B-26040, DECEMBER 8, 1942, 22 COMP. GEN. 516

B-26040, DECEMBER 8, 1942, 22 COMP. GEN. 516

SAVINGS DEPOSITS OF MARINE CORPS ENLISTED MEN TEMPORARILY PROMOTED WHILE A MARINE CORPS ENLISTED MAN TEMPORARILY APPOINTED AS A WARRANT OR COMMISSIONED OFFICER PURSUANT TO THE ACT OF JULY 24, 1941, RETAINS HIS PERMANENT STATUS AS AN ENLISTED MAN, HE MAY BE CONSIDERED AS "DISCHARGED" FROM SERVICE AS AN ENLISTED MAN WITHIN THE CONTEMPLATION OF THE ACT OF FEBRUARY 9, 1889, AUTHORIZING REPAYMENT OF DEPOSITS OF ENLISTED MEN UPON DISCHARGE, SO AS TO ENTITLE HIM TO REPAYMENT OF DEPOSITS, TOGETHER WITH ACCRUED INTEREST THEREON, TO HIS CREDIT ON THE DATE OF THE TEMPORARY APPOINTMENT. 21 COMP. GEN. 991, AND 22 ID. 11, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 8, 1942:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1942, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION A REQUEST FROM MARINE GUNNER (T) CHARLES DAVIS, U.S. MARINE CORPS, FOR REPAYMENT OF DEPOSITS, PLUS ACCRUED INTEREST THEREON, MADE BY HIM WHILE SERVING AS AN ENLISTED MAN. SPECIFICALLY, MARINE GUNNER DAVIS IN A COMMUNICATION ADDRESSED TO THE PAYMASTER, U.S. MARINE CORPS, REQUESTS THAT "ALL DEPOSITS AND INTEREST DUE ME BE PAID AT THE EARLIEST PRACTICABLE DATE, IN ORDER THAT I MAY USE SUCH SUM TO PURCHASE WAR BONDS.'

THE RECORDS SHOW THAT MARINE GUNNER DAVIS, WHILE SERVING IN THE ENLISTED GRADE OF SERGEANT MAJOR, WAS APPOINTED TO HIS PRESENT TEMPORARY RANK ON MAY 11, 1942, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 (55 STAT. 603), AND THAT, WHILE SERVING AS AN ENLISTED MAN, HE MADE A CASH DEPOSIT OF $6,000 IN THE ACCOUNT OF MAJOR R. G. HUNT, APM, U.S.M.C., FOR THE MONTH OF JUNE 1940.

THE ACT APPROVED JUNE 29, 1906 (34 STAT. 579; 34 U.S.C. 975), PROVIDES THAT ENLISTED MEN OF THE MARINE CORPS SHALL BE ENTITLED TO DEPOSIT THEIR SAVINGS WITH THE UNITED STATES, THROUGH ANY PAYMASTER, "IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS IS NOW OR MAY HEREAFTER BE PROVIDED FOR THE ENLISTED MEN OF THE NAVY.' ENLISTED MEN OF THE NAVY ARE AUTHORIZED TO DEPOSIT THEIR SAVINGS WITH THE PAYMASTER UPON WHOSE BOOKS THEIR ACCOUNTS ARE BORNE BY THE ACT OF FEBRUARY 9, 1889 (25 STAT. 657; 34 U.S.C. 933), WHICH PROVIDES, IN PART, THAT MONEY SO DEPOSITED "SHALL NOT BE PERMITTED TO BE PAID UNTIL FINAL PAYMENT ON DISCHARGE" AND THAT,"ON HIS FINAL DISCHARGE," THE ENLISTED MAN CONCERNED SHALL BE PAID INTEREST AT THE RATE OF FOUR PERCENTUM PER ANNUM ON THE SUMS DEPOSITED AS THEREIN PROVIDED.

THE ACT OF MAY 22, 1917 (40 STAT. 84), AUTHORIZED TEMPORARY INCREASES IN NAVAL PERSONNEL AND SECTION 7 OF THAT ACT PROVIDED THAT "THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES OF ALL ENLISTED MEN OF THE NAVY AND MARINE CORPS NOW AUTHORIZED BY LAW SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF TEMPORARY COMMISSIONS OR WARRANTS HEREUNDER.' THAT ACT, HOWEVER, DID NOT PROVIDE THAT THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF ENLISTED MEN TEMPORARILY APPOINTED IN ACCORDANCE THEREWITH SHOULD NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS.

WITH RESPECT TO ENLISTED MEN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE CITED ACT OF MAY 22, 1917, IT WAS HELD IN 24 COMP. DEC. 179, AS FOLLOWS:

"AN ENLISTED MAN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT OF MAY 22, 1917, DURING HIS CONTINUANCE IN THE TEMPORARY POSITION IS DISCHARGED FROM SERVICE AS AN ENLISTED MAN AND CEASES TO BECOME ENTITLED TO PAY AND ALLOWANCES AS AN ENLISTED MAN. THIS DISCHARGE FROM SERVICE AND CESSATION OF PAY AND ALLOWANCES NECESSITATES A PAYMENT TO HIM OF ALL PAY AND ALLOWANCES DUE TO HIM AS AN ENLISTED MAN TO DATE HIS TEMPORARY APPOINTMENT BECOMES OPERATIVE. SUCH A PAYMENT IS, I THINK, THE EQUIVALENT OF A "FINAL PAYMENT ON DISCHARGE" FOR THE PURPOSE OF EFFECTUATING THE INTENT OF THE STATUTE IN ITS APPLICATION TO CURRENT CONDITIONS.'

IT WAS FURTHER HELD IN THIS DECISION, RELATIVE TO SAVINGS DEPOSITS, THAT "ENLISTED MEN OF THE NAVY AND MARINE CORPS TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT OF MAY 22, 1917, MAY LEGALLY BE PAID THE DEPOSITS WHICH THEY HAVE AS ENLISTED MEN AT TIME OF BEING TEMPORARILY WARRANTED OR COMMISSIONED.'

SECTION 7 (A) OF THE ACT OF JULY 24, 1941 (55 STAT. 604), CONTAINS A PROVISION SIMILAR TO THAT CONTAINED IN THE CITED ACT OF MAY 22, 1917, TO THE EFFECT THAT THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES OF THE PERSONNEL IN QUESTION "SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER.' HOWEVER, SAID SECTION 7 (A) EXPRESSLY PROVIDES THAT "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.'

IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF MAY 7, 1942, B 24219, IT WAS HELD:

"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. * * *

IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JULY 9, 1942, B 26040, THERE WAS CONSIDERED THE QUESTION WHETHER THE APPROPRIATION "INTEREST ON DEPOSITS OF MEN" WAS LEGALLY AVAILABLE FOR PAYMENT OF INTEREST ON DEPOSITS MADE BY ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS AS WARRANT OR COMMISSIONED OFFICERS UNDER CONDITIONS AS THEREIN STATED. IT WAS HELD:

"THE PROVISIONS OF SECTION 7 OF THE ACT OF MAY 22, 1917, 40 STAT. 86,WERE PRACTICALLY IDENTICAL TO THE CORRESPONDING PROVISIONS OF THE ACT OF JULY 24, 1941, 54 STAT. 603, INSOFAR AS DEPOSITS UNDER THE ACT OF FEBRUARY 9, 1889, ARE CONCERNED. SUCH TEMPORARY OFFICERS APPOINTED UNDER THE ACT OF JULY 24, 1941, ARE NOT ENLISTED MEN WITHIN THE MEANING OF THE ACT OF FEBRUARY 9, 1889, AND THE PAYMENT OF INTEREST ON SUCH DEPOSITS UNDER THE APPROPRIATION PROVIDING FOR "INTEREST ON DEPOSITS OF MEN" SUBSEQUENT TO THEIR TEMPORARY APPOINTMENT IS NOT AUTHORIZED. SEE, IN THIS CONNECTION, NOTES TO SECTION 1409 OF THE REVISED STATUTES AT PAGE 524-525 OF LAWS RELATING TO THE NAVY, ANNOTATED.'

THE ABOVE QUOTED RULINGS FROM THE RESPECTIVE DECISIONS OF THE ASSISTANT COMPTROLLER GENERAL OF MAY 7, 1942, AND JULY 9, 1942, WITH RESPECT TO THE STATUS OF ENLISTED MEN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT OF JULY 24, 1941, APPEAR TO BE IN CONFLICT. IT IS NOT CLEAR WHETHER THE DECISION OF JULY 9, 1942, WAS INTENDED AS AN AFFIRMATION OF 24 COMP. DEC. 179, SO AS TO CONSIDER THE TEMPORARY APPOINTMENTS OF ENLISTED MEN TO WARRANT AND COMMISSIONED GRADES UNDER THE ACT OF JULY 24, 1941, AS TANTAMOUNT TO A DISCHARGE FROM THE SERVICE AS AN ENLISTED MAN AND ENTITLED TO PAYMENT OF ALL PAY AND ALLOWANCES DUE AS ENLISTED MEN TO THE EFFECTIVE DATE OF TEMPORARY APPOINTMENTS, INCLUDING REPAYMENT OF SAVINGS DEPOSITS AND ACCRUED INTEREST THEREON AS ,FINAL PAYMENT ON DISCHARGE" WITHIN THE MEANING OF THE QUOTED WORDS AS CONTAINED IN THE SAVINGS DEPOSIT STATUTE OF FEBRUARY 9, 1889. IT IS POSSIBLE THAT THE RULE PRESCRIBED IN THE DECISION OF JULY 9, 1942, IS INTENDED TO DENY TO ENLISTED MEN, DURING PERIODS WHILE THEY ARE TEMPORARILY SERVING IN THE GRADES OF WARRANT OR COMMISSIONED OFFICERS, THE RIGHT TO ACCRUED INTEREST ON DEPOSITS MADE AS ENLISTED MEN PRIOR TO SUCH TEMPORARY APPOINTMENTS.

IN VIEW OF THE FOREGOING, AND SINCE IT DOES NOT APPEAR TO BE WITHIN THE INTENT OF SECTION 2 OF THE ACT OF FEBRUARY 9, 1889, SUPRA, TO DENY TO ENLISTED MEN, WHILE HOLDING TEMPORARY APPOINTMENTS AS WARRANT OR COMMISSIONED OFFICERS AND DURING WHICH THEIR PERMANENT STATUS AS ENLISTED MEN MAY NOT BE TERMINATED UNDER THE PLAIN TERMS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, INTEREST ON DEPOSITS MADE PRIOR TO THE DATE THEY WERE APPOINTED TO SUCH TEMPORARY WARRANT OR COMMISSIONED GRADES, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) ARE ENLISTED MEN TEMPORARILY APPOINTED TO WARRANT OR COMMISSIONED GRADES UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 (55 STAT. 603), DISCHARGED FROM SERVICE AS ENLISTED MEN WITHIN THE MEANING OF THE ACT OF FEBRUARY 9, 1889 (25 STAT. 657), SO AS TO ENTITLE THEM TO REPAYMENT OF DEPOSITS AND INTEREST ACCRUED THEREON TO THE DATE OF SUCH TEMPORARY APPOINTMENTS?

(B) IF THE ANSWER TO QUERY (A) IS IN THE NEGATIVE, DOES THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JULY 9, 1942, B-26040, DENY TO ENLISTED MEN, WHO HAVE MADE SAVINGS DEPOSITS PRIOR TO THEIR TEMPORARY APPOINTMENT TO WARRANT OR COMMISSIONED GRADES, THE RIGHT TO INTEREST ACCRUING ON SUCH DEPOSITS DURING THE PERIOD THEY ARE SERVING IN SUCH TEMPORARY WARRANT OR COMMISSIONED GRADES?

IN THE DECISION OF JULY 9, 1942, 22 COMP. GEN. 11, THERE WAS CONSIDERED THE REQUEST OF THE SECRETARY OF THE NAVY FOR A DECISION ON QUESTIONS THEREIN PRESENTED "WITH PARTICULAR REFERENCE AS TO WHETHER OR NOT THE APPROPRIATION "INTEREST ON DEPOSITS BY MEN" IS CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF INTEREST ON DEPOSITS MADE BY ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS AS WARRANT OR COMMISSIONED OFFICERS UNDER THE CONDITIONS HEREIN STATED.' THE CONCLUSION WAS REACHED THAT SUCH TEMPORARY OFFICERS APPOINTED UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, ARE NOT ENLISTED MEN WITHIN THE MEANING OF THE ACT OF FEBRUARY 9, 1889, 25 STAT. 657, AND THAT THE PAYMENT OF INTEREST ON SUCH DEPOSITS UNDER THE APPROPRIATION PROVIDING FOR "INTEREST ON DEPOSITS OF MEN" MADE SUBSEQUENT TO THEIR TEMPORARY APPOINTMENT AS OFFICERS IS NOT AUTHORIZED. THE CONCLUSION FOLLOWED THAT REACHED IN THE DECISION OF SEPTEMBER 22, 1917, 24 COMP. DEC. 179, BASED UPON SIMILAR PROVISIONS CONTAINED IN THE ACT OF MAY 22, 1917, 40 STAT. 84. YOU NOW SUGGEST THAT WHILE THE TWO STATUTES ARE SIMILAR, THE 1917 ACT "DID NOT PROVIDE THAT THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF ENLISTED MEN TEMPORARILY APPOINTED IN ACCORDANCE THEREWITH SHOULD NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS" WHEREAS THE 1941 ACT EXPRESSLY SO PROVIDES. THE EFFECT OF THE LANGUAGE QUOTED BY YOU FROM SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AND, ALSO, THE HOLDING IN DECISION B-24219, DATED MAY 7, 1942, 21 COMP. GEN. 991--- CITED IN YOUR LETTER--- INVOLVING REENLISTMENT ALLOWANCE AND TRAVEL ALLOWANCE, WERE CAREFULLY CONSIDERED IN ARRIVING AT THE CONCLUSION IN THE DECISION OF JULY 9, 1942, AND SUCH CONCLUSION IS NOT REGARDED AS IN CONFLICT WITH THE PRINCIPLES OF THE SAID DECISION OF MAY 7, 1942, WHICH TURNED PRIMARILY ON THE PROVISO IN THE SAME SECTION, 7 (A/---

THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO 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.

THE BROAD PURPOSE OF THE ACT OF JULY 24, 1941, WAS TO INCREASE TEMPORARILY THE OFFICER PERSONNEL OF THE NAVY BY APPOINTMENTS OR PROMOTIONS AS THEREIN PROVIDED, ONE OF THE RESERVOIRS FOR APPOINTMENTS TO TEMPORARY WARRANT AND COMMISSIONED RANKS BEING THE PERMANENT ENLISTED FORCES. FOLLOWING SUCH AN APPOINTMENT, THE TEMPORARY OFFICER SERVES AS AN OFFICER, NOT AS AN ENLISTED MAN; ALL THE PRIVILEGES AND DUTIES OF THE TEMPORARY WARRANT OR COMMISSION ARE HIS; HE RECEIVES THE PAY AND ALLOWANCES OF AN OFFICER, WEARS THE UNIFORM, AND IS REQUIRED TO OBEY AND TO BE OBEYED IN ACCORDANCE WITH HIS TEMPORARY OFFICE OR RANK. HE IS AN OFFICER IN FACT AND THOUGH HIS "PERMANENT, PROBATIONARY, OR ACTING APPOINTMENT" IS NOT VACATED, IT REMAINS IN A DORMANT STATUS WITH THE POSSIBILITY OF NEVER BEING REVIVED. ON BEING APPOINTED AN OFFICER, HIS DUTY TO SERVE AS AN ENLISTED MAN AND HIS PAY AS AN ENLISTED MAN ARE TERMINATED INDEFINITELY; IF NOT PERMANENTLY. UNDER SUCH CONDITIONS HE PROPERLY MAY BE REGARDED AS DISCHARGED FROM SERVICE AS AN ENLISTED MAN WITHIN THE CONTEMPLATION OF THE ACT OF FEBRUARY 9, 1889, AUTHORIZING THE REPAYMENT OF DEPOSITS.

ACCORDINGLY, YOUR QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE AND, BEING SO ANSWERED, NO ANSWER TO QUESTION (B) APPEARS REQUIRED.