The first part of that section applies only to a consultant or expert employed intermittently and receiving compensation on a per diem when actually employed basis. As to such a person, travel expenses and a per diem in lieu of subsistence are allowable while away from his home or regular place of business and while at his place of employment in accordance with the Standardized Government Travel Regulations, Subsistence Expense Act of 1926, as amended, and the act of February 14, 1931, 46 Stat. 1103, as amended by section 3 of Public Law 600, 60 Stat. 807. The second part of the section applies to a person serving without compensation or at $1 per annum. As to such a person, travel expenses are allowable while away from his home or place of business, in accordance with the Standardized Government Travel Regulations, and the act of February 14, 1931, 46 Stat. 1103, as amended by section 3 of Public Law 600, 60 Stat. 807, and, unless a higher rate specifically is provided in an appropriation or other act, a per diem allowance in lieu of subsistence not in excess of $10 may be paid both en route and at the place of service or employment. An expert or consultant employed to serve without compensation may be paid travel expenses and a per diem in lieu of subsistence in accordance with the second part of that section. Your second question is answered accordingly.

(B-69059)

PAY-ACTIVE DUTY; RETIRED; ACTIVE DUTY AFTER RETIREMENT— TEMPORARY REAR ADMIRALS OF NAVY STAFF CORPS

A staff officer (permanent captain) holding a temporary "spot" appointment as rear admiral with the pay and allowances of the upper half pursuant to section 2 of the act of June 30, 1942, may not, in view of section 311 (d) (14) of the Officer Personnel Act of 1947, providing, in effect, that staff rear admirals are entitled to the pay and allowances of the upper half only when their line running mates become so entitled, receive such pay and allowances on or after August 7, 1947, the date of enactment of the 1947 act, section 426 (a) of which repealed section 2 of the 1942 act, where such officer's line running mate holds the permanent rank of captain.

A temporary rear admiral of the Navy in receipt of the pay and allowances of the upper half on June 30, 1946, who is to be retired subsequent to such date for length of service pursuant to section 6 of the act of February 21, 1946, will be entitled under section 10 (b) (2) of the act of July 24, 1941, as amended, to retired pay based upon the active-duty pay of a rear admiral (upper half); and, upon recall to active duty after retirement, such officer would be entitled in accordance with section 10 (d) of the 1941 act, as amended, to the active-duty pay and allowances authorized for a rear admiral (upper half).

Comptroller General Warren to the Secretary of the Navy, October 13, 1947: There has been considered your letter of August 25, 1947, requesting decision on two questions, as follows:

(1) Whether or not Rear Admiral George W. Calver, Medical Corps, U. S. Navy, while serving under a so-called "spot" appointment for temporary service

as a rear admiral, as stated above, is entitled, while on the active list of the Navy, to continue to receive, from and after August 7, 1947, the pay and allowances of the upper half of the grade of rear admiral, notwithstanding the repeal of section 2 of the Act of June 30, 1942, supra, by section 426 (a) of the Officer Personnel Act of 1947?

(2) Whether or not, in the event of the voluntary retirement of Rear Admiral George W. Calver, Medical Corps, U. S. Navy, under the provisions of Public Law 305, as amended, and his subsequent recall to active duty for the continued performance of duty under his present active duty assignment, he would be entitled to receive the active duty pay and allowances of a rear admiral of the upper half?

It is stated that Rear Admiral Calver holds the permanent rank of captain and that he was given a so-called "spot" appointment on October 9, 1945, as Medical Director in attendance on the Congress, with the rank of rear admiral, for temporary service for a period of limited duration, under the provisions of the act of July 24, 1941, 55 Stat. 603, as amended, and that he became entitled to receive the pay and allowances of a rear admiral of the upper half on October 9, 1945, pursuant to the provisions of section 2 of the act of June 30, 1942, 56 Stat. 464, which reads as follows:

The number of rear admirals on the active list of the line entitled to the pay and allowances provided by law, for rear admirals of the upper half, exclusive of those carried as additional numbers in such grade, shall be one-half of the number of permanent and temporary officers of the line in that grade: Provided, That each officer of the staff Corps now or hereafter serving in the rank of rear admiral shall be entitled to receive the pay and allowances provided by law for rear admirals of the upper half when a line officer who was his junior in the rank from which the staff officer concerned was advanced becomes entitled to such pay and allowances pursuant to the foregoing but not earlier than the date upon which the staff officer is appointed to the rank of rear admiral: * * * And provided further, That no officer who has or may become entitled to the pay and allowances of a rear admiral of the upper half shall suffer a reduction of his pay and allowances solely by reason of the fact that the number of rear admirals may for any reason be reduced.

However, section 426 (a) of the Officer Personnel Act of 1947, 61 Stat. 880, expressly repealed the said section 2 of the act of June 30, 1942, and in lieu of the first proviso therein there was enacted section 311 (d) (14), 61 Stat. 858, which reads as follows:

Officers of the staff corps serving in the grade of rear admiral shall receive the pay and allowances prescribed by law for rear admirals of the upper half from the date on which their respective running mates enter the upper half of the list of rear admirals, but not prior to the date of the vacancy the staff officer was promoted to fill.

It is suggested that by virtue of the provisions of section 2 of the act of June 30, 1942, Rear Admiral Calver became "vested" with the pay and allowances of a rear admiral of the upper half and that the Officer Personnel Act of 1947 does not specifically "divest" staff officers in the status of Rear Admiral Calver of the right to continue on and after August 7, 1947, to receive the pay and allowances to which they became entitled under section 2 of the act of June 30, 1942,

notwithstanding the express repeal of said section 2 by section 426 (a) of the 1947 act.

The act of June 30, 1942, 56 Stat. 463, entitled "AN ACT To provide for the better administration of officer personnel of the Navy and Marine Corps during the existing war, and for other purposes" suspended the provisions of then existing law insofar as they related, inter alia, to the permanent promotion or advancement of officers of the Navy and Marine Corps. Section 2 of the said act changed the basis prescribed in section 18 of the act of June 10, 1926, 44 Stat. 724 (34 U. S. C. 348q), for determining entitlement of rear admirals of the staff corps to the pay and allowances of the upper half by providing that officers of the staff corps serving in the rank of rear admiral should be entitled to receive the pay and allowances provided by law for rear admirals of the upper half "when a line officer who was his junior in the rank from which the staff officer concerned was advanced becomes entitled to such pay and allowances" but not earlier than the date the staff officer was appointed to the rank of rear admiral. The last proviso in the said section 2 provided that no officer who had or might become entitled to the pay and allowances of a rear admiral of the upper half should suffer a reduction of his pay and allowances solely by reason of the fact that the number of rear admirals might for any reason be reduced. However, section 426 (a) of the Officer Personnel Act of 1947, Public Law 381, approved August 7, 1947, expressly repealed section 2 of the act of June 30, 1942—including the said last proviso in section 2-insofar as it related to the Navy and Marine Corps. Section 311 (d) (14) of the said 1947 act, supra, prescribes a new basis for determining entitlement of staff officers to upper half pay by providing that officers of the staff corps serving in the grade of rear admiral shall receive the pay and allowances of the upper half "from the date on which their respective running mates enter the upper half of the list of rear admirals." Such provision in section 311 (d) (14) is substantially similar to that contained in the prior act of June 10, 1926, as amended, respecting entitlement of officers of the staff corps to pay and allowances of the upper halfnow repealed by section 436 (d) of the 1947 act, 61 Stat. 882, Hence, it seems clear that Rear Admiral Calver is not entitled on or after August 7, 1947, to continue to receive the active duty pay and allowances of a rear admiral of the upper half unless the line officer running mate assigned to him pursuant to the 1947 act is a rear admiral of the upper half of the list of rear admirals, or unless the said act of August 7, 1947, contains an expressed or implied savings provision saving such officers from reduction in pay and allowances below that

to which they were entitled prior to enactment of the said act of August 7, 1947.

One of the primary purposes of the Officer Personnel Act of 1947 was to reestablish a permanent promotion system for the Navy replacing that suspended during the war by the act of June 30, 1942. To accomplish such purpose, the Officer Personnel Act of 1947, insofar as it relates to the Navy, is divided into four titles. Titles I and II deal with the permanent provisions relating to officers of the line and officers of the staff corps of the Navy, respectively; Title III deals with the terminable provisions relating to all officers of the Navy on active duty; and Title IV deals with miscellaneous provisions. Titles I and II of the said act-with the exception of certain sections-do not become effective until the termination of Title III of the act, which terminates when the President shall determine that the number of officers holding permanent appointments on the active list of the line of the regular Navy is equal to 95 percent of the number of such officers authorized by law, or on January 1, 1957, whichever shall occur the earlier. Section 304 (a), Title III, of the said act of 1947, 61 Stat. 833, provides that not later than 30 days after date of approval of this act, the Secretary of the Navy shall establish a single lineal list of all the officers of the grade of ensign and above of the line of the Navy and Naval Reserve on active duty on the date of establishment of such list, with certain exceptions not here material, and that such lineal list shall constitute the order of seniority of such officers as of the date of its establishment. Section 304 (h) (1) of the said act, 61 Stat. 837, provides that as soon as practicable after the establishment of the lineal list for line officers as prescribed by subsection (a), the Secretary of the Navy shall convene a board which shall recommend the assignment of running mates from among line officers on such list to officers of the grade of lieutenant (junior grade) and above of the various staff corps of the Navy or Naval Reserve on active duty on the date of establishment of such lineal list, with certain exceptions not here material. Sections 304 (h) (2) a and 304 (h) (2) d of the said act, 61 Stat. 837, provide that each staff officer shall be assigned as his running mate a line officer who, on the date of approval of this act, is serving in the same grade as such staff officer, except that a staff officer who on the date of approval of this act is serving under a "temporary appointment *

in a grade to which appointed for a period of limited duration" (defined in section 302 (a) of the act, 61 Stat. 829, as meaning a temporary appointment which, by its terms, is of limited duration), shall be assigned a running mate based upon the rank and precedence

he would have held had he not been so serving. The temporary promotion of Rear Admiral Calver on October 9, 1945, from captain (permanent) to rear admiral (temporary) was made pursuant to the act of July 24, 1941, 55 Stat. 603, as amended, "to continue while serving as Medical Officer in attendance on the Congress." Hence, since Rear Admiral Calver was serving under a temporary appointment "in a grade to which appointed for a period of limited duration," it is apparent, as stated in your letter, that he will be or has been-assigned a line officer running mate based upon his permanent rank of captain, in accordance with the provisions of section 304 (h) (2) d of the 1947 act; and, since rear admirals of the staff corps are entitled under section 311 (d) (14) of the said act to the pay and allowances of the upper half only "from the date on which their respective running mates enter the upper half of the list of rear admirals," it is clear that there is no legal basis upon which it may be concluded that he is entitled, while on the active list, to continue to receive the active duty pay and allowances prescribed for rear admirals of the upper half on or after August 7, 1947, by virtue of any of the above-cited provisions of law.

However, it is suggested that section 2 of the act of June 30, 1942, was intended to "confer a vested right to pay and allowances of the upper half” and that the repeal of said section was not intended to "take away rights or benefits legally derived under other provisions of law in effect at the time such rights or benefits were acquired." It may be stated in that connection that, while section 2 of the act of June 30, 1942, prescribed the basis upon which rear admirals of the staff corps were entitled to receive the pay and allowances of a rear admiral of the upper half, the said section 2 did not confer upon officers meeting the conditions set forth therein a "vested" right which could not be "divested" by the repeal of such provision of law, since the Congress unquestionably has the power to fix the rates of pay and allowances of all members of the armed forces, to increase or decrease such rates at will, and to prescribe the conditions under which specified rates of pay and allowances may be paid to certain classes of officers. The Officer Personnel Act of 1947 expressly repealed section 2 of the act of June 30, 1942-including the savings clause contained in the last provision of the said section 2-under which Rear Admiral Calver became entitled to the pay and allowances of a rear admiral of the upper half, and enacted in lieu thereof a new provision of law prescribing the basis upon which rear admirals of the staff corps thereafter may receive the pay and allowances of the upper half. Such provision of law became effective August 7, 1947, and must be regarded as controlling on and after that date. It seems to have been recognized that the pro