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13. Enlisted men of the Naval Reserve Force, upon recall to and subsequent release from active duty, are entitled to transportation in kind and subsistence, or cash in lieu of the latter, from and to their homes.
It is suggested that after the word “entitled " there be inserted the word “only” and after the word “subsistence” there be inserted “and transfers en route,” making the amended instruction read:
13. Enlisted men of the Naval Reserve Force, upon recall to and subsequent release from active duty, are entitled only to transportation in kind and subsistence and transfers en route, or cash in lieu of said subsistence and transfers, from and to their homes, as provided in annual appropriation acts. (See acts of July 1, 1922, 42 Stat., 790, and January 22, 1923, Public No. 384, pages 4 and 5.)
The reason for the confinement of this right to transportation in kind and subsistence and transfers is the fact that the effect of the act of September 22, 1922, is to eliminate the provision for mileage in the act of February 28, 1919, which it amends and supersedes:
That naval reservists duly enrolled who have been honorably released from active service since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably released from active service, shall be entitled likewise to receive mileage as aforesaid. and as the act of September 22, 1922, does not substitute other provision for such reservists on release from active service they are confined in this respect to the provision for transportation in kind and subsistence and transfers or cash in lieu of subsistence and transfers for “ enlisted men of the Naval Reserve Force” as authorized in the annual appropriation acts.
14. Enlisted men of the regular Navy, who are discharged when on furlough without pay, are not entitled to either travel allowance or tranportation in kind. (1 Comp Gen., 339.)
15. Enlisted men of the regular Navy, upon being retired, are entitled to transportation in kind and subsistence to their homes. (Art. 1712 (2), N. R. 1920.)
16, Enlisted men discharged pursuant to medical survey are entitled to the regular travel allowance set forth in paragraph two hereof. However, under the terms of the act of March 3, 1901 (31 Stat., 1030), and of the naval app. act of 1 July, 1922, they may be furnished transportation and subsistence, or cash in lieu of the latter, to their homes, if residents of the United States. The furnishing of travel allowance or transportation and subsistence in lieu thereof shall be at the option of the men.
Other than the changes above suggested no reason is now apparent why the instructions may not be promulgated.
It is to be understood, however, in this as in other submissions of instructions, that the legal effect of the instructions must be for determination by this office when particular facts arise bringing them into question, and that the instructions must thereafter be subject to such interpretation as may then be made.
You advise me that notice of the enactment of the act of September 22, 1922, was not published to the naval service until September 30, 1922; that probably between those two dates payments were made upon computation of distance to “bona fide home," as provided in the act of February 28, 1919; and that since September 30, 1922, it is more than probable that payments have been made based on a computation of distance to place of enlistment instead of place of acceptance for enlistment. In view of the delay in publication and of the fact that the records of the Navy Department have not heretofore shown the place of acceptance for enlistment, but only the place of enlistment, you request that I permit the allowance of payments heretofore made wherein there may be errors because of these two facts.
The question involved appears a practical one. Due to the lack of administrative record giving the needed information as to place of acceptance for enlistment as outlined in the cases of discharges occurring on and after September 22, 1922, and prior to your submission, and of inability at this time to properly supply this lack of record, credit will be given for such payments computed to place of bona fide home or place of enlistment at the option of the man in lieu of to the place of acceptance for enlistment if in other respects correct. It is understood that the records on and after December 26, 1922, contain the necessary information required by the enactment, and payments thereafter will be made accordingly.
SUBSISTENCE, PER DIEM IN LIEU OF, CUSTOMS SERVICE. The provision in section 5 of the act of March 4, 1923, 42 Stat., 1454, for the
allowance to officers and employees of the Customs Service of “actual expenses incurred for subsistence” while traveling on duty is exclusive and precludes the allowance of a per diem in lieu of subsistence to such officers
and employees. Comptroller General McCarl to the Secretary of the Treasury, March 30,
I have your letter, dated March 17, 1923, in which after inviting attention to section 5 of the act of March 4, 1923, which provides for actual expenses incurred for subsistence for customs officers and employees, you request to be advised whether its terms permit providing by regulations for the granting of a per diem allowance in lieu of expenses for subsistence, citing as authority, therefor the act of August 1, 1914, 38 Stat., 680.
The act of March 4, 1923, 42 Stat., 1454, which contains the authority for the incurrence of such expenses, provides :
SEC. 5. That all customs officers and employees, including customs officers and employees in foreign countries, in addition to their compensation shall receive their necessary traveling expenses and actual expenses incurred for subsistence while traveling on duty and away from their designated station, and when transferred from one official station to another for duty may be allowed, within the discretion and under written orders of the Secretary of the Treasury, the expenses incurred for packing, crating, freight, and drayage in the transfer of their household effects and other personal property, not exceeding in all five thousand pounds.
The act of April 6, 1914, 38 Stat., 318, provides in part, that,
On and after July first, nineteen hundred and fourteen, unless otherwise expressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty outside of the District of Columbia and away from his designated post of duty, nor any sum for such expenses actually incurred in excess of $5 per day;
What may be considered as a complement to this act, the act of August 1, 1914, 38 Stat., 680, as amended, provides:
SEC. 13. That the heads of executive departments and other Government establishments are authorized to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence to persons eigaged in field work or traveling on official business outside of the District of Columbia and away from their designated posts of duty when not otherwise fixed by law.
It will be observed that, while the act of July 1, 1914, first cited, limits payment of subsistence to $5 per day actual expense, and the act of August 1, 1914, authorizes heads of departments to prescribe per diem allowance of not exceeding $4 in lieu of subsistence, yet both of these provisions are coupled with the condition that the authority so granted is effective “unless otherwise expressly provided by law.”
The act of March 4, 1923, now considered, provides specifically for “ actual expenses incurred for subsistence," and such provisions of this kind have been, of necessity, determined to be exclusive of any other method of reimbursing the cost of subsistence. Decision, dated July 14, 1922, 11 MS. Comp. Gen., 685; 24 Comp. Dec., 4. It can not then be construed, as suggested, that the act of August 1, 1914, is a general authority applicable to all travel performed in connection with official business, and that, in consequence, provisions should be made in the regulations to be issued under act of March 4, 1923, for granting a per diem to officers and employees who may elect to receive the allowance in lieu of actual expenses when traveling officially.
Accordingly I have to inform you that the act of March 4, 1923, does not authorize providing by regulations for a per diem in lieu of actual subsistence.
EMPLOYMENT OF CIVILIANS IN COMMISSARY STORES AT NAVAL
There is no authority for the employment of civilian personal services in the
conduct of naval commissary stores, the appropriations for “Provisions and “ Maintenance" in the act of July 1, 1922, 42 Stat., 800, 801, not being applicable to the employment of civilian services for the conduct of such stores, and there being no authority to increase the selling price of cummissary supplies and use the increase for the hire of civilian help for
the purpose. Comptroller General McCarl to the Secretary of the Navy, March 30, 1923:
I have your letter of March 3, 1923, reading :
“ Hereafter such stores as the Secretary of the Navy may designate may be procured and sold to officers and enlisted men of the Navy and Marine Corps, also to civilian employees at naval stations beyond the continental limits of the United States and in Alaska, under such regulations as the Secretary of the Navy may prescribe."
It is under authority of this statute that the commissary stores at various Duval stations in the United States and in the insular possessions are operated. The cost of the articles procured for sale is charged to the appropriation “ Provisions Navy" and it has been the practice to add to the cost price a sufficient amount to pay the incidental expenses in connection with the sale, such as paper, twine, packing materials, and office supplies. The percentage added to the sale price is intended only to cover the incidental expenses of sale without making any additional profit, although where a profit does accrue it is turned into the Treasury as a miscellaneous receipt.
The personnel of the commissary stores has consisted of officers and enlisted men of the Navy detailed for that duty and not of civilian employees. Recently, however, requests have been received for the employment of civilian help in certain of the commissary stores, due to the fact that sufficient enlisted personnel has not been available for the work. The civilian services requested have been clerks, laborers, and drivers or chauffeurs for the delivery of the supplies.
None of the estimates submitted to Congress under any of the naval appro. priations have specifically contemplated the employment of civilians for duty in commissary stores, but in view of the numerous requests which are being received it appears to be desirable to obtain your decision as to the authority of the department to pay civilians employed in commissary stores. It is, therefore, requested that you render a decision as to the following propositions :
First. Can the pay of clerks and other civilian employees necessary for the conduct of the commissary stores be paid from the appropriation Provisions Navy" provided a sufficient amount is added to the selling price of the articles sold in the commissary stores to reimburse the appropriation for the salaries of such employees.
Second. If the answer to the foregoing question is in the negative, is there any other appropriation which is available for the payment of the salaries of such employees ?
The appropriation “Provisions Navy" provides for expenses of handling provisions.” This language was in ted in the appropriation several years ago primarily for the purpose of defraying the handling charges incurred at navy yards and at naval stations in connection with the issue of provisions to the vessels of the feet and to other activities requiring same. Inasmuch as the articles sold in commissary stores consist primarily of provisions and are procured under th', appropriation “Provisions " it might be considered that this language would authorize the payment of labor (other than clerical) in connection with the commissary stores from this appropriation.
The appropriation “ Maintenance, supplies and accounts," provides for “ labor in general storehouses ” with a further provision for clerical and other employees in supply departments at navy yards. The commissary stores are not general storehouses but they are a part of the supply activities at navy yards and it might be considered that this appropriation was intended to provide the clerical force necessary for handling all phases of supply activities at navy yards and naval stations,
As a matter of policy it appears to the department that the practice which has been followed since the establishment of the commissary stores of utilizing enlisted personnel for the work in such stores is the proper one, but exigencies arise from time to time where a sufficient number of enlisted men are not available for this duty and as a result the operation of the stores is seriously handicapped.
The appropriations, “ Provisions,” 42 Stat., 800-801, and “ Maintenance," 42 Stat., 801, referred to, do not make specific provision for the character of services contemplated, nor am I advised of any other appropriations which would be available. There would be no authority to add an amount to the selling price of articles and reimburse the appropriation for expenditures for such salaries. I am constrained to hold that there is no authority for the employment of civiliar. personal services for the conduct of the facilities in question.
RENTAL ALLOWANCE-OFFICERS OF NAVY UNDER ARREST AND
NOT FORMALLY DETACHED FROM SEA DUTY. Officers of the Navy with dependents, who are on sea duty and without
formal detachment therefrom are placed under arrest and held upon board the ship upon which serving, are for the interim between arrest and action by the court-martial in a suspended sea duty status; if acquitted they are not in fact detached from sea duty and are entitled for such period to a rental allowance if their dependents be not in the occupancy of public quarters; if convicted they are detached from sea duty effective from
date of arrest and are not entitled for such period to a rental allowance. Comptroller General McCarl to the Secretary of the Navy, March 31, 1923:
I have, by your direction, the letter of the Judge Advocate General of the Navy, dated February 28, 1923, requesting decision whether an officer of the Navy, with dependents, who is placed under arrest but not detached from duty on board a vessel, is entitled to rental allowance under section 6 of the act of June 10, 1922, 42 Stat., 628, during the period under arrest, while awaiting trial, and while on trial by court-martial, regardless of the result of the courtmartial.
Section 6 of the act of June 10, 1922, provides, in part: That each commissioned officer on the active list or on active duty below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this Act, if public quarters are not available, shall be entitled at all times, in addition to his pay, to a money allowance for rental of quarters, the amount of such allowance to be determined by the rate for one
*. Such rate for one room is hereby fixed at $20 per month for the fiscal year 1923, * *. The rental allowance shall accrue while the officer is on field or sea duty,
* regardless of any shelter that may be furnished him for his personal use, if his dependent or dependents are not occupying public quarters during such period.
but no rental allowance shall be made to any officer without dependents by reason of his employ. ment on field or sea duty.
It is assumed that the officer referred to was on “sea duty” at the time of his arrest; that if acquitted he will automatically resume his sea duty status on board the vessel on which he was serving at the time of his arrest and from which he has not been formally detached, and that pending his conviction or acquittal by the court-martial he is accordingly in a status of suspension from the actual performance of sea duty.
His right to rental allowance as an officer on “ sea duty” for the purposes of the rental allowance statute is, however, dependent upon whciher his status is that of on “sea duty” or is not for this suspended period during which his orders assigning him to sea duty upon the particular vessel have not been formally revoked; or, in other words, whether there has been a detachment of him in fact from sea duty for this suspended period.
This, in turn, depends upon whether the suspension from sea duty-which was a partial or minor exercise of the power of actual relief therefrom-becomes completed by his conviction or becomes nullified by his acquittal.
If the suspension result in acquittal it will operate as a nullification of it for duty purposes from its inception and the officer is to be re