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holding at the same time the office of clerk of the court and a cɔmmission 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 relative 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 temporary 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 paymasters, 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 have 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

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 Souge, 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" (Márch 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 12691, 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

(AIR SERVICE), 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.

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.

W. B BURTT, Colonel, Signal Corps.

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 OFFICERS AND ENLISTED MEN SERVING UNDER UNUSUAL CONDITIONS.

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

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