transportation costs and charges, but the purchase order did not fully express this intention by making a reference to the Federal Transportation Tax on the shipment," there is no evidence in the present record to show that the parties agreed prior to the issuance of the purchase order or the delivery of the merchandise covered thereby that the supplier would be reimbursed the amount of the applicable Federal property transportation tax. On the contrary, a fair interpretation of the terms of the supplemental contract requires the conclusion that if any error occurred it consisted merely of a misapprehension on the part of the parties in respect to the legal effect of the language contained in the purchase order. In other words, the sup posed mistake was one of law and not of fact and that being the case the supplier was not entitled to a reformation of the purchase order. In this connection see Utermehle v. Norment, 197 U. S. 40, 56; Bank of the United States v. Daniel, 12 Pet. 32, 57. Also see Tilton v. Fairmount Lodge, 91 N. E. 644, 646, wherein the Supreme Court of Illinois-the State where the sale appears to have been consummated-in holding that the lease there involved could not be reformed, said:

The parties cannot be said to have been mutually mistaken as to any question of fact. They each understood fully what language was to be contained in the instrument. It is true that the legal effect of that language is different from what they understood it to be or from what they intended. This cannot be said, in any sense, to be a mistake of fact. It was a mistake of law as to the legal effect of the language used and adopted by the parties and is not such a mistake as equity will relieve against.

*

Consequently, since there was no equitable basis, so far as the present record discloses, for a reformation of the subject contract, it cannot be said that the contractor was required to compensate the supplier for the amount of the tax here involved. And the so-called supplemental contract being wholly without consideration, it may not properly be regarded as obligating the contractor to make such payment or as furnishing a sufficient basis for the payment by the United States of the instant claim.

Accordingly, you are advised that, on the basis of the present record, certification of the instant voucher for payment is not authorized.

With respect to your inquiry concerning the use of the matters set forth in the memorandum dated October 12, 1943, of the Solicitor, Department of the Interior, in connection with future claims for reimbursement of the Federal property transportation tax, you are advised that the jurisdiction of this office is such that a decision cannot be rendered to a certifying officer except on a question specifically involved in a voucher which is properly before him for certification (see in this connection 21 Comp. Gen. 1128); and since your inquiry obviously is not involved in the above mentioned voucher, which is returned herewith, this office cannot undertake to render an

authoritative decision with respect to the matter on the basis of your present request.

However, it is deemed appropriate to invite your attention to the fact that the Federal property transportation tax law, as originally enacted by the Congress, 56 Stat. 979, was amended by the act of November 4, 1943, 57 Stat. 585, and again by Public Law 235, 78th Congress, 58 Stat. 65.

(B-40493)

PAY-ADDITIONAL-DECORATIONS AWARDED TO COAST GUARD ENLISTED MEN

The provision of section 6 of the act of February 4, 1919, as amended, authorizing additional pay to any enlisted or enrolled person of the naval service to whom is awarded a medal of honor, Navy cross, or other decoration mentioned therein, is limited to "enlisted or enrolled" persons and does not authorize such additional pay for officers of the naval service who may have been awarded such decorations.

It is an established rule, under the provision of laws-including section 6 of the act of February 4, 1919, as amended-to the effect that additional pay granted to enlisted men for decorations "shall continue throughout his active service," that such additional pay is payable only so long as the men are enlisted members of the service in which they receive the award unless there be statutory authority for comparable decorations and additional pay authorized therefor in another service of which they later may become enlisted members.

Since the provisions of sections 12 and 13 of the act of July 2, 1926, authorizing award of the distinguished-flying cross, with additional pay therefor, to persons serving with the Air Corps of the Army of the United States, or with the United States Navy, were expressly made applicable to the Coast Guard by section 4 of the act of July 30, 1937, an enlisted man who was awarded such decoration prior to his entry into the Coast Guard is entitled to the additional pay authorized therefor.

Under the act of February 4, 1919, as amended, authorizing the award of decorations mentioned therein, except the medal of honor, to any person who, while serving "in any capacity" with the Navy or naval service of the United States distinguishes himself, etc., enlisted members of the Coast Guard, who otherwise qualify therefor, are entitled to receive such decorations on account of distinguished acts or services performed while the Coast Guard is operating as a part of the Navy.

Under the act of February 4, 1919, as amended, authorizing the presentation of the medal of honor to any person who while "in the naval service of the United States" distinguishes himself, etc., service in the Coast Guard while it is operating as a part of the Navy may be regarded as "naval service" within the meaning of said act, and, therefore, enlisted persons of the Coast Guard who are awarded the medal of honor or other decorations, either prior to or after their entry into the Coast Guard, or who hold comparable decorations for which additional pay is authorized, are entitled to such additional pay during the period the Coast Guard operates under the Navy. Assistant Comptroller General Yates to the Secretary of the Navy, April 18, 1944:

There has been considered your letter of February 26, 1944, file JAG: II: WJG: hr L16-4/P15, requesting decision on certain questions presented by the Commandant, U. S. Coast Guard, in his letter of February 18, 1944, as follows:

1. The decision of the Comptroller General is requested on the following question concerning the additional pay which is provided for the award of certain medals and decorations including the Medal of Honor, Navy Cross, Distinguished

Service Medal,. Silver Star Medal, Distinguished Flying Cross, and the Navy and Marine Corps Medal:

(1) May the additional pay be credited to a person entering the Coast Guard who, prior to entry, was awarded a medal or decoration while serving as a member of another branch of the armed forces

(a) during the period that the Coast Guard operates under the Navy Department?

(b) If the answer to the first part of this question is in the affirmative, may the additional pay be continued after the Coast Guard is returned to the jurisdiction of the Treasury Department?

(2) May the additional pay be credited to a person who, while serving as an officer or enlisted man of the Coast Guard, is awarded a medal or decoration for which additional pay is provided

(a) during the period that the Coast Guard operates under the Navy Department?

(b) If the answer to the first part of this question is in the affirmative, may the additional pay be continued after the Coast Guard is returned to the jurisdiction of the Treasury Department?

2. With respect to the first part of both questions, it is fairly obvious that the additional pay may be credited during the period of Coast Guard operation as a part of the Navy. However, since a number of Coast Guard personnel have been awarded medals and decorations for which additional pay is provided, and since Coast Guard disbursing officers are presently crediting the additional pay, the Comptroller General's confirmation of this view would be appreciated.

3. In the presentation of the second part of both questions, the Comptroller General's decision of May 17, 1927, 6 Comp. Gen. 743, has not been overlooked. Although this decision appears to answer the second part of both questions, it is believed that in the light of the changed conditions since its rendition, he may wish to reconsider the reasoning by which the conclusion was reached in order that the additional pay may be credited irrespective of where the required active service is performed subsequent to the date of the award.

4. As a matter of information, the only law providing additional pay for the award of a medal or decoration wherein the Coast Guard is mentioned expressly is the Act of July 2, 1926, 44 Stat. 789 [as amended by section 4 of the act of July 30, 1937, 50 Stat. 549], concerning the award of the Distinguished Flying Cross. With respect to this decoration, therefore, there is ample authority for the crediting of the additional pay under the circumstances outlined above. This finds support in Comptroller General's decision of July 27, 1927, 7 Comp. Gen. 77, to the Secretary of the Navy.

As it does not appear that additional pay on account of the decorations referred to in the Commandant's letter is, in any event authorized for officers (see 22 Comp. Gen. 272 and the authorities cited), what is said hereinafter is to be understood as relating only to enlisted men.

As noted in the Commandant's letter, it has been the established rule under the provision in the prior laws to the effect that the additional pay granted to enlisted men for decorations "shall continue throughout his active service" that such additional pay is payable only so long as they are enlisted members of the service in which they received the award unless there be statutory authority for comparable decorations and additional pay therefor in another service of which they later may become enlisted members. For example, an enlisted man of the Army who was receiving additional pay on account of a decoration awarded to him while in the Army would not be entitled to such additional pay if he later became an enlisted man in the Navy unless a comparable decoration with such additional pay were provided for enlisted men in the Navy. See 6 Comp. Gen.

743; 7 id. 77; id. 543. The present law relating to additional pay for decorations awarded in the Navy, hereinafter quoted, contains language identical with the above with respect to the continuance of such pay; hence, the answers to the questions presented are dependent upon whether there exists any authority for awarding to enlisted men of the Coast Guard decorations on account of which additional pay is authorized.

The award of the distinguished-flying cross with additional pay therefor, was authorized for persons serving in any capacity with the Air Corps of the Army of the United States, including the National Guard and the Organized Reserves, or with the United States Navy, by sections 12 and 13 of the act of July 2, 1926, 44 Stat. 789, which sections, as amended by section 4 of the act of July 30, 1937, 50 Stat. 549, are expressly made applicable to the Coast Guard. Therefore, with respect to this particular decoration, each of the questions presented relative to additional pay of enlisted persons of the Coast Guard is answered in the affirmative. 7 Comp. Gen. 77; id. 543, supra.

As to other decorations authorized by law and which carry with them a right to additionl pay the questions presented are not easy of solution.

Sections 1 through 6 of the act of February 4, 1919, as amended by the act of August 7, 1942, 56 Stat. 743, 34 U. S. C. 354, et seq., provide:

That the President of the United States be, and he is hereby, authorized to present, in the name of Congress, a medal of honor to any person who, while in the naval service of the United States, shall, in action involving actual conflict with the enemy, or in the line of his profession, distinguish himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty and without detriment to the mission of his command or to the command to which attached: Provided, That the design of this medal shall be the same as that adopted pursuant to the Act approved December 21, 1861 (12 Stat. 330).

Sec. 2. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a Navy cross of appropriate design and ribbon, together with a rosette or other device to be worn in lieu thereof, to any person who, while serving in any capacity with the naval service of the United States, distinguishes himself by extraordinary heroism in connection with military operations against an armed enemy.

Sec. 3. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a distinguished-service medal of appropriate design and a ribbon, together with a rosette or other device to be worn in lieu thereof, to any person who, while serving in any capacity with the Navy of the United States, since the sixth day of April 1917 has distinguished, or who hereafter shall distinguish, himself by exceptionally meritorious service to the Government in a duty of great responsibility.

Sec. 4. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a silver star medal of appropriate design and a ribbon, together with a rosette or other device to be worn in lieu thereof, to any person who, while serving in any capacity with the Navy of the United States, since December 6, 1941, has distinguished himself or who hereafter shall distinguish conspicuously by gallantry and intrepidity in action, such gallantry and service not being sufficient to justify the award of a medal of honor or a Navy

cross.

Sec. 5. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a medal to be known as the Navy and Marine Corps Medal, of appropriate design with accompanying ribbon, together with a rosette or other device to be worn in lieu thereof, to any person who while serv

ing in any capacity with the United States Navy or Marine Corps, including the Naval Reserve or Marine Corps Reserve, shall have, since December 6, 1941, distinguished himself or herself by heroism not involving actual conflict with an enemy, or to any person to whom the Secretary of the Navy has heretofore awarded a letter of commendation for heroism, regardless of the date of such act of heroism, who makes application for such medal. No additional pay shall be payable under section 6 for service rendered prior to the date of the enactment of this section by virtue of the award of a Navy and Marine Corps Medal based upon any act of heroism performed prior to December 7, 1941.

Sec. 6. That each enlisted or enrolled person of the naval service to whom is awarded a medal of honor, Navy cross, distinguished-service medal, silver star medal, or a Navy and Marine Corps Medal shall, for each such award, be entitled to additional pay at the rate of $2 per month from the date of the distinguished act or service on which the award is based, and each bar, or other suitable emblem or insignia, in lieu of a medal of honor, Navy cross, distinguished-service medal, silver star medal, or a Navy and Marine Corps Medal, as hereby provided for, shall entitle him to further additional pay at the rate of $2 per month from the date of the distinguished act or service for which the bar is awarded, and such additional pay shall continue throughout his active service, whether such service shall or shall not be continuous.

It will be noted that all the decorations thus provided for, except the medal of honor, are authorized to be presented to any person who, while serving "in any capacity" with the Navy or with the naval service of the United States, distinguishes himself, etc., and as to such decorations it would appear clear that enlisted members of the Coast Guard, who otherwise qualify therefor, would be entitled to receive such decorations on account of distinguished acts or services performed while the Coast Guard is operating as a part of the Navy.

The medal of honor is authorized to be presented to any person who while "in the naval service of the United States" distinguishes himself, etc., and additional pay is provided for each enlisted or enrolled person "of the naval service" to whom is awarded any of the decorations provided for in the act. In decision of May 25, 1926, A-12596, it was held that service in the Coast Guard when operating as a part of the Navy in time of war pursuant to order of the President properly may be included in the term "naval service" for the purpose of transfer to the Fleet Naval Reserve. See, also, decision of June 13, 1936, A75227, and decision of February 1, 1943, 22 Comp. Gen. 723, wherein it is stated (page 725):

the word "Navy" in general statutory provisions has been construed to include the Coast Guard while operating as a part of the Navy where that in. terpretation clearly appears consistent with the purpose and spirit of the statute involved and the object which it was intended to accomplish. See Laws Relating to the Navy Annotated, March 4, 1921, page 706.

Considering the nature and purpose of the statute here involved and the decisions cited above, the conclusion appears warranted that service in the Coast Guard while it is operating as a part of the Navy is "naval service" within the purview of that term as used in connection with the awarding of the medal of honor and the other decorations authorized by the act, and the granting of additional pay on account thereof. Accordingly, enlisted persons of the Coast Guard who are awarded any