moted for cause, be given the designation and status of special clerks, and assigned to the first or second grade: Provided, That clerks who have been designated as special clerks shall not be demoted except for cause.

The second clause of this section relates only to those employees who on June 30, 1920, were holding a designation that was not continued under the reclassification act of June 5, 1920, 41 Stat., 1045, such as special clerks, finance clerks, etc., and who from July 1, 1920, to July 21, 1921, held the designation of clerk of grade five. See my decision to you dated February 9, 1922.

In the case here presented the employee was promoted from clerk of grade five to superintendent June 1, 1921, and therefore was not holding the designation of clerk of grade five on July 21, 1921. Accordingly, the second clause of the section in question has no application to his case and you are not required or authorized under the law to give him the designation of special clerk as of July 21, 1921. Whether he may now be appointed special clerk as a reward for faithful and meritorious service under authority of the first clause of the section is a matter for administrative determination.

TRANSPORTATION OF DEPENDENTS OF NAVAL OFFICERS. When transportation requests, furnished a naval officer for transportation of his dependents, are not used because of preference for other routes of travel no reimbursement for the cost of transportation is authorized. Decision by Comptroller General McCarl, April 11, 1922:

Lieut. Alexander S. Wotherspoon, United States Navy, applied February 27, 1922, for review of settlement No. 111038, dated January 16, 1922, Navy Department Division, this office, wherein was disallowed his claim for reimbursement for transportation of dependent from Boston, Mass., to Annapolis, Md., in September, 1921.

The claim was disallowed for the reason that transportation requests were issued for this transportation, and, furthermore, that no receipts were furnished for transportation purchased from personal funds.

It appears that transportation requests were issued by Lieut. Arthur Shock (S. C.), United States Navy, for railroad ticket, via New York, New Haven & Hartford, Baltimore & Ohio, and Maryland Electric from Boston to Annapolis, and for lower berth from Boston to Baltimore, and that the requests were returned by appellant after the travel had been performed, the reason assigned for the return being that his wife was unable to use them "as it was impracticable to travel over the Baltimore & Ohio Railroad."

The act of May 18, 1920, 41 Stat., 604, provides:

SEC. 12. That hereafter when any commissioned officer, noncommissioned officer of the grade of color sergeant and above, including any noncommissioned officer of the Marine Corps of corresponding grade, warrant officer, chief petty officer, or petty officer (first class), having a wife or dependent child or children, is ordered to make a permanent change of station, the United States shall furnish transportation in kind from funds appropriated for the transpor

tation of the Army, the Navy, the Marine Corps, the Coast Guard, the Coast and Geodetic Survey, and the Public Health Service to his new station for the wife and dependent child or children:

In so far as appears the impracticability to travel over the railroad designated was a personal matter.

It is for the Government to determine the route and by what carrier the transportation is to be furnished, and if a routing is selected which is impracticable in fact, the duty devolves on the officer, in whose behalf issued, to state the objections in order that the Government may have an opportunity to consider the objections raised and correct the routing. Failing in this respect, and the transportation having been offered and refused, no claim arises. against the Government under the act of May 18, 1920, for reimbursement for transportation purchased from personal funds.

Upon this review no differences are found and the settlement is sustained.

PERMANENT GUARD HOUSE-WALTER REED HOSPITAL.

The use of the appropriation "Construction and repair of hospitals, 1922," for erection of a permanent guard house at Walter Reed Hospital, costing $28,000, is prohibited by section 1136, Revised Statutes, the $20,000 limit therein set as the cost of permanent buildings which might be erected without special authority from Congress having been superseded by the $30,000 limit in the proviso in act of May 17, 1917, 40 Stat., 58, only as to permanent buildings for use as an Army hospital."

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Comptroller General McCarl to the Secretary of War, April 12, 1922:

I have your letter of April 3 requesting decision whether the appropriation "Construction and repair of hospitals, 1922," may be used to construct a permanent guard house at Walter Reed Hospital at a cost of $28,000.

The appropriation in question was made in the act of June 30, 1921, 42 Stat., 84, and is in the following terms:

For construction and repair of hospitals at military posts already established and occupied, including all expenditures for construction and repairs required at the Army and Navy Hospitals at Hot Springs, Arkansas, and for the construction and repair of general hospitals and expenses incident thereto, and for additions needed to meet the requirements of increased garrisons, and for temporary hospitals in standing camps and cantonments; for the alteration of permanent buildings at posts for use as hospitals, construction and repairs of temporary hospital buildings at permanent posts, construction and repair of temporary general hospitals, rental or purchase of grounds, and rental and alteration of buildings for use for hospital purposes in the Dis trict of Columbia and elsewhere, including necessary temporary quarters for hospital personnel, outbuildings, heating and laundry apparatus, plumbing, water and sewers, and electric work, cooking apparatus, and roads and walks for the same, $900,000.

Section 1136, Revised Statutes, provides:

Permanent barracks or quarters and buildings and structures of a permanent nature shall not be constructed unless detailed estimates shall have been previously submitted to Congress, and approved by a special appropriation for the same, except when constructed by the troops; and no such structures, the cost of which shall exceed twenty thousand dollars, shall be erected unless by special authority of Congress.

The appropriation for the construction and repair of hospitals for the fiscal year 1918, provided specifically for the expenditure of $90,000 to enlarge the Walter Reed General Hospital with a proviso as follows:

That no building or structure of a permanent nature, the cost of which shall exceed $30,000, shall hereafter be erected for use as an Army hospital unless by special authority of Congress. Act of May 12, 1917, 40 Stat., 58.

It has been suggested that this provision supersedes the provision hereinbefore quoted from section 1136, Revised Statutes, in so far as expenditures from the appropriation "Construction and repair of hospitals" are concerned, but it is apparent the purpose and effect of said proviso was more limited, to wit, to buildings or structures "for use as an Army hospital." The proposed guardhouse is to be a building or structure of a permanent nature. Therefore, it comes within the purview of section 1136, Revised Statutes, and the provisions of said section must be held applicable to it. With reference to the erection of a building " for use as an Army hospital" the proviso in the act of May 12, 1917, may be regarded as superseding the provision in section 1136, Revised Statutes. But to hold that said proviso supersedes the provisions of section 1136 in the matter of all expenditures from the appropriation "Construction and repair of hospitals," would result in the holding that said appropriation is not available for the construction of any building or structure of a permanent nature, except such as is designed "for use as an Army hospital." From the terms of the appropriation I am constrained to hold that it was not intended to be so restricted but that it was intended to be available for other construction work at hospitals such as the erection of small buildings to be used not as but in connection with hospitals subject, of course, to other statutory restrictions or limitations. The provisions in the act of May 12, 1917, prohibiting the erection, without special authority of Congress, of any building or structure of a permanent nature, the cost of which shall exceed $30,000,"for use as an Army hospital," can not be construed to authorize the erection without regard to the provisions of section 1136, Revised Statutes, of a permanent building, the cost of which shall not exceed $30,000, for use other than as an Army hospital. The question submitted is answered in the negative.

AVIATION PAY-STUDENT OFFICERS AT GENERAL STAFF COLLEGE.

Duty as a student officer at the General Staff College, Washington, D. C., is not duty requiring participation regularly and frequently in aerial flights, and the fact that an officer of the Air Service while so assigned did, in fact, participate in frequent aerial flights does not entitled him to the increase for aviation duty.

Comptroller General McCarl to Maj. E. O. Hopkins, United States Army, April 12, 1922:

I have your letter of February 21, submitting for decision voucher stated in favor of Lieut. Col. Clarence C. Culver, Air Service, United States Army, for flying pay for the period October 1, 1921, to January 31, 1922, while on duty as a student officer at the General Staff College, Washington, D. C., pursuant to paragraph 25, War Department Special Orders No. 183-0, dated August 9, 1921, which provides:

25. Each of the following-named officers is relieved from his present assignment and duties, to take effect at such time as will enable him to comply with this order, and will report to the commandant General Staff College for duty as student officer, 1921-1922 course, on the date specified after his name: Lieutenant Colonel Clarence C. Culver, Air Service, August 15, 1921. It appears that Colonel Culver was announced as on duty requir ing him to participate regularly and frequently in aerial flights from December 9, 1916, by paragraph 291, War Department Special Orders No. 5, dated January 6, 1917; that by paragraph 31 of War Department Special Orders No. 172, date July 26, 1917, he was rated as a junior military aviator; and that by Personnel Orders No. 228, dated office of Chief of Air Service, October 5, 1920, he was rated airplane pilot pursuant to the provisions of section 13a of the act of June 4, 1920, 41 Stat., 768, and of paragraph 2 (a) section IV, War Department General Orders No. 49, of 1920.

Colonel Culver has certified that during the period for which flying pay is claimed he was on duty requiring regular and frequent participation in aerial flights, and that during such period he participated in regular and frequent flights as prescribed by General Orders No. 49, War Department, 1920. Your doubt as to the propriety of payment arises by reason of the fact that student officers of the General Staff College are not in fact on duty requiring actual flying in aircraft.

Section 13-a of the act of June 4, 1920, provides in part as follows:

Provided, That not to exceed 10 per centum of the officers in each grade below that of brigadier general who fail to qualify as aircraft pilots or as observers within one year after the date of detail or assignment shall be permitted to remain detailed or assigned to the Air Service. Flying units shall in all cases be commanded by flying officers. 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:

In circular letter dated December 2, 1920, from the Chief of Air Service to commanding officers of all Air Service activities, it was stated:

The chief of the Air Service considers that any officer holding a flying rating is on duty which requires his participation in regular and frequent flights no

matter what the nature of such duty may be. This because of the fact that it is manifestly to the benefit of the service that officers who hold flying ratings participate regularly and frequently in flights in order that they may not become out of practice, but said interpretation of the law and regulations in no way covers the case of nonflying officer.

Paragraph 12691, Army Regulations, as amended by changes No. 122, dated December 31, 1921, provides:

All officers of the Air Service, including those regularly detailed therein, who are rated in accordance with regulations and orders as pilots of airplanes or airships, except those found disqualified upon examination made in accordance with the provisions of Army Regulations 40-110, shall be required, while on a duty status, to participate regularly and frequently in aerial flights as pilots whenever flying facilities are available. The announcement of the Chief of the Air Service that such officer is rated as airplane pilot or airship pilot shall serve to announce the officer so rated as being on duty requiring him to participate regularly and frequently in aerial flights.

The question is whether Colonel Culver, having been relieved from his then existing assignment and duties, and assigned to the General Staff College as a student officer having no connection with flying, is notwithstanding the terms of the order and the character of duty devolving upon him, still on duty requiring regular and frequent participation in aerial flights.

Regular and frequent participation in aerial flights is no part of the duty of a student officer at the General Staff College. Officers of the infantry, cavalry, artillery, or other branches of the Army, attending the General Staff College as student officers are not required to participate in flights and no more is required of a student officer of the Air Service who has qualified as an airplane pilot.

If in the administrative view continuous flying is necessary to maintain an airplane pilot's efficiency, consideration should be given that fact in the assignment of officer to duty. And if paragraph 12691, Army Regulations, has for its purpose to require an officer holding a flying rating to continue practice in the accomplishment of flying notwithstanding the duties that may be assigned him not requiring flying in their performance, that is a requirement addressed to the personal fitness of the officer, and not a duty assignment entitling to flying pay. Such a requirement does not have the effect of making regular and frequent participation in aerial flights a part of any duty that may be assigned him, when such flying is not a part of the duties of officers of other branches of the Army assigned to the same duty. And see 26 Comp. Dec., 539, respecting voluntary flights.

It is concluded, therefore, that regular and frequent participation in aerial flights was no part of the duty of Colonel Culver while assigned as a student officer to the General Staff College; and that the flights made by him while so assigned did not continue him in a flying status for pay purposes.

You are not authorized to pay the voucher.