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Referring to a statement by the appellant in a letter addressed to the Quartermaster General March 15, 1921, that it was at the earnest request of those in charge of the various departments the machines were not removed, Maj. H. L. Burns, Q. M. R. C., states:

1. I do not recall at this time, any one connected with the depot making the request referred to in the cover letter.

2. I do recall however that prior to the installation of these machines that it was thoroughly understood between Mr. Blotzer, Major Winterberger and myself that the United States was in no way, directly or indirectly, to be responsible or held for any liability in connection with the installation and use of the Line-ATime machines. Mr. Blotzer was so persistent in his efforts to install these machines that the matter was referred to the Depot Quartermaster for an expression of his opinion. The point being that it was doubtful if the United States could receive services from this company gratis. It was finally decided as I recall at this time to authorize Mr. Blotzer to make the installation. On several occasions in conference with Mr. Blotzer the writer emphasized the responsibilities of the company in installing their equipment. The only promise the writer made Mr. Blotzer was that a requisition would be forwarded to the Quartermaster General calling for the number of machines found to be neces

sary.

No evidence is shown that the United States is legally liable for the damages claimed. The facts appearing show that the placement of the machines was a special bailment, the agreement between the parties being that under no circumstances would the Government be liable for loss or damages to the machines during the continuance of the bailment.

No charge of negligence is made, but it may be added that in the case of Hart v. United States, 95 U. S., 316, it was held:

A government may be a loser by the negligence of its officers, but it never becomes bound to others for the consequences of such neglect unless it be by express agreement to that effect.

See 19 Comp. Dec., 131; 18 id., 252, 316; 21 id., 153; Clark v. United States, 95 U. S., 539.

The disallowance by the auditor is affirmed.

TRANSPORTATION OF BOOKS AND PAPERS OF NAVAL OFFICERS.

Officers of the Navy traveling on an actual expense basis outside the continental limits of the United States are entitled to reimbursement for the necessary cost of transportation of a reasonable allowance of excess baggage consisting of personal property in addition to that which they may carry in their hands. Books and retained papers of an officer of the Navy traveling on an actual expense basis outside the continental limits of the United States should be classed as personal property and transported at Government expense, if within the limitation as to weight and other requirements of applicable Navy Regulations, and the claim for reimbursement of transportation has been approved by the Secretary of the Navy.

Decision by Comptroller General McCarl, July 26, 1921:

Lieut. S. W. Armstrong (S. C.). United States Navy, applied, in letter filed in the office of the Comptroller of the Treasury, June 15,

1921, for revision of the action of the Auditor for the Navy Department in disallowing by settlement No. 192213, dated April 6, 1921, his claim for reimbursement of $18.32, covering cost of transportation of excess baggage under orders dated March 1, 1921.

Under orders, appellant was detached March 1, 1921, from duty with United States Naval and Marine Corps Graves Registration Service, Paris, France, and proceeded to Gravesend, England, where, on March 3, 1921, he took passage on the U. S. S. New Hampshire for the United States.

It appears that the items of excess baggage consisted of 60 per cent "retained files" and 40 per cent "personal equipment." The Comptroller of the Treasury, in passing upon the question of reimbursement for excess baggage on "personal effects" of officers traveling on an actual expense basis, held that it would be an unreasonable construction of the law and the Navy regulations to hold that an officer on returning from a foreign station is not entitled to reimbursement for the necessary cost of transportation of a reasonable allowance of baggage in addition to that which he may carry in his hands. This holding, in which I concur, covers the 40 per cent portion of the claim.

The Comptroller of the Treasury has, however, held that an officer of the Navy so traveling is not entitled to reimbursement for expenses of transportation of books and retained papers. 25 Comp. Dec., 391.

I differ with the holding of the Comptroller of the Treasury in this matter, and conclude that under article 4489 (3), Navy Regulations, 1913, books and retained papers should be classed as personal property, and when a claim for reimbursement for cost of transportation thereof comes within article 4495 (15), Navy Regulations, 1913, and is approved by the Secretary of the Navy as prescribed in article 4490 (3), Navy Regulations, 1913, reimbursement there for should be made. This rule will hereafter be followed.

Accordingly, the action of the auditor is reversed.

PAY FOR EXERCISING HIGHER COMMAND-ARMY OFFICERS. A lieutenant colonel of the Army temporarily detailed by order of the commanding general to a regiment other than his own for the purpose of commanding it, and who is the senior officer on duty therewith, automatically exercises the higher command of colonel of the regiment to which detailed by reason of seniority, and any order purporting to place him in command of that regiment is unnecessary and may not be made the basis of a claim for additional pay for exercising higher command under the act of April 26, 1898, 30 Stat., 365.

Decision by Comptroller General McCarl, July 27, 1921:

Charles J. Ferris, major, U. S. A., retired, requested July 12, 1921, reconsideration of the action of the General Accounting Office, War Department Division, in disallowing by settlement No. 21331, dated July 7, 1921, his claim for the difference in pay between the grades of colonel and lieutenant colonel from August 27 to September 23, 1917, and from September 25, 1917, to January 4, 1918, while in command of the 315th Field Artillery as a lieutenant colonel.

The record discloses that Maj. Ferris, then a lieutenant colonel in the Emergency Forces, was directed by paragraph 73, Special Orders, No. 195, War Department, dated August 22, 1917, to proceed to Camp Lee, Va., and report upon arrival to the Commanding General, 80th Division, for assignment to a regiment of light artillery. Upon reporting he was assigned to the 314th Field Artillery. On August 27, five days after reporting for duty, he was placed in command of the 315th Field Artillery by verbal orders of the Commanding General, 80th Division, there being no colonel or lieutenant colonel on duty with the 315th Field Artillery at that time. In September, 1917, Lieut. Col. Russell P. Reeder was assigned to the 315th Field Artillery, and reported for duty with the regiment on September 24. The next day Reeder was placed on detached duty for a three months' course of instruction, and Ferris was again directed by order of the division commander to take command and was continued in command until January 7, 1918, when he was relieved from the 315th Field Artillery, and ordered to report to the 314th Field Artillery for duty. During the whole of this period the regiment was in training for overseas service at Camp Lee, Va.

Inasmuch as the appropriate grade for the command of a regiment is that of colonel, and as he remained permanently assigned to the Three hundred and fourteenth Field Artillery when temporarily detailed to the command of the Three hundred and fifteenth Field Artillery, claimant asserts that he is entitled to the difference in pay between the grades of colonel and lieutenant colonel for the period August 27 to September 23 and from September 25, 1917, to January 4, 1918.

It is unnecessary at this time to decide whether the claimant exercised the higher command continuously for a period of three months as required by the act of May 26, 1900, 31 Stat., 211, and paragraph 1267, Army Regulations, 1913-1917, before the right to the pay of the higher command accrues when all of the other conditions precedent have been met, or whether he was operating against an enemy within the meaning of the controlling statute, the act of April 26,

1898, 30 Stat., 365. It has been held, 26 Comp. Dec., 1074, that an officer is not entitled to the pay of the higher command when permanently transferred to an organization for the purpose of commanding it and where he would have commanded by virtue of seniority and in accordance with paragraph 267, Army Regulations, had no orders to take command been issued. See also United States v. Mitchell, 205 U. S., 161; Humphreys v. United States, 38 Ct. Cls., 689; 10 Comp. Dec., 389.

The same reasons which operate as an inhibition to the allowance of the pay of the higher grade to an officer for a command exercised by reason of seniority when permanently transferred to an organization and is the senior officer therewith, also operates as an inhibition when an officer is temporarily detailed to an organization for the purpose of commanding and is the senior officer on duty therewith. In either event the officer is "serving with troops" and orders to command, as distinguished from orders of detail, are equally as superfluous and nonstatutory in the one case as in the other. No orders to command when unnecessary can make a case within the statute.

For the reasons given a rehearing is denied.

COMMUTATION OF RATIONS-ENLISTED MEN OF THE MARINE CORPS ON FURLOUGH.

Allowances for rations of enlisted men of the Marine Corps having been assimilated to those of the Navy by the act of July 11, 1919, 41 Stat., 154, instead of the Army as theretofore, commutation of rations during period of furlough on and after July 11, 1919, is not authorized for enlisted men of the Marine Corps, for the reason that enlisted men of the Navy are entitled to commutation of rations under the act of January 30, 1885, 23 Stat., 291, only when attached to a vessel or station and during duty.

Decision by Comptroller General McCarl, July 30, 1921:

The Chief of the Navy Department Division has transmitted as a request for instructions a decision of the law board assigned to the division, upon the right of Paul A. Juneman, corporal, United States Marine Corps, to furlough rations for the period April 13 to June 2, 1920, involving the construction of certain statutes hereinafter mentioned.

Juneman, while serving at the Marine Barracks, Santo Domingo City, D. R., was given a 10-day furlough, beginning from the date of arrival in the United States, which was extended 20 days, or to June 2, 1920. He reported at Marine Barracks, Charleston, S. C., on June 1, 1920, for transportation to Santo Domingo City, D. R.

The question is whether while on such furlough Juneman is entitled to furlough rations.

Under the acts of August 29, 1916, 39 Stat., 613, and March 4, 1917, 39 Stat., 1189, the ration allowance of enlisted men of the Marine Corps on shore duty was assimilated to the ration allowance of enlisted men of the Army. By reason of that assimilation an enlisted man of the Marine Corps was entitled to a commuted ration while on furlough.

In the appropriation "Provisions, Marine Corps," act of July 11, 1919, 41 Stat., 154, there is the following proviso:

That hereafter, except when detached by the President of the United States for duty with the Army, enlisted men of the Marine Corps shall be entitled to the same allowance for rations as are enlisted men of the Navy, under such rules and regulations as may be prescribed by the Secretary of the Navy.

That act supersedes the 1917 act, and under its provisions enlisted men of the Marine Corps, except when serving with the Army, are entitled only to such commutation of rations as are enlisted men of the Navy in like circumstances.

The only authority of law for a commuted allowance to enlisted men of the Navy is found in the act of January 30, 1885, 23 Stat., 291, which provides that:

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All enlisted men and boys in the Navy, attached to any United States vessel or station and doing duty thereon, * shall be allowed a ration or commutation thereof in money, under such limitations and regulations as the Secretary of the Navy may prescribe.

That provision does not authorize a commuted ration allowance to enlisted men of the Navy when not "doing duty," that is, when on leave or furlough. Accordingly, the Secretary of the Navy has instructed supply officers in all cases when men are absent from their ship or station with or without leave to stop commutation of rations during such absence. See Article 4552, Naval Instructions.

Therefore Corpl. Juneman is not entitled to furlough ration during any period of the furlough in question.

The decision submitted is to this effect and is approved.

Instead of submitting the matter as a request for instruction, I think the better form, where it is necessary to submit a matter to me for approval on a legal question, should be a memorandum of decision prepared by the law clerk or law board assigned to the auditing division and transmitted to me by the chief of the division. A simple statement of the question which has arisen in connection with the facts and the conclusions of the law clerk or law board thereon, showing also the auditing section wherein the matter is pending, would appear sufficient.

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