The time actually consumed by the Government in making the several tests, and notifying the contractor of the result thereof, was as follows:

It appears that by November 13, 1912, enough armor had been shipped by the contractor to bring its deliveries up to 2,030.20 tons, so that if the first 6-month period was to be extended for the 40 days claimed as shown by the above tables, the contractor had in fact delivered more than 1,800 tons during the said first 6 months, and was not liable in damages or otherwise as for delays in the delivery of armor during said period. The 40 additional days claimed, if properly allowable, would extend the first 6-month period to December 3, 1912.

The tables supra are made up from figures furnished by the contractor, but their substantial accuracy has been otherwise verified.

*

The claim presented naturally hinges upon the construction properly to be placed upon the language of paragraph 118 of the specifications, which provided that "the time elapsing between the delivery of a plate for ballistic test and the date of receipt of notification of the acceptance of the ballistic group on the results of the test" should not be counted "in the term for damages on any of the armor contained in that ballistic group." The Navy Department contends that this language is to be construed as excluding any allowance of time because of tests that were unsuccessful, i. e., for the time elapsing from date of delivery of plates to date of notification of the failure of test. On such account it has allowed credit only for such time as the Government unreasonably consumed in making tests.

What construction is properly to be placed on the language used by the contracting parties is, of course, a matter of individual opinion, and while I have great respect for the opinion of the Navy officers who have construed the language as meaning what I have above set out, I am unable to agree with them. All tests, whether "successful" or whether they "failed," except when made under certain conditions that need not be here noticed, were to be made by the Gov

ernment and "at the expense of the department"; while such tests were being made and until notified of the results thereof no delivery of the group of armor from which test piece was selected could be made by the contractor or any important work done thereon or in connection therewith. The time required by the Government for testing a piece that failed was just as much of a dead loss to the contractor-and just as effectively stopped operations under the contract while it was in progress-as equal time required for a successful test, and in either case the delay was occasioned by the Government, not the contractor.

I see no more reason for allowing credit in the one case than in the other, and I think the contract provisions are to be construed as making no such differentiation. The time elapsing between date of delivery of test pieces and the date of receipt of notification of "acceptance" of the lot from which taken may be construed, with as little violence to the terms employed, as meaning "acceptance or failure" as it might to mean simply the time consumed in making "successful" tests.

Read in the light of the preceding paragraph, I think the contract is to be construed as relieving the contractor for all time consumed by the Government in making, on its own motion, the ballistic tests. And allowing the 26 additional days claimed on such account operates to extend the first six-month period beyond November 13, 1912, when the delivery of more than the required 1,800 tons was completed, so that in fact there was no delay in the delivery of said 1,800 tons for which the contractor was responsible in damages or otherwise. On such account it is unnecessary to consider the claim as to 12 days additional.

The contractor, on all the facts as I understand them, is quite clearly entitled to be paid the full sum retained as on account of such delays. The auditor's action in disallowing its claim therefor is disaffirmed.

USE OF PUBLIC HEALTH SERVICE APPROPRIATIONS TO PAY FOR TREATMENT OF SEAMEN AT PRIVATE HOSPITALS.

The Public Health Service has not undertaken to furnish relief at all places where seamen may happen to become disabled, and its appropriations are not available to pay for relief furnished by private hospitals unless furnished at the direction or under proper authority of some officer of said service.

Comptroller Downey to the Secretary of the Treasury, September 22, 1914:

By your indorsement of the 15th instant my decision is requested as to whether the United States Public Health Service is authorized to pay the Leonard Hospital, of Troy, N. Y., for the care and treat

ment of Secundo Minos and Andrew Abolin, members of crews of vessels belonging to the Engineer Corps, United States Army.

It will be assumed for the purpose of this decision that these two men were seamen entitled to treatment without charge at hospitals maintained by the Public Health Service. But the hospital at which they were treated was not maintained by said service, and it does not appear that they were treated at the request or by the authority of any officer of said service. Therefore, the only theory upon which the bills in question could be paid from the appropriations for the Public Health Service (act June 23, 1913, 38 Stat., 24) is that said appropriations are available to pay for the care and treatment of all disabled seamen entitled to marine-hospital relief regardless of where or by whose authority such relief is furnished. I do not understand that such is the intent of the laws relating to the Public Health Service. Said service maintains its own hospitals at some places and has officers stationed at various other places where arrangements are made with private hospitals for the care and treatment of seamen and others entitled to the benefits of said service; but it has not undertaken to furnish relief at all places where seamen may happen to become disabled, and it assumes no responsibility for the expense of relief furnished by private hospitals unless furnished at the direction or under the proper authority of some officer of said service.

Upon the facts stated the payment of the bills in question could not be authorized, but there is room for the inference that if all the facts were known the conclusion might be otherwise.

The statement is made that "the local official of the Public Health Service was notified of the action taken in the premises and the case thereby was transferred to his care.”

Whether the action taken was approved by the Surgeon General or other competent authority and treatment of these men in this hospital authorized is not shown.

If it is desired, further facts may be submitted the sufficiency of which to authorize payment will receive consideration.

COMPUTATION OF ENLISTMENT PERIODS OF ENLISTED MEN OF THE MARINE CORPS.

For the purpose of fixing the date upon which marines become entitled to continuous-service pay under the act of May 11, 1908, credit should be denied to them in the computation of their enlistment periods terminating prior to April 27, 1914, for time lost therein by unauthorized absences in excess of one day and in those terminating subsequently for time lost therein for said reason, and for the additional reasons enumerated in the act of that date.

Comptroller Downey to the Secretary of the Navy, September 23, 1914:

I have your letter of the 10th instant asking whether, for the purpose of determining the date upon which enlisted men of the Marine

Corps become entitled to continuous-service pay, they shall be denied credit for time lost by unauthorized absences in excess of one day on account of disease resulting from their own intemperate use of drugs or alcoholic liquors or other misconduct while in confinement awaiting trial or disposition of their case where the trial results in conviction and while in confinement under sentence.

Enlisted men of the Marine Corps are entitled to the same pay for reenlisting as enlisted men of like grades of the Infantry of the Army.

Enlisted men of the Army are entitled under the act of May 11, 1908 (35 Stat., 109), to continuous-service pay on reenlistment within three months after an honorable discharge "at the termination of an enlistment period."

At the time of the passage of the act of May 11, 1908, the "term" of enlistment of enlisted men of the Army was three years. (Act of Aug. 1, 1894, 28 Stat., 216.) By the act of May 11, 1908, it was provided that an "enlistment" should not be regarded as complete until time lost during an "enlistment period" by unauthorized absences in excess of one day had been made good.

Subsequently the act of August 24, 1912 (37 Stat., 690), effective November 1, 1912, changed their "term" of enlistment to seven years and provided that for all enlistments thereafter accomplished under that act "four years shall be counted as an enlistment period in computing continuous-service pay."

The act of April 27, 1914 (Public, No. 91, pp. 3, 4), repeated the requirement contained in the act of May 11, 1908, for making good time lost and added thereto additional requirements for the making good of lost time. It provides

"That an enlistment shall not be regarded as complete until the soldier shall have made good any time in excess of one day lost by unauthorized absences or on account of disease resulting from his own intemperate use of drugs or alcoholic liquors or other misconduct, or while in confinement awaiting trial or disposition of his case if the trial results in conviction or while in confinement under sentence."

The effect of these enactments is that the Army "enlistment period" the unit for the computation of continuous-service payis a term of years of service as distinguished from a term of calendar years:

First. Those under the act of May 11, 1908, for three years of service without loss of time for "unauthorized absences exceeding one day."

Second. Those under the act of August 24, 1912, for four years of similar service.

Third. Those under the act of April 27, 1914, for four years of service, without loss of time (1) by unauthorized absences in excess of one day, (2) on account of disease resulting from the soldier's own intemperate use of drugs or alcoholic liquors or other misconduct, (3) while in confinement awaiting trial or disposition of his case if the trial results in conviction, and (4) while in confinement under sentence.

It follows that enlisted men of the Army can not terminate their enlistment periods within the meaning of the continuous-service pay statute of May 11, 1908, and can not acquire a right to the continuous-service pay therein authorized, until they have thus made good time lost therein.

At the time of and since the enactment, of the act of May 11, 1908, enlistments in the Marine Corps have been by an independent statute applying exclusively to the Marine Corps fixed at a "period of not less than four years." (Act of Mar. 3, 1901, 31 Stat., 1132.)

In order that the enlistment periods of marines might correspond to those of enlisted men of the Army, and they thereby receive under the act of May 11, 1908, as nearly as possible the same continuousservice pay as the latter, it was decided that the enlistment periods of marines should consist of three years without regard to discharge and reenlistment, except that they must remain continuously in the service. (15 Comp. Dec., 79; 18 id., 714, 715; 20 id., 150, 151, 285, 286.)

The enlistment periods of marines continued to be so computed until the completion of the enlistment periods in which they were serving on November 1, 1912, date of taking effect of the act of August 24, 1912, changing the enlistment period for the Army to four years of service in lieu of three. It was then decided that marines in service at the time of the enactment of said act should enter upon a four-year enlistment period, without discharge and reenlistment, immediately upon the termination of the three-year enlistment period in which they were serving on November 1, 1912. (20 Comp. Dec., 150, 152, 153.)

Since the act of May 11, 1908, and until recently, marines were in fact held in the service after the expiration of the four-year period for which they enlisted for a time equal to the time lost by them by unauthorized absences in excess of one day.

On May 18, 1914, an opinion was rendered by the Judge Advocate General of the Navy to the effect that the requirements in the act of April 27, 1914, relative to making good time lost by enlisted men of the Army, did not apply to the enlistments of marines, and that the detention in the service of marines for such purpose after the expiration of the four-year period for which they enlisted was unauthorized.