B-32223, AUGUST 31, 1943, 23 COMP. GEN. 147

B-32223: Aug 31, 1943

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PERSONNEL TEMPORARILY PROMOTED UNDER THE ACT FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH THEY WOULD HAVE BEEN ENTITLED BUT FOR THE PROMOTION. IS ENTITLED TO RETAIN THE AIDE'S PAY. - WHICH IS AUTHORIZED ONLY FOR OFFICERS NOT ABOVE GRADE OF LIEUTENANT. ARE IN EXCESS OF THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE. WHICH PERIOD IS SUBSEQUENT TO THE OFFICER'S TEMPORARY APPOINTMENT TO THE RANK OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE ACT OF JULY 24. THE OFFICER WAS A LIEUTENANT WITH OVER 17 YEARS' SERVICE FOR PAY PURPOSES AND THAT HE WAS SERVING AS AN AIDE TO A REAR ADMIRAL. HE WAS PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE ACT OF JULY 24.

B-32223, AUGUST 31, 1943, 23 COMP. GEN. 147

SAVED PAY AND ALLOWANCES - AIDE'S PAY - TEMPORARILY PROMOTED NAVAL PERSONNEL UNDER SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS ORIGINALLY ENACTED, SAVING NAVY, ETC., PERSONNEL TEMPORARILY PROMOTED UNDER THE ACT FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH THEY WOULD HAVE BEEN ENTITLED BUT FOR THE PROMOTION, A LIEUTENANT OF THE NAVY SERVING AS AN AIDE, UPON PROMOTION TO THE TEMPORARY GRADE OF LIEUTENANT COMMANDER AND WHILE CONTINUING TO SERVE AS AN AIDE, IS ENTITLED TO RETAIN THE AIDE'S PAY--- WHICH IS AUTHORIZED ONLY FOR OFFICERS NOT ABOVE GRADE OF LIEUTENANT--- IN CONJUNCTION WITH THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE SO LONG AS THE TOTAL PAY AND ALLOWANCES OF HIS PERMANENT GRADE, INCLUDING AIDE'S PAY, ARE IN EXCESS OF THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE, EXCLUDING AIDE'S PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 31, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 2, 1943, REQUESTING DECISION WHETHER LIEUTENANT COMMANDER THOMAS A. GAYLORD, U.S. NAVY, RETIRED, MAY RETAIN THE AIDE'S PAY PAID TO HIM FOR THE PERIOD MARCH 17, 1942, TO SEPTEMBER 30, 1942, WHICH PERIOD IS SUBSEQUENT TO THE OFFICER'S TEMPORARY APPOINTMENT TO THE RANK OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603.

INFORMATION FURNISHED WITH YOUR REQUEST FOR DECISION DISCLOSES THAT ON MARCH 16, 1942, THE OFFICER WAS A LIEUTENANT WITH OVER 17 YEARS' SERVICE FOR PAY PURPOSES AND THAT HE WAS SERVING AS AN AIDE TO A REAR ADMIRAL. MARCH 17, 1942, HE WAS PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, SUPRA. A TRANSCRIPT OF HIS PAY ACCOUNT SHOWS THAT ON MARCH 16, 1942, THE OFFICER WAS RECEIVING--- BASE PAY PLUS LONGEVITY--- $312.50 PER MONTH; THREE SUBSISTENCE ALLOWANCES OR, FOR A 30-DAY MONTH $54; AND AIDE'S PAY AT THE RATE OF $16.67 PER MONTH, MAKING A TOTAL OF $383.17 PER MONTH. APPARENTLY QUARTERS WERE FURNISHED AT GOVERNMENT EXPENSE FOR THE OFFICER AND HIS DEPENDENTS. UPON THE OFFICER'S ADVANCE TO THE RANK OF LIEUTENANT COMMANDER, IT APPEARS THAT HE CONTINUED TO SERVE AND TO BE PAID AS AN AIDE AND THAT HIS PAY AND ALLOWANCES, INCLUDING AIDE'S PAY, REMAINED THE SAME AS BEFORE SUCH TEMPORARY PROMOTION. UNDER THESE CIRCUMSTANCES, THE OFFICER CLAIMS HE IS ENTITLED TO RETAIN THE AIDE'S PAY PAID TO HIM AFTER THE PROMOTION AS AN ITEM OF PAY SAVED TO HIM UNDER THE PROVISIONS OF SECTION 7 (A) OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, ALTHOUGH AIDE'S PAY IS NOT AUTHORIZED FOR NAVY OFFICERS ABOVE THE RANK OF LIEUTENANT.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS ORIGINALLY ENACTED, AND AS IN EFFECT DURING THE PERIOD WHEN THE PAYMENTS HERE IN QUESTION WERE MADE, CONTAINED THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED. THE LANGUAGE OF THE PROVISO WAS MODIFIED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, BUT SUCH MODIFICATION WOULD NOT APPEAR TO AFFECT THE QUESTION HERE INVOLVED. SEE DECISION OF JULY 14, 1943, B- 31978, 23 COMP. GEN. 21.

THE PURPOSE OF THE PROVISION, AS ORIGINALLY ENACTED, WAS TO SAVE OFFICERS AND ENLISTED MEN PROMOTED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY NOT BEEN PROMOTED. WITH RESPECT TO THE PAY AND ALLOWANCES WHICH THE PROVISION SAVED TO OFFICERS AND ENLISTED MEN GENERALLY, IT WAS STATED IN DECISION OF MAY 15, 1942, 21 COMP. GEN. 1012, 1014, AS FOLLOWS:

THE PAY AND ALLOWANCES TO WHICH AN ENLISTED MAN IS ENTITLED HAD HE NOT BEEN TEMPORARILY APPOINTED AN ENSIGN AND IN WHICH HE SHALL SUFFER NO REDUCTION, ARE THE DIRECT AND FIXED AMOUNTS OF MONEY PROVIDED BY LAW IN CONSIDERATION OF AND AS COMPENSATION FOR HIS PERSONAL SERVICES.

IN DECISION OF THIS OFFICE TO THE SECRETARY OF THE NAVY, B-24219, DATED MAY 7, 1942, 21 COMP. GEN. 991, IT WAS SAID WITH REFERENCE TO THE EFFECT OF THE SAVING CLAUSE CONTAINED IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, ON THE PAY OF ENLISTED MEN IN THE REGULAR ESTABLISHMENT HOLDING TEMPORARY COMMISSIONS THAT:

"* * * IT WOULD INCLUDE THE PAY AND ALLOWANCES TO WHICH ENTITLED IN HIS PERMANENT STATUS AT THE TIME OF TEMPORARY APPOINTMENT AND ADDITIONAL PAY FOR LENGTH OF SERVICE WHEN AND IF AN ADDITIONAL PERIOD OF SERVICE AUTHORIZED TO BE COUNTED IS COMPLETED. IT WOULD INCLUDE, ALSO, ANY AND ALL PAY, AND ALLOWANCES PAYABLE IN MONEY, WHICH WOULD HAVE ACCRUED BY VIRTUE OF HIS STATION AND DUTY IN THE STATUS OCCUPIED WHEN FIRST TEMPORARILY APPOINTED. * * *"

SECTIONS 1098 AND 1261 REVISED STATUTES, AUTHORIZING THE APPOINTMENT OF AIDES IN THE ARMY AND FIXING THE ADDITIONAL PAY FOR SUCH SERVICE, ARE AS FOLLOWS:

SEC. 1098. EACH MAJOR-GENERAL SHALL HAVE THREE AIDS, WHO MAY BE SELECTED BY HIM FROM CAPTAINS OR LIEUTENANTS OF THE ARMY, AND EACH BRIGADIER- GENERAL SHALL HAVE TWO AIDS, WHO MAY BE SELECTED BY HIM FROM LIEUTENANTS OF THE ARMY.

SEC. 1261. THE OFFICERS OF THE ARMY SHALL BE ENTITLED TO THE PAY HEREIN STATED AFTER THEIR RESPECTIVE DESIGNATIONS:

AID TO MAJOR-GENERAL: TWO HUNDRED DOLLARS A YEAR, IN ADDITION TO PAY OF HIS RANK.

AID TO BRIGADIER-GENERAL: ONE HUNDRED AND FIFTY DOLLARS A YEAR, IN ADDITION TO PAY OF HIS RANK.

INSOFAR AS THE RIGHTS OF PAY ARE CONCERNED, THE ABOVE SECTIONS WERE MADE APPLICABLE TO OFFICERS OF THE NAVY BY SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007. SEE UNITED STATES V. CROSLEY, 196 U.S. 327. BY THE ACT OF MAY 13, 1908, 35 STAT. 127, 128, THE ADDITIONAL PAY FOR AIDES WAS FIXED AT $150 PER ANNUM FOR AIDES TO REAR ADMIRALS EMBRACED IN THE NINE LOWER NUMBERS AND $200 PER ANNUM FOR AIDES TO OTHER REAR ADMIRALS. SECTION 1466, REVISED STATUTES, PROVIDES THAT LIEUTENANTS OF THE NAVY SHALL HAVE RELATIVE RANK WITH CAPTAINS OF THE ARMY AND THAT MASTERS (LIEUTENANTS, JUNIOR GRADE) SHALL HAVE RELATIVE RANK WITH FIRST LIEUTENANTS OF THE ARMY.

IT IS WELL ESTABLISHED THAT ONE OF THE QUALIFICATIONS TO ENTITLE AN OFFICER OF THE NAVY TO ADDITIONAL PAY AS AN AIDE IS THAT THE OFFICER BE OF A GRADE NOT ABOVE LIEUTENANT. KNOX V. UNITED STATES, 52 C.1CLS. 22. IN OTHER WORDS, THE ADDITIONAL PAY AUTHORIZED FOR AIDES IS AUTHORIZED FOR OFFICERS HOLDING A PARTICULAR RANK, ONLY. IT IS COMPENSATION FOR SPECIAL SERVICE RENDERED BY OFFICERS OF THE RANK ENTITLED BY LAW TO RECEIVE THE ADDITIONAL PAY AND IS AUTHORIZED FOR THE STATUTORY NUMBER OF AIDES ONLY. HOWEVER, SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, EXPRESSLY SAVED AN OFFICER TEMPORARILY APPOINTED TO A HIGHER RANK OR GRADE UNDER THAT ACT FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED "HAD HE NOT BEEN SO TEMPORARILY APPOINTED.' IF LIEUTENANT GAYLORD HAD NOT BEEN TEMPORARILY PROMOTED TO THE RANK OF LIEUTENANT COMMANDER, UNQUESTIONABLY HE WOULD HAVE BEEN ENTITLED TO AIDE'S PAY WHILE HE CONTINUED TO SERVE AS AN AIDE. IT FOLLOWS THAT UNDER THE EXPRESS TERMS OF THE STATUTE AND THE PRINCIPLES STATED IN THE DECISION OF MAY 15, 1942, 21 COMP. GEN. 1012, SUPRA, SUCH PAY WAS SAVED TO HIM, IN CONJUNCTION WITH OTHER PAY AND ALLOWANCES OF HIS PERMANENT GRADE, WHILE HE CONTINUED TO SERVE AS AN AIDE AFTER HIS TEMPORARY PROMOTION TO A HIGHER RANK, AND WHILE THE TOTAL OF THE PAY AND ALLOWANCE OF THE LOWER PERMANENT GRADE, INCLUDING AIDE'S PAY, WAS IN EXCESS OF THE PAY AND ALLOWANCES OF HIS HIGHER TEMPORARY GRADE, EXCLUDING AIDE'S PAY NOT AUTHORIZED TO BE PAID IN SUCH HIGHER GRADE. THAT IS, HE WAS ENTITLED TO CONTINUE TO RECEIVE AT LEAST THE PAY AND ALLOWANCES HE WAS ENTITLED TO BEFORE THE TEMPORARY PROMOTION, TO THE EXTENT THAT HE WOULD HAVE CONTINUED TO RECEIVE SUCH PAY AND ALLOWANCES IF HE HAD NOT BEEN PROMOTED. IF HE HAD NOT CONTINUED TO SERVE AS AN AIDE AFTER HIS TEMPORARY PROMOTION, HIS AIDE'S PAY WOULD NOT HAVE BEEN SAVED TO HIM, AS THE REDUCTION IN THAT CASE WOULD NOT HAVE BEEN DUE TO THE TEMPORARY PROMOTION BUT TO TERMINATION OF HIS ASSIGNMENT AS AN AIDE. COMPARE THE DECISION OF JULY 14, 1943, SUPRA, RESPECTING PAY AND ALLOWANCES SAVED UNDER THE SAID SECTION 7 (A), AS AMENDED NOVEMBER 30, 1942. ACCORDINGLY, YOU ARE ADVISED THAT THE OFFICER IS ENTITLED TO RETAIN AIDE'S PAY PAID TO HIM IN CONJUNCTION WITH THE PAY OF HIS PERMANENT LOWER GRADE AFTER HIS TEMPORARY PROMOTION TO THE RANK OF LIEUTENANT COMMANDER, IF AND WHILE HE CONTINUED TO SERVE AS AN AIDE AFTER SUCH TEMPORARY PROMOTION AND UNTIL THE PAY AND ALLOWANCES OF HIS HIGHER TEMPORARY GRADE, EXCLUDING AIDE'S PAY, EQUALED OR EXCEEDED THE PAY AND ALLOWANCES OF HIS LOWER PERMANENT GRADE, INCLUDING AIDE'S PAY. IN THIS LATTER CONNECTION, IT MAY BE NOTED THAT WHILE A COMPLETE RECORD OF THE OFFICER'S SERVICE IS NOT NOW AVAILABLE IN THIS OFFICE, IT APPEARS THAT EFFECTIVE JUNE 1, 1942, HIS PAY AND ALLOWANCES AS A LIEUTENANT COMMANDER, COMPUTED AS AUTHORIZED BY THE ACT OF JUNE 16, 1942, 56 STAT. 359, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, MAY HAVE BEEN IN EXCESS OF THE PAY AND ALLOWANCES, INCLUDING AIDE'S PAY, RECEIVED BY HIM AS A LIEUTENANT AND, THEREFORE, THAT THERE MAY BE NO QUESTION OF SAVED PAY AFTER MAY 31, 1942. SEE, IN THIS CONNECTION, DECISION DATED JANUARY 19, 1943, 22 COMP. GEN. 664, IN WHICH IT WAS HELD THAT UNDER THE SAID AMENDATORY ACT OF DECEMBER 2, 1942, INACTIVE TIME ON THE RETIRED LIST WAS INCLUDED IN THE SERVICE TO BE COUNTED IN COMPUTING LONGEVITY PAY FOR RETIRED OFFICERS OF THE NAVY ON ACTIVE DUTY.