A-7404, JANUARY 28, 1925, 4 COMP. GEN. 636

A-7404: Jan 28, 1925

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REOPENING OF SETTLEMENTS WHERE A MEMBER OF THE NAVAL RESERVE FORCE IS GIVEN A PROVISIONAL APPOINTMENT IN A HIGHER GRADE OR RANK THAN THAT ASSIGNED ON FIRST ENROLLMENT (WHETHER PROVISIONAL OR CONFIRMED) SUCH PROVISIONAL APPOINTMENT IN THE HIGHER GRADE OR RANK DOES NOT ENTITLE THE MEMBER TO THE PAY OR ALLOWANCES OF SUCH HIGHER GRADE OR RANK. THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE AUTHORITY TO REOPEN A SETTLEMENT UPON THE PRESENTATION OF NEW AND MATERIAL FACTS. WOULD HAVE AFFECTED THE SETTLEMENT. SUCH ACCOUNTS AS ARE SETTLED AFTER THE CHANGE OF CONSTRUCTION OF THE LAW WILL BE SETTLED UNDER THE LAW AS CONSTITUTED AT THE TIME THE SETTLEMENT IS MADE. 1925: THERE IS FOR CONSIDERATION IN THE ACCOUNTS OF R.

A-7404, JANUARY 28, 1925, 4 COMP. GEN. 636

NAVAL RESERVE FORCE - PROVISIONAL APPOINTMENTS - PRACTICE, REOPENING OF SETTLEMENTS WHERE A MEMBER OF THE NAVAL RESERVE FORCE IS GIVEN A PROVISIONAL APPOINTMENT IN A HIGHER GRADE OR RANK THAN THAT ASSIGNED ON FIRST ENROLLMENT (WHETHER PROVISIONAL OR CONFIRMED) SUCH PROVISIONAL APPOINTMENT IN THE HIGHER GRADE OR RANK DOES NOT ENTITLE THE MEMBER TO THE PAY OR ALLOWANCES OF SUCH HIGHER GRADE OR RANK. THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE AUTHORITY TO REOPEN A SETTLEMENT UPON THE PRESENTATION OF NEW AND MATERIAL FACTS, WHICH, HAD THEY BEEN KNOWN AT THE TIME, WOULD HAVE AFFECTED THE SETTLEMENT. A CHANGE IN THE CONSTRUCTION OF THE LAW DOES NOT AUTHORIZE THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REOPEN SETTLED ACCOUNTS, BUT SUCH ACCOUNTS AS ARE SETTLED AFTER THE CHANGE OF CONSTRUCTION OF THE LAW WILL BE SETTLED UNDER THE LAW AS CONSTITUTED AT THE TIME THE SETTLEMENT IS MADE.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 28, 1925:

THERE IS FOR CONSIDERATION IN THE ACCOUNTS OF R. A. ASHTON, PAYMENTS MADE ON THE U.S.S. CHEYENNE TO ALBERT HOUSTON FOR THE PERIOD JULY 5 TO 19, 1924, AS A LIEUTENANT, UNITED STATES NAVAL RESERVE FORCE, CLASS 1, WHILE ON ACTIVE DUTY OTHER THAN FOR TRAINING. THE NAVAL HISTORY OF LIEUTENANT HOUSTON AS FURNISHED BY THE BUREAU OF NAVIGATION DECEMBER 30, 1924, AND JANUARY 8, 1925, IS AS FOLLOWS: 14 MAY, 1898 TO 14 JAN. 1899.--- ENSIGN, U.S. NAVY. 28 FEB., 1917.--- APPOINTED, CONFIRMED ENSIGN, CLASS 1, U.S.N.R.F., TO

RANK FROM FEBRUARY 24, 1917. 14 MAR., 1917.--- ACCEPTED AND EXECUTED OATH OF OFFICE.

7 MAR., 1917.--- GIVEN PROVISIONAL RANK OF LIEUTENANT (J.G.), CLASS 1. 15 DEC., 1917.--- ACCEPTED AND EXECUTED OATH OF OFFICE AS PROVISIONAL

LIEUTENANT (J.G.).

5 DEC., 1918.--- GIVEN PROVISIONAL RANK OF LIEUTENANT, CLASS 1, TO RANK

FROM JULY 1, 1918.

9 DEC., 1918.--- EXECUTED OATH AND ACCEPTANCE AS PROVISIONAL

LIEUTENANT, CLASS 1.

2 DEC., 1919.--- GIVEN CONFIRMED COMMISSION AS LIEUTENANT (J.G.), CLASS

1, TO RANK FROM JULY 3, 1919.

7 FEB., 1920.--- EXECUTED FAITH AND ACCEPTANCE.

* * * ON MARCH 13, 1921, ABOVE SUBJECT WAS HONORABLY DISCHARGED FROM HIS ENROLLMENT OF MARCH 14, 1917, REENROLLED MARCH 14, 1921, AS PROVISIONAL LIEUTENANT AND CONFIRMED LIEUTENANT (J.G.) UNITED STATES NAVAL RESERVE FORCE 1; PERFORMED ACTIVE DUTY FOR PURPOSE OF TRAINING FROM MAY 13, 1921, TO MAY 27, 1921; TEMPORARY ACTIVE DUTY FOR PURPOSES OTHER THAN TRAINING FROM AUGUST 19, 1922, TO SEPTEMBER 2, 1922, FROM JULY 28, 1923, TO AUGUST 11, 1923, AND FROM JULY 5, 1924, TO JULY 19, 1924; CONFIRMED COMMISSION AS LIEUTENANT (J.G.) UPON REENROLLMENT FORWARDED JANUARY 14, 1924; NOT CONFIRMED IN HIGHER RANK THAN LIEUTENANT, JUNIOR GRADE.

IT WILL BE OBSERVED THAT LIEUTENANT HOUSTON HAS THE CONFIRMED RANK OF LIEUTENANT (JUNIOR GRADE) AND THAT IN ADDITION HE HOLDS THE PROVISIONAL RANK OF LIEUTENANT. WHILE ON ACTIVE DUTY HE WAS PAID AS A LIEUTENANT. THE ACT OF AUGUST 29, 1916, 39 STAT. 587, PROVIDES IN PART AS FOLLOWS:

MEMBERS OF THE NAVAL RESERVE FORCE MAY BE ORDERED INTO ACTIVE SERVICE IN THE NAVY BY THE PRESIDENT IN TIME OF WAR OR WHEN, IN HIS OPINION, A NATIONAL EMERGENCY EXISTS.

MEMBERS OF THE NAVAL RESERVE FORCE APPOINTED TO COMMISSIONED GRADES SHALL BE COMMISSIONED BY THE PRESIDENT ALONE, AND MEMBERS OF SUCH FORCE APPOINTED TO WARRANT GRADES SHALL BE WARRANTED OR COMMISSIONED SHALL NOT BE DEPRIVED OF THE RETAINER PAY, ALLOWANCES, OR GRATUITIES TO WHICH THEY WOULD OTHERWISE BE ENTITLED. OFFICERS OF THE NAVAL RESERVE FORCE SHALL RANK WITH BUT AFTER OFFICERS OF CORRESPONDING RANK IN THE NAVY.

ENROLLMENT AND REENROLLMENT SHALL BE FOR TERMS OF FOUR YEARS, BUT MEMBERS SHALL IN TIME OF PEACE, WHEN NO PARTICULAR EMERGENCY EXISTS, BE DISCHARGED UPON THEIR OWN REQUEST UPON REIMBURSING THE GOVERNMENT FOR ANY CLOTHING GRATUITY THAT MAY HAVE BEEN FURNISHED THEM DURING THEIR CURRENT ENROLLMENT.

WHEN FIRST ENROLLED MEMBERS OF THE NAVAL RESERVE FORCE, EXCEPT THOSE IN THE FLEET NAVAL RESERVE, SHALL BE GIVEN A PROVISIONAL GRADE, RANK, OR RATING IN ACCORDANCE WITH THEIR QUALIFICATIONS DETERMINED BY EXAMINATION. THEY MAY THEREAFTER, UPON APPLICATION, BE ASSIGNED TO ACTIVE SERVICE IN THE NAVY FOR SUCH PERIODS OF INSTRUCTION AND TRAINING AS MAY ENABLE THEM TO QUALIFY FOR AND BE CONFIRMED IN SUCH GRADE, RANK OR RATING.

NO MEMBER SHALL BE CONFIRMED IN HIS PROVISIONAL GRADE, RANK, OR RATING UNTIL HE SHALL HAVE PERFORMED THE MINIMUM AMOUNT OF ACTIVE SERVICE REQUIRED FOR THE CLASS IN WHICH HE IS ENROLLED, NOR UNTIL HE HAS DULY QUALIFIED BY EXAMINATION FOR SUCH RANK OR RATING UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY.

NO PERSON SHALL BE APPOINTED OR COMMISSIONED AS AN OFFICER IN ANY RANK IN ANY CLASS OF THE NAVAL RESERVE FORCE, OR PROMOTED TO A HIGHER RANK THEREIN, UNLESS HE SHALL HAVE BEEN EXAMINED AND RECOMMENDED FOR SUCH APPOINTMENT, COMMISSION, OR PROMOTION BY A BOARD OF THREE NAVAL OFFICERS NOT BELOW THE RANK OF LIEUTENANT COMMANDER, NOR UNTIL HE SHALL HAVE BEEN FOUND PHYSICALLY QUALIFIED BY A BOARD OF MEDICAL OFFICERS TO PERFORM THE DUTIES REQUIRED IN TIME OF WAR, EXCEPT THAT FORMER OFFICERS AND MIDSHIPMEN OF THE NAVY, WHO SHALL HAVE LEFT THE SERVICE UNDER HONORABLE CONDITIONS AND WHO SHALL HAVE ENROLLED IN THE NAVAL RESERVE FORCE, MAY BE APPOINTED IN THE GRADE AND RANK LAST HELD BY THEM WITHOUT EXAMINATION OTHER THAN THE PHYSICAL EXAMINATION PRESCRIBED.

THE LEGALITY OF A PROVISIONAL APPOINTMENT OF AN OFFICER OF THE NAVAL RESERVE FORCE IN A HIGHER RANK OR GRADE WHO HAD BEEN ENROLLED IN A LOWER RANK OR GRADE, EITHER PROVISIONAL OR CONFIRMED, WAS PRESENTED TO THE COMPTROLLER OF THE TREASURY SOON AFTER THE NAVY BEGAN RECRUITING THAT SERVICE FOR THE WORLD WAR, AND IN DECISION OF SEPTEMBER 10, 1917, 24 COMP. DEC. 163, IT WAS SAID:

AS HIS PROMOTION TO THE HIGHER RANK OF LIEUTENANT COMMANDER IS BY THE STATUTE PROHIBITED FROM BECOMING OPERATIVE WITHOUT THE EXAMINATIONS, RECOMMENDATION, AND FINDING BY THE STATUTORY BOARDS IT PROVIDES FOR, AND AS HE HAS NOT AS YET BEEN EXAMINED THEREFOR, HIS PRESENT RETAINER RANK IS THAT OF LIEUTENANT, AND HIS CURRENT RETAINER PAY IS AT THE RATE OF ONE MONTH'S BASE PAY OF A LIEUTENANT, $200 PER ANNUM. * * *

THE SOUNDNESS OF THIS VIEW OR POSSIBLY ITS DESIRABILITY SEEMS TO HAVE BEEN QUESTIONED IN THE NAVY DEPARTMENT AND AN OPINION OF THE ATTORNEY GENERAL SEEMS TO HAVE BEEN REQUESTED BY THE THEN SECRETARY OF THE NAVY, SEPTEMBER 21, 1917, AND IN AN OPINION OF OCTOBER 20, 1917, 31 OP.ATTY.GEN. 173, THE ATTORNEY GENERAL REACHED THE CONCLUSION, QUOTING THE SYLLABUS:

UNDER THE PROVISIONS OF THE ACT CREATING A NAVAL RESERVE FORCE OF AUGUST 29, 1916, 39 STAT. 587, 588, WHEN AN ENROLLED MEMBER IN THE NAVAL RESERVE FORCE HAS BEEN GIVEN A PROVISIONAL RANK, HE MAY THEREAFTER, EITHER WITH OR WITHOUT BEING CONFIRMED IN SUCH PROVISIONAL RANK, BE GIVEN A HIGHER PROVISIONAL RANK WITHOUT EXAMINATION BY THE STATUTORY BOARD OF THREE NAVAL OFFICERS OF OR ABOVE THE RANK OF LIEUTENANT COMMANDER AND THE STATUTORY BOARD OF NAVAL SURGEONS.

THEREAFTER THE COMPTROLLER OF THE TREASURY IN DECISION OF MAY 6, 1918, 24 COMP. DEC. 660, 662, MODIFIED HIS DECISION OF SEPTEMBER 10, 1917, USING THE FOLLOWING LANGUAGE:

I AM ADVISED THAT, BECAUSE OF URGENT NEED FOR OFFICERS IN THE NAVY, AND PRESS OF THE TREMENDOUS VOLUME OF IMPORTANT WAR BUSINESS, OFFICERS OF THE NAVAL RESERVE FORCE HAVE BEEN CALLED TO ACTIVE SERVICE IN THE PROVISIONAL RANK AND GRADES AT WHICH THEY WERE ENROLLED WITHOUT EXAMINATION FOR PERMANENT APPOINTMENT, SUCH EXAMINATION AND APPOINTMENT BEING INDEFINITELY POSTPONED. IF, UPON TRIAL BY ACTIVE SERVICE, IT IS FOUND THAT THE PROVISIONAL RANK AND GRADE GIVEN TO ANY OFFICER IS TOO HIGH, OR TOO LOW, TO JUSTLY REPRESENT HIS VALUE TO THE SERVICE, THE NAVY DEPARTMENT CLAIMS AND HAS EXERCISED THE RIGHT TO LOWER OR RAISE THE RANK AND GRADE ACCORDINGLY, SUCH ACTION NOT BEING LOOKED UPON AS A PROMOTION OR REDUCTION, BUT AS A CORRECTION OF THE PROVISIONAL RANK AND GRADE GIVEN AT THE TIME OF ENROLLMENT.

I HAVE GRAVE DOUBT AS TO WHETHER THIS METHOD OF PROCEDURE CONFORMS TO THE REAL INTENT AND PURPOSE OF THE LAW, BUT IT IS NOT CLEARLY UNLAWFUL, AND I WILL ACCEPT IT AS AN EMERGENCY MEASURE JUSTIFIED BY WAR CONDITIONS. IT IS NOT AN ISOLATED CASE OF REFUSAL OR FAILURE TO EXAMINE AN OFFICER, BUT IS A MATTER OF GENERAL POLICY WHICH IS UNDERSTOOD TO HAVE THE SANCTION ORDER OF THE SECRETARY OF THE NAVY.

SEE ALSO 25 COMP. DEC. 188.

IT WILL THUS BE SEEN THAT THE COMPTROLLER OF THE TREASURY, AGAINST HIS BETTER JUDGMENT, RECOGNIZED PROVISIONAL APPOINTMENTS OF MEMBERS OF THE NAVAL RESERVE FORCE, WHO, BEFORE THE PROVISIONAL APPOINTMENT, WERE MEMBERS OF THE NAVAL RESERVE FORCE AND HAD EITHER A CONFIRMED OR PROVISIONAL STATUS; AND FURTHER THAT SECOND AND SUCCEEDING PROVISIONAL APPOINTMENTS WERE RECOGNIZED FOR PAY PURPOSES ALTHOUGH THERE WAS NONCOMPLIANCE WITH THE MANDATORY REQUIREMENTS OF THE STATUTE THAT NO PERSON SHOULD BE APPOINTED OR COMMISSIONED AN OFFICER IN ANY RANK IN ANY CLASS OF THE NAVAL RESERVE FORCE OR PROMOTED TO A HIGHER RANK THEREIN UNLESS HE SHALL HAVE BEEN EXAMINED AND RECOMMENDED FOR SUCH APPOINTMENT, COMMISSION, OR PROMOTION, BY THE BOARDS ESTABLISHED BY THE STATUTE.

IN THE CASE OF JOHN LAWLESS, JR. V. THE UNITED STATES, DECIDED FEBRUARY 4, 1924, NO. B 50, THE COURT OF CLAIMS REACHED THE CONCLUSION THAT SUCH PROVISIONAL APPOINTMENTS MADE WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE WERE ILLEGAL AND GAVE NO RIGHT TO PAY THEREUNDER. THE FACTS OF THE CASE SHOW THAT LAWLESS ENROLLED IN THE NAVAL RESERVE FORCE APRIL 30, 1917, AND THAT ON FEBRUARY 11, 1918, HE WAS GIVEN THE PROVISIONAL RANK OF ENSIGN; THAT ON MARCH 18, 1919, HE WAS GIVEN THE PROVISIONAL RANK OF LIEUTENANT (JUNIOR GRADE), AND THAT ON FEBRUARY 16, 1920, HE WAS GIVEN A CONFIRMED COMMISSION AS ENSIGN. THE COURT IN DISMISSING HIS PETITION FOR PAY OF LIEUTENANT (JUNIOR GRADE)FROM DATE OF RANK STATED IN HIS COMMISSION, CLAIMED UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892, SAID:

* * * THE PLAINTIFF'S COMMISSION AS ENSIGN WAS GIVEN IN FEBRUARY, 1920. HIS PROVISIONAL APPOINTMENT AS ENSIGN AND HIS PROVISIONAL RANK OF LIEUTENANT (JUNIOR GRADE) IN THE ABSENCE OF THE EXAMINATIONS REQUIRED THE ACT ABOVE MENTIONED ARE NOT SUFFICIENT TO BRING HIM WITHIN THE MEANING OF THE ACT OF MARCH 4, 1913, OR TO CONSTITUTE HIM AN OFFICER.

IN THE SUBSEQUENT CASE OF JOSHUA GARRISON, JR. V. THE UNITED STATES, DECIDED BY THE COURT OF CLAIMS OCTOBER 28, 1924, NO. A-116, THE COURT FOUND CLAIMANT ENTITLED TO A PORTION OF THE FLYING PAY CLAIMED, BUT AS IT APPEARED FROM THE RECORD THAT THE CLAIMANT HAD BEEN GIVEN THE PROVISIONAL RANK OF LIEUTENANT (JUNIOR GRADE) WHEN PHYSICALLY INCAPACITATED AS THE RESULT OF AN AIRPLANE ACCIDENT AND AT A TIME WHEN THE REQUIREMENTS OF THE STATUTE AS TO PHYSICAL EXAMINATION MANIFESTLY COULD NOT BE MET, THE COURT SAID THAT HIS APPOINTMENT AS SUCH LIEUTENANT (JUNIOR GRADE) "WAS CLEARLY OUTSIDE THE STATUTE AND UNWARRANTED UNDER THE LAWS," AND REMANDED THE CASE FOR A RESTATEMENT OF THE ACCOUNT TO ACCORD WITH ITS OPINION.

THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, ARE PLAIN; THEY CONTEMPLATE ENROLLMENT AND THE ASSIGNMENT OF A PROVISIONAL RANK, GRADES OR RATING (WITH EXCEPTIONS IN THE FLEET NAVAL RESERVE), AND ACTIVE DUTY FOR CONFIRMATION, WITH A PROHIBITION ON APPOINTMENT OR PROMOTION, EXCEPT AFTER THE EXAMINATIONS BY THE BOARDS ESTABLISHED BY LAW. THERE CAN BE NO SECOND PROVISIONAL RANK, GRADE, OR RATING AFTER THE FIRST PROVISIONAL GRADE IS ASSIGNED. ALSO SUBSEQUENT APPOINTMENTS OR PROMOTIONS MUST BE AS THE RESULT OF THE EXAMINATIONS PROVIDED AND BE IN A CONFIRMED RANK, GRADE, OR RATING, AND IN THE FLEET NAVAL RESERVE THERE CAN BE NO PROVISIONAL GRADE WHERE A FORMER OFFICER OR MIDSHIPMAN IS APPOINTED TO THE GRADE OR RANK LAST HELD BY HIM WITHOUT EXAMINATION OTHER THAN PHYSICAL.

AS TO PAYMENTS MADE UNDER THE DECISION OF MAY 6, 1918, THESE WERE MADE UNDER A CONSTRUCTION OF THE LAW BY THE OFFICER CHARGED BY LAW WITH THE DUTY OF RENDERING DECISIONS IN SUCH MATTERS AND THE STATUTE, ACT OF JULY 31, 1894, 28 STAT. 208, PROVIDES THAT SUCH "DECISION, WHEN RENDERED, SHALL GOVERN THE AUDITOR AND THE COMPTROLLER OF THE TREASURY IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.' IT HAS BEEN A LEGAL PRINCIPLE UNIFORMLY FOLLOWED BY THE ACCOUNTING OFFICERS AND THE COURTS THAT A CHANGE IN THE CONSTRUCTION OF A LAW DOES NOT REQUIRE OR JUSTIFY THE REOPENING OF SETTLED ACCOUNTS AND SUCH LEGAL PRINCIPLE PROPERLY APPLIES IN THE PRESENT MATTER; OBSERVING ALSO THAT PAYMENTS MADE WERE FOR THE SERVICES ACTUALLY RENDERED, SO THERE HAS RESULTED NO REAL LOSS BY THE UNITED STATES.

IT IS PROPER, HOWEVER, TO POINT OUT THAT IT IS OTHERWISE WHERE FACTS COME TO KNOWLEDGE WHICH WOULD HAVE MADE A DIFFERENCE IN THE SETTLEMENT. THAT IS, THE FORMER SETTLEMENT PROPERLY MAY BE CORRECTED WHERE NEW AND MATERIAL FACTS ARE PRESENTED WHICH HAD THEY BEEN KNOWN WHEN THE SETTLEMENT WAS MADE WOULD HAVE RESULTED IN A DIFFERENT SETTLEMENT. AN APPLICATION OF THIS LATTER RULE IS IN CONNECTION WITH CASES WHERE OFFICERS OBTAINED COMMUTATION OF QUARTERS, HEAT, AND LIGHT, ON ACCOUNT OF ALLEGED DEPENDENT MOTHERS ON THEIR PERSONAL CERTIFICATES, BUT FACTS ARE SUBSEQUENTLY SECURED SHOWING THE ABSENCE OF DEPENDENCY.

ANY CLAIMS THAT ARE NOW PENDING OR MAY HEREAFTER BE FILED BY FORMER OFFICERS OR WARRANT OFFICERS OF THE NAVAL RESERVE FORCE FOR ARREARS OF PAY OR ALLOWANCES WILL BE SETTLED IN ACCORD WITH THE CONSTRUCTION OF THE LAW HEREIN MADE.

THE ITEM HERE CONSIDERED WILL BE PASSED IN THE DISBURSING OFFICER'S ACCOUNTS IN ACCORD HEREWITH, IF OTHERWISE CORRECT.