« PreviousContinue »
expenses not related thereto, or whether the per diem in lieu of subsistence provided in the act is exclusive.
The act in question, sundry civil act, March 4, 1921, 41 Stat., 1425, provides for miscellaneous expenses, Bureau of Naturalization, 1922:
For compensation, to be fixed by the Secretary of Labor, of examiners, interpreters, clerks, and stenographers, for the purpose of carrying on the work of the Bureau of Naturalization,
including not to exceed $50.000 for personal services in the District of Columbia, and for their actual necessary traveling expenses while absent from their official stations,
together with per diem in lieu of subsistence, when allowed pursuant to section 13 of the Sundry Civil Appropriation Act approved August 1, 1914, and for such per diem together with actual necessary traveling expenses of officers and employees of the Bureau of Naturalization in Washington while absent OD official duty outside of the District of Columbia ;
The first provision for their actual necessary traveling expenses, together with per diem in lieu of subsistence when allowed pursuant to the act of August 1, 1914, 38 Stat., 680, in the act, has reference to examiners, interpreters, clerks, and stenographers, first mentioned, while the second provision for such per diem, together with actual necessary traveling expenses, applies to employees of the Bureau of Naturalization in Washington, and the word “such ” in this latter provision in connection with “per diem" evidently relates to the same per diem in lieu of subsistence, first mentioned in the former provision as pursuant to the act of August 1, 1914. Therefore, a per diem for both classes is provided for allowance pursuant to the act of August 1, 1914.
This latter act, section 13, authorizes heads of executive departments and other Government establishments to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence when not otherwise fixed by law. Under authority of this act, it is exhibited that the Secretary of Labor has by amendment of regulations, dated November 11, 1920, prescribed a per diem of $4 in lieu of subsistence, apportioned for fractional days at $1 for each six hours, and it is stipulated that after midnight of November 30, 1920, expense accounts must be rendered on a straight per diem basis, and there may not be included therein any item of a subsistence character, such as lodging, meals, waiter fees, etc.
Regulations made in pursuance of law and not inconsistent therewith have the force and effect of law until revoked, modified, or suspended. Such regulations must be uniform and general in their application and without retroactive effect, and any modification or suspension thereof must likewise be of general and prospective application. 26 Comp. Dec.. 99. Also, a regulation made pursuant to, or in execution of, a statute can not be changed by a waiver or exception thereto, but only by an effective modification in the old regulations, which makes a new regulation thereafter. 21 Comp. Dec., 482.
The regulations of the Department of Labor, as amended, having provided for only a per diem in accordance with the acts discussed, such per diem provision becomes exclusive, and no other allowance for subsistence may be paid.
You are, therefore, not authorized to pay for subsistence any sum except as computed upon a per diem basis.
The copy of the amendment to regulations dated November 11, 1920, is retained for reference, there being no copy on file in this office,
PACKING AND CRATING OF HOUSEHOLD GOODS-OFFICERS OF
The laws authorizing the packing and crating of household goods of officers of
the Army at Government expense and the regulations issued thereunder only contemplate such packing and crating when incident to a permanent change of station by the officer, and there is no authority for packing and crating household goods of an officer of the Army at Government expense
when moving from public to private quarters at the same station. Comptroller General McCarl to Maj. M. T. Legg, United States Army,
November 27, 1922.
There was received November 22, 1922, your request, with accompanying voucher, for decision as to whether you were authorized urder the act of June 30, 1922, 42 Stat., 729, making appropriations for military and nonmilitary activities of the War Department for the fiscal year 1923, to make a payment of $24.50 to William G. Meyer, for services rendered and material furnished in packing and crating the household goods of James Egan, captain, Infantry, under a statement of facts as disclosed by the papers forwarded, which may be epitomized as follows:
Captain Egan, who then was, and now is, on duty at headquarters, Second Corps Area, Governors Island, N. Y., was occupying public quarters which he was required, June 22, 1922, to vacate in order that they might be occupied by recently arrived officers of the First Division. As there were no other public quarters available for his occupancy Captain Egan was required to secure private quarters, and he has been paid his rental allowance when not occupying public quarters. The sum of $24.50 for which the voucher is stated represents the cost of packing and crating his household effects incident to the move from public to private quarters and is claimed under an order dated June 24, 1922, issued by the corps area commander, reading as follows:
Officers who have been quartered in posts as a measure of economy or for the convenience of the Government and who are now required to vacate their quarters to provide accommodation for units of the First Division will be entitled to packing and crating allowance on account of permanent change of station
The question presented for decision resolves itself into whether an officer of the Army is entitled to have his household effects crated and packed when, required to make a change of abode not incidental to a permanent change of station. It is contended that when an officer is required to move either in or out of public quarters, either for the convenience of the Government or because of the necessities of the military service, he is moving himself and household effects in the performance of a military duty and is entitled to have the effects packed and crated at public expense.
The statutory authority for packing and crating household goods for officers of the Army is found in the annual appropriation acts which for many years have provided funds for the transportation of the Army and its supplies, including the cost of packing and crating of baggage. The details governing such packing and crating are matters committed to the sound discretion of the Secretary of War. 1 Comp. Gen., 673. It does not necessarily follow that because of hauling from one house to another there must be packing and crating similar to that allowable in transferring from one station to another. The current appropriation act provided funds for the transportation of the Army and its supplies, including transportation of the troops when moving either by land or water, and of their baggage, including the cost of packing and crating. The discretion of the Secretary of War was exercised as to the packing and crating of household goods for shipment when he promulgated changes No. 90 to paragraph 1136, Army Regulations, providing within certain limits for the packing, and crating of household goods on permanent change of station. It is admitted that the regulations comprehend only inter and not intra station movement of troops and their baggage. The law authorizes the packing and crating of household goods at public expense only on a permanent change of station, 26 Comp. Dec., 172.
The fact that the officer was required by orders of his commanding officer to occupy public quarters when available and to vacate them when needed for officers on duty with troops did not shift to the United States the expense of packing and crating his household goods for movement in and out of the public quarters. By the express terms of the act of June 10, 1922, 42 Stat., 625, rental allowance is not payable when quarters in kind are available. Therefore, when public quarters became available for Captain Egan he either had to occupy them or cease to be paid the rental allowance. The preliminary expense must be borne by the officer concerned in order to perfect the right to either quarters in kind or the rental allowance.
Payment of the voucher herewith returned is unauthorized
TRANSPORTATION OF PRIVATE MOUNTS OF ARMY OFFICER TO
FIRST DUTY STATION.
The right to transportation of privately owned horses of an Army officer from
place of purchase to the duty station of the officer, authorized by act of March 23, 1910, 36 Stat., 255, is limited to cases in which the officer would have been entitled, irrespective of said act, to transportation of privately owned horses to such station from a prior station, and does not authorize
transportation to the first duty station of such officer. Decision by Comptroller General McCarl, November 28, 1922.
Joseph M. Williams, first lieutenant Tenth Cavalry, United States Army, has requested review of settlement W-853659, this office, dated August 23, 1922, disallowing his claim for reimbursement for cost of transporting his private mount from Harveyville, Kans., place of purchase, to Fort Riley, Kans., his first duty station, after appointment from civil life, August 4, .1921,
Under the act of May 11, 1908, 35 Stat., 108, officers of the Army below the grade of major may be furnished with mounts at Government expense, but if the officer so elects he may purchase his own mounts and is paid additional pay on account thereof. The act of March 23, 1910, 36 Stat., 255, provides for transportation of these privately owned mounts, as follows:
and hereafter transportation may be furnished for the owned horses of an officer, not exceeding the number authorized by law, from point of pur. chase to his station, when he would have been entitled to and did not have his authorized number of owned horses shipped upon his last change of station, and when the cost of shipment does not exceed that from his old to his new station.
This provision has been adopted practically verbatim as subparagraph 3 of paragraph 1098, Army. Regulations, as amended by C. A. R. 84, January 27, 1919. While this statute and regulation do not in express terms prohibit payment of transportation of private mounts from place of purchase to the first duty station of an Army officer, such a prohibition is clearly inferred from the conditions under which the transportation is authorized. The transportation from place of purchase is authorized only when the officer failed to receive his proper allowance for transportation incident to his last change of station. If he had no previous station, the conditions fixed by the statute and regulation to entitle him to transportation of his mount from place of purchase could not be met and payment would not be authorized.
An officer is required to place himself and any equipment or paraphernalia he may need at his first duty station. Thereafter, if he is required to change his station, the law provides the proper transportation. It is on this basis transportation of baggage, household goods, and mounts is authorized. The act of March 23, 1910, authorizing mounts, gives the officer the option of having assigned to him a Government-owned mount or of providing "himself with suitable mounts at his own expense,” in which event he is given additional pay. Certainly transportation to place of duty would be an expense of providing himself with a mount.
Accordingly, it must be held that an Army officer not appointed from the Military Academy, who purchases a mount while at his first duty station, is not entitled to be reimbursed the cost of transportation from place of purchase to his station.
Upon review of the matter the settlement is sustained.
TERMINATION OF TEMPORARY APPOINTMENTS OF NAVAL OFFI. CERS BY APPOINTMENTS TO PERMANENT OFFICES BY AUTHORITY OF SECTION 4 OF ACT OF JUNE 4, 1920.
The ad interim appointment of a chief warrant officer of the Navy as a per
manent lieutenant (junior grade) while holding the temporary office of lieutenant, by authority of section 4 of the act of June 4, 1920, 41 Stat., 833, followed by his nomination, confirmation, and recommissioning to said permanent office of lieutenant (junior grade), operated to terminate bis temporary office of lieutenant, and he is not entitled to be paid as a lieutenant from and after the date of his acceptance of his ad interim
appointment as a lieutenant (junior grade). Decision by Comptroller General McCarl, November 29, 1922.
W. B. Stork, lieutenant (junior grade), United States Navy, applied July 18, 1922, for review of settlement No. N-38522, dated July 12, 1922, wherein was disallowed his claim for the difference in pay of lieutenant (junior grade), permanent, and lieutenant, temporary, including difference in additional pay authorized by the act of May 18, 1920, 41 Stat., 602, from September 20, 1920, to December 31, 1921.
It appears that claimant was appointed a warrant machinist November 1, 1901; chief machinist March 3, 1909; ensign, temporary, July 1, 1917; was promoted to lieutenant (junior grade), temporary, October 15, 1917; to lieutenant, temporary, July 1, 1918; and on August 30, 1920, was commissioned, ad interim, a lieutenant (junior grade) in the Regular Navy, from August 3, 1920, under section 4 of the act of June 4, 1920, 41 Stat., 835; accepted appointment and executed the oath of office September 20, 1920; and that on March 3, 1921, his appointment as lieutenant (junior grade) was confirmed by the Senate and he was recommissioned a regular lieutenant (junior grade) April 20, 1921.
It further appears that on November 22, 1921, the Navy Department notified the claimant that his temporary appointment as lieutenant was terminated on the date of acceptance of his permanent appointment, and the supply officer accordingly reduced his pay to that of lieutenant (junior grade) on October 30, 1921.
On March 17, 1922, the Navy Department advised the claimant that the letter of November 22, 1921, was in error, the department having