Commerce in the amount of $100.00, he is advised that this expenditure was authorized under title 3, article 3 (a), paragraph 1R.

2. This approval was granted because it is the policy of the Atlas Powder Company to take membership in the Chamber of Commerce in the locality where they operate a plant or factory. The benefits which will be derived toward operation of this plant as a result of such membership include various services rendered which justify the membership cost. Already, the St. Louis Chamber of Commerce has been consulted and has furnished helpful action toward determining wage rates to be paid various operators, provided a list of hospitals, their capacities and their distances, in terms of time and mileage from the Weldon Spring Ordnance Works. It is highly probable that from time to time information of a similar nature will be requested of that organization toward the solution of the many problems confronting the operating contractor.

3. For this reason this invoice was approved for payment under the section of the contract cited in paragraph 1 above.

4. Certificate is therefore being placed on the reverse of the reimbursement voucher to the effect that this item is reimbursable under the paragraph of the contract shown above.

Also, in further reference thereto, it is stated in third indorsement, dated October 7, 1941, from the Office of the Chief of Ordnance, to the Chief of Finance, as follows:

1. The attached voucher covers reimbursement to the Atlas Powder Company, under contract No. W-ORD-482, for one year's membership dues in the St. Louis Chamber of Commerce.

2. Contract No. W-ORD-482 covers the construction and operation on a cost-plus-a-fixed-fee basis of a powder plant at Weldon Spring, Missouri, which is near St. Louis, Missouri.

3. The Contracting Officer's Representative has found that the membership dues are reimbursable under title III, article 3 (a), paragraph 1r, which states that reimbursement will be made for "Such other items as should in the opinion of the Contracting Officer, be included in the cost of the work. When such an item is allowed by the Contracting Officer, it shall be specifically certified as being allowed under this item." The Contracting Officer's Representative states that approval was granted because it is the policy of the Atlas Powder Company to take membership in the Chamber of Commerce in the locality where they operate a plant or factory.

4. It is recognized that it is the usual custom and policy of manufacturers to obtain membership in the Chamber of Commerce in the locality in which they operate. The reasons for such memberships are obvious.

5. Inasmuch as the Contracting Officer's Representative has specifically found that the expenses set forth on the attached voucher are proper for reimbursement under the contract, and as such expenses are customary and in accordance with company policy, it is recommended that the item be allowed for reimbursement.

Contract No. W-ORD-482, entered into on a cost-plus-a-fixed-fee basis as authorized under the act of July 2, 1940, 54 Stat. 712, provides, under title I thereof, for consultant service in connection with the designing, equipping and construction of an ordnance manufacturing plant, in consideration of a lump-sum payment to the contractor, and, under title II, for necessary preparation for the subsequent operation of said plant, including the training of key personnel, and for the operation of the plant upon its completion, in consideration of the reimbursement by the Government of the contractor's expenditures as provided in the contract, plus stipulated fixed fees. Since the payment of the expense involved obviously could not legally be reimbursed by the Government in connection with work for which the Government agreed to pay a fixed amount, it is assumed that the

proposed reimbursement of this item is on the basis that it represents an expense incurred in the performance of the services required under the latter title.

Whether a particular item of expense is reimbursable to a contractor as such under this form of contract, or whether it is to be absorbed by the contractor as being included in the lump-sum-fixed-fees or other payments made, depends upon the nature of the expense and the terms of the contract. With respect to reimbursement for expenditures under the contract here involved, article III-A provides, in part:

1. The Government shall bear all costs and expenses of every character and description incurred by the Contractor under title II, when approved in advance or subsequently ratified by the Contracting Officer, in connection with the operating of said plant or any part thereof (including alterations, maintenance, and closing-down) which costs and expenses shall include but shall not be limited to the following items, to wit:

A careful examination of the many items of reimbursable expenditures listed thereunder does not reveal an item such as involved in this case, unless provision for reimbursement may be considered as authorized by subparagraph (r), which provides for reimbursement of "Such other items as should, in the opinion of the Contracting Officer, be included in the cost of the work."

As broad and liberal as the terms of the contract may appear to be, nevertheless they do not provide for the reimbursement of every conceivable expense which the contractor may decide to incur and which the contracting officer may approve. By the terms of article III of the contract, as hereinabove quoted, reimbursement of the contractor's expenditures, including those approved under the said subparagraph (r), necessarily is limited and restricted to such costs and expenses as are incurred "in connection with the operating of said plant," and it is not perceived in what manner it may be seriously contended that membership in a local Chamber of Commerce-the functions of which are to promote the commercial interests of the locality-may be considered as reasonably related to "the operating of said plant." While reference is made to certain information which has been and may be obtained by reason of such membership, it appears from the facts of record that such benefits are purely incidental, that is, the approval by the contracting officer's representative of the expense of the membership fee in the Chamber of Commerce is not by reason of its having been incurred in pursuance of any legal obligation or in the furtherance of any duty required under the contract, but is "granted because it is the policy of the Atlas Powder Co. to take membership in the Chamber of Commerce in the locality where they operate a plant or factory." While it may be conceded that such is the policy of the contractor and of private firms in general who, by promoting the general trade and commerce of the

locality in which they operate, thus directly or indirectly promote their own interests, such membership, insofar as the operation of a plant on behalf of the Government is concerned, may not under any fair and reasonable construction of the contract terms be viewed as a cost or expense pertinent to, or necessary for, the proper performance of the work thereunder.

Accordingly, you are advised that payment on the voucher is not authorized.

The voucher and its supporting papers are returned herewith.

(B-20920)

PAY-FRAUDULENT CONCEALMENT OF DESERTION STATUS

Where an inductee under the Selective Training and Service Act of 1940 fraudulently concealed the fact that he had deserted from the Army under a prior enlistment, and, but for the fraud, he would not have been inducted, he is not entitled to pay under his fraudulent induction.

Assistant Comptroller General Elliott to Maj. J. Harris, U. S. Army, November 13, 1941:

There has been received by first indorsement dated September 29, 1941, your request for decision dated August 15, 1941, as to whether you are authorized to make payment on a voucher transmitted therewith in favor of Fred W. Triplett, Army serial No. 6933806, private, Company L, 137th Infantry, U. S. Army, covering the difference between base pay at $21 per month and base pay at $30 per month for the period February 18, 1941, to April 30, 1941.

The roll shows that Triplett enlisted in the Army on September 27, 1939; that he deserted on December 5, 1939; that he was inducted into the military service on February 18, 1941, under the Selective Training and Service Act, at which time he concealed his status as a deserter from the service and that he was discharged "without honor desertion and physical unfitness, section VII, AR 615-360 and 4th Ind. Hqs, 7th Corps Area dated July 2, 1941." The 4th indorsement, Headquarters 7th Corps Area, dated July 2, 1941, states in part: "2. Soldier will be discharged under provisions of paragraph 49 b (1), AR 615-360." This paragraph of the regulations provides:

The corps area commander may order the discharge without trial, because of desertion admitted and physical unfitness, after return to military control, of a deserter who admits desertion and is found physically unfit for service, and whose trial is not barred by the thirty-ninth article of war. He may apply to The Adjutant General for authority to discharge, because of desertion admitted, after return to military control, a deserter who admits desertion and is found physically fit for service but whose trial is deemed inadvisable.

There is also furnished with the voucher a copy of a 3d indorsement dated June 27, 1941, from The Adjutant General of the Army to the Commanding General, 7th Corps Area, the fourth paragraph of which is as follows:

4. This man will be dropped from all records showing him to have been inducted under the Selective Training and Service Act of 1940 (paragraph 35, A. R. 345-125).

Paragraph 35, Army Regulations 345-125, provides:

a. An enlisted man discovered to be serving in a fraudulent enlistment by reason of concealment of desertion from unterminated enlistment or enlistments to which the statute of limitations is not applicable and whose trial for desertion is not barred by the thirty-ninth article of war will, unless otherwise directed by the War Department, be separated from service or be held to service under his first unterminated enlistment as of the name and date of enlistment under which he served therein, and his name will be dropped from the records of all subsequent unterminated enlistments.

b. An enlisted man serving in a fraudulent enlistment, who has one or more desertions from unterminated enlistments, reverts to the first unterminated enlistment from date of surrender or from date of receipt, at the place where he is held, of the notification from the War Department of his identity, and his accounts will be adjusted accordingly.

The roll shows that Triplett was "Apprehended in fraudulent induction May 13, 1941" and therefore it appears that his identity was not known until that date. Under paragraph 35b of the regulations, quoted above, he appears to have reverted to his unterminated enlistment from that date. Obviously, his concealment of his prior military service and desertion was a withholding of material facts amounting to fraud and in view of his subsequent discharge when the true facts were learned, it is evident that had it not been for his concealment of facts he would not have been inducted. Such a showing cannot give rise to a claim against the Government for pay during the period he served as a selectee, the status given him because of his fraud. Even though the man returned to military control during the period of his enlistment in a different status-that of selecteehe cannot benefit by his fraud and is entitled to no pay under his fraudulent induction. Accordingly, you are advised that you are not authorized to pay the voucher which will be retained in this office.

(B-20377)

MILEAGE-TRAVEL BY PRIVATELY OWNED CONVEYANCE-MILITARY, NAVAL, ETC., PERSONNEL-ADVANCE PAYMENT

The money allowance for travel by privately owned conveyance which, under the act of May 29, 1928, may be paid to Army, Navy, etc., personnel in lieu of transportation in kind when traveling under competent orders may not be paid in advance of the travel.

Assistant Comptroller General Elliott to the Secretary of the Navy, November 14, 1941:

There has been received your letter of September 9, 1941, transmitting a letter from the Chief of the Bureau of Supplies and Accounts, dated August 21, 1941, as follows:

1. The Comptroller General in decision of March 14, 1941, held that enlisted

for any of the causes, which, under Article D-9119 Bureau of Navigation Manual, would entitle an enlisted man of the Regular Navy to travel allowance, are entitled to transportation in kind and subsistence from place of discharge to place from which ordered to active duty. This ruling is in agreement with prior decisions of the Comptroller General under which enlisted men of the Naval Reserve upon release from active or training duty have been furnished with transportation in kind and subsistence from place of release to place from which ordered to active or training duty.

2. Under the authority contained in the act of May 29, 1928, enlisted men of the Naval Reserve who are entitled to transportation in kind upon discharge at other than expiration of enlistment or upon release from active or training duty may be authorized to travel by privately owned automobile. (Art. 2503-5 U. S. Navy Travel Instructions.) In the case of enlisted men of the Regular Navy cash for subsistence en route is advanced prior to commencing travel and payment of the rate of 3 cents per mile is made upon completion of the travel.

3. Under the procedure which has been followed by the Navy Department for a number of years, the Disbursing Officers carrying the accounts of members of the Naval Reserve on active or training duty close out the account of such reservists to and including the date on which they could reach the place from which called to active duty via the shortest usually traveled route and payment of the amount due as pay and allowances is made at the time the man is released from active or training duty. Such procedure is in accord with the decision of the Comptroller of the Treasury dated March 19, 1917, and the decision of the Comptroller General, A-12008 dated December 21, 1925, approving a proposed change in section G of the Pay Bill Instructions.

4. It is recommended that a decision be obtained from the Comptroller General as to whether enlisted men of the Naval Reserve, who are authorized to travel by privately owned automobile upon discharge at other than expiration of enlistment or upon release from active or training duty, may be credited with mileage allowance as authorized in the act of May 29, 1928 on date of discharge or release from active or training duty.

In the cited decision of March 14, 1941, B-41980, 20 Comp. Gen. 519, it was held that enlisted naval reservists discharged at other than expiration of enlistment were entitled to transportation and subsistence to the place from which they entered upon active duty. The act of May 29, 1928, 45 Stat. 975, 37 U. S. C. 20a, amending section 12 of the act of June 10, 1922, as amended, provides:

Individuals belonging to any of the services mentioned in the title of this act, including the National Guard and the reserves of such services, traveling under competent orders which entitle them to transportation or transportation and subsistence as distinguished from mileage, who, under regulations prescribed by the head of the department concerned, travel by privately owned conveyance shall be entitled, in lieu of transportation by the shortest usually traveled route now authorized by law to be furnished in kind, to a money allowance at the rate of 3 cents per mile for the same distance: Provided, That this provision shall not apply to any person entitled to traveling expenses under the "Subsistence Expense Act of 1926."

Unlike the act of September 22, 1922, 42 Stat. 1021, authorizing travel allowance to be paid on the discharge of enlisted men, the act of May 29, 1928, only provides for payment of the money allowance at the rate of 3 cents per mile for travel by privately owned conveyance, which travel has been authorized under competent orders. The money allowance prescribed by the 1928 act is in lieu of transportation in kind and the right thereto must be established by a showing that the travel was properly authorized and performed by privately owned conveyance. Payment of the commutation being