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tirement, that the law has any application. In no other situation can retired officers not on active duty be allowed mileage; when not on active duty there is, in general, no element of “public business” in their movements from one place to another.
Upon a review of the matter, the settlement is sustained.
TRANSPORTATION OF DEPENDENTS OF OFFICERS OF THE NAVY
ON PERMANENT CHANGE OF STATION.
The detachment of an officer of the Navy from the vessel on which serving
with orders to proceed to his home and await orders is not a "permanent change of station" within the purview of the act of May 10, 1920, 41 Stat.,
604, and does not entitle him to transportation for his dependents. Comptroller General McCarl to the Secretary of the Navy, January 27, 1923.
I have your letter of November 15, 1922, requesting review of settlement No. N-54705, dated March 13, 1922, wherein was disallowed the claim of Commander Harlow T. Kays, United States Navy, for reimbursement of the cost of transportation of dependents from Phoenix, Ariz., to St. Louis, Mo., under orders of June 10, 1921, and wherein he was found to be indebted to the United States in the sum of $121.27, being the difference between the cost of transportation furnished from New York to Phoenix ($197.89) and the cost of transportation from New York to St. Louis, Mo. ($76.62).
It appears that under orders of May 19, 1921, Commander Kays was detached from the U. S. S. Rochester, at Newport, R. I., on June 2, 1921, and proceeded to his home, Phoenix, Ariz., to “await orders.” His dependents were furnished transportation from New York to Phoenix, Ariz. Under orders dated June 10, 1921, he reported on July 8, 1921, for duty as officer in charge of the Navy recruiting station, St. Louis, Mo. Transportation for dependents was furnished from Phoenix to St. Louis upon $134.52 having been deposited by Commander Kays with the issuing officer.
Section 12 of the act of May 18, 1920, 41 Stat., 604, provides for the furnishing of transportation in kind to an officer's wife and dependent children when an officer is ordered to make a permanent change of station. The act defined “permanent station ” to mean “ a shore station or home yard of the vessel to which the person concerned may be ordered.”
You state: This department has held that when an officer is detached from duty and ordered to his home to await orders he has been ordered to make a perma. nent change of station within the meaning of the act of 18 May, 1920. This department believes that this is an administrative question which must be subject to determination by this department, since the necessity frequently arises of issuing orders to officers detaching them from duty and requiring them to proceed to their homes to await orders. Such orders are not issued for the convenience of the officer but are issued for the convenience of this department in the proper administration of the Navy.
The holding that an officer's home was not a station is of long standing, supported by United States v. Phisterer, 94 U. S., 219, and the act of May 18, 1920, in specifically defining what shall be meant by “permanent station” brings its definition within this holding. In construing section 12 of the act of May 18, 1920, this long-standing holding has repeatedly been applied by the Comptroller of the Treasury and by this office, 27 Comp. Dec., 61, 391, 768; 1 Comp. Gen., 637, and unpublished decisions of May 22, 1922, and October 13, 1922, and I find nothing in the facts surrounding Commander Kays's case that will lead to the conclusion that his detachment under orders to proceed to his home to await orders effected a “permanent change of station" within the meaning of the terms of the 1920 law.
Upon this review no differences are found and the settlement is sustained.
ADVERTISING-DELEGATION OF AUTHORITY.
The requirement of section 3828, Revised Statutes, that advertising in news
papers may be done only pursuant to written authority of the head of the
Leslie Cramer, special disbursing agent, Alaskan Engineering Commission, applied January 8, 1923, through the chairman of that commission, for review of the action of the Interior Department Division in disallowing by settlement No. 1-17320, dated August 24, 1922, the sum of $329.92 paid for the publication in newspapers of advertisements for proposals to furnish supplies for the commission. The vouchers on which payments were made were supported by written orders signed by the general purchasing agent, Alaskan Engineering Commission, which were issued “by departmental authority dated March 11, 1915.” The authority cited is the following letter from the Secretary of the Interior to the chairman of the Alaskan Engineering Commission.
Hereafter the advertising necessary to the work of the Alaskan Engineering Commission will be under the supervision of the commission, and the several members of the commission are hereby authorized to select, and instruct its employees to use, for advertising purposes, such newspapers and other periodicals of local or general circulation in each locality as will sufficiently meet the requirements of law or the regulations or instructions of the commission and the department, and will convey the purpose of such advertisement to the public; provided, that not more than three newspapers shall be so selected in any one locality.
Acting on the authority of this letter the chairman of the commis. sion, by General Circular No. 18, dated March 29, 1920, authorized the following officers to sign orders for newspaper advertising: As. sistant chief engineer, engineer in charge of supplies, general purchasing agent, and the engineer in charge, northern division.
Section 3828, Revised Statutes, provides that, No advertisement, notice or proposal for any Executive Department of the Government or for any Bureau thereof, or for any office therewith connected, shall be published in any newspaper whatever, except in pursuance of a written authority for such publication from the head of such Department; and no bill for any such advertising, or publication, shall be paid, unless there be presented, with such bill, a copy of such written authority.
It has uniformly been held that the personal approval of the head of a department of each order for advertising is not required by this statute, but he may authorize such advertising in general terms and delegate to a subordinate the selection of the medium for the publication of same. See 19 Comp. Dec., 628, and the authorities cited therein. The order of March 11, 1915, authorized the commission to select newspapers and periodicals for advertising, and empowered the members to procure the publishing of such advertising as they deemed necessary, subject to the limitations in the order, without the further approval of the Secretary of the Interior. Since the duties of the commissioners rendered it impracticable for them to personally select the specific newspapers in which the advertising should be placed, they were authorized to assign that duty to the officers named in their order of March 29, 1920, and so long as the papers in which the advertising was placed were selected by these officers in accordance with the instructions given in the order of the Secretary of the Interior there was a substantial compliance with the requirements of the Statute. 10 Fed. Rep., 616; 13 Comp. Dec., 446.
Upon review the settlement is reversed and the sum of $329.92 is certified for credit in the disbursing agent's accounts.
DOUBLE COMPENSATION-RETIRED OFFICERS OF THE FIRE
DEPARTMENT OF THE DISTRICT OF COLUMBIA.
A retired captain of the fire department of the District of Columbia may be
employed and paid as watchman at $720 per annum in the Treasury Department while continuing to draw his retirement relief of approximately $78 or $79 per month, provided such duty as watchman is not incompatible with his status on the retired list for the purposes of the act of September
1, 1916, 39 Stat., 720. Comptroller General McCarl to the Secretary of the Treasury, January 27,
1923. I have your letter of January 10, 1923,'as follows: Application has been made to this department by W. J. Seitz, a retired captain of the fire department of the District of Columbia, for appointment to the position of watchman in the Treasury Department.
It has been represented to the department that Captain Seitz is not completely separated from the service, but is subject to call under the provisious of the act of Congress approved September 1, 1916.
His pay as captain of the fire department was $1,900.00 per apnum, and it appears that he receives a service pension of approximately $78.00 or $79.00 per month on having served in the District employ for nearly thirty years.
Your decision is requested as to whether the proposed transfer of Captain Seitz from his present status as a pensioned employee of the District government to a position of watchman at $720 per annum in this department would in any way destroy or affect his pension status. Your early decision in the matter will be appreciated.
The act of September 1, 1916, 39 Stat., 720, provides that any retired member of the police department or fire department of the District of Columbia receiving relief under the provisions of the act may under certain named conditions be called into service for such duty as his disability will permit his performing“ without compensation therefor.”
The submission refers to transferring this retired captain of the fire department from his retired status to a position on the Treasury Department roll. There appears no law authorizing such a transfer.
If the question is whether the retired captain may be employed and paid as watchman on the Treasury Department roll while continuing to draw his retirement relief from the District of Columbia, I see no legal objection to such employment and payment, provided that the duties of the position of watchman are found to be compatible with a retired status calling for active service with the District of Columbia under the statutory conditions.
WAR RISK INSURANCE-CORRECTION OF ERRONEOUS AWARDS.
Awards of compensation made by the Bureau of War Risk Insurance or by
the Veterans' Bureau may not be retroactively corrected by the director 80 as to reduce or discontinue compensation for any period for which compensation has been paid under the earlier erroneous award at the
time the correction is made. Awards of permanent total disability insurance by a former Director of the
War Risk Insurance Bureau or of the Veterans' Bureau, made under an erroneous interpretation of the law, may not be retroactively corrected by the present Director of the Veterans' Bureau to cover payments which
had been made under the former erroneous award before the correction. Erroneous awards of permanent total disability insurance made by the present
Director of the Veterans' Bureau based on errors of law or of fact may and should be corrected, and recovery should be made of the overpayments under the erroneous awards in all cases in which the failure to
recover would jeopardize the pecuniary interests of the United States. Comptroller General McCarl to the Director, United States Veterans' Bureau, January 29, 1923.
I have your letter of January 22, 1923, requesting decision relative to the right and duty of the Veterans' Bureau to institute procedure for the recovery of certain erroneous payments of compensation and insurance installments for permanent total disability, which payments were made on awards based upon Regulation No. 57 of the Bureau of War Risk Insurance, under which a presumption of permanent total disability was raised upon continuance of a condition of temporary total disability continuing for a certain specified time. This office held that provision of the regulation to be without authority of law, and therefore held it to be insufficient in itself to support payments of compensation and insurance, and declined to approve the regulation. 1 Comp. Gen., 31; 2 Comp. Gen., 99. You say
that you are in accord with the views of this office on this point and that all possible efforts are being made to bring bureau procedure strictly within the rules laid down in the decisions cited. The question now raised is whether in cases where payments have heretofore been made under awards based upon the said regulation the amount of such payments shall be charged against or recovered from the compensation or insurance beneficiaries to whom the erroneous payments were made.
As to compensation beneficiaries, section 305 of the war risk insurance act as amended by section 19 of the act of August 9, 1921, 42 Stat., 154, provides:
Sec. 19. Section 305 of the War Risk Insurance Act is hereby amended to read as foilows:
SEC. 305. Upon its own motion or upon application the bureau may at any time review an award, and, in accordance with the facts found upon such review, may end, diminish, or increase the compensation previously awarded, or, if compensation is increased, or, if compensation has been refused, reduced or discontinued, may award compensation in proportion to the degree of dis. ability sustained as of the date such degree of disability began, but not earlier than the date of discharge or resignation.”
Only in case compensation is increased or had formerly been reduced, diminished, or discontinued does this section authorize retroactive changes in an award. There is an implied negative that where compensation has been awarded and paid at a rate higher than the after-found facts justify the change in award shall not be made to cover retroactively installments already paid under awards which were competent and authoritative when made, even though based upon errors of judgment or opinion as to the compensable status of the beneficiary. This is in line with the generally accepted and established principle that correction of an award can not be so made retroactive as to disturb rights vested under a ruling or award made by competent authority, especially upon a difference or change of judgment or opinion as to the degree or permanence of the condition of disability. The law does not provide or contemplate that upon review of a compensation award there shall be a recovery of excess compensation found to have been paid under an error of opinion or judgment, there having been no misrepresentation or concealment of the matters of fact upon which the erroneous opinion was based.
Insurance payments differ from compensation in two material respects. First, there is no specific statutory authority for correcting an insurance award retroactively, authority for such correction resting entirely upon the right and duty of the bureau to correct