B-145945, JULY 31, 1961, 41 COMP. GEN. 43

B-145945: Jul 31, 1961

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THE OFFICER TO HAVE SUCH RANK FROM AN EARLIER DATE ( FEBRUARY 1. IS AN APPOINTMENT REQUIRED BY 14 U.S.C. 221 TO BE MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AND IN THE ABSENCE OF SOME SPECIFIC STATUTE COMES UNDER THE LONG-STANDING RULE THAT PRESIDENTIAL APPOINTMENTS MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE DO NOT BECOME EFFECTIVE UNTIL A COMMISSION HAS BEEN ISSUED AFTER SENATE CONFIRMATION SO THAT THE OFFICER'S PROMOTION WHICH WAS CONFIRMED BY THE SENATE ON THE DATE ( MARCH 24. THAT DATE MAY BE CONSIDERED THE EFFECTIVE DATE FOR PAY PURPOSES EVEN THOUGH THE COMMISSION WAS NOT RECEIVED UNTIL A LATER DATE. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. IT IS STATED IN PART THAT " PURSUANT TO THE AUTHORITY PROVIDED BY TITLE 14.

B-145945, JULY 31, 1961, 41 COMP. GEN. 43

MILITARY PERSONNEL - PROMOTIONS - COAST GUARD - EFFECTIVE DATE - FLAG RANK AN APPOINTMENT (DATED MARCH 31, 1961) OF A COAST GUARD OFFICER TO THE PERMANENT RANK OF REAR ADMIRAL UNDER 14 U.S.C. 222 TO BE EFFECTIVE ON A PRIOR DATE ( MARCH 24, 1961), THE OFFICER TO HAVE SUCH RANK FROM AN EARLIER DATE ( FEBRUARY 1, 1961) ON WHICH A VACANCY IN THE GRADE OCCURRED, IS AN APPOINTMENT REQUIRED BY 14 U.S.C. 221 TO BE MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AND IN THE ABSENCE OF SOME SPECIFIC STATUTE COMES UNDER THE LONG-STANDING RULE THAT PRESIDENTIAL APPOINTMENTS MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE DO NOT BECOME EFFECTIVE UNTIL A COMMISSION HAS BEEN ISSUED AFTER SENATE CONFIRMATION SO THAT THE OFFICER'S PROMOTION WHICH WAS CONFIRMED BY THE SENATE ON THE DATE ( MARCH 24, 1961) SPECIFIED IN THE APPOINTMENT LETTER MAY NOT BE CONSIDERED EFFECTIVE PRIOR THERETO, BUT THAT DATE MAY BE CONSIDERED THE EFFECTIVE DATE FOR PAY PURPOSES EVEN THOUGH THE COMMISSION WAS NOT RECEIVED UNTIL A LATER DATE.

TO T. C. CRABE, U.S. COAST GUARD, JULY 31, 1961:

BY FIRST ENDORSEMENT DATED MAY 22, 1961, THE COMMANDANT, U.S. COAST GUARD, FORWARDED HERE YOUR LETTER OF MAY 22, 1961, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE DATE FROM WHICH THE PAY AND ALLOWANCES OF REAR ADMIRAL ( LH) ACCRUE TO ADMIRAL DONALD MCG. MORRISON (1311), UNITED STATES COAST GUARD, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. CO-CG 582 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN LETTER DATED MARCH 31, 1961, FROM THE ACTING SECRETARY OF THE TREASURY TO CAPTAIN DONALD MCG. MORRISON (1311), UNITED STATES COAST GUARD, IT IS STATED IN PART THAT " PURSUANT TO THE AUTHORITY PROVIDED BY TITLE 14, U.S.C. SECTIONS 221 AND 222, THE PRESIDENT OF THE UNITED STATES, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, HEREBY APPOINTS YOU TO THE PERMANENT GRADE OF REAR ADMIRAL IN THE UNITED STATES COAST GUARD, EFFECTIVE MARCH 24, 1961, TO RANK AS SUCH FROM FEBRUARY 1, 1961.' MESSAGE FROM COMMANDANT, TWELFTH COAST GUARD DISTRICT, R 250004Z, ADVISED THAT CAPTAIN MORRISON TOOK OATH OF OFFICE AS REAR ADMIRAL ON MARCH 24, 1961, IN ACCORDANCE WITH VERBAL INSTRUCTIONS FROM THE COMMANDANT, UNITED STATES COAST GUARD. LETTER FROM REAR ADMIRAL MORRISON DATED APRIL 12, 1961, ACKNOWLEDGED RECEIPT OF COMMISSION AS REAR ADMIRAL.

YOU REFER TO OUR DECISION OF JUNE 15, 1943, 22 COMP. GEN. 1107, WHICH CONSIDERED THE PERTINENT PROVISIONS OF THE ACT OF MARCH 4, 1913, 37 STAT. 892, 34 U.S.C. 870 (1946 USED.), IN EFFECT AT THAT TIME, PROVIDING THAT ALL OFFICERS OF THE NAVY WHO SINCE THE THIRD DAY OF MARCH 1899 HAVE BEEN ADVANCED OR MAY THEREAFTER BE ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSION. IN THAT DECISION THERE WAS CONSIDERED THE QUESTION WHETHER AN OFFICER TEMPORARILY PROMOTED TO A HIGHER GRADE AND DETACHED FROM HIS PERMANENT STATION ON AND AFTER THE DATE OF HIS APPOINTMENT WAS ENTITLED TO TRANSPORTATION OF THE AUTHORIZED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS OF AN OFFICER OF THE HIGHER RANK, REGARDLESS OF WHETHER THE OFFICER HAD NOTICE OF THE TEMPORARY APPOINTMENT PRIOR TO THE SHIPMENT OF HIS HOUSEHOLD EFFECTS AND REGARDLESS OF WHETHER HE HAD INDICATED HIS ACCEPTANCE OF THE APPOINTMENT. IN ANSWERING THE QUESTION IN THE NEGATIVE, IT WAS POINTED OUT THAT THE ACT OF MARCH 4, 1913, IS APPLICABLE TO PERMANENT PROMOTIONS IN THE REGULAR NAVY, WHEREAS SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, 50 U.S.C. APP. 810 (1946 USED.), PERTAINS TO OFFICERS TEMPORARILY APPOINTED PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350 (1946 USED.).

YOU SAY THAT IT APPEARS THAT THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK WOULD ACCRUE ON THE DATE STATED IN THE COMMISSION IN SUCH INSTANCES WHERE THE APPOINTMENT IS RECEIVED PRIOR TO THE DATE STATED THEREIN. HOWEVER, WHEN THE APPOINTMENT IS ACTUALLY RECEIVED SUBSEQUENT TO THE DATE STATED IN THE COMMISSION, YOU SAY THAT THE PAY AND ALLOWANCES ACCRUE FROM THE DATE OF ACCEPTANCE OR EXECUTION OF OATH OF OFFICE. YOU ASK WHETHER THE PAY AND ALLOWANCES OF REAR ADMIRAL ( LH) ACCRUE TO ADMIRAL MORRISON FROM (A) FEBRUARY 1, (B) MARCH 24, (C) MARCH 31, OR (D) APRIL 12, 1961. IF IT IS DETERMINED THAT THE PAY AND ALLOWANCES ACCRUE TO ADMIRAL MORRISON FROM MARCH 24, 1961, YOU ASK (QUESTION (B) ( WHETHER THE ABSENCE OF VERBAL INSTRUCTIONS AND ACKNOWLEDGMENT SENT BY THE COMMANDANT, TWELFTH COAST GUARD DISTRICT MESSAGE R 250004Z, WOULD MAKE ANY DIFFERENCE.

IN CONNECTION WITH THE DATE MARCH 24, 1961, THE OFFICER'S NOMINATION WAS CONFIRMED BY THE SENATE ON THAT DATE ( CONGRESSIONAL RECORD DATED MARCH 24, 1961, AT PAGE 4481). IT HAS BEEN ASCERTAINED INFORMALLY THAT A VACANCY IN THE GRADE OF REAR ADMIRAL EXISTED ON FEBRUARY 1, 1961, THE DATE OF RANK SHOWN IN ADMIRAL MORRISON'S APPOINTMENT.

THE ACT OF MARCH 4, 1913, 37 STAT. 892, 34 U.S.C. 870 (1952 USED.), WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 656, AND, THEREFORE, IS WITHOUT EFFECT IN THE CASE OF PROMOTIONS MADE AFTER THAT DATE. SIMILAR PROVISIONS ARE CONTAINED IN 10 U.S.C. 5788 (C). HOWEVER, THE APPLICABILITY OF SECTION 5788 (C) IS LIMITED TO PERMANENT AND TEMPORARY PROMOTIONS OF ENSIGNS AND SECOND LIEUTENANTS AND THUS IS NOT APPLICABLE TO PROMOTIONS OF FLAG OFFICERS. UNDER THE PROVISIONS OF 10 U.S.C. 5775 (A) (DERIVED FROM THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795, 852, 34 U.S.C. 306F (1952 USED.) ( APPLICABLE TO PROMOTIONS OF REGULAR NAVY AND MARINE CORPS OFFICERS PROMOTED TO THE GRADE OF REAR ADMIRAL, OFFICERS ARE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED FROM THE DATE OF THE OCCURRENCE OF THE VACANCY THAT THEY WERE PROMOTED TO FILL.

THE PAY ASSIMILATION PROVISIONS OF 14 U.S.C. 461, HOWEVER, EVEN IF EMBRACING THE EFFECTIVE DATE OF A PROMOTION, ARE APPLICABLE ONLY IN CASES WHERE NO SPECIFIC STATUTORY PROVISION HAS BEEN MADE FOR THE COAST GUARD AND SPECIFIC PROVISIONS RELATING TO THE PROMOTION OF COAST GUARD OFFICERS ARE CONTAINED IN 14 U.S.C. 221, 222 AND 223. SECTION 221 AUTHORIZES THE PRESIDENT TO FILL VACANCIES IN THE ACTIVE LIST OF REGULAR COMMISSIONED OFFICERS AND SECTION 222, WHICH DEALS SPECIFICALLY WITH THE PROMOTION OF COAST GUARD OFFICERS TO FLAG RANK, PROVIDES AS FOLLOWS:

COMMISSIONED OFFICERS, INCLUDING EXTRA NUMBERS IN GRADE, SHALL BE PROMOTED TO THE GRADE OF REAR ADMIRAL BY SELECTION, UNDER SUCH REGULATIONS AS THE SECRETARY SHALL PRESCRIBE. THE PRECEDENCE ON THE LIST OF REAR ADMIRALS SHALL BE DETERMINED BY THE DATE OF FIRST APPOINTMENT TO THAT GRADE, EXCEPT THAT THE ASSISTANT COMMANDANT SHALL, WHILE HOLDING SUCH OFFICE, BE NEXT IN PRECEDENCE TO THE COMMANDANT.

IN THIS REGARD IT IS SIGNIFICANT THAT, WHILE SECTION 223 REQUIRES THAT PROMOTION OF OFFICERS TO THE GRADES OF CAPTAIN AND BELOW BE MADE EFFECTIVE ON THE DATE OF THE VACANCY WHICH THEY ARE PROMOTED TO FILL, NO SUCH REQUIREMENT IS CONTAINED IN SECTION 222.

REGULATIONS PROMULGATED BY THE SECRETARY OF THE TREASURY TO IMPLEMENT THE COAST GUARD PROMOTION LAWS ARE CONTAINED IN PARAGRAPH 2B01186, COAST GUARD COMPTROLLER MANUAL, AND SUCH REGULATIONS PROVIDE THAT THE PAY OF AN OFFICER OF THE REGULAR COAST GUARD PERMANENTLY PROMOTED ACCRUES ONLY FROM THE EFFECTIVE DATE THEREOF AS STATED IN HIS COMMISSION OR IN THE APPOINTMENT AUTHORITY ISSUED IN ADVANCE OF THE REGULAR COMMISSION. THIS PROVISION IS SUBSTANTIALLY THE SAME AS THAT PROVIDED IN PARAGRAPH 1044206, NAVY COMPTROLLER MANUAL, PERTAINING TO PROMOTION OF REGULAR NAVY OFFICERS. IT IS SHOWN THAT ADMIRAL MORRISON'S NOMINATION WAS CONFIRMED BY THE SENATE ON MARCH 24, 1961, AND THAT SUCH DATE IS STATED IN THE APPOINTMENT AUTHORITY AS THE EFFECTIVE DATE OF THE APPOINTMENT.

IT IS WELL SETTLED THAT APPOINTMENTS MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AS REQUIRED BY SECTION 221 OF TITLE 14 DO NOT BECOME EFFECTIVE AS APPOINTMENTS UNTIL A COMMISSION HAS BEEN ISSUED AFTER CONFIRMATION BY THE SENATE. MARBURY V. MADISON, 1 CRANCH 137; UNITED STATES V. LEBARON, 19 HOWARD 73; GLAVEY V. UNITED STATES, 182 U.S. 595. IN THE LIGHT OF SUCH LONG-STANDING RULE AND IN THE ABSENCE OF SOME SPECIFIC STATUTE SO PROVIDING, IT IS OUR VIEW THAT AN APPOINTMENT UNDER THE PROVISIONS OF SECTION 222 OF TITLE 14, U.S. CODE, MAY NOT LEGALLY BE MADE EFFECTIVE FOR PAY PURPOSES PRIOR TO CONFIRMATION BY THE SENATE IN ANY EVENT. WE KNOW OF NO LAW WHICH MAY BE APPLIED AS AUTHORIZING PAY FOR ANY PERIOD PRIOR TO CONFIRMATION IN SUCH CASES. IN THESE CIRCUMSTANCES, IT IS OUR VIEW THAT THE PAY AND ALLOWANCES OF REAR ADMIRAL ( LH) ACCRUE TO ADMIRAL MORRISON FROM MARCH 24, 1961, THE EFFECTIVE DATE STATED IN THE APPOINTMENT AUTHORITY (LETTER OF MARCH 31, 1961, FROM THE ACTING SECRETARY OF THE TREASURY). CF. 38 COMP. GEN. 340.

IN ANSWER TO QUESTION (E), THE VERBAL INSTRUCTIONS AND ACKNOWLEDGMENT REFERRED TO THEREIN HAVE BEEN VIEWED AS TANTAMOUNT TO THE ISSUANCE OF THE COMMISSION, EVEN THOUGH THERE WAS SOME DELAY IN SENDING THE COMMISSION DOCUMENT. UNDER THE RULE STATED ABOVE THE APPOINTMENT COULD NOT BE MADE EFFECTIVE UNTIL THE COMMISSION IS ISSUED.