terminating the date on which they complete the 12 months' total naval service contemplated by section 8. Accordingly, if the man referred to in your sixth question had total naval service, including active duty as a reservist, in excess of 12 months on January 7, 1942, he is entitled to the additional payment at the rate of $10 per month as an enlisted man of the Regular Navy on and after January 7, 1942.

(B-23081)

SUBSISTENCE-AIR TRAVEL-MILITARY PERSONNEL

Orders directing travel of military personnel by air should be made sufficiently specific, without disclosing confidential information, to permit a reasonably certain determination of their air travel status for purposes of payment of per diem in lieu of subsistence authorized by section 12 of the act of June 10, 1922, as amended, and the regulations issued pursuant thereto. Where orders to a substantial number of military personnel, not specifically designated as a military organization but functioning as such under a superior commander, direct air travel to participate in simulated combat activities, the air travel status of the personnel for purposes of payment of per diem in lieu of subsistence will be terminated by the directed duty, but where orders direct the travel of a limited number of personnel, not as a military organization or command, for temporary individual instruction or for the purpose of testing equipment, their otherwise continuing air travel status will not be so terminated.

Assistant Comptroller General Elliott to Lt. Col. A. C. Harden, United States Army, February 10, 1942:

There has been received your letter of December 4, 1941, requesting decision whether payment is authorized to Second Lt. John B. Holst, Air Corps, United States Army, in the amount of $37.50, covering his claim for per diem for the period from 2:30 p. m., September 7, 1941, to 4:25 p. m., September 13, 1941. You state that

The doubt in this case arises as the officer in question was on duty at Savannah, Georgia, for the purpose of receiving instructions relative to flights in connection with Pursuit Searchlight tests, and from the manner in which the order is written it is impossible for a disbursing officer to determine whether each officer had a special duty to perform as an individual, in which case payment would be governed by the Decision of the Comptroller General, B-18468, dated July 10, 1941, or whether the duty performed was specialized training under the direction of a superior and in connection with the study and solution of war problems, in which case payment would be governed by the Decision of the Comptroller General, B-20077, dated September 17, 1941.

The orders in question, paragraph 1, Operations Orders No. 46, Headquarters Second Bombardment Group (H), Air Force Command, Office of the Operations Officer, Langley Field, Va., dated September 7, 1941, direct travel by air as follows:

1. In compliance with instructions contained in Letter, File 353, Headquarters 2nd Bombardment Wing, AFCC, Office of the Wing Commander, Langley Field, Virginia, August 11, 1941, Subject: "Searchlight Mission-Anti-Aircraft Artillery" to Commanding Officer, 2nd Bombardment Group (H), Langley Field, Virginia, the following personnel in airplane as indicated will proceed via the best available air route from Langley Field, Virginia, on or about September 7, 1941, to Savannah, Georgia, for purpose of receiving instructions relative to flights in connection with Pursuant Searchlight test, and upon completion of this duty will return via the best available air route to their proper station, Langley Field, Virginia.

B-18A Airplane A C No. 37-593

2nd Lieut. CLINTON W. UHR, O-393164, Air Corps.

2nd Lieut. CHARLES W. VAN EEUWEN, O-411742, Air Corps.

S/Sgt. FREDERICK JERNEJEC, 6898426, Hq & Hq Squadron, 2nd Bomb Group (H) AFCC.

Pvt. 1cl. THEODORE S. ADAMCZYK, 6999349, Hq & Hq Squadron, 2nd Bomb Group (H) AFCC.

B-18A Airplane A C No. 38-607

2nd Lieut. THEODORE B. SWANSON, O-396331, Air Corps. 2nd Lieut. CARL T. BUMGARNER, O-417180, Air Corps.

Sgt. CARSON BUTLER, JR., 6387445, 96th Bomb Squadron, 2nd Bomb Group (H) AFCC.

Pvt. 1cl. LESLIE T. FIGG, JR., 7024096, 96th Bomb Squadron, 2nd Bomb Group (H) AFCC.

B-18A Airplane A C No. 37-540

2nd Lieut. JOHN B. HOLST, 0-393132, Air Corps.

1st Lieut. EUGENE D. ZADONTSEFF, O-250453, Air Corps.

Sgt. RAYMOND GREGOR, 6995123, 49th Bomb Squadron, 2nd Bomb Group (H) AFCC.

Pvt. 1cl. JAMES C. PAOUNOFF, 6148891, 49th Bomb Squadron, 2nd Bomb Group (H) AFCC.

Corp. Walter H. Sherman, 6949156, 96th Bomb Squadron, 2nd Bomb Group (H), AFCC, is authorized to accompany this flight as passenger from Langley Field, Virginia, to Savannah, Georgia, and return, on a non per diem status. The travel directed is necessary in the military service.

In lieu of subsistence a flat per diem of six ($6.00) dollars is authorized for travel by air chargeable to FD1588 P 30-06 A 0310-02.

Duties at Savannah, Georgia, being exceptional and requiring more than seventy-two (72) hours, a delay of six days thereat is authorized.

The Finance Officer to whom the expense accounts are submitted as a consequence of this order will furnish the Commanding General, 1st Interceptor Command, Mitchel Field, New York, with a copy of each voucher, indicating the amounts obligated against the above procurement authority as prescribed in Paragraph 13, Army Regulations 35-1040, August 1, 1938.

Section 12 of the act of June 10, 1922, 42 Stat. 631, as amended by section 1 of the act of March 2, 1931, 46 Stat. 1461, provides:

That for travel by air under competent orders on duty without troops, under regulations to be prescribed respectively by the heads of the departments concerned, members (including officers, warrant officers, contract surgeons, enlisted men, flying cadets, and members of the Nurse Corps) of the services mentioned in the title of this Act, * shall, in lieu of mileage

or other travel allowance, be allowed and paid their actual and necessary traveling expenses not to exceed $8 per day, or, in lieu thereof, per diem allowance at rates not to exceed $6 per day.

Paragraphs 3 and 4, Army Regulations 35-4820, August 4, 1937, as amended by War Department Circular No. 151, July 28, 1941, are as follows:

3. Travel with and without troops defined and delivered.-a. With troops.Traveling with troops will be regarded as covering all cases of travel included(1) Under orders for movement, in whatever manner, of the officers' appropriate commands.

(2) Under orders for movement of detachments, escorts, or stores, where the movement is made by marches or by transportation belonging to or especially hired for the purpose by the United States.

(3) Under orders directing officers to accompany troops.

(b) Without troops.-Traveling without troops will be regarded as covering cases of

(2) Travel by air under circumstances which render it impracticable to carry facilities for messing and sheltering.

*

4. Travel by air.—a. Defined.-The term "travel by air" is defined as a Journey in an aircraft made by orders of competent authority and requiring one or more landings away from the starting point.

b. Continuous journey by air.-The term "continuous journey by air" is defined as any journey made in an aircraft by orders of competent authority from and return to the place of initial departure or to other final destination specified in the orders, which requires one or more landings, or stops, provided that the stop, except that due to necessary delay, in any one locality does not exceed 72 hours; provided further, that where it has been determined in advance by the officer issuing the order and he has so stated in the order, that the duties assigned en route are exceptional and will probably require more than 72 hours for their performance, a delay of 30 days in a continuous journey by air may be authorized. See 11 Comp. Gen. 437.

Orders directing travel by air should be made sufficiently specific that the status of the traveler may be determined with reasonable certainty, without disclosing confidential information. Under the orders here in question the officer clearly was in an air travel status while going to and returning from Savannah, Ga. By reason of the decisions cited by you, your doubt would appear to be whether this officer was participating in simulated warlike activities while at Savannah. The officer is commissioned in the Army to perform duty of a military character, and where the activities directed constitute actual warfare or simulated warfare he is not traveling but is performing the duties for which he is commissioned.

The decision of July 10, 1941, B-18468, is to the effect that the direction to travel by air to Fort Benning, Ga., for the purpose of participating in parachute tests thereat, was a special duty, understood to have been performed as an individual, and not under direction of a superior officer, and the case was distinguished from that of an officer assigned to duty with troops participating in maneuvers, as were the circumstances considered in A-75945, July 11, 1936, B-9617, May 18, 1940, and B-15095, June 4, 1941, 20 Comp. Gen. 856, cited therein.

The decision of September 17, 1941, B-20077, also referred to by you is to the effect that the direction to two Air Corps officers and 22 Air Corps enlisted men to proceed as a unit to Savannah Air Base "on temporary duty for the purpose of participating in the combined. test to determine doctrine and methods for aviation support of ground troops," was training under the direction of a superior, and was participation in simulated warlike activities.

While it may not be practicable to establish a general rule applicable in all cases, if the orders direct the movement of a substantial number of officers or enlisted men, or both, not specifically designated as a military organization, but functioning as such under a superior commander to participate in simulated combat activities, whether designated as maneuvers or not, it must be regarded as equivalent to maneuvers. If, however, appropriate orders direct the travel of

a limited personnel, not as a military organization or command, for temporary individual instruction, or for the purpose of testing equipment, to the extent the travel status otherwise continues, it will not be terminated by the duty directed.

The orders here in question direct the movement of a limited number of officers and enlisted men, "for purpose of receiving instructions relative to flights in connection with Pursuit Searchlight test." Individual instruction was contemplated to perfect those concerned in the performance of a duty of a specific character; the fact that such instruction would enable the individual to function to better advantage in the performance of his particular military duty in actual combat does not affect his travel status. In the absence of other evidence or knowledge of facts suggesting illegality or other irregularity in the issuance of the orders, you are advised that if otherwise correct payment is authorized on the voucher returned herewith.

(B-23404)

HOLIDAYS-COMPENSATION-PER DIEM EMPLOYEES

Per diem employees, including unskilled laborers, who are appointed or employed without limitation of time or other qualifying condition in their tenure or periods of work are, from the date of their appointment or employment, "regular employees of the Federal Government whose compensation is fixed at a rate per day" within the meaning of the holiday law of June 29, 1938, and, as such, are entitled to compensation for any holiday thereafter, including any occurring during the first 30 days of their employment, on which they are prevented from working solely by the occurrence of the holiday. 19 Comp. Gen. 426, distinguished.

Comptroller General Warren to the Secretary of War, February 11, 1942:
I have your letter of January 19, 1942, as follows:

Attention is invited to the enclosed file and letter dated December 13, 1941, relating to pay of certain civilian employees, whose names are entered on the enclosed voucher.

It is the opinion of this office that the employees listed are entitled to pay for the holiday in question in view of the information contained in the second indorsement dated December 3, 1941. However, it is requested that a decision be rendered in order that this office may be able to give a definite reply to the question involved, should it arise again in the future.

The referred-to letter of December 13, 1941, is from Lt. Col. John L. Scott, Finance Officer, United States Army, Columbus, Ohio, and reads as follows:

1. Inclosed herewith voucher in favor of civilian employees (per diem laborers), covering pay for a holiday, November 11, 1941, submitted by the Ordnance Officer, Columbus General Depot, Columbus, Ohio.

2. Records of this office indicate that all civilian employees listed on the attached voucher were employed and entered on duty on October 20, 1941.

3. In view of Decision of the Comptroller General of the United States, B-4677, October 9, 1939, as quoted in Finance Bulletin No. 81, dated October 26, 1939, doubt exists as to the legality of payment.

4. This voucher has been submitted to me as a disbursing officer of the United States Army for payment, and is forwarded for advance decision under the provisions of paragraph 23, Finance Circular No. B-1, dated July 19, 1940.

The supplemental voucher in question proposes payment of compensation for November 11, 1941, Armistice Day, to four per diem employees of the Ordnance Department, War Department, the compensation for that day having been withheld on the regular pay roll for the period including the holiday. The doubt in the matter appears to have arisen by reason of the provisions of War Department Finance Bulletin No. 81, dated October 26, 1939, reading as follows:

Decisions of the Comptroller General of the United States.

Section

III

C. Civilian employees-Sundays and holidays-Compensation-"When actually employed" employees.-Whether a person is a "regular employee of the Federal Government" within the meaning of the Holiday Compensation Act of June 29, 1938 (52 Stat. 1246), depends upon all the facts with respect to the purpose, nature, tenure, and/or duration of his employment.

The designation "when actually employed" is not the sole determining factor as to whether an employee so designated is a "regular employee of the Federal Government" within the meaning of the Holiday Compensation Act of June 29, 1938 (52 Stat. 1246), but generally one so appointed and paid does not have that status because the term is ordinarily descriptive of a day-to-day worker who is not required to serve for continuous and comparatively indefinite periods, or to be at hand for service if not excused in advance.

Per diem employees, even though appointed and paid "when actually employed", who are engaged for indefinite periods or for periods of not less than six months, not intermittently at their own volition, and not including teamsters, vehicle operators, etc. who are engaged in connection with hire of their equipment, are "regular employees" for Holiday Compensation purposes of the Act of June 29, 1938 (52 Stat. 1246), and may be paid accordingly if they have been continuously on duty during the 30 days next preceding the day in question and if all other conditions of the statute have been met, and the holidays for which they may be paid include Mondays and other days (observed where 'holidays fall on Sundays) specified in Executive Order No. 1076, May 22, 1909.

With the papers forwarded to this office is second indorsement dated December 3, 1941, from the Ordnance Office, Washington, D. C., to the Ordnance Supply Officer, Columbus General Depot, reading as follows:

1. The decision of the Comptroller referred to in basic letter by the Finance Officer, U. S. Army, appears to relate entirely to per diem employees appointed and paid on a "when actually employed" basis. According to the records of this office, the laborers referred to in basic communication were regularly appointed unskilled laborers, appointed without limit with a permanent status as unskilled laborers, and are accordingly to be considered as regular employees and subject to the same hours of duty as those applying to other Ordnance employees at your station. Under the circumstances, it is the opinion of this office that the employees in question are entitled to compensation for holidays occurring during their regular tour of duty when their failure to perform work on the days in question is occasioned solely by the occurrence of a holiday. The act of June 29, 1938, 52 Stat. 1246, provides as follows:

That hereafter whenever regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis are relieved or prevented from working solely because of the occurrence of a holiday such as New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal statute or Executive order, or any day on which the departments and establishments of the Government are closed by Executive order,