B-22921, FEBRUARY 2, 1942, 21 COMP. GEN. 739

B-22921, FEBRUARY 2, 1942, 21 COMP. GEN. 739

UNIFORM ALLOWANCE - NAVAL RESERVE OFFICERS UPON REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY UPON FIRST REPORTING FOR DUTY IN TIME OF WAR OR NATIONAL EMERGENCY AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, COMMISSIONED AND WARRANT OFFICERS OF THE NAVAL RESERVE WHO HAVE NOT PREVIOUSLY RECEIVED THE $100 PEACETIME UNIFORM ALLOWANCE AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938 ARE ENTITLED TO THAT ALLOWANCE AS WELL AS TO THE FURTHER SUM OF $150 AUTHORIZED BY THE SAME SECTION FOR THE PURCHASE OF REQUIRED UNIFORMS WHEN FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 2, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 2, 1942 (WITH ENCLOSURE), AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE OFFICER IN CHARGE, RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, DATED DECEMBER 12, 1941, WITH ACCOMPANYING ENDORSEMENTS, RELATIVE TO THE QUESTION OF UNIFORM ALLOWANCE PAYABLE IN THE CASE OF COMMISSIONED AND WARRANT OFFICERS OF THE NAVAL RESERVE REPORTING FOR ACTIVE DUTY ON AND AFTER DECEMBER 8, 1941.

YOUR DECISION IS REQUESTED ON THE QUESTIONS SET FORTH IN PARAGRAPH 2 OF THE ENCLOSED LETTER OF DECEMBER 12, 1941, AS FOLLOWS:

(A) IN VIEW OF THE DECLARATION OF WAR ON DECEMBER 8, 1941 ( PUBLIC LAW 328, 77TH CONGRESS), ARE COMMISSIONED AND WARRANT OFFICERS OF THE NAVAL RESERVE REPORTING FOR ACTIVE DUTY ON OR AFTER THAT DATE ENTITLED TO THE $100 UNIFORM ALLOWANCE AUTHORIZED TO BE PAID BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938 APPROVED JUNE 25, 1938 (52 STAT. 1180; 34 U.S.C. 855A/?

(B) IF IT IS DECIDED THAT COMMISSIONED OFFICERS AND WARRANT OFFICERS OF THE NAVAL RESERVE ARE ENTITLED ONLY TO THE $150 UNIFORM ALLOWANCE UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR, MAY SUCH OFFICERS BE PAID THE FURTHER SUM OF $50 AFTER COMPLETION OF EACH PERIOD OF NOT LESS THAN FOUR YEARS IN THE NAVAL RESERVE SUBJECT TO THE CONDITIONS OUTLINED IN SECTION 302 OF THE NAVAL RESERVE ACT OF 1938?

THE INDORSEMENT OF THE BUREAU OF NAVIGATION RELATIVE TO THE QUESTIONS PRESENTED IS AS FOLLOWS: SUBJECT: UNIFORM GRATUITY--- AMOUNTS PAYABLE; REQUEST FOR ADVANCE

DECISION REGARDING. REFERENCES: (A) NAVAL RESERVE ACT OF 1938 APPROVED JUNE 25, 1938.

(B) PUBLIC LAW 188, 77TH CONGRESS APPROVED JULY 24,

1941.

1. FORWARDED, CONCURRING IN THE RECOMMENDATION IN THE PRECEDING ENDORSEMENT THAT THE BASIC LETTER BE REFERRED TO THE COMPTROLLER GENERAL FOR DECISION.

2. ATTENTION IS INVITED TO THE LAST PROVISO OF SECTION 302 OF THE REFERENCE WHICH STATES,"THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150.00 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.' THE USE OF THE WORD "FURTHER" INDICATES THAT IT WAS THE INTENT OF CONGRESS THAT NAVAL RESERVE OFFICERS FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR WOULD RECEIVE NOT ONLY THE $100.00 AUTHORIZED IN SECTION 302 OF REFERENCE (A) IN TIME OF PEACE BUT THE SUM OF $150.00 AS AN ADDITIONAL PAYMENT. THE TOTAL OF $250.00 APPROXIMATES THE COST OF UNIFORMS REQUIRED BY NAVAL RESERVISTS ON ACTIVE DUTY IN WAR TIME.

3. AS FURTHER EVIDENCE THAT THE ABOVE WAS THE UNDERSTANDING OF CONGRESS IS SECTION 7 (B) OF REFERENCE (B) WHICH READS "ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY SECTION 2 OF THIS ACT, BE PAID THE SUM OF $250.00 AS A UNIFORM GRATUITY.'

SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, IS AS FOLLOWS:

IN TIME OF PEACE, UPON FIRST REPORTING FOR ACTIVE OR TRAINING DUTY WITH PAY, AFTER ENACTMENT HEREOF, AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, OR AFTER THE AUTHORIZED PERFORMANCE OF FOURTEEN DRILLS, A COMMISSIONED OR WARRANT OFFICER OF THE NAVAL RESERVE SHALL BE PAID A SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS, AND THEREAFTER HE SHALL BE PAID AN ADDITIONAL SUM OF $50 FOR THE SAME PURPOSE UPON THE COMPLETION OF EACH PERIOD OF NOT LESS THAN FOUR YEARS IN THE NAVAL RESERVE: PROVIDED, THAT THIS LATTER AMOUNT OF $50 SHALL NOT BECOME DUE ANY OFFICER UNTIL HE HAS COMPLETED NOT LESS THAN ONE HUNDRED AND FIFTY DRILLS OR PERIODS OF OTHER EQUIVALENT INSTRUCTION OR DUTY OR APPROPRIATE DUTIES AND FIFTY SIX DAYS' ACTIVE OR TRAINING DUTY, OR SEVENTY-FIVE DRILLS AND EIGHTY FOUR DAYS' ACTIVE OR TRAINING DUTY, OR ONE HUNDRED TWELVE DAYS' ACTIVE OR TRAINING DUTY: PROVIDED FURTHER, THAT ANY OFFICER WHO HAS HERETOFORE RECEIVED A UNIFORM GRATUITY SHALL NOT BE ENTITLED TO EITHER OF THE ABOVE-MENTIONED SUMS UNTIL THE EXPIRATION OF FOUR YEARS FROM THE DATE OF THE RECEIPT OF THE LAST SUCH GRATUITY: PROVIDED FURTHER, THAT UNIFORMS FOR AVIATION CADETS SHALL BE PROVIDED AS HERETOFORE OR HEREAFTER AUTHORIZED BY LAW: AND PROVIDED FURTHER, THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.

IN A DECISION DATED NOVEMBER 8, 1939, B-6777, TO THE ACTING SECRETARY OF THE NAVY, IT WAS HELD THAT UNDER THE PROVISIONS OF SECTION 302, SUPRA, OFFICERS OF THE MARINE CORPS RESERVE WHO HAD NO PREVIOUS ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PRIOR TO THEIR REPORTING FOR ACTIVE DUTY UNDER EXECUTIVE ORDER NO. 8245, DATED SEPTEMBER 8, 1939, PURSUANT TO THE NATIONAL EMERGENCY PROCLAMATION OF THE SAME DATE, ARE ENTITLED TO BE PAID THE PEACETIME SUM OF $100 AS REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS, PROVIDING UNIFORMS ARE REQUIRED TO BE WORN AT THE PLACE OF SO REPORTING FOR DUTY, AND TO THE ADDITIONAL SUM OF $150 FOR THE SAME PURPOSE. THE EFFECT OF SECTION 302 WAS STATED IN THE SAID DECISION AS FOLLOWS:

THE LANGUAGE OF THE LAST PROVISO OF SECTION 302 OF THE NAVAL RESERVE ACT OF 1938--- "THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO ALL OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY," DOES NOT INDICATE THAT TWO SEPARATE AND DISTINCT ALLOWANCES ARE AUTHORIZED FOR THE PURCHASE OF REQUIRED UNIFORMS BUT RATHER A SINGLE SUM, A MINIMUM AND MAXIMUM BEING PAYABLE UNDER DIFFERENT CONDITIONS, THE MINIMUM SUM TO BE PAYABLE IN TIME OF PEACE AND THE MAXIMUM SUM TO BE PAID WHEN REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. THE WARTIME SUM IS NOT A SUBSTITUTE FOR THE PEACETIME SUM BUT AN ADDITIONAL SUM TO BE PAID ONLY WHEN THE CONDITIONS PRESCRIBED EXIST. THE CONDITIONS FOR PAYMENT OF THE MINIMUM OR PEACETIME SUM OR ALLOWANCE ARE THAT THE OFFICER REPORT FOR DUTY "AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN" AND THE PAYMENT IS AUTHORIZED WHETHER THE DUTY IS ACTIVE OR TRAINING DUTY. THE SUM AUTHORIZED IN THE LAST PROVISO IS PAYABLE ONLY WHEN FIRST REPORTING FOR "ACTIVE DUTY" IN TIME OF WAR OR NATIONAL EMERGENCY BUT WITHOUT REGARD TO WHETHER UNIFORMS ARE REQUIRED TO BE WORN AT THE PLACE OF REPORTING. 6594, OCTOBER 25, 1939.

THE STATUTORY PROVISION FOR PAYMENT OF A UNIFORM ALLOWANCE OF $100 TO NAVAL RESERVE OFFICERS REPORTING FOR ACTIVE DUTY IN TIME OF PEACE UNDER SPECIFIED CONDITIONS WAS INTENDED AS PERMITTING PAYMENT OF SUCH ALLOWANCE IN PEACETIME AND NOT AS REQUIRING THAT THE ALLOWANCE BE PAID ONLY IN TIME OF PEACE. THE PURPOSE OF SECTION 302 IS TO PLACE ONE LIMIT ON THE AMOUNT OF THE UNIFORM ALLOWANCE PAYABLE IN PEACETIME AND A HIGHER LIMIT ON THE AMOUNT PAYABLE IN TIME OF WAR OR NATIONAL EMERGENCY, BUT IT IS NOT THE PURPOSE OF THE LAW TO BAR AN OFFICER OF THE NAVAL RESERVE FROM RECEIVING THE MINIMUM OR SO-CALLED PEACETIME ALLOWANCE MERELY BECAUSE HIS FIRST ACTIVE DUTY AS A RESERVIST IS ORDERED IN TIME OF WAR OR NATIONAL EMERGENCY. IN SUCH A CASE THE OFFICER, NOT HAVING RECEIVED ANY UNIFORM ALLOWANCE IN TIME OF PEACE, IS ENTITLED TO HAVE THE AMOUNT OF THE SO- CALLED PEACETIME ALLOWANCE INCLUDED IN THE AMOUNT PAID TO HIM IN TIME OF WAR IF THE CONDITIONS OF THE STATUTE ARE MET.

ARTICLE H-8704 (3), BUREAU OF NAVIGATION MANUAL, AS AMENDED BY BUREAU OF NAVIGATION MANUAL CIRCULAR LETTER NO. 4-41, OCTOBER 14, 1941, IS AS FOLLOWS:

(3) EXCEPT AS PROVIDED IN ARTICLE H-8703 (4), UPON FIRST REPORTING FOR ACTIVE DUTY WITH PAY IN TIME OF WAR OR NATIONAL EMERGENCY, AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, AN OFFICER OF THE NAVAL RESERVE WHO HAS IN HIS POSSESSION THE REQUIRED UNIFORMS, AND WHO HAS NOT THERETOFORE RECEIVED ANY UNIFORM ALLOWANCE, IS ENTITLED TO THE PEACETIME ALLOWANCE OF $100. UPON FIRST REPORTING FOR ACTIVE DUTY WITH PAY IN TIME OF WAR OR NATIONAL EMERGENCY, AN OFFICER OF THE NAVAL RESERVE IS ENTITLED TO THE FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS WITHOUT REGARD TO WHETHER UNIFORMS ARE REQUIRED TO BE WORN AT THE PLACE OF REPORTING FOR DUTY OR WHETHER HE HAS THE REQUIRED UNIFORMS IN HIS POSSESSION.

THE PROVISIONS OF THIS ARTICLE ARE NOT INCONSISTENT WITH THE TERMS OF SECTION 302 OF THE NAVAL RESERVE ACT OF 1938. THE CONDITION THAT AN OFFICER HAVE IN HIS POSSESSION THE REQUIRED UNIFORMS BEFORE HE IS ENTITLED TO THE PEACETIME ALLOWANCE OF $100 IS A COMPETENT ONE IN VIEW THAT SECTION 302 PROVIDES FOR PAYMENT TO OFFICERS REPORTING AT LOCATIONS WHERE UNIFORMS ARE REQUIRED TO BE WORN AND PROVIDES FOR PAYMENT OF THE $100 AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS.

ACCORDINGLY, PAYMENTS MADE IN AGREEMENT WITH THE TERMS OF THE QUOTED ARTICLE OF THE BUREAU OF NAVIGATION MANUAL WILL NOT BE QUESTIONED BY THIS OFFICE, IF OTHERWISE CORRECT. IN VIEW OF THE FOREGOING, YOUR SECOND QUESTION REQUIRES NO ANSWER.