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dated February 26, 1914, of his claim for difference between two inonths' extra pay under the act of March 3, 1899 (30 Stat., 1228), at leave or waiting-orders rate, $1,000 per annum, and sea-duty rate, $1,700 per annum, as assistant engineer, United States Navy (temporary force, War with Spain), under the act of March 4, 1911 (36 Stat., 1266), authorizing and directing the accounting officers to open the accounts of volunteer officers who served in the War with Spain and resettle them in accordance with the decision of the Supreme Court in the case of United States v. Hite (204 U. S., 343).

Hite was appointed an assistant engineer in the Navy, with the rank of ensign, for temporary service during the War with Spain, under authority of the act of May 4, 1898 (30 Stat., 369), on May 14, 1898. He served on the U. S. S. Massachusetts from June 1 to December 17, 1898, when he was detached and ordered to his home, and was honorably discharged from the naval service on December 22, 1898.

The court held that Hite was entitled to two months' extra pay computed at the rate he was receiving at the time he was "taken away from the service," and found that date to be the date he was detached from sea duty and ordered home preliminary to being discharged.

Claimant in the present case was appointed an assistant engineer in the Navy, with the rank of ensign, for temporary service during the War with Spain under the act of March 4, 1898, on June 18, 1898, and served on the U. S. S. Vulcan from July 9 to August 6, 1898.

On August 4, 1898, learning that his brother, T. W. Miller, a member of Troop D, Rough Riders, had died at Siboney, Cuba, he applied to Admiral Sampson for permission to go to Siboney to obtain his remains, which resulted in a telegram from Admiral Sampson to Gen. Shafter inquiring whether claimant could obtain the remains of his brother and a reply by Gen. Shafter, August 6, 1898, as follows:

"Admiral SAMPSON,

"United States Navy, Playo, Cuba:

"Casket for T. W. Miller arrived yesterday and is now on dock at Santiago. His brother can come and remove body."

This telegram was referred by Admiral Sampson to the commanding officer of the Vulcan " for compliance and return," and the latter placed thereon the following indorsement:

"U. S. S. VULCAN, "Guantanamo Bay, August 6, 1898. "In accordance with the above, report to Capt. C. F. Goodrich, United States Navy, commanding the U. S. S. St. Louis, for passage to Santiago."

Claimant reported to Capt. Goodrich, whom he states advised him to take passage on the Vixen, sailing early on the 7th, which he did. He arrived in Santiago the same day, on the next day went to Siboney, obtained his brother's remains, returned with them to Santiago, left Santiago with them on the transport La Grande Duchesse on the 10th, arrived at Montauk on the 15th, was delayed there by quarantine until the 19th, arriving in Akron, Ohio, on August 21. On September 1, 1898, his honorable discharge from the service was forwarded to him, and the receipt thereof at Akron was acknowledged by him on September 2, 1898.

The Chief of the Bureau of Navigation reports, February 14, 1914, as follows:

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the record of John V. Miller, late assistant engineer, United States Navy, does not show that any leave was granted him during the period of his service in the Navy from June 18, 1898, to September 1, 1898. However, the following entry appears in the log book of the U. S. S. Vulcan under date of August 6, 1898:

"Assistant Engineer John V. Miller left this ship on leave of absence.'

"The bureau has no record of this officer returning to duty after leaving the U. S. S. Vulcan on August 6, 1898. His honorable discharge, dated September 1, 1898, was forwarded to him at Akron, Ohio."

The auditor disallowed the claim, because

"The purpose of the above act was to fix the basis for the computation of the one or two months' extra pay (previously authorized by the act of Mar. 3, 1899) upon the last duty performed.

"It appears that claimant was on sea duty at Guantanamo, Cuba, and that on August 6, 1898, he was permitted to return to his home at Akron, Ohio, with the remains of his brother who had been killed at the battle of San Juan, P. R. His honorable discharge was received by him on September 2, 1898. He was paid at 'leave or waiting orders' pay from August 7 to September 2, 1898, and received two months' extra pay at $1,000 per annum, on the above basis, by settlement of this office dated August 5, 1899.

"The following entry appears in the log book of the Vulcan, upon which he had been serving, under date of August 6, 1898: 'Assistant Engineer John V. Miller left this ship on leave of absence.'

"As he was in a leave status at the time of his discharge, his extra pay has been correctly computed. (Comp. May 11, 1912; Nov. 26, 1912; and Nov. 30, 1912.)"

The Hite case and this case appear to materially differ. Hite was detached from sea duty for the purpose of being discharged, the time elapsing between the date of his detachment and his discharge being preliminary to his discharge, which was to occur at his home, and it was therefore held that he was taken away from the service on the date of his detachment from sea duty. At the time claimant left the Vulcan with the permission of his superior officers to per

form a private duty there is nothing to indicate that his service in the war was regarded as terminated, or that his discharge was then contemplated, or that his detachment was preliminary to his discharge. The first evidence in the record of any intent on the part of the department to discharge him or take him away from the service was the issuance of his discharge on September 1, 1898. The period elapsing between his departure from the Vulcan and his discharge was not preliminary or incidental to his discharge, and he therefore appears to have been taken away from the service at the time of discharge. Upon that date his status appears to have been that of an officer absent from sea duty on leave and the pay to which he was entitled to have been leave pay. Under the decision in the Hite case he was entitled to two months' extra pay computed at such rate. (See 18 Comp. Dec., 875; 63 MS. Comp. Dec., 874, Nov. 26, 1912; id., 940, Nov. 30, 1912.) He has been paid the same as stated by the auditor.

PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE AS A PART OF TRAVELING EXPENSES.

Employees of the General Land Office whose compensation is fixed by law can be paid a per diem in lieu of subsistence as a part of their traveling expenses only when they are brought within the exception made by the act of June 23, 1913 (38 Stat., 46), to the act of March 3, 1875 (18 Stat., 452), by being engaged on surveys specifically authorizing the payment of such per diem.

Comptroller Downey to the Secretary of the Interior, March 12, 1914:

I have your letter of the 7th instant, requesting my decision as to whether you are authorized to allow a per diem in lieu of subsistence to employees engaged on surveys of Indian lands and other lands when the appropriation for such survey does not specifically authorize such allowance.

In this connection you call my attention to the provisions, giving authority for the allowance of such per diem in the act of June 23, 1913 (38 Stat., 46), making appropriation for " Surveying the public lands" for the current year; also to the provisions of section 2115, Revised Statutes, requiring that "Indian or other reservations, or * * shall be surveyed lands as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed."

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There is a comprehensive statute governing traveling expenses of all persons holding office or appointment under the United States. The act of March 3, 1875 (18 Stat., 452), provides that—

"Hereafter only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States."

Some exceptions have been made by Congress to the general operation of this statute but they have been made in specific terms as, for instance, in the matter of the "per diem allowance in lieu of subsistence, not exceeding $3" to surveyors and clerks detailed in the work of surveying and resurveying the public lands. This is the exception mentioned by you under the appropriation of $700,000, made by the act of June 23, 1913 (38 Stat., 46), for surveying the public lands.

It has also been held that a per diem in lieu of subsistence may be agreed upon as a part of compensation to be paid from "lump-sum appropriations where the compensation of the employee is not fixed by law. Where, however, an officer's or employee's compensation is fixed by law "no part of any traveling expenses which such employee may incur can be commuted or paid upon the basis of an estimated per diem allowance as distinguished from the actual expenditure as shown by the items." (17 Comp. Dec., 618.)

This rule is applicable to the case presented by you, and if the employees of the General Land Office, as mentioned in your letter, are "within the classified service" and have their compensation fixed by law they can be paid a per diem in lieu of subsistence as a part of their traveling expenses only when they are brought within the exception to the act of March 3, 1875, supra, by being engaged on surveys specifically authorizing the payment of such per diem. The requirement of section 2115, Revised Statutes, quoted by you, that" Indian or other reservation, or any lands shall be surveyed * as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed," has no application to create an exception to the later statute of March 3, 1875, supra, limiting to actual traveling expenses the amount that may be paid to officers and employees of the Government when traveling under orders on public business.

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I have the honor, therefore, to answer your question in the negative.

TRANSPORTATION TO THE STATES OF AN EMPLOYEE OF THE ISTHMIAN CANAL COMMISSION.

An employee of the Isthmian Canal Commission who had been granted leave of absence with pay to visit the United States, and who was discharged while on said leave, is not entitled to reimbursement of the cost of transportation to the States.

Decision by Comptroller Downey, March 13, 1914:

J. Marion Machette, of Lima, Ohio, late an employee of the Isthmian Canal Commission, requested March 9, 1914, a revision of

the action of the Auditor for the War Department in disallowing his claim for refundment of $20, being the amount paid by him for transportation to the United States when entering on 42 days' leave of absence, as shown by said auditor's certificate of settlement No. 495537, dated February 17, 1914.

The facts in this case are stated in a letter from the chairman of the Isthmian Canal Commission to the Washington office on January 23, 1914, which reads:

"Under date of July 8, 1913, Mr. Matchette, who was employed as locomotive engineer, applied for and was granted 42 days' leave of absence with pay, effective August 13, 1913. He sailed from Cristobal on the steamship Panama, which cleared August 13, 1913, paying the employees' rate of $20 to which he was entitled under the conditions of his employment on the vessels of the Panama Railroad Steamship Line between Cristobal and New York when entering upon or returning from authorized leave of absence.

Shortly after Mr. Matchette left the Isthmus it became necessary to make a considerable reduction in the force of locomotive engineers, and Mr. Matchette was selected, along with several others, for discharge. Your office was accordingly instructed by cable under date of September 4, 1913, to notify Mr. Matchette that his services had been terminated on account of reduction in force.

"The general conditions of employment provide that 'employees from the United States will be given return transportation upon the termination, by or at the instance of the commission, of satisfactory service, the character of such service to be determined by the head of the department in which employed.'

"The ground upon which Mr. Matchette bases his claim for reimbursement of the money paid by him for transportation from Cristobal to New York is that, had he been notified prior to his departure from the Isthmus that his services would not be required, he would under the regulations have been entitled to free transportation to the United States. While I believe there is merit in Mr. Matchette's claim, I have taken the position that, inasmuch as he was granted the reduced rate to which he was entitled when entering upon leave of absence, and his services were terminated while he was in the United States, I have no authority under existing rules to grant the refund requested."

In a similar question presented to this office, it was held in 52 MS. Comp. Dec., 1164, that:

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There is no authority in the regulations of the commission for the payment of transportation to the States of employees going on leave of absence."

The letter of the chairman of the commission indicates that it was not determined to discharge the claimant until after he left the Isthmus pursuant to his granted leave.

The auditor's disallowance of the claim for reimbursement of this item is affirmed.

42853°- -VOL 20-1440

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