as well as under other similar projects, must be taken into consideration and included in the cost of the housing units under the limitations referred to in your letter.

(B-18699)

PAY-ACTIVE DUTY-RETIRED OFFICERS

A chief warrant officer, appointed as such after July 1, 1922, who, upon retirement under the act of May 13, 1908, was entitled to count prior service as an enlisted man and warrant officer which he could not count on the active list, is not entitled, upon recall to active duty, to full pay based on his retired pay but only to such pay and allowances as would be payable to any other commissioned warrant officer of the Navy appointed after June 30, 1922, whose record of active service was the same.

Assistant Comptroller General Elliott to the Secretary of the Navy, August 25, 1941:

There has been received your letter of July 8, 1941, transmitting a letter from the Paymaster General of the Navy, dated June 30, 1941, as follows:

Reference:

(a) Act of May 13, 1908 (35 Stat. 128) as amended by the act of May 30, 1908 (35 Stat. 501).

(b) Paragraph 12 section 1 of the act of June 10, 1922, as amended by the act of February 16, 1929 (45 Stat. 1186).

(c) Decision of the Comptroller General A-67898 dated August 11, 1936 (article 2142-15 Bureau of Supplies and Accounts Memoranda).

Enclosure:

(A) Copy of BuNav letter Nav-324-RES 10156 dated November 3, 1925. (B) BuNav letter 10156-135 Nav-327-MK dated April 23, 1941.

1. Boatswain Raymond R. Smith, USN, Retired, was appointed a Chief Boatswain from February 12, 1923, at which time he had prior service for pay purposes under the act of June 10, 1922, amounting to 4 years 4 months and 16 days. The record of Chief Boatswain Smith was certified as creditable during first 6 years' commissioned service under the provisions of the act of June 10, 1922, on November 10, 1925, but no certificate of creditable record was issued under the provisions of the act of February 16, 1929, after he completed 10 years' commissioned service.

2. Chief Boatswain Smith was transferred to the retired list, upon his own application, after completion of 30 years' service, under the provisions of the act of May 13, 1908, from October 1, 1933, at which time his service for pay purposes on the active list under the act of June 10, 1922, amounted to 15 years and 4 days. On September 30, 1933, he was entitled to active duty pay of $208.33 per month, computed as the pay of a chief warrant officer during first 10 years' commissioned service, with creditable record, and over 15 years' service for longevity pay purposes. He was advanced to the rank of Lieutenant on the retired list from October 1, 1933, pursuant to the provisions of the act of June 21, 1930 (46 Stat. 793).

3. Pursuant to the provisions of the act of May 13, 1908, Chief Boatswain Smith upon retirement was entitled to 4 of the highest pay of his grade. The Comptroller General in decision of August 11, 1936, held that:

"Statutes giving the highest pay of his grade or the highest retired pay of his grade have been held to apply to the pay grade of the officer and to include a maximum credit for length of service."

Under the above interpretation Chief Boatswain Smith, in computing his pay on the retired list, was entitled to count prior service as an enlisted man and warrant officer which he could not count on the active list. Since retirement he has been credited with retired pay of $187.50 per month, computed as 4 of the active duty pay of a chief warrant officer during first 10 years' commis

sioned service, with creditable record, and over 30 years' service for longevity pay purposes.

4. Lieutenant Smith has been called to active duty and it is recommended that a decision be obtained from the Comptroller General as to the rate of pay and allowances to which he is entitled on the active list.

The provision of law under which the retired pay of Lieutenant (Chief Boatswain) Raymond R. Smith was computed is contained in the act of May 13, 1908, 35 Stat. 128, 34 U. S. C. 383, which provides: * * When an officer of the Navy has been thirty years in the service, he may, upon his own application, in the discretion of the President, be retired from active service and placed upon the retired list with three-fourths of the highest pay of his grade: * *

The above-quoted provision is specifically applicable to the retirement, and to the retired pay incident thereto, of officers of the Navy, and has no effect whatever upon the active duty pay of such officer when recalled to active duty. Their active duty pay and allowances are governed and determined by other provisions of law separate and distinct from the retirement statute and the application of the latter is clearly unauthorized in the computation of such active duty pay and allowances.

The act of June 21, 1930, 46 Stat. 793, under which the officer was advanced to the rank of lieutenant on the retired list did not authorize pay of that rank. Section 17 of the act of June 10, 1922, as amended, 37 U. S. C. 26, as further amended by the act of June 25, 1941, Public, No. 132, 77th Congress, 55 Stat. 263, provides that retired officers of the Navy shall, when on active duty, receive full pay and allowances. The only authorized method for computing the full pay and allowances of a retired officer recalled to active duty is to be found in the statutes governing the active duty pay and allowances of officers on the active list, it appearing obvious that the retirement pay of an officer and the specific retirement act under which he happens to have been retired can have no controlling effect upon his active duty pay, unless retirement involved, also, an advancement in rank other than honorary.

Section 1 of the act of February 16, 1929, 45 Stat. 1186, 37 U. S. C. 5, provides in pertinent part:

Commissioned warrant officers with creditable records on the active list shall receive pay as follows: During the first ten years of commissioned service, the pay of the second period; after ten years of commissioned service, the pay of the third period; after 20 years of commissioned service the pay of the fourth period;

The eleventh paragraph of section 1 of the act of June 10, 1922, 42 Stat. 625, 37 U. S. C. 4, provides, in part:

For officers appointed on and after July 1, 1922, no service shall be counted for purposes of pay except active commissioned service under a Federal appointment and commissioned service in the National Guard when called out by order of the President.

It appearing from the record presented that the retired chief warrant officer upon date of recall to active duty had been issued no certificate of creditability of record after the completion of 10 years' commissioned service under the act of February 16, 1929, his active duty pay should be adjusted upon the basis of the second period, increased by 25 per centum as an officer appointed on or after July 1, 1922, with over 15 years' commissioned service, $2,000 per annum, plus $500 increase for length of service. In other words, his pay and allowances would be exactly the same as that of any other commissioned warrant officer of the Navy appointed after June 30, 1922, whose record of active service was the same.

(B-18851)

TRANSPORTATION-DEPENDENTS-NAVAL RESERVE OFFICERSTEMPORARY FIRST DUTY STATION

The appropriation made by the Fourth Supplemental National Defense Appropriation Act, 1941, approved March 17, 1941, for the "transportation of dependents of retired and Reserve officers when ordered to active is avail

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duty (other than training) and upon release therefrom able for the transportation of dependents of such officers only in connection with permanent movements of the officers, and, therefore, is not available for the transportation of the dependents of a Naval Reserve officer to his first duty station which was a temporary one.

Assistant Comptroller General Elliott to the Secretary of the Navy, August 25, 1941:

I have your letter of July 15, 1941, as follows:

There is forwarded herewith for your consideration a letter from the Bureau of Navigation, Navy Department, dated July 10, 1941, transmitting claim of Ensign Thomas A. McClelland, C-V (S), U. S. Naval Reserve, for payment of cost of travel of dependents from Englewood, Colorado, to Annapolis, Md.

Title VI, Naval Appropriation Act for the fiscal year 1941, as contained in the Fourth Supplemental National Defense Appropriation Act, 1941, approved March 17, 1941, (Public Law 13, 77th Congress), provides the necessary funds under the "Bureau of Supplies and Accounts," for the "transportation of dependents of retired and Reserve officers ** * when ordered to active duty (other than training) and upon release therefrom."

*

The question arises as to whether payment of the enclosed claim is authorized under the terms of the above quoted language from the Act of March 17, 1941, without regard to the existing instructions on the subject of reimbursement for travel of dependents as contained in Article 2505-6, U. S. Naval Travel Instructions.

In connection with the attached claim, your decision is requested as to whether transportation of dependents of this Reserve officer to his first duty station is authorized under the provisions of the Act of March 17, 1941, supra, irrespective of whether the duty involved is temporary or permanent in nature, so long as the duty is not for training purposes, or whether transportation of dependents under said act is authorized only to the first permanent duty station.

In view of the number of similar cases involved, your early decision in the present case will be appreciated.

Section 12 of the act of May 18, 1920, 41 Stat. 604, the basic statutory conditions under which the transportation of the dependents

of military and naval personnel at Government expense is authorized. reads, in pertinent part, as follows:

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hereafter when any commissioned officer, noncommissioned officer of the grade of color sergeant and above, including any noncommissioned officer of the Marine Corps of corresponding grade, warrant officer, chief petty officer, or petty officer (first class), having a wife or dependent child or children, is ordered to make a permanent change of station, the United States shall furnish transportation in kind from funds appropriated for the transportation of the Army, the Navy, the Marine Corps, the Coast Guard, the Coast and Geodetic Survey and the Public Health Service to his new station for the wife and dependent child or children: [Italic supplied.]

By section 12 of the act of June 10, 1922, 42 Stat. 631, provision was made for payment of money equalling commercial transportation costs in lieu of the transportation in kind authorized by the abovequoted section, when the travel shall have been completed.

In view that section 12 of the act of May 18, 1920, supra, in plain terms provides for transportation of dependents only on permanent change of station, the decisions of this office, without exception, have refused to authorize or approve any expenditure of public funds in connection with the transportation of the dependents of service personnel to or from temporary duty stations under appropriations such as the one in the Naval Appropriation Act for the fiscal year ending June 30, 1941 (act of June 11, 1940, 54 Stat. 265, 276), which provides a specific sum for "transportation of dependents of officers and enlisted men." However, you express some doubt as to the applicability of this general rule to reserve officers ordered to active duty by reason of the different appropriating language in the Fourth Supplemental National Defense Appropriation Act, 1941 (act of March 17, 1941, 55 Stat. 34). This act, making appropriations "supplemental and in addition to the appropriations in the Naval Appropriation Act for the fiscal year ending June 30, 1941," makes an appropriation in language as follows:

transportation of dependents of retired and Reserve officers and of retired and Reserve enlisted men (of grades entitled to transportation for dependents in the Regular Navy) when ordered to active duty (other than training) and upon release therefrom

Prior to the enactment of the above provision it was held in decision to the Secretary of the Navy dated January 13, 1941, 20 Comp. Gen. 363, that transportation of dependents of Reserve or retired officers from their homes to their first duty stations was not authorized. See, also, 20 Comp. Gen. 71, with respect to Army Reserve officers. In the decision of January 13, 1941 (20 Comp. Gen. at page 367), it was suggested that, under the strict language of the law, officers of the Naval Reserve and Marine Corps Reserve were not entitled to

transportation of dependents. Also in that decision it was stated that section 3 of the Naval Appropriation Act of June 24, 1935, 49 Stat. 421, providing that the words "permanent change of station" as used in section 12 of the act of May 18, 1920, as amended, shall be held to include the home of an officer or man to which he is ordered in connection with retirement, goes no further than its plain language imports and the words "permanent station" as used in the 1920 act do not include the home of an officer except where he is ordered thereto in connection with his retirement. In view of these and related holdings which preceded the enactment of the Fourth Supplemental National Defense Appropriation Act, 1941, and the settled policy of the Congress, it seems clear that the purpose of the above-quoted provision of that act was merely to authorize transportation of the dependents of the persons and in the circumstances therein described as provided by the basic law of May 18, 1920, and not to authorize the transportation of dependents of retired and Reserve personnel under new or different conditions than those prescribed in the basic law.

As has been stated above, section 12 of the act of May 18, 1920, does not provide for transportation of dependents to or from temporary stations and the language of that section shows that it is not the purpose of the Congress to provide transportation for dependents in connection with every movement of an officer; but only if the movement can be classed as permanent.

Section 6, article 2505, Navy Travel Instructions, dealing with transportation of dependents, provides, in part, as follows:

6. Ordered to duty under instruction. It is a permanent change of station only when the course at one place is scheduled for five months or over.

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Ensign McClelland's orders dated April 15, 1941, directed him to report to the Superintendent, United States Naval Academy, on or before April 26, 1941, for a special course in communications. In the letter of the Bureau of Navigation to you under date of July 10, 1941, it is stated that the scheduled length of this course is four months. In view of the foregoing, it appears the officer's first assignment was to a temporary station and the appropriation in the Fourth Supplemental National Defense Appropriation Act of 1941 is not available to pay for the transportation of the dependents of Ensign McClelland for travel which they performed in connection with his assignment to a temporary station by orders of April 15, 1941.