A-45165, NOVEMBER 5, 1932, 12 COMP. GEN. 437

A-45165: Nov 5, 1932

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ARE NOT OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT. HE IS ATTACHED TO THE FIFTH FLEET DIVISION OF THE FIFTH NAVAL DISTRICT. 2. HE WAS ENTITLED UNDER THE U.S. - "ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT * * * AUTOMATIC INCREASES IN COMPENSATION BY REASON OF * * * PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30. THE LEGAL RANK AND STATUS OF THIS OFFICER IS THAT OF LIEUTENANT COMMANDER ATTACHED TO THE FIFTH FLEET DIVISION. FOR WHICH ONLY APPROPRIATE DUTY IS PROVIDED. THE RANK AND STATUS UPON WHICH HIS COMPENSATION MUST BE BASED IS THAT OF A LIEUTENANT ATTACHED TO A DIVISION FOR WHICH ONLY DRILL OR EQUIVALENT DUTY IS AUTHORIZED.

A-45165, NOVEMBER 5, 1932, 12 COMP. GEN. 437

ECONOMY ACT - DRILL PAY - OFFICERS OF FLEET NAVAL RESERVE OFFICERS OF THE FLEET NAVAL RESERVE IN AN INACTIVE DUTY STATUS, HAVING NO DUTIES TO PERFORM, OR ONLY OCCASIONAL OR INTERMITTENT DUTIES OF ATTENDING DRILLS OR PERFORMING APPROPRIATE DUTY, ARE NOT OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 5, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 8, 1932, REQUESTING DECISION OF THE QUESTION SUBMITTED IN LETTER OF LIEUTENANT L. A. PUCKETT, S.C., UNITED STATES NAVY, DATED OCTOBER 5, 1932, AS FOLLOWS: SUBJECT: CHILDRESS, CALVIN HAWTHORNE, LIEUT.COMDR. (MC-F) U.S.N.R.

RE: REQUEST FOR ADVANCE DECISION IN CASE OF

1. ON 23 JULY 1926 THE ABOVE-NAMED OFFICER ACCEPTED AN APPOINTMENT AS PASSED ASSISTANT SURGEON WITH THE RANK OF LIEUTENANT IN THE FLEET NAVAL RESERVE. HE HELD THAT RANK UNTIL 15 AUGUST 1932 ON WHICH DATE HE ACCEPTED AN APPOINTMENT AS SURGEON WITH THE RANK OF LIEUTENANT COMMANDER IN THE FLEET NAVAL RESERVE. HE IS ATTACHED TO THE FIFTH FLEET DIVISION OF THE FIFTH NAVAL DISTRICT.

2. AS A MEMBER OF THIS DIVISION AND WHILE HOLDING THE RANK OF LIEUTENANT IN THE FLEET NAVAL RESERVE, HE WAS ENTITLED UNDER THE U.S. CODE, TITLE 34, SECTION 782, TO PAY FOR THE PERFORMANCE OF EACH DRILL OR OTHER EQUIVALENT INSTRUCTION OR DUTY AT THE RATE OF ONE-THIRTIETH OF HIS MONTHLY BASE PAY. UPON HIS PROMOTION TO THE RANK OF LIEUTENANT COMMANDER IN THE FLEET NAVAL RESERVE HE BECAME ENTITLED TO PAY FOR THE PERFORMANCE OF APPROPRIATE DUTY AT A RATE NOT MORE THAN $500.00 PER ANNUM.

3. TITLE II, SECTION 201, OF THE ACT OF 30 JUNE 1932 (PUB.NO. 212 72ND CONGRESS) PROVIDES THAT---

"ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT * * * AUTOMATIC INCREASES IN COMPENSATION BY REASON OF * * * PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933 * * *.'

4. IT APPEARS THAT THIS LAW PREVENTS LIEUTENANT COMMANDER CHILDRESS FROM RECEIVING APPROPRIATE DUTY PAY ABOVE THAT OF A LIEUTENANT, HOWEVER A QUESTION ARISES AS TO THE CORRECT COMPUTATION OF HIS PAY. FIRST, A LIEUTENANT OF THE FLEET NAVAL RESERVE ATTACHED TO A DIVISION CAN RECEIVE PAY ONLY FOR DRILLS OR EQUIVALENT DUTY, A LIEUTENANT NOT ATTACHED TO A DIVISION CAN RECEIVE PAY ONLY FOR APPROPRIATE DUTY. SECOND, A LIEUTENANT COMMANDER OF THE FLEET NAVAL RESERVE CAN RECEIVE PAY ONLY FOR APPROPRIATE DUTY WHETHER ATTACHED TO A DIVISION OR NOT.

5. THE LEGAL RANK AND STATUS OF THIS OFFICER IS THAT OF LIEUTENANT COMMANDER ATTACHED TO THE FIFTH FLEET DIVISION, FOR WHICH ONLY APPROPRIATE DUTY IS PROVIDED, WHEREAS, THE RANK AND STATUS UPON WHICH HIS COMPENSATION MUST BE BASED IS THAT OF A LIEUTENANT ATTACHED TO A DIVISION FOR WHICH ONLY DRILL OR EQUIVALENT DUTY IS AUTHORIZED. THE DISTINCTION BETWEEN DRILL PAY AND APPROPRIATE DUTY PAY IS IMPORTANT FOR THE FORMER IS BASED ABSOLUTELY UPON THE BASIS OF DUTY PERFORMED WHEREAS THE LATTER IS DEPENDENT NOT ONLY UPON THE DUTY PERFORMED BUT CONTINUANCE ON APPROPRIATE DUTY STATUS.

6. IN THE CASE OF LIEUTENANT COMMANDER CHILDRESS, THE FOLLOWING VOUCHERS HAVE BEEN RECEIVED:

(A) A DRILL PAY VOUCHER AS A LIEUTENANT, FLEET NAVAL RESERVE, FROM 1 JULY 1932 TO 14 AUGUST 1932, SHOWING THE PERFORMANCE OF DRILLS ON 8, 11, 18 AND 25 JULY AND ON 1 AND 8 AUGUST 1932, A TOTAL OF SIX FOR WHICH HE IS ENTITLED TO SIX-THIRTIETHS OF HIS MONTHLY BASE PAY OF LIEUTENANT, OR $40.00.

(B) AN APPROPRIATE DUTY VOUCHER AS A LIEUTENANT COMMANDER OF THE FLEET NAVAL RESERVE FROM 15 AUGUST 1932 TO 30 SEPTEMBER 1932, SHOWING THE PERFORMANCE OF APPROPRIATE DUTY ON 15, 22 AND 29 AUGUST AND 12, 19 AND 26 SEPTEMBER 1932, A TOTAL OF SIX PERIODS IN ONE MONTH AND SIXTEEN DAYS.

7. IT WILL BE NOTED THAT LIEUTENANT COMMANDER CHILDRESS PERFORMED SIX PERIODS OF DUTY BOTH BEFORE AND AFTER HIS PROMOTION. UNDER ARTICLE H-2709 (3) OF THE BUREAU OF NAVIGATION MANUAL, AN OFFICER OF HIS RANK ATTACHED TO A DIVISION IS REQUIRED TO PERFORM "APPROPRIATE DUTY IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS OTHER MEMBERS OF THE ORGANIZATION--- PERFORM DRILLS AND EQUIVALENT DUTY.'

8. HOWEVER, IF THE SIX PERIODS PERFORMED AFTER HIS PROMOTION TO LIEUTENANT COMMANDER ARE REGARDED AS APPROPRIATE DUTY, AND UNDER THE ACT OF 30 JUNE 1932 HE IS NOT ENTITLED TO PAY HIGHER THAN THAT BASED ON THE RANK OF LIEUTENANT WHICH HE HELD ON 30 JUNE 1932, THEN HE WILL ACTUALLY RECEIVE LESS PAY FOR THE SIX PERIODS OF DUTY PERFORMED AFTER HIS PROMOTION, FOR UNDER THE U.S. CODE, TITLE 34, SECTION 782, AN OFFICER BELOW LIEUTENANT COMMANDER CAN RECEIVE NOT MORE THAN FOUR THIRTIETHS OF HIS MONTHLY BASE PAY EACH MONTH. ARTICLE H-2801 (2) OF THE BUREAU OF NAVIGATION MANUAL PROVIDES THAT "FOR A FRACTIONAL MONTH- - THEY SHALL RECEIVE COMPENSATION PROPORTIONATE TO THE NUMBER OF PERIODS OF APPROPRIATE DUTY PERFORMED OR TO THE PERIOD ELAPSED, WHICHEVER MAY BE THE SMALLER AMOUNT.' SINCE THIS OFFICER WAS ON AN APPROPRIATE DUTY STATUS ONLY SIXTEEN DAYS IN AUGUST 1932, ALTHOUGH HE PERFORMED THREE PERIODS OF DUTY, HE CAN ONLY BE PAID ,PROPORTIONATE TO THE TIME ELAPSED" OR FOR SIXTEEN DAYS, A TOTAL OF $14.22 FOR AUGUST. FOR THE THREE PERIODS PERFORMED IN SEPTEMBER DURING WHICH ENTIRE MONTH HE WAS IN AN APPROPRIATE DUTY STATUS HE IS ENTITLED TO PAY "PROPORTIONATE TO THE NUMBER OF PERIODS PERFORMED" OR $20.00. FOR THE DUTY AFTER PROMOTION, THEREFORE, HE WILL RECEIVE ONLY $34.22 WHEREAS FOR THE SAME DUTY PRIOR TO PROMOTION HE WILL RECEIVE $40.00.

9. IT DOES NOT APPEAR TO HAVE BEEN THE INTENT OF THE PROVISIONS OF THE ACT OF 30 JUNE 1932 (PUB.NO. 212) WHICH SUSPENDS PAY FOR PROMOTIONS, TO OPERATE SO AS TO REDUCE PAY BY VIRTUE OF PROMOTION. IT IS, THEREFORE, REQUESTED THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE ASKED TO RENDER AN ADVANCE DECISION ON WHETHER LIEUTENANT COMMANDER CHILDRESS, AS LONG AS HE REMAINS ATTACHED TO A DIVISION OF THE FLEET NAVAL RESERVE, SHOULD BE PAID FOR THE PERFORMANCE OF APPROPRIATE DUTY OR "DRILLS OR EQUIVALENT DUTY" ON THE BASIS OF THE RANK HE HELD ON 30 JUNE 1932.

THE QUESTION AS TO WHETHER THE OFFICER AFTER HIS PROMOTION SHOULD CONTINUE TO RECEIVE PAY FOR THE PERFORMANCE OF DRILLS OR EQUIVALENT DUTY AS A LIEUTENANT, OR SHOULD RECEIVE PAY FOR THE PERFORMANCE OF APPROPRIATE DUTIES AS A LIEUTENANT COMMANDER, DEPENDS UPON THE QUESTION AS TO WHETHER AN OFFICER HOLDING A COMMISSION IN THE FLEET NAVAL RESERVE, AND ON INACTIVE DUTY STATUS THEREIN, AND IS REQUIRED TO ATTEND OCCASIONALLY AND INTERMITTENTLY DRILLS OR EQUIVALENT DUTY, OR PERFORM APPROPRIATE DUTY FOR PERIODS OF NOT LESS THAN ONE AND ONE-HALF HOURS' DURATION AND NOT EXCEEDING 48 OF SUCH PERIODS IN THE FISCAL YEAR 1933, IS AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT QUOTED, SUPRA.

IN UNITED STATES V. GERMAINE, 99 U.S. 508, 511, IT WAS HELD THAT A CIVIL SURGEON APPOINTED TO MAKE PERIODICAL EXAMINATIONS OF PENSIONERS, AND TO EXAMINE APPLICANTS FOR PENSIONS, WAS NOT AN OFFICER OF THE UNITED STATES. REFERRING TO UNITED STATES V. HARTWELL, 6 WALL. 385, IT WAS TATED:

IF WE LOOK TO THE NATURE OF DEFENDANT'S EMPLOYMENT, WE THINK IT EQUALLY CLEAR THAT HE IS NOT AN OFFICER. IN THAT CASE THE COURT SAID, THE TERM EMBRACES THE IDEAS OF TENURE, DURATION, EMOLUMENT, AND DUTIES, AND THAT THE LATTER WERE CONTINUING AND PERMANENT, NOT OCCASIONAL OR TEMPORARY. THE CASE BEFORE US, THE DUTIES ARE NOT CONTINUING AND PERMANENT, AND THEY ARE OCCASIONAL AND INTERMITTENT.

IN SIMMONS V. UNITED STATES, 55 CT.CLS. 56, APPLYING THE ABOVE CITED DECISIONS, IT WAS HELD THAT AN ATTORNEY HOLDING A COMMISSION IN THE OFFICERS' RESERVE CORPS OF THE ARMY, AND ON INACTIVE STATUS THEREIN, HAVING NO DEFINED DUTIES TO DISCHARGE AND NO SALARY OR EMOLUMENT OF OFFICE, WAS NOT AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 5498, REVISED STATUTES, PRESCRIBING PENALTIES FOR SUCH AN OFFICER WHO ACTS AS AGENT OR ATTORNEY FOR PROSECUTING A CLAIM AGAINST THE UNITED STATES.

AN OFFICER IN THE FLEET NAVAL RESERVE ON INACTIVE DUTY HAS A STATUS SIMILAR TO THAT OF AN OFFICER IN THE OFFICERS' RESERVE CORPS NOT ON ACTIVE DUTY, EXCEPT THAT THE FORMER IS REQUIRED TO ATTEND DRILLS OR PERFORM APPROPRIATE DUTIES OCCASIONALLY AND INTERMITTENTLY AS STATED ABOVE.

APPARENTLY, SECTION 201 OF THE ECONOMY ACT, IN ITS APPLICATION TO OFFICERS IN THE MILITARY AND NAVAL SERVICES, WAS INTENDED TO APPLY TO THOSE OF THE REGULAR SERVICES AND INCLUDES OFFICERS OF THE RESERVES ONLY WHEN IN ACTIVE DUTY STATUS AND WHOSE DUTIES ARE THEN CONTINUOUS, AND NOT TO THOSE OFFICERS OF THE RESERVES IN AN INACTIVE DUTY STATUS, HAVING NO DUTIES TO PERFORM, OR ONLY OCCASIONAL OR INTERMITTENT DUTIES OF SUCH SHORT DURATION AS NOT TO INTERFERE WITH CIVILIAN EMPLOYMENT. YOU ARE ADVISED, THEREFORE, THAT SECTION 201 OF THE ECONOMY ACT HAS NO APPLICATION TO THE OFFICER IN QUESTION WHILE IN AN INACTIVE DUTY STATUS AND THAT HE MAY BE PAID FROM AND AFTER AUGUST 15, 1932, FOR THE SATISFACTORY PERFORMANCE OF APPROPRIATE DUTIES AS A LIEUTENANT COMMANDER.