While serving at Camp Lewis, Wash., January 17, 1922, claimant addressed the following request, through military channels, to the commanding general of the Ninth Corps Area:

1. Under the provisions of section 4 of the act of Congress approved June 16, 1890, and Circular 201, War Department, July 29, 1921, request that I be discharged from the U. S. Army by purchase.

2. My reasons for this request are: I am physically unfit for the service, per inclosed affidavit signed by Major L. O. Tarleton, M. C., Camp Lewis, Wash., which I received on taking examination for admittance to West Point; my father is compelled to enter a hospital to undergo a severe operation and I am needed to look after affairs.

3. I enlisted for three years on January 20, 1921, at Columbus Barracks, and will have completed one year's service on January 20, 1922. No previous service.

4. I have sufficient funds to defray all costs if this request is granted.

Section 4 of the act of June 16, 1890, 26 Stat., 158, referred to, provides:

That in time of peace the President may, in his discretion and under such rules and upon such conditions as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited in the Treasury to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during the fiscal year in which the discharge is made.

The purchase price required was paid and claimant was discharged without travel pay. There is no authority of law for refund of the purchase price paid by an enlisted man for a discharge nor is he entitled, under the act of February 28, 1919, 40 Stat., 1203, to travel pay upon such a discharge for the reason that a discharge by purchase is a discharge for the soldier's own convenience and does not entitle him to travel pay. United States v. Sweet, 189 U. S., 471; 2 Comp. Dec., 252; 3 id., 109, 397; 5 id., 113; 7 id., 740. The discharge was made in accordance with claimant's request. That he was in such a physical condition at the time that it might have been made the basis for applying for discharge under a surgeon's certificate of disability can not now be considered. His request for discharge referred to his being physically unfit and also that he was needed to look after affairs because of his father undergoing an operation. The request represented that he had the funds to pay for discharge, and it clearly preferred discharge by purchase rather than the uncertainty of being granted discharge for physical disability.

Upon review of the matter no difference is found and the settlement is sustained.

DEDUCTED OVERPAYMENTS TO ENLISTED MEN OF ARMY UNDER SAVING CLAUSE IN ACT OF JUNE 4, 1920-REFUNDMENT UNDER RELIEF ACT OF SEPTEMBER 22, 1922.

Payments erroneously made to enlisted men of the Army as under the saving clause in act of June 4, 1920, 41 Stat., 762. and subsequently deducted from amounts due the soldier, are within the purview of the relief act of September 22, 1922, 42 Stat., 1018, and should be repaid to the soldier.

Decision of Comptroller General McCarl, November 10, 1922.

Thomas H. Bergne, now sergeant, pigeon section, Signal Corps, United States Army, requested, August 3, 1922, review of settlement No. W-775857, dated December 20, 1921, by which was disallowed his claim for the refund of amounts deducted from his pay by Army disbursing officers during the period July 1, 1920, to September 1, 1921, to make good overpayments during the same period resulting from payments to him of pay under the saving clause contained in section 4-b of the act of June 4, 1920, 41 Stat., 762. The claim was properly disallowed. However, subsequent thereto the act of September 22, 1922, 42 Stat. 1018, was passed to relieve cases such as this, and the claim will be considered now as made under that statute. The act provides:

That all payments heretofore made in good faith to enlisted men while in active service by reason of anything contained in that portion of the proviso of section 4b of the Act entitled "An Act for making further and more effectual provision for the national defense, and for other purposes," approved June 3, 1916, as amended by the Act entitled "An Act to amend an Act entitled 'An Act for making further and more effectual provision for the national defense, and for other purposes,' approved June 3, 1916, and to establish military justice," approved June 4, 1920, reading: "That nothing in this section shall operate to reduce the pay which any enlisted man is now receiving during his current enlistment and while he holds his present grade," be, and the same hereby are, validated for all purposes, irrespective of whether such payments conform to decisions of the Comptroller of the Treasury or the General Accounting Office; and such payments shall be passed by the proper accounting officers of the United States to the credit of the disbursing officers making the same. Any sums of money which may have been deducted from the pay of any enlisted man on account of any such payment validated by this Act shall be refunded.

Claimant, on June 4, 1920, was a private, first class, Quartermaster Corps, in fifth enlistment period and entitled to base pay of $18; continuous service pay, $12; war increase, $15; plus 20 per cent thereon, $9; total $54. On June 11, 1920, he was promoted to corporal, Quartermaster Corps, and entitled to base pay of $24; continuous service pay, $12; war increase, $12, with 20 per cent thereon; $9.60; total, $57.60. On July 1, 1920, he was regraded private, Quartermaster Corps, specialist, fifth class, and under the provisions of the act of June 4, 1920, was entitled to base pay of $30, with longevity thereon of 20 per cent for over 10 and less than 15 years service (until Aug. 10, 1920, when he entered his sixteenth year of service), $6, plus pay of a specialist, fifth class, $8; total, $44.

Under the construction of the saving clause contained in section 4-b of the act of June 4, 1920, both by the Comptroller of the Treasury and by this office, claimant was not within its benefits, as he had a change of grade June 11, 1920, from that held on June 4, 1920. 27 Comp. Dec., 490; 1 MS. Comp. Gen., 346–A, August 8,

1921.

However, claimant was paid by disbursing officers of the Army, as follows:

July, August, October, and November, as a corporal Q. M. C., 5th enlistment period, the grade held June 30, 1920, $57.60 per month.

September, 1920, as a private, over 15 years' service, specialist, 5th class, $47, and deduction made for overpayment July and August, $10.60 per month; total, $21.20.

December 1920 and January and February, 1921, as private, 1st cl. Q. M. C., 5th enlistment period (grade held June 4, 1920) (base, $18; continuous service, $12; war increase, $15; plus 20 per cent thereon under act of May 18, 1920, 41 Stat., 602), $54; plus pay of specialist, 5th class, $8; total, $62, and was paid in addition as short payment, July to November, 1920, $4.40 per month, difference between pay as a corporal, Q. M. C., 5th enlistment period, $57.60, and pay as then calculated. The correct payment for September, 1920, was apparently overlooked.

March to August, inclusive, 1921, he was paid as private, over 15 years' service, specialist, 5th class, $47, under act of June 4, 1920, and there was charged against him during this period overpayments at the rate of $15 per month (difference between $47 and $62) for the eight months July, 1920, to and including February, 1921, $120, again overlooking the correct payment for September, 1920, and the collection from the soldier of $21.20 for overpayments paid currently for July and August, 1920.

Subsequently the soldier was paid at the rates established by the act of June 4, 1920, and not under the saving clause contained in that act. The payments made to claimant under the saving clause were not in conformity with, but contrary to, decisions of the Comptroller of the Treasury and the General Accounting Office. The act of September 22, 1922, validates all payments theretofore made in good faith to enlisted men in active service under the saving clause in section 4-b of the act of June 4, 1920. There is no question but that the payments under the saving clause in this case were made in good faith, and had collection not been made from the soldier, the payments would have been passed to the credit of the disbursing officers concerned under the provisions of the act of September 22, 1922. If the payments are validated by the act and deductions had theretofore been made from the pay of the soldier, the act directs that refund shall be made of the sums of money so deducted. Accordingly, upon a review of the matter, it is found that under the act of September 22, 1922, claimant is entitled to refund of the amount deducted from his pay because of overpayments under the saving clause in section 4-b of the act of June 4, 1920, amounting to $141.10. A new settlement will be stated and the net amount due soldier, after deducting any overpayments on other accounts that may have been made to him, will be allowed.

ENLISTED MEN OF NAVY DISCHARGED FOR DISABILITY RESULT OF OWN MISCONDUCT-TRAVEL ALLOWANCE AND REIMBURSEMENT FOR TRANSPORTATION.

An enlisted man of the Navy discharged on a surgeon's certificate of disability incurred as the result of his own misconduct is not honorably discharged and is not entitled to travel allowance under the act of February 28, 1919, 40 Stat., 1203.

The act of July 12, 1921, 42 Stat., 124, providing for transportation to their homes of enlisted men of the Navy discharged on medical survey, together with subsistence and transfers en route or cash in lieu thereof, does not authorize cash in lieu of transportation, and when transportation is offered and refused and travel not performed the claimant is not entitled to reimbursement of the expenses of such travel.

Decision by Comptroller General McCarl, November 10, 1922.

George D. Hodge, former fireman, first class, United States Navy, has requested review of settlement N-147085, dated July 7, 1922, disallowing him travel allowance or reimbursement for cost of transportation and subsistence from Washington, D. C., to St. Louis, Mo., by reason of his discharge from the Navy June 14, 1922.

Under date of July 18, 1922, the Bureau of Navigation, Navy Department, reported as follows:

Replying to reference the bureau advises that Hodge reenlisted at New York, N. Y., 18 July, 1919. Home address as shown on records, St. Louis, Mo. Was discharged from the naval hospital, Washington, D. C., 14 June, 1922, account physical disability incurred as result of own misconduct. Mileage was not paid, as the discharge was not granted under honorable conditions. Hodge was offered transportation and subsistence to his home, St. Louis, Mo., but same was refused, as he desired to go to Baltimore. No transportation was furnished.

Claimant has taken issue with the portion of this report that shows offer of transportation and subsistence to St. Louis, contending that nothing was offered him upon discharge. Such a matter is one of fact which must be accepted as established in accordance with the report of the Navy Department in the absence of record evidence to the contrary.

The act of February 28, 1919, 40 Stat., 1203, in force at the time of claimant's discharge, authorized payment to an enlisted man "honorably discharged" from the Army, Navy, or Marine Corps of 5 cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option.

A man is held to be "honorably discharged" within the meaning of this act when he is not dishonorably discharged or discharged without honor, but is discharged under honorable conditions; that is, the discharge must be consistent with honor. 25 Comp. Dec., 792; 1 Comp. Gen., 158.

The discharge of claimant was made on surgeon's certificate of disability incurred as result of his own misconduct. A discharge because of disability rendering a man unfit to complete his term of enlistment which resulted from his own misconduct is clearly one without honor and could not be classed as under honorable conditions entitling the discharged to payment of travel allowance under the statute.

Annual appropriation acts for the naval service have provided for transportation to their homes, if residents of the United States,

of enlisted men and apprentice seamen discharged on medical survey, with subsistence and transfers en route or cash in lieu thereof. The applicable appropriation in this case is found in the act of July 12, 1921, 42 Stat., 124. This provision is applicable for the purpose of returning a man discharged from the Navy on medical survey who is not otherwise entitled to payment of travel allowance on a mileage basis (1 Comp. Gen., 56) and authorizes transportation in kind only, with either subsistence and transfer en route in kind or advancement of cash to pay for such subsistence and transfers. Authority to make the cash advancement, however, does not extend to the cost of transportation. The provisions of these annual appropriations are contained in Article 1690, Naval Regulations, 1920. In accordance with this statutory authority and regulations, claimant was offered a railroad ticket to St. Louis, the place shown to have been his home by the record, and $2.25 to pay for his meals en route. The offer having been refused and the travel not performed, claimant has no right to reimbursement of the expenses of such travel. 16 Comp Dec., 556; 7 id., 734.

Upon review of the matter the settlement is sustained.

RELIEF OF DESTITUTE AMERICAN SEAMEN.

The question of when or how long after discharge an American seaman may be entitled to relief is not one dependent upon time alone but one of fact, to be determined primarily by the consular officer to whom the application for relief is made from all facts bearing on the question of whether the particular seaman continues to hold himself out for service as a seaman or has abandoned the occupation of seaman.

Comptroller General McCarl to the Secretary of State, November 10, 1922. I have your letter of November 3, 1922, Co-196.7/1894, relative to a dispatch from the American consul general at Guayaquil, Ecuador, stating that American seamen who have been employed on land for varying lengths of time in foreign countries occasionally present themselves at his office for relief as destitute seamen, and inquiring how long after discharge of a seaman, followed by residence on land for the purpose of obtaining employment, he is entitled to relief.

You ask, if it is practicable, a definite general decision on this question be rendered, in order that appropriate instructions may be sent to consular officers for their guidance.

A specific rule applicable to a general class of cases of the kind in question can not be stated.

In expressing my opinion to you upon a similar question, June 27, 1922, 1 Comp. Gen., 760, it was said:

The purpose of the statute in question (section 4577, R. S.) was to promote service in the United States merchant marine by providing relief for American seamen who might become destitute as a result of their calling and by return.