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

ing the period in question formed a definite rule for fixing an allowance, and, being apparently just and reasonable, it can not be said to be unauthorized. In so far as the decision in 26 Comp. Dec., 195, is in conflict herewith, it will not be followed.

RELEASE FROM ACTIVE DUTY-ARMY OFFICER.

The assignment of a retired Army officer to active duty and his right to the full pay and allowances of his grade by virtue of act of May 18, 1917, 40 Stat., 76, terminate upon the date of the order relieving him from active duty if the conditions named in the order are otherwise fulfilled, and the date the officer receives the order is immaterial.

Decision by Comptroller General McCarl, August 12, 1921:

Col. John A. Dapray, United States Army, retired, applied June 29, 1921, for revision of the action of the Auditor for the War Department in disallowing by settlement No. 99198, dated July 29, 1920, his claim for the active-duty pay and allowances of his grade January 27 to February 24, 1919, less retired pay received during the period, because of his failure to receive notice until February 24, 1919, of his relief from active duty by order dated January 24, 1919, at which date he was ill and not in actual performance of duty.

Claimant was placed on active duty by paragraph 337 of Special Orders, No. 208, dated War Department, Washington, D. C., September 5, 1918, as follows:

By direction of the President, Col. John A. Dapray, United States Army, retired, is relieved from duty as professor of military science and tactics at the Catholic University of America, Washington, D. C. He is assigned, under section 1, paragraph 3, act of Congress approved May 18, 1917, to active duty as commanding officer of the Students' Army Training Corps unit at that institution.

The statute cited, 40 Stat., 76, entitled "An act to authorize the President to increase temporarily the Military Establishment of the United States," authorized the President, by paragraph 3, section 1, to secure officers for the increased forces therein provided, among other methods, "by assigning retired officers of the Regular Army to active duty with such force with their rank on the retired list and the full pay and allowances of their grade."

Pursuant to the order of September 5, 1918, Col. Dapray took command of the unit of the Students' Army Training Corps at the university named. On or about November 29, 1918, he became ill and was confined to his home in the city of Washington for several months, being reported as "sick in quarters" on the reports of his organization so long as it existed.

Claimant's command was during December, 1918, and January, 1919, demobilized, subordinate officers with the command were either relieved or discharged, and finally, on February 20, 1919, the contract

1

of the contract surgeon employed for duty with the command was terminated. Claimant states that this contract surgeon is the last person upon whom the command of the organization devolved during his absence on account of illness. Because of inquiry by telephone in February from the Zone Finance Office as to his status claimant wrote The Adjutant General as to the matter and on February 24, 1919, received in response a copy of paragraph 154, Special Orders, No. 20-0, dated War Department, Washington, D. C., January 24, 1919, as follows:

Each of the following-named retired officers is relieved from duty at the institution specified after his name, and from further duty with the Committee on Education and Special Training, and will proceed to his home, and upon arrival there will report by telegraph to The Adjutant General of the Army. Each of the officers named is relieved from active duty, to take effect upon his arrival at his home:

Colonel John A. Dapray, Catholic University of America, Washington, D. C. Claim is for active-duty pay and allowances to the date of receipt of this order in the circumstances already indicated, and the contention is made that claimant was assigned to active duty until the actual receipt of the order relieving him there from.

The statute under which he was placed on active duty authorizes the full pay and allowances of his grade while assigned to active duty. It has been held, 8 Comp. Dec., 50, under the act of November 3, 1893, 28 Stat., 7, authorizing the full pay and allowances of their grade to retired officers detailed as professors of military science and tactics" when so detailed" that they were entitled to the activeduty pay and allowances from the date of promulgation of the order so detailing them.

By the same reasoning, under a statute authorizing the full pay and allowances to retired officers assigned to active duty, active-duty pay accrues while so assigned, and only while so assigned, and the failure to receive notice of relief from active duty in the circumstances of this case can not continue the assignment of the officer to active duty.

The fact of assignment to active duty is established by the orders of the War Department. In this case the order of September 5, 1918, assigned claimant to active duty and the order of January 24, 1919, relieved him from active duty effective upon his arrival home. As claimant was then confined to his home because of illness the latter order might be construed as a relief from active duty on the date of its promulgation. However that may be, I shall not now question the allowance by the disbursing officer in paying claimant's January voucher of two days for the receipt of the order and compliance therewith.

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

LONGEVITY PAY-NATIONAL GUARD SERVICE.

An Army officer who entered the Federal service otherwise than through draft with the National Guard, either as an officer or private, before July 9, 1918, is entitled under the act of that date, 40 Stat., 875, to count prior service in the National Guard or State militia for the purpose of computing longevity pay from July 9, 1918, until the date of the act of June 4, 1920, 41 Stat., 785, which act limits credit for longevity pay purposes to active-duty service under appointment from the United States Government in the Regular, provisional, or temporary forces.

Decision by Comptroller General McCarl, August 16, 1921:

Richard J. Arnold, of 2380 Fairfax Street, Denver, Colo., applied July 22, 1921, for revision of the action of the Auditor for the War Department in the settlement (No. 758096, dated April 14, 1921) disallowing his claim for longevity pay as a commissioned officer of Infantry, National Army.

The adjutant general of the State of New York has certified as follows:

This is to certify that according to the records of this office Richard J. Arnold enlisted in Co. B, 23rd Infantry, National Guard, N. Y., April 2, 1906; promoted corporal Nov. 1, 1909; full and honorable discharge, January 2, 1912. The military records on file in the War Department Division of this office show that he enlisted September 22, 1917, at Camp Upton, N. Y., as private in Company C, Three hundred and fifth Infantry; promoted sergeant November 1, 1917; left the United States for foreign service April 16, 1918, and was discharged in France July 12, 1918, to accept commission as second lieutenant, National Army; and that he was paid on said discharge as of the first enlistment period up to and including July 12, 1918.

The following is an extract from Special Orders, No. 182, General Headquarters, American Expeditionary Forces, France, dated July

1, 1918:

Pursuant to authority contained in War Department cable No. 1431, May 31, 1918, the following-named graduates of the Third Officers' Training School are temporarily appointed second lieutenants, National Army, as of June 1, 1918, subject to confirmation by the War Department, and will report as indicated therein for assignment to duty: * To commanding general 28th Division, for assignment to Infantry: R. J. Arnold, sergeant, Co. C., 305th Inf. The travel directed is necessary in the military service.

By command of General Pershing.

*

By Col. Stanton, disbursing officer, Quartermaster Corps (voucher 3918), said Arnold was paid as second lieutenant of less than five years of service from July 13 to 31, 1918, inclusive, and in said. voucher over his signature is his certificate in writing, as follows:

I certify that I have accepted a commission as 2nd Lt., Infantry, N. A., July 13, 1918.

He was promoted to first lieutenant, effective November 9, 1918, arrived in the United States May 30, 1919, and was honorably discharged from the service August 31, 1920. He was paid as an officer of less than five years of service.