claimant was discharged under honorable conditions and that nothing had been found of record to show that he at any time refused to wear his uniform or perform such military duties as were assigned to him. After claimant's transfer on August 31 to the date of his discharge his military duties appear to have been those of a noncombatant.

On March 8, 1920, claim was made to the Auditor for $60 bonus. This claim was disallowed, April 15, 1920, on the ground that claimant was not in an honorable status within the meaning of the act of February 24, 1919, at the time of his discharge. On March 12, 1921, a disbursing officer of the Army, by check, paid claimant the $60 bonus. In settlement No. 114487, dated June 25, 1921, the auditor deducted this payment from travel pay found due, because the bonus. had been previously disallowed by the auditor and no revision thereof had been applied for. The payment by the disbursing officer after disallowance by the auditor was an irregular procedure, but does not affect the right of the claimant to this bonus.

The precise question presented for decision is whether claimant's religious tenets which made of him a conscientious objector to bearing arms disentitles him to the $60 gratuity, when he performed such noncombatant services as were assigned to him while in the military service and from which he was honorably discharged. The controlling statute, section 1406 of the act of February 24, 1919, 40 Stat., 1151, so far as is material to this question, reads:

That all persons serving in the military forces of the United States during the present war who have, since April 6, 1917, resigned or been discharged under honorable conditions, * * shall be paid, in addition to all other amounts due them in pursuance of law, $60 each

*

Section 4 of the act of May 18, 1917, 40 Stat., 78, exempted from combatant military service members of any well-recognized religious sect or organization then organized whose existing creeds or principles forbid its members to participate in war in any form or whose religious convictions are against war or participation therein in accordance with the creed, or principles, of their religious organizations, but such persons were expressly made subject to such service as the President should declare to be noncombatant.

The claimant was honorably discharged. During his period of military service he wore the uniform of the United States and performed such military duties as were assigned to him. Provision was made for noncombatant service on the part of those whose religious creeds or principles were against combatant service, and in so far as the payment of the $60 gratuity is concerned it is immaterial whether the claimant served in the combatant or noncombatant arms of the military service.

The settlement is modified and a difference of $60 is certified due claimant.

CIVILIAN EMPLOYEE SENTENCED BY COURT-MARTIAL.

A civilian employee of the Army in France, subject to military control by virtue of article 2, act August 29, 1916, 39 Stat., 651, who is unable to perform the duty for which employed by reason of his misconduct resulting in trial, conviction, and sentence to confinement by court-martial, is not entitled to compensation for the period absent from his duty by reason of such confinement.

Decision by Comptroller General McCarl, August 22, 1921:

The Chief of the War Department Division submitted August 3, 1921, for approval, disapproval, or modification a memorandum decision by the Law Board on the question whether a civilian employee of the Quartermaster Corps of the Army is entitled to pay while in military confinement pursuant to a sentence of general courtmartial.

A classified civil-service employee holding the position of clerk in the Quartermaster Corps of the Army stationed at St. Nazaire, France, was tried by general court-martial and convicted of violating certain Articles of War and sentenced "to be confined at hard labor at such place as the reviewing authority may direct for 5 months and to forfeit $300.00 of his pay." The findings and sentence were approved May 17, 1919, and the prison camp, base section No. 1, designated as place of confinement. The employee was a person subject to the Articles of War. Article 2, act of August 29, 1916, 39 Stat., 651.

”

On July 23, 1919, the Secretary of War approved a recommendation of the Judge Advocate General that the unexecuted portion of the sentence be remitted. Voucher No. 10639, September, 1919, accounts of Sam Alexander, major, S. C., covers pay of this employee from May 9 to September 11, 1919, inclusive. A deduction was made thereon in the sum of $300, to cover the court-martial forfeiture. The Law Board concludes:

The civilian being subject entirely to military law could be tried by a military court for any violation of the Articles of War. That tribunal could pronounce a sentence according to the gravity of the offense, even to the extent of fine, imprisonment, or both, or discharge from the service, the same as in case of an enlisted man. The fact that the sentence was to forfeit only a specific amount of his pay would by inference appear to be the intention to let his pay continue, while in confinement as a matter of discipline, the same as an enlisted man, both being under the same military control. The amount claimed should be refunded.

In the military and naval services the right to compensation rests upon, and is governed by, certain statutory provisions, or regulations made in pursuance thereof, which specially apply to such service. These fix the pay to which officers and men belonging to the naval or military service are entitled, and the rule to be deduced therefrom is that both officers and men become entitled to the pay thus fixed so long as they remain in their respective services, whether they

actually perform service or not, unless their right thereto is forfeited or lost in some one of the modes prescribed in the provisions or regulations adverted to.

On the contrary the theory of civilian employment is one of service to be rendered at the compensation fixed by statute or by agreement between the proper authority and the employee. If the employment consists of an office authorized by statute with a definite fixed compensation it seems evident that the general principles of law applicable to employer and employee or master and servant would not be applicable.

However, where the employment is one of agreement between the proper authority and the person to be employed it is a well-settled principle of law that one who is rendered incapable through his own fault or negligence of fulfilling his part of a contract can recover nothing under that contract. When by a person's misconduct he fails to render the service called for by his contract of employment he can not hold the Government to performance of its part of the contract, i. e., payment of compensation for services to be rendered.

I am therefore of the opinion that a civilian employee is not entitled to compensation during a period of confinement while waiting trial if subsequently convicted or under sentence by a courtmartial of competent jurisdiction.

The sentence was remitted by authority of the Secretary of War July 23, 1919, after which date claimant, if no other objection existed, was entitled to his pay.

The decision of the Law Board is disapproved.

FRENCH EMPLOYEES OF AMERICAN EXPEDITIONARY FORCES. The procès verbal agreement between the representatives of the American forces and the officials of the French Government that claims for arrears of compensation due French workers employed by the American Expeditionary Forces should be filed before November 11, 1919, does not release the United States from liability for such claims filed after that time, and such claims, if based upon agreements entered into prior to November 12, 1918, may be adjusted by the Secretary of War under section 3, act of March 2, 1919, 40 Stat., 1273, and paid from the unexpended balance of the General appropriations, Quartermaster Corps, 1919," extended to June 30, 1922, by act of June 16, 1921, 42 Stat., 63.

66

Comptroller General McCarl to the Secretary of War, August 23, 1921.

I have your letter of August 6 requesting decision whether the procès verbal agreement between the French and American services dated at Paris October 24, 1919, precludes the payment of claims of French employees on account of services with the American Expeditionary Forces when said claims were not filed prior to November 12, 1919, and whether, if such claims are not barred, they are

payable from the unexpended balance of funds under the appropriation "General appropriations, Quartermaster Corps, 1919," which is continued on the books of the Treasury under authority of a provision in the act of June 16, 1921, 42 Stat., 63. You ask also whether said unexpended balance is available to pay like claims filed before November 12, 1919, where the contract of employment was entered into after November 11, 1918.

The procès verbal agreement referred to was nothing more than an understanding or agreement arrived at as a result of a conference between representatives of the American Expeditionary Forces and certain officials of the French Government for the publication of notices to the effect that no claims of the class under consideration would be received after November 11, 1919, by the bureau charged with the settlement in France of claims of French workers employed by the American Expeditionary Forces. The sole purpose of this arrangement was to expedite the settlement of such claims and the return of the American forces to the United States. The publication of the notices was not intended to and could not release the United States from its liability to the French employees on account of services rendered by them. You are advised, therefore, that the so-called agreement dated at Paris October 24, 1919, does not preclude the payment of claims of French employees filed subsequently to November 11, 1919, if such claims otherwise represent legal obligations against the United States.

The question as to the availability of the appropriation referred to in the first paragraph hereof for the payment of these claims depends upon whether or not said claims are such as the Secretary of War is authorized to adjudicate and settle under the act of March 2, 1919, 40 Stat., 1273.

Section 3 of said act provides:

That the Secretary of War, through such agency as he may designate or establish is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or nationals thereof, prior to November twelfth. nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for war purposes of supplies, materials, facilities, services or the use of property, or for the furnishing of any thereof by the United States to any foreign government or governments, whether or not such agreements or arrangements have been entered into in accordance with applicable statutory provisions; and the other provisions of this Act shall not be applicable to such adjustments.

The agreements made between the American forces and representatives of the French Government relative to the rates of compensation to be paid to French nationals employed by the American Expeditionary Forces and the contracts of employment made with

said nationals would appear to bring the claims of the French employees for arrears of compensation fairly within the provisions of the statute hereinbefore quoted. And since the provision in the act of June 16, 1921, makes the unexpended balances therein referred to available to pay claims adjusted under the said act of March 2, 1919, the unexpended balance of the appropriation "General appropriations, Quartermaster Corps, 1919," would appear to be available for payment of claims of the class now under consideration, provided the contract of employment was entered into prior to November 12, 1918, and the claims are adjusted by the Secretary of War or some agency designated or established by him for that purpose.

The appropriation in question is not available to pay claims for arrears of compensation under contracts of employment entered into after November 11, 1918, because the provision in the act of June 16, 1921, expressly provides that no part of the unexpended balances therein referred to "shall be used to pay any claim arising out of any contract or other obligation unless such contract or obligation was entered into subsequently to April 6, 1917, and prior to November 12, 1918."

TRANSPORTATION OF DEPENDENTS.

The act of May 18, 1920, 41 Stat., 604, as amended by act of June 4, 1920, 41 Stat.. 761. providing for transportation of dependents of officers and the first three grades of enlisted men, upon a permanent change of station, contemplates that such transportation be furnished at the same time as the change of station, or within a reasonable time thereafter; what is a reasonable time is primarily for determination by the Secretary of War, and there would be no objection to the issuance of regulations by the Secretary of War providing a time limit within which such transportation would be furnished and the conditions under which the time might be extended. 27 Comp. Dec., 510, 790, modified.

Comptroller General McCarl to the Secretary of War, August 23, 1921:

I have your letter dated August 12, 1921, reading as follows: Section 12 of the act of May 18, 1920, 41 Stat., 604, is worded as follows: "That hereafter when any commissioned officer, noncommissioned officer of the grade of color sergeant and above, including any noncommissioned officer of the Marine Corps of corresponding grade, warrant officer, chief petty officer, or petty officer (first class), having a wife or dependent child or children, is ordered to make a permanent change of station, the United States shall furnish transportation in kind from funds appropriated for the transportation of the Army, the Navy, the Marine Corps, the Coast Guard, the Coast and Geodetic Survey, and the Public Health Service to his new station for the wife and dependent child or children: Provided, That for persons in the naval service. the term permanent station,' as used in this section, shall be interpreted to mean a shore station or the home yard of the vessel to which the person concerned may be ordered: and a duly authorized change in home yard or home port of such vessel shall be deemed a change of station: Provided further, That if the cost of such transportation exceeds that for transportation from the old to the new station the excess cost shall be paid to the United States by the officer concerned: Provided further, That transportation supplied the wife or dependent child or children of such officer, to or from stations beyond the