PAY OF NATIONAL GUARD OFFICERS ATTENDING MILITARY SERVICE SCHOOLS. An officer of the National Guard detailed to attend a military service school under provisions of the act of June 3, 1916, 39 Stat., 207, is not entitled to pay authorized by the statute while on detached service away from the school for the purpose of playing basket-ball games per a schedule arranged by the basket-ball team of the school. Acting Comptroller General Ginn to Capt. J. R. McNiel, United States Army, February 27, 1922: I have your letter of February 8, 1922, transmitting for decision voucher stated in favor of Second Lieut. James R. Rundell, Infantry, Massachusetts National Guard, for pay as a second lieutenant December 27 to 31, 1921. You state: * Lieutenant Rundell is a member of the National Guard of the State of Massachusetts. On October 31, 1921, he reported under competent orders, to the commandant the Infantry School, Camp Benning, Ga., for a course of instructions. He was in regular attendance at the school from October 31 to December 26, 1921. On December 27, 1921, Lieutenant Rundell, by Special Orders, No. 304, headquarters the Infantry School, dated December 28, 1921, was placed on detached service for the purpose of playing basket-ball games per schedule arranged for the Infantry School basket-ball team, from December 27, 1921, to January 12, 1922, inclusive. Lieutenant Rundell was absent from the school on detached service during the period stated in his voucher. Section 99 of the act of June 3, 1916, 39 Stat., 207, provides for the attendance of selected officers and enlisted men of the National Guard for the pursuit of a regular course of study at any military service school of the United States except the United States Military Academy, and authorized pay therefor while the officer or enlisted man is "in actual attendance at such school, college, or practical course of instruction," with a proviso that the pay and allowances so authorized shall not exceed those of a captain. The certificate of the secretary of the Infantry School as to Lieut. Rundell's attendance during December, 1921, is as follows: This is to certify that 2nd Lieut. James R. Rundell, Mass. N. G., having reported at this station for duty under competent orders, has been in regular attendance at a course of instruction at the Infantry School, Camp Benning, Georgia, during the period December 1st-December 26th, 1921, both dates inclusive. It is further certified that during the period December 27th-December 31st, 1921, the said 2nd Lieut. James R. Rundell, Mass. N. G., has been on duty as a member of the Infantry School basket-ball team, absent from this station on a trip taken for the purpose of playing basket-ball games with the teams of other institutions; that physical training forms a part of the curriculum of the Infantry School, and that for participation in scheduled games as members of the Infantry School teams in major sports, including basket ball, student officers are allowed credits in the course in physical training. The order placing Lieut. Rundell on detached service is as follows: EXTRACT. 3. The following-named officers are placed on detached service for the purpose of playing basket-ball games, per schedule arranged by the Infantry School Basket Ball Team, from December 27th, 1921, to Jan. 12th, 1922, inclusive. It has been held, 27 Comp. Dec., 777, that officers or enlisted men of the National Guard attending service schools are not in actual attendance when absent on authorized sick or ordinary leave. And I am of opinion that an officer on detached service away from the school for the purpose of playing basket-ball games per a schedule arranged by the basket-ball team of the school is not during such period "in actual attendance at such school" within the meaning of the statute. You are not authorized to pay the voucher. TRAVELING EXPENSES-CONTRACTS FOR PERSONAL SERVICES. Under a contract for personal services providing for reimbursement of traveling expenses to and from place of employment, failure to perform the work for which employed precludes reimbursement of the traveling expenses. Decision by Acting Comptroller General Ginn, February 27, 1922: J. H. Arnold requested, January 20, 1922, review of settlement No. 806000, dated January 9, 1922, wherein the War Department division of this office disallowed his claim for $372.76 as reimbursement of expenses incurred in going from Tulsa, Okla., to Brunswick, Ga., November 7, 1918, and return, November 18, 1918. The constructing quartermaster at the Brunswick plant of the Butterworth-Judson Corporation, Brunswick, Ga., made a request on the Tulsa, Okla., Chamber of Commerce for information as to competent well drillers to sink water wells on the Government projects at Brunswick. In response to this request, the Tulsa Chamber of Commerce recommended claimant, and on November 2, 1918, the following telegram was sent to him at Tulsa by the constructing quartermaster. Request you and two competent well drillers leave immediately. Take receipts, and transportation refunded after thirty days. Rate one dollar per hour straight time, working twelve-hour shifts. Wells started sixteen inch diameter, to be one thousand feet deep. Only reliable, loyal men wanted. Wire when leaving. The claimant left Tulsa for Brunswick, taking with him two men, on November 7, 1918. The return journey began November 16, 1918, and the constructing quartermaster, in denying a claim for reimbursement of expenses aggregating $372.76 for the trip, February 3, 1919, stated in part that: You and these men came here for the specific purpose of drilling water wells. Upon arrival in Brunswick you spent several days ascertaining about the condition about the Picric Acid Plant, the nature of the equipment used in drilling these wells, and accommodations in Brunswick. Further, in conversation with me the day after your arrival, in answer to information which I gave you as to the specific accommodations which we had arranged for you at the Picric Acid Plant, these accommodations consisting of furnished houses in one of the new villages, you replied that neither you nor your men could possibly consider living at the plant, where you would be conveniently located for the work, but would have to take the necessary time to engage accommodations in Brunswick. You also, at that time, requested that an automobile be turned over for your use in traveling between the plant and Brunswick. This latter request I refused. In regard to the accommodations, that, of course, was entirely up to you where you wished to live, providing you could reach the work readily and not delay the work because of your residence. You told me later that one or both of these men had contracted influenza or colds, and, as you know, neither you nor either of your companions did any work whatsoever on these wells. Further, the claimant insisted that the well-drilling outfits were nothing "but two old machines and some junk tools on the job,” and refused to perform any drilling and returned November 16, 1918, to Tulsa. In the absence of a contract to the contrary, Government employees must make the journey to the place of their employment at their own expense. 11 Comp. Dec., 691. The telegram of November 2, 1918, prescribed as a condition precedent to reimbursement of traveling expenses an employment of 30 days, which must be interpreted to mean 30 days of services rendered. Claimant did not meet this condition, as he did not perform any work whatsoever, and, after assigning excuses for his failure to do so, returned to his home. Upon review of the matter no differences are found and the settlement is sustained. TERMINATION CONTRACTS. An agreement purporting to cancel purchase orders for delivery of goods to the Government, executed subsequent to the date final delivery should have been made under terms of the orders, is without consideration and therefore void. Decision by Acting Comptroller General Ginn, February 27, 1922: M. T. Legg, major, Finance Department, applied January 16, 1922, for review of the action of the War Department Division of this office in disallowing by settlement No. 69992, dated December 30, 1921, credit for voucher 2141, $78, and voucher 2142, $1,753.40, in his accounts as captain, Quartermaster Corps, for March, 1920, covering payments to the Eisemann Magneto Co., under cancellation agreement No. 468, dated September 15, 1919, terminating purchase order No. 3515, dated May 6, 1919, and cancellation agreement No. 467, dated September 30, 1919, terminating purchase order No. 3491, dated May 3, 1919, respectively. Purchase order No. 3515, in respect to deliveries, directed “ship two weeks after receipt of order"; and purchase order No. 3491 similarly provided for deliveries "to reach seaboard 30 days after receipt of order." Being dated at Washington, D. C., May 6 and May 3, respectively, these orders would in the ordinary course of mail have been received by the Eisemann Magneto Co. at Brooklyn, N. Y., on the following day, and shipments on these orders should therefore, in the absence of legal excuse for delay, have been made by May 21 and June 4, respectively; and if not delivered by those dates or within a reasonable time thereafter the United States would have been under no obligation to accept the material ordered in the absence of occurrences legally excusing the company for the delay or imposing upon the United States responsibility therefor. It does not appear, nor has any averment been made, either that the company tendered delivery or was legally excusable for failure to deliver within the time specified in the orders, or that the United States refused to accept delivery when tendered or was responsible for nondelivery. Consequently, it does not appear that the United States was under any obligation to the Eisemann Magneto Co. on September 15, 1919, and September 30, 1919, respectively, in respect to these purchase orders. The so-called cancellation agreements purporting to terminate such a supposed liability were without consideration and void, and the payments made in pursuance thereof were unauthorized. (See 25 Comp. Dec., 398. 404.) Upon a review of the matter no differences are found and the settlement is sustained. HONORABLE-DISCHARGE GRATUITY-EXTENSIONS OF ENLIST MENTS-NAVY. Extensions of enlistments in the Navy after July 11, 1919, entitle to honorable discharge gratuity only when such extensions singly or in the aggregate amount to two. three, or four years. An extension of enlistment in the Navy after July 11, 1919, for only one year entitles to no honorable-discharge gratuity, but if reextended for an additional year or years, the enlisted man on such reextension, or upon a third extension, will be entitled to the same amount of gratuity as though the original extension had been for the total of the extensions, less any gratuity which may have been paid on the prior extensions. When a reenlistment in the Navy follows within four months after an extension or extensions of a prior enlistment, the aggregate of the extensions standing alone, if for two or more years. constitutes the "last expiring enlistment" within the meaning of the act of July 12, 1921, 42 Stat., 139, providing for payment of honorable-discharge gratuity, but if the extension is for one year only, the prior original enlistment, exclusive of such extension, constitutes the "last expiring enlistment." Acting Comptroller General Ginn to the Secretary of the Navy, February 28, 1922: I have your request of December 28, 1921, for a decision of certain questions arising in the application of the decision of this office of December 6, 1921, to payments of honorable-discharge gratuity pay to men of Navy upon separate extensions of two or three years of other than war enlistments, the initial extension of which was entered into on or after July 11, 1919. The decision held that a proportionate gratuity was payable upon such extensions, subject to the limitations of the act of July 12, 1921, treating a two or three year extension as corresponding to a two or three year reenlistment for the purpose of proportionate benefits. Your questions are answered in the order presented. A. Is honorable-discharge gratuity payable where the aggregate of extensions is equivalent to an enlistment period of two or three years, as distinguished from a two or three year extension standing alone? Examples. 1. Enlisted July 15, 1915-4 years-to expire July 14, 1919. Extended 1 year from July 15, 1919. 66 "1920. What honorable discharge gratuity is payable on second extension? 2. Enlisted July 15, 1915-4 years-to expire July 15, 1919. Extended 2 years from July 15, 1919. 1 year What honorable discharge gratuity is payable on second extension? 3. Enlisted July 15, 1915-4 years-to expire July 15, 1919. Extended 1 year from July 15, 1919. 66 64 1 66 66 66 66 66 "1920. What honorable discharge gratuity is payable on last extension? Your general question is answered in the affirmative. As to the examples, as follows: 1. 2 months' gratuity becomes payable on second extension, the two 1-year extensions being treated as the equivalent of a two-year extension for purposes of the gratuity. 2. 3 months' gratuity is payable on second extension, or, in event a two months' gratuity was paid on first extension, an additional one month is payable. 3. 3 months' gratuity is payable on last extension if 2 months' gratuity was not paid on second extension; if it was paid only the additional one month's gratuity is payable. B. Are the provisions of act of July 12, 1921, effective on each individual extension entered into on or after July 12, 1921, or on aggregate of extensions entered into on or after that date? Examples. 4. Enlisted July 15, 1919-2 years-to expire July 14, 1921. Extended 1 year from July 15, 1921. Is gratuity of two or three months payable on second extension? 5. Enlisted July 15, 1919-2 years-to expire July 14, 1921. Extended 1 year from July 15, 1921. "1922. If gratuity of 2 months is payable on second extension, would an additional 1 month gratuity be payable on third extension? Section 2 of the act of July 12, 1921, 42 Stat., 139, provides: That hereafter no enlisted man in the Navy shall be paid on reenlistment an honorable discharge gratuity, or any proportionate part thereof, in excess of any amount equal to one month's pay for each year of service in the last expiring enlistment of such enlisted man. This act operates on each individual extension of two or three years entered into after its date, or on each aggregate of extensions of two or three years, as per your examples, as follows: 4. Two months' gratuity only is payable, the last expiring enlistment for the purpose being the original 2-year term. 5. No. On third individual extension the extension becomes an aggregate 3year extension for gratuity purposes, and as such the payment of the gratuity for the third or additional month would be in excess of the 2 years in last expiring enlistment. C. Shall the entire period covered by an enlistment which has been extended count as the last expiring period of service in computing the number of years in previous enlistment for the determination of the gratuity authorized for reenlistment on or after July 12, 1921? Examples. 6. Enlisted July 15, 1919-2 years-to expire July 14, 1921. Extended 1 year from July 15, 1921. Honorably discharged July 14, 1922, after service of 3 years. If reenlisted within 4 months for 3 years is he entitled to 3 months' gratuity? 7. Enlisted July 15, 1919-2 years-to expire July 15, 1921. Extended 2 years from July 15, 1921. Honorably discharged July 14, 1923, after service of 4 years. Is he entitled to 4 months' gratuity if reenlisted for 4 years? |