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14, 1936 A-76187; (compare 2 Comp. Gen. 436; 3 id. 24, cited by you); also, 4 Comp. Gen. 521; 19 id. 501, 503, involving employment during leave of absence with pay; and 13 Comp. Gen. 248 involving temporary employments or positions.
Accordingly, questions (1) and (2) are answered in the negative, making it unnecessary to answer question (3).
TRANSPORTATION-MOTOR VEHICLE SHIPMENTS-EFFECT OF ROAD, ETC., CONDITIONS ON RATE COMPUTATIONS
Where the provisions of the applicable motor carrier tariff require that for ratemaking purposes distances are to be computed via the "shortest general route" between origin and destination, there is no authority for computing the applicable rate via a longer route which the carrier may have used because of weather or road conditions prevailing over the shortest route. Comptroller General Warren to the Klamath Falls Transfer & Storage Co., July 15, 1941:
As requested in your letter of April 11, 1941, further consideration has been given the matter of the charges allowed in settlement T-185343, April 7, 1941, upon your claim for charges for the transportation of household goods and personal effects, 3,445 pounds, from Klamath Agency, Oreg., to Hoopa, Calif., under bill of lading I-868403, March 22, 1940.
You claimed, per bill 4691, $121.61 for this service on the basis of a rate of $3.53 per 100 pounds, based apparently on a distance of 360 miles via a route through Ashland and Rogue River, Oreg., Crescent City and Arcata, Calif. You were paid $102.66 by G. F. Allen, chief disbursing officer, on voucher 1321674, January 29, 1941, on the basis of a rate of $2.98 per 100 pounds based on a distance of 280 miles via a route through Mount Hebron, Weed, Redding, Douglas City, Lewiston, and Junction City, Calif. You claimed, per bill 4691-A, the difference of $18.95 for reason stated as follows:
The road to the Hoopa Reservation, from Redding over the Trinity Mountains and through Junction City and Douglas City is quite impassable as anyone who knows this country could tell you, and we feel that we earned the additional $18.95 and are entitled to this amount.
In settlement T-185343, dated April 7, 1941, you were allowed $8.27 additional being the difference between $102.66 and an amount, $110.93, computed on the basis of a rate of $3.22 per 100 pounds on the actual weight of 3,445 pounds for a distance of 315 miles via the route through Weed, Redding, etc. Upon further consideration of the matter after receipt of your letter dated April 11, 1941, it now appears that the situation is as follows:
Under the provisions of Household Goods Carriers' Bureau Tariff No. 9, MF-I. C. C. No. 15, the charge for the transportation of this shipment is for computation at the applicable rate provided therein for a "Class 1" shipment. This tariff does not name a specific rate from Klamath Agency, Oreg., to Hoopa, Calif., but does name rates based on mileage and in this situation tariff rule 12 provides:
* ** * where rates are based on mileage, the distance or mileage shall be that shown in Mileage Guide No. 3, Household Goods Carriers' Bureau MF-I. C. C. No. 11 *
Rule 1 of the mileage guide provides that mileages shall be determined from the mileage chart, the mileage maps, the vicinity maps, and the maps of the individual States, in the order named. Neither Klamath Agency nor Hoopa is shown on either the mileage chart, the mileage maps, or the vicinity maps, provided for use in connection with Mileage Guide No. 3 and in this situation the latter provides, in rule 7, that "the distance shall be determined as provided by * rule 6, with the addition or deduction of the distance indicated on the maps of individual States * between the points not shown on the mileage map and the nearest point on the shortest general route or extension thereof which is shown on the mileage map [Italics supplied.]
Klamath Agency is shown on the Rand McNally 1940 map of Oregon as being between Fort Klamath and Modoc Point, and Hoopa is shown on the Rand McNally 1940 map of California as being between Weitch pec and Willow Creek. These maps show distances of 12 miles between Klamath Agency and Modoc Point, 13 miles between Willow Creek and Hoopa, and 11 miles between Weitchpec and Hoopa. Modoc Point and Weitchpec are both shown on the "Mileage Map" (section 15) which indicates the distance between these two points to be 208 miles via a route through Klamath Falls, Dorris, Mount Hebron, Little Shasta, Montague, Yreka, Fort Jones, Etna, and Somesbar. This distance appears to be the shortest distance between Modoc Point and Weitchpec as indicated by "fine black lines" on the mileage map, and the mileage guide provides in rule 6 "If [as here] the shortest general route from point of origin to destination or an extension of that route does not pass through two starred points but both point of origin and destination are shown on the mileage map, then the distance between them shall be determined by adding together the distances as shown on the mileage map, from point to point along the route." [Italics supplied.]
For the purpose of determining the rate making distance from Klamath Agency to Hoopa, Modoc Point and Weitchpec are to be treated as points nearest the points of origin and destination, respectively, via the "shortest general route" which rule 3 of the mileage guide defines as "the shortest route indicated by fine black lines on
the mileage maps." Under the provisions of rule 7 of the mileage guide the distance of 12 miles from Klamath Agency to Modoc Point and the distance of 11 miles from Weitchpec to Hoopa are to be added to the distance of 208 miles via the "shortest general route" from Modoc Point to Weitchpec resulting in a through distance of 231 miles to be used as the rate making distance for the purpose of determining the rate from Klamath Agency to Hoopa.
Under the provisions of Tariff No. 9 (section II) the "Class 1" rate for 3,445 pounds for a rate making distance of 231 miles was $2.64 per 100 pounds which would result in a charge of $90.95 but under the provisions of tariff rule 34-A as shown in tariff supplement 10 the charge on this basis must not "exceed the charge as would apply on the same shipment under the next greater unit of weight at rate applicable to the next greater unit of weight," namely, 3,501 pounds at $2.59 per 100 pounds, or $90.68. You are a party to both Tariff No. 9 and Mileage Guide No. 3. There has been found no tariff provision authorizing a different method of computation as being dependent upon weather or road conditions and, accordingly, no reason is apparent why the provisions of these publications should not be applied to determine the applicable charge on this shipment notwithstanding that the movement may have been via some route other than that via which the tariff rules provide that the distance shall be computed for the purpose of determining the applicable rate between shipping point and destination. Upon the record as it now appears the applicable charge for this service is $90.68 and as you have been paid $110.93 you should remit $20.25 within a reasonable time. Otherwise there will be for consideration adjustment by appropriate debit in the settlement of an open account.
QUARTERS ALLOWANCE-DEPENDENTS EFFECT OF PAY RESTRICTION DURING FIRST FOUR MONTHS OF FIRST ENLISTMENT While a Navy enlisted man of the third grade serving in his first enlistment is entitled, by reason of the restriction in section 12 (a) of the Selective Training and Service Act of 1940, to only $21 per month during the first four months of his service in such first enlistment, the restriction is on the base pay and in no way affects his rating nor his right as an enlisted man of the third grade to the quarters allowance for dependents authorized by the act of October 17, 1940.
Assistant Comptroller General Elliott to Lt. Comdr. M. C. Roberts, U. S. Navy, July 15, 1941:
There has been considered your letter of May 23, 1941, requesting decision as to whether Robert Harold Rush, radioman, second class, United States Navy, is entitled to money allowance for quarters for dependents during the first 4 months of his service in his first
enlistment in the Regular Navy while his pay is restricted to $21 (a) of the Selective Training and Service Section 12 (a) provides:
per month by section 12 Act of 1940, 54 Stat. 895.
The monthly base pay of enlisted men of the Army and the Marine Corps shall be as follows: Enlisted men of the first grade, $126; enlisted men of the second grade, $84; enlisted men of the third grade, $72; enlisted men of the fourth grade, $60; enlisted men of the fifth grade, $54; enlisted men of the sixth grade, $36; enlisted men of the seventh grade, $30; except that the monthly base pay of enlisted men with less than four months' service during their first enlistment period and of enlisted men of the seventh grade whose inefficiency or other unfitness has been determined under regulations prescribed by the Secretary of War, and the Secretary of the Navy, respectively, shall be $21. The pay for specialists' ratings, which shall be in addition to monthly base pay, shall be as follows: First class, $30; second class, $25; third class, $20; fourth class, $15; fifth class, $6; sixth class, $3. Enlisted men of the Army and the Marine Corps shall receive, as a permanent addition to their pay, an increase of 10 per centum of their base pay and pay for specialists' ratings upon completion of the first four years of service, and an additional increase of 5 per centum of such base pay and pay for specialists' ratings for each four years of service thereafter, but the total of such increases shall not exceed 25 per centum. Enlisted men
of the Navy shall be entitled to receive at least the same pay and allowances as are provided for enlisted men in similar grades in the Army and Marine Corps.
The act of October 17, 1940, 54 Stat. 1205, provides:
That each enlisted man of the first, second, or third grade of the Army of the United States in the active military service of the United States, having a dependent as defined in sections 8 and 8a, title 37, United States Code, shall, under such regulations as the President may prescribe, be entitled to receive, for any period during which public quarters are not provided and available for his dependent, the money allowance for quarters authorized by law to be granted to each enlisted man not furnished quarters in kind.
Executive Order No. 8688, dated February 19, 1941, provides:
By virtue of and pursuant to the authority vested in me by the act of October 17, 1940, Public, No. 872, 76th Congress, I hereby prescribe the following regulations governing the granting of allowances for quarters to enlisted men of the first, second, and third grades of the Army of the United States in the active military service of the United States having dependents, for periods during which public quarters are not provided and available for their dependents:
1. Definitions.-a. The term "dependent" as used herein shall include at all times and in all places a lawful wife and unmarried children under twenty-one years of age. It shall also include the mother of the enlisted men, provided she is in fact dependent on him for her chief support (U. S. C., title 37, sec. 8).
b. The term "children" as used in subdivision a above, shall be held to include legitimate children, stepchildren, and adopted children, where such legitimate children, stepchildren, or adopted children are in fact dependent upon the person claiming dependency allowance (U. S. C., title 37, sec. 8a).
2. Payments.-a. Effective as of October 17, 1940, each enlisted man of the first, second, or third grade of the Army of the United States, other than Philippine Scouts, in the active military service of the United States who is not entitled to a money allowance for quarters in a nontravel status under the provisions of section 11 of the act of June 10, 1922, 42 Stat. 630 (U. S. C., title 37, sec. 19), and who has a dependent as defined above, shall be entitled to receive for any period during which public quarters are not provided and available for his dependent, the money allowances for quarters prescribed for enlisted men in a nontravel status by Executive Order No. 7293, of February 14, 1936, or any amendments thereto, issued under section 11 of the said act of June 10, 1922.
b. Philippine Scouts, under the conditions of subdivision a above, shall be entitled to receive actual expenses for lodging not to exceed fifty cents a day. It is stated that Robert Harold Rush was discharged from class V-3 reserve on March 10, 1941, for the purpose of enlisting in the
Regular Navy and that on the following day he so enlisted and was taken up as a radioman, second class. In decision dated April 2, 1941, B-15439, 20 Comp. Gen. 596, it was held that an enlisted man of the Regular Navy whose only prior enlistment was in the Naval Reserve is not in his second enlistment period within the meaning of section 12 (a) of the Selective Training and Service Act of 1940, and hence is entitled to only $21 per month base pay during the first 4 months of his service in the Regular Navy. However, this is a restriction as to base pay and in no way affects the enlisted man's rating. The rating of radioman, second class, places Rush in the third grade and as an enlisted man in such grade he is entitled to the benefits authorized by the act of October 17, 1940, supra, and the Executive Regulations dated February 19, 1941, quoted above, provided, of course, that he can establish (1) that he has a dependent as defined in sections 8 and 8a, title 37, U. S. Code; (2) that he is not personally entitled to the money allowance for quarters in a nontravel status under the provisions of section 11 of the act of June 10, 1922, 42 Stat. 630; and (3) that for the period of his claim public quarters were not provided and available for his dependent.
ANNUAL AND SICK LEAVE ADVANCES-COMPENSATION ADJUSTMENT UPON SEPARATION FROM SERVICE
Exceptions to a general rule prescribed by law, or regulations having the force and effect of law, are required to be strictly construed.
The exceptions to the general rule in the Annual and Sick Leave Regulations that an employee must be charged for overdrawn annual and/or sick leave are required to be strictly constructed.
An employee who, although eligible for retirement for disability, voluntarily resigns from the service on account of disability without making application for retirement must refund the compensation received prior to separation from the service for advanced annual and sick leave.
Comptroller General Warren to the Secretary of Agriculture, July 15, 1941: I have your letter of June 23, 1941, as follows:
Mrs. Mary H. Hardie, assistant clerk, Farm Credit Administration, in order to regain her health, submitted her resignation to take effect as of the close of business March 31, 1941. Her resignation was accompanied by a certificate from her physician that she has been under his professional care since July 31, 1940, and he has advised her to refrain from work until she fully regains her health. Because of ill health, Mrs. Hardie was granted leave-without-pay effective August 1, 1940. Prior to that date she had been granted and used advanced sick and annual leave in excess of that earned to August 1, 1940.
Mrs. Hardie is subject to the provisions of the act establishing the Civil Service Retirement and Disability Fund; has had more than 5 years of allowable service; and accordingly would be eligible for disability retirement if her physical condition should be such that disability retirement could properly be granted under the Civil Service Retirement and Disability Act and pertinent regulations. She did not make application for such disability retirement, apparently in the belief that her physical condition would not be found to be such as to entitle her to disability retirement under that act.