B-163470, APRIL 24, 1968, 47 COMP. GEN. 587

B-163470: Apr 24, 1968

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AN ACCEPTANCE IS REQUIRED TO MAKE A TEMPORARY PROMOTION UNDER 10 U.S.C. 5784 LEGALLY EFFECTIVE FOR THE PURPOSE OF RECEIVING THE PAY AND ALLOWANCES OF THE HIGHER GRADE. THE PAY ACCOUNT OF A MARINE CORPS SECOND LIEUTENANT TEMPORARILY PROMOTED UNDER SECTION 5784 TO FIRST LIEUTENANT WHILE IN A MISSING STATUS MAY BE CREDITED WITH THE INCREASED PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE ADMINISTRATIVELY DETERMINED UNDER THE AUTHORITY OF 37 U.S.C. 556 TO BE THE DATE THE OFFICER WOULD HAVE ACCEPTED THE PROMOTION. OF LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 5787 ENTITLING TEMPORARILY PROMOTED NAVY AND MARINE CORPS OFFICERS TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE THE PROMOTION IS MADE.

B-163470, APRIL 24, 1968, 47 COMP. GEN. 587

PAY - PROMOTIONS - TEMPORARY - EFFECTIVE DATE - MEMBERS IN A "MISSING STATUS" ALTHOUGH IN VIEW OF THE ABSENCE OF LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 5787, AN ACCEPTANCE IS REQUIRED TO MAKE A TEMPORARY PROMOTION UNDER 10 U.S.C. 5784 LEGALLY EFFECTIVE FOR THE PURPOSE OF RECEIVING THE PAY AND ALLOWANCES OF THE HIGHER GRADE, TO DENY NAVY ENSIGNS AND MARINE CORPS SECOND LIEUTENANTS IN A "MISSING STATUS" THE BENEFITS OF THE TEMPORARY PROMOTIONS PRESCRIBED BY SECTION 5784 ON THE BASIS OF THE ACCEPTANCE REQUIREMENT WOULD DEFEAT THE OBJECTIVE OF THE MISSING PERSONS ACT. THEREFORE, THE PAY ACCOUNT OF A MARINE CORPS SECOND LIEUTENANT TEMPORARILY PROMOTED UNDER SECTION 5784 TO FIRST LIEUTENANT WHILE IN A MISSING STATUS MAY BE CREDITED WITH THE INCREASED PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE ADMINISTRATIVELY DETERMINED UNDER THE AUTHORITY OF 37 U.S.C. 556 TO BE THE DATE THE OFFICER WOULD HAVE ACCEPTED THE PROMOTION. PAY - PROMOTIONS - TEMPORARY - ACCEPTANCE OF PROMOTION THE PERSONAL ACT OF ACCEPTING A TEMPORARY PROMOTION UNDER 10 U.S.C. 5784 BY INDIVIDUALS OTHER THAN THOSE IN A "MISSING STATUS" WITHIN THE PURVIEW OF THE MISSING PERSONS ACT COULD BE MET FOR NAVY ENSIGNS AND MARINE CORPS SECOND LIEUTENANTS FOR THE PURPOSE OF ACHIEVING THE EARLIEST POSSIBLE DATE OF PRECEDENCE IN THE RANK TO WHICH TEMPORARILY PROMOTED BY PROVIDING THAT THE EFFECTIVE DATE OF THE TEMPORARY PROMOTION WOULD BE THE FUTURE DATE SPECIFIED IN THE ORDER ANNOUNCING THE PROMOTION OR A LATER ACTUAL DATE OF ACCEPTANCE BY THE OFFICER, ACCOMPLISHED OVER HIS SIGNATURE. PAY - PROMOTIONS - TEMPORARY - TERMINATION OF TEMPORARY APPOINTMENT TO MEET THE PROBLEMS ARISING BY REASON OF THE ABSENCE IN 10 U.S.C. 5784, AUTHORIZING THE TEMPORARY PROMOTION OF NAVY ENSIGNS AND MARINE CORPS SECOND LIEUTENANTS, OF LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 5787 ENTITLING TEMPORARILY PROMOTED NAVY AND MARINE CORPS OFFICERS TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE THE PROMOTION IS MADE, AND PROVIDING THAT UPON THE TERMINATION OR EXPIRATION OF THE TEMPORARY APPOINTMENT, THE OFFICER SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED A TEMPORARY PROMOTION, WILL REQUIRE REMEDIAL LEGISLATION THAT WOULD BE RETROACTIVELY EFFECTIVE TO THE EXTENT, AT LEAST, OF RECTIFYING ANY LEGAL DEFICIENCY IN SUPERSEDING APPOINTMENT ACTIONS ISSUED UNDER SECTION 5784 TO THE OFFICERS SERVING UNDER PRIOR PROMOTIONS EFFECTED PURSUANT TO SECTION 5787.

TO THE SECRETARY OF THE NAVY, APRIL 24, 1968:

REFERENCE IS MADE TO LETTER OF FEBRUARY 22, 1968, FROM THE UNDER SECRETARY OF THE NAVY SUPPLEMENTING THE REQUEST OF LIEUTENANT COLONEL I. L. RAY, UNITED STATES MARINE CORPS (A DISBURSING OFFICER) PRESENTED IN HER LETTER OF JANUARY 19, 1968, FOR A DECISION WHETHER A PROMOTION EFFECTED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 5784 MAY BE GIVEN EFFECT FOR PAY AND ALLOWANCE PURPOSES IN THE ABSENCE OF AN ACCEPTANCE THEREOF BY THE OFFICER CONCERNED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NUMBER DO-MC-964 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE PARTICULAR CASE SUBMITTED BY COLONEL RAY CONCERNS FIRST LIEUTENANT LAWRENCE N. HELBER, O81419, U.S. MARINE CORPS, WHO ON JANUARY 24, 1966, WHILE SERVING AS A SECOND LIEUTENANT, ENTERED "MISSING STATUS" WITHIN THE PURVIEW OF THE MISSING PERSONS ACT (NOW CODIFIED IN CHAPTER 10, SECTIONS 551-558, TITLE 37, U.S. CODE). LIEUTENANT HELBER'S "MISSING STATUS" HAS BEEN CONTINUED IN ACCORDANCE WITH THE REVIEW PROVISIONS OF 37 U.S.C. 555 (A) AND HE HAS NOT BEEN ABLE TO ACCEPT THE TEMPORARY APPOINTMENT TO THE GRADE OF FIRST LIEUTENANT IN THE MARINE CORPS WHICH WAS ISSUED APRIL 6, 1967, UNDER AUTHORITY OF 10 U.S.C. 5784.

COLONEL RAY POINTS OUT (1) THAT RULE 5, TABLE 1-2-2 IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL OF JANUARY 1, 1967, PROVIDES THAT AN INCREASE IN PAY AND ALLOWANCES INCIDENT TO A TEMPORARY PROMOTION MADE UNDER AUTHORITY OF SECTION 5784 BECOMES EFFECTIVE ON "DATE OF ACCEPTANCE OF APPOINTMENT; " (2) THAT UNLIKE SOME OTHER PROVISIONS IN TITLE 10, U.S. CODE, SECTION 5784 DOES NOT SPECIFY THE EFFECTIVE DATE FOR PAY AND ALLOWANCES IN THE CASES OF PROMOTIONS EFFECTED THEREUNDER; (3) THAT SHE IS UNAWARE OF ANY OTHER STATUTORY PROVISION WHICH FIXES AN EFFECTIVE DATE FOR PAY AND ALLOWANCES FOR PROMOTIONS MADE UNDER SECTION 5784; AND (4) THAT IN DECISION OF JULY 7, 1950, 30 COMP. GEN. 2, IT WAS HELD THAT A PERSON WHO ACCEPTS A TEMPORARY APPOINTMENT MADE UNDER AUTHORITY OF SECTION 302, OFFICER PERSONNEL ACT OF AUGUST 7, 1947, CH. 512, 61 STAT. 829 831 (THE LEGISLATIVE ANTECEDENT OF SECTION 5784) IS NOT ENTITLED TO THE INCREASED PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE OR RANK TO WHICH SO PROMOTED PRIOR TO THE DATE OF ACCEPTANCE OF THE TEMPORARY (PROMOTION) APPOINTMENT.

THE UNDER SECRETARY REFERS TO CERTAIN PROBLEMS CONFRONTING THE NAVY AND MARINE CORPS WITH RESPECT TO THE ACCELERATED TEMPORARY PROMOTIONS CURRENTLY BEING MADE FROM ENSIGN TO LIEUTENANT (JG) IN THE NAVY AND FROM SECOND LIEUTENANT TO FIRST LIEUTENANT IN THE MARINE CORPS UNDER PRESENT DAY TO DAY NAVAL OPERATIONS. IT IS STATED THAT MOST OF SUCH PROMOTIONS ARE BEING MADE UNDER AUTHORITY OF SECTION 5784 AFTER THE OFFICERS CONCERNED HAVE SERVED A CERTAIN NUMBER OF MONTHS AS ENSIGNS OR SECOND LIEUTENANTS, AS THE CASE MAY BE, BUT LESS THAN THE 3-YEAR PERIOD OF SERVICE PRESCRIBED IN 10 U.S.C. 5788 FOR PROMOTION TO SUCH HIGHER GRADES.

IN VIEW OF THE SPECIFIC STATUTORY LANGUAGE CONTAINED IN SUBSECTION (G) OF SECTION 5787 (SIMILAR LANGUAGE IS NOT CONTAINED IN SECTION 5784), A TEMPORARY PROMOTION EFFECTED UNDER AUTHORITY OF SECTION 5787 ENTITLES THE INDIVIDUAL CONCERNED TO THE PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE FROM THE DATE THE PROMOTION IS MADE. HOWEVER, SUBSECTION 5787 EXPRESSLY PROVIDES THAT WHEN A TEMPORARY APPOINTMENT MADE UNDER THAT SECTION TERMINATES OR EXPIRES, THE MEMBER CONCERNED SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED SUCH TEMPORARY APPOINTMENT. HENCE, THE UNDER SECRETARY EMPHASIZES THE NEED OF MAKING CERTAIN TEMPORARY APPOINTMENTS UNDER SECTION 5784 RATHER THAN SECTION 5787 SO AS TO ENABLE THE OFFICERS CONCERNED TO MEET THE SERVICE IN GRADE PREREQUISITES FOR CAREER ADVANCEMENT IN THE NAVAL SERVICE.

THE UNDER SECRETARY ALSO ADDS THAT PAST PRACTICE IN THE NAVAL SERVICE HAD BEEN NOT TO GIVE ANY EFFECT TO THE PROMOTION OF AN ENSIGN OR SECOND LIEUTENANT TO THE NEXT HIGHER GRADE WHERE SUCH PROMOTION WAS MADE UNDER AUTHORITY OF SECTION 5784 UNTIL THE INDIVIDUAL CONCERNED HAD EXECUTED SOME DOCUMENT FIRMLY EVIDENCING ACCEPTANCE OF THE PROMOTION. IT IS REPORTED THAT WHILE SUCH PRACTICE CAUSED OCCASIONAL PROBLEMS, GROSS INEQUITIES IN LARGE NUMBERS DID NOT ARISE UNTIL THE COMMITMENT OF MAJOR NAVAL AND MARINE CORPS FORCES IN VIETNAM.

THE UNDER SECRETARY POINTS OUT THAT CONTINUATION OF PAST PRACTICES WILL RESULT IN THE LOSS OF VERY IMPORTANT PRECEDENCE BY MANY OFFICERS WHO ON THE DAY THAT THEY OTHERWISE WOULD HAVE BECOME ENTITLED TO THE PROMOTION ARE PHYSICALLY UNABLE TO EXECUTE SOME FORMAL DOCUMENTARY EVIDENCE OF THEIR "ACCEPTANCE" OF SUCH ADVANCEMENT IN GRADE. SUCH INSTANCES OCCUR, IT IS STATED, WHEN THE OFFICER CONCERNED IS A PRISONER OF WAR, MISSING IN ACTION, ON A COMBAT MISSION OR PATROL, ON TEMPORARY DUTY AWAY FROM HIS UNIT, ON LEAVE, OR IN TRANSIT TO ANOTHER DUTY STATION, SITUATIONS WHICH ARE MENTIONED AS FREQUENTLY ARISING IN THE EVERYDAY PERFORMANCE OF ASSIGNED NAVAL DUTIES.

IT IS STATED THAT IN VIEW OF THIS PROBLEM THE COMMANDANT OF THE MARINE CORPS AND THE CHIEF OF NAVAL PERSONNEL REQUESTED THE JUDGE ADVOCATE GENERAL OF THE NAVY TO EXAMINE THE REQUIREMENT FOR AN "ACCEPTANCE" OF A PROMOTION MADE UNDER AUTHORITY OF SECTION 5784. THE LATTER OFFICIAL CONCLUDED THAT "ACCEPTANCE" OF A PROMOTION MADE UNDER SECTION 5784 MAY BE PRESUMED, AS A MATTER OF LAW, UNLESS THE OFFICER IN QUESTION DECLINES THE PROMOTION AT THE TIME IT IS TO BECOME EFFECTIVE OR AT SOME SUBSEQUENT DATE. THE UNDER SECRETARY ADDS THAT ON THE BASIS OF THE JUDGE ADVOCATE GENERAL'S OPINION AND THE RECOMMENDATIONS OF THE COMMANDANT OF THE MARINE CORPS AND THE CHIEF OF NAVAL PERSONNEL:

I HAVE AUTHORIZED THE PROMOTION OF CERTAIN OFFICERS UNDER THE AUTHORITY OF 10 U.S.C. 5784 AND THE USE OF THE LEGAL PRESUMPTION OF THEIR "ACCEPTANCE" OF THOSE PROMOTIONS.

THE UNDER SECRETARY THEN REFERS TO COLONEL RAY'S REQUEST FOR AN ADVANCE DECISION STATING THAT SUCH REQUEST---

* * * IS ACTUALLY CONCERNED WITH WHETHER THE LEGAL PRESUMPTION OF"ACCEPTANCE" OF PROMOTIONS UNDER 10 U.S.C. 5784 IS APPLICABLE TO THE ENTITLEMENT TO INCREASED PAY AND ALLOWANCES, AS WELL AS TO FIXING THE OFFICERS' DATES OF RANK AS THE JUDGE ADVOCATE GENERAL HAS HELD.

IN CONCLUSION IT IS REQUESTED THAT IN OUR RESPONSE TO THE DISBURSING OFFICER WE TREAT SPECIFICALLY:

* * * WITH THE QUESTION OF PRESUMING, FOR PURPOSES OF PAY AND ALLOWANCES, THE "ACCEPTANCE" OF PROMOTIONS MADE UNDER THE AUTHORITY OF 10 U.S.C. 5784, ASSUMING, OF COURSE, THAT THE PRESUMPTION IS PROPERLY RECORDED AFTER BEING MADE BY AN APPROPRIATE AUTHORITY.

IN THE EVENT IT IS DETERMINED THAT THE PRESUMPTION OF ACCEPTANCE THEORY CANNOT BE GIVEN LEGAL EFFECT FOR PAY AND ALLOWANCE PURPOSES, FURTHER ADVICE IS REQUESTED "AS TO THE MINIMUM FORMAL REQUIREMENTS FOR SUCH ,ACCEPTANCES, TO BE EFFECTIVE UNDER CURRENT LAWS.'

THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AS SET FORTH IN A MEMORANDUM DATED MARCH 15, 1967, ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS AND THE CHIEF OF NAVAL PERSONNEL WAS IN RESPONSE TO THE FOLLOWING SPECIFIC QUESTION:

MAY THE ACCEPTANCE OF A PROMOTION UNDER THE OFFICER PERSONNEL ACT OR THE TEMPORARY PROMOTION ACT BE PRESUMED IN THE CASE OF AN OFFICER WHO IS MISSING IN ACTION OR WHO IS A PRISONER OF WAR?

THE OPINION OF MARCH 15, 1967, MAKES SPECIFIC REFERENCE TO ONLY ONE STATUTORY PROVISION, NAMELY, SECTION 5787, WHICH WAS DERIVED FROM THE TEMPORARY PROMOTION AUTHORITY CONTAINED IN THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603-605. SUBSECTION (G) OF SECTION 5787 PROVIDES THAT:

(G) EACH TEMPORARY APPOINTMENT UNDER THIS SECTION, UNLESS EXPRESSLY DECLINED, IS, WITHOUT FORMAL ACCEPTANCE, REGARDED AS ACCEPTED ON THE DATE MADE. THE OPINION CONCLUDES WITH THE STATEMENT:

IN VIEW OF THE FOREGOING, THE JUDGE ADVOCATE GENERAL IS OF THE OPINION THAT THE ACCEPTANCE OF A PROMOTION UNDER EITHER THE OFFICER PERSONNEL ACT OR THE PROVISIONS OF 10 U.S.C. 5787 MAY BE PRESUMED IN THE CASE OF AN OFFICER WHO IS MISSING IN ACTION OR WHO IS A PRISONER OF WAR UNLESS SUCH OFFICER EXPRESSLY DECLINES SUCH PROMOTION AT A SUBSEQUENT DATE.

WE AGREE WITH THE CONCLUSION REACHED BY THE JUDGE ADVOCATE GENERAL WITH RESPECT TO THE EFFECTIVE DATE OF TEMPORARY PROMOTIONS MADE PURSUANT TO THE PROVISIONS OF SECTION 5787 SINCE SUCH CONCLUSION IS CLEARLY SUPPORTED BY THE LANGUAGE CONTAINED IN SUBSECTION (G) OF THAT SECTION.

HOWEVER, THE JUDGE ADVOCATE GENERAL'S CONCLUSION WITH RESPECT TO THE PRESUMED ACCEPTANCE OF A PROMOTION MADE UNDER AUTHORITY OF THE OFFICER PERSONNEL ACT OF 1947 RELIED PRIMARILY ON AN ATTORNEY GENERAL OPINION OF 1867, 12 OP. ATTY. GEN. 229, AND ON A DECISION OF THIS OFFICE DATED DECEMBER 9, 1952, B-109506. ALSO, REFERENCE WAS MADE TO THE FACT THAT IN A LETTER ADDRESSED TO THE CHIEF OF NAVAL PERSONNEL (JAG: 121.7: JEM SER 9176 7 DEC 1962) THE JUDGE ADVOCATE GENERAL HELD:

* * * THAT A SUPERSEDING TEMPORARY APPOINTMENT UNDER THE OFFICER PERSONNEL ACT DOES NOT REQUIRE A FORMAL ACCEPTANCE AND THAT OFFICERS TO WHOM SUCH SUPERSEDING APPOINTMENTS WERE ISSUED ARE DEEMED TO HAVE ACCEPTED SUCH APPOINTMENTS.

SECTION 5784 IS NOT EVEN MENTIONED IN THE OPINION OF MARCH 15, 1967, ALTHOUGH IT APPEARS TO BE EMBRACED IN THE GENERAL DISCUSSION SET FORTH IN PARAGRAPHS 5 AND 6 OF THE OPINION RELATING TO THE OFFICER PERSONNEL ACT OF 1947. AS PREVIOUSLY INDICATED, SECTION 5784 WAS DERIVED FROM SECTION 302 OF THE 1947 LAW. THE FIRST PROVISO OF SUBSECTION (E) OF SECTION 302, 61 STAT. 830, PROVIDED:

* * * THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NO PERSON WHO SHALL ACCEPT A TEMPORARY APPOINTMENT UNDER THE PROVISIONS OF THIS TITLE SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED * * * IN THE DECISION OF JULY 7, 1950, 30 COMP. GEN. 2, IT WAS HELD:

* * * HENCE, SINCE THE FIRST PROVISO IN SECTION 302 (E), SUPRA, IN EFFECT, PROHIBITS PERSONS WHO "ACCEPT" TEMPORARY APPOINTMENTS UNDER THAT TITLE FROM RECEIVING PAY AND ALLOWANCES OTHER THAN THOSE PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, AND AS THE EFFECTIVE DATE OF SUCH TEMPORARY APPOINTMENTS OR PROMOTIONS FOR PAY PURPOSES IS NOT "OTHERWISE PROVIDED HEREIN," IT MUST BE CONCLUDED THAT A PERSON WHO ACCEPTS A TEMPORARY APPOINTMENT PURSUANT TO SECTION 302 IS NOT ENTITLED TO THE INCREASED PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE OR RANK PRIOR TO THE DATE OF ACCEPTANCE OF THE TEMPORARY APPOINTMENT.

THE CONCLUSION REACHED IN THE DECISION OF JULY 7, 1950, WAS ADOPTED AND FOLLOWED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN AN OPINION RENDERED MARCH 22, 1955, ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS ON THE FOLLOWING QUESTION WHICH HAD ARISEN IN CONNECTION WITH TEMPORARY PROMOTIONS TO THE GRADE OF FIRST LIEUTENANT IN THE MARINE CORPS AND MARINE CORPS RESERVE AFTER 18 MONTHS' SERVICE IN THE GRADE OF SECOND LIEUTENANT EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 302 (D) OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED (NOW FOUND IN 10 U.S.C. 5784):

(A) WHAT IS THE DATE FROM WHICH INCREASED PAY AND ALLOWANCES ACCRUE UNDER THE TEMPORARY PROMOTIONS TO FIRST LIEUTENANT EFFECTED AS ABOVE? IT SHOULD BE NOTED THAT THE QUESTION THERE CONSIDERED APPEARS TO BE IDENTICAL TO THE ISSUE POSED BY COLONEL RAY IN HER SUBMISSION OF JANUARY 19, 1968, AND IN THE DISCUSSION SET FORTH IN THE UNDER SECRETARY'S LETTER OF FEBRUARY 22, 1968, EXCEPT THAT THE MISSING PERSONS ACT, 50 U.S.C. APP. 1001, HAD NO APPLICABILITY IN THAT CASE.

IN THE OPINION OF MARCH 22, 1955, THE JUDGE ADVOCATE GENERAL OF THE NAVY STATED:

4. IT IS CONSIDERED THAT THE DECISION OF THE COMPTROLLER GENERAL QUOTED IN PART ABOVE IS APPLICABLE TO THE TEMPORARY PROMOTIONS TO FIRST LIEUTENANT IN THE MARINE CORPS AND MARINE CORPS RESERVE INVOLVED HEREIN. ACCORDINGLY, IN ANSWER TO QUESTION (A), IT IS MY OPINION THAT THE EFFECTIVE DATE FOR PAY PURPOSES OF THE TEMPORARY PROMOTIONS OF THIS CATEGORY IS THE DATE ON WHICH THE INDIVIDUAL OFFICERS ACCEPT THE TEMPORARY APPOINTMENT TO THE HIGHER GRADE.

THE CONCLUSION REACHED IN THE DECISION OF DECEMBER 9, 1952, B 109506, CITED BY THE JUDGE ADVOCATE GENERAL IN HIS OPINION OF MARCH 15, 1967, IS NOT OF MUCH SIGNIFICANCE IN THE MATTER HERE UNDER CONSIDERATION. THAT DECISION FINDS ITS SOLE STATUTORY SUPPORT IN THE SPECIFIC LANGUAGE OF THE ACT OF MARCH 4, 1913, CH. 148, 37 STAT. 892. QUOTING FROM 34 U.S.C. 870 (1952 ED.), IT WAS PROVIDED THAT:

ALL OFFICERS OF THE NAVY WHO, SINCE THE 3D DAY OF MARCH, 1899, HAVE BEEN ADVANCED OR MAY HEREAFTER 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 COMMISSIONS. THE ABOVE-QUOTED STATUTORY PROVISIONS WERE LATER CODIFIED AS SUBSECTION (C) OF SECTION 5788, TITLE 10, U.S. CODE, AND NOW ARE SET FORTH IN 37 U.S.C. 905 (D). SEE PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 488. IN SECTION 5 OF THE ACT OF JUNE 30, 1942, CH. 462, 56 STAT. 465, 50 U.S.C. APP. 810 (1946 ED.), CONGRESS PROVIDED THAT PERSONNEL THERETOFORE OR THEREAFTER TEMPORARILY APPOINTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, WOULD BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT AND THAT SUCH APPOINTMENTS, UNLESS EXPRESSLY DECLINED, ARE TO BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE "WITHOUT FORMAL ACCEPTANCE" OR OATH OF OFFICE. THIS STATUTORY PROVISION WAS INADVERTENTLY REPEALED IN SECTION 426 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 880, AND THEN WAS REENACTED BY SECTION 3, ACT OF MAY 22, 1950, CH. 193, 64 STAT. 187, 34 U.S.C. 350K (1952ED.), AS A NEW SECTION 12 OF THE 1941 LAW. ALSO, SECTION 2 OF THE 1950 LAW (SEE 10 U.S.C. 5792) ABOLISHED THE REQUIREMENT OF NAVAL AND MARINE CORPS PERSONNEL TO RENEW OR TO TAKE A NEW OATH OF OFFICE UPON PROMOTION TO A HIGHER GRADE IF SERVICE AFTER HAVING TAKEN THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES (NOW U.S.C. 3331) HAS BEEN CONTINUOUS.

IN THE ACT OF OCTOBER 14, 1942, CH. 604, 56 STAT. 787 (NOW APPLICABLE TO OFFICERS OF THE ARMY AND AIR FORCE, BOTH AS TO PERMANENT AND TEMPORARY PROMOTIONS--- SEE 10 U.S.C. 3312, 3394, 3451 AND 8312, 8394, 8451, RESPECTIVELY), CONGRESS EXPRESSLY PROVIDED THAT UPON PROMOTION TO A HIGHER GRADE THE OFFICER CONCERNED WOULD BE CONSIDERED TO HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE EXPRESSLY DECLINES THE PROMOTION; THAT SUCH OFFICER SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THAT DATE UNLESS ENTITLED TO THEM FROM AN EARLIER DATE UNDER ANOTHER PROVISION OF LAW AND THAT THE OFFICER NEED NOT TAKE A NEW OATH OF OFFICE UPON SUCH PROMOTION IF HIS SERVICE SINCE LAST TAKING SUCH OATH HAS BEEN CONTINUOUS.

IT IS EVIDENT, THEREFORE, THAT CONGRESS LONG HAS BEEN AWARE OF THE RULE FOLLOWED BY THE ADMINISTRATIVE AND ACCOUNTING OFFICERS OF THE GOVERNMENT THAT IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING OTHERWISE AN ACCEPTANCE IS ESSENTIAL TO INVEST THE INDIVIDUAL CONCERNED WITH A HIGHER GRADE UPON PROMOTION IN THE MILITARY OR NAVAL SERVICE AND ESPECIALLY HAS THIS BEEN TRUE WITH RESPECT TO THE RIGHT TO RECEIVE THE INCREASED PAY AND ALLOWANCES OF THE HIGHER GRADE TO WHICH PROMOTED.

CLEARLY REFLECTING THIS AWARENESS ON THE PART OF CONGRESS, THE OFFICER PERSONNEL ACT OF 1947 CONTAINED MANY SPECIFIC PROVISIONS DEFINITELY PRESCRIBING FOR PURPOSES OF RECEIVING INCREASED PAY AND ALLOWANCES THE EFFECTIVE DATE OF PROMOTIONS TO HIGHER GRADE OR RANK MADE UNDER THE AUTHORITY OF THAT ACT. SEE SECTIONS 311 (A) (2), (B) (1), (B) (2), (B) (3), AND 314 (H) OF THE ACT, 61 STAT. 852, 853 AND 864, 34 U.S.C. 306F (A) (2), (B), AND 626-1 (H) (1952 ED.). ALSO SEE SUBSECTION (O) OF SECTION 304 AS AMENDED BY SECTION (1) (A), ACT OF AUGUST 5, 1949, CH. 402, 63 STAT. 567, 34 U.S.C. 211 (A) (O) (1952 ED.), WHICH EXPRESSLY PROVIDED AS TO ANY OFFICER COVERED BY THAT SUBSECTION THAT "SUCH OFFICER SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE TO WHICH SO APPOINTED FROM THE DATE OF HIS APPOINTMENT.' COMPARE THE STATUTORY PROVISIONS WHICH ARE NOW CODIFIED IN SECTIONS 904 AND 905, TITLE 37, U.S.C.

AS INDICATED ABOVE CONGRESS WAS WELL AWARE BEFORE ENACTING THE OFFICER PERSONNEL ACT OF 1947 THAT UNLESS AN EFFECTIVE DATE FOR PURPOSES OF RECEIVING HIGHER PAY AND ALLOWANCES WAS STATUTORILY PRESCRIBED, THE HIGHER PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED WOULD NOT BE PAYABLE TO THE PERSON PROMOTED FOR ANY PERIOD BEFORE THE ACTUAL DATE OF ACCEPTANCE OF SUCH PROMOTION. SINCE SECTION 302 OF THE 1947 LAW (THE LEGISLATIVE ANTECEDENT OF SECTION 5784), CONTAINED NO SUCH LANGUAGE, THE PHRASEOLOGY USED IN THAT SECTION WHEN COMPARED WITH OTHER PROVISIONS OF THE SAME ACT (IN WHICH CONGRESS EXPRESSLY SPECIFIED AN EFFECTIVE DATE FOR PURPOSES OF ENTITLEMENT TO THE HIGHER PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED) INDICATES AN ACQUIESCENCE ON THE PART OF CONGRESS IN THE GENERAL RULE REFERRED TO ABOVE, NAMELY, THAT IN THE ABSENCE OF A SPECIFIC STATUTE PROVIDING OTHERWISE, AN ACCEPTANCE IS ESSENTIAL TO INVEST THE INDIVIDUAL CONCERNED WITH THE HIGHER GRADE TO WHICH PROMOTED.

CONSEQUENTLY, WE FEEL OBLIGED TO CONCLUDE THAT EXCEPT AS INDICATED BELOW WITH RESPECT TO PERSONS WHO ARE IN A "MISSING STATUS" A PROMOTION EFFECTED UNDER SECTION 5784 REQUIRES AN ACCEPTANCE BEFORE IT CAN BECOME LEGALLY EFFECTIVE FOR PURPOSES OF RECEIVING THE INCREASED PAY AND ALLOWANCES OF THE HIGHER GRADE TO WHICH TEMPORARILY PROMOTED. IF IT IS BELIEVED THAT SECTION 5784 SHOULD BE TAKEN OUT OF THE GENERAL RULE, THAT IS A MATTER WHICH SHOULD BE BROUGHT TO THE ATTENTION OF THE CONGRESS.

IT IS OUR VIEW THAT AN EXCEPTION IS PERMISSIBLE IN THE CASE OF THOSE MEMBERS OF THE NAVY OR MARINE CORPS WHO ARE PREVENTED FROM ACCEPTING A SECTION 5784 PROMOTION BY REASON OF BEING IN A ,MISSING STATUS" AS SUCH STATUS IS DEFINED IN 37 U.S.C. 551 (2). IN DECISION OF NOVEMBER 30, 1966, B-159399, ADDRESSED TO THE SECRETARY OF STATE, THERE WAS CONSIDERED THE CASE OF A FOREIGN SERVICE OFFICER (A CIVILIAN FEDERAL EMPLOYEE), WHO HAD BEEN PLACED IN A "MISSING STATUS" UNDER THE MISSING PERSONS ACT OF 1942, AS AMENDED (NOW CODIFIED FOR CIVILIAN FEDERAL EMPLOYEES IN SECTIONS 5561- 5568, TITLE 5, U.S. CODE), INCIDENT TO HIS ABDUCTION BY ENEMY FORCES IN VIETNAM. PRIOR TO HIS ABDUCTION, THE FOREIGN SERVICE OFFICER HAD BEEN RECOMMENDED FOR PROMOTION AND AFTER HAVING BEEN PLACED IN A "MISSING STATUS" WAS NOMINATED BY THE PRESIDENT AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE WAS APPOINTED TO THE HIGHER GRADE. BECAUSE OF HIS "MISSING STATUS" THE OFFICER, OF COURSE, HAD BEEN UNABLE TO EXECUTE THE OATH OF OFFICE AND AFFIDAVITS REQUIRED BY STATUE AND REGULATIONS AS CONDITIONS PRECEDENT TO HIS RECEIPT OF THE HIGHER SALARY OF THE GRADE TO WHICH PROMOTED.

THE RECORD INDICATED THAT UPON HIS INITIAL APPOINTMENT AS A FOREIGN SERVICE OFFICER AND AGAIN UPON PROMOTION TO THE GRADE IN WHICH HE WAS SERVING AT THE TIME HIS "MISSING STATUS" COMMENCED, THE OFFICER HAD EXECUTED AN OATH OF OFFICE TOGETHER WITH THE AFFIDAVITS REQUIRED BY LAW. IT WAS STATED IN THE DECISION OF NOVEMBER 30, 1966:

UPON FURTHER CONSIDERATION * * * WE HOLD THAT A REASONABLE BASIS EXISTS FOR THE VIEW THAT TO DENY COMPENSATION PAYMENTS OTHERWISE DUE UNDER THE MISSING PERSONS ACT ON THE BASIS OF THE STAUTORY AND REGULATORY REQUIREMENTS HERE IN QUESTION AFFECTING THE PROMOTIONS OF FOREIGN SERVICE OFFICERS WOULD TEND TO PARTIALLY DEFEAT THE PURPOSE OF THAT ACT. IN THAT REGARD WE NOTE THE BROAD AUTHORITY VESTED IN DEPARTMENT HEADS, OR THEIR DESIGNEES, CONCERNING ENTITLEMENT TO PAY OF PERSONS UNDER THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APPENDIX 1002, 1009. THEREFORE, IF A CERTIFICATION IS MADE BY THE DEPARTMENT THAT THERE IS NO EVIDENCE THAT * * * COULD NOT NOW EXECUTE THE AFFIDAVITS ON STANDARD FORM 61A WITHOUT BEING IN VIOLATION OF THE PROVISIONS THEREIN, AND THAT THERE IS NO REASON TO BELIEVE THAT HE WOULD NOT EXECUTE THE AFFIDAVITS, WE WILL NO LONGER INTERPOSE OBJECTION TO * * * (HIS) ACCOUNT BEING CREDITED WITH THE SALARY OF A FOREIGN SERVICE OFFICER, CLASS 6, IF OTHERWISE PROPER.

NO REASON IS PERCEIVED WHY THE HOLDING IN DECISION OF NOVEMBER 30, 1966, PROPERLY MAY NOT BE APPLIED IN THE CASE OF THOSE MEMBERS OF THE NAVY AND MARINE CORPS WHO ARE TEMPORARILY PROMOTED UNDER AUTHORITY OF SECTION 5784 WHILE IN A "MISSING STATUS.' ACCORDINGLY, UPON A DETERMINATION MADE UNDER AUTHORITY OF CHAPTER 10, TITLE 37, U.S.C. (SEE IN PARTICULAR SUBSECTION (C) AND CLAUSE (6), SUBSECTION (A) OF SECTION 556), THAT THE INDIVIDUALS CONCERNED ARE DEEMED TO HAVE ACCEPTED THEIR PROMOTIONS MADE PURSUANT TO SECTION 5784, THE PAY ACCOUNTS OF NAVY AND MARINE CORPS PERSONNEL WHO ARE IN A "MISSING STATUS" MAY BE CREDITED WITH INCREASED PAY AND ALLOWANCES EFFECTIVE FROM THE DATE ADMINISTRATIVELY SPECIFIED AS BEING THE DATE THE INDIVIDUALS CONCERNED ACCEPTED SUCH PROMOTIONS.

CONCERNING THE UNDER SECRETARY'S REQUEST TO BE ADVISED--- IN THE EVENT OF AN UNFAVORABLE RESPONSE TO THE "LEGAL PRESUMPTION OF ,ACCEPTANCE," THEORY- -- AS TO THE MINIMUM FORMAL REQUIREMENTS FOR AN ACCEPTANCE "TO BE EFFECTIVE UNDER CURRENT LAWS," IT APPEARS CLEAR THAT A PERSON CANNOT ACCEPT A PROMOTION BEFORE HE BECOMES AWARE THAT THERE IS A PROMOTION FOR HIM TO ACCEPT. HENCE, THE PRIMARY ADMINISTRATIVE PROBLEM (OTHER THAN IN "MISSING STATUS" CASES ABOVE DISCUSSED) APPEARS TO LIE IN THE METHODS EMPLOYED IN INFORMING THE MEMBERS CONCERNED THAT THEY ARE BEING TEMPORARILY PROMOTED UNDER AUTHORITY OF SECTION 5784. ALTHOUGH AN ACCEPTANCE OF SUCH A PROMOTION REQUIRES THE PERSONAL ACT OF THE INDIVIDUAL CONCERNED, WE DO NOT FEEL THAT IT SHOULD BE NECESSARY FOR ENSIGNS IN THE NAVY AND SECOND LIEUTENANTS IN THE MARINE CORPS TO BE PERSONALLY PRESENT WHEN A "PROMOTION" MESSAGE IS RECEIVED AT THE HEADQUARTERS UNIT FOR THE PURPOSE OF ACHIEVING THE EARLIEST POSSIBLE DATE OF PRECEDENCE IN THE RANK TO WHICH TEMPORARILY PROMOTED UNDER THE AUTHORITY OF SECTION 5784.

THIS PROBLEM COULD BE MET TO A CERTAIN EXTENT IF NOTICES OF TEMPORARY PROMOTIONS EFFECTED UNDER SECTION 5784 WERE WORDED SO AS TO SPECIFY A FUTURE DATE ON WHICH SUCH TEMPORARY PROMOTIONS WERE TO BECOME EFFECTIVE. WE FEEL SUCH A METHOD WOULD PERMIT MOST, IF NOT ALL, OF THE OFFICERS INVOLVED TO RECEIVE NOTICE AND ACCEPT THEIR PROMOTIONS PRIOR TO THE EFFECTIVE DATE THEREIN SPECIFIED RESULTING (1) IN MORE UNIFORM DATES OF RANK AMONG THE OFFICERS SO PROMOTED AND (2) ELIMINATING THE ELEMENT OF UNFAIRNESS WHICH ARISES IN DATES OF RANK UNDER CURRENT PROCEDURES BECAUSE SOME INDIVIDUALS CANNOT BE NOTIFIED OF THEIR PROMOTIONS UNDER SECTION 5784 AS PROMPTLY AS OTHERS WHO HAPPEN TO BE AT THE HEADQUARTERS UNIT WHEN THE PROMOTION ANNOUNCEMENT IS RECEIVED THERE.

UNDER THE METHOD SUGGESTED THE EFFECTIVE DATE OF PROMOTION WOULD BE THE FUTURE DATE SPECIFIED IN THE ORDER ANNOUNCING THE PROMOTION OR THE ACTUAL DATE OF ACCEPTANCE IF THE ACCEPTANCE DATE WERE LATER. IN ANY EVENT, UNDER CURRENT LAW AND PROCEDURES WE KNOW OF NO MANNER WHEREBY THE ACTUAL DATE OF ACCEPTANCE BY THE OFFICER CONCERNED MAY BE DISREGARDED. SUCH ACCEPTANCE SHOULD BE ACCOMPLISHED IN WRITING OVER THE OFFICER'S SIGNATURE.

THE CONCLUSION STATED ABOVE WITH RESPECT TO THE EFFECTIVE DATE OF SECTION 5784 PROMOTIONS BY NECESSITY CASTS DOUBT ON THE DATE OF RANK SPECIFIED IN PARAGRAPH 3, SECNAV NOTICE 1412, DATED NOVEMBER 6, 1962. SEE ALSO SECNAV NOTICE 1412 DATED AUGUST 1, 1963, AUGUST 29, 1964, SEPTEMBER 1, 1965, NOVEMBER 3, 1966, AND NOVEMBER 1, 1967, IN WHICH SUPERSEDING APPOINTMENTS TO THE TEMPORARY GRADE OF LIEUTENANT (JG) WERE ISSUED UNDER AUTHORITY OF SECTION 5784 TO CERTAIN OFFICERS OF THE NAVY THEN SERVING IN THE TEMPORARY GRADE OF LIEUTENANT (JG) UNDER PRIOR PROMOTIONS EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5787.

AS STATED ABOVE, UNDER SUBSECTION (J) OF SECTION 5787 IT IS EXPRESSLY PROVIDED THAT WHEN A TEMPORARY APPOINTMENT UNDER THAT SECTION IS TERMINATED OR EXPIRES "EACH MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED ANY SUCH APPOINTMENT.' ALSO SEE SUBSECTION (D), SECTION 5504 AND SUBSECTION (C), SECTION 5786, TITLE 10, U.S.C. THE LEGAL EFFECT OF THESE STATUTORY PROVISIONS IS FULLY RECOGNIZED IN PARAGRAPH 2A OF SECNAV NOTICE 1412 AS FOLLOWS:

ALL LIEUTENANTS (JUNIOR GRADE) OF THE REGULAR NAVY WITH DATES OF RANK BETWEEN * * * INCLUSIVE, WERE ORIGINALLY PROMOTED TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) UNDER TEMPORARY APPOINTMENTS MADE PURSUANT TO REFERENCE (A) (10 U.S.C. 5787). SUCH PROMOTIONS, BY LAW, DO NOT ESTABLISH ELIGIBILITY FOR CONSIDERATION FOR SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT; ACCORDINGLY, ALL OFFICERS STILL SERVING UNDER THESE TEMPORARY APPOINTMENTS MUST BE REAPPOINTED TO LIEUTENANT (JUNIOR GRADE) UNDER ANOTHER AUTHORITY IN ORDER TO ESTABLISH SUCH ELIGIBILITY.

SINCE THE PROBLEM MENTIONED ABOVE WITH RESPECT TO THE PROVISIONS OF SECTION 5784 WILL CONTINUE TO ARISE UNTIL A SPECIFIC STATUTORY PROVISION PROVIDES OTHERWISE, WE SUGGEST THAT THE DEPARTMENT OF DEFENSE ENDEAVOR TO HAVE APPROPRIATE REMEDIAL LEGISLATION INTRODUCED IN THE 90TH CONGRESS TO BE MADE RETROACTIVELY EFFECTIVE TO THE EXTENT, AT LEAST, OF RECTIFYING ANY LEGAL DEFICIENCY CURRENTLY LATENT IN THE SUPERSEDING APPOINTMENT ACTIONS TAKEN IN SECNAV NOTICE 1412, ABOVE REFERRED TO, OR OTHER COMPARABLE SITUATIONS.