the pay and allowances authorized for rear admirals of the lower half (Gibson v. United States, 194 U. S. 182, 15 Comp. Gen. 824); however, I do not find that the statute authorizes a change from the pay of the lower half to the pay of the upper half on the basis of a comparison of total commissioned service and active service as a retired rear admiral with the service of a rear admiral on the active list.

Under section 1 of the Pay Readjustment Act of June 10, 1922, 42 Stat. 625, in effect when the act of July 24, 1941, was enacted, and, currently, under section 1 of the Pay Readjustment Act of June 16, 1942, 56 Stat. 359, the base pay of officers of the Navy below the rank of rear admiral is prescribed in the form of pay periods and the base pay for each period is authorized to be paid to officers of certain rank, or rank plus length of service. For example, the pay of the fifth period is authorized to be paid to commanders of the Navy who are not entitled to the pay of the sixth period, and to lieutenant commanders of the Navy who have completed 23 years' service. Also, it is provided in the above-cited sections of the acts of June 10, 1922, and June 16, 1942, that every officer paid under the provisions of those sections shall receive an increase of 5 per centum of the base pay of his period for each three years of service up to 30 years. Hence, it will be seen that as to an officer on the active list below the rank of rear admiral the period of his service has a definite bearing on the pay authorized to be paid to him.

A rear admiral on the active list receives the pay of the lower half or the upper half depending upon his numerical standing on the list of rear admirals of the line on the active list, exclusive of those carried as additional numbers in that grade. If his name appears in the upper one-half, he is entitled to the pay of the upper half. Otherwise, he is entitled to the pay of the lower half. The length of time he remains on the list has no bearing on whether he will pass from the lower half to the upper half; such a change depends upon the addition and removal of names to and from the list through appointment, retirement, death, etc. See 15 Comp. Dec. 8, 11.

Statutory provisions pertaining to the pay and allowances of commissioned officers of the Navy, generally, have not included officers of the rank of rear admiral entitled to pay and allowances equal to that of brigadier general or major general of the Army depending upon whether entitled to pay of the lower or upper half of the list of rear admirals; when legislating with respect to officers of such rank or grade, pertinent provisions of the statutes have been specific and in most cases exclusive-acts of March 3, 1899; May 13, 1908; August 29, 1916; section 8, act of June 10, 1922; section 7, act of June 16,

1942; section 6, act of July 24, 1941, 55 Stat. 604, as amended, and section 2, act of June 30, 1942—and in the absence of a statute specifically so providing this office would not be justified in authorizing credit of active upper half pay to officers of the Navy appointed to the temporary rank of rear admiral on the retired list.

Since no statutory provision is made for advancement of retired rear admirals to the upper half pay after the completion of a certain period of service, Rear Admiral Metcalf is not entitled to the pay of a rear admiral of the upper half. Your first question is answered in the negative.

Your second question is

(b) Whether a retired officer on active duty, who is given an indefinite temporary appointment as rear admiral, is entitled to the pay of the upper half from the date on which a rear admiral on the active list with equivalent length of service becomes entitled to the pay of the upper half.

The only apparent difference between this question and your first question is that the appointment here involved is an indefinite temporary appointment (which, also, is subject to the limitations contained in the statutes) whereas in the first question the appointment was only for the period the officer performed particular duties. Such difference does not affect the primary question involved; and, on the basis of the answer to question one, your second question, also, is answered in the negative.

Question three is

(c) Whether an officer who was retired in the rank of rear admiral (lower half) is, while on active duty, entitled to the pay of a rear admiral (upper half) from the date on which a rear admiral on the active list with equivalent length of service becomes entitled to the pay of the upper half.

Section 15 of the Pay Readjustment Act of June 16, 1942, 56 Stat. 367, provides that retired officers of the several services "shall, when on active duty, receive full pay and allowances of the grade or rank in which they serve on such active duty." See, also, section 301 of the Third Supplemental National Defense Appropriation Act, 1941, 54 Stat. 973; section 1 of the act of June 25, 1941, 55 Stat. 263, and the act of December 15, 1941, 55 Stat. 800. Cf. section 17 of the act of June 10, 1922, 42 Stat. 632, and the act of August 29, 1916, 39 Stat. 556, 581.

Section 1 of the act of August 5, 1882, 22 Stat. 284, 286 (34 U. S. C. 402) provides:

Hereafter there shall be no promotion or increase of pay in the retired list of the Navy but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired

No particular officer is mentioned in your third question but it is indicated that the officer in mind was retired as a rear admiral and

entitled to the pay authorized for an officer of that rank of the lower half. Upon reporting for active duty, such an officer would be entitled to the full pay and allowances of the grade or rank in which he serves; that is, the full pay and allowances of a rear admiral of the lower half. No statutory provision is mentioned in your submission— nor does this office find any such provision-which would constitute authority for the payment to him of the pay and allowances authorized for a rear admiral of the upper half on the active list. Accordingly, your third question is answered in the negative.

(B-38713)

MILEAGE-FIRST DUTY STATION-FEMALE DIETITIANS, ETC., APPOINTED UNDER ACT OF DECEMBER 22, 1942

Female dietetic and physical therapy personnel appointed in the Medical Department of the Army under section 2 of the act of December 22, 1942, which authorizes payment to such personnel of "mileage and other travel allowances, as now or hereafter provided by law, for commissioned officers, without dependents, of the Regular Army," are not entitled to payment of mileage in connection with travel incident to reporting at their first duty station. Assistant Comptroller General Yates to Lt. S. J. Nesbitt, U. S. Army, January 18, 1944:

There has been considered your letter of November 29, 1943, with respect to the place from which Second Lieutenant Clara B. Tavis, R-1035, dietitian, may be paid mileage in connection with her first reporting for duty under an appointment pursuant to section 2 of the act of December 22, 1942, 56 Stat. 1072. The said section 2 provides:

SEC. 2. Hereafter, during the present war and for six months thereafter, there shall be included in the Medical Department of the Army such female dietetic and physical therapy personnel (exclusive of students and apprentices) as the Secretary of War may consider necessary, whose qualifications, duties, and assignments shall be in accordance with regulations to be prescribed by the Secretary, and who shall be appointed and, at his discretion be removed, by the Surgeon General, subject to the approval of the Secretary. Such personnel shall have relative rank and receive pay and money allowances for subsistence and rental of quarters, and mileage and other travel allowances, as now or hereafter provided by law, for commissioned officers, without dependents, of the Regular Army in the third to the first pay periods, respectively. Persons appointed under the provisions of this section and their dependents shall be entitled to the same allowances and the same rights, privileges, benefits, and gratuities as members of the Army Nurse Corps and their dependents.

The date on which Lieutenant Tavis was appointed pursuant to the above statutory authority is not stated; but, from your letter, such appointment appears to have been made on or prior to October 1, 1943.

Paragraph 20, Special Orders No. 274, War Department, dated October 1, 1943, provides:

Paragraph 20 DP following officer ordered to AD WP fro home to sta on date indicated. TDN. Allotment serial number in column after each name. P 431-01 02, 03, 07, 08, A 0425-24. All personnel of AUS unless otherwise indicated:

You state that the above orders were received by Lieutenant Tavis at Fort Worth, Texas, where she was employed as an employee of the United States Public Health Service but that in making application for appointment she had given her permanent address as Boulder, Colorado. Upon receipt of her orders she traveled to Boulder and on the date stipulated in her orders commenced travel from there to the station designated. The voucher submitted covers mileage claimed from Boulder to her station. The question you present is whether, under the circumstances, Lieutenant Tavis is entitled to mileage computed on the distance from Boulder to her station or whether mileage is limited to an amount computed on the distance from Fort Worth to her station. A determination of that question necessarily involves a consideration of her basic legal right to mileage.

Section 2 of the act of December 22, 1942, supra, provides that dietetic and physical therapy personnel appointed thereunder shall receive "mileage and other travel allowances, as now or hereafter provided by law, for commissioned officers, without dependents, of the Regular Army." Paragraph 15, Army Regulations 40-25, provides that dietitians and physical therapy aides traveling under competent orders are entitled to transportation at public expense and paragraph 9, Army Regulations 35-2020, contains a provision that, under the act of December 22, 1942, "members of the Army Nurse Corps and other female personnel of the Medical Department are entitled to mileage and other travel allowances as now or hereafter provided for by law, for military personnel of comparable grade, without dependents." Said regulations do not purport to provide that mileage accrues to a dietitian appointed under the said section of the act of December 22, 1942, for travel incident to reporting at her first post of duty. In a decision dated March 12, 1943, 22 Comp. Gen. 885, it was held that warrant officers appointed in the Regular Army from civilian life were not entitled to reimbursement on a mileage or other basis. for expenses of travel from their home to their first duty station.

With the exception of officers commissioned in the Medical Department (see 24 Comp. Dec. 434, par. 1, 7, Army Regulations 35-4830) the same rule is applicable to all commissioned officers of the Regular Army so appointed. The rule stated in the decision of March 12, 1943, is merely a restatement of the practice followed for almost one hundred years with respect to appointments in both the civil and military branches of the Government unless express statutory provision authorized some other practice.

While it could be argued that since the appointment of Lieutenant Tavis placed her in the Medical Department of the Army, she should be entitled to mileage to her first post of duty as in the case of officers commissioned in that component of the Regular Army, it does not appear that appointment of persons under section 2 of the act of December 22, 1942, gives such persons the status of commissioned officers. They are given a military status and have relative rank with officers but they are not commissioned. The said section 2 of the act of December 22, 1942, provides that their pay, money allowance for quarters and subsistence, mileage and other travel allowances shall be the same as those authorized for commissioned officers of the Regu lar Army, generally. There is no indication in said section that the Congress intended that persons appointed thereunder should have the advantage of the exception, with respect to mileage, made in the case of officers commissioned in the Medical Department. As will be seen from the decision of March 12, 1943, supra, the distinction between officers commissioned in the Medical Department of the Army and officers of the Regular Army, generally, with respect to mileage to their first post of duty has been recognized for many years and it is reasonable to assume that if it had been intended to authorize payment to dietitians of mileage received by only a particular group of officers of the Regular Army, that particular group would have been designated by clearer language than "commissioned officers

of the Regular Army." While, in that connection, administrative regulations could not increase the benefits authorized by the statute, the fact that regulations issued pursuant to the statute do not purport to provide that mileage is authorized to be paid under the circumstances here involved, indicates an administrative interpretation. of the law not inconsistent with the view herein expressed.

Accordingly, you are advised that since the travel here involved was incident to reporting for duty at her first station, Lieutenant Tavis is not legally entitled to mileage in connection therewith and, therefore, payment on the submitted voucher, which will be retained. in this office, is not authorized.