entitled (by reason of the savings clause contained in section 1 of the act of June 10, 1922, 42 Stat. 625) to continue to receive the pay of a warrant officer plus the allowances authorized for a commissioned warrant officer, and it was held that from the effective date of the Pay Readjustment Act of June 16, 1942, 56 Stat. 359, the officer was entitled to receive such pay and allowances—that is, the pay authorized for a warrant officer and the allowances authorized for a commissioned warrant officer at the rates prescribed in section 8 of the latter act, 56 Stat. 362, 363. The conclusion reached in that case was not based on the second proviso contained in section 7 (a) of the act of July 24, 1941, as amended, which saves to persons promoted under that act the pay and allowances to which they were entitled at the time of the temporary appointment, or the pay and allowances to which they were entitled under a prior temporary appointment in a lower rank or grade. The determination made in that decision was based on the first proviso of said section 7 (a), which provides that, except as otherwise provided, no person who shall accept a commission or warrant under the act shall, while serving thereunder, be entitled to pay and allowances except as provided by law for the position temporarily occupied. The act does not set out the rates of pay and allowances authorized for personnel temporarily promoted thereunder, and, therefore, it is to be assumed that it was the intention that the pay and allowances "as provided by law for the position temporarily occupied" were to be the pay and allowances authorized by permanent provisions of law. On March 13, 1942, the effective date of the promotion from warrant officer to chief warrant officer considered in the decision of March 2, 1943, there was in effect the following provision contained in section 1 of the act of June 10, 1922, 42 Stat. 625, 627:

Provided, That a commissioned warrant officer promoted from the grade of warrant officer shall suffer no reduction of pay by reason of such promotion.

Under that provision of law, a commissioned warrant officer promoted from warrant officer had the pay of a warrant officer saved to him. However, the allowances authorized for a warrant officer were not prescribed for payment in conjunction with such saved pay and, therefore, the only allowances authorized by law, under such circumstances, were those authorized for a commissioned warrant officer. Applying these principles to the case considered in the decision of March 2, 1943, the reason for the conclusion therein reached is apparent.

The first question for consideration is stated as follows:

(a) A petty officer first class was temporarily appointed to warrant rank on February 13, 1942, at which time he had 12 years' prior enlisted service for pay purposes; on March 8, 1943, he was temporarily appointed to commissioned

warrant rank. In view of the fact that the second proviso of section 7 (a) of the Act of July 24, 1941, as amended, states that no person temporarily appointed under the authority of that Act should suffer any reduction in pay and allowances to which entitled under prior temporary appointment in a lower rank or grade, is this individual entitled to the saved pay of a warrant officer (prior temporary rank) with over 12 years' service and the allowances of a commissioned warrant officer with less than 3 years' service. In this connection, it is pointed out that this individual was, to all intents and purposes, a warrant officer and entitled to the pay and allowances of that rank on the same basis as a permanent warrant officer, and that he was subsequently appointed to a temporary commissioned warrant rank under the same authority as a permanent warrant officer is appointed to temporary commissioned warrant rank.

Your question suggests that the answer thereto is to be determined by an application of the provisions of the second proviso of section 7 (a) of the act of July 24, 1941, quoted above, which provides that persons promoted under that act shall suffer no reduction in certain pay and allowances. However, as indicated above with respect to the decision of March 2, 1943, the first determination to be made is the pay and allowances provided by law for the position temporarily occupied, as authorized by the first proviso of said section 7 (a). If such pay and allowances equal or exceed the pay and allowances received at the time of the temporary appointment (and, also, the pay and allowances received under a prior temporary appointment in a lower rank or grade), the savings clause contained in the second proviso of said section 7 (a) has no application.

The third paragraph of section 8 of the act of June 16, 1942, 56 Stat. 362, contains the following provision:

Provided, That a commissioned warrant officer or chief warrant officer promoted from the grade of warrant officer or warrant officer (junior grade) shall suffer no reduction of pay by reason of such promotion:

That provision was in effect when the warrant officer referred to in your first question was promoted to commissioned warrant rank and, therefore, such commissioned warrant officer was entitled to the pay of a warrant officer, or to the pay of a commissioned warrant officer, whichever was greater. Like the savings clause contained in section 1 of the act of June 10, 1922, quoted above, the similar provision in section 8 of the act of June 16, 1942, does not prescribe payment to a commissioned warrant officer of the allowances authorized for a warrant officer in conjunction with the saved pay of a warrant officer, and therefore, only the allowances authorized by law for his commissioned status are authorized to be paid. Applying the foregoing to the case of the commissioned warrant officer involved in your first question, he would be entitled to the pay of a warrant officer and to the allowances of a commissioned warrant officer, which, in his case, are the allowances of the second pay period. The pay and allowances thus computed, being in excess of the pay and allowances authorized for a warrant officer, the said second proviso of section 7 (a) of the act of July 24, 1941, is not for application.

The second question stated by the Chief of the Bureau of Supplies and Accounts and the portion of his letter that follows such question are as follows:

(b) On February 15, 1943, a chief petty officer, with 15 years' prior enlisted service, was temporarily appointed to commissioned warrant rank. Is such temporary commissioned warrant officer entitled to the saved pay of a warrant officer with equivalent length of service and the allowance of commissioned warrant officer, which is normally the pay and allowances provided by law for a commissioned warrant officer in the Regular Navy until such time as the pay of that rank exceeds the pay of warrant rank.

In connection with the case cited in (b) above, it is pointed out that the Senate and House Hearings on S. 2795 show that the purpose intended to be accomplished by amending Section 7 (a) of the Act of July 24, 1941, was to give an enlisted man who was qualified for direct appointment to commissioned rank the same saved pay privileges as an enlisted man who is first temporarily appointed to warrant rank and subsequently temporarily appointed to commissioned rank. Therefore, it is considered that the phrase "pay and allowances provided by law for the position temporarily occupied," in the third proviso should be given the same liberal interpretation as the phrase "pay and allowances except as provided by law for the position temporarily occupied," in the first proviso was given in decision of March 2, 1943. Since an enlisted man temporarily appointed direct to commissioned warrant rank is considered as having been a constructive warrant officer it would appear that the saving clause in the Act of March 3, 1909, and Section 8 of the Act of June 16, 1942, should be considered as applicable in such cases, and that an enlisted man initially temporarily appointed to commissioned warrant rank should be allowed the saved pay of a warrant officer with equivalent length of service and the allowances of a commissioned warrant officer. Such an interpretation would serve to place commissioned warrant officers promoted to that rank from permanent warrant officer, commissioned warrant offieers promoted to that rank from temporary warrant officer, and commissioned warrant officers promoted to that rank from enlisted status (considered a constructive warrant officer for pay purposes) on a parity, and thereby, would prevent discrimination against the enlisted man who was qualified to be promoted direct to commissioned warrant rank without a period of service for further training in the status of temporary warrant officer.

The third proviso of said section 7 (a) of the act of July 24, 1941, added thereto by the act of November 30, 1942, 56 Stat. 1023, is as follows:

Provided further, That enlisted men who are temporarily appointed to commissioned rank under the authority of this Act shall be entitled to the pay and allowances of warrant officers with equivalent service or to the pay and allowances provided by law for the position temporarily occupied, whichever is the greater:

The language of such provision is clear and unambiguous. It provides that enlisted men temporarily appointed to commissioned rank, which apparently was intended to include enlisted men temporarily appointed to the rank of commissioned warrant officer, shall be entitled to the "pay and allowances" of a warrant officer with equivalent service, or to the "pay and allowances" provided by law for the position temporarily occupied, whichever is greater. The pay and allowances authorized for a warrant officer are fixed by said section 8 of the act of June 16, 1942, 56 Stat. 362, and in the same section there are prescribed the pay and allowances authorized to be paid to commissioned warrant officers. While that section provides that a commissioned warrant officer "promoted from the grade of warrant officer or warrant

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officer (junior grade)" shall suffer no reduction of pay by reason of such promotion, that provision does not affect the pay or allowances of a commissioned warrant officer who was not promoted from the grade of warrant officer or warrant officer, junior grade. The pay authorized for a warrant officer plus the allowances of a commissioned warrant officer are the pay and allowances authorized by law for a commissioned warrant officer only when he has been promoted to that grade from the grade of warrant officer or warrant officer, junior grade, the purpose being to save him from a reduction from the pay of a warrant officer upon promotion to the higher grade. That does not apply to an enlisted man promoted directly to the grade of commissioned warrant officer because, not having been a warrant officer or paid as a warrant officer, there would not be involved any reduction from the pay of a warrant officer in his case. Where an enlisted man is temporarily appointed to commissioned rank under the act of July 24, 1941, the statute authorizes the payment of either the "pay and allowances" of a warrant officer or the "pay and allowances" of his temporary commissioned grade-so that the promoted enlisted man will not receive less in his commissioned grade than he would have received if he had been promoted only to the grade of warrant officer-but it does not "save" him the pay of a warrant officer in conjunction with the allowances of his commissioned grade, or otherwise, because he had not been a warrant officer or paid in that grade. The fact that an enlisted man so promoted may be paid the "pay and allowances" of a warrant officer, if more than the "pay and allowances" of his commissioned grade, does not mean that he is to be regarded as having been promoted from the grade of warrant officer so as to save him the higher pay of that grade in conjunction with the higher allowances of his commissioned grade.

Attention has been called to the legislative history of the act of November 30, 1942, as an aid in determining the purpose thereof. Careful consideration has been given to said history and the statements made during the committee hearings have been studied, but nothing has been found therein that would warrant or justify a construction of the act which would change the clear and ordinary meaning of the words employed. Accordingly, you are advised that, under the circumstances stated in question (b), the temporary commissioned warrant officer is entitled to either the pay and allowances of a warrant officer, or the pay and allowances of a commissioned warrant officer, whichever is greater, but he is not entitled to the pay of a warrant officer plus the allowances of a commissioned warrant officer.

(B-35167)

TRAVELING EXPENSES-FARES-LOWEST FIRST-CLASS LIMITATION

ROOMETTES

The general unsatisfactory conditions of travel for civilians due to the war emergency do not justify nonapplication of the provisions of section 10 of the act of March 3, 1933, limiting travel allowances on an actual expense basis to "the lowest first-class rate by the transportation facility used," so that even though a roomette is the only first-class accommodation available to a particular employee at the time he applies for transportation, the excess cost thereof over the cost of a lower berth may not be allowed, notwithstanding the fact that the delay in awaiting the availability of standard Pullman accommodations would result in the payment of per diem in lieu of subsistence in excess of the additional transportation cost. Compare 22 Comp. Gen. 1122.

Acting Comptroller General Yates to D. A. Rowe, Department of Agriculture, July 7, 1943:

Reference is made to your letter of June 12, 1943, as follows:

In accordance with the provisions of Section 3 of the act of December 29, 1941 (55 Stat. 876, 31 U. S. C. 1940 ed., Supp. 1, sec. 82d), there are transmitted herewith for advance decision two reclaim vouchers in favor of G. Osmond Hyde, Principal Attorney, Office of the Solicitor, Department of Agriculture, each in the amount of $5.35, representing the amounts disallowed upon administrative examination of the vouchers presented by Mr. Hyde for reimbursement of travel expenses incurred during the periods February 2 to February 14, 1943, and March 2 to April 4, 1943. The basis for the administrative disallowances, as set forth in letters dated March 25 and April 14, 1943, to Mr. Hyde, copies of which are enclosed, is that, pursuant to Paragraph 13 (a) of the Standardized Government Travel Regulations, the allowance for sleeping accommodations cannot exceed the cost of a standard lower berth. Excess charges amounting to the difference between the accommodations used and lower berth charges were accordingly suspended from the claims.

In support of his reclaim vouchers, Mr. Hyde has set forth the following reasons:

"On the trips from New York, New York, to Chicago, Illinois, on March 4, 1943, and from Chicago, Illinois, to Washington, D. C., on April 1, 1943, there were no spaces, except roomettes, available on any train on which this traveler's railroad ticket would be honored, and arriving at the destination points in sufficient time for the traveler to keep appointments previously made. Therefore, the traveler purchased roomettes in lieu of lower or upper berths.

"In view of the extremely heavy traffic by railroad during the emergency war period, and in view of the fact that no other spaces were available, it is requested that the increased cost due to the use of roomettes be allowed and paid to the traveler.

"If the traveler had waited in New York and in Chicago until such time as a lower or upper berth could have been purchased, it would have resulted in increased per diem to an amount far in excess of the additional cost created by the use of a roomette."

Certification of this voucher depends, of course, upon the proper interpretation of Section 10 of the act of March 3, 1933 (47 Stat. 1516, 5 U. S. C. 1940 ed., 736), as implemented by Paragraph 13 (a) of the Standardized Government Travel Regulations, as amended. The said section makes this provision:

*

*

"Whenever by or under authority of law actual expenses for travel may be allowed to officers or employees of the United States, such allowances shall not exceed the lowest first-class rate by the transportation facility used in such travel."

This provision has been construed in several decisions by your office, including 20 Comp. Gen. 125; 18 id. 705; 14 id. 460; 13 id. 10, 17. In 20 Comp. Gen. 125, the following decision was rendered:

"It has been uniformly held by this office that the limitation fixed in the act of March 3, 1933, supra, permits of no exceptions and that it is applicable even