purchase of baseball equipment as an expense of such rehabilitation. The question of the use of the appropriation for recreational equipment as part of the medical treatment of trainees was not raised in that case.

The appropriation for expenses of vocational training for the current fiscal year does not provide for medical treatment of trainees, and therefore is not available for the expense of recreational equipment as an aid to such treatment. The appropriation for medical and hospital services, however, is available for payment of such expense as part of the treatment of beneficiaries of the bureau, including vocational trainees. Where, as in this case, the trainees are in resident vocational schools undergoing medical care and followup treatment, there is no legal objection to purchase from the appropriation for medical and hospital services of recreational equipment certified by medical officers of the bureau to be useful and reasonably necessary to such care and treatment.

ACCOUNTABILITY FOR MISAPPROPRIATED PROPERTY. Where an officer of the Army misappropriates and sells public property and converts the proceeds thereof to his own use the amount with which he is to be charged and held responsible is the actual value of the property so misappropriated and not the amount of money received therefor by him. Decision by Comptroller General McCarl, January 18, 1923.

Charles E. Schwarz, formerly first lieutenant, Quartermaster Corps, requested October 21, 1922, a review of settlement W-150096, dated August 15, 1922, because of an excessive stoppage against his pay to cover the value of Government property misappropriated by him.

After debiting claimant to the extent of $2,500 as due the United States for 146,000 pounds of steel rails, the sum of $47.50 was allowed in the settlement of August 15, 1922, with the statement that: Claim for difference between $47.50 and $1,470 is disallowed for reasons as follows: Claimant is held responsible for misappropriation of Government property in the amount of $2,500 as shown above.

It appears that Lieutenant Schwarz was transportation officer at the Army supply base, Port Newark, N. J., and that on December 15, 1920, was tried by a general court-martial at Governors Island, N. Y., and found guilty of willfully misappropriating and selling approximately 146,000 pounds of used steel rails belonging to the United States and valued at about $2,500, for which the said Schwarz received and immediately converted to his own use and benefit the sum of $1,300; that he did also knowingly and unlawfully apply to his personal use $830.50 received from the Willys Corporation, Elizabeth, N. J., in payment on a lease of a Government-owned locomotive crane, and $638, moneys of the United States furnished and intended for the use of the military service. The sentence of dis

missal and confinement at hard labor for three years was approved to take effect September 29, 1921. General Court Martial Order No. 70, War Department, September 26, 1921. There had accrued to September 29, 1921, date of claimant's dismissal from the service, pay and allowances in the sum of $2,649.04, from which was deducted $101.54 for rations furnished, leaving a balance due him of $2,547.50, which amount per voucher No. 3524, December, 1921, accounts of Maj. E. O. Hopkins, Finance Department, was taken up in that officer's quartermaster collections, to apply toward the existing indebtedness to the United States.

During the investigation of the matter it appears that the sum of $1,470, of which $832 represented crane-hire money and $638 ticket money, was taken from the safe of Lieutenant Schwartz in the office at the Port Newark Terminal, New Jersey, for which he was given. a receipt on November 17, 1920, by Capt. W. E. Cashman, Quartermaster Corps, and it was that amount for which claim was originally made.

The Chief of Finance reported on December 22, 1922, that the records of his office show claimant indebted to the United States in the sum of $2,768.50, in satisfaction of which should be applied the $832.50 and $638 refunded by the officer to Captain Cashman. As the amount of money received from the lease of the crane which the officer was found guilty of having misappropriated was $830.50, credit must be limited thereto. Considered together with the sum of $638, refunded as ticket money, the total credit to be given is $1,468.50. According to the statement of the Chief of Finance that the amount charged against claimant was $2,768.50, there would still remain unsatisfied the sum of $1,300, which the officer was found guilty of actually receiving from the sale of the rails and applying to his own use. The claimant contends that he should have been debited in the settlement with the amount he received, namely, $1,300, instead of $2,500 which the court-martial order cited as the value of the rails.

It is provided in section 1138, Revised Statutes, that:

No officer belonging to the Quartermaster's Department, or doing the duty of a quartermaster or assistant quartermaster, shall be concerned, directly or indirectly, in the purchase or sale of any article intended for or appertaining to said department of service, except on account of the United States; nor shall any such officer take or apply to his own use any gain or emolument for negoti ating or transacting any business connected with the duties of his office, other than that which may be allowed by law.

By section 1139, Revised Statutes, the Quartermaster General, under the direction of the Secretary of War, is authorized to prescribe and enforce a system of accountability for all quartermaster's supplies to the Army or to officers.

Accountability and responsibility devolve upon any person to whom public property is intrusted and who is required to make

returns therefor, and responsibility without accountability devolves upon one to whom such property is intrusted but who is not required to make returns therefor, paragraph 657, Army Regulations, 1913. Should an officer charged with public property fail to render the prescribed returns thereof within a reasonable time, a settlement of his accounts will be made by the proper bureau of the War Department, and the money value of the property with which he is charged will be reported against him for stoppage, paragraph 700, Army Regulations, 1913.

These provisions were incorporated in the Manual for the Quartermaster Corps, 1916, as paragraphs 2026 and 2008, respectively, for the guidance of that branch of the service.

The value of a commodity is its estimated worth, or the amount which can be obtained by the owner in exchange when placed upon the market. It is that amount and not what was received by the officer in consummation of the fraudulent transaction that should be charged against him.

The specifications of the general court-martial stated the appraised value of the rails to the Government to be $2,500, and settlement must be made accordingly.

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

APPROVED SENTENCES OF DECK AND SUMMARY COURTS-MARTIAL-EFFECT OF SETTING ASIDE OF, FOR PAY PURPOSES.. The setting aside by the Secretary of the Navy of the proceedings of a deck or suminary court, pursuant to the act of February 16, 1909, 35 Stat., 621, does not restore pay theretofore forfeited under a sentence approved and carried into effect prior to the setting aside of the proceedings as prescribed in the act of February 16, 1909, 35 Stat., 623, as amended by the act of August 29, 1916, 39 Stat., 586, and pay checked pursuant to such an approved sentence prior to the setting aside of the proceedings may not be restored because of such setting aside; if the sentence in itself, apart from the action of the Secretary as to setting aside of the proceedings, be absolutely void, as distinguished from merely erroneous or voidable, no forfeiture of pay has occurred thereunder, and any pay checked as such should be restored.

Comptroller General McCarl to the Secretary of the Navy, January 19, 1923. I have your submission of September 7, 1922, requesting decision whether the setting aside by you of the proceedings, findings, and sentences of summary or deck courts after their approval by the convening authority and the carrying of them into effect, either in whole or in part, entitles the person in whose case you have thus acted to have restored any amount that may have been withheld by the carrying into effect of the sentence prior to your action in the matter.

The present submission states that the instructions issued "cautioned the naval service that sentences of courts-martial (ex

cept where such sentences would result in the bad-conduct discharge of men not on first enlistment) are carried into execution upon the approval of the convening authority (or the immediate superior in command), and the Secretary of the Navy is therefore precluded from exercising his power to remit or mitigate the sentences of such courts-martial except such portions thereof as have not been fully executed," but that "distinct and separate from this power of the Secretary of the Navy is the power to review the legal aspects of courts-martial and to determine under the provisions of section 9 of the act of February 16, 1909, 35 Stat., 621, whether or not the trial was legally conducted and whether or not the sentence is one which may be administered under the statutes."

The submission concludes that in so far as the rulings of the Comptroller of the Treasury and the General Accounting Office are concerned, the remission or mitigation of the sentence of a court-martial by the Secretary of the Navy is of effect to restore only the unexecuted portion thereof and have reference only to those courts-martial which are in due form and legally correct, but that the setting aside of the sentence of a court-martial because of legal defects results in a sentence being without effect and void, and for that reason the restoration of such sums as may have been checked against the pay of the person involved is merely an adjustment made necessary by accounting procedure, and the action of the Secretary of the Navy in such cases is to be clearly recognized as in nowise similar to the remission or mitigation of a sentence which is legally correct and which can be effective only upon such portion of the sentence as remains unexecuted..

The sentence of a deck court may by express statutory authorization be carried into effect or execution upon the approval of the convening authority or his successor in office, and the sentence of a summary court upon said approval, with, in addition, the approval of his immediate superior in command if other than such convening authority or successor, independently of action by the Secretary of the Navy in the matter. Act of February 16, 1909, 35 Stat., 623, as amended by act of August 29, 1916, 39 Stat., 586. See also Naval Courts and Boards, pages 61, 215, and article 53, section 1624, Revised Statutes.

Notwithstanding, however, the carrying of said sentences into effect in whole or in part as indicated, the Secretary of the Navy is expressly authorized to "set aside the proceedings" of the deck or summary courts imposing them, or as to the sentences "remit or mitigate" them in whole or in part. Section 9, act of February 16, 1909, 35 Stat., 621.

Whether, when the Secretary of the Navy has set aside the proceedings of deck or summary courts, forfeitures of pay of men in the

naval service which have become executed by the carrying into effect of the approved sentences of said courts may be restored depends upon whether the sentences in themselves, apart from the action of the Secretary of the Navy therein, are absolutely void as distinguished from merely erroneous or voidable. If void there has been no forfeiture of any pay under them while in the service and any pay checked as a forfeiture should be restored. If, upon the other hand, the sentences in themselves were valid or voidable ones and in the carrying of them into execution pay has in fact become forfeited prior to the setting aside of the proceedings, there can be no restoration of it and the setting aside of the proceedings creates no right to it.

Whether the approved sentence be valid or void or voidable depends, of course, upon whether the deck or summary court imposing it possessed jurisdiction to impose it and in doing so acted within its lawful scope. If said court possessed jurisdiction, the approved sentence is not voidable merely because of the defective exercise by the court of its jurisdiction, and whatever was done that the court could do must be presumed to have been properly done.

The statute confers upon the Secretary of the Navy authority to "set aside the proceedings" of "any naval court-martial," and neither specifies the causes for which that may be done nor limits the doing so to the proceedings only of deck and summary courts the sentences of which it expressly authorizes to be carried into effect independently of action by the Secretary of the Navy in the matter. Act of February 16, 1909, supra, as amended.

If the proceedings of the summary or deck courts are set aside for causes other than those rendering the approved sentences imposed absolutely void-as distinguished from merely erroneous or voidable-pay which was forfeited by the carrying into effect of such sentences prior to the setting aside of the proceedings can not be restored. On the other hand, if such proceedings are set aside for causes which in themselves render such approved sentences absolutely void, any pay checked during service because of such sentences prior to the setting aside of the proceedings has not been forfeited and may be restored.

MEDICAL TREATMENT WHILE ON FURLOUGH-ENLISTED MEN OF ARMY.

A pass issued to an enlisted man of the Army for 24 hours or over is a furlough within the meaning of the act of July 9, 1918, 40 Stat., 866, and payment for private medical treatment received by an enlisted man while so absent may not be made from public funds.

Decision by Comptroller General McCarl, January 20, 1923.

Harry Beebe, formerly private, Twenty-first Company, Sixth Training Battalion, One hundred and fifty-first Depot Brigade, re

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