B-14218, JANUARY 9, 1941, 20 COMP. GEN. 356

B-14218, JANUARY 9, 1941, 20 COMP. GEN. 356

PAY - AVIATION DUTY - NAVY OFFICERS NAVAL OFFICERS WHOSE PAY, INCLUDING FLYING PAY, IS COMPUTED ON THEIR PERMANENT RANK OF CAPTAIN WHILE SERVING AS "FLAG OFFICERS" IN COMMAND OF SQUADRONS UNDER SPECIAL DESIGNATIONS BY THE PRESIDENT IN ACCORDANCE WITH 34 U.S.C. 216 ARE NOT REQUIRED TO BE CLASSIFIED AS OFFICERS "ABOVE THE RANK OF CAPTAIN" IN APPLYING THE LIMITATION IN THE NAVAL APPROPRIATION ACT (1941) ON THE NUMBER OF OFFICERS "ABOVE THE RANK OF CAPTAIN" WHO MAY RECEIVE INCREASED PAY FOR MAKING AERIAL FLIGHTS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 9, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 30, 1940, TRANSMITTING FOR DECISION A QUESTION PRESENTED IN A LETTER FROM THE CHIEF OF THE BUREAU OF NAVIGATION, DATED DECEMBER 26, 1940, AS FOLLOWS:

1. THE NAVAL APPROPRIATION BILL, APPROVED JUNE 11, 1940, LIMITS INCREASED PAY FOR MAKING AERIAL FLIGHTS TO EIGHT OFFICERS OF THE REGULAR NAVY ABOVE THE RANK OF CAPTAIN. PRIOR TO DECEMBER 11, 1940, FIVE SUCH OFFICERS WERE ASSIGNED TO DUTY INVOLVING FLYING AND EACH ONE HAD RECEIVED A LETTER FROM THE BUREAU OF NAVIGATION STATING HE WAS ONE OF THE FIVE TO RECEIVE THE INCREASED PAY.

2.ON DECEMBER 11, 1940, THE PRESIDENT, IN ACCORDANCE WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTION 216, DESIGNATED CAPTAIN PATRICK N. L. BELLINGER, U.S.N., AS COMMANDER, PATROL WING TWO, WITH THE RANK OF REAR ADMIRAL, AND CAPTAIN ERNEST D. MCWHORTER, U.S.N., AS COMMANDER, PATROL WINGS, PATROL FORCE, WITH THE RANK OF REAR ADMIRAL, AND DIRECTED THEM TO ASSUME THE RANK AND HOIST THE FLAG OF A REAR ADMIRAL. THESE OFFICERS ARE PERFORMING DUTY INVOLVING FLYING.

3. IT IS THE OPINION OF THIS BUREAU THAT, AS THESE OFFICERS ARE PERMANENT CAPTAINS IN THE REGULAR NAVY EVEN THOUGH THEY HAVE BEEN AUTHORIZED BY THE PRESIDENT TO ASSUME THE RANK AND HOIST THE FLAG OF A REAR ADMIRAL, THEY ARE ENTITLED TO CONTINUE TO RECEIVE THE FLYING PAY OF A CAPTAIN, AND THEREFORE, THEY ARE NOT TO BE CONSIDERED AS AMONG THE EIGHT OFFICERS ABOVE THE RANK OF CAPTAIN WHO MUST BE DESIGNATED BY THIS BUREAU TO RECEIVE INCREASED PAY FOR MAKING AERIAL FLIGHTS.

4. IT IS REQUESTED THAT THIS MATTER BE SUBMITTED TO THE COMPTROLLER GENERAL FOR A DECISION TO DETERMINE WHETHER OR NOT THE ABOVE OPINION OF THIS BUREAU IS CORRECT.

THE ACT OF JUNE 11, 1940, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1941, UNDER TITLE I, BUREAU OF SUPPLIES AND ACCOUNTS--- PAY, SUBSISTENCE AND TRANSPORTATION--- PROVIDES:

* * * FOR INCREASED PAY FOR OFFICERS OF THE REGULAR NAVY FOR MAKING AERIAL FLIGHTS, NO PART OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY MORE THAN FIVE DOLLARS ABOVE THE RANK OF CAPTAIN,

IN THE SAME ACT UNDER TITLE II--- EMERGENCY NATIONAL DEFENSE APPROPRIATIONS--- BUREAU OF SUPPLIES AND ACCOUNTS, APPEARS THE FOLLOWING PROVISION:

FOR AN ADDITIONAL AMOUNT FOR PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL, COMPRISING THE SAME OBJECTS SPECIFIED UNDER THIS HEAD IN TITLE I OF THIS ACT, INCLUDING THREE ADDITIONAL OFFICERS ABOVE THE RANK OF CAPTAIN IN A FLIGHT-PAY STATUS: * * *

ON DECEMBER 11, 1940, CAPTAIN BELLINGER WAS GIVEN A DESIGNATION BY THE PRESIDENT IN THE FOLLOWING LANGUAGE:

IN ACCORDANCE WITH THE PROVISIONS OF THE U.S. CODE, TITLE 34, SECTION 216, YOU ARE HEREBY DESIGNATED AS COMMANDER, PATROL WING TWO, WITH THE RANK OF REAR ADMIRAL. IN ACCORDANCE WITH THIS DESIGNATION YOU WILL ASSUME THE RANK AND HOIST THE FLAG OF REAR ADMIRAL.

AN IDENTICAL LETTER WAS DIRECTED TO CAPTAIN MCWHORTER EXCEPT THAT HE WAS DESIGNATED AS COMMANDER, PATROL WINGS, PATROL FORCE.

SECTION 1434 OF THE REVISED STATUTES, 34 U.S.C. 216, PROVIDES AS FOLLOWS:

THE PRESIDENT MAY SELECT ANY OFFICER NOT BELOW THE GRADE OF COMMANDER ON THE ACTIVE LIST OF THE NAVY, AND ASSIGN HIM TO THE COMMAND OF A SQUADRON, WITH THE RANK AND TITLE OF "FLAG OFFICER; " AND ANY OFFICER SO ASSIGNED SHALL HAVE THE SAME AUTHORITY AND RECEIVE THE SAME OBEDIENCE FROM THE COMMANDERS OF SHIPS IN HIS SQUADRON, HOLDING COMMISSIONS OF AN OLDER DATE THAN HIS, THAT HE WOULD BE ENTITLED TO RECEIVE IF HIS COMMISSION WERE THE OLDEST.

IT WILL BE NOTED THAT THE PROVISIONS OF SECTION 1434, REVISED STATUTES, ARE LIMITED TO ASSIGNMENTS OF CAPTAINS OR COMMANDERS OF THE NAVY TO THE COMMAND OF A "SQUADRON" WITH RANK AND TITLE OF FLAG OFFICER DURING SUCH COMMAND AND IT IS ASSUMED THE DESIGNATED COMMANDS OF THE TWO OFFICERS ARE THE COMMAND OF A SQUADRON.

THE PRIMARY PURPOSE OF SECTION 1434, AS INDICATED BY ITS TERMS, WAS TO GIVE TO THE OFFICER SO ASSIGNED COMMAND OF, AND TO REQUIRE OBEDIENCE FROM, OFFICERS OF HIGHER RANK OR EARLIER DATE WHO MIGHT BE SERVING IN THE SQUADRON. 17 COMP. DEC. 54. IN A DECISION OF A FORMER COMPTROLLER OF THE TREASURY, DATED DECEMBER 16, 1899, IT WAS HELD THAT MERE ASSIGNMENT OF A CAPTAIN TO COMMAND A SQUADRON WITH THE RANK OF REAR ADMIRAL, UNDER SECTION 1434 OF THE REVISED STATUTES, DID NOT MAKE HIM A REAR ADMIRAL NOR INVEST HIM WITH THAT OFFICE, AND THAT THE MERE CONFERRING UPON HIM OF THE HIGHER RANK DID NOT ENTITLE HIM TO THE PAY OF THE HIGHER GRADE. SEE, ALSO, DECISION A-37171, DATED JULY 30, 1931.

THE LIMITATIONS IN THE APPROPRIATION ACT OF JUNE 11, 1940, SUPRA, ARE PROHIBITIONS AGAINST THE PAYMENT OF FLYING PAY TO OFFICERS OF THE NAVY WHOSE FLYING PAY IS COMPUTED UPON THE PAY OF AN OFFICE ABOVE THAT PROVIDED FOR A CAPTAIN OF THE NAVY, AND AN OFFICER OF THE NAVY WITH TEMPORARY RANK OF FLAG OFFICER AND ENTITLED ONLY TO THE PAY OF CAPTAIN IS NOT WITHIN THE LIMITATIONS. THE PAY OF THE TWO OFFICERS UNDER CONSIDERATION BEING FOR COMPUTATION UPON THEIR RANK OF CAPTAIN, THEY ARE NOT REQUIRED TO BE CLASSIFIED AS OFFICERS "ABOVE THE RANK OF CAPTAIN" BY REASON OF THEIR ASSIGNMENT TO THE COMMANDS INDICATED AND ARE NOT TO BE COUNTED AS OFFICERS WITHIN THE CITED LIMITING PROVISIONS OF THE ACT.