and will soon undertake the construction of about 100 more such dwellings in what is known as the Eleanor Roosevelt Development near San Juan, Puerto Rico. (There are about 475 houses in the development constructed under previous years' programs). A number of PRRA employees who meet the eligibility requirements prescribed by PRRA administrative orders with regard to the substandard condition of their present dwelling quarters, size of family, amount of family income in relation to prospective rental charged for the new houses, etc., desire an opportunity to become tenants of the Eleanor Roosevelt Development. Tenants there execute monthly lease agreements with the United States; if after not less than six months' tenancy, they have proven satisfactory in every respect, tenants may, if they desire to do so, enter into an agreement by the terms of which they may eventually acquire title to their respective dwellings. Selection of tenants for PRRA's low-cost housing projects is made in the following manner:

The prospective tenant fills out a blank giving full details as to occupation, income, family, and dwelling conditions, references, etc. This is carefully investigated, and the report of the investigator is checked by the Chief of the PRRA's Office of Housing Management to determine whether the applicant meets the eligibility requirements prescribed by PRRA administrative orders and regulations. If approved, the applicant's name is then placed in its chronological order on the list of approved applicants. As vacancies occur in the projects same are filled from this list, the earliest applicant being given the first opportunity. In the case of the new houses to be constructed at the Eleanor Roosevelt Devel opment, where all applications will be received and investigated at about the same time, and where it is believed there will be many more qualified applicants than available houses, all applicants will be required to appear at a certain time and place for the purpose of drawing lots. The number of each house will be placed on a slip of paper, and these together with a number of blank slips corresponding to the number of applicants present in excess of the number of houses available will be placed in a receptacle from which applicants will draw. Those drawing blank slips will not be tendered occupancy agreements.

If PRRA employees may properly be included in the applicants for houses under the foregoing procedure, there will be excluded therefrom any and all employees who have anything to do with passing upon those who are eligible for occupancy or with determining to whom houses are to be allotted, or on what terms. The employee-applicant must meet the same conditions of eligibility as all other applicants; if he is a successful drawer he will get exactly the same sort of contract that a host of others not employees get; and his contract along with the others, will be a mere incident in the Administration's program to furnish low-cost housing to people who otherwise might have to live under little better than slum conditions.

It is believed that the number of employee-applicants will be only a small percentage of the total applications to be received for Eleanor Roosevelt Devel opment houses. The fact that financing of the PRRA beyond the present fiscal year and employment of its present small personnel beyond that time is uncertain, would seem to argue for rather than against loyal employees otherwise eligible being given the same opportunity as outsiders to obtain wholesome dwelling accommodations.

The only exception contemplated to procedure above outlined is that supervisors and assistants now dwelling at the project may continue to occupy their present houses, or for the sake of administrative efficiency be moved to one or more of the new houses. Successful operation of the project and protection of the interests of the United States requires that these representatives of the Administration be ever present.

It would seem that this practice, together with the contemplated inclusion of PRRA employees in the list of prospective tenants of PRRA dwelling units. would not contravene but be within the permissible limits of the following excerpt from 14 Op. Atty. Gen. 482: (Sections 112 and 113 of the Penal Code) make it illegal for an officer of the U. S. to have that sort of connection with a Government contract which an agent, attorney, or solicitor assumes when he procures or aids to procure such a contract for another and when he prosecutes for another against the Government any claim founded upon a Government contract *. But there is

not in the statutes any general prohibition which prevents executive officers from contracting directly with the Government, as principals, in matters entirely separate from their offices and in no way connected with the performance of their

duties as officers of the Government; nor are they forbidden to be connected with such contracts, after they are procured, by acquiring an interest in them." Your early advice will be greatly appreciated.

Contracts between the Government and its employees are not prohibited generally by statute but only where an employee of the Government acts as agent both for the Government and the contractor in the transaction of business (see 18 U. S. Code 93; 14 Op. Atty. Gen. 482; 24 id. 557; 5 Comp. Gen. 93; 13 id. 281; 17 id. 123); or where the service to be rendered under a contract with an employee is such as could have been required of him in his official capacity, in which case the payment of additional compensation is inhibited by sections 1764 and 1765, Revised Statutes, 5 U. S. Code 69, 70. Cf. Woodwell v. United States, 214 U. S. 82.

However, aside from any statutory prohibition, contracts between the Government and its employees are open to criticism for possible favoritism and preferential treatment; and this office often has expressed the view that such contracts should not be made except for the most cogent reasons. 5 Comp. Gen. 93; 14 id. 403; Cf. 13 Comp. Gen.

281.

If, as indicated in the submission, there be excluded from the list of prospective tenants all employees who might act on the applications in behalf of the United States, the execution of a contract with an employee of the Administration evidently does not contravene the provisions of law set forth in 18 U. S. Code 93, since the applicant would not represent the United States in the transaction. Nor does it appear that the rental of a dwelling unit to an employee, under the same terms and conditions as offered to nonemployees, constitutes additional pay, extra allowance or compensation to said employee, within the meaning of section 1765, Revised Statutes, but rather represents an independent transaction with the employee on the same basis as offered to nonemployees similarly situated, and in which the employee pays the rate established by the Government for all occupants of similar dwellings. The evident purpose of the Administration in undertaking the construction of the housing development in question was to make low-cost housing available to those whose living conditions were of a substandard nature, as defined by the Administration; and I am not aware of any provision of law or issue of public policy which would require excluding from the list of applicants employees of the Administration who are otherwise eligible to become tenants, provided effective measures are taken to prevent any possibility of preferential treatment to such employees in the selection of tenants. You are advised, therefore, that this office is not required to object to the execution of contracts between the Administration and its employees for the occupancy of dwelling units in low-cost housing projects, under the circumstances described in the submission.

(B-22993)

PAY-AVIATION DUTY-SCOPE OF NONFLYING OFFICER LIMITATION The provision in the Military Appropriation Act, 1942, limiting to $720 per annum the increased pay of "nonflying officers" for making aerial flights is applicable to warrant officers as well as to commissioned officers.

Assistant Comptroller General Elliott to Lieut. Col. J. H. Doherty, U. S. Army, January 24, 1942:

There has been received your letter of December 10, 1941, requesting decision whether payment is authorized on the voucher submitted therewith in favor of Warrant Officer John S. Phillips, United States Army, in the amount of $32.50, covering his claim for the difference between flying pay received at the rate of $60 per month from October 1 to 31, 1941, for flights performed as an observer, and flying pay at the rate of $92.50 per month, being 50 percentum of his pay for the same period.

Paragraph 63, Special Orders No. 240, War Department, dated October 10, 1940, announced the appointment of Master Sergeant John S. Phillips, 3d Weather Squadron, Air Corps, on detached duty at Kelly Field, Tex., as a warrant officer in the Regular Army, and assigned him to duty with the Air Corps at Kelly Field, Tex. Paragraph 2, Personal Orders No. 25, Office of the Chief of the Air Corps, dated January 30, 1941, is as follows:

Pursuant to authority contained in paragraph 2, Army Regulations 35-1480, Warrant Officer John S. Phillips, United States Army, is placed on duty requiring regular and frequent participation in aerial flights, effective this date.

Standard Form No. 1051, Flight Certificate and Schedule attached to the voucher, shows that during October 1941 claimant performed three flights, aggregating a period of 10 hours in the air. The claimant stated on this certificate that "I do not hold an aeronautical rating. I fly as an observer only."

Section 13a of the National Defense Act, as amended July 2, 1926, 44 Stat. 780, 10 U. S. C. 300, provides:

Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay when by orders of competent authority they are required to participate regularly and frequently in aerial flights, and when in consequence of such orders they do participate in regular and frequent aerial flights as defined by such Executive orders as have heretofore been, or may hereafter be, promulgated by the President:

*

The term "officers and enlisted men," as used in this act, was held in the Bradshaw case, 62 Ct. Cls. 638, to include a warrant officer detailed to duty with the Air Corps. Compare 27 Comp. Dec. 883. The flying pay prescribed for the Army by section 20 of the Pay Readjustment Act, as amended by the act of July 2, 1926, 44 Stat. 782, was extended to cover "all officers, warrant officers, and enlisted men of all branches of the Army."

Section 1 of the act of August 21, 1941, Public Law 230, 77th Cong., 55 Stat. 651, provides that:

All warrant officers of the Army shall receive an increase of 50 per centum of their pay when by orders of competent authority they are required to participate regularly and frequently in aerial flights, and when in consequence of such orders they do participate in regular and frequent aerial flights as defined by such Executive orders as have heretofore been, or may hereafter be, promulgated by the President.

One of the purposes of the act of August 21, 1941, was to codify existing laws relating to warrant officers, and the cited paragraph 2 of section 1, merely restated the provisions of the prior cited laws in identical terms as they were applicable to warrant officers. It was not intended to in any way increase or change the rights of warrant officers.

Under the provisions of the cited laws payment was authorized to all officers, warrant officers, and enlisted men of all branches of the Army of 50 per centum of their pay when they meet the conditions of the statute, and the reenactment of the law without change necessarily is subject to the limitation contained in the appropriation act of June 30, 1941, providing funds for the Military Establishment for the fiscal year ending June 30, 1942, under the heading "Pay of the Army," 55 Stat. 368, as follows:

*

For pay of the Army of the United States including pay of commissioned officers, $207,783,661; pay of warrant officers, $1,655,976; aviation increase to commissioned and warrant officers, $14,188,834, none of which shall be available for increased pay for making aerial flights by nonflying officers at a rate in excess of $720 per annum, which shall be the legal maximum rate as to such officers, aviation increase to enlisted men, $10,161,990;

*

* *

*

*

The claim is asserted on the basis that the limitation is not applicable to warrant officers, but was intended to cover only commissioned officers.

Two separate amounts are appropriated for aviation increase of pay, one for "commissioned and warrant officers" and the other for "enlisted men." The limitation follows the provision made for commissioned and warrant officers, and while the limitation is made applicable to nonflying officers, there appears nothing to show an intent that it applies only to commissioned officers. The Executive Order No. 5865, June 27, 1932, set out in paragraph 2f, Army Regulations 35-1480, and under which the claimant was ordered to participate in regular and frequent aerial flights, applies to commissioned and warrant officers on the same basis. Warrant officers having been treated on a parity with commissioned officers under the laws and regulations applicable to flying pay, in the absence of any indication that the Congress intended otherwise, the term "nonflying officers" as used in the above cited limitation must be held to be applicable alike to commissioned officers and to warrant officers. The limitation has been held not to be exclusively applicable to officers commissioned in the Air Corps. 15 Comp. Gen. 357. As the claimant did not hold an on

nautical rating, and performed flights as an observer (not so rated) only, he was a nonflying officer, and is not entitled to aviation pay in excess of the rate of $720 per annum. Payment is not authorized on the voucher which will be retained in this office.

(B-22472)

PAY-NAVY OFFICERS-TIME IN EXCESS OF PROCEED AND TRAVEL

TIME

Where a Navy officer's orders did not specify that any part of the period between date of detachment from his permanent station and date of reporting for temporary duty was to be counted as leave nor specify any authorized period of delay in reporting, but, due to conditions of the service, did specify a date of detachment and a date of reporting, embracing a period in excess of the usual proceed and travel time, the officer is entitled to pay and allowances for the entire period between said dates rather than only for a period equal to the usual proceed and travel time.

Assistant Comptroller General Elliott to the Secretary of the Navy, January 27, 1942:

There has been considered your letter of December 9, 1941 (with enclosures), as follows:

There is enclosed a letter from the Disbursing Officer, Navy Yard, Portsmouth, N. H., dated October 17, 1941, with accompanying correspondence, relative to the right of Lieutenant (j. g.) Richard B. Lynch, U. S. Navy, to pay for the period August 17-21, 1941, under Bureau of Navigation orders of August 1, 1941.

It appears that Bureau of Navigation orders of August 1, 1941, a copy enclosed, directed Lieutenant (j. g.) Lynch to proceed to Brunswick, Maine, and report on August 22, 1941, or as soon thereafter as practicable, to the Officer in Charge, Naval Training School (Radio), Bowdoin College, for temporary duty for a special course of instruction in radio engineering. Endorsements on his orders show that Lieutenant (j. g.) Lynch was detached from the U. S. S. Skipjack at Mare Island, California, on August 8, 1941, and reported at Brunswick, Maine, on August 22, 1941.

Allowing four days' proceed and five days' travel time, Lieutenant (j. g.) Lynch would have been due to report on August 17, 1941, any additional delay to count as leave, but his orders fixed a definite date for reporting and endorsements appearing thereon show compliance therewith. However, the Disbursing Officer checked the pay and allowances of Lieutenant (j. g.) Lynch for the period August 17-21, 1941, on the ground that no delay in reporting was authorized in his orders. In letter dated October 13, 1941, copy enclosed, the Bureau of Navigation informed Lieutenant (j. g.) Lynch that since his despatch orders of August 1, 1941, directed him to report at Brunswick, Maine, on August 22, 1941, he was considered to be in a travel status during the period August 8, 1941, to August 22, 1941, "and no leave was involved."

In a somewhat similar case the Comptroller of the Treasury in decision dated February 14, 1912 (volume 5, Bureau of Supplies and Accounts Memoranda (old series) page 1993) stated that there "is nothing in the orders

to show

any intention to place Commander Magruder on leave, and that view is concurred in by the Navy Department. The officer was ordered to take passage on a transport sailing from San Francisco on or about a certain date and he fully complied with the order." It was accordingly concluded that the officer in this case "was not in a leave status" and was entitled to pay for the entire period involved. The question, therefore, arises as to the application of this decision to the present case.

In view of the statement of the Bureau of Navigation that Lieutenant (j.g.) Lynch was considered to be in a travel status for the entire period August 8. 1941, to August 22, 1941, and that no leave was involved, and of the decision of the Comptroller of the Treasury of February 14, 1912 [60 MS. Comp. Dec. 706], supra, your decision is requested as to whether or not Lieutenant (j.g.) Lynch