B-28244, SEPTEMBER 28, 1942, 22 COMP. GEN. 272

B-28244: Sep 28, 1942

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT AN "ENLISTED OR ENROLLED MAN" WITHIN THE PURVIEW OF SECTION 13 OF THE ACT SO AS TO ENTITLE HIM TO THE ADDITIONAL PAY PRESCRIBED BY SAID SECTION FOR ENLISTED OR ENROLLED MEN AWARDED THE DISTINGUISHED FLYING CROSS OR THE SOLDIER'S MEDAL. RELEVANT SECTIONS OF THE ACT IN QUESTION ARE. UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE THE PRESIDENT IS HEREBY AUTHORIZED TO PRESENT. * * * THE PRESIDENT IS HEREBY AUTHORIZED TO PRESENT. EACH ENLISTED OR ENROLLED MAN TO WHOM THERE SHALL BE AWARDED THE DISTINGUISHED FLYING CROSS OR THE SOLDIER'S MEDAL SHALL BE ENTITLED TO ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FROM THE DATE OF THE ACT OF HEROISM OR EXTRAORDINARY ACHIEVEMENT ON WHICH THE AWARD IS BASED.

B-28244, SEPTEMBER 28, 1942, 22 COMP. GEN. 272

WARRANT OFFICERS - STATUS AS "ENLISTED MEN OR ENROLLED MEN" A WARRANT OFFICER TO WHOM HAS BEEN AWARDED THE SOLDIER'S MEDAL PURSUANT TO SECTION 11 OF THE ACT OF JULY 2, 1926, IS NOT AN "ENLISTED OR ENROLLED MAN" WITHIN THE PURVIEW OF SECTION 13 OF THE ACT SO AS TO ENTITLE HIM TO THE ADDITIONAL PAY PRESCRIBED BY SAID SECTION FOR ENLISTED OR ENROLLED MEN AWARDED THE DISTINGUISHED FLYING CROSS OR THE SOLDIER'S MEDAL.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. H. L. HAVILAND, U.S. ARMY, SEPTEMBER 28, 1942:

YOUR LETTER OF JULY 6, 1942, REQUESTS DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $3.07 (ENCLOSED WITH YOUR SUBMISSION), IN FAVOR OF STEPHAN POLANSKY (W-2103321), WARRANT OFFICER (JG), PURPORTING TO COVER ADDITIONAL PAY FOR SOLDIER'S MEDAL FOR THE PERIOD FROM MAY 15 TO JUNE 30, 1942.

YOU STATE THAT DOUBT AS TO THE PROPRIETY OF PAYMENT EXISTS DUE TO THE INTERPRETATION OF SECTION 13 OF THE ACT OF JULY 2, 1926, 44 STAT. 780, 789.

RELEVANT SECTIONS OF THE ACT IN QUESTION ARE, IN PERTINENT PART, AS FOLLOWS:

SEC. 11. UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE THE PRESIDENT IS HEREBY AUTHORIZED TO PRESENT, BUT NOT IN THE NAME OF CONGRESS, A MEDAL TO BE KNOWN AS THE SOLDIER'S MEDAL, * * * TO ANY PERSON WHO, WHILE SERVING IN ANY CAPACITY WITH THE ARMY OF THE UNITED STATES, INCLUDING THE NATIONAL GUARD AND THE ORGANIZED RESERVES, SHALL HEREAFTER DISTINGUISH HIMSELF, OR HERSELF, BY HEROISM NOT INVOLVING ACTUAL CONFLICT WITH AN ENEMY.

SEC. 12. UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, * * * THE PRESIDENT IS HEREBY AUTHORIZED TO PRESENT, BUT NOT IN THE NAME OF CONGRESS, A DISTINGUISHED FLYING CROSS * * *, TO ANY PERSON WHO, WHILE SERVING IN ANY CAPACITY WITH THE AIR CORPS OF THE ARMY OF THE UNITED STATES, INCLUDING THE NATIONAL GUARD AND THE ORGANIZED RESERVES, OR WITH THE UNITED STATES NAVY, * * * DISTINGUISHES HIMSELF BY HEROISM OR EXTRAORDINARY ACHIEVEMENT WHILE PARTICIPATING IN AN AERIAL FLIGHT * * *.

SEC. 13. EACH ENLISTED OR ENROLLED MAN TO WHOM THERE SHALL BE AWARDED THE DISTINGUISHED FLYING CROSS OR THE SOLDIER'S MEDAL SHALL BE ENTITLED TO ADDITIONAL PAY AT THE RATE OF $2 PER MONTH FROM THE DATE OF THE ACT OF HEROISM OR EXTRAORDINARY ACHIEVEMENT ON WHICH THE AWARD IS BASED, * * * AND SAID ADDITIONAL PAY SHALL CONTINUE THROUGHOUT HIS ACTIVE SERVICE, WHETHER SUCH SERVICE SHALL OR SHALL NOT BE CONTINUOUS. IT IS THUS APPARENT THAT THE SOLDIER'S MEDAL MAY BE AWARDED TO ANY PERSON OTHERWISE QUALIFIED, AND THAT OFFICERS AS WELL AS ENLISTED MEN, WHOM THE PRESIDENT SHALL CONSIDER AND SELECT AS ENTITLED THERETO "UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE" ARE ELIGIBLE FOR THE AWARD THEREOF. BUT SECTION 13 OF THE ACT EXPRESSLY LIMITS ALLOWANCES OF ADDITIONAL PAY OF $2 PER MONTH TO ENLISTED OR ENROLLED MEN WHO SHALL BE AWARDED THE SOLDIER'S MEDAL OR THE DISTINGUISHED FLYING CROSS, AND HENCE AN OFFICER OR PERSON OTHER THAN AN ENLISTED OR ENROLLED MAN, WHO MAY BE THE RECIPIENT OF THE SOLDIER'S MEDAL OR DISTINGUISHED FLYING CROSS IS NOT ENTITLED TO THE STATUTORY ADDITIONAL PAY. SUCH HAS BEEN THE CONSTRUCTION OF THE SUBJECT AND OTHER STATUTES OF LIKE TENOR, AND SIMILAR IF NOT IDENTICAL PHRASEOLOGY. SEE GENERALLY 7 COMP. GEN. 77; ID. 543; 13 ID. 282; A 27550, JUNE 28, 1929.

THOUGH YOU DO NOT SO STATE, IT IS PRESUMED THAT YOUR DOUBT LIES IN THE QUESTION AS TO WHETHER A WARRANT OFFICER (JG) MAY BE CLASSIFIED AS AN ENLISTED MAN, RATHER THAN AN OFFICER, AND SO ENTITLED TO THE ADDITIONAL PAY PROVIDED IN THE STATUTE FOR ENLISTED MEN AWARDED THE SOLDIER'S MEDAL, AND YOUR SUBMISSION IS HEREIN CONSIDERED ON THAT BASIS.

THE GRADES OR DESIGNATIONS OF "CHIEF WARRANT OFFICER" AND "WARRANT OFFICER (JUNIOR GRADE) " IN THE ARMY WERE ESTABLISHED BY THE ACT OF AUGUST 21, 1941, 55 STAT. 651, WHICH MODIFIED PREEXISTING PROVISIONS OF LAW RELATIVE TO WARRANT OFFICERS IN THE ARMY. HOWEVER, SUCH MODIFICATIONS ARE NOT HERE IMPORTANT AND NEED NOT BE NOTED AT LENGTH, SINCE THEY DID NOT FUNDAMENTALLY ALTER THE STATUS OF WARRANT OFFICERS AS SUCH, AND AS THEY HAD THERETOFORE BEEN A RECOGNIZED DISTINCT OFFICIAL CLASSIFICATION OF OFFICERS IN THE ARMY SINCE THE ACT OF JULY 9, 1918, 40 STAT. 881, WHICH MADE PROVISIONS FOR WARRANT OFFICERS IN THE ARMY MINE PLANTER SERVICE, AND THE ACT OF JUNE 4, 1920, 41 STAT. 761, AS AMENDED, WHICH PROVIDED FOR CERTAIN OTHER WARRANT OFFICERS. SUFFICE IT TO POINT OUT FOR PRESENT PURPOSES THAT THE ACT OF AUGUST 21, 1941, PROVIDES THAT WARRANT OFFICERS, WHETHER CHIEF OR JUNIOR GRADE, AND WHETHER UNDER ORIGINAL PERMANENT APPOINTMENT IN THE REGULAR ARMY OR TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, AS AUTHORIZED IN THE STATUTE, MAY BE ASSIGNED TO SUCH DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR INCLUDING, UNDER CERTAIN CONDITIONS, THOSE NORMALLY DISCHARGED BY COMMISSIONED OFFICERS, WHICH THEY ARE EMPOWERED TO PERFORM "UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT; " THAT THEY "SHALL TAKE RANK NEXT BELOW SECOND LIEUTENANTS AND AMONG THEMSELVES UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR; " AND THAT WARRANT OFFICERS SHALL BE ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS, SUBJECT TO PROVISOS NOT HERE MATERIAL. THE ACT ALSO PROVIDES THAT " WARRANT OFFICERS APPOINTED UNDER EXISTING LAWS, OTHER THAN MASTERS AND CHIEF ENGINEERS OF THE ARMY MINE PLANTER SERVICE, SHALL BECOME WARRANT OFFICERS (JUNIOR GRADE), AND MASTERS AND CHIEF ENGINEERS OF THE ARMY MINE PLANTER SERVICE SHALL BECOME CHIEF WARRANT OFFICERS, ON THE DATE THIS ACT SHALL BECOME EFFECTIVE. * * *"

APPARENTLY, THE PRINCIPAL PURPOSE AND EFFECT OF THE ACT WAS TO REGROUP WARRANT OFFICERS THEN IN THE ARMY INTO CHIEF WARRANT OFFICERS AND WARRANT OFFICERS (JUNIOR GRADE) AS AMONG THEMSELVES, AND TO PROVIDE THAT APPOINTMENTS, PAY, ALLOWANCES, FUNCTIONS AND PREROGATIVES OF WARRANT OFFICERS IN THE ARMY SHOULD THEREAFTER BE IN CONFORMITY THEREWITH, AND IT WOULD APPEAR TO BE MANIFEST THAT THE STATUTE WROUGHT NO MATERIAL CHANGE IN THE CLASSIFICATION OF WARRANT OFFICERS AS DISTINCT FROM COMMISSIONED OFFICERS ON THE ONE HAND, AND CERTAINLY NO LESS IF, INDEED, NOT MORE, DISTINCT FROM ENLISTED MEN ON THE OTHER.

IN THE COMPARATIVELY RECENT CASE OF WALTON V. UNITED STATES, 89 C.1CLS. 28, THE COURT SAID:

IN THE U.S.C. THERE ARE SEPARATE CHAPTERS DEALING WITH OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN, INDICATING THAT "WARRANT OFFICERS" MAY NOT BE GENERALLY CLASSIFIED WITH EITHER COMMISSIONED OFFICERS OR ENLISTED MEN. IT SEEMS TO BE A DISTINCT CLASSIFICATION, RANKING AFTER COMMISSIONED OFFICERS BUT BEFORE ENLISTED MEN.

IN SUPPORT OF THAT VIEW, THE COURT QUOTED FROM U.S.C. TITLE 10, SECTIONS 593 AND 594 AND TITLE 37, SECTIONS 13 AND 26A. IN ADDITION TO WHAT WAS SAID BY THE COURT IN THAT RESPECT, IT MAY BE POINTED OUT THAT SECTION 4A OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, REFERRED EXCLUSIVELY TO "WARRANT OFFICERS" WHILE SECTION 4B DEALT WITH "ENLISTED MEN" , AND THAT SECTION 8 OF THE ACT OF JUNE 16, 1942, PUBLIC LAW 607, 77TH CONGRESS, 56 STAT. 362, EFFECTIVE AS OF JUNE 1, 1942, DEALS WITH READJUSTMENT OF PAY AND ALLOWANCES FOR WARRANT OFFICERS OF THE SERVICES AFFECTED, WHILE THE PAY AND ALLOWANCES OF ENLISTED MEN ARE COVERED BY SECTION 9 OF THAT ACT, 56 STAT. 363. MOREOVER, IT MAY SAFELY BE SAID THAT WHENEVER WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY ARE GROUPED TOGETHER IN LEGISLATIVE ENACTMENTS, WARRANT OFFICERS ARE NOT CLASSED AS ENLISTED MEN, BUT THE DISTINCTION IS ALWAYS DRAWN. THE SEVERAL STATUTES WITH REFERENCE TO WARRANT OFFICERS OF THE ARMY, MORE PARTICULARLY THAT OF AUGUST 21, 1941, SUPRA, WOULD APPEAR TO EMPHASIZE THE DIFFERENTIATION BETWEEN WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY RECOGNIZED BY THE COURT OF CLAIMS IN THE ABOVE-CITED CASE, AND TO ESTABLISH CLEARLY THAT WARRANT OFFICERS, AS SUCH CANNOT PROPERLY BE CLASSED OR CONSIDERED AS ENLISTED MEN OF THE ARMY. SEE IN THIS CONNECTION 27 COMP. DEC. 883.

WHEN THE ACT OF JULY 2, 1926, WAS PASSED, WARRANT OFFICERS WERE NO LESS A PART OF THE MILITARY ESTABLISHMENT THAN THEY ARE TODAY, AND WARRANT OFFICERS IN THE NAVY HAD BEEN RECOGNIZED AS OFFICERS OF THE NAVY WELL NIGH FROM THE BEGINNING. SEE RUSH'S CASE, 2 C.1CLS. 167; BROWN V. UNITED STATES, 113 U.S. 568; KATZER V. UNITED STATES, 52 C.1CLS. 32; UNITED STATES V. HENDEE, 124 U.S. 309. BUT THE CONGRESS IN SECTION 13 OF THAT ACT EXPRESSLY AND EXPLICITLY LIMITED THE RIGHT TO ADDITIONAL PAY OF $2 PER MONTH TO ENLISTED OR ENROLLED MEN OF THE ARMY OR OF THE NAVY TO WHOM THE SOLDIER'S MEDAL OR THE DISTINGUISHED FLYING CROSS SHOULD BE AWARDED, AND MADE NO PROVISION FOR ADDITIONAL PAYMENT TO WARRANT OFFICERS OF EITHER SERVICE, THOUGH WARRANT OFFICERS WERE ELIGIBLE FOR THE AWARD OF THE MEDAL OR THE CROSS AS THE CASE MIGHT BE. IT MUST BE PRESUMED THAT THE CONGRESS IMPOSED THE LIMITATION ADVISEDLY AND INTENTIONALLY, AND SUCH LIMITATION BY NECESSARY IMPLICATION EXCLUDES WARRANT OFFICERS AND ALL OTHER RECIPIENTS OF THE AWARDS SAVE ENLISTED OR ENROLLED MEN FROM A RIGHT TO ADDITIONAL PAYMENT BY REASON THEREOF. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS--- THE EXPRESSION OR NAMING OF ONE IS THE EXCLUSION OF THE OTHER--- IS A FUNDAMENTAL CANON OF STATUTORY INTERPRETATION. HAD THE CONGRESS INTENDED THAT WARRANT OFFICERS OF THE ARMY OR OF THE NAVY AWARDED THE SOLDIER'S MEDAL OR THE DISTINGUISHED FLYING CROSS SHOULD RECEIVE ADDITIONAL PAY OF $2 PER MONTH, IT WOULD HAVE SAID SO. WALTON V. UNITED STATES, SUPRA.

ACCORDINGLY, IT MUST BE HELD THAT A WARRANT OFFICER AWARDED THE SOLDIER'S MEDAL IS NOT ENTITLED TO $2 PER MONTH ADDITIONAL PAY PRESCRIBED BY THE STATUTE IN QUESTION FOR ENLISTED MEN, AND YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER SUBMITTED, WHICH IS RETAINED IN THIS OFFICE.