A-21639, SEPTEMBER 26, 1928, 8 COMP. GEN. 144

A-21639: Sep 26, 1928

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THAT THE RECORD OF A CHIEF WARRANT OFFICER WAS NOT CREDITABLE AT THE TERMINATION OF 6 OR 12 YEARS' COMMISSIONED SERVICE MAY NOT BE MODIFIED OR REVERSED BY REASON OF SUBSEQUENT CREDITABLE SERVICE. A COMMISSIONED WARRANT OFFICER OF THE NAVY WHO COMPLETED SIX YEARS' COMMISSIONED SERVICE IN 1921 AND WHOSE RECORD WAS DETERMINED TO BE NOT CREDITABLE IN 1921. WAS DETERMINED BY THE SECRETARY OF THE NAVY TO BE CREDITABLE ON APRIL 11. IS NOT ENTITLED TO THE PAY OF THE SECOND PERIOD. WHICH COMMUNICATION READS AS FOLLOWS: SUBJECT: CREDITABILITY OF RECORD AFTER 6 YEARS. 1.THE DEPARTMENT HEREBY CERTIFIES THAT YOUR RECORD IS CREDITABLE WITHIN THE MEANING OF THE PROVISIONS CONTAINED IN THE NAVAL APPROPRIATION ACT APPROVED AUGUST 29.

A-21639, SEPTEMBER 26, 1928, 8 COMP. GEN. 144

PAY - PERIODS - CHIEF WARRANT OFFICER OF THE NAVY - CREDITABLE RECORD A DETERMINATION, UNDER THE SECRETARY OF THE NAVY, THAT THE RECORD OF A CHIEF WARRANT OFFICER WAS NOT CREDITABLE AT THE TERMINATION OF 6 OR 12 YEARS' COMMISSIONED SERVICE MAY NOT BE MODIFIED OR REVERSED BY REASON OF SUBSEQUENT CREDITABLE SERVICE. A COMMISSIONED WARRANT OFFICER OF THE NAVY WHO COMPLETED SIX YEARS' COMMISSIONED SERVICE IN 1921 AND WHOSE RECORD WAS DETERMINED TO BE NOT CREDITABLE IN 1921, 1922, 1923, 1924, AND 1925, BUT WAS DETERMINED BY THE SECRETARY OF THE NAVY TO BE CREDITABLE ON APRIL 11, 1927, IS NOT ENTITLED TO THE PAY OF THE SECOND PERIOD, UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 627, PRIOR TO APRIL 11, 1927.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 26, 1928:

CHIEF PAY CLERK JOHN J. LYNCH, UNITED STATES NAVY, HAS PRESENTED A CLAIM FOR $3,190.80, ASSERTED TO BE DUE HIM AS DIFFERENCE IN PAY AND ALLOWANCES FOR THE PERIOD AUGUST 10, 1921, TO MAY 31, 1925, BY REASON OF A COMMUNICATION ADDRESSED TO HIM THROUGH HIS COMMANDING OFFICER, APRIL 11, 1927, BY THE SECRETARY OF THE NAVY, WHICH COMMUNICATION READS AS FOLLOWS:

SUBJECT: CREDITABILITY OF RECORD AFTER 6 YEARS.

1.THE DEPARTMENT HEREBY CERTIFIES THAT YOUR RECORD IS CREDITABLE WITHIN THE MEANING OF THE PROVISIONS CONTAINED IN THE NAVAL APPROPRIATION ACT APPROVED AUGUST 29, 1916 (39 STAT. 578), AND WITHIN THE MEANING OF THE ACT OF CONGRESS APPROVED JUNE 10, 1922 (42 STAT. 627). * * *

2. THE RECORDS OF THE DEPARTMENT SHOW THAT YOU ARE ENTITLED TO THE PAY AND ALLOWANCES OF A LIEUTENANT (JUNIOR GRADE), U.S. NAVY, FROM JULY 1, 1921, TO JUNE 30, 1922, INCLUSIVE; THE PAY OF THE SECOND PAY PERIOD FROM JULY 1, 1922.

THE CITED ACT OF AUGUST 29, 1916, PROVIDES THAT COMMISSIONED WARRANT OFFICERS "ON THE ACTIVE LIST WITH CREDITABLE RECORDS, SHALL, AFTER 6 YEARS FROM DATE OF COMMISSION RECEIVE THE PAY AND ALLOWANCES * * * ALLOWED A LIEUTENANT (JUNIOR GRADE), UNITED STATES NAVY," AND THAT THOSE "ON THE ACTIVE LIST WITH CREDITABLE RECORDS, SHALL, AFTER 12 YEARS FROM DATE OF COMMISSION, RECEIVE THE PAY AND ALLOWANCES * * * ALLOWED A LIEUTENANT, UNITED STATES NAVY.'

SECTION 1 OF THE CITED ACT OF JUNE 10, 1922, PROVIDES THAT COMMISSIONED WARRANT OFFICERS "ON THE ACTIVE LIST WITH CREDITABLE RECORDS" SHALL,"AFTER SIX YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE SECOND PERIOD, AND AFTER TWELVE YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE THIRD PERIOD.'

UNDER THESE STATUTES THE PERIOD OF "COMMISSIONED SERVICE" IS TO BE COMPUTED FROM THE DATE ON WHICH ELIGIBILITY WAS ATTAINED FOR ADVANCEMENT FROM WARRANT TO CHIEF WARRANT RANK, IF OTHER PRESCRIBED QUALIFICATIONS ARE SHOWN TO HAVE BEEN MET, AND THAT INTERVENING TEMPORARY COMMISSIONED SERVICE IN THE UNITED STATES NAVY MAY BE INCLUDED IN THE COMPUTATION. COMP. GEN. 746, 748.

CHIEF PAY CLERK LYNCH IS SHOWN BY THE OFFICIAL RECORDS TO HAVE BEEN COMMISSIONED A REGULAR CHIEF PAY CLERK MARCH 16, 1916, EFFECTIVE FROM JULY 1, 1915, HAVING SERVED PREVIOUSLY, AND PRACTICALLY CONTINUOUSLY, IN THE UNITED STATES NAVY, FROM FEBRUARY 24, 1898, EITHER IN AN ENLISTED STATUS OR AS A PAYMASTER'S CLERK; HE ACCEPTED THE APPOINTMENT AND EXECUTED THE OATH OF OFFICE AS CHIEF PAY CLERK JUNE 1, 1916; WAS TEMPORARILY APPOINTED AN ASSISTANT PAYMASTER FROM JULY 1, 1917; ATTAINED THE RANK OF LIEUTENANT (JUNIOR GRADE) (TEMPORARY) FROM FEBRUARY 1, 1918; ATTAINED THE RANK OF LIEUTENANT (TEMPORARY) FROM JULY 1, 1918; AND ACCEPTED AN AD INTERIM APPOINTMENT DECEMBER 8, 1920, AS A TEMPORARY PASSED ASSISTANT PAYMASTER WITH THE RANK OF LIEUTENANT FROM AUGUST 1, 1920, WHICH APPOINTMENT WAS CONFIRMED MARCH 4, 1921.

ON JUNE 8, 1921, THE DEPARTMENT REVIEWED THE ACTION OF A NAVY GENERAL COURT-MARTIAL SENTENCING THE CLAIMANT, LYNCH, TO BE DISMISSED FROM THE UNITED STATES NAVAL SERVICE, AND MITIGATED THE SENTENCE OF DISMISSAL TO THE REVOCATION OF HIS TEMPORARY APPOINTMENT AS LIEUTENANT, WHICH REVOCATION IS REPORTED TO HAVE BEEN EFFECTED JUNE 17, 1921, THE OFFICER REVERTING ON THAT DATE TO HIS PERMANENT STATUS OF CHIEF PAY CLERK.

THE CLAIM FOR DIFFERENCE IN PAY AND ALLOWANCES IS NOW PRESENTED ON THE ASSUMPTION THAT THE ACTION OF THE PRESENT SECRETARY OF THE NAVY IN APRIL, 1927, DETERMINING CHIEF PAY CLERK LYNCH HAD A CREDITABLE RECORD AT THAT TIME AS A COMMISSIONED WARRANT OFFICER ENTITLED HIM TO BE PAID UNDER THE CITED STATUTES, THE PAY AND ALLOWANCES OF A LIEUTENANT (JUNIOR GRADE) UNTIL JUNE 30, 1922, AND THEREAFTER THE PAY AND ALLOWANCES OF THE SECOND PERIOD FROM THE DATE HE COMPLETED SIX YEARS' SERVICE IN PERMANENT AND TEMPORARY COMMISSIONED RANK, INCLUSIVE OF THE SERVICE IN THE TEMPORARY RANK OF LIEUTENANT FROM WHICH OFFICE THE CLAIMANT WAS REDUCED IN JUNE, 1921, PURSUANT TO THE SENTENCE OF GENERAL COURT-MARTIAL.

IT IS NOT UNDERSTOOD IN THIS CONNECTION THAT THE CONCLUDING PARAGRAPH OF THE LETTER FROM THE SECRETARY OF THE NAVY OF APRIL 11, 1927, HEREINBEFORE QUOTED, WAS DESIGNED TO ESTABLISH OR TO DECLARE WHAT WERE THE CLAIMANT'S RIGHTS TO PAY AND ALLOWANCES OR TO DO MORE THAN INDICATE, IN ACCORDANCE WITH THEN AVAILABLE RECORDS, THAT JULY 1, 1921, MARKED THE TERMINATION OF SIX YEARS FROM THE DATE OF CHIEF PAY CLERK LYNCH'S APPOINTMENT AS A COMMISSIONED OFFICER. COMPENSATION OF MILITARY OFFICERS IS ENTIRELY A MATTER OF STATUTORY REGULATION AND THE DETERMINATION OF AN OFFICER'S RIGHTS TO PAY AND ALLOWANCES UNDER THE STATUTES AND THE AVAILABILITY OF APPROPRIATIONS THEREFOR, IN SO FAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED, IS A MATTER SOLELY WITHIN THE JURISDICTION OF THE ACCOUNTING OFFICERS. 18 R.C.L. 1025, SEC. 17; 25 OP.ATTY.GEN. 85; 33 ID. 265. IN THIS CONNECTION, ALSO, SEE HOOPER V. UNITED STATES, 53 CT.CLS. 90, 370; 4 COMP. GEN. 961; 5 ID. 79.

IT HAS BEEN HELD IN THE DEPARTMENT AND GENERALLY ACCEPTED THAT THE QUESTION WHETHER AN OFFICER HAS A "CREDITABLE" RECORD AT THE TERMINATION OF 6 OR 12 YEARS FROM THE DATE OF HIS COMMISSION MUST BE DETERMINED IN EACH SPECIFIC CASE AS IT ARISES; THAT SUCH DETERMINATION MUST BE THAT OF THE SECRETARY OF THE NAVY, AND THAT THE SECRETARY IN ASCERTAINING THE FACT OF CREDITABILITY MAY AVAIL HIMSELF OF ANY APPROPRIATE ADMINISTRATIVE INSTRUMENTALITY, THE METHOD IN VOGUE SINCE NOVEMBER, 1916, BEING TO REFER THE ENTIRE RECORD IN HIS EXISTING GRADE, OF A COMMISSIONED WARRANT OFFICER WHO HAS COMPLETED 6 OR 12 YEARS' SERVICE, TO AN EXAMINING BOARD FOR REPORT AS TO WHETHER IN THE OPINION OF THE BOARD THE RECORD IS CREDITABLE; THAT THE BOARD MUST CONSIDER ALL MATTERS DISCLOSED IN THE RECORD, WHETHER PERTAINING TO THE OFFICER'S MENTAL, MORAL, OR PROFESSIONAL QUALIFICATIONS, AND THAT IT IS NECESSARY THE OFFICER BE FOUND SATISFACTORY BY THE BOARD IN ALL THESE RESPECTS IF HIS RECORD IS TO BE DEEMED CREDITABLE; THAT THE SECRETARY OF THE NAVY IS EMPOWERED TO APPROVE OR DISAPPROVE THE BOARD'S REPORT, OR TO MAKE AN INDEPENDENT DECISION BASED UPON THE EVIDENCE ADDUCED; THAT WHEN THE RECORD OF A COMMISSIONED WARRANT OFFICER THUS HAS BEEN DETERMINED CREDITABLE, AND A CERTIFICATE TO THAT EFFECT ISSUED, THE CERTIFICATE OF CREDITABILITY MAY NOT BE CANCELED SUBSEQUENTLY UNLESS IT IS ESTABLISHED BY EVIDENCE UNKNOWN TO THE DEPARTMENT AT THE TIME THE CERTIFICATE WAS ISSUED THAT THE CERTIFICATE WAS CLEARLY ERRONEOUS AND THAT, IN FACT, THE RECORD WAS NOT CREDITABLE ON THE DATE THEREOF; ALSO, THAT ANYTHING OF A DISCREDITABLE NATURE OCCURRING AFTER THE ISSUANCE OF A CERTIFICATE OF CREDITABILITY MAY NOT BE MADE THE BASIS OF REVISING OR CANCELING SUCH CERTIFICATE, BUT SHOULD BE DISPOSED OF BY MEANS OF THE DISCIPLINARY INSTRUMENTALITIES OTHERWISE AVAILABLE TO THE SECRETARY OF THE NAVY. NAVY DEPARTMENT GENERAL ORDER NO. 247, NOVEMBER 4, 1916; BUREAU S. AND A. MEMO. NO. 189-4084, DECEMBER 1, 1916; LAWS RELATING TO THE NAVY ANNOTATED 804 805, CITING C.M.O. 33, 1916, P. 6, FILE 17789-27, SEPTEMBER 21, 1916, AND FILE 17789-27; 21, FEBRUARY 28, 1919.

BY ANALOGY, AND UPON ESTABLISHED LEGAL PRINCIPLES AS WELL, IT IS EQUALLY CLEAR A DETERMINATION IN THIS MANNER THAT THE RECORD OF AN OFFICER IS NOT CREDITABLE AT THE TERMINATION OF 6 OR 12 YEARS MAY NOT BE MODIFIED OR REVERSED BY REASON OF SUBSEQUENT CREDITABLE SERVICE, OR FOR ANY CAUSE EXCEPT NEWLY DISCOVERED MATERIAL EVIDENCE WHICH MIGHT PROPERLY HAVE BEEN INCLUDED IN THE RECORD, BUT WHICH WAS UNKNOWN TO THE DEPARTMENT AT THE TIME THE RECORD WAS DETERMINED NOT TO BE CREDITABLE AND WHICH, IF KNOWN AT THAT TIME, WOULD HAVE RESULTED IN A DETERMINATION THAT THE RECORD WAS CREDITABLE.

THE RECORD OF CHIEF PAY CLERK LYNCH APPEARS TO HAVE BEEN SUBMITTED TO AN EXAMINING BOARD EACH YEAR FROM THE TERMINATION BY HIM OF SIX YEARS' COMMISSIONED SERVICE IN 1921, TO AND INCLUDING THE YEAR 1925, AND THE DETERMINATION OF EACH BOARD WAS THAT HE DID NOT HAVE A CREDITABLE RECORD. THOSE DETERMINATIONS THAT THE RECORD WAS NOT CREDITABLE WERE EACH ACQUIESCED IN BY THE SECRETARY OF THE NAVY AT THE TIME, THE PRESENT SECRETARY AND HIS PREDECESSOR BEING INVOLVED, AND NO CERTIFICATE OF CREDITABLE RECORD WAS ISSUED, SUCH UNFAVORABLE ACTION NO DOUBT BEING CHIEFLY INDUCED BY THE DISCREDITABLE CHARACTER OF CHIEF PAY CLERK LYNCH'SCONDUCT IN 1921 WHICH RESULTED IN HIS TRIAL AND SENTENCE BY THE GENERAL COURT-MARTIAL, HEREINBEFORE MENTIONED.

THE CLAIMANT'S RECORD APPEARS NOT TO HAVE BEEN PRESENTED TO AN EXAMINING BOARD IN 1926, BUT WAS PRESENTED IN 1927, AND, FOR THE FIRST TIME AS A COMMISSIONED WARRANT OFFICER, HIS RECORD WAS FOUND BY A BOARD, IN APRIL, 1927, TO BE CREDITABLE. THIS FINDING WAS BASED UPON HIS THEN ENTIRE RECORD AS A COMMISSIONED WARRANT OFFICER AND WAS APPROVED AND ADOPTED BY THE PRESENT SECRETARY OF THE NAVY, APRIL 11, 1927, WHEN THE CERTIFICATE OF CREDITABILITY WAS SIGNED BY HIM. CHIEF PAY CLERK LYNCH HAVING COMPLETED MORE THAN SIX YEARS' SERVICE, BUT LESS THAN 12 YEARS' SERVICE, ON APRIL 11, 1927, AND HIS RECORD HAVING BEEN FOUND CREDITABLE AT THAT TIME, UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, HE BECAME ENTITLED ON AND AFTER, BUT NOT BEFORE, THAT DATE TO THE PAY AND ALLOWANCES OF THE SECOND PAY PERIOD.

WHAT IS SAID HEREIN IS NOT TO BE UNDERSTOOD AS OVERRULING OR MODIFYING IN ANY WAY THE DECISION A-22236, OF MAY 22, 1928, IN THE CASE OF CHIEF BOATSWAIN GEORGE L. KENNEDY, 7 COMP. GEN. 746, OR TO IMPLY THAT A COMMISSIONED WARRANT OFFICER MAY NOT BE PAID THE PAY AND ALLOWANCES OF THE HIGHER PERIOD FROM THE DATE OF HIS COMPLETION OF SIX YEARS FROM THE DATE OF HIS COMMISSION, IF THERE HAS BEEN NO PRIOR DETERMINATION THAT HIS RECORD IS NOT CREDITABLE WHEN THERE IS A DETERMINATION UNDER THE THEN SECRETARY OF THE NAVY THAT THE OFFICER'S OFFICIAL RECORD COVERING THAT PARTICULAR PERIOD OF SERVICE IS CREDITABLE, WHICH DETERMINATION, OF COURSE, IS TO BE MADE AT AS EARLY A DATE THEREAFTER AS IS PRACTICABLE IN ORDER THAT THERE MAY BE AVOIDED THE DIFFICULTIES AND INFERENCES WHICH INEVITABLY ARISE FROM ACTION LONG DELAYED. IN ANY CASE WHERE THE PERIOD BETWEEN DATE OF COMPLETION OF 6 OR 12 YEARS' SERVICE AND DATE OF CERTIFICATE OF CREDITABILITY IS 12 MONTHS OR MORE, REPORT FROM THE DEPARTMENT WILL BE REQUIRED AFFIRMATIVELY SHOWING WHETHER THE RECORD OF THE OFFICER AT ANY TIME PRIOR TO THE ISSUANCE OF THE LAST CERTIFICATE HAS BEEN DETERMINED TO BE NOT CREDITABLE.

CHIEF PAY CLERK LYNCH WAS NOT ENTITLED TO THE PAY AND ALLOWANCES OF THE SECOND PAY PERIOD PRIOR TO APRIL 11, 1927, AND THE SETTLEMENT DISALLOWING HIS CLAIM FOR THE DIFFERENCE BETWEEN WHAT HE RECEIVED AND THE PAY AND ALLOWANCES OF THAT PERIOD FROM AUGUST 10, 1921, TO MAY 31, 1925, ACCORDINGLY WAS CORRECT AND MUST BE ADHERED TO. ..END :