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PRIVATE PROPERTY LOST IN THE MILITARY SERVICE.

There is no authority under the act of March 4, 1921, 41 Stat., 1436, providing

for reimbursement of value of private property lost in the military service under certain conditions therein specified, to reimburse a former officer of the Army who entered the service through the medium of the National Guard for value of personal baggage lost while being returned to his home

after his discharge from the service. Comptroller General McCar! to Capt. C. E. Gray, United States Army, August 11, 1921:

By reference of the Chief of Finance, I have your letter dated August 5, 1921, transmitting an approved voucher with accompanying papers, wherein decision is requested as to whether or not you are authorized under the act of March 4, 1921, 41 Stat., 1436, to make a payment of $210.35 to Arthur Smith, first lieutenant, Infantry, discharged, as reimbursement for the loss of his private property. The Secretary of War has determined that $210.35 is the value of the articles lost which were reasonable, usefui, necessary, and proper for the officer to have in his possession in the military service.

It appears that Arthur Smith was a second lieutenant of Company G, Second Infantry, Maine National Guard, which was called into the Federal service on April 12, 1917; that he returned from overseas duty on May 5, 1919; and that he was honorably discharged from the military service on June 5, 1919, at Camp Devens, Mass. It further appears that a trunk, which it is alleged contained the articles of personal property damaged or destroyed and constituting delayed baggage, was shipped August 12, 1919, by the port and zone transportation officer, Hoboken, N. J., via the Hoboken Shore Railroad and connecting lines, to Arthur Smith at Bangor, Me.; that the shipment was made on a Government bill of lading at a released valuation of $10 per 100 pounds; that the shipment was “ practically totally destroyed” at Rotterdam Junction, N. Y.; and that the carrier refused to recognize a claim therefor in excess of $9.20.

The act of March 4, 1921, 41 Stat., 1436, provides reimbursement of the value of private property belonging to, and lost without fault or negligence of, “ officers, enlisted men, and members of the Nurse Corps (female) of the Army” transferred by a common carrier

When during travel under orders such private property, including the regulation allowance of baggage, transferred by a common carrier, or otherwise transported by the proper agent or agency of the United States Government, is lost, damaged, or destroyed; but replacement, recoupment, or commutation in these circumstances, where the property was or shall be transported by a common carrier, shall be limited to the extent of such loss, damage, or destruction over and above the amount recoverable from said carrier.

Payment of the voucher herewith returned is unauthorized for the reason that Arthur Smith was not an officer of the Army traveling under orders when his trunk and the contents were damaged by fire

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subsequent to August 12, 1919, as he had been discharged therefrom on June 5, 1919, 22 Comp. Dec., 228; also, as he entered the service through the medium of the National Guard, there was no authority for the transportation of his baggage to his home on discharge, 25 Comp. Dec., 786. Under what authority shipment was made at Government expense does not appear, and in the absence of proper authority no obligation could be imposed on the Government for the loss of the property.

LEAVE OF ABSENCE-ARSENAL EMPLOYEES.

The Secretary of War being vested with authority to make the necessary regu

lations under act of July 9, 1918, 40 Stat., 870, permitting payment during the period of the war for leave not taken by arsenal employees, and having on June 30, 1920, ordered that no payments for leave should be made on and after July 1, 1920, arsenal employees are not entitled to pay for leave accru

ing on and after July 1, 1920, and not taken. Decision by Comptroller General McCarl, August 11, 1921:

F. E. Gilbert applied August 4, 1921, for review of the action of the War Department Division in disallowing per settlement (claim No. 787566) dated July 20, 1921, his claim for pay for leave accrued but not taken during the service year while performing service as an arsenal employee.

The act of August 29, 1916, 39 Stat., 617, grants 30 days' leave with pay to arsenal employees, beginning with the second service year.

It has been held that the leave authorizd by the act of August 29, 1916, is not cumulative and if not allowed during the service year in which it accrues it may not lawfully be granted in a subsequent service year. It has also been held that an employee who is granted leave under that act but who is retained on duty during such leave may not lawfully be paid for such leave and also for the service performed during the period. See 23 Comp. Dec., 724.

The act of July 9, 1918, 40 Stat., 870, authorized and empowered the Secretary of War, during the period of the war, to make payment, under such regulations as he might prescribe, to arsenal employees for work performed on all days of leave granted by law to such employees. Under date of December 21, 1918, the Secretary of War promulgated regulations under the act of July 9, 1918, and thereafter payment was made to arsenal employees for leave accrued but not taken.

On June 30, 1920, however, the Secretary of War issued an order to the effect that on and after July 1, 1920, no further payments would be made under the act of July 9, 1918, for leave not taken. That order terminated pay for leave for any period during which an arsenal employee performed service and was paid therefor.

Upon a review of the matter no differences are found and the settlement is sustained.

OFFICERS AND EMPLOYEES HOLDING TWO POSITIONS.

A clerk of United States district court may legally be paid as clerk while

holding a commission in the Officers' Reserve Corps of the United States Army, except for such periods as he may be on active duty as an officer in the Officers' Reserve Corps when he would be prohibited by provisions of section 6 of the act of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat., 582, from receiving compensation as a clerk of court.

Comptroller General McCarl to the Attorney General, August 11, 1921:

I have your letter of August 3 requesting decision whether the clerk of the United States District Court for the Eastern District of Tennessee “may legally be paid for his services as clerk of said court, provided he holds a commission in the Officers' Reserve Corps of the United States Army."

In deciding the question presented consideration must be given to the provisions of section 2 of the act of July 31, 1894, 28 Stat., 205, and section 6 of the act of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat., 582.

Section 2 of the act of July 31, 1894, provides : • • • No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate.

The clerk of the United States District Court for the Eastern District of Tennessee holds an office the salary or annual compensation attached to which amounts to the sum of $2,500 or more. Section 2, act of February 26, 1919, 40 Stat., 1182. Therefore, the provision thus quoted expressly precludes him from holding an office in the Officers' Reserve Corps if compensation is attached to said office. But with reference to the matter of compensation of officers of the Officers' Reserve Corps section 37 of the act of June 3, 1916, as amended by section 32 of the act of June 4, 1920, 41 Stat., 776, provides:

To the extent provided for from time to time by appropriations for this specific purpose, the President may order reserve officers to active duty at any time and for any period; but except in time of a national emergency expressly declared by Congress, no reserve officer shall be employed on active duty for more than fifteen days in any calendar year without his own consent. A reserve officer shall not be entitled to pay and allowances except when on active duty. When on active duty he shall receive the same pay and allowances as an officer of the Regular Army of the same grade and length of active service, and mileage from his home to his first station and from his last station to his home, but shall not be entitled to retirement or retired pay.

From this provision it will be seen that compensation attaches to officers in the Officers' Reserve Corps only while on active duty. Therefore, while the officer in the case presented by you can not legally hold the office of clerk of the court while on active duty as an officer of the Army in the Officers' Reserve Corps the provisions of section 2 of the act of July 31, 1894, do not preclude him from

holding at the same time the office of clerk of the court and a commission in the Officers' Reserve Corps when not on active duty.

Section 6 of the act of May 10, 1916, provides :

That unless otherwise specially authorized by law, no money appropriated by this or any other Act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum, * * *.

This provision would clearly prohibit the payment to the officer in question of any compensation as a clerk of the court while entitled to compensation as an officer of the Officers' Reserve Corps. 23 Comp. Dec., 62.

Answering your question specifically, you are advised that the officer referred to in your letter may legally be paid as a clerk of the district court while holding a commission in the Officers' Reserve Corps except for such periods as he may be on active duty as an officer in the Officers' Reserve Corps.

ENLISTED MAN HOLDING TEMPORARY COMMISSION AS

OFFICER.

An enlisted man, holding temporary commission as officer, is entitled, by virtue

of section 13, act of May 22, 1917, 40 Stat., 87, to the pay and allowances of the permanent enlisted grade held by him when accepting the commission or attained during his commission, when they exceed the pay and

allowances to which he would be entitled under the commission. Comptroller General McCarl to the Secretary of the Navy, August 11, 1921:

I have your letter of July 29, 1921, referring for decision the question whether Ensign Charles H. Gordon, United States Navy, is entitled to the pay of a gunner after 12 years or to the pay of an ensign after 10 years.

Transcript of Ensign Gordon's service record shows that while holding commission as ensign, temporary, in the Navy he accepted appointment as permanent gunner. Since your question indicates that Gordon is now a temporary ensign, presumably his appointment as gunner did not vacate his temporary appointment as ensign, and the question is whether an officer who, while holding a temporary appointment under the act of May 22, 1917, 40 Stat., 85, was promoted in permanent grade, is entitled to the pay and allowances of such permanent grade when same is greater than the pay and allowance of his temporary grade.

The act of May 22, 1917, 40 Stat., 86, 87, provides :

SEC. 7. That the permanent and probationary commissions, appointments, and warrants of officers shall not be vacated by reason of their temporary advancement or appointment, nor shall said officers be prejudiced in their rela. tive lineal rank in regard to promotion in accordance with the Act of August twenty-ninth, nineteen hundred and sixteen : Provided, That the rights, benefits, privileges, and gratuities of all enlisted men of the Navy and Marine Corps now authorized by law shall not be lost or abridged in any respect whatever by their acceptance of temporary commissions or warrants hereunder: Provided further, That no person who shall receive a temporary appointment shall be entitled to pay or allowances except under such tempori.ry appointment: And provided further, That upon the termination of temporary appointments in a higher grade or rank as authorized by this Act the officers so advanced, including probationary second lieutenants, warrant officers, clerks to assistant pay. masters, and enlisted men of the Navy and Marine Corps, commissioned and warrant officers of the United States Coast Guard, shall revert to the grade, rank, or rating from which temporarily advanced, unless such officers or enlisted men in the meantime, in accordance with law, become entitled to promotion to a higher grade or rank in the permanent Navy or Marine Corps, in which case they shall revert to said higher grade or rank and shall after passing the prescribed examination, be commissioned accordingly.

SEC. 13. Nothing contained in this Act shall operate to reduce the rank, pay or allowances that would have been received by any person in the Navy, Marine Corps, or Coast Guard except for the passage of this Act.

In 24 Comp. Dec., 229, it was held that under these provisions a warrant officer who is given a temporary commission is entitled to continue to receive the pay and allowances of his permanent grade or rank when same exceeds the pay and allowances of his temporary rank. In this instance we have the condition in which the officer's permanent grade is changed while holding a temporary appointment and the question is whether the officer is entitled to the pay and allowances of the higher permanent grade when same exceeds the pay and allowances of his temporary commissioned rank.

The act of May 22, 1917, provides that the temporary appointments shall not effect the officer's rights relative to promotion in permanent grade. It also provides that such temporary appointments or commissions shall not operate to reduce the rank, pay, or allowances that the officer would have received except for the temporary appointment. It not only saves to him the pay and allowances of his permanent grade when given a temporary appointment, but saves to him the pay and allowances of any permanent grade or rank attained while holding the temporary appointment. In the case in question the permanent grade of gunner was attained by Gordon independent of the temporary appointment as ensign, and therefore the pay and allowances thereof would have accrued to Ensign Gordon regardless of his temporary appointment as ensign.

Accordingly, you are advised that Ensign Gordon is entitled to receive the pay and allowances of a gunner after 12 years when same is greater than his pay and allowances as an ensign.

ARMY OFFICER PERFORMING AERIAL FLIGHTS.

The performance of aerial flights by assignment from a subordinate officer does

not entitle an officer to the increased pay for flying duty, as provided by acts of June 3, 1916, 39 Stat., 175, and July 24, 1917, 40 Stat., 245, when no orders assigning him to duty requiring regular and frequent aerial flights

bave been issued by a competent official of the War Department. Decision by Comptroller General McCarl, August 11, 1921:

Eugene F. Wermuth, formerly a first lieutenant, A. S., S. O. R. C., United States Army, applied August 1, 1921, for revision of the ac

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