« PreviousContinue »
These latter provisions are not inconsistent with the cumulative provisions (so far as the District of Columbia National Guard is concerned) found in section 80 for leave of absence for field or coastdefense training (section 94 of the national defense act). The latter is a law of general application, while the former is a special provision made for the District of Columbia National Guard, over which the Congress has exclusive legislative power, standing in the same relation thereto as do the State legislatures to the National Guard of the individual States. Not only is there no reason why both laws may not stand together, but every reason why they should. Members of the National Guard of the District of Columbia who are employees of the United States or of the District of Columbia receive no pay for the performance of National Guard duties not entitling them to pay under the national defense act (except the special provisions adverted to; i. e., when called in aid of the civil authorities, and for the bands); and the reason for this discrimination against members of the District of Columbia National Guard who are Government employees is that by existing law they are excused from the performance of their duties as Government employees without loss of pay or time.
Accordingly, I have to inform you that you are authorized to grant leave of absence with pay to post-office employees who are members of the National Guard of the District of Columbia pursuant to the provisions of section 49 (now section 52) of the act of March 1, 1889, as amended by the act of July 1, 1902, as well as the leave authorized to be granted by section 80 of the national defense act.
TRAVEL ALLOWANCE TO ARMY FIELD CLERKS ON DISCHARGE.
An Army field clerk who first entered the military service as an enlisted
man and was discharged, to accept an appointment as a field clerk is entitled upon final discharge to travel allowance to the place he first entered the service by enlistment, and is not restricted to travel allowance
to the place of accepting his appointment as field clerk. Decision by Comptroller General McCarl, July 3, 1922.
James C. Anderson, Army field clerk, discharged, requested February 10, 1922, review of settlement No. W-121790, dated October 3, 1921, allowing him travel pay from Governors Island, N. Y., to Fort Monroe, Va., and refusing to allow him travel pay instead from Governors Island to Cairo, Ill.
Claimant entered the military service May 5, 1917, at Cairo, Ill., as a private and was assigned to the 2d Company, Coast Artillery Corps, and was serving as a sergeant major, junior grade, on April 10, 1919, at Fort Monroe, Va., when he was discharged as an enlisted man to accept an appointment as an Army field clerk. He accepted the appointment the next day after he was discharged as an enlisted man and was serving at Governors Island, N. Y., on February 14, 1921, when he was discharged as an Army field clerk. Due to some misapprehension, not disclosed, as to his travel-pay rights, he was not paid any travel pay upon discharge. Subsequently he submitted to this office a claim for travel pay from Governors Island, N. Y., to Cairo, Ill., but was allowed travel pay from Governors Island, N. Y., to Fort Monroe, Va. Review of the settlement has been requested.
An Army field clerk upon discharge is entitled to the same travelpay rights as an Army officer. 26 Comp. Dec., 591. The authorization for the payment of travel pay to a commissioned officer of the Army upon discharge is contained in the act of March 2, 1901, 31 Stat., 902, in language as follows:
When an officer shall be discharged from the service, except by way of punishment for an offense, he shall receive for travel allowances from the place of his discharge to the place of his residence at the time of his appointment or to the place of his original muster into the service four cents per mile.
It has been uniformly and consistently held that the place to which an Army officer is entitled to travel pay upon discharge when he enters the military service as a commissioned officer from civil life is the place where he accepted his commission, which, in contemplation of law, is his place of residence. 5 Comp. Dec., 113; 25 id., 860; Sells v. United States, 36 Ct. Cls., 94. The purpose of the travel pay law is to return a person discharged from the military service to the place where the Government accepted him. Sherburne v. United States, 16 Ct. Cls., 497; 23 Comp. Dec., 282. The rule that an officer who accepted his appointment from civil life is entitled upon discharge to travel pay only to his place of acceptance does not apply where he originally entered the military service as an enlisted man and is discharged as an enlisted man to accept an appointment as an officer. Obviously the place of acceptance may have no relation whatever to his home or to the place where the United States took him into the military service from civil life. Such discharged officer is entitled to travel pay to the place he originally entered the military service. 2 Comp. Dec., 504; 25 id., 547.
Upon review of the matter the settlement is modified and $30.12, being travel pay at the rate of 4 cents a mile for the official distance of 1,089 miles from Governors Island to Cairo, less $13.44 heretofore allowed, is certified due claimant.
PRACTICE REOPENING DECISION OF FORMER AUDITOR. A settled claim will not be reopened by the accounting officers to give con
sideration to a decision of a court subsequently rendered. An officer of the Government has jurisdiction to reopen a settlement made
by a predecessor in office only to correct manifest mistakes arising from errors in calculation, or when material evidence has been discovered and
produced since the action of the predecessor was taken. Decision by Comptroller General McCarl, July 5, 1922.
The Locomobile Company of America applied June 21, 1922, for a review of the action of the Auditor for the War Department in settlements dated January 21, 1920, June 1, 1920, and December 4, 1920, claim No. 720655, in which claims aggregating $150,494 were disallowed upon the ground that claimant was indebted to the United States in the sum of more than $200,000 on account of overpayments made by Lieut. Col. D. W. Arnold and Capt. John Heron, disbursing officers of the Army, under contract dated July 27, 1917, the overpayments consisting of the amount of a three per cent tax imposed on sales under section 600, title VI of the act of October 3, 1917, 40 Stat., 316.
In the settlement of the accounts of Lieutenant Colonel Arnold and Captain Heron, the auditor for the War Department disallowed credit for the payments on account of the tax, and in the case of Lieutenant Colonel Arnold the auditor's disallowance was affirmed by the Comptroller of the Treasury. See 26 Comp. Dec., 424, id., 592.
Included in the sum of $150,494, hereinbefore mentioned as disallowed by the auditor, are two items aggregating $5,454.39 for which suit was filed in the Court of Claims. On June 12, 1922, the court awarded judgment for the full amount claimed, to wit, $5,454.39, upon the ground that the payments made to claimant aggregating more than $200,000 on account of tax on purchases made under the contract of July 27, 1917, were legally made. This leaves the sum of $145,039.61 for which judgment has not been awarded. Of said amount $24,216.15 was disallowed by the auditor in settlement of January 21, 1920, $38,707.96 in settlement of June 1, 1920, and $82,115.50 in settlement of December 4, 1920. It is for the payment of these amounts that the application for revision of the auditor's settlements is now made.
No request for a revision of either of these settlements was filed in the office of the Comptroller of the Treasury or the General Accounting Office within one year from date said settlements were made, respectively. Therefore, the question here presented is whether this office now has jurisdiction to reopen and revise the settlements made by its predecessor.
It is a well established principle that an officer of the Government has jurisdiction to reopen a settlement made by his predecessor in office only to correct manifest mistakes arising from errors in calculation or when material evidence has been discovered and produced since the action of the predecessor was taken. See 1 Comp. Gen., 548, and authorities therein cited.
In the case here presented it does not appear that there was error in calculation in either of the settlements made by the Auditor for the War Department in 1920, and no material evidence has been discovered and produced since said settlements were made. It has been held uniformly that a settled claim will not be opened by the accounting officers to give consideration to a decision of a court subsequently rendered. Accordingly, and without expressing any opinion as to whether this office would, or would not, in a claim properly before it for settlement follow the action of the Court of Claims in this case, it is held that no allowance can now be made by the General Accounting Office on the claims disallowed by the Auditor for the War Department in 1920.
The application for revision is denied.
DISABILITY COMPENSATION-FEDERAL EMPLOYEES' COMPEN.
The act of September 7, 1916, 39 Stat. 742, providing for compensation for
disability or death of employees of the Government resulting from personal injury sustained in the performance of duty, and for medical, surgical, and hospital services immediately following such an injury, does not authorize compensation or medical treatment to employees suffering from disease not the result of some personal injury of service origin. Such injury and resulting disability or death must be certified to the General Accounting
Office as a basis for allowance of credit in the disbursing officer's accounts. Decision by Comptroller General McCarl, July 5, 1922.
The Chief, State and Other Departments Division, this office, submitted memorandum decision of April 22, 1922, to the effect that certain payments made by the disbursing officer of the United States Employees' Compensation Commission to, or on account of, employees of the United States whom the vouchers show to have been suffering from disease with no evidence of injury as the originating cause of their disability, were not made in accordance with law and should not be credited in the disbursing officers' accounts.
The cases in question are No. 75329, diagnosis tuberculous ulcer, dorsum, right hand, in which the employee was furnished hospital and medical services amounting to $522.75, and reimbursement for traveling expenses to the amount of $29.70; No. 91895, diagnosis pulmonary tuberculosis, in which the employee was furnished hospital and medical services amounting to $1,397.44; and No. 100803, diagnosis pulmonary tuberculosis, in which the employee was paid compensation amounting to $26.67.
Under date of April 11, 1922, the auditing division requested of the disbursing officer explanation of these cases and citation of the provision of law under which the claims were allowed. The disbursing officer was advised that certification that the cases were directly attributable to injury incurred while in line of duty during their employment in the Government service should also be submitted.
The chairman United States Employees' Compensation Commission replied under date of April 14, 1922, as follows:
The commission has received your letter of April 11, initials OBB, addressed to A. H. Gardes, chief of accounts, concerning vouchers for the period ending December 1, 1921, under “ Employees' compensation fund."
Compensation has been awarded on the claims mentioned under the provisions of section 32 of the compensation act, 39 Stat. 742, approved September 7, 1916, which provides
" That the commission is authorized to make necessary rules and regulations for the enforcement of this act, and shall decide all questions arising under this act"; and more particularly section 36, which provides that,
“ The commission, upon consideration of the claim presented by the bene ficiary, and the report furnished by the immediate superior and the completion of such investigation as it may deem necessary, shall determine and make a finding of facts thereon and make an award for or against payment of the compensation provided for in this act. Compensation when awarded shall be paid from the employees' compensation fund.”
Certification of the cases mentioned in your letter has been made on the voucher forms approved by the Comptroller of the Treasury under date of June 26, 1918, and June 9, 1921.
The act of September 7, 1916, 39 Stat. 742, under which the commission functions, provides for compensation for the disability or death of an employee resulting from a personal injury sustained while in the performance of his duty," and for medical, surgical, and hospital services immediately after such injury. The only lawful basis for an award of compensation or for furnishing to the employee medical or hospital services is death or disability resulting from a personal injury. Clearly any attempt on the part of the commission to award compensation or to furnish medical and hospital services for death or disability resulting from disease and not from personal injury would be without authority of law, and the award would be void because it would be beyond the lawful power and authority of the commission to make it.
I assume that there has been no such attempt, but that the awards in these cases rest upon a finding of the commission that the disability in each case resulted from some personal injury of service origin. If such is the case the General Accounting Office is entitled to evidence of such origin. An award based upon disease alone is so clearly beyond the lawful power and authority of the commission as to justify this office in withholding credit upon such a basis. In this connection see 25 Comp. Dec. 197.