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should receive compensation of $4 per day "when actually employed," and actual and necessary traveling expenses "when absent from his legal residence on duty." It further appears that he resigned on December 31, 1904, and returned to his home at Chicago.
I am therefore of opinion that said Cameron was on duty while traveling from Chicago to St. Louis, and as he was absent from his legal residence during such travel that he was entitled to reimbursement for his actual traveling expenses and to his per diem compensation during such travel. The action of the Auditor upon items 1 and 2 is therefore reversed.
But I am also of opinion that his employment was terminated by his resignation on December 31, 1904, that he was not traveling on duty while returning to his home after such termination of his employment, and that he is not entitled to reimbursement for his traveling expenses on that journey.
The action of the Auditor upon item 3 is therefore affirmed.
Where an enlisted man of the Army is by competent authority detailed by name on extra duty for employment at constant labor for not less than ten days, and while so detailed he actually performs extra-duty service of at least ten days' duration, he is entitled to extra-duty pay for such service regardless of whether or not the extra duty was performed on consecutive working days.
(Decision by Assistant Comptroller Mitchell, April 13, 1905.)
By settlement dated March 21, 1904, of the disbursing accounts of Lieut. (now Capt.) S. A. Cheney, Corps of Engineers, U. S. Army, the Auditor for the War Department disallowed certain items or overpayments on account of extraduty pay paid to enlisted men of the Army in cases where the period of employment of labor on extra duty was less than ten consecutive days' duration.
On appeal to this office November 19, 1904, the action of the Auditor was affirmed in a decision rendered November 26, 1904, for the reason that it appeared from the records that for the period for which extra-duty pay was stopped and disallowed by the Auditor the enlisted men were not employed on consecutive days for a period of ten days or more.
On February 23, 1905, the Chief of Engineers, U. S. Army, by authority of the Secretary of War, requested a rehearing or reconsideration of the decision of November 26, 1904. Section 1287, Revised Statutes, provides:
"When soldiers are detailed for employment as artificers or laborers in the construction of permanent military works, public roads, or other constant labor of not less than ten days' duration, they shall receive, in addition to their regular pay, the following compensation:" (See chapter 339, act March 3, 1885.)
* * *
By the above statutes it is declared that soldiers "shall receive, in addition to their regular pay," certain compensation when detailed for employment as there provided. Where a soldier is detailed for and performs extra-duty service in conformity with the above statute he clearly acquires the legal right to such additional compensation.
The Army Regulations of 1901 provide:
Paragraph 183: "Enlisted men detailed by name on extra duty and employed, under competent authority, at constant labor for not less than ten days, are entitled, in time of peace, to receive extra-duty pay at the following rates:" Paragraph 187: "Soldiers on extra duty will be paid the extra rates of pay allowed by law for the duty performed, and for the exact number of days employed; and no greater number of men will be employed on extra duty at any time than can be paid the full legal rates for the time employed from the funds provided. Payments made in violation of the above rules will be charged against the officers who order the details."
Paragraph 189: "Extra-duty men will be held to such hours of labor as may be expedient and necessary; but, except in case of urgent public necessity, as in military operations, eight hours will be considered a day's work. For all hours employed beyond that number the soldier will receive additional compensation—the extra hours being computed as fractions of a day of eight hours' duration."
Paragraph 190: Details of enlisted men for extra and special duty will be limited to actual necessities, which will be determined by post commanders in accordance with limits published in orders from the War Department. Allotments to posts of funds for extra-duty pay are made by department commanders from allotments made to departments for the purpose, and must not be exceeded without special authority from department commanders."
I am of opinion that if soldiers are detailed by name on extra duty under competent authority for employment at
constant labor for not less than ten days, and if while so detailed they perform extra-duty service which is at least of ten days' duration, they thereby become entitled to the extraduty pay prescribed by the statute and regulations, supra, and their right to such extra-duty pay is not defeated by the mere fact that said work was not performed in ten consecutive working days. If the soldier is detailed by name on extra duty under competent authority for employment at constant labor for not less than ten days, and if while so detailed he actually performs such extra-duty service, and such extra-duty service so performed is at least of ten days' duration, he is entitled to extra-duty pay for such extra-duty service so performed, regardless of whether said extra-duty service was performed on consecutive working days or not.
To entitle them to the extra-duty pay it must appear that they were detailed on extra duty under competent authority for employment at constant labor for not less than ten days in duration, and that while so detailed they actually performed such extra-duty service, and that such extra-duty service so performed was at least of ten days in duration; but whether all of said work was performed on consecutive working days or not is immaterial.
It would be too narrow a construction of the above statute to hold that a soldier who performs extra-duty service of ten days or more in duration, while under detail as already stated, should be deprived of extra-duty pay for such service because of an omission by him to work each consecutive working day, although he might be prevented from working because of an accident, conditions of the weather, sickness, by order of his superior officer, or other proper cause. I am of opinion that so long as he is under such detail he is entitled to extra-duty pay if he actually performs extra-duty service for which he was detailed, providing such extra-duty service so performed is of at least ten days in duration, whether said ten days are consecutive working days or not.
My decision of November 26, 1904, is modified accordingly. Upon a further consideration of the disbursing account of Captain Cheney, as appears in Auditor's settlement dated March 21, 1904, and upon a revision of the Auditor's settlement of same, I find a difference in officer's favor of $72.42, being the amount of all the items on account of extra-duty
pay disallowed by the Auditor in said settlement, except the extra-duty pay paid on account of James Kincaid (voucher 2, October, 1902), amounting to $3.50, it appearing that said soldier did not perform extra duty under a detail for a period of ten days or more.
PAY OF AN OFFICER OF THE NAVY WHILE ON SHORE DUTY BEYOND SEAS.
The 10 per cent additional pay allowed an officer of the Navy by the acts of May 26, 1900, and March 3, 1901, for shore duty beyond seas should be computed on the maximum pay of the officer's grade.
An officer of the Navy who was detached from shore duty in the Philippine Islands and ordered to his home in the United States was not on shore duty beyond seas within the meaning of the act of March 3, 1899, while en route from the Philippines to San Francisco, Cal., in a mail steamship, and was therefore not entitled, while performing said journey, to the 10 per cent additional pay provided by the acts of May 26, 1900, and March 3, 1901, for shore duty beyond seas.
(Decision by Assistant Comptroller Mitchell, April 13, 1905.)
The Auditor for the Navy Department has submitted for approval, disapproval, or modification the following decision, dated April 1, 1905:
"Lieutenant-Commander B. C. Bryan, U. S. Navy, has presented to this Office a claim for a readjustment of my pay while on shore duty beyond seas at the naval station at Cavite, P. I., from May 28, 1901, to the date of my arrival in the United States, June 24, 1903. That my pay for this period be readjusted and that I be allowed ten per cent increase on longevity pay, in accordance with the decision of the Supreme Court in the case of Col. Stephen C. Mills, U. S. Army."
"The following is a copy of the claimant's order to shore duty beyond seas:
"U. S. F. S. NEW YORK, 1ST RATE, Cavite, P. I., 30 May, 1901. "SIR: You are hereby detached from duty on board the U. S. S. Solace, and will report for duty immediately to the commandant of the naval station, Cavite, P. I.
"FRED'K RODGERS, "Rear-Admiral, U. S. Nary, Commander in Chief, Naval Force, on Asiatic Station.'
"Claimant reported as directed May 31, 1901.
"So far as the records show claimant remained on duty at the naval station, Cavite, P. I., until April 25, 1903, when the commander in chief of the naval forces issued an order, of which the following is a copy:
"COMMANDER IN CHIEF'S OFFICE,
"Yokohama, Japan, April 25, 1903.
"SIR: Upon the completion of the examination for promotion of Lieut. Gustav Kaemmerling, U. S. Navy, you will regard yourself detached from duty at the Cavite Naval Station and from such other duty as may have been assigned you, and will proceed to your home, where upon your arrival you will report by letter to the Bureau of Navigation, Navy Department, Washington, D. C., enclosing a copy of these orders.
"The purchasing paymaster, Manila, will furnish the necessary transportation to San Francisco, Cal. "Very respectfully,
"R. D. EVANS, "Rear-Admiral, U. S. Navy, Commander in Chief "United States Asiatic Fleet:"
"The order was delivered to him, and he was detached May 19, 1903.
"Pay Director Stephen Rand furnished Lieutenant-Commander Bryan with transportation per mail steamer from Manila, P. I., to San Francisco, Cal., May 20, 1903, at a cost of $215.87.
"Claimant states that he arrived in the United States June 24, 1903, and at his home in Washington, D. C., June 30, 1903.
"Claimant entered the naval service September 15, 1875. He was promoted to chief engineer January 20, 1899; lieutenant March 3, 1899, and lieutenant-commander September 26, 1901.
"The act of May 26, 1900 (31 Stat., 211)-
"That hereafter the pay proper of all officers and enlisted men serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and the Territory of Alaska shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law in time of peace."
"The clause in the act making appropriation for the support of the Army and for other purposes for the fiscal year 1902 (31 Stat., 903) reads as follows:
"That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the States comprising the Union, and Territories of the United States contiguous thereto,