B-117232, DECEMBER 31, 1954, 34 COMP. GEN. 314

B-117232, DECEMBER 31, 1954, 34 COMP. GEN. 314

PAY - PROMOTIONS - EFFECTIVE DATE - NAVAL RESERVISTS TEMPORARY PROMOTIONS OF NAVAL RESERVE OFFICERS ON ACTIVE DUTY DURING TIME OF WAR OR NATIONAL EMERGENCY MUST BE CONSIDERED TO HAVE BEEN MADE UNDER THE TEMPORARY PROMOTION PROVISIONS OF THE ACT OF JULY 24, 1941, WHICH SUPERSEDED THE TEMPORARY PROMOTION AUTHORITY OF SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, SO THAT THE EFFECTIVE DATE OF SUCH TEMPORARY PROMOTIONS FOR PAY AND ALLOWANCE PURPOSES UNDER THE 1941 ACT IS THE DATE ON WHICH THE APPOINTMENT IS MADE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, DECEMBER 31, 1954:

REFERENCE IS MADE TO LETTER DATED JUNE 8, 1954, FILE F7.1, L16-4/6, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, TO THE NAVY AUDIT BRANCH, GENERAL ACCOUNTING OFFICE, CLEVELAND, OHIO, REPLYING TO AN EXCEPTION TAKEN WITH RESPECT TO THE PAY CREDITED TO LIEUTENANT ROBERT P. PUNDERSON, UNITED STATES NAVAL RESERVE, FOR THE PERIOD MAY 1 TO AUGUST 21, 1952. THE EXCEPTION WAS TAKEN ON THE GROUND THAT THE OFFICER WAS TEMPORARILY PROMOTED FROM LIEUTENANT (JG) TO LIEUTENANT ON AUGUST 22, 1952; THAT HE WAS ON ACTIVE DUTY WHEN SO PROMOTED; THAT THE PROMOTION COULD HAVE NO RETROACTIVE EFFECT FOR PAY PURPOSES; AND THAT, HENCE, HE SHOULD HAVE BEEN PAID AS A LIEUTENANT (JG) INSTEAD OF LIEUTENANT FOR THE PERIOD INVOLVED.

IT APPEARS THAT ON SEPTEMBER 8, 1952, THE CHIEF OF NAVAL PERSONNEL ADVISED LIEUTENANT (JG) ROBERT P. PUNDERSON, UNITED STATES NAVAL RESERVE, THAT THE PRESIDENT, ON AUGUST 22, 1952, HAD TEMPORARILY APPOINTED HIM TO THE GRADE OF LIEUTENANT IN THE NAVAL RESERVE TO RANK FROM MAY 1, 1952; THAT SUCH APPOINTMENT HAS BEEN MADE UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AND NAVAL RESERVE MULTIPLE ADDRESS LETTER NO. 11-51; AND THAT THE EFFECTIVE DATE OF THE PROMOTION FOR PAY PURPOSES WAS THE EARLIER OF THE FOLLOWING: (1) THE DATE OF COMMENCEMENT OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITH PAY ON OR AFTER MAY 1, 1952 OR (2) AUGUST 22, 1952. IT FURTHER APPEARS THAT LIEUTENANT PUNDERSON WAS SERVING ON EXTENDED ACTIVE DUTY ON AUGUST 22, 1952, HAVING REPORTED FOR SUCH DUTY ON DECEMBER 3, 1951.

THE LETTER OF JUNE 18, 1954, RELATES THAT A FIRM LIST OF NAVAL RESERVE OFFICERS WHO REPORTED FOR ACTIVE DUTY SUBSEQUENT TO JULY 1, 1951, AND PRIOR TO JANUARY 1, 1952, COULD NOT BE SUBMITTED TO THE REGULAR NAVY SELECTION BOARD--- WHICH CONVENED ON JANUARY 22, 1952, UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED--- BECAUSE OF THE NUMBER OF RECALLS TO ACTIVE DUTY INCIDENT TO THE KOREAN SITUATION, THE FACT THAT INVOLUNTARY RECALL ORDERS ALLOWED A DELAY IN REPORTING OF 60 TO 90 DAYS AFTER ISSUANCE, ETC. ALSO, IT IS SHOWN THAT THE DATE OF RANK, MAY 1, 1952, STATED IN LIEUTENANT PUNDERSON'S TEMPORARY APPOINTMENT AS LIEUTENANT OF HIS RUNNING MATE IN THE REGULAR NAVY. HOWEVER, IT APPEARS THAT THE LATTER APPOINTMENT WAS ANNOUNCED ON MARCH 31, 1952, AND THUS INVOLVED NO RETROACTIVE DATE OF RANK.

SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 52 STAT. 1183, 34 U.S.C. 855K (REPEALED, EFFECTIVE JANUARY 1, 1953, BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505), PROVIDED, IN PERTINENT PART, THAT:

IN TIME OF WAR OR NATIONAL EMERGENCY, OFFICERS OF THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY SHALL BE ADVANCED IN THEIR RESPECTIVE CORPS IN GRADE AND RANK IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY OR THE MARINE CORPS, RESPECTIVELY * * * PROVIDED FURTHER, THAT HEREAFTER ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK IN TIME OF PEACE OR IN TIME OF WAR OR NATIONAL EMERGENCY UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK AS STATED IN THEIR COMMISSIONS, AS DISTINGUISHED FROM THE DATES OF COMMISSION, OR DATES OF ACCEPTANCE OF COMMISSION, AND THE DATES OF RANK AS STATED IN THEIR COMMISSIONS SHALL BE CONCLUSIVE FOR ALL PURPOSES * * *.

TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, CONTAINS CERTAIN PROVISIONS RESPECTING TEMPORARY PROMOTIONS. THE PRESIDENT, HOWEVER, BY EXECUTIVE ORDER NO. 10266, DATED JUNE 30, 1951, UNDER THE AUTHORITY OF THE ACT OF JUNE 30, 1951, 65 STAT. 108, SUSPENDED FOR THE DURATION OF THE NATIONAL EMERGENCY PROCLAIMED ON DECEMBER 16, 1950, THOSE PROVISIONS OF THE SAID TITLE III, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, WHICH RELATE TO TEMPORARY PROMOTIONS.

THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZES, DURING PERIODS OF WAR OR NATIONAL EMERGENCY, THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF PERSONNEL OF THE NAVY AND MARINE CORPS. SECTION 11 OF THAT ACT, 55 STAT. 605, PROVIDES, IN PERTINENT PART, THAT:

THE PROVISIONS OF THIS ACT, EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME THERETO SHALL APPLY TO---

(A) PERSONNEL OF THE NAVAL RESERVE (EXCEPT THE FLEET RESERVE) AND THE MARINE CORPS RESERVE (EXCEPT THE FLEET MARINE CORPS RESERVE) IN LIKE MANNER AND TO THE SAME EXTENT AND WITH THE SAME RELATIVE CONDITIONS IN ALL RESPECTS AS ARE PROVIDED FOR PERSONNEL OF THE REGULAR NAVY AND MARINE CORPS, BUT THIS SHALL NOT BE CONSTRUED TO AUTHORIZE THE TEMPORARY APPOINTMENT OF THE PERSONNEL THEREOF TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS.

SECTION 12 OF THE ACT, AS ADDED BY THE ACT OF MAY 22, 1950, 64 STAT. 187, PROVIDES THAT:

PERSONNEL TEMPORARILY APPOINTED PURSUANT TO THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

IT SEEMS CLEAR THE DEPARTMENT OF THE NAVY RECOGNIZED THAT UPON SUSPENSION OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, THE ACT OF JULY 24, 1941, BECAME THE STATUTE UNDER WHICH TEMPORARY PROMOTIONS OF RESERVE OFFICERS ON ACTIVE DUTY SHOULD BE MADE. BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 47-51, MARCH 29, 1951, ENTITLED " OFFICER PROMOTION FOR FISCAL YEAR 1951" STATED THAT:

LEGISLATION HAS BEEN INTRODUCED WHICH, IF ENACTED, WILL SUSPEND THE PROVISIONS OF THE OFFICER PERSONNEL ACT FOR THE PROMOTION OF REGULAR AND RESERVE OFFICERS ON ACTIVE DUTY TO THE GRADES OF LIEUTENANT COMMANDER AND BELOW DURING THE PRESENT NATIONAL EMERGENCY. THESE OFFICERS WILL THEN BE ADVANCED UP TO THE GRADES OF LIEUTENANT COMMANDER UNDER THE AUTHORITY OF THE TEMPORARY PROMOTION LAW, PUBLIC LAW 188, 77TH CONGRESS (ACT OF JULY 24, 1941), AS AMENDED. * * * (ITALICS SUPPLIED.) ALSO, SEE ALNAV 4, JANUARY 29, 1952, AND BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 56-52, MARCH 31, 1952, ANNOUNCING TEMPORARY PROMOTIONS UNDER THE ACT OF JULY 24, 1941, OF VARIOUS OFFICERS OF THE REGULAR NAVY AND OF THE NAVAL RESERVE ON ACTIVE DUTY, AND ALNAV 7, APRIL 5, 1952, ANNOUNCING TEMPORARY PROMOTIONS UNDER THAT ACT OF VARIOUS OFFICERS OF THE REGULAR MARINE CORPS AND OF THE MARINE CORPS RESERVE ON ACTIVE DUTY.

IT IS INDICATED THAT LIEUTENANT PUNDERSON'S PROMOTION WAS IN ACCORDANCE WITH THE NAVAL RESERVE ACT OF 1938 AND WITH NAVAL RESERVE MULTIPLE ADDRESS LETTER NO. 11-51, SEPTEMBER 12, 1951. PARAGRAPH 3 OF THAT LETTER, HOWEVER, STATED THAT ENCLOSURE (1) CONTAINED THE SECRETARY OF THE NAVY'S " REGULATIONS GOVERNING THE PROMOTION OF NAVAL RESERVE OFFICERS" AND THAT SUCH ENCLOSURE WAS APPLICABLE TO ALL NAVAL RESERVE OFFICERS, EXCEPT WARRANT OFFICERS AND OFFICERS SERVING ON EXTENDED ACTIVE DUTY IN REGULAR NAVY BILLETS. INFORMAL ADVICE FROM THE DEPARTMENT OF THE NAVY IS THAT LIEUTENANT PUNDERSON WAS SERVING ON EXTENDED ACTIVE DUTY IN A REGULAR NAVY BILLET WHEN HE WAS PROMOTED.

THUS, THE REGULATIONS AND DIRECTIVES OF THE DEPARTMENT OF THE NAVY, IN EFFECT WHEN THE OFFICER WAS PROMOTED, SEEM CLEARLY TO HAVE CONTEMPLATED THAT THE PROMOTION OF NAVAL RESERVE OFFICERS ON INACTIVE DUTY OR ON ACTIVE DUTY IN RESERVE BILLETS WOULD BE MADE UNDER THE BASIC AUTHORITY OF THE NAVAL RESERVE ACT OF 1938 BUT THAT THE TEMPORARY PROMOTION OF ALL OTHER NAVAL RESERVE OFFICERS (THAT IS, OFFICERS SUCH AS LIEUTENANT PUNDERSON WHO WERE ON EXTENDED ACTIVE DUTY) WOULD BE MADE UNDER THE SPECIFIC PROVISIONS FOR SUCH TEMPORARY PROMOTIONS CONTAINED IN THE ACT OF JULY 24, 1941. HOWEVER, EVEN IF REGULATIONS HAD BEEN IN EXISTENCE PURPORTEDLY AUTHORIZING LIEUTENANT PUNDERSON'S PROMOTION UNDER THE NAVAL RESERVE ACT OF 1938, THERE IS AT LEAST GRAVE DOUBT THAT SUCH REGULATIONS WOULD HAVE BEEN VALID, SINCE THE ACT OF JULY 24, 1941, WAS PERMANENT LEGISLATION AND SPECIFICALLY COVERED THE SUBJECT OF TEMPORARY PROMOTIONS OF NAVAL RESERVE OFFICERS IN TIME OF WAR OR NATIONAL EMERGENCY. THAT ACT, THEREFORE, APPEARS TO HAVE SUPERSEDED AND REPEALED THOSE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, WHICH PREVIOUSLY HAD PROVIDED BASIC AUTHORITY FOR TEMPORARY PROMOTIONS OF NAVAL RESERVE OFFICERS ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY.

ON THAT BASIS, IT APPEARS THAT THE ONLY STATUTORY AUTHORITY FOR LIEUTENANT PUNDERSON'S PROMOTION WAS THE ACT OF JULY 24, 1940, WHICH AUTHORIZED THE INCREASED PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE ONLY FROM THE DATE ON WHICH THE APPOINTMENT WAS MADE BY THE PRESIDENT. THAT CONCLUSION IS SUPPORTED BY THE RECENT CASE OF BERRY V. UNITED STATES, C.1CLS. NO. 50-52, DECIDED NOVEMBER 30, 1954. WHILE IT WAS STIPULATED IN THAT CASE THAT THE TEMPORARY PROMOTIONS INVOLVED HAD BEEN MADE UNDER THE ACT OF JULY 24, 1941, THE COURT REMARKED THAT AFTER SECTION 1 OF THE ACT OF JUNE 30, 1942, 56 STAT. 463, SUSPENDED THE PROVISIONS OF EXISTING LAW RELATING TO PERMANENT PROMOTIONS OF ALL OFFICERS OF THE NAVY AND MARINE CORPS, THE PROMOTION PROVISIONS OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, BECAME INOPERATIVE AND THAT "PLAINTIFF'S PROMOTIONS COULD ONLY HAVE BEEN PURSUANT TO THE ACT OF JULY 24, 1941.' THAT CONCLUSION APPARENTLY COULD HAVE BEEN BASED ONLY ON THE PREMISE THAT THE TEMPORARY PROMOTION PROVISIONS OF THE NAVAL RESERVE ACT HAD ALREADY BEEN SUPERSEDED BY THE ACT OF JULY 24, 1941.

THE MATTER HAS BEEN CAREFULLY CONSIDERED BUT THIS OFFICE HAS FOUND NO SUFFICIENT BASIS TO CONCLUDE THAT THE TEMPORARY PROMOTION IN THIS CASE WAS AUTHORIZED BY LAW, EXCEPT UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941. IT FOLLOWS THAT THIS OFFICE IS REQUIRED TO CONTINUE THE EXCEPTIONS TAKEN IN THE CASE OF LIEUTENANT PUNDERSON AND IN OTHER LIKE CASES.