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RETROACTIVE APPOINTMENTS—RETIRED ENLISTED MEN OF THE
ARMY, NAVY, OR MARINE CORPS. Retired enlisted men of the Army, Navy, or Marine Corps, whose retired pay is
not in excess of $2,500 and who have been employed in the Veterans Bureau at salaries exceeding $2,500 per annum contrary to the act of July 31, 1894, 28 Stat., 203, may be reappointed to positions paying less than $2,500 effective from the date the appointment is actually made and accepted, but such appointments may not be made retroactive to cover the
period of service under the prior illegal appointment. Comptroller General McCarl to the Director, United States Veterans' Bureau,
December 8, 1922:
There are now employed in this bureau certain retired enlisted men of the Army, Navy, and Marine Corps, who are receiving retired pay which amounts to less than $2,500. Some of these persons were appointed prior to your de cision of April 15, 1922, to civil positions at salaries in excess of $2,500; and it now appears that the matter of such excessive salaries has not yet been adjusted. It is desired to continue the services of these persons with this bureau.
Your opinion as to whether or not the director may substitute appointments at salaries of $2,499 effective retroactively the date of the original appointments and secure from the persons so employed refunds of the amounts they have received in excess of the salaries payable under such substituted retroactive appointments, is requested.
It is within your discretion to appoint retired enlisted men whose retired pay amounts to less than $2,500 a year to positions with salaries of less than $2,500 a year, but such appointments can not be made retroactively effective. The legal status of an appointee is fixed by the terms of the appointment which he holds and can not be changed retroactively by a subsequent appointment.
If a former appointment of a retired enlisted man to office in your bureau is void because of the provision of the act of July 31, 1894, 28 Stat., 205, no subsequent appointment can validate the incumbency under the former void appointment, nor can it be effective itself as an appointment for any period prior to the time it is actually made and accepted. In this connection see 8 Comp. Dec., 521; 20 id., 214; 23 id., 65, 593.
TRANSPORTATION OF OFFICERS OF THE ARMY, THEIR DEPEND
ENTS, AND HOUSEHOLD GOODS, AND PER DIEM IN LIEU OF SUBSISTENCE TO OFFICERS OF THE ARMY, NAVY, AND PUBLIC of such payment does not seem one to arise in connection with officers of the Army, Navy, or Public Health Service detailed to work for the
HEALTH SERVICE. Officers of the Army on authorized detail on work for the Veterang' Bureau
and moved from their present stations for that purpose are entitled to reimbursement for the travel as Army officers and for transportation of their families and household effects under the same conditions as change of station in the Army entitles thereto, payable from the appropriation of the Veterans' Bureau applicable to the purpose for which the travel was
necessary. A per diem in lieu of subsistence, under the act of June 10, 1922, 42 Stat., 631,
being payable only upon direct authorization from the heads of the departments in which the officers are appointed or commissioned the question
Veterans' Bureau. Comptroller General McCarl to the Director, United States Veterans' Bureau, December 11, 1922:
I have your letter dated December 1, 1922, wherein, referring to decision rendered by me November 14, 1922, 2 Comp. Gen., 325, holding the funds appropriated for the Veterans' Bureau by the act approved May 11, 1922, might not be transferred to the Quartermaster General to expend on account of overhead incident to the construction of hospitals authorized by the act approved April 20, 1922, 42 Stat., 496, you state that there has been presented the question of the authority of that bureau to pay from the appropriation made by said statute the transportation expenses of such officers of the Army who for the purposes of that work are moved from their present stations; and also, whether transportation for their families and furniture may be paid by that bureau in the same manner that expenses of that nature are now charged to the War Department bureaus concerned in cases where officers are performing duty for civilian bureaus.
You further set forth that closely related to this question is that of allowance of per diem payable to officers of the Army, Navy, and Public Health Service detailed to that bureau for duty; whether such officers should be paid the per diem allowable by that bureau to its officers and employees, or whether the regulations of the respective departments from which the officers are detailed govern the amount of per diem for travel allowance or mileage payable to them; and also in this class of cases, whether the usual allowances payable for transportation of family household effects, etc., by the department from which the officers are detailed under their respective reg. ulations may be allowed by that bůreau.
In 3 Comp. Dec., 588, it was said that the military status of officers of the Army is not changed by an assignment to duty in a civil department of the Government.
It has been decided through a long line of decisions that where Army or Navy officers, under authorized details, perform travel for other branches of the public service, they are entitled to the same traveling allowances that they would be entitled to were they assigned to duty in the military.or naval service, and no other, unless specific provisions are made by statute for other traveling allowances. 1 Comp. Gen., 98, and decisions cited therein. In the appropriations for the Veterans' Bureau there appear no specific provisions of this nature.
The nature of the detail governs the appropriation chargeable. If a detail is on War or Navy matters—that is, in pursuance of the
tanctions of those offices the department concerned would, of course, bear its own travel expenses. If an authorized detail is to and for the benefit of that bureau, the travel, nevertheless, is performed in socordance with the character of Army and Navy officers, and under section 1765 of the Revised Statutes reimbursement can not exceed that lawfully provided for their arm of the service, payment to be made, however, from the appropriation for the Veterans' Bureau.
These rules apply specifically to the officers of the Public Health Service, who not only are assimilated by the act of June 10, 1922, 42 Stat., 625, to the Army and Navy for pay purposes, but the act of August 9, 1921, 42 Stat., 148, section 4, provides that upon detail to the Veterans' Bureau, commissioned personnel shall receive the same pay and allowances as those of like grades performing the same or similar duties in the Public Health Service.
Answering your specific questions: Officers of the Army or Navy, on authorized detail, who for the purpose of that work are moved from their present stations, are entitled to reimbursement for their travel as Army officers, payable from the appropriation of the Veterans' Bureau applicable to the purpose for which travel was necessary.
Transportation for the families and household effects is also likewise allowable and payable under the precise conditions which Army changes of stations justify allowances for.
Answering your last question, concerning the payment of per diems:
Under the act of June 10, 1922, for readjustment of the pay of the military forces, etc., section 12, 42 Stat., 631, authorizing travel allowances, makes provision for the payment, under specific conditions, of actual traveling expenses or per diems, to officers mentioned therein, but as it is stipulated that the heads of those departments, therein specified as being concerned, should direct or order the allowance of such per diems, they would not appear to be allowable otherwise. For this reason it is not seen how the question of any per diem for the classes of officers discussed can become a matter for consideration by the Veterans Bureau.
Your questions are accordingly answered as fully as is possible without having before me a matter of specific payment.
NATIONAL GUARD-DRILL PAY OF WARRANT OFFICERS IN TIME members, and their monthly pay may be reduced proportionately to their failure to attend such drills, but the regulations may not fix a rate of pay
Warrant officers of the National Guard, in time of peace and under present
regulations, are menibers of organizations, and may be required by the regulations to attend and satisfactorily perform their appropriate duties at all drills properly prescribed for the organization of which they are
per drill or unit of service in lieu of the statutory monthly rate. Comptroller General McCarl to the Secretary of War, December 12, 1922:
I have your letter of November 20, 1922, reading as follows:
I request your decision whether a warrant officer of the National Guard is entitled to armory drill pay on the basis of an officer or enlisted man:
(a) Is he entitled to pay for all drills attended where 50% of the commissioned and 60% of the enlisted strength is present, not exceeding five in a month or 60 in a year?
(6) Is he required to attend 60% of the drills ordered for his organization for each month?
(c) If classified under (6), is he entitled to pay not exceeding 8 drills per month or 60 per year?
Section 14 of the act of June 10, 1922, 42 Stat., 631, so far as here material, provides:
warrant officers of the National Guard shail receive not more than four-thirtieths of the monthly base pay of their grade for satisfactory per. formance of their appropriate duties, under such regulations as the Secretary of War may prescribe.
The language here used is identical with that used in section 109 of the national defense act as amended by section 47 of the act of June 4, 1920, 41 .Stat., 783, fixing the armory drill pay of officers below the grade of major not belonging to organizations, who, it is provided :
shall receive not more than four-thirtieths of the monthly base pay of their grades for satisfactory performance of their appropriate duties under such regulations as the Secretary of War,may prescribe.
The pay fixed in both of these provisions of law is a maximum monthly pay, and accrues from day to day while the warrant officer or officer is in an armory drill pay status. I Comp. Gen., 392. A rate of pay per drill or unit of service may not be fixed in lieu of the statutory monthly rate. i3 MS. Comp. Gen., 129, September 5, 1922, and 14 MS. Comp. Gen., 662, October 13, 1922. This answers question (a) in part, and question (c).
Paragraph 1007, National Guard Regulations, 1922, provides: 'In time of peace, the appointment of warrant officers in the National Guard will be limited to band leaders. Band leaders (warrant officers) of National Guard regiments will be appointed on recommendation of the regimental commanders, by the governors of the respective States where the corresponding regimental headquarters is included in the official allocation of troops. Warrants will be issued by the appointing power or by their order.
. Under existing regulations, therefore, in time of peace all National Guard warrant officers are members of organizations. A regulation requiring warrant officers to attend all drills properly prescribed for the organizations of which they are members and the performance of their appropriate duties, would be a proper and legal regulation, and failure to attend any of the prescribed and properly ordered drills would proportionately reduce the monthly maximum pay; as would also failure of the organization to qualify for credit for a drill under regulations issued pursuant to section 92 of the act of June 3, 1916, 39 Stat., 206. For example, four-thirtieths of the monthly base pay of a warrant officer is $19.733; if 15 drills were ordered for a warrant officer's organization during a quarter and a warrant officer in a drill pay status during the entire quarter attended 14 of the ordered drills be would be entitled to 14/15 of 3X $19.73}, or $55.25.
As the statute does not fix the performance of a specific number of units of service or drills as a condition for earning the pay provided, nor the attendance of a minimum number of officers and enlisted men at the drill, as in the case of captains and lieutenants belonging to organizations, a regulation so providing would in effect inflict a forfeiture of pay otherwise earned under the statute and would be illegal, except as credit for the drill may be denied to the organization and to the personnel thereof (other than enlisted men) under section 92 of the act of June 3, 1916. This completes answer to question (a) and answers question (6) so far as it can be answered in its present form.
Replying specifically to your principal questions, warrant officers should be paid armory drill pay as the statute prescribes for warrant officers under the conditions and limitations that may be properly prescribed in regulations to be issued by the Secretary of War.
STORAGE OF AUTOMOBILES SEIZED BY FEDERAL PROHIBITION
The authority in the act of October 28, 1919, 41 Stat., 315, for the payment of
the expenses of keeping property seized under the national prohibition act out of the proceeds of the sale of such property, while authorizing the payment of dead storage for seized automobiles out of the proceeds of their sale, does not authorize keeping such automobiles in live storage or other
wise maintaining them for use by Federal prohibition agents. Comptroller General McCarl to the Attorney General, December 13, 1922:
I have your letter of November 7, 1922, requesting decision whether your department may authorize the United States marshal for the district of Connecticut to reimburse the appropriation for enforcement of the national prohibition act for amounts paid therefrom for storage charges on automobiles seized by Federal prohibition agents for violations of prohibition laws, from the proceeds of the sale of the automobiles under order of court, payment of the storage charges having been made by a special disbursing officer of the prohibition service under the following conditions reported by the marshal:
The seized automobiles were placed by the Federal prohibition agents in garages under what are designated as live storage, where they might be used by the agents in making other seizures. This procedure resulted in large storage charges in all such cases. The