B-3565, MAY 27, 1939, 18 COMP. GEN. 890

B-3565: May 27, 1939

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PAY - PROMOTIONS - INCREASED PAY EFFECTIVE DATE - NAVAL RESERVE ACT OF 1938 AN OFFICER OF THE NAVAL RESERVE ADVANCED IN TIME OF PEACE IS NOT ENTITLED TO PAY OF THE GRADE TO WHICH ADVANCED PRIOR TO ACCEPTANCE OF THE OFFICE UNDER HIS COMMISSION. IT IS REPORTED THAT THIS RESERVE OFFICER HAS BEEN ON ACTIVE DUTY SINCE AUGUST 26. HE WAS APPOINTED AND COMMISSIONED A COMMANDER IN THE UNITED STATES NAVAL RESERVE (PROMOTED FROM LIEUTENANT COMMANDER) TO RANK FROM JULY 1. WAS REPEALED AND IN LIEU THEREOF THERE WAS CREATED AS A PART OF THE UNITED STATES NAVY A NAVAL RESERVE CONSISTING OF THE FLEET RESERVE. EACH OFFICER OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE NEXT AFTER THAT OFFICER OF THE REGULAR NAVY OF THE SAME RANK OR GRADE WHOSE LENGTH OF SERVICE IN SUCH RANK OR GRADE ON THE DATE OF SUCH MOBILIZATION IS ONE-HALF OR THE NEAREST ONE HALF OF THAT OF THE RESERVE OFFICER.

B-3565, MAY 27, 1939, 18 COMP. GEN. 890

PAY - PROMOTIONS - INCREASED PAY EFFECTIVE DATE - NAVAL RESERVE ACT OF 1938 AN OFFICER OF THE NAVAL RESERVE ADVANCED IN TIME OF PEACE IS NOT ENTITLED TO PAY OF THE GRADE TO WHICH ADVANCED PRIOR TO ACCEPTANCE OF THE OFFICE UNDER HIS COMMISSION, THE PROVISO IN SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183 GRANTING PAY AND ALLOWANCE UPON ADVANCEMENT TO A HIGHER GRADE OR RANK FROM THE DATE OF RANK STATED IN THE COMMISSION, BEING APPLICABLE ONLY TO PROMOTIONS IN TIME OF WAR OR NATIONAL EMERGENCY.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE NAVY, MAY 27, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 1, 1939, TRANSMITTING A LETTER DATED APRIL 25, 1939, FROM THE OFFICER IN CHARGE, OFFICERS ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION ON THE QUESTION THEREIN PRESENTED AS TO THE DATE FROM WHICH COMMANDER JOSEPH B. LYNCH, A-O, U.S. NAVAL RESERVE, MAY BE CREDITED WITH ACTIVE DUTY PAY AND ALLOWANCES OF A COMMANDER IN THE UNITED STATES NAVAL RESERVE.

IT IS REPORTED THAT THIS RESERVE OFFICER HAS BEEN ON ACTIVE DUTY SINCE AUGUST 26, 1935. ON APRIL 14, 1939, HE WAS APPOINTED AND COMMISSIONED A COMMANDER IN THE UNITED STATES NAVAL RESERVE (PROMOTED FROM LIEUTENANT COMMANDER) TO RANK FROM JULY 1, 1938. HE EXECUTED ACCEPTANCE AND OATH UNDER THE COMMISSION AS COMMANDER ON APRIL 15, 1939.

BY SECTION 3 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, AS AMENDED, WAS REPEALED AND IN LIEU THEREOF THERE WAS CREATED AS A PART OF THE UNITED STATES NAVY A NAVAL RESERVE CONSISTING OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE. TITLE III, SECTIONS 301 TO 320, INCLUSIVE, OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, 1184, CONTAINS PROVISIONS APPLICABLE TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE. SECTION 305 PROVIDES THAT SUBJECT TO THE PROVISIONS OF SECTION 306 IN TIME OF PEACE COMMISSIONED OFFICERS APPOINTED TO THE NAVAL RESERVE SHALL BE COMMISSIONED TO SERVE DURING THE PLEASURE OF THE PRESIDENT IN GRADES OR RANKS NOT ABOVE THAT OF LIEUTENANT COMMANDER, EXCEPT THAT A SMALL PERCENTAGE OF OFFICERS IN THE HIGHER GRADES OR RANKS MAY, IF QUALIFIED, BE COMMISSIONED IN THE GRADES OR RANKS OF REAR ADMIRAL, CAPTAIN, AND COMMANDER, THE TOTAL NUMBER OF OFFICERS "IN SUCH HIGHER GRADES OR RANKS" IN THE ORGANIZED RESERVE NOT TO EXCEED ONE-HALF OF 1 PERCENTUM OF THE ACTUAL NUMBER OF ENLISTED MEN REGULARLY ASSIGNED TO THE DIVISIONS OR OTHER UNITS OF THE ORGANIZED RESERVE AND ENTITLED TO PAY AS PROVIDED IN SECTION 313, WITH LIMITATIONS UPON APPOINTMENTS AND PROMOTIONS IN GRADES OR RANKS IN THE MERCHANT MARINE AND VOLUNTEER RESERVES. SECTION 306 PROVIDES THAT IN TIME OF PEACE THERE SHALL BE ALLOWED IN THE NAVAL RESERVE ONE OFFICER IN THE GRADE OR RANK OF REAR ADMIRAL AND IN THE MARINE CORPS RESERVE ONE OFFICER IN THE GRADE OR RANK OF BRIGADIER OR MAJOR GENERAL, THE REMAINING OFFICERS TO BE DISTRIBUTED IN THE VARIOUS GRADES OR RANKS IN SUCH MANNER AS THE SECRETARY OF THE NAVY MAY PRESCRIBE; THAT NO OFFICER SHALL BE INITIALLY APPOINTED IN THE GRADE OR RANK OF REAR ADMIRAL, CAPTAIN, OR COMMANDER NOR PROMOTED TO SUCH GRADE OR RANK EXCEPT UPON RECOMMENDATION THEREFOR BY A SELECTION BOARD, WITH A PROVISO AS FOLLOWS:

* * * THAT NO OFFICER SHALL BE REDUCED IN RANK AS A RESULT OF ANY COMPUTATION SO MADE AND THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED AS REDUCING THE PRESENT GRADE, RANK OR RATING OF ANY OFFICER OR MAN IN THE NAVAL RESERVE, OR AS OTHERWISE AFFECTING THE COMMISSIONS NOW HELD BY THEM OR AS RESTRICTING THE PROMOTION OF OFFICERS IN THE NAVAL RESERVE IN TIME OF WAR AS PROVIDED FOR IN SECTION 312 OF THIS TITLE. THE NAVAL ACADEMY FROM ENLISTED MEN OF THE NAVAL RESERVE WITHIN THE LIMITATIONS THEREIN SPECIFIED. SECTION 308 PROVIDES FOR PHYSICAL EXAMINATIONS FOR OFFICERS OF THE NAVAL RESERVE WITH A PROVISO THAT IN DETERMINING AN OFFICER'S QUALIFICATIONS FOR ACTIVE SERVICE, DUE CONSIDERATION SHALL BE GIVEN TO THE CHARACTER OF THE DUTY TO BE ASSIGNED IN THE EVENT OF WAR OR NATIONAL EMERGENCY, AND IN THE DISCRETION OF THE SECRETARY OF THE NAVY, TO HIS AGE IN GRADE. SECTIONS 309 AND 310 PERTAIN TO THE HONORARY RETIRED LIST THEREBY ESTABLISHED AND RETIREMENT THEREUNDER.

SECTIONS 311 AND 312, 52 STAT. 1183, 1184, PROVIDES:

SEC. 311. IN TIME OF PEACE, OFFICERS OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE ACCORDING TO SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE: PROVIDED, THAT WHEN MOBILIZED WITH THE REGULAR NAVY FOR WAR OR A NATIONAL EMERGENCY, EACH OFFICER OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE NEXT AFTER THAT OFFICER OF THE REGULAR NAVY OF THE SAME RANK OR GRADE WHOSE LENGTH OF SERVICE IN SUCH RANK OR GRADE ON THE DATE OF SUCH MOBILIZATION IS ONE-HALF OR THE NEAREST ONE HALF OF THAT OF THE RESERVE OFFICER.

SEC. 312. IN TIME OF WAR OR NATIONAL EMERGENCY, OFFICERS OF THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY SHALL BE ADVANCED IN THEIR RESPECTIVE CORPS IN GRADE AND RANK IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY OR THE MARINE CORPS, RESPECTIVELY, IN SUCH NUMBERS FOR EACH GRADE OR RANK, AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF THE NAVY, AND WHEN SO ADVANCED THEY SHALL TAKE PRECEDENCE AMONG THEMSELVES AND WITH OTHER OFFICERS OF THE NAVY AND MARINE CORPS, IN ACCORDANCE WITH DATE OF SUCH ADVANCEMENT OR PROMOTION: PROVIDED, THAT NO OFFICER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE SHALL BE ADVANCED TO A HIGHER RANK UNTIL HE HAS QUALIFIED THEREFOR BY SUCH MENTAL, MORAL, PROFESSIONAL, AND PHYSICAL EXAMINATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE: PROVIDED FURTHER, THAT ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK UNDER THE PROVISIONS OF THIS TITLE SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES OF RANK STATED IN THEIR COMMISSIONS: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO OFFICERS WHO HAVE BEEN OR MAY HEREAFTER BE RETIRED FROM THE NAVAL OR MARINE CORPS RESERVE FORCE OR THE NAVAL OR MARINE CORPS RESERVE.

SECTION 17 OF THE REPEALED NAVAL RESERVE ACT OF 1925, 43 STAT. 1080, ET SEQ., CORRESPONDING WITH SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, CONTAINED A PROVISO IN SUBSTANTIALLY THE SAME LANGUAGE AND IDENTICAL IN PURPOSE WITH THE PROVISION CONTAINED IN SECTION 312. SHORTLY AFTER PASSAGE OF THE NAVAL RESERVE ACT OF 1925, THE EFFECT OF THE PROVISION IN SAID SECTION 17 OF THE ACT WAS PRESENTED BY THE THEN INCUMBENT SECRETARY OF THE NAVY TO THE FORMER COMPTROLLER GENERAL AND IN A DECISION DATED JUNE 12, 1925, 4 COMP. GEN. 1036, 1041, A QUESTION STATED AS FOLLOWS:

QUESTION III.--- SECTION 17 CONTAINS A PROVISO AS FOLLOWS:

"* * * ALL OFFICERS OF THE NAVAL RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS.'

(6) DOES THIS LATTER PROVISO APPLY ONLY TO THOSE OFFICERS WHO MAY BE ADVANCED WHILE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY? WAS ANSWERED IN THE AFFIRMATIVE. SEE 4 COMP. GEN. 1039.

WHILE THE SECOND PROVISO OF SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, IF IT STOOD ALONE, IS BROAD ENOUGH IN ITS TERMS TO BE APPLICABLE TO ALL ADVANCEMENTS UNDER THE PROVISIONS OF TITLE III, IT MUST BE READ IN CONNECTION WITH THE FIRST CLAUSE OF THE SECTION WHICH HAS REFERENCE ONLY TO ADVANCEMENTS IN TIME OF WAR OR NATIONAL EMERGENCY, THE PRIMARY REASON FOR THE DIFFERENCE IN THE LANGUAGE FROM THAT CONTAINED INSECTION 17 OF THE REPEALED ACT BEING THAT THE ADVANCEMENT OF RESERVE OFFICERS IS NOW MADE INDEPENDENTLY OF ANY NAVY RUNNING MATE. SEE REPORT NO. 2465 ACCOMPANYING H.R. 10594, SEVENTY-FIFTH CONGRESS. SOME SUPPORT FOR THE HOLDING THAT THE PROMOTIONS UNDER SECTION 312 HAVE REFERENCE ONLY TO TIME OF WAR OR NATIONAL EMERGENCY IS FOUND, ALSO, IN THE PROVISO QUOTED ABOVE FROM SECTION 306 OF THE ACT. UNDER THE CIRCUMSTANCES IT IS CONCLUDED THAT COMMANDER JOSEPH B. LYNCH, HAVING BEEN ADVANCED IN TIME OF PEACE, IS NOT ENTITLED TO PAY OF THE GRADE TO WHICH ADVANCED PRIOR TO ACCEPTANCE OF THE OFFICE UNDER HIS COMMISSION.