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of July 12, 1921, 42 Stat., 139, which you cite makes the amount of gratuity dependent upon the length of the last expiring enlistment as well as upon the length of the reenlistment period by which alone the amount of the gratuity was formerly measured. The proposed regulation merely adapts the practice of the Coast Guard to this change of law. It is in conformity with the law and the Comptroller's decisions, and I see no objection to its promulgation.

TRAVEL ALLOWANCE ON DISCHARGE-NAVY, ENLISTED MEN.

Under the act of July 11, 1919, 41 Stat., 139, authorizing payment of travel

allowance on discharge to enlisted men of the Navy who served in the war with the German Government and are discharged subsequent to November 11, 1918, before expiration of their enlistments, service “in the war with the German Government” means service under an enlistment which was entered into on or prior to November 11, 1918, the signing of the armistice; hence, enlisted men of the Navy discharged for their own convenience before expiration of enlistment entered into after November 11, 1918, are not entitled to travel allowance on discharge.

Decision by Comptroller General McCarl, August 8, 1921:

Lewis Grant Brower, former gunner's mate, second class, United States Navy, applied July 14, 1921, for revision of the action of the Auditor for the Navy Department in disallowing by settlement No. 235261, dated May 18, 1921, his claim for travel allowance at 5 cents per mile from Pensacola, Fla., to Seattle, Wash., upon his discharge from the Navy February 4, 1921.

Appellant first enlisted in the Navy for three years August 15, 1919, and was discharged for his own convenience, by special order of the Secretary of the Navy, with character good. The auditor disallowed the claims because discharge was for own convenience and before the equivalent of an expiration of enlistment.

The appeal is based upon a ruling of the Navy Department as promulgated in a Bureau of Navigation circular letter dated May 6, 1921, wherein the department in construing the acts of February 28, 1919, 40 Stat., 1203, and July 11, 1919, 41 Stat., 139, announced:

The department therefore decides that all men who have been discharged from the Navy prior to expiration of enlistment and all men serving in the Navy on March 3, 1921, who may hereafter be discharger prior to expiration of enlistment and who receive a discharge which is considered a discharge under honorable conditions are entitled to travel allowance at the time of discharge at the rate of 5 cents per mile from place of discharge to bona fide home, residence, or place of muster into the service at the man's option.

Instruction was also given therein to “pay men discharged under honorable conditions who served in the Navy between April 6, 1917, and March 3, 1921, five cents per mile travel allowance * * *."

The act of February 28, 1919, 40 Stat., 1203, provided as follows: That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may bereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option: Provided, That for sea travel on discharge, transportation, and subsistence only shall be furnished to enlisted men * * *.

The act of July 11, 1919, 41 Stat., 139, to which the circular relates provided in part as follows:

All enlisted men of the Navy and Coast Guard who have served in the war with the German Government and who may hereafter be discharged or who have been discharged from the service since November 11, 1918, and before the expiration of their full enlistment shall receive, under such rules and regulations as the Secretary of the Navy may prescribe, an honorable discharge, and shall receive 5 cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service at his option :

Material differences between the act of February 28, 1919, and July 11, 1919, may be briefly stated to be that the latter provides for the travel allowance to enlisted men honorably discharged before expiration of enlistment who served in the war with the German Gov. ernment, the discharge before enlistment and service in the war being matters which do not expressly appear in the act of Febru. ary 28, 1919. The specific provision for the men discharged before expiration of enlistment is an extension of the travel allowance to that class, while the stipulation requiring service to have been in the war with the German Government is apparently a restriction. Whether the enactment of July 11, 1919, as a whole should be taken in modification of the act of February 28, 1919, it is unnecessary to say, but it is apparently an extension of a former enactment to a class that did not appear to be within its provisions.

The terms of the circular issued by the Navy Department broadly authorize the payment of the travel allowances to men discharged under honorable conditions whose service was between April 6, 1917. and March 3, 1921, being the beginning date and the ending date of the war as declared by joint resolution of Congress. In so far as claims arising under the act of July 11, 1919, are concerned—that is, claims because of the discharge before expiration of enlistment-the act in naming the date November 11, 1918, makes its own definition of when service may be considered as “in the war with the German Government” and that service must have been under an enlistment which was entered into on or prior to November 11, 1918, and the discharge must be before expiration of the enlistment. In the present case the claimant enlisted subsequent to November 11. 1918, was discharged before expiration of the enlistment, and his discharge was for his own convenience. He did not serve in the war with the German Government within the meaning of the act of July 11, 1919. and he is not entitled to the travel allowance provided therein.

The action of the auditor is affirmed.

TRAVEL ALLOWANCE ON DISCHARGE-NAVY, ENLISTED MEN.

An enlisted man discharged after November 11, 1918, from the Navy before ex

piration of his enlistment, on medical survey because of disability incurred in line of duty, is not limited by the appropriation in the act of July 11, 1919, 41 Stat., 134, to transportation to his home, with subsistence and transfers en route, but is entitled to travel allowance, under the act of February 28, 1919, 40 Stat., 1203, from place of discharge to his bona fide home, or residence, or original muster into the service, less the value of the

transportation, if any, furnished him by the Government. Decision by Comptroller General McCarl, August 9, 1921:

The Chief of the Navy Department Division has transmitted as a request for instruction a memorandum decision of the law board assigned to the division upon the right of Paul Adam Schlefsky, former seamen, second class, United States Navy, to travel allowance on discharge, the law board expressing the opinionthat enlisted men of the Navy, honorably discharged by reason of medical survey, since November 11, 1918, are not entitled to five cents per mile provided by the act of February 28, 1919, but are only entitled to transportation, subsistence, and transfers en route to their home as provided by the acts of July 1, 1918, July 11, 1919, and June 4, 1920.

Schlefsky enlisted at Milwaukee, Wis., February 1, 1918, and was discharged March 11, 1919, on the receiving ship at Pelham Bay Park, New York, on account of physical disability incurred in line of duty, and was furnished transportation to his home at Chaska, Minn. He now claims difference between travel allowance at 5 cents per mile and the value of the transportation furnished him from Pelham Bay Park, New York, to Chaska, Minn.

The act of February 28, 1919, 40 Stat., 1203, provides: SEC. 126. That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence or original muster into the service, at his option: * * *

The act of July 11, 1919, 41 Stat., 139, provides that, All enlisted men of the Navy and Coast Guard who have served in the war with the German Government and who may hereafter be discharged or who have been discharged from the service since November 11, 1918, and before the expiration of their full enlistment shall receive, under such rules and regulations as the Secretary of the Navy may prescribe, an honorable discharge and shall receive 5 cents per mile from the place of his discharge to his actual bona fide home or residence or original muster into the service at his option: * * Provided, That the records of such men warrant such honorable discharge.

Except as stipulated by the act of July 11, 1919, the right to travel allowance does not accrue to men discharged for their own convenience. That restriction, however, is the only one recognized in decisions of this office as concerns travel allowance under the act of February 28, 1919. See decision of the Comptroller General dated July 14, 1921, 1 Comp. Dec., 17. Since Schlefsky was entitled to an honorable discharge upon the findings of a medical survey and was

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not discharged for his own convenience he is entitled to travel allow. ance unless the travel allowance law is modified by the terms of the appropriation in the act of July 11, 1919, 41 Stat., 134, which provide

* * * transportation to their homes, if residents of the United States. of enlisted men and apprentice seamen discharged on medical survey, with subsistence and transfers en route or cash in lieu thereof.

The question arises whether this specific provision of the appropriation shows a legislative intent to except all men discharged by medical survey from application of the travel allowance law.

The same language occurs in the appropriation act of June 4, 1920, 41 Stat., 815; also in the act of July 1, 1918, and prior statutes for many years. When travel allowance was limited to travel within the United States and right thereto accrued only in case of men discharged at expiration of enlistment, this provision in the appropriation was the only authority of law to furnish men so discharged transportation in kind.

Under the terms of the present law right to travel allowance is not limited to residents of the United States nor to travel within the United States, 25 Comp. Dec., 950, and, therefore, the terms of the appropriation are not sufficiently broad to apply to all men entitled to travel allowance. Also the appropriation applies where right to travel allowance does not accrue, as in case of men so discharged under other than honorable conditions.

It is apparent, therefore, that the terms used in the appropriation could not have been intended to substitute transportation in kind for travel allowance in all cases of men discharged by medical survey. It is also apparent that the language of the appropriations for the fiscal years 1920 and 1921 has not been changed to comply with the present travel allowance law, since the appropriations still limit travel allowance to “enlisted men discharged on account of expiration of enlistment” and make no provision for such allowance to members of the Naval Reserve Force.

In view of these facts I am of opinion that the right of an enlisted man to travel allowance is not limited by the provision in the appropriations for the fiscal years 1920 and 1921, for transportation of men discharged by medical survey.

An officer of the Navy who is furnished transportation for travel performed under conditions which entitle him to mileage is entitled to mileage less cost of the transportation furnished by the Government. Acceptance of the transportation does not waive his right to mileage. 20 Comp. Dec., 690.

The same rule applies to travel allowance in case of enlisted men, It is a statutory right and is not waived by the acceptance of transportation in kind.

The single matter determined here is that the terms of the appropriation in providing for the transportation and subsistence of enlisted men discharged on medical survey do not affect the provisions of the specific statutes which otherwise authorize the payment of travel allowances to those honorably discharged. The terms of the appropriation can not be considered as legislation denying rights given by express statute.

Accordingly, Schlefsky is entitled to the difference between travel allowance accruing to him by reason of the discharge in question and the value of the transportation furnished him by the Government.

The memorandum decision submitted is disapproved.

PAY OF MIDSHIPMEN IN THE NAVY. The increase in pay from $600 to $780 per annum authorized by the act of July

11, 1919, 41 Stat., 146, for midshipmen in the Navy is effective only from

the date of the act, and not retroactive to July 1, 1919. Decision by Comptroller General McCarl, August 9, 1921:

The Chief of the Navy Department Division submits for my decision the question presented through the Law Board as to the pay of midshipmen under the act of July 11, 1919, 41 Stat., 146, as af. fected by the joint resolution of July 31, 1919, 41 Stat., 272:

The pay rolls of the U. S. S. Arizona for the first quarter, 1920, show that Lieutenant Commander W. W. Lamar, Supply Corps, United States Navy, has credited the account of Midshipman Edwin

D. Graves, jr., and others, with the difference between the pay of a midshipman at $600 and $780 per annum from July 1 to July 10, 1919, and the question arises whether the increased pay authorized by the act of July 11, 1919, is retroactive to July 1, 1919, or whether it is only effective from the date of the approval of the act.

The act making appropriations for the naval service for the fiscal year ending June 30, 1920, approved July 11, 1919, 41 Stat., 146, contains the following provision :

* * * the pay of midshipmen shall hereafter be $780 per annum • . *

The joint resolution of July 31, 1919, 41 Stat., 272, provides as follows:

That appropriations for the service of the fiscal year 1920, contained in the Agricultural, Army, District of Columbia, Navy, and Sundry Civil Appropriations Acts, and the “Third Deficiency Appropriation Act, fiscal year 1919," shall be available from and including July 1, 1919, for the purposes respectively provided in the said appropriations for the service of the said fiscal year. And all obligations incurred pursuant to the terms of such appropriations in the aforesaid Acts as approved are ratified and confirmed from and including July 1, 1919.

There would be no question of the date of the commencement of the higher rate of pay if the appropriation act stood alone, but the

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