while on board the receiving ship (U. S. S. Intrepid) in the performance of the duty of settling the accounts of officers of vessels of the train, Pacfic Fleet, and the transference of them to his successor.

2. If not, whether such duty was "duty in the field" for the purposes of payment to him of commutation of quarters and heat and light for dependents.

The facts appear as follows:

December 23, 1920.-Radio orders to claimant, U. S. S. Minneapolis, San Diego, Cal., that when Minneapolis placed out of commission detached, and proceed and report on U. S. S. Nanshan for duty with officer having account of vessels' train, Pacific Fleet, not carrying supply officers. January 4, 1921.-Orders confirmatory of above despatch.

February 28, 1921.-Orders of Secretary of the Navy revoking despatch orders of December 23, 1920, and confirmatory orders of January 4, 1921, and directing to regard himself detached from his present station, and from such other duty as assigned, and to report as follows:

"When the accounts of the vessels of the train, Pacific Fleet, not carrying supply officers are transferred to the supply officer, U. S. S. Frederick, and when the U. S. S. Minneapolis is placed out of commission, detached, to San Diego, California, and report to the commandant eleventh naval district for duty with the supply officer at the naval base."

March 15, 1921.-Received above orders, U. S. S. Minneapolis, navy yard, Mare Island, Cal., and detached. Reported to H. Harsey, lieutenant commander U. S. N., aid to commandant, navy yard, Mare Island, and directed to report to commanding officer of the receiving ship, Mare Island, in connection with settling and transferring accounts of officers of vessels of train, Pacific Fleet, not carrying supply officers, and upon completion of that duty to proceed to San Diego, Cal., and report to commandant in accordance with orders of February 28, 1921. Reported on same date on the receiving ship and assigned quarters on board.

April 5, 1921.-Detached and ordered to proceed and carry out provisions of orders of March 15, 1921; April 18, 1921, reported San Diego.

May 11, 1921.-Orders of March 15, 1921, approved by Bureau of Navigation. It appears that claimant was on board the receiving ship (the Intrepid) at Mare Island for the period of the claim solely for the purpose of completing the settlement of the accounts of certain vessels of the train, Pacific Fleet, and transferring them to his successor, and that his duties were not duties of the receiving ship itself, but merely duties on board of her.

Such duty was not in itself sea duty, but duty that might be performed at any place the Secretary of the Navy might designate. It is frequently performed at the home of the officer. The receiving ship in this case appears to have been merely office quarters for his use in its performance in so far as his connection with the receiving ship itself was concerned.

His status was no more service at sea on the receiving ship while he was merely in the occupancy of office quarters on board her for the purpose of the settlement of accounts of other vessels than it would have been had he been in the occupancy of the quarters as a passenger on the vessel. See 23 Comp. Dec., 52.

Even had claimant been properly attached to the receiving ship as a part of its complement instead of merely officed on board of her in order to be entitled to the 10 per cent additional pay for service at sea it would have to be affirmatively shown that for said period he in fact lived and messed on board the receiving ship and was subjected

to the restrictions, regulations, and requirements incident to duty on 19 Comp. Dec., 136. There is no showing to this

the high seas.

effect in this case.

As claimant was not for the period of the claim attached to the receiving ship as a part of its complement for service at sea, but merely officed on board her, he could not have been for that period in the status of on duty "in the field" for the purposes of commutation of quarters, or heat and light for dependents. 23 Comp. Dec., 52; 24 id., 610.

Your questions are answered in the negative.

WAR SERVICE GRATUITY TO MIDSHIPMEN.

Midshipmen in training at the Naval Academy as students are not persons "serving in the military or naval forces of the United States" within the meaning of section 1406 of the act of February 24, 1919, 40 Stat., 1151, and on resignation or discharge under honorable conditions are not entitled to the $60 war service gratuity authorized by that act.

Decision by Comptroller General McCarl, November 16, 1921.

Commander S. Bryan (S. C.), United States Navy, applied October 11, 1921, for revision of the action of the Auditor for the Navy Department in disallowing in settlement No. 16265, dated April 14, 1921, of his disbursing account for the fractional first quarter, 1920, expenditures, made on public bills, for $60 discharge gratuities paid to midshipmen at the Naval Academy under the act of February 24, 1919, 40 Stat., 1151.

The act of February 24, 1919, provides as follows:

SEC. 1406. That all persons serving in the military or naval forces of the United States during the present war who have, since April 6, 1917, resigned or been discharged under honorable conditions (or, in the case of reservists, been placed on inactive duty), or who at any time hereafter (but not later than the termination of the current enlistment or term of service) in the case of the enlisted personnel and female nurses, or within one year after the termination of the present war in the case of officers, may resign or be discharged under honorable conditions (or, in the case of reservists, be placed on inactive duty), shall be paid, in addition to all other amounts due them in pursuance of law, $60 each.

This amount shall not be paid (1) to any person who though appointed or inducted into the military or naval forces on or prior to November 11, 1918, had not reported for duty at his station on or prior to such date; or (2) to any person who has already received one month's pay under the provisions of section 9 of the act entitled "An act to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917; or (3) to any person who is entitled to retired pay; or (4) to the heirs or legal representatives of any person entitled to any payment under this section who has died or may die before receiving such payment. In the case of any person who subsequent to separation from the service as above specified has been appointed or inducted into the military or naval forces of the United States and has been or is again separated from the service as above specified, only one payment of $60 shall be made.

In decision of Comptroller of the Treasury, dated October 4, 1919, 26 Comp. Dec., 236, the question was whether cadets of the United States Military Academy, who have been honorably discharged since

April 6, 1917, on account of deficiencies in studies or physical disability, are entitled to the payment of the $60 discharge gratuity as provided in the act of February 24, 1919. The decision held that a cadet in training at the United States Military Academy is not a person serving in the military or naval forces of the United States. within the meaning of section 1406 of the act of February 24, 1919. The only question for determination is whether midshipmen at the Naval Academy were "serving" in the naval forces in contemplation of that act.

Midshipmen at the Naval Academy are persons undergoing instruction or preparation for future naval service. Their status is that of students. They are not rendering service nor are they being paid for service. The law contemplates that their expenses be borne by the Government, and the "pay" they receive is not remuneration for service but money paid to meet expenses. Since they render no service, midshipmen at the Naval Academy are not " persons serving" in the naval forces as contemplated in the act of February 24, 1919, and therefore they are not entitled to the $60 gratuity on resignation as provided in that act.

Accordingly, upon this review no differences are found. The auditor's settlement is sustained.

AVIATION PAY TO STAFF OFFICERS OF ARMY.

A staff officer of the Army is not entitled to the 50 per cent increase of pay authorized by the act of June 4, 1920, 41 Stat., 768, for aerial flight duty, notwithstanding the proper performance of his staff duties may at times include a participation in aerial flights.

Comptroller General McCarl to Capt. E. O. Hopkins, United States Army, November 17, 1921.

I received on November 8 your letter of November 3, 1921, submitting for decision voucher stated in favor of Capt. C. H. M. Roberts, Ordnance Department, United States Army, for flying pay October 7 to 31, 1921. The voucher has not been extended and does not show the amount claimed. Vouchers submitted by a disbursing officer for advance decisions should be complete in every detail when submitted. 25 Comp. Dec., 653.

Paragraph 5 of Special Orders, No. 25-O, dated War Department, January 31, 1921, is as follows:

Captain Claudius H. M. Roberts, Ordnance Department, is announced as being on duty requiring him to participate regularly and frequently in aerial flights from October 1, 1920.

Paragraph 12691, Army Regulations, as amended by C. A. R. 107, July 22, 1920, is in part as follows:

Officers and enlisted men of the Army, other than personnel of the Air Service, whose duty requires them to take part in regular and frequent aerial flights may be detailed on such duty by The Adjutant General of the Army upon

the recommendation of the chief of any branch of the service. The order specifying such detail will include a description of the duties which necessitate such detail. In the Air Service such detail may be made by the chief of the Air Service or the commanding officer of the aviation station or organization to which such officer or enlisted man may be assigned or attached.

Capt. Roberts, under date of October 31, 1921, has certified as follows:

I certify that during the period for which flying pay is claimed on the attached voucher I was on duty requiring regular and frequent participation in aerial flights, and that during such period I participated in regular and frequent flights, at the rate of not less than ten flights per month, and as pilot if I hold such rating.

You state:

Capt. Roberts was detailed to flying duty for the purpose of conducting tests of aircraft bombs and components. The design, construction, and test of bombs and other items of aircraft armament is a function of the Ordnance Department, and responsibility for the proper performance of the duties involved rests with the Ordnance Department. In carrying out these functions it became necessary for Ordnance officers to engage in flying duty, and orders to a flying status were issued by The Adjutant General of the Army upon request of the Chief of Ordnance.

Decision is therefore requested whether the increased pay for flying duty claimed by Capt. Roberts can be paid under the appropriation" for aviation increase, to officers of the Air Service, $1,000,000," contained in the act of June 30, 1921, 42 Stat., 74; or whether the increase in this case may be paid under the appropriation "for pay of officers of the line and staff, $46,000,000," in the same act, page 73, the officer not being an officer of the Air Service.

Sections 2, 4, and 13-a of the act of June 4, 1920, 41 Stat., 759, 760, and 768, so far as here material are as follows:

SEC. 2. Composition of the Regular Army: The Regular Army of the United States shall consist of the Infantry, the Cavalry, the Field Artillery, the Coast Artillery Corps, the Air Service, the Corps of Engineers, the Signal Corps, which shall be designated as the combatant arms or the line of the Army; the General Staff Corps; The Adjutant General's Department; the Inspector General's Department; the Judge Advocate General's Department; the Quartermaster Corps; the Finance Department; the Medical Department; the Ordnance Department; the Chemical Warfare Service; the officers of the Bureau of Insular Affairs; the officers and enlisted men under the jurisdiction of the Militia Bureau; the chaplains; the professors and cadets of the United States Military Academy; the present military storekeeper; detached officers; detached enlisted men; unassigned recruits; the Indian Scouts; the officers and enlisted men of the retired list; and such other officers and enlisted men as are now or may hereafter be provided for.

SEC. 4. * * * Officers of all grades in the Infantry, Cavalry, Field Artillery, Coast Artillery Corps, Corps of Engineers, and Medical Department; officers above the grade of captain in the Signal Corps, Judge Advocate General's Department, Quartermaster Corps, Ordnance Department, and Chemical Warfare Service, all chaplains and professors, and the military storekeeper shall be permanently commissioned in their respective branches. All officers of the General Staff Corps, Inspector General's Department, Bureau of Insular Affairs, and Militia Bureau shall be obtained by detail from officers of corresponding grades in other branches. Other officers may be either detailed, or with their own consent be permanently commissioned, in the branches to which they are assigned for duty.

SEC. 13a. AIR SERVICE.-There is hereby created an Air Service. The Air Service shall consist of one Chief of the Air Service with the rank of major general, one assistant with the rank of brigadier general, one thousand five hundred and fourteen officers in grades from colonel to second lieutenant, inclusive,

and sixteen thousand enlisted men, including not to exceed two thousand five hundred flying cadets, such part of whom as the President may direct being formed into tactical units, organized as he may prescribe: Provided, That not to exceed 10 per centum of the officers in each grade below that of brigadier general who fail to qualify as aircraft pilots or as observers within one year after the date of detail or assignment shall be permitted to remain detailed or assigned to the Air Service. Flying units shall in all cases be commanded by flying officers. Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay while on duty requiring them to participate regularly and frequently in aerial flights; and hereafter no person shall receive additional pay for aviation duty except as prescribed in this section: Provided, That nothing in this act shall be construed as amending existing provisions of law relating to flying cadets.

The question arises whether all "officers

of the Army

shall receive an increase of 50 per cent of their pay while on duty requiring them to participate regularly and frequently in aerial flights," or whether this provision is applicable only to officers of the Army commissioned in the Air Service or serving therein by detail; and this question will be considered before attempting to answer the specific question you have presented as to the availability of an appropriation to pay such an increase to an officer other than an officer of the Air Service.

The act of March 2, 1913, 37 Stat., 705, provided for the payment of increased pay at the rate therein fixed "for such officers as are now or may be hereafter detailed by the Secretary of War on aviation duty," with a proviso that such increase" shall be given to such officers only as are actually flyers of heavier than air craft, and while so detailed." This provision was superseded by the act of July 18, 1914, 38 Stat., 514, "to increase the efficiency of the Aviation Service of the Army." This act provided for the detail to Aviation Service of a specified number of officers, created the ratings of junior military aviator and military aviator with advanced rank while holding those ratings; to maintain the number of officers fixed authorized the detail from the line of the Army as "aviation students" of unmarried lieutenants not over 30 years of age; and authorized a 25 per cent increase of pay of "aviation students" and percentage increases for junior military aviators and military aviators "while on duty that requires him to participate regularly and frequently in aerial flights." These provisions were superseded by the provisions of section 13 of the act of June 3, 1916, 39 Stat., 174, which fixed the number of officers in the Aviation Section, Signal Corps, provided for the rating of aviation officers, when qualified therefor, as junior military aviators and military aviators with increased rank, and authorized a 25 per cent increase in pay to "each aviation officer" and percentage increases to junior military aviators and military aviators "while on duty that requires him to participate regularly and frequently in aerial flights."

It is thus seen that in the permanent law for the Aviation Service. of the Signal Corps to and including the act of June 3, 1916, pro