A-4307, AUGUST 29, 1924, 4 COMP. GEN. 237

A-4307, AUGUST 29, 1924, 4 COMP. GEN. 237

NAVY PAY - WARRANT OFFICERS APPOINTED ENSIGN SUBSEQUENT TO JUNE 30, 1922 A WARRANT OFFICER OF THE NAVY APPOINTED AN ENSIGN SUBSEQUENT TO JUNE 30, 1922, IS NOT AN ,OFFICER IN THE SERVICE ON JUNE 30, 1922," WITHIN CONTEMPLATION OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS THAT PROVISION RELATED ONLY TO OFFICERS HOLDING "COMMISSIONS" IN THE PERMANENT SERVICE ON THAT DATE, AND IN CONSEQUENCE HE MAY NOT COUNT "ALL SERVICE WHICH IS NOW (JUNE 10, 1922) COUNTED IN COMPUTING LONGEVITY PAY.' UPON HIS ACCEPTANCE OF APPOINTMENT AS ENSIGN THE OFFICER FALLS WITHIN THE CLASS OF "OFFICERS APPOINTED ON AND AFTER JULY 1, 1922," FOR WHICH SECTION 1 OF THE ACT OF JUNE 10, 1922, AUTHORIZES IN HIS CASE ONLY THE COUNTING OF "ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT.'

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 29, 1924:

THERE IS BEFORE THIS OFFICE THE CLAIM OF ENSIGN GEORGE W. ALLEN, UNITED STATES NAVY, FOR DIFFERENCE BETWEEN $208.33 PER MONTH, BASE PAY OF THE SECOND PERIOD PLUS 25 PERCENT, UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND $131.25 PER MONTH, BASE PAY OF THE FIRST PERIOD PLUS 5 PERCENT, UNDER SAID ACT, FOR THE PERIOD MAY 5 TO 31, 1924.

THE REPORT OF CLAIMANT'S SERVICE BY THE BUREAU OF NAVIGATION SHOWS THAT HE ENLISTED IN THE NAVY OCTOBER 28, 1908; DISCHARGED OCTOBER 27, 1912; REENLISTED JANUARY 27, 1913; DISCHARGED JANUARY 17, 1917; REENLISTED MARCH 20, 1917; ACCEPTED APPOINTMENT AS GUNNER (TEMPORARY) SEPTEMBER 29, 1917; ACCEPTED APPOINTMENT AS ENSIGN (TEMPORARY) JANUARY 20, 1918; APPOINTED LIEUTENANT (J.G.) (TEMPORARY) TO RANK FROM JULY 1, 1918, AND LIEUTENANT (TEMPORARY) TO RANK FROM JULY 1, 1919; ACCEPTED APPOINTMENT AS GUNNER (PERMANENT) DECEMBER 29, 1921, AND ON MAY 27, 1924, ACCEPTED COMMISSION AS ENSIGN TO RANK FROM FEBRUARY 9, 1924.

THE ACT OF MARCH 3, 1901, 31 STAT. 1129, PROVIDED:

WHENEVER, IN VIEW OF THE VACANCIES IN THE GRADE OF ENSIGN ON JULY THIRTIETH OF ANY YEAR UNFILLED BY GRADUATES OF THE NAVAL ACADEMY, THE SECRETARY OF THE NAVY SHALL SO RECOMMEND, THE PRESIDENT MAY APPOINT TO THAT GRADE, AS OF JULY THIRTIETH, FROM AMONG THE BOATSWAINS, GUNNERS, OR WARRANT MACHINISTS, NOT EXCEEDING SIX IN ANY ONE CALENDAR YEAR. NO PERSON SHALL BE SO APPOINTED WHO IS OVER THIRTY-FIVE YEARS OF AGE; WHO HAS SERVED LESS THAN SIX YEARS AS A WARRANT OFFICER; WHO IS NOT RECOMMENDED BY A COMMANDING OFFICER UNDER WHOM HE HAS SERVED; NOR UNTIL HE SHALL HAVE PASSED SUCH COMPETITIVE EXAMINATION AS MAY BE PRESCRIBED BY THE NAVY DEPARTMENT.

THIS PROVISION OF LAW WAS IN EFFECT AMENDED BY THE FOLLOWING PROVISION OF THE ACT OF MARCH 3, 1903, 32 STAT. 1197:

HEREAFTER IN EACH CALENDAR YEAR THERE MAY, UNDER THE RESTRICTIONS IMPOSED BY EXISTING LAW, BE APPOINTED FROM THE BOATSWAINS, GUNNERS, AND WARRANT MACHINISTS OF THE NAVY TWELVE ENSIGNS.

THESE TWO PROVISIONS WERE FURTHER AMENDED BY THE FOLLOWING PROVISION OF THE ACT OF APRIL 27, 1904, 33 STAT. 346:

THAT SUBJECT TO THE RESTRICTIONS IMPOSED BY EXISTING LAW, BOATSWAINS, GUNNERS, AND WARRANT MACHINISTS SHALL BE ELIGIBLE FOR APPOINTMENT TO THE GRADE OF ENSIGN AFTER FOUR YEARS' SERVICE AS WARRANT OFFICERS. * * *

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625-627, PROVIDES:

THAT, BEGINNING JULY 1, 1922, FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS * * * OF THE NAVY BELOW THE GRADE OF REAR ADMIRAL * * * PAY PERIODS ARE PRESCRIBED, AND THE BASE PAY FOR EACH IS FIXED AS FOLLOWS:

THE FIRST PERIOD, $1,500; THE SECOND PERIOD, $2,000; * * *.

THE PAY OF THE SECOND PERIOD SHALL BE PAID TO * * * ENSIGNS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED FIVE YEARS' SERVICE.

THE PAY OF THE FIRST PERIOD SHALL BE PAID TO ALL OTHER OFFICERS WHOSE PAY IS PROVIDED FOR IN THIS SECTION.

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS: * * *.

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY, * * *.

THESE PROVISIONS OF SECTION 1 TREAT OF COMMISSIONED OFFICERS. SECTIONS 9 AND 10 OF THE ACT TREAT OF PAY OF WARRANT OFFICERS, INCLUDING THE INCREASES FOR LENGTH OF SERVICE. ON JUNE 30, 1922, CLAIMANT WAS A WARRANT OFFICER, AND THE PROVISION OF SECTION 1 RELATIVE TO "OFFICERS IN THE SERVICE ON JUNE 30, 1922," HAD NO APPLICATION TO HIM. 6 COMP. DEC. 496. UPON BEING APPOINTED A COMMISSIONED OFFICER OF THE PERMANENT NAVY HE CAME UNDER THE PROVISIONS OF SECTION 1, AND WITHIN THE MEANING OF THAT SECTION WAS AN OFFICER "APPOINTED ON AND AFTER JULY 1, 1922.' AS SUCH HE WAS ENTITLED IN COMPUTING HIS PAY UNDER SECTION 1 TO COUNT ONLY SUCH "ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT" AS HE MAY HAVE HAD. THE RECORD FURNISHED BY THE BUREAU OF NAVIGATION SHOWS OVER THREE BUT LESS THAN FIVE YEARS OF SUCH SERVICE.

CLAIMANT ACCORDINGLY HAS NOT "COMPLETED FIVE YEARS' SERVICE" TO ENTITLE HIM TO SECOND PERIOD BASE PAY AND SO FALLS WITHIN THE PROVISION FOR BASE PAY OF THE FIRST PERIOD, VIZ: $1,500 PER ANNUM, TO WHICH ATTACHES 5 PERCENT INCREASE, A TOTAL OF $1,575 PER ANNUM OR $131.25 PER MONTH.

HE CONTENDS, HOWEVER, THAT HE IS PROTECTED FROM A REDUCTION IN PAY BY THE FOLLOWING PROVISION OF SECTION 16 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632:

THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER ON THE ACTIVE LIST BELOW THE PAY TO WHICH HE IS ENTITLED BY REASON OF HIS GRADE AND LENGTH OF SERVICE ON JUNE 30, 1922. * * *

THE ACT OF JUNE 10, 1922, CONTAINS NO PROVISION RELATIVE TO PROMOTION OR ADVANCEMENT OF OFFICERS IN GRADE OR RANK, HENCE CLAIMANT'S APPOINTMENT DID NOT ARISE FROM ANY PROVISION CONTAINED IN THAT ACT AND THE SAVING CLAUSE HAS NO APPLICATION TO A WARRANT OFFICER APPOINTED BY SELECTION TO A COMMISSIONED GRADE SUBSEQUENT TO JUNE 30, 1922. THE CLAIM WILL ACCORDINGLY BE DISALLOWED.