paid. The classes of relatives who may properly be designated as beneficiaries are stated in § 33.4.

The evidence required to establish the right, under the law, of any person to receive payment of the six months' gratuity is set forth for the different classes of beneficiaries shown in the following table:

Class of beneficiary

Widow...

Unmarried child or children under 21 years of age. Married child or

children, any age. Child or children over 21 years of age.

Other beneficiaries.... Evidence

1 The fact, if it be a fact, that the widow or child (children), as the case may be, was designated as beneficiary will in itself be regarded ordinarily as sufficient to establish the identity of the payee. Where payment is to be made to a widow or child (children) not previously designated as beneficiary, affidavits from 2 disinterested persons not related by blood, certifying to the length of time they have known the beneficiary and that he or she is the person represented should be obtained and filed with the voucher.

If it be a fact, the last line of par. 12, Standard Form No. 1057, should include "deceased left neither widow nor child (children)."

(Secs. 1, 2, 41 Stat. 367, sec. 9, 41 Stat. 766, 42 Stat. 1385; 10 U.S.C. 903) [Par. 7 (a), (c), AR 35-1540, Mar. 15, 1937]

Sec.

PART 34-MILITARY COURT FEES

34.1 Use of term "court".

34.2 Reporters.

34.3 Witnesses.

34.4 Interpreters.

34.5 Service of subpoena.

General Accounting Office: See Accounts, 4 CFR Chapter I.

Section 34.1 Use of term "court". The term "court" as used in the regulations in this part will be understood to mean court martial, court of inquiry, military commission, or retiring board.*t [Par. 1]

*88 34.1 to 34.8, inclusive, (with the exception noted in the text,) issued under the authority contained in R.S. 161; 5 U.S.C. 22.

†The source of §§ 34.1 to 34.8, inclusive, (except for the amendment noted in the text,) is Army regulations 35-4120, Secretary of War, Apr. 16, 1936.

34.2 Reporters-(a) General. Reporters appointed under the provisions of the one hundred and fifteenth article of war (Act of June 4, 1920 (41 Stat. 810; 10 U.S.C. 1587), including reporters properly appointed for retiring boards, are entitled for their services in such capacity to payment at the rates specified in (b) to (g), or at such lower rates as may be stated in the appointing instrument. (b) Per diem pay. For each day in attendance at court, a reporter is entitled to a per diem payment of not to exceed $5. In computing such per diem pay, the calendar day ending at midnight Page 4

is the unit, and a fraction of such day will be considered a whole day. Only one per diem of not to exceed $5 for any one day is authorized, even if the reporter attends two or more courts.

(c) Hourly pay. In addition to the per diem payment prescribed in (b), a reporter is entitled to an hourly payment of not to exceed 50 cents for each hour actually spent in court during the trial or hearing. In computing time spent in court for purposes of determining the hourly payment, the time will be reckoned for each day separately if only one court is attended in such day; time in attendance at each court will be reckoned separately, if more than one court is attended in one day; a fractional part of an hour, equal to or greater than one-half hour, at the end of a day's attendance or attendance before a court will be considered a whole hour; a fractional part of an hour, less than one-half hour, will be disregarded, except that if the total time in attendance in one day or at one court in one day is less than one hour such time will be considered as a whole hour.

(d) Piece-work pay. In addition to the per diem and hourly pay prescribed in (b) and (c), a reporter will be paid at not to exceed the following rates: For transcribing notes and for making that portion of the original record which is required to be typewritten, 20 cents for each 100 words; but no allowance will be made for original papers which are appended as exhibits; for the second and each additional carbon copy of the record when authorized by the convening authority, 2 cents for each 100 words; no allowance will be made for the first carbon copy; for copying papers material to the inquiry, 15 cents for each 100 words; for each carbon copy of the papers referred to in (c) when ordered by the court for its use, 2 cents for each 100 words.

In determining the amounts due under the foregoing provisions, the following rules for counting words will govern: The abbreviations "Q", standing for the word "question", and "A", standing for the word "answer", and all dates, as "25th" and "1936", will each be counted as one word; punctuation marks will not be counted as words; the certifying officer may determine the total number of words by counting the words on a sufficient number of pages to arrive at a fair average of words per page and multiplying such average by the total number of pages; the number of pages, as well as the number of words, in each respective transcript for which compensation for copying is claimed will be shown on vouchers covering payments to reporters at piece-work rates. (See MS. Comp. Gen. A-44019, Jan. 4, 1937.)

(e) Mileage. Except for such portion of the journey as is covered by transportation furnished in kind, a reporter is entitled to mileage for traveling from his home or usual place of employment to the court and for his return journey at rates prescribed in § 34.3 (a) (2) for civilian witnesses not in Government employ. If the reporter returns each night to his home he does not thereby become entitled to additional mileage unless the sessions of the court are held on nonconsecutive days. (See Op. J.A.G., Sept. 7, 1910.) The fact that a reporter may serve two or more courts in the same day does not warrant a duplication of his mileage allowance.

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[609]

(f) Allowance in lieu of subsistence. When the official of the court having control in such matters keeps the reporter at his own expense away from his usual place of employment for 24 hours or more on public business referred to the court, a per diem allowance of not to exceed $4 in lieu of subsistence will be paid to the reporter for himself. A like allowance when ordered by the court will be paid to the reporter for each necessary assistant.

The time for which the per diem allowance for expenses is to be paid will be computed in the manner prescribed in § 34.3 (a) (2) in the case of a civilian witness not in Government employ. The fact that a reporter returns each night to his home does not preclude the view that he is kept away from his usual place of employment for 24 hours. (See Op. J.A.G., Sept. 7, 1910.)

Service as reporter before two or more courts in the same day does not warrant duplication of the per diem allowance in lieu of subsistence.

(g) Constructive attendance. A reporter duly employed, but who after arrival at court performs no service owing to adjournment, is entitled to mileage, to a day's pay, as prescribed in (b), for constructive attendance, and also to the per diem allowance prescribed in (f) if kept away from his usual place of employment for 24 hours. (See Op. J.A.G., Feb. 18, 1911, Par. 2, June 4, 1914.)* [AR 35-4120, Apr. 16, 1936, as amended by C 1, Jan. 15, 1938]

34.3 Witnesses-(a) Civilians. (1) Persons not subject to military law when called as witnesses are entitled to the fees and mileage allowed to witnesses attending courts of the United States.

(2) (i) Witnesses (other than witnesses who are salaried employees of the Government, and detained witnesses) in the United States courts, who attend, shall be entitled to a per diem for each day of actual attendance and for each day necessarily occupied in traveling to attend court, and return home, and, in addition, mileage as hereinafter provided.

(ii) Witnesses attending in such courts shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same $1.50, and 5 cents per mile for going from his or her place of residence to the place of trial or hearing and 5 cents per mile for returning: And provided further, That witnesses (other than witnesses who are salaried employees of the Government and detained witnesses) in the United States courts who attend court at points so far removed from their respective residences as to prohibit return thereto from day to day, shall, when this fact is certified to in the order of the court for payment, be entitled, in addition to the compensation provided by existing law, as modified by this act, to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to attend court and return home.

(iii) In Alaska such witnesses are entitled to the witness fees and mileage prescribed for witnesses before the United States district court in the judicial division in which the trial or hearing is held. In the Canal Zone such witnesses are entitled to the same witness fees

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*For statutory citation, see note to § 34.1.

and mileage as are prescribed for witnesses before the United States court in the Canal Zone.

(iv) In computing the mileage prescribed in (ii), travel must be estimated over the shortest usually traveled route (by established lines of railroad, stage, or steamer). Where, however, a witness by using his own automobile so reduces the time required for the round trip as to effect a definite saving in the matter of fees, he may be allowed mileage for the distance actually traveled by automobile provided the excess mileage does not exceed the saving in fees. (See 11 Comp. Gen. 60.) A civilian witness not in Government employ, when furnished transportation in kind by the Government, is entitled to 5 cents per mile less the cost of transportation furnished. A civilian witness residing within the jurisdiction of the court, who is subpoenaed and attends the trial in obedience to such subpoena, is entitled to mileage actually traveled by the shortest usually traveled route between his residence and the place of trial, regardless of whether both are in the same city. (See MS. Comp. Gen. A-28041, July 30, 1929.)

(v) In computing the per diem of $1.50 for travel and actual attendance and the per diem of $3 for expenses of subsistence, the calendar day beginning at midnight is the unit, and the per diems accrue from the time it is necessary for the witness to leave his home in order to arrive at the place of trial at the appointed time until the time he could arrive at his home by the first available transportation after his discharge from attendance, any fractional part of a day under such computation to be regarded as a day for per diem purposes. (See 5 Comp. Gen. 1028, as modified by 6 Comp. Gen. 480.)

(vi) A person attending as a witness in more than one case on the same day under a general subpoena to appear and testify is entitled to only one per diem of $1.50 for each day's attendance, but if separate subpoenas are issued in each case, the defendants being different, the witness is entitled to a separate per diem for actual attendance in each case. (See 3 Comp. Gen. 531, 7 Comp. Gen. 455, MS. Comp. Gen. A-31598, May 7, 1930.) The duplication of fees on account of attendance as witness in more than one case on the same day does not apply to the 5-cent mileage allowance nor to the per diem of $3 in lieu of subsistence.

(b) Attendance before an officer taking a deposition. A witness who is required to appear before an officer (civil or military) empowered to take depositions and there to give testimony under oath to be used before a court, is entitled for such service and for the necessary travel incident thereto, including return travel, to the allowances prescribed in (a) the same as though his appearance were before a court. (See 8 Comp. Gen. 18.)

(c) Attendance before military courts or boards of limited jurisdiction. A subpoena or other compulsory process addressed to a civilian by a military court or board which has not express statutory authority to issue such process, such as a board of officers convened to investigate and report upon the facts connected with the death of an enlisted man while on detached duty, is void and civilian

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witnesses who appear before such a board in response to such void process must be regarded as having done so voluntarily and are not entitled to witness fees, in the absence of a specific appropriation therefor. (See 8 Comp. Gen. 64.)

(d) Tender of fees. When ordered by proper authority, the fees of a witness and his mileage at the rates allowed, including fee for one day's actual attendance and mileage for the journey to and from the place where the witness is to appear under the subpoena, will be tendered or paid in advance by the proper disbursing officer.

(e) Expert. An expert witness employed in strict accordance with paragraph 99, Manual for Courts-Martial, 1928,2 may be paid compensation at the rate prescribed in advance by the official empowered to authorize his employment. If any defect exists in the manner of employment, payment of fees in excess of those prescribed in (a) and (b) will not be made by a disbursing officer. An expert while employed on behalf of the Government is an officer or employee of the United States within the laws affecting traveling and subsistence expenses of officers and employees of the Government generally. His traveling allowances are therefore subject to the limitations prescribed in the Subsistence Expense Act of 1926 and the Standardized Government Travel Regulations. (See 6 Comp. Gen. 712.)

8

(f) Essentials to payment of witness fees. A person who, although not subpoenaed, is present at a trial or hearing before a court or other body authorized to compel the attendance of witnesses by compulsory process, and who is compelled or required to testify at such hearing, is entitled to fees and mileage allowable to witnesses. (MS. Comp. Gen. A-49634, July 13, 1933.)

A person who was neither subpoenaed nor requested to appear as a witness, but who voluntarily requested and was granted permission to testify to certain matters considered pertinent to an inquiry being conducted, is not entitled to mileage and witness fees. (See 9 Comp. Gen. 255.)† (44 Stat. 323, 324, 41 Stat. 791; 28 U.S.C. 600a, 600c, 10 U. S. C. 1494) [Par. 3]

34.4 Interpreters. An interpreter appointed under the provisions of the one hundred and fifteenth article of war (41 Stat. 810; 10 U.S.C. 1587) is entitled for his services as such to the allowances prescribed for witnesses.*t [Par. 4]

34.5 Service of subpoena. There being no fee or compensation prescribed by the laws of the United States for the service of a subpoena by a civilian, the fees and mileage allowed by the local law for similar services may be paid. (See sec. 1404, July 24, 1925, Dig. Ops. J.A.G., 1912-30.) If no specific fee or mileage is fixed by local law, reasonable allowances may be paid.*+ [Par. 5]

34.6 Taking of depositions. (a) A civil officer before whom a deposition is taken may be paid the fees allowed by the law of the place where the deposition is taken (or a reasonable fee if no specific

2 The Manual for Courts-Martial, 1928, may be obtained from the Superintendent of Documents, Government Printing Office, Washington, D. C.

8

The Standardized Government Travel Regulations may be obtained from the Superintendent of Documents, Government Printing Office, Washington, D. C.

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*+For statutory and source citations, see note to § 34.1.