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in which case they shall retain the higher rate. Enlisted men retired on or after July 1, 1922, shall have their retired pay based on the pay to which entitled on the active list when retired.

Retired enlisted men are not deprived by the act of June 10, 1922, of the allowances of $9.50 per month in lieu of rations and clothing, and of $6.25 per month in lieu of quarters, fuel, and light which were provided for retired enlisted men by the act of March 2, 1907.

No objection is now seen thereto. It is suggested that at end of paragraph as to allowances of retired enlisted men there be inserted 'See 18 Comp. Dec., 575."

Page 4, last paragraph. The instruction reads:

Retired enlisted men recalled to active duty are entitled to full pay; that is, the pay on which their retired pay is based and of which they are receiving but a part while on inactive duty. Retired enlisted men are entitled to count active Service performed while on the retired list in the computation of service for pay purposes.

Omit. Any question of pay arising in connection with the calling of enlisted men to active duty under the war provisions of the act of March 3, 1915, 38 Stat., 941, and the act of July 1, 1918, 40 Stat., 719, would be proper for a separate submission.

PAY AND ALLOWANCES OF ENLISTED MEN OF THE MARINE CORPS AS EFFECTED BY SAVING CLAUSE IN JOINT SERVICE PAY ACT.

The rights of enlisted men of the Marine Corps to commutation of quarters for

dependents and additional ration under sections 2 and 5 of the act of May 18, 1920, 41 Stat., 602, automatically expired by limitation of law on June 30, 1922, and as they would not have been entitled thereto thereafter had the legislation of June 10, 1922, 42 Stat., 632, not been enacted the saving clause in section 16 of that act does not operate to save any right thereto, and they are not entitled to either said commutation or additional ration on aná

after July 1, 1922. Enlisted men of the Marine Corps who are entitled to the benefits of the saving

clau in section 16, act of June 10, 1922, 42 Stat., 632, during their enlistment current on June 30, 1922, and without change in grade, are entitled to have their pay and allowances computed on either the old or the new basis, depending upon whichever as a unit yields the greater total, and the basis may be changed from one to the other as often as under the conditions of

the service the total of one becomes greater than that of the other. Comptroller General McCarl to the Secretary of the Navy, August 30, 1922:

I have your letter of August 15, 1922, requesting decision of certain questions submitted by the Paymaster, United States Marine Corps, relating to the pay and allowances of enlisted men of the United States Marine Corps arising under the saving clause contained in section 16, act of June 10, 1922, 42 Stat., 632, providing:

nothing contained in this act shall operate to reduce the total of the pay and allowances which any enlisted man of the Army, Navy, Marine Corps, or Coast Guard, is now receiving during his current enlistment and while he holds his present grade or rating.

The questions will be stated and answered in the order submitted:

(a) Is an enlisted man of the second grade, serving at sea or in a foreign country, entitled to commutation of quarters, heat and light for maintaining a place of abode for dependents, and to the additional ration during current enlistment, provided his grade or rating is not changed subsequent to June 30, 1922?

This question is supplemented and explained by reference to sections 2 and 5 of the act of May 18, 1920, 41 Stat., 602, providing for commutation of quarters, etc., on account of dependents, and an additional ration, respectively, it being stated:

The question arises whether enlisted men of the second grade who are on sea or foreign shore duty will be entitled to commutation of quarters for dependents and to the additional ration after June 30. 1922, if the total of their pay and allowances including the above as of June 30, 1922, amounts to more than their pay and allowance under the new law.

The act of May 18, 1920, provides :

SEC. 2. That the rights and benefits prescribed under the act of April 16, 1918, granting commutation of quarters, heat, and light during the present emergency to officers of the Army on duty in the field are hereby continued and made effective until June 30, 1922, and shall apply equally to officers of the Navy, Marine Corps, Coast Guard, and Public Health Service: Provided, That such rights and benefits as are prescribed for officers shall apply equally for enlisted men now entitled by regulations to quarters or to commutation there for.

Sec. 5. That all noncommissioned officers of the Army of grade of color sergeant and above as fixed by existing Army Regulations and noncommissioned officers of the Marine Corps of corresponding grades shall be entitled to one ration or commutation therefor in addition to that to which they are now entitled, * SEC. 13. That the provisions of sections

5,

of this act shall remain effective until the close of the fiscal year ending June 30, 1922, unless sooner amended or repealed.

It thus appears that the provisions of sections 2 and 5 of the act of May 18, 1920, automatically expired on June 30, 1922, by the express terms of that act, and were not effective after June 30, 1922, for that reason, and not by reason of anything contained in the act of June 10, 1922. If the latter act had not been enacted the enlisted men in question would not have been entitled to the allowances provided in said sections 2 and 5 after June 30, 1922.

Section 16 of the act of June 10, 1922, saves to enlisted men, under the circumstances therein prescribed, the pay and allowances that would have continued in effect and to which they would otherwise be entitled after June 30, 1922, but for the provisions contained in that act. It does not, however, have the effect of reviving and continuing in effect a law which expired by its own terms prior to July 1, 1922.

This question is answered in the negative.

Question (b) is contingent upon an affirmative answer to the proceding question, so need not be quoted and answered.

(c) Can an enlisted man of any grade during current enlistment whose grade or rating has not been changed subsequent to June 30, 1922, be paid under laws in effect prior to June 30, 1922, for a period subsequent to June 30, 1922, and subsequently change to the pay provided by the act of June 10, 1922?

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An enlisted man who is and while entitled to the benefits of the saving clause in section 16 of the act of June 10, 1922, is entitled to have his pay and allowances computed on either the old or the new basis, whichever yields the greater total, and the basis may be changed from one to the other as often as the various conditions of service may require. See answer to question (b) in decision of this office of July 17, 1922,2 Comp. Gen., 21.

This question is answered in the affirmative.

RENTAL ALLOWANCE TO COAST GUARD OFFICERS ON LEAVE OF

ABSENCE.

The provision in the act of June 10, 1922, 42 Stat., 628, granting allowance

for rental of quarters to officers while on leave of absence applies only when no public quarters are available, and then only when the officer is in a duty status entitling him to quarters in kind; therefore an officer on leave of absence while detached from all duty and unassigned would not be entitled to quarters in kind nor to money allowance for rental of

quarters. Comptroller General McCarl to Lieut. S. S. Yeandle, United States Coast Guard, August 30, 1922:

I have your letter of August 25, 1922, requesting decision whether payment is authorized of a voucher submitted by former Lieut. (Junior Grade) G. R. Crosby, United States Coast Guard, for subsistence and rental allowance for the period July 1, 1922, to August 8, 1922. There accompanies the voucher a certificate setting forth that the officer has a wife.

It appears that on May 3, 1922, the commandant addressed orders to Lieutenant Crosby at the Coast Guard Academy, as follows:

On May 31, 1922, you are detached from the Coast Guard Academy and from such other duties as may have been assigned you, and granted leave of absence, unassigned, for two months and eight days.

Section 5 of the act of June 10, 1922, 42 Stat., 628, authorizes a subsistence allowance“ at all times," and accordingly a subsistence allowance would be payable to Lieutenant Crosby for the period in question.

As to the rental allowance, section 6 of the act of June 10, 1922, 42 Stat., 628, provides: That each commissioned officer on the active list

in any of the serpices mentioned in the title of this Act, if public quarters are not available, shall be entitled at all times, in addition to his pay, to a money allowance for rental of quarters, the amount of such allowance to be determined by the rate for one room

*. Such rate for one room is hereby tixed at $20 per month for the fiscal year 1923,

*. The rental allowance shall accrue while the officer is on field or sea duty, temporary duty away from his permanent station, in hospital, on leave of absence or on sick leave, regardless of any shelter that may be furnished him for his personal use, if his dependent or dependents are uot occupying public quarters during such period.

There are two essential conditions necessary to the receipt of the rental allowance: (1) that public quarters are not available, and (2) that the officer occupies a duty status that would entitle him to quarters in kind. If an officer is in a duty status that does not give him a right to quarters, in kind, the availability or nonavailability of quarters is not an element for consideration, and a right under the law to the rental allowance fails. When an officer is detached from all duty and "unassigned,” he does not occupy a status that would entitle him to be assigned quarters, and so the nonavailability thereof would not give rise to a claim for the rental allowance.

The provision of section 6, which authorizes a rental allowance while "on leave of absence," taken into consideration with the provision which makes the right to the rental allowance contingent upon the nonavailability of quarters, clearly presents the fact that the leave of absence referred to has reference to leave granted an officer while occupying a status which entitled him to quarters in kind, or, in other words, leave of absence which does not affect his status as constructively an officer assigned to duty at a station.

As the question of availability or nonavailability of quarters can not enter into Lieutenant Crosby's case by reason of the fact that in the status he occupied from July 1 to August 8, 1922, he would not have been entitled to quarters in kind, even if available, I conclude that he is not entitled to the rental allowance claimed.

SUBSISTENCE ALLOWANCE FOR NAVY NURSES ON AND AFTER

JULY 1, 1922. The appropriation in the act of July 1, 1922, 42 Stat., 801, for subsistence in

kind for nurses at hospitals and on board ships in lieu of subsistence allowance, while permitting furnishing subsistence in kind does not bar payment of the regular money allowance for subsistence authorized by the act of June 10, 1922, 42 Stat., 628, when such nurses are on leave of absence from

a hospital or ship and subsistence in kind is not furnished. Comptroller General McCarl to the Secretary of the Navy, August 30, 1922:

I have your letter of August 14, 1922, submitting for approval a proposed change in section C of instructions issued by the Paymaster General of the Navy under the joint service pay bill, act of June 10, 1922, 42 Stat., 625.

The instructions as issued and amended by ALNAV 28 provided, on page 1, in paragraph 2:

From and after 1 July 1922, female nurses are entitled to the subsistence allowance of an officer drawing the pay of the first pay period which amounts to sixty cents per day during the fiscal year Nineteen Twenty-three except when on duty at hospitals and on board ship, when they shall be subsisted in kind as heretofore.

Your proposed change is that at the end of the paragraph shall be added :

When on authorized leave of absence from hospitals and ships, nurses are entitled to be credited with the subsistence allowance of sixty cents per day.

*

Section 5 of the act of June 10, 1922, 42 Stat., 628, provides:
That each commissioned officer on the active list,

shall be entitled at all times, in addition to his pay, to a money allowance for subsistence

The value of one allowance is hereby fixed at 60 cents per day for the fiscal year 1923, • To each officer of any of the said services receiving the base pay of the first period the amount of this allowance shall be equal to one subsisience allowance

Section 13 of the act of June 10, 1922, 42 Stat., 631, provides :

Nurses shall be entitled to the same allowance for subsistence as is authorized in section 5 of this Act for officers receiving the pay of the first period,

The act of July 1, 1922, 42 Stat., 801, appropriated funds under the heading “Provisions, Navy," for

Subsistence in kind at hospitals and on board ship in lieu of subsistence allowance of female nurses.

Under this appropriation the Secretary of the Navy may direct that nurses on duty at hospitals and on board ships shall be subsisted in kind, but if the Secretary of the Navy does not direct the issuance of subsistence in kind it does not follow that the payment of the subsistence allowance is prohibited. As the matter now stands a direction has gone forth for the issuance of subsistence in kind and by reason thereof nurses are not entitled to the subsistence allowance while on duty in question.

If a nurse on leave of absence from a hospital or ship does not in fact obtain subsistence in kind from the Government she is entitled to the subsistence allowance, but if she continues to obtain it in kind while in a leave status no subsistence allowance is authorized. The proposed addition to the instructions should be modified to this effect.

PAY AND ALLOWANCES OF ENLISTED MEN OF THE ARMY UNDER

THE JOINT SERVICE PAY ACT.

This decision involves numerous questions relating to the pay and allowances

of enlisted men of the Army on and after July 1, 1922, under the joint service pay act of June 10, 1922, 42 Stat., 625. It sets forth consecutively

each question submitted with its answer. For points involved see decision. Comptroller General McCarl to the Secretary of War, August 31, 1922:

There has been received your letter of July 12, presenting for decision a series of questions arising under section 9 of the act of June 10, 1922, 42 Stat., 629, respecting increases of pay for length of service and reenlistment allowance of enlisted men of the Army. The section in question, so far as here material, provides:

Existing laws authorizing continuous-service pay for each five years of serv. ice are hereby repealed, effective June 30, 1922. Commencing July 1, 1922,

* enlisted men of the Army and Marine Corps, shall receive, as a permanent addition to their pay, an increase of 5 per centum of their base pay for each four years of service in any of the services mentioned in the title of

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