B-36256, SEPTEMBER 7, 1943, 23 COMP. GEN. 177

B-36256: Sep 7, 1943

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1943: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9. IS ENTITLED TO $250 AS A UNIFORM GRATUITY. WAS GIVEN A PERMANENT APPOINTMENT AS BOATSWAIN (ACTING APPOINTMENT). IT IS ASSUMED THAT HE RECEIVED NOTICE THEREOF ON THAT DATE. SHALL 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. IS PAYABLE TO LIEUTENANT HONEGGER ONLY IN THE EVENT HE WAS INITIALLY APPOINTED. HIS PERMANENT APPOINTMENT AS A BOATSWAIN PRECEDED HIS TEMPORARY APPOINTMENT AS AN ENSIGN BUT WAS NOT FORMALLY ACCEPTED UNTIL AFTER HIS TEMPORARY APPOINTMENT HAD BEEN MADE. IS WHETHER UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30.

B-36256, SEPTEMBER 7, 1943, 23 COMP. GEN. 177

UNIFORM ALLOWANCE - ENLISTED NAVAL PERSONNEL - ACCEPTANCE OF PERMANENT APPOINTMENT AS WARRANT OFFICER AFTER ISSUANCE BUT PRIOR TO RECEIPT OF NOTICE OF TEMPORARY COMMISSION. WHERE AN ENLISTED MAN OF THE NAVY ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER AFTER ISSUANCE, BUT BEFORE RECEIPT OF NOTICE, OF HIS TEMPORARY APPOINTMENT AS A COMMISSIONED OFFICER, THE TEMPORARY APPOINTMENT MAY NOT BE REGARDED AS AN INITIAL APPOINTMENT FROM AN ENLISTED STATUS WITHIN THE MEANING OF SECTION 7 (B) OF THE ACT OF JULY 24, 1941, SO AS TO ENTITLE HIM TO THE UNIFORM ALLOWANCE AUTHORIZED THEREIN, BY VIRTUE OF SECTION 5 OF THE ACT OF JUNE 30, 1942, PROVIDING THAT TEMPORARY APPOINTMENTS UNDER THE 1941 ACT SHALL BE REGARDED AS HAVING BEEN ACCEPTED ON THE DATE MADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 7, 1943:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1943, WITH ENCLOSURES, IN WHICH YOU REQUEST DECISION AS TO WHETHER LIEUTENANT (JG) OTTO L. HONEGGER, UNITED STATES NAVY, IS ENTITLED TO $250 AS A UNIFORM GRATUITY, INCIDENT TO HIS TEMPORARY APPOINTMENT AS ENSIGN UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603.

IT APPEARS THAT BY ALNAV 139, DATED JULY 5, 1942, LIEUTENANT HONEGGER, THEN SIGNALMAN, FIRST CLASS, UNITED STATES NAVY, WAS GIVEN A PERMANENT APPOINTMENT AS BOATSWAIN (ACTING APPOINTMENT), UNITED STATES NAVY, TO RANK FROM JULY 4, 1942, AND THAT HE FORMALLY ACCEPTED THIS APPOINTMENT ON JULY 28, 1942. IT FURTHER APPEARS THAT ON JULY 23, 1942, THE PRESIDENT APPOINTED HONEGGER A TEMPORARY ENSIGN, TO RANK FROM JUNE 15, 1942, UNDER THE ACT OF JULY 24, 1941, SUPRA, AND THAT HONEGGER ACKNOWLEDGED THIS APPOINTMENT ON AUGUST 8, 1942. IT IS ASSUMED THAT HE RECEIVED NOTICE THEREOF ON THAT DATE.

THE ACT OF JULY 24, 1941, 55 STAT. 603, 604, PROVIDES, IN PERTINENT PART:

SEC. 2 (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK" AS THE CASE MAY BE.

(B) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(1) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND PLATOON OR STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS, INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.

(4) ENLISTED MEN OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ON ACTIVE DUTY IN THE GRADES HEREIN SPECIFIED FOR ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS.

SEC. 7. * * *

(B) ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY SECTION 2 OF THIS ACT, BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY.

SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, PROVIDES:

SEC. 5 PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY- SEVENTH CONGRESS), SHALL 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 THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

THE UNIFORM ALLOWANCE AUTHORIZED UNDER SECTION 7 (B) OF THE ACT OF JULY 24, 1941, SUPRA, IS PAYABLE TO LIEUTENANT HONEGGER ONLY IN THE EVENT HE WAS INITIALLY APPOINTED, FROM AN ENLISTED STATUS, TO THE RANK OF ENSIGN. HIS PERMANENT APPOINTMENT AS A BOATSWAIN PRECEDED HIS TEMPORARY APPOINTMENT AS AN ENSIGN BUT WAS NOT FORMALLY ACCEPTED UNTIL AFTER HIS TEMPORARY APPOINTMENT HAD BEEN MADE, PRESUMABLY WITHOUT HIS KNOWLEDGE. THE QUESTION, THEN, IS WHETHER UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, THE TEMPORARY APPOINTMENT AS ENSIGN IS TO BE REGARDED AS HAVING PRECEDED THE PERMANENT APPOINTMENT AS BOATSWAIN SO AS TO ENTITLE LIEUTENANT HONEGGER TO THE UNIFORM ALLOWANCE ON THE BASIS THAT HIS TEMPORARY APPOINTMENT AS AN ENSIGN WAS HIS INITIAL APPOINTMENT FROM AN ENLISTED STATUS WITHIN THE MEANING OF SECTION 7 (B) OF THE ACT OF JULY 24, 1941, SUPRA. FOR REASONS HEREINAFTER STATED IT MUST BE ANSWERED IN THE NEGATIVE.

WHILE THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, ADMITTEDLY ARE VERY BROAD THEY ARE TO BE CONSTRUED IN THE LIGHT OF OTHER STATUTES IN CONJUNCTION WITH WHICH THEY ARE ATTEMPTED TO BE APPLIED. IT HAS BEEN HELD THAT AN OFFICER APPOINTED TO A HIGHER RANK UNDER THE ACT OF JULY 24, 1941, AND DETACHED FROM HIS PERMANENT STATION ON OR AFTER THE DATE OF HIS APPOINTMENT TO SUCH HIGHER RANK, WAS NOT ENTITLED TO TRANSPORTATION OF THE AUTHORIZED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS FOR AN OFFICER OF THE RANK TO WHICH PROMOTED WHEN THE SHIPMENT WAS MADE PRIOR TO RECEIPT OF NOTICE OF THE PROMOTION. B 34770, JUNE 15, 1943, 22 COMP. GEN. 1107. ALSO, IT WAS HELD IN DECISION OF NOVEMBER 4, 1942, 22 COMP. GEN. 435, THAT AN ENLISTED MAN WHO TRAVELED PURSUANT TO ORDERS, DURING THE INTERVENING PERIOD BETWEEN THE DATE OF HIS TEMPORARY APPOINTMENT TO THE RANK OF PAY CLERK AND THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT, WAS NOT ENTITLED TO MILEAGE FOR THE TRAVEL PERFORMED. IN THAT DECISION IT WAS STATED---

THE BASIS OF THIS CLAIM IS THAT THE CLAIMANT WAS AN OFFICER WHEN THIS CHANGE OF STATION WAS MADE. THE FACTS ARE THAT HE WAS ACTUALLY SERVING AS AN ENLISTED MAN, THAT HE WAS ORDERED TO TRAVEL AS AN ENLISTED MAN, THAT HE WAS ACTUALLY FURNISHED TRANSPORTATION IN KIND AUTHORIZED FOR ENLISTED MAN DIRECTED TO TRAVEL, AND THAT THE TRAVEL WAS ACCOMPLISHED IN SUCH STATUS. UNDER THESE CIRCUMSTANCES THE STATUTE DOES NOT AUTHORIZE THE PAYMENT OF MILEAGE TO THIS OFFICER. * * *

THE REASONING OF THOSE DECISIONS IS APPLICABLE HERE. ALNAV 139, DATED JULY 5, 1942, EXPRESSLY STATED THAT THE PERSONS COVERED THEREBY, INCLUDING LIEUTENANT HONEGGER, WERE " HEREBY GIVEN ACTING APPOINTMENTS," AND IF PHYSICALLY QUALIFIED, THEY WERE IN EFFECT INSTRUCTED TO PROCEED AND REPORT FOR DUTY AS SPECIFIED. THAT APPOINTMENT FORMALLY WAS ACCEPTED BY LIEUTENANT HONEGGER ON JULY 28, 1942, AT WHICH TIME, PRESUMABLY, HE PURCHASED THE NECESSARY UNIFORMS (FOR WHICH NO ALLOWANCE WOULD BE AUTHORIZED), REPORTED FOR DUTY AS A BOATSWAIN, AND THEREAFTER SERVED IN THAT CAPACITY UNTIL HE RECEIVED NOTICE OF AND ACCEPTED HIS TEMPORARY APPOINTMENT AS ENSIGN ON AUGUST 8, 1942. HAVING BEEN REQUIRED TO PURCHASE UNIFORMS TO SERVE IN THE CAPACITY OF BOATSWAIN IT APPARENTLY WAS UNNECESSARY FOR LIEUTENANT HONEGGER TO PURCHASE ADDITIONAL UNIFORMS UPON ACCEPTANCE OF THE TEMPORARY APPOINTMENT AS ENSIGN. CONSEQUENTLY, THE PRIMARY BASIS FOR SECTION 7 (B) OF THE ACT OF JULY 24, 1941--- ALLEVIATING THE FINANCIAL HARDSHIP RESULTING FROM THE NECESSITY FOR ENLISTED MEN TO PURCHASE UNIFORMS WHEN TEMPORARILY APPOINTED AS OFFICERS--- IS NOT PRESENT. IN THIS CONNECTION, IT IS NOTED THAT BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 109-42, DATED JULY 30, 1942, REFERS TO LIEUTENANT HONEGGER AS HAVING BEEN APPOINTED TO THE TEMPORARY RANK OF ENSIGN FROM THE RANK OF BOATSWAIN.

UNDER THE CIRCUMSTANCES THE TEMPORARY APPOINTMENT OF LIEUTENANT HONEGGER TO THE RANK OF ENSIGN MAY NOT BE REGARDED AS AN INITIAL APPOINTMENT FROM AN ENLISTED STATUS, WITHIN THE MEANING OF SECTION 7 (B) OF THE ACT OF JULY 24, 1941, AND HE IS NOT ENTITLED TO THE UNIFORM ALLOWANCE PROVIDED IN SAID ACT.