RENTAL ALLOWANCE DURING LEAVE AVAILABLE QUARTERS UNDERGOING REPAIRS.

An officer of the Army for whom public quarters were available at the date he entered on a leave of absence does not become entitled to a rental allowance by reason of the fact that his quarters were for a portion of such leave undergoing repairs.

Comptroller General McCarl to Capt. W. O. Johnson, United States Army, January 11, 1923.

There was received September 22 your letter of September 14, 1922, requesting decision on voucher there with submitted in favor of Capt. Lathan H. Collins, Cavalry, D. O. L., for rental allowance as a captain of over five years' service, apparently with dependents (the fact does not affirmatively appear) in third pay period July 7 to September 6, 1922. The officer is entitled to pay only of the second period, although under section 16 of the act of June 10, 1922, 42 Stat., 632, he may be entitled to retain the pay received June 30, 1922. See 2 Comp. Gen., 234.

Captain Collins was by paragraph 46 of War Department Special Orders, No. 115, dated May 17, 1922, granted leave of absence for two months, effective on or about July 1, 1922. The voucher shows that he entered on leave July 7 and returned to duty September 6, 1922. You state that prior to the commencement of the leave the officer "vacated" the quarters occupied by him, and that during a portion of the period of absence the quarters "were undergoing repairs and were not available for occupancy." In addition to the officer's certificate that neither he nor any of his dependents occupied public quarters during the period, the acting quartermaster certifies:

I certify that the records of this office show that quarters No. 64 H at this post, occupied up to July 7, 1922, by Captain Lathan H. Collins, Cav., D. O. L., were undergoing general repairs from the period commencing August 2, 1922, to August 23rd, 1922, and were not available for occupancy during said period The commandant certifies:

I certify that quarters on this post assigned to Captain Lathan H. Collins, Cavalry, D. O. L., were not occupied by him or his dependents during the period from July 7, 1922, to September 6, 1922.

Paragraph 1033, Army Regulations, 1913, is in part as follows: The allowance of quarters to which an officer is entitled when on duty may be continued in kind, at his proper station, during the period for which the law permits him to be absent, without reduction of pay and allowances.

The assignment of the quarters to Captain Collins seems to have been continued while he was on leave. There are no facts in this case to differentiate it from the case of Captain Mickel, the subject of decision to you to-day. That the leave of absence was for a longer period than in that case and was granted by the War Department, and that the quartermaster took advantage of the absence of the officer to repair the quarters, do not give him any greater rights.

The quarters were available for and actually occupied by him when he entered on leave, and under decision of December 26, 1922, 2 Comp. Gen., 399, that fact fixed his right while on leave. In that decision it was said:

The law expresses no intent that an officer occupying quarters leaving a post, yard, or station * * to go on leave of absence shall thereupon

be given rental allowance.

You are not authorized to pay the voucher.

COMPENSATION FOR OVERTIME-PRINTERS, MECHANICS, AND SKILLED LABORERS AT FIRST AND SECOND CLASS POST OFFICES.

The proviso in the act of June 5, 1920, 41 Stat., 1045, that printers, mechanics, and skilled laborers in first and second class post offices shall be deemed a part of the clerical forces for the purposes of promotion and compensation entitles such employees to extra pay for services in excess of eight hours per day under the same circumstances and conditions as the regular clerks in such post offices are so entitled under section 5, act of August 24, 1912, 37 Stat., 554.

Comptroller General McCarl to the Postmaster General, January 12, 1923.

I have your letter dated December 26, 1922, requesting decision whether printers, mechanics, and skilled laborers in first and second class post offices may be required to work more than eight hours a day and be paid as overtime for the excess in proportion to their salaries as fixed by law.

The act of June 5, 1920, 41 Stat., 1045, reclassifying employees of the Postal Service does not provide specifically for printers, mechanics, and skilled laborers, but attached to the provision classifying clerks in first and second class post offices, and fixing the rates of compensation for the different grades, is a proviso as follows:

That printers, mechanics, and skilled laborers shall, for the purpose of promotion and compensation, be deemed a part of the clerical forces. 41 Stat., 1049. The members of the clerical force in first and second class post offices are entitled to additional compensation for work in excess of eight hours a day under a provision in section 5 of the act of August 24, 1912, 37 Stat., 554, which reads:

That in cases of emergency, or if the needs of the service require, clerks in first and second class post offices can be required to work in excess of eight hours a day, and for such additional services they shall be paid extra in proportion to their salaries as fixed by law.

In view of the provision in the act of June 5, 1920, that the employees now under consideration are to be deemed a part of the clerical force for the purpose of compensation, I have to advise that they are entitled to extra pay for service in excess of eight hours per day under the same circumstances and conditions as are the regular members of the clerical force in first and second class post offices.

RENTAL ALLOWANCE WHILE IN HOSPITAL.

An officer of the Army ordered to a hospital for observation and treatment prior to July 1, 1922, without being detached from duty at his station, may be paid a rental allowance while in such hospital on and after July 1, 1922, if properly in receipt of commutation of quarters at the time of leaving his station to enter the hospital.

Comptroller General McCarl to Maj. W. D. Dabney, United States Army, January 12, 1923.

I have your letter of August 5, 1922, requesting decision whether you are authorized to pay voucher therewith transmitted in favor of Maj. John W. Rafferty, Field Artillery, for rental allowance from July 1 to 31, 1922.

By paragraph 16 of Special Orders, No. 79-O, dated War Department, April 5, 1922, as modified by telegram of The Adjutant General of April 13, 1922, Major Rafferty was directed, upon the expiration of the school term at the Field Artillery School, Fort Sill, Okla., to proceed to Fort Sam Houston, Tex., for observation and treatment in the station hospital there.

Subsequently, by paragraph 14, Special Orders, No. 123, dated War Department, May 26, 1922, Major Rafferty, with other student officers, was relieved from duty as a student officer at Fort Sill on or about June 15, 1922, detailed, by direction of the President, under the provisions of section 40-b, national defense act, as amended, 41 Stat., 777, as assistant professor of military science and tactics at the Culver Military Academy, Culver, Ind., with intermediate assignment to temporary duty in connection with summer training at Camp Knox, Ky., with directions to report for this latter duty not later than June 30, 1922, and his name directed to be placed "on the detached officers' list."

You state that Major Rafferty had not reported either at his permanent or temporary station as fixed by Special Orders, No. 123, but had lived in the station hospital, Fort Sam Houston, since his departure from Fort Sill. The date of his departure from Fort Sill does not appear. While for the period of his claim his orders of May 26, 1922, had not been complied with, due, apparently, to illness in hospital, it is understood that he has since entered on the duty at Camp Knox.

It is stated that Major Rafferty has no dependents.

You are advised that if Major Rafferty was in the occupancy of quarters in kind at Fort Sill at the time of going into the hospital at Fort Sam Houston he is not entitled for the period in question to a rental allowance. If, on the contrary, he at the time of his departure from his permanent station at Fort Sill to enter said hospital was properly in receipt of commutation of quarters, he is entitled for said month of July, 1922, to the rental allowance as an officer of his correct pay period under the act of June 10, 1922,

42 Stat., 628, independently of the operation of the saving clause for pay purposes, which for a major of less than 14 years is period 3. See decision to Secretary of the Navy of December 26, 1922, 2 Comp. Gen., 399, and 2 Comp. Gen., 234.

The question can not be answered more specifically upon the facts as presented.

DOUBLE COMPENSATION-TEACHERS IN NIGHT SCHOOLS OF THE DISTRICT OF COLUMBIA.

Teachers in the night schools of the District of Columbia are paid from funds appropriated by Congress and are accordingly prohibited by the act of May 10, 1916, 39 Stat., 120, as amended by the acts of August 29, 1916, 39 Stat., 582, and October 6, 1917, 40 Stat., 384, from receiving for any one day's work as such teacher any compensation in excess of one three-hundred-and-twelfth of the amount by which $2,000 exceeds the salary they may be receiving from other employment by the Federal Government or by the District of Columbia in any other capacity than as teacher in the public schools.

Comptroller General McCarl to the Board of Commissioners of the District of Columbia, January 13, 1923.

I have your letter of November 8, 1922, transmitting the request of the superintendent of schools for decision as to whether or not section 6 of the act of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat., 120, 582, is applicable to teachers in the night schools of the District of Columbia who are also employed by the United States or the District of Columbia in some other capacity.

The section referred to is as follows:

That unless otherwise specially authorized by law, no money appropriated by this or any other Act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum, but this shall not apply to retired officers or enlisted men of the Army, Navy, Marine Corps, or Coast Guard, or to officers and enlisted men of the Organized Militia and Naval Militia in the several States, Territories, and the District of Columbia.

This act was further amended by the act of October 6, 1917, 40 Stat., 384, as follows:

Section six of the legislative, executive and judicial appropriation Act approved May ten, nineteen hundred and sixteen, as amended by the naval appropriation Act approved August twenty-nine, nineteen hundred and sixteen, shall not apply to teachers in the public schools of the District of Columbia who are also employed as teachers of night schools and vacation schools.

The only classes exempt from the provisions of the section referred to are those specifically named in the acts quoted, and since teachers in the night schools of the District of Columbia are paid from funds appropriated by Congress, you are advised that such of them as are employed by the United States or the District of Columbia in any capacity outside of the enumerated classes are subject to the limitations imposed by the act of May 10, 1916.

It appears that teachers in the night schools are paid on a per diem basis, and you also request a decision as to whether in computing the $2,000 limitation the basis for determining their compensation should

be on the number of nights they actually work or on the actual number of working days in the year.

It has been repeatedly held by this office that for the purpose of determining the annual rate of compensation of per diem employees when such employees are not regularly paid a per diem for every day in the year, such compensation should be computed on the basis of 312 days in a year, regardless of the number of days actually worked in such year, 24 Comp. Dec., 217, 396. Therefore in determining whether or not the per diem rate of compensation paid employees in the night schools exceeds the $2,000 limitation the computation should be based on the payment of such per diem rate for 312 days in the year regardless of the number of nights of actual service in such schools.

RENTAL ALLOWANCE TO OFFICERS OF THE ARMY AT TEMPORARY DUTY STATIONS.

An officer of the Army who when assigned to a permanent duty station fails to make application for quarters as required by Army regulations is not entitled to claim a rental allowance upon the ground that no quarters were available.

An officer of the Army on temporary duty away from his permanent station at which he was not entitled to a rental allowance, and who at his temporary station is furnished with shelter, is not entitled to a rental allowance notwithstanding his dependents may not be in the occupancy of public quarters.

Comptroller General McCarl to Capt. Melvin Jones, United States Army, January 16, 1923.

There was received October 30 your second indorsement of September 26, 1922, requesting decision whether you are authorized to pay voucher therewith submitted in favor of Capt. Wharton G. Ingram, Sixth Cavalry, for rental allowance under section 6 of the act of June 10, 1922, 42 Stat., 628, for the period July 1 to August 29, 1922, as for an officer with dependents entitled to the pay of the third period.

By paragraph 52 of War Department Special Orders, No. 114, dated May 16, 1922, Captain Ingram was relieved from duty as a student officer at the Cavalry School, Fort Riley, Kans., effective upon completion of the course, was assigned to the Sixth Cavalry, Fort Oglethorpe, Ga., and to temporary duty in connection with summer training camps with direction to proceed from his new station to Camp Meade, Md., for performance of the temporary duty enjoined. The officer states that he left Fort Riley June 10, reported for duty at Fort Oglethorpe June 19, departed from Fort Oglethorpe June 20, and reported for temporary duty at Camp Meade June 22, 1922. Paragraph 1027, Army Regulations, 1913, provides, in part

An officer reporting for duty at a post will, immediately upon his arrival, make written application to the commanding officer for quarters.