PAY AND ALLOWANCES OF SECOND LEADER AND MUSICIANS OF MARINE BAND ON AND AFTER JULY 1, 1922.

The second leader and musicians of the Marine Band, being entitled under the existing law (act of August 29, 1916, 39 Stat., 612) on June 30, 1922, to the allowances of a sergeant major and sergeant, respectively, are entitled to the reenlistment allowances provided by section 9, act of June 10, 1922, 42 Stat., 629, in the amount and under the same conditions as enlisted men of the first and fourth grades, respectively.

The second leader and musicians of the Marine Band, having been separated under existing law on June 30, 1922, for pay purposes from enlisted men generally of the Marine Corps, are confined on and after July 1, 1922, to the pay expressly fixed for them by the act of August 29, 1916, 39 Stat., 612. Decision of July 17, 1922, 2 Comp. Gen., 25, adhered to.

Comptroller General McCarl to the Secretary of the Navy, November 29, 1922.

I have your letter of August 15, 1922, requesting reconsideration of the decision of this office of July 17, 1922, 2 Comp. Gen., 25, in so far as it held that the second leader of the Marine Band is not entitled to 10 per cent additional pay for length of service under paragraph 2, act of June 4, 1920, 41 Stat., 761, and that the second leader and the musicians of the Marine Band are not entitled to 20 per cent increase of pay under acts of May 18, 1920, 41 Stat., 602, section 4, and June 4, 1920, 41 Stat., 761, section 4b, paragraph 1, and to pay for good-conduct medals.

Musicians of the Marine Band were and are enlisted men of the Marine Corps. Prior to March 3, 1899, as enlisted men of the Marine Corps they were considered as assimilated for pay purposes by section 1612, Revised Statutes, to enlisted men of the Army of like grades, the assimilation being to musicians of the Military Academy Band. Patyschke v. United States, 31 Ct. Cls., 384; 3 Comp. Dec., 369, February 5, 1897; section 4 of the act of July 29, 1861, 12 Stat., 280; act of June 20, 1864, 13 Stat., 144; joint resolution of July 2, 1864, 13 Stat., 416; section 1612, Revised Statutes. See also apparently contra, Keppler v. United States, 27 Ct. Cls., 484; decision of 2d Comp., August 18, 1887, vol. 55, p. 30.

Musicians of the Military Academy Band were then entitled to a length of service benefit by virtue of direct pay enactment for them as members of that band and apart from men of the Army generally. Acts of March 3, 1875, 18 Stat., 419; March 3, 1877, 19 id., 383; and March 2, 1901, 31 Stat., 912. See also in this respect similar subsequent legislation for the Naval Academy Band. Act of April 12, 1910, 36 Stat., 297.

The act of March 3, 1899, 30 Stat., 1009, separated the Marine Band for pay purposes from its preceding assimilation to the Military Academy Band, increased the monthly pay of its leader, inserted a new independent grade of second leader not existing as to the Military Academy Band, with sole provision as to his pay that of $75 per month, and as to the other musicians fixed their pay at

the higher rates of $60 and $50 per month, respectively, than that they had been receiving by the assimilation to the pay under the act of March 3, 1877, 19 Stat., 383, for corresponding members of the Military Academy Band, who had no second leader, but in lieu of a second leader and two grades of musicians had three grades of musicians, the fixed monthly rates of which were $34, $30, and $17, respectively.

In thus setting up the Marine Band as an independent band for pay purposes of higher specified pay grades the Congress omitted from its legislation any provision for pay for length of service either for the new second leader or for the musicians and expressly negatived its payment to the musicians, notwithstanding the continuance in effect thereafter of its express provision for pay for "length of service" for the Military Academy Band from the operation of whose pay statute it was removing the Marine Band, and which statute for the Military Academy Band, after specifying the pay grades of its members, added:

and that the enlisted musicians of the band shall have the benefits as to pay arising from reenlistments and length of service applicable to other enlisted men of the Army.

See, as to repetition of length of service, provision for members of Military Academy Band in act of March 2, 1901, 31 Stat., 912, and the extension of it therein to leader.

It is clear that for pay purposes musicians of the Marine Band could not be at the same time both members of the Marine Band and enlisted men of the Marine Corps generally, and in consequence could not be assimilated under section 1612, Revised Statutes, to the Military Academy Band, the rates of pay of the Marine Band being fixed independently of that of other enlisted men of the Marine Corps, and at different rates for the respective grades than those of the Military Academy Band, and there being no second leader in the Military Academy Band with which to assimilate.

The legislation of 1899 therefore could not operate otherwise than to eliminate the assimilation theretofore existing between the two bands for pay purposes, and in doing so to separate members of the Marine Band from men of the Marine Corps for pay purposes as well as from members of the Military Academy Band.

As thus separated, their pay rights are found in and limited to those conferred upon them in their separate pay statute of 1899, which stated the rates of pay and prohibited increase of pay for length of service, as follows:

That the band of the United States Marine Corps shall consist of one leader, with the pay and allowances of a first lieutenant; one second leader, whose pay shall be seventy-five dollars per month, and who shall have the allowances of a sergeant major; thirty first class musicians, whose pay shall be sixty dollars per month; and thirty second class pay musicians whose pay shall be

fifty dollars per month and the allowances of a sergeant; such musicians of the band to have no increased pay for length of service. Act of March 3, 1899, 30 Stat., 1009, section 24.

Notwithstanding this enactment a decision was rendered June 30, 1908, 45 MS. Comp. Dec., 2652, that the second leader of the Marine Band was entitled to increase of pay for length of service and changed his pay from the amount of $75 per month as established by the statute.

An examination of the decision discloses that the act of 1899 as to the second leader was quoted and then-through an apparent confusion of the Marine Band provision (sec. 24 of the act of March 3, 1899) with the provision for gunnery sergeants of the Marine Corps in the preceding section of same act (sec. 23)-incorrectly stated that

Section 24, supra, of the Navy personnel act fixes the pay of the second leader of the Marine Band at $75, with the rank and allowances of a sergeant major.

the word "rank" being inserted and the decision apparently being grounded on the supposition that the Marine Band statute contained the word, as did the preceding section as to gunnery sergeants, which in the same decision had previously been construed.

Upon the subject of the application by assimilation of the grade pay of first sergeants, $45 per month, to gunnery sergeants, whose grade pay was $35 per month, under the statute conferring on gunnery sergeants the rank and allowances of a first sergeant, the court held in Bristow v. United States, 47 Ct. Cl., 46, decided December 4, 1911, quoting from the syllabus, as follows:

The grade of “ gunnery sergeant" in the Marine Corps is first established by the Navy personnel act, "whose pay shall be thirty-five dollars per month." Subsequently the pay of sergeants of the Army by the act 11 May, 1908, is advanced to $45 per month. The question in the case is whether this extends to gunnery sergeants in the Marine Corps.

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1. The grade of gunnery sergeant in the Marine Corps was first established by the Navy personnel act, 3d March, 1899 (30 Stat. L., p. 1009), and the pay was specifically fixed by the same statute at $35, while other sergeants received only $25. There has been no subsequent statute specifically changing the pay of gunnery sergeants.

II. The pay of the Marine Corps is regulated by the law which governs the Army pay, and this is accomplished automatically by the Revised Statutes (1612). But this does not extend to a case where Congress has made a specific provision for the pay of an officer or grade of officers, or enlisted men.

III. Where the pay of a new grade of officers is specilcally fixed by statute the general provision of law that the pay of the Marine Corps shall be the same as the pay of the Army, can not be construed so that the specific pay shall be either increased or diminished by reason of a change of Army pay. In concluding the decision the court said:

When we take into consideration the manifest injustice done to gunnery sergeants in the Marine Corps by the act of May 11, 1908, it may well be believed that Congress intended thereby to raise their monthly pay to $45. The trouble is, however, that such intention is determined from conjecture only because of such injustice. The pay of the Marine Corps is regulated by the laws which govern the pay of the Army, and this is done by the automatic action of section 1612, Revised Statutes. This section, however, does not perform this function when Congress has made any specific provisions

for the pay of the Marine Corps or any one of its officers or enlisted men as by section 23 of the act of March 3, 1899, supra, it has done with reference to gunnery sergeants. Section 1612 provides that the officers and enlisted men of the Marine Corps "shall be entitled to receive the same pay and allowances " as officers and enlisted men of like grades in the Infantry of the Army. Congress afterwards made an exception in the case of gunnery sergeants, and until this exception is repealed section 1612 will have no control over their pay. Let us see to what an absurdity any other rule of construction would lead us. Suppose section 23 had fixed the monthly pay of gunnery sergeants at $50 instead of $35, would the claimant contend that his monthly pay had been reduced to $45 by the act of May 11, 1908?

As already stated, the statutes quoted do a great injustice to the gunnery sergeants of the Marine Corps, and an injustice which doubtless Congress never intended, but we are to interpret the law as it is and not as we may merely conjecture it may have been intended to be, and must leave it to the wisdom and beneficence of Congress to make good any injustice which it may have inadvertently done.

No appeal was taken from this decision. The principle announced in it of the exclusion of enlisted men whose pay the Congress has established directly and separately for them as a class by themselves from the operation of statutes that otherwise might apply generally to them applies equally to the case of the second leader and musicians of the Marine Band now under consideration, and was but the application and reiteration of the well known principle of law— expressio unius est exclusio alterius-and this decision continues as the judicial view on the subject.

The Congress has not since 1899-as it clearly could have done climinated the pay barrier it then erected between the second leader and musician members of the Marine Band and other men of the Marine Corps, nor added to the separate Marine Band provision a further provision for length of service, or for the application of any general increases for men of Marine Corps or of Army, notwithstanding its different treatment of the Military Academy and Naval Academy bands in this respect. See acts of March 3, 1875, 18 Stat., 419; March 3, 1877, 19 id., 383; March 2, 1901, 31 id., 912; April 12, 1910, 36 id., 297.

On the other hand, the Congress expressly continued its pay separation by the legislation of August 29, 1916, 39 Stat., 612, again increasing the pay of members of the Marine Band, doubling that of its second leader from $75 per month to $150 per month, adding new grades of principal and third class musicians, and enlarging pay of former grades, as follows:

That the band of the United States Marine Corps shall consist of one leader, whose pay and allowances shall be those of a captain in the Marine Corps; one second leader, whose pay shall be $150 per month and who shall have the allowances of a sergeant major; ten principal musicians, whose pay shall be $125 per month; twenty-five first-class musicians, whose pay shall be $100 per month; twenty second-class musicians, whose pay shall be $85 per month; and ten third-class musicians whose pay shall be $70 per month; such musicians of the band to have the allowance of a sergeant and to have no increase in the rates of pay on account of length of service.

It is this legislation that section 21 of the act of June 10, 1922, continues as existing law unchanged.

Notwithstanding this 1916 statute is identical with that of 1899 as to the separation of the Marine Band for pay purposes from other men of the Marine Corps, by assimilation or otherwise, and which 1899 statute as clearly shown and in accord with existing judicial construction ended any assimilated status theretofore existing, the former construction by the Comptroller of the Treasury as to the 1899 statute apparently made through a patent error in the interpolation of the word "rank," and notwithstanding the unappealed from intervening decision of the court contra in principle, was carried forward and applied to the 1916 statute, the conclsion only of the former decision to effect that the second leader of the Marine Band was entitled to pay for length of service being quoted without a showing of the error as to use of word "rank" upon which based. See 45 MS. Comp. Dec., 2655, June 30, 1908; 27 Comp. Dec., 550, 552, December 15, 1920.

In rendering the decision in 2 Comp. Gen. 25, a reconsideration of which is now requested, no reason was seen why the patent error in the construction of the 1899 statute as to pay for length of service of the second leader should be further perpetuated and it was not. On the other hand the legislation of 1916 was construed in the only way it could have been consistent with the statutes involving the well-known principle of law that an express provision excludes a general one from applying and the then existing decisions on the subject, by holding that the second leader as a member of the band was confined to pay expressly fixed for him as a member of the band in the act of 1916, and was therefore for pay purposes separated from other men of the Marine Corps by assimilation or otherwise.

The mere nonconference of a pay right does not in itself imply one. Smith v. United States, 47 Ct. Cls., 313. On the other hand there must be the positive conference of a pay right for it to exist. I am unaware of any statute conferring any right on the second leader of the Marine Band for pay for length of service, and in the absence of one there can be none. The decision to the effect that he is not entitled thereto, in harmony with that of Bristow v. United States, supra, and with the preceding decisions of this office on the matter of pay of band, 1 Comp. Gen., 317, 417, is adhered to.

Aside from putting them in a class by themselves for pay purposes under the act of 1916, and therefore apart from the question of whether they are otherwise men of the Marine Corps, neither the second leader nor musicians of the band could be entitled to the 20 per cent increase authorized by section 4 of the act of May