B-36390, DECEMBER 14, 1943, 23 COMP. GEN. 433

B-36390, DECEMBER 14, 1943, 23 COMP. GEN. 433

PAY AND ALLOWANCES - NAVY ENLISTED MAN ADVANCED ON RETIRED LIST UNDER ACT OF MAY 7, 1932, NOW SERVING ON ACTIVE DUTY A NAVY ENLISTED MAN WHO WAS RETIRED AND ADVANCED ON THE RETIRED LIST TO THE RANK OF WARRANT OFFICER EFFECTIVE ON THE DATE OF RETIREMENT PURSUANT TO THE ACT OF MAY 7, 1932, AND WHO, WHILE ON ACTIVE DUTY AS AN ENLISTED MAN AFTER RETIREMENT, WAS PROMOTED TEMPORARILY TO THE GRADE OF COMMISSIONED WARRANT OFFICER UNDER THE ACT OF JULY 24, 1941, SHOULD BE REGARDED AS HAVING BEEN APPOINTED FROM AN ENLISTED STATUS SO AS TO ENTITLE HIM, UNDER THE SAVED PAY PROVISION OF SECTION 7 (A) OF THE SAID 1941 ACT, AS AMENDED, TO EITHER THE PAY AND ALLOWANCES AUTHORIZED FOR A COMMISSIONED WARRANT OFFICER OR THE PAY AND ALLOWANCES AUTHORIZED FOR A WARRANT OFFICER, WHICHEVER IS GREATER, NOT TO THE PAY OF A WARRANT OFFICER PLUS THE ALLOWANCES OF A COMMISSIONED WARRANT OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. (JG) D. B. WARD, U.S. NAVY, DECEMBER 14, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 11, 1943, IN WHICH YOU REQUEST DECISION WITH RESPECT TO THE PAY AND ALLOWANCES PROPERLY PAYABLE TO BRAYTON WILEY MANDIGO, U.S. NAVY, RETIRED, NOW SERVING ON ACTIVE DUTY AS A CHIEF PHARMACIST. YOUR LETTER IS NOT SUPPORTED BY COPIES OF PERTINENT LETTERS OF APPOINTMENT MENTIONED THEREIN. SEE ARTICLE 2302, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. HOWEVER, IT APPEARS THEREFROM THAT MANDIGO WAS RETIRED ON OCTOBER 1, 1942, AS CHIEF PHARMACIST'S MATE AND THAT BY LETTER DATED JUNE 25, 1943, FROM THE SECRETARY OF THE NAVY, ISSUED PURSUANT TO THE ACT OF MAY 7, 1932, 47 STAT. 150, HE WAS NOTIFIED THAT HE WAS ADVANCED ON THE RETIRED LIST, EFFECTIVE FROM THE DATE OF HIS RETIREMENT, TO THE RANK OF PHARMACIST. IT FURTHER APPEARS THAT HE WAS TEMPORARILY APPOINTED TO THE GRADE OF CHIEF PHARMACIST ON NOVEMBER 14, 1942, PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, WHICH AUTHORIZES, AMONG OTHER THINGS, THE TEMPORARY APPOINTMENT TO HIGHER GRADES, NOT ABOVE LIEUTENANT, OF WARRANT OFFICERS AND FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY "INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.' AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, SECTION 7 (A) OF THE SAID ACT OF JULY 24, 1941, PROVIDES:

* * * THAT ENLISTED MEN WHO ARE TEMPORARILY APPOINTED TO COMMISSIONED RANK UNDER THE AUTHORITY OF THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS THE GREATER: * * *

SECTION 8 OF THE ACT OF JUNE 16, 1942, 56 STAT. 362, EFFECTIVE JUNE 1, 1942, PROVIDES, INTER ALIA, THAT A COMMISSIONED WARRANT OFFICER OR CHIEF WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER OR WARRANT OFFICER (JUNIOR GRADE) SHALL SUFFER NO REDUCTION OF PAY BY REASON OF HIS PROMOTION. A PROVISION OF SIMILAR IMPORT WAS CONTAINED IN SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 627. IT WAS HELD IN DECISION OF MARCH 2, 1943, B-31101, THAT IN VIEW OF SAID PROVISIONS A PERMANENT WARRANT OFFICER WHO HAD COMPLETED MORE THAN 30 YEARS SERVICE AS A WARRANT OFFICER AND ENLISTED MAN AND WHO WAS TEMPORARILY PROMOTED MARCH 13, 1942, TO THE GRADE OF COMMISSIONED WARRANT OFFICER PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, SUPRA, WAS ENTITLED AFTER AS WELL AS BEFORE JUNE 1, 1942, TO RECEIVE THE GREATER PAY OF A WARRANT OFFICER--- THAT PAY BEING SAVED TO HIM BY SAID SECTION 8 OF THE ACT OF JUNE 16, 1942--- PLUS THE ALLOWANCES AUTHORIZED TO BE PAID TO A COMMISSIONED WARRANT OFFICER. HOWEVER, A COMMISSIONED WARRANT OFFICER WHO IS NOT PROMOTED TO THAT GRADE FROM THE GRADE OF WARRANT OFFICER DOES NOT COME WITHIN EITHER THE SCOPE OF THE SAID DECISION OR THE PERTINENT PORTION OF SAID SECTION 8. IT WAS HELD IN DECISION DATED JULY 6, 1943, B-33787, 23 COMP. GEN. 4, THAT UNDER THE PROVISIONS OF THE SAID ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, A TEMPORARY COMMISSIONED WARRANT OFFICER PROMOTED TO THAT RANK FROM AN ENLISTED STATUS WAS ENTITLED TO EITHER THE PAY AND ALLOWANCES OF A WARRANT OFFICER OR THE PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER, WHICHEVER WAS GREATER, BUT THAT HE WAS NOT ENTITLED TO THE PAY OF A WARRANT OFFICER PLUS THE ALLOWANCES OF A COMMISSIONED WARRANT OFFICER.

THE QUESTION IN THE PRESENT CASE IS WHETHER AN ENLISTED MAN WHO IS RETIRED AND ADVANCED ON THE RETIRED LIST TO THE RANK OF WARRANT OFFICER PURSUANT TO THE ACT OF MAY 7, 1932, 47 STAT. 150, EFFECTIVE ON THE DATE OF RETIREMENT, AND WHO, WHILE ON ACTIVE DUTY AS AN ENLISTED MAN AFTER RETIREMENT, IS PROMOTED TEMPORARILY TO THE GRADE OF COMMISSIONED WARRANT OFFICER IS TO BE REGARDED AS HAVING BEEN PROMOTED FROM THE GRADE OF WARRANT OFFICER SO AS TO BE ENTITLED TO THE SAVED PAY OF A WARRANT OFFICER PLUS THE ALLOWANCES OF A COMMISSIONED WARRANT OFFICER. THE SAID ACT OF MAY 7, 1932, PROVIDES:

THAT ALL WARRANT OFFICERS AND ENLISTED MEN WHO SERVED IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES DURING THE WORLD WAR OR THE SPANISH-AMERICAN WAR, AND WHOSE SERVICE DURING SUCH WAR WAS CREDITABLE, AND WHO HAVE BEEN OR HEREAFTER MAY BE RETIRED ACCORDING TO LAW, SHALL ON THE DATE OF APPROVAL OF THIS ACT OR UPON RETIREMENT IN THE CASE OF THOSE NOW ON THE ACTIVE LISTS OF THE SERVICES NAMED HEREIN, BE ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED, WARRANT, OR ENLISTED GRADE HELD BY THEM DURING SUCH WAR: PROVIDED, THAT NOTHING IN THIS ACT SHALL ENTITLE ANY OF THE PERSONNEL DESCRIBED HEREIN, WHILE ON ACTIVE DUTY, TO ANY OTHER RANK THAN THAT IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT: AND PROVIDED FURTHER, THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT FROM THE PASSAGE OF THIS ACT. (ITALICS SUPPLIED.)

THE EFFECT OF THE ABOVE PROVISION WAS CONSIDERED IN A DECISION DATED DECEMBER 5, 1938, 18 COMP. GEN. 496, 501, AND WITH RESPECT THERETO IT WAS STATED:

IN VIEW OF THE PROVISOS OF THE ACT SO FAR AS PAY AND ALLOWANCES ARE CONCERNED THE ENLISTED MEN COMING WITHIN THAT ACT REMAIN ENLISTED MEN. THE ACT CONFERS AS AN HONORARY RANK THE HIGHEST COMMISSIONED, WARRANT, OR ENLISTED GRADE IN WHICH THE MAN SERVED IN ONE OR THE OTHER OF THE TWO WARS NAMED; IT DENIES SUCH ADVANCED RANK WHEN ON ACTIVE DUTY IFHIGHER THAN THE RANK IN WHICH SERVING AT THE TIME OF RETIREMENT AND DENIES ANY INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES BECAUSE OF ANY HONORARY ADVANCED RANK SO CONFERRED. * * *

THE ENLISTED MAN IN THE PRESENT CASE WAS A CHIEF PHARMACIST'S MATE WHEN HE RETIRED ON OCTOBER 1, 1942, AND APPARENTLY HE CONTINUED ON ACTIVE DUTY IN THAT ENLISTED GRADE AND RANK UNTIL HE WAS TEMPORARILY PROMOTED TO THE COMMISSIONED WARRANT GRADE OF CHIEF PHARMACIST, WHICH PROMOTION, IT IS STATED, WAS DATED NOVEMBER 14, 1942, AND BECAME EFFECTIVE FOR PAY PURPOSES ON NOVEMBER 5, 1942. UNDER THE EXPRESS PROVISION IN THE ACT OF MAY 7, 1932, HE WAS NOT ENTITLED TO SERVE IN ANY OTHER RANK ON ACTIVE DUTY, ALTHOUGH ENTITLED TO THE WARRANT OFFICER RANK OF PHARMACIST ON THE RETIRED LIST. HENCE, THE ADVANCEMENT MADE BY HIS TEMPORARY APPOINTMENT TO THE COMMISSIONED WARRANT GRADE OF CHIEF PHARMACIST WHILE SERVING ON ACTIVE DUTY IN THE ENLISTED GRADE OF CHIEF PHARMACIST'S MATE CLEARLY WAS FROM AN ENLISTED STATUS. SINCE THE ONLY GRADE HELD BY HIM AT THAT TIME ON ACTIVE DUTY WAS THAT OF AN ENLISTED MAN, HE LEGALLY COULD NOT HAVE BEEN SERVING AS A WARRANT OFFICER NOR HAVE BEEN ENTITLED TO THE PAY OF THAT GRADE AND, CONSEQUENTLY, THE PAY OF A WARRANT OFFICER COULD NOT BE SAVED TO HIM, UNDER THE SAID PROVISIONS OF SECTION 8 OF THE ACT OF JUNE 16, 1942. THE ADVANCEMENT OF THE ENLISTED MAN ON THE RETIRED LIST TO THE GRADE OR WARRANT OFFICER PURSUANT TO THE ACT OF MAY 7, 1932, DID NOT AUTHORIZE PAYMENT TO HIM OF THE ACTIVE DUTY PAY OF A WARRANT OFFICER NOR DID IT OTHERWISE CHANGE HIS STATUS INSOFAR AS PAY IS CONCERNED. ACCORDINGLY, IT IS CONCLUDED THAT HIS CASE FALLS WITHIN THE ANSWER TO THE SECOND QUESTION CONSIDERED IN DECISION OF JULY 6, 1943, SUPRA, AND HE IS ENTITLED, AFTER HIS TEMPORARY APPOINTMENT AS A CHIEF PHARMACIST, TO THE PAY AND ALLOWANCES AUTHORIZED BY LAW FOR THAT GRADE OR THE PAY AND ALLOWANCES AUTHORIZED FOR A WARRANT OFFICER, WHICHEVER IS GREATER, BUT HE IS NOT ENTITLED TO THE PAY AUTHORIZED FOR A WARRANT OFFICER PLUS THE ALLOWANCES AUTHORIZED FOR A COMMISSIONED WARRANT OFFICER.