(B-19438)

CLOTHING-UNIFORMS-NAVY ENLISTED MEN-RIGHTS ON

REENLISTMENT

A Navy enlisted man who received a full clothing outfit on first enlistment, and who was required to turn in all uniform outer clothing upon discharge prior to expiration of such enlistment, may not be considered as having refunded the value of such clothing within the meaning of the act of March 3, 1915, and, therefore, is not entitled under the act to a gratuitous issue of clothing upon reenlistment.

Assistant Comptroller General Elliott to the Secretary of the Navy, October 16, 1941:

I have your letter of August 4, 1941, requesting decision on the question whether a Navy enlisted man who was furnished an outfit of clothing upon first enlistment, and who was required to turn in such clothing when given an inaptitude discharge under "Honorable" conditions, is entitled to a gratuitous issue of clothing of the maximum value of $60 upon reenlistment.

Included in the correspondence accompanying your letter is a second indorsement of the Bureau of Supplies and Accounts, dated July 28, 1941, which is as follows:

Subject: Request for decision as to clothing to which enlisted men entitled during second enlistment in the Regular Navy.

Reference: (a) Act of March 3, 1915 (38 Stat. 932).

(b) Section 125 of the National Defense Act, June 3, 1916 as amended (10 U. S. Code 1393).

(c) Decision of the Comptroller of the Treasury dated September 29, 1917 (24 Comp. Dec. 191).

(d) Decision of the Comptroller General 6558 dated June 22, 1922 [1 Comp. Gen. 746] (Article 1431-3 Bureau of Supplies and Accounts Memoranda) (Selected Decisions).

(e) Decision of the Comptroller General A-13570 dated May 17, 1926 (Article 1431-3 Bureau of Supplies and Accounts Memoranda) (Selected Decisions). (f) Decision of the Comptroller General A-31088 dated March 29, 1930. (g) Article D-9120 Bureau of Navigation Manual.

(h) Naval Appropriation Act for the fiscal year 1941 approved June 11, 1940 (Public No. 588).

1. Allan Clifford Trafton, Apprentice Seaman, USN., enlisted December 12, 1940, and was given an inaptitude discharge under "Honorable" conditions from the Naval Training Station, Newport, R. I., on March 10, 1941. During his period of Naval Service he was issued articles of "outfit on first enlistment" amounting to $108.61 leaving a balance due on outfit at time of discharge of $4.14. Pursuant to the instructions contained in Article D-9120(1) Bureau of Navigation Manual, based on reference (b) as follows:

** That when an enlisted man is discharged otherwise than honorably, all uniform outer clothing in his possession shall be retained for military use, and, when authorized by regulations prescribed by the Secretary of War or the Secretary of the Navy, a suit of citizens outer clothing to cost not exceeding $15 may be issued to such enlisted man:

Trafton was required to turn in his outer garments and distinctive parts of the uniform previously issued to him and was furnished with a civilian outfit as authorized in the Naval Appropriation Act for the fiscal year 1941 under the heading "Pay, Subsistence, and Transportation of Naval Personnel." 2. The Act of March 3, 1915 (38 Stat. 932) provides:

"That hereafter the Secretary of the Navy is authorized to issue a clothing outfit to all enlisted men serving in their second enlistment who failed to receive an outfit of the value authorized by law on their first enlistment or who, having received such outfit, were required to refund its value on account of discharge prior to expiration of enlistment: Provided further, That the net cost

to the Government of clothing outfits furnished any one enlisted man shall not exceed $60."

3. The Comptroller General in decision of May 17, 1926 considered the right of an enlisted man who first enlisted on June 22, 1925, discharged for inaptitude (hernia) on August 14, 1925, reenlisted on December 28, 1925, to the benefits of the Act of March 3, 1915. At that time the value of the "outfit on first enlistment" was set as $100 and the man in question prior to discharge had been issued an outfit on first enlistment of the value of $89.65. No mention was made in the submission or the decision whether the man was required to turn in clothing upon discharge. The Comptroller General held that the man having received an outfit not less than $60 in value no additional allowance for clothing outfit may be made in second enlistment under the remedial provision of the Act of March 3, 1915.

4. The Comptroller of the Treasury in decision of September 29, 1917, held that:

"An enlisted man who has been discharged by purchase or by special order, and who upon such discharge has refunded the cost of clothing outfit, is entitled, upon reentry into the service on a second enlistment, to a new outfit, subject only to the condition that the total net cost of outfits furnished any one man shall not exceed $60. (Act of Mar. 3, 1915, 38 Stat. 932.)"

5. During his first enlistment Trafton was furnished with an outfit on first enlistment in excess of $60.00; he was not required to refund its value in cash, but in view of the fact that he was required to turn in his clothing on discharge, it is recommended that a decision be obtained from the Comptroller General as to whether he is entitled to gratuitous issue of clothing not to exceed $60.00 upon reenlistment.

Trafton is entitled to an issue of clothing in his second enlistment only if his case comes within the terms of the quoted act of March 3, 1915, 38 Stat. 932, 34 U. S. C. A. 917. That act authorizes the Secretary of the Navy to issue a clothing outfit to enlisted men serving in their second enlistment who (1) failed to receive an outfit of the value authorized by law on their first enlistment, or (2) who, having received such outfit, were required to refund its value on account of discharge prior to expiration of enlistment.

Since Trafton received an outfit on first enlistment valued at $108.61, his case does not fall within the first of these alternative conditions of the statute as construed in decision of May 17, 1926, A-13570, cited by the Bureau of Supplies and Accounts, supra; and his case does not fall within the second condition of the statute, as he may not be considered to have refunded the value of the clothing issued to him in his first enlistment merely because the clothing, or a part thereof, which he had worn during his first enlistment was retained for military use in compliance with statute.

(B-20973)

PERIODICALS PURCHASE AUTHORITY IMPLIED FROM
APPROPRIATION PURPOSE

Notwithstanding the restriction in section 3 of the act of March 15, 1898, against the purchase of periodicals, books of reference, etc., unless the appropriation shall specifically provide therefor, the cost of subscriptions to such periodicals as may be administratively determined to be indispensable-as distinguished from merely desirable or helpful-to the accomplishment of the purpose for which a specific appropriation has been made is a legal and proper charge against the appropriation, even though the appropriation makes no specific mention of periodicals, etc.

Comptroller General Warren to the Chairman, Board of Investigation and Research, October 16, 1941:

I have your letter of October 2, 1941, as follows:

Reference is made to our telephone conversation this afternoon relative to certain trade publications that are necessary in making our research of transportation conditions.

Traffic World, Railway Age, Official Railway Guide, Railway Equipment Register, Waterways Journal, Marine Journal, Wall Street Journal, Public Utilities Fortnightly, and Journal of Land and Public Utility Economics have current information that is necessary in our investigation and research for transportation. These are technical publications from our point of view. The Interstate Commerce Commission subscribes to a number of these publications and we were of the opinion that we could do likewise as they are necessary sources of information on traffic matters. However, we understand that a special provision is made in the appropriation bill for the Interstate Commerce Commission that is not embraced in the appropriation for this department for publications of this nature and for that reason there is some question as to whether we can subscribe to these publications.

As stated above the publications are necessary to enable the Board to perform the duties authorized under part I, title III, of the Transportation Act and we are of the opinion that same would be necessary expenses under the Appropriation Act. The numbers of subscriptions and prices of same desired by this department are as follows:

5 annual subscriptions, Traffic World__.

5 annual subscriptions, Railway Age..

1 annual subscription, Official Railway Guide__

1 annual subscription, Railway Equipment Register..

1 annual subscription, Waterways Journal__.

1 annual subscription, Marine Journal___

1 annual subscription, Wall Street Journal__.

1 annual subscription, Public Utilities Fortnightly.

Yearly rate

5.00

1 annual subscription, Journal of Land and Public Utility Economics____ We would thank you to advise whether we can subscribe to the above publications as necessary information for our Department.

Section 302 of the Transportation Act, approved September 18, 1940, 54 Stat. 953, prescribes the duties of the Board as follows:

(a) It shall be the duty of the Board to investigate

(1) the relative economy and fitness of carriers by railroad, motor carriers, and water carriers for transportation service, or any particular classes or descriptions thereof, with the view of determining the service for which each type of carrier is especially fitted or unfitted; the methods by which each type can and should be developed so that there may be provided a national transportation system adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense;

(2) the extent to which right-of-way or other transportation facilities and special services have been or are provided from public funds for the use, within the territorial limits of the continental United States, of each of the three types of carriers without adequate compensation, direct or indirect, therefor, and the extent to which such carriers have been or are aided by donations of public property, payments from public funds in excess of adequate compensation for services rendered in return therefor, or extensions of Government credit; and (3) the extent to which taxes are imposed upon such carriers by the United States, and the several States, and by other agencies of government, including county, municipal, district, and local agencies.

(b) The Board is further authorized, in its discretion, to investigate or consider any other matter relating to rail carriers, motor carriers, or water carriers, which it may deem important to investigate for the improvement of transportation conditions and to effectuate the national transportation policy declared in the Interstate Commerce Act, as amended.

The appropriation for the expenses of your Board found in the First Supplemental Defense Appropriation Act, approved August 25, 1941, Public, 247, 55 Stat. 682, is as follows:

Board of Investigation and Research: For all necessary expenses to enable the Board of Investigation and Research to perform the duties authorized under part 1 of title III of the Transportation Act of 1940, including personal services in the District of Columbia and elsewhere, traveling expenses, printing and binding, fiscal year 1942, $100,000.

Section 3 of the act of March 15, 1898, 30 Stat. 316, provides:

That hereafter law books, books of reference, and periodicals for use of any Executive Department, or other Government establishment not under an Executive Department, at the seat of Government shall not be purchased or paid for from any appropriation made for contingent expenses or for any specific or general purpose unless such purchase is authorized and payment therefor specifically provided in the law granting the appropriation.

I find that the appropriation for the Interstate Commerce Commission specifically provides for purchase and exchange of necessary books, reports, and periodicals, thus satisfying the requirements of the above act of 1898. The appropriation for your Board does not specifically mention periodicals, books of reference, or magazines. However, in 22 Comp. Dec. 317, the former Comptroller of the Treasury held that

Reference books or periodicals the purchase of which is not merely desirable but indispensable to the accomplishment, by an executive department, of a specific purpose for which a special appropriation has been made may be purchased from such appropriation, although not in terms provided for therein, notwithstanding the act of March 15, 1898.

See, also, 2 Comp. Gen. 133; decision A-17495, September 7, 1927; and decision A-22059, April 2, 1928. Consequently, I have to advise that the cost of subscriptions to such of the above-listed publications, if any, as the Board may determine to be indispensable—as distinguished from merely desirable or helpful-to the accomplishment of the purposes indicated in section 302 of part I of title III of the Transportation Act of 1940 may be regarded as a legal and proper charge under the appropriation here involved. However, in view of the plain terms of section 3 of the act of March 15, 1898, supra, and in the absence of any language in the appropriation specifically so providing, the use of said appropriation to pay for subscriptions to publications which are merely desirable or helpful to the Board in the performance of its duties is not authorized.

(B-20680)

DAMAGE CLAIMS-RIGHTS OF SUBROGEES

Claims by subrogees may be considered and allowed by the Postmaster General under the act of June 16, 1921, as amended, authorizing him to adjust and settle "any claim" for damages to person or property arising out of the operation of the Post Office Department where his award does not exceed $500, if such claims are based on circumstances that would create a legal

liability on the Government to pay the damage of the injured party were it not for the sovereign immunity of the Government from suit in such matters. An insurer under the workmen's compensation laws of California, including the State Compensation Insurance Fund, who pays or is obligated to pay compensation to an insured employee injured through the operation of the Post Office Department may be regarded as a claimant by subrogation under the act of June 16, 1921, as amended, authorizing the Postmaster General to adjust certain claims for damage arising as a result of the activities of the Post Office Department.

Comptroller General Warren to the Postmaster General, October 17, 1941: I have your letter of September 20, 1941, as follows:

This Department has under consideration a claim filed by the State Compensation Insurance Fund for the State of California as subrogee of Gilbert A. Benoit, an employee of the State belt railroad, who was injured in an accident involving a United States mail truck.

It has been the policy of the Department to decline to pay subrogation claims presented under the provisions of 5 U. S. C. 392, as amended-such policy being predicated upon the decision of your office reported in 6 C. G. 770. However, the attention of the Department has been called to the decision of your office reported in 19 C. G. 503, modifying 6 C. G. 770 in its application to subrogation claims arising out of accidents where the Government employee has been negligent.

The change in policy with respect to the handling of claims involving negligence on the part of a Government employee was predicated upon a construction of the act of December 28, 1922 (31 U. S. C. 215), by the Attorney General and the subsequent approval of that construction by Congress, the net effect of which was to indicate a Congressional intent that subrogation claims be approved where negligence was shown.

The case which formed the basis of the decision in 19 C. G. 503 is distinguishable from cases considered and settled under 5 U. S. C. 392, as amended, in that the latter does not require a finding of negligence on the part of the Government employee involved. Thus, claims for personal injuries or property damage may be allowed by the Department within the limits prescribed by law in instances where the said injuries or damage was brought about by a latent defect or under other circumstances not implying negligence on the part of the Government employee involved.

Before proceeding to an adjudication of the claim of the State of California covering compensation payments made to Benoit under the provisions of a State Employers' Liability Act, it will be appreciated if you will at an early date furnish this Department with a decision as to the allowability of subrogation claims under the act set forth in 5 U. S. C. 392, as amended; also whether such claims may be given favorable consideration whether or not there is a definite finding of negligence on the part of the Government employee involved.

That part of the act of June 16, 1921, 42 Stat. 63, which, as amended by the act of June 22, 1934, 48 Stat. 1207, appears as section 392 of title 5, U. S. C., referred to in your letter, provides:

When any damage is done to person or property by or through the operation of the Post Office Department in any branch of its service and such damage is found by the Postmaster General upon investigation to be a proper charge against the United States, the Postmaster General is invested with power to adjust and settle any claim for such damage when his award for such damage in any case does not exceed $500, and this authority shall hereafter be construed as extending to cases caused by the negligence of any officer or employee of the Post Office Department or Postal Service acting within the scope of his employment.

The law as originally enacted did not contain the express provision now contained therein relating to claims based on negligence. As originally enacted, it was general in character and related to any damages done to person or property by or through the operation of