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sarily limited by the actual pay he was receiving on June 30, under the conditions of service on that day.
This question is also answered in the affirmative.
(c) Will an enlisted man now on detached duty and receiving a subsistence allowance of $2.50 per day continue to draw this rate, or will he drop to the rate to be established for all services under regulations issued by the President?
(d) If (c) is answered in the affirmative, will a man detailed to such duty on or before July 1, 1922, be entitled to the rate now in force, $2.50 per day, or not?
(3) Will enlisted men on recruiting duty receive the allowance now provided by law and regulations amounting to about $2.50 per day, or will they be entitled only to the rate prescribed by the President?
It is stated:
Enlisted men detailed on staff duty are now receiving a subsistence allowance of $2.50 per day, which will be reduced to $1.95, and enlisted men on recruiting duty now receive commutation of rations at $1.75 per day, commutation of quarters at $15 per month, and heat and light for one room amounting to about $9 per month.
The prior right of enlisted men of the Marine Corps to a subsistence allowance in lieu of quarters and rations in kind as in effect on June 30, 1922, appears to have been based on regulations under specific provisions appearing in annual appropriation acts and to have terminated with the annual appropriation act for 1922, no specific appropriation therefor having been made thereafter.
The right to such allowance as fixed by prior regulation is therefore terminated, and the provision in section 11 of the act of June 10, 1922, and the regulations to be prescribed thereunder by the President, are substituted therefor.
Questions (c), (d), and (j) are answered accordingly.
(e) Will enlisted men of the fourth and fifth grades, sergeants and corporals. be entitled to the 20 per cent increase provided by the act of May 18, 1920?
This increase of pay was authorized by section 4, act of May 18, 1920, 41 Stat., 602, and was made effective, as provided in section 13 thereof, as follows:
That the rates of pay prescribed in sections 4 and 6 hereof shall be the rates of pay during the current enlistment of all men in active service on the date of the approval of this act, and for those who enlist, reenlist, or extend their enlistments prior to July 1, 1922, for the term of such enlistment, reenlistment, or extended enlistment.
The act of June 4, 1920, 41 Stat., 761, further provided:
The temporary increase of pay for enlisted men of the Army authorized by section 4 of the act of Congress approved May 18, 1920, shall be computed upon the base pay provided for in this section, and shall apply only to enlisted mren of the first five grades.
This question is answered in the affirmative.
(1) Will enlisted men of the sixth and seventh grades, detailed as specialists, be entitled to the new rates, or to the rates provided by the Army reorganization act of June 4, 1920?
(g) If (f) is answered in the affirmative, will this be true even though (c) and (d) are answered in the affirmative?
You supplement your question (f) with the statement that The new law increases the compensation of specialists, and the question arises whether or not the higher rate can be paid to enlisted men detailed as specialists while they draw pay under the old law.
The provision in section 16 of the act of June 10, 1922, supra, contemplates that some items of pay and allowances might be greater ander the old laws than under the new law and, vice versa, some items greater under the new law than under the old laws.
The effect of this provision is to grant to an enlisted man in case the total of his pay and allowances under prior laws in effect on June 30, 1922, is greater than the total of his pay and allowances under the act of June 10, 1922, the right to continue to receive the pay and allowances as prescribed by the prior laws until the termination of the enlistment or extended enlistment in which serving on June 30, 1922, if he continue in the same grade or rating. It does not give him, however, the right to the items of pay and allowances that may be greater under the prior laws and also to those that may be greater under the act of June 10, 1922.
This question is answered accordingly.
(h) Will enlisted men be entitled to the increased pay for good-conduct medals awarded on or before June 30, 1922?
The right of enlisted men of the Marine Corps to additional pay . for good-conduct medals, prior to June 10, 1922, was dependent on provisions therefor in annual appropriation acts, and continues to be so dependent during current enlistment without change of grade.
The question is answered accordingly.
(1) Will enlisted men who have qualified as marksmen, sharpshooters, or ex. pert riflemen be entitled to the rates now provided by law and regulations,
*? This additional pay is based upon the provisions in the Army appropriation act of May 11, 1908, 35 Stat., 110, as amended by the act of May 12, 1917, 40 Stat., 45 as follows:
That hereafter enlisted men now qualified or hereafter qualifying as marksmen shall receive $2 per month; as sharpshooters, $3 per month; as expert riflemen, $5 per month;
all in addition to their pay, under such regulations as the Secretary of War may prescribe, but no man shall receive at the same time additional pay for more than one of the classifications named in this section.
This provision was made applicable to the enlisted men of the Marine Corps by virtue of section 1612, Revised Statutes (21 Comp. Dec., 848).
This question is answered in the affirmative
PAY AND ALLOWANCES OF MARINE BAND. The pay and allowances of the leader of the Marine Band under existing law
on June 30, 1922, being those of a captain of the Marine Corps, he is classified under the act of June 10, 1922, 42 Stat., 626, for base pay purposes as in period 3, and is entitled on and after July 1, 1922, to the pay and
allowances of that period. 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 as members of the band by the act of August 29, 1916, 39 Stat., 612, and therefore on and after that date the second leader is not entitled to either 20 per cent increase of pay under acts of May 18, 1920, 41 Stat., 602, section 4, and June 4, 1920, 41 Stat., 761, or to 10 per cent additional for longevity under the act of June 4, 1920, 41 Stat., 761; the musicians are not entitled to 20 per cent increase of pay under said acts of May 18, 1920, and June 4, 1920; and neither the
second leader nor musicians are entitled to good conduct medal pay. The second leader and musicians of the Marine Band, being entitled under
existing law on June 30, 1922, to the allowances of a sergeant major and sergeant, respectively, are entitled on and after July 1, 1922, to the same subsistence allowance in lieu of quarters and rations as a sergeant major and sergeant, respectively, and therefore to the allowance for quarters and subsistence prescribed by the President under section 11 of the act of
June 10, 1922, 42 Stat., 630. (See Executive order of June 19, 1922.) Comptroller General McCarl to the Secretary of the Navy, July 17, 1922.
I have your letter of June 20, 1922, requesting decision of the following questions submitted by the paymaster, United States Marine Corps, as to the pay and allowances to which members of the Marine Band will be entitled on and after July 1, 1922, in view of the provisions of section 21 of the act of June 10, 1922, 42 Stat. 633.
(a) Is the leader of the band, who has over 17 years' service, entitled to the pay and allowance pertaining to the fourth pay period? If not, in wbat pay period will he be classified ?
(b) Are the second leader of the band and the musicians thereof entitled to the additional 20% provided by the act of May 18, 1920, and June 4, 1920?
(c) Are all members of the Marine Band entitled to pay for good conduct medals now held and those awarded hereafter ?
(d) Will the longevity pay of the second leader of the band be computed under the Army reorganization act of June 4, 1920, or under the provisions of H, R. 10972?
(e) Will the second leader of the band and the musicians of the band re ceive a subsistence allowance of $2.50 as prescribed by the Secretary of the Navy, or will they come under the allowance prescribed by the President under section 11 of H. R. 10972?
Section 21 of the act referred to provides:
That nothing in this Act shall operate to change in any way existing laws, or regulations made in pursuance of law, governing pay and allowances of the
Marine Band, The act of August 29, 1916, 39 Stat. 612, in effect at the time of the enactment of the joint service pay act of June 10, 1922, and therefore then “existing” law for the purpose of section 21 of said new legislation, separated the Marine Band for purposes of pay and allowances from enlisted men generally of the Marine Corps, and prescribed the pay and allowances to which its respective members were entitled, 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 allowances of a sergeant and to have no increase in the rates of pay on account of length of service.
Your questions are answered in the order submitted, and as applying to the pay and allowances to be received by members of the Marine Band for period from and after July 1, 1922. .
(a) No. His rights under existing law on June 30, 1922, were to the pay and allowances of a captain of the Marine Corps. The period under the new act in which a particular captain of the Marine Corps belongs for base pay purposes and consequent allowances is dependent upga service and other prescribed conditions and it is concluded that the band leader for assimilated base pay purposes is classified within the intent of the act of June 10, 1922, in period 3.
(b) No. Their pay is that fixed separately for them as members of the band in act of August 29, 1916, 39 Stat., 612, and they are not entitled to increases of pay for enlisted men generally of Marine Corps. See 1 Comp. Gen., 317, 417; Bristow v. United States, 47 Ct. Cl., 46; Giacchetti v. United States, 39 id., 381.
For additional reason why they are not assimilated to enlisted men of Marine Corps generally for purposes of this additional pay or otherwise, see the terms of section 4b of the act of June 4, 1920, 41 Stat., 761. See also Marine Corps Orders No. 18 of June 25, 1920.
(c) No. For same reason as given in answer to question (b).
(d) For same reason given in answer to question (b), not entitled thereto under either act.
(e) The second leader and the musicians are entitled to the same subsistence allowance in lieu of quarters and rations as a sergeant major and sergeant, respectively, and therefore come under the provisions of section 11 of the act of June 10, 1922. See decision of Comptroller General to Secretary of Navy, July 17, 1922, in re allowances of enlisted men of Marine Corps.
Answers to questions (b), (c), and (d), to the effect that the second leader and the musicians 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, that the second leader is not entitled to 10 per cent additional for longevity under act of June 4, 1920, 41 Statı, 761, paragraph 2, and that neither the second leader nor musicians are entitled to good conduct medal pay, are not intended to apply to such payments received by them for period prior to July 1, 1922.
STORAGE AFTER TERMINATION OF CONTRACT.
The Government is entitled to a reasonable time to remove any property the
title to which is retained by it upon the termination of a contract by award or by agreement, and if no provision be made in the termination agreement for payment of storage thereon no payment as such is authorized. The remedy, if any, for an unreasonable delay in removing the property would be the presentation of a claim for damages, and in such case it would be necessary to establish the fact of an unreasonable delay and that actual
damage had resulted therefrom in an ascertained amount. Decision by Comptroller General McCarl, July 18, 1922.
The Cleveland Crane & Engineering Co. applied March 6, 1922, for a review of settlement No. 420740, dated February 6, 1922, War Department division of this office, in which was disallowed its claim for $7,608.76 on account of storage charges on steel belonging to the United States which was left at claimant's plant after the termination of two shell-forgings contracts.
One of the contracts was informal and was terminated by statutory award dated May 20, 1919, and the other one was formal and was terminated by an agreement dated July 29, 1919, and approved August 20, 1919.
The steel on which the storage charges are claimed was furnished by the Government for use by claimant in the manufacture of shell forgings, and storage is charged at the rate of 6 cents per ton per month on the steel left at the plant after the termination of the contract to which it pertained until removed or until June 6, 1921, beyond which date claimant was responsible for all delay in removal.
The termination agreements made no provision with reference to the storage or removal of the steel in question and no agreement of any kind was made relative thereto.
The Government was entitled to a reasonable time in which to remove the steel without liability for storage charges or damages and if there was an unreasonable delay in the matter it could not give rise to a claim for storage charges in the absence of an agreement as to storage, but such claim as there might be in the case would be a claim for actual damages, if any, resulting from such delay.
The reasonable or customary rate for storage charges would not be the proper measure of damages in such a case, but it would be necessary to establish, first, that there was an unreasonable delay on the part of the Government in the removal of the steel, and, second, that such delay resulted in actual damages to claimant in an ascertained amount. No such showing has been made in this case.
Upon a review of the matter no differences are found and the settlement is sustained.