B-35392, OCTOBER 19, 1943, 23 COMP. GEN. 286

B-35392, OCTOBER 19, 1943, 23 COMP. GEN. 286

RENTAL AND SUBSISTENCE ALLOWANCES - FEMALE PHYSICIANS IN MEDICAL DEPARTMENT OF ARMY FEMALE PHYSICIANS AND SURGEONS IN THE MEDICAL DEPARTMENTS OF THE ARMY AND NAVY APPOINTED UNDER AUTHORITY OF THE ACT OF APRIL 16, 1943, MAY NOT BE PAID INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR OFFICERS WITH DEPENDENTS.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, OCTOBER 19, 1943:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 19, 1943 (REFERENCE SPFEF 1016.3 ( CRAIGHILL, MARGARET D.) (, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH STATED IN FAVOR OF MAJOR MARGARET D. CRAIGHILL, MC-AUS, COVERING SUBSISTENCE AND RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (MOTHER) FOR THE PERIOD MAY 28-31, 1943.

MAJOR CRAIGHILL WAS APPOINTED UNDER THE PROVISIONS OF THE ACT OF APRIL 16, 1943, 57 STAT. 65, AS FOLLOWS:

THAT HEREAFTER DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER THERE SHALL BE INCLUDED IN THE MEDICAL DEPARTMENTS OF THE ARMY AND NAVY SUCH LICENSES FEMALE PHYSICIANS AND SURGEONS AS THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY MAY CONSIDER NECESSARY, WHOSE QUALIFICATIONS, DUTIES AND ASSIGNMENTS SHALL BE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE SECRETARY AND WHO SHALL BE APPOINTED AND AT HIS DISCRETION REMOVED BY THE SURGEON GENERAL OF THE ARMY OR NAVY, SUBJECT TO THE APPROVAL OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY. THOSE APPOINTED SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES OR THE NAVAL RESERVE, AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY AND THE NAVAL RESERVE OF THE NAVY WITH THE SAME GRADE AND LENGTH OF SERVICE.

THE OFFICERS' RESERVE CORPS OF THE ARMY IS ASSIMILATED TO THE REGULAR ARMY WITH RESPECT TO PAY AND ALLOWANCES BY SECTION 37A OF THE NATIONAL DEFENSE ACT, AS ADDED BY SECTION 32 OF THE ACT OF JUNE 4, 1920, 41 STAT. 775, 776, 10 U.S.C. 361, WHICH PROVIDES THAT RESERVE OFFICERS ON ACTIVE DUTY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS OFFICERS OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE.

THE RIGHT OF WOMEN PERSONNEL SERVING IN OR WITH THE MILITARY AND NAVAL FORCES OF THE UNITED STATES TO RECEIVE ALLOWANCES ON ACCOUNT OF DEPENDENTS HAS BEEN CONSIDERED IN SEVERAL DECISIONS OF THIS OFFICE. SEE 22 COMP. GEN. 406; 22 ID. 838; 22 ID. 955; AND DECISION OF SEPTEMBER 24, 1943, B- 36497, 23 COMP. GEN. 216. IN THE DECISION OF APRIL 14, 1943, 22 COMP. GEN. 955 TO WHICH YOU REFER IN YOUR LETTER, IT WAS POINTED OUT THAT THE STATUTORY DEFINITION OF DEPENDENTS FOUND IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, WHICH CONTROLS THE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO OFFICERS ON ACCOUNT OF DEPENDENTS, SHOWS CLEARLY THAT THE CONGRESS DID NOT INTEND THEREBY TO INCLUDE THE POSSIBLE DEPENDENTS OF WOMEN MEMBERS OF THE MILITARY AND NAVAL SERVICES, AND, IN THE ABSENCE OF ANY EVIDENCE IN THE LEGISLATIVE HISTORIES OF THE ACTS ESTABLISHING THE WOMEN'S RESERVE IN THE COAST GUARD RESERVE AND THE WOMEN'S RESERVE IN THE NAVAL RESERVE THAT THE CONGRESS INTENDED INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENTS TO BE PAID TO WOMEN MEMBERS THEREOF, IT WAS HELD, ACCORDINGLY, THAT COMMISSIONED WOMEN MEMBERS OF SUCH ORGANIZATIONS, ENTITLED TO THE SAME PAY AND ALLOWANCES AS MALE OFFICERS OF SUCH SERVICES OF THE SAME RANK AND LENGTH OF SERVICE, WERE ENTITLED ONLY TO THE SAME RENTAL AND SUBSISTENCE ALLOWANCES AS SUCH MALE OFFICERS, WITHOUT DEPENDENTS, WERE ENTITLED TO RECEIVE. THERE APPEARS NO ESSENTIAL OR MATERIAL DIFFERENCE BETWEEN THE SITUATION THERE CONSIDERED AND THE ONE HERE INVOLVED.

IN SECTION 3 OF THE ACT OF JULY 1, 1943, PUBLIC LAW 110, 57 STAT. 371, WHICH ACT ESTABLISHED THE WOMEN'S ARMY CORPS AS A TEMPORARY COMPONENT OF THE ARMY OF THE UNITED STATES, THE CONGRESS PROVIDED THAT THE COMMISSIONED OFFICERS OF SUCH CORPS SHALL CONSIST OF WOMEN APPOINTED AS OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728, AND THAT---

* * * THEY AND THEIR DEPENDENTS AND BENEFICIARIES SHALL HAVE ALL OF THE RIGHTS, PRIVILEGES, AND BENEFITS ACCORDED IN LIKE CASES TO OTHER PERSONS UNDER THAT ACT, EXCEPT WHERE OTHERWISE EXPRESSLY PROVIDED.

THE LEGISLATIVE HISTORY OF THE SAID ACT OF JULY 1, 1943, SHOWS BEYOND REASONABLE DOUBT THAT THE CONGRESS INTENDED BY THE USE OF SUCH LANGUAGE TO AUTHORIZE, INTER ALIA, THE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO COMMISSIONED OFFICERS OF THE WOMEN'S ARMY CORPS ON ACCOUNT OF DEPENDENTS TO THE EXTENT THAT THEIR SITUATION IN THAT RESPECT MIGHT BE REGARDED AS ANALOGOUS TO THAT OF MALE OFFICERS; AND IN DECISION OF SEPTEMBER 24, 1943, B-36497, 23 COMP. GEN. 216, IT WAS SO HELD. HOWEVER, IT WAS HELD IN DECISION OF AUGUST 4, 1943, B 32874, THAT SUCH PROVISION FOR MEMBERS OF THE WOMEN'S ARMY CORPS THUS MADE BY THE ACT OF JULY 1, 1943, DID NOT HAVE THE EFFECT OF AUTHORIZING SIMILAR PAYMENTS TO WOMEN MEMBERS OF OTHER MILITARY ORGANIZATIONS UNDER THE PROVISIONS OF PRIOR STATUTES APPARENTLY NOT CONTEMPLATING OR AUTHORIZING SUCH PAYMENTS WHEN ENACTED.

THE ACT OF APRIL 16, 1943, SUPRA, AUTHORIZING THE APPOINTMENT OF FEMALE PHYSICIANS AND SURGEONS IN THE MEDICAL DEPARTMENTS OF THE ARMY AND NAVY CONTAINS NO LANGUAGE WARRANTING A DETERMINATION THAT THE CONGRESS INTENDED TO GRANT THEM INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR OFFICERS WITH DEPENDENTS UNDER SECTION 4, 5, AND 6 OF THE SAID PAY READJUSTMENT ACT OF 1942 WITH RESPECT TO DEPENDENTS OF MALE OFFICERS, NOR IS THERE ANY EVIDENCE FOUND IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD SUPPORT SUCH A DETERMINATION.

ACCORDINGLY, AND FOR THE REASONS STATED MORE FULLY IN THE SAID DECISION OF APRIL 14, 1943, 22 COMP. GEN. 955, RESPECTING SUCH ALLOWANCES IN THE CASE OF OFFICERS OF THE WOMEN'S RESERVE IN THE NAVAL RESERVE AND THE WOMEN'S RESERVE IN THE COAST GUARD RESERVE, YOU ARE ADVISED THAT PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.