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military service in the Army are entitled to compensation for disability due to injury sustained or disease contracted in line of duty while so serving, but are not entitled to compensation for any aggravation of disability caused by such service. This ruling places these members of the National Guard in the same war risk insurance status as that given by section 31 of the war risk insurance act as amended by the act of August 9, 1921, 42 Stat., 153, to those persons inducted by local draft boards and those who were accepted provisionally on enlistment or enrollment who die or become disabled before acceptance and enrollment.
As regards their status under the insurance provisions of the war risk insurance laws, I conclude that they are within the general provision of section 400 of the said laws, subject, of course, to the restrictions imposed by section 401 and other sections of the said laws.
You have submitted for decision three specific cases, as follows:
1. One Frank Burkett Jones enlisted in the National Guard of the State of Texas on July 12, 1917, and his organization was drafted into the Federal Service by the Pres dent on August 5, 1917. The soldier reported and served with his organiz:ition until September 13, 1917, when he was physically examined and rejected on account of a disability which the War Department held existed prior to the date the soldier reported to the company rendezvous The report received from the Adjutant General in this case shows that the soldier was not mustered into tlie service. Attached ceto please find copy of the Request for Ariny Information completed by the War Department in this case and communication dated September 29, 1922, signed by The Adjutant General in connection with this man's claim.
2. Sam Greensweis, a member of the Illinois National Guard, responded to the presidential call of July 3, 1917, on July 25, 1917, and was discharged on surgeon's certificate of disability on February 19, 1918. The War Department reported in this case that Greensweig was physically examined on July 30, 1917, and that he was accepted with defects noted ; but that he was not mustered into the service. The form Request for Army Information completed by the War Departinent in this case and communication (1st indorsement) dated October 4, 1922, signed by The Adjutant General, are attached hereto.
3. The third class of cases which arise may be stated as follows: A member of the National Guard in North Carolina reported to his rendezvous on July 25, 1917, was medically examined on August 4, 1917, and was discharged the same day on account of a disability held not of service origin and existing prior to enlistment. The War Department reports that no actual muster took place prior to the soldier's discharge and also that none of the members of the soldier's organization who continued in the service were actually mustered in.
Frank Burkett Jones and the member of the North Carolina National Guard are not shown to be entitled to compensation or insurance because it is not shown that their disability resulted from injury sustained or disease contracted in line of duty in active service under the War Department, or that they are qualified for insurance under section 401 of the war risk insurance act. The service record of Sam Greensweig with the submission shows that he was discharged for disability not in line of duty and existing prior to enlistment. He would not be entitled to compensation for the original disability, but having apparently been examined, accepted, and enrolled for general military service without notation of the disability for which he was discharged he is entitled under the amendment of section 300 to compensation for any aggravation of the disability caused by his service, and under a further amendment of that section made by the act of August 9, 1921, 42 Stat., 154, must be held and taken to have been in sound condition when examined, accepted, and enrolled for service. The physical defects noted on the first physical examination were “vision 20/30 both eyes, 1 tooth missing #6 I rt,” while he was discharged for " otitis media, chronic suppurative right. Catarrhal left.” He is entitled to benefit of the insurance provisions if he made proper application in conformity with section 401 and is otherwise qualified.
TRAVELING EXPENSES—WITNESSES-ENFORCEMENT OF
The reasonable and necessary traveling expenses, including subsistence, of
witnesses necessary to establish the illegal manufacture or sale of intoxi. cating liquors on which the taxes and penalties assessed or imposed under section 35 of the national prohibition act, 41 Stat., 317, may be collected, are proper charges against the appropriation of the Bureau of Internal
Revenue for the enforcement of narcotic and prohibition acts for 1923. Comptroller General McCarl to the Secretary of the Treasury, December 29,
By letter dated December 22, 1922, decision is requested whether the appropriation “ Enforcement of Narcotic and Prohibition Acts, Internal Revenue, 1923,” is available to pay traveling expenses, including subsistence, of witnesses summoned by a collector of internal revenue to attend hearings with a view to obtaining evidence of the illegal manufacture or sale of intoxicating liquors subject to the taxes and penalties assessed or imposed under section 35, Title II, of the national prohibition act of October 28, 1919, 41 Stat., 317.
It is understood from your submission that the taxes and penalties referred to are collectible only upon evidence of illegal manufacture or sale and that under the decision of the United States Supreme Court in the case of Lipke v. Lederer, Collector, decided June 5, 1922, the manufacturer or seller is entitled to a hearing before the taxes or penalties are collected. Such being the case the necessary expenses incurred by the United States incident to the hearing which is a prerequisite to the collection of the taxes and penalty would appear to be proper expenses in connection with the enforcement of the national prohibition act. You are advised, therefore, that the reasonable and necessary traveling expenses including subsistence of such witnesses as may be deemed necessary to establish facts on which the taxes and penalties referred to in section 35 of the national prohibition act may be collected are proper charges against the appropriation in question.
SUBSISTENCE AND RENTAL ALLOWANCES-OFFICER OF NAVY
UNDER MILITARY ARREST.
An officer of the Navy détached from sea duty and ordered to a receiving ship
under arrest is entitled to a subsistence allowance while on board said re
ceiving ship under arrest and a waiting trial. An officer of the Navy detached from sea duty and ordered to a receiving ship
under arrest and quartered thereon is not entitled to a rental allowance
while thus on board said receiving ship under arrest and awaiting trial. Comptroller General McCarl to the Secretary of the Navy, January 2, 1923.
I have, by your direction, the letter of Lieutenant Robert O'Hagen (SC), United States Navy, requesting decision whether Acting Pay Clerk R. A. Taylor, United States Navy, is entitled to rental and subsistence allowance while awaiting trial by general court-martial on board the receiving ship at New York. It is stated that Taylor has a wife.
It is presumed from the submission that Taylor has been detached from duty on board the U. S. S. Panther, and that he has been ordered to the receiving ship at New York under arrest.
The mere placing of an officer of the Navy under arrest or bring. ing him to trial before a court-martial does not affect his status as an officer of the "active list.” Section 11 of the act of June 10, 1922, 42 Stat., 630, provides that warrant officers of the Navyshall be entitled at all times to the same money allowance for subsistence as is authorized in section 5 of this Act for officers receiving the pay of the first period and as the officers authorized to receive subsistence allowance under section 5 are “ officers on the active list,” in a pay status, I conclude that the subsistence allowance is payable to Acting Pay Clerk Taylor during the period awaiting trial and during the trial. The determination as to what shall be received thereafter is dependent upon the findings and sentence of the court-martial as may be approved by the duly constituted authority.
Section 11 of the act of June 10, 1922, 42 Stat., 630, provides that warrant officers of the Navyshall be entitled
to the same money allowance for rental of quarters as is authorized in section 6 of this Act for officers receiving the pay of the first period.
Section 6 of the act of June 10, 1922, 42 Stat., 628, provides: That each commissioned officer on the active list or on active duty below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this Act, if public quarters are not available, shall be entitled at
all times, in addition to his pay, to a money allowance for rental of quarters, the amount of such allowance to be determined by the rate for one room
Such rate for one room is hereby fixed at $20 per month for the fiscal year 1923 * To each officer receiving the base pay of the first period the amount of this allowance shall be equal to that for two rooms,
The rental allowance shall accrue while the officer is on field or sea duty, temporary duty away from his permanent station, in bospital, on leave of absence or on sick leave, regardless of any shelter that may be furnished him for his personal use, if his dependent, or dependents are not occupying public quarters during such period.
Mr. Taylor, upon detachment from duty on the U. S. S. Panther, lost his status as an officer on sea duty. He did not again acquire that status by reporting on the receiving ship at New York for the purpose of awaiting trial by court-martial, and does not acquire a right to a rental allowance as an officer “on sea duty.” 17 Comp. Dec., 371; Sullivan v. United States, 32 Ct. Cl. 402.
Whether he acquires a right to the rental allowance under the general provisions of section 6 depends upon the nonavailability of quarters. It is presumed that he is being furnished quarters on the receiving ship at New York, and, such being the case, no rental allow. ance could be payable upon a basis of public quarters not being available.
Your question is answered accordingly.
TRANSFERS OF MILITARY STORES BY WAR DEPARTMENT TO
PROVINCIAL GOVERNMENTS OF THE PHILIPPINE ISLANDS.
The transfer by the War Department of military stores to the several provincial
governments in the Philippine Islands which are responsible to the central government are transfers to the insular department of the Philippines within the purview of the act of June 12, 1906, 34 Stat., 258, and the proceeds of such stores may be deposited to the credit of the appropriation for the procurement of like military stores for the fiscal year in which the transaction took place, and when so deposited are available, during the fiscal year in which the transaction occurred and the following fiscal year, for refunds to such provincial governments when found entitled thereto by
reason of an error in the amount paid therefor. Decision by Comptroller General McCarl, January 2, 1923.
Settlement W-804365, this office, dated April 6, 1922, disallowed the claim of the provincial government of Lanao, Dansalan, Philippine Islands, for refund of $742.50 overpayment to the Quartermaster Department of the Army for one apple kick coil purchased and paid for at the rate of $750 instead of $7.50, as result of an error in omitting the decimal point in the valuation.
Reason for disallowance is stated to have been that the proceeds of the sale were covered into the Treasury of the United States as miscellaneous receipts and could not be drawn upon for purpose of refund in the absence of an appropriation.
The War Department reports that this apple kick coil, with other property of the United States, had been in use by troops at Camp Overton, Mindanao, P. I., and was left there in possession of the provincial authorities when Camp Overton was abandoned in December, 1917. December 1, 1918, a board of officers was appointed to fix an appraised original value and a selling value, and through clerical error the original value of this item was fixed at $3,000 instead of $30, resulting in sale price of $750 instead of $7.50, one-fourth of original value. Sale to claimant was consummated in March, 1921, and the proceeds, in the amount of $4,621.35, were taken up and accounted for by Maj. Wallace F. Baker; Finance Department of the Army, on voucher No. 72 to his account current for the month of March, 1921. Voucher No. 72 shows that the full amount of these proceeds was deposited to the credit of “General appropriation, Q. M. C., 1921," and not covered into “Miscellaneous receipts."
The excess purchase price having been paid as result of an error for which claimant was not responsible, the amount thereof, $742.50, is reimbursable. As the proceeds have not been covered into the Treasury, and as the deposit to credit of "General appropriation, Q. M. C., 1921," was erroneous to extent of the excess, that appropriation is now available for payment of the refund.
Upon review the settlement is reversed and the sum of $742.50 certified due claimant.
There has been questioned whether deposit of the proceeds of the sale of the old material to credit of “General appropriation, Q. M. C., 1921," was proper.
Section 3618, Revised Statutes, provides that all proceeds of sales of old materials, condemned stores, supplies, or other public property of any kind, with certain specified exceptions, shall be covered into the Treasury as miscellaneous receipts, on account of proceeds of Government property, and shall not be withdrawn or applied except in consequence of a subsequent appropriation made by law. The various articles sold are not named in the record, but nothing appears to show that they come within any of the exceptions mentioned in the statute. The office has been advised that the basis for the deposit to the appropriation was the act of June 12, 1906, 34 Stat., 258, providing as follows:
Hereafter all funds received as the value of muitary stores transferred by the several staff departments of the Army to the Insular Departmeni of the Philippines, or work done, shall be deposited in the Treasury of the United States and remain available during the fiscal year in which the transaction occurred and the following year for the procurement of like military stores to replace those so transferred.
Under this statute the phrase "Insular Department of the Philippines” has been construed by the War Department to include not only the central Philippine government but the several provincial