the rate of $100 per day for each day any service is performed in a professional capacity subject to the maximum limitation of $1,500 fixed in the employment contract.

To Lieutenant Colonel S. Gaddis, Department of the Army, July 23, 1959:

Your letter of May 20, 1959, transmitted here by Chief Field Division, Office of the Chief of Finance, reference FINXE-A 248.7, requests our decision whether under the facts and circumstances hereinafter set forth payment of a voucher transmitted therewith in favor of Dr. David H. Wilson is authorized.

Dr. Wilson was employed as an expert witness in connection with the general court-martial of Sp-4 William G. Tefft. The letter of the Chief Korean Military Advisory Group, Seoul, Korea, covering the employment of Dr. Wilson reads in part as follows:

1. Upon representation of George T. David, Esq., individual defense counsel for Specialist Four William G. Tefft, that you are available and will accept, the Chief KMAG, authorizes your employment as expert to examine and make psychiatric evaluation of Specialist Four William G. Tefft and to testify as to your findings and opinion at his pending trial by General Court-Martial firmly scheduled for 1 December 1958, at Taejon, Korea.

2. Your fees have been fixed by Chief, KMAG at $100 per day while performing in your professional capacity and as a witness and further, your total professional and witness fees are not to exceed $1,500. * *

Under the agreement Dr. Wilson was paid fees totaling $919.50. He now claims additional fees of $100 each "while performing in my professional capacity" on November 12, 15, 17, 24, 25, 26, 27, and 28. While the amount appearing on the voucher itself is only $400-apparently computed upon the basis of total hours worked divided by eight-it appears from Dr. Wilson's letter of February 20, 1959, that he signed the voucher form in blank and that the amount claimed thereon was filled in by administrative officials who determined he would be entitled to no more than $400 based upon the hours worked. Hence, the $400 figure is not viewed as limiting the amount allowable to Dr. Wilson if he otherwise is entitled to a greater amount.

The authority for employment of expert witnesses in connection with court-martial proceedings is contained in section 116 of Manual for Courts-Martial, United States, 1951, which was promulgated by the President by Executive Order No. 10214, February 8, 1951. Section 116 is as follows:

EMPLOYMENT OF EXPERTS.-When the employment of an expert is necessary during a trial by court-martial, the trial counsel, in advance of the employment, will, on the order or permission of the court, request the convening authority to authorize such employment and to fix the limit of compensation to be paid the expert. The request should, if practicable, state the compensation that is recommended by the prosecution and the defense. Where in advance of trial the prosecution or the defense knows that the employment of an expert will be necessary, application should be made to the convening authority for permission to employ the expert, stating the necessity therefor and the probable cost. In

the absence of such previous authorization, no fees, other than ordinary witness fees, may be paid for the employment of an individual as an expert witness.

The services rendered by Dr. Wilson on November 12, 15, 17, 24, 25, 26, 27, and 28, consisted of interviews with the family and the fiancee of the accused, consultation with counsel concerning the psychiatric matters involved and review of the clinical records, pretrial investigation and military records pertaining to the accused. The services rendered by Dr. Wilson on the days enumerated apparently were necessary to enable him to make an informed appraisal of the mental condition of the accused and reasonably may be regarded as having been incident to and preparatory for his testimony as an expert witness in the court-martial proceedings. In view thereof there appears little question but that such services were rendered by Dr. Wilson while performing in his "professional capacity," and we conclude that he is entitled to pay therefor. See 11 Comp. Gen. 504.

Moreover, we are of the view that the fee payable to Dr. Wilson for each day of service is the same regardless of the duration of his service on any such day. Compare 27 Comp. Gen. 776, involving experts appointed for temporary periods under the authority of section 15 of the Administrative Expenses Act of 1946, 60 Stat. 810, 5 U.S.C. 55a. In that decision we concluded:

*** Accordingly, such employees, if employed on a per diem basis, are entitled, for each day of service, to the per diem rate prescribed in their contracts of employment regardless of the total number of hours worked or their daily rate of compensation. * * *

Compare also 28 Comp. Gen. 211; id. 328, 331. We feel that the principle enunciated in those decisions has equal application in Dr. Wilson's case and that he, therefore, is entitled to compensation at the rate of $100 for each day he performed any service in his professional capacity for which he has not already been reimbursed except that in no event may the aggregate payments made in connection with his employment as an expert witness in the Tefft case exceed the maximum limitation of $1,500. The voucher, which is returned herewith, should be revised in accordance with the foregoing and payment should be made thereon.

[B-139999]

Travel Expenses-Persons Serving Without Compensation-State Government Members of the Commission on International Rules of Judicial Procedure

Notwithstanding that the act of September 2, 1958, which authorized the establishment of the Commission on International Rules of Judicial Procedure, does not contain any provision for payment of travel, subsistence and other necessary expenses for the two State government commission members but does contain

provision for such expenses as are authorized by section 5 of the Administrative Expenses Act of 1946, 5 U.S.C. 73b-2, for members of the Advisory Committee appointed under the 1958 act, it does not follow that payment of travel expenses to the two State government members must be denied; therefore, in view of the fact that the use of section 5, 5 U.S.C. 73b-2, for persons serving without compensation does not require other affirmative statutory authority, the two State government members may be considered as persons serving without compensation for payment of travel expenses.

To the Staff Director, Commission on International Rules of Judicial Procedure, July 27, 1959:

This is in response to your letter of June 22, 1959, with enclosure, acknowledged July 13, requesting our decision as to whether two members (Presidential appointees) of the Commission on International Rules of Judicial Procedure, who also are officials of a State government, are entitled to reimbursement for travel, subsistence, and other necessary expenses incurred by them in the performance of their official duties. You say that bills for travel expenses have been submitted by state members of the Commission.

The question presented concerns the provisions of the act of September 2, 1958 (Public Law 85-906), 72 Stat. 1743, which established the Commission. Subsections (a) and (e) of section 3 of the act read as follows:

(a) The Commission shall consist of nine members. The President shall appoint five members, three of whom shall be public members and two of whom shall be officials of State government whose positions give them knowledge of judicial and quasi-judicial procedures in the States. The Secretary of State shall appoint two representatives of the Department of State and the Attorney General shall appoint two representatives of the Department of Justice. The Commssion shall elect a Chairman from among its members.

(e) The public members of the Commission shall each receive $50 per diem when engaged in the actual performance of duties vested in the Commission, plus reimbursement for travel, subsistence, and other expenses incurred by them in the performance of such duties.

The act specifically provides in subsection 3(d) that the four Commission members who are officers or employees of the United States appointed by the Secretary of State and the Attorney General "shall serve without compensation in addition to that received for their services in the Government." Provision is made, also, in section 5 of the act for a fifteen member Advisory Committee to advise and consult with the Commission. Advisory Committee members are to be appointed by the Commission from among lawyers, judges of Federal and State courts, and other persons competent to provide advice for the Commission, are to receive no compensation and shall not be deemed to be officers or employees of the United States by virtue of such service. Members of the Advisory Committee, other than officers or employees of the United States, are entitled under the specific terms of the act to travel and subsistence expenses as authorized by section 5 of the Administrative Expenses

Act of 1946, as amended, 5 U.S.C. 73b-2, for persons serving without compensation.

As you point out in your letter the language of the act contains no provision express or implied which authorizes payment to the two State government Commission members for travel, subsistence, and other necessary expenses they incur in performing official duties for the Commission. Moreover, we find nothing in the legislative history of the act from which to conclude that Commission members of a State government are entitled to be reimbursed for the costs abovementioned. Consequently, our view is that the Congress, in authorizing only public members to receive compensation and reimbursement for travel, subsistence, and other expenses, in section 3 (e) of the act did not intend to authorize similar payments to nonpublic Commission members, whether officials of the Federal or a State government.

Section 5 of the Administrative Expenses Act of 1946, 5 U.S.C. 73b-2 provides, in pertinent part as follows:

persons serving without compensation or at $1 per annum may be allowed, while away from their homes or regular places of business, transportation in accordance with said regulations and section 73a of this title, and not to exceed $15 per diem within the limits of the continental United States and beyond such limits, not to exceed the rates of per diem established by the Director of the Bureau of the Budget pursuant to section 836 of this title in lieu of subsistence en route and at place of such service or employment unless a higher rate is specifically provided in an appropriation or other Act: And provided further, That where due to the unusual circumstances of a travel assignment within the limits of the continental United States such maximum per diem allowance would be much less than the amount required to meet the actual and necessary expenses of the trip, the heads of departments and establishments may, in accordance with regulations promulgated by the Director, Bureau of the Budget, pursuant to section 840 of this title prescribe conditions under which reimbursement for such expenses may be authorized on an actual expense basis not to exceed a maximum amount to be specified in the travel authorization, but in any event not to exceed $25 for each day in travel status.

While the Commission's organic act specifically authorizes the use of section 5 for members of the Advisory Committee and is silent regarding its application to the State government members, we do not view that fact as requiring the conclusion that said section is not available to the members in the latter category. Affirmative provision for the use of section 5 is not necessary for persons otherwise within its scope. Moreover, we find nothing in the legislative history of Public Law 85-906 showing a congressional intent to deny the use of Federal funds for State government members traveling on business of the Commission. We concur in the opinion set forth in the memorandum, transmitted with your letter, prepared in the Office of Legal Counsel, Department of Justice-to which Department the Commission is attached for administrative purposes-that the State government members reasonably may be held to be within the purview of the term "persons serving without compensation", as

that term is used in said statute. Therefore, if otherwise appropriate, the State government members of the Commission may be allowed travel expenses in accordance with the provisions of section 5, quoted above.

Your question is answered accordingly.

[B-140074]

Civilian Personnel-Training-Legal
Department Appropriation Prohibition

Courses-Defense

While the training of qualified attorneys employed in the Department of Defense in specialized legal subjects relating to their official duties, such as courses in Government contracts and in trial techniques, constitutes legal training, such training does not constitute "training in a legal profession," which is prohibited by section 618 of the Department of Defense Appropriation Act, 1959, 72 Stat. 727, and, in view of the specific availability of appropriations for training of civilian employees when approved by the Secretary of one of the military departments, such legal training contracts will not be objected to when approved. While the prohibition in section 618 of the Department of Defense Appropriation Act, 1959, 72 Stat. 727, against the use of funds for training in any legal profession is intended primarily to preclude the training of individuals at Government expense for the purpose of obtaining law degrees and qualifying as attorneys, it cannot be construed to apply only to undergraduate law courses leading to a degree or to exclude graduate courses; therefore, each case must be considered on its own merits.

To the Secretary of the Army, July 29, 1959:

On June 26, 1959, Mr. Franklin L. Orth, Deputy Assistant Secretary of the Army, requested our decision as to whether certain law courses for civilian employees constitute courses for training within the prohibition of section 618, Department of Defense Appropriation Act, 1959, 72 Stat. 727.

Section 618 provides that:

None of the funds provided in this Act shall be available for training in any legal profession nor for the payment of tuition for training in such profession : Provided, That this limitation shall not apply to the off-duty training of military personnel as prescribed by section 623 of this Act.

Your department's doubt in the matter concerns whether attendance at courses offered as part of the regular curriculum of a law school is prohibited by the statute when the employee involved is a qualified attorney and the training is primarily in the interests of the Government rather than for the benefit of the employee. Specifically, our decision is requested as to whether three contracts, described below, may be approved-it being stated that travel and transportation costs are not involved and attendance at courses is outside regular duty hours.

1. Contract with the George Washington University for a full academic semester for the training in government contracts of two General Attorneys, GS-15 and GS-13. The course is listed in the George Washington University Catalog 1958-1959, on page 349 as "431 Government Contracts I." This is a graduate