A-85255, MAY 10, 1937, 16 COMP. GEN. 988

A-85255: May 10, 1937

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS ENTITLED ON AND AFTER THAT DATE TO THE PAY OF A CAPTAIN. BY WHICH YOU WERE ALLOWED THE SUM OF $1.28. FOR THE REASON THAT NOT HAVING COMPLETED 10 YEARS' COMMISSIONED SERVICE IN THE REGULAR ARMY YOU WERE NOT ENTITLED TO THE PAY OF A CAPTAIN DURING THAT PERIOD. 1935 YOU WERE APPOINTED A CAPTAIN OF INFANTRY BY THE PRESIDENT AND THE APPOINTMENT CONFIRMED BY THE SENATE ON THE SAME DAY. YOU ARE ENTITLED TO THE DIFFERENCE IN PAY BETWEEN THAT OF FIRST LIEUTENANT AND CAPTAIN. WHO SHALL HAVE COMPLETED THE SAID RESPECTIVE PERIODS OF SERVICE ON OR BEFORE THE EFFECTIVE DATE OF THIS ACT SHALL BE SO PROMOTED AS OF SAID DATE: PROVIDED. INSOFAR AS THEY ARE INCONSISTENT WITH OR IN CONFLICT WITH ANY OF THE PROVISIONS HEREOF.

A-85255, MAY 10, 1937, 16 COMP. GEN. 988

PAY - LONGEVITY - ARMY OFFICER PROMOTED TO CAPTAIN - ACT OF JULY 31, 1935 A FIRST LIEUTENANT IN THE REGULAR ARMY, ORIGINALLY APPOINTED AS SECOND LIEUTENANT, WHO HAD COMPLETED TEN YEARS' COMMISSIONED SERVICE FOR PROMOTION PURPOSES UNDER SECTION 24 (A) OF THE ACT OF JUNE 4, 1920, 41 STAT. 771, PRIOR TO AUGUST 1, 1935, THE EFFECTIVE DATE OF THE ACT OF JULY 31, 1935, 49 STAT. 506, AND HAD ALSO COMPLETED OVER NINE BUT LESS THAN 10 YEARS' SERVICE FOR PAY PURPOSES ON AUGUST 1, 1935, IS ENTITLED ON AND AFTER THAT DATE TO THE PAY OF A CAPTAIN, THIRD PAY PERIOD, WITH OVER NINE YEARS' SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO CAPT. F. L. LICHTENFELS, UNITED STATES ARMY, MAY 10, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 2, 1937, REQUESTING A REVIEW OF SETTLEMENT NO. 0397497 (CLAIM NO. 0389168) DATED APRIL 9, 1936, BY WHICH YOU WERE ALLOWED THE SUM OF $1.28, REPRESENTING THE DIFFERENCE IN PAY BETWEEN THAT OF A FIRST LIEUTENANT OF UNDER AND OVER 10 YEARS SERVICE FOR AUGUST 28, 1935, AND WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THAT OF A FIRST LIEUTENANT AND CAPTAIN FROM AUGUST 1 TO 27, 1935, INCLUSIVE, FOR THE REASON THAT NOT HAVING COMPLETED 10 YEARS' COMMISSIONED SERVICE IN THE REGULAR ARMY YOU WERE NOT ENTITLED TO THE PAY OF A CAPTAIN DURING THAT PERIOD.

YOU STATE THAT ON AUGUST 1, 1935 YOU WERE APPOINTED A CAPTAIN OF INFANTRY BY THE PRESIDENT AND THE APPOINTMENT CONFIRMED BY THE SENATE ON THE SAME DAY, AND IT SEEMS TO BE YOUR OPINION THAT BY REASON OF THE PROVISIONS OF THE ACT OF JULY 31, 1935, 49 STAT. 506, YOU ARE ENTITLED TO THE DIFFERENCE IN PAY BETWEEN THAT OF FIRST LIEUTENANT AND CAPTAIN, OF OVER 9 YEARS' COMMISSIONED SERVICE, FROM AUGUST 1 TO 27, 1935, INCLUSIVE.

THE OFFICIAL ARMY REGISTER, 1936, PAGE 417, SHOWS YOUR SERVICE RECORD AS FOLLOWS:

2 LT.INF. O.R.C. 10 JUNE 25; ACCEPTED 10 JUNE 25; ACTIVE DUTY 21 JULY 25 TO 19 AUG. 25--- 2 LT. OF INF. 30 JUNE 25; ACCEPTED 27 SEPT. 25; 1 LT. 1 SEPT. 31; CAPT. 1 AUG. 35.

THE ACT OF JULY 31, 1935, 49 STAT. 505-507, PROVIDES:

* * * THAT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO CHANGE THE RESPECTIVE RELATIVE POSITIONS HELD BY OFFICERS ON THE PROMOTION LIST, HEREINBEFORE PRESCRIBED, NOR THE METHOD OF DETERMINING THE POSITION OF OFFICERS ON THAT LIST AS PRESCRIBED BY THE ACT OF JUNE 4, 1920, AS AMENDED, EXCEPT AS HEREINBEFORE PROVIDED.

SEC. 3. * * *

* * * PROMOTION-LIST SECOND LIEUTENANTS AND FIRST LIEUTENANTS SHALL BE PROMOTED TO THE RESPECTIVE GRADES OF FIRST LIEUTENANT AND CAPTAIN IMMEDIATELY UPON COMPLETING RESPECTIVELY THREE YEARS' AND TEN YEARS' COMMISSIONED SERVICE IN THE REGULAR ARMY, BUT NOT OTHERWISE; AND ALL SUCH OFFICERS IN THE SAID GRADES OF SECOND LIEUTENANT AND FIRST LIEUTENANT, RESPECTIVELY, WHO SHALL HAVE COMPLETED THE SAID RESPECTIVE PERIODS OF SERVICE ON OR BEFORE THE EFFECTIVE DATE OF THIS ACT SHALL BE SO PROMOTED AS OF SAID DATE: PROVIDED, THAT NO OFFICER SHALL BE PROMOTED, UNDER THE PROVISIONS OF THIS PARAGRAPH, IN ADVANCE OF ANY OFFICER IN THE SAME GRADE WHOSE NAME APPEARS ABOVE HIS ON THE PROMOTION LIST.

SEC. 8. THIS ACT SHALL BE EFFECTIVE THE FIRST OF THE MONTH FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, AND ALL LAWS AND PARTS OF LAWS,INSOFAR AS THEY ARE INCONSISTENT WITH OR IN CONFLICT WITH ANY OF THE PROVISIONS HEREOF, ARE HEREBY REPEALED AS OF THAT DATE.

SECTION 24A, OF THE ACT OF JUNE 4, 1920, 41 STAT. 771, PROVIDES AS FOLLOWS:

* * * IN COMPUTATIONS FOR THE PURPOSE OF DETERMINING THE POSITION OF OFFICERS ON THE PROMOTION LIST THERE SHALL BE CREDITED ALL ACTIVE COMMISSIONED SERVICE IN THE ARMY PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT, WHETHER IN THE REGULAR, PROVISIONAL, OR TEMPORARY FORCES, EXCEPT SERVICE UNDER A RESERVE COMMISSION WHILE IN ATTENDANCE AT A SCHOOL OR CAMP FOR THE TRAINING OF CANDIDATES FOR COMMISSION; ALSO COMMISSIONED SERVICE IN THE NATIONAL GUARD WHILE IN ACTIVE SERVICE SINCE APRIL 6, 1917, UNDER A CALL BY THE PRESIDENT AND ALSO COMMISSIONED SERVICE IN THE MARINE CORPS WHEN DETACHED FOR SERVICE WITH THE ARMY BY ORDER OF THE PRESIDENT. IN DETERMINING POSITION ON THE PROMOTION LIST, AND RELATIVE RANK, COMMISSIONED SERVICE IN THE REGULAR ARMY OR THE PHILIPPINE SCOUTS, IF CONTINUOUS TO THE PRESENT TIME, SHALL BE COUNTED AS HAVING BEGUN ON THE DATE OF ORIGINAL COMMISSION. * * *

THE RULE AS SET FORTH IN THE LAST SENTENCE OF THE ABOVE-QUOTED PORTION OF THE ACT OF JUNE 4, 1920, IS THAT IN DETERMINING POSITION ON THE PROMOTION LIST, AND RELATIVE RANK, COMMISSIONED SERVICE IN THE REGULAR ARMY OR THE PHILIPPINE SCOUTS, IF CONTINUOUS SHALL BE COUNTED AS HAVING BEGUN ON THE DATE OF ORIGINAL COMMISSION, AND SECTION 1 OF THE ACT OF JULY 31, 1935, PROVIDES THAT NOTHING IN THAT ACT SHALL BE SO CONSTRUED AS TO CHANGE THE RESPECTIVE RELATIVE POSITIONS HELD BY OFFICERS ON THE PROMOTION LIST, NOR THE METHOD OF DETERMINING THE POSITION OF OFFICERS ON THAT LIST AS PRESCRIBED BY THE ACT OF JUNE 4, 1920, AS AMENDED. SECTION 3 OF THE ACT OF JULY 31, 1935, PROVIDES THAT PROMOTION LIST FIRST LIEUTENANTS SHALL BE PROMOTED TO THE GRADE OF CAPTAIN UPON COMPLETION OF 10 YEARS' COMMISSIONED SERVICE IN THE REGULAR ARMY, PROVIDED THAT IF SUCH SERVICE WAS COMPLETED PRIOR TO THE EFFECTIVE DATE OF THE ACT, THEN THE PROMOTION SHOULD BE AS OF THE EFFECTIVE DATE OF THE ACT.

YOU WERE ORIGINALLY APPOINTED JUNE 30, 1925, IN THE GRADE OF SECOND LIEUTENANT, AND, HAVING BEEN CONTINUOUSLY IN THE SERVICE FROM DATE OF ACCEPTANCE OF THAT APPOINTMENT YOU COMPLETED, ACCORDING TO THE CITED STATUTES, 10 YEARS' COMMISSIONED SERVICE FOR PROMOTION PURPOSES (BUT NOT FOR PAY FOR LENGTH OF SERVICE) ON JUNE 29, 1935. UNDER THE PROVISIONS OF THE ACT OF JULY 31, 1935, YOU BECAME ENTITLED TO AND RECEIVED YOUR PROMOTION TO THE GRADE OF CAPTAIN ON AUGUST 1, 1935, THE EFFECTIVE DATE OF THE ACT. ACCORDING TO YOUR SERVICE RECORD YOU HAD HAD ACTIVE COMMISSIONED SERVICE AS A RESERVE OFFICER FROM JULY 21, 1925, TO AUGUST 19, 1925, INCLUSIVE, 29 DAYS, AND AS A COMMISSIONED OFFICER OF THE REGULAR ARMY FROM SEPTEMBER 27, 1925, DATE OF ACCEPTANCE OF YOUR COMMISSION AS A SECOND LIEUTENANT TO JULY 31, 1935, AMOUNTING TO 9 YEARS, 10 MONTHS, 5 DAYS, A TOTAL OF 9 YEARS, 11 MONTHS, 4 DAYS FOR PAY PURPOSES, ON AUGUST 1, 1935, AND YOU WERE ENTITLED TO RECEIVE ON AND AFTER THAT DATE THE PAY OF A CAPTAIN, THIRD PAY PERIOD, WITH OVER 9 YEARS' SERVICE, AMOUNTING TO $230 PER MONTH. THE SETTLEMENT OF APRIL 9, 1936, WILL BE REVISED ACCORDINGLY.

WITH RESPECT TO WHETHER, WERE THE LAW OTHERWISE, AN APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, PRIOR TO THE STATUTORY ELIGIBILITY OF THE OFFICER FOR SUCH APPOINTMENT WOULD BE LEGAL, REFERENCE MAY BE MADE TO PECK V. UNITED STATES, 39 CT.CLS. 125. ..END :