B-11720, SEPTEMBER 3, 1940, 20 COMP. GEN. 121

B-11720, SEPTEMBER 3, 1940, 20 COMP. GEN. 121

PAY - NAVY ENLISTED MAN APPOINTED MIDSHIPMAN - SERVICE REQUIREMENTS ACTIVE SERVICE AS A MEMBER OF THE NAVAL RESERVE MANY NOT BE INCLUDED IN THE 9 MONTHS' PRIOR SERVICE "ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION" WHICH THE NAVAL APPROPRIATION ACT OF 1941 REQUIRES OF A NAVY ENLISTED MAN APPOINTED A MIDSHIPMAN AS A CONDITION PRECEDENT TO PAYING HIM FROM THE APPROPRIATION FOR MIDSHIPMEN'S PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 3, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 8, 1940, THE LAST PARAGRAPH OF WHICH IS AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER THE CURRENT APPROPRIATION FOR THE PAY OF MIDSHIPMEN MAY BE CONSIDERED LEGALLY AVAILABLE FOR THE PAY OF AN ENLISTED MAN OF THE NAVY APPOINTED A MIDSHIPMAN AND IN WHOSE CASE PRIOR ACTIVE SERVICE AS A MEMBER OF THE NAVAL RESERVE WAS INCLUDED IN COMPUTING THE REQUISITE NINE MONTHS' SERVICE ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION.

PROVISOS CONTAINED UNDER " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL" IN THE ANNUAL APPROPRIATION ACT FOR THE NAVY FOR THE FISCAL YEAR 1941, APPROVED JUNE 11, 1940, PUBLIC, NO. 588, 54 STAT. 265, AT PAGE 277, ARE AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION SHALL BE AVAILABLE FOR THE PAY OF ANY MIDSHIPMEN WHOSE ADMISSION SUBSEQUENT TO JANUARY 30, 1940, WOULD RESULT IN EXCEEDING AT ANY TIME AN ALLOWANCE OF FOUR MIDSHIPMEN FOR EACH SENATOR, REPRESENTATIVE, AND DELEGATE IN CONGRESS; OF ONE MIDSHIPMEN FOR PUERTO RICO, A NATIVE OF THE ISLAND, APPOINTED ON NOMINATION OF THE GOVERNOR AND OF FOUR MIDSHIPMEN FROM PUERTO RICO APPOINTED ON NOMINATION OF THE RESIDENT COMMISSIONER; AND OF FOUR MIDSHIPMEN FROM THE DISTRICT OF COLUMBIA: PROVIDED FURTHER,THAT NOTHING HEREIN SHALL BE CONSTRUED TO REPEAL OR MODIFY IN ANY WAY EXISTING LAWS RELATIVE TO THE APPOINTMENT OF MIDSHIPMEN AT LARGE, FROM THE ENLISTED PERSONNEL OF THE NAVAL SERVICE, FROM THE NAVAL RESERVE, FROM HONOR GRADUATES OF MILITARY SCHOOLS OR NAVAL RESERVE OFFICERS' TRAINING CORPS: PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION SHALL BE AVAILABLE FOR THE PAY OF ANY MIDSHIPMAN APPOINTED FROM ENLISTED MEN OF THE NAVY WHO HAS NOT SERVED ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION FOR AT LEAST NINE MONTHS PRIOR TO ADMISSION TO THE NAVAL ACADEMY.

SECTION 1042 OF TITLE 34, U.S.C. CITING THE LAWS FROM WHICH THE SECTION IS TAKEN, PROVIDES:

THE APPOINTMENTS ALLOWED FROM ENLISTED MEN OF THE NAVY SHALL BE MADE BY THE SECRETARY OF THE NAVY FROM ENLISTED MEN OF THE NAVY WHO ARE CITIZENS OF THE UNITED STATES AND WHO SHALL HAVE SERVED NOT LESS THAN ONE YEAR AS ENLISTED MEN ON THE DATE OF ENTRANCE. SUCH APPOINTMENTS SHALL BE MADE IN THE ORDER OF MERIT FROM CANDIDATES WHO HAVE, IN COMPETITION WITH EACH OTHER, PASSED THE MENTAL EXAMINATION NOW OR HEREAFTER REQUIRED BY LAW FOR ENTRANCE TO THE NAVAL ACADEMY, AND WHO PASSED THE PHYSICAL EXAMINATION BEFORE ENTRANCE UNDER EXISTING LAWS ( MAR. 4, 1917, C. 180, 39 STAT. 1182; MAY 14, 1918, C. 73, 40 STAT. 550; FEB. 28, 1925, C. 374, SECTION 8, 43 STAT. 1082).

THE ACT OF JULY 11, 1919, 41 STAT. 140, AMENDED AND REENACTED THE ACT OF DECEMBER 20, 1917, 40 STAT. 430, RELATIVE TO THE APPOINTMENT OF MIDSHIPMEN AT THE NAVAL ACADEMY, AND PROVIDED FOR, AMONG OTHERS---

* * * ONE HUNDRED APPOINTED ANNUALLY FROM ENLISTED MEN OF THE NAVY AND MEMBERS OF THE NAVAL RESERVE FORCE ON ACTIVE DUTY, AS NOW AUTHORIZED BY LAW.

SECTION 1 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, ABOLISHED THE NAVAL RESERVE FORCE ESTABLISHED UNDER THE ACT OF AUGUST 29, 1916, AND SECTION 3 OF THAT ACT REPEALED THE ACTS RELATING TO THE NAVAL RESERVE FORCE, AND BY SECTION 8 OF THAT ACT, PAGE 1082, THE SECRETARY OF THE NAVY WAS AUTHORIZED TO APPOINT 25 MIDSHIPMEN IN EACH YEAR FROM ENLISTED MEN OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE UNDER SIMILAR CONDITIONS AS PRESCRIBED BY LAW FOR APPOINTMENTS FROM ENLISTED MEN OF THE NAVY. SECTION 307 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1182, PROVIDES:

HEREAFTER THE SECRETARY OF THE NAVY IS AUTHORIZED TO APPOINT MIDSHIPMEN TO THE NAVAL ACADEMY FROM ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE UNDER SIMILAR CONDITIONS SO FAR AS APPLICABLE AS PRESCRIBED BY LAW FOR APPOINTMENTS FROM ENLISTED MEN OF THE NAVY: PROVIDED, THAT NOT MORE THAN FIFTY MIDSHIPMEN SHALL BE APPOINTED IN ANY ONE YEAR UNDER THE AUTHORITY CONTAINED IN THIS SECTION, EXCEPT THAT IN THE EVENT THE QUOTA OF MIDSHIPMEN FROM THE ENLISTED MEN OF THE REGULAR NAVY IS NOT FILLED IN ANY ONE YEAR THE SECRETARY OF THE NAVY SHALL HAVE THE AUTHORITY TO FILL SUCH VACANCIES WITH ADDITIONAL MEN FROM THE NAVAL RESERVE.

THE RESTRICTION IN THE LAST PROVISO QUOTED FROM THE ANNUAL APPROPRIATION ACT FOR 1941 APPLIES ONLY TO MIDSHIPMEN APPOINTED FROM ENLISTED MEN OF THE NAVY. APPOINTMENTS FROM THIS SOURCE ARE MADE SEPARATELY AND DISTINCTLY FROM THE APPOINTMENT OF MIDSHIPMEN FROM THE NAVAL RESERVE OR MARINE CORPS RESERVE AND IN THIS CONNECTION IT IS TO BE NOTED THAT SECTION 307 OF THE ACT OF JUNE 25, 1938, CONTAINS THE ADDITIONAL PROVISIONS THAT IF THE QUOTA OF APPOINTMENTS AUTHORIZED FROM ENLISTED MEN OF THE NAVY IS NO FILLED IN ANY 1 YEAR THE SECRETARY OF THE NAVY SHALL BE AUTHORIZED TO FILL SUCH VACANCIES WITH ADDITIONAL MEN FROM THE NAVAL RESERVE. CERTAINLY NEITHER THE PROVISION FOR THE APPOINTMENT OF ENLISTED MEN FROM THE REGULAR NAVY NOR SECTION 307 OF THE NAVAL RESERVE ACT OF 1938 CONTEMPLATES THE COMBINING OF SERVICE IN THE TWO BRANCHES TO MAKE UP THE TOTAL SERVICE REQUIRED FOR APPOINTMENT FROM EITHER. IT IS TO BE OBSERVED THAT UNDER SECTION 1042 OF TITLE 34 OF THE UNITED STATES CODE AN ENLISTED MAN OF THE NAVY MUST HAVE SERVED AS AN ENLISTED MAN NOT LESS THAN 1 YEAR--- REASONABLY 1 YEAR AS AN ENLISTED MAN OF THE NAVY, NOT IN SOME OTHER COMPONENT OF THE NAVY--- AND UNDER SECTION 307 OF THE NAVAL RESERVE ACT OF 1938 AN ENLISTED MAN OF THE NAVAL RESERVE OR MARINE CORPS RESERVE REASONABLY MUST HAVE SERVED AT LEAST 1 YEAR AS AN ENLISTED MAN OF THE RESERVE TO BE ELIGIBLE FOR APPOINTMENT AS A MIDSHIPMAN UNDER THAT SECTION. IN THESE CIRCUMSTANCES IT APPEARS EVIDENT THAT THE RESTRICTION CONTAINED IN THE LAST PROVISO QUOTED FROM THE ANNUAL APPROPRIATION ACT RELATES TO THE 9 MONTHS OF THE MAN'S SERVICE OF 1 YEAR AS AN ENLISTED MAN OF THE NAVY, WHICH MUST HAVE BEEN SERVICE ABOARD A VESSEL OF THE NAVY IN FULL COMMISSION PRIOR TO HIS ADMISSION TO THE NAVAL ACADEMY.