICERS' RESERVE CORPS, THE ORGANIZED RESERVES, AND THE ENLISTED RESERVE CORPS.

FROM A READING OF SECTION 30, SUPRA, IN ITS ENTIRETY IT IS CLEAR THAT THE REGULAR ARMY RESERVE, ALTHOUGH A RESERVE OF THE REGULAR ARMY, IS ALSO A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES WITHIN THE MEANING OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, 55 STAT. 627, AND THAT MEMBERS OF THE REGULAR ARMY RESERVE ARE NOT MEMBERS OF THE REGULAR ARMY WITHIN THE MEANING OF THAT PART OF THE SAID SECTION 8 WHICH EXTENDS THE BENEFIT OF THE SECTION TO "ENLISTED PERSONNEL OF THE REGULAR ARMY.' FURTHERMORE, SINCE YOUR FIRST QUESTION RELATES TO "MEMBERS OF THE REGULAR ARMY RESERVE ORDERED INTO ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940," AND SINCE PUBLIC RESOLUTION NO. 96, 54 STAT. 858, AUTHORIZES THE PRESIDENT TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES "ANY OR ALL MEMBERS AND UNITS OF ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES," IT APPEARS THAT ADMINISTRATIVELY IT HAS BEEN RECOGNIZED THAT MEMBERS OF THE REGULAR ARMY RESERVE ARE MEMBERS OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES.

UNDER THE TERMS OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, SUPRA, ANY ENLISTED PERSONNEL "OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES ORDERED INTO ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940," IS ENTITLED TO RECEIVE $10 FOR EACH MONTH OF "ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL IN EXCESS OF 12 MONTHS.' ( ITALICS SUPPLIED.) IN OTHER WORDS, THE STATUTE PROVIDES THAT RESERVE PERSONNEL RENDERING ACTIVE MILITARY SERVICE ORDERED UNDER PUBLIC RESOLUTION NO. 96, SHALL, AFTER RENDERING 12 MONTHS OF SUCH SERVICE, BE PAID AN ADDITIONAL $10 FOR EACH MONTH OF SUCH SERVICE IN EXCESS OF 12 MONTHS.

ACCORDINGLY, A REGULAR ARMY RESERVIST ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER AUTHORITY OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, MUST HAVE HAD 12 MONTHS OF ACTIVE MILITARY SERVICE UNDER AUTHORITY OF THE SAID PUBLIC RESOLUTION BEFORE HE IS ENTITLED TO THE ADDITIONAL PAY AUTHORIZED BY SECTION 8 (A) OF THE SERVICE EXTENSION ACT OF 1941, BUT IT IS IMMATERIAL WHETHER THE 12 MONTHS' SERVICE WAS RENDERED BEFORE OR AFTER AUGUST 18, 1941, THE DATE OF APPROVAL OF THE SERVICE EXTENSION ACT OF 1941.

YOUR SECOND QUESTION RELATES TO THE EFFECT OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 ON THE PAY AND ALLOWANCES OF PHILIPPINE SCOUTS. SECTION 36 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 757 (SEE 10 U.S.C. 334), PROVIDED, IN PART, AS FOLLOWS:

THAT WHEN IN HIS OPINION THE CONDITIONS IN THE PHILIPPINE ISLANDS JUSTIFY SUCH ACTION THE PRESIDENT IS AUTHORIZED TO ENLIST NATIVES OF THOSE ISLANDS FOR SERVICE IN THE ARMY, TO BE ORGANIZED AS SCOUTS, WITH SUCH OFFICERS AS HE SHALL DEEM NECESSARY FOR THEIR PROPER CONTROL, OR AS TROOPS OR COMPANIES, AS AUTHORIZED BY THIS ACT, FOR THE REGULAR ARMY. THE PRESIDENT IS FURTHER AUTHORIZED, IN HIS DISCRETION, TO FORM COMPANIES ORGANIZED AS ARE COMPANIES OF THE REGULAR ARMY, IN SQUADRONS OR BATTALIONS, WITH OFFICERS AND NON-COMMISSIONED OFFICERS CORRESPONDING TO SIMILAR ORGANIZATIONS IN THE CAVALRY AND INFANTRY ARMS. * * *

* * * THE PAY, RATIONS, AND CLOTHING ALLOWANCES TO BE AUTHORIZED FOR THE ENLISTED MEN SHALL BE FIXED BY THE SECRETARY OF WAR, AND SHALL NOT EXCEED THOSE AUTHORIZED FOR THE REGULAR ARMY.

SECTION 36 WAS AMENDED BY THE ACT OF MAY 10, 1926, 44 STAT. 496, AS FOLLOWS:

THAT THE LAST SENTENCE OF THE SECOND PARAGRAPH OF SECTION 36 OF THE ACT ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE PERMANENT MILITARY ESTABLISHMENT OF THE UNITED STATES," APPROVED FEBRUARY 2, 1901 ( THIRTY- FIRST STATUTES AT LARGE, PAGE 757), BE, AND THE SAME IS HEREBY AMENDED TO READ AS FOLLOWS:

"THE PAY AND ALLOWANCES OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS SHALL BE FIXED BY THE SECRETARY OF WAR AND SHALL NOT EXCEED OR BE OF OTHER CLASSES THAN THOSE NOW OR WHICH MAY HEREAFTER BE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE REGULAR ARMY: PROVIDED, THAT PAYMENTS OF TRAVEL PAY AND OF COMMUTATION OF QUARTERS, HEAT, AND LIGHT HERETOFORE MADE TO ENLISTED MEN OF THE PHILIPPINE SCOUTS, IF NOT IN EXCESS OF THOSE AUTHORIZED AT THE TIME FOR ENLISTED MEN OF THE REGULAR ARMY, BE, AND THE SAME ARE HEREBY VALIDATED: AND PROVIDED FURTHER, THAT ANY SUCH PAYMENTS OF TRAVEL PAY AND COMMUTATION OF QUARTERS, HEAT, AND LIGHT WHICH HAVE BEEN COLLECTED BACK FROM ENLISTED MEN OF THE PHILIPPINE SCOUTS TO WHOM ORIGINALLY PAID SHALL BE REFUNDED TO THEM.'

IN VIEW OF THE PROVISIONS OF THE ACT OF MAY 10, 1926, 10 U.S.C. 334, IT IS DISCRETIONARY WITH THE SECRETARY OF WAR TO PROVIDE FOR ADDITIONAL PAY FOR PHILIPPINE SCOUTS UNDER THE CONDITIONS AND LIMITATIONS FIXED FOR ENLISTED PERSONNEL OF THE REGULAR ARMY BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AND THE SECRETARY MAY FIX THE MONTHLY RATE OF SUCH PAY AT ANY AMOUNT NOT EXCEEDING $10.