I gather from your letter that the duties to be performed and the conditions met are practically the same at the stations where it is proposed to increase the rate of compensation as at the stations whose rates of compensation correspond to the proposed increase. This is a matter of fact lying within your official knowledge, and the responsibility of determining the fact rests with you. (Decision of June 24, 1913, supra.) Upon the fact thus stated the proposed increases of compensation are not prohibited by the statute quoted in your submission. GOVERNMENT HOSPITAL FOR INSANE-STATUS OF A NAVY NURSE WHEN UNDER TREATMENT THEREIN. An active member of the Nurse Corps (female) of the Navy when in Government Hospital for the Insane under orders is entitled to duty pay. As she is subsisted at the expense of the Government her account should not be credited with commutation of rations, and no credit should be given to naval hospital fund. Unnecessary delay in travel, not excused as unavoidable, places the person in the status of absence without leave. Comptroller Downey to the Secretary of the Navy, November 17, 1913: By your reference of the 1st instant of a letter from R. H. Woods, paymaster, United States Navy, dated October 23, 1913, you request my decision of a question presented therein as follows (name of party, a member of the Nurse Corps (female) is omitted for apparent sufficient reason): nurse, United States Navy, is a patient at the Government Hospital for the Insane at Washington. The act of May 13, 1908, provides that nurses shall receive no compensation except when on active duty. "1. Should Nurse account be credited with pay at the regu lar rate, $60 per month, while in that hospital? "2. If so, for what length of time? "3. Should her account be credited with commutation of rations while in that hospital and checked with the same amount for credit to the naval hospital fund? "4. If so, at what rate-40 cents a day as on duty, 25 cents a day as on leave with pay, or 30 cents a day, the regular Navy ration? "5. In case of members of the Navy Nurse Corps (female) is the date of executing the oath of office a day of active duty for the purpose of pay? "6. Is the period elapsing between detachment at one station and reporting at another to be regarded as active duty' if more time than is actually necessary is consumed in travel between the two stations?" The Nurse Corps (female) of the Navy was established by the act of May 13, 1908 (35 Stats., 146), which is in part as follows: * * * "The Nurse Corps (female) of the United States Navy is hereby established, and shall consist of one superintendent, to be appointed by the Secretary of the Navy, and of as many chief nurses, nurses, and reserve nurses as may be needed: Provided, That all nurses in the Nurse Corps shall be appointed or removed by the Surgeon General, with the approval of the Secretary of the Navy. The superintendent, chief nurses, and nurses shall, respectively, receive the same pay, allowances, emoluments, and privileges as are now or may hereafter be provided by or in pursuance of law for the Nurse Corps (female) of the Army." * * Section 19 of the act of February 2, 1901 (31 Stats., 753), establishing the Nurse Corps (female) of the Army provides as to their pay and allowances as follows: "That the superintendent and nurses shall receive transportation and necessary expenses when traveling under orders; that the pay and allowances of nurses, and of reserve nurses, when on active service, shall be $40 per month when on duty in the United States and $50 per month when without the limits of the United States. They shall be entitled to quarters, subsistence, and medical attendance during illness, and they may be granted leaves of absence for 30 days, with pay, for each calendar year * * * 99 By the Army appropriation act of March 23, 1910 (36 Stat., 243, 249), the pay of nurses was increased and based upon longevity in the service. The following provision for commutation of quarters for members of the Navy Nurse Corps is found in the naval appropriation act of June 24, 1910 (36 Stat., 605, 606): "The Secretary of the Navy is authorized, in his discretion, to allow members of the Nurse Corps (female) of the Navy $15 per month in lieu of quarters when Government quarters are not available * * Section 4838, Revised Statutes, establishes the Government Hospital for the Insane, as follows: "SEC. 4838. There shall be in the District of Columbia a Government Hospital for the Insane, and its objects shall be the most humane care and enlightened curative treatment of the insane of the Army and Navy of the United States and of the District of Columbia." And section 4843 provides: "The superintendent, upon the order of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Treasury, respectively, shall receive, and keep in custody until they are cured or removed by the same authority which ordered their reception, insane persons of the following descriptions: "First. Insane persons belonging to the Army, Navy, Marine Corps, and Revenue-Cutter Service * I assume that Nurse was ordered by the Secretary of the Navy for treatment, and if so she is in a duty status. (See 11 Comp. Dec., 466.) I advise you that she is entitled to duty pay while there and in the service. Under "Illness," in Regulations and Instructions for the Nurse Corps, United States Navy, 1909, is the following: "A nurse will not be discharged for disability contracted in line of duty until after reasonable time has elapsed for such treatment as will promise recovery." It is therefore presumed that her continuance in the service will be terminated after a reasonable time if the treatment proves ineffective. In answer to the third question, I advise you that as she is being subsisted at the expense of the Government, her account should not be credited with commutation of rations, and there is no authority to credit any ration money to the naval hospital fund. Section 4812, Revised Statutes, authorizing such credit applies only to those admitted to a Navy hospital. Replying to the fifth question, when the commencement of pay depends upon taking the oath, pay is allowed for the day the oath is taken, when it is immediately followed by entrance upon duty. Replying to the sixth question, if unnecessary delay is made in travel between two stations and the delay is not excused as unavoidable, the nurse would be in the status of absence without leave, and so not entitled to pay. INCREASED PAY TO OFFICERS AND ENLISTED MEN OF ARMY ON FOREIGN DUTY. Officers and enlisted men of the Army are not entitled to increased foreignduty pay while serving within the States, even though such service may be designated as "temporary" and "in connection with foreign duty." Decision by Comptroller Downey, November 20, 1913: The Auditor for the War Department transmitted to this office, the 11th instant, for approval, disapproval, or modification his decision of the 10th instant making a construction of a statute as follows: "In the examination of the accounts of disbursing officers of the Quartermaster Corps, a question arises as to the proper construction of the proviso found in the Army appropriation act of June 30, 1902, authorizing the payment of increased compensation to officers and enlisted men serving outside the United States. Said act reads. as follows: "For additional ten per centum increase on pay of commissioned officers serving at foreign stations, $451,456: Provided, That here after the pay proper of all commissioned officers and enlisted men serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto.' "The Army appropriation act of May 11, 1908 (35 Stat., 110), provides as follows: "That increase of pay for service beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be as now provided by law.' "The Assistant Comptroller of the Treasury, under date of June 28, 1907 (13 Comp. Dec., 884), on the appeal of Edward H. Schulz, captain, Corps of Engineers, from the action of this office in disallowing his claim for foreign-service pay while on temporary duty in the United States, held that this officer was entitled to such foreign-service pay while on temporary duty in the United States in connection with the duties to which he was regularly assigned in Cuba, thereby reversing the action of this office and the practical construction which had been placed upon this act by the War Department. This decision has been followed since that date and has resulted in the allowance of foreign-service pay to numerous officers on temporary duty in the United States. There are, however, numerous decisions of the Comptroller of the Treasury on analogous cases which appear to be contrary to this holding. See decision of the Comptroller of the Treasury addressed to the Secretary of the Navy under date of May 23, 1913 (19 Comp. Dec., 754), and many decísions there cited. 66 The language of the act of June 30, 1902, supra, appears to be clear and unambiguous in providing that officers and enlisted men of the Army shall receive increased pay while serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto,' and would seem to exclude any service which was performed within the United States. This idea is further strengthened by the positive provision that the time of such service shall be counted from the date of departure from said States to the date of return thereto.' "I am therefore of the opinion, and so decide, that no officer or enlisted man of the Army who is physically present in the United States can receive foreign-service pay under the act of June 30. 1902, supra." The auditor has designated his decision as an original construction of the act of June 30, 1902, whereas it is in reality a modification of an existing construction of said act. The statute is correctly quoted by the auditor and need not be repeated. The trouble, so far as this office is concerned, seems to have started with the "Schulz case" (13 Comp. Dec., 884), referred to by the auditor, which has not only been regarded as a precedent, but as a very elastic precedent, under which a practice has grown up which has gone far beyond what I believe was intended when that decision was rendered. I am not disposed to criticize that decision, for there is much in the facts of that particular case seemingly justifying the conclusion reached, but it is a fair illustration of the danger of trying to determine a particular case on a fair basis when the determination is to be regarded as establishing a precedent which will be applied to other cases differing very much as to essential facts. Capt. Schulz was on duty at Guantanamo Bay, Cuba, in connection with fortification work. He was ordered to Washington and New York" for consultation with the Chief of Engineers," and chiefly for "the purchase of supplies and machinery for use on the fortification work in Cuba," his entire time in the United States being a period of 1 month and 13 days. His mission here was so intimately connected with his work in Cuba, his purchase of supplies and machinery for use there so much a necessary part of it, that it furnished a very reasonable basis for the conclusion reached, even though the very fact that its underlying principle was so susceptible of misconstruction and abuse might well have raised a serious question as to its soundness. The various declarations of Congress with reference to increased pay of officers and enlisted men were founded no doubt on some presumably good reason for a difference in pay at home and abroad. It is evident that it was not because of any assumed difference in the character of the service to be performed, for duty is duty to a soldier wherever performed. It is equally evident that it was because service outside the limits of the United States entailed the meeting of different conditions, such as absence from home, possible separation from family, unfavorable surroundings, perhaps increased hardships, and in some cases danger of impairment of health. As between an officer on duty in Washington or in comfortable quarters at Fort Myer and an officer on duty in Alaska or in the Philippines there is good reason for the distinction which Congress has made in the matter of pay. But if an officer on duty in Alaska returns to Washington, traveling at Government expense, remains here possibly five months of the year, and returns to Alaska, traveling again at Government expense, is there any apparent reason why he should have the extra compensation for foreign duty during the five months he is here, even if it be said that while here his temporary duty is in connection with his duties in Alaska? Extra compensation is not given for the discharge of his duties. It is given because the duty to which he is assigned is a duty which must be discharged "beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto." The |