A-17885, AUGUST 24, 1927, 7 COMP. GEN. 137

A-17885: Aug 24, 1927

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UNDER EXISTING NAVY REGULATIONS AN OFFICER APPOINTED BY A REAR ADMIRAL OF THE NAVY AS HIS PERSONAL AID IS NOT ENTITLED TO ANY ADDITIONAL PAY FOR SERVING AS AID UNLESS AND UNTIL THE APPOINTMENT IS APPROVED BY THE DEPARTMENT. THE ADDITIONAL PAY NOT TO COMMENCE IN ANY CASE PRIOR TO THE DATE SUCH APPROVAL IS GIVEN THE APPOINTMENT OR PRIOR TO THE DATE THE OFFICER ACTUALLY ASSUMES HIS DUTIES AS AID WITH THE REAR ADMIRAL. OFFICERS OF THE NAVY ARE ENTITLED ON PROMOTION TO RECEIVE THE COMPENSATION OF THE HIGHER GRADES FROM A DATE ANTERIOR TO THE ACTUAL APPOINTMENTS AND ASSUMPTION OF THE DUTIES OF THE OFFICES TO WHICH PROMOTED THE OFFICES RESPECTIVELY HELD BY THE TWO OFFICERS CONCERNED WHEN THE SERVICES AS AID ARE RENDERED ARE FOR CONSIDERATION IN DETERMINING WHETHER ANY RIGHT TO ADDITIONAL PAY ACCRUES UNDER THE ACT OF MAY 13.

A-17885, AUGUST 24, 1927, 7 COMP. GEN. 137

PAY - AIDS TO REAR ADMIRALS OF THE NAVY A LIEUTENANT OF THE NAVY MAY BE PAID ADDITIONAL COMPENSATION AT $150 PER ANNUM UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, IF AND WHILE SERVING EXCLUSIVELY, UNDER A VALID APPOINTMENT, AS THE PERSONAL AND CONFIDENTIAL AID OF A REAR ADMIRAL, LOWER HALF, AT THE TIME COMMANDANT OF A NAVAL DISTRICT. UNDER EXISTING NAVY REGULATIONS AN OFFICER APPOINTED BY A REAR ADMIRAL OF THE NAVY AS HIS PERSONAL AID IS NOT ENTITLED TO ANY ADDITIONAL PAY FOR SERVING AS AID UNLESS AND UNTIL THE APPOINTMENT IS APPROVED BY THE DEPARTMENT; THE ADDITIONAL PAY NOT TO COMMENCE IN ANY CASE PRIOR TO THE DATE SUCH APPROVAL IS GIVEN THE APPOINTMENT OR PRIOR TO THE DATE THE OFFICER ACTUALLY ASSUMES HIS DUTIES AS AID WITH THE REAR ADMIRAL. ALTHOUGH, BY REASON OF THE ACT OF MARCH 4, 1913, 37 STAT. 892, OFFICERS OF THE NAVY ARE ENTITLED ON PROMOTION TO RECEIVE THE COMPENSATION OF THE HIGHER GRADES FROM A DATE ANTERIOR TO THE ACTUAL APPOINTMENTS AND ASSUMPTION OF THE DUTIES OF THE OFFICES TO WHICH PROMOTED THE OFFICES RESPECTIVELY HELD BY THE TWO OFFICERS CONCERNED WHEN THE SERVICES AS AID ARE RENDERED ARE FOR CONSIDERATION IN DETERMINING WHETHER ANY RIGHT TO ADDITIONAL PAY ACCRUES UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 24, 1927:

LIEUT. CHARLES D. KIRK (SC.), UNITED STATES NAVY, SETTLING THE DISBURSING ACCOUNT OF COMMANDER C. G. MAYO (SC.), UNITED STATES NAVY, APPLIED FEBRUARY 21, 1927, FOR REVIEW OF SETTLEMENTS WHEREIN CREDIT WAS DISALLOWED IN COMMANDER MAYO'S DISBURSING ACCOUNT FOR PAYMENTS OF ADDITIONAL COMPENSATION AT $150 PER ANNUM MADE TO LIEUT. (JUNIOR GRADE) AND LIEUT. R. H. HILLENKOETTER AS AID TO REAR ADMIRAL N. E. IRWIN FROM FEBRUARY 24, 1925, TO JULY 31, 1925, AND AS AID TO REAR ADMIRAL GEORGE C. DAY FROM AUGUST 29, 1925, TO OCTOBER 22, 1925, RESPECTIVELY.

CERTIFIED COPIES OF ORDERS AND REPORTS CLAIMED TO ESTABLISH THE VALIDITY OF THE PAYMENTS MADE HAVE BEEN SUBMITTED AS FOLLOWS:

6 DECEMBER, 1923 FROM: BUREAU OF NAVIGATION. TO: LIEUTENANT (J.G.) ROSCOE H. HILLENKOETTER, U.S.N., U.S.S. 0-2. VIA: COMMANDER, SUBMARINE DIVISION EIGHT. SUBJECT: CHANGE OF DUTY. INCLOSURE: N.NAV. SLIP "B," TO BE FILLED OUT AND RETURNED IMMEDIATELY UPON REPORTING FOR NEW DUTY.

1. IN ACCORDANCE WITH THE FOLLOWING INSTRUCTIONS YOU WILL REGARD YOURSELF DETACHED FROM YOUR PRESENT STATION, AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; WILL PROCEED AND REPORT FOR DUTY AS INDICATED:

TO THE COMMANDANT FIFTEENTH NAVAL DISTRICT FOR DUTY.

2. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY BEYOND THE SEAS IS REQUIRED BY THE PUBLIC INTERESTS.

(S) R. H. LEIGH, ACTING.

(CONFIRMING DESPATCH OF 5 DECEMBER, 1923.)

24 FEBRUARY, 1925. FROM:COMMANDANT. TO: LIEUTENANT (J.G.) R. H. HILLENKOETTER, U.S.N. SUBJECT: CHANGE OF DUTY.

REFERENCE: (A) BU.NAV. DISPATCH ORDERS 6405-1200 OF 5 DECEMBER, 1923. (B) COMMANDANT'S THIRD INDORSEMENT 16.112-DG OF 11 DECEMBER, 1923.

1. REFERENCE (A) DIRECTED YOU TO REPORT TO THE COMMANDANT FIFTEENTH NAVAL DISTRICT FOR DUTY. YOU ARE HEREBY RELIEVED FROM THE DUTIES ASSIGNED YOU AT DISTRICT HEADQUARTERS BY REFERENCE (B) AND WILL REPORT TO THE COMMANDANT FIFTEENTH NAVAL DISTRICT FOR DUTY AS AID TO THE COMMANDANT AND FOR SUCH OTHER DUTIES AS HE MAY ASSIGN.

N. E. IRWIN,

REAR ADMIRAL, U.S. NAVY, COMMANDANT.

CC-BU.NAV: DSO.

* * * 8 JUNE, 1926. FROM: COMMANDER DESTROYER SQUADRONS, SCOUTING FLEET. TO: BUREAU OF NAVIGATION.

2. THE SERVICES PERFORMED BY LIEUTENANT R. H. HILLENKOETTER AS AID TO THE COMMANDANT 15TH NAVAL DISTRICT DURING THE PERIOD MENTIONED IN THE BASIC LETTER WERE OF A PERSONAL AND CONFIDENTIAL NATURE.

N. E. IRWIN,

REAR ADMIRAL, * * *

29 AUGUST, 1925. FROM: COMMANDANT. TO: LIEUTENANT R. H. HILLENKOETTER, U.S.N. SUBJECT: CHANGE OF DUTY. REFERENCE: (A) COMDT. 15TH N.D. LETTER 16.112-DG OF 24 FEBRUARY, 1925.

1. UPON DETACHMENT OF REAR ADMIRAL N. E. IRWIN, U.S. NAVY, YOU ARE HEREBY DETACHED FROM DUTY ASSIGNED YOU IN REFERENCE (A) AND WILL REPORT TO COMMANDANT FIFTEENTH NAVAL DISTRICT FOR DUTY AS AID TO COMMANDANT.

(S)G. C. DAY,

(CAPTAIN, U.S. NAVY).

CC-BU.NAV: DSO.

8 JULY, 1926. FROM: BUREAU OF NAVIGATION. TO: LIEUTENANT ROSCOE H. HILLENKOETTER, U.S.N., AID ON STAFF,COMMANDER DESTROYER SQUADRONS, SCOUTING FLEET. VIA: COMMANDER DESTROYER SQUADRONS, SCOUTING FLEET. SUBJECT: APPROVAL OF ORDERS. REFERENCE: YOUR FIRST INDORSEMENT OF 8 JUNE, 1926, FILE L16-4 (4865).

1. THE ACTION OF THE COMMANDANT FIFTEENTH NAVAL DISTRICT, UNDER DATE OF 24 FEBRUARY, 1925, AND ALSO UNDER DATE OF 29 AUGUST, 1925, IN ASSIGNING YOU TO DUTY AS AID TO THE COMMANDANT, MEETS WITH THE APPROVAL OF THIS BUREAU.

(S) W. R. SHOEMAKER.

THE PAYMENTS OF ADDITIONAL PAY AT $150 PER ANNUM WERE DOUBTLESS REGARDED BY COMMANDER MAYO TO BE AUTHORIZED BY THE ACT OF MAY 13, 1908, 35 STAT. 128, WHICH PROVIDES:

* * * AIDS TO REAR ADMIRALS EMBRACED IN THE NINE LOWER NUMBERS OF THAT GRADE SHALL EACH RECEIVE ONE HUNDRED AND FIFTY DOLLARS ADDITIONAL PER ANNUM, AND AIDS TO ALL OTHER REAR ADMIRALS, TWO HUNDRED DOLLARS ADDITIONAL PER ANNUM EACH. * * *

THE QUALIFICATIONS ESSENTIAL TO ENTITLE AN AID TO A REAR ADMIRAL IN THE NAVY, EITHER OF THE UPPER OR LOWER HALF, TO ADDITIONAL PAY UNDER THIS ACT HAVE BEEN VERY DEFINITELY FIXED UNDER SECTIONS 1098 AND 1466OF THE REVISED STATUTES, AS FOLLOWS: (1) THE OFFICER MUST NOT RANK ABOVE A LIEUTENANT, (2) THE DUTY PERFORMED MUST BE EXCLUSIVELY AND STRICTLY PERSONAL AND OF A ROUTINE CHARACTER AS CONTRASTED WITH GENERAL STAFF DUTY, (3) THE ASSIGNMENT MUST BE WITH A PARTICULAR OFFICER DESIGNATED BY NAME, AND (4) THE TOTAL NUMBER OF SUCH PERSONAL AIDS ASSIGNED TO ANY REAR ADMIRAL SHALL NOT EXCEED THREE. CROSLEY V. UNITED STATES, (1903) 38 CT.CLS. 82, AFFIRMED IN PART, UNITED STATES V. CROSLEY, (1905) 196 U.S. 327, 49 L.ED. 497; MILLER V. UNITED STATES, (1906) 41 CT.CLS. 406, AFFIRMED IN PART, UNITED STATES V. MILLER, (1908) 208 U.S. 32, 52 L.ED. 376; KNOX V. UNITED STATES, (1917) 52 CT.CLS. 22; MCLEAN V. UNITED STATES, ID. 30; TOMPKINS V. UNITED STATES, ID. 30; CRAVEN V. UNITED STATES, ID. 30; PALMER V. UNITED STATES, ID. 31; CHASE V. UNITED STATES, ID. 31; HELM V. UNITED STATES, ID. 32; 34 OP.ATTY.GEN. 521, AND DECISIONS THEREIN CITED; 24 COMP. DEC. 336, 570; 26 ID. 249; 6 COMP. GEN. 493; 10 MS.ID. 1204.

THE NAVY REGISTER OF JANUARY 1, 1924, SHOWS REAR ADMIRAL IRWIN ASSUMED DUTY AS COMMANDANT OF THE FIFTEENTH NAVAL DISTRICT AND NAVAL OPERATING BASE, CANAL ZONE, DECEMBER 30, 1922, WHILE HOLDING THE GRADE AND RANK OF CAPTAIN; HE WAS NOT SELECTED FOR PROMOTION UNTIL JUNE, 1924, AND THE VACANCY IN THE GRADE OF REAR ADMIRAL TO WHICH HE WAS ULTIMATELY PROMOTED DID NOT OCCUR UNTIL DECEMBER 2, 1924. IT IS OBVIOUS, THEREFORE, THAT IN DECEMBER, 1923, WHEN LIEUTENANT HILLENKOETTER WAS DIRECTED BY THE BUREAU OF NAVIGATION TO REPORT FOR DUTY TO THE COMMANDANT FIFTEENTH NAVAL DISTRICT, IT WAS NOT CONTEMPLATED HE WOULD ACT AS A PERSONAL AID TO A REAR ADMIRAL. THE ORDER OF FEBRUARY 24, 1925, HEREINBEFORE QUOTED, ASSIGNING LIEUTENANT HILLENKOETTER AS AID TO THE COMMANDANT CLEARLY INDICATES THE PERFORMANCE OF OTHER THAN PERSONAL AND CONFIDENTIAL DUTIES WOULD BE REQUIRED AND REAR ADMIRAL IRWIN'S INDORSEMENT OF JUNE 8, 1926, SUPRA, DOES NOT ESTABLISH THAT SUCH DUTIES WERE EXCLUSIVE.

REAR ADMIRAL IRWIN WAS SUCCEEDED AS COMMANDANT FIFTEENTH NAVAL DISTRICT AUGUST 29, 1925, BY CAPT. G. C. DAY, WHO DID NOT BECOME A REAR ADMIRAL UNTIL AN AD INTERIM APPOINTMENT AND COMMISSION IN THAT GRADE WAS ISSUED TO HIM FROM THE BUREAU OF NAVIGATION OCTOBER 30, 1925. OATH AND ACCEPTANCE WERE EXECUTED NOVEMBER 11, 1925, AND THE SENATE CONFIRMED HIS NOMINATION FOR PROMOTION TO THE GRADE OF REAR ADMIRAL DECEMBER 22, 1925 (CONG. RECORD, VOL. 67, PT. 2, P. 1337). ALTHOUGH AN OFFICER OF THE NAVY, BY REASON OF THE ACT OF MARCH 4, 1913, 37 STAT. 892, IS ENTITLED ON PROMOTION TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE ANTERIOR TO HIS ACTUAL APPOINTMENT AND ENTERING UPON THE OFFICE TO WHICH HE IS PROMOTED, IT IS THE OFFICE HELD WHEN THE SERVICES AS AID ARE RENDERED WHICH DETERMINES THE RIGHT TO RECEIVE ADDITIONAL PAY UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128. DOWNES V. UNITED STATES, 52 CT.CLS. 237; 23 COMP. DEC. 329. EVEN WERE IT ESTABLISHED, THEREFORE, WHICH IT IS NOT, THAT THE ASSIGNMENT OF LIEUTENANT HILLENKOETTER AS AID TO THE COMMANDANT BY CAPTAIN DAY WAS A VALID ASSIGNMENT AND THAT THE DUTIES PERFORMED FOR CAPTAIN DAY AS COMMANDANT FROM AUGUST 29, 1925, TO OCTOBER 22, 1925, WERE EXCLUSIVELY PERSONAL AND CONFIDENTIAL, IT SEEMS CLEAR THE PAYMENTS OF ADDITIONAL PAY FOR THAT PERIOD BEFORE CAPTAIN DAY WAS APPOINTED REAR ADMIRAL WOULD HAVE BEEN IMPROPER.

THERE WAS NO VALID ASSIGNMENT OF LIEUTENANT HILLENKOETTER, HOWEVER, EITHER AS AID TO REAR ADMIRAL IRWIN OR AS AID TO REAR ADMIRAL (THEN CAPTAIN) DAY, ALTHOUGH LIEUTENANT KIRK HAS FILED IN SUPPORT OF HIS APPLICATION FOR REVIEW A LETTER FROM LIEUTENANT HILLENKOETTER URGING THAT THE CASE OF FRUCHT V. UNITED STATES, (1914) 49 CT.CLS. 570, AND THE CASE OF KNOX V. UNITED STATES, (1917) 52 CT.CLS. 22, ESTABLISH THE VALIDITY OF HIS ASSIGNMENTS.

THE CASE OF FRUCHT WAS BASED UPON THE CASE OF JONES V. UNITED STATES, DECIDED BEFORE IT ON DECEMBER 1, 1913, 49 CT.CLS. 16, WHEREIN THE COURT OF CLAIMS ENTIRELY IGNORED THE HISTORICAL BACKGROUND FOR THE ACT OF MAY 13, 1908, 35 STAT. 128, AND LOST SIGHT OF THE AID (OR AID DE-CAMP) WITH HIS EXCLUSIVELY PERSONAL AND CONFIDENTIAL DUTIES WHO HAD THERETOFORE BEEN ALLOWED ADDITIONAL PAY UNDER SECTION 1261 OF THE REVISED STATUTES AND SECTION 13 OF THE NAVY PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1007, DETERMINING IN EFFECT THAT THE ADDITIONAL PAY PROVIDED BY THE 1908 ACT BELONGED TO ANYONE, IRRESPECTIVE OF RANK AND WITHOUT REGARD TO HIS OTHER DUTIES, WHO MIGHT ASSIST A REAR ADMIRAL AS A MEMBER OF HIS PERSONAL STAFF. IN THE CASE OF JONES, 49 CT.CLS. 16, A LIEUTENANT COMMANDER OF THE NAVY, WHO, PURSUANT TO NAVY REGULATIONS THEN IN EFFECT, HAD BEEN APPOINTED AN AID ON THE STAFF OF A REAR ADMIRAL, UPPER NINE, WAS ALLOWED ADDITIONAL PAY AT $200 PER ANNUM FROM OCTOBER 1, 1910, TO JULY 1, 1911. THE CASE OF FRUCHT, 49 CT.CLS. 570, WAS AN EXTREME APPLICATION OF THE JONES CASE, ADDITIONAL PAY AT $150 PER ANNUM HAVING BEEN ALLOWED A LIEUTENANT IN THE NAVY FOR THE PERIOD NOVEMBER 1, 1910, TO OCTOBER 20, 1911, DURING WHICH HE WAS ASSIGNED, PURSUANT TO SECTION 1469 OF THE REVISED STATUTES AND ARTICLE 1567 OF THE NAVY REGULATIONS THEN IN EFFECT,"AS AID TO THE COMMANDANT (A REAR ADMIRAL, LOWER NINE), CAPTAIN OF THE YARD, AND ALSO AS ENGINEER OFFICER OF THE YARD" AT PENSACOLA, FLA.

THESE DECISIONS OF THE COURT OF CLAIMS, IN SO FAR AS THEY RECOGNIZED THE VALIDITY OF AN APPOINTMENT MADE PURSUANT TO REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY AND APPROVED BY THE PRESIDENT, WERE IN HARMONY WITH THE DECISION OF THE COURT IN THE CASE OF MILLER, WHICH WAS DECIDED IN 1906, 41 CT.CLS. 406, AFFIRMED IN PART (1908), UNITED STATES V. MILLER, 208 U.S. 32; 52 L.ED. 376. OTHERWISE THEY WERE CONTRARY IN PRINCIPLE TO THE CONSTRUCTION PLACED CONTEMPORANEOUSLY ON THE ACT OF MAY 13, 1908, 36 STAT. 128, BY THE ACCOUNTING OFFICERS OF THE TREASURY DEPARTMENT AND IN THE NAVY DEPARTMENT, WHICH CONSTRUCTION HAD THERETOFORE BEEN OBSERVED, AND ALTHOUGH IN A DECISION OF DECEMBER 31, 1914, 21 COMP. DEC. 431, COMPTROLLER DOWNEY ANNOUNCED HIS INTENTION OF FOLLOWING THE COURT'S DECISIONS BECAUSE THE DEPARTMENT OF JUSTICE HAD REFUSED TO APPEAL THEREFROM AS HE HAD RECOMMENDED, HE WAS LATER PREVAILED UPON BY THE SECRETARY OF THE NAVY TO DIRECT THAT THE DECISIONS IN THE JONES AND FRUCHT CASES SHOULD NOT BE GIVEN EFFECT IN TREASURY DEPARTMENT SETTLEMENTS UNTIL THE COURT OF CLAIMS HAD BEEN AFFORDED AN OPPORTUNITY TO RULE ON OTHER SIMILAR CASES THEN PENDING. 21 COMP. DEC. 560, 793; 22 ID. 327.

AFTER SEVERAL YEARS' CONSIDERATION THE COURT IN A SERIES OF CASES DECIDED JANUARY 8, 1917, ENTIRELY REPUDIATED THE CONSTRUCTION GIVEN THE ACT OF MAY 13, 1908, 35 STAT. 128, IN THE JONES AND FRUCHT CASES, GAVE FULL EFFECT TO THE CONSTRUCTION WHICH THERETOFORE HAD BEEN GIVEN THE ACT BY THE ACCOUNTING OFFICERS AND THE NAVY DEPARTMENT AND FORMULATED THE RULES HEREINBEFORE SET OUT FOR DETERMINING THE QUALIFICATIONS REQUISITE TO ENTITLE AN AID OF A REAR ADMIRAL IN THE NAVY TO THE ADDITIONAL PAY PROVIDED IN THE ACT.

WHILE IN THE KNOX DECISION, 52 CT.CLS. 22, 29, THE COURT AFFIRMED SO MUCH OF ITS DECISION IN THE FRUCHT CASE AS RECOGNIZED THE VALIDITY OF THE ASSIGNMENT, IT WAS MADE CLEAR THE ASSIGNMENT WAS VALID MERELY BECAUSE THE REGULATION OF THE SECRETARY OF THE NAVY THEN IN EFFECT MADE IT SO AND NOT BECAUSE OF AN INHERENT RIGHT OF A REAR ADMIRAL COMMANDANT TO APPOINT HIS OWN AID, AND THE MCLEAN AND TOMPKINS CASES, 52 CT.CLS. 30, AND THE PALMER CASE, 52 CT.CLS. 31, APPLYING THE KNOX CASE, SHOW CLEARLY THE ALLOWANCE OF ADDITIONAL PAY TO LIEUTENANT COMMANDER JONES (RANK ABOVE A LIEUTENANT) AND TO LIEUTENANT FRUCHT FOR ACTING AS AID AND CAPTAIN AND ENGINEER OFFICER OF THE YARD AT PENSACOLA, FLA., WERE IMPROPER.

THE MANNER OF ASSIGNMENT OF THOSE EXECUTIVE AIDS, WHOSE DUTIES ARE NOT EXCLUSIVELY PERSONAL AND CONFIDENTIAL, AND WHO, UNDER THE DECISIONS RENDERED BY THE COURT OF CLAIMS IN THE KNOX, MCLEAN, TOMPKINS, CRAVEN, PALMER, CHASE, AND HELM CASES ON JANUARY 8, 1917, ARE NOT ENTITLED TO ADDITIONAL PAY UNDER THE ACT OF MAY 13, 1908, IS PRESCRIBED BY SECTION 1469 OF THE REVISED STATUTES AND ARTICLE 1488 (6) OF THE NAVY REGULATIONS, 1920. THESE REGULATIONS ARE SILENT WITH RESPECT TO THE MANNER IN WHICH PERSONAL AND CONFIDENTIAL AIDS TO REAR ADMIRALS SHOULD BE ASSIGNED. THE SECRETARY OF THE NAVY, HOWEVER, DURING THE PERIOD THE 1920 REGULATIONS WERE BEING FORMULATED ISSUED A CIRCULAR LETTER DATED JUNE 23, 1919, TO ALL COMMANDERS IN CHIEF, FORCE COMMANDERS, DIVISION COMMANDERS, AND COMMANDANTS OF ALL STATIONS, AS FOLLOWS: SUBJECT: DETAIL OF OFFICERS TO DUTY AS AIDS ON STAFF OF FLAG OFFICERS.

1. NUMEROUS CASES HAVE RECENTLY ARISEN WHERE OFFICERS HAVE BEEN ASSIGNED TO DUTY AS AID ON THE STAFF OF A FLAG OFFICER BY AUTHORITY OTHER THAN THE SECRETARY OF THE NAVY. IN SUCH CASES OFFICERS ARE NOT ENTITLED TO THE ADDITIONAL PAY PROVIDED FOR AIDS TO FLAG OFFICERS UNTIL THE ORDERS HAVE BEEN APPROVED BY THE SECRETARY OF THE NAVY. WHEN SUCH ORDERS ARE SUBSEQUENTLY APPROVED BY THE DEPARTMENT, ADDITIONAL PAY BECOMES EFFECTIVE ONLY FROM THE DATE OF THE APPROVAL OF THE SECRETARY OF THE NAVY, AND IS NOT RETROACTIVE.

3. IT IS CONTRARY TO THE DEPARTMENT'S POLICY TO ASSIGN SPECIFICALLY AS AIDS TO REAR ADMIRALS AFLOAT ANY OFFICERS OTHER THAN THOSE DESIGNATED AS FLAG LIEUTENANT AND FLAG SECRETARY.

4. ONLY ONE OFFICER WILL BE ASSIGNED TO DUTY AS AID TO THE STAFF OF A REAR ADMIRAL ON DUTY ASHORE IN THE UNITED STATES.

THIS LETTER IS QUOTED IN THE DECISION OF THE COMPTROLLER OF THE TREASURY OF OCTOBER 8, 1919, 26 COMP. DEC. 249, AND THERE WAS STRICT COMPLIANCE WITH ITS TERMS AND THE REQUIREMENTS LAID DOWN BY THE COURTS AND DECISIONS OF THIS OFFICE, IN THE RECENT ASSIGNMENT OF LIEUT. RALPH U. HYDE AS AID TO REAR ADMIRAL B. F. HUTCHINSON, COMMANDANT OF THE NAVY YARD, WASHINGTON, D.C., WHOSE CASE WAS THE SUBJECT OF A DECISION OF THIS OFFICE JANUARY 27, 1927, 6 COMP. GEN. 493.

RESPECTING THE ORDER OF DECEMBER 6, 1923, FROM THE BUREAU OF NAVIGATION DIRECTING LIEUTENANT HILLENKOETTER TO REPORT TO THE COMMANDANT FIFTEENTH NAVAL DISTRICT FOR DUTY, THE FOLLOWING LANGUAGE USED BY HAY, JUDGE, IN DELIVERING THE OPINION OF THE COURT OF CLAIMS IN THE KNOX CASE, 52 CT.CLS. 27, 28, 29, IS PECULIARLY APPLICABLE:

* * * NOTHING IN HIS ORDERS CONTEMPLATED HIS PERFORMING THE DUTIES OF AID AND HE COULD NOT BECOME AN AID ENTITLED TO PAY AS SUCH UNDER THE STATUTE MERELY BY BEING CALLED AN AID BY HIS COMMANDING OFFICER OR BY HAVING THE WORD "AID" AFFIXED TO HIS NAME IN THE NAVAL REGISTER.

NOMINATION DOES NOT MEAN APPOINTMENT, AND THE REGULATIONS EVIDENTLY INTEND THAT THE SECRETARY OF THE NAVY SHALL PASS UPON THESE NOMINATIONS.

THE MERE FACT THAT THE OFFICER * * * PERFORMED THE DUTIES OF THE POSITION DOES NOT CONFER UPON HIM THE RIGHT TO DRAW THE PAY ATTACHED TO IT. * * * A NAVAL OFFICER * * *, WHILE HE MIGHT HAVE TO OBEY AN ORDER OF HIS SUPERIOR OFFICER * * * WOULD DO SO KNOWING FULL WELL THAT HE WOULD NOT BE ENTITLED TO ADDITIONAL PAY FOR PERFORMING THE DUTIES OF A POSITION TO WHICH HE WAS APPOINTED BY ILLEGAL AUTHORITY.

THE PAYMENTS OF ADDITIONAL PAY MADE BY COMMANDER MAYO TO LIEUTENANT HILLENKOETTER WERE PALPABLY UNAUTHORIZED, AND THE SETTLEMENT DISALLOWING CREDIT THEREFOR MUST BE SUSTAINED.

IN REVIEWING THE ACCOUNT IT HAS BEEN NOTED THAT CREDIT WAS INADVERTENTLY ALLOWED COMMANDER MAYO FOR PAYMENT OF ADDITIONAL PAY TO LIEUTENANT HILLENKOETTER FROM AUGUST 1 TO 28, 1925, CREDIT HAVING BEEN DISALLOWED BUT FOR 41 CENTS OF THE $12.50 ADDITIONAL PAYMENT MADE IN THAT MONTH. ADDITIONAL DEFICIENCY OF $12.09 NOW APPEARING, SUPPLEMENTAL SETTLEMENT WILL BE MADE TO INCLUDE THAT ITEM IN THE SUM DISALLOWED.