There is no authority in the act of June 10, 1922, for the recomputation of the retainer pay of any members transferred prior to July 1, 1922.

In other words, on and after July 1, 1922, the retainer pay of members transferred to the reserve prior to July 1, 1922, will be computed on the base pay of the regular rating as held on date of transfer as follows:

Transferred in the period from August 29, 1916, to and including July 10, 1919, at rates prescribed in acts prior to July 11, 1919, for the particular rating held in the Navy at time of transfer.

Transferred between July 11, 1919, and May 17, 1920, both dates inclusive, at rates prescribed in acts prior to July 11, 1919, plus the war increase in the act of May 22, 1917, made part of permanent base pay by the act of July 11, 1919, 41 Stat., 140.

Transferred between May 18, 1920, and June 30, 1922, both dates inclusive, at rates of pay prescribed by the act of May 18, 1920, 41 Stat., 603, except

Transferred prior to May 18, 1920, and who returned to active duty within one month after May 18, 1920, and continued thereon “until the Navy shall have been recruited up to its permanent authorized strength, or until the number in the grade to which they may be assigned is filled, but not beyond June 30, 1922," on reserve grade pay for active duty as it existed at the time of their release from said active duty, plus the permanent additions to which entitled under the act of August 29, 1916, 39 Stat., 590. See 27 Comp. Dec., 26.

If Johnson or McCarthy do not belong to the class of members who returned to active duty within one month of May 18, 1920, as prescribed in section 6 of the act of that date, they should be paid on and after July 1, 1922, retainer pay at $48.20 and $50.46 per month, respectively, otherwise in accordance with said section 6.

As Leonard was transferred from the Regular Navy subsequent to May 18, 1920, he should be paid on and after July 1, 1922, at $60.74 per month.

Question (i) is answered accordingly.

MEDICAL TREATMENT-OFFICERS OF ARMY IN PRIVATE

HOSPITALS.

An Army officer who, for personal reasons within his control, delays availing himself of Army medical and hospital facilities after the need has clearly arisen until his condition becomes such as to prevent his removal to an Army hospital, is not entitled to reimbursement for private medical and hospital treatment rendered necessary by such delay.

Decision by Comptroller General McCarl, August 8, 1922:

On behalf of the administrators of the estate of William J. Grinden, deceased, former major, Ordnance Department, United States

Army, reconsideration has been requested of settlement 750502, dated October 23, 1920, of the Auditor for the War Department, whereby was disallowed claim of Maj. William J. Grinden for $1,201.50 reimbursement of hospital and medical treatment and nursing in private hospital from March 11, 1920, to April 15, 1920.

In accordance with the act of July 31, 1894, 28 Stat., 208, the action of an auditor in the settlement of an account is final and conclusive upon the executive branch of the Government unless revision thereof by the Comptroller of the Treasury was obtained upon application therefor made within one year from date of settlement. By the act of June 10, 1921, 42 Stat., 23, the power to revise a settlement made by an auditor previous to July 1, 1921, upon application filed within one year of the date of settlement, was vested in the Comptroller General. In the present case application for revision not having been filed within one year from the date of settlement the action of the auditor became final and conclusive, subject to reopening by this office, as successor to the auditor, only for the purpose of correcting mistakes of fact arising from errors of calculation or upon the production of newly discovered material evidence, or for fraud. 6 Comp. Dec., 236; 11 id., 459; 14 id., 795.

The reason for disallowance of claim was stated by the auditor as follows:

The claimant incurred the expense without proper authority and declined to avail himself of a military hospital which was available.

No errors in calculation or fraud are alleged, and it is on the basis of possible newly discovered material evidence alone that the settlement is now subject to reconsideration by this office.

There have been furnished affidavits of attending surgeon, physician, nurse, and brother and sister of William J. Grinden, describing in detail the incidents surrounding the illness of decedent. Their contents were prepared to show the condition of the patient and the immediate need of an operation, which are alleged to have been so serious as to prevent removal of the patient to any Army hospital.

In brief, the facts appearing from the record at time of settlement were, that on March 9, 1920, Major Grinden's illness was reported by the medical officer in charge of outside calls to the proper authorities, showing symptoms indicating some abdominal condition which needed immediate attention, and stated that Major Grinden desired to be allowed to enter St. Mary's Hospital, a private institution. This was denied, and next day, March 10, 1920, the patient, through efforts of Maj. J. H. Myers, again sought privilege of entering the private hospital for reasons connected with his religion. This again being denied, the patient that day decided to

enter Army hospital. No Army ambulance was available, however, until the next morning, March 11, and when same called the patient had developed alarming symptoms and had but a short time before been rushed to St. Mary's Hospital and operated upon for acute appendicitis with perforations.

The additional affidavits now filed set forth in detail the incidents surrounding the sudden turn for the worse on the morning of March 11, 1920, making it necessary to immediately remove the patient to the nearest hospital instead of to the nearest available Army hospital, viz, General Hospital 41, Fox Hills, Staten Island, N. Y., a distance of 20 miles.

The auditor was fully informed of the seriousness of the illness and this sudden turn for the worse when he disallowed the claim. He did not have before him, possibly, the details of the happenings on the morning of March 11 in connection with patient's sudden removal to St. Mary's Hospital, but those details were immaterial to a decision in the case.

Evidence produced by a claimant in support of an application for reopening by the Comptroller General of a settlement made by a former auditor more than a year previous, must be material; that is, such as might have justified a different conclusion had it been presented and considered at the time of the auditor's settlement.

Annual appropriation acts authorize reimbursement of civilian medical treatment for Army officers when authorized by law, regulation, or contract. The applicable statute in this case was that of July 11, 1919, 41 Stat., 122. By Army Regulations, paragraph 1476, civilian medical and hospital treatment is authorized for Army officers on duty only when same "can not otherwise be had"; that is to say, when Army facilities are not available. 16 Comp. Dec., 736; 22 id., 166.

In this case a fully equipped Army hospital was accessible, and had Major Grinden immediately gone there when first taken sick there would have been no occasion to utilize the services of private hospital and physicians. An Army officer who delays availing himself of Army medical and hospital facilities after the need has clearly arisen, for personal reasons within his control, until his condition becomes such as to prevent removal to Army hospital, is not entitled to reimbursement for private medical and hospital treatment. As none of the requirements that warrant a reopening of the settlement have been met, it is accordingly denied.

989449 0-52- -8

RETIRED ENLISTED MEN OF ARMY COMMISSIONED DURING WORLD WAR-PAY OF, AFTER JUNE 30, 1922.

The pay of retired enlisted men of the Army who held commissions during the World War and who, prior to July 1, 1922, were retired with the pay and allowances of retired warrant officers continues unchanged on and after July 1, 1922, other than in cases, if any, in which that of retired enlisted men of the Army generally as fixed by the act of June 10, 1922, 42 Stat., 629, is greater, when they are entitled to the higher rate. Comptroller General McCarl to the Secretary of War, August 8, 1922:

I have your letter of June 29, 1922, requesting decision as to retired pay after June 30, 1922, of those retired enlisted men of the Army who served as temporary commissioned officers during the World War and under the provisions of the act of June 4, 1920, 41 Stat., 786, "shall receive the retired pay and allowances of warrant officers on the retired list, as provided in this act."

The inquiry has relation to the provisions of the act of June 10, 1922, 42 Stat., 629, which, in section 9, directs:

On and after July 1, 1922, retired enlisted men of the Army and Marine Corps shall have their retired pay computed as now authorized by law. on the basis of pay provided in this act.

And also to the provisions of section 1 of said act which provides:

Nothing contained in the first sentence of section 17 or any other section of this act shall authorize an increase in the pay of officers or warrant officers on the retired list on June 30, 1922.

The act of June 4, 1920, cited, gave the retired enlisted men therein referred to a special retired pay, to wit, that of retired warrant officers, but did not give them the status of such warrant officers. Their status was and continued to be that of retired enlisted men. The act of June 4, 1920, cited, relating wholly to the retired pay of the men and not changing their status, it would follow that what might thereafter raise a distinction between warrant officers would necessarily leave these retired enlisted men related to the pay of the warrant officers which obtained June 4, 1920, if that remained undisturbed unless new enactment thereinafter specially embraced the retired enlisted men within the new provisions. The retired enlisted men here concerned were not expressly included in any provisions of the act of June 10, 1922, relating to warrant officers. In so far, then, as such provisions would be concerned, these retired enlisted men would remain as they were before unless the provisions of section 9, which specifically direct that retired enlisted men shall have their retired pay computed as now authorized by law, are to be taken as rendering nugatory the provisions of the act of June 4,

1920.

I think whatever questions arise must arise with relation to the cited provision of the act of June 4, 1920, and the said section 9. If the retired pay of these retired enlisted men in its relation to

that of retired warrant officers is greater than that which would be received by these retired enlisted men under the provisions of section 9 of the act of June 10, 1922, as retired enlisted men, then they are entitled to be paid, as heretofore, the retired pay of retired warrant officers in effect June 4, 1920; otherwise they are entitled to be paid after June 30, 1922, retired pay of retired enlisted men as provided by the act of June 10, 1922. The intent of the act of June 4, 1920, was to give these men higher retired pay than the ordinary retired pay of enlisted men at that time, and the enactment should not be considered as so conclusive that if the ordinary retired pay is thereafter made higher than the pay under the act of June 4, 1920, these men must be excluded from the higher pay given the retired enlisted men generally. To that extent the two enactments appear conflicting.

DISBURSEMENT OF FUNDS APPROPRIATED FOR THE WAR

DEPARTMENT AT WASHINGTON.

The act of June 4, 1920, 41 Stat., 766, requiring that "all funds of the War Department" should be disbursed by the Chief of Finance is limited to the funds appropriated for use by the War Department in its capacity as an organization for national defense, and does not charge that official with the disbursement of funds appropriated for the civil establishment of the War Department at Washington.

Comptroller General McCarl to the Secretary of War, August 9, 1922:

I have your letter of July 20, 1922, referring to the provision in the act of June 4, 1920, 41 Stat., 766, which prescribed the duties of the Chief of Finance, and requesting decision "whether under the law the Chief of Finance of the Army should be charged by the department with the disbursement of funds appropriated for the maintenance of the War Department at Washington."

The funds appropriated for the War Department at Washington are now being disbursed by the disbursing clerk for the War Department. Such position was originally provided for in the act of March 3, 1853, 10 Stat., 211, in the following language:

There shall be a disbursing clerk for each of the Departments of War, Navy, and the Post Office * * *. The said clerks to be appointed out of class four by the heads of the respective departments and to receive such sum, in addition to their regular salaries, as may amount in all to two thousand dollars per annum.

Since June 30, 1874, the annual compensation of the disbursing clerk for the War Department has been specifically appropriated for at a fixed sum. See act of June 20, 1874, 18 Stat., 99. The appropriation for each fiscal year from July 1, 1874, to June 30, 1902, was “disbursing clerk, $2,000." The salary was increased by annual appropriation acts to $2,250, effective from July 1, 1902; to $2,500, effective from July 1, 1906; and to $2,750, effective from July 1,