practical in such case. Thus, the carrier would, in such situations, be deprived of the evidence of the right to exemption provided for in section 130.62 of the Internal Revenue regulations, supra, should an exemption from the tax be reported to the Internal Revenue Bureau. Hence, in a case where no transportation request is used by a traveler because the transportation cost involved is less than $1 and he does not execute an exemption certificate in lieu of the payment of the applicant's transportation tax, it appears that the amount of the tax so paid properly may be considered as a part of the transportation expense actually and necessarily incurred by the traveler for which reimbursement is authorized. 24 Comp. Dec. 277. Accordingly, assuming the situation to be as above premised, the voucher, if otherwise correct and proper, may be certified for payment. The voucher is returned herewith. (B-35132) PAY-ADDITIONAL-FOREIGN DUTY-NAVAL OFFICER'S RIGHT AS AFFECTED BY TEMPORARY NATURE OF INCIDENTAL DUTIES A naval officer who is required to make brief trips into Mexico and Canada in connection with the performance of temporary duties which were only incidental to his paramount or primary duty within the United States is not entitled to the 10 percent increase in base pay authorized by section 2 of the Pay Readjustment Act of 1942 for commissioned officers for any period of service "beyond the continental limits of the United States." Assistant Comptroller General Yates to the Secretary of the Navy, September 14, 1943: Reference is made to your letter of June 11, 1943, forwarding a letter of the Assistant for Disbursing Officer in Charge of Military Rolls, Headquarters, Twelfth Naval District, San Francisco, California, in which that officer requests decision as to whether Commander L. E. Clifford, United States Navy, retired, is entitled to payment of 10 per centum increase in pay, as for foreign service duty, for the periods from March 9 to 11, 1942, March 12 to 18, 1942, and April 14 to 17, 1943. It appears that by orders of December 13, 1941, Commander Clifford was detached from duty in the Twelfth Naval District and assigned. to duty with the Pacific Southern Naval Coastal Frontier, now apparently the Western Sea Frontier. The temporary duty here involved was incident to the following orders: From: Subject: MARCH 6, 1942. Commander, Western Sea Frontier (Commandant, Twelfth Naval Commander Lloyd E. Clifford, U. S. N. (Retired), Western Sea Frontier. 1. Upon receipt of these orders, you will proceed to places indicated below and such other places as deemed necessary, including places in Mexico, for tem porary duty, in connection with joint conferences, United States and Mexico representatives. 2. To San Diego, California, reporting to the Commandant, Eleventh Naval District, and such places in Mexico as may be necessary in connection with the conference. 3. While outside the continental limits of the United States, you will be allowed a per diem allowance of $7.00 plus actual cost of transportation. 4. This is in addition to your present duty, and upon the completion thereof you will return to your regular station and resume your regular duties. From: Commander, Western Sea Frontier. To: Commander Lloyd E. Clifford, U. S. Navy (Ret.). Subject: Temporary Additional Duty. 9 APRIL 1943. 1. Proceed to the place (or places in the order given) indicated below for temporary duty. This is in addition to your present duties and upon completion thereof, you will return to your station: On or about April 12, 1943, to Seattle, Washington, reporting to Commander, Northwest Sea Frontier, for duty in connection with joint planning. 2. You are authorized to visit, revisit, or vary the itinerary to include such other places, including Canada, as may be deemed necessary in the execution of the temporary duty involved. 3. A per diem of $6.00 in lieu of subsistence will be allowed for travel while outside the continental limits of the United States. The travel performed is shown in indorsements on the said orders as follows: Orders received March 6, 1942: Left San Francisco, Calif., 0730, 3/7/42; arrived Los Angeles, Calif., 2120, 3/7/42. Left Los Angeles, Calif., 1000; 3/9/42; arrived San Diego, Calif., 1400, 3/9/42. Left San Diego, Calif., 1700, 3/9/42; arrived Tia Juana, Mexico, 1800, 3/9/42. Left Tia Juana, Mexico, 0900, 3/11/42; arrived Los Angeles, Calif., 1500, 3/11/42. Left Los Angeles, Calif., 1600, 3/11/42; arrived Glendale, Calif., 1730, 3/11/42. Left Glendale, Calif., 1830, 3/11/42; arrived Los Angeles, Calif., 2010, 3/11/42. Left Los Angeles, Calif., 1300, 3/12/42; arrived Burbank, Calif., 1345, 3/12/42. Left Burbank, Calif., 1540, 3/12/42; arrived Tia Juana, Mexico, 2110, 3/12/42. Left Tia Juana, Mexico, 2125, 3/18/42; arrived San Francisco, Calif., 2105, 3/19/42. Orders received 9 April 1943: Left San Francisco, 1600, April 12, 1943, via S. P.-N. P. R. R.; arrived Seattle, 1730, April 13, 1943. Left Seattle, 1800, April 14, 1943, via G. N. R. R.; crossed border into Canada at Blaine, Wash., 2130, April 14, 1943; arrived Vancouver, B. C., 0016, April 15, 1943. Left Vancouver, B. C., 0001, April 16, 1943 via C. P. R. R.; arrived Victoria, B. C., 0700, April 16, 1943. Left Victoria, B. C., 0001, April 17, 1943 via C. P. R. R.; arrived Vancouver, B. C., 0700, April 17, 1943. Left Vancouver, B. C., 0900, April 17, 1943 via G. N. R. R.; crossed border at Blaine, Wash., 1045, April 17, 1943; arrived Seattle, Wash., 1415, April 17, 1943. Left Seattle, Wash., 1630, April 17, 1943 via N. P.-S. P. R. R.; arrived San Francisco, 2230, April 18, 1943. It thus appears that from approximately December 13, 1941, to April 19, 1943, a period of 16 months, Commander Clifford was on duty with the now Western Sea Frontier, and that during this period he made two trips into Mexico and one into Canada on temporary duty, and that the three trips involved an aggregate of 14 days. The question for determination is whether during those trips the officer was on duty "beyond the continental limits of the United States", within the contemplation of section 2 of the act of June 16, 1942, 56 Stat. 360, hereinafter quoted, so as to entitle him to additional pay for foreign service. Section 18 of the act of March 7, 1942, 56 Stat. 148, provided inter alia, for a 10 per centum increase of base pay of any commissioned officer of the Navy while on duty beyond the continental limits of the United States. This section was expressly repealed by section 19 of the act of June 16, 1942, 56 Stat. 369, but there were enacted as section 2 of the latter act, 56 Stat. 360, provisions as follows: The base pay of any enlisted man, warrant officer, or nurse (female) in the military or naval forces of the United States shall be increased by 20 per centum and the base pay of any commissioned officer of any of the services mentioned in the title of this Act shall be increased by 10 per centum for any period of service while on sea duty as such duty may be defined by the head of the Department concerned, or duty in any place beyond the continental limits of the United States or in Alaska, which increases in pay shall be in addition to pay and allowances otherwise authorized: Provided, That the per centum increases herein authorized shall be included in computing increases in pay for aviation and submarine duty: Provided further, That this section shall be effective from December 7, 1941, and shall cease to be in effect twelve months after the termination of the present war is proclaimed by the President. It has been held consistently that a brief period of duty in a foreign country does not constitute foreign service, within the meaning of foreign service pay laws, if the duty there performed was merely incident to a paramount or primary duty at a station within the United States. See 73 MS Comp. Dec. 87, April 7, 1915; 23 Comp. Dec. 82. Cf., also, 21 Comp. Gen. 1050, 1054, in regard to the question of foreign service pay under section 18 of the act of March 7, 1942, supra, for Army officers engaged in reconnaissance flights from bases in the United States to points outside the United States. It appears that Commander Clifford's temporary duties outside the United States for periods of three, seven, and four days, respectively, in connection with the joint conferences and joint planning were in direct connection with his paramount duties with the Western Sea Frontier. The orders did not confine the duty to be performed to points in Mexico and Canada but on the contrary directed the officer to designated points within the United States, in connection with joint conferences and such other places as deemed necessary including Mexico and Canada, respectively. Clearly the duty in Mexico and Canada was only incidental to the duties directed to be performed and which apparently related to the officer's primary duties in the United States. Prior statutes which authorized foreign service pay have not been regarded as applicable in such cases and no reason is apparent in either the purpose or intent of section 2 of the act of June 16, 1942, supra, to authorize the additional pay under such circumstances. Accordingly, you are advised that Commander Clifford is not entitled to an increase in pay, as for foreign service duty, for periods involved. (B-36782) PAY-NAVAL OFFICERS DURING PERIOD OF LEAVE OF ABSENCE SUBSEQUENT TO RELEASE FROM ACTIVE DUTY Where a retired naval officer on active duty, after a long period of hospitalization and while still in the hospital, received orders detaching him from duty at his regular station and directing him to proceed to his home upon discharge from the hospital and thereafter to consider himself relieved "from all active duty" as of a specified future date, the period elapsing between the date of discharge from the hospital and return home to the date specified in the orders relieving him from all active duty may be considered tantamount to a period of leave of absence, so as to continue the active duty pay and allowances authorized under section 15 of the Pay Readjustment Act of 1942 for such period as would be covered by his accrued leave. Assistant Comptroller General Yates to the Secretary of the Navy, September 15, 1943: There has been considered your letter of August 31, 1943, in which you request decision as to the right of Lieutenant C. H. Foster, USN, retired, to active duty pay and allowances for the period July 1 to 15, 1943. It appears that pursuant to orders dated October 8, 1939, Lieutenant Foster reported for active duty on October 9, 1939, at the Navy Yard, Washington, D. C., and that he remained on active duty at that place until February 10, 1942, when he was admitted to the Naval Hospital, Bethesda, Maryland, for treatment. Orders dated April 9, 1943, from the Chief of Naval Personnel, addressed to the officer at the Naval Hospital, are as follows: Subject: Relieved all active duty; to home. 1. You are hereby detached from duty at the Navy Yard, Washington, D. C., and from such other duty as may have been assigned you. 2. Upon being discharged from treatment at the Naval Hospital, National Naval Medical Center, Bethesda, Md., you will proceed to your home. On July 15, 1943, you will consider yourself relieved from all active duty in the U. S. Navy. You will complete all travel within one year after being discharged from treatment but not later than one year from date of detachment. 3. Immediately upon being discharged from treatment at the Naval Hospital, you will report your mail address to the Bureau of Naval Personnel. See Article 135, Navy Regulations, 1920. 4. Your attention is further invited to the provisions of Article 134, Navy Regulations, which require that every officer, whether active or retired, not on duty, shall report to the Bureau of Naval Personnel, his address on January 1 of each year, the report to be mailed so as to reach the Bureau by December 20 preceding. It is reported that the officer was discharged from treatment on May 20, 1943, and that he presumably reached his home the same day, his home being in Washington, D. C. The act of July 1, 1918, 40 Stat. 704, 717, provides: That hereafter, during the existence of war or of a national emergency declared by the President to exist, any commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list may, in the discretion of the Secretary of the Navy, be ordered to active duty at sea or on shore The pay and allowances authorized for retired officers on active duty are prescribed in section 15 of the act of June 16, 1942, 56 Stat. 367, as follows: * Retired officers of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service and retired warrant officers, nurses, and enlisted men of those services, shall, when on active duty, receive full pay and allowances of the grade or rank in which they serve on such active duty and, when on active duty status, shall have the same pay and allowance rights while on leave of absence or sick as officers on the active list, and, if death occurs when on active duty status, while on leave of absence or sick, their dependents shall not thereby be deprived of the benefits provided in the Act approved December 17, 1919, as amended, and in the Act of June 4, 1920. The pay and allowances authorized by the above-quoted portion of Section 15 of the act of June 16, 1942, are authorized for retired officers "when on active duty" or "when on active duty status." The act of July 1, 1918, authorizing the Secretary of the Navy, in his discretion, to order retired officers to active duty, contemplates, of course, the assignment and performance of active duty, and a status entitling a retired officer to active duty pay and allowances has not been viewed as arising or as continuing indefinitely, without regard to those factors, where the facts or the orders show that no active duty or further active duty actually was contemplated. See Gibson v. United States, 47 C. Cls. 554; 5 Comp. Dec. 207. Cf. 26 Comp. Dec. 245; 21 Comp. Gen. 781; B-25296, June 19, 1942. In the present case the officer reported for active duty and apparently rendered service until he was admitted to the Naval Hospital. However, the orders of April 9, 1943, detached him from duty at the Navy Yard and from such other duty as may have been assigned and directed him to proceed to his home upon discharge from treatment. He complied with this order on May 20, 1943. It has been held that an officer directed to proceed to his home and there await orders is entitled to pay and allowances for such period. United States v. Williamson, 23 Wall. 411; United States v. Phisterer, 94 U. S. 219; United States v. Lippitt, 100 U. S. 663; 1 Comp. Gen. 736; B-33933, May 21, 1943. Those cases took into consideration the obligations of an officer directed to proceed to a particular point and await orders. As was stated in the Williamson Case: It is his duty to go to that place and to remain at that place. He cannot go elsewhere; he cannot return until ordered. He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time. In the present case, the officer was not directed to await orders. He was detached from all duty and directed to proceed to his home and, in view of the long period of hospitalization and the fact that he was not to be continued on active duty, apparently he was not physically qualified for further active duty and, under the orders, no further duty |