« ForrigeFortsett »
By travel order dated May 10, 1918, claimant was directed as follows:
From: Depot quartermaster, Cambridge, Mass.
Subject: Change of station from Boston, Mass., to Bridgewater, Mass.
You are hereby directed to proceed from Boston, Mass., to Bridgewater, Mass.. and report leaving on the 10th instant in connection with contract No. 2739-B with L. Q. White Shoe Co. for shoes.
While on duty there you will inspect material and the manufacture of the articles under that contract .
You will make reports as required to this office as to the progress of the contract and any remarks you may have to make pertinent thereto.
Transportation is herewith inclosed covering the journey.
You will be allowed $4.00 per day for the first 30 days; $1.00 per day thereafter while on duty at your temporary station. Transportation furnished 5/10/18 via NYNH&H RR. Req. #613484. By direction of the depot quartermaster:
C. S. Ridqwat, Jr.,
1st Lieut., Q. if. C. N. A.
The per diem provided by this order was paid and the present claim arises under the provisions of Changes Army Regulations No. 78, dated August 19, 1918, increasing the per diem after the first 30 days from $1 to $1.50.
The question presented whether the above order was sufficient to place employee on temporary duty is not new, twice having been considered in published decisions of the Comptroller of the Treasury in cases identical as to facts. 25 Comp. Dec, 899; 27 id., 816. The latter case is in effect a reversal of the earlier decision.
Section 733 of the Army Regulations, as amended, provides:
733. Reimbursement of actual expenses when traveling under competent orders will be allowed, under the following heads, to civilians in the employ of any branch of the military service, excepting the expert accountant of the Inspector General's Department and those mentioned in paragraph 734, viz:
e. Cost of meals, including tips, not to exceed $5.00 a day while en route, when meals are not included in the transportation fare paid, and not to exceed $5.00 a day for meals, tips, and lodgings during necessary delay en route, and when meals are included in the transportation fare paid, tips for meals not to exceed 15 cents each.
/. Cost of meals and lodgings, including baths, tips, and laundry work, not to exceed $5.00 a day for the tirst 30 days while on duty at places designated in the orders for the performance of temporary duty, and a flat per diem allowance of $1.50 a day after the first 30 days of temporary duty at any one place. In time of actual war no such reimbursement of expenses or per diem allowance will be allowed to the civilian employees specified who accompany troops in the field, but in lieu thereof the allowance of tents prescribed by the war Wepartment and a ration will be furnished such employees.
2. In lieu of reimbursement for the actual expenses provided in e and f of subparagraph 1, civilian employees not accompanying troops in time of nctual war, nor traveling on Army transports, may, when their orders so prescribe, be allowed flat per diem allowances not exceeding the following rates when traveling and when on duty for the first 30 days at places designated in their order* lor the performance of temporary duty.
These sections of the Army Regulations promulgated by the Secretary of War under authority of the act of August 1,1914, 38 Stat., 680, provide for the reimbursement of traveling expenses of employees of the Government temporarily away from their designated post of duty.
The law and regulations relating to per diem allowances in lieu of actual traveling expenses authorize payment thereof for travel and temporary duty incident to employment at a permanent station, and orders to travel should clearly show this fact.
To entitle claimant to traveling expenses under this order it must be shown that he was in a travel status while at Bridgewater, Mass. Whether an officer or employee of the Government is in a travel status during a given period is not so much dependent upon the wording of his orders as upon the facts of the case. He must have a permanent station at which he has definite duties to perform, and his absence therefrom must be of a temporary nature; his orders to travel on temporary duty should be such as to direct that upon the completion of the duties enjoined by his orders he is to return to his permanent station.
The order of May 10, 1918, specifically directed a change of station from Boston to Bridgewater. There is nothing in the record showing intent that the employment at Bridgewater was to be temporary. There was no direction in the order that the employee was to return to Boston on the completion of his duties at Bridgewater. The word " temporary " under the head of " Remarks " in the order is a mere conclusion, unsupported by convincing facts, and must be disregarded. It is held that during the period May 10,1918, to March 10,1919, the designated post of duty of this employee was at Bridgewater, Mass.
Upon a review of the matter no differences are found, and the settlement is sustained.
To the extent above indicated the decision of March 23, 1921, 27 Comp. Dec, 816, holding to the contrary will not hereafter be followed.
Payments heretofore made and allowances heretofore granted in similar cases will not now be disturbed.
A copy of this decision will be sent to the Quartermaster General, United States Army, and in otherwise proper cases orders hereafter issued directing travel and the performance of temporary duty should be worded so as to clearly show the character of travel and duty to be performed. In this connection attention is invited to the following decisions of the Comptroller of the Treasury. 25 Comp. Dec, 899, 381, and 321; 23 id., 313 and 8; 22 id., 496; 18 id., 347 and 110.
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, useful, 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 regu•atlon 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
7920" -22—Vol. 1 6
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 regulations 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 accruing 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 a9 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