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Civil Service and Classification laws; fees for professional or expert services at rates, not in excess of $25 per diem, to be determined by the Secretary of State; stenographic reporting and other services by contract if necessary, purchase of supplies and equipment, books of reference and periodicals, without regard to Section 3709 of the Revised Statutes; traveling expenses, including travel and per diem of consultants not receiving compensation from the Government; printing and binding, without regard to Section 11 of the Act of March 1, 1919 (44 U. S. C. 111); and including also reimbursement of other appropriations from which payments may have been made for any of the purposes herein specified.

The subject matter of the license would appear to come reasonably within the objects for which the allotment was made, so that there is for consideration mainly the question whether the proposed payment would be in contravention of section 3648, Revised Statutes, which provides:

No advance of public money shall be made in any case whatever. And in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment.

From the enclosures transmitted with your letter, it appears that the patent was issued April 8, 1941, the normal life of a patent covering a period of 17 years. 35 U. S. C. 40. However, the purchase of a license for the life of the patent for a lump sum would vest in the United States a complete right which would not be dependent upon anything further to be done or services to be furnished by the owner of the patent. In a similar situation in 1 Comp. Gen. 455, it was stated:

The service contracted for was the registry of an abbreviated cable address. When the act of registration was completed the whole service was performed and there is nothing to be done in the matter preliminary to payment. Payment of the voucher would not be a violation of section 3648, Revised Statutes, and if otherwise correct its payment is authorized.

See, also, 4 Comp. Gen. 465, 6 id. 677.

Accordingly, answering your question specifically, I have to advise that, since the proposed payment for the use of the patent would not constitute an advance payment in contravention of section 3648, Revised Statutes, there appears no legal objection to charging the appropriation "19-112/30006.007, Emergency Fund of the President, National Defense (Allotment to State), 1942 and 1943" with the cost of the desired license.

(B-32028)

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MILEAGE CADETS ENTERING MILITARY ACADEMY

Under the statutory authority for payment of mileage at 5 cents per mile to cadets entering the United States Military Academy for the travel from their homes to the Academy for examination and appointment, a cadet is entitled to payment of mileage for travel actually performed from his home to West Point, New York, upon entering the Academy, place of receipt of orders to report, provided his home from the Academy than the place certified as his actual in his nomination for appointment,

Assistant Comptroller General Elliott to the Secretary of War, March 17, 1943: Reference is made to your letter of January 25, 1943, as follows:

It has been brought to my attention that a considerable number of suspensions have been raised in the accounts of Colonel E. J. Bean, F. D., covering payments of mileage to cadets joining the Military Academy following their appointment thereto. Several of these suspensions may be noted in connection with Vouchers Nos. 400, 410, and 412 in the disbursing officer's accounts for September, 1940. It appears that these exceptions are based upon the theory that cadets, upon their appointment, are entitled to mileage to West Point only from places of receipt of orders when such places are at a less distance from West Point than the homes from which they actually performed the travel.

There is cited, for your consideration in this connection, a decision by the Court of Claims dated June 10, 1:35 (81 Ct. Cls. 966), allowing a claim of a cadet from his home to West Point, New York, rather than from the place of receipt of orders in that case.

Your decision is accordingly requested as to whether credit will be allowed for payments covering mileage of cadets for travel actually performed from their homes to the Military Academy without reference to the places where such orders are received; and, if so, whether the suspensions already made will be removed.

Section 19 of the act of June 10, 1922, 42 Stat. 632, provides:

That cadets at the Military Academy and cadets and cadet engineers of the Coast Guard shall receive the same pay and allowances as are now or may hereafter be provided by law for midshipmen in the Navy.

The naval appropriations each year have provided funds for mileage at 5 cents per mile to candidates entering the Naval Academy while proceeding from their homes to the Academy for examination and appointment as midshipmen.

It has been held that by authority of the above-cited section 19 of the act of June 10, 1922, cadets who have proceeded from their homes to West Point, New York, for examination and appointment to the Military Academy are entitled to 5 cents per mile for the entire distance from their homes to the Academy by the shortest usually traveled route. 2 Comp. Gen. 654. However, the allowance authorized is not considered an emolument or a gratuity, but is intended as a form of reimbursement to the cadets for money expended for transportation in reporting from their homes to the Academy. 4 Comp. Gen. 437.

In the case of Craig Smyser v. The United States, 81 C. Cls. 966, cited in your letter, the facts appear to be that Smyser, an appointee at large, while attending school at Cornwall-on-Hudson, New York, received orders to report to the Superintendent of the United States Military Academy, West Point, New York; that upon completion of his schooling he returned to his home at Fort Bliss, Texas; and that he subsequently traveled from Fort Bliss to the Military Academy for the purpose of complying with the orders. The court, without a written opinion, held that under authority of the applicable statutes Smyser was entitled to mileage for travel actually performed from his home to the Academy.

Under the cited statutes, payment of mileage for travel actually performed by cadets from their homes to West Point, New York, upon entering the Military Academy, will be allowed as within the rule of the Smyser case, supra, regardless of the place of receipt of orders, provided such payments are supported by evidence that the home of such cadet is not more distant from the Academy than that certified as his actual residence as shown in the cadet's nomination for appoint-. ment to the Military Academy. In this connection see decision of this office dated March 6, 1942, B-23922, to Lieutenant Colonel E. J. Bean, F. D., U. S. Army.

Instructions are being issued for the crediting of payments of the nature herein discussed to the extent that they come within the rule above stated.

(B-32556)

PAY-LONGEVITY-SERVICE CREDITS-INACTIVE NATIONAL GUARD

SERVICE

Time during which a commission was held in the inactive National Guard-as distinguished from the National Guard Reserve and the National Guard of the United States-may not be counted in computing longevity pay under section 3 of the Pay Readjustment Act of 1942, as amended.

Assistant Comptroller General Elliott to Lt. Col. Carl Witcher, U. S. Army, March 17, 1943:

There has been received, by second indorsement dated February 13, 1943, your letter of February 4, 1943, as follows:

Attached hereto is a voucher in the amount of $67.50, covering difference in longevity pay between over 18 and over 21 years' service, in favor of Captain Sidney A. Cook, which has been presented to the undersigned, a disbursing officer, for payment.

The statement of service attached to this voucher shows that this officer was appointed in the Inactive National Guard June 14, 1933 and transferred to the National Guard Retired List December 17, 1936.

The Act of December 2, 1942 amending the Pay Readjustment Act of June 6, 1942 authorizes commissioned officers to count service as a commissioned officer in the National Guard Reserve but does not mention the Inactive National Guard.

It was held (22nd Comp. Gen. 439 and 440) that periods in the Inactive National Guard may not be counted for longevity pay purposes.

The undersigned is in doubt as to whether the Act of December 2, 1942 authorizes commissioned officers to count service in the Inactive National Guard for longevity pay purposes and your decision is respectfully requested as to whether payment of the voucher is authorized.

The act of December 2, 1942, 56 Stat. 1037, amended, inter alia, the first paragraph of section 3 of the Pay Readjustment Act of 1942, 56 Stat. 360, to read as follows:

When officers of the National Guard or of the Reserve forces of any of the services mentioned in the title of this Act, including Reserve officers, are authorized by law to receive Federal pny, except armory drill and administrative function pay, they shall receive provided in section 1 of this Act, and in computing their service for pay the credited with full time for all periods during

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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 authorized in section 2 (b) of the Act of January 19, 1942 (Public Law 402, Seventy-seventh Congress).

This office heretofore has considered the question as to whether commissioned service in the National Guard Reserve or in the inactive National Guard could be counted for pay purposes under section 3 of the Pay Readjustment Act of June 10, 1922, as amended by the act of May 31, 1924, 37 U. S. C. 7, or under section 3 of the Pay Readjustment Act of 1942, as approved June 16, 1942, 56 Stat. 360. See 20 Comp. Gen. 520, and 22 Comp. Gen. 439. In both instances the answer was in the negative, based principally on the fact that in enumerating those organizations in which service could be counted for pay purposes, the Congress did not name either the National Guard Reserve or the inactive National Guard, the presumption being that in so carefully enumerating such organizations it was intended by the Congress that service in any other organization, not so enumerated, was to be excluded. The act of December 2, 1942, here involved, expressly names the National Guard Reserve but not the inactive National Guard and the same rule is for application as excluding service in the unnamed inactive National Guard unless it can be held that the authority to count service in the National Guard Reserve is also authority for counting service in the inactive National Guard which, by virtue of section 15 of the act of June 15, 1933, 48 Stat. 159, amending section 78 of the National Defense Act of 1916, 39 Stat. 202, may be viewed as having superseded the National Guard Reserve.

While the National Guard Reserve was the forerunner, so to speak, of the inactive National Guard, the appellations are not interchangeable. The National Guard Reserve was established by section 78 of the National Defense Act of 1916, 39 Stat. 202. Section 15 of the act of June 15, 1933, 48 Stat. 159, amended section 78 of the National Defense Act of 1916, which section, as so amended, omitted any reference to a National Guard Reserve but provided for service in the inactive National Guard and thus, in effect, discontinued the National Guard Reserve. Section 5 of the said act of June 15, 1933, 48 Stat. 155, amending section 58 of the National Defense Act of 1916, established the National Guard of the United States which, as defined in section 71, as amended by the said 1933 act, 48 Stat. 157, was to be composed of those federally recognized units and organizations and persons duly appointed and commissioned in the active and inactive National Guard who have taken and subscribed to the oath of office prescribed in section 73, as amended by the 1933 act, 48 Stat. 157.

While the amended section 78 was silent with respect to the disposition to be made of those officers and enlisted men who were members of the National Guard Reserve at that time, it appears that members of the National Guard Reserve did not automatically become members of the newly established National Guard of the United States. Some light is thrown on their status by a statement in the annual Report of the Chief of the National Guard Bureau for the fiscal year 1934. On page 5 of that report it is stated with respect to the inactive National Guard, as follows:

As a result of the act of June 15, 1933, the National Guard Reserve is replaced by the inactive National Guard which is limited to the Federally recognized personnel, commissioned and enlisted, who have been transferred to or enlisted in the Inactive National Guard, and who are or may be assigned to war vacancies in active and inactive units. Allotted units whose organization has not been authorized are included in the Inactive National Guard.

General Orders No. 3, War Department, 1934, appointed as officers in the National Guard of the United States all officers of the National Guard Reserve for whom there was a war vacancy to which State authorities would assign them. Acceptance of this appointment required a new oath of office and a statement by the State adjutant general that there was a vacancy in an allotted unit to which the officer could be assigned. The status of these officers then changed from the National Guard Reserve to the Inactive National Guard. It is expected that approximately 1,000 officers of the National Guard Reserve will accept appointments in the National Guard of the United States and be assigned to war vacancies and thereby pass into the Inactive National Guard. The Federal recognition of all surplus National Guard Reserve officers will be withdrawn as of October 31, 1934, the date on which appointments in the National Guard of the United States, made by General Orders No. 3, War Department, 1934, are to be regarded as withdrawn.

See, also, the annual report for the fiscal year 1935, on page 5 of which it is stated:

Under the provisions of the act of June 15, 1933, the National Guard Reserve was designated as the "Inactive National Guard." Each officer's record was examined, with the result that Federal recognition was terminated in the cases of all National Guard Reserve officers who were not assigned to war vacancies or who did not accept appointments in the National Guard of the United States. There remain in the Inactive National Guard a total of 816 officers and 15,632 enlisted men.

From the foregoing it will be seen that the "National Guard Reserve" is separate and distinct from the "Inactive National Guard." Neither term includes the other. The failure of Congress in the act of December 2, 1942, expressly to authorize the counting of inactive National Guard service for pay purposes does not appear to have been by inadvertence but, rather, by design. For such exclusion there would appear to have been a very good reason. Under section 111 of the National Defense Act as it stood prior to the said act of June 15, 1933, members of the National Guard Reserve were subject to draft into the military service of the United States under the conditions there stated. See section 111 of the act of June 3, 1916, 39 Stat. 211, and section 49 of the act of June 4, 1920, 41 Stat. 784. Burt amended by section 18 of the act of June 15, 1933, 48 Stat. 160 rin 11 of the National Defense Act

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