not absence from a designated post of duty within the contemplation of travel expense laws or regulations.

The payment in this case having been under authority of existing decisions of the Comptroller of the Treasury, is allowed.

The action of the auditor is reversed and a difference of $36 is certified for allowance in the disbursing officer's account.

TRANSPORTATION OF DEPENDENTS OF CONSULAR OFFICERS. Where the family of a consular officer returns to the United States for personal

reasons the consular regulations do not authorize payment of their transportation expenses from the United States to a new duty station to which

the consular officer had been transferred during absence of his family. Comptroller General McCarl to the Secretary of State, February 14, 1922:

I have your letter of February 2, 1922, received in this office February 10, 1922, requesting decision as to payment of transportation expenses of the family of a consul who has been transferred to Europe from his post in India. The material facts stated in your submission are as follows:

The consul had been stationed in India for a considerable period. His wife originally accompanied him to that post, but on account of conditions there, including illness of a young son brought on by climatic conditions, was unable to remain there and accordingly returned to the United States at her own expense to reside temporarily. She had not found it practicable up to the time of the consul's transfer to another post to return to his post in India.

Paragraph 48 of the travel regulations of diplomatic and consular officers provides that an officer who is given designation to a new post while in the United States or en route thereto or therefrom, on leave of absence, shall be entitled to reimbursement of transportation expenses under conditions and limitations set forth in the regulations, including expenses of his family or such portion as may be with him or in the United States, and transportation of his personal effects.

This regulation makes provision for those cases only where the consul himself is on leave of absence and away from his post of duty. It does not provide for payment by the Government of the expense of returning the family from the United States to the consul's post, old or new, they having left the consul on duty at the old post, no leave of absence having been granted to him, and he not having traveled with them or been followed by them either to or from the United States. The absence of the consul's family in the United States was for purely personal reasons and put no obligation on the United States. Their return to India would have been at their own expense, and it does not appear that the transfer of the consul to Europe increased that expense.

The appropriation for transportation of consular officers in going to and returning from their posts, act of March 2, 1921, 41 Stat., 1208, provides for payment of such expenses of officers and their families “under such regulations as the Secretary of State may prescribe.” The regulations which the Secretary has made can not be construed as covering the expenses now in question, nor would any regulation be authorized not in conformity with law. There is, therefore, no authority for the payment in question under this appropriation.



In view of joint resolution of February 13, 1922, 42 Stat., 364, payment of

tuition is authorized for Indian children enrolled and educated in Montana

State public schools from funds appropriated for that purpose. Comptroller General McCarl to the Secretary of the Interior, February 15, . 1922: · I have your letter filed on November 10, 1921, requesting review of the action of the Interior Department Division, this office, in disallowing by settlement No. 67072, of October 27, 1921, claim of the directors of school district No. 9, Browning, Mont., in amount of $14,471.10, covering tuition of Indian pupils attending public school, district No. 9, during the fiscal year 1921, the disallowance being by reason of section 10 of the act of February 14, 1920, 41 Stat., 421, and section 10 of the act of March 3, 1921, 41 Stat., 1237, which sections, in consideration of the grants therein made, contained provisos which were construed to prohibit the payment for tuition of Indian children attending such schools.

By joint resolution approved February 13, 1922, 42 Stat., 364, it was provided :

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That nothing contained in the provisions of section 10 of the Act of February 14, 1920 (Forty-first Statutes at Large, page 421), and of section 10 of the Act of March 3, 1921 (Forty-first Statutes at Large, page 1237), shall be construed to preclude the payment of tuition for Indian children enrolled and educated in Montana State public schools, pursuant to annual or existing appropriations of public money for payment of such tuition,

In view of the provisions of said enactment, upon a review of the settlement, it is reversed and the amount of $14,471.10 certified due claimant.


REFUNDED. On all claims allowed on and after November 23, 1921, for refund of or credit

for internal revenue taxes, interest may be paid on amounts which represent taxes erroneously paid or collected prior to that date and for periods accruing prior to that date, subject to the specific provisions of the act of November 23, 1921, 42 Stat., 316, with respect to the date from which in

terest shall be computed. Comptroller General McCarl to the Secretary of the Treasury, February 15,


You have submitted to this office for decision certain questions presented by the Commissioner of Internal Revenue in his letter to you, dated February 6, 1922, relative to the payment of interest under authority of the provisions of section 1324 (a) of the act of November 23, 1921, 42 Stat., 316.

The provisions in question read:

That upon the allowance of a claim for the refund of or credit for internal revenue taxes paid, interest shall be allowed and paid upon the total amount of such refund or credit at the rate of one-half of 1 per centum per month to the date of such allowance, as follows: (1) if such amount was paid under a specific protest setting forth in detail the basis of and reasons for such protest, from the time when such tax was paid, or (2) if such amount was not paid under protest but pursuant to an additional assessment, from the time such additional assessment was paid, or (3) if no protest was made and the tax was not paid pursuant to an additional assessment, from six months after the date of filing of such claim for refund or credit. The term “additional assessment” as used in this section means a further assessment for a tax of the same character previously paid in part.

The questions presented are as follows:

(1) If a “specific protest " was filed at the time of payment of tax which was prior to the enactment of the revenue act of 1921 and the refund of such payment is allowed subsequent to the enactment, will interest accrue from the date of payment of the tax to the date of allowance of the refund?

(2) If an additional assessment was paid prior to the enactment of this law and the refund of such additional assessment was allowed subsequent to the enactment, will interest accrue from the payment of such additional assessment to the date of allowance of the refund?

(3) On the claims filed in the bureau and not adjusted with which no protest was filed and which do not represent additional assessments, will interest accrue after 6 months from the date of filing such claim until the date of allowance?

In other words, is the revenue act of 1921 retroactive in the application of section 1324?

The law referred to is not retroactive in the sense of authorizing payment of interest on claims theretofore allowed, but I find nothing in its provisions to indicate an intent to limit its application to refunds on taxes thereafter to be paid, or to periods thereafter to accrue. The provision is remedial and therefore should not be narrowed by construction. I think the language of the provision clearly justifies the conclusion that it was intended to authorize the payment of interest in the case of all claims thereafter allowed subject to the specific provisions with reference to the date from which interest should be computed in the three different cases, to wit: Date of payment of tax, date of payment of additional assessment, and date of expiration of six months after filing of claim, as the case may be. Therefore, each of the three specific questions presented is answered in the affirmative with the understanding, of course, that they relate to claims allowed on or after November 23, 1921, the date of the enactment.


An officer of the Air Service of the Army continuously assigned to duty requir

ing him to participate regularly and frequently in aerial flights is entitled to the aviation increase of pay during the time necessarily spent in traveling otherwise than by air on a change of station, if during the calendar month in which travel is performed, or in the succeeding calendar month, he has participated in the number of flights required by existing regula

tions. Comptroller General McCarl to the Secretary of War, February 16, 1922: .

I received January 19, 1922, by indorsement of The Adjutant General by your order, request for decision as to the right of Air Service officers to increased pay for aviation duty while in transit between stations, where the officers concerned, immediately prior to departure from the old station, were on duty requiring them to participate regularly and frequently in aerial flights, and upon arrival at the new station are immediately placed on such duty at that station.

The specific case of 1st Lieut. Oliver P. Gothlin, jr., A. S., is presented.

Paragraph 3 of Special Orders No. 217, dated headquarters, Langley Field, Virginia, September 26, 1921, is as follows:

In compliance with letter of instructions from The Adjutant General of the Army, W. D., Sept. 24, 1921 (A.G. 045 92 (9 22 21), the following-named officers of the Air Service, now at this station, will proceed on or before Sept. 30, 1921, to the stations designated after their respective names, reporting upon arrival thereat to the commanding officer for duty.

1st Lt. Oliver P. Gothlin, jr., Godman Field, Camp Knox, Ky.

Paragraph 5 of Special Orders No. 42, dated headquarters, Godman Field, Camp Knox, Ky., October 10, 1921, is as follows:

The following-named officer having reported at this station, is announced as being on duty requiring regular and frequent participation in aerial flights; from the date set opposite his name:

1st Lieut. Oliver P. Gothlin, jr., A. S., Oct. 10, 1921. The officer certifies as follows:

I certify that I left Langley Field, Virginia, October 1, 1921, and arrived at Godman Field, Camp Knox, Ky., on the ninth of the same month, per Special Orders #217, paragraph 3, headquarters, Langley Field, Virginia ; that I was placed on flying status at Godman Field, Camp Knox, Ky., per Special Orders #42, paragraph 5, Godman Field, Camp Knox, Kentucky, dated October 10, 1921; that I flew a total of five hours and twenty-four minutes during October, 1921, as shown by the records of the operations officer, Godman Field, Camp Knox, Kentucky; * * that during the month of November, 1921, I flew a total of four hours and sixteen minutes, as shown by the records of the operations officer, Godman Field, Camp Knox, Kentucky; and * * * that the finance officer refused to pay flying pay from the first to the tenth of October, 1921, which amounted to twenty-five dollars and eighteen cents ($25.18).

Twenty-five flights are reported to have been performed by the officer during the period October 10 to November 23, 1921.

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officerheir pay whilets; and herbest in this

Section 13a of the act of June 4, 1920, 41 Stat., 763, so far as here material, provides :

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. *

Orders No. 6, Office of the Director of Air Service, dated February 24, 1920, presumably having your implied or specific approval, contain the following provisions :

4. “ Flying status ” is defined as that status peculiar to officers who have been assigned to duty “requiring them to participate in regular and frequent aerial flights" as contemplated in paragraphs 12691, A. R., 1913.

5. (a) For flights in heavier-than-air craft, an officer is construed to have actually participated in regular and frequent flights during any period in which he has participated in aerial flights at the rate of 10 flights per month. Officers holding rating of airplane pilot, junior military aviator, or military aviator, will be required to pilot the airplane during these specified fights. * * *

(b) In order that a proper limit may be established in connection with regularity of flights, it is construed that an officer may properly certify to his par. ticipation in regular and frequent aerial flights, if, in two succeeding months, he participates in twenty flights. This construction will be made only where inclemency of weather, or other unavoidable cause, prevents an officer from making a total of ten flights in one month. Whenever an officer is prevented from flying for a portion of a month, due to leave of absence, or other cause, which, by regulation, has been held to technically remove an officer from flying status, he is only entitled to flying pay for the balance of the month, after completion of a sufficient number of flights, at the rate of ten flights per month, to cover said period.

6. Pursuant to the policy announced in subparagraph (a) of Paragraph 5 above, commanding officers will place flying officers on flying status immediately upon their reporting for duty. (An officer on flying status retains such status while changing station if he is placed on flying status at his new station. Decisions of Judge Advocate General, December, 1918.)

The distance from Langley Field, Va., to Camp Knox, Ky., via Louisville, is 760 miles. The officer certifies that he was nine days in transit, but his status during the period in excess of the normal travel time is not shown; and upon informal inquiry of The Adjutant General's office it was stated that the records do not show facts other than that the officer arrived at Godman Field October 10, 1921.

The normal travel time between Langley Field and Camp Knox, Ky., is much less than nine days, and if on leave during any portion of the period he is not entitled to the increased pay during that period. 22 Comp. Dec., 141. The facts should be stated and if they show that the time involved was not for any personal reasons, the flight status is maintained.

It is noted that while paragraph 6 of Orders No. 6 direct that immediately upon reporting for duty flying officers shall be placed in flying status, the parenthetical portion of the paragraph determines that an officer retains flying status while traveling on change of station. This is necessarily dependent on that no interruption to the direct travel has occurred so as to affect the flying status.

I am of opinion that an officer continuously assigned to duty requiring him to participate regularly and frequently in aeria]

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