was aware of the fact that his terminal leave promotion to captain, AUS, was automatically vacated by his acceptance of a Regular Army appointment as first lieutenant. However, he believed he legally held the grade of captain since he received an instrument evidencing his appointment as captain which was dated 11 July 1946, that is, subsequent to the date of the instrument of appointment as first lieutenant, Regular Army, and the same date that he accepted such appointment as first lieutenant, Regular Army. He also stated any doubts he entertained as to his right to serve as a captain were dispelled when he was ordered to his first duty station in that grade. Held: The instrument of appointment dated 11 July 1946 which the officer received was intended to evidence an appointment in the Reserve Corps and it is a rule that an officer in the Regular Army is ineligible to receive or hold an appointment in the Reserve Corps as his regular Army status is incompatible with such appointment. However, in the commission of 11 July it was expressly stated that he was appointed a captain in the Army of the United States and the only language appearing in the commission which indicated it was a Reserve commission rather than a commission in the Army of the United States without component, was language referring to sec 37 of the National Defense Act as authority for the appointment. Hence, when the officer received the commission bearing a date subsequent to the date of his Regular Army appointment and still on a later date received active duty orders referring to him, without qualification, as a captain, it was not unreasonable for him to believe that he held a legal appointment as captain. He actually performed the duties of a captain under color of authority to serve as a captain and he acted in good faith and therefore the government is not entitled to recover from him the difference in pay between the allowances of the first lieutenant and those of the captain. (Cf. 31 Comp 335. Distinguishing B-65956, 26 May 1937 and B-120219, 1 Dec 1954, 4 Dig Ops No. 3, Pay and Allowances § 37.)

Held also: Since the officer was entitled to retain the pay and allowances actually received by him in good faith in the capacity of captain on the basis that he served in that capacity under color of authority and without knowledge of the fact that he had been ordered to active duty in a grade higher than that actually held by him, he is entitled to be paid any portion of such pay and allowances which he has refunded to the Government. (See U. S. v. Royer, 268 US 394, 69 L ed 1011, 45 S Ct 519.) MS Comp Gen B-120345, 34 Comp Gen 266. 1 December 1954.

While on terminal leave an officer who held the rank of major both in the Army of the United States and the Officers Reserve Corps was promoted to the rank of lieutenant colonel in the Reserve Corps. The next year he was appointed a captain in the Regular Army by orders which also appointed a number of other Regular Army officers. These orders provided that acceptance of a Regular Army commission would not affect any existing commission in the Army of the United States without component except that commissions held as a result of terminal leave promotions were vacated and appointments were effected in the grade held immediately prior to process

ing for relief from active duty. Appointees holding commissions only in the Reserve or the National Guard of the United States were appointed in the Army of the United States without component in the grade held in the Reserve or National Guard of the United States and former officers were appointed in the Army of the United States without component in the grade held immediately prior to processing for relief from active duty. After his appointment as a Regular Army captain the officer received orders assigning him to a station which were addressed to him in the grade of lieutenant colonel and he used that title and received the pay and allowances of that grade. Held: The officer was not entitled to the pay and allowances of a lieutenant colonel. The statement in the appointing orders that acceptance of the Regular Army commission would not affect any commission in the Army of the United States without component implied that such acceptance would affect commissions with component which would include Reserve Corps commissions, particularly when read in conjunction with the provision which appointed officers who held only Reserve or National Guard commissions to the same grade in the Army of the United States without component. This construction is further borne out by the provision appointing former officers in the Army of the United States without component in the grade held immediately prior to processing for relief from active duty. Reading these provisions together, it is clear that persons appointed in the Regular Army might serve under their higher grades in the Army of the United States but not under commissions in the Reserve Corps or the National Guard of the United States. Moreover, the officer's promotion to lieutenant colonel was in the nature of a terminal leave promotion and the orders expressly provided for cancellation of terminal leave promotions. In view of the foregoing the orders were sufficient to have placed the officer on notice that his Reserve commission had been terminated, or to have caused him in good faith to have made inquiry as to the effect of his appointment in the Regular Army on that commission. Accordingly, he did not act in good faith in collecting the pay and allowances of a lieutenant colonel so as to permit him to retain the overpayment within the principles of United States v. Royer, 268 US 394, 69 L ed 1011, 45 S Ct 519.

Held also: The provisions of sec 207 of the Legislative Reorganization Act of 1946, as amended, by the Act of 25 October 1951, 65 Stat 655, 656, PL 220, 82nd Cong, 1st sess, subsec b of which provides for payment of any amounts found due "as a result of the action heretofore taken pursuant to sec 207 of the Legislative Reorganization Act of 1946, or hereafter taken pursuant to subsec a of this section", affords no basis for allowance of the claim of the officer herein for the pay and allowances of a lieutenant colonel since it does not appear that any action was taken in his case under the 1946 Act either as originally enacted or as amended. MS Comp Gen B-120219, 34 Comp Gen 263. 1 December 1954.

§ 43. Service Counted in Determining Years of Service

§ 43.1. Generally.

An individual was a candidate for a Reserve commission for varying periods between 14 May 1917 and 27 November 1917 under the provisions of sec 54 of the National Defense Act of 1916. As a candidate under this statute he attended established officer training camps. Records reflect that he was "enlisted" in such camps. Held: The period from 14 May 1917 to 27 November 1917 is not creditable for basic pay purposes. "Enlistment" in an officers' training camp under sec 54, National Defense Act of 1916, was in no way related to "enlistment in the armed forces of the United States" and did not confer a military status on the candidate. Op JAGAF 1955/14. 21 February 1955.

Period of time under military control solely for the purpose of psychiatric evaluation as not to be considered in determining the length of service for the purpose of basic pay, see JAGA 1954/6949, infra § 83.5.

Service by individual under enlistment in the Army during which time he was on inactive duty in the Naval Reserve as not creditable for pay purposes, see Op CCCG 1954/23, RETIRE § 41.1.

§ 43.51. Time spent in confinement.

An enlisted man, who absented himself without leave on 1 July 1943 and was returned to military control 2 September 1951, after expiration of enlistment, was confined 2 September and released from confinement and restored to duty 22 December 1951, and discharged April 1953, without trial. Held: The time spent in confinement from 2 September to 22 December 1951 may not be considered as "good time" in computing the cumulative years of creditable service for the purpose of determining basic pay or for any other reason. However, such period of confinement was not "time lost" within the purview of the Act of 4 June 1920 (41 Stat 809), as amended (10 USC 629). (Citing JAG 220.7191, 17 Dec 1931; CSJAGA 1948/7587, 24 Nov 1948; CSJAGA 1949/7341, 8 Dec 1949; 2 Comp Gen 162; MS Comp Gen B-113109, 30 Jan 1953; JAGA 1952/9608, 2 Jan 1953, 2 Dig Ops, PAY § 18.1.) JAGA 1954/4138. 30 April 1954.

§ 43.71. Leave or furlough without pay status.

The period of time when an employee of the Lighthouse Service was on a furlough without pay status is creditable for longevity purposes. Op CCCG 1954/12. 15 March 1954.

§ 43.73. Coast and Geodetic Survey service.

There was no intent in the Career Compensation Act of 1949 to make service under shipping articles in the Coast and Geodetic Survey, whether performed before or after the effective date of the Act, creditable for basic pay purposes. Persons performing such service were, and still are, civilian employees of the federal government under the civil service laws. Accordingly an officer may not count his service under shipping articles in the Coast and Geodetic

Survey in 1920 and 1922 for purposes of eligibility for retirement or for basic pay purposes under the Career Compensation Act. (Citing 24 Comp Gen 829; 25 Comp Gen 680.) Op CCCG 1954/24. 2 July 1954.

III. ALLOWANCES; SPECIAL AND ADDITIONAL PAY

§ 57.1. Generally.

A. IN GENERAL

§ 57. Demolition Duty Pay

Section 204 (a) of the Career Compensation Act of 1949, 63 Stat 809, and Executive Order No. 10152, 17 August 1950, contemplates the actual performance of demolition duty, or training for such duty, during at least a portion of any month to qualify for incentive pay for hazardous duty involving the demolition of explosives for that month, unless the failure to perform such duty during any month results from incapacity because of the performance of demolition duty, in which event the Executive Order provides that the member shall be deemed to have fulfilled all the requirements for the performance of hazardous duty during such incapacity for a period not to exceed three months following the date as of which such incapacity is determined by appropriate medical authority. However, it would not be objectionable to pay incentive pay for demolition duty to a member, required by competent orders to perform such duty as a primary duty, for any month in which he actually performs such duty, even though for a portion of that month he may be carried in a sick in line of duty status or a temporary duty status, during which period of sickness or temporary duty he does not actually perform duties involving demolition of explosives or training for such duties. Comp Gen B-119415. 24 June 1954.

§ 63.1. Generally.

§ 63. Foreign Duty Pay

Section 729, Department of Defense Appropriation Act, 1955 (PL 458, 83d Cong, 68 Stat 337), which provides that "Hereafter, no part of the funds appropriated to the Department of Defense shall be available for the payment to any person in the military service who is resident of a United States Territory or possession, of any foreign duty pay as prescribed in section 206 of the Career Compensation Act (PL 351, 81st Congress), unless such person is serving in an area outside the Territory or possession of which he is a resident," constitutes permanent legislation. The inclusion of the word "hereafter" indicates that Congress intended the provision to have permanent effect. (Distinguishing JAGA 1953/6829, 20 Aug 1953.) JAGA 1954/6933. 5 August 1954.

§ 67.1. Generally.

§ 67. Combat Duty Pay

Sentence to forfeiture of pay and allowances as affecting combat pay, see SENT & PUN § 35.1.

§ 68. Pay for Exercising Command of Higher Grade §68.1. Generally.

On 8 February 1942, a colonel who was the senior officer of a division was assigned as commander thereof. His assignment was made by higher commanders but was not made by the President or by his direction. From the date of his assignment the colonel was in an absent status within the contemplation of the Missing Persons Act, 56 Stat 143, as amended 50 USC Appx 1001, until 20 August 1945 when he was liberated as a prisoner of war. During at least part of the period from 21 August 1945 to 20 January 1946 he was hospitalized and it did not appear that he ever resumed command of the division. He made a claim for the difference in pay between that of a colonel and that of a brigadier general for the period from 8 February 1942 to 20 January 1946 under sec 7 of the act of 26 April 1898, 30 Stat 365, 10 USC 694, which provides that in time of war every officer serving with troops operating against the enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised. His claim was denied by the Army Finance Center on the ground that his assignment was not by orders of competent authority, the President not having delegated his authority in that respect to field commanders until 1943 (see act of 4 Jun 1920, 41 Stat 811, as amended 10 USC 507; Kinsolving v. U. S.. 63 Ct Cl 79; Campbell v. U. S., 63 Ct Cl 133). His claim was also disallowed by the Claims Division of the Office of the Comptroller General on the basis that an officer is not entitled to the pay of the higher command where he would have commanded by virtue of seniority under regulations. (See U. S. v. Mitchell, 205 US 161, 51 L ed 752, 27 S Ct 463; Humphreys v. U. S., 38 Ct Cl 689; 1 Comp Gen 37; 22 Comp Gen 133.) Held: Under sec 9 of the Missing Persons Act, 56 Stat 145, as amended, departmental determinations of entitlement of any person, under the provisions of that Act, to pay and allowances are conclusive. Thus, as to the period in which the colonel was in a missing status, the Army Finance Center determination is conclusive and in the absence of a redetermination by the Department of the Army, the Comptroller General may not give favorable consideration to a claim for such period. The decision in Stillman v. U. S., 116 F Supp 622, Ct Cl No. 49597, 1 Dec 1953, relied on by the claimant cannot be accepted as a basis for favorable action since, although that case indicated a change in point of view from the conclusions reached in the Kinsolving and Campbell cases, supra. the court neither mentions these cases nor states any reason for the change in point of view although the cases were brought to its attention. Also, there is no indication that the court's opinion gave full consideration to the Mitchell case, supra, and furthermore, such decision ignores the final and conclusive determination made by the Department under the Missing Persons Act.

Held also: Regarding the period from 21 August 1945 to 20 January 1946, since the Japanese surrendered on 14 August 1945 and in view of the claimant's hospital status, he could not be regarded