1946, following his release from the armed forces and was reassigned at $3000 per annum; on July 1, 1946, he was promoted automatically to $3100.

Paragraph 3 (c) of S.J.R. 286 dated August 27, 1940, reads in part as follows: "(c) Any person who is restored to a position in accordance with the provision of paragraph (A) or (B) of subsection (b) shall be so restored without loss of seniority

* * *"

This principle was reiterated in paragraph 8 (c) of Public Law 783, approved September 16, 1940.

Section 25 of the Act of July 6, 1945, Public Law 134 states in part as follows: "That in the case of employees who have been separated or shall hereafter be separated from the field service of the Post Office Department for military duty, the periods or terms of such service immediately preceding entry into the military service as well as the time engaged in military service shall be construed as allowable service and pro rata credit shall be given for the time engaged in military service for each year of such service."

With respect to the appointment of special clerks the Act of February 28, 1925, stated, that as a reward for faithful and meritorious service special clerks may be appointed in the executive, finance, money order, postal savings, registry, mailing and other divisions in first-class offices. Pursuant to this law instructions reflecting the policy of the Department concerning the appointment of special clerks were issued and were set out in Article 87, pages 97-98 of the July 1943 Official Postal Guide which Article was canceled following the passage of Public Law 134. A scale showing the quota of special clerks that could be appointed was set forth in that Article which, for offices the size of San Francisco, allowed one special clerk in every five clerical employees. The instructions further stated that certain requirements with respect to efficiency must be met and when met the senior employee should be appointed. This in effect made the promotion of special clerk similar to the automatic grades.

Pursuant to S. J. R. 286 the Department issued instructions on September 10, 1940, concerning the policy to be followed with respect to leave of absence for military duty, which instructions were published in The Postal Bulletin of September 11, 1940. Under the caption "Promotions" paragraph 6 states that employees eligible for advancement to special clerk or other competitive positions will be advanced or transferred in the proper order. The instructions were based on two principles: First, the clear intent of Congress that employees inducted into the armed forces for the purpose of defending their country should not be penalized because of such service and, second, the policy adopted by the Department concerning special clerk promotions was such as for all intents and purposes to place the promotions thereto in the automatic grades within the limits of the number of positions authorized at each first-class office.

In view of the circumstances set forth herein it will be appreciated if you will review this matter and advise me as to whether you concur in the conclusions reached by the Postal Accounts Division of your office concerning the action of this Department in giving its employees who were on military leave the rights and benefits to which they were entitled.

The Postal Employees Pay Act of 1945, Public Law 134, approved July 6, 1945, did not continue the former classification of clerks known as special clerks; and prior to that act special clerks were not embraced in the automatic grades, such positions being filled by selection and promotion within the discretion of the head of the department. 3 Comp. Gen. 517. In 20 Comp. Gen. 789, to the Postmaster General, it was stated, at page 792:

Accordingly, referring to the concluding paragraph of your letter, no administrative action making adjustments in grade and salary rate of postal employees should be taken during the absence of the employees on military duty, the benefits of the Selective Training and Service Act and Public Resolution of August 27, 1940,

being available only upon restoration to civilian positions. However, upon restoration to their civilian positions under the terms and conditions of said statutes, regular postal employees may be advanced to the grade and salary rate to which they would have been advanced had their military service been in the postal service in accordance with existing laws and regulations.

See, also, 26 Comp. Gen. 839, in which it was held:

The appointment of a substitute employee to a regular position is an administrative promotion. There exists no authority of law to grant such administrative promotion while on so-called military furlough during which the employee is not in his civilian position. Public Law 134, 59 Stat. 435, authorizes automatic promotions to employees of the Postal Service from grade to grade under particular classifications, such as regular clerks, substitutes, etc., after "satisfactory service" in a particular position, but there is nothing therein, or elsewhere so far as I am advised, which requires that an administrative promotion from a substitute position to a regular position shall be made based upon seniority or because of military service.

Under the provisions of section 8 of the Selective Training and Service Act, 54 Stat. 890, as amended, a returning veteran who left a position, other than temporary, to enter the armed forces is entitled to "be restored to such position or to a position of like seniority, status, and pay." (Italics supplied.) The right of restoration under that statute is limited to the same position or one of "like seniority, status, and pay," and does not include a position to which the employee might have been promoted had he not entered the military service, as indicated in your letter.

As there was no authority to grant an administrative promotion while the employee in the case presented as typical of those involved was in the military service, upon his restoration February 1, 1946, his salary was for computation under the Postal Employees Pay Act of 1945, Public Law 134, as amended by the act of May 21, 1946, Public Law 386, 60 Stat. 203. Section 23 of Public Law 134, 59 Stat. 460, provides:

Sec. 23. In the readjustment of salaries to conform to the provisions of this Act, regular employees for whom salary steps, automatic and additional grades have been provided in sections 12, 13, 14, 15, 16, 18, and 19 shall be assigned to the salary of their respective positions on the basis of their base salary plus 20 per centum, or $400, whichever is the lesser amount, but not less than $300: Provided, That when the application of the above formula produces a sum that is not equal to a salary provided for the position, the employee shall be assigned to the next higher salary grade: Provided further, That no employee shall be assigned to a salary grade above the maximum automatic or additional grade provided for the position: And provided further, That clerks who are employed not less than forty hours per week at third-class post offices, and who are appointed to regular positions, shall be assigned to the minimum salary rate provided for the position.

As Mr. Adami's salary prior to his entering the military service was $2,100, it properly was for increasing under section 23, supra, to $2,500, the salary of Grade-9 as prescribed by section 12 (a), Public Law 134, 59 Stat. 443, plus $400 additional granted by Public Law 386. As he had reached the maximum automatic grade prior to hist entering the military service, he was not in a position to receive any

credit for military service until the passage of Public Law 134, which established automatic grades to which he could be advanced by reason of satisfactory service or credit for military service. Accordingly, as his right to credit for military service is limited to such service as occurred on and after July 1, 1945, the effective date of Public Law 134, this employee became entitled to his first automatic increase to $3,000, Grade-10, July 1, 1946, and an additional increase July 1, 1947, to Grade-11 at $3,100. It is thus apparent that the audit action in taking exception to the compensation paid to this employee in excess of the above rates, as well as excess salary payments to others who were given administrative promotions to selective grades while absent in the military service, was correct and upon review that action must be and is sustained.

(B-66174)

SUBSISTENCE-PER DIEMS-NAVAL RESERVE OFFICERS RELIEVED FROM NAVAL ASSIGNMENTS AND DETAILED FOR DUTY WITH COAL MINES ADMINISTRATION

Naval Reserve officers who, after the dates scheduled for their release from active duty, remained on active duty at their permanent duty stations for the performance of temporary duty with the Coal Mines Administration may be paid per diem in lieu of subsistence for such temporary duty from funds allocated to the Secretary of the Interior from the "Emergency Fund for the President" for necessary expenses in connection with the seizure and operation of the coal mines, even though they were not away from their designated posts of duty within the meaning of section 12 of the Pay Readjustment Act of 1942, as amended. 26 Comp. Gen. 902, amplified.

Assistant Comptroller General Yates to the Secretary of the Interior, January 5, 1948:

Reference is made to your letter of October 3, 1947, transmitting two vouchers, and related papers, comprising the claims of Lieutenant Commander Charles J. O'Neill, U. S. Naval Reserve, and Lieutenant Arthur B. Lyon, U. S. Naval Reserve, for refunds of amounts which the Navy Department checked against the pay of such officers on the basis that, under decision of this Office dated February 4, 1947, 26 Comp. Gen. 557, there was no authority for payments theretofore made to the officers representing per diem in lieu of subsistence for periods during which they were not away from their designated posts of duty within the meaning of section 12 of the Pay Readjustment Act of 1942, as amended, 58 Stat. 730, 37 U. S. C., Supp. V, 112.

The circumstances involved are stated in your letter, as follows:

The claimants were Naval officers on active duty in June 1946, who had been notified that they were to be released from active duty and had been ordered to report for separation processing. Before being actually separated from active duty, they were requested to forego separation in order that they could be assigned to the Coal Mines Administration for temporary duty in connection with the seizure and operation of the coal mines pursuant to Executive Order No. 9728, dated May 21, 1946. The claimants were advised that if they would agree to the cancellation of their separation orders and remain on active duty a per diem of $7.00 would be paid while on temporary duty with the Coal Mines Administration. The Naval officers agreed to the cancellation of their separation orders and were assigned to the Coal Mines Administration, Washington, D. C., for temporary duty. Washington, D. C. was their permanent duty station at the time the officers were assigned to the Coal Mines Administration. Both officers were paid $7.00 per diem during the time they were on temporary duty in Washington, D. C. Following your ruling on February 4, 1947, B-62094, to the Secretary of the Navy, the officers were required by the Navy Department to refund the amounts which they had received as per diem while on duty in Washington. The officers have filed claims with the Coal Mines Administration in the amounts of the refunds made.

You recommend that the claims be approved for payment from funds allotted to you from the Emergency Fund for the President in connection with the operation of the coal mines but you indicate that since the claiming officers agreed to, and did, remain on active duty after the scheduled dates for their release from active duty, solely for the purpose of serving with the Coal Mines Administration, rather than having been ordered to active duty from an inactive status for such purpose, you have some doubt whether their claims are for allowance under the principle of decision of this Office dated June 5, 1947, 26 Comp. Gen. 902, in which it was held that (quoting the syllabus) —

Funds allocated to the Secretary of the Interior from the "Emergency Fund for the President" in connection with the operation of the coal mines, being available for expenditure "without regard to the provisions of law regulating the expenditure of Government funds," are available for payment of per diem in lieu of subsistence to a Naval Reserve officer who was ordered from his home for temporary active duty with the Coal Mines Administration, even though the fact that such officer was not away from his designated post of duty within the meaning of section 12 of the Pay Readjustment Act of 1942, as amended, would preclude the use of naval appropriations for such purpose.

In such decision it was stated that

* in view of the broad authority vested in the President by the statutes providing the "Emergency Fund for the President", and in view of the express terms of the President's letters allocating funds to the Secretary of the Interior, the Secretary is authoritzed to use such funds for any expense, arising from an emergency affecting the national security and defense, which reasonably may be considered a necessary expense in connection with the seizure and operation of the coal mines and "without regard to the provisions of law regulating the expenditure of Government funds."

*

With respect to the application of the basic principle of the said decision of June 5, 1947, there does not appear to be any reason for making a distinction between the case of a reserve officer who was ordered from his home to active duty for service with the Coal Mines

Administration and the case of a reserve officer who, while serving on active duty, was relieved from his regular naval assignment and detailed for service with such Administration under the circumstances stated in your letter. Accordingly, this Office will not question your determination that the claims of Commander O'Neill and Lieutenant Lyon involve necessary expenses in connection with the seizure and operation of the coal mines and that they properly are payable from the funds allotted to you from the Emergency Fund for the President for such necessary expenses, if otherwise correct.

The vouchers and related papers received with your letter are returned herewith.

(B-66700)

TRANSPORTATION-HOUSEHOLD EFFECTS AND DEPENDENTS-OLD AND NEW STATIONS IN SAME GENERAL METROPOLITAN AREA Under the provisions of the uniform travel and transportation regulations (Executive Order No. 9805), the expenses of transporting an employee's dependents and household effects upon an authorized transfer of official station from one separate corporate municipality to another may be paid, notwithstanding the fact that both the old and new stations are located within the same general metropolitan area. 26 Comp. Gen. 952, distinguished. Comptroller General Warren to W. H. Barrett, Department of Commerce, January 6, 1948:

Reference is made to your letter of December 8, 1947, relative to the protest of Mr. Harold W. Gwyther against the disallowance of his reimbursement voucher in the amount of $87.13, pursuant to decision of this Office of June 26, 1947 (26 Comp. Gen. 952), to you. As a decision by this Office to a certifying officer may not be reconsidered at the request of other than the person to whom rendered the protest and voucher will be retained in this Office and treated as a claim for direct settlement by this Office. 31 U. S. Code 71. Also, your letter requests decision with respect to your right to certify for payment a voucher therewith transmitted in favor of Mr. Albert K. Showalter for $147.95, as reimbursement upon a commuted rate under Schedule A, Executive Order 9805, for the transportation of his household effects from 432 East Orange Grove, Burbank, California, to 6721 West 86th Place, Los Angeles, California, including, also, transportation expenses of the employee and his dependents, as upon transfer of official station, from Lockheed Air Terminal, Burbank Airport, to Los Angeles Municipal Airport, Inglewood, California. Your doubt in the matter appears to arise from the fact that Burbank, Los Angeles, and Inglewood are all within the same general metropolitan area and for that reason you appear to be of the view that the decision