A-12246, JANUARY 12, 1926, 5 COMP. GEN. 473

A-12246: Jan 12, 1926

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AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY UNDER CERTAIN CONDITIONS TO OFFICERS AND ENLISTED MEN OF THE COAST GUARD IS NOT APPLICABLE TO A TEMPORARY WARRANT OFFICER OF THE COAST GUARD WHO WAS APPOINTED FROM CIVIL LIFE UNDER THE PROVISIONS OF THE ACT OF APRIL 21. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER THEREWITH TRANSMITTED. IS NOT APPLICABLE TO OFFICERS AND ENLISTED MEN OF ANY FORCES OF THE COAST GUARD OTHER THAN THOSE OF THE REGULAR COAST GUARD. THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY. IT IS STATED THAT WILLIAMS WAS APPOINTED FROM CIVIL LIFE AS A TEMPORARY MACHINIST AUGUST 1. YOU STATE: IT IS SUBMITTED THAT RAYMOND P. WAS NEITHER HOLDING "A TEMPORARY APPOINTMENT" NOR SERVING IN THE RANK OF "MACHINIST.

A-12246, JANUARY 12, 1926, 5 COMP. GEN. 473

GRATUITIES, SIX MONTHS' DEATH - TEMPORARY OFFICERS OF THE COAST GUARD THE ACT OF JUNE 4, 1920, 41 STAT. 824, AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY UNDER CERTAIN CONDITIONS TO OFFICERS AND ENLISTED MEN OF THE COAST GUARD IS NOT APPLICABLE TO A TEMPORARY WARRANT OFFICER OF THE COAST GUARD WHO WAS APPOINTED FROM CIVIL LIFE UNDER THE PROVISIONS OF THE ACT OF APRIL 21, 1924, 43 STAT. 105.

COMPTROLLER GENERAL MCCARL TO W. H. WEBB, PAY AND ALLOTMENT OFFICER, UNITED STATES COAST GUARD, JANUARY 12, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 8, 1925, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER THEREWITH TRANSMITTED, STATED IN FAVOR OF MRS. LAURA M. WILLIAMS, WIFE OF THE LATE RAYMOND PELL WILLIAMS, MACHINIST, TEMPORARY, UNITED STATES COAST GUARD, WHO DIED IN THE SERVICE SEPTEMBER 26, 1925, FROM CAUSES NOT DUE TO HIS OWN MISCONDUCT, FOR AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY THE DECEASED, UNDER THE ACT OF JUNE 4, 1920, 41 STAT. 824. THE DOUBT ARISES BY REASON OF THE FACT THAT THE ACT OF JUNE 4, 1920, IS NOT APPLICABLE TO OFFICERS AND ENLISTED MEN OF ANY FORCES OF THE COAST GUARD OTHER THAN THOSE OF THE REGULAR COAST GUARD. THE ACT IN THIS RESPECT PROVIDES:

* * * THAT NOTHING IN THIS SECTION OR IN OTHER EXISTING LEGISLATION SHALL BE CONSTRUED AS MAKING THE PROVISIONS OF THIS SECTION APPLICABLE TO OFFICERS, ENLISTED MEN, OR NURSES OF ANY FORCES OF THE NAVY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR NAVY AND MARINE CORPS, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT OR PROBATIONARY APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE OFFICERS AND ENLISTED MEN OF THE COAST GUARD, AND THE SECRETARY OF THE TREASURY WILL CAUSE PAYMENT TO BE MADE ACCORDINGLY.

IT HAS BEEN HELD THAT WHENEVER BY AUTHORITY OF STATUTE THE COAST GUARD HAS OFFICERS AND ENLISTED MEN OF FORCES OTHER THAN THOSE OF THE REGULAR COAST GUARD, THE LIMITATION OF THE STATUTE MUST CONTROL IN THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AS WHEN SIMILAR CONDITIONS EXIST IN THE NAVY OR MARINE CORPS. 5 COMP. GEN. 33. IT IS STATED THAT WILLIAMS WAS APPOINTED FROM CIVIL LIFE AS A TEMPORARY MACHINIST AUGUST 1, 1924, AND HE ACCEPTED THE APPOINTMENT AUGUST 6, 1924. YOU STATE:

IT IS SUBMITTED THAT RAYMOND P. WILLIAMS, AT THE TIME OF HIS DEATH, WAS NEITHER HOLDING "A TEMPORARY APPOINTMENT" NOR SERVING IN THE RANK OF "MACHINIST, TEMPORARY, U.S. COAST GUARD," BUT, ON THE CONTRARY, WAS SERVING IN THE RANK OF "TEMPORARY MACHINIST, U.S. COAST GUARD," A PERMANENT RANK; THEREFORE, HIS STATUS WAS NOT SUCH AS TO DEPRIVE HIS WIDOW OF THE DEATH GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920. * * *

WILLIAMS WAS APPOINTED IN THE COAST GUARD UNDER THE ACT OF APRIL 21, 1924, 43 STAT. 105, ENTITLED,"AN ACT TO AUTHORIZE A TEMPORARY INCREASE OF THE COAST GUARD FOR LAW ENFORCEMENT.' BY SECTION 2 AUTHORITY WAS GIVEN TO APPOINT TEMPORARY OFFICERS OF THE COAST GUARD TO CONTINUE UNTIL THE PRESIDENT OTHERWISE DIRECTS OR THE CONGRESS OTHERWISE PROVIDES, AND IT WAS PROVIDED THAT THE NAMES OF ALL PERSONS APPOINTED COMMISSIONED OFFICERS UNDER THAT SECTION SHOULD BE PLACED ON A SPECIAL LIST OF TEMPORARY OFFICERS "AS DISTINGUISHED FROM THE LIST OF PERMANENT OFFICERS, OF THE COAST GUARD.'

SECTION 6 OF THE ACT PROVIDES:

(A) UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO APPOINT TEMPORARY WARRANT OFFICERS, AND TO MAKE SPECIAL TEMPORARY ENLISTMENTS, IN THE COAST GUARD. NO PERSON SHALL BE ENTITLED TO RETIREMENT BECAUSE OF HIS TEMPORARY APPOINTMENT OR ENLISTMENT UNDER THIS SECTION.

(B)ANY ENLISTED MAN IN THE PERMANENT COAST GUARD MAY BE APPOINTED AS A TEMPORARY WARRANT OFFICER. NOTWITHSTANDING SUCH TEMPORARY APPOINTMENT, ANY SUCH ENLISTED MAN SHALL BE ENTITLED TO RETIREMENT IN THE SAME MANNER AS THOUGH HE HAD CONTINUED TO HOLD HIS PERMANENT RATING, AND UPON THE TERMINATION OF SUCH TEMPORARY APPOINTMENT SHALL BE ENTITLED TO REVERT TO SUCH RATING. SERVICE UNDER ANY SUCH TEMPORARY APPOINTMENT SHALL BE INCLUDED IN DETERMINING LENGTH OF SERVICE AS AN ENLISTED MAN.

THE LAW AUTHORIZED THE APPOINTMENT OF TEMPORARY WARRANT OFFICERS AND BY THE SECOND PARAGRAPH OF THE SECTION AUTHORIZING SUCH APPOINTMENTS DISTINGUISHED BETWEEN SUCH APPOINTMENTS AND "THE PERMANENT COAST GUARD.' IT IS APPARENT THAT SUCH TEMPORARY WARRANT OFFICERS ARE NOT A PART OF THE REGULAR OR PERMANENT COAST GUARD. THEIR SITUATION IS NOT THE SAME AS AN ENLISTED MAN SERVING IN A "SPECIAL TEMPORARY ENLISTMENT," AS TO WHICH SEE 5 COMP. GEN. 33.

THE ACT OF JUNE 4, 1920, EXTENDS A FORM OF INSURANCE TO PERSONS IN THE REGULAR ESTABLISHMENTS AND BY CLEAR LANGUAGE DENIES ITS BENEFITS TO PERSONS WHO ARE SERVING WITH SUCH REGULAR ESTABLISHMENTS BECAUSE OF A TEMPORARY OR EMERGENCY CONDITION AND WHO WILL RETURN TO THEIR CIVIL OCCUPATIONS WHEN THE TEMPORARY CONDITION REQUIRING THEIR EMPLOYMENT DISAPPEARS. THE ACT OF APRIL 21, 1924, INDICATES BY ITS TITLE AND ITS TERMS THAT IT IS DESIGNED TO PROVIDE A TEMPORARY INCREASE OF PERSONNEL TO BE CONTINUED ONLY SO LONG AS CONDITIONS REQUIRE, AND THAT THE INCREASED PERSONNEL THEREIN PROVIDED FOR SHALL NOT HAVE ALL OF THE BENEFITS PROVIDED FOR PERSONS HAVING A PERMANENT STATUS IN THE REGULAR ESTABLISHMENT.

IT IS NOT POSSIBLE TO FOLLOW THE REASONING BY WHICH AN APPOINTMENT TERMED TEMPORARY AND ISSUED UNDER A LAW AUTHORIZING TEMPORARY APPOINTMENTS CONFERS A PERMANENT STATUS IN THE PERMANENT OR REGULAR COAST GUARD. MAY BE A "PERMANENT" RANK IN THE SENSE THAT THE APPOINTEE MAY NOT BE GIVEN ANY OTHER OR DIFFERENT APPOINTMENT BUT IT DOES NOT CONSTITUTE HIM A PART OF THE REGULAR COAST GUARD WHICH IS CONSTITUTED INDEPENDENTLY OF THE ACT OF APRIL 21, 1924.