As is pointed out in your letter, there were three "Commissionowned" communities in existence when subsection 161 (s) was enacted: Oak Ridge, Tennessee; Richland, Washington; and Los Alamos, New Mexico. By the Atomic Energy Community Act of 1955, approved August 4, 1955, 69 Stat. 471, 42 U. S. C. 2301 note, the Commission was authorized and directed to dispose of the communities of Oak Ridge and Richland. Thus, at the time the Commission was authorized by subsection 161 (s) to make contracts for the sale of the utility services it was currently engaged in disposing of two of the communities covered by the subsection. It was authorized to make such contracts for such periods of time as it deemed appropriate, and it is apparent that the term of such contracts might and probably would extend beyond the time when the communities would be "Commission-owned." It does not seem reasonable to conclude that the Congress intended the authority given by subsection 161 (s) to terminate because of the success of the disposal program then under way.

For these reasons, it is our view that the Commission is authorized to enter into contracts for the sale of steam at Richland to Richland School District No. 400, Kadlec Methodist Hospital, and purchasers of commercial facilities, as proposed in your letter.

However, we believe we should call your attention to the fact that the appraised current fair market value of many commercial properties in Richland apparently would have been higher if it had been known that steam could be purchased from the Commission. See pages 77-78 of the Richland Appraisal Basic Data Report.

[B-130694]

Military Personnel-National Guard-Pay-After Hospitalization

The status of National Guard members who, after hospitalization for disabling injuries incurred in line of duty, are given conditional releases with recommendation for temporarily restricted duty or limited activities is too doubtful to permit the continuation of active duty pay and allowances, under 32 U. S. C. 318, after completion of hospitalization.

To the Secretary of Defense, March 4, 1958:

Further reference is made to letter of January 22, 1958, from the Assistant Secretary of Defense (Comptroller), requesting decision on certain questions set forth in Committee Action No. 203 of the Military Pay and Allowance Committee, Department of Defense, relating to the entitlement of members of the National Guard to the pay and allowance benefits authorized in 32 U. S. C. 318. Committee Action No. 203 is, in part, as follows:

QUESTIONS:

For the purposes of determining entitlement of a member of the National Guard to benefits under Section 318 of Title 32, United States Code, the following questions are submitted:

1. Would a release from the hospital by a service medical board under the following circumstances constitute a final decision in the member's case within the meaning of 36 Comp. Gen. 692, so as to preclude payment of pay and allowances beyond the period of hospitalization or rehospitalization—

a. "conditional" release with recommendation that member be returned to a duty status with temporary restricted duty.

b. "conditional" release with recommendation that member be returned to a duty status with limited activities and the further requirement of periodically reporting for re-evaluation of physical condition?

2. If the answer to la and b above is in the negative, for how long would such in dividual be entitled to pay and allowances?

It was held in our decision of April 4, 1957, 36 Comp. Gen. 692, that if, upon termination of hospitalization for an injury incurred in line of duty while performing training duty, it is administratively determined that a member of the National Guard is able to perform his military duty, such finding would constitute a final decision in his case so as to terminate his right to active-duty pay and allowances under the cited provisions of law. That decision was based on the view that a right to pay and allowances under 32 U. S. C. 318 depends primarily on physical disability to perform military duty. As long as the period of hospitalization is continued, there appears to be no basis to question the continued existence of the disability. However, where the injury is such as not to warrant or suggest the institution of disability retirement proceedings at the date of termination of hospitalization, payment of pay and allowances after that date would not appear to be justified in the absence of a showing of physical disability to perform military duty.

The statute contains no provision indicating the exact time, during the period of convalescence from a disabling injury incurred in line of duty, when the right to active-duty pay and allowances should be considered to terminate. The determination as to how long a member continues to be "disabled" appears to have been left to the exercise of sound administrative discretion. Since there are varying degrees of "temporarily restricted duty" and "limited activities" which may be applicable in different cases of the type here involved, where a member is returned to a National Guard duty status, we believe that the matter of his right to active-duty pay and allowances should be decided on the basis of whether or not he is returned to a duty status and without regard to the amount or degree of restricted or limited duty it is recommended that he perform after his return.

In the absence of a court decision upholding the legality of paying active-duty pay and allowances, under 32 U. S. C. 318, to a member of a National Guard after his hospitalization is completed and he is returned to a duty status, the matter is too doubtful to warrant our

dered to perform temporary duty of approximately 4 days at Miami International Airport, Florida, for the purpose of Student and Instructor Navigational Training Mission, upon the completion of which he was to return to his home station. It appears that flight was performed over the Gulf of Mexico between Ellington Air Force Base, Texas, and Miami International Airport, Florida, and that he performed temporary duty at the latter airport as directed in such orders. Lieutenant Super was released from active duty October 13, 1957.

While it is not shown that the Secretary of the Air Force, in the exercise of the authority vested in him by section 505 (b) of the act of July 16, 1952, has issued a "decision" designating travel under the circumstances in Lieutenant Super's case as service outside the continental United States for purposes of additional mustering-out pay, paragraph 60507b (2) of the above quoted regulations clearly excludes, for the purposes of computing mustering-out pay, service or travel performed beyond the 3-mile limit, incident to a change of duty station between two points in the United States. The phrase "change of dúty station" would appear to include either a permanent or temporary change of place of duty. Since Lieutenant Super was ordered to temporary duty at Miami International Airport, Florida, and upon completion to return to his permanent duty station at Ellington Air Force Base, Texas, the service or travel performed by him between those points, even though beyond the 3-mile limit, may not be accepted as constituting service outside the continental limits of the United States for the purpose of computing mustering-out pay. Compare our decision of December 31, 1948, B-78822, 28 Comp. Gen. 386. Accordingly, you are not authorized to make payment of an additional $100 mustering-out pay to Lieutenant Super, and the papers submitted in his case will be retained here.

The military pay order and Flight Order No. 144, in the case of Lieutenant Arendt, are returned herewith.

[B-101126]

Veterans-Insurance-Lapsed Commercial Policies-Refund Liability-Revolving Fund Availability

The use of the balance in the Soldiers' and Sailors' Civil Relief Fund to refund some of the commercial insurance loss collections to former servicemen in accordance with the decision in United States v. Plesha, 352 U. S. 202, when the fund was initially established by appropriations and includes other collections administratively made pursuant to statute for specific purposes would be a diversion of appropriations for another purpose, and, in view of the inadequacy of the fund for any uniform system for payment of all claims, the implementation of the Plesha decision requires Congressional action.

To the Attorney General, March 5, 1958:

We have considered further, at the request contained in letter of January 22, 1958, from the Assistant Attorney General, Civil Division, our decision of June 24, 1957, 36 Comp. Gen. 825. We held in that decision that the Soldiers' and Sailors' Civil Relief Fund was unavailable for refunding to former servicemen sums collected on account of their purported indebtedness to the United States for losses sustained by it in guaranteeing payment of premiums on certain commercial life insurance policies and which losses the United States Supreme Court in United States v. Plesha, 352 U. S. 202, on January 14, 1957, decided do not constitute an indebtedness of the servicemen. In the same decision, we observed that since the total amount in the fund, approximately $445,000, was wholly inadequate to refund uniformly, as then proposed by the Veterans Administration, the total amounts, approximating $1,600,000, deemed under the Supreme Court decision improperly to have been collected and there were substantial technical defenses to certain of the refunds, such as statutes of limitations, which no administrative officer of the Government was authorized to waive, that the matter should be brought to the attention of the Congress for an appropriation to make the refunds with the suggestion that it consider authorizing such refunds upon the filing of a claim therefor within an appropriate period without regard to the technical defenses which might be raised. Such an appropriation and authority was sought by the Veterans Administration in connection with the Supplemental Appropriation Bill, 1958 (see House Hearings on H. R. 9131, 85th Congress, pages 707-712). At the suggestion of the Committee on Appropriations that legislation was necessary to authorize the appropriation and that the matter should be taken up with the legislative committees concerned (Page 31, House Report 1009 on H. R. 9131), the House Committee on Veterans Affairs, or its members, were apparently consulted. There are now pending before that Committee H. R. 9287 and H. R. 9369 which would make the balance in the Soldiers' and Sailors' Relief Fund available for making such refunds, authorize additional appropriations for such purpose and waive the technical defenses which may exist to certain of the claims.

The Assistant Attorney General, Civil Division, calls attention to the case of Emmet v. Higley, et al., Civil Action No. 5658-55 pending in the United States District Court for the District of Columbia, a mandamus proceeding to compel payment into court of the amounts withheld from veterans on account of the purported indebtedness. He states that the purpose of that action in which numerous veterans have intervened is to recover costs, interest and attorney's fees, that the complexion of the case daily becomes more serious in view of the increasing impatience of the Courts to anything that might be

considered administrative hair-splitting which prevents substantial justice being done and because fully a year has gone by without the Government's compliance with the Plesha decision of the Supreme Court. While recognizing the impossibility of paying the full amount of the refunds totaling approximately $1,600,000 out of a fund having a balance of only approximately $445,000, the Assistant Attorney General suggests claims which have been filed might be paid from that fund to the extent that there are moneys in the fund. The General Counsel of the Veterans Administration in a letter dated February 14, 1958, concurs in the Assistant Attorney General's views as to the desirability of satisfying at an early date claims like that of Plesha and suggests that we may wish to consider whether the appropriation "Refund of Moneys Erroneously Received and Covered" discussed in 17 Comp. Gen. 859 is available for making such refunds.

It is a fundamental principle of our Government that "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Article 1, section 9, clause 7, Constitution of the United States. And section 3678 of the Revised Statutes, 31 U. S. C. 628, provides—

Except as otherwise provided by law, sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others. We do not here regard the question of whether an appropriation has been made by the Congress to defray an item of expense so as to enable its payment as administrative hair-splitting preventing substantial justice being done. Where the Congress has not made an appropriation for a particular object, or there is substantial doubt that an appropriation for a particular purpose was intended to embrace objects not clearly within that purpose, the accounting officers have always resolved the question by requiring the matter to be presented to the Congress for its consideration and it seems to us that a court would not be warranted in attempting to resolve such a question by mandamus. If it is of the opinion that a judgment in a particular matter should be rendered against the United States and the matter is one within its jurisdiction, it is free to render such a judgment and if it becomes final the Congress has provided an appropriation for its payment. See, for example, 31 U. S. C. 724a. We understand that the reason Plesha was not paid, was not because of any delay on the part of the Government but because, after the Supreme Court rendered its decision, no judgment on mandate was obtained from the lower court and presented for payment.

Under article IV of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U. S. C. 540, the United States undertook to prevent the lapse, for nonpayment of premiums, of the commercial life insurance of persons in the Armed Forces. To achieve that purpose it assured