A-24717, DECEMBER 17, 1928, 8 COMP. GEN. 302

A-24717, DECEMBER 17, 1928, 8 COMP. GEN. 302

RENTAL ALLOWANCE - MARINE CORPS OFFICERS WITHOUT DEPENDENTS ON DUTY IN CHINA OFFICERS OF THE MARINE CORPS FORCES IN CHINA, OTHER THAN THE LEGATION GUARD AT PEKIN, ARE ON ,FIELD DUTY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 251, AND ARE NOT ENTITLED TO RENTAL ALLOWANCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, DECEMBER 17, 1928:

THERE HAS BEEN RECEIVED YOUR FIRST INDORSEMENT OF SEPTEMBER 26, 1928, ON LETTER OF AUGUST 6, 1928, FROM THE MAJOR GENERAL COMMANDANT OF THE MARINE CORPS ON THE SUBJECT OF RENTAL ALLOWANCES IN THE CASE OF CAPT. PRENTICE S. GEER, UNITED STATES MARINE CORPS, AN OFFICER WITHOUT DEPENDENTS SERVING AT TIENTSIN, CHINA, WITH THE THIRD BRIGADE OF MARINES. WITH HIS LETTER HE TRANSMITS TO YOU COPIES OF THE ESSENTIAL PAPERS EMBODYING THE REPRESENTATIONS OF CAPTAIN GEER, FOR RENTAL ALLOWANCES WHILE STATIONED AT TIENTSIN, CHINA, AND BY THE SECOND PARAGRAPH STATES:

THESE PAPERS INCLUDE A COPY OF THE REPORT (6TH ENDORSEMENT, NO. 0331 BE-1 -FLT) DATED JUNE 29, 1928, BY THE UNDERSIGNED, RECOMMENDING THAT THE GEER CASE BE THEN CONSIDERED BY THE COMPTROLLER GENERAL, WHICH DOCUMENT, IT SHOULD BE STATED WITH ITS ACCOMPANYING PAPERS, APPARENTLY WAS LOST IN TRANSIT FROM THESE HEADQUARTERS TO THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY.

THE LETTER OF CAPTAIN GEER, DATED APRIL 5, 1928, WITH THE SIX INDORSEMENTS APPENDED THERETO, TOGETHER WITH A COPY OF YOUR LETTER TO THE SECRETARY OF WAR AND A COPY OF THE REPLY OF THE SECRETARY OF WAR, AND A COPY OF THE ORDER DETACHING CAPTAIN GEER AND OTHER OFFICERS FROM THE MARINE BARRACKS, QUANTICO, AND ASSIGNING THEM TO "DUTY ON ASIATIC STATION" WERE RECEIVED IN THIS OFFICE JULY 2, 1928, AND WERE TREATED AS A CLAIM FILED BY CAPTAIN GEER, AND THE CLAIM WAS DISALLOWED BY SETTLEMENT CLAIM NO. 0165805, JULY 26, 1928, FOR THE FOLLOWING REASONS:

DURING THE PERIOD IN QUESTION CLAIMANT WAS IN A FIELD-DUTY STATUS, AND BEING AN OFFICER WITHOUT DEPENDENTS, PAYMENT OF RENTAL ALLOWANCE IS NOT AUTHORIZED.

NOTWITHSTANDING THIS SETTLEMENT, THE MATTER WILL BE CONSIDERED ON THE BASIS OF YOUR SUBMISSION. THE CLAIM OF CAPTAIN GEER ARISES UNDER MARINE CORPS ORDERS OF FEBRUARY 20, 1928, CONSIDERED IN CONNECTION WITH TRANSPORTATION OF DEPENDENTS OF OFFICERS, 8 COMP. GEN. 118, BY WHICH NAMED OFFICERS WERE DETACHED FROM STATIONS IN THE UNITED STATES AND ASSIGNED TO STATION AT TIENTSIN, CHINA. IT IS THERE SHOWN THE OFFICERS HAD BEEN ON DUTY IN CHINA FOR SUBSTANTIAL PERIODS UNDER ORDERS ASSIGNING THEM TO DUTY WITH ORGANIZATIONS "FOR SPECIAL TEMPORARY DUTY BEYOND THE SEAS.' THE ORDER IN THIS CASE DOES NOT USE THE SAME PHRASEOLOGY USED IN THE CASE OF THE ORDER ASSIGNING MARINE CORPS FORCES TO NICARAGUA, WHICH DIRECTED THAT THE FORCES BE "EQUIPPED FOR EXPEDITIONARY WORK," 7 COMP. GEN. 205, BUT THE PHRASEOLOGY USED IS UNIMPORTANT. THE ENTIRE READING PUBLIC KNOWS THAT DISTURBED CONDITIONS HAVE EXISTED IN NICARAGUA AND CHINA, THAT ARMED FORCES WERE OPERATING AGAINST EACH OTHER, AND THAT THERE WAS GRAVE POSSIBILITY THAT THE LIVES AND PROPERTY OF FOREIGNERS DOMICILED IN THOSE COUNTRIES WOULD BE IN DANGER, THAT NAVAL AND MARINE CORPS FORCES WERE USED FOR THE PROTECTION OF AMERICAN NATIONALS DOMICILED IN CHINA, AND THAT IT WAS NECESSARY IN SOME CIRCUMSTANCES TO USE FORCE, OR A THREAT OF FORCE, AGAINST ONE OR THE OTHER OF THE PARTICIPANTS IN THE ARMED CONFLICT TO PROTECT THE LIVES OF AMERICAN CITIZENS.

IT IS REPORTED, HOWEVER, THAT CAPTAIN GEER BY THE ORDER IN QUESTION WAS ASSIGNED TO A STATION, TIENTSIN, CHINA, THAT ADEQUATE PUBLIC QUARTERS HAD NOT BEEN ASSIGNED TO HIM, THAT THE PAYMASTER OF THE MARINE CORPS, BY REASON OF THE DECISION RESPECTING THE FORCES IN NICARAGUA, HAS REFUSED TO PAY HIM RENTAL ALLOWANCES AS AN OFFICER WITHOUT DEPENDENTS TO WHOM ADEQUATE PUBLIC QUARTERS HAVE NOT BEEN ASSIGNED, AND LASTLY, THAT THE FIFTEENTH INFANTRY, UNITED STATES ARMY, NOW SERVING IN TIENTSIN, IS NOT CONSIDERED BY THE WAR DEPARTMENT AS ON FIELD DUTY, AND THAT CERTAIN OFFICERS OF THAT REGIMENT HAVE BEEN PAID RENTAL ALLOWANCES AND QUESTION HAS NOT BEEN RAISED IN THE AUDIT AS TO SUCH PAYMENTS. IN ADDITION, THE MAJOR GENERAL COMMANDANT IN HIS SIXTH INDORSEMENT OF JUNE 29, 1928, TO YOU SUGGESTING SUBMISSION OF THE QUESTION HERE, MAKES THE FOLLOWING OBSERVATION:

IT IS THE BELIEF OF THESE HEADQUARTERS THAT THE BROAD PURPOSE OF THE AMENDATORY LAW OF 1924 AS INDICATED BY ITS LEGISLATIVE HISTORY WAS NOT ONE IN ANY SENSE TO DISTURB THE AUTHORITY OF THE COMPTROLLER GENERAL TO PASS UPON THE LEGALITY OF DISBURSEMENTS OF MONIES FOR RENTAL ALLOWANCES, BUT WAS ONE NONE THE LESS TO RELIEVE HIS OFFICE OF THE RESPONSIBILITY THEREAFTER OF DETERMINING THE DUTY STATUS OF OFFICERS, MORE PARTICULARLY THAT OF "SEA DUTY" OR OF "FIELD DUTY" WHERE SUCH AS PURELY ADMINISTRATIVE DETAILS MIGHT BE INVOLVED IN DISBURSEMENTS TO BE SO PASSED UPON. AND THE EFFECT OF THAT AMENDATORY LAW AS IT IS CLEARLY UNDERSTOOD HERE, WAS ONE TO LODGE THAT DUTY STATUS OF SUCH OFFICERS) UPON AUTHORITIES NEARER TO, MORE FAMILIAR WITH, AND MORE RESPONSIBLE FOR THE EFFICIENCY OF THE MILITARY AND NAVAL FORCES OF THE UNITED STATES. IT IS IN THIS LIGHT THAT THE VIEWS OF THE WAR AND NAVY DEPARTMENTS AS ABOVE QUOTED DESERVE NOW ALONE TO BE CONSIDERED. * * *

PAYMENT OR NONPAYMENT OF RENTAL ALLOWANCES IS IN SOME CIRCUMSTANCES CONDITIONED UPON AN OFFICER BEING ON FIELD DUTY OR SEA DUTY. THERE HAS BEEN NO QUESTION RAISED AS TO SEA DUTY. THAT HAS BEEN DEFINED BY STATUTE FOR SOME 68 YEARS, SEE SECTION 1571, REVISED STATUTES, AND ACT OF JUNE 1, 1860, 12 STAT. 25, ALTHOUGH THE ORDER OF THE PRESIDENT PROMULGATING REGULATIONS UNDER SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, CONTAINS A DEFINITION OF SEA DUTY SUBSTANTIALLY FOLLOWING THE LANGUAGE OF THE STATUTE.

FIELD DUTY FOR THE PURPOSE OF PAY HAS NOT BEEN DEFINED BY STATUTE, BUT, AS HAS BEEN SHOWN IN NUMEROUS DECISIONS, IT HAS A DEFINITE AND WELL- RECOGNIZED MEANING WHICH HAS BEEN ACCEPTED IN THE ACCOUNTING OFFICES AND THE WAR DEPARTMENT FOR MANY YEARS. BUT IT WOULD SEEM THAT THE TERM "FIELD DUTY" IS DESIRED TO BE ADAPTED TO FIT CHANGING CONDITIONS TO INCREASE THE EMOLUMENTS OF OFFICERS. THE ORIGINAL MCKENZIE BILL, WHICH, WITH MODIFICATIONS, BECAME THE ACT OF JUNE 10, 1922, CONTAINED IN SECTION 2 A PROVISION FOR 5 PERCENT INCREASE OF THE PAY OF OFFICERS ON FIELD OR SEA DUTY. THE COMMITTEE PRINT OF THE BILL WAS THE SUBJECT OF DISCUSSION BETWEEN REPRESENTATIVES OF THE SERVICES AND THIS OFFICE, AND IT WAS POINTED OUT THAT THE TERM "FIELD DUTY" HAD A WELL-DEFINED MEANING IN THE LAW AND PRECEDENTS, AND PAYMENT WOULD ONLY BE MADE UNDER THAT SECTION WHERE THERE WAS FIELD DUTY IN FACT. SECTION 2 OF THE BILL WAS THEREAFTER REDRAFTED WITH A VIEW TO EXCLUDING THIS OFFICE FROM THE DETERMINATION OF THE QUESTION OF FIELD DUTY AND THE PROPOSED LEGISLATION WAS CHANGED TO PROVIDE (SEE P. 3 OF HEARINGS):

THAT EVERY COMMISSIONED OFFICER WHILE ON FIELD OR SEA DUTY SHALL RECEIVE AN INCREASE OF 5 PERCENT OF HIS BASE PAY. FIELD DUTY SHALL BE DEFINED FOR THE PURPOSES OF THIS ACT AS SERVICE IN MOBILIZATION, CONCENTRATION, INSTRUCTION, OR MANEUVER CAMPS, SERVICE IN CAMPAIGN, IN SIMULATED CAMPAIGN OR ON THE MARCH, AND SERVICE UNDER SIMILAR CONDITIONS. SUCH FIELD SERVICE IN EACH CASE SHALL BE ANNOUNCED IN ORDERS PUBLISHED BY THE PRESIDENT. * *

IN RESPONSE TO QUESTIONS AS TO THE PURPORT OF THIS LANGUAGE, THE HEARINGS ON THE BILL (P. 72) SHOW THE FOLLOWING:

MAJOR SPAULDING. SERVICE ON THE MARCH DEFINES ITSELF. "SIMULATED CAMPAIGN" WOULD MEAN IMITATION OF WAR. AS TO THE EXPRESSION,"SERVICE UNDER SIMILAR CONDITIONS," THAT WAS INSERTED AT THE REQUEST OF THE MARINE CORPS.

MAJOR CREECY. MR. CHAIRMAN, I THINK I CAN CLEAR UP ONE OR TWO POINTS RIGHT THERE. THE MARINE CORPS DOES CONSIDERABLE DUTY IN PLACES LIKE HAITI AND SAN DOMINGO, AND WHEN AN OFFICER IS ORDERED TO HAITI IT IS NECESSARY, IF HE IS TO DRAW FIELD-SERVICE PAY, FOR HIS ORDERS TO INCLUDE THE WORDS WHICH WILL DEFINE HIS SERVICE AS SUCH. IT IS NOT CONSIDERED EXPEDIENT AT PRESENT TO DEFINE DUTY IN HAITI OR SAN DOMINGO AS DUTY IN A CAMPAIGN. CAMPAIGN INVOLVES AN ENEMY. THE GOVERNMENT OF HAITI IS AT PEACE WITH THE GOVERNMENT OF THE UNITED STATES.

THE LAST WORDS WHICH ARE CRITICIZED BY MR. OLIVER WERE PUT IN THERE CHIEFLY IN THE INTEREST OF SUCH OFFICERS ON DUTY IN THOSE PLACES. EXPLAINED THAT TO THE COMMITTEE AT ONE TIME.

HERE THE MARINE CORPS REPRESENTATIVE WAS CONTENDING FOR STATUTORY LANGUAGE WHICH WOULD PERMIT DENOMINATING ORDINARY GARRISON DUTY IN HAITI AND SAN DOMINGO AS FIELD DUTY. THERE BEING PRONOUNCED OBJECTION IN THE COMMITTEE HAVING THE MATTER IN CHARGE TO DEPRIVING THIS OFFICE OF JURISDICTION TO DETERMINE FIELD DUTY, THE MATTER WAS EVENTUALLY COMPROMISED BY OMITTING THE PROVISION ENTIRELY.

UNDER THE ORIGINAL SECTION 6 OF THE ACT OF JUNE 10, 1922, 42 STAT. 628, IT WAS CONTENDED THAT DUTY IN CIVILIAN, RESERVE, AND NATIONAL GUARD ANNUAL TRAINING CAMPS WAS FIELD DUTY, AND THAT MARCHING OVERLAND WAS FIELD DUTY. THE CONSTRUCTION OF THE TERM THEN BEING CONTENDED FOR WOULD HAVE BEEN BENEFICIAL TO MARRIED OFFICERS. THIS OFFICE, IN CONSIDERING THIS CONTENTION, DEVELOPED THE HISTORY AND USE OF THE TERM "FIELD DUTY," OR "FIELD SERVICE," IN THE ARMY AND IN 3 COMP. GEN. 272, 273, BASED ON JUDICIAL PRECEDENTS AND THE OPINIONS OF THE ATTORNEY GENERAL, FORMULATED THE FOLLOWING STATEMENT:

THE TERM "FIELD DUTY" AS USED WITH RESPECT TO THE ORGANIZATION OF THE ARMY CONVEYS THE IDEA OF OPERATION AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

THE EXECUTIVE ORDER OF AUGUST 13, 1924, ISSUED UNDER THE PROVISIONS OF THE ACT OF MAY 31, 1924, DEFINES THE TERM "FIELD DUTY" AS FOLLOWS:

(C) THE TERM "FIELD DUTY" SHALL BE CONSTRUED TO MEAN SERVICE, UNDER ORDERS, WITH TROOPS OPERATING AGAINST AN ENEMY, ACTUAL OR POTENTIAL.

THE ADOPTION OF PRACTICALLY THE IDENTICAL LANGUAGE USED IN THE DECISION 3 COMP. GEN. 272 IN THE DEFINITION OF THE TERM IN THE EXECUTIVE ORDER WAS NOT A COINCIDENCE. IT IS KNOWN HERE THAT THE LANGUAGE WAS TAKEN FROM THE DECISION CITED. THE LANGUAGE USED IN THE EXECUTIVE ORDER HAS IDENTICALLY THE SAME MEANING WHEN USED WITH RESPECT TO OFFICERS WITHOUT DEPENDENTS WHO MIGHT BENEFIT BY HAVING A STILL MORE RESTRICTED MEANING, THAT IT HAD WHEN MARRIED OFFICERS WERE ENDEAVORING TO SECURE BENEFITS WHEN PARTICIPATING IN TRAINING SIMULATING FIELD CONDITIONS.

THE SITUATION IN CHINA FOR THE PAST THREE YEARS IS WELL KNOWN. ARMED FORCES OF THE DIFFERENT FACTIONS WERE IN COMBAT, INDISCRIMINATE FIRING AT FOREIGNERS AND CHINESE RESULTED IN INJURY TO AMERICAN CITIZENS. OFFICIAL REPORTS FROM CHINA SHOW THAT IN MARCH, 1927, AT THE REQUEST OF THE AMERICAN CONSUL GENERAL AND AS A RESULT OF THE MUNICIPAL COUNCIL OF SHANGHAI HAVING DECLARED A STATE OF EMERGENCY, A FORCE OF ABOUT 1,500 MARINES WERE LANDED AT SHANGHAI FOR THE PROTECTION OF AMERICAN LIVES AND PROPERTY. BRIG.GEN. S. D. BUTLER, UNITED STATES MARINE CORPS, LEFT SAN FRANCISCO, CALIF., FOR SHANGHAI ON MARCH 5, 1927, TO COMMAND THE MARINE EXPEDITIONARY FORCE IN CHINA.

IN HIS ANNUAL REPORT FOR THE FISCAL YEAR 1927, THE MAJOR GENERAL COMMANDANT OF THE UNITED STATES MARINE CORPS REPORTS THE OPERATIONS OF EXPEDITIONARY FORCES IN CHINA. AN EXTRACT OF THE REPORT, PAGE 9, IS AS FOLLOWS:

IN CHINA THE INTERNAL CONDITIONS IN THE NEIGHBORHOOD OF SHANGHAI HAVING BECOME OMINOUS, AT THE REQUEST OF THE COMMANDER IN CHIEF ASIATIC FLEET, THE FOURTH REGIMENT, LESS SECOND BATTALION, EMBARKED AT SAN DIEGO ON FEBRUARY 3, 1927, ABOARD THE U.S.S. CHAUMONT, ARRIVING AT SHANGHAI FEBRUARY 24. THIS REGIMENT REMAINED ABOARD THAT VESSEL UNTIL MARCH 21, WHEN IT WAS ORDERED ASHORE IN SHANGHAI FOR THE PROTECTION OF AMERICAN LIVES AND PROPERTY. REINFORCEMENTS HAVING BEEN REQUESTED, ON APRIL 7, THE U.S.S. HENDERSON SAILED FROM SAN DIEGO FOR SHANGHAI, HAVING ABOARD THE SIXTH REGIMENT, LESS THIRD BATTALION; THE THIRD BRIGADE HEADQUARTERS AND HEADQUARTERS COMPANY, THE THIRD BRIGADE SERVICE COMPANY, ONE BATTERY OF THE TENTH ARTILLERY, AND A MARINE AVIATION SQUADRON. BRIG.GEN. SMEDLEY D. BUTLER, UNITED STATES MARINE CORPS, HAD ALREADY ARRIVED AT SHANGHAI ON MARCH 25 AS COMMANDING GENERAL OF THE THIRD BRIGADE. THE SITUATION BECOMING MORE CRITICAL, ON APRIL 17 THE S.S. PRESIDENT GRANT, A PASSENGER VESSEL OF THE DOLLAR LINE CHARTERED FOR USE AS A TRANSPORT, SAILED FOR OLONGAPO, PHILIPPINE ISLANDS, FROM SAN DIEGO, HAVING ABOARD THE THIRD BATTALION, SIXTH REGIMENT; THE SECOND BATTALION, FOURTH REGIMENT; THE FIRST BATTALION, TENTH ARTILLERY, LESS ONE BATTERY; ONE LIGHT TANK PLATOON, THE FIFTH COMPANY OF ENGINEERS, AND PART OF ANOTHER MARINE AVIATION SQUADRON, THE REMAINDER OF WHICH WAS FURNISHED FROM THE SQUADRON AT GUAM. LATER ON THESE FORCES HELD IN RESERVE AT OLONGAPO WERE BROUGHT OVER TO SHANGHAI.

DEVELOPMENTS IN CHINESE INTERNAL CONDITIONS HAVING MADE CHANGES IN THE DISPOSITIONS OF THE THIRD BRIGADE NECESSARY, THE FOURTH REGIMENT WAS LEFT AT SHANGHAI AND THE REMAINDER OF THE BRIGADE SAILED ABOARD THE U.S.S. HENDERSON AND U.S.S. CHAUMONT FOR TIENTSIN, WHERE TROOPS WERE ALL DEBARKED BEFORE THE END OF JUNE. NO CHANGE HAS THUS FAR BEEN MADE IN THESE LAST DISPOSITIONS. THE REPORT CONTAINS THE STATEMENT OF THE MAJOR GENERAL COMMANDANT OF THE UNITED STATES MARINE CORPS OF WHAT THE MARINE FORCES WERE DOING IN CHINA, AS FOLLOWS:

THERE HAS BEEN LITTLE OPPORTUNITY DURING THE YEAR FOR THE USUAL TRAINING OF ORGANIZED COMBAT UNITS OF THE MARINE CORPS. THE TIME OF THESE UNITS WAS CONSUMED IN ACTIVE OPERATIONS, EITHER IN GUARDING THE MAILS OR IN FIELD SERVICE IN CHINA (UNDERSCORING SUPPLIED) AND NICARAGUA. NOTHING HAS BEEN LOST IN EFFICIENCY; ON THE CONTRARY, THE EXPERIENCE AND KNOWLEDGE GAINED AS A RESULT OF THIS ACTIVE SERVICE HAS MADE THE CORPS MORE THAN EVER READY FOR WHATEVER MAY BE REQUIRED OF IT IN THE FUTURE. IT WOULD SEEM CLEAR THAT COMBAT UNITS IN ACTIVE OPERATIONS UNDER ORDERS "IN FIELD SERVICE" ARE ON FIELD DUTY.

IN AGREEMENT WITH THE MAJOR GENERAL COMMANDANT IN HIS ANNUAL REPORT, THIS OFFICE HAS HELD THAT THE DUTY OF THE MARINE FORCES NOW ON DUTY IN CHINA IS FIELD DUTY. (5 COMP. GEN. 443; 7 ID. 205.) SEE ALSO DECISION OF FEBRUARY 21, 1928, A-21478, 78 MS. COMP. GEN. 990, WHEREIN IT WAS STATED THAT IF BECAUSE OF THE DISTURBED CONDITIONS EXISTING IN CHINA IT IS NECESSARY TO ASSIGN A DETACHMENT OF THE FIELD FORCES OPERATING THERE TO TEMPORARY DUTY IN PEKIN, QUARTERS MAY BE PROVIDED FOR SUCH DETACHMENT WHILE SO ASSIGNED, TO THE SAME EXTENT AS WHEN THE DETACHMENT IS ON DUTY IN OTHER PARTS OF CHINA AS A PART OF THE MARINE BRIGADE OPERATING THERE. THE ELABORATE ARGUMENTS NOW DEVELOPED OVER THE SIGNATURE OF THE MAJOR GENERAL COMMANDANT THAT SERVICE IN CHINA AND NICARAGUA IS NOT FIELD DUTY WITH A VIEW TO INCREASING THE ALLOWANCES OF OFFICERS OF THE MARINE CORPS WHEN READ IN CONNECTION WITH HIS OWN ANNUAL REPORT TO YOU UNINFLUENCED BY QUESTIONS OF PAY OR ALLOWANCES OF OFFICERS THAT THE FORCES IN CHINA AND NICARAGUA WERE IN FIELD SERVICE, ARE NOT CONVINCING. SO FAR AS MATTERS OF PAY AND ALLOWANCES ARE AFFECTED, IT WOULD SEEM FROM THE ARGUMENTS ADVANCED, THE TERM "FIELD DUTY" HAS NO DEFINITE MEANING. IT WILL BE OBSERVED THAT THE ORIGINAL SECTION 2 OF THE MCKENZIE BILL WAS ELIMINATED FROM THE BILL BECAUSE OF ITS PLAIN PURPOSE TO CIRCUMSCRIBE THE POWERS OF THIS OFFICE IN THE DETERMINATION OF FIELD DUTY; HAD THAT PROPOSED DEFINITION AND THE CONCLUSIVE DETERMINATION IN THE ADMINISTRATIVE DEPARTMENTS OF THE MATTER BEEN ENACTED IT WOULD PROBABLY HAVE BEEN CONTROLLING IN THE INTERPRETATION OF THE SAME TERM IN SECTION 6 OF THE ACT. THE DEFINITION AND THE CONCLUSIVE AUTHORITY OF THE DEPARTMENTS TO DETERMINE THE MATTER WAS ELIMINATED FROM THE BILL THAT THERE WOULD BE NO QUESTION OF THE AUTHORITY OF THIS OFFICE TO DETERMINE THE MATTER. THE REENACTMENT OF SECTION 6 WITH THE PROVISION FOR REGULATIONS BY THE PRESIDENT IS IDENTICALLY THE SITUATION THAT WAS DISCUSSED IN CONNECTION WITH THE COMMITTEE PRINT OF THE BILL, AND IT DOES NOT DEPRIVE THIS OFFICE OF FULL RESPONSIBILITY FOR THE CORRECT APPLICATION OF PUBLIC MONEYS APPROPRIATED TO PAY INCREASED ALLOWANCES IN CONNECTION WITH FIELD DUTY. CERTAINLY THE INTERPRETATION OF THE TERM BY THIS OFFICE IS MORE CONSISTENT AND MORE CONSONANT WITH THE PRECEDENTS AND ATTORNEY GENERAL'S OPINIONS THAN THE OPINIONS TO THE CONTRARY OF THE MARINE CORPS ON THE SUBJECT.

THE FACT THAT THE WAR DEPARTMENT DOES NOT CONSIDER THAT THE PERSONNEL OF THE FIFTEENTH INFANTRY, UNITED STATES ARMY, SERVING IN TIENTSIN, CHINA, IS ON FIELD DUTY IS ADVANCED AS A REASON FOR HOLDING THE THIRD BRIGADE OF MARINES AT TIENTSIN IS NOT ON FIELD DUTY.

UNDER ARTICLE 9 OF THE FINAL PROTOCOL ENTERED INTO BETWEEN THE PLENIPOTENTIARIES OF VARIOUS POWERS AT THE CONCLUSION OF THE SO-CALLED "BOXER TROUBLES" IN 1900, THE CHINESE GOVERNMENT CONCEDED THE RIGHT OF THE POWERS IN THE PROTOCOL TO OCCUPY CERTAIN POINTS FOR THE MAINTENANCE OF OPEN COMMUNICATION BETWEEN THE CAPITAL AND THE SEA; LIKEWISE, BY ARTICLE 7 OF THE PROTOCOL THE CHINESE GOVERNMENT RECOGNIZED AND CONCEDED THE RIGHT OF EACH POWER TO MAINTAIN A PERMANENT GUARD IN THE QUARTER OCCUPIED BY THE LEGATIONS.

SINCE THE BOXER TROUBLES IN 1900 THE UNITED STATES HAS MAINTAINED THE MAJOR PORTION OF A REGIMENT OF INFANTRY AT TIENTSIN, CHINA, AND A MARINE GUARD AT THE AMERICAN LEGATION, PEKIN, CHINA. BY WAR DEPARTMENT GENERAL ORDERS NO. 24, DATED JUNE 21, 1923, IT WAS ANNOUNCED THAT THE COMPOUND OCCUPIED BY THE AMERICAN TROOPS IN TIENTSIN, CHINA, HAD BEEN DESIGNATED AS "AMERICAN BARRACKS, TIENTSIN, CHINA.' THE AMERICAN LEGATION AT PEKIN AND THE AMERICAN BARRACKS, TIENTSIN, ARE PERMANENT-DUTY STATIONS AND THE PERSONNEL AT THESE STATIONS ARE NOT AN EXPEDITIONARY FORCE, AND, ALTHOUGH CIRCUMSTANCES MAY REQUIRE THEM TO OPERATE AGAINST CONFLICTING ARMED FORCES WHEN NECESSARY TO PROTECT AMERICAN CITIZENS, THAT FACT WILL NOT EFFECT THEIR STATUS AS ASSIGNED TO DUTY AT AN ESTABLISHED POST.

ON THE FACTS ESTABLISHED IT IS THE SETTLED CONCLUSION OF THIS OFFICE THAT THE MARINE FORCES IN CHINA OTHER THAN THE LEGATION GUARD AT PEKIN,ARE ON FIELD DUTY. THE SETTLEMENT DISALLOWING CAPTAIN GEER'S CLAIM IS CORRECT; IT IS ADHERED TO. ..END :