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41 Stat., 109. The acts of March 3, 1915, 38 Stat., 939, and July 1, 1918, 40 Stat., 718, in so far as in conflict, are repealed.
Warrant officers of the Navy-not being commissioned officers-do not correspond for aviation pay and expense purposes to “officers ” of the Army, and as no separate provision for aviation pay or expenses of warrant officers of the Army exists those of the Navy are without any provision therefor for flying duty or air travel unless classed for purposes of such correspondence to Army as noncommissioned officers and generally as enlisted men.
Those of the Navy whose duties are of a character requiring them to participate regularly and frequently in aerial flights, and who in this respect :-c differentiated for duty purposes from warrant officers of the Army, become entitled on and after July 1, 1922, to 50 per cent increase in pay for duty performed regularly and frequently requiring aerial flights, and such officers generally to actual expenses as authorized for enlisted men of the Army similarly traveling by act of April 20, 1918, 40 Stat., 534. The acts of March 3, 1915, 38 Stat., 939, and July 1, 1918, 40 Stat., 718, in so far as in conflict, are repealed.
Enlisted men of the Navy, exclusive of those of its staff branches, while detailed to duty involving flight, become entitled on and after July 1, 1922, for duty performed thereunder which requires them to participate regularly and frequently in aerial flights to 50 per cent increase in pay and those of all branches to actual expenses of travel as provided for enlisted men of the Army by the act of April 20, 1918, 40 Stat., 534. The acts of March 3, 1915, 38 Stat., 939, and July 1, 1918, 40 Stat., 718, in so far as in conflict, are repealed.
The duty the performance of which under proper detail carries the additional pay is duty that in itself can and does require frequent and regular aerial flights and the pay is not payable because of flights performed independently thereof. The Congress clearly did not confer the 50 per cent increase of pay for flights that could be or are performed independently of a necessity therefor inherent in the duty itself to which detailed-as perfunctory flights made while in the performance of office or ground duty neither requiring nor contemplating participation in regular and frequent aerial flights, or while unassigned to any specific duty and with the object only of acquiring or maintaining such a flight status as will carry the addi
Nor do I find anything in the act of June 10, 1922, differentiating Navy duty in this respect for aviation pay purposes from that theretofore required. The former Navy law required Navy officers to be “ detailed for duty involving actual flight in aircraft,” while the Army law now applying to them for pay purposes characterizes their duty as that“ requiring them to participate regularly and fre
quently in aerial flights." In either event the flights must equally arise out of and be necessitated by a proper performance of the duty under the detail.
Nor do I find anything in the application to Navy officers of the Army conditions that in itself transforms them for flight purposes from the status of serving in exceptional or special conditions within which they in each instance must be brought for additional pay purposes to that of serving under universal conditions for additional pay purposes subject only to exceptions taking them out of such status.
The flight certificate should not only set forth that flights to the required number, or period in air, and within prescribed dates, have in fact been made, but in addition state that they were flights necessitated by and inherent in the duty itself to which detailed, and that no facts affecting such inherent duty have occurred in the said flight period except as therein set forth, and should have appended a schedule of flights showing dates, numbers, and periods in air.
As to the decision of the Court of Claims in the case of Luskey v. United States, No. 34241, decided November 7, 1921, which appears to hold that for the purpose of the payment of the 50 per cent additional pay the detail rather than the duty involved is controlling, it is sufficient to say that said case is pending on appeal in the Supreme Court of the United States, and in view of what is said herein the reasoning in that decision can not now be adopted by the accounting officers of the Government.
The proposed instructions in so far as they differ from the views above expressed are not concurred in.
NATIONAL GUARD-PAY FOR AVIATION DUTY.
Members of the National Guard attending encampments or service schools
under section 94 or 99 of the act of June 3, 1916, 39 Stat., 206, 207, are not in the service of the United States and are not a part of the Army of the United States within the meaning of section 20, act of June 10, 1922, 42 Stat., 632, and are not therefore entitled to additional pay when assigned
to aviation duty during such encampments or at service schools. Comptroller General McCarl to the Secretary of War, September 7, 1922:
There has been received your letter of August 17, 1922, reading as follows:
Section 20, act of June 10, 1922, provides:
“ That all officers, warrant officers, and enlisted men of all branches of the Army,
when detailed to duty involving flying, shall receive the same increase of their pay and the same allowance for traveling expenses as are now authorized for the performance of like duties in the Army."
Section 1, act of June 3, 1916, as amended, provides :
“That the Army of the United States shall consist of the Regular Army, the National Guard while in the service of the United States, and the Organized Reserves, including the Officers' Reserve Corps and the Enlisted Reserve Corps."
Sections 94 and 99 of the act of June 3, 1916, as amended, provide for the participation of the National Guard in encampments and maneuvers and for
attendance of National Guard personnel at service schools, and prescribes for them the same pay and allowances as members of the Regular Army.
Your decision is requested whether members of the National Guard, particolarly of air units, in service under the provisions of the above cited sections of the act of June 3, 1916, if assigned to and actually engaged in Aying, are entitled to the additional flying pay.
In 27 Comp. Dec., 631, 633, it was said:
The United States turns over to the disbursing officer or agent of the State, Territory, or District of Columbia So much of the allotment of the appropriation made under section 1661, Revised Statutes, as amended, as may be necessary for the payment of the pay, subsistence, transportation, " and other proper expenses of members of the National Guard while participating in such encampments, etc. The accounting officers of the Treasury will hold the disbursing officer accountable to the United States in case he pays out the funds for purposes other than for which appropriated, but they are without jurisdiction to receive or consider the claims of individual officers and enlisted men based on their participation in such encampments, etc. 10 Comp. Dec., 635.
Until called forth under section 101 of the act of June 3, 1916, 39 Stat. 208, or drafted under section 49 of the act of June 4, 1920, 41 Stat., 784, members of the National Guard are not in the military service of the United States. Inasmuch as the members thereof while participating in such encampments, etc., are not called forth or drafted they continue to be State forces and do not at any time pass into the service of the United States.
And in 27 Comp. Dec., 1017, 1019, it was said:
An officer authorized to attend and while attending such a school is not in the service of the United States, for the members of the National Guard are not in the United States Army unless and until they are called forth under section 101 of the act of June 3, 1916, 39 Stat., 208, or drafted under section 49 of the act of June 4, 1920, 41 Stat., 784, 27 Comp. Dec., 634.
For pay purposes under existing statutes I think this is a correct construction of the law, although in a well-reasoned opinion of the Judge Advocate General of the Army, Dig. Op. J. A. G., Army, April 1 to December 31, 1917, page 64, it was said:
The militia status of the National Guard remains unaffected up to the point where the individual members thereof are by draft placed into the Army of the United States. Whether the National Guard, therefore, be or be not in the service of the United States, or whether it be called into the service of the United States as such for the constitutional purpose “to execute the laws of the Union, suppress insurrection, and repel invasion," it is still a State force, and its relation to the Federal Government is that of a State military force subject, under the constitution, to be requisitioned as such for limited Federal purposes. The organization never becomes federalized. Its members become a Federal force only when drafted into the Army of the United States, and its officers become officers of the United States only when upon the draft they become appointed officers of the Army of the United States.
It may safely be said, therefore, that it is well settled that organizations of the National Guard when attending encampments as authorized by section 94 of the act of June 3, 1916, 39 Stat., 206, and members thereof attending service schools of the Army under section 99 of the same act, are not in the service of the United States, and they are not, therefore, a part of the Army of the United States within the meaning of section 1 of the act of June 4, 1920, 41 Stat., 759, and section 20 of the act of June 10, 1922, 42 Stat., 632.
In addition it may be remarked that section 94 of the national defense act limits the pay of members of the National Guard when attending encampments to the pay “of corresponding grades of the Regular Army"; and section 99 limits the pay of members of the National Guard attending service schools to that which an officer or enlisted man of the Regular Army would be entitled for attending such school, with a proviso that the pay and allowances authorized under that section shall in no case exceed those of a captain,
You are therefore informed that members of the National Guard are not entitled to increased pay for flying duty while attending encampments under section 94 of the act of June 3, 1916, nor when attending service schools of the Army under section 99 of the same act.
DISBURSEMENTS BY ACTING REGISTERS OF LOCAL PUBLIC
The act of October 28, 1921, 42 Stat., 208, providing for the designation by the
Secretary of the Interior of the chief clerk of the local land office or other qualified employee of the Department of the Interior as acting register in case of vacancy in the office of register or inability of the register to act, does not authorize such acting register to draw checks against the register's depository balance; and if it becomes necessary for the acting register to make official disbursements by check, funds should be placed to his official credit by accountable warrant on requisition or by transfer
from the register's account. Comptroller General McCarl to the Secretary of the Interior, September
I have your letter of August 12, 1922, stating in effect that under the authority of section 2 of the act of October 28, 1921, 42 Stat., 208, you have designated the chief clerk or other employee, in all local land offices in which there is but one officer, to act for the register in such office and to sign all official papers as “ acting register” in case of the death, resignation, removal, or absence of the register, and requesting decision whether the employee so designated may, under such circumstances and in like capacity, sign official checks against funds to the credit of the register.
Section 2 of the act of October 28, 1921, provides:
That in case of a vacancy in the office of register by reason of death, resignation, or removal, or in case of inability to act, the Secretary of the Interior may designate for the period of such vacancy or inability to act the Chief Clerk of such office, or any other qualified employee of the Department of the Interior to act as register, subject to the filing of such bond or bonds as the Secretary of the Interior may prescribe, and the same authority is conferred upon the person so designated which such register lawfully possesses, except that no contest or protest shall be decided or disposed of by such clerk or employee, but all such decisions shall be deferred until the appointment or return of the register.
This provision was remedial in character and therefore must be given a liberal construction to the end that the condition sought to
be remedied, to wit, the existence of a local land office with no one in charge authorized to perform the duties of said office, shall be relieved against. Its primary purpose relates to the performance of administrative duties. Bearing this in mind I think it is clearly within the contemplation of the law that the employee selected to act as register be designated, bonded, and qualified in advance of the occurrence of a vacancy in the office of register or an inability of the register to act. But the law does not provide that the employee designated to act as register shall be a deputy register, authorized to act for and in the name of the register. Neither does it specifically authorize such employee to draw checks against the register's depository balance. To permit the register and the employee desig. nated as acting register to check against the same balance is not necessary to give full effect to the provisions of section 2 of the act of October 28, 1921, and such a practice would not be consistent with good accounting procedure. You are advised, therefore, that when it becomes necessary for an acting register to make official disbursements by check it will be necessary to have funds placed to his official credit, either by accountable warrant on requisition or by transfer from the register's account.
APPREHENSION AND DELIVERY OF INSANE ENLISTED MEN
OF THE ARMY.
The apprehension and delivery to military authorities of an insane enlisted
man of the Army being a matter of public necessity any expense necessarily incurred by a civilian in effecting such apprehension and return to the custody of the Medical Department of the Army may be reinbursed from the appropriation for necessary miscellaneous expenses of the Medical
Department in the act of June 5, 1920, 41 Stat., 976. Decision by Comptroller General McCarl, September 9, 1922.
B. C. Swann has requested review of settlement No. W-854021, this office, dated July 21, 1922, whereby was disallowed his claim for $81.08, reimbursement of expenses incurred in connection with the apprehension and delivery to military control of Corporal James Brent Swann, United States Army, insane patient.
After a four months' period of observation and treatment for insanity in the Letterman General Hospital, San Francisco, Calif., it was decided to discharge the patient on certificate of disability and to have him committed after discharge to a hospital designated by the United States Veterans’ Bureau in accordance with the provisions of General Order No. 57, War Department, 1919, as amended by General Order 96 of the same year. In accordance therewith Corporal Swann was sent under orders dated May 4, 1921, from San Francisco, Calif., to Public Health Service hospital at Augusta, Ga., in the care of two attendants of the Medical De