Executive Order No. 5865, dated June 27, 1932, prescribes regulations for carrying into effect the provisions of section 20 of the Pay Act of June 10, 1922 (42 Stat. 632), as amended by section 6 of the act of July 2, 1926 (44 Stat. 782; U. S. C. 29), relative to increased pay for participation in frequent and regular aerial flights.

The term "aircraft" is defined by the National Advisory Committee for Aeronautics (Report No. 474, Nomenclature for Aeronautics, 1940) as follows: "Any weight-carrying device designed to be supported by the air, either by buoyancy or by dynamic action."

The term "glider" as used in aeronautics is defined in Webster's New International Dictionary, 1938, thusly:

"A form of aircraft similar to an airplane, but without any engine."

The term "aircraft" as thus defined would appear to include gliders, and a qualified glider pilot would therefore be considered as a "qualified aircraft pilot." The Navy Department accordingly proposes to include in the qualification of aircraft pilot the following designations:

"Student Naval Aviation Pilot (gliders).

Student Naval Aviator (gliders).

Naval Aviation Pilot (gliders).

Naval Aviator (gliders)."

Your decision is requested as to whether current naval appropriations may be considered legally available for payment of aviation pay to aircraft pilots who may be designated as Student Naval Aviation Pilot (gliders), Student Naval Aviator (gliders), Naval Aviation Pilot (gliders), or Naval Aviator (gliders), provided the other conditions entitling them to flight pay are met.

The appropriation for the Navy Department for the fiscal year 1942 (Public No. 48 at page 9), 55 Stat. 158, under "Bureau of Supplies and Accounts-Pay, Subsistence, and Transportation of Naval Personnel," subhead "Pay of Naval Personnel" is, so far as here material, as follows:

*

For pay and allowances prescribed by law of officers on the active list, including $2,769,010 for increased pay for officers of the Regular Navy for making aerial flights, * * pay of enlisted men as authorized by

pay,

law,

extra pay for men as authorized by law.

*

In all, for pay, subsistence, and transportation of naval personnel, Naval Reserve aviation officers on active duty, and members of the Naval Reserve when called to active duty in time of war or during the existence of a national emergency declared by the President

In view of these provisions of law there is perceived no objection to the Navy Department including in the qualification of aircraft pilot the four designations indicated, and, if otherwise correct, payments of additional aviation pay will be passed to credit in the accounts of disbursing officers, where appointment and detail has been made as provided by the Executive order of June 27, 1932, and where the other conditions entitling to flight pay are shown to have been met.

(B-18304)

TRAVELING EXPENSES-ARMY OFFICERS-SHORE EXPENSES UPON TERMINATION OF TRAVEL-BY-TRANSPORT STATUS

Where the travel-by-transport status of an Army officer was terminated upon arrival of the transport at a port of the United States due to suspected contagious disease, and travel to the officer's new station was completed by rail, he is not entitled to reimbursement for any shore expenses, such as subsistence, incurred between the date of debarkation and the date of departure by rail for the new station.

Assistant Comptroller General Elliott to Lt. Col. E. F. Ely, U. S. Army, October 22, 1941:

There has been considered your request of June 12, 1941, for decision whether payment is authorized on eight vouchers transmitted therewith, constituting the claims for actual subsistence expense during delay in San Francisco, Calif., of certain Army officers who arrived at San Francisco March 12, 1941, on the United States Army Transport Republic, but were not permitted to continue travel thence on the United States Army Transport Leonard Wood, because of physical disability. The Superintendent, Army Transport Service, Fort Mason, certified April 2, 1941, as follows:

Passengers arriving at this port via USAT "Republic" and entitled to water transportation east bound were not allowed to board the USAT "Leonard Wood" until certified by the port surgeon. Every passenger ex "Republic" was required to show a negative reaction to a laboratory examination for the presence of the dysentery bacillus. Certain passengers showing positive reactions to above-mentioned test and lacking the port surgeon's certificate were denied transportation on the transport in question.

Maj. John M. Burdge, Jr., Field Artillery, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 23, 1941, in the sum of $47.70. He was placed on temporary duty at Headquarters Ninth Corps Area, effective March 23, 1941. Radiogram from The Adjutant General of the Army to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorized overland travel by rail to his new station, Fort Bragg, N. C.

Maj. George E. Burritt, Field Artillery, United States Army, claims reimbursement of travel expense incurred at San Francisco from March 12 to 23, 1941, in the sum of $42.09. He was placed on temporary duty at Headquarters Ninth Corps Area, effective March 23, 1941. Radiogram from The Adjutant General of the Army, to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorized overland travel by rail to his new station, Fort Bragg, N. C.

Capt. Carl R. Feldmann, Air Corps, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 21, 1941, in the sum of $33.75. His status from the last date above indicated to March 23, 1941, on which date it appears he was placed on temporary duty at Headquarters Ninth Corps Area, is not shown. Radiogram from The Adjutant General of the Army to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorizes overland travel by rail to his new station, Bolling Field, D. C.

Capt. Charles D. Hartman, Jr., Field Artillery, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 22, 1941, in the sum of $32. Radiogram

from The Adjutant General of the Army, to the Superintendent, Army Transport Service, Fort Mason, dated March 25, 1941, authorized overland travel by rail to his new station, Fort Benning, Ga.

Capt. Frederick O. Hartel, Infantry, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 26, 1941, in the sum of $106.85. Radiogram from The Adjutant General of the Army to the Commanding General, San Francisco Port of Embarkation, dated March 26, 1941, authorized overland travel by rail to his new station, Camp Stewart, Ga.

Maj. Adolphus R. McConnell, Air Corps, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 23, 1941, in the sum of $55.25. He was placed on temporary duty at Headquarters Ninth Corps Area, effective March 23, 1941. Radiogram from The Adjutant General of the Army to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorized overland travel by rail to his new station, Maxwell Field, Ala.

Capt. Selwyn D. Smith, Jr., Field Artillery, United States Army, claims reimbursement of travel expenses at San Francisco, from March 12 to 23, 1941, in the sum of $46.35. He was placed on temporary duty at Headquarters Ninth Corps Area, effective March 23, 1941. Radiogram from The Adjutant General of the Army to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorized overland travel by rail to his new station, Fort Bragg, N. C. Maj. Robert F. Travis, Air Corps, United States Army, claims reimbursement of travel expenses incurred at San Francisco from March 12 to 21, 1941, in the sum of $37.10. Radiogram from The Adjutant General to Captain (now Major) Travis, dated March 20, 1941, authorized him to report to the Commanding General, Ninth Corps Area, for temporary duty awaiting sailing of first transport having available space. Radiogram from The Adjutant General of the Army to the Commanding General, Ninth Corps Area, dated April 1, 1941, authorized overland travel by rail to his new station, MacDill Field, Florida.

It appears that the travel by these officers, commenced by transport from Honolulu on the United States Army Transport Republic, was scheduled to be continued from San Francisco to New York via the United States Army Transport Leonard Wood, and that under normal conditions these passengers would have been allowed to board the latter transport upon disembarking from the former, but due to an epidemic of dysentery on the Republic at the time of the vessel's arrival at San Francisco no through passengers were permitted to board the connecting transport until certified as free from the disease by the Port Surgeon. The travel-by-transport status of

these officers having been terminated at San Francisco due to suspected disease which barred a continuation of such mode of transportation, and having been directed to proceed from that port by rail, their travel-by-transport status was terminated upon disembarking from the Republic, and they are not entitled to any shore expenses at port of debarkation. Act of June 12, 1906, 34 Stat. 246, 247, 10 U. S. Code 748. You are advised payment is not authorized on the vouchers which will be retained in this office.

(B-20641)

CLOTHING-UNIFORMS-FLEET RESERVE

The right under title III, section 303, of the Naval Reserve Act of 1938 to an issue of uniforms, etc., upon first reporting for active duty in time of war or national emergency is limited to members of the components of the Naval Reserve mentioned in the heading of said title III, namely, the Organized Reserve, the Merchant Marine Reserve, and the Volunteer Reserve, and, therefore, members of the Fleet Reserve are not entitled to the issue of uniforms, etc., provided therein.

Assistant Comptroller General Elliott to the Secretary of the Navy, October 22, 1941:

Reference is made to your letter of September 19, 1941, requesting decision on the question whether enlisted men of the Fleet Reserve (class F-2) of the Naval Reserve are "entitled to an issue of uniforms upon first reporting for active duty in time of war or national emergency, in the same manner as now authorized to be issued to other enlisted members of the Naval Reserve under provisions of section 303 of the Naval Reserve Act of 1938 (52 Stat. 1181; 34 U. S. C., Supp. V, sec. 855 b) and instructions issued pursuant thereto, as set forth in article H-8705, Bureau of Navigation Manual."

Section 303 of the Naval Reserve Act of 1938, is as follows:

In time of peace midshipmen, merchant marine cadets, nurses, and enlisted men of the Naval Reserve may be issued articles of uniform, bedding, and equipment in accordance with regulations to be prescribed by the Secretary of the Navy: Provided, That upon first reporting for active duty in time of war or national emergency enlisted men of the Naval Reserve may be issued such additional articles as are required to give them the same outfit as is authorized for enlisted personnel of the Regular Navy upon first enlistment, and midshipmen, merchant marine cadets, and nurses shall be issued such additional articles as the Secretary of the Navy may prescribe.

Section 1 of the same act abolished the Naval Reserve established under the act of February 28, 1925, 43 Stat. 1080, and created and established in lieu thereof a Naval Reserve consisting of the Fleet Reserve, the Organized Reserve, the Merchant Marine Reserve, and the Volunteer Reserve. Title III of the Naval Reserve Act of 1938, under which section 303 is included, is headed as follows:

"TITLE III-PROVISIONS APPLICABLE ONLY TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE"

Certain opinions of the Judge Advocate General of the Navy and the Attorney General of the United States, which you deem pertinent to the question presented, are referred to in your letter as follows: your attention is invited to the fact that the Judge Advocate General of the Navy, in an approved opinion dated March 31, 1941, stated that the caption of title III of the Naval Reserve Act of 1938 "cannot be given controlling effect as limiting the scope of explicitly worded enactments in the body of said title."

On this same point attention is further invited to an opinion rendered by the Attorney General to the Secretary of the Navy May 15, 1941, to the effect that there was no legal objection to the order of the Secretary of the Navy transferring an officer of the Fleet Reserve to the honorary retired list established by section 309 of the Naval Reserve Act of 1938.

The subject of title III was enacted by the Congress with the other provisions of the act. It is possible that some provisions appearing in title III include members of the Naval Reserve other than members of the Organized Reserve, the Merchant Marine Reserve and the Volunteer Reserve; but the words enacted in defining the subject matter of title III must be given the effect clearly imported by the words used where they are restrictive, as here, and the particular provision considered was intended to apply only to the Organized Reserve, Merchant Marine Reserve, and Volunteer Reserve.

The enlisted men of the Fleet Reserve created by the Naval Reserve Act of 1938, all are men with at least four years' prior service in the Regular Navy. The law authorizes the issuance of only one clothing outfit to an enlisted man of the Regular Navy, and when he has received that one outfit in his first enlistment he is not entitled to any further issuance of clothing at Government expense, regardless of the number of times he reenlists in the Regular Navy, and section 303 of the act gives to the members included within its terms only "the same outfit as is authorized for enlisted personnel of the Regular Navy upon first enlistment." The Chief of the Bureau of Navigation in his letter of September 10, 1941, which you forwarded, states that the regulations issued under the Naval Reserve Act of 1938 have not provided, and do not provide, for such an issue to any member of the Fleet Reserve.

In the report of the Committee on Naval Affairs, House of Representatives (Rept. No. 2465, 75th Cong. 3d Sess.), the scope and purpose of section 303 of the Naval Reserve Act were explained as follows:

Section 303 provides that enlisted members of the Organized Merchant Marine and Volunteer Reserves may be issued uniforms, bedding, and equipment as prescribed by the Secretary of the Navy. It is essentially the same as section 13 of existing law (U. S. C., title 34, sec. 761; 43 Stat. 1083) except that instead of being given a complete new and additional outfit when first reporting for active duty in time of war, they are given only such additional items as are required to complete the outfit already furnished them.