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partment of the Army, the patient to be discharged from the service upon arrival at the hospital in Augusta. After arrival and while the attendants were waiting to complete formality of delivery, and their release from further responsibility, the patient escaped and could not be found by the attendants or the hospital or military authorities. May 15, 1921, patient was apprehended at Ooltewah, Tenn., and transferred to the home of his brother, claimant herein, and later to hospital in Paducah, Ky., where he was turned over to military authorities, all at the expense of claimant. The present claim is made up of items of transportation, subsistence, hire of attendant, and hire of automobile necessary to return patient to military control, all of which have been recommended for payment by the Surgeon General's office.

The claim was denied for the stated reason that there is no law or regulation authorizing payment by the Government of expenses incurred by civilians in apprehending and delivering to military control escaped insane soldiers.

It is true that the Army Regulations, paragraphs 464 to 470, providing for care and discharge of insane soldiers apparently do not contemplate the escape of insane patients and make no provision for their apprehension, nor do the War Department general orders of 1919, under authority of which this insane patient was transferred, provide for apprehension and delivery of escaped patients. The only express statute provision or appropriation for apprehension and delivery of insane patients is in the annual appropriations for St. Elizabeths Hospital, not applicable to this case.

This patient was still in the military service of the United States at the time of his escape, apprehension, and delivery to military control. When he escaped he was in the custody of the Medical Department of the Army. Responsibility rested with that department for the safe delivery of the patient to the hospital authorities at Augusta, and it is the appropriations for that department of the Army, if any, in absence of specific appropriation, that are chargeable with the expense incurred by claimant.

In the Army appropriation act for fiscal year 1921, June 5, 1920, 41 Stat., 976, after mention is made of specific items for the Medical Department, provision is made for "all other necessary miscellaneous expenses of the Medical Department.”

While at large insane patients are a danger to themselves and others with whom they may come in contact and their immediate apprehension is a public necessity. If the Medical Department be responsible for the escape and the Government is unable to effect the return of the patient I believe necessary expenses incurred by a civilian. in apprehending and delivering the patient to military con

trol is properly chargeable to the appropriation for the Medical Department of the Army as a necessary miscellaneous

expense.” Upon review of the matter the settlement is reversed and the sum of $81.08 certified due claimant, payable from appropriation “Medical and Hospital Department,” 1921.

PAY CLERKS OF MARINE CORPS-SUBSISTENCE AND RENTAL

ALLOWANCES.

Pay clerks of the Marine Corps are entitled to the same rental and subsistence

allowances as a second lieutenant of the Marine Corps of same length of

service. Comptroller General McCarl to Capt. C. S. Schmidt, United States Marine Corps, September 12, 1922:

I have your letter of August 15, 1922, transmitting voucher in favor of John D. Erwin, pay clerk, United States Marine Corps, for pay and rental and subsistence allowances for the month of August, 1922, on the basis of the pay and allowances as fixed for a second lieutenant of the Marine Corps by the act of June 10, 1922, 42 Stat., 625, of the same length of service-over five years and with dependent, and requesting decision as to whether you are authorized to pay the voucher, and, if not, as to the correct amount of subsistence and rental that may be paid to him.

You state that public quarters are neither available for Pay Clerk Erwin nor is his dependent in the occupancy thereof.

No express provision is found in the act of June 10, 1922, for allowances for pay clerks of the Marine Corps. On the other hand, section 1 of the act, 42 Stat., 627, expressly provides for their pay as follows:

Pay clerks of the Marine Corps shall receive the pay of second lieutenants of the Army of the same length of service

Under said act the pay of second lieutenants of the Army of the same length of service-over five years—is the second period, base $2,000 per annum, plus 5 per cent for three years' length of service, $100, or $2,100 in all.

There is no provision for subsistence and rental allowances for pay clerks of the Marine Corps in the act of June 10, 1922, unless the provision for the payment to them of the pay of second lieutenants of the Army of the same length of service automatically carries with it the allowances thereunder of a second lieutenant of the Army; or aside from and in connection with said pay provision the intent of Congress that they should receive such allowances is sufficiently manifest.

The express provision in the act of June 10, 1922, giving pay clerks of the Marine Corps the pay of second lieutenants of the Army of the

same length of service operates to place them for pay purposes in the identical pay period in which second lieutenants of the Army of the same length of service are placed by the act—that is, with five years of service for base pay in the second period.

The respective provisions for rental and subsistence allowances provideTo each officer receiving the base pay

of the second period

the amount of this allowance shall be equal to two subsistence allowances,

* Section 5 of the act of June 10, 1922, 42 Stat., 628. To each officer receiving the base pay

of the second period the amount of this allowance shall be equal to that for three rooms, Section 6 of the act of June 10, 1922, 42 Stat., 628.

These provisions operate to entitle second lieutenants of the Army with five years' service and dependents, by virtue of their receipt under the act of the base pay of the second period, to a yearly subsistence allowance of $138 and a yearly rental allowance of $720, in addition to their base pay, plus longevity, of $2,100.

While these allowances are by their authorization terms confined to “officers ” and each of said sections in preceding terms refers to the officers for which the allowance is provided as “commissioned officers,” yet it is in the independent status as a pay clerk of the Marine Corps assimilated for pay purposes to a commissioned officer that the right of such a pay clerk to the receipt of the pay of the second period attaches and consequent right to the allowances, if at all. The fact, therefore, that the authorizations for the respective allowances are for “officers” is not in itself controlling

The status of pay clerks of the Marine Corps as to pay and allowances at the time the legislation of June 10, 1922, was enacted was that they had been assimilated for such purposes to pay clerks of the Army, who in turn for such purposes had been assimilated to second lieutenants of the Army, and, in addition, had, under the terms of the statute thus assimilating them, been commissioned as second lieutenants of the Army and when commissioned had ceased to exist as pay clerks of the Army. See acts of June 24, 1910, 36 Stat., 625; March 3, 1911, 36 id., 1044; June 24, 1910, 36 id., 606; August 24, 1912, 37 id., 592; June 3, 1916, 39 id., 170; and September 7, 1888, 25 id., 470.

After the pay clerks of the Army had been commissioned under the act of June 3, 1916, as second lieutenants of the Army—the statute under which their pay had been assimilated to said second lieutenants—the former Comptroller of the Treasury decided that pay clerks of the Marine Corps continued to be entitled to the pay and allowances of a second lieutenant of the Army, and they were being so paid when the legislation of June 10, 1922, was enacted. See 23 Comp. Dec., 508, decided March 9, 1917.

No reason is seen why, in this situation, the Congress in the new legislation should except pay clerks of the Marine Corps for the purpose of allowances from assimilation with second lieutenants of the Army while expressly continuing their assimilation as it theretofore in effect existed for the purpose of pay, while the contrary intent may be inferred from the fact that said continuance or declaration of pay assimilation placed said clerks in effect in the identical pay period with said second lieutenants, who in turn in consequence of the receipt of their period pay automatically receive the subsistence and rental allowances.

It is concluded that it was not the intent of the Congress that the new legislation should so operate as to preclude pay clerks of the Marine Corps from the receipt of any allowances, or to differentiate between pay and allowances for the purposes of their assimilation to second lieutenants of the Army of the same length of service.

You are advised that payment to Pay Clerk Erwin of rental and subsistence allowances of the second pay period, with dependent, as indicated by the voucher, is authorized.

SPECIALISTS' RATINGS.

The rating of an enlisted man of the Army as a specialist on or after July

1, 1922, does not constitute a change in grade within the meaning of the saving clause in section 16, act of June 10, 1922, 42 Stat., 632, and a private (seventh grade) rated on or after July 1, 1922, as a specialist (sixth class) is entitled under said saving clause to the total of the pay to which he would have been entitled for said grade and rating had the legislation of June 10, 1922, not been enacted, $33 per month, being higher than the total of the pay of said grade and rating as prescribed by the act of June 10, 1922, $24 per month, assuming there were no allowances to enter into the computation of the new or old total and that the rating of him as specialist (sixth class) under the former law would not have exceeded the maximum number authorized for that rating as fixed by the

act of June 4, 1920, 41 Stat., 761. Comptroller General McCarl to Maj. 0. W. Gralund, United States Army,

September 12, 1922:

I have your letter of August 8, 1922, requesting decision whether you are authorized to pay Pvt. John D. Langsford, Quartermaster Corps, Army serial No. 6315550, Motor Repair Section No. 86, $9 for the month of July, 1922, as difference in pay between that of grade of private (seventh grade) under laws in effect on June 30, 1922 ($30 per month), and as fixed for said grade by the act of June 10, 1922, 42 Stat., 629 ($21 per month), as per voucher transmitted.

It appears that claimant enlisted November 9, 1921, and is still serving in said enlistment; that on July 1, 1922, he was rated a specialist, sixth class, and that he has been paid for the month of July, 1922, $21 per month as base pay of his grade, plus $3 additional for his rating as specialist, sixth class, or at the rate of $24

is now re

per month, as authorized by the act of June 10, 1922, which is the total of the pay to which he is entitled for the month of July, unless by virtue of the saving clause in section 16 of the act of June 10, 1922, he, in lieu thereof, is entitled to the total of the higher pay and allowances under laws which would have been operative had the legislation of June 10, 1922, not been enacted. Section 16 of the act of June 10, 1922, 42 Stat., 632, provides :

nothing contained in this Act shall operate to reduce the total of the pay and allowances which any enlisted man of the Army, ceiving during his current enlistment and while he holds his present grade or rating.

The conferring on Private Langsford on July 1, 1922, of the rating of specialist, sixth class, did not operate as a change of his grade of private (seventh grade), and he continues on and after July 1, 1922, while holding said grade as private (seventh grade) during enlistment current on June 30, 1922, to be entitled under said saving clause to the total of the pay and allowances in receipt of under laws in effect on that date to the extent that he would have been entitled thereto had the legislation of June 10, 1922, not been enacted, provided said total be, in fact, greater than the total of the pay and allowances to which he would be entitled under the act of June 10, 1922. See decision to Capt. A. E. Sawyer, August 23, 1922, 2 Comp. Gen., 135.

He does not, however, become entitled on and after July 1, 1922, to both the items of pay and allowances that may be greater under the old laws and to those that may be greater under the new law of June 10, 1922. See decision to Secretary of War of August 23, 1922, and to the Secretary of the Navy of July 17, 1922, 2 Comp. Gen., 21.

Your inquiry as to the payment of the pay of Private Langsford covers the month of July, 1922. I find no mention either in your submission or in the accompanying papers as to the allowances, if any, to which he is entitled or has been paid for that period. It must therefore be assumed for the purpose of this decision that no allowances accrued to him for July or that, if accrued, they are the same in amount as those to which he would have been entitled independently of the legislation of June 10, 1922.

So assuming, and further assuming that the rating of him as specialist, sixth class, would not have exceeded the maximum number authorized for the rating as fixed by the act of June 4, 1920, 41 Stat., 761, you are advised that measuring the total of his pay and allowances for the month of July, computed under laws that would have been applicable apart from the legislation of June 10, 1922, $33 per month ($30 grade pay as private, plus $3 as specialist, sixth class), with the total of his pay and allowances on and after July 1, 1922, as computed under the new legislation of June 10, 1922, $24

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