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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 exer. cised 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 command. ing 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 as
similated 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 ratton 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:
* * * 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.
COMMUTATION OF QUARTERS FOR DEPENDENTS-ARMY
The fact that public quarters assigned to an Army officer at an Army supply
base are 2 miles outside the corporate limits of the city in which his dependents reside can not be held to have rendered quarters in kind for his dependents unavailable, a condition precedent to the payment of commutation in lieu thereof under the act of April 16, 1918. 40 Stat.. 530, but the refusal of the officer or his dependents to occupy the public quarters must be taken to have been for personal reasons only, thereby precluding
payment of commutation. Comptroller General McCarl to Maj. Eugene Coffin, United States Army, August 1, 1921:
By reference, I have your letter dated July 18, 1921, with accompanying papers wherein decision is requested as to whether you are authorized to make payment to Austin M. Pardee, major, Twelfth Infantry, for commutation of quarters, heat, and light for his wife and dependent children during the period December 15, 1920, to January 22, 1921, and for which a voucher has been presented to you.
It appears that the Army supply base is not within the corporate limits of the city of Norfolk; that troops on duty thereat are quartered in cantonment buildings situated approximately 2 miles from the corporate limits; that quarters in kind on the cantonment grounds, and which another officer has recently vacated, were available for Maj. Pardee's dependents, but he alleged that the quarters were unsuitable and maintained an abode for them within the corporate limits of Norfolk. It further appears that The Adjutant General, December 27, 1920, stated that duty at the Norfolk Army supply base was not considered as duty in the field and, since quarters in kind were available thereat, Maj. Pardee was not entitled to commutation in lieu thereof. Subsequently, June 14, 1921, The Adjutant General approved an opinion rendered by the Judge Advocate General to the effect that duty at Norfolk Army supply base was duty in the field and if Government quarters were not available for Maj. Pardee's dependents at the place where he maintained an abode for them, that is, within the corporate limits of the city of Norfolk, commutation in lieu thereof should be paid.
Whether a particular duty is duty in the field within the meaning of the act of April 16, 1918, 40 Stat., 530, is a military question for the Secretary of War to decide. 25 Comp. Dec., 340. It is immaterial so far as the right of Maj. Pardee to commutation of quarters, heat, and light for his dependents is concerned, whether he was on duty at a permanent post or on duty in the field during the period in question and when he maintained a place of abode for them at, or in the vicinity of, his place of duty. In either event quarters in kind were available and when they are rejected for personal reasons, commutation in lieu thereof does not accrue. 2A Comp. Dec., 338. The fact that the corporate limits of the city of Norfolk and a distance of 2 miles intervened between the Government quarters and the house in which the dependents resided, can not be held to have rendered quarters in kind unavailable, a' condition precedent to the payment of commutation in lieu thereof.
Payment of the voucher is unauthorized.
SUSPENSION OF EMPLOYEES.
Ratification of the action of a subordinate officer of the Government in suspend
ing an employee without pay relates back to the time of suspension, pro
vided the superior officer has authority to perform the act ratified. Where a field employee of the Government has been suspended without pay
by the field officer in charge, the suspension has been ratified by the appointing power pending investigation of charges, and the charges are sustained and culminate in dismissal, the employee is not entitled to pay from
the date of original suspension by the field officer. Comptroller General McCarl to the Secretary of the Treasury, August 2,
I have your letter of the 19th instant requesting a decision as follows:
1. Whether the department can ratify or approve the action of an officer in the field, on a date subsequent to that action, in suspending from the service, an employee holding a classified position, to which appointed by the Secretary of the Treasury, authority to make such suspension not having been delegated by the Secretary to the field officer?
2. Whether such employee is entitled to salary withheld from the date of his suspension by the field officer to the date the Secretary approved such action or to the date of receipt by the suspended employee of notice of suspension by the head of the department?
The power of the head of a department to suspend employees without pay is too well settled to require more than a mere citation of authority. United States v. Murray, 100 U. S., 536; Works Lelman v. United States, 37 Ct. Cls., 128; Wertz v. United States, 40 Ct. Cls., 357; Stillings v. United States, 41 Ct. Cls., 61; 11 Comp. Dec., 560; 20 id., 505; 21 id., 478.
A subordinate has no power to suspend without pay an employee whose appointment is not vested in him unless his action is approved or ratified by competent authority. 12 Comp. Dec., 653-657. Where a subordinate officer suspends an employee without pay, without authority from the superior who made the appointment, and reports his action to the superior and the superior then ratifies the suspension, the ratification operates on the suspension so ratified in the same way as though the authority of the subordinate to make the suspension originally existed. Of course, the ratification can only be made when the officer ratifying has power to perform the act ratified. Vol.