67TH CONGRESS, 2d Session.

SENATE.

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REPORT No. 392.

TRANSFER OF TITLE OF CERTAIN MILITARY RESERVATIONS IN MASSACHUSETTS.

JANUARY 9, 1922.-Ordered to be printed.

Mr. WADSWORTH, from the Committee on Military Affairs, submitted the following

REPORT.

[To accompany S. 2736.]

The Senate Committee on Military Affairs, to which was referred the bill (S. 2736) providing for the conveyance to the town of Marblehead, in the State of Massachusetts, of Fort Sewall Military Reservation for public use, having considered the same, report favorably thereon with the recommendation that the bill do pass with amend

ments.

This bill is one of three similar bills introduced in the Senate. The other two were S. 2734, providing for the conveyance to the city of Salem, in the State of Massachusetts, of Fort Lee Military Reservation for public use, and S. 2735, providing for the conveyance to the city of Salem, in the State of Massachusetts, of Fort Pickering Military Reservation for public use. The amendments suggested by the committee would consolidate the three bills in one. As set forth in a letter from the Secretary of War, which is appended and made a part of this report, these military reservations are of considerable historic interest and have no present practical military value. They will be preserved by the city of Salem and the town of Marblehead, and it is thought advisable to transfer title to them to these communities. The letter from the Secretary of War, above referred to, follows:

The CHAIRMAN COMMITTEE ON MILITARY AFFAIRS,

United States Senate.

DECEMBER 14, 1921.

SIR: In further reply to your request for an expression of the views of the War Department relative to Senate bills 2734, 2735, and 2736, providing for the conveyance of the military reservations of Forts Lee and Pickering to the city of Salem, Mass., and Fort Sewall to the town of Marblehead, Mass., I desire to advise you as follows: From an examination of the records pertaining to these reservations on file in the War Department it appears that the lands comprising the reservations of Forts Lee

and Pickering were donated to the Federal Government by the local communities for the purpose of the erection thereon of defensive works for the fortification of the harbors of the near-by towns.

In making this donation specific provision was made in the deeds to the United States, with the exception of a part of Fort Pickering, for reversion to the grantor, the town of Salem, in case the Government should cease at any time to use the lands for the purpose for which they were conveyed. The deeds to the lands constituting a part of Fort Pickering contained no specific provision for their reversion.

In regard to Fort Sewall the records of the department show that this reservation comprises 24 acres, the portion upon which the old fort was constructed being donated by the town of Marblehead, Mass., on August 30, 1794, and the remaining portion, which is not definitely defined in the deed pertaining thereto, being purchased by the Government for $250 from Russell Trevitt on August 30, 1794. The deeds to the United States to the lands comprising the Fort Sewall Reservation contained no specific provision for their reversion.

By an act of Congress approved May 19, 1890, permission was granted to the town of Marblehead to improve and use this reservation as a public park, the title thereto and control of the same, however, to remain in the United States. The reservation is still being used for that purpose.

This reservation possesses historical interest in that an ancient fort stands upon it. In view of the fact that the major portions of the above reservations were donated to the United States by the communities concerned for defensive purposes, and of the provisions for reversion to the grantors in some of the deeds, when no longer required by the United States for military purposes, the War Department recommends favorable consideration of the proposed legislation providing for the transfer of these reservations to the communities concerned.

While as a rule this department does not approve of turning over to a community without remuneration a reservation which was purchased wholly or in part by the Government, consent is given nevertheless in the case of Fort Sewall, for the reason that it possesses historical interest, would have small pecuniary value if the portion purchased were sold, and has been used by the town of Marblehead for the past 30 years as a public park.

Respectfully,

Mr. ROBINSON, from the Committee on Military Affairs, submitted the following

REPORT.

[To accompany S. 2493.]

The Senate Committee on Military Affairs, to which was referred the bill (S. 2493) to relieve enlisted men affected thereby from certain hardship incident to the operation of the proviso of section 4b of the national defense act of June 3, 1916, as amended by the act of June 4, 1920, and to protect disbursing officers in connection therewith, having considered the same, report favorably thereon, with the recommendation that the bill do pass without amendment. The purpose of the bill is fully set forth in a letter of the Secretary of War to the chairman of the committee under date of September 17, 1921. This letter says:

The following survey of the situation evoking the foregoing recommendation will, it is believed, enable your committee to readily appreciate the pressing need for the early passage of the proposed legislation.

The act of June 4, 1920 (41 Stat., 759), provides that the enlisted personnel of the Army shall be divided into seven grades and fixes the rates of pay for each grade, with the stipulation that the number of enlisted men in each grade shall not exceed a fixed ratio to the entire enlisted personnel. It further provides (p. 761) that under such regulations as the Secretary of War may prescribe enlisted men of the sixth and seventh grades may be rated as specialists and receive extra pay therefor per month at rates stated in the act, and that"Nothing in this section shall operate to reduce the pay which any enlisted man is now receiving during his current enlistment and while he holds his present grade * *

By General Order 36, War Department, 1920, the system of grading and rating enlisted men then in effect was changed to conform to the requirements of the act of June 4, 1920, supra. Certain grades, such as cook, horseshoer, etc., were abolished, and it was stipulated that the men who held such grades prior to July 1, 1920, should be regarded (regraded) as privates first class or privates, and should be given a designated specialist rating with extra monthly pay as therein indicated.

It was furthermore provided that sergeants theretofore authorized for duty as bakers, blacksmiths, horseshoers, etc., should likewise be regarded as privates first class or privates, and should be given a designated specialist's

rating with extra monthly pay.

Aug. 3, 1921.)

(Opinion of the Judge Advocate General of

The clause "while he holds his present grade" in the above-quoted proviso of section 4b of the national defense act of June 3, 1916, as amended by the Army reorganization act of June 4, 1920 (41 Stat., 761), was thus defined for the purpose of administration of said section and of aforementioned General Orders, No. 36, War Department, 1920, in paragraph 3 of Section I, General Orders, No. 44, War Department, 1920:

66

The term present grade" as used in the above section refers to the grade held on June 4, 1920. An enlisted man in active service on June 4, 1920, will be paid from and after July 1, 1920, at rates established by prior acts (acts of June 3, 1916, May 18, 1917, July 11, 1919, and May 18, 1920), only when such pay exceeds the rate prescribed by the act of June 4, 1920, and while he continues in his present enlistment in the grade held on June 4, 1920 (or assimilated grade as determined by Sec. I, General Orders, No. 36, War Department, 1920). Any promotion or reduction automatically places the soldier under the new rate of pay as prescribed above.

In seeming consonance with such definition was the subsequent pronouncement of the Comptroller of the Treasury in the following portion of a decision, expository of said section 4b, rendered November 15, 1920:

"The term pay' as used in the saving clause of section 4b of the act of June 4, 1920 (41 Stat., 761, 762), does not include allowances; but does include the base pay, continuous-service pay, 20 per cent increase of pay (if any) under the provisions of section 4 of the act of May 18, 1920 (41 Stat., 602), and the additional pay (if any) for qualification for rating as expert in the military profession, such as marksman, sharpshooter, expert rifleman, military telegrapher, etc., which an enlisted man is receiving on June 4, 1920; and if the sum of the items of such pay is greater than the sum of the items of the base pay, longevity pay, 20 per cent increase of pay (if any) and the additional pay (if any) for qualification for rating as expert in the military profession, authorized by section 4b effective on July 1, 1920, the greater sum shall be paid the enlisted man until the termination of the enlistment in which he was serving on June 4, 1920, if he continues in the same grade. A change of grade within the meaning of said saving clause is effected only by promotion or demotion for a cause or condition other than that requiring the placing of each enlisted man of the Army in one of the seven grades established by section 4b." Attention is invited to the last sentence of the above quotation, the principle of which would secure to noncommissioned officers-sergeants and corporalsregraded as privates first class or privates and given specialist ratings in accordance with the aforesaid General Orders, No. 36, 1920, the benefit of the above-quoted proviso of section 4b, and accordingly entitle them, notwithstanding such regrading, to the rates of pay established by law prior to June 4, 1920, if their current enlistment antedated, or commenced on, June 4, 1920, the date contemplated by the word "now" in said proviso. It is this class of enlisted men in whose interest the above-proposed remedial legislation is submitted by the War Department, as will hereinafter appear.

This liberal interpretation of the meaning of the saving clause of aforesaid section 4b, contained in the above-quoted portion of the decision of the comptroller of November 15, 1920, promulgated by Finance Circular, No. 135, Finance Department, 1920, was destined to undergo considerable modification, to the increasing prejudice of this class of enlisted men. Such modification of aforesaid original interpretation was accomplished by the decisions of January 10, 1921, February 15, 1921, and June 9, 1921, of the effect whereof the Judge Advocate General, in his above-cited opinion of August 3, 1921, remarks:

"From the decisions of the comptroller dated January 10, 1921 (27 Comp. Dec. 600), and February 15, 1921, copy attached, it would seem that a noncommissioned officer not reduced by sentence of a court-martial, or by competent authority for inefficiency or misconduct, must. actually have been rendered supernumerary, under the act of June 4, 1920, and reduced by competent orders. for that reason, to remove him from the operation of that provision of the above act which inhibits reduction of pay by reason thereof, so long as a soldier holds the grade which he then had. However, in his decision of June 9, 1921, copy attached, the Comptroller of the Treasury has expressed a somewhat different view from that theretofore expressed by him, and has held in effect that the demotion of a noncommissioned officer under the provisions of General Orders,