B-15346, APRIL 15, 1941, 20 COMP. GEN. 640

B-15346, APRIL 15, 1941, 20 COMP. GEN. 640

QUARTERS ALLOWANCE - ENLISTED MEN OF THE NAVY OFFICERS' STEWARDS AND COOKS, FIRST AND SECOND CLASS, SHIPS COOKS, FIRST AND SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY, CLASSIFIED IN THE SECOND OR THIRD GRADE BY THE SECRETARY OF THE NAVY, ARE ENTITLED, UNDER THE ASSIMILATING PROVISIONS OF SECTION 12 (A), ACT OF SEPTEMBER 16, 1940, TO THE MONEY ALLOWANCE FOR QUARTERS FOR THEIR DEPENDENTS AS PROVIDED BY THE ACT OF OCTOBER 17, 1940, FOR ARMY ENLISTED MEN OF SIMILAR GRADES. B-15346, MARCH 17, 1941, 20 COMP. GEN. 522, AND B-12506, OCTOBER 3, 1940, MODIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 15, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 4, 1941, REQUESTING RECONSIDERATION OF THAT PART OF DECISION B-15346, DATED MARCH 17, 1941, 20 COMP. GEN. 522, WHICH HELD THAT OFFICERS' STEWARDS AND COOKS, FIRST AND SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY, WERE NOT ENTITLED TO THE MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS AS PROVIDED IN THE ACT OF OCTOBER 17, 1940, AND EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941, ISSUED PURSUANT THERETO.

THE ACT OF OCTOBER 17, 1840, PUBLIC, NO. 872, 54 STAT. 1205, PROVIDES:

THAT EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAVING A DEPENDENT AS DEFINED IN SECTION 8 AND 8A, TITLE 37, U.S.C. SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONEY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND. THIS ACT WAS DESIGNED EXCLUSIVELY FOR THE BENEFIT OF ENLISTED MEN OF THE FIRST, SECOND, AND THIRD GRADES OF THE ARMY AND IN TRANSMITTING THE PROPOSED BILL, WHICH RESULTED IN THE ENACTMENT, TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE SECRETARY OF WAR MADE CERTAIN REPRESENTATIONS AS TO THE REASONS WHY SUCH LEGISLATION WAS DESIRABLE AND STATED THAT ENACTMENT OF THE PROPOSED LEGISLATION WOULD INVOLVE NO ADDITIONAL COST IN EXCESS OF THE AMOUNT ALREADY INCLUDED IN WAR DEPARTMENT ESTIMATES; AND THAT IF SUCH A BILL WERE NOT ENACTED IT MIGHT BE EXPECTED THAT A SAVING WOULD RESULT. THE LETTER OF THE SECRETARY OF WAR WAS DATED SEPTEMBER 19, 1940, THREE DAYS SUBSEQUENT TO THE APPROVAL OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, PUBLIC, NO. 783, 54 STAT. 885, WHICH PROVIDED, IN SECTION 12, 54 STAT. 895, INCREASES IN THE BASE PAY OF CERTAIN ENLISTED GRADES OF THE ARMY AND MARINE CORPS AND, BY THE LAST SENTENCE OF SECTION 12 (A), PROVIDED THAT---

* * * ENLISTED MEN OF THE NAVY SHALL BE ENTITLED TO RECEIVE AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY AND MARINE CORPS.

IN THE DECISION OF MARCH 17, 1941, TO WHICH YOU REFER, IT WAS HELD THAT, BY VIRTUE OF THE QUOTED SENTENCE FROM SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, ENLISTED MEN OF THE NAVY WERE ENTITLED TO THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, ON A PARITY WITH ENLISTED MEN OF THE FIRST THREE GRADES OF THE ARMY; AND AFTER ANSWERING THE SPECIFIC QUESTIONS PROPOUNDED IN YOUR LETTER OF MARCH 5, 1941, IT WAS STATED:

IN ADDITION TO THE QUESTIONS PROPOUNDED IN YOUR LETTER OF MARCH 5, 1941, A FURTHER QUESTION WAS RAISED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IN HIS LETTER TO YOU, DATED MARCH 4, 1941, AS TO WHETHER OFFICERS' STEWARDS AND COOKS, FIRST AND SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY, COME WITHIN THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, AND EXECUTIVE ORDER NO. 8688. THE ACT OF OCTOBER 17, 1940, WAS ENACTED FOR THE BENEFIT OF ENLISTED MEN OF THE FIRST, SECOND, AND THIRD GRADES OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AND ANY RIGHTS ACCRUING THEREUNDER TO ENLISTED MEN OF THE NAVY ARE DERIVED FROM THE LAST SENTENCE OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, SUPRA, WHICH WAS INTENDED TO CONFER UPON THEM AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN THE SAME GRADES IN THE ARMY. IN COMMENTING UPON THE RIGHTS OF OFFICERS' STEWARDS AND COOKS, SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY (THIRD PAY GRADE) TO TRANSPORTATION OF DEPENDENTS UNDER THE ACT OF MAY 18, 1920, AS AMENDED (10 U.S.C. 604), IT WAS POINTED OUT IN DECISION B 12506, DATED OCTOBER 3, 1940, THAT COOKS AND MUSICIANS OF THE ARMY WERE ASSIGNED TO THE SIXTH AND SEVENTH PAY GRADES WITH ADDITIONAL PAY FOR SPECIALISTS' RATINGS AND THAT:

"* * * ENLISTED MEN OF THE ARMY HOLDING THESE GRADES WERE NEVER INCLUDED WITHIN THE THIRD GRADE AS ESTABLISHED BY THE SECRETARY OF WAR UNDER SECTION 4B OF THE ACT OF JUNE 4, 1920. THEIR PAY AT THE PRESENT TIME IS BASED UPON THE SIXTH AND SEVENTH PAY GRADES INCREASED BY THE PAY OF THE PARTICULAR SPECIALIST RATING AS AUTHORIZED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629.

" THE LAST SENTENCE OF SECTION 12A OF THE ACT OF SEPTEMBER 16, 1940, SUPRA, WAS INTENDED TO CONFER UPON ENLISTED MEN OF THE NAVY AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY. ENLISTED MEN OF THE ARMY MAY NOT LEGALLY ACT AS OFFICERS' STEWARDS, SECTION 1232 OF THE REVISED STATUTES, THEREFORE, THERE ARE NO ENLISTED MEN OF THE ARMY RECEIVING TRANSPORTATION BENEFITS UNDER THE ACT OF JUNE 20, 1936, 49 STAT. 1555, WITH WHOM OFFICERS' STEWARDS AND COOKS OF THE NAVY COULD BE ASSIMILATED. ALSO, MUSICIANS OF THE ARMY HAVE NEVER BEEN ESTABLISHED IN THE THIRD GRADE OF THE ARMY BUT, ALONG WITH COOKS, ARE CLASSIFIED IN THE SIXTH AND SEVENTH PAY GRADES. IN VIEW OF THE ABOVE, OFFICERS' STEWARDS, COOKS, SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY WOULD NOT BE ASSIMILATED FOR TRANSPORTATION BENEFITS WITH ENLISTED MEN OF THE ARMY OF THE THIRD GRADE.'

IT IS IS INTENDED TO ASK WHETHER ENLISTED MEN RATED AS OFFICERS' STEWARDS AND COOKS, FIRST CLASS, OFFICERS' STEWARDS AND COOKS, SECOND CLASS, AND MUSICIANS, FIRST CLASS, ARE ENTITLED TO THE ALLOWANCE FOR QUARTERS FOR DEPENDENTS, I HAVE TO ADVISE THAT, IN VIEW OF WHAT HAS BEEN SAID WITH RESPECT TO THE PERFORMANCE OF THESE DUTIES IN THE ARMY BY PERSONS OF RATINGS OR GRADES LOWER THAN THE THIRD PAY GRADE, IT IS THE OPINION OF THIS OFFICE THAT PERSONS OF THE RATINGS NAMED, IN THE NAVY, ARE NOT ENTITLED TO THE QUARTERS ALLOWANCE FOR DEPENDENTS UNDER THE QUALIFIED ASSIMILATION PROVIDED FOR SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940.

BY THE ACT OF MAY 11, 1908, 35 STAT. 109, 110, THE MONTHLY PAY OF COOKS IN THE ARMY WAS FIXED AT $30. BY SECTION 28 OF THE ACT OF JUNE 3, 1916, 39 STAT. 186, THE MONTHLY PAY OF MUSICIANS, FIRST CLASS, WAS FIXED AT $36; MUSICIANS, SECOND CLASS, $30, AND MUSICIANS, THIRD CLASS, $24. SECTION 4B OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, PROVIDED, IN PART, AS FOLLOWS:

ENLISTED MEN.--- ON AND AFTER JULY 1, 1920, THE GRADES OF ENLISTED MEN SHALL BE SUCH AS THE PRESIDENT MAY FROM TIME TO TIME DIRECT, WITH MONTHLY BASE PAY AT THE RATE OF $74 FOR THE FIRST GRADE, $53 FOR THE SECOND GRADE, $45 FOR THE THIRD GRADE, $45 FOR THE FOURTH GRADE, $37 FOR THE FIFTH GRADE, $35 FOR THE SIXTH GRADE, AND $30 FOR THE SEVENTH GRADE. * * *

UNDER SUCH REGULATIONS AS THE SECRETARY OF THE WAR MAY PRESCRIBE, ENLISTED MEN OF THE SIXTH AND SEVENTH GRADES MAY BE RATED AS SPECIALISTS, AND RECEIVE EXTRA PAY THEREFOR PER MONTH, AS FOLLOWS: FIRST CLASS, $25; SECOND CLASS, $20; THIRD CLASS, $15; FOURTH CLASS, $12; FIFTH CLASS, $8; SIXTH CLASS, $3. * * *

WAR DEPARTMENT GENERAL ORDERS NO. 36 OF 1920 PROVIDED, IN PARAGRAPH 9, AS FOLLOWS:

ENLISTED MEN OF THE FOLLOWING GRADES AS AT PRESENT AUTHORIZED WILL BE REGARDED AS PRIVATES, FIRST CLASS, OR PRIVATES, AND WILL BE GIVEN THE FOLLOWING SPECIALIST RATINGS WITH EXTRA MONTHLY PAY AS INDICATED:

C. SPECIALIST, THIRD CLASS ($15): * * * MUSICIANS, FIRST CLASS (EXCEPT IN U.S.M.A. BAND). * * *

D. SPECIALIST, FOURTH CLASS ($12): * * * COOKS, MUSICIANS, SECOND CLASS (EXCEPT IN U.S.M.A. BAND). * * *

E. SPECIALIST, FIFTH CLASS ($8): * * * MUSICIANS, THIRD CLASS (EXCEPT IN U.S.M.A. BAND).

IT WILL BE SEEN THAT THE GRADES, AS SUCH, OF COOKS AND MUSICIANS IN THE ARMY WERE ABOLISHED, THEY BEING PLACED IN THE SIXTH AND SEVENTH GRADES WITH PAY OF SPECIALIST RATINGS TO BRING THEM SUBSTANTIALLY WITHIN THE PAY RATES PROVIDED SPECIFICALLY FOR THE RATINGS HELD BY THEM PRIOR TO THE ACT OF JUNE 4, 1920. SEE 1 COMP. GEN. 158.

SECTION 7 OF THE ACT OF JUNE 4, 1920, 41 STAT. 836, 34 U.S. 176, PROVIDED, IN PERTINENT PART:

* * * THAT HEREAFTER THE SECRETARY OF THE NAVY IS AUTHORIZED, IN HIS DISCRETION, TO ESTABLISH SUCH GRADES AND RATINGS AS MAY BE NECESSARY FOR THE PROPER ADMINISTRATION OF THE ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS.

UNDER SECTION 7 OF THE ACT OF JUNE 4, 1920, THE DETERMINATION OF THE PAY GRADE INTO WHICH AN ESTABLISHED DUTY GRADE OR RATING SHOULD FALL, WAS LEFT, BY IMPLICATION, TO ADMINISTRATIVE AUTHORITY. UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, SEVEN PAY GRADES WERE ESTABLISHED FOR THE NAVY RANGING IN BASE RATES FROM $126 PER MONTH TO $21 PER MONTH. UNDER ARTICLE D-5103, BUREAU OF NAVIGATION MANUAL, OFFICERS' STEWARDS AND COOKS, FIRST CLASS, WERE CLASSIFIED IN THE SECOND PAY GRADE AND OFFICERS' STEWARDS AND COOKS, SECOND CLASS, AND MUSICIANS, FIRST CLASS, IN THE NAVY, WERE CLASSIFIED IN THE THIRD PAY GRADE. UNDER ARTICLE 5102 OF THE MANUAL, SHIP'S COOKS, FIRST CLASS, AND SHIP'S COOKS, SECOND CLASS, ARE RATED AS PETTY OFFICERS, FIRST CLASS, AND SECOND CLASS, RESPECTIVELY, THUS PLACING THEM FOR PAY PURPOSES IN THE SECOND AND THIRD PAY GRADES. THUS, WHILE THE SECRETARY OF WAR HAS PLACED COOKS AND MUSICIANS OF THE ARMY IN THE SIXTH AND SEVENTH GRADES, WITH MAXIMUM BASE PAY UNDER SECTION 12 OF THE ACT OF SEPTEMBER 16, 1940, INCLUDING SPECIALISTS PAY, RANGING FROM $27 TO $51 PER MONTH, UNDER GRADES ESTABLISHED FOR THE NAVY THE BASE PAY OF ENLISTED MEN IN THE COMMISSARY BRANCH DOWN TO THE GRADE OF SHIP'S COOK, SECOND CLASS, AND MUSICIANS, FIRST CLASS, RANGES FROM $72 PER MONTH TO $126 PER MONTH.

THE ACT OF OCTOBER 17, 1940, REFERS TO THE GRADES ESTABLISHED BY THE SECRETARY OF WAR UNDER THE PROVISIONS OF SECTION 4 (B) OF THE ACT OF JUNE 4, 1920, BASED UPON DUTIES AND QUALIFICATIONS; AND IN THE DECISION OF MARCH 17, 1941, THE CONCLUSION WAS PREDICATED UPON THE UNDERSTANDING THAT ENLISTED MEN OF THE ARMY OF SIMILAR DUTIES AND QUALIFICATIONS OF COOKS AND MUSICIANS OF THE NAVY HAVE NEVER BEEN CLASSIFIED IN THE FIRST THREE GRADES. IN OTHER WORDS, IT WAS ASSUMED THAT THE DUTIES AND QUALIFICATIONS OF COOKS AND MUSICIANS IN THE NAVY WERE SIMILAR TO THOSE OF COOKS AND MUSICIANS IN THE ARMY.

A PROVISION INTENDED TO EFFECT ASSIMILATION OF THE PAY OF MEMBERS OF THE COAST GUARD TO THE PAY OF ENLISTED MEN OF THE NAVY DURING THE WAR WAS CONTAINED IN SECTION 15 OF THE ACT OF MAY 22, 1917, 40 STAT. 87, WHICH PROVIDED:

* * * THAT DURING THE CONTINUANCE OF THE PRESENT WAR, WARRANT OFFICERS,PETTY OFFICERS AND ENLISTED MEN OF THE UNITED STATES COAST GUARD SHALL RECEIVE THE SAME RATES OF PAY AS ARE OR MAY HEREAFTER BE PRESCRIBED FOR CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE NAVY.

BASED ON THE PROVISIONS OF THAT ACT, A YEOMAN IN THE COAST GUARD BROUGHT SUIT FOR THE PAY OF A CHIEF YEOMAN IN THE NAVY AND THE SUPREME COURT OF THE UNITED STATES, IN THE CASE OF UNITED STATES V. ALLEN, 261 U.S. 317, 67 L.1ED. 675, APPROVED THE CONCLUSION---

* * * THAT THE TEST OF CORRESPONDENCE OR EQUALITY WAS THE DUTIES AND RESPONSIBILITIES OF YEOMEN IN THE COAST GUARD AND YEOMEN IN THE NAVY. OTHER WORDS, IT WAS THE JUDGMENT OF THE COURT, THAT, AS THE DUTIES AND QUALIFICATIONS OF THE OFFICERS WERE IDENTICAL, THEIR PAY SHOULD BE THE SAME. CORRESPONDENCE OF DUTIES IS A QUESTION OF FACT, NOT A MATTER OF DEFERENCE TO THE JUDGMENT OF THE SECRETARY OF THE NAVY.

YOUR LETTER OF APRIL 4, 1941, STATES, IN PART:

AFTER APPROPRIATE PERIODS OF SERVICE IN TRAINING, ENLISTED MEN OF THE NAVY ARE ADVANCED TO RATINGS IN THE VARIOUS BRANCHES OF THE SERVICE ACCORDING TO THEIR QUALIFICATIONS. THE TRAINING AND DUTIES OF ENLISTED MEN ARE BASED PRIMARILY UPON THE DUTIES WHICH THEY ARE REQUIRED TO PERFORM ON BOARD SHIP NOTWITHSTANDING PERIODS OF TEMPORARY ASSIGNMENT TO SHORE DUTY. WHILE ATTACHED TO VESSELS THEY ARE PART OF THE COMPLEMENT OF THE SHIP, PERFORM APPROPRIATE DUTIES IN THE VARIOUS DEPARTMENTS OF THE SHIP ACCORDING TO THEIR RATINGS, AND ARE ASSIGNED BATTLE STATIONS BY THE COMMANDING OFFICER. THE CONDITIONS OF SERVICE ARE MATERIALLY DIFFERENT IN THE ARMY AND NAVY, BOTH IN TIME OF PEACE AND IN TIME OF WAR. THE ASSIGNMENT OF RATINGS IN THE SEVERAL BRANCHES, AND THE DETERMINATION OF PAY GRADES, MUST OF NECESSITY DEPEND UPON THE NEEDS AND CONDITIONS PECULIAR TO THE NAVY AND THESE CONDITIONS CHANGE FROM TIME TO TIME. DOES NOT APPEAR TO BE APPROPRIATE TO COMPARE THE DUTIES OF ENLISTED MEN IN THE NAVY WITH THE DUTIES OF ENLISTED MEN IN THE ARMY.

UPON FURTHER CONSIDERATION OF THE SUBJECT AND IN VIEW OF THE INHERENT DIFFERENCE OF THE SERVICE CONDITIONS IN THE ARMY AND THE NAVY- - ONE ESSENTIALLY A LAND FORCE AND THE OTHER PRIMARILY RELATING TO THE SEA--- IT APPEARS REASONABLE THAT THE CORRESPONDENCE OF DUTIES REFERRED TO IN THE ALLEN CASE, SUPRA, IS NOT NECESSARILY THE DETERMINING FACTOR FOR PURPOSES OF ASSIMILATION UNDER THE LAST SENTENCE OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, SINCE THE DUTIES OF MANY, IF NOT MOST, OF THE PETTY OFFICERS OF THE NAVY IN THE FIRST THREE PAY GRADES OBVIOUSLY HAVE NEVER CORRESPONDED WITH THE DUTIES OF ENLISTED MEN OF THE ARMY OF SIMILAR GRADES. AS UNDER SECTION 7 OF THE ACT OF JUNE 4, 1920, 41 STAT. 836, THE ESTABLISHMENT OF GRADES AND RATINGS AS MAY BE NECESSARY FOR THE PROPER ADMINISTRATION OF THE ENLISTED PERSONNEL OF THE NAVY, WITHOUT REFERENCE TO THE DUTIES PERFORMED, IS A MATTER OF ADMINISTRATION, QUESTION OF PAY OF GRADE BEING OTHERWISE SPECIFICALLY PROVIDED FOR (3 COMP. GEN. 144, 146), IT SEEMS TO FOLLOW THAT WHEN THE SECRETARY OF THE NAVY HAS PLACED CERTAIN ENLISTED PERSONNEL IN ONE OF THE FIRST THREE GRADES THEY BECOME ENTITLED TO NOT LESS THAN THE PAY AND ALLOWANCES PROVIDED FOR ENLISTED MEN OF THE FIRST THREE GRADES OF THE ARMY, RESPECTIVELY.

IN VIEW OF WHAT HAS BEEN STATED HEREIN, I HAVE TO ADVISE THAT OFFICERS' STEWARDS AND COOKS, FIRST AND SECOND CLASS, AND MUSICIANS, FIRST CLASS, OF THE NAVY, HAVING BEEN CLASSIFIED IN THE SECOND OR THIRD GRADES, ARE ENTITLED TO THE MONEY ALLOWANCE FOR QUARTERS FOR THEIR DEPENDENTS PROVIDED BY THE ACT OF OCTOBER 17, 1940, IF OTHERWISE WITH ITS PROVISIONS.

THE DECISION OF MARCH 17, 1941, IS MODIFIED TO THE EXTENT THAT IT IS INCONSISTENT HEREWITH AND WHAT WAS SAID IN DECISION OF OCTOBER 3, 1940, B- 12506, AS TO TRANSPORTATION OF DEPENDENTS OF ENLISTED MEN OF THESE RATINGS IS ALSO MODIFIED TO ACCORD WITH THE FOREGOING.

SHIPS COOKS, FIRST CLASS, AND SHIPS COOKS, SECOND CLASS, HAVE BEEN RATED PETTY OFFICERS, FIRST CLASS AND SECOND CLASS, RESPECTIVELY, WITH PRECEDENCE ABOVE CERTAIN OTHER PETTY OFFICERS AS SHOWN IN ARTICLE D 5102, BUREAU OF NAVIGATION MANUAL, AND, FOR PAY PURPOSES, ARE IN THE SECOND OR THIRD PAY GRADE. THEY, LIKEWISE, ARE ENTITLED TO THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, IF OTHERWISE WITHIN ITS PROVISIONS.