A-50736, OCTOBER 13, 1933, 13 COMP. GEN. 104

A-50736: Oct 13, 1933

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IS APPLICABLE TO OFFICERS OF THE NAVY WHOSE NAMES ARE BORNE ON PROMOTION LISTS. NOTWITHSTANDING THE OFFICERS ARE REQUIRED TO PASS A MENTAL AND PHYSICAL EXAMINATION AND MUST BE NOMINATED TO AND CONFIRMED BY THE SENATE. REQUESTING RECONSIDERATION OF THE DECISIONS OF THIS OFFICE IN WHICH IT WAS HELD THAT OFFICERS OF THE NAVY. ARE CARRIED ON A PROMOTION LIST CREATED BY STATUTE. WHO ARE ADVANCED TO THE GRADE OF REAR ADMIRAL. ARE AUTOMATICALLY PROMOTED WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30. THE REASON FOR THE REQUEST IS THE DECISION OF JUNE 30. IN WHICH IT WAS HELD THAT AN OFFICER OF THE ARMY PROMOTED UNDER THE LAWS APPLICABLE TO THE ARMY TO THE GRADE OF BRIGADIER GENERAL OR MAJOR GENERAL WAS NOT AUTOMATICALLY PROMOTED WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT.

A-50736, OCTOBER 13, 1933, 13 COMP. GEN. 104

ECONOMY ACT - PROMOTIONS - NAVY OFFICERS SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, IN EFFECT DURING THE FISCAL YEAR 1934, BY SECTION 4 OF THE ACT OF MARCH 20, 1933, 48 STAT. 13, IS APPLICABLE TO OFFICERS OF THE NAVY WHOSE NAMES ARE BORNE ON PROMOTION LISTS, NOTWITHSTANDING THE OFFICERS ARE REQUIRED TO PASS A MENTAL AND PHYSICAL EXAMINATION AND MUST BE NOMINATED TO AND CONFIRMED BY THE SENATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, OCTOBER 13, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 25, 1933, REQUESTING RECONSIDERATION OF THE DECISIONS OF THIS OFFICE IN WHICH IT WAS HELD THAT OFFICERS OF THE NAVY, WHO, AFTER RECOMMENDATION BY A SELECTION BOARD, ARE CARRIED ON A PROMOTION LIST CREATED BY STATUTE, AND WHO ARE ADVANCED TO THE GRADE OF REAR ADMIRAL, ARE AUTOMATICALLY PROMOTED WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, CONTINUED IN EFFECT DURING THE PRESENT FISCAL YEAR BY THE ACT OF MARCH 20, 1933, 48 STAT. 13. A-47835, APRIL 6, 1933, CASE OF REAR ADMIRAL A. W. JOHNSON, UNITED STATES NAVY, AND A-48479, JUNE 7, 1933, CASE OF REAR ADMIRAL R. E. BAKENHUS (CEC), UNITED STATES NAVY. THE REASON FOR THE REQUEST IS THE DECISION OF JUNE 30, 1933, A 49438, IN WHICH IT WAS HELD THAT AN OFFICER OF THE ARMY PROMOTED UNDER THE LAWS APPLICABLE TO THE ARMY TO THE GRADE OF BRIGADIER GENERAL OR MAJOR GENERAL WAS NOT AUTOMATICALLY PROMOTED WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT, AND THE DISPARITY THIS DECISION INTRODUCED BETWEEN THE PAY AND ALLOWANCES OF OFFICERS OF THESE GRADES IN THE TWO SERVICES.

YOU POINT OUT THAT MANY STEPS ARE NECESSARY BEFORE AN OFFICER, AFTER RECOMMENDATION BY A SELECTION BOARD, AND PLACED ON THE PROMOTION LISTS CREATED BY THE ACTS OF JUNE 10, 1926, 44 STAT. 717, AND MARCH 3, 1931, 46 STAT. 1482, IS ACTUALLY PROMOTED, REFERRING IN THIS CONNECTION TO THE FACT THAT THE ATTORNEY GENERAL HAS HELD THAT LEGISLATION WHICH SEEKS TO LIMIT THE PRESIDENT IN HIS APPOINTMENT OF OFFICERS TO A PARTICULAR PERSON CONSTITUTES AN INVASION OF THE CONSTITUTIONAL RIGHT AND DUTY OF THE PRESIDENT TO MAKE APPOINTMENTS AND THAT THE ACTS IN QUESTION DO NOT SO RESTRICT THE PRESIDENT. THE 10 REQUISITES LISTED BY YOU FOR APPOINTMENT ARE AS FOLLOWS:

(1) HE MUST BECOME ELIGIBLE FOR CONSIDERATION BY A SELECTION BOARD;

(2) HE MUST BE RECOMMENDED FOR ADVANCEMENT BY A SELECTION BOARD;

(3) THE REPORT OF THE SELECTION BOARD MUST BE APPROVED BY THE PRESIDENT, WHO MAY IN HIS DISCRETION WITHHOLD SUCH APPROVAL;

(4) HE MUST BE "SELECTED" BY THE PRESIDENT WHO MAY, IN HIS DISCRETION, WITHHOLD SUCH SELECTION.

(5) HE MUST BE EXAMINED BY A NAVAL EXAMINING BOARD AND A BOARD OF MEDICAL EXAMINERS TO DETERMINE HIS MENTAL, MORAL, PROFESSIONAL, AND PHYSICAL QUALIFICATIONS;

(6) HE MUST BE FOUND QUALIFIED FOR ADVANCEMENT BY BOTH OF SAID BOARDS;

(7) THE FINDINGS OF BOTH BOARDS MUST BE APPROVED BY THE PRESIDENT WHO MAY, IN HIS DISCRETION, WITHHOLD SUCH APPROVAL;

(8) HE MUST BE NOMINATED BY THE PRESIDENT WHO MAY, IN HIS DISCRETION,WITHHOLD SUCH OMINATION;

(9) HIS NOMINATION MUST BE CONFIRMED BY THE SENATE WHICH MAY, IN ITS DISCRETION, WITHHOLD SUCH CONFIRMATION;

(10) HE MUST RECEIVE A COMMISSION FROM THE PRESIDENT WHO MAY, IN HIS DISCRETION, WITHHOLD SUCH COMMISSION.

WHERE THERE HAS BEEN AN EVIDENT PURPOSE IN LEGISLATION TO SECURE UNIFORMITY OF PAY AND ALLOWANCES AMONG OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS, AS THERE HAS BEEN, IT IS, OF COURSE, DESIRABLE, UNLESS THE LAWS SO COMPEL, TO AVOID CREATING BY CONSTRUCTION OR INTERPRETATION DISPARITY NOT DESIGNED TO RESULT FROM THE LEGISLATION. BUT WHERE THE LEGISLATION IS OPEN TO NO OTHER REASONABLE CONSTRUCTION FAIRLY IN KEEPING WITH ITS DISCLOSED INTENT AND ITS ANNOUNCED PURPOSE, THE LAW MUST BE FOLLOWED EVEN THOUGH DISPARITY SHOULD RESULT. IN THORNLEY V. THE UNITED STATES, 113 U.S. 310, 315, THE SUPREME COURT USED THE FOLLOWING LANGUAGE IN A SIMILAR SITUATION:

WE ARE NOT CALLED ON TO EXPLAIN WHY CONGRESS SHOULD APPLY ONE RULE TO THE OFFICERS OF THE ARMY AND ANOTHER TO THE OFFICERS OF THE NAVY. IT IS SUFFICIENT TO SAY THAT IT HAS CLEARLY DONE SO. IF THE LAW IS UNEQUAL AND UNJUST, THE REMEDY IS WITH CONGRESS AND NOT WITH THE COURTS.

SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDES:

ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.

THE PROVISIONS OF THIS SECTION WERE CONTINUED IN FULL FORCE AND EFFECT DURING THE FISCAL YEAR 1934--- SECTION 4, ACT MARCH 20, 1933, 48 STAT. 13.

THIS SECTION IS A PORTION OF THE ECONOMY LEGISLATION DESIGNED TO BRING THE EXPENDITURES OF THE GOVERNMENT WITHIN ITS REVENUES. IT WAS DRAWN BY A SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES. THAT IT IS INCLUSIVE OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE IS SHOWN BY ITS INCLUSIVE PHRASE "CIVILIAN AND NONCIVILIAN OFFICERS AND EMPLOYEES" AND THAT IT IS DESIGNED TO BE APPLICABLE TO OFFICERS APPOINTED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE IS APPARENT FROM THE FACT THAT OFFICERS ARE SPECIFICALLY INCLUDED AS WELL AS EMPLOYEES. ESTIMATES WERE FURNISHED TO THE COMMITTEES HAVING THE MATTER IN CHARGE AS TO THE AMOUNT OF REDUCTION OF EXPENDITURES WHICH WOULD RESULT IN EACH OF THE SIX SERVICES. SEE PART II, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS OF THE UNITED STATES SENATE, SEVENTY SECOND CONGRESS, FIRST SESSION, ON H.R. 11267, PAGE 15. THAT THE SECTION WAS UNDERSTOOD BY THE NAVY DEPARTMENT TO BE APPLICABLE TO PROMOTIONS, SEE THE COMMENTS ON THE PROPOSAL BY THE SECRETARY OF THE NAVY IN THE CITED DOCUMENT, PAGE 55. IT WAS ACTED UPON IMMEDIATELY IN ALL OF THE SERVICES ON THE VIEW THAT IT PROHIBITED INCREASE OF COMPENSATION BY REASON OF PROMOTION IN DUE COURSE; THAT IS, IN THE ORDINARY ROUTINE OF FILLING VACANCIES IN ANY OF THE SIX SERVICES. THE ESTIMATES SUBMITTED TO THE COMMITTEES AS TO THE SAVINGS SEEM TO HAVE INCLUDED SUCH REDUCTIONS IN EXPENDITURES AS A PART OF THE SAVINGS AND THE COMMITTEES AND THE CONGRESS HAVE ACTED ON THAT VIEW BOTH IN THE ORIGINAL ENACTMENT AND IN ITS EXTENSION DURING THE PRESENT FISCAL YEAR. SEE PAGE 12349, VOLUME 75, PART II, CONGRESSIONAL RECORD, SEVENTY-SECOND CONGRESS, FIRST SESSION, WHERE AN ATTEMPT WAS MADE IN THE SENATE BY THE CHAIRMAN OF THE MILITARY AFFAIRS COMMITTEE OF THE SENATE TO AMEND THE SECTION BY STRIKING OUT THE WORDS "OR NONCIVILIAN.' SEE ALSO, IN CONNECTION WITH THE EXTENSION OF THE SECTION DURING THE FISCAL YEAR 1934, PAGE 507 ET SEQ., VOLUME 76, PART I, CONGRESSIONAL RECORD, SEVENTY-SECOND CONGRESS, SECOND SESSION, WHERE AN AMENDMENT WAS OFFERED IN THE COMMITTEE OF THE WHOLE OF THE HOUSE OF REPRESENTATIVES TO ELIMINATE THE SECTION FROM THE LAWS CONTINUED, AND SEE PAGE 4604, ET SEQ., VOLUME 76, PART V, CONGRESSIONAL RECORD, SEVENTY- SECOND CONGRESS, SECOND SESSION, WHERE, AFTER THE ELIMINATION OF THE SECTION IN THE SENATE, THE HOUSE OF REPRESENTATIVES VOTED TO INSIST UPON ITS DISAGREEMENT TO THE OMISSION OF THE SECTION. IN THE LIMITED DISCUSSION IN CONNECTION WITH THE EXTENSION OF THE SECTION DURING THE FISCAL YEAR 1934, THE SECTION WAS CONSIDERED TO BE APPLICABLE TO OFFICERS APPOINTED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. IT DOES NOT APPEAR THAT ANY QUESTION AS TO ITS APPLICATION ON PROMOTION OF OFFICERS BELOW THAT OF REAR ADMIRAL AND BRIGADIER GENERAL HAS BEEN SUBMITTED FOR THE CONSIDERATION OF THIS OFFICE, THE APPLICATION OF THE STATUTE TO SUCH A SITUATION APPARENTLY HAVING BEEN ACCEPTED WITHOUT QUESTION.

IT IS POSSIBLE BY TECHNICAL REFINEMENTS OF LANGUAGE IT CAN BE PLAUSIBLY ARGUED THAT AN OFFICER APPOINTED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE IS NOT AUTOMATICALLY PROMOTED. OF COURSE, IT IS ELEMENTARY THAT THE CONGRESS CANNOT RESTRICT THE PRESIDENT OR THE PRESIDENT AND THE SENATE IN THE PERFORMANCE OF THE CONSTITUTIONAL DUTY OF NOMINATING, CONFIRMING, AND APPOINTING OFFICERS UNDER THE CONSTITUTION. BUT THE STATUTES DESIGNED TO SECURE TO OFFICERS OF THE VARIOUS SERVICES PROMOTION IN DUE COURSE UPON QUALIFICATION HAVE BEEN FOSTERED BY THE OFFICERS OF THOSE SERVICES THEMSELVES TO SECURE ROUTINE AND REGULAR ADVANCEMENT FREED FROM POLITICAL INTERFERENCE. THE STATUTES HAVE BEEN ACCEPTED AND ACTED UPON BY THE CHIEF EXECUTIVES FOR MANY YEARS ON THAT BASIS. THE INFREQUENT EXCEPTION TO THE RULE CALLED TO ATTENTION IN YOUR LETTER WOULD PROVE THE FACT THAT THESE STATUTES DO SECURE TO OFFICERS AUTOMATIC ADVANCEMENT UPON COMPLIANCE WITH OTHER REQUIREMENTS OF LAW. EVERY OFFICER WHOSE NAME IS NEAR THE TOP OF THE LIST OF ELIGIBLES KNOWS WITH PRACTICAL CERTAINTY WHEN HE WILL BE ADVANCED BY REASON OF THE RETIREMENT OF OFFICERS IN THE HIGHER GRADE, AND CERTAINLY, COLLOQUIALLY, SUCH ADVANCEMENTS ARE AUTOMATIC. ADVANCEMENTS OR PROMOTIONS OF THIS CHARACTER ARE CONTEMPLATED BY THE SECTION.

IT IS TRUE YOU ASK RECONSIDERATION OF THE DECISIONS ONLY INSOFAR AS THEY AFFECT THE ADVANCEMENT OF OFFICERS FROM THE GRADE OF CAPTAIN TO REAR ADMIRAL, BUT THE ADVANCEMENT TO THAT GRADE IS UNDER THE SAME LIMITATIONS OF LAW AND IS NO DIFFERENT THAN ADVANCEMENTS TO THE GRADE OF COMMANDER AND CAPTAIN; AND IT WOULD SEEM THAT THE STATUTES CONTEMPLATE ADVANCEMENT OF OFFICERS FROM THE RANK OF LIEUTENANT (JUNIOR GRADE) AND LIEUTENANT TO BE BY SENIORITY. IF THE ADVANCEMENT OF AN OFFICER OF THE GRADE OF CAPTAIN TO THAT OF REAR ADMIRAL IS NOT AUTOMATIC IN THE SENSE USED IN SECTION 201, NEITHER IS THE ADVANCEMENT OF AN OFFICER OF THE GRADE OF LIEUTENANT COMMANDER TO COMMANDER, NOR THE ADVANCEMENT OF AN OFFICER FROM THE GRADE OF LIEUTENANT (JUNIOR GRADE) TO THAT OF LIEUTENANT. UNDER ARMY LAWS, REGULARLY, THE PRESIDENT MAKES HIS SELECTIONS FOR APPOINTMENTS TO THE GRADE OF BRIGADIER GENERAL AND MAJOR GENERAL FROM THE ELIGIBLE CLASS, AND UNTIL THE SELECTIONS HAVE BEEN ANNOUNCED, IT IS NOT KNOWN WHAT OFFICERS OF THE ELIGIBLE CLASS WILL BE SO PROMOTED. THE SELECTION IN SUCH A CASE IS NO DIFFERENT THAN THE SELECTION OF A CHIEF OF BUREAU IN THE NAVY. IT WAS HELD IN A-45572, NOVEMBER 25, 1932, THAT AN APPOINTMENT OF A BUREAU CHIEF IN THE NAVY WAS NOT AN AUTOMATIC PROMOTION WITHIN THE MEANING OF SECTION 201 OF THE ECONOMY ACT.

THE CONSTRUCTION OF THE STATUTE OF WHICH YOU REQUEST FURTHER CONSIDERATION IS IN THE VIEW OF THIS OFFICE, IN KEEPING WITH ITS PURPOSE AND INTENT, FAIRLY WITHIN ITS LANGUAGE AND IN CONSONANCE WITH THE REPRESENTATIONS MADE TO THE COMMITTEES OF THE CONGRESS AS TO ITS EFFECT. IT IS NOT POSSIBLE TO MAKE A DIFFERENT RULE UNDER THE LANGUAGE OF THE STATUTE FOR OFFICERS PROMOTED TO THE GRADE OF REAR ADMIRAL THAN FOR OFFICERS PROMOTED FROM THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND ABOVE TO THE NEXT HIGHER GRADE. I AM, THEREFORE, CONSTRAINED TO ADHERE TO THE DECISIONS EVEN THOUGH A DISPARITY NECESSARILY WILL RESULT IN THE PAY AND ALLOWANCES ACCRUING TO OFFICERS PROMOTED SINCE JUNE 30, 1932, TO THE GRADE OF REAR ADMIRAL AND THOSE ACCRUING TO OFFICERS OF THE ARMY OR MARINE CORPS PROMOTED TO THE GRADE OF BRIGADIER OR MAJOR GENERAL SINCE THAT DATE.

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