A-87140, JULY 16, 1937, 17 COMP. GEN. 40

A-87140: Jul 16, 1937

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PAY - AIDS - OFFICERS ASSIGNED TO DUTY WITH CHIEF OF NAVAL OPERATIONS A JUNIOR OFFICER ASSIGNED TO DUTY AS AIDE TO THE CHIEF OF NAVAL OPERATIONS IS NOT ENTITLED TO ADDITIONAL PAY BECAUSE OF SUCH ASSIGNMENT. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM LIEUTENANT W. INASMUCH AS THE REQUEST OF LIEUTENANT FRESEMAN IN THIS MATTER IS IN THE NATURE OF AN APPEAL TO YOU FROM THE ACTION OF THE OFFICER IN CHARGE. SUCH REQUEST IS FORWARDED FOR YOUR CONSIDERATION ACCORDINGLY. REACHES THE CONCLUSION THAT THE GROUND OF ACTION PRIMARILY WAS THAT AS TO THE GENERAL OFFICERS OF THE GENERAL STAFF CORPS OF THE ARMY. IT IS SPECIFICALLY PROVIDED (ACT OF FEB. 14. AS BY LATER STATUTES THE RANK AND MONEY ALLOWANCES OF THE CHIEF OF STAFF WERE EQUALIZED WITH THE RANK AND MONEY ALLOWANCES OF THE CHIEF OF NAVAL OPERATIONS.

A-87140, JULY 16, 1937, 17 COMP. GEN. 40

PAY - AIDS - OFFICERS ASSIGNED TO DUTY WITH CHIEF OF NAVAL OPERATIONS A JUNIOR OFFICER ASSIGNED TO DUTY AS AIDE TO THE CHIEF OF NAVAL OPERATIONS IS NOT ENTITLED TO ADDITIONAL PAY BECAUSE OF SUCH ASSIGNMENT. PRIOR DECISIONS AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 16, 1937:

BY YOUR DIRECTION THERE HAS BEEN RECEIVED LETTER OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, OF JUNE 19, 1937, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM LIEUTENANT W. L. FRESEMAN, U.S. NAVY, DATED MAY 28, 1937, WITH ACCOMPANYING INDORSEMENTS, WHEREIN THIS OFFICER POINTS OUT THAT THE OFFICER IN CHARGE, OFFICERS' ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, HAS REFUSED HIS REQUEST TO BE CREDITED WITH ADDITIONAL PAY OF $200 PER ANNUM AS AIDE TO A REAR ADMIRAL (UPPER HALF), IN VIEW OF WHICH REFUSAL OF HIS CLAIM AND OF THE REASONS SET FORTH IN HIS LETTER LIEUTENANT FRESEMAN REQUESTS THAT THE COMPTROLLER GENERAL OF THE UNITED STATES NOW AUTHORIZE THE DISBURSING OFFICER CARRYING HIS PAY ACCOUNTS TO CREDIT HIM WITH ADDITIONAL PAY OF $200 PER ANNUM AS AIDE TO A REAR ADMIRAL OF THE UPPER HALF FROM FEBRUARY 10, 1937.

INASMUCH AS THE REQUEST OF LIEUTENANT FRESEMAN IN THIS MATTER IS IN THE NATURE OF AN APPEAL TO YOU FROM THE ACTION OF THE OFFICER IN CHARGE, OFFICERS' ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, IN DENYING HIS CLAIM FOR ADDITIONAL PAY AS AIDE TO A REAR ADMIRAL (UPPER HALF), SUCH REQUEST IS FORWARDED FOR YOUR CONSIDERATION ACCORDINGLY, WITH REQUEST THAT THE NAVY DEPARTMENT BE ADVISED OF THE ACTION TAKEN IN THIS CASE.

LIEUTENANT FRESEMAN DISCUSSES AT SOME LENGTH THE DECISION OF THE FORMER COMPTROLLER GENERAL OF MARCH 14, 1931, A-34734, REACHES THE CONCLUSION THAT THE GROUND OF ACTION PRIMARILY WAS THAT AS TO THE GENERAL OFFICERS OF THE GENERAL STAFF CORPS OF THE ARMY, WHICH INCLUDES THE CHIEF OF STAFF OF THE ARMY, IT IS SPECIFICALLY PROVIDED (ACT OF FEB. 14, 1903, 32 STAT. 831), THAT THE ACTS OR PARTS OF ACTS AUTHORIZING AIDES-DE-CAMP AND MILITARY SECRETARIES SHALL NOT APPLY, AND AS BY LATER STATUTES THE RANK AND MONEY ALLOWANCES OF THE CHIEF OF STAFF WERE EQUALIZED WITH THE RANK AND MONEY ALLOWANCES OF THE CHIEF OF NAVAL OPERATIONS, THE SAME LIMITATIONS AS TO AIDES APPLY TO THE CHIEF OF NAVAL OPERATIONS, AND ARGUES THAT THIS IS UNSOUND, THAT THE CHIEF OF NAVAL OPERATIONS EXERCISES FUNCTIONS OF NAVAL COMMAND AND IS NOT IN THE SAME CATEGORY AS A GENERAL OFFICER ON DETACHED DUTY.

THE CONCLUSION OF THE DECISION WAS IN THE FOLLOWING LANGUAGE:

THE LAWS AUTHORIZING AIDES TO GENERAL OFFICERS OF THE ARMY ARE EXPRESSLY MADE INAPPLICABLE BY THE ACT OF FEBRUARY 14, 1903, 32 STAT. 831, TO GENERAL OFFICERS OF THE GENERAL STAFF CORPS, WHICH INCLUDES THE CHIEF OF STAFF, AND WHETHER THE ACT OF 1903 BE LOOKED UPON AS A RECOGNITION OF THE CONDITIONS NECESSARY TO ENTITLE A GENERAL OFFICER OF THE ARMY TO THE AIDES AUTHORIZED BY STATUTE OR AS A LEGISLATIVE INTERPRETATION OF THOSE STATUTES, IT MUST BE HELD THAT SUCH LAWS ARE ALSO INAPPLICABLE TO A REAR ADMIRAL WHILE SERVING AS CHIEF OF NAVAL OPERATIONS.

AN OFFICER ASSIGNED AS AIDE TO THE ADMIRAL OF THE NAVY WAS NOT ENTITLED TO PAY AS AIDE (11 COMP. DEC. 733; WOOD V. THE UNITED STATES, 44 CT.CLS. 611, AND 224 U.S. 132) AND IN 24 COMP. DEC. 190 IT WAS HELD THAT AN OFFICER OF THE NAVY DETAILED TO DUTY AS AIDE TO THE CHIEF OF NAVAL OPERATIONS WAS NOT ENTITLED WHILE SO SERVING TO THE ADDITIONAL PAY PROVIDED FOR AIDES TO REAR ADMIRALS, ALTHOUGH THE CHIEF OF NAVAL OPERATIONS HOLDS THE PERMANENT RANK OF REAR ADMIRAL; AND IN 21 COMP. DEC. 840 IT WAS HELD THAT AN OFFICER APPOINTED TO DUTY AS AIDE TO THE COMMANDER IN CHIEF OF THE PACIFIC FLEET, WITH THE RANK WHILE SO SERVING OF ADMIRAL, WAS NOT ENTITLED TO PAY AS AN AIDE TO AN ADMIRAL, THE VIEW BEING EXPRESSED THAT THE REAR ADMIRAL SERVING AS COMMANDER IN CHIEF OF THE FLEET BY VIRTUE OF THE STATUTE GIVING HIM THE RANK OF ADMIRAL WHILE SO SERVING, DID NOT BECOME INVESTED WITH THE OFFICE OF ADMIRAL BUT ONLY WITH THE RANK AND PAY THEREOF. THE APPLICATION OF THE WOOD CASE TO THE FACTS NEGATIVED PAYMENT BUT THE REASONING WAS AS STATED. IN A MANUSCRIPT DECISION OF OCTOBER 13, 1915, TO PAYMASTER BAKER, U.S.N., IN THE CASE OF LT. COMDR. F. L. OLIVER (NOTE THE RANK OF THE OFFICER), 75 MS. COMP. DEC. 175, IT WAS SAID, CITING 21 COMP. DEC. 840, THAT IT FOLLOWED THAT THE COMMANDER IN CHIEF OF THE FLEET NOT HAVING THE OFFICE OF ADMIRAL, RETAINED THE OFFICE OF REAR ADMIRAL OF THE UPPER NINE, AND HIS AIDES DULY AUTHORIZED AND APPOINTED ARE ENTITLED TO ADDITIONAL PAY. THE SOUNDNESS OF THE REASONING IN THESE TWO LATTER CASES MIGHT BE OPEN TO QUESTION IN VIEW OF 16 OP.ATTY.GEN. 551, THAT AN AIDE TO A GENERAL OF THE ARMY HAS PRECEDENCE OF HIS TEMPORARY RANK (INDEPENDENTLY OF THE OFFICE OF AIDE-DE-CAMP) WHILE SERVING UPON MILITARY BOARDS, COURTS OF INQUIRY, COURTS MARTIAL, AND THE LIKE. BUT, BE THAT AS IT MAY, THE CONCLUSION THERE ANNOUNCED WILL NOT NOW BE QUESTIONED.

IN VIEW OF THE HOLDING IN 24 COMP. DEC. 190; 21 ID. 840, AND THE CITED MANUSCRIPT DECISION OF OCTOBER 13, 1915, LIEUTENANT FRESEMAN QUOTES HIS ORDERS FROM THE BUREAU OF NAVIGATION OF FEBRUARY 10, 1937, AS FOLLOWS:

1. WHEN DIRECTED BY THE CHIEF OF NAVAL OPERATIONS ON OR ABOUT 10 FEBRUARY, 1937, YOU WILL REPORT TO ADMIRAL WILLIAM D. LEAHY, U.S.N., CHIEF OF NAVAL OPERATIONS, FOR DUTY AS HIS AIDE.'

IF THE CHIEF OF NAVAL OPERATIONS AS SUCH IS NOT ENTITLED TO AN AIDE AS HELD IN 24 COMP. DEC. 190, IT SEEMS HIGHLY ARTIFICIAL TO HOLD THAT IF THE ORDER DIRECTING THE OFFICER TO REPORT AS AIDE DIRECTS HIM TO REPORT TO THE CHIEF OF NAVAL OPERATIONS BY NAME INSTEAD OF BY TITLE, HE IS ENTITLED TO THE ADDITIONAL PAY AS AIDE. THE ACT OF MARCH 3, 1915, 38 STAT. 929, CREATED THE OFFICE OF CHIEF OF NAVAL OPERATIONS; PROVIDES THAT HE SHOULD BE AN OFFICER ON THE ACTIVE LIST OF THE NAVY; SHOULD BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FROM AMONG OFFICERS OF THE LINE OF THE NAVY NOT BELOW THE GRADE OF CAPTAIN FOR A PERIOD OF 4 YEARS, AND, UNDER THE DIRECTION OF THE SECRETARY OF THE NAVY, CHARGES HIM WITH THE OPERATIONS OF THE FLEET AND WITH THE PREPARATION AND READINESS OF PLANS FOR ITS USE IN WAR, AND FURTHER

DURING THE TEMPORARY ABSENCE OF THE SECRETARY AND THE ASSISTANT SECRETARY OF THE NAVY, THE CHIEF OF NAVAL OPERATIONS SHALL BE NEXT IN SUCCESSION TO ACT AS SECRETARY OF THE NAVY. (SEE, ALSO, ACT OF FEB. 11, 1927, 44 STAT. 1086.)

BY THE ACT OF AUGUST 29, 1916, 39 STAT. 558, IT IS PROVIDED:

HEREAFTER THE CHIEF OF NAVAL OPERATIONS, WHILE SO SERVING AS SUCH CHIEF OF NAVAL OPERATIONS, SHALL HAVE THE RANK AND TITLE OF ADMIRAL,TO TAKE RANK NEXT AFTER THE ADMIRAL OF THE NAVY * * *. ALL ORDERS ISSUED BY THE CHIEF OF NAVAL OPERATIONS IN PERFORMING THE DUTIES ASSIGNED HIM SHALL BE PERFORMED UNDER THE AUTHORITY OF THE SECRETARY OF THE NAVY, AND HIS ORDERS SHALL BE CONSIDERED AS EMANATING FROM THE SECRETARY, AND SHALL HAVE FULL FORCE AND EFFECT AS SUCH. TO ASSIST THE CHIEF OF NAVAL OPERATIONS IN PERFORMING THE DUTIES OF HIS OFFICE THERE SHALL BE ASSIGNED FOR THIS EXCLUSIVE DUTY NOT LESS THAN FIFTEEN OFFICERS OF AND ABOVE THE RANK OF LIEUTENANT COMMANDER OF THE NAVY OR MAJOR OF THE MARINE CORPS: PROVIDED, THAT IF AN OFFICER OF THE GRADE OF CAPTAIN BE APPOINTED CHIEF OF NAVAL OPERATIONS HE SHALL HAVE THE RANK AND TITLE OF ADMIRAL, AS ABOVE PROVIDED, WHILE HOLDING THAT POSITION: PROVIDED FURTHER, THAT SHOULD AN OFFICER, WHILE SERVING AS CHIEF OF NAVAL OPERATIONS, BE RETIRED FROM ACTIVE SERVICE, HE SHALL BE RETIRED WITH THE LINEAL RANK AND RETIRED PAY TO WHICH HE WOULD BE ENTITLED HAD HE NOT BEEN SERVING AS CHIEF OF NAVAL OPERATIONS.

THERE IS NO DOUBT THAT THE CHIEF OF NAVAL OPERATIONS FUNCTIONS AS AN OFFICIAL OF THE NAVY DEPARTMENT, ONE OF THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT AT WASHINGTON. SECTION 5 OF THE NATIONAL DEFENSE ACT, AS AMENDED JUNE 4, 1920, 41 STAT. 763, PROVIDES:

"* * * THE WAR DEPARTMENT GENERAL STAFF SHALL CONSIST OF THE CHIEF OF STAFF AND FOUR ASSISTANTS TO THE CHIEF OF STAFF SELECTED BY THE PRESIDENT FROM THE GENERAL OFFICERS OF THE LINE AND EIGHTY-EIGHT OTHER OFFICERS OF GRADES NOT BELOW THAT OF CAPTAIN. * * *

THE CHIEF OF STAFF SHALL PRESIDE OVER THE WAR DEPARTMENT GENERAL STAFF AND, UNDER THE DIRECTION OF THE PRESIDENT, OR OF THE SECRETARY OF WAR UNDER THE DIRECTION OF THE PRESIDENT, SHALL CAUSE TO BE MADE BY THE WAR DEPARTMENT GENERAL STAFF, THE NECESSARY PLANS FOR RECRUITING, ORGANIZING, SUPPLYING, EQUIPPING, MOBILIZING, TRAINING, AND DEMOBILIZING THE ARMY OF THE UNITED STATES AND FOR THE USE OF THE MILITARY FORCES FOR NATIONAL DEFENSE. * * *

IT WILL BE OBSERVED THERE IS A DECIDED SIMILARITY BETWEEN THE DUTIES OF THE CHIEF OF NAVAL OPERATIONS AND THE DUTIES OF THE CHIEF OF STAFF, AND BY THE ACT OF FEBRUARY 23, 1929, 45 STAT. 1255, IT WAS PROVIDED THAT THEY "SHALL BOTH TAKE RANK ABOVE ALL OTHER OFFICERS ON THE ACTIVE LIST OF THE ARMY AND NAVY.' IT IS NOT CLEAR WHY OFFICERS APPOINTED TO OFFICES IN THE WAR OR NAVY DEPARTMENT, ONE OF WHOM IS BY STATUTE AUTHORIZED TO ACT IN THE ABSENCE OF THE SECRETARY AND ASSISTANT SECRETARIES OF THE NAVY, AND THE OTHER ACTUALLY DOES SO ACT ON DESIGNATION BY THE PRESIDENT UNDER SECTION 1 OF THE ACT OF AUGUST 5, 1882, 22 STAT. 238 (5 U.S.C. 183), WOULD REQUIRE AIDS AS THAT TERM IS UNDERSTOOD IN NAVAL OR MILITARY MATTERS.

AIDES-DE-CAMP FOR GENERAL OFFICERS SEEM FIRST TO HAVE BEEN PROVIDED BY STATUTE IN THE ACT OF JULY 29, 1861, 12 STAT. 279, AN ACT TO INCREASE THE MILITARY ESTABLISHMENT OF THE UNITED STATES, SECTION 3 PROVIDING:

THAT THERE SHALL BE ADDED TO THE ARMY OF THE UNITED STATES THE FOLLOWING GENERAL OFFICERS, NAMELY: FOUR MAJOR-GENERALS, WITH THREE AIDES-DE-CAMP EACH, TO BE TAKEN FROM CAPTAINS AND LIEUTENANTS OF THE ARMY, AND SIX BRIGADIER-GENERALS, WITH TWO AIDES-DE-CAMP EACH, TO BE TAKEN FROM THE LIEUTENANTS OF THE ARMY.

SECTION 9 OF THE ACT OF JULY 20, 1866, 14 STAT. 333, EXTENDED THIS PROVISION TO ALL THE MAJOR GENERALS AND BRIGADIER GENERALS AUTHORIZED FOR THE MILITARY PEACE ESTABLISHMENT IN THAT ACT. PAY SEEMS FIRST TO HAVE BEEN PROVIDED FOR AIDES-DE-CAMP BY SECTION 24 OF THE ACT OF JULY 15, 1870, 16 STAT. 320, AS FOLLOWS:

* * * THE PAY OF AIDE-DE-CAMP TO MAJOR-GENERAL SHALL BE TWO HUNDRED DOLLARS PER ANNUM IN ADDITION TO PAY OF HIS RANK; THE PAY OF AIDE-DE CAMP TO BRIGADIER-GENERAL SHALL BE ONE HUNDRED AND FIFTY DOLLARS PER ANNUM IN ADDITION TO PAY OF HIS RANK; * * *.

THESE PROVISIONS WERE CARRIED INTO THE REVISED STATUTES AS SECTIONS 1098 AND 1261, RESPECTIVELY.

THERE WERE QUOTED IN THE DECISION OF MARCH 14, 1931, THE VARIOUS DEFINITIONS OF AID OR AIDE-DE-CAMP COLLECTED BY THE COURT OF CLAIMS IN ITS OPINION IN THE KNOX CASE, 52 CT.CLS. 22, AS AN OFFICER ON THE PERSONAL STAFF OF A GENERAL. IT IS TO BE NOTED THAT AIDES-DE-CAMP WERE FIRST PROVIDED FOR IN AN ACT TO INCREASE THE ARMY FOR THE CIVIL WAR, AND THAT ACT CONTEMPLATED SERVICES OF AN AID TO A GENERAL OFFICER ACTIVELY ENGAGED ON DUTIES WHERE HE REQUIRED THE ASSISTANCE OF THE AIDS IN TRANSMITTING HIS ORDERS, COMMANDS, INSTRUCTIONS, ETC. IT IS ALSO TO BE NOTED THAT THE COMPLETE FRENCH FORM IS USED IN THE ORIGINAL ACT. THE ENCYCLOPEDIA BRITANNICA DEFINES THE TERM AND GIVES A TRANSLATION OF THE FRENCH FORM AS FOLLOWS:

AIDE-DE-CAMP (FR. FOR CAMP-ASSISTANT OR, PERHAPS, FIELD ASSISTANT), AN OFFICER OF THE PERSONAL STAFF OF A GENERAL, WHO ACTS AS HIS CONFIDENTIAL SECRETARY IN ROUTINE MATTERS. * * * THE COMMON ABBREVIATION FOR AIDE-DE- CAMP IN THE BRITISH SERVICE IS "A.D.C., " AND IN THE UNITED STATES ID.'

THE TERM IN ITS ORIGIN SUGGESTS FIELD OPERATIONS AND, AS APPLIED TO THE NAVY, SIMILAR ACTIVITIES. IN PRACTICE AIDS HAVE BEEN RECOGNIZED AS APPROPRIATE FOR A GENERAL OFFICER IN COMMAND OF A DEPARTMENT OR CORPS AREA. THERE IS NO STATUTE PROVIDING FOR AIDES-DE-CAMP TO REAR ADMIRALS OF THE NAVY. THE AUTHORITY FOR SUCH ASSIGNMENT WITH ADDITIONAL PAY FOR THE PERFORMANCE OF SUCH DUTY IS FOUND IN THE ACT OF MARCH 3, 1899, 30 STAT. 1007, ASSIMILATING THE PAY AND ALLOWANCES OF OFFICERS OF THE LINE OF THE NAVY AND OF THE MEDICAL AND PAY CORPS TO THOSE OF OFFICERS OF CORRESPONDING RANK IN THE ARMY. THE ACT OF MAY 13, 1908, 35 STAT. 128, MERELY FIXED THE PAY OF NAVAL OFFICERS ASSIGNED TO DUTY AS AIDS TO REAR ADMIRALS OF THE LOWER AND UPPER HALVES ("REAR ADMIRALS EMBRACED IN THE NINE LOWER NUMBERS OF THAT GRADE" AND "ALL OTHER REAR ADMIRALS.'' IT IS THUS THE ARMY LAW THAT MUST BE LOOKED TO TO ASCERTAIN WHAT ASSIGNMENTS AS AIDS TO REAR ADMIRALS WILL ENTITLE TO THE ADDITIONAL PAY PROVIDED FOR AIDS.

THE PROVISION IN THE ACT OF 1903 INTENDED TO PREVENT AN INTERPRETATION THAT GENERAL OFFICERS ASSIGNED TO DUTY IN THE WAR DEPARTMENT GENERAL STAFF AT WASHINGTON AND A PART OF THE ADMINISTRATIVE MACHINERY OF THE WAR DEPARTMENT SHOULD BE SUPPLIED WITH AIDS ENTITLED TO PAY AS PROVIDED FOR AIDS SO ASSIGNED TO GENERAL OFFICERS IN COMMAND OF ARMY UNITS, WHERE THE SERVICES OF AIDS ARE REASONABLY REQUIRED AND FOR THAT REASON AUTHORIZED AND PROVIDED FOR BY STATUTE. BY THE SAME PROCESS OF REASONING I AM OF OPINION THE STATUTE PROVIDING FOR ADDITIONAL PAY FOR AIDS TO REAR ADMIRALS OF THE NAVY HAS NO APPLICATION TO AN OFFICER ASSIGNED AS AN AID TO A REAR ADMIRAL APPOINTED CHIEF OF NAVAL OPERATIONS AND FUNCTIONING AS A PART OF THE NAVY DEPARTMENT IN THE CITY OF WASHINGTON. I MAY ALSO REFER TO THE FACT THAT THE QUESTION OF ADDITIONAL PAY FOR JUNIOR OFFICERS ASSIGNED TO DUTY AS AID TO THE OFFICER SERVING AS CHIEF OF NAVAL OPERATIONS HAS BEEN FROM TIME TO TIME SUBMITTED FOR CONSIDERATION BY THE COMPTROLLER OF THE TREASURY OR THE COMPTROLLER GENERAL DURING THE PAST 20 YEARS OR MORE, AND THE VIEW HAS BEEN CONSISTENTLY HELD THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF ADDITIONAL PAY TO THE AIDS OF SUCH OFFICIAL. I WOULD HESITATE, THEREFORE, TO CHANGE THIS LONG-FOLLOWED INTERPRETATION IN THE ABSENCE OF THE MOST CLEAR AND COGENT EVIDENCE OF ERROR ON THE PART OF MY PREDECESSORS.