A-19047, JULY 21, 1927, 7 COMP. GEN. 51

A-19047: Jul 21, 1927

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IS A FIRST APPOINTMENT "IN THE PERMANENT SERVICE" WITHIN THE PROVISION OF THE ACT OF JUNE 10. WHO WAS FIRST APPOINTED IN THE NAVY AS AN ACTING ENSIGN FOR ENGINEERING DUTY ONLY. IS ENTITLED TO PAY OF THE THIRD PERIOD AS AN OFFICER "WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY.'. IT APPEARS THAT LIEUTENANT MCCALL WAS APPOINTED AN ACTING ENSIGN ON JUNE 3. AS FOLLOWS: * * * THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO APPOINT ANNUALLY IN THE LINE OF THE NAVY FOR A PERIOD OF TEN YEARS FOLLOWING THE PASSAGE OF THIS ACT. PERSONS SO APPOINTED MUST HAVE RECEIVED A DEGREE OF MECHANICAL OR ELECTRICAL ENGINEER FROM A COLLEGE OR UNIVERSITY OF HIGH STANDING OR BE GRADUATES OF TECHNICAL SCHOOLS APPROVED BY THE SECRETARY OF THE NAVY.

A-19047, JULY 21, 1927, 7 COMP. GEN. 51

PAY - PERIODS - OFFICERS OF THE NAVY APPOINTMENT AS AN ACTING ENSIGN IN THE LINE OF THE NAVY FOR ENGINEERING DUTY ONLY, UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 580, IS A FIRST APPOINTMENT "IN THE PERMANENT SERVICE" WITHIN THE PROVISION OF THE ACT OF JUNE 10, 1922, 42 STAT. 626, PRESCRIBING THE OFFICERS TO WHOM SHALL BE PAID THE PAY OF THE THIRD PERIOD.

ASSISTANT COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE NAVY, JULY 21, 1927:

THERE HAS BEEN RECEIVED LETTER OF LIEUT. R. F. MCCALL, UNITED STATES NAVY, AND YOUR 3D INDORSEMENT THEREON DATED JUNE 28, 1927, REQUESTING DECISION WHETHER LIEUTENANT MCCALL, WHO WAS FIRST APPOINTED IN THE NAVY AS AN ACTING ENSIGN FOR ENGINEERING DUTY ONLY, AND SUBSEQUENTLY GIVEN A PERMANENT APPOINTMENT AS LIEUTENANT, JUNIOR GRADE, IS ENTITLED TO PAY OF THE THIRD PERIOD AS AN OFFICER "WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY.'

IT APPEARS THAT LIEUTENANT MCCALL WAS APPOINTED AN ACTING ENSIGN ON JUNE 3, 1918, IN ACCORDANCE WITH PROVISION OF THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS FOLLOWS:

* * * THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO APPOINT ANNUALLY IN THE LINE OF THE NAVY FOR A PERIOD OF TEN YEARS FOLLOWING THE PASSAGE OF THIS ACT, IN THE ORDER OF MERIT DETERMINED BY SUCH COMPETITIVE EXAMINATION AS HE MAY PRESCRIBE, THIRTY ACTING ENSIGNS FOR THE PERFORMANCE OF ENGINEERING DUTIES ONLY. PERSONS SO APPOINTED MUST HAVE RECEIVED A DEGREE OF MECHANICAL OR ELECTRICAL ENGINEER FROM A COLLEGE OR UNIVERSITY OF HIGH STANDING OR BE GRADUATES OF TECHNICAL SCHOOLS APPROVED BY THE SECRETARY OF THE NAVY, MUST HAVE BEEN FOUND PHYSICALLY QUALIFIED BY A BOARD OF MEDICAL OFFICERS OF THE NAVY FOR THE PERFORMANCE OF THE DUTIES REQUIRED, AND MUST AT THE TIME OF APPOINTMENT BE NOT LESS THAN TWENTY NOR MORE THAN TWENTY-SIX YEARS OF AGE. SUCH APPOINTMENTS SHALL BE FOR A PROBATIONARY PERIOD OF THREE YEARS, AND MAY BE REVOKED AT ANY TIME BY THE SECRETARY OF THE NAVY.

SUCH ACTING ENSIGNS SHALL, UPON THE COMPLETION OF THE PROBATIONARY PERIOD OF THREE YEARS, OF WHICH TWO YEARS SHALL HAVE BEEN SPENT ON BOARD CRUISING VESSELS AND ONE YEAR PURSUING A COURSE OF INSTRUCTION AT THE NAVAL ACADEMY PRESCRIBED BY THE SECRETARY OF THE NAVY, BE COMMISSIONED IN THE GRADE OF LIEUTENANT OF THE JUNIOR GRADE AFTER SATISFACTORILY PASSING SUCH EXAMINATION AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AND HAVING BEEN RECOMMENDED FOR PROMOTION BY THE EXAMINING BOARD AND FOUND PHYSICALLY QUALIFIED BY A BOARD OF MEDICAL OFFICERS OF THE NAVY.

THE ACT OF JUNE 10, 1922, 42 STAT. 626, PROVIDES THAT "THE PAY OF THE THIRD PERIOD SHALL BE PAID TO * * * LIEUTENANTS OF THE NAVY * * * WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY.' THE QUESTION IS WHETHER CLAIMANT'S APPOINTMENT AS ACTING ENSIGN ON JUNE 3, 1918, OR HIS PERMANENT APPOINTMENT AS LIEUTENANT (J.G.) JUNE 10, 1921, CONSTITUTED HIS FIRST APPOINTMENT IN THE "PERMANENT SERVICE" WITHIN THE ACT OF JUNE 10, 1922.

LIEUTENANT MCCALL URGES THAT HIS APPOINTMENT AS ACTING ENSIGN FOR ENGINEERING DUTY ONLY BEING TEMPORARY OR PROBATIONARY IN CHARACTER, ISSUED BY THE SECRETARY OF THE NAVY AND NOT BY THE PRESIDENT, AND SUBJECT TO REVOCATION BY THE SECRETARY OF THE NAVY, WAS NOT AN "APPOINTMENT IN THE PERMANENT SERVICE.'

OFFICERS OF THE LINE OF THE NAVY IN THE GRADE OF ENSIGN ARE APPOINTED FROM GRADUATES OF THE NAVAL ACADEMY, AND FROM WARRANT OFFICERS AND CHIEF WARRANT OFFICERS WITHIN CERTAIN LIMITATIONS. ACTS OF MARCH 3, 1901, 31 STAT. 1129; MARCH 3, 1903, 32 STAT. 1197; APRIL 27, 1904, 33 STAT. 346. THE ACT OF AUGUST 29, 1916, AUTHORIZED THE SECRETARY OF THE NAVY TO APPOINT "IN THE LINE OF THE NAVY" ACTING ENSIGNS, THE REQUIREMENT BEING THAT PERSONS SO APPOINTED MUST HAVE RECEIVED A DEGREE OF MECHANICAL OR ELECTRICAL ENGINEER FROM A COLLEGE OR UNIVERSITY OF HIGH STANDING, OR BE GRADUATES OF A TECHNICAL SCHOOL APPROVED BY THE SECRETARY OF THE NAVY. IS A PROVISION FOR APPOINTMENT IN THE RANK OF ENSIGN OF PERSONS OTHER THAN GRADUATES FROM THE NAVAL ACADEMY. THE FACT THAT SUCH APPOINTMENTS ARE PROBATIONARY IN CHARACTER AND SUBJECT TO REVOCATION BY THE SECRETARY OF THE NAVY DOES NOT MAKE THEM OTHER THAN APPOINTMENTS TO THE PERMANENT NAVAL SERVICE. THE REQUIREMENT OF THE LAW IS "FIRST APPOINTMENT IN THE PERMANENT SERVICE" AND NOT FIRST PERMANENT APPOINTMENT IN THE PERMANENT SERVICE, AND THE PROBATIONARY CONDITION ATTACHING TO THE APPOINTMENT IS NOT MATERIAL; THEREFORE, LIEUTENANT MCCALL'S APPOINTMENT AS ACTING ENSIGN ON JUNE 3, 1918, WAS HIS FIRST APPOINTMENT IN THE PERMANENT NAVAL SERVICE IN CONTEMPLATION OF THE ACT OF JUNE 10, 1922, AND HE IS NOT ENTITLED TO PAY OF THE THIRD PERIOD BY REASON OF FIRST APPOINTMENT IN THE PERMANENT SERVICE "IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY.' DECISIONS A 6028, DECEMBER 22, 1924, 40 MS. COMP. GEN. 984; A- 14552, AUGUST 9, 1926, 60 ID. 246.

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