B-28135, OCTOBER 1, 1942, 22 COMP. GEN. 293

B-28135, OCTOBER 1, 1942, 22 COMP. GEN. 293

TRAVELING EXPENSES - ARMY NURSE CORPS THE AMOUNTS WHICH MAY BE PAID TO MEMBERS OF THE ARMY NURSE CORPS IN A TRAVEL STATUS, OTHER THAN AIR TRAVEL STATUS, FOR ACTUAL EXPENSES OF SUBSISTENCE OR PER DIEM IN LIEU THEREOF MAY NOT EXCEED THE LIMITATION OF $5 PER DAY FOR ACTUAL EXPENSES SPECIFIED IN THE ACT OF APRIL 6, 1914, OR THE LIMITATION OF $4 PER DIEM IN LIEU OF SUCH ACTUAL EXPENSES SPECIFIED IN THE ACT OF AUGUST 1, 1914.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 1, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 13, 1942, AS FOLLOWS:

SECTION 6 OF THE ACT OF JULY 9, 1918 (40 STAT. 879), PROVIDES:

"THAT MEMBERS OF SAID NURSE CORPS SHALL RECEIVE TRANSPORTATION AND NECESSARY EXPENSES WHEN TRAVELING UNDER ORDERS, * * * AS MAY BE PRESCRIBED IN REGULATIONS BY THE SECRETARY OF WAR; * * *"

THE STATUTE CITED ABOVE PROVIDES IN GENERAL TERMS FOR THE PAYMENT OF NECESSARY EXPENSES, BUT DOES NOT EXPRESSLY FIX ANY SPECIFIC MAXIMUM ALLOWANCE FOR SUBSISTENCE. BASED ON THIS FACT, IN DECISION A-31829, OF MAY 28, 1930, IT WAS HELD THAT, AS THE ACT OF APRIL 6, 1914 (38 STAT. 318), WAS GENERAL IN ITS SCOPE AND COVERED ALL OFFICERS AND EMPLOYEES WHOSE MAXIMUM SUBSISTENCE ALLOWANCE WAS NOT OTHERWISE EXPRESSLY PROVIDED FOR BY LAW, REIMBURSEMENT FOR ACTUAL EXPENSES TO MEMBERS OF THE ARMY NURSE CORPS MIGHT NOT PROPERLY BE PAID IN EXCESS OF $5.00 PER DAY, THE MAXIMUM RATE PRESCRIBED IN THE STATUTE.

IT WAS FURTHER HELD, IN DECISION DATED OCTOBER 7, 1933, 13 COMP. GEN. 94, THAT PAYMENT TO NURSES OF PER DIEM IN LIEU OF ACTUAL SUBSISTENCE WAS LIMITED TO $4.00, UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1914 (38 STAT. 680).

THE ACTS OF APRIL 6 AND AUGUST 1, 1914, SUPRA, HAVE BEEN SUPERSEDED AS TO OTHER CLASSES OF PERSONNEL BY STATUTES PROVIDING FOR HIGHER RATES AND CIVILIAN EMPLOYEES ARE ENTITLED, UNDER THE ACT APPROVED JANUARY 30, 1942 ( PUBLIC LAW 424, 77TH CONGRESS), TO A PER DIEM ALLOWANCE AT A RATE NOT TO EXCEED $6.00 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES, AND NOT TO EXCEED AN AVERAGE OF $7.00 BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES.

OFFICERS OF THE ARMY ARE AUTHORIZED, UNDER SECTION 12 ACT OF JUNE 16, 1942 ( PUBLIC LAW 607, 77TH CONGRESS), TO RECEIVE REIMBURSEMENT FOR ACTUAL EXPENSES NOT EXCEEDING $7.00 PER DAY, OR A PER DIEM ALLOWANCE NOT EXCEEDING $6.00, AND A SEPARATE PROVISO PRESCRIBES RATES NOT IN EXCESS OF $8.00 AND $6.00, RESPECTIVELY, WHILE TRAVELING BY AIR. BOTH THESE PROVISIONS ARE CONTAINED IN THE SAME SUBPARAGRAPH OF THE ACT AND, IN THE PROVISO, COVERING TRAVEL BY AIR, MEMBERS OF THE NURSE CORPS ARE SPECIFICALLY INCLUDED.

IT IS BELIEVED TO BE EVIDENT THAT IT WAS NOT THE INTENT OF THE CONGRESS THAT MEMBERS OF THE ARMY NURSE CORPS SHOULD CONTINUE TO RECEIVE THE LOWER RATES PRESCRIBED IN EARLIER LAWS WHICH HAVE BEEN SUPERSEDED AS TO THE OTHER CLASSES OF PERSONNEL, PARTICULARLY IN VIEW OF THE FACT THAT THEY ARE AUTHORIZED TO RECEIVE THE SAME RATES AS OFFICERS FOR TRAVEL BY AIR. YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER MEMBERS OF THE ARMY NURSE CORPS MAY BE AUTHORIZED BY REGULATIONS TO RECEIVE, WHILE IN A TRAVEL STATUS, REIMBURSEMENT OF EXPENSES ACTUALLY INCURRED NOT IN EXCESS OF $7.00 PER DAY, OR PER DIEM IN LIEU THEREOF NOT EXCEEDING $6.00 PER DAY.

AS THIS IS A MATTER AFFECTING THE ENTIRE ARMY NURSE CORPS, IT IS REQUESTED THAT I BE ADVISED OF YOUR DECISION AT THE EARLIEST PRACTICABLE DATE.

THE ACT OF APRIL 6, 1914, 38 STAT. 318, PROVIDES:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND FOURTEEN, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $5 PER DAY * * *.

THE ACT OF AUGUST 1, 1914, 38 STAT. 680, PROVIDES:

THAT THE HEADS OF EXECUTIVE DEPARTMENTS AND OTHER GOVERNMENT ESTABLISHMENTS ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE NOT EXCEEDING $4 IN LIEU OF SUBSISTENCE TO PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHEN NOT OTHERWISE FIXED BY LAW.

THE QUOTATION OF THE STATUTE IN YOUR LETTER SUGGESTS THE INFERENCE AT LEAST OF AN INTERPRETATION. SECTION 6 OF THE ACT OF JULY 9, 1918, 40 STAT. 879, IN FULL, PROVIDES:

THAT MEMBERS OF SAID NURSE CORPS SHALL RECEIVE TRANSPORTATION AND NECESSARY EXPENSES WHEN TRAVELING UNDER ORDERS, AND SUCH ALLOWANCES OF QUARTERS AND SUBSISTENCE AND, DURING ILLNESS, SUCH MEDICAL CARE AS MAY BE PRESCRIBED IN REGULATIONS BY THE SECRETARY OF WAR; AND WHEN AT PLACES WHERE NO PUBLIC QUARTERS ARE AVAILABLE, COMMUTATION IN LIEU THEREOF, AND OF HEAT AND LIGHT THEREFOR AT SUCH RATES AND UPON SUCH CONDITIONS AS ARE NOW OR SHALL HEREAFTER BE PROVIDED BY LAW.

SECTION 783, TITLE 10 OF U.S.C. CODIFIES A PART OF THIS SECTION AS FOLLOWS:

MEMBERS OF THE NURSES CORPS SHALL RECEIVE TRANSPORTATION AND NECESSARY EXPENSES WHEN TRAVELING UNDER ORDERS, AND, DURING ILLNESS, SUCH MEDICAL CARE AS MAY BE PRESCRIBED IN REGULATIONS BY THE SECRETARY OF WAR.

SECTION 7 OF THE ACT OF JULY 9, 1918, PAGE 880, SPECIFICALLY REPEALED CERTAIN PRIOR LEGISLATION, AMONG OTHERS---

* * * CHAPTER ONE HUNDRED AND NINETY-TWO OF THIRTY-FIRST STATUTES, PAGE SEVEN HUNDRED AND FIFTY-THREE; * * *

THE STATUTE LAST CITED, 31 STAT. 753, PROVIDED FOR THE APPOINTMENT OF NURSES, THEIR PAY, ETC., AND INCLUDED A PROVISO:

THAT THE SUPERINTENDENT AND NURSES SHALL RECEIVE TRANSPORTATION AND NECESSARY EXPENSES WHEN TRAVELING UNDER ORDERS; THAT THE PAY * * *. THEY SHALL BE ENTITLED TO QUARTERS, SUBSISTENCE, AND MEDICAL ATTENDANCE DURING ILLNESS, AND THEY MAY BE GRANTED LEAVE OF ABSENCE * * *.

THERE WAS ALSO REPEALED BY SECTION 7 OF THE ACT OF JULY 9, 1918---

* * * THAT PART OF THE ACT APPROVED AUGUST TWENTY-FOURTH, NINETEEN HUNDRED AND TWELVE ( THIRTY-SEVENTH STATUTES, PAGE FIVE HUNDRED AND SEVENTY-FIVE), PROVIDING FOR ALLOWANCES, SUBSISTENCE, AND MEDICAL CARE DURING ILLNESS FOR THE SUPERINTENDENT OF THE NURSE CORPS; * * *

THE ACT OF AUGUST 24, 1912, 37 STAT. 575, CONTAINED A PROVISO AFTER THE APPROPRIATION FOR THE PAY OF THE SUPERINTENDENT OF THE NURSE CORPS:

THAT THE SUPERINTENDENT SHALL RECEIVE SUCH ALLOWANCES OF QUARTERS, SUBSISTENCE AND MEDICAL CARE DURING ILLNESS AS MAY BE PRESCRIBED IN REGULATIONS BY THE SECRETARY OF WAR.

THERE IS NO QUESTION THAT UNDER THE STATUTES, INCLUDING THE ACT OF JULY 9, 1918, AFTER THE PASSAGE OF THE ACTS OF 1914 QUOTED ABOVE, THE 1914 STATUTES APPLIED TO THE TRAVELING EXPENSES OF NURSES OF THE ARMY NURSE CORPS, AND THAT, CERTAINLY FROM THE DATE OF THESE 1914 ACTS, THE SECRETARY OF WAR WAS NOT AUTHORIZED TO PRESCRIBE BY REGULATIONS ANY HIGHER RATES FOR ACTUAL EXPENSE OF SUBSISTENCE OR PER DIEM IN LIEU THEREOF FOR NURSES OF THE ARMY NURSE CORPS. THE INTERPRETATION INFERENTIALLY SUGGESTED IN YOUR QUESTION THAT RATES OF PAYMENT FOR ACTUAL EXPENSES OR PER DIEM IN LIEU THEREOF ARE TO BE BY REGULATIONS OF THE SECRETARY OF WAR CLEARLY WAS NOT INTENDED BY THE STATUTE.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AUTHORIZED "FOR OFFICERS MENTIONED IN THE TITLE OF" THAT ACT ACTUAL EXPENSES OR PER DIEM IN LIEU OF SUBSISTENCE IN THE SITUATIONS DESCRIBED THEREIN AND PROVIDED THAT:

* * * 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.

SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, PUBLIC LAW 607, IS IDENTICAL IN THIS RESPECT TO SECTION 12 OF THE ACT OF JUNE 10, 1922.

THE SUBSISTENCE EXPENSE ACT OF 1926, ACT OF JUNE 3, 1926, 44 STAT. 688, 689, BY ITS TERMS, SECTION 3, APPLIED ONLY TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS.' PUBLIC LAW NO. 424, APPROVED JANUARY 30, 1942, 56 STAT. 39, IS AN AMENDMENT OF SECTION 3 OF THE ACT OF 1926, AND ALSO APPLIES ONLY TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS.'

THE NURSE CORPS OF THE ARMY IS A PART OF THE MEDICAL DEPARTMENT OF THE ARMY, SECTION 10 OF THE NATIONAL DEFENSE ACT, TITLE 10, U.S. CODE, SECTION 81. PROVISION HAS BEEN MADE FOR OFFICERS OF THE SIX SERVICES INCLUDED IN THE PAY READJUSTMENT ACT WHICH DOES NOT INCLUDE MEMBERS OF THE ARMY NURSE CORPS; AND PROVISION HAS BEEN MADE FOR CIVILIAN OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS IN THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED. NO PROVISION HAS BEEN MADE FOR MEMBERS OF THE ARMY NURSE CORPS OTHER THAN WAS MADE IN THE ACTS OF 1914, AND THE SECRETARY OF WAR WAS AND IS NOT AUTHORIZED TO PROVIDE BY REGULATIONS THAT MEMBERS OF THE ARMY NURSE CORPS SHALL RECEIVE MORE THAN THE LAWS OF 1914 PROVIDE. MORE IS BELIEVED TO BE NECESSARY THE MATTER SHOULD BE PRESENTED TO THE CONGRESS FOR CONSIDERATION.