A-20870, JANUARY 21, 1928, 7 COMP. GEN. 427

A-20870: Jan 21, 1928

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PAY - AVIATION DUTY - NAVY ENLISTED MEN THE ADDITIONAL PAY OF $2 PER MONTH THROUGHOUT THEIR ACTIVE SERVICE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE NAVY WHO HAVE BEEN AWARDED A MEDAL OF HONOR. OR DISTINGUISHED FLYING CROSS IS ENTITLED TO "ADDITIONAL PAY AT THE RATE OF $2 PER MONTH" THROUGHOUT HIS ACTIVE SERVICE. ENLISTED MEN OF THE NAVY ARE ENTITLED TO RECEIVE "AN INCREASE OF 50 PERCENTUM OF THEIR PAY" WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT FLIGHTS. THE QUESTION PRESENTED BY THE PROPOSED CHANGE IN THE "PAY BILL INSTRUCTIONS" IS WHETHER THE .

A-20870, JANUARY 21, 1928, 7 COMP. GEN. 427

PAY - AVIATION DUTY - NAVY ENLISTED MEN THE ADDITIONAL PAY OF $2 PER MONTH THROUGHOUT THEIR ACTIVE SERVICE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE NAVY WHO HAVE BEEN AWARDED A MEDAL OF HONOR, DISTINGUISHED SERVICE MEDAL, NAVY CROSS, OR DISTINGUISHED FLYING CROSS BEING A PERMANENT ADDITION TO THEIR PAY SHOULD BE INCLUDED IN COMPUTING THE "INCREASE OF 50 PERCENTUM OF THEIR PAY" FOR FLYING DUTY UNDER THE PROVISIONS OF SECTION 13 (A) OF THE ACT OF JUNE 4, 1920, 41 STAT. 768, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 781, AND SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 782.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JANUARY 21, 1928:

THERE HAS BEEN RECEIVED YOUR REQUEST OF DECEMBER 9, 1927, FOR DECISION AS TO THE LEGALITY OF A PROPOSED CHANGE IN SECTION F OF THE "PAY BILL INSTRUCTIONS" TO PROVIDE AS FOLLOWS:

ADDITIONAL PAY CREDITED TO ENLISTED MEN FOR EACH AWARD OF MEDAL OF HONOR, DISTINGUISHED SERVICE MEDAL, NAVY CROSS, OR DISTINGUISHED FLYING CROSS SHALL BE INCLUDED IN COMPUTING THE 50 PERCENT ADDITIONAL FLYING PAY.

UNDER THE PROVISIONS OF THE ACTS OF FEBRUARY 4, 1919, 40 STAT. 1056, AND JULY 2, 1926, 44 STAT. 789, AN ENLISTED MAN OF THE NAVY AWARDED A MEDAL OF HONOR, DISTINGUISHED SERVICE MEDAL, NAVY CROSS, OR DISTINGUISHED FLYING CROSS IS ENTITLED TO "ADDITIONAL PAY AT THE RATE OF $2 PER MONTH" THROUGHOUT HIS ACTIVE SERVICE. UNDER THE PROVISIONS OF SECTION 13 (A) OF THE ACT OF JUNE 4, 1920, 41 STAT. 768, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 781, AND SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 782, ENLISTED MEN OF THE NAVY ARE ENTITLED TO RECEIVE "AN INCREASE OF 50 PERCENTUM OF THEIR PAY" WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT FLIGHTS. THE QUESTION PRESENTED BY THE PROPOSED CHANGE IN THE "PAY BILL INSTRUCTIONS" IS WHETHER THE ,ADDITIONAL PAY AT THE RATE OF $2 PER MONTH" PROVIDED FOR ENLISTED MEN WHO HAVE BEEN AWARDED THE MEDALS NAMED IS A PART OF "THEIR PAY" WHICH IS TO BE INCREASED 50 PERCENT FOR FLYING DUTY.

IT WAS HELD IN DECISION OF DECEMBER 14, 1901, 8 COMP. DEC. 405, CITING BELL V. UNITED STATES, 28 CT.CLS. 462, THAT "ADDITIONAL PAY AT THE RATE OF $2 PER MONTH" FOR A CERTIFICATE OF MERIT WHILE IN THE MILITARY SERVICE WAS NOT A PART OF THE "PAY AND ALLOWANCES OF THE RANK UPON WHICH TIRED.' BUT IN DECISION OF OCTOBER 8, 1904, 11 COMP. DEC. 173, STATING THAT 8 COMP. DEC. 405, HAD NOT BEEN OVERLOOKED, IT WAS HELD THAT SUCH ADDITIONAL PAY FOR A CERTIFICATE OF MERIT SHOULD BE INCLUDED IN COMPUTING THE AMOUNT OF "TWO MONTHS EXTRA PAY" IN LIEU OF FURLOUGH UNDER THE PROVISIONS OF THE ACT OF JANUARY 12, 1899, 30 STAT. 784, AND IN DECISION OF MAY 17, 1905, 11 COMP. DEC. 696, SUCH ADDITIONAL PAY WAS HELD TO BE INCLUDED IN "THE PAY PROPER" UPON WHICH FOREIGN SERVICE INCREASE OF 20 PERCENT WAS TO BE COMPUTED UNDER EXISTING STATUTORY PROVISIONS. IN THIS DECISION, AFTER REFERENCE TO THE LANGUAGE OF THE SUPREME COURT IN UNITED STATES V. MILLS, 197 U.S. 223, TO THE EFFECT THAT THE TERM "PAY PROPER" AS USED IN THE STATUTES UNDER CONSIDERATION MEANT COMPENSATION WHICH MIGHT PROPERLY BE DESCRIBED OR DESIGNATED AS "PAY" AS DISTINGUISHED FROM ALLOWANCES, COMMUTATIONS FOR RATIONS, OR OTHER METHODS OF COMPENSATION NOT SPECIFICALLY DESCRIBED AS PAY, THERE WAS QUOTED WITH APPROVAL FROM 11 COMP. DEC. 173, RELATIVE TO THE ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FOR A CERTIFICATE OF MERIT, THE STATEMENT:

* * * IT IS NOT CONTINGENT UPON FUTURE SERVICE, NOR IS IT AN ALLOWANCE WHICH MAY OR MAY NOT BE EARNED, BUT A DIRECT AND CERTAIN AMOUNT TO BE ADDED EACH MONTH TO THE PAY OF HIS RANK FOR SERVICE ACTUALLY RENDERED.

IN DECISION OF MAY 27, 1908, 14 COMP. DEC. 829, IT WAS HELD THAT THE 10 PERCENT INCREASE IN ,THE PAY OF ALL ACTIVE AND RETIRED ENLISTED MEN OF THE NAVY" UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, WAS TO BE COMPUTED ON THE BASE PAY AND THE PERMANENT ADDITIONS THERETO, SUCH AS PAY FOR CONTINUOUS SERVICE, LONGEVITY SERVICE, GOOD-CONDUCT MEDALS, PINS OR BARS, AND GRADUATION CERTIFICATES, BUT WAS NOT TO BE COMPUTED UPON TEMPORARY ADDITIONAL PAY FOR SPECIAL SERVICE, SUCH AS FOR GUN POINTERS, MESSMEN, COXSWAINS OF STEAM LAUNCHES, JACKS-OF-THE-DUST, ETC. THE PRINCIPLE OF THIS DECISION WAS FOLLOWED IN 21 COMP. DEC. 811, REVERSING 13 COMP. DEC. 506, AND OTHER CONTRARY DECISIONS, AND HOLDING, AFTER CONSIDERATION OF THE STATEMENTS MADE IN UNITED STATES V. MILLS, SUPRA, THAT THE "PAY PROPER" TO BE INCREASED 20 PERCENT FOR SEA DUTY OR FOREIGN SHORE DUTY IN THE MARINE CORPS DOES NOT INCLUDE THE ADDITIONAL COMPENSATION FOR DETAILS AS GUN CAPTAIN OR GUN POINTER, THERE BEING QUOTED THE LANGUAGE OF 14 COMP. DEC. 829, TO THE EFFECT THAT TEMPORARY ADDITIONAL PAY FOR SPECIAL ASSIGNMENTS SHOULD NOT BE INCLUDED BUT ONLY BASE PAY AND OTHER PAY EQUALLY PERMANENT AFTER THE RIGHT THERETO HAS BEEN ACQUIRED, SUCH AS CONTINUOUS SERVICE PAY, LONGEVITY PAY, AND PAY FOR THOSE HOLDING GOOD-CONDUCT MEDALS, CERTIFICATES OF GRADUATION, ETC.

THE PRINCIPLES OF THESE TWO DECISIONS HAVE BEEN FOLLOWED CONSISTENTLY IN DECISIONS SINCE THAT TIME. SEE 22 COMP. DEC. 11, HOLDING THAT THE 20 PERCENT INCREASE FOR SEA DUTY OR FOREIGN SHORE DUTY AND THE 50 PERCENT INCREASE FOR DETAIL TO DUTY INVOLVING ACTUAL FLYING IN AIRCRAFT ARE BOTH GIVEN FOR THE PERFORMANCE OF SPECIAL DUTY UNDER PRESCRIBED CONDITIONS AND THEREFORE THAT NEITHER IS TO BE COMPUTED ON THE OTHER AND 26 COMP. DEC. 954, HOLDING THAT THE 20 PERCENT INCREASE OF PAY FOR ENLISTED MEN OF THE ARMY UNDER THE ACT OF MAY 18, 1920, 41 STAT. 602, WAS A TEMPORARY INCREASE AND THEREFORE NOT A PART OF THEIR "PAY PROPER" ON WHICH FOREIGN SERVICE INCREASE WAS TO BE COMPUTED, BUT THAT SUCH TEMPORARY 20 PERCENT INCREASE WAS ITSELF TO BE COMPUTED ON ALL PERMANENT ADDITIONS TO THEIR PAY, INCLUDING PAY FOR DISTINGUISHED SERVICE MEDAL (EXAMPLE 1, PP. 965-966.) SEE ALSO 21 COMP. DEC. 848; ID. 863; 24 ID. 139; 26 ID. 965; 27 ID. 335; ID. 635; ID. 1013; 21 MS. COMP. GEN. 639; 25 ID. 920; 35 ID. 389.

APPLYING THE PRINCIPLES UNDERLYING THESE DECISIONS TO THE PRESENT QUESTION, IT IS APPARENT THAT THE ADDITIONAL PAY OF $2 A MONTH DURING ACTIVE SERVICE FOR EACH AWARD OF THE MEDAL OF HONOR, DISTINGUISHED SERVICE CROSS, NAVY CROSS, OR DISTINGUISHED-FLYING CROSS IS A PERMANENT ADDITION TO THE ACTIVE DUTY PAY OF ENLISTED MEN OF THE NAVY, AS DISTINGUISHED FROM TEMPORARY ADDITIONS TO THEIR PAY FOR SPECIAL DUTIES OR ASSIGNMENTS, AND WHILE IT WAS HELD IN 26 COMP. DEC. 114, THAT SUCH PAY, BEING LIMITED TO PERIODS OF ACTIVE DUTY, SHOULD NOT BE INCLUDED IN THE COMPUTATION OF RETIRED PAY, IT IS PROPERLY TO BE CONSIDERED A PART OF "THEIR PAY" WHILE ON ACTIVE DUTY ON WHICH THE INCREASE OF 50 PERCENT IS TO BE COMPUTED WHEN ON FLYING DUTY UNDER THE PROVISIONS OF THE ACTS CITED.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROPOSED CHANGE IN THE "PAY BILL INSTRUCTIONS" APPEARS TO BE IN CONFORMITY WITH LAW, AND MAY PROPERLY BE ISSUED FOR THE GUIDANCE OF THE NAVAL SERVICE.