the provisions of 5 U.S.C. 59a, "which does not permit retired pay to be added to the compensation received as a civilian officer."

Section 212 of the Economy Act, as amended, is, in pertinent part, as follows (quoting from 5 U.S.C. 59a, 1958 Edition):

(a) After June 30, 1932, no person holding a civilian office or position, appointive or elective, under the United States Government or the municipal government of the District of Columbia or under any corporation, the majority of the stock of which is owned by the United States, shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services mentioned in title 37, at a rate in excess of an amount which when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $10,000; and when the retired pay amounts to or exceeds the rate of $10,000 per annum such person shall be entitled to the pay of the civilian office or position or the retired pay, whichever he may elect. ***

In the light of the circumstances of the appointment involved here, the conditions of service provided by section 529 of the Mutual Security Act of 1954, and the provision in section 532(b) of that act relating to the applicability of 5 U.S.C. 59a, there appears to be no sound alternative but to hold that the civilian position in question is an appointive one "under the United States Government" and, therefore, within the purview of section 212 of the Economy Act. The holding in 25 Comp. Gen. 38, that acceptance of employment with the international organization there mentioned would not contravene the cited dual compensation statutes, was expressly limited to situations where a detail of the officer by the War Department to that organization was not involved. It appears that the officer here involved is an employee of the Department of State who has been detailed to the NATO organization. His salary is paid by the Department of State and it is immaterial that such payments result in a credit to the United States against its share of the expenses of that organization. See, in this connection, section 529 (c) (4) of the

1954 act.

The question presented is answered in the affirmative.

[B-140287]

Military Personnel-Retired Enlisted Members-Discharge Effect

An undesirable discharge issued to a retired enlisted member of the Regular Marine Corps under authority in section 6 of the Naval Reserve Act of 1938, which was subsequently determined to be inapplicable to enlisted men on the retired list of the Regular Marine Corps, is an invalid discharge issued without authority of law and unlike a valid undesirable discharge does not terminate the member's status; therefore, retired pay is payable to the member after issuance of such a discharge.

To Captain John A. Rapp, United States Marine Corps, August 25, 1959:

Reference is made to your letter dated July 6, 1959, with enclosures, forwarded here by endorsement dated July 15, 1959, and letter dated July 23, 1959, of the Judge Advocate General of the Navy, requesting decision whether payment of retired pay may be made to Technical Sergeant Clarence R. Etheridge, United States Marine Corps, retired, from October 11, 1950. The request has been allocated Submission No. DO-MC-434 by the Department of Defense Military Pay and Allowance Committee.

It appears that Etheridge was transferred from the United States Marine Corps to the Fleet Marine Corps Reserve on July 9, 1947, as a technical sergeant, and on August 1, 1947, he was transferred to the retired list of enlisted men of the Regular Marine Corps by reason of physical disability. On October 11, 1950, he was discharged as undesirable by reason of misconduct (convention by civil authorities of a criminal offense), pursuant to the stated authority granted the Secretary of the Navy under section 6 of the Naval Reserve Act of 1938, as amended, 34 U.S.C. 853d (repealed in 1952). Etheridge had been convicted on December 29, 1947, of second degree murder.

It further appears that Etheridge addressed the Board for Correction of Naval Records requesting that his official record be corrected so as to result in his restoration to the retired list of enlisted men of the Regular Marine Corps, as of the date of his discharge, October 11, 1950. The Board requested an opinion of the Judge Advocate General of the Navy as to the legality of the discharge. The Judge Advocate General on March 30, 1959, rendered an opinion to the effect that Etheridge was not legally discharged from the service, since the cited authority, section 6 of he Naval Reserve Act of 1938, does not relate to retired enlisted men who are carried on the retired list of enlisted men of the Regular service, and that no other authority for such a discharge exists. Pursuant to the request of the Board the undesirable discharge was canceled, and the enlisted man was restored to the retired list of enlisted men of the Marine Corps by reason of physical disability effective October 11, 1950.

You state that your doubt as to the propriety of payment in the present matter arises from the seeming conflict between our views, as expressed in our decision of January 29, 1959, B-138082, 38 Comp. Gen. 523, and the views of the Judge Advocate General expressed in his opinion to the Board for Correction of Naval Records.

In our decision of January 29, 1959, 38 Comp. Gen. 523, we held that:

Since a discharge of an enlisted man on the retired list of the Regular Navy terminates the status on which his retired pay depends, the discharge certificates evidencing separation from the Naval Service, issued to the enlisted men here involved, terminated their right to disability retired pay as

of the day the certificates were issued and the men were not entitled to retired pay subsequent to their discharge. The fact that the character of the discharge of one enlisted man was subsequently changed, did not affect his status insofar as separation from the service is concerned.

In his letter of July 23, 1959, forwarding your request for advance decision here, the Judge Advocate General of the Navy stated that in our decision of January 29, 1959 "there was no question as to the validity of the discharges issued to the three retired enlisted persons with whom the decision was concerned. Two discharges were issued upon written request of the members to escape trial by general courtmartial. The other discharge was effected pursuant to the sentence of a summary court-martial."

As stated in Judge Advocate General's opinion to the Board for Correction of Naval Records, there appears no authority for the issuance of an administrative undesirable discharge to an enlisted man on the retired list of the Regular Marine Corps. Hence, the Judge Advocate General's analysis of our decision 38 Comp. Gen. 523, in its application to the present matter, is correct, and that decision affords no basis for denying the present claimant his retired pay from October 11, 1950.

Accordingly, payment of retired pay is authorized for the period after October 11, 1950, if otherwise proper.

[B-126978]

Military Personnel-Travel by Privately Owned Automobiles Between Residence and Duty Station or Terminal

A round-trip mileage allowance for members of the uniformed services at seven cents per mile in lieu of reimbursement for use of taxicabs for each one-way trip between residence or duty station and common carrier terminal by privately owned automobile, not to exceed usual taxicab fare, including allowable tip, for a one-way trip from home to terminal or terminal to home may be authorized under the provisions of section 303 (a) of the Career Compensation Act of 1949, 37 U.S.C. 253 (a), which provides seven cents per mile for travel away from the designated post of duty; therefore, paragraphs 4401-2 and 4402 of the Joint Travel Regulations may be amended accordingly.

To the Secretary of the Air Force, August 26, 1959:

In letter of April 22, 1959, from the Assistant Secretary of the Air Force (Financial Management), decision is requested as to whether paragraphs 4401-2 and 4402 of the Joint Travel Regulations legally may be amended to authorize the payment to members of the uniformed services of round-trip mileage allowance of seven cents per mile in lieu of reimbursement for the use of taxicabs for each one-way trip between the member's residence or duty station and carrier terminal by privately owned automobile, not to exceed the usual taxicab fare, including allowable tip, for a one-way trip from

home to terminal or terminal to home, on a basis similar to that authorized by the Standardized Government Travel Regulations for civilian employees. The request was assigned PDTATAC Control No. 59-16.

In our decision of May 17, 1956, B-126978, it was stated that there would be no objection to the payment of a monetary allowance in lieu of transportation for travel by privately owned automobile from place of abode or business to public carrier terminal, if the amount paid does not exceed the usual allowable taxi fees for that travel. It is now represented that the use of a privately owned automobile for such travel is generally more practicable and economical even though it may be necessary that the automobile be operated for a round trip in providing one-way transportation for the member, but that the mileage allowance for the one-way distance, as previously authorized, does not provide adequate reimbursement for the actual distance the automobile is used for such round-trip travel. It is proposed to amend the Joint Travel Regulations to authorize reimbursement on a basis similar to that prescribed in paragraphs 3.5b (1) and 3.1b of the Standardized Government Travel Regulations which provide for the payment to civilian employees of a mileage allowance of ten cents per mile in lieu of the use of a taxicab for the round-trip mileage of a privately owned automobile used in going from home to common carrier terminal or from common carrier terminal to home, not to exceed the usual taxicab fare, including allowable tip, for a one-way trip between those points.

Authority for the cited provisions of the Standardized Government Travel Regulations is contained in section 4 of the Travel Expense Act of 1949, 63 Stat. 166, as amended, 5 U.S.C. 837, which provides that under regulations prescribed by the Director of the Bureau of the Budget, civilian employees of the Government shall be paid not to exceed 10 cents per mile, and reimbursed for actual costs of ferry fares and bridge, road, and tunnel tolls, for the use of privately owned automobiles when engaged on official business within or outside their designated posts of duty or places of service whenever such mode of transportation is authorized or approved as more advantageous to the Government (except that no determination of advantage is required where payment on a mileage basis is limited to the cost of travel by common carrier, including per diem). Section 303 (a) of the Career Compensation Act of 1949, 63 Stat. 813, 37 U.S.C. 253(a), provides that the Secretaries of the various uniformed services may prescribe the conditions under which the travel and transportation allowance therein provided shall be authorized, but that authorization of a monetary allowance in lieu of cost of transportation shall be limited to "a rate not in excess of 7 cents per mile." That authority, unlike that provided for civilian travel in

the Travel Expense Act, is limited to circumstances involving a travel status away from the member's designated post of duty. However, section 2(m) of the act of September 1, 1954, 68 Stat. 1129, 40 U.S.C. 491 (m), provides additional authority in the Secretaries to issue regulations covering the procurement of transportation within the limitation of the duty station in the following language: Members of the uniformed services (as defined in the Career Compensation Act of 1949, as amended) may be directed by appropriate regulation of the head of the executive agency in which they are serving to secure transportation necessary in conducting official Government business within the limits of their duty stations. Expenses so incurred by such members for train, bus, streetcar, taxicab, ferry, bridge, and similar fares and tolls, or for use of privately owned vehicles at a fixed rate per mile, shall be defrayed by the agency in which they are serving, or the personnel so directed shall be reimbursed for such expenses.

The quoted provisions, together with the cited provisions of section 303 (a) of the 1949 act, jointly appear to provide, within the 303(a) 7 cents per mile limitation, substantially the same authority for reimbursement of transportation expenses for travel on public business within or outside the designated posts of duty that is provided for civilian employees by the cited provisions of the Travel Expense Act. That the quoted provisions of section 2(m) were intended for that purpose is indicated in Senate Report No. 1941, on H.R. 8753, 83rd Congress, 2d Session, which became the act of September 1, 1954, in which, on page 8, the Senate Committee on Government Operations, referring to section 2(m), stated that "It is the purpose of this subsection to allow payment to members of the uniformed services for these traveling expenses on the same basis as permitted for civilian Government employees." In view of the foregoing, we interpose no objection to the proposed amendments to paragraphs 4401-2 and 4402 of the Joint Travel Regulations.

[B-139703]

Appropriations—Availability—Court Costs-Indigent Persons-Government Liability

Travel and subsistence expenses incurred by an indigent defendant's attorney attending a deposition examination may be regarded as expenses incident to the responsibility of the court to assure defendants an adequate forum and, therefore, such expenses are for payment by the Administrative Office of the United States Courts under Rule 15(c) of the Federal Rules of Criminal Procedure; however, compensation and travel expenses of deponents subpoenaed on behalf of an indigent defendant are regarded as expenses incident to the responsibility of the Department of Justice for the production of witnesses and payable under Rule 17 (b) from Justice Department appropriations for witness expenses. Expert witnesses who are appointed by the court under Rule 28 of the Federal Rules of Criminal Procedure are witnesses appointed to aid the court in the discharge of its duties, and expenses of such witnesses should be charged to the appropriation for "Travel and Miscellaneous Expenses" (Judiciary Appropriation Act, 1959,) for necessary travel and miscellaneous expenses, not otherwise provided for, incurred by the Judiciary; likewise, expenses of psychiatric ex