A-10889, DECEMBER 10, 1925, 5 COMP. GEN. 419

A-10889: Dec 10, 1925

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WHO ARE COMMISSIONED IN THE NAVAL RESERVE. ARE ENTITLED TO PAY ONLY AS COMMISSIONED OFFICERS OF THE FLEET NAVAL RESERVE. WITH WHICH YOU INCLOSE AND OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE UNDER THE DEPARTMENT'S CONSTRUCTION OF A PROVISION OF THE ACT OF AUGUST 29. ARE ENTITLED UNDER SECTION 1 OF THE ACT OF FEBRUARY 28. IN ACCORDANCE WITH HIS SUGGESTION YOU REQUEST DECISION AS TO THE PAY OF SUCH TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE WHO ARE GIVEN COMMISSIONS IN THE NEW FLEET NAVAL RESERVE. WAS TO BE COMPOSED OF FORMER OFFICERS OF THE NAVAL SERVICE WHO HAD LEFT THE SERVICE UNDER HONORABLE CONDITIONS. TRANSFERRED MEMBERS WERE TO BE "GOVERNED BY THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY.

A-10889, DECEMBER 10, 1925, 5 COMP. GEN. 419

FLEET NAVAL RESERVE - TRANSFERRED MEMBERS COMMISSIONED MEMBERS OF THE FLEET NAVAL RESERVE, TRANSFERRED THERETO AFTER 16 YEARS OR 20 OR MORE YEARS OF NAVAL SERVICE, WHO ARE COMMISSIONED IN THE NAVAL RESERVE, CREATED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, ARE ENTITLED TO PAY ONLY AS COMMISSIONED OFFICERS OF THE FLEET NAVAL RESERVE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, DECEMBER 10, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 11, 1925, WITH WHICH YOU INCLOSE AND OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE WHO WERE UNDER THE DEPARTMENT'S CONSTRUCTION OF A PROVISION OF THE ACT OF AUGUST 29, 1916, 39 STAT. 590, GIVEN COMMISSIONS IN THE FLEET NAVAL RESERVE, ARE ENTITLED UNDER SECTION 1 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE CREATED BY THAT ACT JULY 1, 1925, BOTH AS TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE AND AS COMMISSIONED OFFICERS THEREIN; AND FURTHER THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE MAY BE APPOINTED OFFICERS OF THE FLEET NAVAL RESERVE ON AND AFTER JULY 1, 1925. IN ACCORDANCE WITH HIS SUGGESTION YOU REQUEST DECISION AS TO THE PAY OF SUCH TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE WHO ARE GIVEN COMMISSIONS IN THE NEW FLEET NAVAL RESERVE.

THE FLEET NAVAL RESERVE CREATED BY THE ACT OF AUGUST 29, 1916, WAS TO BE COMPOSED OF FORMER OFFICERS OF THE NAVAL SERVICE WHO HAD LEFT THE SERVICE UNDER HONORABLE CONDITIONS; CITIZENS OF THE UNITED STATES WHO HAD BEEN OR THEREAFTER WOULD BE ENTITLED TO HONORABLE DISCHARGE FROM THE NAVAL SERVICE AFTER NOT LESS THAN ONE FOUR-YEAR ENLISTMENT OR FROM AN ENLISTMENT FOR MINORITY, ENROLLED THEREIN; AND IN ADDITION TO THE ENROLLMENTS, OF ENLISTED MEN OF THE NAVAL SERVICE TRANSFERRED THERETO AFTER 20 OR MORE YEARS' NAVAL SERVICE; OR ENLISTED MEN WHO AT EXPIRATION OF AN ENLISTMENT MIGHT BE THEN ENTITLED TO HONORABLE DISCHARGE AFTER 16 YEARS' NAVAL SERVICE. TRANSFERRED MEMBERS WERE TO BE "GOVERNED BY THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY," WERE NOT TO BE DISCHARGED WITHOUT THEIR CONSENT EXCEPT BY SENTENCE OF A COURT-MARTIAL, WERE REQUIRED TO KEEP ON HAND SUCH PART OF THE UNIFORM AS MIGHT BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AND UPON THEIR OWN REQUEST, UPON COMPLETING 30 YEARS' SERVICE, INCLUDING NAVAL AND NAVAL RESERVE SERVICE, MIGHT BE PLACED ON THE RETIRED LIST OF THE NAVY WITH THE RETAINER PAY THEY WERE THEN ENTITLED TO RECEIVE AND THE ALLOWANCES PAYABLE TO RETIRED ENLISTED MEN. THAT ACT CONTAINED THE FOLLOWING PROVISION:

MEMBERS OF THE FLEET NAVAL RESERVE WHO HAVE ESTABLISHED THEIR QUALIFICATIONS BY EXAMINATION TO THE SATISFACTION OF THE SECRETARY OF THE NAVY MAY BE GIVEN WARRANTS OR COMMISSIONS IN THE FLEET NAVAL RESERVE IN THE GRADES OF BOATSWAIN, GUNNER, CARPENTER, MACHINIST, PHARMACIST, PAY CLERK, ENSIGN FOR DECK OR ENGINEERING DUTIES, OR IN THE LOWEST GRADES OF THE STAFF CORPS: PROVIDED FURTHER, THAT THOSE SO WARRANTED OR COMMISSIONED SHALL NOT BE DEPRIVED OF THE RETAINER PAY, ALLOWANCES, OR GRATUITIES TO WHICH THEY WOULD BE OTHERWISE ENTITLED.

SECTION 3 OF THE ACT OF FEBRUARY 28, 1925, SPECIFICALLY REPEALED ALL PROVISIONS OF LAW RELATING TO THE NAVAL RESERVE FORCE CONTAINED IN THE ACT OF AUGUST 29, 1916, AND THE NEW LAW CONTAINS NO PROVISION SIMILAR TO THAT QUOTED ABOVE. THE FOLLOWING PROVISIONS OF THE ACT OF FEBRUARY 28, 1925, ARE PROPER FOR CONSIDERATION:

SEC. 4. * * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA: AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY OR ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT.

SEC. 6. * * * THAT ENLISTED MEN HERETOFORE OR HEREAFTER TRANSFERRED TO THE FLEET NAVAL RESERVE FROM THE REGULAR NAVY IN ACCORDANCE WITH LAW SHALL AT ALL TIMES BE GOVERNED BY THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY AND SHALL NOT BE DISCHARGED FROM THE NAVAL RESERVE WITHOUT THEIR CONSENT EXCEPT BY SENTENCE OF A COURT-MARTIAL ORIN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THIS ACT: * * *

SEC. 24. ALL ENLISTED MEN WHO HERETOFORE HAVE BEEN TRANSFERRED FROM THE REGULAR NAVY TO THE FLEET NAVAL RESERVE ESTABLISHED BY THE ACT OF AUGUST 29, 1916, AND WHO BY SECTION 1 OF THIS ACT ARE TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED, SHALL RECEIVE THE RATE OF PAY THEY WERE LEGALLY ENTITLED TO RECEIVE IN THE NAVAL RESERVE FORCE: PROVIDED, THAT SUCH ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE HEREIN CREATED SHALL, UPON COMPLETING THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE OF THE NAVAL RESERVE FORCE AND IN THE FLEET NAVAL RESERVE HEREIN CREATED, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE, PLUS THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE.

SECTION 26 PROVIDES FOR THE TRANSFER OF MEN SERVING IN THE REGULAR NAVY ON THE DATE OF THE APPROVAL OF THE ACT, OR WHO REENTER THE REGULAR NAVY AS THEREIN PROVIDED, TO THE FLEET NAVAL RESERVE AFTER COMPLETION OF SERVICE IN THE REGULAR NAVY REQUIRED, AND SECTION 27 PROVIDES:

THAT IN TIME OF PEACE ALL ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE IN ACCORDANCE WITH THE PRECEDING SECTION MAY BE REQUIRED TO PERFORM NOT MORE THAN TWO MONTHS' ACTIVE DUTY IN EACH FOUR-YEAR PERIOD AND SHALL BE EXAMINED PHYSICALLY AT LEAST ONCE DURING EACH FOUR YEAR PERIOD, AND IF UPON SUCH EXAMINATION THEY ARE FOUND NOT PHYSICALLY QUALIFIED THEY SHALL BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY ARE THEN RECEIVING, AND UPON THE COMPLETION OF THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE, TIME IN THE FLEET NAVAL RESERVE AND TIME ON THE RETIRED LIST OF THE NAVY, THEY SHALL RECEIVE THE ALLOWANCES TO WHICH ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE: PROVIDED, THAT ALL ENLISTED MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE WHO ARE NOT TRANSFERRED TO THE RETIRED LIST PURSUANT TO THE FOREGOING PROVISIONS OF THIS SECTION SHALL, UPON COMPLETION OF THIRTY YEARS' SERVICE, INCLUDING NAVAL SERVICE AND TIME IN THE FLEET NAVAL RESERVE,BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH THE PAY THEY WERE THEN RECEIVING, AND THE ALLOWANCES TO WHICH ENLISTED MEN OF THE SAME RATING ARE ENTITLED ON RETIREMENT AFTER THIRTY YEARS' NAVAL SERVICE.

IT WILL THUS BE SEEN THAT TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE ALTHOUGH MEMBERS OF THE RESERVE, HAVE A STATUS SOMEWHAT DIFFERENT FROM OTHER MEMBERS OF THE RESERVE. THEIR SITUATION APPROXIMATES THAT OF A MEMBER OF THE REGULAR NAVY IN THAT THEY ARE SUBJECT TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY AT ALL TIMES, INCLUDING COURT- MARTIAL JURISDICTION. OTHER MEMBERS OF THE NAVAL RESERVE ARE NOT SO CIRCUMSTANCED GENERALLY--- SECTION 10 PROVIDES AS TO THEM:

OFFICERS AND MEN OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY, DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, DRILL, OR INSTRUCTION, OR DURING SUCH TIME AS THEY MAY BY LAW BE REQUIRED TO PERFORM ACTIVE DUTY IN ACCORDANCE WITH THEIR OBLIGATIONS, OR WHILE WEARING A UNIFORM PRESCRIBED FOR THE NAVAL RESERVE, SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY: * * *

IF A DUAL STATUS SUCH AS IS PRESENTED BY A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE WHO IS ALSO A WARRANT OR COMMISSIONED OFFICER IN THE NAVAL RESERVE IS AUTHORIZED BY THE LAW, IT SHOULD BE AND IN THE PAST HAS BEEN CLEARLY EXPRESSED BY THE LANGUAGE OF THE STATUTE. THE INCOMPATIBILITY OF THE DUAL STATUS IS SELF-EVIDENT, A MAN CAN NOT AT ONE AND THE SAME TIME RENDER SERVICE IN AN ENLISTED RATING AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE AND AS A WARRANT OR COMMISSIONED OFFICER OF THE NAVAL RESERVE. IT WAS SAID BY THE SUPREME COURT IN BADEAU V. UNITED STATES, 130 U.S. 439, 451:

* * * IT HAS BEEN DECIDED THAT A PERSON HOLDING TWO OFFICES OR EMPLOYMENTS UNDER THE GOVERNMENT, WHEN THE SERVICES RENDERED OR WHICH MIGHT BE REQUIRED UNDER THEM, WERE NOT INCOMPATIBLE, IS NOT PRECLUDED FROM RECEIVING THE SALARY OR COMPENSATION OF BOTH. CONVERSE V. UNITED STATES, 21 HOW. 463; UNITED STATES V. BRINDLE, 110 U.S. 688. BUT THE TREASURY DEPARTMENT DID NOT APPARENTLY REGARD THIS CASE AS FALLING WITHIN THAT EXCEPTION, AND WE AGREE WITH THAT CONCLUSION. UNITED STATES V. SHOEMAKER, 7 WALL. 338; STANSBURY V. UNITED STATES, 8 WALL. 33; HOYT V. UNITED STATES, 10 HOW. 109, 141.

UNDER THE ACT OF 1875 RETIRED OFFICERS SITUATED AS THEREIN DESCRIBED, ARE SO FAR TAKEN OUT OF THE OPERATION OF THE ACT OF 1868 AS NOT TO BE HELD, IF THEY ACCEPT OR HOLD DIPLOMATIC OR CONSULAR APPOINTMENT, TO HAVE RESIGNED THEIR PLACES IN THE ARMY; BUT THIS DOES NOT CHANGE THE GENERAL POLICY OF THE LAW, AND DOES NOT ENTITLE THEM TO PAY AS ARMY OFFICERS DURING THE PERIOD OF TIME WHEN THEY ARE ABSENT FROM THEIR COUNTRY IN THE DISCHARGE OF CONTINUOUS OFFICIAL DUTIES INCONSISTENT WITH SUBJECTION TO THE RULES AND ARTICLES OF WAR, AND THE OTHER INCIDENTS OF MILITARY SERVICE. NOTWITHSTANDING SEC. 1223, SUCH OFFICERS, WHEN IN THE DIPLOMATIC OR CONSULAR SERVICE, MAY STILL BE BORNE ON THE RETIRED LIST, BUT CAN NOT RECEIVE DOUBLE COMPENSATION.

IT WILL BE OBSERVED THAT INCOMPATIBILITY BETWEEN TWO OFFICES OR EMPLOYMENTS IS ESTABLISHED, IN THE LANGUAGE OF THE COURT,"WHEN THE SERVICES RENDERED OR WHICH MIGHT BE REQUIRED UNDER THEM" CONFLICT, OR, AS STATED BY THE COURT OF CLAIMS IN CROSTHWAITE V. UNITED STATES, 30 CT.CLS. 300, 308:

TWO OFFICES ARE INCOMPATIBLE WHEN A PERFORMANCE OF THE DUTIES OF ONE WILL PREVENT OR CONFLICT WITH A PERFORMANCE OF THE DUTIES OF THE OTHER; AS IN WEBSTER'S CASE (28 C.CLS.R. 25), WHERE THE OFFICES WERE THOSE OF ENGINEER IN THE NAVY AND PAYMASTER; AND IN WINCHELL'S CASE (IB. 30), WHERE THE OFFICES WERE THAT OF ENGINEER IN THE NAVY AND THAT OF DRAFTSMAN IN THE HYDROGRAPHIC OFFICE; OR WHEN THE HOLDING OF TWO OFFICES IS CONTRARY TO THE POLICY OF THE LAW, AS IN BADEAU V. THE UNITED STATES (130 U.S.R. 439), WHERE THE ONE OFFICE WAS THAT OF A RETIRED ARMY OFFICER AND THE OTHER ONE IN THE CONSULAR SERVICE. * * *

IT IS I THINK CLEAR THAT NO PROVISION OF THE NAVAL RESERVE LAW IN TERMS OR BY REASONABLE IMPLICATION AUTHORIZES THE DUAL STATUS PROPOSED. THE ONLY SUGGESTION THAT THE LAW CONTEMPLATES SUCH AN ANOMALY IN TIME OF PEACE IS THAT SECTION 1 OF THE ACT TRANSFERS ALL OFFICERS AND MEN WHO ON THE DATE OF APPROVAL OF THE ACT ARE MEMBERS OF THE FLEET NAVAL RESERVE TO THE FLEET NAVAL RESERVE CREATED BY THAT ACT; THAT CERTAIN OF THE TRANSFERRED MEMBERS WERE ALSO COMMISSIONED IN THE OLD FLEET NAVAL RESERVE UNDER THE PROVISION QUOTED FROM THE ACT OF AUGUST 29, 1916; THAT AS THEY ARE SO TRANSFERRED THEY HAVE A STATUS AS OFFICERS AND ALSO AS MEMBERS OF THE FLEET NAVAL RESERVE AND, PRESUMABLY, AS THIS IS AUTHORIZED FOR SUCH TRANSFERRED MEMBERS OTHER SIMILAR APPOINTMENTS MAY BE MADE SUBSEQUENT TO JULY 1, 1925.

SO FAR AS PAY IS CONCERNED THIS REASONING CAN NOT BE ADOPTED BY THIS OFFICE. IF SUCH APPOINTMENTS ARE MADE EITHER OF TRANSFERRED MEMBERS WHO ON JUNE 30, 1925, HELD COMMISSIONS IN THE OLD FLEET NAVAL RESERVE, OR, WHO ARE APPOINTED TO SUCH COMMISSIONED GRADES SUBSEQUENT TO JULY 1, 1925, AND THEY ACCEPT SUCH COMMISSIONS IT WILL BE NECESSARY TO APPLY TO SUCH CASES THE RULE APPLICABLE TO INCOMPATIBLE OFFICES, SUCCINCTLY STATED IN PARAGRAPHS 728-730, VOL. 2, DIGEST OF DECISIONS OF THE SECOND COMPTROLLER AS FOLLOWS:

728. WHEN AN INCUMBENT OF AN OFFICE ACCEPTS A POSITION INCOMPATIBLE WITH THE ONE HELD BY HIM, THE ACCEPTANCE OF THE NEW POSITION IS AN ABANDONMENT OR RESIGNATION OF THE OFFICE THERETOFORE HELD.--- JANUARY 19, 1881, VOL. 43, PP. 514-519. (U.)

729. THE OFFICE BECOMES VACANT UPON THE ACCEPTANCE OF THE INCOMPATIBLE POSITION. 2 HILL. 93; 2 TERM REPORTS, 87; 9 GILL AND JOHNSON, 365; ANGEL AND AMES ON CORPORATIONS, PAR. 434; 1 DILLON ON CORP., PAR. 164. IBID.

730. WHERE BOTH OFFICES ARE CONFERRED BY THE SAME APPOINTING POWER, THE APPOINTMENT TO AN INCOMPATIBLE OFFICE HAS THE EFFECT TO REMOVE FROM THE FORMER POSITION. REX. V. PATEMAN, 2 TERM REP., 777. IBID. ..END :