City for temporary duty. After such duty is accomplished he may be called, for example, to Chicago, Illinois, or Baltimore, Maryland, by his private employer. Under the present ruling his official travel order states, among other things, that transportation would be paid back to New York City. However, if his private business requires him to proceed to Chicago from Washington, the War Department reimburses him the amount of the expenses which would have been incurred had he returned to New York City-the individual paying the difference. In the second case, however, had his private business required him to proceed to Baltimore, the Government would reimburse him his expenses of returning to New York City even though he actually returned to a point closer (Baltimore), thus resulting in a substantial profit for the individual and an added cost to the Government.

As another example, an expert consultant was appointed at Schenectady, New York, for temporary duty in Washington, and thence to Denver, Colorado, for temporary duty. Under the present ruling the War department would pay his traveling expenses back to Schenectady, New York. He was required, however, to return from Denver to Fort Wayne, Indiana, for duty with his private employer (General Electric Company). Thus the Government would have saved approximately $47.00 (traveling expenses from Fort Wayne to Schenectady), had it been possible for his return trip to terminate at Fort Wayne, Indiana. Since the Government would profit, in a great many instances, where the individual returns to private industry at a point closer than his return to his permanent duty station, your consideration and reply to the following is respectfully requested.

a. May the travel performed by an expert consultant or other technical and professional personnel, provide for such person "to proceed from his official duty station to such points within the continental limits of the United States on temporary duty in connection with his duties and upon completion of such duties, to return to such other point as may be required by private employer, provided; that evidence is shown that such travel is more economical to the Government." b. If a. is answered in the affirmative, may the Department authorize travel at Government expense from such point (other than Government official duty station) as he may be stationed when further services are required by the War Department?

It is further desired to point out that the need for the flexible duty station arrangement is for the convenience of the Government and not for the convenience of the individual concerned. This arrangement would further result in a saving of manpower hours, as well as financial savings, in a great many cases.

May I have your ruling on the specific questions posed above at an early date?

The statute (57 Stat. 365) authorizes payment of the actual transportation expenses and not to exceed $10 per diem in lieu of subsistence to persons who serve for the Government without other compensation "while away from their homes." While the word, "homes". appearing in the statute may not be ignored entirely, the journey for the Government is not required to begin or end at their homes, but, of course, the intention is not to reimburse the travelers for traveling expenses which they otherwise would incur for a private employer. Hence, the transportation expenses and per diem may be paid for a Government trip from and to any point to the place of duty for the Government not to exceed what it would have cost from and to the home of the traveler. That is, there would be no authority under the statute to pay for a trip longer than from or to the home of the traveler.

Accordingly, questions a and b are answered, generally, in the affirmative but subject to the above-stated limitation,

598796-44-vol. 23-26

(B-38054)

PAY-HIGHER COMMAND IN TIME OF WAR-ARMY STAFF OFFICERS

A staff officer, as distinguished from an officer of the line, in the performance of the duties of his office does not exercise a "command" within the meaning of section 7 of the act of April 26, 1898, and, therefore, an officer of the Medical Corps-a staff component of the Army-is not entitled to the pay and allowances of a higher grade as authorized under the said act for an Army officer serving with troops operating against an enemy in time of war who exercises a command above that pertaining to his grade.

Assistant Comptroller General Yates to Capt. N. B. Hill, U. S. Army, November 19, 1943:

There has been received by indorsement of the Office of the Fiscal Director, Army Service Forces, your letter of October 12, 1943, in which you request decision as to whether you are authorized to make payment on a voucher transmitted therewith, stated for $61.33 in favor of William Rubin, captain, Medical Corps, representing the difference in pay and allowances between those of a first lieutenant and those of a captain for the period July 29, 1943, to September 14, 1943, during which time the officer, then a first lieutenant, was in command of the Medical Detachment, 135th Field Artillery, it being stated that the rank of captain is authorized for that detach

ment.

Section 7 of the act of April 26, 1898, 30 Stat. 365, provides, in part:

That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised: Provided, That a rate of pay exceeding that of a brigadier general shall not be paid in any case by reason of such assignment

* *

Captain Rubin, during the period here involved, was an officer of the Medical Corps, a staff component of the Army. A staff officer, as distinguished from an officer of the line, in the performance of the duties of his office does not exercise "command", within the meaning of that word as used in laws and regulations pertaining to the Army, and hence does not come within the scope of the above-quoted section. 5 Comp. Dec. 137. See, also, Truitt v. United States, 38 C. Cls. 398.

Accordingly, payment on the voucher, which is retained in this office, is not authorized.

(B-34345)

LUMP SUM PAYMENT UNDER NAVAL AVIATION CADET ACT OF 1942 The transfer of a naval aviation reserve officer to the retired list because of disability incurred while serving on extended active duty may be regarded as a "release from active duty" within the meaning of section 12 of the Naval Aviation Cadet Act of 1942, as amended, authorizing, upon release from

active duty, a lump sum payment of $500 for each year of continuous active commissioned service of officers commissioned thereunder or under the Naval Aviation Reserve Act of 1939, and, therefore, any lump sum amount accrued to such an officer for continuous commissioned active service theretofore performed may be paid at the time of his transfer to the retired list.

In computing continuous commissioned active service of naval aviation reserve officers for purposes of payment of the lump sum amount authorized by section 12 of the Naval Aviation Cadet Act of 1942, as amended, for each year of active commissioned service of officers commissioned thereunder or under the Naval Aviation Reserve Act of 1939, there may not be included active duty performed by such officers subsequent to transfer to the retired list because of disability incurred in line of duty, irrespective of whether such duty as retired officers follows immediately their transfer to the retired list or follows an interval in an inactive status on the retired list.

Acting Comptroller General Yates to the Secretary of the Navy, November 22,

1943:

Reference is made to your letter of May 5, 1943, requesting a decision on a matter set forth in a letter dated April 20, 1943, from the Chief of the Bureau of Supplies and Accounts, as follows:

References:

(a) Section 1453, Revised Statutes (34 U. S. Code 417).

(b) Section 6 of the Act of April 15, 1935 (Public Law 37-74th Congress). (c) Section 8 of the Act of June 13, 1939 (Public Law 129-76th Congress). (d) Act of August 27, 1940 (54 Stat. 864) (34 U. S. Code 855c-1) (as amended by Public Law 737-77th Congress approved October 10, 1942).

(e) Section 6 of the Act of August 27, 1940 (54 Stat. 865).

(f) Act of July 24, 1941 (54 Stat. 604) (34 U. S. Code 350g (a) and (j)).

(g) Claim No. 0984409 disallowed by the General Accounting Office (Claims Division) on July 20, 1942.

(h) Naval Aviation Cadet Act of 1942 (Public Law 698-77th Congress) approved August 4, 1942.

1. Under the provisions of section 12 of reference (h), officers commissioned in Class A-V (N) of the Naval Reserve, as specified therein, are entitled upon release from active duty that has been continuous for one or more years to payment of a lump-sum not to exceed $3,500, computed on the basis of $500 for each complete year of active commissioned service, and a prorata amount for fractional parts of each year of such service if released from active duty other than at own request or as a result of disciplinary action. Section 12 of reference (h) is a continuation in modified form of the lump-sum payment authorized in references (b), (c) and (e) which envisaged peace time conditions and contemplated the employment on active duty for a period of not more than seven years of officers commissioned as ensigns A-V (N), USNR, after completion of training as aviation cadet. Such legislation was proposed and enacted as it was considered that payment of lump-sum would obviate later claims of this particular group of officers for retirement benefits on the basis that the Government had taken several years of their life at a period where they would normally enter into lucrative professional or business pursuits, and on release from active duty in a non-pay status would provide them with financial means of establishing themselves in civil life.

2. At the time the Naval Aviation Cadet Act of 1942 was enacted there were several thousand aviation cadets, and officers commissioned pursuant to authority contained in the Act of June 13, 1939, after completion of training as aviation cadets, who entered upon such training with the understanding that lump-sum payment would accrue to them under the conditions specified in the several acts relating thereto. In this connection attention is invited to the fact that the authority granted the President in the second proviso of Section 12 of reference (h) to suspend payment of lump-sum to commissioned officers who were enlisted in, or transferred to, the grade of aviation cadet within thirty days after August 4, 1942, has been exercised. Under prior laws, enacted under peace time conditions, the lump-sum payment was provided to stimulate applications for appointment as aviation cadet whereas under war time conditions such stimulus was not desirous or necessary. Therefore, such provisions for suspension of lump-sum payment to officers commissioned in Class A-V (N), USNR, after completion of training as

enlisted aviation cadet was incorporated as to officers so commissioned who had not enlisted in, or transferred to, the enlisted grade of aviation cadet with expectation of receiving lump-sum payment on release from active duty.

3. The lump-sum payment authorized by the several laws enacted prior to August 4, 1942, contemplated release from active duty in a non-pay status. However, officers of the Naval Reserve, including those commissioned in Class A-V (N), USNR, pursuant to the authority contained in the Acts of June 13, 1939, and August 4, 1942, on active duty in excess of thirty days are entitled to retirement for physical disability under the same conditions as officers of the Regular Navy. Officers of the Naval Reserve who are retired for physical disability under the authority contained in references (d) and (f), are transferred to the retired list of the Regular Navy and receive retired pay on the same basis as retired officers of the Regular Navy on the retired list. In reference (g), the General Accounting Office (Claims Division) disallowed claim for lump-sum payment submitted by William George Logan whose commission as ensign A-V (N), USNR, was terminated under honorable conditions on March 6, 1941, date prior to date of acceptance of appointment as ensign in the Regular Navy. The basis for the disallowance of this claim was that termination of commission in the Naval Reserve was not a complete separation from the service with return to civil life, no break occurred in his service by reason of immediate acceptance of commission as ensign, USN.

4. In view of the foregoing it is recommended that a decision be obtained from the Comptroller General as to the right of commissioned officers, A-V (N), USNR (former aviation cadets), to lump-sum payment if transferred to the retired list in a pay status. As illustrative of the type of cases involved, the following examples are cited:

(a) An aviation cadet reported for active duty undergoing training on August 26, 1940, accepted appointment as ensign A-V (N), USNR, on April 1, 1941, was placed on the retired list on March 1, 1943, under authority contained in 34 U. S. Code 417 and 855 c-1, and was released from active duty. This officer is entitled to retired pay at the rate of 75% of the active duty pay to which entitled on date of retirement. Does transfer to the retired list and release from active duty under such circumstances entitle the officer to lump-sum payment authorized in Section 12 of the Naval Aviation Cadet Act of 1942 computed on the basis of $500 for each complete year of active commissioned service and to pro rata amount for fractional year of such service?

(b) An aviation cadet reported for active duty undergoing training on February 20, 1940, accepted appointment as ensign A-V (N), USNR, on November 1, 1940, was placed on the retired list on April 1, 1943, in temporary rank of lieutenant, under the authority contained in 34 U. S. Code 350g (a) and (j), and was continued on active duty after retirement. Does transfer to the retired list terminate the active duty status of this officer within the meaning of Section 12 of the Naval Aviation Cadet Act of 1942 so as to entitle him to lump-sum payment as authorized therein based on active commissioned service from November 1, 1940, to March 31, 1943, and would such lump-sum be payable on date of retirement or on date of final release; or, since he was not released from active duty on date of transfer to the retired list, may period of continuous active duty subsequent to retirement be included in determining total amount of lump-sum due upon subsequent release from active duty? When this officer is finally released from active duty he will be entitled to retired pay at the rate of 75% of the active duty pay to which entitled on date of transfer to the retired list plus any increase therein which may accrue by reason of active duty performed subsequent to retirement.

5. If it is held that an officer of the class described in paragraph 4 (b) above is entitled to the lump-sum payment on the basis of active duty performed both prior and subsequent to retirement, it would appear proper to provide some procedure whereby credits for the lump-sum payment terminate with transfer to the retired list. It would appear that this could be accomplished by releasing the officer concerned from active duty upon his retirement and then recall him to active duty after a lapse of at least one day. However, such action might result in the payment of mileage to and from the officer's home and obviously would make for an increase in paper work.

The grade of aviation cadet was established in the Naval Reserve and Marine Corps Reserve by the act of April 15, 1935, 49 Stat. 156,

which act provided for the appointment of cadets to serve for a continuous period of four years on active duty, unless sooner released. There were stipulated certain rates of pay to which such cadets would be entitled while on active duty undergoing training and while on active duty not undergoing training. By section 6 of such act, 49 Stat. 157, it was provided that upon release from a period of active duty of four years or more aviation cadets should be paid a lump sum of $1,500 in addition to any pay and allowances which they might otherwise be entitled to receive.

By the act of June 13, 1939, 53 Stat. 819, entitled, "An act to authorize commissioning of aviation cadets in the Naval and Marine Corps Reserves upon completion of training, and for other purposes," section 6 of the act of April 15, 1935, supra, was repealed and, in lieu thereof, sections 6 and 8 of the new act, 53 Stat. 820, provided for certain lump-sum payments for officers so commissioned, as follows:

Sec. 6. When officers, commissioned pursuant to this Act, are released from active duty that has been continuous for a period of four or more years, including active duty both as aviation cadets and as commissioned officers, they shall be paid a lump sum of $500 in addition to any pay and allowances which they may otherwise be entitled to receive, except as hereinafter provided.

Sec. 8. Aviation cadets who have completed active duty undergoing training on the date of approval of this Act and who may be commissioned pursuant thereto shall, upon completion of four years' active duty, be paid a lump sum determined as $1,000 minus the excess of the pay and allowances received by them prior to the date of such completion of duty over the pay and allowances, with which shall be included Government paid insurance premiums, which they would have received as aviation cadets had they not been commissioned. No person shall be held to be indebted to the United States as a result of the provisions of this section. Payments authorized by this section shall be in addition to that authorized by section 6 of this Act.

The act of August 27, 1940, 54 Stat. 864, 865, authorized, inter alia, the appointment of Naval aviators of the Naval and Marine Corps Reserves to the line of the Regular Navy or Marine Corps, under certain conditions.

Section 5 of that act repealed said sections 6 and 8 of the act of June 13, 1939, and, in lieu thereof, section 6 of the later act provided:

When officers commissioned in the Naval or Marine Corps Reserve pursuant to the Naval Aviation Reserve Act of 1939 are released from active duty that Iras been continuous for one or more years, they shall be paid a lump sum of $500 for each complete year of active service other than duty as aviation cadets undergoing training and if released from active duty otherwise than upon their own request or as a result of disciplinary action, this lump-sum payment shall be prorated for fractional parts of each year of such service. The lump-sum payments authorized herein shall be in addition to any pay, allowances, compensation, or benefits which they may otherwise be entitled to receive.

That section was repealed by section 15 (c) of the Naval Aviation Cadet Act of August 4, 1942, 56 Stat. 739, and there was substituted therefor section 12 of the latter act, 56 Stat. 738, providing as follows: When officers commissioned pursuant to this Act or to the Naval Aviation Reserve Act of 1939 (53 Stat. 819) are released from active duty that has been continuous for one or more years, they, or in the event of the death of such