such dual payments for rental allowance and sea duty pay would appear to be authorized for such periods of temporary sea duty not exceeding four months at any one time where the shore duty is determined by the Navy Department to be paramount to the duty which the officer is required to render at sea, as held in the above cited decision of the Acting Comptroller General of February 2, 1937. In consideration of all the foregoing, your reconsideration is requested of the Assistant Comptroller General's decision of September 30, 1942, B-28788, to the extent that it holds 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.

Section 2 of the act of June 16, 1942, Public Law 607, 56 Stat. 359, 360, was quoted in the decision of September 30, 1942, 22 Comp. Gen. 289, to which reference is made by you. Section 6 of the same act, at pages 361, 362, insofar as is here material, also was quoted therein, except the authorization for promulgating regulations which reads:

Regulations in execution of the provisions of this section shall be made by the President and shall, whenever practicable, in his judgment, be uniform for all of the services concerned, including adjunct forces thereof.

You invite attention to the fact that the paragraph appearing in the prior Executive regulations, under "Payments", and reading, “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", has been omitted from the regulations promulgated by Executive Order No. 9255. This provision of the regulations contained in the prior Executive Order No. 4063, dated August 13, 1924, is in substance the provision of the statute that "No rental allowance shall accrue to an officer having no dependents while he is on field or sea duty", and its omission from the regulations in no way affects this statutory restriction.

The Executive regulations appear to reflect the effect of the judicial construction of section 1571, Revised Statutes, defining sea service. Whether particular duty is sea duty is a question of fact (United States v. Engard, 196 U. S. 511; McGowan v. United States, 36 C. Cls. 63); and while this office ordinarily would not be required to question a reasonably supported determination by the Department pursuant to the Executive regulations that by reason of an officer's paramount duties ashore he is not on sea duty and, therefore, is not precluded on that account from receiving rental allowance, such a determination would seem sensibly to preclude a concurrent determination that he is on sea duty and, therefore, entitled to sea duty pay. While two different sections of the statute are involved and the purposes of the allowances may not be mutually exclusive, a legislative intent that both may be paid at the same time is not sufficiently shown to justify the anomaly of regarding an officer as on sea duty under section 2 of the statute but as not on sea duty under section 6 of the same statute; and, in the absence of a more clear expression of the will of the Congress on the matter, the conclusion appears required that both allowances are not authorized to be paid concurrently on the basis of such

inconsistent determinations. However, in view of the Executive regulations and the established practice pursuant to the like provisions of prior Executive regulations in such respect, the payment of rental allowance would appear to be warranted in such cases to the exclusion of the sea duty pay. That is, where there is a reasonable determination pursuant to the Executive regulations that an officer's shore duty is paramount and, therefore, that he is not on sea duty, he may continue in receipt of rental allowance, as heretofore, but may not for the same period be credited with extra pay as on sea duty.

To that extent, the conclusions stated in the last paragraph of the decision of September 30, 1942, are modified.

(B-30083)

OFFICERS AND EMPLOYEES-PAYMENT FOR CIVILIAN LEAVE DURING MILITARY SERVICE-ADMINISTRATIVE PROMOTIONS EFFECTIVE

AFTER ENTRANCE ON MILITARY DUTY

A civilian employee on active military duty who was properly given an administrative promotion effective on a date within the period for which he was being paid, concurrently with military pay, civilian compensation for accumulated and current accrued annual leave granted pursuant to the act of August 1, 1941, as amended, is entitled to be paid at the increased salary rate during such period of annual leave from the effective date of the promotion.

Acting Comptroller General Elliott to Col. Ray H. Larkins, U. S. Army, November 14, 1942:

By first indorsement dated October 29, 1942, the Chief of Finance, War Department, forwarded to this office for consideration your letter of October 15, 1942, reading as follows:

1. The enclosed voucher in the amount of $12.50 covering difference in pay between $3200 and $3500 per annum for the period August 16, 1942 to August 31, 1942, has been submitted to the undersigned disbursing officer for payment. 2. The employee in question was recommended for promotion on May 30, 1942. The recommendation was approved with effective date August 16, 1942. The employee was a reserve officer, U. S. Army, and was ordered to and entered on active duty July 20, 1942. He elected to receive pay for accumulated leave under the provisions of Public Law 202, 77th Congress, for the period July 20, 1942 to October 27, 1942.

3. Doubt is entertained as to whether the employee is entitled to the increase in pay resulting from a change of status initiated prior to entrance on Military duty, but which was effected subsequent to entrance on duty, although falling within the period for which payment for accumulated leave was being received. 4. An advance decision is requested.

The period of annual leave for which compensation is payable concurrently with active military pay under the act of August 1, 1941, as amended by the act of April 7, 1942, 56 Stat. 200, Public Law 517, was properly computed over the period beginning with July 20, 1942, which is understood from your letter to have been the day following the last day of active civilian duty. See 21 Comp. Gen. 258. Compensation for annual leave in the civilian position during

the period an employee is in the active military service is for computation upon the same basis as any other period of annual leave, and that being so, the employee is entitled to the benefit of any increase in civilian compensation properly granted him effective during such period of leave either by operation of law or by administrative action-i. e., upon the same basis as if the employee had remained upon active duty in his civilian position. 21 Comp. Gen. 1007. Compare 21 Comp. Gen. 310 involving a reduction, and the decision of September 15, 1942, B-28464, 22 Comp. Gen. 229, involving the case of a postal employee who was administratively promoted on the civilian roll after the period of his leave had expired.

Accordingly, if the voucher, which is returned herewith, is otherwise correct, payment thereon is authorized.

(A-42271)

TRANSPORTATION-RATES-DIVISIONS-LAND-GRANT

DEDUCTIONS

In the absence of extraordinary circumstances making action to the contrary advisable, where overpayments, due to under-deductions for land grant, found in the post-audit of disbursing officers' transportation accounts paid on and after June 1, 1942, arise solely from applying-in the division of "docket 17000, part 2," rates-division sheets W. T. L. 657-A (C. F. A. L. 285-A), or 500-A (C. F. A. L. 365-A), instead of applying divisions heretofore observed by this office, collection of such overpayments from the carriers will be held in abeyance until the pending question of division of such rates is disposed of by the Interstate Commerce Commission or by agreement between the carriers. However, the heretofore observed divisions will be applied in the settlement of claims directly by this office, and in the audit of payments made prior to June 1, 1942.

Assistant Comptroller General Elliott to J. A. Farmar and E. Morris, November 17, 1942:

Reference is made to your joint letter dated September 12, 1942, WTL File I-369-14, CFA File EC-2779, cc: 180-51-1, forwarded to this office by Mr. A. F. Cleveland, Vice President of the Association of American Railroads, on September 19, 1942, under his file 1-113-4. The joint letter reads as follows:

The undersigned, J. A. Farmar acting for account of Western Railroads, and E. Morris acting for account of the Central Freight Association railroads, respectfully request your favorable consideration and approval of the following basis for permanent divisions to apply on U. S. Government freight subject to land grant deductions.

All carriers for whom the undersigned are acting will accept as permanent divisions the following basis for application on U. S. Government freight subject to land grant deductions, and no readjustment of settlements made on this basis will be requested regardless of any pending proceedings before the Interstate Commerce Commission:

In dividing joint thru rates between Official and Western territories, as covered by the division sheets named below, the divisions east and west of the divisional break points, as named in said sheets and supplements thereto, will be applied in arriving at the net land grant deductions east and west of the divisional gateways during the period such division sheets remain in effect: WTL D/S 500-A (CFAL D/S 365-A) on carload traffic.

CFAL D/S 285-A (WTL D/S 657-A) on less than carload traffic.
WTL D/S 855 (CFAL D/S 381).

NOTES: The above division sheets to be amended to provide that the divisions named therein will apply for account of all Western and Central Freight Association railroads, without exception, on U. S. Government freight subject to land grant deductions.

In support of this request, we submit the following justification:

Since December 3, 1931, the U. S. Government has arrived at land grant deductions in connection with joint thru rates on traffic herein involved between Official and Western territories by setting up as divisions, of the joint thru rates, for the Western railroads their full local rates west of the Mississippi River or other interterritorial gateways. This basis is used on both eastbound and westbound traffic.

When the revised class rates between Western territory, on the one hand, and Official territory, on the other, became effective on December 3, 1931, no agreement could be reached between the Western railroads and the Central Freight Association railroads with respect to divisions thereof, and for a short period of time the Western railroads took as their divisions of the joint thru rates their full local rates on westbound traffic and the Central Freight Association railroads took as their divisions of the joint thru rates their full local rates on eastbound traffic. Effective with waybills taken into April 1935 accounts, a division sheet designated as CFAL D/S 285-A (WTL D/S 657-A) was issued providing specific percentage proportions east and west of the interterritorial divisional break points. It is true that this division sheet was of a temporary nature and was so indicated on the title page thereof.

Effective with October, 1939 accounts, permanent divisions were published in WTL D/S 500 (CFAL D/S 365), now WTL D/S 500-A (CFAL D/S 365–A), to apply on carload traffic. At the same time an agreement was reached to continue the application of CFAL D/S 285-A (WTL D/S 657-A) in permanent settlement on less than carload traffic. Since that time, the divisions named in these two division sheets have been applied without question by all Central Freight Association railroads and all Western railroads, except that certain Western railroads have not applied WTL D/S 500-A (CFAL D/S 365-A) on all carload traffic.

The latter railroads, however, do apply WTL D/S 500-A (CFAL D/S 365-A) on a large number of commodities as named in WTL D/S 855 (CFAL D/S 381), and these railroads have also now signified their willingness to apply as a permanent basis of divisions the general basis of divisions as named in WTL D/S 500-A (CFAL D/S 365-A) on all carload Government freight subject to land grant deductions, and will continue to apply CFAL D/S 285-A (WTL D/S 657-A) on all less carload traffic. It is also agreed that no readjustments of settlements on this basis will be made between the carriers for whom the undersigned are acting and the U. S. Government regardless of the outcome of any of the pending cases before the Interstate Commerce Commission.

The method employed by the U. S. Government at the present time of dividing joint rates between Official and Western territories, by allowing the Western railroads full local rates west of the Mississippi River or interchange points on both eastbound and westbound traffic and basing land grant deductions on those divisions, is obviously unfair to all railroads involved, in that it inflates the land grant deductions far beyond those reflected by the actual earnings of the railroads west of the Mississippi River or other interchange points.

Now that all Western and Central Freight Association railroads have agreed to the application of WTL D/S 500-A (CFAL D/S 365-A), CFAL D/8 285-A (WTL D/S 657-A) and WTL D/S 855 (CFAL D/S 381), on U. S. Government freight subject to land grant decisions, the claim cannot be made that the divisions named in these sheets are not permanent. If the U. S. Government will agree to apply the above named division sheets in arriving at the net land grant deductions, appropriate amendment of these sheets will be made to provide for the permanent application thereof, for account of all Western and Central Freight Association railroads, effective on a date mutually agreed upon between the U. S. Government and the undersigned.

We respectfully submit that this offer on the part of the Western and Central Freight Association railroads will meet any objections which may be held by your office in regard to the application of the divisions named above, because of their allegedly temporary character, and it is sincerely hoped that this request will meet with your approval and that instructions will be given to apply this basis on U. S. Government freight subject to land grant deductions.

With respect to commercial divisions for rates published pursuant to docket No. 17000, part 2, of the Interstate Commerce Commission, being the so-called "revised class rates" which became effective on December 3, 1931, the inability of the carriers affected to agree upon a basis of divisions resulted in the filing by them with the Interstate Commerce Commission on December 4, 1931, of a petition asking the Commission to prescribe equitable divisions for these rates. Apparently that petition is still pending. It early appeared, however, in connection with claims for the transportation of Government property, that the carriers involved had adopted a practice under which the eastern lines, or the western lines, as the case might be, retained for themselves, out of charges collected by them from said rates, a proportion computed on the basis of local rates from the interchange point between the eastern and western carriers to destination, remitting only the remainder to their connections. See in this connection Western Trunk Line division sheet No. 657 and Central Freight Association division sheet No. 285. Under this practice the amount of the earnings of the respective groups of carriers was dependent upon, and varied with, the circumstances of whether the charges were collected by the one or the other group. In that situation it became necessary for this office, in order to determine the amount of earned deductions for land grant, to apply the rule of long standing that in instances of conflicting divisions that basis will be applied which will afford the Government the greatest deduction. Accordingly, in dividing these rates for purposes of determining land-grant deductions, Western Trunk Line division sheet No. 657 or Central Freight Association division sheet No. 285 was used by this office as the application of this rule might require. See in this connection 14 Comp. Gen. 775

The practice of the carriers in this respect apparently was continued from December, 1981, to April, 1935, when there was issued W. T. L. division sheet No. 657-A (CFA D/S 285A). Originally, W. T. L. division sheet 657-A, effective in April, 1935, published "Temporary Percentages" for application in connection with carload and less than carload rates. These temporary percentages remained in effect until October, 1939, when supplement 18 to W. T. L. No. 657-A became effective and amended said division sheet by eliminating the word "Temporary" formerly appearing in connection with the word "Percentages". Further amendments were made by the addition of item No. 2 providing in effect that the division sheet was applicable only between stations located on the carriers named on pages 2, 3, and 4 of supplement No. 18 and the application of the division sheet was qualified so that effective with supplement No. 18 it could be used only in connection with less than carload traffic.