B-78822, DECEMBER 31, 1948, 28 COMP. GEN. 386

B-78822, DECEMBER 31, 1948, 28 COMP. GEN. 386

PAY - MUSTERING-OUT - NAVAL RESERVE - SERVICE OUTSIDE CONTINENTAL LIMITS OF UNITED STATES THE PROVISIONS OF SECTION 2 (A) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AUTHORIZING A MUSTERING-OUT PAYMENT FOR ACTIVE SERVICE PERFORMED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, ARE NOT APPLICABLE TO SERVICE PERFORMED BY MEMBERS OF THE WOMEN'S RESERVE OF THE NAVAL RESERVE PRIOR TO SEPTEMBER 27, 1944, THE DATE OF THE ACT AMENDING SECTION 504 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AUTHORIZING THE VOLUNTARY ASSIGNMENT OF SUCH PERSONNEL TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. MEMBERS OF THE NAVY AND NAVAL RESERVE WHO TRAVELED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY STATION FROM ONE POINT IN THE UNITED STATES TO ANOTHER POINT IN THE UNITED STATES, ONLY, MAY NOT BE REGARDED AS HAVING PERFORMED "SERVICE" OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 2 (A) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AUTHORIZING A MUSTERING-OUT PAYMENT ON ACCOUNT THEREOF, IN THE ABSENCE OF A "DECISION" BY THE SECRETARY OF THE NAVY TO THE CONTRARY UNDER SECTION 5 (B) OF SAID ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 31, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 28, 1948, WITH ENCLOSURES, REFERRING TO AN EXCEPTION TAKEN BY THE AUDIT DIVISION OF THIS OFFICE TO A PAYMENT OF $100 ADDITIONAL MUSTERING-OUT PAY WHICH WAS MADE TO MARIE L. CARMAN, A FORMER MEMBER OF THE WOMEN'S RESERVE, U.S. NAVAL RESERVE, ON THE BASIS THAT SHE HAD HAD SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. THE EXCEPTION WAS TAKEN FOR THE STATED REASON THAT THE ENLISTED WOMAN WAS NOT ENTITLED TO SUCH ADDITIONAL MUSTERING-OUT PAY AS FOR SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES "BY REASON OF PASSING THROUGH CANADA ON MAY 1, 1943, EN ROUTE FROM HUNTERS COLLEGE, BRONX, NEW YORK, TO MADISON, WISCONSIN, INASMUCH AS MEMBERS OF THE WOMEN'S RESERVE WERE NOT AUTHORIZED TO SERVE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PRIOR TO SEPTEMBER 27, 1944.' IN THE SAID LETTER YOU PRESENT, AND REQUEST DECISION ON, CERTAIN QUESTIONS AS FOLLOWS:

(1) ARE MEMBERS OF THE WOMEN'S RESERVE OF THE NAVAL RESERVE WHO PERFORMED SERVICE (ACTIVE DUTY AT A DUTY STATION) OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, INCLUDING CANADA AND MEXICO, PRIOR TO SEPTEMBER 27, 1944, ENTITLED UPON DISCHARGE TO MUSTERING-OUT PAYMENT COMPUTED ON THE BASIS OF THEIR HAVING SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

(2) ARE MEMBERS OF THE WOMEN'S RESERVE OF THE NAVAL RESERVE WHO PERFORMED TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY FROM A DUTY STATION AT ONE POINT WITHIN THE CONTINENTAL LIMITS TO A DUTY STATION AT ANOTHER POINT WITHIN THE CONTINENTAL LIMITS, PRIOR TO SEPTEMBER 27, 1944, ENTITLED UPON DISCHARGE TO MUSTERING-OUT PAYMENT COMPUTED ON THE BASIS OF THEIR HAVING SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

(3) ARE MEMBERS OF THE WOMEN'S RESERVE OF THE NAVAL RESERVE WHO PERFORMED TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY FROM A DUTY STATION AT ONE POINT WITHIN THE CONTINENTAL LIMITS TO A DUTY STATION AT ANOTHER POINT WITHIN THE CONTINENTAL LIMITS, SUBSEQUENT TO SEPTEMBER 27, 1944, ENTITLED UPON DISCHARGE TO MUSTERING-OUT PAYMENT COMPUTED ON THE BASIS OF THEIR HAVING SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

(4) ARE MALE MEMBERS OF THE NAVY AND NAVAL RESERVE, WHO HAVE PERFORMED TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY FROM A DUTY STATION AT ONE POINT WITHIN THE CONTINENTAL LIMITS, ENTITLED UPON DISCHARGE TO MUSTERING-OUT PAYMENT COMPUTED ON THE BASIS OF THEIR HAVING SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES?

SECTION 2 (A) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 9, PROVIDES AS FOLLOWS:

SEC. 2. (A) MUSTERING-OUT PAYMENT FOR PERSONS ELIGIBLE UNDER SECTION 1 SHALL BE IN SUMS AS FOLLOWS:

(1) $300 FOR PERSONS WHO, HAVING PERFORMED ACTIVE SERVICE FORSIXTY DAYS OR MORE, HAVE SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

(2) $200 FOR PERSONS WHO, HAVING PERFORMED ACTIVE SERVICE FOR SIXTY DAYS OR MORE, HAVE SERVED NO PART THEREOF OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

(3) $100 FOR PERSONS WHO HAVE PERFORMED ACTIVE SERVICE FOR LESS THAN SIXTY DAYS.

SECTION 5 (B) OF THE SAID ACT, 58 STAT. 10, IS AS FOLLOWS:

(B) THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THIS ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL.

PURSUANT TO THE PROVISIONS OF SECTION 5 (B), QUOTED ABOVE, THE SECRETARY OF THE NAVY ON JANUARY 6, 1945, APPROVED REGULATIONS DEFINING SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AS FOLLOWS:

SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES REGARDLESS OF THE PERIOD OF TIME SHALL BE CONSTITUTED BY (1) SERVICE AFLOAT OR IN THE AIR BEYOND THE THREE MILE LIMIT, INCLUDING THAT IN A TRAVEL STATUS; (2) SERVICE PERFORMED IN A UNITED STATES TERRITORY OR FOREIGN COUNTRY, INCLUDING CANADA AND MEXICO, INCLUDING THAT PERFORMED WHILE IN A TRAVEL STATUS; * * * ( ITALICS SUPPLIED.)

IT WILL BE NOTED THAT THE MUSTERING-OUT PAYMENT ACT OF 1944 AUTHORIZES THE PAYMENT OF $300 TO PERSONS WHO HAVE PERFORMED 60 DAYS' OR MORE ACTIVE SERVICE AND HAVE "SERVED" OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA AND THAT THE SAID ACT FURTHER AUTHORIZES THE SECRETARY TO MAKE REGULATIONS NOT INCONSISTENT WITH THE ACT AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT. ALSO, THE SAID ACT PROVIDES THAT "DECISIONS" OF THE SECRETARY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL. THE REGULATIONS ISSUED PURSUANT TO SECTION 5 (B), SUPRA, ARE NOT ENTIRELY CLEAR AS TO WHETHER AN INDIVIDUAL WHO, INCIDENT TO A CHANGE OF DUTY STATION FROM ONE POINT IN THE UNITED STATES TO ANOTHER POINT IN THE UNITED STATES, IS DIRECTED TO PROCEED BY TRAIN WHICH IS ROUTED THROUGH CANADA, IS TO BE REGARDED AS HAVING "SERVED" OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES SOLELY BY VIRTUE OF THE FACT THAT SUCH TRAIN PASSED THROUGH A PORTION OF CANADA. IN ANY EVENT, IT DOES NOT APPEAR THAT THE SECRETARY OF THE NAVY HAS ISSUED A "DECISION" SPECIFICALLY DEFINING SUCH A JOURNEY AS CONSTITUTING SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHIN THE MEANING OF THE MUSTERING-OUT PAYMENT ACT OF 1944. IN THAT CONNECTION, IT HAS BEEN NOTED THAT THE JUDGE ADVOCATE GENERAL OF THE NAVY HAD OCCASION TO CONSIDER THE QUESTION WHETHER OR NOT PERSONNEL OF THE COAST GUARD WERE ENTITLED TO AN ADDITIONAL $100 MUSTERING-OUT PAYMENT BY REASON OF TRAVEL PERFORMED, UNDER ORDERS, TO AND FROM SANTA CATALINA ISLAND--- WHICH ISLAND IS A PART OF THE STATE OF CALIFORNIA BUT IS LOCATED APPROXIMATELY 20 MILES FROM THE MAINLAND--- AND THAT IN AN OPINION DATED APRIL 25, 1944 (WHICH WAS APPROVED BY THE SECRETARY OF THE NAVY ON THE SAME DATE) HE CONCLUDED, IN PERTINENT PART, AS OLLOWS:

WHILE IT IS CLEAR FROM THE FOREGOING THAT SERVICE PERFORMED ON SANTA CATALINA ISLAND IS SERVICE IN THE CONTINENTAL LIMITS OF THE UNITED STATES, WITHIN THE MEANING OF THE MUSTERING-OUT PAYMENT ACT OF 1944, THERE REMAINS FOR DETERMINATION THE SPECIFIC QUESTION WHETHER NECESSARY TRAVEL OF COAST GUARD PERSONNEL TO AND FROM SANTA CATALINA ISLAND BY VESSEL OR AIRCRAFT CONSTITUTES SERVICE BEYOND THE THREE MILE LIMIT WITHIN THE MEANING OF ALNAV 32-44, WHICH PROVIDES IN PART: "1SERVICE AFLOAT OR IN AIR BEYOND THREE MILE LIMIT REGARDLESS PERIOD OF TIME CONSTITUTES SERVICE OUTSIDE CONTINENTAL UNITED STATES.'

THE FACT THAT IT IS NECESSARY FOR COAST GUARD PERSONNEL TO TRAVEL OUTSIDE THE THREE MILE LIMIT BY VESSEL OR AIRCRAFT FROM ONE PART OF THE STATE OF CALIFORNIA TO ANOTHER PART THEREOF FOR THE PERFORMANCE OF ORDERED DUTY WITHIN THE STATE DOES NOT, IN THE OPINION OF THIS OFFICE, WARRANT THE CONCLUSION THAT SUCH TRAVEL CONSTITUTES SERVICE "OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" WITHIN THE MEANING OF THE QUOTED WORDS AS DEFINED IN ALNAV 32-44, SUPRA. IT APPEARS THAT TRAVEL PERFORMED IN SUCH CIRCUMSTANCES SHOULD NOT BE HELD TO CONSTITUTE SERVICE "OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 2 (A) OF THE MUSTERING-OUT PAYMENT ACT OF 1944. IN THIS CONNECTION IT IS PERTINENT TO ADD THAT NOTHING APPEARS IN THE HEARINGS, REPORTS OR DISCUSSIONS ON THE MUSTERING-OUT PAY LEGISLATION AS INDICATING ANY INTENTION ON THE PART OF CONGRESS THAT TRAVEL FROM ONE PART OF A STATE TO ANOTHER PART THEREOF FOR SERVICE THEREIN, BEYOND THE THREE MILE LIMIT, SHOULD CONSTITUTE ACTIVE SERVICE FOR THE PURPOSE OF COMPUTING LENGTH OF SERVICE SO AS TO ENTITLE THE OFFICER OR ENLISTED MAN CONCERNED TO MUSTERING-OUT PAYMENT OF $300 UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944. THE DEFINITION OF ,SERVICE OUTSIDE CONTINENTAL UNITED STATES" AS CONTAINED IN PARAGRAPH 6 OF ALNAV 32-44 IS BELIEVED TO BE FOR GENERAL APPLICATION AND NOT APPLICABLE IN SPECIFIC CASES, SUCH AS THE PRESENT, WHERE TRAVEL BY VESSEL OR AIRCRAFT IS NOT FOR THE PURPOSE OF PERFORMING SERVICE AT A PLACE OF DUTY LOCATED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. ( ITALICS SUPPLIED.)

SEE, ALSO, MOORE V. UNITED STATES, 58 C.1CLS. 475; UNITED STATES V. HUTCHINS, 151 U.S. 542.

IN VIEW OF THE APPROVAL BY THE SECRETARY OF THE NAVY OF THE ABOVE QUOTED OPINION OF APRIL 25, 1944, THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE REGULATIONS ISSUED BY THE SECRETARY CONTEMPLATE THE PAYMENT OF ADDITIONAL MUSTERING-OUT PAY AS FOR SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHERE THE ONLY "SERVICE" PERFORMED BY THE INDIVIDUAL CONSISTED OF TRAVEL PERFORMED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY STATION FROM ONE POINT IN THE UNITED STATES TO ANOTHER POINT IN THE UNITED STATES. HOWEVER, IF IT ADMINISTRATIVELY WAS INTENDED TO AUTHORIZE PAYMENT OF ADDITIONAL MUSTERING-OUT PAY IN CASES SUCH AS THOSE REFERRED TO IN QUESTIONS (3) AND (4), AND IF THE SECRETARY OF THE NAVY, IN THE EXERCISE OF THE AUTHORITY VESTED IN HIM BY SECTION 5 (B), SUPRA, SHOULD ISSUE A "DECISION" DESIGNATING TRAVEL UNDER THE CIRCUMSTANCES SET FORTH IN THE SAID QUESTIONS AS SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, THIS OFFICE WOULD NOT BE REQUIRED TO QUESTION OTHERWISE PROPER PAYMENTS MADE IN ACCORDANCE WITH SUCH "DECISION.' IN THE ABSENCE OF SUCH "DECISION" THIS OFFICE WOULD NOT BE JUSTIFIED IN ALLOWING CREDIT IN SUCH CASES FOR PAYMENTS OF ADDITIONAL MUSTERING-OUT PAY MADE ON THE BASIS THAT THE TRAVEL CONSTITUTED "SERVICE" OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. QUESTIONS (3) AND (4) ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO QUESTIONS (1) AND (2), CONCERNING PAYMENT OF ADDITIONAL MUSTERING-OUT PAY TO MEMBERS OF THE WOMEN'S RESERVE WHO PERFORMED ACTIVE DUTY OR TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PRIOR TO SEPTEMBER 27, 1944, IT WILL BE NOTED THAT THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF JULY 30, 1942, 56 STAT. 730, PROVIDED IN PERTINENT PART AS FOLLOWS:

SEC. 504. MEMBERS OF THE WOMEN'S RESERVE SHALL BE RESTRICTED TO THE PERFORMANCE OF SHORE DUTY WITHIN THE CONTINENTAL UNITED STATES ONLY AND SHALL NOT BE ASSIGNED TO DUTY ON BOARD VESSELS OF THE NAVY OR IN COMBAT AIRCRAFT.

THE SAID SECTION 504 WAS AMENDED BY THE ACT OF SEPTEMBER 27, 1944, 58 STAT. 754, TO READ AS FOLLOWS:

SEC. 504. MEMBERS OF THE WOMEN'S RESERVE SHALL NOT BE ASSIGNED TO DUTY ON BOARD VESSELS OF THE NAVY OR IN AIRCRAFT WHILE SUCH AIRCRAFT ARE ENGAGED IN COMBAT MISSIONS AND SHALL NOT BE ASSIGNED TO DUTY OUTSIDE THE AMERICAN AREA AND THE TERRITORIES OF HAWAII AND ALASKA, AND MAY BE ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES ONLY UPON THEIR PRIOR REQUEST.

INSOFAR AS CONCERNS QUESTION (1), IT IS STATED IN ONE OF THE ENCLOSURES RECEIVED WITH YOUR LETTER (LETTER OF THE DEPUTY CHIEF OF NAVAL PERSONNEL) THAT CERTAIN MEMBERS OF THE WOMEN'S RESERVE WERE ORDERED TO CONDUCT INVESTIGATIONS AND SURVEYS AT PLACES AND STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. HOWEVER, IN VIEW OF THE SPECIFIC STATUTORY PROVISION IN EFFECT PRIOR TO SEPTEMBER 27, 1944, RESTRICTING MEMBERS OF THE WOMEN'S RESERVE "TO THE PERFORMANCE OF SHORE DUTY WITHIN THE CONTINENTAL UNITED STATES ONLY," IT IS NOT UNDERSTOOD ON WHAT LEGAL BASIS ORDERS WERE ISSUED DIRECTING SUCH MEMBERS TO PERFORM ACTIVE DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PRIOR TO THAT DATE, REGARDLESS OF THE NATURE OF SUCH DUTY. ALTHOUGH SEVERAL ATTEMPTS APPEAR TO HAVE BEEN MADE PRIOR TO SEPTEMBER 27, 1944, TO REMOVE SUCH RESTRICTION IN THE ACT OF JULY 30, 1942, THE RESTRICTION WAS NOT FINALLY REMOVED UNTIL THE DATE OF APPROVAL OF THE ACT OF SEPTEMBER 27, 1944, AND, HENCE, THERE IS PERCEIVED NO LEGAL BASIS ON WHICH THIS OFFICE MAY CONCLUDE THAT PAYMENT OF ADDITIONAL MUSTERING-OUT PAY IS AUTHORIZED ON THE BASIS OF ACTIVE DUTY PERFORMED BY MEMBERS OF THE WOMEN'S RESERVE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PRIOR TO SEPTEMBER 27, 1944. CF. 23 COMP. GEN. 601.

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE, AND IT NECESSARILY FOLLOWS THAT QUESTION (2) ALSO MUST BE ANSWERED IN THE NEGATIVE.