B-66174, JANUARY 5, 1948, 27 COMP. GEN. 361

B-66174, JANUARY 5, 1948, 27 COMP. GEN. 361

SUBSISTENCE - PER DIEMS - NAVAL RESERVE OFFICERS RELIEVED FROM NAVAL ASSIGNMENTS AND DETAILED FOR DUTY WITH COAL MINES ADMINISTRATION NAVAL RESERVE OFFICERS WHO, AFTER THE DATES SCHEDULED FOR THEIR RELEASE FROM ACTIVE DUTY, REMAINED ON ACTIVE DUTY AT THEIR PERMANENT DUTY STATIONS FOR THE PERFORMANCE OF TEMPORARY DUTY WITH THE COAL MINES ADMINISTRATION MAY BE PAID PER DIEM IN LIEU OF SUBSISTENCE FOR SUCH TEMPORARY DUTY FROM FUNDS ALLOCATED TO THE SECRETARY OF THE INTERIOR FROM THE " EMERGENCY FUND FOR THE PRESIDENT" FOR NECESSARY EXPENSES IN CONNECTION WITH THE SEIZURE AND OPERATION OF THE COAL MINES, EVEN THOUGH THEY WERE NOT AWAY FROM THEIR DESIGNATED POSTS OF DUTY WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. 26 COMP. GEN. 902, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JANUARY 5, 1948:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1947, TRANSMITTING TWO VOUCHERS, AND RELATED PAPERS, COMPRISING THE CLAIMS OF LIEUTENANT COMMANDER CHARLES J. O-1NEILL, U.S. NAVAL RESERVE, AND LIEUTENANT ARTHUR B. LYON, U.S. NAVAL RESERVE, FOR REFUNDS OF AMOUNTS WHICH THE NAVY DEPARTMENT CHECKED AGAINST THE PAY OF SUCH OFFICERS ON THE BASIS THAT, UNDER DECISION OF THIS OFFICE DATED FEBRUARY 4, 1947, 26 COMP. GEN. 557, THERE WAS NO AUTHORITY FOR PAYMENTS THERETOFORE MADE TO THE OFFICERS REPRESENTING PER DIEM IN LIEU OF SUBSISTENCE FOR PERIODS DURING WHICH THEY WERE NOT AWAY FROM THEIR DESIGNATED POSTS OF DUTY WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 58 STAT. 730, 37 U.S.C., SUPP. V, 112.

THE CIRCUMSTANCES INVOLVED ARE STATED IN YOUR LETTER, AS FOLLOWS:

THE CLAIMANTS WERE NAVAL OFFICERS ON ACTIVE DUTY IN JUNE 1946, WHO HAD BEEN NOTIFIED THAT THEY WERE TO BE RELEASED FROM ACTIVE DUTY AND HAD BEEN ORDERED TO REPORT FOR SEPARATION PROCESSING. BEFORE BEING ACTUALLY SEPARATED FROM ACTIVE DUTY, THEY WERE REQUESTED TO FOREGO SEPARATION IN ORDER THAT THEY COULD BE ASSIGNED TO THE COAL MINES ADMINISTRATION FOR TEMPORARY DUTY IN CONNECTION WITH THE SEIZURE AND OPERATION OF THE COAL MINES PURSUANT TO EXECUTIVE ORDER NO. 9728, DATED MAY 21, 1946. THE CLAIMANTS WERE ADVISED THAT IF THEY WOULD AGREE TO THE CANCELLATION OF THEIR SEPARATION ORDERS AND REMAIN ON ACTIVE DUTY A PER DIEM OF $7.00 WOULD BE PAID WHILE ON TEMPORARY DUTY WITH THE COAL MINES ADMINISTRATION.

THE NAVAL OFFICERS AGREED TO THE CANCELLATION OF THEIR SEPARATION ORDERS AND WERE ASSIGNED TO THE COAL MINES ADMINISTRATION, WASHINGTON, D.C., FOR TEMPORARY DUTY. WASHINGTON, D.C. WAS THEIR PERMANENT DUTY STATION AT THE TIME THE OFFICERS WERE ASSIGNED TO THE COAL MINES ADMINISTRATION. BOTH OFFICERS WERE PAID $7.00 PER DIEM DURING THE TIME THEY WERE ON TEMPORARY DUTY IN WASHINGTON, D.C. FOLLOWING YOUR RULING ON FEBRUARY 4, 1947, B- 62094, TO THE SECRETARY OF THE NAVY, THE OFFICERS WERE REQUIRED BY THE NAVY DEPARTMENT TO REFUND THE AMOUNTS WHICH THEY HAD RECEIVED AS PER DIEM WHILE ON DUTY IN WASHINGTON. THE OFFICERS HAVE FILED CLAIMS WITH THE COAL MINES ADMINISTRATION IN THE AMOUNTS OF THE REFUNDS MADE.

YOU RECOMMEND THAT THE CLAIMS BE APPROVED FOR PAYMENT FROM FUNDS ALLOTTED TO YOU FROM THE EMERGENCY FUND FOR THE PRESIDENT IN CONNECTION WITH THE OPERATION OF THE COAL MINES BUT YOU INDICATE THAT SINCE THE CLAIMING OFFICERS AGREED TO, AND DID, REMAIN ON ACTIVE DUTY AFTER THE SCHEDULED DATES FOR THEIR RELEASE FROM ACTIVE DUTY, SOLELY FOR THE PURPOSE OF SERVING WITH THE COAL MINES ADMINISTRATION, RATHER THAN HAVING BEEN ORDERED TO ACTIVE DUTY FROM AN INACTIVE STATUS FOR SUCH PURPOSE, YOU HAVE SOME DOUBT WHETHER THEIR CLAIMS ARE FOR ALLOWANCE UNDER THE PRINCIPLE OF DECISION OF THIS OFFICE DATED JUNE 5, 1947, 26 COMP. GEN. 902, IN WHICH IT WAS HELD THAT (QUOTING THE SYLLABUS/---

FUNDS ALLOCATED TO THE SECRETARY OF THE INTERIOR FROM THE " EMERGENCY FUND FOR THE PRESIDENT" IN CONNECTION WITH THE OPERATION OF THE COAL MINES, BEING AVAILABLE FOR EXPENDITURE "WITHOUT REGARD TO THE PROVISIONS OF LAW REGULATING THE EXPENDITURE OF GOVERNMENT FUNDS," ARE AVAILABLE FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO A NAVAL RESERVE OFFICER WHO WAS ORDERED FROM HIS HOME FOR TEMPORARY ACTIVE DUTY WITH THE COAL MINES ADMINISTRATION, EVEN THOUGH THE FACT THAT SUCH OFFICER WAS NOT AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WOULD PRECLUDE THE USE OF NAVAL APPROPRIATIONS FOR SUCH PURPOSE.

IN SUCH DECISION IT WAS STATED THAT---

* * * IN VIEW OF THE BROAD AUTHORITY VESTED IN THE PRESIDENT BY THE STATUTES PROVIDING THE " EMERGENCY FUND FOR THE PRESIDENT," AND IN VIEW OF THE EXPRESS TERMS OF THE PRESIDENT'S LETTERS * * ALLOCATING FUNDS TO THE SECRETARY OF THE INTERIOR, THE SECRETARY IS AUTHORIZED TO USE SUCH FUNDS FOR ANY EXPENSE, ARISING FROM AN EMERGENCY AFFECTING THE NATIONAL SECURITY AND DEFENSE, WHICH REASONABLY MAY BE CONSIDERED A NECESSARY EXPENSE IN CONNECTION WITH THE SEIZURE AND OPERATION OF THE COAL MINES AND "WITHOUT REGARD TO THE PROVISIONS OF LAW REGARDING THE EXPENDITURE OF GOVERNMENT FUNDS.' * * *

WITH RESPECT TO THE APPLICATION OF THE BASIC PRINCIPLE OF THE SAID DECISION OF JUNE 5, 1947, THERE DOES NOT APPEAR TO BE ANY REASON FOR MAKING A DISTINCTION BETWEEN THE CASE OF A RESERVE OFFICER WHO WAS ORDERED FROM HIS HOME TO ACTIVE DUTY FOR SERVICE WITH THE COAL MINES ADMINISTRATION AND THE CASE OF A RESERVE OFFICER WHO, WHILE SERVING ON ACTIVE DUTY, WAS RELIEVED FROM HIS REGULAR NAVAL ASSIGNMENT AND DETAILED FOR SERVICE WITH SUCH ADMINISTRATION UNDER THE CIRCUMSTANCES STATED IN YOUR LETTER. ACCORDINGLY, THIS OFFICE WILL NOT QUESTION YOUR DETERMINATION THAT THE CLAIMS OF COMMANDER O-NEILL AND LIEUTENANT LYON INVOLVE NECESSARY EXPENSES IN CONNECTION WITH THE SEIZURE AND OPERATION OF THE COAL MINES AND THAT THEY PROPERLY ARE PAYABLE FROM THE FUNDS ALLOTTED TO YOUR FROM THE EMERGENCY FUND FOR THE PRESIDENT FOR SUCH NECESSARY EXPENSES, IF OTHERWISE CORRECT.

THE VOUCHERS AND RELATED PAPERS RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH.