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tion of the Auditor for the War Department in disallowing by settlement No. 740643, dated March 1, 1921, his claim for flying pay, January to September, 1918 (exact dates not indicated), while on duty with the Fourth Balloon Company in France.
The commanding officer of the Fourth Balloon Company reported February 10, 1920, as follows:
1. The retained overseas records of the 4th Balloon Company show that Lieut. Eugene F. Wermuth was a member of this organization, known in its inception as Company “D” 2nd Balloon Squadron, and later as the 4th Balloon Company, from February 12, 1918, being assigned by paragraph 17, Special Orders 33, Headquarters, Air Service, L. of C., A. E. F., dated February 12, 1918. A letter from 1st Lieut. C. E. Smith, A. S. A., commanding officer of the company, dated February 2, 1919, states that Lieut. Wermuth was transferred from the company July 28, 1918, to the U. S. Balloon School, Camp de Şouge, Gironde.
No actual orders placing Lieut Wermuth on flying status appear among the records of this organization; however, copies of several reports rendered to the C. A. S., A. E. F. (bimonthly) (semimonthly?), show Lieut. Wermuth as having a total of 10 hours and 3 minutes flying time in the air. These reports include the time from March to June, 1918. Further reports not found.
3. Copies of all other data bearing on Lieut. Wermuth, found in the overseas records of this company are enclosed.
Attached to this indorsement are certified copies of reports dated March 15, 1918 (for the period subsequent to March 6, 1918), April 1, May 1, May 15, and June 1, and a certified copy of a report made to the commanding officer of the Second Balloon Squadron June 24, 1918, by the commanding officer of Company D of that squadron, submitting “the names of officers of this company that are on duty requiring them to participate in regular and frequent aerial flights," among which is the name of claimant.
The auditor disallowed the claim because “in view of the fact that no orders were issued placing the officer on a flying status and assigned to duty this office has no authority to make payment over above period” (March 6 to June 24, 1918).
The act of June 3, 1916, 39 Stat., 175, provides: Each aviation officer authorized by this Act shall, while on duty that requires him to participate regularly and frequently in aerial flights, receive an increase of twenty-five per centum in the pay of his grade and length of service under his commission. * *
The act of July 24, 1917, 40 Stat., 245, provides : Any officer attached to the aviation section of the Signal Corps for any military duty requiring him to make regular and frequent flights shall receive an increase of twenty-five per centum of the pay of his grade and length of service under his commission.
Paragraph 1269, Army Regulations, 1913, is in part as follows: Aviation officers
may be assigned to duty requiring them to participate in regular and frequent aerial fights by the commanding officer of the aviation station, camp, school. field, post, or aeronautical organization in the field to which the officer may be assigned. No officer will be continued on such duty except as authorized by the acts of Congress of July 18, 1914, June 3, 1916, and July 24, 1917.
Claimant has submitted a mimeographed document reading as follows: G. H. Q., AMERICAN EXPEDITIONARY FORCES
January 26, 1918. Memorandum: To commanding officers of all Air Service units.
The Commander-in-Chief has recommended to the War Department that the law giving increased pay and rank for officers on aviation duty be revoked. Until such time as notification is received as to whether or not this law has been revoked, the Commander-in-Chief has decided that no officers will be announced in orders as on duty requiring them to participate regularly and frequently in aerial flights.
While above is pending, no application will be made to this office to issue orders placing officers on flying duty. Upon receipt of definite information, same will be communicated to all concerned without delay. By direction of the C. A. S.
Colonel, Signal Corps. G. H. Q., A, E, F., C. A. S., Jan, 26. 1918. Copy to: 1st Lt. E. F. Wermuth, A. S., S. O. R. C.
It appears that on or about May 2, 1918, the commanding officer of the Second Balloon Squadron, to which claimant was then attached, authorized claimant to wear the insignia of an “observer.” The Director of Air Service reported April 5, 1920, as follows:
No record can be found of orders announcing this officer on duty requiring regular and frequent participation in aerial fights, and it has not been possible to establish the fact that he was on such duty from January, 1918, to September, 1918, as claimed in his original communication, but it will be seen from the preceding indorsements and inclosures thereto that he was on flying duty from March 6 to June 24, 1918, and it is thought that orders should issue announcing him as on such duty between those dates, and orders are recommended accordingly, provided his dismissal and confinement do not prohibit such action.
The Adjutant General of the Army reported to the Auditor for the War Department February 12, 1921, that “ Orders in this case have not and will not be issued, in view of the fact that this officer is no longer in the service.”
The question thus presented is whether an officer assigned by a subordinate officer to duty requiring him to participate regularly and frequently in aerial flights and who performs that duty can be deprived of the increased pay therefor authorized by statute by the neglect, failure, or refusal of the appropriate officer to issue in writing the order evidencing such assignment or detail. The statute authorizes the increased pay when an officer is assigned to duty requiring him to participate regularly and frequently in aerial flights; the regulations provide that aviation officers may be so assigned by the commanding officer of an aeronautical organization in the field to which the officer may be assigned.
I am of opinion that the statute requires that an authorized official of the War Department shall determine whether an officer of the Air Service is “on duty that requires him to participate regularly
and frequently in aerial flights,” and that the permission, request, or direction of subordinate officers to undertake duties of this character gives no right to the increased pay therefor in the absence of a competent order assigning the officer to such duty. As claimant has submitted no order issued by a competent officer of the War Department announcing him as on duty requiring him to participate regularly and frequently in aerial flights during any period in 1918 no payment is authorized.
Upon a review of the matter no differences are found and the settlement is sustained.
SPECIAL ALLOWANCES TO NAVAL AND MARINE CORPS OFFI. CERS AND ENLISTED MEN SERVING UNDER UNUSUAL CONDI. TIONS.
Under the appropriations for special allowances for maintenance to officers and
enlisted men of the Navy and the Marine Corps serving under unusual conditions, the determination of the amount of such allowances and the basis for their computation, as well as the question whether service is “under unusual conditions," are within administrative discretion of the
Secretary of the Navy. 26 Comp. Dec., 195, overruled in part. Comptroller General McCarl to the Secretary of the Navy, August 12, 1921:
I have your letter of June 29, 1921, addressed to the Comptroller of the Treasury, as follows:
The department has noted certain disallowances made by the Auditor for the Navy Department in his statement of differences, dated May 31, 1921, certificate No. 16964D, in the disbursing account of Major Jeter R, Horton, A. Q. M., special disbursing agent, Paymaster's Department, United States Marine Corps, of payments of maintenance allowance to officers and enlisted men of the Navy and Marine Corps on duty with the Marine Detachment, American Legation, Peking, China.
The question of affording some relief to officers serving in China was, for some time after the declaration of war, made the subject of individual and personal representation and appeal to the Secretary of the Navy by the friends and relatives of officers and men serving in China, but without avail until the matter was taken up officially on May 21, 1918, by Major R. H. Davis, A. Q. M., United States Marine Corps, and special disbursing agent of the Paymaster's Department at Peking at that time. Upon these official recommendations it was decided to take, as soon as practicable, such action as would afford the necessary relief. This relief could not be extended immediately, as no appropropriation then appeared to be available to pay such allowances to officers and men of the Marine Corps, but there was specific legislation under “ Contingent, Navy," in the act of July 1, 1918, which authorized the payment of a maintenance allowance to officers of the Navy serving under the circumstances reported in China. The department, however in the next annual appropriation, had enacted under “ Pay, miscellaneous," in the act of July 11, 1919, the following legislation which makes specific provision for the payment of this allowance to both officers and enlisted men of the Navy and Marine Corps, viz:
“ That this appropriation and the appropriation “Pay, Marine Corps,' shall be available for special allowances for maintenance to officers and enlisted men of the Navy and Marine Corps serving under unusual conditions."
Under the above provision the Major General Commandant of the Marine Corps, under date of September 3, 1919, was authorized to issue the necessary instructions granting all officers and enlisted men of the Navy and Marine Corps attached to the American Legation Guard, Peking, or on shore duty elsewhere in China, from July 1, 1919, the same allowances as those which had been granted by the State Department to its officers and employees in
China, as shown in the report from that department, dated August 29, 1919. Copies of the correspondence above referred to are attached.
The items now disallowed by the Auditor for the Navy Department in the settlement of the account of Major Horton are the payments made by him in pursuance of the department's instructions enclosed.
The necessity for the department's action in granting relief to the officers and enlisted men serving in China is apparent from the following state of facts that existed at that time, viz: The official value of the Chinese dollar increased from approximately $0.43 in 1916 to $0.8610 on July 1, 1919, and further to approximately $1.0302 on April 1, 1920. This state of affairs alone resulted in reducing the purchasing power of the salaries of officers and men in China to less than half its prewar value. But in addition to this the purchasing power of their salaries was further decreased by an increase, due to the war conditions, of from 50% to 100% in the cost, as expressed in Chinese currency, of the necessaries of life, as shown by official reports from China. They were, therefore, not only suffering from the high cost of living the same as officers and men serving elsewhere, but also from the unprecedented high rate of exchange for Chinese currency, thereby decreasing the purchasing power of their salaries from 150% to 200% below their prewar level. These facts created a condition that made it impossible, without great sacrifice, for our officers and enlisted men on duty in China to meet their current living expenses. It was considered then a military necessity that some relief be granted these officers and men, and in consequence thereof, the provision contained in the act of July 11, 1919, was intended to provide authority for the department to afford the necessary relief to the officers and enlisted men of the Marine Corps serving under these unusual conditions, and it was deemed advisable that this relief be granted as recommended, in the same manner and to the same extent as that previously provided for officers and employees of the State Department. All these expenditures were made in pursuance of and in accordance with the specific instructions of the department, which were issued in execution of and in pursuance of law, and it is therefore not deemed proper that the disbursing officer in whose accounts these disbursements appear shall be now held responsible for the same in the settlement of his accounts by the accounting officers of the Treasury Department.
The decision of the Comptroller referred to by the Auditor for the Navy Department, 26 Comp. Dec., 195, was not in the hands of the department, when the original instructions were sent to China, and a reply to the department's request for decision in this case, dated July 25, 1919, was not awaited due to the precedent established by the State Department in paying similar allowances to its officers and employees for a long time previous, which action, it was assumed, had the sanction and approval of the accounting officers of the Treasury Department.
In view of the above, it is requested that, if deemed proper, the disallowances in question be, by your direction, allowed in the settlement in question, as well as in future settlements yet to be made by the auditor involving similar payments.
These allowances in all cases were stopped by order of the department from May 18, 1920, the date of the act to provide temporarily for increased compensation to officers and enlisted men of the several branches of the military service.
Early information as to the action of your office in this connection is requested.
The disbursing officer concerned has been advised of this action.
In the decision of the Comptroller of the Treasury, 26 Comp. Dec., 195, dated September 16, 1919, the question for determination was whether the Secretary of the Navy has authority under the appropriation “Pay, miscellaneous," act of July 11, 1919, 41 Stat., 131, authorizing “special allowances for maintenance to officers and enlisted men of the Navy and Marine Corps serving under unusual conditions,” to grant to officers and enlisted men of the Navy and
Marine Corps serving in foreign countries allowances that would bring their compensation, measured in Chinese silver dollars (the currency in which their salaries have been paid) up to what their pay would have been at the prewar value of $0.43 United States currency for a Chinese silver dollar. You were advised by the Comptroller in that decision that the determination of the question whether service is “under unusual conditions” is within the discretion of the Secretary of the Navy, but that authority to grant such special allowance did not authorize the Secretary to grant an allowance that would bring the compensation of officers and men so serving up to their prewar value in Chinese silver dollars. The reason for such limitation apparently was that such measure of maintenance allowance would result in an increase of pay which was not the legislative intent.
I agree with the Comptroller's statement in said decision that the determination of the question whether the service is “under unusual conditions” as contemplated in the appropriation act is within administrative discretion. I see no reason, however, why the measure thereof is not also left in the first instance to administrative action to be exercised, of course, with due regard to the conditions which justify the allowance. Since the law leaves the determination of the conditions under which such allowance may be paid and the amount thereof to administrative determination it would seem that the method or basis for determining the amount is by implication also left to administrative determination.
Any indefinite money allowance which is not in lieu of, nor additional to, a specific allowance must necessarily partake of the nature of an increase in compensation regardless of the method by which its measure is determined. Such was the character of this allowance, the intent and purpose of which was to grant relief to officers and men serving under conditions which adnormally increased their living expenses.
In granting an allowance under the authority of the act of July 11, 1919, some basis for determining the amount of the allowance necessarily had to be adopted, and since the “ unusual conditions” under which the officers and men were serving were due to the increased cost of Chinese silver dollars it seems just and equitable to have based the special allowance on such increase the results of which it was intended to relieve. Such determination of the measure of the allowance is not different in principle from a per diem allowance, or an allowance based on rank or rating, so long as it is paid as an allowance separate and distinct from pay.
The method of thus basing the allowance upon a comparison of the value of Chinese silver money prior to 1916 with its value dur