laws were directly involved, or that the Food and Drug Administration otherwise was interested in the proceedings. On the contrary, the statement of facts set forth in your submission clearly establish that the case involved the functions and activities of the Office of Price Administration and was instituted pursuant to a statute which your office is required to administer. Therefore, as the case did not involve the activity in connection with which Mr. Sullivan is employed, the obvious conclusion must be that no obligation rests upon the Food and Drug Administration to pay from its appropriations the traveling expenses incurred by him in this instance. On the other hand, the terms of the appropriation for salaries and expenses of your office contained in the act of July 25, 1942 (Public Law 678, 56 Stat. 711), supra, are such as to authorize payment of the traveling expenses of witnesses appearing on behalf of the Government in litigation involving the Office of Price Administration. See decision dated June 9, 1943, B-34946, to the Price Administrator, Office of Price Administration. Moreover, as the said act of July 25, 1942, contains specific authority for the payment of "witness fees", and since neither the act nor its legislative history discloses that such authority was intended to be restricted to payments to witnesses who are not Government employees, but may properly be construed to cover payments to witnesses who are officers or employees of the United States, also, it must be held that reimbursement of the traveling expenses incurred by Mr. Sullivan is to be made from the appropriations under the control of your office. Accordingly, the vouchers transmitted with your letter may be certified for payment, if correct in other respects. The said vouchers are returned herewith. (B-35694) POSTAL EMPLOYEES-ELIGIBILITY FOR PROMOTION TO SELECTIVE POSITIONS The provision contained in 39 U. S. Code 109 making postal clerks in the highest automatic grade in their respective offices eligible for promotion to higher selective positions in those offices operates to make clerks in lower automatic grades ineligible for promotion to higher selective positions, and the fact that clerks in the top automatic grade at a particular office refuse to accept promotion may not be regarded as removing the statutory inhibition so as to authorize promotion of a clerk in a lower automatic grade to a selective position. Comptroller General Warren to the Postmaster General, July 26, 1943: At the present time we have at Mission, Texas, a clerk in the $1,900 automatic grade serving as clerk-in-charge of Moore Field Classified Branch. It is the purpose of the Department to promote him to the designation of superintendent at $2,400 per annum. However, there are two clerks in the top automatic grade of $2,100 who have declined to accept the assignment, responsibility and salary of superintendent of Moore Field Branch. Your decision is, therefore, requested as follows: 1. In the circumstances may the $1,900 clerk be promoted to superintendent of Moore Field Branch at $2,400? 2. If your decision is in the affirmative will it be necessary to obtain the written waivers of the two clerks in the higher automatic grade? 3. Also if your decision is in the affirmative, may we make the promotion retroactive to the date the $1,900 clerk completed his probationary period? You refer to that portion of the act of February 28, 1925, 43 Stat. 1059 (39 U. S. C. 103) amending the act of March 2, 1907, 34 Stat. 1206, which fixes the salaries of postal clerks in first and second class post offices in automatic salary grades from $1,700 to $2,100 per annum, inclusive, and to the following special provision appearing in the act of March 2, 1907: Clerks of the highest grade in their respective offices shall be eligible for promotion to the higher positions in said post offices. Also, you refer to a decision of the Comptroller of the Treasury dated January 17, 1918, 84 MS Comp. Dec. 166, wherein the special provision appearing in the 1907 statute, above quoted, was interpreted to mean that— The provision naming the highest grade clerk for promotion to higher positions, excludes the naming of a lower grade clerk to such a position. The special provision appearing in the act of March 2, 1907, 34 Stat. 1206, above quoted, is permanent legislation-there being for noting in that connection that said portion of the law is carried into the U. S. Code as the last sentence of section 109, title 39. While the act of February 28, 1925, 43 Stat. 1059, reclassified clerks in first and second class post offices, it did not supersede or render inoperative the referred-to special provision in the 1907 law, which, while appearing in an annual appropriation act, was made permanent by virtue of the express terms thereof. Under the ruling stated in the referred-to decision of the Comptroller of the Treasury—with which ruling I agree-only clerks in the highest automatic grades are eligible for promotion to higher selective positions. The affirmative words of the 1907 statute making clerks in the highest automatic grades eligible for promotion to higher selective positions-leaving nothing for administrative discretion— implies a prohibition to promote clerks in the automatic grades to selective positions in any other manner. In other words, the statute makes clerks in lower automatic grades ineligible for promotion to higher selective positions. The refusal of the two clerks in the top automatic grade to accept the selective position of Superintendent of the Moore Field Branch may not be regarded as removing the statutory inhibition against the promotion of the clerk in the lower automatic grade to such selective position. Compare 27 Comp. Dec. 873. Accordingly, question 1 is answered in the negative, making it unnecessary to answer questions 2 and 3. (B-32302) PAY-RETIRED COUNTING OF ADDITIONAL SERVICE AUTHORIZED TO BE CREDITED IN TIME OF WAR; INACTIVE ARMY MEDICAL RESERVE CORPS SERVICE The provision in section 3A of the Pay Readjustment Act of 1942, as amended, authorizing officers paid under sections 1 and 3 of the said act to count for pay purposes during the war period all periods during which they were enlisted, held appointments as warrant officers, etc., and the provision in the act of December 22, 1942, that the pay, allowances, etc., of Army nurses shall be assimilated during the war period to those of commissioned officers, are, in effect, merely provisions for temporary increases in active duty pay in time of war and do not affect the computation of retired pay of retired personnel not performing active duty. Inactive service in the now-abolished Medical Reserve Corps of the Army may not be included in the service of a retired officer to be counted for the purpose of computing his retired pay on the basis of pay provided in section 1 of the Pay Readjustment Act of 1942, as amended. Assistant Comptroller General Yates to Lt. Col. Carl Witcher, U. S. Army, July 28, 1943: There has been considered your letter of January 13, 1943, submitting for decision a pay roll stated in favor of several retired officers and a retired nurse for increased retired pay, as follows: Captain John W. Bollenbeck: Difference in longevity between over 17 and 21 years of service for the period June 1 to December 31, 1942, by reason of Enlisted service in the National Guard. Major Caspar R. Byars: Difference in longevity and pay period between over 21 and over 27 years' service for the period June 1 to December 31, 1942, due to inactive service in the Medical Reserve Corps. 1st Lieut. Rowland Kieburtz: Difference in pay period between over 9 and over 10 years' service for the period June 1 to December 31, 1942, due to Enlisted service as a Flying Cadet. 1st Lieut. William J. O'Brien: Difference in retired pay of a W. O., Jr. Grade, between over 24 and over 30 years' service for the period June 1 to December 31, 1942, by reason of Enlisted service in the Organized Militia. Charlotte E. Bucker, A. N. C.: Difference in retired pay of a nurse and the retired pay of a 2nd Lieut. for the period December 22 to 31, 1942. The basis for the proposed increased retired pay, and the questions arising, are stated as follows: Section 1 of the Pay Readjustment Act of 1942, approved June 16, 1942, as amended by the Act of December 2, 1942, provides in computing service for all pay purposes full time for all periods during which officers held commissions be credited. Section 3a of the latter Act provides that for the period during the existence of any War declared by Congress and for 6 months immediately following the termination of such War, certain additional services may be credited whether as an officer or an enlisted man. The question arises, therefore, as to whether Major Caspar R. Byars may be credited with service in the Medical Reserve Corps, which is not specifically mentioned in either Section 1 or 3a of the Act of December 2, 1942. In the cases of Captain Bollenbeck, 1st Lieutenants Kieburtz and O'Brien, the question arises as to whether retired pay should be computed under section 3a of the above mentioned law. The Act of December 22, 1942, provides that members of the Army Nurse Corps shall have relative rank and receive the pay as is now or hereafter provided by law for commissioned officers without dependents of the Regular Army. The question arises as to whether this Act is applicable to former nurses of the Army Nurse Corps retired prior to the date of the Act and who are now on the Nurse Corps Retired List. The attached voucher is stated for the difference in pay for nurse Charlotte E. Bucker. For convenience, the statutes relevant to consideration of the questions presented are quoted below, in pertinent part: Section 15 of the Pay Readjustment Act of 1942, 56 Stat. 367: On and after the effective date of this Act, retired officers, warrant officers, nurses, enlisted men, and members of the Fleet Reserve and Fleet Marine Corps Reserve shall have their retired pay, retainer pay, or equivalent pay, computed as now authorized by law on the basis of pay provided in this Act The eleventh paragraph of section 1 of the Pay Readjustment Act of 1942, as amended by the act of December 2, 1942, 56 Stat. 1037: In computing the service for all pay purposes of officers paid under the provisions of this section, such officers shall be credited with full time for all periods during which they have held commissions as officers of any of the services mentioned in the title of this Act, or in the Organized Militia prior to July 1, 1916, or in the National Guard, or in the National Guard Reserve, or in the National Guard of the United States, or in the Officers' Reserve Corps, or in the Naval Militia, or in the National Naval Volunteers, or in the Naval Reserve force, Naval Reserve, Marine Corps Reserve force, Marine Corps Reserve, Coast Guard Reserve, and the Reserve Corps of the Public Health Service, or in the Philippine Scouts, or in the Philippine Constabulary, and service of Coast and Geodetic Survey officers authorized in section 2 (b) of the Act of January 19, 1942 (Public Law 402, Seventyseventh Congress): Provided, That for officers in service on June 30, 1922, there shall be included in the computation, in addition to the service set forth above, all service which was then counted in computing longevity pay, and service as a contract surgeon serving full time. Longevity pay for officers in any of the services mentioned in the title of this Act shall be based on the total of all service in any or all of said services which is authorized to be counted for longevity pay purposes under the provisions of this Act or as may otherwise be provided by law. Section 3A of the Pay Readjustment Act of 1942, as added by the act of December 2, 1942, supra: During the existence of any war declared by Congress and for six months immediately following the termination of such war, in computing the service for all pay purposes of officers paid under the provisions of section 1 or 3 of this Act, such officers, in addition to the time required to be credited by such sections, shall be credited with full time for all periods during which they were enlisted or held appointments as warrant officers or Army field clerks or as commissioned warrant officers in any of the services mentioned in the title of this Act, or in the Regular Army Reserve, or in the organized Militia prior to July 1, 1916, or in the National Guard, or in the National Guard Reserve, or in the National Guard of the United States, or in the enlisted Reserve Corps, or in the Naval Militia, or in the National Naval Volunteers, or in the Naval Reserve Force, Naval Reserve, Marine Corps Reserve force, Marine Corps Reserve, Coast Guard Reserve, and the Reserve Corps of the Public Health Service, or in the Philippine Scouts, or in the Philippine Constabulary. The provisions of this section shall not be construed to permit any commissioned officer to receive pay and allowances in excess of the maximum limitations imposed upon the total pay and allowances of any rank or grade by any of the provisions of this Act. Section 1 of the act of December 22, 1942, 56 Stat. 1072: That hereafter, during the present war and for six months thereafter, the members of the Army Nurse Corps shall have relative rank and receive pay and money allowances for subsistence and rental of quarters, and mileage and other travel allowances, as now or hereafter provided by law, for commissioned officers, without dependents, of the Regular Army in the sixth to the first pay periods, respectively. The additional service proposed to be credited in the computation of the retired pay of Captain Bollenbeck, Lieutenant Kieburtz and Lieutenant O'Brien, if authorized to be credited at all, would be credited by virtue of section 3A of the Pay Readjustment Act of 1942, and the proposed payment of the retired pay of a second lieutenant to Nurse Bucker would be by virtue of section 1 of the act of December 22, 1942. It will be noted, however, that both of these statutory provisions are limited in their application to the duration of war and six months thereafter. They make no change in the basis of computing the permanent pay of officers and nurses on the active list but are, in effect, merely provisions for a temporary increase in active duty pay in time of war. The general rule is that exceptional pay or increases of pay given for special services on active duty or under special circumstances incident to actual service, such as temporary increases of active duty pay in time of war, do not enter into the computation of retired pay. In Murphy v. United States, 38 C. Cls. 511, it was held that a retired enlisted man was not, in the computation of his retired pay, entitled to be credited with the 20 percent increase in pay given to enlisted men in time of war by the act of April 26, 1898, 30 Stat. 364, 365. See, also, 6 Comp. Dec. 182; 24 id. 116. Cf. 4 id. 374; 9 id. 41; 13 id. 759 and 26 id. 478. Nothing in the statutory provision here involved denotes a legislative intent to change that long established rule. The temporary increases of pay resulting from such statutory provisions are for wartime active service under conditions not affecting personnel on the retired list not performing active duty. Accordingly, you are advised that the questions stated with respect to the retired pay of Captain Bollenbeck, Lieutenants Kieburtz and O'Brien, and Nurse Bucker must be answered in the negative. See decision of today, B-32730, 23 Comp. Gen. 59, to the Secretary of the Navy. Your further question is as to whether Major Casper R. Byars may be credited with inactive service in the Medical Reserve Corps in the computation of his retired pay. While Major Byars' service record is not set forth on the pay roll or in your letter, such record, as it appears in the Official Army Register issued January 1, 1942, is as follows: [Federal Cont. surg. 20 Mar. 00 to 3 Mar. 03 and from 29 Mar. 05 to 3 May 07.]-1 lt. M. R. C. 28 Apr. 11; accepted 13 June 11; active duty 18 July 16; 1 lt. Med. Sec., O. R. C. 24 Mar. 17; accepted 6 Apr. 17; Maj. Med. Sec., O. R. C. 20 June 17; accepted 5 July 17; vacated 10 Sept. 20-Maj. M. C. 1 July 20; accepted 10 Sept. 20; retired 30 Nov. 33. It is assumed you have reference to the officer's inactive commissioned service in the Medical Reserve Corps from June 13, 1911, to July 17, 1916. Under the provisions of section 15 of the Pay Readjustment Act of 1942, supra, Major Byars is entitled to have his retired pay computed on the basis of pay provided in that act. The retired pay to which he is thus entitled is based on what his active duty pay would have been had the permanent pay provisions of that act been in effect when |