A-15575, NOVEMBER 9, 1926, 6 COMP. GEN. 322

A-15575: Nov 9, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO IS ENTITLED TO FOURTH PERIOD PAY BY REASON OF HAVING COMMISSIONED SERVICE EQUAL TO THAT OF A LIEUTENANT COMMANDER OF THE LINE OF THE NAVY DRAWING THE PAY OF THAT PERIOD. IS ENTITLED TO CONTINUE IN RECEIPT OF THAT PAY. WHO IS ENTITLED TO FOURTH PERIOD PAY BY REASON OF HAVING COMMISSIONED SERVICE EQUAL TO THAT OF A LIEUTENANT COMMANDER OF THE LINE OF THE NAVY DRAWING THE PAY OF THAT PERIOD IS NOT ENTITLED THERETO AFTER PROMOTION TO LIEUTENANT COMMANDER. THE SAVING CLAUSE IN THAT ACT IS NOT EFFECTIVE TO SAVE SUCH PAY TO HIM. WHERE AN OFFICER OF THE COAST GUARD IS PROMOTED FROM LIEUTENANT. IS LESS THAN THE PAY THERETOFORE PROPERLY RECEIVED AS A LIEUTENANT. THE PAY OF LIEUTENANT COMMANDER IS THE AUTHORIZED PAY FROM NOTICE OF APPOINTMENT AS SUCH AND NOT FROM THE DATE OF RANK STATED IN HIS COMMISSION.

A-15575, NOVEMBER 9, 1926, 6 COMP. GEN. 322

PAY - SAVING CLAUSE - OFFICERS OF THE COAST GUARD A LIEUTENANT, PERMANENT, COAST GUARD, WHO IS ENTITLED TO FOURTH PERIOD PAY BY REASON OF HAVING COMMISSIONED SERVICE EQUAL TO THAT OF A LIEUTENANT COMMANDER OF THE LINE OF THE NAVY DRAWING THE PAY OF THAT PERIOD, BY VIRTUE OF THE SAVING CLAUSE CONTAINED IN SECTION 8 OF THE ACT OF APRIL 21, 1924, 43 STAT. 106, IS ENTITLED TO CONTINUE IN RECEIPT OF THAT PAY, ALTHOUGH HOLDING THE GRADE OR RANK OF LIEUTENANT COMMANDER, TEMPORARY, UNDER THAT ACT. A LIEUTENANT, PERMANENT, COAST GUARD, WHO IS ENTITLED TO FOURTH PERIOD PAY BY REASON OF HAVING COMMISSIONED SERVICE EQUAL TO THAT OF A LIEUTENANT COMMANDER OF THE LINE OF THE NAVY DRAWING THE PAY OF THAT PERIOD IS NOT ENTITLED THERETO AFTER PROMOTION TO LIEUTENANT COMMANDER, PERMANENT, BECAUSE OF THE INCREASE IN COMMISSIONED PERSONNEL AUTHORIZED BY THE ACT OF JULY 3, 1926, 44 STAT. 815, AND THE SAVING CLAUSE IN THAT ACT IS NOT EFFECTIVE TO SAVE SUCH PAY TO HIM. WHERE AN OFFICER OF THE COAST GUARD IS PROMOTED FROM LIEUTENANT, PERMANENT, TO LIEUTENANT COMMANDER, PERMANENT, FROM A PRIOR DATE AND HIS PAY AS A LIEUTENANT COMMANDER, BY REASON OF LENGTH OF SERVICE, IS LESS THAN THE PAY THERETOFORE PROPERLY RECEIVED AS A LIEUTENANT, THE PAY OF LIEUTENANT COMMANDER IS THE AUTHORIZED PAY FROM NOTICE OF APPOINTMENT AS SUCH AND NOT FROM THE DATE OF RANK STATED IN HIS COMMISSION.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 9, 1926:

W. H. WEBB, PAY AND ALLOTMENT OFFICER, UNITED STATES COAST GUARD HEADQUARTERS, HAS REQUESTED DECISION WHETHER PAYMENT MAY BE MADE OF VOUCHER IN FAVOR OF LIEUT. COMMANDER C. T. HENLEY, JR., (ENGINEERING) (TEMPORARY), OF $89.72, REPRESENTING DIFFERENCE BETWEEN PAY OF THIRD PERIOD AND PAY OF FOURTH PERIOD JULY 3 TO 31, 1926. IT IS STATED THAT LIEUT. COMMANDER (T) HENLEY HAS SERVED CONTINUOUSLY IN THE COAST GUARD AS A COMMISSIONED OFFICER SINCE AUGUST 28, 1915, AND ON JUNE 30, 1926, HELD THE PERMANENT RANK OF LIEUTENANT (E) AND THE TEMPORARY RANK OF LIEUTENANT COMMANDER (E). THE PAY OF THE FOURTH PERIOD IS BY THE FIFTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 626, AUTHORIZED TO BE PAID TO * * * LIEUTENANTS AND LIEUTENANTS (JUNIOR GRADE) OF THE LINE AND ENGINEER CORPS OF THE COAST GUARD WHOSE TOTAL COMMISSIONED SERVICE EQUALS THAT OF LIEUTENANT COMMANDERS OF THE LINE OF THE NAVY DRAWING THE PAY OF THIS PERIOD.

THE COMMISSIONED SERVICE OF LIEUT. COMMANDER HENLEY ON JULY 3, 1926, WAS 10 YEARS, 10 MONTHS, AND 5 DAYS, AND THERE IS CITED THE CASE OF LIEUT. COMMANDER H. M. MULLINIX, UNITED STATES NAVY, WHO WAS APPOINTED MIDSHIPMAN IN THE NAVY JULY 3, 1912, COMMISSIONED ENSIGN JUNE 3, 1916, PROMOTED TO LIEUTENANT COMMANDER JULY 1, 1926, AND WHO WAS ENTITLED TO PAY OF THE FOURTH PERIOD FROM AND AFTER JULY 3, 1926, AS A LIEUTENANT COMMANDER OF OVER 14 YEARS' SERVICE AND AFTER A COMMISSIONED SERVICE OF 10 YEARS AND 1 MONTH.

THE QUOTED PROVISION OF THE ACT OF JUNE 10, 1922, IS APPLICABLE TO LIEUTENANTS AND LIEUTENANTS (JUNIOR GRADE) OF THE COAST GUARD, WHILE THE PAYEE OF THE VOUCHER IS A LIEUTENANT COMMANDER (T); THE CLAIM IS UNDER THE ACT OF APRIL 21, 1924, 43 STAT. 105, 106, AUTHORIZING THE TEMPORARY APPOINTMENT OF OFFICERS OF THE COAST GUARD IN HIGHER GRADES, AND WHICH PROVIDES:

SEC. 3. * * * NOTWITHSTANDING SUCH TEMPORARY PROMOTION, ANY SUCH OFFICER SHALL CONTINUE TO HOLD HIS PERMANENT COMMISSION AND SHALL BE ADVANCED IN LINEAL RANK, PROMOTED, AND RETIRED IN THE SAME MANNER AS THOUGH THIS ACT HAD NOT BECOME LAW.

SEC. 8. NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE GRADE, RANK, PAY, ALLOWANCES, OR BENEFITS THAT ANY PERSON IN THE COAST GUARD WOULD HAVE BEEN ENTITLED TO IF THIS ACT HAD NOT BECOME LAW.

HAD THAT ACT NOT BECOME LAW LIEUT. COMMANDER (T) HENLEY WOULD NOT HAVE BEEN APPOINTED TO THIS TEMPORARY GRADE. HE WOULD HAVE BEEN WITHIN THE PROVISIONS QUOTED FROM THE ACT OF JUNE 10, 1922, AND WOULD HAVE BEEN ENTITLED TO THE PAY OF THE FOURTH PERIOD FROM AND AFTER JULY 3, 1926. IS STATED, HOWEVER, UNDER THE TERMS OF THE ACT OF JULY 3, 1926, 44 STAT. 815,"TO READJUST THE COMMISSIONED PERSONNEL OF THE COAST GUARD" THAT LIEUT. COMMANDER (T) HENLEY IS ENTITLED TO PROMOTION TO THE PERMANENT RANK OF LIEUTENANT COMMANDER UPON PASSING THE REQUIRED EXAMINATION, THAT THE EXAMINATION WILL BE HELD ABOUT THE MIDDLE OF OCTOBER, 1926, AND THE PROMOTION UNDER THE LAW WILL BE EFFECTIVE FROM AND AFTER JULY 1, 1926. UNTIL HE HAS PASSED THAT EXAMINATION AND IS PROMOTED, HE IS ENTITLED TO THE PAY ATTACHED TO HIS PERMANENT RANK OF LIEUTENANT IN THE COAST GUARD AND HIS SUBSEQUENT PROMOTION IF NOT ENTITLING HIM TO THE PAY OF LIEUTENANT OF THE SAME COMMISSIONED SERVICE AS A LIEUTENANT COMMANDER OF THE LINE OF THE NAVY DRAWING THE PAY OF THE FOURTH PERIOD WOULD NOT DEPRIVE HIM OF THE PAY ACCRUING AS SUCH LIEUTENANT UNTIL HIS PROMOTION TO LIEUTENANT COMMANDER, PERMANENT, IS AN ACCOMPLISHED FACT.

IT IS SUGGESTED THAT LIEUT. COMMANDER HENLEY AFTER HIS PERMANENT PROMOTION WILL BE ENTITLED TO RETAIN THE HIGHER PAY UNDER THE SAVING CLAUSE CONTAINED IN SECTION 13 OF THE ACT OF JULY 3, 1926, WHICH PROVIDES:

THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REDUCE THE RANK, PAY, OR ALLOWANCES OF ANY COMMISSIONED OFFICER OF THE COAST GUARD AS NOW PROVIDED BY LAW.

NO QUESTION AS TO THE PAY OF LIEUT. COMMANDER HENLEY, PERMANENT, WAS BEFORE THE DISBURSING OFFICER AND HE IS NOT ENTITLED TO A DECISION THEREON AT THIS TIME. HOWEVER, IT MAY BE STATED, TO AVOID MISUNDERSTANDING, THAT THE DIFFERENCE IN THE PHRASEOLOGY OF THE SAVING CLAUSES IN THE ACTS OF APRIL 21, 1924, AND JULY 3, 1926, IS APPARENT. THE LATTER ACT CREATES NEW OR ADDITIONAL OFFICES IN THE PERMANENT COAST GUARD. OFFICERS PROMOTED TO FILL THOSE VACANCIES ARE ENTITLED ONLY TO THE PAY PROVIDED BY LAW FOR THE OFFICES TO WHICH THEY ARE PROMOTED. IT IS IMMATERIAL WHETHER THE OFFICE TO WHICH PROMOTED WAS ONE EXISTING BEFORE THE ACT OF JULY 3, 1926, OR UNDER THAT ACT, AND WHETHER THE PROMOTION RESULTED FROM THE INCREASED OFFICES THEREIN PROVIDED FOR OR WAS MADE IN DUE COURSE OF SENIORITY INDEPENDENTLY OF THAT ACT. IT IS NOT BY CONSTRUCTION OF THE ACT THAT HIS RANK OR PAY IS CHANGED. HIS RANK AND PAY ARE CHANGED BY HIS PROMOTION AND THE SAVING CLAUSE WAS NOT DESIGNED TO CHANGE THE PAY SCALE OF OFFICERS OF THE COAST GUARD AS PROVIDED IN PRIOR LAWS BECAUSE OF THE INCREASED OFFICES CREATED THEREIN BY THE ACT OF JULY 3, 1926.