A-32549, AUGUST 11, 1930, 10 COMP. GEN. 66

A-32549: Aug 11, 1930

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1930: THERE IS FOR CONSIDERATION THE CLAIM OF LIEUT. WAS ASSIGNED THE PROVISIONAL GRADE OF ASSISTANT PAYMASTER WITH THE RANK OF ENSIGN IN THE FLEET NAVAL RESERVE. WHICH ASSIGNMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JULY 1. HE WAS ASSIGNED THE PROVISIONAL GRADE OF ASSISTANT PAYMASTER WITH THE RANK OF LIEUTENANT. WHICH ASSIGNMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JANUARY 24. THAT HIS QUALIFICATIONS FOR CONFIRMED COMMISSION IN THE RANK OF ENSIGN WERE ESTABLISHED OCTOBER 1. A CONFIRMED COMMISSION WAS ACCORDINGLY ISSUED TO HIM TO RANK FROM JULY 1. THE ABOVE CLAIM FOR DIFFERENCE IN ACTIVE-DUTY PAY AND ALLOWANCES WAS DISALLOWED BY THE AUDITOR FOR THE NAVY DEPARTMENT AS PER SETTLEMENT CLAIM NO. 159210.

A-32549, AUGUST 11, 1930, 10 COMP. GEN. 66

PAY - RETAINER - NAVAL RESERVE FORCE - EFFECTIVE DATE OF ACTIVE DUTY PAY ON PROMOTION THE FIRST SENTENCE OF SECTION 1 OF THE ACT OF MAY 23, 1930, 46 STAT. 375, WHICH VALIDATES THE ASSIGNMENTS OF HIGHER PROVISIONAL RANKS, GRADES, OR RATINGS HERETOFORE MADE TO MEMBERS OF THE NAVAL RESERVE FORCE THAN THOSE FIRST ASSIGNED, HAS NO APPLICATION TO CLAIMS OF FORMER MEMBERS OF THE NAVAL RESERVE FORCE FOR RETROACTIVE ACTIVE DUTY PAY AND FOR CONFIRMED RETAINER PAY UNDER SUCH ASSIGNMENTS OF HIGHER PROVISIONAL RANKS, GRADES, OR RATINGS.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 11, 1930:

THERE IS FOR CONSIDERATION THE CLAIM OF LIEUT. W. GROSS, S.C., UNITED STATES NAVY, ASSERTED UNDER THE FIRST SENTENCE OF THE ACT OF MAY 23, 1930, 46 STAT. 375, FOR DIFFERENCE BETWEEN ACTIVE-DUTY PAY AND ALLOWANCES OF ENSIGN AND LIEUTENANT, J.G., U.S.N.R.F., FROM OCTOBER 2, 1918, TO JANUARY 16, 1919, AND FOR DIFFERENCE BETWEEN PROVISIONAL AND CONFIRMED RETAINER PAY FROM JULY 1, 1918, TO SEPTEMBER 30, 1919, AS AN ASSISTANT PAYMASTER WITH RANK OF ENSIGN, FLEET NAVAL RESERVE, UNITED STATES NAVAL RESERVE FORCE.

IT APPEARS THAT CLAIMANT WHILE SERVING AS ACTING PAY CLERK IN THE REGULAR NAVY ENROLLED IN THE UNITED STATES NAVAL RESERVE FORCE FOR A PERIOD OF FOUR YEARS FROM JULY 1, 1918, AND WAS ASSIGNED THE PROVISIONAL GRADE OF ASSISTANT PAYMASTER WITH THE RANK OF ENSIGN IN THE FLEET NAVAL RESERVE, U.S.N.R.F., TO RANK FROM APRIL 27, 1918, WHICH ASSIGNMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JULY 1, 1918, HIS APPOINTMENT AS ACTING PAY CLERK HAVING BEEN REVOKED EFFECTIVE ON DATE OF SUCH EXECUTION OF ACCEPTANCE AND OATH OF OFFICE; THAT UNDER DATE OF JANUARY 17, 1919, HE WAS ASSIGNED THE PROVISIONAL GRADE OF ASSISTANT PAYMASTER WITH THE RANK OF LIEUTENANT, JUNIOR GRADE, IN THE FLEET NAVAL RESERVE, U.S.N.R.F., TO RANK FROM OCTOBER 2, 1918, WHICH ASSIGNMENT WAS ACCEPTED AND OATH OF OFFICE EXECUTED JANUARY 24, 1919; THAT HIS QUALIFICATIONS FOR CONFIRMED COMMISSION IN THE RANK OF ENSIGN WERE ESTABLISHED OCTOBER 1, 1919, AND ON DECEMBER 2, 1920, A CONFIRMED COMMISSION WAS ACCORDINGLY ISSUED TO HIM TO RANK FROM JULY 1, 1918.

THE ABOVE CLAIM FOR DIFFERENCE IN ACTIVE-DUTY PAY AND ALLOWANCES WAS DISALLOWED BY THE AUDITOR FOR THE NAVY DEPARTMENT AS PER SETTLEMENT CLAIM NO. 159210, DATED OCTOBER 22, 1919, WHICH SETTLEMENT WAS AFFIRMED BY THE COMPTROLLER OF THE TREASURY UNDER APPEAL NO. 34360, DATED DECEMBER 3, 1920, IN ACCORDANCE WITH 25 COMP. DEC. 696, IN WHICH IT WAS HELD, QUOTING SYLLABUS:

THE PROVISIONAL PROMOTION OF AN OFFICER OF THE NAVAL RESERVE FORCE NOT BEING BASED ON A STATUTE AFFECTING THE RIGHTS OF THE OFFICER CONCERNED FOR PROMOTION OR ADVANCEMENT IN RANK OR GRADE, BUT BEING MERELY A CORRECTION OF A PRIOR PROVISIONAL ASSIGNMENT, WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY, THE OFFICER'S RIGHT TO PAY THEREUNDER DOES NOT BECOME EFFECTIVE UNTIL THE CORRECTED ASSIGNMENT IS ACCEPTED BY HIM.

THE ABOVE CLAIM FOR RETAINER PAY WAS DISALLOWED IN SETTLEMENT NO. N 159210, DATED NOVEMBER 27, 1922, WHICH DISALLOWANCE WAS SUSTAINED IN REVIEW 3605, MAY 28, 1923, AND REAFFIRMED BY DECISION OF JULY 8, 1924, ON THE GROUND THAT CLAIMANT'S QUALIFICATION FOR CONFIRMATION IN THE RANK OF ENSIGN WAS NOT ESTABLISHED PRIOR TO OCTOBER 1, 1919. SEE 3 COMP. GEN. 120.

IN THE DISALLOWANCE OF THESE CLAIMS THE VALIDITY OF THE HIGHER PROVISIONAL RATING HELD BY CLAIMANT WAS NOT QUESTIONED AND EFFECT WAS GIVEN THERETO ON THE ASSUMPTION THAT IT WAS VALID.

PRIOR TO THE DATE OF THE DISALLOWANCES IN QUESTION THE ATTORNEY GENERAL, ON OCTOBER 20, 1917, HAD HELD THAT THE ASSIGNMENT OF SUCH HIGHER PROVISIONAL GRADES OR RANKS WAS IN ACCORDANCE WITH LAW, 31 OP. ATTY. GEN. 173, AND THE COMPTROLLER OF THE TREASURY IN DECISION OF MAY 6, 1918, 24 COMP. DEC. 659, 662, WHILE EXPRESSING GRAVE DOUBTS AS TO WHETHER THE ASSIGNMENT OF SUCH HIGHER PROVISIONAL GRADES OR RANKS CONFORMS TO THE REAL INTENT AND PURPOSE OF THE LAW, STATED THAT IT IS NOT CLEARLY UNLAWFUL, AND THAT HE WOULD ACCEPT IT AS AN EMERGENCY MEASURE JUSTIFIED BY WAR CONDITIONS. THE VALIDITY OF THE ASSIGNMENT OF THESE HIGHER PROVISIONAL RATINGS WAS NOT QUESTIONED BY THIS OFFICE UNTIL THE DECISION OF JANUARY 28, 1925, 4 COMP. GEN. 636, BASED UPON THE DECISIONS RENDERED BY THE COURT OF CLAIMS IN 1924, IN THE CASES OF LAWLESS V. THE UNITED STATES, AND GARRISON V. THE UNITED STATES, 59 CT.CLS. 224 AND 919, HOLDING THERE WAS NO AUTHORITY OF LAW TO ASSIGN A NAVAL RESERVE OFFICER A HIGHER PROVISIONAL GRADE OR RANK THAN THAT ASSIGNED HIM ON FIRST ENROLLMENT EXCEPT AFTER THE EXAMINATIONS PRESCRIBED BY LAW, AND THAT SUCH PROVISIONAL ASSIGNMENT IN A HIGHER GRADE OR RANK WITHOUT THE REQUIRED EXAMINATIONS DID NOT ENTITLE THE OFFICER TO THE PAY AND ALLOWANCES THEREOF.

THE CITED ACT OF MAY 23, 1930, ENTITLED "AN ACT FOR THE RELIEF OF RETIRED AND TRANSFERRED MEMBERS OF THE NAVAL RESERVE FORCE, NAVAL RESERVE, AND MARINE CORPS RESERVE," PROVIDES IN SECTION 1 THEREOF:

THAT THE ASSIGNMENTS OF PROVISIONAL RANKS, GRADES, OR RATINGS HERETOFORE MADE TO MEMBERS OF THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE, INCLUDING THE ASSIGNMENTS OF HIGHER PROVISIONAL RANKS, GRADES, OR RATINGS THAN THOSE FIRST ASSIGNED, ARE HEREBY VALIDATED AND SHALL BE CONCLUSIVE FOR ALL PURPOSES, FROM THE DATES OF SUCH ASSIGNMENTS. THE TRANSFERS TO THE RETIRED LIST OF ALL MEMBERS OF THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE HERETOFORE MADE IN THE PROVISIONAL RANKS OR GRADES HELD AT THE DATE OF THEIR RETIREMENT ARE HEREBY VALIDATED AND SHALL BE CONCLUSIVE FOR ALL PURPOSES.

THIS ACT VALIDATES ALL PROVISIONAL ASSIGNMENTS AS STATED THEREIN. THE PROVISIONAL ASSIGNMENTS ARE VALIDATED AS SUCH. THEY WERE NOT ORIGINALLY CONFIRMED APPOINTMENTS AND THIS ACT DOES NOT GIVE THEM THAT STATUS, NOR DOES IT MAKE THEM RETROACTIVE. ACCORDINGLY, IT HAS NO APPLICATION TO THE CLAIMS HEREIN REFERRED TO.

THIS VIEW IS CONFIRMED BY REFERENCE TO REPORT NO. 350, ACCOMPANYING S. 548, WHICH BECAME THE CITED ACT OF MAY 23, 1930. A LETTER OF THE SECRETARY OF THE NAVY DATED NOVEMBER 7, 1929, ADDRESSED TO THE CHAIRMAN. COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE, WAS MADE A PART OF THIS REPORT, AND IN WHICH HE STATED SO FAR AS HERE MATERIAL:

THE PURPOSE OF THE FIRST SECTION OF THIS BILL IS TO VALIDATE THE ASSIGNMENTS OF PROVISIONAL RANKS, GRADES, OR RATINGS MADE TO MEMBERS OF THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE, INCLUDING THE PROVISIONAL RANKS OR GRADES, HELD BY MEMBERS OF THE RESERVE AT THE TIME OF THEIR RETIREMENT.

UNDER THE PROVISIONS OF THE ACT CREATING THE NAVAL RESERVE FORCE, AUGUST 29, 1916 (39 STAT. 587, 593), THE NAVY DEPARTMENT, ACTING IN ACCORDANCE WITH THE OPINION OF THE ATTORNEY GENERAL (31 OP.ATTY.GEN. 173) ASSIGNED PROVISIONAL RANKS, GRADES, AND RATINGS, HIGHER IN SOME CASES, THAN WAS ASSIGNED TO THE RESERVES WHEN THEY WERE FIRST ENROLLED. DURING THE WAR THE VOLUME OF BUSINESS IN CONNECTION WITH THE ENLISTING AND ENROLLING OF A GREATLY INCREASED NAVY, INCLUDING THE OBTAINING OF THE NECESSARY ADDITIONAL OFFICERS, WAS TREMENDOUS. IN ORDER THAT THIS MIGHT BE EXPEDITIOUSLY DONE IT WAS DEEMED IMPORTANT BY THE NAVY DEPARTMENT THAT MEMBERS OF THE NAVAL RESERVE FORCE SHOULD BE ASSIGNED PROVISIONAL RANKS,GRADES, OR RATINGS WITHOUT A DELAY WHICH WOULD HAVE BEEN INVOLVED HAD IT BEEN NECESSARY TO CONVENE AN EXAMINING BOARD IN EACH CASE. THE PERSONNEL WAS TAKEN INTO THE SERVICE, AND WHILE IN ACTIVE SERVICE IF IT WAS FOUND THAT THE PROVISIONAL RANK, GRADE, OR RATING WAS TOO HIGH OR TOO LOW TO PRODUCE THE INDIVIDUAL'S MAXIMUM-VALUE TO THE SERVICE, THAT RANK, GRADE, OR RATING WAS RAISED OR LOWERED ACCORDINGLY. ATTENTION IS PARTICULARLY INVITED TO THE FACT THAT THE RESERVIST HAD NO OPTION IN THE MATTER. HE RENDERED HIS SERVICE IN THE RANK, GRADE, OR RATING GIVEN HIM AND WOULD NOT HAVE BEEN PERMITTED TO APPEAR BEFORE THE NECESSARY EXAMINING BOARD FOR CONFIRMATION FOR THE SIMPLE REASON THAT THOSE BOARDS WERE NOT CONVENED. SUBSEQUENTLY, PRACTICALLY ALL OF THESE RESERVISTS WERE DISCHARGED. A FEW WERE RETIRED. THE FIRST SENTENCE OF SECTION 1 OF THE BILL IS MERELY FOR THE PURPOSE OF CORRECTING RECORDS OF THOSE DISCHARGED. NO MONEY IS INVOLVED. * * * ..END :