B-117165, FEBRUARY 11, 1954, 33 COMP. GEN. 349

B-117165: Feb 11, 1954

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WHICH WERE IN EFFECT DURING THE PERIOD PRECEDING JANUARY 16. CLEARLY PROVIDED THAT NO INDIVIDUAL WAS TO BE TEMPORARILY PROMOTED UNLESS PHYSICALLY QUALIFIED FOR THE DUTIES OF THE HIGHER TEMPORARY GRADE. THEREFORE A NAVAL OFFICER WHOSE TEMPORARY APPOINTMENT TO A HIGHER GRADE PRIOR TO SUCH DATE WAS WITHHELD BECAUSE OFFICER WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION IS NOT ENTITLED TO PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE UNDER SECTION 5 OF THE ACT OF JUNE 30. 1954: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. THE RECORD INDICATES THAT LIEUTENANT COMMANDER PIEPER WAS TRANSFERRED ON JUNE 1. HE REPORTED FOR EXTENDED ACTIVE DUTY AND WAS RELEASED TO INACTIVE STATUS ON FEBRUARY 26.

B-117165, FEBRUARY 11, 1954, 33 COMP. GEN. 349

PAY - PROMOTIONS - TEMPORARY - APPOINTMENT LETTER ISSUED BUT WITHHELD BECAUSE OF OFFICER'S HOSPITALIZATION THE REGULATIONS CONTROLLING TEMPORARY PROMOTIONS OF NAVAL OFFICERS UNDER THE ACT OF JULY 24, 1941, WHICH WERE IN EFFECT DURING THE PERIOD PRECEDING JANUARY 16, 1946, CLEARLY PROVIDED THAT NO INDIVIDUAL WAS TO BE TEMPORARILY PROMOTED UNLESS PHYSICALLY QUALIFIED FOR THE DUTIES OF THE HIGHER TEMPORARY GRADE, AND THEREFORE A NAVAL OFFICER WHOSE TEMPORARY APPOINTMENT TO A HIGHER GRADE PRIOR TO SUCH DATE WAS WITHHELD BECAUSE OFFICER WAS FOUND NOT PHYSICALLY QUALIFIED FOR PROMOTION IS NOT ENTITLED TO PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE UNDER SECTION 5 OF THE ACT OF JUNE 30, 1942, FROM DATE OF APPOINTMENT LETTER ANNOUNCING SUCH TEMPORARY PROMOTION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO DUDLEY S. KNOX, FEBRUARY 11, 1954:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1953, REQUESTING A REVIEW OF SETTLEMENT DATED SEPTEMBER 8, 1953, WHICH DISALLOWED THE CLAIM OF LIEUTENANT COMMANDER ARTHUR ROBERT JOHN LEWIS PIEPER, UNITED STATES NAVAL RESERVE, RETIRED, FOR THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES OF A COMMANDER AND THOSE OF A LIEUTENANT COMMANDER FOR THE PERIOD SEPTEMBER 12, 1944, TO FEBRUARY 26, 1946.

THE RECORD INDICATES THAT LIEUTENANT COMMANDER PIEPER WAS TRANSFERRED ON JUNE 1, 1939, TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE AND THAT ON MAY 7, 1941, HE REPORTED FOR EXTENDED ACTIVE DUTY AND WAS RELEASED TO INACTIVE STATUS ON FEBRUARY 26, 1946. HIS CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES AS A COMMANDER, U.S. NAVAL RESERVE, FOR THE PERIOD SEPTEMBER 12, 1944, TO FEBRUARY 26, 1946, IS BASED ON THE ANNOUNCEMENT OF HIS APPOINTMENT FOR TEMPORARY SERVICE IN SUCH HIGHER GRADE ON SEPTEMBER 12, 1944, TO FEBRUARY 26, 1946, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350. THE SAID TEMPORARY "APPOINTMENT," NOT HAVING BEEN DECLINED BY LIEUTENANT COMMANDER PIEPER, IS CLAIMED TO ENTITLE HIM, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, 50 U.S.C. WAR APPENDIX, 810, TO THE PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE OF COMMANDER FROM THE DATE OF THE APPOINTMENT LETTER, SEPTEMBER 12, 1944.

SECTION 4 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350C (A), AUTHORIZES THE TEMPORARY APPOINTMENT OF COMMISSIONED OR WARRANT OFFICERS ON THE RETIRED LIST OF THE NAVY OR MARINE CORPS (INCLUDING RETIRED PERSONNEL OF THE NAVAL RESERVE AND MARINE CORPS RESERVE--- 34 U.S.C. 350J (A) WHILE ON ACTIVE DUTY, TO HIGHER RANKS OR GRADES ON THE RETIRED LIST AND FURTHER PROVIDES THAT ANY OFFICER SO APPOINTED SHALL, WHILE ON ACTIVE DUTY, BE ENTITLED TO THE SAME PAY AND ALLOWANCES AS OFFICERS OF LIKE GRADE OR RANK WITH EQUIVALENT SERVICE ON THE ACTIVE LIST. SECTION 5 OF THE ACT, 55 STAT. 604, 34 U.S.C. 350D, PROVIDES THAT THE TEMPORARY APPOINTMENTS UNDER THE AUTHORITY OF SAID ACT SHALL BE MADE IN SUCH NUMBERS AS THE PRESIDENT MAY DETERMINE THAT THE NEEDS OF THE SERVICE REQUIRE "AND IN SUCH MANNER AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE.'

REGULATIONS, APPROVED BY THE PRESIDENT, GOVERNING THE TEMPORARY APPOINTMENTS AUTHORIZED BY THE ACT OF JULY 24, 1941, PROVIDED THAT EXAMINATIONS OTHER THAN PHYSICAL WERE NOT REQUIRED IN MAKING SUCH TEMPORARY APPOINTMENTS AND PROMOTIONS; THAT NO INDIVIDUAL WAS TO BE TEMPORARILY APPOINTED OR TEMPORARILY PROMOTED UNLESS PHYSICALLY QUALIFIED TO PERFORM ALL THE DUTIES OF THE GRADE OR RANK FOR WHICH DESIGNATED; AND THAT NOTWITHSTANDING THE FOREGOING, SPECIAL SERVICE OFFICERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE AND PERSONNEL OF THE RETIRED LIST ON ACTIVE DUTY WOULD BE ELIGIBLE FOR TEMPORARY APPOINTMENT OR PROMOTION IF PHYSICALLY QUALIFIED FOR ACTIVE DUTY. ALSO, THE SAID REGULATIONS FURTHER PROVIDED THAT THERE SHOULD NOT BE EXCLUDED FROM TEMPORARY PROMOTION ANY OFFICER IN WHOSE CASE THE MEDICAL AUTHORITIES REPORTED THAT HIS PHYSICAL DISQUALIFICATION WAS OCCASIONED BY WOUNDS RECEIVED IN THE LINE OF DUTY AND THAT SUCH WOUNDS DID NOT INCAPACITATE HIM FOR OTHER DUTIES IN THE GRADE TO WHICH HE WAS TO BE PROMOTED.

ADDITIONAL AND SUPPLEMENTAL REGULATIONS PUBLISHED IN NAVY DEPARTMENT BULLETIN, LETTER NO. 42-1117, DATED DECEMBER 8, 1942, PROVIDED THAT PERSONNEL NOT PHYSICALLY QUALIFIED WERE NOT ELIGIBLE FOR TEMPORARY APPOINTMENT OR TEMPORARY PROMOTION UNDER THE ACT OF JULY 24, 1941, AND THAT PERSONNEL UNDER TREATMENT IN HOSPITALS OR ON SICK LEAVE WERE NOT CONSIDERED AS PHYSICALLY QUALIFIED. IT WAS FURTHER PROVIDED THAT COMMISSIONED OFFICERS, INCLUDING RETIRED COMMISSIONED OFFICERS ON ACTIVE DUTY, DESIGNATED FOR TEMPORARY PROMOTION WERE TO BE EXAMINED BY AT LEAST ONE MEDICAL OFFICER TO DETERMINE THEIR PHYSICAL FITNESS AND THAT DEPENDENT UPON A FINDING OF PHYSICAL FITNESS AND IF THE APPOINTEE WAS FURTHER CONSIDERED BY HIS COMMANDING OFFICER TO BE PROFESSIONALLY QUALIFIED THE APPOINTMENT COULD THEN BE DELIVERED. OTHERWISE, THE TEMPORARY PROMOTION WAS REQUIRED TO BE HELD IN ABEYANCE.

IN NAVY DEPARTMENT BULLETIN, LETTER NO. 43-1100, DATED MAY 20, 1943, SETTING FORTH THE APPROVED PROCEDURE FOR EFFECTING TEMPORARY APPOINTMENTS AND PROMOTIONS UNDER THE ACT OF JULY 24, 1941, THE COMMANDING OFFICER OF AN APPOINTEE WAS AUTHORIZED TO WITHHOLD DELIVERY OF THE TEMPORARY APPOINTMENT IF IN HIS OPINION THE APPOINTEE LACKED THE MENTAL, MORAL, OR PROFESSIONAL FITNESS TO PERFORM THE DUTIES OF THE GRADE OR RANK TO WHICH DESIGNATED AND, IF THE APPOINTEE WAS NOT PHYSICALLY QUALIFIED OR IF INVOLVED IN DISCIPLINARY ACTION THE COMMANDING OFFICER WAS DIRECTED TO WITHHOLD THE APPOINTMENT. SEE ALSO NAVY DEPARTMENT BULLETIN, LETTER NO. 43-1587, DATED OCTOBER 29, 1943, EXCLUDING OFFICERS ON SICK LEAVE OR UNDER TREATMENT IN HOSPITALS FROM SUCH TEMPORARY APPOINTMENTS OR PROMOTIONS. WITH RESPECT TO THE EFFECTIVE DATE OF ACTIVE DUTY PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK, IT WAS SPECIFICALLY PROVIDED IN THE LATTER REGULATIONS THAT " WHEN THE APPOINTMENT HAS BEEN DELIVERED AND NOT DECLINED, APPOINTEE IS, BY LAW, ENTITLED TO THE PAY AND ALLOWANCES OF THE RANK TO WHICH APPOINTED FROM THE DATE APPOINTMENT IS MADE BY THE PRESIDENT.' IN THE EVENT THE APPOINTEE WAS NOT PHYSICALLY QUALIFIED OR IF CONSIDERED AS NOT MENTALLY, MORALLY, OR PROFESSIONALLY FIT, THE COMMANDING OFFICER WAS REQUIRED TO WITHHOLD THE APPOINTMENT AND THE AUTHORITY THEREFOR WAS THEN TERMINATED.

THESE REGULATIONS, HAVING THE FORCE AND EFFECT OF LAW, CLEARLY PROVIDED THAT NO INDIVIDUAL WAS TO BE TEMPORARILY APPOINTED OR TEMPORARILY PROMOTED UNDER THE ACT OF JULY 24, 1941, UNLESS HE WAS PHYSICALLY QUALIFIED AND DEEMED TO BE MENTALLY, MORALLY, AND PROFESSIONALLY FIT FOR THE DUTIES OF THE HIGHER TEMPORARY GRADE OR RANK. CONSEQUENTLY, THE ISSUANCE OF A TEMPORARY APPOINTMENT OR TEMPORARY PROMOTION BY THE PRESIDENT DID NOT BECOME EFFECTIVE UNLESS THE APPOINTEE MET THE PHYSICAL AS WELL AS THE OTHER QUALIFICATIONS PRESCRIBED. HENCE, WHERE AN APPOINTEE COULD NOT MEET THE PRESCRIBED QUALIFICATIONS, THE TEMPORARY APPOINTMENT OR TEMPORARY PROMOTION WAS REQUIRED TO BE WITHHELD AND THE TEMPORARY APPOINTMENT OR TEMPORARY PROMOTION IN ANY SUCH CASE DID NOT BECOME LEGALLY EFFECTIVE.

THE DEPARTMENT OF THE NAVY REPORTS THAT LIEUTENANT COMMANDER PIEPER'S "TEMPORARY APPOINTMENT AS COMMANDER WAS WITHHELD, AS HE WAS FOUND TO BE NOT PHYSICALLY QUALIFIED FOR PROMOTION DUE TO HOSPITALIZATION.' ACCORDINGLY, IT WILL BE SEEN THAT SUCH APPOINTMENT WAS NOT LEGALLY CONSUMMATED AND HENCE, FOR PURPOSES OF PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE OR RANK, DOES NOT COME WITHIN THE PURVIEW OF THE SAID SECTION 5 OF THE ACT OF JUNE 30, 1942.

YOU REFER TO DECISION OF MARCH 13, 1950, B-92865, TO THE SECRETARY OF THE NAVY, IN THE CASE OF ENSIGN CASPER H. EBERT, WHERE IT WAS HELD THAT UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942,"1ENSIGN EBERT'S APPOINTMENT AS A LIEUTENANT (JUNIOR GRADE) FOR TEMPORARY SERVICE BECAME EFFECTIVE ON FEBRUARY 1, 1947, FOR ALL PURPOSES, ASSUMING THAT HE HAS NOT EXPRESSLY DECLINED SUCH APPOINTMENT, AND HE WAS ENTITLED TO THE PAY AND ALLOWANCES OF THAT RANK WHILE ON ACTIVE DUTY FROM AND AFTER FEBRUARY 1, 1947.' ENSIGN EBERT APPEARED BEFORE A NAVAL RETIRING BOARD ON JANUARY 9, 1947, AND THEN PROCEEDED TO HIS HOME ACCORDING TO ORDERS; AND WHILE AT HOME AWAITING FURTHER ORDERS, PENDING ACTION ON THE PROCEEDINGS OF THE NAVAL RETIRING BOARD, HE WAS APPOINTED ON FEBRUARY 1, 1947, BY THE PRESIDENT, TO THE RANK OF LIEUTENANT (JUNIOR GRADE) FOR TEMPORARY SERVICE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941. ENSIGN EBERT APPARENTLY DID NOT BECOME AWARE OF SUCH TEMPORARY APPOINTMENT UNTIL A LATER DATE AND IN THE MEANTIME ON AUGUST 1, 1947, HE WAS PLACED ON THE RETIRED LIST. THE CONCLUSION THAT ENSIGN EBERT WAS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE FROM AND AFTER FEBRUARY 1, 1947, THE DATE ON WHICH HIS APPOINTMENT WAS MADE BY THE PRESIDENT, WAS REQUIRED BY REASON OF THE FACT THAT THE PHYSICAL REQUIREMENTS FOR TEMPORARY PROMOTION THERETOFORE IN EFFECT HAD BEEN CANCELED BY THE SECRETARY OF THE NAVY ON JANUARY 16, 1946. SEE ALNAV 28, 1946, PUBLISHED IN NAVY DEPARTMENT BULLETIN, LETTER NO. 46-205, DATED JANUARY 16, 1946, WHICH IN PERTINENT PART PROVIDED THAT " PARAGRAPH 3 (D) AND PHYSICAL REQUIREMENTS FOR PROMOTION SET FORTH IN BUPERS CIRC. LTR. 222-43 ( NAVY DEPARTMENT BULLETIN, LETTER NO. 43-1587, DATED OCTOBER 29, 1943) ARE HEREBY CANCELED.'

HOWEVER, THE CANCELLATION ON JANUARY 16, 1946, OF THE PHYSICAL REQUIREMENTS FOR TEMPORARY PROMOTIONS MADE UNDER THE ACT OF JULY 24, 1941, WAS NOT RETROACTIVE IN ITS APPLICATION AND DOES NOT SET ASIDE THE PHYSICAL REQUIREMENTS FOR SUCH TEMPORARY PROMOTIONS WHICH WERE IN EFFECT IN THE MONTH OF SEPTEMBER 1944. ACCORDINGLY, THE DISALLOWANCE OF LIEUTENANT COMMANDER PIEPER'S CLAIM IN THE SETTLEMENT OF SEPTEMBER 8, 1953, WAS CORRECT AND IS SUSTAINED.