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sentative of the estate, the accounting officers may allow the amount found due to the decedent's widow or legal heirs in the following order of precedence: First to the widow; * *
In this case an administrator has been appointed and qualified and has filed claim for the arrears of pay; the mere living with the soldier for five years is not sufficient to entitle her to be considered the soldier's widow, and the question is whether she is entitled now to receive the unpaid allotment made to her.
It was said, 26 Comp. Dec., 856: Allotments of pay under the Army Regulations and the statutes hereinbefore quoted are purely voluntary acts of the soldier making the allotment. They carry no corresponding allowance or other obligation of the Government and require no administrative adjudication to become effective. They are revocable at the will of the allotter and vest no property right in the allottee. 10 Comp. Dec., 208. Mere issuance of a check for the allotment does not constitute payment thereof. The allotment has not been paid until the check has been collected or negotiated by the payee. 16 Comp. Dec., 151; 24 id., 735. In all cases where checks for Army allotments made by soldiers for the support of families or relatives have not been collected or negotiated by the allottee, no property right to the allotment represented by the check has vested in the allottee, and therefore neither the checks nor any portion of the allotments which they represent are general assets of a deceased allottee's estate. 10 Comp. Dec., 208; 24 id., 521.
In 10 Comp. Dec., 208, it was said, quoting from the syllabus, that “the death of a soldier operates to revoke an allotment of a portion of his pay made by him," and that
At the time of the soldier's death on July 12, 1903, the amount allotted for the month of June, 1903, had not been reduced to possession by the allottee, but the title to the same remained at that time in the soldier, and at his death the amount became a part of his estate, subject to the control of his legal representatives.
This holding was based on the analogy between an allotment of a portion of a soldier's pay under this statute and a power of attorney authorizing another person to receive payment of the amount of a claim of the principal; and it had been held that such power of attorney is revoked by the death of the principal before payment thereof has been made.
This case is not affected by the act of February 28, 1919, 40 Stat., 1212, relating to war risk insurance allotments to those not dependents, and is also to be distinguished from those cases where the check in payment is outstanding and has never been returned. 1 Comp. Gen., 146, and decision of to-day case of John Mack. Under the decisions herein cited no right to the amount allotted to her vested in Elena Martinez by virture of the allotment unless and until she had reduced the allotment to possession during the lifetime of the soldier; and the reasons for her failure to so reduce the allotment to possession are immaterial. The amount is a part of the soldier's estate and should be paid accordingly. Claims of the character here appearing are for adjustment in the settlement of the estate.
For the reasons herein given, the memorandum decision is not approved.
EMPLOYMENT OF RETIRED ARMY OFFICERS.
The employment of a major retired from active duty as special assistant to
the Attorney General with compensation attached, and payment to him of that compensation in addition to his retired pay, is prohibited by the act of July 31, 1894, 28 Stat., 205.
Comptroller General McCarl to the Attorney General, October 17, 1921.
I have your letter of September 27, 1921, as follows:
It is my desire to employ Colonel E. G. Davis, a retired Army officer, as a special assistant to the Attorney General. Colonel Davis was formerly an instructor in law at West Point and is peculiarly fitted for the purpose for which it is desired to employ him, because of his knowledge of War Department regulations, orders, decisions, etc. It is proposed to employ him for service in connection was certain alleged frauds under Army contracts, at a compensation of $7,500 per annum.
Your decision is respectfully requested as to whether he may be so appointed, at the rate indicated, and at the same time draw his pay as a retired Army officer, and, if not, whether he may relinquish his retired pay during the period of his employment as a special assistant to the Attorney General and be paid solely in the capacity of special assistant to the Attorney General at the rate indicated.
In this connection I desire to invite your attention to the following decisions :
U. S. v. Conrerse, 21 Howard 463; U. S. v. Brindle, 110 U. S. 688; 15 Op. A. G. 608; 38 Court of Claims 39 and 428; 25 Court of Claims 296; 4 Comp. Dec. 696 ; 26 Comp. Dec. 49, and Comp. Dec. to Attorney General dated August 31, 1920.
Section 2 of the act of July 31, 1894, 28 Stat., 205, provides: No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate.
It has been held that a retired Army officer holds an office within the meaning of this section, and that if his retired pay amounts to $2,500 per annum he is prohibited by the section from holding any other office with compensation attached, unless specially authorized thereto by law, or unless elected thereto, or appointed thereto by the President by and with the advice and consent of the Senate. 8 Comp. Dec., 443; 11 id., 236, 422, 448; 19 id., 161; 25 id., 762; 26 id., 897.
With the exception of the cases in 38 Court of Claims the opinions in all the court cases cited in your letter were rendered prior to the passage of the act of 1894, and took no note of that act. The same is true of the opinion of the Attorney General which you cite. In 38 Court of Claims, 39, the compensation allowed to a retired Army officer for service in another capacity was payable from a discretionary appropriation which had been given to the President for national security and defense and was allowed by the court as not open to question for that reason. The case of Geddes v. United States, 38 Ct. Cl., 428, turned largely upon the construction of another statute and has never been accepted by the accounting officers
as decisive of the application of this section of the act of 1894 to retired Army officers. The section in express terms provides that its prohibition shall not apply to retired Army officers who may be elected to public office or appointed to office by the President, by and with the advice and consent of the Senate. It is clear, I think, that there is a negative pregnant here, and an implied affirmative that the prohibition shall apply to retired officers sought to be appointed to or to hold any office not elective or appointive in the manner prescribed by the section.
As an officer on the retired list of the Army, Col. Davis holds an office with compensation exceeding $2,500 per annum, 8 Comp. Dec., 443. As special assistant to the Attorney General at a salary of $7,500 per annum he would hold an office with compensation attached in which he would perform official duties and render service to the United States under a commission from the Attorney General and under an oath of office. Section 366, Revised Statutes. Earlier decisions of the Comptroller of the Treasury in so far as they may conflict with this view of the official status of special assistants, if there is conflict, will not be followed. See 2 Comp. Dec., 271, 11 id., 279. Those decisions seem to rest upon the conclusion that the element of duration, thought to be one of the essentials to an office, is lacking in such appointments. Whatever may have been the status in point of duration of the appointments then under consideration it is clear that the proposed appointment at a yearly salary and for the purpose indicated would establish duration as one of the incidents of the appointment. In any event later decisions of the Comptrollers have broadened the definition of “ office" as used in this connection. See 26 Comp. Dec., 897.
The official Army Register shows Edwin G. Davis, major, retired October, 1919, disability in line of duty, section 1251, Revised Statutes. This was a retirement from active service only. An officer of the United States Army retired from active service only, and not wholly retired from service, is an officer in the employ of the Government. 29 Op. Atty. Gen., 397.
The proposed employment of Col. Davis as special assistant to the Attorney General with the above stated compensation attached, and payment to him of that compensation in addition to his retired pay, would be a violation of the provision of the act of 1894 hereinbefore quoted.
The retired pay of a major on the retired list of the Army is fixed and attached by law to the retired office which he holds. The United States Supreme Court has held that public policy prohibits any attempt by unauthorized agreement with an officer of the United States, under guise of a condition or otherwise, to deprive him of the right to pay given by statute. Glavey v. United States, 182 U. S., 595. United States v. Andrews, 240 U. S., 90. Any attempt on the part of Col. Davis to relinquish his retired pay and restrict himself to the right to compensation as special assistant only would be ineffective for that purpose. As to the right of election between military pay fixed by statute and a civilian salary, see, also, 23 Comp. Dec., 62.
TRANSPORTATION OF AUTOMOBILES OF NAVAL OFFICERS
A naval officer, who in ignorance of the amendment of Navy Regulations includ
ing personal automobiles in the term “household effects ” authorized to be transported at Government expense upon change of station, has his automobile crated and shipped at his own expense, is not entitled to reim
bursement, nothing more being authorized than to have service performed. Decision by Comptroller General McCarl, October 17, 1921.
Lieut. Commander C. D. Swain, United States Navy, Navy Yard, Boston, Mass., requested, September 1, 1921, a review of settlement No. 106384, dated August 26, 1921, Navy Department Division, by which was disallowed his claim for reimbursement of the cost of crating and shipping his automobile from San Francisco, Calif., to Boston, Mass., July 2, 1921.
Prior to June 22, 1921, claimant was attached to the destroyer force, Pacific Fleet; on that date orders were issued by the Navy Department detaching him from that duty and assigning him to duty with the commandant of the first naval district, Boston. Navy Department General Order No. 36, dated January 5, 1921, section 6, defines " household effects” which, under the terms of the act of May 18, 1920, 40 Stat., 604, an officer of the Navy is entitled to have shipped at public expense on change of station, as follows:
Household effects shall comprise the personal belongings and household effects which are exclusively the property of the person ordered to make the change of station and which have been in use by such person (or his family ) previous to shipment thereof. The term “ household effects" does not include automobiles, alcoholic liquors or beverages, nor groceries and provisions.
General Order No. 52, dated June 13, 1921, is as follows: General Order No. 36, of 5 January, 1921, is hereby amended by striking out the last sentence of Section 6 thereof.
At the time claimant received his orders of June 22, 1921, and complied with them it is claimed there was no information of the change made by General Order No. 52 so as to comply therewith. Accordingly, claimant had 150 pounds of personal effects as defined by section 6 of General Order No. 36 shipped at public expense and arranged for the crating and shipping of the automobile, weighing 4,700 pounds at his personal expense. He now makes claim for reimbursement of this cost.
Under the laws applicable to officers of the Army and Marine Corps, and the regulations made pursuant thereto, automobiles may be included in the change of station baggage allowance. 17 Comp. Dec., 537; 22 id., 195 and 544; and, under the act of March 3, 1901, 31 Stat., 1029, it was held that officers of the Navy were entitled, when approved by the Secretary of the Navy, to have their privately owned automobiles included in the baggage transported at public expense on change of station to or from a shore station beyond the continental limits of the United States. 22 Comp. Dec., 679. The Secretary of the Navy having amended General Order No. 36 to permit the inclusion of automobiles as “ personal belonging” in the change of station baggage allowance, 27 Comp. Dec., 903 is no longer in point, being based on a different state of facts.
Section 8 of General Order No. 36 is in part as follows: 1. No household effects shall be packed, crated, or transported at public expense
(a) Until proper application has been made therefor in writing; and (if shipment is not made or arranged for by a supply officer).
(b) Until the owner or his agent receives authority in writing to effect shipment at his own expense, subject to claim for reimbursement. (See par. 3 below.)
2. Where household effects are located within established zone limits, applications for shipment shall be addressed to the supply officer at the yard, station, or base concerned.
The shipment covered by this claim was located “within established zone limits” and the regulations, section 9, provide that “ household effects which are located at, or in the vicinity of, shore stations having supply officers, and which are within determined zone limits, shall be shipped, or shipment shall be arranged for, by such supply officers upon applications being made to them.”
Under these regulations as amended by General Order No. 52, claimant was only entitled to request the supply officer to make shipment at public expense, and if that request could not be made because of no knowledge of the change in orders, neither the law nor the regulations pursuant thereto contemplate or authorize reimbursement of the cost of the service paid by him; nothing more being authorized than to have service performed. 5 Comp. Dec., 257; 6 id., 84; 7 id., 734, 736; 18 id., 415.
Upon a review of the matter, the settlement is sustained.
RECOVERY OF OVERPAYMENTS OF WAR RISK ALLOTMENTS AND
Issuance of a check in payment of a war risk allotment or allowance in excess
of the amount to which the beneficiary was entitled, where the payee illegally holds the check after receipt of request for its return, does not constitute payment of the allotment or allowance within the meaning of the act of August 9, 1921, 42 Stat., 153, so as to bar recovery of the overpayment, except that if the check be in the hands of a bona fide holder recovery from the allottee must be through other means than withholding payment thereon.