language of section 8 of the act of June 10, 1922, supra, shows that this was recognized. Compare 11 Comp. Gen. 291. The purpose of the last sentence of section 8 clearly was to provide a temporary money allowance of $2,200 per year to the officer serving as Chief of Naval Operations, while he is so serving, and to officers on the active list of the Navy, not in excess of three, designated to command fleets or subdivisions thereof and temporarily holding the rank of admiral while so designated.

Section 301 of the Third Supplemental National Defense Appropriation Act, 1941, 54 Stat. 973, provides as follows:

During the remainder of the fiscal year ending June 30, 1941, all retired officers of the Navy and Marine Corps, and retired officers and enlisted men of those services, shall, when on active duty, receive full pay and allowances. Similar provision is made for the fiscal year 1942, by section 5 of the Naval Appropriation Act, 1942, 55 Stat. 176.

As has been stated above, the retired pay of Admiral Standley was not affected and was not intended to be affected, by the act of June 22, 1938. A fortiori, it was not intended by that act to increase any active-duty pay to which he might subsequently become entitled. Irrespective of his rank and title on the retired list, his full activeduty pay is properly for basing on his retired pay. His retired pay is $6,000 per annum or three-fourths of $8,000, the active-duty pay of a rear admiral (upper half).

In view of the foregoing, it is concluded that Admiral Standley is not entitled to the annual money allowance of $2,200 in addition to his regular active-duty pay and allowances.

(B-19223)

BURIAL EXPENSES-DEATH DURING PERIOD OF UNAUTHORIZED LEAVE-ARMY RESERVE OFFICER

The right to payment of burial expenses under the act of June 15, 1936, is not forfeited merely because death occurs while an Army Reserve officer on active duty is on unauthorized leave, as distinguished from desertion. Assistant Comptroller General Elliott to Lt. Col. F. M. Moore, U. S. Army, August 22, 1941:

There has been received by indorsement of July 24, 1941, your letter dated June 21, 1941, which is as follows:

1. In compliance with Par. 2a AR 35-730 and Par. 23c (6), Finance Circular B-1, there are inclosed herewith two vouchers, one for $100.00 payable to Ballard Funeral Home, Roswell, New Mexico, and one for $50.00, payable to E. R. Butterworth & Sons, Inc., Seattle, Washington, in the case of 1st Lt. Richard Elton Million (0-355682) C. A. C.-Res., deceased, which have been presented to me as disbursing officer, Fort Bliss, Texas, for payment.

2. Payments have been withheld in view of the fact that a board of officers have determined that Lt. Million's death was not in line of duty and as a result of his own misconduct. Lt. Million was absent from his post of duty without authority at the time of his death. These vouchers are submitted to your office for advance decision as to the legality of the payments as stat

From your letter and the papers attached thereto, it appears that First Lt. Richard Elton Million was a reserve officer on active duty at Fort Bliss, Tex., that commencing at 10:30 a. m. on January 13, 1941, he was absent from his station without authority, that on January 14, 1941, while still absent without authority, he met his death, and that a board of officers has determined that his death occurred "not in line of duty and as a result of his own misconduct." The vouchers submitted with your letter covered expenses incurred in connection with the officer's burial and the question presented is whether payment of the vouchers is authorized in view of the fact that the officer's death was not in line of duty and as a result of his own misconduct.

The act of June 15, 1936, 49 Stat. 1508, which is applicable to reserve officers of the Army, provides in part

* * If the death of any person mentioned herein occurs while he is on active duty, or undergoing training or hospital treatment contemplated by this section, the United States shall, under regulations prescribed as aforesaid, pay the necessary expenses for recovery of the body, its preparation for burial including the use of such of the uniform and articles of clothing issued to him as may be required, interment (or cremation if requested by his relatives), and transportation of his remains, including round-trip transportation and subsistence of an escort, to his home or the place where he received orders for the period of training upon which engaged at the time of his death, or to such other place as his relatives may designate provided the distance to such other place be not greater than the distance to his home;

See also Army Regulations 30-1830 as to regulations issued by the Secretary of War in connection with the above act.

The law authorizes certain burial expenses to be paid in connection with the death of any person mentioned in the act if death occurred "while he is on active duty." It is not necessary that it be shown that death occurred in line of duty. See A-81789, April 23, 1937. It appears to be established that Lieutenant Million was on active duty immediately preceding his departure from his station at Fort Bliss on January 13, 1941. Therefore, the question appears to be whether he may be considered "on active duty" within the meaning of the act of June 15, 1936, while he was absent from his station on unauthorized leave.

A reserve officer cannot relieve himself from active duty, although he may terminate his active duty by desertion; there is no suggestion in this case that the officer's active duty had been terminated by his own action, the equivalent of desertion. It appears clear that absence on unauthorized leave, in itself, and not amounting to desertion, does not terminate an officer's active-duty status prior to the date specified in his orders ordering him to active duty.

In view of the foregoing, it is concluded that Lieutenant Million although absent on unauthorized leave beginning at 10:30 a. m.

Jaunary 13, 1941, may be considered to have been "on active duty" as that term is used in the act of June 15, 1936, until his death on January 14, 1941. If the payments are otherwise correct and within the applicable regulations, you are authorized to pay the vouchers which are returned herewith.

(B-19447)

COMPENSATION-RATES-PER DIEM EMPLOYEES FORTY-HOUR WEEK

In creating additional positions under the provision in the Naval Appropriation Act, fiscal year 1942, prohibiting the use of appropriations referred to therein for additional positions at salary rates in excess of $5,000 per annum, the Navy Department may compute the per diem salary equivalent of the per annum rate of $5,000, for positions in which the employees are subject to the 40-hour week laws and for which the regular tour of duty is fixed administratively at 5 days per week with 2 nonwork days for which no compensation is paid except for overtime services, by dividing $5,000 by 261 [365 less 104 (52 by 2)] days for the year, but if the number of work days per week is increased or decreased the divisor should be increased or decreased accordingly.

Comptroller General Warren to the Secretary of the Navy, August 22, 1941: I have your letter of August 2, 1941, reference L1-1 (11) (1942)/EN (410512) K, as follows:

There is forwarded herewith for your consideration a letter from the Chief of the Bureau of Supplies and Accounts, Navy Department, dated July 26, 1941, requesting your decision on the question therein presented as to whether the Navy Department is authorized to create, without specific legislation, additional positions in the supervisory mechanical service in Navy Yards at a per diem rate of pay not to exceed $19.15 or $5,000 divided by 261.

The referred-to letter reads as follows:

1. The first proviso under the appropriation "Miscellaneous Expenses" in the Naval Appropriation Act for the fiscal year 1942, approved May 6, 1941 (Public, No. 48-77th Congress), provides:

"That no part of this or any other appropriation for the Navy Department or the Naval establishment for the fiscal years 1941 and 1942, or of funds allotted to the Navy Department, shall be available after March 13, 1941, for any additional positions in the District of Columbia or elsewhere at rates of compensation in excess of $5,000 per annum, either on a per diem or per annum basis, except in pursuance of specific authorization herein or hereafter granted."

2. In a decision of the Comptroller General of the United States, B-16883 of May 21, 1941, it was held that the per diem equivalent of the salary rate of $5,000 per annum is calculated by dividing $5,000 by 360 and is $13.88, and in support of this ruling there was cited, among others, another decision of the Comptroller General dated July 23, 1940 (20 Comp. Gen. 39). This latter decision states that:

"In the payment of the compensation of per annum employees it is usually considered that the employee receives compensation for the nonwork days as well as for the days on which work is performed, so that, in the case of an employee such as the one referred to in your letter, although he is required to work only 5 days of 8 hours each during a week to be entitled to his regular salary payments, said payments are computed on the basis of a 30-day month."

Therefore, it is assumed that the rule in decision of May 21, 1941, applies only to employees regularly paid a per diem for every day in the year.

the supervisory mechanical service ranging from $16.00 to $22.00. Incumbents of these positions are employed on a 5-day, 40-hour week basis but are not, as in the case of per annum employees referred to above, paid their regular compensation for nonwork days and, consequently, receive regular compensation only of 261 times the per diem rate per year.

4. In the past, where Congress has specifically required the conversion of an annual salary to a per diem basis, the divisor has been fixed at the number of normal work days of the class of employees concerned. For example, section 6 of the act of July 3, 1918, (40 Stat. 814) provides:

"Such employees as are engaged on piecework, by the hour, or at per diem rates, if otherwise entitled to receive the additional compensation shall receive the same at the rate to which they are entitled in this section when their fixed rate of pay for the regular working hours and on the basis of three hundred and thirteen days in the said fiscal year would amount to $2,500 or less: Provided, That this method of computation shall not apply to any per diem employees regularly paid a per diem for every day in the year."

5. There is urgent need at this time for additional supervisory mechanical service employees in the various Navy Yards to meet the needs of national defense, but the establishment of these additional positions is being held in abeyance in view of the decision of May 21, 1941. It is, therefore, requested that a decision of the Comptroller General be obtained on the question as to whether the Department is authorized to create, without specific legislation, additional positions in the supervisory mechanical service in Navy Yards at a per diem salary of not to exceed $5,000 divided by 261 or $19.15.

Question and answer 10 in decision of May 21, 1941, 20 Comp. Gen. 803-809, were as follows:

In those cases where the language in the first proviso, quoted supra, is applicable, on what number of days is $5,000 per annum calculated for the purpose of determining the permissible per diem rate of compensation?

The per diem equivalent of the salary rate of $5,000 per annum is calculated by dividing $5,000 by 360 and is $13.88 See salary tables, 1936; also, section 6 of the act of June 30, 1906, 34 Stat. 763; section 5 (a) of the act of June 28, 1940, 54 Stat. 678; 20 Comp. Gen. 39; id. 147; id. 149; id. 484, and the decisions therein cited. As the appropriation salary restriction is definitely made applicable to a per diem rate equivalent to the annual rate of $5,000 per annum, the rate of $13.88 per diem is the maximum compensation rate payable to a person occupying an "additional" part-time or intermittent position created after March 13, 1941, regardless of the number of days worked during the year. Compare 17 Comp. Gen. 249, 252, wherein was considered an appropriation restriction on compensation of $5,000 or more per annum.

That question was understood as relating to employees whose compensation was fixed on an annual or monthly basis and the answer was limited accordingly.

Under the provisions of the 40-hour week statutes, such as section 23 of the act of March 28, 1934, 48 Stat. 522, and the act of June 28, 1940, 54 Stat. 678, it is understood that the regular 40-hour weekly tour of duty for the employees here involved has been fixed administratively at 5 days per week and that 2 days of the week— usually Saturday and Sunday-are nonwork days for which compensation is not paid except for overtime work performed on said nonwork days. 20 Comp. Gen. 555.

It has been held generally that in the absence of a statute otherwise providing the per annum equivalent of a per diem rate of compensation is computed on the basis of the number of days of the year

for which the employees receive their regular pay. 8 Comp. Gen. 261; 11 id. 217; id. 362; 12 id. 11; id. 271; 13 id. 167; 15 id. 305; 16 id. 1010, 18 id. 768.

Statutes have been enacted on that basis. An example is stated in the quoted letter to you from the Chief of the Bureau of Supplies and Accounts. See, also, section 104 (c) of the Economy Act approved June 30, 1932, 47 Stat. 400. The cases arise in a number of situations including application of the dual compensation statutes. I do not find any provision of law fixing the number of days of the year on the basis of which the per annum equivalent of the per diem rate of compensation of employees subject to the 40-hour week statutes working on a 5-day week is required to be computed. In the absence thereof, and following the rule used generally and in most statutes, it is concluded that the equivalent per annum rate of compensation for employees of the Naval Establishment who are subject to the 40-hour week laws above cited, who are paid on the basis of the day or hour and whose regular tour of duty is fixed at 5 days per week, should be computed on the basis of 261 [365 less 104 (52 times 2)] days for the year. On that basis the equivalent per diem rate of compensation for $5,000 per annum is $19.15 ($5,000 divided by 261). Compare decision of March 15, 1937, A-83511, to the Secretary of the Navy rendered prior to the approval of the holiday statute of June 29, 1938, 52 Stat. 1246, and in that connection see 18 Comp. Gen. 191; id. 206.

Accordingly, the question presented is answered in the affirmative. Of course, if the regular tour of duty of the employees should be fixed at more or less than 5 days per week the divisor would be the number of days during the year the employees regularly are required to work and for which they receive pay.

(B-18583)

NAVAL HOUSING PROJECTS INCLUSION OF GENERAL UTILITIES IN MAXIMUM UNIT COST

The term "utilities," when used in connection with building construction, has reference to such items as sewer and water facilities, heating devices, electric wires and fixtures, etc., and the term "heating and plumbing apparatus, wiring and fixtures" is sufficiently broad and comprehensive in meaning to include similar facilities and devices.

The costs of utilities which are required by various naval appropriation acts to be included in the specified maximum unit cost of certain housing construction include not only such items as are located within or immediately adjacent to the building walls, such as plumbing, heating, etc., but, also necessary general utilities systems such as sewage disposal, gas, electricity, and water constructed at Government expense.

To the extent that such items as the construction of walks, improvement of grounds, etc., are essential to the completion of housing units of the type contemplated by various naval appropriation acts, the cost thereof should be included in computing the maximum unit costs specified in said acts.