paid. The receipts for Pullman fares show the amount of tax included in the total, but these receipts were submitted in support of his original claim for reimbursement as required by Par. 80 (n) S. G. T. R.

Your decision is requested as to whether the amount of tax paid may be considered as a part of the transportation expense actually and necessarily incurred, even though the fares on which tax was paid exceeded one dollar, and the attached voucher certified for payment. It is understood the amount of 9¢ (tax on Pullman seat, Terre Haute, Indiana, to St. Louis, Missouri) may be certified in accordance with decision B-36378.

It is well settled that when the travel of Government employees on official business is properly authorized or approved they are entitled to be made whole in accordance with the provisions of the Standardized Government Travel Regulations and the applicable decisions of this office for the expenses necessarily incurred by them in connection with such travel. Also, it is apparent from an examination of the provisions of section 3469 of the Internal Revenue Code entitled "Tax on Transportation of Persons, Etc.," as enacted by section 554 of the Revenue Act of 1941, 55 Stat. 721, and amended by section 609 of the Revenue Act of 1942, 56 Stat. 977 (26 U.S.C. 3469) and the complementary regulations of the Bureau of Internal Revenue (sections 130.61 and 130.62, Regulation 42, 1942 edition, 7 F.R. 2566) that— except in the case of travel of the types specifically excluded by the law from the scope of its terms and which are of no importance in the consideration of the instant question-the tax imposed by said statute and here involved is required to be paid by a Government employee traveling on official business unless the transportation or seating or sleeping accommodations in a particular case are obtained on the basis of a Government transportation request or the employee furnishes the carrier with an appropriate exemption certificate.

Of course, as pointed out by you, the provisions of paragraph 20 of the Standardized Government Travel Regulations which were involved in the decision of September 13, 1943, B-36378 (23 Comp. Gen. 188), to you, stipulate for the use of Government transportation requests when practicable in obtaining official transportation where the amount involved is $1 or more. But it is clear that those provisions contemplate that use could not be made of such requests in all cases and it appears that the claimant states that neither transportation requests nor exemption certificates were available at the time the several tickets here involved were purchased. In fact it is difficult to perceive any reason why a Government employee traveling on official business would pay for the tickets and applicable tax thereon in cash, with the attendant deprivation for a time of the amount thus expended, if such requests or certificates were available at the time of the payments. Moreover, it is to be noted that paragraph 81 of the Standardized Government Travel Regulations provides that receipts will not be required for railroad and other transportation fares except those paid in connection with travel on extra-fare trains or for livery or special

conveyances, or sleeping car, parlor car or stateroom accommodations. Obviously, the underlying reason for the rule is that the amount required to be paid for railroad transportation in a particular case readily can be verified due to the fact that the charge therefor is required to be made in accordance with established tariff rates. And, since the tax here involved is computed on the amount charged by a carrier for its services, there is no more necessity to require a receipt for the payment of the additional amount representing the tax than to require a receipt for the payment of the amount representing the charge for the transportation. Hence, even if the claimant had not obtained a receipt showing the payment for the railroad ticket here involved, he would be entitled to reimbursement for the amount paid on account of the applicable tax as well as the amount paid for the services rendered by the carrier.

Furthermore, while neither this decision nor that rendered in 23 Comp. Gen. 188, supra, properly may be regarded as authorizing the reimbursement of the applicable tax on the amount paid for Pullman accommodations in the absence of a receipt showing the payment for such accommodations, it appears that receipts for all of the Pullman tickets and fares here involved heretofore were submitted by the claimant and now are contained in the records of this office; and since the tax is computed on the amount charged by The Pullman Company for the accommodations furnished by it and, therefore, readily can be verified, it is of no consequence that the tickets or receipts do not contain any notation concerning the tax.

In view of the foregoing it must be held that the claimant is entitled to be reimbursed for the amount paid by him on account of the applicable tax on the railroad ticket and Pullman tickets and fares here involved. Cf. 24 Comp. Dec. 277.

Accordingly, you are advised that certification of the instant voucher for payment is authorized, if correct in other respects. The voucher is returned herewith.

(B-38950)

COMPENSATION-RESTORATION TO FORMER GRADE AND SALARY THROUGH EFFICIENCY RATING APPEAL; WITHIN-GRADE PROMOTION

Where, due to a reduction in force, an employee with an efficiency rating of "Fair-7" was reduced in grade and salary, and subsequently restored to his former grade and salary by reason of a decision of an efficiency rating appeals board changing such rating to "Good-5," there is no authority under the Classification Act of 1923, as amended, Executive Order No. 9252, or regulations of the Civil Service Commission to pay the employee the salary rate, retroactively effective as of the date of the reduction, of the higher grade which he, in fact, did not hold during the period of such reduction.

In the case of an employee who was reduced in grade and salary on the basis of his efficiency rating, and subsequently restored to his former grade and salary as the result of an appeal to an efficiency rating board, the restoration of the employee to his former position need not be regarded as an "equivalent increase in compensation" within the meaning of the withingrade salary-advancement statute of August 1, 1941, and, therefore, such an employee may be restored to the salary rate of his former grade plus any automatic promotion he would have received had he not been so reduced. Comptroller General Warren to the Chairman, Interstate Commerce Commission, January 4, 1944:

There was received December 14, 1943, an undated letter from the Secretary and Authorized Certifying Officer of the Interstate Commerce Commission, reference WPB: HS, reading as follows:

The following question has arisen in connection with the application of Section 9 of the Classification Act of 1923, as amended, and of the regulations approved in Executive Order No. 9252, dated October 9, 1942, relating to board of review on efficiency ratings and of the act of August 1, 1941 (Public Law 200, 77th Congress):

An Associate Examiner in the Interstate Commerce Commission was promoted on April 1, 1942, from a P-2 position at $2,700 per annum to P-3 of $3,200 per annum. He was given an efficiency rating of "Fair-7" for the period ended March 31, 1943. Because of the necessity for a reduction in our force in the section in which employed, this employee was transferred to another section of the Commission and reduced in grade to that of Junior Examiner in P-1 at $2,600 per annum effective June 7, 1943. He appealed his efficiency rating to the Board of Review in accordance with U. S. Civil Service Commission Departmental Circular No. 265, Revised, issued pursuant to the Classification Act and the Executive Order referred to. After hearing the Board of Review rendered the following decision

"The efficiency rating is changed from 'Fair-7' to 'Good-5'."

The decision of the Board of Review also contained the following statementEntitled "Procedural Instruction Relating to Board of Review on Efficiency Ratings."

"All records of the Department shall be corrected accordingly and appropriate corrective action shall be initiated in compliance with Section 403 of Civil Service Commission Departmental Circular No. 265 (Revised)."

Section 403 reads:

"Effect of decisions.-Upon receipt of the announced decision of the board of review making an adjustment in the efficiency rating of an employee, the department shall cause the adjusted efficiency rating to be substituted in its official records for the original efficiency rating in each place where the original efficiency rating was recorded, shall reconsider any and all administrative actions based on the original efficiency rating, and in so far as possible under the law and regulations and in the public interest, re-determine and adjust such administrative actions to conform to the adjusted efficiency ratings."

This decision of the Board of Review was dated October 6, 1943, but was not approved and sent until November 24, 1943. In view of the action of the Board the Commission has reinstated this employee to the position formerly occupied as an Associate Examiner in P-3 effective December 7, 1943.

The following questions are presented:

(1) In view of the action of the Board of Review in changing the efficiency rating from "Fair-7" to "Good-5," will it be necessary for the Commission to reconsider its administrative action based on the original efficiency rating and restore the employee's salary to $3,200 as of June 7, 1943, the date his grade was changed to P-1 and his salary reduced to $2,600 per annum? If the answer is in the negative, this further question is propounded:

(2) Under Public 200 this employee would have been entitled to an automatic promotion of $100 effective October 1, 1943 but for the administrative action in reducing his grade from P-3 to P-1 effective June 7, 1943. This employee had military preference and had he been given a rating initially of "Good-5," he would not have been one of those selected for release, transfer, or demotion. The question arises as to whether he should be restored to the P-3 position at $3,300 per annum rather than the minimum of the grade of $3,200 per annum.

598796-44-vol. 23-33

We are not unmindful of your decision B 20500, 21 C. G. 285, but the facts here presented are different than those in the case cited, in that we are now called upon to reconsider our administrative action in accordance with Section 403 of Civil Service Commission Departmental Circular No. 265 (Revised).

(3) If he may not be restored to his former position at $3,300, what date shall be used in determining when the Ramspeck promotion is due?

It is understood that, because of a reduction in force, the involved employee was administratively transferred and reduced from a position in Grade P-3, with salary at the rate of $3,200 per annum, to a position in Grade P-1, with salary at the rate of $2,600 per annumthe maximum rate of the grade-effective June 7, 1943, and that, because of subsequent developments, he was restored to his former position and salary effective December 7, 1943. Also, it is understood that the selection of the employee for reduction was based upon his "Fair7" efficiency rating of record at the time of the reduction. However, regardless of the administrative reason for the reduction of the employee from one position to another, there is no authority of law to pay the employee a salary rate retroactively effective prior to December 7, 1943, in a grade (P-3) or position which he, in fact, did not hold. As he was paid at the maximum salary rate of Grade P-1, in which the position he occupied during the period June 7 to December 6, 1943, inclusive, was allocated, no additional amount of compensation may be paid to him for that period.

There is nothing in the Classification Act, as amended by the act of August 1, 1941, 55 Stat. 613, or in Executive Order No. 9252, dated October 9, 1942, or in the cited regulations of the Civil Service Commission purporting to authorize or require payment to an employee of a salary rate for a position he does not hold-the cited regulation of the Commission specifically providing that the administrative adjustment of an employee's salary rate, based on a correction in his efficiency rating as a result of an appeal, shall be only "in so far as possible under the law and regulations and in the public interest." Accordingly question (1) is answered in the negative.

Restoration of the employee to his former position in Grade P-3, effective December 7, 1943, as a result of a correction in his efficiency rating based upon an appeal, is not required to be regarded as an "equivalent increase in compensation" within the meaning of the act of August 1, 1941, supra, and section 1 (d) of the President's Regulations issued pursuant to that statute (Executive Order No. 8882, dated September 5, 1941). Compare 21 Comp. Gen. 285, to which you refer; also, 21 Comp. Gen. 369; and 23 Comp. Gen. 265. It is believed the purpose and intent of the applicable law and regulations are such as to authorize restoration of the employee in this case-effective December 7, 1943-to the salary rate in Grade P-3, which he would have received had he been given the efficiency rating of Good-5 in the first instance. Accordingly, question [2] is answered in the affirmative, making it unnecessary to answer question [3].

(B-38463)

RETAINER PAY-MARINE CORPS RESERVE AFTER EXPIRATION OF ·

ENROLLMENT

The annual advance retainer pay of $20 authorized under section 205 of the Naval Reserve Act of 1938, for enlisted men in the Regular Navy who obligate themselves to serve 4 years in the Fleet Reserve upon termination of their enlistments in the Regular Navy, may not be paid for reserve service subsequent to the expiration of such 4-year term, and, therefore, an enlisted Marine Corps reservist whose enrollment expired in time of war, and who was retained on active duty subsequent to the expiration of his 4-year term pursuant to section 5 of the said act, is not entitled to receive such retainer pay upon entering his fifth year as a reservist.

Assistant Comptroller General Yates to Col. James L. Denham, U. S. Marine Corps, January 5, 1944:

There has been received by endorsement of the Paymaster, Headquarters, United States Marine Corps, Washington, D. C., your letter of November 10, 1943, in which you request decision as to whether payment is authorized on a voucher, transmitted therewith, stated in favor of Robert James Egley, sergeant, Class I (e), United States Marine Corps Reserve, for $20 as annual advance retainer pay for the year 1943-1944.

It is reported that under date of August 11, 1939, Egley obligated himself to serve in the Marine Corps Reserve for a period of four years effective September 10, 1939, following his discharge from a four-year enlistment in the Regular Marine Corps on September 9, 1939, and that he has not been discharged since the normal expiration of such obligation on September 9, 1943. The voucher transmitted with your letter bears the following notation:

Enlisted in USMCR on 10Sept39. No time lost. Held for CofG since 10Sept43. Service Record Book shows: "Pd $20.00, 4th. AARP by W. M. Mitchell on rolls of Bks. Det., MB, NYD, New York City, New York, for the month of October, 1942." This voucher is to claim AARP for the year of 1943.

It thus appears that on September 9, 1943, the normal expiration. date of his obligation to serve in the Marine Corps Reserve, Sergeant Egley was on active duty; that he has been retained on such service since that date; and that he has already received four payments of $20 as advance retainer pay. The question here presented is whether he may receive a fifth such payment upon entering into his fifth year in the Marine Corps Reserve.

Sections 2 and 205 of the Naval Reserve Act of 1938, 52 Stat. 1175, 1179, provide:

SEC. 2. The United States Marine Corps Reserve established under the Act of February 28, 1925, is hereby abolished, and in lieu thereof there is hereby created and established as a component part of the United States Marine Corps, a Marine Corps Reserve under the same provisions in all respects (except as may be necessary to adapt said provisions to the Marine Corps) as those contained in this Act or which may hereafter be enacted providing for the Naval Reserve: Provided, That the Marine Corps Reserve shall consist of the Fleet Marine Corps Reserve, the Organized Marine Corps Reserve, and the Volunteer Marine Corps Reserve, corresponding, as near as may be, to similar classes of the Naval Reserve.