B-34534, JUNE 4, 1943, 22 COMP. GEN. 1074

B-34534: Jun 4, 1943

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THAT PAYMENT OF THE TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES WHO APPEAR AS WITNESSES ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY "IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED" SHALL BE MADE FROM THE APPROPRIATION FOR THE ACTIVITY INVOLVED. RELATES TO INSTANCES WHERE THE WITNESS IS AN EMPLOYEE OF THE INVOLVED DEPARTMENT OR AGENCY AT THE TIME HE TESTIFIES. IS NO LONGER EMPLOYED BY THE ACTIVITY INVOLVED AT THE TIME HE TESTIFIES MAY NOT BE PAID FROM THE APPROPRIATIONS FOR THAT ACTIVITY. ARE REQUIRED BY THE SAID ACT TO BE PAID FROM APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE. A NAVAL OFFICER WHO IS SUBPOENAED TO TESTIFY ON BEHALF OF THE UNITED STATES IN A CIVIL (AS DISTINGUISHED FROM A MILITARY) PROCEEDING IS AN "OFFICER OR EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 850.

B-34534, JUNE 4, 1943, 22 COMP. GEN. 1074

WITNESSES - TRAVELING EXPENSES - GOVERNMENT PERSONNEL TESTIFYING ON BEHALF OF UNITED STATES THE PROVISION IN SECTION 850, REVISED STATUTES, AS AMENDED, THAT PAYMENT OF THE TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES WHO APPEAR AS WITNESSES ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY "IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED" SHALL BE MADE FROM THE APPROPRIATION FOR THE ACTIVITY INVOLVED, RELATES TO INSTANCES WHERE THE WITNESS IS AN EMPLOYEE OF THE INVOLVED DEPARTMENT OR AGENCY AT THE TIME HE TESTIFIES, AND, THEREFORE, THE TRAVELING EXPENSES OF A WITNESS WHO, ALTHOUGH STILL A GOVERNMENT EMPLOYEE, IS NO LONGER EMPLOYED BY THE ACTIVITY INVOLVED AT THE TIME HE TESTIFIES MAY NOT BE PAID FROM THE APPROPRIATIONS FOR THAT ACTIVITY, BUT, RATHER, ARE REQUIRED BY THE SAID ACT TO BE PAID FROM APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE. A NAVAL OFFICER WHO IS SUBPOENAED TO TESTIFY ON BEHALF OF THE UNITED STATES IN A CIVIL (AS DISTINGUISHED FROM A MILITARY) PROCEEDING IS AN "OFFICER OR EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, AS AMENDED, RESPECTING TRAVELING EXPENSES PAYABLE TO OFFICERS AND EMPLOYEES WHEN TESTIFYING ON BEHALF OF THE UNITED STATES, AND, THEREFORE, SUCH A NAVAL OFFICER'S RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSES INCIDENT THERETO IS CONTROLLED BY THE PROVISIONS OF THE SAID ACT, RATHER THAN BY THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, RESPECTING THE TRAVEL ALLOWANCES PAYABLE TO MEMBERS OF THE MILITARY AND NAVAL FORCES WHEN TRAVELING ON OFFICIAL BUSINESS PERTAINING TO MILITARY AND NAVAL MATTERS.

COMPTROLLER GENERAL WARREN TO W. E. WEIR, DEPARTMENT OF AGRICULTURE, JUNE 4, 1943:

I HAVE YOUR LETTER OF MAY 11, 1943, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, PUBLIC LAW NO. 389, 77TH CONGRESS, THERE IS TRANSMITTED HEREWITH FOR ADVANCE DECISION TRAVEL REIMBURSEMENT VOUCHER IN FAVOR OF LIEUTENANT ERNEST I. HARRISON, U.S.N.R., U.S. NAVY DEPARTMENT, 229 KRAMER BUILDING, ELIZABETH CITY, NORTH CAROLINA, WHICH IS SUPPORTED BY LETTER OF AUTHORITY NO. 290-/O), DATED MARCH 17, 1943. THE LETTER OF AUTHORIZATION PROVIDES FOR TRAVEL BY COMMON CARRIER FROM ELIZABETH CITY, NORTH CAROLINA TO OXFORD, MISSISSIPPI AND RETURN, TO APPEAR BEFORE THE FEDERAL GRAND JURY OF THE NORTHERN DISTRICT OF MISSISSIPPI AS A GOVERNMENT WITNESS IN RESPONSE TO A SUBPOENA ISSUED BY THE CLERK OF THE FEDERAL COURT. PER DIEM ALLOWANCE -- $6.00. IT IS PROPOSED TO CHARGE THE EXPENSES TO APPROPRIATION 1230106.001 MISCELLANEOUS EXPENSES, DEPARTMENT OF AGRICULTURE.

THE COST OF THE TRAVEL WAS AUTHORIZED ON THIS BASIS IN ACCORDANCE WITH COMPTROLLER GENERAL'S DECISION B-5259 DATED AUGUST 14, 1939 ( C.G. 19:201), THE SYLLABUS OF WHICH READS IN PERTINENT PART AS FOLLOWS:

"WHERE INVESTIGATORS OF THE DIVISION OF INVESTIGATIONS OF THE OFFICE OF PERSONNEL OF THE DEPARTMENT OF AGRICULTURE OBTAIN INFORMATION REGARDING VIOLATIONS OF GENERAL CRIMINAL STATUTES, AND VIOLATIONS OF STATUTES WHICH ARE ADMINISTERED BY THE DEPARTMENT, THE PAYMENT OF THEIR TRAVEL AND SUBSISTENCE EXPENSES WHEN REQUESTED OR SUBPOENAED TO APPEAR AS WITNESSES BEFORE FEDERAL GRAND JURIES AND AT THE CASES WHEN THEY COME TO TRIAL, SHOULD BE MADE FROM THE APPROPRIATION UNDER WHICH THE AUTHORIZED EXPENSES OF OTHER OFFICIAL TRAVEL BY SAID EMPLOYEES OF THE DEPARTMENT ARE MADE, IN THE ABSENCE OF SPECIAL STATUTORY PROVISION TO THE CONTRARY.' ( ITALICS SUPPLIED.)

WHILE LIEUTENANT HARRISON WAS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE AT THE TIME HE OBTAINED INFORMATION REGARDING VIOLATIONS OF FEDERAL STATUTES, HE IS NOW SERVING IN THE NAVY DEPARTMENT. THE QUESTION IS THEREFORE RAISED AS TO THE PROPRIETY OF PAYING HIS TRAVELING EXPENSES ON THE PER DIEM BASIS COVERED BY THE ACT OF JUNE 3, 1926 (44 STAT. 688) AND AMENDMENTS THERETO REGULATING THE SUBSISTENCE EXPENSES OF CIVILIAN OFFICERS AND EMPLOYEES WHILE ABSENT FROM THEIR DESIGNATED POSTS OF DUTY ON OFFICIAL BUSINESS, IN VIEW OF DECISIONS OF THE COMPTROLLER GENERAL FROM WHICH WE QUOTE BELOW:

DECISION DATED AUGUST 31, 1921 ( C.G. 1:98):

"OFFICERS OF THE ARMY AND NAVY WHO ARE DETAILED FOR DUTY WITH THE UNITED STATES SHIPPING BOARD OR ANY OTHER CIVIL BRANCH OF THE GOVERNMENT ARE ENTITLED TO THE SAME TRAVELING ALLOWANCES THAT THEY ARE ENTITLED TO WHEN ASSIGNED TO DUTY IN THE MILITARY OR NAVAL SERVICE AND NO OTHER UNLESS SPECIFIC PROVISION IS MADE BY STATUTE FOR OTHER TRAVELING ALLOWANCES.'

DECISION NO. B-27420 DATED AUGUST 7, 1942 ( C.G. 22:127):

"A GOVERNMENT EMPLOYEE WHO HAS BEEN INDUCTED INTO THE MILITARY SERVICE MAY NOT BE PAID COMPENSATION FOR, OR TRAVELING EXPENSES INCIDENT TO, SERVICES RENDERED IN HIS CIVILIAN POSITION DURING A PERIOD OF FURLOUGH WITH PAY FROM THE MILITARY SERVICE. A GOVERNMENT EMPLOYEE WHO IS INDUCTED OR ENLISTED IN THE ARMY OR NAVY AND IS THEREAFTER PLACED ON INACTIVE DUTY WITHOUT PAY AS A MEMBER OF THE RESERVE--- DISTINGUISHED FROM A PERSON IN AN ACTIVE-DUTY STATUS WITH PAY IN THE MILITARY OR NAVAL SERVICE MAY BE EMPLOYED IN A CIVILIAN POSITION AND RECEIVE THE COMPENSATION THEREOF DURING THE PERIOD OF SUCH INACTIVE RESERVE STATUS.'

REFERENCE IS ALSO MADE TO SECTION 12 OF PUBLIC LAW 607 APPROVED JUNE 16, 1942, WHICH READS AS FOLLOWS:

"SEC. 12. OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. ACTUAL EXPENSES ONLY SHALL BE PAID FOR TRAVEL UNDER ORDERS IN ALASKA AND OUTSIDE THE LIMITS OF THE UNITED STATES IN NORTH AMERICA.

"UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY: PROVIDED, 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, AVIATION CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTIONS 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.

"TRAVEL BY PERSONNEL OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, ON COMMERCIAL AIRCRAFT, DOMESTIC OR FOREIGN, INCLUDING TRAVEL BETWEEN AIRPORTS AND CENTERS OF POPULATION OR POSTS OF DUTY WHEN INCIDENTAL TO TRAVEL ON COMMERCIAL AIRCRAFT, SHALL BE ALLOWED AT PUBLIC EXPENSE WHEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY, AND TRANSPORTATION REQUESTS FOR SUCH TRAVEL MAY BE ISSUED UPON SUCH AUTHORIZATIONS. SUCH EXPENSE SHALL BE ALLOWED WITHOUT REGARD TO COMPARATIVE COSTS OF TRANSPORTATION BY AIRCRAFT WITH OTHER MODES OF TRANSPORTATION.

"INDIVIDUALS BELONGING TO ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE NATIONAL GUARD AND THE RESERVES OF SUCH SERVICES, TRAVELING UNDER COMPETENT ORDERS WHICH ENTITLE THEM TO TRANSPORTATION OR TRANSPORTATION AND SUBSISTENCE AS DISTINGUISHED FROM MILEAGE, WHO, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, TRAVEL BY PRIVATELY OWNED CONVEYANCE SHALL BE ENTITLED, IN LIEU OF TRANSPORTATION BY THE SHORTEST USUALLY TRAVELED ROUTE NOW AUTHORIZED BY LAW TO BE FURNISHED IN KIND, TO A MONEY ALLOWANCE AT THE RATE OF 3 CENTS PER MILE FOR THE SAME DISTANCE: PROVIDED, THAT THIS PROVISION SHALL NOT APPLY TO ANY PERSON ENTITLED TO TRAVELING EXPENSES UNDER THE SUBSISTENCE EXPENSE ACT OF 1926.'

IT HAS ALSO BEEN SUGGESTED THAT POSSIBLY THE TRAVELING EXPENSES OF LT. HARRISON MAY BE PROPERLY PAYABLE PURSUANT TO THE PROVISIONS OF SECTION 850, REVISED STATUTES, AS AN OFFICER IN ACTIVE MILITARY SERVICE SUBPOENAED TO APPEAR IN A CIVIL ACTION. SEE 4 COMP. DEC. 146, ID. 752, 3 COMP. GEN. 271. IN SUCH EVENT, OF COURSE, THE EXPENSES WOULD BE PAID ON AN ACTUAL EXPENSE BASIS AND WOULD BE REIMBURSED TO THE OFFICER BY THE UNITED STATES MARSHAL FROM THE APPROPRIATION OF THE DEPARTMENT OF JUSTICE FOR FEES AND EXPENSES OF WITNESSES. SUCH METHOD OF SETTLEMENT WOULD, IN EFFECT, BE ON THE THEORY THAT NOTWITHSTANDING THE FACT THAT THE INDIVIDUAL CONCERNED HAD ACQUIRED THE INFORMATION DESIRED WHILE HOLDING A CIVIL POSITION WITH THE UNITED STATES, HE WOULD NOW BE FURNISHING SUCH EVIDENCE MERELY AS ANY OTHER MILITARY OFFICER WOULD BE IN GIVING TESTIMONY IN A CIVIL ACTION.

IT MAY BE MATERIAL TO NOTE THAT LT. HARRISON IS ON MILITARY FURLOUGH FROM HIS POSITION IN THIS DEPARTMENT PURSUANT TO THE PROVISIONS OF SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT.

THERE ARE NOW PENDING BEFORE THE COURTS OTHER CASES OF VIOLATION OF STATUTES IN WHICH THE DEPARTMENT INVESTIGATORS WHO OBTAINED THE INFORMATION HAVE BEEN INDUCTED INTO OR HAVE ENLISTED IN MILITARY SERVICE. IT IS HIGHLY PROBABLE THAT, AS IN THIS INSTANCE, THESE INVESTIGATORS NOW IN THE MILITARY SERVICES WILL BE SUBPOENAED BY THE COURTS TO APPEAR AS WITNESSES FOR THE UNITED STATES, AND THE DEPARTMENT WILL BE EXPECTED TO PAY THE TRAVELING EXPENSES OF SUCH INVESTIGATORS. YOUR DECISION AS TO WHETHER THE ATTACHED VOUCHER IS PROPERLY FOR PAYMENT, AND THE METHOD TO BE EMPLOYED IN MAKING REIMBURSEMENT THEREOF IS THEREFORE RESPECTFULLY REQUESTED.

IT IS UNDERSTOOD FROM YOUR LETTER THAT LIEUTENANT HARRISON PERFORMED THE TRAVEL IN QUESTION SOLELY FOR THE PURPOSE OF TESTIFYING ON BEHALF OF THE GOVERNMENT BEFORE THE FEDERAL GRAND JURY OF THE NORTHERN DISTRICT OF MISSISSIPPI AS TO MATTERS WHICH CONSTITUTED A PART OF HIS OFFICIAL DUTIES WHILE SERVING AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE. HENCE, SINCE THIS CASE DOES NOT APPEAR TO INVOLVE THE DETAIL OF AN OFFICER OF THE NAVY FOR THE PERFORMANCE OF DUTY WITH A CIVIL BRANCH OF THE GOVERNMENT, OR THE MATTER OF CONTEMPORANEOUS EMPLOYMENT IN A CIVILIAN AND MILITARY STATUS, THE DECISIONS, 1 COMP. GEN. 98; 22 ID. 127, QUOTED IN YOUR SUBMISSION ARE NOT CONTROLLING IN THE PRESENT MATTER. MOREOVER, AS THE DUTY PERFORMED WAS NOT IMPOSED BY REASON OF THE OFFICER'S NAVAL STATUS, BUT BY REASON OF THE GOVERNMENT'S REQUIREMENT IN ITS CIVIL CAPACITY, THERE ARE NOT FOR APPLICATION HERE THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 364, REFERRED TO BY YOU, SINCE THE SAID ACT GOVERNS THE TRAVEL ALLOWANCES TO MEMBERS OF THE MILITARY AND NAVAL FORCES WHEN TRAVELING ON OFFICIAL BUSINESS PERTAINING TO MILITARY AND NAVAL MATTERS. THE AUTHORIZATION BY THE NAVY DEPARTMENT FOR THE PERFORMANCE OF THE TRAVEL HERE INVOLVED CONTAINED IN LETTER OF MARCH 18, 1943, FROM THE CHIEF OF NAVAL PERSONNEL, WAS MERELY BY REASON OF THE OFFICER'S NAVAL STATUS, AND NOT BECAUSE OF NAVAL DUTIES TO BE PERFORMED THEREUNDER. IT WAS IN THE NATURE OF AN ACQUIESCENCE TO THE CALL TO PERFORM A CIVIL DUTY, AND DOES NOT CONTROL THE OFFICER'S RIGHT TO REIMBURSEMENT FOR EXPENSES INCURRED IN THE PERFORMANCE OF SUCH CIVIL DUTY. 3 COMP. GEN. 271.

THEREFORE, THE DUTY IMPOSED SEEMS TO FALL CLEARLY WITHIN THE PROVISIONS OF SECTION 850 OF THE REVISED STATUTES, WHICH HAS BEEN AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, PUBLIC LAW 845, TO READ AS FOLLOWS:

WHEN ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IS SUMMONED AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, AND IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, MILEAGE AT A RATE NOT TO EXCEED 5 CENTS PER MILE, TOGETHER WITH A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, SHALL, WHEN SWORN TO, BE PAID BY THE UNITED STATES MARSHAL UPON CERTIFICATE OF THE UNITED STATES ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER, BUT NO OTHER MILEAGE OR COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED. WHENEVER ANY SUCH OFFICER OR EMPLOYEE OF THE UNITED STATES PERFORMS TRAVEL IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES AND PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE, SUCH PAYMENT TO BE MADE BY THE DISBURSING OFFICER CHARGED WITH THE DISBURSEMENT OF FUNDS UNDER THAT APPROPRIATION AFTER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

PRIOR TO ITS RECENT AMENDMENT, SECTION 850, REVISED STATUTES, REFERRED TO "ANY CLERK OR OFFICER OF THE UNITED STATES," BUT, EVEN THAT MORE RESTRICTIVE LANGUAGE HAS BEEN REGARDED AS INCLUDING MEMBERS OF THE MILITARY FORCES WHO ARE CALLED UPON TO TESTIFY FOR THE UNITED STATES IN A CIVIL (AS DISTINGUISHED FROM A MILITARY) PROCEEDING. SEE UNITED STATES V. NATIONAL SURETY COMPANY, 168 F. 314; 3 COMP. GEN. 271; 4 ID. 1070; 15 OP. ATTY. GEN. 486; 16 ID. 113. MANIFESTLY, SAID 850 UNDER ITS SLIGHTLY BROADER LANGUAGE AS NOW AMENDED IS APPLICABLE TO PERSONS IN THE MILITARY SERVICE. IT WILL BE OBSERVED FROM THE ABOVE-QUOTED STATUTE THAT WHERE THE OFFICER OR EMPLOYEE APPEARS AS A WITNESS IN A CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED REIMBURSEMENT OF HIS TRAVEL EXPENSES SHALL BE MADE FROM THE APPROPRIATION AVAILABLE THEREFOR UNDER THE CONTROL OF THAT ACTIVITY. BY THE PLAIN TERMS OF THE SAID PROVISION OF LAW SUCH MODE OF REIMBURSEMENT IS REQUIRED WHERE THE WITNESS IS EMPLOYED BY THE ACTIVITY INVOLVED AT THE TIME HE TESTIFIES ON BEHALF OF THE GOVERNMENT; OTHERWISE--- THAT IS TO SAY, WHERE THE WITNESS IS NOT AN EMPLOYEE OF THAT ACTIVITY, BUT AN EMPLOYEE OF SOME OTHER BRANCH OF THE GOVERNMENT-- REIMBURSEMENT OF SAID EXPENSES SHALL BE MADE FROM THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE.

CONSIDERING THEN THE APPLICATION OF THE SAID STATUTE TO THE INSTANT CASE, EVEN THOUGH LIEUTENANT HARRISON OFFICIALLY ASCERTAINED OR INVESTIGATED THE FACTS AS TO WHICH HE TESTIFIED WHILE SERVING IN THE CAPACITY OF A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, THE FACT REMAINS THAT HE WAS NOT EMPLOYED UNDER YOUR DEPARTMENT AT THE TIME HE SO TESTIFIED AND HENCE, IT MUST BE CONCLUDED THAT REIMBURSEMENT OF HIS TRAVELING EXPENSES MAY NOT BE MADE FROM APPROPRIATIONS UNDER THE DEPARTMENT OF AGRICULTURE. SINCE, AS HERETOFORE INDICATED, LIEUTENANT HARRISON MAY BE REGARDED AS AN "OFFICER OR EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THAT TERM APPEARING IN SECTION 850, REVISED STATUTES, AS AMENDED, SUPRA, THE TRAVELING EXPENSES INCURRED BY HIM AND A PER DIEM ALLOWANCE WOULD APPEAR TO BE PROPER FOR PAYMENT "BY THE UNITED STATES MARSHAL UPON CERTIFICATE OF THE UNITED STATES ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER" AS PROVIDED BY SAID STATUTE.

ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER TRANSMITTED WITH YOUR LETTER MAY NOT BE CERTIFIED FOR PAYMENT. THE SAID VOUCHER AND ACCOMPANYING PAPERS ARE RETURNED HEREWITH.