B-35990, AUGUST 25, 1943, 23 COMP. GEN. 135

B-35990: Aug 25, 1943

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IS NOT A SUBSTITUTE FOR THE LUMP SUM PAYMENT AUTHORIZED BY THE SAID 1939 ACT FOR NAVAL AVIATION CADETS UPON RELEASE FROM ACTIVE SERVICE AFTER COMPLETION OF FOUR YEARS' ACTIVE DUTY. THE GRADE OF AVIATION CADET WAS FIRST ESTABLISHED IN THE NAVAL RESERVE AND THE MARINE CORPS RESERVE BY THE ACT OF APRIL 15. UNDER THE SPECIFIC PROVISIONS OF THAT SECTION SUCH CADETS WERE ELIGIBLE FOR COMMISSIONS AS ENSIGN IN THE NAVAL RESERVE OR AS SECOND LIEUTENANT IN THE MARINE CORPS RESERVE ONLY AFTER COMPLETION OF THEIR PERIOD OF ACTIVE DUTY. IT WILL BE NOTED THAT THE RIGHT TO SUCH PAYMENT WAS MADE CONTINGENT ONLY UPON THE CADET'S BEING RELEASED AFTER HAVING SERVED AT LEAST FOUR YEARS ON ACTIVE DUTY. BY SECTION 2 OF SUCH ACT THE CADETS WERE MADE ELIGIBLE FOR COMMISSION UPON COMPLETION OF THEIR TRAINING RATHER THAN UPON COMPLETION OF THEIR AGREED FOUR-YEAR PERIOD OF ACTIVE DUTY AS PROVIDED BY SECTION 1 OF THE ACT OF APRIL 15.

B-35990, AUGUST 25, 1943, 23 COMP. GEN. 135

GRATUITIES - LUMP SUM PAYMENT UNDER NAVAL AVIATION CADET ACT OF 1942 THE LUMP SUM PAYMENT AUTHORIZED UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 FOR EACH YEAR OF COMMISSIONED SERVICE OF OFFICERS COMMISSIONED THEREUNDER OR UNDER THE NAVAL AVIATION RESERVE ACT OF 1939, IS NOT A SUBSTITUTE FOR THE LUMP SUM PAYMENT AUTHORIZED BY THE SAID 1939 ACT FOR NAVAL AVIATION CADETS UPON RELEASE FROM ACTIVE SERVICE AFTER COMPLETION OF FOUR YEARS' ACTIVE DUTY, AND, THEREFORE, A NAVAL AVIATION RESERVE OFFICER, WHEN OTHERWISE ENTITLED, UPON RELEASE FROM ACTIVE DUTY, MAY BE PAID THE LUMP SUM AUTHORIZED UNDER THE 1942 ACT WITHOUT REGARD TO THE AMOUNT PREVIOUSLY PAID HIM UNDER THE 1939 ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 25, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 24, 1943, FILE JAG:K:WG:EMM SO7 16 55 L16-4/QR5, FORWARDING LETTER OF JULY 14, 1943, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION ON THE QUESTION PRESENTED THEREIN AS TO WHETHER A NAVAL AVIATION RESERVE OFFICER, WHEN OTHERWISE ENTITLED, MAY BE PAID THE LUMP SUM PAYMENT PROVIDED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, WITHOUT HAVING DEDUCTED THEREFROM THE AMOUNT OF THE LUMP SUM PAYMENT ALREADY RECEIVED BY SUCH OFFICER UNDER THE PROVISIONS OF SECTION 8 OF THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 820.

THE GRADE OF AVIATION CADET WAS FIRST ESTABLISHED IN THE NAVAL RESERVE AND THE MARINE CORPS RESERVE BY THE ACT OF APRIL 15, 1935, 49 STAT. 156. SECTION 1 OF THAT ACT AUTHORIZED, INTER ALIA, THE SECRETARY OF THE NAVY TO APPOINT QUALIFIED INDIVIDUALS AS AVIATION CADETS AND PROVIDED THAT EACH AVIATION CADET SIGN AN AGREEMENT TO SERVE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY. UNDER THE SPECIFIC PROVISIONS OF THAT SECTION SUCH CADETS WERE ELIGIBLE FOR COMMISSIONS AS ENSIGN IN THE NAVAL RESERVE OR AS SECOND LIEUTENANT IN THE MARINE CORPS RESERVE ONLY AFTER COMPLETION OF THEIR PERIOD OF ACTIVE DUTY. SECTION 2 OF THE ACT, 49 STAT. 157, FIXED THE PAY OF CADETS AT THE RATE OF $75 PER MONTH WHILE ON ACTIVE DUTY UNDERGOING TRAINING AND AT THE RATE OF $125 PER MONTH WHILE ON ACTIVE DUTY NOT UNDERGOING TRAINING, BOTH RATES OF PAY TO INCLUDE EXTRA PAY FOR FLYING RISK. SECTION 6 OF THE ACT AUTHORIZED THE PAYMENT OF A LUMP SUM IN THE AMOUNT OF $1500 TO SUCH CADETS UNDER CERTAIN CONDITIONS AS FOLLOWS:

AVIATION CADETS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE SHALL, UPON RELEASE FROM A PERIOD OF ACTIVE DUTY OF FOUR YEARS OR MORE BE PAID A LUMP SUM OF $1,500, WHICH SUM SHALL BE IN ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE.

IT WILL BE NOTED THAT THE RIGHT TO SUCH PAYMENT WAS MADE CONTINGENT ONLY UPON THE CADET'S BEING RELEASED AFTER HAVING SERVED AT LEAST FOUR YEARS ON ACTIVE DUTY, SUCH FOUR-YEAR PERIOD TO INCLUDE DUTY WHILE UNDERGOING TRAINING.

THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, MADE MATERIAL CHANGES IN THE LAW WITH RESPECT TO AVIATION CADETS. BY SECTION 2 OF SUCH ACT THE CADETS WERE MADE ELIGIBLE FOR COMMISSION UPON COMPLETION OF THEIR TRAINING RATHER THAN UPON COMPLETION OF THEIR AGREED FOUR-YEAR PERIOD OF ACTIVE DUTY AS PROVIDED BY SECTION 1 OF THE ACT OF APRIL 15, 1935, SUPRA.

THE PAY AND ALLOWANCES OF AN ENSIGN OR AS A SECOND LIEUTENANT WERE HIGHER THAN THE PAY AND ALLOWANCES OF AN AVIATION CADET SO THAT IT WOULD APPEAR THIS PROVISION, STANDING ALONE, GAVE AN ADVANTAGE IN THIS RESPECT TO THOSE CADETS WHO HAD BEEN APPOINTED WITHIN A YEAR PRIOR TO PASSAGE OF THE 1939 ACT. IN ANY EVENT, IT APPARENTLY WAS CONSIDERED THAT THE INCREASED PAY AND ALLOWANCES RECEIVED BY CADETS BY VIRTUE OF THEIR BEING SOONER COMMISSIONED SHOULD BE OFFSET BY A CORRESPONDING REDUCTION IN THE LUMP SUM PAYMENT TO WHICH THEY WERE ENTITLED SINCE BY SECTION 12 (C) OF THE 1939 ACT, 53 STAT. 821, SECTION 6 OF THE ACT OF APRIL 15, 1935, SUPRA, WAS REPEALED AND A NEW PROVISION FOR A LUMP SUM PAYMENT WAS MADE IN SECTION 6 OF THE SAID 1939 ACT, 53 STAT. 820, AS FOLLOWS:

WHEN OFFICERS, COMMISSIONED PURSUANT TO THIS ACT, ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR A PERIOD OF FOUR OR MORE YEARS, INCLUDING ACTIVE DUTY BOTH AS AVIATION CADETS AND AS COMMISSIONED OFFICERS, THEY SHALL BE PAID A LUMP SUM OF $500 IN ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE, EXCEPT AS HEREINAFTER PROVIDED.

HOWEVER, SUCH PROVISION STILL LEFT A DISPARITY BETWEEN THE PAY AND ALLOWANCES OF CADETS WHO HAD COMPLETED THEIR TRAINING PRIOR TO THE PASSAGE OF THE 1939 ACT AND THE CADETS WHO COMPLETED THEIR TRAINING THEREAFTER. TO CORRECT THIS IT WAS PROVIDED IN SECTION 8 OF THE 1939 ACT AS FOLLOWS:

AVIATION CADETS WHO HAVE COMPLETED ACTIVE DUTY UNDERGOING TRAINING ON THE DATE OF APPROVAL OF THIS ACT AND WHO MAY BE COMMISSIONED PURSUANT THERETO SHALL, UPON COMPLETION OF FOUR YEARS' ACTIVE DUTY, BE PAID A LUMP SUM DETERMINED AS $1,000 MINUS THE EXCESS OF THE PAY AND ALLOWANCES RECEIVED BY THEM PRIOR TO THE DATE OF SUCH COMPLETION OF DUTY OVER THE PAY AND ALLOWANCES, WITH WHICH SHALL BE INCLUDED GOVERNMENT PAID INSURANCE PREMIUMS, WHICH THEY WOULD HAVE RECEIVED AS AVIATION CADETS HAD THEY NOT BEEN COMMISSIONED. NO PERSON SHALL BE HELD TO BE INDEBTED TO THE UNITED STATES AS A RESULT OF THE PROVISIONS OF THIS SECTION. PAYMENTS AUTHORIZED BY THIS SECTION SHALL BE IN ADDITION TO THAT AUTHORIZED BY SECTION 6 OF THIS ACT.

THUS, CADETS WHO, BECAUSE OF THE LIMITATION IN THE PREVIOUS LAW, WERE NOT COMMISSIONED UPON COMPLETION OF THEIR TRAINING DUTY WERE PUT SUBSTANTIALLY ON A PAR, INSOFAR AS PAY AND ALLOWANCES WERE CONCERNED, WITH THOSE WHO COMPLETED THEIR TRAINING AFTER THE ENACTMENT OF THE 1939 STATUTE.

FURTHER MATERIAL CHANGES WERE MADE IN THE LAWS WITH RESPECT TO LUMP SUM PAYMENTS TO AVIATION CADETS BY THE NAVAL AVIATION PERSONNEL ACT OF 1940, 54 STAT. 864. THIS LAST-MENTIONED ACT REPEALED THE ABOVE-QUOTED SECTIONS 6 AND 8 OF THE NAVAL RESERVE ACT OF 1939, AND IN SECTION 6 THEREOF, 54 STAT. 865, A NEW PROVISION WAS MADE FOR SUCH PAYMENTS AS FOLLOWS:

WHEN OFFICERS COMMISSIONED IN THE NAVAL OR MARINE CORPS RESERVE PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE OTHER THAN DUTY AS AVIATION CADETS UNDERGOING TRAINING * * *. THE LUMP SUM PAYMENTS AUTHORIZED HEREIN SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE.

OF PARTICULAR IMPORT IS THE FACT THAT UNDER THE 1940 ACT THE LUMP SUM PAYMENT WAS AUTHORIZED NOT FOR EACH YEAR OF COMMISSIONED SERVICE BUT FOR EACH YEAR OF ACTIVE SERVICE OTHER THAN DUTY AS AVIATION CADETS UNDERGOING TRAINING. THAT IS, OFFICERS COMMISSIONED UNDER THE 1939 ACT, WHO PRIOR TO BEING COMMISSIONED SERVED ON ACTIVE DUTY AS A CADET NOT UNDERGOING TRAINING RECEIVED, IF THEY OTHERWISE QUALIFIED THEREFOR, $500 A YEAR FOR SUCH CADET SERVICE--- THE SAME SERVICE FOR WHICH THE $1,000 PAYMENT WAS PROVIDED BY SECTION 8 OF THE NAVAL RESERVE ACT OF 1939. ACCORDINGLY--- SINCE IT APPEARED THAT THE $500 PER YEAR PAYMENT PROVIDED BY SECTION 8 OF THE 1940 ACT, IN ADDITION TO BEING A PAYMENT FOR CONTINUOUS COMMISSIONED SERVICE, WAS A SUBSTITUTE FOR THE $1,000 PAYMENT PROVIDED BY SECTION 8 OF THE 1939 ACT--- IT WAS HELD IN DECISION OF AUGUST 22, 1941, B-17996, THAT ANY LUMP SUM PAYMENT ACCRUING TO AN OFFICER UNDER THE 1940 ACT WAS SUBJECT TO REDUCTION BY ANY AMOUNT ALREADY CREDITED TO SUCH OFFICER UNDER THE SAID SECTION 8 OF THE 1939 ACT. HAD THE CONCLUSION BEEN OTHERWISE, IT WOULD, AS NOTED IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, HAVE RESULTED IN A DUAL PAYMENT FOR THE SAME SERVICE.

REFERRING TO BOTH THE 1939 AND 1940 ACTS IT WILL BE SEEN THAT THE PROVISIONS THEREOF WITH RESPECT TO LUMP SUM PAYMENTS REFLECT AN INTENTION TO KEEP CADETS WHO HAD COMPLETED THEIR TRAINING PRIOR TO THE ENACTMENT OF THE 1939 STATUTE ON EVEN TERMS, IN REGARD TO PAY AND ALLOWANCES, WITH CADETS WHO COMPLETED THEIR TRAINING THEREAFTER. THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, REPEALED, INTER ALIA, SECTION 6 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940 AND, IN SECTION 12 PROVIDED FOR A LUMP SUM PAYMENT OF $500 FOR EACH YEAR OF COMMISSIONED SERVICE ONLY, THUS PRECLUDING ANY PAYMENT THEREUNDER FOR SERVICE AS A CADET NOT UNDERGOING TRAINING. THE BENEFITS OF THE 1942 STATUTE, THEREFORE, ARE NOT IN SUBSTITUTION FOR THE BENEFITS PROVIDED IN SECTION 8 OF THE 1939 STATUTE.

FROM THE FOREGOING, IT APPEARS THAT THE REASONS FOR THE CONCLUSION REACHED IN THE ABOVE-REFERRED TO DECISION OF AUGUST 22, 1941, DO NOT APPLY TO THE 1942 STATUTE AND THAT LUMP SUM PAYMENTS ACCRUING UNDER SECTION 12 OF THE SAID NAVAL AVIATION CADET ACT OF 1942 ARE NOT SUBJECT TO REDUCTION BY ANY AMOUNTS WHICH PROPERLY MAY HAVE BEEN PAID UNDER SECTION 8 OF THE NAVAL AVIATION RESERVE ACT OF 1939.

ACCORDINGLY, ON THE BASIS OF THE SPECIFIC FACTS IN THE CASE OF LIEUTENANT RANDECKER, AS SET FORTH IN THE LETTER OF JULY 14, 1943, OF THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, IT APPEARS THAT THE SAID LIEUTENANT RANDECKER IS ENTITLED TO A LUMP SUM DETERMINED AS $500 PER YEAR FOR THE PERIOD FROM JULY 11, 1939, THE DATE HE ACCEPTED A COMMISSION, TO JUNE 22, 1943, THE DATE HE WAS RELEASED FROM ACTIVE DUTY, WITHOUT REGARD TO THE AMOUNT PREVIOUSLY PAID HIM UNDER SECTION 8 OF THE 1939 STATUTE.