B-159370, AUGUST 4, 1966, 46 COMP. GEN. 112.

B-159370, AUGUST 4, 1966, 46 COMP. GEN. 112.

MILITARY PERSONNEL - SAVINGS DEPOSITS - ENLISTED TO COMMISSIONED STATUS. A MASTER SERGEANT IN PAY GRADE E-9, TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE REGULAR MARINE CORPS UNDER 10 U.S.C. 5596/B) IS ENTITLED TO PAYMENT OF SAVINGS DEPOSITS AND INTEREST UNDER 10 U.S.C. 1035/C), PRESCRIBING PAYMENT UPON DISCHARGE OR APPOINTMENT TO A WARRANT OR COMMISSIONED RANK, NOT WITHSTANDING SECTION 5596/B) DOES NOT EXPRESSLY AUTHORIZE THE APPOINTMENT OF AN ENLISTED MEMBER IN GRADE E 9. THE APPOINTMENT AS COMMISSIONED OFFICERS OF QUALIFIED ENLISTED MEMBERS IN GRADES E-8 AND E-9, ESTABLISHED BY THE ACT OF MAY 20, 1958, IS NOT PRECLUDED, THE ACT EVIDENCING NO INTENT TO BAR PERSONS HOLDING THE TWO TOP ADDITIONAL ENLISTED GRADES FROM THE PROMOTION BENEFITS OF SECTION 5596/B), AND THE SERGEANT'S APPOINTMENT AS A SECOND LIEUTENANT IS LEGALLY SUFFICIENT TO AUTHORIZE PAYMENT TO HIM OF SAVINGS DEPOSITS AND INTEREST.

TO LIEUTENANT COLONEL JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 4, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1966, REQUESTING A DECISION WHETHER PAYMENT OF SAVINGS DEPOSITS AND INTEREST MAY BE MADE UNDER 10 U.S.C. 1035/C) AND PARAGRAPH 044336-1, NAVY COMPTROLLER MANUAL, TO MASTER GUNNERY SERGEANT CLEMENTS W. SHIVER (E-9), 583581, U.S. MARINE CORPS, WHO WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE REGULAR MARINE CORPS UNDER 10 U.S.C. 5596. YOUR REQUEST FOR DECISION WAS FORWARDED HERE BY HEADQUARTERS U.S. MARINE CORPS BY LETTER DATED JULY 12, 1966, AND HAS BEEN ASSIGNED NO. DO-MC-916 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT SHIVER WAS TEMPORARILY APPOINTED TO THE GRADE OF SECOND LIEUTENANT IN THE REGULAR MARINE CORPS UNDER THE PROVISIONS OF 10 U.S.C. 5596 AND THAT HE ACCEPTED THAT APPOINTMENT ON MAY 27, 1966. PAYMENT OF AN ENLISTED MEMBER'S SAVINGS DEPOSITS AND INTEREST MAY BE MADE UNDER 10 U.S.C. 1035/C) ONLY UPON HIS DISCHARGE OR AT SUCH TIME BEFORE HIS DISCHARGE AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY. IN PARAGRAPH 044336-1, NAVY COMPTROLLER MANUAL, THE SECRETARY HAS AUTHORIZED PAYMENT OF ALL SUMS DEPOSITED DURING HIS ENLISTMENT THAT HAVE NOT BEEN WITHDRAWN UPON THE DEPOSITOR'S APPOINTMENT TO A WARRANT OR COMMISSIONED RANK.

SECTION 5596/B) OF TITLE 10, U.S. CODE, ENACTED AUGUST 10, 1956, CH. 1041, 70A STAT. 329, PROVIDES THAT TEMPORARY APPOINTMENTS IN THE REGULAR MARINE CORPS IN GRADES NOT ABOVE CAPTAIN MAY BE MADE FROM "MASTER, TECHNICAL, AND STAFF SERGEANTS OF THE REGULAR MARINE CORPS;, THE HISTORICAL AND REVISION NOTES TO THAT SECTION INDICATE THAT SUCH PROVISION WAS DERIVED FROM SECTION 302/C) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 830, 34 U.S.C. 3C (1952 ED.), WHICH AUTHORIZED TEMPORARY APPOINTMENTS IN THE REGULAR MARINE CORPS IN GRADES NOT ABOVE CAPTAIN OF ,STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS;, THE NOTES FURTHER STATE THAT "THE WORDS -AND ABOVE- HAVE BEEN EXECUTED BY NAMING THE GRADES THEY IMPLY, TO WIT * * * MASTER AND TECHNICAL SERGEANTS;, AT THAT TIME THE ONLY GRADES ABOVE STAFF SERGEANT IN THE MARINE CORPS WERE THE GRADES OF TECHNICAL SERGEANT (E 6) AND MASTER SERGEANT (E-7). SECTION 5596/B) REENACTED THE LAW, AS IT THEN EXISTED, WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 49/A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640.

ENLISTED PAY GRADES E-8 AND E-9 WERE ESTABLISHED BY SECTION 1/1) OF THE MILITARY PAY ACT OF 1958, PUBLIC LAW 85-422, APPROVED MAY 20, 1958, 72 STAT. 123, AMENDING SECTION 201/A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, APPROVED OCTOBER 12, 1949, 63 STAT. 805, 37 U.S.C. 232/A) (1958 ED.), NOW CODIFIED IN 37 U.S.C. 203. ENLISTED MEMBERS SERVING IN THE GRADE OF MASTER GUNNERY SERGEANT HAVE BEEN ASSIGNED PAY GRADE E-9 BY THE SECRETARY OF THE NAVY UNDER 37 U.S.C. 201/G).

INASMUCH AS THE PROVISIONS OF 10 U.S.C. 5596/B) DO NOT EXPRESSLY AUTHORIZE THE APPOINTMENT OF AN ENLISTED MEMBER IN THE REGULAR MARINE CORPS IN THE GRADE OF MASTER GUNNERY SERGEANT (E-9) TO THE GRADE OF SECOND LIEUTENANT, YOU SAY THAT THERE IS DOUBT THAT THE APPOINTMENT OF SERGEANT SHIVER TO THE COMMISSIONED GRADE OF SECOND LIEUTENANT IS LEGALLY SUFFICIENT TO AUTHORIZE PAYMENT OF THE DEPOSITS AND INTEREST AT THE TIME OF SUCH APPOINTMENT IN VIEW OF (1) THE RULE OF STATUTORY CONSTRUCTION THAT THE EXPRESS ENUMERATION OF CERTAIN CLASSES OF PERSONS INDICATES AN INTENT TO EXCLUDE ANY CLASS OF PERSONS NOT MENTIONED AND (2) CAUTIONS IN CERTAIN JUDICIAL DECISIONS AGAINST DEPARTING FROM THE LITERAL LANGUAGE OF A STATUTE IN ORDER TO REACH A CONCLUSION DEEMED TO BE IN ACCORD WITH THE SPIRIT AND PURPOSE OF THE STATUTE.

IN THAT CONNECTION YOU SAY THAT MEMORY SUGGESTS THAT AT HEARINGS (A COPY OF WHICH YOU DO NOT HAVE) BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 9979, 85TH CONG; A BILL SIMILAR TO H.R. 11470, WHICH BECAME THE MILITARY PAY ACT OF MAY 20, 1958, THE DEPARTMENT OF DEFENSE INDICATED THAT THE NEW ENLISTED PAY GRADES E-8 AND E-9 WERE TO BE THE TERMINAL POINTS IN THE MILITARY CAREERS OF ENLISTED MEMBERS PROMOTED TO THOSE GRADES AND THAT THOSE GRADES WOULD NOT BE USED AS STEPPING STONES FOR PROMOTION TO WARRANT OFFICER OR COMMISSIONED OFFICER GRADES.

THE LEGISLATIVE HISTORY OF THE 1958 MILITARY PAY ACT INDICATES THAT THE PROPOSED NEW PAY GRADES E-8 AND E-9 SHOULD BE RESERVED FOR CAREER ENLISTED MEN (THAT FORMER COMMISSIONED OFFICERS SHOULD NOT BE APPOINTED TO SUCH GRADES UPON ENLISTMENT FOLLOWING COMMISSIONED OFFICER SERVICE). INTENTION TO PRECLUDE THE APPOINTMENT OF ENLISTED MEMBERS IN GRADES E-8 AND E-9 AS COMMISSIONED OFFICERS, HOWEVER, WAS EXPRESSLY DISAVOWED. THUS, IN THE HEARINGS ON H.R. 9979 AT PAGE 5141 THERE APPEARS THE FOLLOWING EXCHANGE:

MR. WISON. IT WOULD BE PRETTY OBVIOUS WHEN WE GOT INTO THE E-8 OR E-9 CATEGORY HE WOULD NOT BE CONSIDERED IN THE FUTURE FOR ANY WARRANT OFFICER OR OFFICER PROMOTIONS?

COLONEL KECK. SHORT OF EXCEPTIONAL ABILITY, PECULIAR SKILL, OR POSSIBLY MOBILIZATION. IT IS NOT INTENDED THAT THIS BE UTILIZED FOR OTHER THAN A NORMAL ENLISTED CAREER PATTERN.

WITH RESPECT TO APPOINTMENTS OF ENLISTED MEMBERS IN GRADES E-8 AND E-9 TO COMMISSIONED OFFICER GRADES, IT IS STATED IN H. REPT. NO. 1538, 85TH CONG; 2D SESS; AT PAGE 46 THAT:

H.R. 11470 ALSO PROVIDES A SPECIAL PAY SCALE IN THE 3 LOWER OFFICER GRADES FOR ENLISTED PERSONNEL WITH MORE THAN 4 YEARS OF ENLISTED SERVICE. WITHOUT SUCH A PROVISION, THE ENLISTED MAN E-5 THROUGH E-9 COULD NOT IN THE FUTURE BECOME AN OFFICER WITHOUT SUFFERING A LOSS OF PAY TOO GREAT TO BE ENDURABLE.

IN VIEW OF THE LEGISLATIVE HISTORY OF 10 U.S.C. 5596/B) AND THE EXPRESSLY STATED LEGISLATIVE INTENT IN THE ACT OF AUGUST 10, 1956, TO RESTATE EXISTING LAW WITHOUT SUBSTANTIVE CHANGE, WE BELIEVE IT IS EVIDENT THE CONGRESS INTENDED THAT QUALIFIED ENLISTED MEN OF THE MARINE CORPS IN THE GRADES OF STAFF SERGEANT AND ABOVE SHOULD BE ELIGIBLE FOR TEMPORARY OFFICER APPOINTMENTS IN THE REGULAR MARINE CORPS UNDER THAT SECTION. SUCH CIRCUMSTANCES, A CONCLUSION THAT IN CREATING TWO TOP ADDITIONAL ENLISTED GRADES THE CONGRESS INTENDED TO BAR PERSONS HOLDING THOSE GRADES FROM THE TEMPORARY PROMOTION BENEFITS OF SECTION 5596/B) WOULD APPEAR TO BE WARRANTED ONLY ON THE BASIS OF LANGUAGE CLEARLY SO PROVIDING. SINCE SUCH LANGUAGE WAS NOT INCLUDED IN THE 1958 ACT AND ITS LEGISLATIVE HISTORY CONTAINS EXPRESSIONS NEGATIVING SUCH INTENT, IT IS OUR VIEW THAT THE APPOINTMENT OF MASTER GUNNERY SERGEANT SHIVER AS A SECOND LIEUTENANT WAS AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 5596/B).

ACCORDINGLY, WE THINK THAT SUCH APPOINTMENT IS PROPER AND THAT PAYMENT ON THE ENCLOSED VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT.