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B-24219, MAY 7, 1942, 21 COMP. GEN. 991

B-24219 May 07, 1942
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NOR ARE THEY ENTITLED TO ANY ALLOWANCES AS FOR EXTENSION OF ENLISTMENTS. WHERE A NAVY ENLISTED MAN IS TEMPORARILY PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24. THE SAVINGS CLAUSE IN SECTION 7 (A) OF THE ACT SAVES TO HIM ONLY THE PAY AND ALLOWANCES WHICH WOULD HAVE ACCRUED TO HIM IN THE PERMANENT STATUS IN THE REGULAR NAVY OCCUPIED AT THE TIME OF THE FIRST TEMPORARY PROMOTION. NOT THE PAY AND ALLOWANCES WHICH MIGHT HAVE ACCRUED IN THE TEMPORARY RANK HELD UNDER THE FIRST PROMOTION. AS FOLLOWS: THERE IS ENCLOSED HEREWITH A LETTER FROM THE BUREAU OF NAVIGATION. YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTIONS PRESENTED IN THE ENCLOSED CORRESPONDENCE. IS AN ENLISTED MAN HOLDING A TEMPORARY APPOINTMENT AS A WARRANT OR COMMISSIONED OFFICER ENTITLED TO REENLISTMENT ALLOWANCE AS AUTHORIZED FOR OTHER ENLISTED MEN?

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B-24219, MAY 7, 1942, 21 COMP. GEN. 991

ENLISTMENT AND TRAVEL ALLOWANCES; PAY - TEMPORARILY PROMOTED NAVY ENLISTED MEN NAVY ENLISTED MEN TEMPORARILY HOLDING WARRANT OR COMMISSIONED GRADES UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, WHILE RETAINING THEIR PERMANENT STATUS MAY NOT BE DISCHARGED AND REENLISTED IN THEIR PERMANENT GRADES FOR THE PURPOSE OF CREATING A RIGHT TO ENLISTMENT AND TRAVEL ALLOWANCES; NOR ARE THEY ENTITLED TO ANY ALLOWANCES AS FOR EXTENSION OF ENLISTMENTS. WHERE A NAVY ENLISTED MAN IS TEMPORARILY PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, TO A WARRANT OR COMMISSIONED GRADE AND SUBSEQUENTLY RECEIVES A SECOND SUCH TEMPORARY PROMOTION, THE SAVINGS CLAUSE IN SECTION 7 (A) OF THE ACT SAVES TO HIM ONLY THE PAY AND ALLOWANCES WHICH WOULD HAVE ACCRUED TO HIM IN THE PERMANENT STATUS IN THE REGULAR NAVY OCCUPIED AT THE TIME OF THE FIRST TEMPORARY PROMOTION, AND NOT THE PAY AND ALLOWANCES WHICH MIGHT HAVE ACCRUED IN THE TEMPORARY RANK HELD UNDER THE FIRST PROMOTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 7, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 27, 1942, WITH ENCLOSURES, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE BUREAU OF NAVIGATION, DATED JANUARY 27, 1942, WITH FIRST ENDORSEMENT OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 23, 1942, RELATIVE TO THE MATTER OF PAY AND ALLOWANCES AUTHORIZED IN THE CASE OF ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS AS WARRANT AND COMMISSIONED OFFICERS UNDER THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, 77TH CONGRESS).

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTIONS PRESENTED IN THE ENCLOSED CORRESPONDENCE, ALL OF WHICH ARISE IN CONNECTION WITH THE PROVISIONS OF THE CITED ACT OF JULY 24, 1941, AS OLLOWS:

(A) UPON REENLISTMENT, IS AN ENLISTED MAN HOLDING A TEMPORARY APPOINTMENT AS A WARRANT OR COMMISSIONED OFFICER ENTITLED TO REENLISTMENT ALLOWANCE AS AUTHORIZED FOR OTHER ENLISTED MEN?

(B) UPON SUCH REENLISTMENT, IS HE ENTITLED TO TRAVEL ALLOWANCE FROM PLACE OF DISCHARGE TO PLACE OF ACCEPTANCE FOR ENLISTMENT AS HE WOULD BE WERE HE NOT HOLDING AN APPOINTMENT AS A TEMPORARY OFFICER?

(C) TO WHAT ALLOWANCES WOULD HE BE ENTITLED UPON EXTENSION OF ENLISTMENT?

(D) DO THE PROVISIONS OF THE SAVINGS CLAUSE APPEARING IN THE SECOND PROVISO TO SECTION 7 (A) OF THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, 77TH CONGRESS/---

(1) MERELY SAVE TO THE ENLISTED MAN HIS ENLISTED PAY AND ALLOWANCES AS OF THE TIME OF ACCEPTANCE OF THE INITIAL APPOINTMENT, OR

(2)DOES IT SAVE TO HIM THE PAY AND ALLOWANCES OF THE TEMPORARY RANK HE MAY THEN BE HOLDING PROVIDED THE PAY AND ALLOWANCES OF SUCH TEMPORARY RANK ARE HIGHER THAN THE PAY AND ALLOWANCES OF THE TEMPORARY RANK TO WHICH HE MAY BE PROMOTED?

THE ACT OF JULY 24, 1941, PUBLIC LAW 188, 55 STAT. 603, 604, 605, PROVIDES IN PERTINENT PART:

THAT EXCEPT AS OTHERWISE SPECIFIED HEREIN THE AUTHORITY GRANTED BY THIS ACT SHALL BE EXERCISED ONLY IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT.

SEC. 2. (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK," AS THE CASE MAY BE.

(B) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(1) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND PLATOON OR STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS, INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.

(4) ENLISTED MEN OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ON ACTIVE DUTY IN THE GRADES HEREIN SPECIFIED FOR ENLISTED MENOF THE REGULAR NAVY OR MARINE CORPS.

SEC. 3. OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS IN COMMISSIONED RANKS, INCLUDING THOSE APPOINTED UNDER THE AUTHORITY OF SECTION 2 OF THIS ACT, MAY BE TEMPORARILY APPOINTED TO HIGHER RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS, AND THE PROVISIONS OF PARAGRAPH 9 OF SECTION 1 OF THE ACT APPROVED JUNE 10, 1922 (42 STAT. 626; U.S.C., TITLE 37, SEC. 2), SHALL BE APPLICABLE TO ALL OFFICERS ELIGIBLE FOR CONSIDERATION FOR APPOINTMENT OR ADVANCEMENT PURSUANT TO THE PROVISIONS OF THIS ACT, NOT ONLY DURING THE EXISTENCE OF A STATE OF WAR FORMALLY RECOGNIZED BY CONGRESS, BUT ALSO DURING A NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT.

SEC. 7. (A) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.

(B) ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY SECTION 2 OF THIS ACT, BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY.

SEC. 10. PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL SHALL, UNLESS OTHERWISE PROVIDED HEREIN, REVERT TO THEIR PERMANENT GRADES, RANKS, OR RATINGS, * * *.

THE FIRST CLAUSE OF SECTION 7 (A) PROVIDES FOR THE SAVING OF THE STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS IN THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENT HELD IN THE REGULAR ESTABLISHMENT, AND IT SAVES TO SUCH PERSONS THEIR RIGHT TO PROMOTION, ADVANCEMENT, OR APPOINTMENT ,IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS" AND FURTHER THAT "THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS" UNDER THE ACT. THIS LAST PROVISION RELATES TO THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES THAT MIGHT HAVE ACCRUED OR WHICH MIGHT THEREAFTER ACCRUE TO THEM IN THEIR STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS, BUT IT DOES NOT AUTHORIZE ANY MONEY BENEFITS TO THEM UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS WHILE HOLDING A TEMPORARY APPOINTMENT AS AUTHORIZED IN THE ACT. THIS IS MADE CLEAR BY THE FIRST PROVISO WHICH DENIES TO THEM ANY PAY OR ALLOWANCES WHILE SERVING UNDER A TEMPORARY APPOINTMENT EXCEPT THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. THE SECOND PROVISO IS A SAVINGS CLAUSE APPLYING TO THE PAY PROVISIONS IN THE FIRST PROVISO, THAT IS, THE FIRST PROVISO HAVING FIXED THEIR PAY AND ALLOWANCES UNDER THEIR TEMPORARY STATUS, THE SECOND PROVISO IS:

* * * THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED. THIS LAST PROVISO OF THE SECTION NEGATIVES ANY SAVINGS OF PAY OR ALLOWANCES IN THE FIRST PART OF SECTION 7 (A), OTHERWISE, IT WOULD BE MERELY A REPETITION. THE PERMANENT STATUS WITH ALL ITS RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES CONTINUES, EXCEPT AS TO PAY AND ALLOWANCES; AND THE PAY AND ALLOWANCES ACCRUING UNDER THE TEMPORARY APPOINTMENT ARE SUBJECT TO THE SAVINGS CLAUSE IN LAST PROVISO OF THE SAID SECTION 7 (A). PAY, OR ALLOWANCES PAYABLE IN MONEY, OF ANY KIND OR CHARACTER WHICH MIGHT HAVE ACCRUED UNDER THE PERMANENT STATUS DO NOT ACCRUE TO THE PERSON IN EXCESS OF THAT PROVIDED FOR HIS TEMPORARY OFFICE EXCEPT AS SUCH PAY AND ALLOWANCES MAY FALL WITHIN THE SAVINGS CLAUSE IN THE SAID LAST PROVISO. IF THE PERSON IS ENTITLED TO PROMOTION OR ADVANCEMENT IN DUE COURSE, OR TO APPOINTMENT AFTER THE STIPULATED LEGAL PERIOD, APPLICABLE TO HIS PERMANENT STATUS AT THE TIME OF TEMPORARY APPOINTMENT HE WILL BE ENTITLED TO SUCH PROMOTION, ADVANCEMENT, OR APPOINTMENT IN THE PERMANENT SERVICE SUBJECT TO ALL PROVISIONS OF LAW FOR SUCH PROMOTION, ADVANCEMENT, OR APPOINTMENT, BUT HIS PAY AND ALLOWANCES IN HIS TEMPORARY STATUS WILL BE GOVERNED BY THE PROVISIONS MADE IN THE PROVISOS OF SECTION 7 (A).

UNDER SECTION 10, UNLESS PROMOTED, ADVANCED, OR APPOINTED IN ACCORDANCE WITH THE LAWS RELATING TO THE REGULAR NAVY, ENLISTED MEN TEMPORARILY COMMISSIONED OR WARRANTED UPON TERMINATION OF THE EFFECTIVE PERIOD OF THE ACT SHALL REVERT TO THEIR PERMANENT GRADES OR RATINGS. THERE IS NO LAW PROVIDING THAT ENLISTED MEN SHALL MANDATORILY BE PROMOTED, ADVANCED, OR APPOINTED TO ANY OTHER ENLISTED GRADE, OR WARRANTED OR COMMISSIONED. APPEARS CLEAR FROM THE LANGUAGE OF SECTIONS 7 AND 10 OF THE ACT THAT THE PERIOD FOR WHICH A MAN ENLISTS IN THE PERMANENT NAVY IS NOT TERMINATED UPON ACCEPTANCE OF A TEMPORARY COMMISSION OR WARRANT NOR DURING THE OCCUPANCY OF THE TEMPORARY OFFICE.

THE ACT OF DECEMBER 13, 1941, PUBLIC LAW 337, 55 STAT. 799, PROVIDES:

THAT IN TIME OF WAR ALL ENLISTMENTS IN THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD, AND IN THE RESERVE COMPONENTS THEREOF AS APPLICABLE, MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE INTEREST OF NATIONAL DEFENSE: PROVIDED, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT SHALL, UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED THEIR DETENTION.

SEC. 2. IN TIME OF WAR THAT PORTION OF SECTION 1422 OF THE REVISED STATUTES (18 STAT. 484; 34 U.S.C. 201) WHICH READS AS FOLLOWS: "ALL PERSONS WHO SHALL BE SO DETAINED BEYOND THEIR TERMS OF ENLISTMENT OR WHO SHALL, AFTER THE TERMINATION OF THEIR ENLISTMENT, VOLUNTARILY REENTER TO SERVE UNTIL THE RETURN TO AN ATLANTIC OR PACIFIC PORT OF THE VESSEL TO WHICH THEY BELONG, AND THEIR REGULAR DISCHARGE THEREFROM, SHALL RECEIVE FOR THE TIME DURING WHICH THEY ARE SO DETAINED, OR SHALL SO SERVE BEYOND THEIR ORIGINAL TERMS OF ENLISTMENT, AN ADDITION TO ONE-FOURTH OF THEIR FORMER PAY: ," SHALL BE SUSPENDED.

ALNAV 155-1941, DATED DECEMBER 15, 1941, PROVIDES:

ENLISTMENTS OF MEN IN REGULAR NAVY, MARINE CORPS, AND COAST GUARD WHO DO NOT VOLUNTARILY EXTEND OR REENLIST AND ALL ENLISTMENTS OF MEN IN RESERVE COMPONENTS THEREOF, ARE HEREBY EXTENDED IN ACCORDANCE WITH ACT APPROVED DECEMBER 13, 1941.

OBVIOUSLY, TO DISCHARGE AN ENLISTED MAN WHO HAD BEEN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT WOULD TERMINATE HIS PERMANENT STATUS CONTRARY TO THE PLAIN TERMS OF THE LAW. THE LAW CONTEMPLATES THAT HE WILL CONTINUE IN THE PERMANENT STATUS OCCUPIED WHEN TEMPORARILY WARRANTED OR COMMISSIONED AND A DISCHARGE AND REENLISTMENT WHILE A TEMPORARY OFFICER FOR THE SOLE PURPOSE OF ATTEMPTING TO CREATE A RIGHT TO ALLOWANCES, WHEN THE STATUTE SPECIFICALLY REQUIRES THAT THE PERMANENT STATUS SHALL NOT BE TERMINATED, IS WHOLLY WITHOUT AUTHORITY OF LAW. UNDER THE TERMS OF ALNAV 155 THE ONLY ELECTION THE MAN WOULD HAVE WOULD BE TO ACCEPT THE SUGGESTED PAYMENTS OR BE HELD TO SERVICE WITHOUT THE ADDITIONAL PAYMENTS. UNDER THE ACT OF DECEMBER 13, 1941, PUBLIC LAW 337, THE SECRETARY OF THE NAVY HAS DETERMINED THAT ALL ENLISTMENTS SHALL BE EXTENDED. HE CANNOT PROVIDE THAT IF THE MAN VOLUNTARILY EXTENDS HIS ENLISTMENT OR IMMEDIATELY REENLISTS HE SHALL RECEIVE THE ALLOWANCES PAYABLE ON DISCHARGE AND REENLISTMENT, BUT THAT IF HE DOES NOT VOLUNTARILY DO SO HE SHALL BE HELD TO SERVICE UNDER HIS CURRENT ENLISTMENT NOTWITHSTANDING.

QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE.

QUESTION (C) IS GOVERNED BY THE ANSWERS TO THE PRECEDING QUESTIONS.

AS TO QUESTION (D) THE SAVINGS CLAUSE IS ONLY AS TO THE PAY AND ALLOWANCES "TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED," THAT IS, THE PAY AND ALLOWANCES WHICH WOULD HAVE ACCRUED TO HIM IN HIS PERMANENT STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS. IT WOULD INCLUDE THE PAY AND ALLOWANCES TO WHICH ENTITLED IN HIS PERMANENT STATUS AT THE TIME OF TEMPORARY APPOINTMENT AND ADDITIONAL PAY FOR LENGTH OF SERVICE WHEN AND IF AN ADDITIONAL PERIOD OF SERVICE AUTHORIZED TO BE COUNTED IS COMPLETED. IT WOULD INCLUDE, ALSO, ANY AND ALL PAY, AND ALLOWANCES PAYABLE IN MONEY, WHICH WOULD HAVE ACCRUED BY VIRTUE OF HIS STATION AND DUTY IN THE STATUS OCCUPIED WHEN FIRST TEMPORARILY APPOINTED. IT DOES NOT INCLUDE PAY AND ALLOWANCES THAT MIGHT HAVE ACCRUED IN A PRIOR TEMPORARY STATUS CREATED UNDER THE ACT.

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