B-20681, NOVEMBER 19, 1941, 21 COMP. GEN. 457

B-20681, NOVEMBER 19, 1941, 21 COMP. GEN. 457

MARINE CORPS ENLISTED MEN - UNDRAWN CLOTHING ALLOWANCE - PAYMENT PRIOR TO DISCHARGE THE MARINE CORPS APPROPRIATION FOR THE FISCAL YEAR 1942 FOR "UNDRAWN CLOTHING" IS AVAILABLE FOR THE PAYMENT, PRIOR TO ACTUAL DISCHARGE, OF ACCRUED CLOTHING ALLOWANCE SAVINGS DUE ENLISTED MEN OF THE MARINE CORPS "AS IS NOW BEING DONE IN THE ARMY," EVEN THOUGH THE APPROPRIATION DESIGNATES ONLY ,DISCHARGED ENLISTED MEN.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 19, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED SEPTEMBER 22, 1941, REQUESTING A DECISION ON THE QUESTION PRESENTED IN A LETTER OF THE MAJOR GENERAL COMMANDANT, U.S. MARINE CORPS, AS FOLLOWS:

SUBJECT: PAYMENT OF CLOTHING MONEY ALLOWANCE TO ENLISTED MEN OF THE MARINE CORPS.

1. SECTION 3 OF THE ACT OF MAY 15, 1872, 17 STAT. 117 (SEC. 1302, R.S.--- 10 U.S.C. 874), PROVIDES:

"THAT THE MONEY VALUE OF ALL CLOTHING OVERDRAWN BY THE SOLDIER BEYOND HIS ALLOWANCE SHALL BE CHARGED AGAINST HIM, EVERY SIX MONTHS, ON THE MUSTER- ROLL OF HIS COMPANY, OR ON HIS FINAL STATEMENTS IF SOONER DISCHARGED. THE AMOUNT DUE HIM FOR CLOTHING, HE HAVING DRAWN LESS THAN HIS ALLOWANCE, SHALL NOT BE PAID TO HIM UNTIL HIS FINAL DISCHARGE FROM THE SERVICE.' THE ACT MAKING APPROPRIATION FOR THE SUPPORT OF THE ARMY FOR THE FISCAL YEAR ENDING JUNE 30, 1922, AND FOR OTHER PURPOSES, APPROVED JUNE 30, 1921, 42 STAT. 82, AND THE ACT OF MARCH 8, 1922, 42 STAT. 418 (10 U.S.C. 833), PROVIDE:

"* * * THAT HEREAFTER THE SETTLEMENT OF CLOTHING ACCOUNTS OF ENLISTED MEN, INCLUDING CHARGES FOR CLOTHING DRAWN IN EXCESS OF CLOTHING ALLOWANCE AND PAYMENTS OF AMOUNTS DUE THEM WHEN THEY DRAW LESS THAN THEIR ALLOWANCE, SHALL BE MADE AT SUCH PERIODS AND UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR.'

2. PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 1296, REVISED STATUTES (10 U.S.C. 831), THE WAR DEPARTMENT, IN CIRCULAR NO. 97, DATED SEPTEMBER 7, 1940, SUSPENDED THE MONEY ALLOWANCE FOR CLOTHING TO ENLISTED MEN OF THE ARMY AUTHORIZED BY ARTICLE 615-40, ARMY REGULATIONS, AND ESTABLISHED IN LIEU THEREOF A CLOTHING ALLOWANCE FOR THE ISSUANCE OF CLOTHING IN KIND TO ENLISTED MEN OF THE ARMY. THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES IN HIS DECISION B 12967, DATED OCTOBER 25, 1940, AFTER A LENGTHY REVIEW OF THE STATUTES INVOLVED, HELD THAT BY ASSIMILATION UNDER SECTION 1612 OF THE REVISED STATUTES, ENLISTED MEN OF THE MARINE CORPS WERE ENTITLED TO THE SAME CLOTHING ALLOWANCE AUTHORIZED FOR ENLISTED MEN OF THE ARMY. IT WAS FURTHER HELD THAT:

"THEREFORE, YOU ARE ADVISED THAT THE EFFECT OF WAR DEPARTMENT CIRCULAR LETTER NO. 97, ISSUED SEPTEMBER 7, 1940, IS TO MODIFY THE MEASURE OF THE CLOTHING ALLOWANCE TO WHICH ENLISTED MEN OF THE MARINE CORPS ARE ENTITLED FROM THE EFFECTIVE DATE THEREOF, SEPTEMBER 16, 1940, FROM WHICH DATE ENLISTED MEN OF THE MARINE CORPS ARE ENTITLED TO ISSUES OF CLOTHING IN KIND AS PRESCRIBED IN SAID CIRCULAR LETTER AND UNDER THE CONDITIONS PRESCRIBED THEREIN FOR ISSUE OF CLOTHING TO ENLISTED MEN OF THE ARMY. THE QUESTION DOES NOT INVOLVE A CHANGE IN THE CONSTRUCTION OF THE LAW BUT A CHANGE IN THE APPLICATION OF THE LAW. THEREFORE, THE CHANGE MUST BE APPLIED TO ENLISTED MEN OF THE MARINE CORPS AS OF THE SAME DATE IT BECAME APPLICABLE TO ENLISTED MEN OF THE ARMY.'

3. THE CLOTHING ACCOUNTS OF ENLISTED MEN OF THE ARMY WERE CLOSED AS OF SEPTEMBER 15, 1940, AND ALL BALANCES FOUND DUE ON ACCOUNT OF SAVINGS FROM THE MONEY ALLOWANCE FOR CLOTHING WERE CARRIED FORWARD AS BALANCES DUE THE SOLDIERS TO BE PAID AT A LATER DATE, OR ON DISCHARGE. THE ADJUTANT GENERAL OF THE WAR DEPARTMENT, BY LETTER OF AUGUST 20, 1941, AG 246.5 (7-9 -41) MO-D-M, HAS NOW DIRECTED THE IMMEDIATE PAYMENT OF ALL SUCH SAVINGS. PARAGRAPH 1 OF THE ADJUTANT GENERAL'S LETTER IS QUOTED AS FOLLOWS:

"WITH REFERENCE TO PARAGRAPH 6, CIRCULAR 8, WAR DEPARTMENT, 1941 ( REVISION OF PARAGRAPH 6, CIRCULAR 97, WAR DEPARTMENT, 1940), UNPAID BALANCES OF MONEY DUE ENLISTED MEN FOR CLOTHING SAVINGS ACCRUED TO SEPTEMBER 15, 1940, BY REASON OF THE SUSPENSION OF THE CLOTHING MONEY ALLOWANCES, WILL BE SETTLED AS SOON AS POSSIBLE DURING THE CURRENT FISCAL YEAR. FOR THIS PURPOSE, THE PROVISIONS OF CURRENT REGULATIONS PROHIBITING THE PAYMENT OF CLOTHING SAVINGS TO ENLISTED MEN UNTIL THEIR SEPARATION FROM THE SERVICE ARE SUSPENDED.'

IT APPEARS THEREFORE, THAT THE WAR DEPARTMENT INTENDS TO PAY THE SAVED CLOTHING ALLOWANCE DUE ENLISTED MEN OF THE ARMY ON THE DATE ON WHICH MONEY ALLOWANCE FOR CLOTHING WAS SUSPENDED, SEPTEMBER 15, 1940, IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE ACTS OF JUNE 30, 1921, AND MARCH 8, 1922, 42 STAT. 82 AND 418, SUPRA.

4. AS A MEASURE OF ECONOMY IN ADMINISTRATION IT IS DESIRED TO SUSPEND THE PROVISIONS OF ARTICLE 15-8, MARINE CORPS MANUAL, AND IMMEDIATELY PAY THE BALANCES DUE THE ENLISTED MEN OF THE MARINE CORPS ON ACCOUNT OF SAVINGS FROM THE MONEY ALLOWANCE FOR CLOTHING ACCRUED TO THEM ON SEPTEMBER 30, 1940, THE DATE THE MONEY ALLOWANCE FOR CLOTHING WAS SUSPENDED. THE NAVAL APPROPRIATION ACT, 1942, APPROVED MAY 6, 1941, PUBLIC LAW 48, 77TH CONGRESS, PROVIDES UNDER PAY OF MARINE CORPS THAT:

"UNDRAWN CLOTHING: FOR PAYMENT TO DISCHARGED ENLISTED MEN FOR CLOTHING UNDRAWN, $264,000; "

5. IN VIEW OF THE APPARENT RESTRICTION CONTAINED IN THE CURRENT NAVAL APPROPRIATION ACT CITED, SUPRA, IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL OF THE UNITED STATES AS TO WHETHER DISBURSING OFFICERS OF THE MARINE CORPS MAY LEGALLY PAY ACCRUED SAVINGS OF CLOTHING ALLOWANCE DUE ENLISTED MEN OF THE MARINE CORPS PRIOR TO THEIR ACTUAL DISCHARGE AS IS NOW BEING DONE IN THE ARMY.

FOR MANY YEARS THERE HAS BEEN INCLUDED IN EACH ANNUAL MARINE CORPS APPROPRIATION AN ITEM FOR PAYMENT TO DISCHARGED ENLISTED MEN (REFERRED TO AS DISCHARGED SOLDIERS IN THE EARLIER APPROPRIATION ACTS) FOR CLOTHING UNDRAWN. THE LANGUAGE OF THESE APPROPRIATIONS DOUBTLESS WAS FORMULATED IN THE FIRST INSTANCE TO ACCORD WITH THE THE TERMS OF THE BASIC ACT OF MAY 15, 1872, 17 STAT. 117 (SECTION 1302, REVISED STATUTES; 10 U.S.C. 874) SUPRA, WHICH AUTHORIZED A CLOTHING ALLOWANCE FOR ENLISTED MEN OF THE ARMY, BUT PROVIDED THAT ANY AMOUNT DUE AN ENLISTED MAN ON SUCH ALLOWANCE SHOULD NOT BE PAID TO HIM UNTIL HIS FINAL DISCHARGE FROM THE SERVICE. THIS BASIC LAW WAS APPLICABLE TO ENLISTED MEN OF THE MARINE CORPS BY REASON OF THE PROVISIONS OF SECTION 1612, REVISED STATUTES. THE ACTS OF JUNE 30, 1921, 42 STAT. 82, AND MARCH 8, 1922, 42 STAT. 418 (10 U.S.C. 833), QUOTED IN THE MAJOR GENERAL COMMANDANT'S LETTER, SUPRA, AUTHORIZED THE SETTLEMENT OF CLOTHING ACCOUNTS OF ARMY ENLISTED MEN AND THE PAYMENT OF ANY BALANCES DUE THE MEN AT SUCH PERIODS AND UNDER SUCH REGULATIONS AS MIGHT BE PRESCRIBED BY THE SECRETARY OF WAR. THE CLOTHING MONEY ALLOWANCE FOR ARMY ENLISTED MEN WAS SUSPENDED AS OF MIDNIGHT SEPTEMBER 15, 1940 ( WAR DEPARTMENT CIRCULAR NO. 97, SEPTEMBER 7, 1940), AND UNDER DATE OF AUGUST 20, 1941, THE ADJUTANT GENERAL OF THE ARMY, BY ORDER OF THE SECRETARY OF WAR, DIRECTED THAT UNPAID BALANCES OF MONEY DUE ENLISTED MEN FOR CLOTHING SAVINGS ACCRUED TO SEPTEMBER 15, 1940, BE SETTLED AS SOON AS POSSIBLE DURING THE CURRENT FISCAL YEAR. IN THE DECISION OF OCTOBER 25, 1940, TO YOU (B-12967), IT WAS POINTED OUT THAT ANY CHANGE IN THE QUANTITY OF THE CLOTHING ALLOWANCE GRANTED TO ENLISTED MEN OF THE ARMY, AND ANY CHANGE IN THE CONDITIONS UNDER WHICH THE ALLOWANCE MAY BE ISSUED, APPLY TO ENLISTED MEN OF THE MARINE CORPS.

IN THE LIGHT OF THE HISTORY OF THE PROVISION IN THE 1942 MARINE CORPS APPROPRIATION "FOR PAYMENT TO DISCHARGED ENLISTED MEN FOR CLOTHING UNDRAWN," AND THE RELATED LEGISLATION, IT IS EVIDENT THAT THE CONGRESS DID NOT USE THE WORD "DISCHARGED" IN THE SAID PROVISION WITH THE PURPOSE OF LIMITING THE USE OF THE FUNDS, UNDER ANY AND ALL CONDITIONS, TO PAYMENTS TO DISCHARGED ENLISTED MEN. THE TERM "DISCHARGED ENLISTED MEN" WAS FIRST USED IN THE APPROPRIATIONS TO DESCRIBE THE ONLY CLASS OF ENLISTED MEN AUTHORIZED BY THE BASIC LAW TO RECEIVE A CASH PAYMENT ON ACCOUNT OF THE CLOTHING ALLOWANCE AND WAS NOT SPECIFICALLY DESIGNED FOR APPLICATION AS A TERM OF LIMITATION. IN THIS CONNECTION, SEE DECISION OF APRIL 30, 1941, TO THE SECRETARY OF STATE, B-16230, WHEREIN IT WAS HELD THAT FUNDS APPROPRIATED FOR "EXPENSES OF ORGANIZING AND HOLDING THE EIGHTH PAN AMERICAN CHILD CONGRESS IN THE UNITED STATES IN 1941" ARE AVAILABLE FOR OTHERWISE PROPER EXPENSES INCURRED AT ANY TIME PRIOR TO JULY 1, 1942, AND THAT THE DESIGNATION OF THE YEAR IN WHICH THE HOLDING OF THE CONGRESS WAS CONTEMPLATED MUST HAVE BEEN INTENDED AS DESCRIPTIVE ONLY SINCE TO GIVE IT EFFECT AS LIMITATION WOULD BE INCONSISTENT WITH THE PROVISION MAKING THE FUNDS AVAILABLE UNTIL JUNE 30, 1942. ALSO SEE 20 COMP. GEN. 399, IN WHICH IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

SINCE IT BECAME NECESSARY THAT THE INTERNATIONAL LABOR ORGANIZATION MOVE ITS HEADQUARTERS AWAY FROM GENEVA, SWITZERLAND, THE APPROPRIATION FOR "LIAISON WITH THE INTERNATIONAL LABOR ANIZATION," WHICH PROVIDES FOR PERSONAL SERVICES IN GENEVA, IS AVAILABLE FOR COMPENSATION OF EMPLOYEES AT THE SEAT OF GOVERNMENT, WASHINGTON, D.C., OR ELSEWHERE, IF SUCH EMPLOYEES ARE ENGAGED SOLELY ON FIELD DUTIES, BUT NOT IF THE EMPLOYEES ARE ENGAGED ON ADMINISTRATIVE DUTIES AT WASHINGTON IN VIEW OF THE SEAT OF GOVERNMENT EMPLOYMENT LIMITATION PROVISIONS OF THE ACT OF AUGUST 5, 1882.

IT DOES NOT APPEAR THAT THE USE OF THE FUNDS APPROPRIATED BY THE NAVAL APPROPRIATION ACT, 1942, FOR PAYMENT TO MARINE CORPS ENLISTED MEN FOR UNDRAWN CLOTHING PRIOR TO THEIR ACTUAL DISCHARGE FROM THE SERVICE WILL RESULT IN THE GOVERNMENT PAYING ANY GREATER TOTAL AMOUNT OF MONEY THAN IT WOULD PAY EVENTUALLY WHEN THE MEN ARE DISCHARGED, AND IT IS STATED BY THE MAJOR GENERAL COMMANDANT OF THE MARINE CORPS THAT THE ACCELERATION OF PAYMENT OF THE BALANCES DUE THE INDIVIDUAL MARINES WILL RESULT IN ECONOMY IN ADMINISTRATION.

IN VIEW OF ALL OF THE FOREGOING, THE MARINE CORPS APPROPRIATION FOR THE FISCAL YEAR 1942 FOR ,UNDRAWN CLOTHING" IS AVAILABLE FOR THE PAYMENT OF "ACCRUED SAVINGS OF CLOTHING ALLOWANCE DUE ENLISTED MEN OF THE MARINE CORPS PRIOR TO THEIR ACTUAL DISCHARGE AS IS NOW BEING DONE IN THE ARMY.'