APRIL 12, 1923, 2 COMP. GEN. 649

APRIL 12, 1923, 2 COMP. GEN. 649

DOUBLE COMPENSATION - TRAVELING EXPENSES A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 OR MORE MAY NOT BE EMPLOYED IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHED, IT BEING IMMATERIAL THAT HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM THE FIRST POSITION FOR THE PERIOD COVERED BY THE SECOND POSITION. A CIVILIAN EMPLOYEE OF THE GOVERNMENT, APPOINTED FOR DUTY ON A GOVERNMENT TRANSPORT, IS NOT IN A TRAVEL STATUS WHILE ON BOARD SUCH VESSEL AND IS NOT ENTITLED TO REIMBURSEMENT FOR SUBSISTENCE OR LAUNDRY EXPENSES INCURRED WHILE THEREON, NOR TO EXPENSE OF TRANSPORTING HIMSELF AND BAGGAGE BETWEEN THE VESSEL AND HIS HOTEL. TIPS TO ROOM STEWARDS AND MESS BOYS ON A GOVERNMENT TRANSPORT ARE NOT REIMBURSABLE AS TRAVELING OR SUBSISTENCE EXPENSES.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 12, 1923:

THE SECRETARY OF WAR REQUESTED JANUARY 5, 1923, REVIEW OF SETTLEMENT NO. W-879516, DATED DECEMBER 20, 1922, DISALLOWING THE CLAIM OF ALFRED BROOKS FRY FOR $178.60 AS REIMBURSEMENT OF ACTUAL EXPENSES DURING THE PERIOD JULY 20 TO SEPTEMBER 26, 1922, WHILE MAKING A VOYAGE FROM NEW YORK CITY TO SAN FRANCISCO VIA THE PANAMA CANAL, AS CONSULTING ENGINEER ABOARD THE U.S. ARMY TRANSPORT GRANT, AND RETURN AS A PASSENGER ABOARD THE STEAMSHIP ECUADOR FROM LOS ANGELES TO BALBOA, AND ABOARD THE STEAMSHIP COLON FROM CRISTOBAL TO NEW YORK CITY, AND FOR PER DIEM OF $4 WHILE DETAINED FOR 13 DAYS IN SAN FRANCISCO AND FOR 7 DAYS WHILE ON TEMPORARY DUTY IN THE CANAL ZONE.

ALFRED BROOKS FRY WAS REINSTATED AUGUST 5, 1919, AT A SALARY OF $2,900 A YEAR AS SUPERVISING CHIEF ENGINEER, TREASURY DEPARTMENT, WITH STATION IN NEW YORK CITY, AFTER A PERIOD OF SERVICE IN THE UNITED STATES NAVY DURING THE WORLD WAR. HE WAS SO SERVING ON JULY 20, 1922, WHEN HE SOUGHT AND OBTAINED LEAVE OF ABSENCE WITHOUT PAY TO ENABLE HIM TO MAKE A VOYAGE AS CONSULTING ENGINEER ABOARD THE U.S. ARMY TRANSPORT GRANT FROM NEW YORK TO SAN FRANCISCO. THE ASSISTANT AND CHIEF CLERK OF THE WAR DEPARTMENT REPORTED NOVEMBER 9, 1922, THAT MR. FRY WAS IN THE CIVIL SERVICE OF THE WAR DEPARTMENT UNDER A TEMPORARY APPOINTMENT FROM JULY 19, 1922, TO OCTOBER 3, 1922, INCLUSIVE, AND THAT THE CONDITIONS OF HIS EMPLOYMENT WERE "TO PROCEED FROM NEW YORK CITY TO SAN FRANCISCO BY WAY OF THE PANAMA CANAL AND RETURN, HE TO BE PAID AT THE RATE OF $5,000 PER ANNUM AND TO BE ALLOWED SUBSISTENCE AND OTHER TRAVELING EXPENSES WITHIN THE LIMIT OF PARAGRAPH 733, ARMY REGULATIONS.' MR. FRY HAS BEEN PAID AT THE RATE OF $5,000 A YEAR FOR THE PERIOD JULY 19 TO OCTOBER 3, 1922, INCLUSIVE, AND IT APPEARS, BY TELEGRAM TO THE SUPERVISING ARCHITECT OF THE TREASURY, HE RETURNED TO DUTY AS SUPERVISING CHIEF ENGINEER ON SEPTEMBER 27, 1922, AND HAS BEEN PAID AT THE RATE OF $2,900 A YEAR FOR THE PERIOD SUBSEQUENT THERETO.

THE ITEMS AGGREGATING $178.60, REPRESENTING $19.50 AS EXPENSES ABOARD THE U.S. ARMY TRANSPORT GRANT, $52 AS PER DIEM OF $4 FOR 13 DAYS IN SAN FRANCISCO, $16 AS EXPENSES ABOARD THE STEAMSHIP ECUADOR, $5.60 AS TRANSPORTATION EXPENSES IN THE CANAL ZONE, $28 AS PER DIEM OF $4 FOR 7 DAYS WHILE ON TEMPORARY DUTY IN THE CANAL ZONE, $13.50 AS EXPENSES ABOARD THE STEAMSHIP COLON, AND $44 AS EXPENDITURES MADE FOR LAUNDRY, WERE DISALLOWED, IN THE SETTLEMENT OF WHICH REVIEW IS REQUESTED ON THE GROUND THAT A PORTION OF THE TRAVEL WAS ABOARD AN ARMY TRANSPORT AND THAT NO ORDERS HAD BEEN ISSUED IN ACCORDANCE WITH PARAGRAPH 733, ARMY REGULATIONS, FOR ANY OF THE TRAVEL OR PRESCRIBING A PER DIEM ALLOWANCE.

THE ACT OF JUNE 30, 1922, 42 STAT., 729, 730, MAKING APPROPRIATIONS FOR THE MILITARY AND NONMILITARY ACTIVITIES OF THE WAR DEPARTMENT FOR THE FISCAL YEAR DURING WHICH THE VOYAGE IN QUESTION WAS MADE PROVIDED FUNDS FOR THE "EXPENSES OF SAILING PUBLIC TRANSPORTS AND OTHER VESSELS ON THE VARIOUS RIVERS, GULF OF MEXICO, THE ATLANTIC AND PACIFIC OCEANS," AND PAGE 726, FOR THE ,EXPENSES OF MASTERS, OFFICERS, CREWS, AND EMPLOYEES OF THE VESSELS OF THE ARMY TRANSPORT RVICE.' THE SERVICE IN THIS CASE WAS IN THE CAPACITY OF A CONSULTING ENGINEER TO ACCOMPANY AN ARMY TRANSPORT FROM AN ATLANTIC TO A PACIFIC PORT AND RETURN, AT A SALARY OF $5,000 A YEAR AND SUBSISTENCE AND OTHER TRAVELING EXPENSES WITHIN THE LIMITS NAMED IN THE ARMY REGULATIONS.

THE PRECISE QUESTIONS PRESENTED BY THE RECORD FOR DECISION ARE (1) WHETHER AN EMPLOYEE IN ONE DEPARTMENT OF THE GOVERNMENT MAY BE EMPLOYED FOR TEMPORARY SERVICE IN ANOTHER DEPARTMENT AT A HIGHER SALARY WHILE ON LEAVE OF ABSENCE WITHOUT PAY FROM THE PERMANENT POSITION, AND (2) WHETHER ANY OF THE ITEMS OF ACTUAL EXPENSE OR THE PER DIEM CLAIMED IN THIS CASE MAY BE ALLOWED IN VIEW OF THE FACT THAT THE TRAVEL IN PART WAS ON AN ARMY TRANSPORT AND THAT NO ORDERS FOR ANY OF THE TRAVEL WERE ISSUED.

THE FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE FOR THE REASON THAT SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT., 205, PROVIDES THAT:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; * * *.

SECTION 1765, REVISED STATUTES, PROVIDES THAT:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, * * * UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THE FACT THAT MR. FRY WAS AWAY FROM HIS PERMANENT POSITION AS SUPERVISING CHIEF ENGINEER ON LEAVE OF ABSENCE WITHOUT PAY DOES NOT, IN MY OPINION, TAKE HIS CASE OUT OF THE INHIBITIONS CONTAINED IN SECTION 1765, REVISED STATUTES, AND SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT., 205. SEE ALSO THE ACT OF AUGUST 29, 1916, 39 STAT., 582. WHETHER HE ACTUALLY RECEIVED HIS SALARY AS SUPERVISING CHIEF ENGINEER DURING THE PERIOD FROM SEPTEMBER 27 TO OCTOBER 3, 1922, IS IMMATERIAL SO FAR AS THE PRESENT QUESTION IS CONCERNED.

THE PROPER PROCEDURE WOULD HAVE BEEN FOR THE TREASURY DEPARTMENT TO HAVE LOANED MR. FRY TO THE WAR DEPARTMENT, EXPENSES BEING PAID BY THE WAR DEPARTMENT WHILE SO LOANED. SEE 14 COMP. DEC., 94; 15 ID., 692; 16 ID., 161; ID., 422; 19 ID., 784; 20 ID., 694; 22 ID., 242; 1 COMP. GEN., 249; 25 OP.ATTY.GEN., 301; ID., 380.

CONSEQUENTLY IT MUST BE HELD THAT MR. FRY WAS NOT ENTITLED TO THE DIFFERENCE BETWEEN $2,900, AS SALARY AS SUPERVISING CHIEF ENGINEER, AND $5,000, HIS SALARY AS A TEMPORARY EMPLOYEE IN THE WAR DEPARTMENT FOR THE PERIOD FROM JULY 19 TO SEPTEMBER 26, 1922, INCLUSIVE, AMOUNTING TO $396.67, NOR TO PAY AT THE RATE OF $5,000 A YEAR FOR THE PERIOD SEPTEMBER 27, 1922, DAY HE REPORTED FOR DUTY AND DAY HIS SALARY RECOMMENCED AS SUPERVISING CHIEF ENGINEER, TO OCTOBER 3, 1922, INCLUSIVE, DATE TO WHICH PAID UNDER THE TEMPORARY APPOINTMENT, AMOUNTING TO $97.17, A TOTAL OF $493.84.

THERE REMAINS FOR CONSIDERATION CLAIM FOR REIMBURSEMENT OF TRAVELING EXPENSES. THE SERVICE WAS TO ACCOMPANY AN ARMY TRANSPORT FROM AN ATLANTIC TO A PACIFIC PORT AND RETURN. NO ORDERS FOR THE VOYAGE WERE NECESSARY, AS THE WHOLE PURPOSE OF THE EMPLOYMENT WAS TO MAKE THE VOYAGE. THE TERMS OF THE SERVICE FIXED THE RIGHT TO TRAVELING EXPENSES AND PER DIEM ALLOWANCE WITHIN THE LIMITS AND NOT SUBJECT TO THE CONDITIONS OF THE ARMY REGULATIONS.

THE SUM OF $19.50 CLAIMED AS EXPENSE ABOARD THE U.S. ARMY TRANSPORT GRANT REPRESENTS $12 FOR TIPS TO THE ROOM AND MESS BOYS AND $7.50 AS THE COST OF TRANSPORTATION OF SELF AND BAGGAGE FROM HIS PLACE OF ABODE IN NEW YORK CITY TO THE VESSEL AND FROM THE VESSEL TO A HOTEL IN SAN FRANCISCO. NEITHER OF THESE ITEMS MAY BE ALLOWED FOR THE REASON THAT NO REIMBURSEMENT CAN BE ALLOWED FOR TIPS ABOARD AN ARMY TRANSPORT, 7 COMP. DEC., 237, AND FOR THE REASON THAT THE U.S. ARMY TRANSPORT GRANT WAS THE EMPLOYEE'S PLACE OF SERVICE FOR THE JOURNEY FROM THE ATLANTIC TO THE PACIFIC PORT. HE WAS NOT IN A TRAVEL STATUS ON THE VOYAGE, 26 COMP. DEC., 776. AN EMPLOYEE IS NOT ENTITLED TO REIMBURSEMENT OF ACTUAL EXPENSES FROM THE PLACE OF HIS ABODE TO AND FROM HIS PLACE OF SERVICE, 5 COMP. DEC., 662. THE EMPLOYEE WAS AWAY FROM HIS POST OF SERVICE DURING THE 13 DAYS IN SAN FRANCISCO AND THE 7 DAYS IN THE CANAL ZONE IN THE PERFORMANCE OF TEMPORARY DUTY, AND THE PER DIEM OF $4, OR A TOTAL OF $80, WILL BE ALLOWED FOR THESE 20 DAYS, IN ACCORDANCE WITH THE TERMS OF SERVICE. THE SUM OF $16 CLAIMED AS REIMBURSEMENT OF EXPENSES ABOARD THE STEAMSHIP ECUADOR, AND $13.50 ABOARD THE STEAMSHIP COLON, AS GRATUITIES TO STEWARDS AND PORTERAGE, WILL BE ALLOWED, 26 COMP. DEC., 487. THE SUM OF $5.60 IS STATED TO HAVE BEEN EXPENDED FOR TRANSPORTATION WHILE IN THE CANAL ZONE IN THE PERFORMANCE OF TEMPORARY DUTY WHEN PUBLIC VEHICLES WERE NOT AVAILABLE, AND WILL BE ALLOWED.

THE ITEM OF $44 CLAIMED AS REIMBURSEMENT OF EXPENDITURES MADE FOR LAUNDERING OF CLOTHES SOILED DURING THE EMPLOYMENT ABOARD THE ARMY TRANSPORT AND DURING THE TEMPORARY SERVICE IN THE CANAL ZONE CAN NOT BE ALLOWED FOR THE REASON THAT THE EMPLOYEE WAS NOT ENTITLED TO REIMBURSEMENT OF ANY EXPENSES WHILE AT HIS POST OF SERVICE, THE ARMY TRANSPORT, AND HE HAS BEEN ALLOWED PER DIEM IN LIEU OF ACTUAL EXPENSES FOR THE 7 DAYS IN THE CANAL ZONE.

THE TOTAL OF THE REIMBURSABLE ITEMS INCURRED ON THE VOYAGE FROM NEW YORK TO SAN FRANCISCO AND RETURN IS $115.10. THE EMPLOYEE HAS BEEN ERRONEOUSLY PAID $493.84 SALARY FROM JULY 19 TO OCTOBER 3, 1922. THE DIFFERENCE, OR $378.74, IS HEREBY CERTIFIED DUE THE UNITED STATES AND SHOULD BE REMITTED TO THIS OFFICE AT ONCE IN ORDER THAT THE ACCOUNT MAY BE BALANCED AND CLOSED.