the statutes under which such rank is authorized for an officer on the active list. Officers on the retired list ordered to active duty and not serving in those situations are entitled to their full pay and allowances. If entitled to retired pay of a rear admiral of the upper half they are entitled, when on active duty and not serving in one of the positions for which the rank of vice admiral or admiral is authorized for an officer on the active list, to the full pay and allowances of a rear admiral in the upper half exclusive of the personal money allowance provided in section 7. These are the full pay and allowances of the grade or rank in which they serve on such active duty which is contemplated by section 15.

(B-28788)

RENTAL ALLOWANCE-NAVY OFFICERS RIGHTS AS AFFECTED BY TEMPORARY SEA DUTY

A Navy officer, without dependents, whose paramount duty is shore duty may not be paid rental allowance under section 6 of the Pay Readjustment Act of 1942 while on temporary additional duty at sea which has been defined as "sea duty" by the Secretary of the Navy for additional pay purposes under section 2 of said act, nor may he elect to receive rental allowance in lieu of the additional pay prescribed for sea duty. (Modified by 22 Comp. Gen. 467.)

Assistant Comptroller General Elliott to the Secretary of the Navy, September 30, 1942:

There has been received your letter of September 9, 1942, as follows:

The Navy Department has under consideration the question whether an officer, without dependents, whose paramount duty is shore duty and who is performing temporary additional duty at sea, is entitled to draw rental allowance for such period of temporary duty while at the same time drawing sea duty pay pursuant to the provisions of Alnav 131-42, issued under the authority of Section 2 of the Pay Readjustment Act of 1942 (Public Law 607-77th Congress), approved June 16, 1942. In the event this question is determined in the negative, a further question has arisen as to whether such an officer may continue to draw his rental allowance while on temporary duty at sea if he does not draw the additional pay for sea duty.

The payment of both rental allowance and sea duty compensation to officers, with dependents, is unquestionably proper, provided, of course that the dependents are not furnished quarters in kind by the Government. It is therefore considered that like payments to officers, without dependents, who are performing temporary sea duty, cannot be regarded as improper in the absence of a specific statutory prohibition, unless clearly inconsistent. The following examination of the respective purposes for which rental allowance and sea duty compensation are paid appears to indicate that such dual payments are proper in the case here under consideration.

Section 2 of the Pay Readjustment Act of 1942 provides for a percentum increase in pay of officers for any period of service while on sea duty as such duty may be defined by the head of the Department concerned and that such 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. Under the provisions of Alnav 131-42, supra, sea duty pay may be drawn for service performed on a vessel pursuant to orders issued by competent authority including periods of temporary duty in such vessel even though primary duty is shore duty.

No pay for sea duty has been provided during time of peace for more than twenty years. It therefore seems apparent that the present extra pay for sea duty is intended as compensation for extra hazardous conditions that occur at sea in time of war when Navy personnel are exposed to enemy action.

With respect to rental allowances, Section 6 of the Pay Readjustment Act of 1942 provides, in part, as follows:

"No rental allowance shall accrue to an officer having no dependents while he is on field or sea duty * * *""

The above quoted provision of law is a reenactment of the Act of June 10, 1922, as amended (37 U. S. Code 10), under which Executive Order 4063 of August 13, 1924, was issued and in which sea duty was defined as follows:

"The term 'sea duty' shall be construed to mean service at sea by an officer in a vessel employed by authority of law under orders requiring him to report for duty on board said vessel or assigning him to duty in command of vessels or as a member of the staff of such commander: Provided, That the officer concerned is not during the same period required to render service on shore of a character determined by the Department concerned to be paramount to the duty which he is required to render at sea.'

A proposed Executive Order which contemplates a restatement of the foregoing provision under the present law is now pending.

The history of the present statute thus establishes that it was contemplated that rental allowance should be paid to officers, without dependents, while temporarily employed on sea duty in such cases where the paramount duty of such officers is determined to be on shore. This practice was apparently intended to avoid the hardships that would occur were an officer deprived of his rental allowance when temporarily employed on sea duty and consequently required for economic reasons to surrender his quarters on shore despite his expectation that he would shortly return to shore duty.

Since rental allowance is paid in order to provide quarters and may even be paid when an officer is temporarily at sea, while, on the other hand, sea duty compensation is paid in time of war by reason of extra hazardous conditions, the payment of rental allowance and sea duty pay to an officer, without dependents, while he is temporarily employed on sea duty is neither inconsistent nor a double payment for the same purpose and, therefore, appears legally proper.

Your decision is requested as to whether an officer, without dependents, whose paramount duty is shore duty and who is performing temporary additional duty at sea, is entitled to payment of rental allowance for such period of temporary duty while at the same time in receipt of sea duty pay pursuant to the provisions of Alnav 131-42. In the event this question is decided in the negative, your further decision is requested as to whether such an officer, without dependents, may continue to be entitled to payment of rental allowance while on temporary duty at sea if he does not draw the additional pay for sea duty.

Section 2 of the act of June 16, 1942, Public Law No. 607, 56 Stat. 359, 360, provides that:

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 percentum 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.

Alnav. No. 131-42, promulgated pursuant to this statute defines sea duty as follows:

(1) SERVICE PERFORMED IN A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY INCLUDING PERIODS OF TEMPORARY ADDITIONAL DUTY IN SUCH VESSEL EVEN THOUGH PRIMARY DUTY IS SHORE DUTY * * *

(4) DUTY HEREIN DETERMINED SEA DUTY SHALL BE REGARDED AS SEA DUTY FROM SEVEN DECEMBER NINETEEN FORTY ONE.

Section 6 of the Pay Readjustment Act of 1942, 56 Stat. 361, 362, provides that:

No rental allowance shall accrue to an officer having no dependents while he is on field or sea duty, nor shall any rental allowance accrue to an officer with or without dependents who is assigned quarters at his permanent station unless a competent superior authority of the service concerned certifies that such quarters are not adequate for the occupancy of the officer and his dependents, if any

*

You quote paragraph (d) of section 1 of Executive Order No. 4063, August 13, 1924, entitled "Definitions." You do not quote a paragraph appearing in section 3 entitled "Payments", as follows: "(b)— An officer who has no dependents shall not be paid a rental allowance for any period during which he is on field or sea duty."

Obviously this must be considered in connection with the definition of sea duty contained in the regulations as quoted by you.

Section 2 of the Pay Readjustment Act of 1942, authorized the payment of additional pay for sea duty as such duty may be defined by the head of the department concerned, and your question involves the situation of an officer based at a shore station and assigned to temporary additional duty at sea and whose commanding officer apparently has determined that his paramount duty is shore duty. Under the plain and positive terms of section 6 of the Pay Readjustment Act of 1942, an officer without dependents is not while on sea duty entitled to rental allowance. While on sea duty he is under section 2 of the same statute entitled to the additional pay therein prescribed. Accordingly, as to your first question, you are advised that an officer without dependents whose paramount duty is determined to be shore duty, is not entitled to rental allowance while assigned to and performing temporary additional duty at sea which has been defined by the Secretary of the Navy as sea duty, and as to your second question, you are advised that no election is given under the law to receive rental allowance in lieu of additional pay for sea duty.

(B-28964)

OFFICERS AND EMPLOYEES-EFFECTIVE DATE OF SEPARATION

FROM SERVICE

Where an employee was involuntarily separated from service by the administrative office under the erroneous assumption that the field office had recommended such separation, but the employee did not in fact receive notice of the administrative action, and continued to work, for some time after the effective date stated in the separation instrument, he is entitled to compensation for services actually rendered-at least to the date he received official notice of such administrative action.

As a general rule when an authorized separation of an employee, by resignation or otherwise, becomes an accomplished fact, it cannot thereafter be rescinded by administrative action even though the separating officer acted on misinformation or under an erroneous assumption, but the separation does not become effective unless and until the employee receives proper notice thereof. Comptroller General Warren to the Secretary of War, September 30, 1942: I have your letter of September 11, 1942, as follows:

Your decision is respectfully requested regarding the disposition of situations arising in this office as a result of erroneous issuance of personnel action instru540712m 43-21

error.

ments. This office is fully aware of the general rules which govern in those cases involving error in establishing the effective date of voluntary separation, holding that a valid separation instrument may not be rescinded after the effective date of separation has passed. Such rules are recognized as necessary and desirable as they govern voluntary submittal of a resignation and acceptance thereof by a qualified authority. But, it is felt, serious injustice may result from application of this principle when involuntary separation is effected by a personnel office in The following case is submitted for your consideration and decision as to the Department's authority to remedy the error by cancelling the action. A field employee had not been performing satisfactory work during the trial period and his supervisory officer directed an inquiry to bureau headquarters in Washington as to the Department's internal procedures for effecting separation in such cases. This inquiry was inadvertently and erroneously interpreted by the bureau chief as a recommendation for the employee's discharge and an official request was made to this office that the separation be effected without prejudice. A discharge instrument was therefore prepared, to be effective on the date of the initial inquiry from the field station and copies were distributed to the employee and the station involved.

As a result of this action it was discovered that no action had been taken to suspend the employee from duty, that the employing station had not recommended discharge and that, under close supervision and instruction, the employee's performance had improved to the extent that the employing station did not wish to terminate his services. Since the discharge instrument was issued bearing an effective date of April 4, 1942 (date of original communication) and the employee was not removed from service at that time, there is no authority for paying him for services rendered during the subsequent period of two months unless this office can rescind the original instrument.

The pertinent factors in this case may be summarized as follows: (1) no official recommendation was made by the employing office to separate the employee; (2) the local Bureau office requested such action in error; (3) no action was taken to suspend the employee prior to belated receipt of the discharge notice as a result of which the employee was in active duty status for two months after the discharge date; and, (4) the employing office does not now wish to effect the separation.

It is felt in this office that the present difficulty could be resolved by cancelling the discharge on the ground that it was void ab initio, that no official recommendation had ever been made for the action taken and that it was never effective in fact since the employee was not removed from duty on the effective date of the discharge. Your decision on this interpretation is respectfully solicited.

The general question involved in this matter, however, is more difficult to determine. May the employing Department revoke or amend an action which was palpably effected in error and both parties continued to act in good faith? This general problem, although not frequent, recurs often enough to warrant the present inquiry. It is the considered opinion of this office that some remedy should be available to correct administrative error such as that indicated above, especially when there is objective evidence of continued good faith on the part of the employee, especially under present circumstances when an employee may not be officially advised of an action until after its effective date.

It has been stated as a general rule that "when an authorized separation, by resignation or otherwise, becomes an accomplished fact it cannot thereafter be rescinded or set aside by administrative action." (Quoting from the decision of November 3, 1941, 21 Comp. Gen. 403, 406-Italics supplied.) Compare 22 Comp. Gen. 47, wherein an exception to the general rule was stated to effectuate the purposes of a particular statute (Act of April 7, 1942, 56 Stat. 200). However, the separation of an employee does not become effective unless and until the employee receives proper notice thereof. 26 Comp. Dec. 804; 17 Comp. Gen. 488; 21 id. 517. Compare 20 Comp. Gen. 321. Accordingly, if the field employee whose case is presented in your letter, supra, did not in fact receive notice of the administrative action purporting to separate him from the service and continued to work,

he is entitled to be paid the compensation earned for services actually rendered-at least to the date he received official notice of such administrative action.

Referring to the general question in the concluding paragraph of your letter, the above-stated general rule that a separation once effective may not be rescinded by administrative action, is applicable when the separation is a legal one; and in this connection, it may be stated that if the separating action is taken by the officer having authority to take it, the fact that he acted on misinformation or under an erroneous assumption does not affect the legality of the separation. Such an action may be rescinded at any time before it is consummated by the giving of official notice thereof to the employee, but not thereafter.

(B-28135)

TRAVELING EXPENSES-ARMY NURSE CORPS

The amounts which may be paid to members of the Army Nurse Corps in a travel status, other than air travel status, for actual expenses of subsistence or per diem in lieu thereof may not exceed the limitation of $5 per day for actual expenses specified in the act of April 6, 1914, or the limitation of $4 per diem in lieu of such actual expenses specified in the act of August 1, 1914.

Assistant Comptroller General Elliott to the Secretary of War, October 1, 1942: There has been received your letter of August 13, 1942, as follows:

Section 6 of the Act of July 9, 1918 (40 Stat. 879), provides:

* * *

"That members of said Nurse Corps shall receive transportation and necessary expenses when traveling under orders, as may be prescribed in regulations by the Secretary of War;

* *

The statute cited above provides in general terms for the payment of necessary expenses, but does not expressly fix any specific maximum allowance for subsistence. Based on this fact, in decision, A-31829, of May 28, 1930, it was held that, as the Act of April 6, 1914 (38 Stat. 318), was general in its scope and covered all officers and employees whose maximum subsistence allowance was not otherwise expressly provided for by law, reimbursement fcr actual expenses to members of the Army Nurse Corps might not properly be paid in excess of $5.00 per day, the maximum rate prescribed in the statute. It was further held, in decision dated October 7, 1933, 13 Comp. Gen. 94, that payment to nurses of per diem in lieu of actual subsistence was limited to $4.00, under the provisions of the Act of August 1, 1914 (38 Stat. 680).

The Acts of April 6 and August 1, 1914, supra, have been superseded as to other classes of personnel by statutes providing for higher rates and civilian employees are entitled, under the Act approved January 30, 1942 (Public Law 424, 77th Congress), to a per diem allowance at a rate not to exceed $6.00 within the limits of the continental United States, and not to exceed an average of $7.00 beyond the limits of the continental United States.

Officers of the Army are authorized, under section 12 Act of June 16, 1942 (Public Law 607, 77th Congress), to receive reimbursement for actual expenses not exceeding $7.00 per day, or a per diem allowance not exceeding $6.00, and a separate proviso prescribes rates not in excess of $8.00 and $6.00, respectively, while traveling by air. Both these provisions are contained in the same subparagraph of the Act and, in the proviso, covering travel by air, members of the Nurse Corps are specifically included.

It is believed to be evident that it was not the intent of the Congress that members of the Army Nurse Corps should continue to receive the lower rates