sary expenses only be allowed. Actual expenses only shall be paid for travel under orders in Alaska and outside the limits of the United States in North America.

"Unless otherwise expressly provided by law, no officer of the services mentioned in the title of this Act shall be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty away from his designated post of duty, nor any sum for such expenses actually incurred in excess of $7 per day. The heads of the executive departments concerned are authorized to prescribe per diem rates of allowance, not exceeding $6, in lieu of subsistence to officers traveling on official business and away from their designated posts of duty: Provided, That for travel by air under competent orders on duty without troops, under regulations to be prescribed respectively by the heads of the departments concerned, members (including officers, warrant officers, contract surgeons, enlisted men, aviation cadets, and members of the Nurse Corps) of the services mentioned in the title of this Act, and of the legally constituted Reserves of said services while on active duty, and of the National Guard while in Federal service, or while participating in exercises, or performing duties under sections 92, 94, 97, or 99 of the National Defense Act, shall, in lieu of mileage or other travel allowances, be allowed and paid their actual and necessary traveling expenses not to exceed $8 per day, or in lieu thereof, per diem allowances at rates not to exceed $6 per day.

"Travel by personnel of the services mentioned in the title of this Act, including the Reserve components thereof and the National Guard while on active duty in the Federal Service, on commercial aircraft, domestic or foreign, including travel between airports and centers of population or posts of duty when incidental to travel on commercial aircraft, shall be allowed at public expense when authorized or approved by competent authority, and transportation requests for such travel may be issued upon such authorizations. Such expense shall be allowed without regard to comparative costs of transportation by aircraft with other modes of transportation.

"Individuals belonging to any of the services mentioned in the title of this Act, including the National Guard and the Reserves of such services, traveling under competent orders which entitle them to transportation or transportation and subsistence as distinguished from mileage, who, under regulations prescribed by the head of the department concerned, travel by privately owned conveyance shall be entitled, in lieu of transportation by the shortest usually traveled route now authorized by law to be furnished in kind, to a money allowance at the rate of 3 cents per mile for the same distance: Provided, That this provision shall not apply to any person entitled to traveling expenses under the Subsistence Expense Act of 1926."

It has also been suggested that possibly the traveling expenses of Lt. Harrison may be properly payable pursuant to the provisions of Section 850, Revised Statutes, as an officer in active military service subpoenaed to appear in a civil action. See 4 Comp. Dec. 146, id. 752, 3 Comp. Gen. 271. In such event, of course, the expenses would be paid on an actual expense basis and would be reimbursed to the officer by the United States Marshal from the appropriation of the Department of Justice for fees and expenses of witnesses. Such method of settlement would, in effect, be on the theory that notwithstanding the fact that the individual concerned had acquired the information desired while holding a civil position with the United States, he would now be furnishing such evidence merely as any other military officer would be in giving testimony in a civil action.

It may be material to note that Lt. Harrison is on military furlough from his position in this Department pursuant to the provisions of Section 8 (b) of the Selective Training and Service Act.

There are now pending before the courts other cases of violation of statutes in which the Department investigators who obtained the information have been inducted into or have enlisted in military service. It is highly probable that, as in this instance, these investigators now in the military services will be subpoenaed by the courts to appear as witnesses for the United States, and the Department will be expected to pay the traveling expenses of such investigators. Your decision as to whether the attached voucher is properly for payment, and the method to be employed in making reimbursement thereof is therefore respectfully requested.

It is understood from your letter that Lieutenant Harrison performed the travel in question solely for the purpose of testifying onbehalf of the Government before the Federal Grand Jury of the

Northern District of Mississippi as to matters which constituted a part of his official duties while serving as an employee of the Department of Agriculture. Hence, since this case does not appear to involve the detail of an officer of the Navy for the performance of duty with a civil branch of the Government, or the matter of contemporaneous employment in a civilian and military status, the decisions, 1 Comp. Gen. 98; 22 id. 127, quoted in your submission are not controlling in the present matter. Moreover, as the duty performed was not imposed by reason of the officer's naval status, but by reason of the Government's requirement in its civil capacity, there are not for application here the provisions of section 12 of the Pay Readjustment Act of 1942, Public Law 607, approved June 16, 1942, 56 Stat. 364, referred to by you, since the said act governs the travel allowances to members of the military and naval forces when traveling on official business pertaining to military and naval matters. The authorization by the Navy Department for the performance of the travel here involved contained in letter of March 18, 1943, from the Chief of Naval Personnel, was merely by reason of the officer's naval status, and not because of naval duties to be performed thereunder. It was in the nature of an acquiescence to the call to perform a civil duty, and does not control the officer's right to reimbursement for expenses incurred in the performance of such civil duty. 3 Comp. Gen. 271.

Therefore, the duty imposed seems to fall clearly within the provisions of section 850 of the Revised Statutes, which has been amended by section 2 of the act of December 24, 1942, 56 Stat. 1088, Public Law 845, to read as follows:

When any officer or employee of the United States is summoned as a witness for the Government, his necessary expenses incident to travel by common carrier, and if travel is made by privately owned automobile, mileage at a rate not to exceed 5 cents per mile, together with a per diem allowance not to exceed $6 in lieu of subsistence under such regulations as may be prescribed by the Attorney General, shall, when sworn to, be paid by the United States marshal upon certificate of the United States attorney, assistant United States attorney, or United States commissioner, but no other mileage or compensation in addition to his salary shall in any case be allowed. Whenever any such officer or employee of the United States performs travel in order to appear as a witness on behalf of the United States in any case involving the activity in connection with which such person is employed, his travel expenses and per diem allowance in lieu of subsistence in connection therewith shall be payable from the appropriation otherwise available for the travel expenses of such officer or employee, such payment to be made by the disbursing officer charged with the disbursement of funds under that appropriation after proper certification by a certifying officer of the department or agency concerned.

Prior to its recent amendment, section 850, Revised Statutes, referred to "any clerk or officer of the United States," but, even that more restrictive language has been regarded as including members of the military forces who are called upon to testify for the United States in a civil (as distinguished from a military) proceeding. See United States v. National Surety Company, 168 F. 314; 3 Comp. Gen. 271; 4 id. 1070; 15 Op. Atty. Gen. 486; 16 id. 113. Manifestly, said section 850

under its slightly broader language as now amended is applicable to persons in the military service.

It will be observed from the above-quoted statute that where the officer or employee appears as a witness in a case involving the activity in connection with which he is employed reimbursement of his travel expenses shall be made from the appropriation available therefor under the control of that activity. By the plain terms of the said provision of law such mode of reimbursement is required where the witness is employed by the activity involved at the time he testifies on behalf of the Government; otherwise that is to say, where the witness is not an employee of that activity, but an employee of some other branch of the Government-reimbursement of said expenses shall be made from the appropriations of the Department of Justice.

Considering then the application of the said statute to the instant case, even though Lieutenant Harrison officially ascertained or investigated the facts as to which he testified while serving in the capacity of a civilian employee of the Department of Agriculture, the fact remains that he was not employed under your Department at the time he so testified and hence, it must be concluded that reimbursement of his traveling expenses may not be made from appropriations under the Department of Agriculture. Since, as heretofore indicated, Lieutenant Harrison may be regarded as an "officer or employee of the United States" within the meaning of that term appearing in section 850, Revised Statutes, as amended, supra, the traveling expenses incurred by him and a per diem allowance would appear to be proper for payment "by the United States marshal upon certificate of the United States attorney, assistant United States attorney, or United States commissioner" as provided by said statute.

Accordingly, you are advised that the voucher transmitted with your letter may not be certified for payment. The said voucher and accompanying papers are returned herewith.

(B-33771)

SUBSISTENCE-MESS BILLS OF MILITARY AND NAVAL OFFICERS TRAVELING ON GOVERNMENT-OWNED VESSELS-DELAY IN DEPARTURE OR DEBARKATION

Under the act of May 21, 1926, and section 12 of the Pay Readjustment Act of 1942, authorizing reimbursement of actual expenses incurred by military or naval personnel while performing travel on Government-owned vessels for which no transportation fare is charged, a military or naval officer, traveling under orders, who, for purposes of the Government, is required to embark on a Government-owned vessel prior to the hour or date of actual departure of the vessel, or who, for the same reasons, is detained on the vessel after arrival at the point of debarkation, may be considered as "performing travel" during such periods of delay so as to authorize reimbursement for mess bills incurred by the officer during the periods of delay.

Assistant Comptroller General Yates to the Secretary of the Navy, June 5, 1943: There has been considered your letter of April 9, 1943, as follows: There is enclosed herewith a letter from the Assistant for Disbursing, U. S. S. Pocomoke, dated January 24, 1943, with accompanying correspondence, relative to the question of reimbursement of officers for mess bills incurred while performing travel on Government-owned vessels.

In the letter from the Assistant for Disbursing, U. S. S. Pocomoke, the suggestion is made that, for reasons therein stated, Article 2501-2 (b) (1), U. S. Navy Travel Instructions, be amended so as to authorize reimbursement for mess bills incurred by officers in a travel status aboard a Government-owned vessel from the date and hour of embarkation to the date and hour of debarkation. Under existing instructions reimbursement for mess bills incurred by officers in a travel status aboard a Government-owned vessel is authorized only from the date and hour of sailing to the date and hour of debarkation.

Particular attention is invited to the enclosed forwarding endorsement of the Chief of the Bureau of Supplies and Accounts, dated March 11, 1943, wherein reference is made to the Comptroller General's decision of November 2, 1942 (22 Comp. Gen. 427). That decision involved an interpretation of the Act of June 13, 1940 (54 Stat. 383; 34 U. S. C. 506), with regard to the effective date from which compensation at actual employment rates was authorized to be paid in the case of Navy Department employees appointed for overseas duty, the cited Act authorizing payments, in the discretion of the Secretary of the Navy, from the "date of sailing." It was held in that decision (syllabus):

"Under the act of June 13, 1940, authorizing payment of compensation at actualemployment rates to civilian employees of the Navy Department, appointed for duty beyond the continental limits of the United States, 'from the date of their sailing' until they report for duty overseas, an employee may be allowed compensation from the date of embarkation on a vessel where, after he is required for purposes of the Government to embark, there is a delay in sailing because of present war conditions necessitating secrecy in ship movements."

In connection with the foregoing, your decision is requested on the question presented in the enclosed endorsement of the Chief of the Bureau of Supplies and Accounts, as follows:

May the rule announced in the Comptroller General's decision of November 2, 1942 (22 Comp. Gen. 427), be applied in the settlement of mess bills incurred by Navy personnel ordered to travel via Government-owned vessels?

It will be observed from the enclosed communication from the Chief of the Bureau of Supplies and Accounts that under date of June 3, 1941, it was directed that orders to officers be worded so as to enable them to report to a new ship or station and still not divulge the location of ships or task forces, and further, that such administrative action constituted the initial adoption of the present necessary practice of cloaking the movement of naval vessels in secrecy. For these reasons the Navy Department further requests that you authorize application of the rule prescribed in 22 Comp. Gen. 427 in the settlement of disbursing officers' accounts for periods from June 3, 1941, to date in order to validate payments heretofore made on the same basis as suggested above, with the express understanding that such action will not serve as a basis for an additional claim by officers who have been reimbursed for mess bills, or whose mess bills have been paid direct to the mess, on the basis heretofore allowed.

The next to last paragraph of section 12 of the Pay Readjustment Act of June 16, 1942, 56 Stat. 364, Public Law 607, provides:

Personnel of any of the services mentioned in the title of this Act performing travel on Government-owned vessels for which no transportation fare is charged shall be entitled only to reimbursement of actual and necessary expenses incurred. Prior to the said Pay Readjustment Act of 1942, the act of May 21, 1926, 44 Stat. 595, contained the following similar provision with respect to officers of the Navy and Naval Reserve while traveling under orders:

and hereafter officers performing travel by Government-owned vessels for which no transportation fare is charged, shall only be entitled to reimbursement of actual and necessary expenses incurred

A similar restriction respecting travel of Marine Corps officers was included in the same act, 44 Stat. 611.

Article 2501-2 (b) (1), Navy Travel Instructions, as amended October 1, 1942, with respect to the expenses that are reimbursable to officers traveling via Government-owned vessels reads:

On Government vessels for which no fare is charged: Only actual and necessary expenses incurred which are reimbursable (Act of May 21, 1926 (44 Stat. 611) Appendix B, and Comp. Gen. A-14225, June 22, 1926). Officers in a travel status aboard naval vessels who are entitled to subsistence will not be required to pay mess bills subject to claim for reimbursement. Disbursing officer aboard ship will settle such mess bills. See Art. 2136-77, S. and A. Manual)

Such amended instruction omits the statement theretofore included therein that

* This authorizes mess bills only, from date and hour of sailing to date and hour of debarkation; and on dates of sailing and debarkation, for each meal at one-third the daily rate charged by the mess of the vessel.

Where it is necessary for the purposes of the Government to require an officer traveling under orders to embark on a Government-owned vessel prior to the hour or date of actual departure of the vessel, or where, for the same reasons, an officer is detained on the vessel after arrival at the point of debarkation, such periods of delay may be considered as time during which the officers were "performing travel” within the meaning of the quoted provisions of the said acts of May 21, 1926, and June 16, 1942, and within the principles applied in the decision of November 2, 1942, 22 Comp. Gen. 427, referred to in your letter. Accordingly, you are advised that this office will not be required to object to payments, otherwise correct, heretofore or hereafter made on that basis.

(B-34344)

SUBSISTENCE-PER DIEMS-DELAYS DUE TO LACK OF TRAIN ACCOMMODATIONS AND LATE TRAIN ARRIVALS

Inasmuch as it is a matter of common knowledge that during the present emergency it often is impossible to secure train accommodations at particular times and that trains often arrive late at destinations, during the existence of the present emergency, official travelers' statements as to the facts of delays may, in the absence of any information to the contrary, be accepted in support of payment of additional per diem in lieu of subsistence incident to the delays, without corroboration of such facts by a railroad official. Comptroller General Warren to the Secretary of the Navy, June 7, 1943: I have your letter of May 6, 1943, JAG: S: MFL: 1ws, 40319, as follows:

There is enclosed a copy of letter of April 24, 1943, from the Bureau of Supplies and Accounts, submitting original reclaim, likewise attached, of Mr. C. G. Smith, for $19.50 covering per diem suspended by the Bureau in the settlement of a travel claim in favor of Mr. Smith, paid under voucher number 63767, March 26, 1943, in the accounts of Commander W. J. McNeil, (SC), U. S. N. R.