B-138006, JANUARY 14, 1959, 38 COMP. GEN. 497

B-138006: Jan 14, 1959

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AN OFFICER MAY NOT HAVE WARRANT OFFICER SERVICE ADDED TO ENLISTED SERVICE TO BRING HIM WITHIN THE CATEGORY OF AN OFFICER WITH OVER FOUR YEARS' ACTIVE ENLISTED SERVICE FOR THE SPECIAL PAY RATE PROVIDED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949. YOUR REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE. OF WHICH LESS THAN 3 YEARS WAS IN AN ENLISTED STATUS. THE BASIC PAY OF A FIRST LIEUTENANT WITH OVER 16 YEARS' SERVICE WAS $413.40 PER MONTH. HIS CLAIM IS FOR AN INCREASE IN THE MONTHLY RATE TO $450. WHICH IS THE SPECIAL RATE AUTHORIZED UNDER SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949. FOR AN OFFICER OF HIS RANK AND LENGTH OF SERVICE WHO IS CREDITED WITH OVER FOUR YEARS'"ACTIVE SERVICE AS AN ENLISTED MEMBER.'.

B-138006, JANUARY 14, 1959, 38 COMP. GEN. 497

MILITARY PERSONNEL - OFFICERS WITH ENLISTED SERVICE - WARRANT OFFICERS V. ENLISTED SERVICE THE PLACEMENT OF WARRANT OFFICERS OF THE UNIFORMED SERVICES IN A SEPARATE CATEGORY FROM ENLISTED MEMBERS IN RECENT LEGISLATION AND IN CUSTOM AND PRACTICE PRECLUDES REGARDING WARRANT OFFICER SERVICE AS ENLISTED SERVICE AND, THEREFORE, AN OFFICER MAY NOT HAVE WARRANT OFFICER SERVICE ADDED TO ENLISTED SERVICE TO BRING HIM WITHIN THE CATEGORY OF AN OFFICER WITH OVER FOUR YEARS' ACTIVE ENLISTED SERVICE FOR THE SPECIAL PAY RATE PROVIDED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 1 OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 (A).

TO CAPTAIN JOHN D. SHRIVER, UNITED STATES AIR FORCE, JANUARY 14, 1959:

IN YOUR LETTER OF MAY 20, 1958, FORWARDED TO US WITH A COVERING LETTER DATED NOVEMBER 2, 1958, YOU REQUEST A DECISION ON THE CLAIM OF FIRST LIEUTENANT ROBERT B. FULTON, USAF, FOR INCREASED PAY. YOUR REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, AS AIR FORCE REQUEST NO. 379.

IT APPEARS THAT LIEUTENANT FULTON SERVED AS AN ENLISTED MEMBER FROM SEPTEMBER 13, 1940, TO AUGUST 8, 1943, AS A WARRANT OFFICER FROM AUGUST 9, 1943, TO AUGUST 31, 1956, AND AS A COMMISSIONED OFFICER, O.R.C. FROM SEPTEMBER 1, 1956, TO DATE. AS OF THE DATE OF YOUR LETTER, LIEUTENANT FULTON HAD SERVED WITHOUT A BREAK IN SERVICE FOR OVER 16 YEARS, OF WHICH LESS THAN 3 YEARS WAS IN AN ENLISTED STATUS. IN MAY 1958, THE BASIC PAY OF A FIRST LIEUTENANT WITH OVER 16 YEARS' SERVICE WAS $413.40 PER MONTH. BECAUSE OF THE SAVINGS PROVISION (SECTION 10) OF THE RECENT PAY ACT, PUBLIC LAW 85-422, MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE, LIEUTENANT FULTON'S BASIC PAY HAS BEEN CONTINUED AT THAT RATE. HIS CLAIM IS FOR AN INCREASE IN THE MONTHLY RATE TO $450, WHICH IS THE SPECIAL RATE AUTHORIZED UNDER SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 1 OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 (A), FOR AN OFFICER OF HIS RANK AND LENGTH OF SERVICE WHO IS CREDITED WITH OVER FOUR YEARS'"ACTIVE SERVICE AS AN ENLISTED MEMBER.' SINCE LIEUTENANT FULTON SERVED LESS THAN THREE YEARS AS AN ENLISTED MEMBER, THE QUESTION PRESENTED IS WHETHER HIS SERVICE AS A WARRANT OFFICER, MAY BE ADDED TO HIS ENLISTED SERVICE, SO AS TO BRING HIM WITHIN THE CATEGORY OF AN OFFICER WITH OVER 4 YEARS' ACTIVE ENLISTED SERVICE.

LIEUTENANT FULTON REFERS TO HEARINGS ON THE WARRANT OFFICER ACT OF 1954, 68 STAT. 157, IN WHICH HE STATES THAT IT WAS ARGUED THAT WARRANT OFFICERS ARE THE "TOP OF THE ENLISTED STRUCTURE.' SHORTLY AFTER COLONEL HAMRICK, OFFICE OF PERSONNEL POLICY OF THE SECRETARY OF DEFENSE, MADE A STATEMENT TO THAT EFFECT ON MARCH 3, 1954, AT THE HEARINGS ON H.R. 6374, BEFORE SUBCOMMITTEE NO. 2, HOUSE COMMITTEE ON ARMED SERVICES, REPRESENTATIVES OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS AND COAST GUARD TOOK A POSITION WHICH WAS CONTRARY TO THAT EXPRESSED BY COLONEL HAMRICK. AFTER AGREEING THAT WARRANT OFFICERS RATE A SALUTE FROM ENLISTED MEN, ARE ENTITLED TO THE USE OF OFFICERS' CLUBS, AND MAY STAND DUTY WATCHES IN A MANNER SIMILAR TO COMMISSIONED OFFICERS, MR. BLANDFORD SUMMARIZED THE SITUATION IN THE FOLLOWING WORDS (AT PAGE 3637 OF THE HEARINGS):

THEN ACTUALLY WHAT IT BOILS DOWN TO IS THIS, OUTSIDE OF CERTAIN STATUTES AND THE UNIFORM CODE OF MILITARY JUSTICE, A WARRANT OFFICER-- WHETHER HE IS A JUNIOR WARRANT OFFICER, WHETHER HE IS A CHIEF WARRANT OFFICER, OR WHETHER HE IS A COMMISSIONED WARRANT OFFICER--- IS FOR PRACTICAL PURPOSES AND FOR SOCIAL PURPOSES AND FOR THE CUSTOMS OF THE SERVICES, EQUIVALENT TO A COMMISSIONED OFFICER, IS THAT CORRECT?

THE VARIOUS OFFICERS AGREED AND THEN MR. BLANDFORD SAID: " AND THERE WILL BE NO DOUBT ABOUT IT IN THE FUTURE AFTER THE BILL IS PASSED.'

WHILE THE COURTS HAVE RULED DIFFERENTLY AS TO WHETHER A WARRANT OFFICER IS AN "OFFICER" WITHIN THE MEANING OF THE LATTER TERM AS USED IN DIFFERENT STATUTORY PROVISIONS (SEE THE CASES CITED IN OUR DECISION OF JANUARY 24, 1958, 37 COMP. GEN. 489, 490), NO DECISION HAS BEEN FOUND IN WHICH A WARRANT OFFICER WAS HELD TO BE AN ENLISTED MAN. SEE, IN THIS CONNECTION, 22 COMP. GEN. 272 IN WHICH IT WAS CONCLUDED THAT A WARRANT OFFICER WAS NOT ENTITLED TO THE INCREASED PAY BENEFITS GRANTED TO " EACH ENLISTED OR ENROLLED MAN" UNDER SECTION 13 OF THE ACT OF JULY 2, 1926, 44 STAT. 789. IN THE CASE OF WALTON V. UNITED STATES, 89 C.1CLS. 28, IT WAS STATED THAT THE CLASSIFICATION OF WARRANT OFFICER "SEEMS TO BE A DISTINCT CLASSIFICATION, RANKING AFTER COMMISSIONED OFFICERS BUT BEFORE ENLISTED MEN.'

BOTH THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AND THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 37 U.S.C. 231 NOTE--- INCLUDING THE AMENDMENT TO THE LATTER ACT MADE BY THE ACT OF MAY 20, 1958--- PLACED WARRANT OFFICERS AND ENLISTED MEN IN DIFFERENT CATEGORIES AND THE TERMS " WARRANT OFFICER" AND " ENLISTED MEMBER" ARE DEFINED SEPARATELY IN SECTION 101 OF THE NEW TITLE 10 OF THE U.S.C. IN THE CIRCUMSTANCES, A CONCLUSION THAT SERVICE AS A WARRANT OFFICER IS "ACTIVE SERVICE AS AN ENLISTED MEMBER," WOULD NOT BE WARRANTED UNLESS OTHER LANGUAGE IN THE 1958 ACT CLEARLY SO PROVIDES. THAT ACT CONTAINS NO PROVISION TO THAT EFFECT AND WE HAVE BEEN UNABLE TO FIND ANYTHING IN THE LEGISLATIVE HISTORY OF THAT ACT WHICH INDICATES THAT THE CONGRESS INTENDED THAT WARRANT OFFICER SERVICE SHOULD BE REGARDED AS ENLISTED SERVICE.

ACCORDINGLY, IT IS CONCLUDED THAT LIEUTENANT FULTON DOES NOT COME WITHIN THE PURVIEW OF THE SPECIAL PAY TABLE FOR OFFICERS WITH OVER 4 YEARS' ACTIVE ENLISTED SERVICE. THE MILITARY PAY ORDER AND ACCOMPANYING PAPERS SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.