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B-98502, MAY 22, 1952, 31 COMP. GEN. 610

B-98502 May 22, 1952
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OFFICERS OF THE REGULAR NAVY AND MARINE CORPS WERE ENTITLED TO COUNT NAVAL AVIATION CADET SERVICE FOR LONGEVITY PAY PURPOSES AND. EVEN THOUGH SAID PROVISO WAS DELETED BY SECTION 15 (F) OF THE NAVAL AVIATION CADET ACT OF 1942. WAS APPOINTED AN AVIATION CADET IN THE U.S. HE WAS FURNISHED A STATEMENT OF SERVICE FOR PAY PURPOSES WHICH INCLUDED THE AVIATION CADET SERVICE. A CORRECTED STATEMENT OF SERVICE FOR PAY PURPOSES WAS FURNISHED LIEUTENANT COLONEL KNOTT. FROM WHICH THE AVIATION CADET SERVICE WAS OMITTED. MARINE CORPS AS TO WHY HIS AVIATION CADET SERVICE WAS NO LONGER BEING COUNTED FOR PAY PURPOSES AND WAS INFORMED THAT OFFICERS OF THE REGULAR MARINE CORPS. AS A RESULT OF HIS INQUIRIES RELATIVE TO SERVICE FOR PAY PURPOSES IT WAS DETERMINED THAT HE HAD BEEN OVERPAID $466.94 BY REASON OF INCLUSION OF AVIATION CADET SERVICE AND THE PROPER DISBURSING OFFICER WAS AUTHORIZED TO EFFECT ADJUSTMENT.

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B-98502, MAY 22, 1952, 31 COMP. GEN. 610

PAY - SERVICE CREDITS - CREDIT FOR AVIATION CADET SERVICE UNDER THE PROVISO OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 WHICH AMENDED THE ACT OF APRIL 15, 1935, CREATING THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND THE MARINE CORPS RESERVE, OFFICERS OF THE REGULAR NAVY AND MARINE CORPS WERE ENTITLED TO COUNT NAVAL AVIATION CADET SERVICE FOR LONGEVITY PAY PURPOSES AND, EVEN THOUGH SAID PROVISO WAS DELETED BY SECTION 15 (F) OF THE NAVAL AVIATION CADET ACT OF 1942, SECTION 14 THEREOF AUTHORIZES SUCH OFFICERS TO CONTINUE TO COUNT THEIR AVIATION CADET SERVICE FOR LONGEVITY PAY PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 22, 1952:

LIEUTENANT COLONEL GORDON H. KNOTT (05368), U.S. MARINE CORPS, WAS APPOINTED AN AVIATION CADET IN THE U.S. NAVAL RESERVE ON JULY 19, 1935, IN WHICH CAPACITY HE SERVED UNTIL JULY 7, 1936. HE THEREAFTER ACCEPTED APPOINTMENT IN THE REGULAR MARINE CORPS AS A SECOND LIEUTENANT ON JULY 8, 1936. IT APPEARS FROM A LETTER DATED JULY 28, 1950, FROM HEADQUARTERS UNITED STATES MARINE CORPS TO THE CLAIMS DIVISION OF THIS OFFICE THAT UNDER DATE OF JANUARY 18, 1943, HE WAS FURNISHED A STATEMENT OF SERVICE FOR PAY PURPOSES WHICH INCLUDED THE AVIATION CADET SERVICE. ON OCTOBER 20, 1947, A CORRECTED STATEMENT OF SERVICE FOR PAY PURPOSES WAS FURNISHED LIEUTENANT COLONEL KNOTT, FROM WHICH THE AVIATION CADET SERVICE WAS OMITTED. ON OCTOBER 15, 1949, HE REQUESTED INFORMATION FROM HEADQUARTERS, MARINE CORPS AS TO WHY HIS AVIATION CADET SERVICE WAS NO LONGER BEING COUNTED FOR PAY PURPOSES AND WAS INFORMED THAT OFFICERS OF THE REGULAR MARINE CORPS, OTHER THAN THOSE COMMISSIONED PURSUANT TO THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864, MAY NOT COUNT SERVICE (ACTIVE OR INACTIVE) PERFORMED IN THE GRADE OF AVIATION CADET PRIOR TO AUGUST 4, 1942, FOR LONGEVITY PAY PURPOSES.

AS A RESULT OF HIS INQUIRIES RELATIVE TO SERVICE FOR PAY PURPOSES IT WAS DETERMINED THAT HE HAD BEEN OVERPAID $466.94 BY REASON OF INCLUSION OF AVIATION CADET SERVICE AND THE PROPER DISBURSING OFFICER WAS AUTHORIZED TO EFFECT ADJUSTMENT, BUT LIEUTENANT COLONEL KNOTT REFUSED TO CONSENT TO CHECK AGE AND REQUESTED THAT THE MATTER BE REFERRED TO THE COMPTROLLER GENERAL. UNDER DATE OF APRIL 12, 1950, THE QUARTERMASTER GENERAL OF THE MARINE CORPS ADVISED THE GENERAL ACCOUNTING OFFICE OF THE APPARENT ERRONEOUS PAYMENTS AND THAT THE RECORDS OF THE QUARTERMASTER GENERAL DID NOT SHOW THAT OVERPAYMENT HAS BEEN SUSPENDED BY THIS OFFICE IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED.

IN VIEW OF THE ACT OF JULY 26, 1947, 61 STAT. 493, PUBLIC LAW 248, THE AUDIT DIVISION OF THIS OFFICE DID NOT ISSUE NOTICES OF EXCEPTION WITH RESPECT TO THE PAYMENTS INVOLVED BUT ON MAY 17, 1950, REQUESTED THE QUARTERMASTER GENERAL OF THE MARINE CORPS TO EFFECT COLLECTION OF THE ,OVERPAYMENT.' IN REPLY TO A DEMAND FOR REFUND, LIEUTENANT COLONEL KNOTT AGAIN, ON JUNE 3, 1950, REQUESTED THAT THE MATTER BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION. THEREUPON, ON JULY 28, 1950, THE MATTER WAS REFERRED TO THE CLAIMS DIVISION OF THIS OFFICE WITH THE REQUEST THAT A FORMAL DISALLOWANCE BE ISSUED SO THAT COLLECTION PROCEEDINGS MIGHT BE INSTITUTED UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1936, OR THAT INFORMATION BE FURNISHED THAT "REFUND IN THIS CASE NEED NOT BE MADE.'

THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE WAS CREATED BY THE ACT OF APRIL 15, 1935, 49 STAT. 156, WHICH PROVIDED, INTER ALIA, THAT AVIATION CADETS SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT INDICATES THAT SUCH GRADE WAS REGARDED BY THE NAVY DEPARTMENT, WHICH SPONSORED THE ACT, AS SIMILAR IN STATUS TO THAT OF MIDSHIPMAN IN THE NAVAL ACADEMY. IT WAS NOT UNTIL THE APPROVAL OF THE NAVAL AVIATION CADET ACT OF 1942 ON AUGUST 4, 1942, THAT THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE WAS CREATED AS A SPECIAL ENLISTED GRADE.

THE ACT OF APRIL 15, 1935, SUPRA, CREATING THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE, FIXED THE PAY, ALLOWANCES, AND EMOLUMENTS OF THAT GRADE, BUT MADE NO PROVISION FOR THE COUNTING OF SERVICE IN THAT GRADE FOR LONGEVITY PAY PURPOSES. SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1177, PRESCRIBING THE PAY TO WHICH MEMBERS OF THE NAVAL RESERVE, GENERALLY, SHALL BE ENTITLED, PROVIDED IN PERTINENT PART:

"* * * AVIATION CADETS SHALL RECEIVE THE PAY AND ALLOWANCES AND OTHER EMOLUMENTS PROVIDED FOR THEM BY THE ACT OF APRIL 15, 1935 (4 STAT. L. 157; U.S.C. SUPP. III, TITLE 34, CH. 15, SEC. 861A): PROVIDED, THAT FOR THE PURPOSES OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE, ACTIVE SERVICE IN THE GRADE OF AVIATION CADET SHALL BE CONSIDERED AS COMMISSIONED SERVICE. * * *.'

WHILE THE USUAL FUNCTION OF A PROVISO IS TO LIMIT OR MODIFY THE GENERAL LEGISLATIVE PROVISIONS TO WHICH IT IS ATTACHED, QUITE OBVIOUSLY THAT IS NOT THE FUNCTION OF THE FOREGOING PROVISO. IT DOES NOT LIMIT, RESTRICT, OR MODIFY PREVIOUS PROVISIONS. ON THE CONTRARY, IT ENLARGES THE BENEFITS GIVEN AVIATION CADETS IN THE ACT OF APRIL 15, 1935, SUPRA. IT PROVIDES THAT IN ADDITION TO SUCH BENEFITS THEY THEREAFTER SHALL BE ENTITLED TO COUNT THEIR AVIATION CADET SERVICE AS COMMISSIONED SERVICE FOR THE PURPOSES OF COMPUTING INCREASES IN PAY "OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE.' IT IS GENERAL LEGISLATION DEALING WITH THE SUBJECT IMMEDIATELY BEING CONSIDERED, THAT IS, THE PAY, ALLOWANCES, AND EMOLUMENTS OF AVIATION CADETS, AS DISTINGUISHED FROM OTHER NAVAL RESERVE PERSONNEL, AND THERE APPEARS TO BE NO REASON TO VIEW SUCH PROVISION ANY DIFFERENTLY THAN IT WOULD BE VIEWED IF IT WERE AN AMENDMENT OF THE BASIC ACT OF APRIL 15, 1935, SUPRA, OR IF IT HAD BEEN ORIGINALLY INCLUDED IN SUCH ACT. IT USES THE TERM "COMMISSIONED OFFICERS" WITHOUT RESTRICTION OR LIMITATION AS TO WHETHER SUCH OFFICERS ARE IN A REGULAR OR A RESERVE COMPONENT AND THUS INCLUDES OFFICERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS AS WELL AS OFFICERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE. IN THAT CONNECTION IT MAY BE NOTED THAT ELSEWHERE IN THE NAVAL RESERVE ACT OF 1938 REFERENCE CONSISTENTLY IS MADE TO OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE. NOTHING IN THE LEGISLATIVE HISTORY ESTABLISHES, OR EVEN SUGGESTS, THAT CONGRESS INTENDED TO RESTRICT THE BENEFITS OF THE SAID PROVISO OF SECTION 7 TO CASES INVOLVING FUTURE SERVICE AS RESERVE OFFICERS. NO LEGISLATIVE POLICY POINTS IN THAT DIRECTION. ON THE CONTRARY, STATUTES IN PARI MATERIA POINT THE OTHER WAY. THUS IT SEEMS CLEAR THAT SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 AUTHORIZED OFFICERS OF THE REGULAR MARINE CORPS TO COUNT AVIATION CADET SERVICE IN THE NAVAL RESERVE FOR LONGEVITY PAY PURPOSES.

SECTION 14 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 739, PROVIDES:

"* * * THAT AVIATION CADETS PREVIOUSLY APPOINTED BY THE SECRETARY OF THE NAVY, AS DISTINGUISHED FROM AVIATION CADETS ENLISTED UNDER THE PROVISIONS OF THIS ACT, SHALL CONTINUE TO SERVE UNDER SUCH APPOINTMENTS UNTIL COMMISSIONED OR DISCHARGED FROM THE NAVAL SERVICE, AND THE ACTIVE SERVICE OF SUCH AVIATION CADETS SHALL BE CONSIDERED AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSION OFFICERS ON ACCOUNT OF LENGTH OF SERVICE.'

SECTION 15 (F) OF SUCH ACT PROVIDES:

"SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1177) IS HEREBY AMENDED BY DELETING THEREFROM THE FIRST PROVISO THEREOF * * *.'

THE DELETED PROVISO IS THE ONE QUOTED ABOVE AND HERE UNDER DISCUSSION. IT THUS APPEARS THAT THE PROVISION IN SECTION 14 WAS INTENDED TO SUPERSEDE THE SAID PROVISO IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938. THE NAVAL AVIATION CADET ACT OF 1942 CREATED THE SPECIAL ENLISTED GRADE OF AVIATION CADET AND PROVIDED THAT THEREAFTER AVIATION CADETS SHALL BE ENLISTED RATHER THAN APPOINTED AS THERETOFORE. THERE WAS NO OCCASION, THEREFORE, TO CONTINUE ANY SPECIAL PROVISION FOR THE COUNTING OF AVIATION CADET SERVICE FOR LONGEVITY PAY PURPOSES SINCE SUCH SERVICE WOULD BE COUNTED UNDER GENERAL STATUTORY PROVISIONS AUTHORIZING THE COUNTING OF ENLISTED SERVICE FOR SUCH PURPOSES. BUT THE REPEAL OF THE ABOVE-QUOTED PROVISO IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 WOULD TAKE AWAY THE LONGEVITY RIGHTS THEREIN GIVEN TO AVIATION CADETS THERETOFORE APPOINTED (AND NOT ENLISTED). HENCE THE CONGRESS ENACTED THE PROVISION IN SECTION 14 OF THE NAVAL AVIATION CADET ACT OF 1942 THAT THE ACTIVE SERVICE OF "SUCH AVIATION CADETS" SHALL BE CONSIDERED AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY "OF COMMISSIONED OFFICERS" ON ACCOUNT OF LENGTH OF SERVICE. THE TERM "SUCH AVIATION CADETS" SEEMS CLEARLY TO REFER BACK TO THE ANTECEDENT SUBJECT,"AVIATION CADETS PREVIOUSLY APPOINTED BY THE SECRETARY OF THE NAVY" AT ANY TIME AND IS NOT LIMITED TO AVIATION CADETS THEN SERVING AS SUCH. CF. 22 COMP. GEN. 439, 445, ANSWER TO QUESTION (8).

IT FOLLOWS THAT LIEUTENANT COLONEL KNOTT WAS ENTITLED TO COUNT HIS AVIATION CADET SERVICE FOR LONGEVITY PAY PURPOSES AS A COMMISSIONED OFFICER IN THE REGULAR MARINE CORPS DURING THE PERIOD HERE INVOLVED. ACCORDINGLY NO ACTION HAS BEEN OR WILL BE TAKEN BY THIS OFFICE TO STATE A DEBT CHARGE AGAINST LIEUTENANT COLONEL KNOTT ON ACCOUNT OF THE CREDITING OF AVIATION CADET SERVICE FOR PAY PURPOSES OF SUCH PERIODS.

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