B-56900, MAY 28, 1946, 25 COMP. GEN. 816

B-56900: May 28, 1946

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SUBSISTENCE - MESSES - NAVY AVIATION CADETS WHERE THE ORGANIZATION AND OPERATION OF NAVY AVIATION CADET MESSES WERE SUCH AS TO CONSTITUTE THEM GOVERNMENT. - IS AN IRREGULAR ACCUMULATION OF APPROPRIATED FUNDS MADE AVAILABLE FOR SUBSISTING THE CADETS IN KIND AND SHOULD BE RETURNED TO SAID APPROPRIATIONS. AS FOLLOWS: YOUR DECISION IS REQUESTED WHETHER SURPLUS FUNDS ACCRUING FROM THE OPERATION OF AVIATION CADET MESSES MUST BE CONSIDERED PUBLIC MONIES AND DEPOSITED IN THE TREASURY AS " MISCELLANEOUS RECEIPTS" PURSUANT TO SECTION 3617. OR WHETHER THEY MAY BE CONSIDERED TO HAVE LOST THEIR CHARACTER AS PUBLIC MONIES AFTER THEY WERE PAID INTO THE MESS AND THUS TO BE SUBJECT TO DISPOSAL UNDER INSTRUCTIONS OF THE SECRETARY OF THE NAVY.

B-56900, MAY 28, 1946, 25 COMP. GEN. 816

SUBSISTENCE - MESSES - NAVY AVIATION CADETS WHERE THE ORGANIZATION AND OPERATION OF NAVY AVIATION CADET MESSES WERE SUCH AS TO CONSTITUTE THEM GOVERNMENT, RATHER THAN PRIVATE, MESSES, THE CADETS MUST BE REGARDED AS HAVING BEEN SUBSISTED AT GOVERNMENT EXPENSE WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, SO AS NOT TO BE ENTITLED TO THE MONEY ALLOWANCE IN LIEU OF SUBSISTENCE AUTHORIZED THEREBY, AND, THEREFORE, THE SURPLUS ACCUMULATED FROM FUNDS TRANSFERRED FROM SUBSISTENCE APPROPRIATIONS FOR THE OPERATION OF SUCH MESSES--- PURPORTEDLY IN THE FORM OF SUCH MONEY ALLOWANCE--- IS AN IRREGULAR ACCUMULATION OF APPROPRIATED FUNDS MADE AVAILABLE FOR SUBSISTING THE CADETS IN KIND AND SHOULD BE RETURNED TO SAID APPROPRIATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 28, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 29, 1946, E.G; AS FOLLOWS:

YOUR DECISION IS REQUESTED WHETHER SURPLUS FUNDS ACCRUING FROM THE OPERATION OF AVIATION CADET MESSES MUST BE CONSIDERED PUBLIC MONIES AND DEPOSITED IN THE TREASURY AS " MISCELLANEOUS RECEIPTS" PURSUANT TO SECTION 3617, REVISED STATUTES (31 U.S.C. 484), OR WHETHER THEY MAY BE CONSIDERED TO HAVE LOST THEIR CHARACTER AS PUBLIC MONIES AFTER THEY WERE PAID INTO THE MESS AND THUS TO BE SUBJECT TO DISPOSAL UNDER INSTRUCTIONS OF THE SECRETARY OF THE NAVY.

THERE IS ENCLOSED COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL TO THE CHIEF OF NAVAL PERSONNEL DATED FEBRUARY 28, 1945 (JAG:II:RT: BB, L1- 1/NA47,) ON THE SUBJECT, WHICH GIVES THE HISTORY OF HOW THESE FUNDS WERE DERIVED AS WELL AS THE VIEWS OF THIS OFFICE TO THE EFFECT THAT THE FUNDS IN QUESTION ARE NOT PUBLIC MONIES.

THERE ARE ALSO ENCLOSED COPY OF THE SECRETARY OF THE NAVY'S LETTER OF APRIL 9, 1945 ( G:II:HJD:EC), PROMULGATING GENERAL REGULATIONS GOVERNING THE OPERATION OF AVIATION CADET MESSES, AND OF THE JUDGE ADVOCATE GENERAL'S LETTER OF JULY 12, 1945, ( JAG:II:HJD:EC), RECOMMENDING THAT THE SURPLUS FUNDS ACCRUING FROM AVIATION CADET MESSES BE HELD INTACT IN THE NATURE OF AN ESCROW WITHOUT DIMINUTION OR SUBSTITUTION UNTIL SUCH TIME AS A DEFINITE DETERMINATION CAN BE MADE AS TO THE DISPOSITION THEREOF. PURSUANT TO THE JUDGE ADVOCATE GENERAL'S LETTER OF JULY 12, 1945, SUCH SURPLUS FUNDS HAVE BEEN DEPOSITED IN THE NAVAL OFFICER'S MESS CENTRAL CONTINGENCY FUND, WHICH FUND IS UNDER THE JURISDICTIONAL CONTROL OF THE CHIEF OF NAVAL PERSONNEL, THE GENERAL PURPOSE OF WHICH IS TO PROVIDE OUT OF ACCUMULATED MONIES A FUND FOR AID AND ASSISTANCE TO NAVAL COMMISSIONED AND WARRANT OFFICERS' MESSES INDIVIDUALLY AND GENERALLY. THE SURPLUS FUNDS FROM AVIATION CADET MESSES WHILE DEPOSITED WITH FUNDS FROM COMMISSIONED AND WARRANT OFFICERS' MESSES HAVE BEEN HELD INTACT AWAITING FINAL DECISION AS TO THEIR STATUS.

PLANS ARE NOW BEING MADE TO DISPOSE OF THE FUNDS IN THE NAVAL OFFICERS' MESS CENTRAL CONTINGENCY FUND. ACCORDINGLY, AN EARLY REPLY WILL BE APPRECIATED.

THE FUNDS IN QUESTION ARE STATED TO REPRESENT THE SURPLUS ACCRUING FROM THE PAYMENT OF THE SUBSISTENCE ALLOWANCE OF $1 A DAY, AUTHORIZED FOR AVIATION CADETS, DIRECT TO THE AVIATION CADET MESSES UNDER THE PROVISIONS OF THE ACT OF JANUARY 20, 1942, 56 STAT. 9, WHICH PROVIDES:

THAT THE SUBSISTENCE ALLOWANCE PROVIDED FOR AVIATION CADETS IN THE ACT OF APRIL 15, 1935 (49 STAT. 157; U.S.C., TITLE 34, SUPP. V., SEC. 843), MAY BE PAID TO MESSES IN THE SAME MANNER AS PRESCRIBED IN THE ACT OF MARCH 14, 1940 ( PUBLIC NUMBERED 433, SEVENTY-SIXTH CONGRESS). THE ACT OF MARCH 14, 1940, 54 STAT. 50, PROVIDES:

THAT THE ACT ENTITLED " AN ACT MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE THIRTIETH, NINETEEN HUNDRED AND THREE, AND FOR OTHER PURPOSES," APPROVED JULY 1, 1902 (32 STAT. 662), INSOFAR AS THE PROVISIONS THEREOF ARE EMBODIED IN SECTION 908 OF TITLE 34 OF THE U.S.C. IS HEREBY AMENDED TO READ AS FOLLOWS:

"MONEY ACCRUING FROM THE COMMUTED RATIONS OF ENLISTED MEN LEGALLY ASSIGNED TO DUTY WITH OFFICERS' OR OTHER MESSES, AFLOAT OR ASHORE, MAY BE PAID UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY.' THE SUBSISTENCE ALLOWANCE OF $1 A DAY FOR AVIATION CADETS WAS ORIGINALLY AUTHORIZED BY SECTION 2 OF THE ACT OF APRIL 15, 1935, 49 STAT. 157, WHICH PROVIDED:

* * * AVIATION CADETS SHALL BE PAID, IN ADDITION, A MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY. * * * THAT ACT WAS REPEALED BY THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737, THE LATER ACT PROVIDING FOR SUCH SUBSISTENCE ALLOWANCE AS FOLLOWS (SECTION 4):

* * * TO EACH AVIATION CADET WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE, THERE SHALL BE PAID, IN ADDITION, A MONEY ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY * * *. (ITALICS SUPPLIED.) IN DECISION OF OCTOBER 19, 1944, B- 44923, IT WAS HELD THAT SUCH MONEY ALLOWANCE FOR SUBSISTENCE PROVIDED FOR IN THE 1942 ACT COULD BE PAID TO THE MESSES IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JANUARY 20, 1942, SUPRA.

WHILE APPARENTLY AVIATION CADET MESSES WERE IN EXISTENCE AT LEAST SINCE 1942, IT IS UNDERSTOOD INFORMALLY THAT THERE WERE NO REGULATIONS ISSUED REGARDING THEIR OPERATION, OR THE PAYMENT TO SUCH MESSES OF THE SUBSISTENCE ALLOWANCE AUTHORIZED FOR AVIATION CADETS, EXCEPT THOSE ISSUED BY THE SECRETARY OF THE NAVY ON APRIL 9, 1945, WHICH PROVIDE AS FOLLOWS:

REFERENCE: (A) ACT OF CONGRESS APPROVED AUGUST 4, 1942 (56 STAT.

737; TITLE 34 U.S.C. SUPP. III 850C)

(B) ACT OF CONGRESS APPROVED JANUARY 20, 1942 (56 STAT.

9; TITLE 34 U.S.C. SUPP. III NOTE TO SECT.

850C)

(C) ACT OF CONGRESS APPROVED MARCH 14, 1940 (54 STAT.

50; TITLE 34 U.S.C. 908)

1. UNDER THE AUTHORITY OF REFERENCE (A) EACH AVIATION CADET, WHEN NOT SUBSISTED AT GOVERNMENT EXPENSE, IS ENTITLED TO BE PAID A MONEY ALLOWANCE OF $1.00 PER DAY FOR SUBSISTENCE.

2. SUCH ALLOWANCES BY REFERENCE (B) MAY BE PAID TO THE TREASURER OF AN AVIATION CADET MESS IN THE SAME MANNER AS PRESCRIBED BY REFERENCE (C) RELATING TO THE PAYMENT OF MONEY ACCRUING FROM THE COMMUTED RATIONS OF ENLISTED MEN UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY.

3. THE COMPTROLLER GENERAL OF THE UNITED STATES HAVING HELD THAT THE PROVISIONS OF REFERENCE (B) CONTINUE TO APPLY TO THE MONEY ALLOWANCE PROVIDED FOR THE SUBSISTENCE OF AVIATION CADETS, NOW THEREFORE BY VIRTUE OF THE AUTHORITY VESTED IN THE SECRETARY OF THE NAVY BY REFERENCE (C) THE FOLLOWING BASIC REGULATIONS ARE PROMULGATED:

A. AVIATION CADET MESSES MAY BE ESTABLISHED AND OPERATED SEPARATE FROM, AND INDEPENDENT OF, THE GENERAL ENLISTED MEN'S MESS. WHEN SO ESTABLISHED THEY SHALL BE OPERATED AS AN INTEGRAL PART OF THE NAVY UNDER THE ADMINISTRATIVE CONTROL AND REGULATION OF THE COMMANDANT OR COMMANDING OFFICER OF THE SHORE ACTIVITY WHERE SUCH MESS IS LOCATED, SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED FROM TIME TO TIME BY COMPETENT NAVAL AUTHORITY.

B. WHEN SO ESTABLISHED AND OPERATED, SUCH AVIATION CADET MESSES SHALL NOT BE OPERATED FOR THE FINANCIAL PROFIT OF ANY PERSON, OR GROUP OR COMBINATION OF PERSONS, AND NO INDIVIDUAL SHALL HAVE ANY FINANCIAL INTEREST OR RIGHT, IN ANY MANNER WHATSOEVER, IN ANY PROPERTY USED, ACQUIRED OR HELD IN THE OPERATION OF SUCH MESSES.

C. THE MONEY ALLOWANCES GRANTED BY LAW FOR THE SUBSISTENCE OF AN AVIATION CADET NOT SUBSISTED AT GOVERNMENT EXPENSE, SHALL BE PAID TO THE TREASURER OF THE AVIATION CADET MESS, IN WHICH THE CADET IS SUBSISTED AND SUCH MONIES SHALL THEREUPON BECOME THE PROPERTY OF THE MESS. ANY SURPLUS NOW EXISTING OR IN THE FUTURE RESULTING, FROM OPERATIONS OF SUCH MESSES, SHALL BE DISPOSED OF UNDER THE DIRECTION OF THE CHIEF OF NAVAL PERSONNEL, IN THE SAME MANNER AS IS PRESENTLY PRESCRIBED FOR THE DISPOSITION OF THE SURPLUSES OF COMMISSIONED AND WARRANT OFFICERS' MESSES ASHORE. THE SAME RULES AND REGULATIONS THEN APPLYING TO THE DISSOLUTION OF COMMISSIONED AND WARRANT OFFICERS' MESSES ASHORE, SHALL APPLY TO AN AVIATION CADET MESS ON LIQUIDATION.

4. BUREAUS, OFFICERS AND COMMANDS HAVING COGNIZANCE OVER AVIATION CADET MESSES SHALL EFFECTUATE THE PROVISIONS OF THIS ORDER UPON THE RECEIPT HEREOF.

IT WILL BE NOTED THAT UNDER THE QUOTED PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, THE SUBSISTENCE MONEY ALLOWANCE OF $1 PER DAY FOR AVIATION CADETS IS PAYABLE ONLY WHERE SUCH CADETS ARE NOT SUBSISTED AT GOVERNMENT EXPENSE, AND THEN IT IS PAYABLE ONLY TO THE INDIVIDUAL CADETS UNLESS THE SECRETARY OF THE NAVY PRESCRIBES PAYMENT OTHERWISE FOR THEIR ACCOUNT BY REGULATIONS ISSUED PURSUANT TO THE SAID ACTS OF MARCH 14, 1940, AND JANUARY 20, 1942. SINCE IT IS INDICATED THAT THE SUBSISTENCE ALLOWANCES HERE INVOLVED WERE NOT PAID TO THE CADETS AND AS NO REGULATIONS APPARENTLY WERE ISSUED PRIOR TO APRIL 9, 1945, AUTHORIZING THE PAYMENT THEREOF TO AVIATION CADET MESS TREASURERS, IT WOULD APPEAR THAT AT LEAST PRIOR TO APRIL 9, 1945, THE TRANSFERRING OF MONEYS FROM THE APPROPRIATIONS CHARGEABLE WITH THE EXPENSES OF SUBSISTING SUCH CADETS TO SUCH MESS TREASURERS AMOUNTED TO NOTHING MORE THAN A FURNISHING OF SUBSISTENCE AT GOVERNMENT EXPENSE. CF. 26 COMP. DEC. 42.

FURTHERMORE, EVEN HAD REGULATIONS SIMILAR TO THOSE OF APRIL 9, 1945, BEEN IN EFFECT FROM THE INCEPTION OF THE AVIATION CADET MESSES, IT DOES NOT APPEAR THAT THE SITUATION WOULD HAVE BEEN CHANGED MATERIALLY. A PRIVATE MESS ASHORE, THAT IS, ONE NOT OPERATED BY THE GOVERNMENT, IS GENERALLY CONSIDERED TO BE ESTABLISHED VOLUNTARILY BY THE PERSONNEL PARTICIPATING THEREIN AND, WHILE IT IS SUBJECT TO REASONABLE ADMINISTRATIVE DIRECTION AND MUST CONFORM TO CERTAIN RULES AND REGULATIONS, IF OPERATED AT A NAVAL STATION OR NAVAL FACILITIES ARE UTILIZED, ITS INTERNAL OPERATION IS PRIMARILY THE RESPONSIBILITY OF THE MEMBERS OF SUCH MESS. CHARGES ASSESSED AGAINST THE MEMBERS OF SUCH A MESS FUNDAMENTALLY ARE FIXED IN DIRECT PROPORTION TO THE COST OF OPERATION.

NONE OF THE ABOVE BASIC ELEMENTS OF A PRIVATE MESS APPEAR TO BE PRESENT IN CONNECTION WITH THE ESTABLISHMENT AND OPERATION OF THE AVIATION CADET MESSES. IN THE FIRST PLACE, SO FAR AS CAN BE ASCERTAINED, THESE MESSES WERE ESTABLISHED ADMINISTRATIVELY, MUCH IN THE SAME MANNER AS A GENERAL MESS, AND PARTICIPATION THEREIN WAS MADE MORE OR LESS MANDATORY. APPARENTLY THE CADETS DID NOT EXERCISE ANY MEASURE OF CONTROL OVER THE OPERATION OF THE MESS OR OVER THE MONEY WHICH WAS ADMINISTRATIVELY PAID OVER TO THE VARIOUS MESS TREASURERS. IF THERE WAS ANY REAL DISTINCTION INSOFAR AS THE CADETS WERE CONCERNED, BETWEEN THE OPERATION OF SUCH MESSES AND THE OPERATION OF THE GENERAL MESS, IT IS NOT APPARENT. UNDER THE REGULATIONS THEY WERE TO BE OPERATED AS "AN INTEGRAL PART OF THE NAVY" AND "UNDER THE ADMINISTRATIVE CONTROL AND REGULATION OF THE COMMANDANT OR COMMANDING OFFICER OF THE SHORE ACTIVITY WHERE SUCH MESS IS LOCATED.' SUMS OF MONEY, APPARENTLY ARBITRARILY COMPUTED AT $1 PER DAY FOR EACH CADET, WERE TRANSFERRED FROM THE APPLICABLE APPROPRIATION TO THE MESS TREASURERS FOR THEIR OPERATION BUT THERE IS NOTHING IN THE RECORD TO INDICATE THAT SUCH MONEY WAS CURRENTLY CONSIDERED TO BE THE PROPERTY OF THE CADETS. HOW MESSES SO ESTABLISHED AND OPERATED CAN BE DISTINGUISHED FROM GOVERNMENT OPERATED MESSES IS NOT CLEAR. THEY WERE ESTABLISHED NOT BY THE CADETS BUT BY THE NAVY DEPARTMENT; THEIR OPERATION, LIKEWISE, WAS NOT CONTROLLED BY THE CADETS BUT WAS CONTROLLED BY THE NAVY DEPARTMENT; AND THE EXPENDITURE AND DISPOSITION OF THE MONEY WITH WHICH THEY WERE OPERATED--- PURPORTEDLY THE $1 PER DAY SUBSISTENCE ALLOWANCE AUTHORIZED FOR AVIATION CADETS NOT SUBSISTED AT GOVERNMENT EXPENSE--- WERE CONTROLLED BY THE NAVY DEPARTMENT.

SINCE A GOVERNMENT MESS CANNOT BE MADE A PRIVATE MESS SOLELY BY ADMINISTRATIVE DECREE, WHETHER OR NOT A PARTICULAR MESS IS A GOVERNMENT MESS OR A PRIVATE MESS IS A MATTER OF FACT TO BE DETERMINED FROM THE CIRCUMSTANCES SURROUNDING ITS ORGANIZATION AND OPERATION, AND FROM THE FACTS HERE PRESENTED AND DISCUSSED THE CONCLUSION SEEMS REQUIRED THAT THE AVIATION CADETS AT CORPUS CHRISTI AND PENSACOLA WERE ACTUALLY SUBSISTED IN A GOVERNMENT MESS AT GOVERNMENT EXPENSE. ACCORDINGLY, THE RIGHT TO THE SUBSISTENCE ALLOWANCE OF $1 A DAY NEVER ACCRUED TO THE CADETS AND ON THAT BASIS THE SO-CALLED SURPLUS OF FUNDS RESULTING FROM THE OPERATION OF THE AVIATION CADET MESSES IN QUESTION MUST BE CONSIDERED AS AN IRREGULAR ACCUMULATION OF APPROPRIATED FUNDS MADE AVAILABLE FOR SUBSISTING THE CADETS IN KIND AND THUS, BEING APPROPRIATED PUBLIC FUNDS, THEY SHOULD NOW BE RETURNED AND DEPOSITED TO THE CREDIT OF THE APPROPRIATIONS AGAINST WHICH THEY WERE CHARTED.

IT MAY BE STATED, HOWEVER, THAT EVEN WHERE IT ESTABLISHED THAT SUCH AVIATION CADET MESSES WERE BONA FIDE PRIVATE MESSES AND THAT THE APPROPRIATED FUNDS WERE ADMINISTRATIVELY PAID OVER TO THEM AS FOR THE ACCOUNT OF THE INDIVIDUAL CADET MEMBERS AND THAT THEREUPON THEY LOST THEIR IDENTITY AS PUBLIC FUNDS, IT WOULD APPEAR THAT SUCH FUNDS THEREUPON WOULD HAVE BECOME THE PROPERTY OF THE MEMBERS OF THE MESS AND, EXCEPT FOR ANY CLAIMS THE GOVERNMENT MIGHT HAVE, THAT ANY SURPLUS ACCRUING SHOULD HAVE BEEN CREDITED TO SUCH MEMBERS INDIVIDUALLY IN DIRECT PROPORTION TO THE AMOUNT EACH THUS CONTRIBUTED TO THE MESS. AS TO ANY CLAIM BY THE GOVERNMENT UNDER SUCH CIRCUMSTANCES, IT WOULD APPEAR, IN VIEW OF THE LARGE SURPLUS ACCUMULATED DURING THE COMPARATIVELY SHORT PERIOD OF TIME THE MESSES WERE IN OPERATION--- $600,000 AT CORPUS CHRISTI AND APPROXIMATELY $240,000 AT PENSACOLA--- THAT THE AMOUNTS PAID IN HAD LITTLE THE ACTUAL COST OF OPERATING SUCH MESSES UNLESS A SUBSTANTIAL PART OF THE COST WAS OTHERWISE IMPOSED ON THE GOVERNMENT BY THE USE OF GOVERNMENT SERVICES AND FACILITIES SO THAT THE SURPLUSES REPRESENT, IN EFFECT, A PROFIT RESULTING FROM SUCH USE. ALSO, IT MAY BE NOTED THAT IT WAS STATED IN THE NAVY DEPARTMENT'S LETTER OF OCTOBER 2, 1944, CONSIDERED IN THE DECISION OF OCTOBER 19, 1944, SUPRA, THAT: UNDER THE ABOVE QUOTED PROVISION FROM THE ACT OF JANUARY 20, 1942, THE ALLOWANCE FOR SUBSISTENCE OF $1 PER DAY FOR AVIATION CADETS WAS AUTHORIZED TO BE PAID DIRECT TO THE TREASURER OF THE AVIATION CADET MESS. ACCORDINGLY, IT APPEARS THAT ANY SURPLUS OVER AND ABOVE THE COST FOR SUBSISTENCE OF AVIATION CADETS AT THE END OF THE MONTH, PROVIDED THEY WERE NOT SUBSISTED AT GOVERNMENT EXPENSE, PROPERLY BELONGS TO THE MEMBERS OF THE MESS AND MAY, THEREFORE, BE DISPOSED OF IN SUCH MANNER AS SAID MEMBERS MAY DESIRE. ( ITALICS SUPPLIED.)

THAT SUCH MONEYS, IF NOT PUBLIC MONEYS, REMAINED THE PROPERTY OF THE CADETS, IS ALSO INFERRED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DATED FEBRUARY 28, 1946, ADDRESSED TO THE CHIEF OF NAVAL PERSONNEL, PARAGRAPH 19 OF WHICH READS:

IT IS SUGGESTED THAT SINCE AVIATION CADETS ARE NOW CLASSIFIED BY LAW AS ENLISTED MEN ( ACT OF 4 AUGUST 1942, 56 STAT. 737; 34 U.S.C. 850A), THERE MAY BE A MATTER OF POLICY INVOLVED IN USING THE SURPLUS FUNDS UNDER CONSIDERATION FOR THE WELFARE OF OFFICER PERSONNEL.

IT DOES NOT APPEAR THAT ANY OF THE AVIATION CADETS CONCERNED HAVE VOLUNTARILY RELINQUISHED ANY RIGHT THEY MIGHT HAVE HAD TO THE FUNDS IN QUESTION. THEREFORE, EVEN IF THE FUNDS WERE NOT PUBLIC FUNDS, IF THE PERSONS WHO CONTRIBUTED TO SUCH FUNDS DEFINITELY MIGHT NOW BE DETERMINED AND THE VALUE OF THEIR INDIVIDUAL INTEREST THEREIN ESTABLISHED, THE MONEY WOULD HAVE TO BE DEPOSITED IN ACCORDANCE WITH THE PROVISIONS OF THE PERMANENT APPROPRIATION REPEAL ACT, 1934, 48 STAT. 1224, PENDING SUCH DETERMINATION AND DISTRIBUTION, AND IF SUCH DETERMINATION WERE NOT POSSIBLE SUCH FUNDS WOULD HAVE TO BE REGARDED AS UNIDENTIFIED FUNDS IN THE HANDS OF THE GOVERNMENT AND WOULD BE FOR DEPOSITING AND COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, SEE 12 COMP. GEN. 365. HOWEVER FOR THE REASONS STATED ABOVE, I THINK THE CONCLUSION IS REQUIRED THAT THE CADETS WERE SUBSISTED AT GOVERNMENT EXPENSE WITHIN THE MEANING OF SECTION 4 OF THE NAVAL AVIATION CADET ACT OF 1942, AND, HENCE, THAT THE FUNDS IN QUESTION REMAINED APPROPRIATED PUBLIC FUNDS AND, AS SUCH, ARE REQUIRED TO BE RECREDITED TO THE APPROPRIATIONS INVOLVED.