B-36941, JANUARY 8, 1944, 23 COMP. GEN. 500

B-36941, JANUARY 8, 1944, 23 COMP. GEN. 500

PAY - ADDITIONAL - AIDES TO COMMODORES THE ESTABLISHMENT BY THE ACT OF APRIL 9, 1943, OF THE RANK OF COMMODORE DURING THE PRESENT WAR, IS NOT TO BE CONSIDERED AS REVIVING THE PROVISIONS OF THE ACT OF MARCH 3, 1899--- ASSIMILATING THE PAY OF NAVY OFFICERS TO THAT OF ARMY OFFICERS--- UPON WHICH THE RIGHT OF NAVY OFFICERS TO AIDES' PAY DEPENDED PRIOR TO THE ACT OF MAY 13, 1908, AUTHORIZING ADDITIONAL PAY FOR AIDES TO REAR ADMIRALS, SO AS TO CONFER A RIGHT TO ADDITIONAL PAY UPON NAVY OFFICERS SERVING AS AIDES TO COMMODORES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 8, 1944:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF SEPTEMBER 10, 1943, FORWARDING A LETTER DATED AUGUST 13, 1943, FROM THE DISBURSING OFFICER, U.S. NAVAL OPERATING BASE, ICELAND, WITH ENCLOSURE AND ACCOMPANYING INDORSEMENTS RELATIVE TO THE QUESTION AS TO WHETHER LIEUTENANT (JG) CORNELIUS R. GRAY, D-V (S), USNR, IS ENTITLED TO ADDITIONAL COMPENSATION AS AIDE'S PAY UNDER ORDERS ASSIGNING HIM TO DUTY AS AIDE TO COMMODORE RALPH S. WENTWORTH, USN, COMMANDANT, NAVAL OPERATING BASE, ICELAND. YOU REQUEST A DECISION ON QUESTIONS PRESENTED BY THE DISBURSING OFFICER, NAVAL OPERATING BASE, ICELAND, AS FOLLOWS:

(1) IS HE AUTHORIZED TO CREDIT AIDE'S PAY AT THE RATE OF $150 PER ANNUM IN A CASE WHERE AN OFFICER OF THE RANK OF LIEUTENANT OR BELOW ASSUMES PERSONAL AND CONFIDENTIAL DUTIES AS AIDE TO A FLAG OFFICER OF THE RANK OF COMMODORE?

(2) IF THE ANSWER TO (1) IS IN THE AFFIRMATIVE, IS THE EFFECTIVE DATE OF PAY AS AIDE IN THE CASE OF LIEUTENANT (JG) CORNELIUS R. GRAY, D-V (S), USNR, AS AIDE TO COMMODORE R. S. WENTWORTH, USN, 10 MAY 1943 OR 22 JUNE 1943?

IT APPEARS THAT COMMODORE WENTWORTH HOLDS AN APPOINTMENT IN THE TEMPORARY RANK AND GRADE OF COMMODORE, ESTABLISHED BY SECTION 6 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED BY PUBLIC LAW 26, 78TH CONGRESS, APPROVED APRIL 9, 1943, 57 STAT. 59, AS FOLLOWS:

THE RANK AND GRADE OF COMMODORE ARE HEREBY ESTABLISHED FOR THE PURPOSES OF THIS ACT: PROVIDED, THAT ALL OFFICERS APPOINTED TO THE RANK OF COMMODORE PURSUANT TO THE AUTHORITY OF THIS ACT, WHILE SERVING IN SUCH RANK, SHALL BE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED FOR AN OFFICER OF THE SIXTH PAY PERIOD. * * *

PRIOR TO 1908 THE RIGHT OF NAVY OFFICERS TO ADDITIONAL PAY WHILE SERVING AS AIDES WAS BASED ON THE GENERAL ASSIMILATION PROVISION CONTAINED IN SECTION 13 OF THE NAVAL PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1007, TO THE EFFECT THAT AFTER JUNE 30, 1899, COMMISSIONED OFFICERS OF THE NAVY SHOULD "RECEIVE THE SAME PAY AND ALLOWANCES, EXCEPT FORAGE, AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE OFFICERS OF CORRESPONDING RANK IN THE ARMY.' UNITED STATES V. CROSLEY, 196 U.S. 327; UNITED STATES V. MILLER, 208, U.S. 32. BY THE SAME ACT THE RANK AND GRADE OF COMMODORE IN THE NAVY WAS ELIMINATED, SO FAR AS THE ACTIVE LIST WAS CONCERNED. RODGERS V. UNITED STATES, 185 U.S. 83; GIBSON V. UNITED STATES, 194 U.S. 182.

THE PAY OF AIDES IN THE NAVY WAS SUBSEQUENTLY EXPRESSLY FIXED BY A CLAUSE IN THE NAVY PAY ACT OF MAY 13, 1908, 35 STAT. 128, AS FOLLOWS:

* * * AIDS TO REAR/ADMIRALS EMBRACED IN THE NINE LOWER NUMBERS OF THAT GRADE SHALL EACH RECEIVE ONE HUNDRED AND FIFTY DOLLARS ADDITIONAL PER ANNUM, AND AIDS TO ALL OTHER REAR/ADMIRALS, TWO HUNDRED DOLLARS ADDITIONAL PER ANNUM EACH. * * *

THE OPINION IN THE CASE OF KNOX V. UNITED STATES, 52 C.1CLS. 22, MAKES IT CLEAR THAT AFTER THE PASSAGE OF THE ACT OF MAY 13, 1908, THE RIGHT TO AIDE'S PAY DEPENDED ON THAT ACT AND NOT ON THE SAID ASSIMILATION PROVISION IN THE NAVY PERSONNEL ACT OF MARCH 3, 1899, ALTHOUGH THE CONDITIONS UNDER WHICH AIDE'S PAY THERETOFORE HAD BEEN ALLOWED UNDER THE ASSIMILATION PROVISION IN THE 1899 ACT WERE TAKEN AS DETERMINATIVE OF THE MEANING OF THE WORD "AIDS" AS USED IN THE 1908 ACT. IN THE CASE OF FRUCHT V. UNITED STATES, 49 C.1CLS. 570, IT WAS POINTED OUT THAT THE ACT OF MAY 13, 1908, DOES NOT AUTHORIZE AIDE'S PAY FOR AN OFFICER WHEN ASSIGNED TO DUTY AS AIDE TO AN OFFICER OF A RANK BELOW THAT OF REAR ADMIRAL. IN WOOD V. UNITED STATES, 224 U.S. 132, THE SUPREME COURT OF THE UNITED STATES HELD THAT AN AIDE TO AN ADMIRAL (FOR A PERIOD PRIOR TO MAY 13, 1908) WAS NOT ENTITLED TO AIDE'S PAY. THE LAST PARAGRAPH OF THE COURT'S OPINION IN THAT CASE IS AS FOLLOWS:

THE FAILURE BY CONGRESS DURING THE MANY YEARS WHICH HAVE ELAPSED SINCE THE RE-CREATION OF THE OFFICE OF ADMIRAL TO MAKE ANY PROVISION CONCERNING THE PAY OF AIDS TO THAT OFFICER GIVES RISE TO THE ASSUMPTION OF A LEGISLATIVE CONSTRUCTION IN ACCORD WITH THE VIEW WHICH WE HAVE EXPRESSED. THE MATTER IS NOT HOWEVER LEFT TO MERE INFERENCE RESULTING FROM SILENCE, SINCE ALTHOUGH CONGRESS IN WHAT IS KNOWN AS THE NEW PAY ACT OF MAY 13, 1908, 35 STAT. 127, C. 166, IN TERMS SPECIFICALLY PROVIDED FOR THE PAY OF EVERY OFFICER IN THE NAVY, INCLUDING THE ADMIRAL AND EMBRACING EXTRA COMPENSATION TO AIDS TO REAR ADMIRALS, MADE NO PROVISION WHATEVER FOR COMPENSATION FOR SERVICES WHICH MIGHT BE RENDERED BY AN OFFICER ACTING AS AID TO THE ADMIRAL. THE INCONGRUITY, IF ANY, WHICH IT IS SUGGESTED MUST RESULT FROM PROVIDING FOR EXTRA COMPENSATION FOR AN AID TO A REAR ADMIRAL AND NONE FOR AIDS TO THE HIGHER OFFICER, THE ADMIRAL, IF ADMITTED, WOULD BE BUT THE CONSEQUENCE OF LEGISLATIVE OMISSION, AND WOULD NOT JUSTIFY THE EXERTION OF JUDICIAL POWER FOR THE PURPOSE OF RE-CREATING A PROVISION OF LAW, CONCERNING AIDS TO THE GENERAL OF THE ARMY, WHICH HAS LONG SINCE CEASED TO EXIST, IN ORDER TO AFFORD A SUBJECT UPON WHICH THE ASSIMILATING PROVISION OF THE NAVAL PERSONNEL ACT OF 1899 MIGHT OPERATE.

UNDER THE SAID PROVISIONS OF THE ACT OF MAY 13, 1908, ADDITIONAL PAY AS AIDE IS PAYABLE ONLY WHEN THE OFFICER IS ASSIGNED AS AIDE TO A REAR ADMIRAL. THEREFORE, AN OFFICER ASSIGNED TO DUTY AS AN AIDE TO A FLAG OFFICER OF THE RANK OF COMMODORE IS NOT ENTITLED TO AIDE'S PAY UNDER THAT ACT AND APPARENTLY THAT ACT, WHICH "IN TERMS SPECIFICALLY PROVIDED FOR THE PAY OF EVERY OFFICER IN THE Y," SUPERSEDED THE 1899 PROVISION AND WAS INTENDED TO BE EXCLUSIVE WITH RESPECT TO THE PAYMENT OF AIDES' PAY IN THE NAVY THEREAFTER. WOOD V. UNITED STATES, SUPRA. BUT EVEN WERE IT OTHERWISE, IT WOULD APPEAR THAT ANY REMAINING FORCE IN THE SAID ASSIMILATION PROVISION IN THE 1899 ACT, INSOFAR AS IT MIGHT APPLY TO AN AIDE TO A COMMODORE, WAS VITIATED BY SECTION 22 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 633, WHICH EXPRESSLY REPEALED ALL LAWS AND PARTS OF LAWS INCONSISTENT THEREWITH. WHILE SECTION 21 OF THAT ACT PROVIDED THAT NOTHING THEREIN SHOULD "OPERATE TO CHANGE IN ANY WAY EXISTING LAWS OR REGULATIONS MADE IN PURSUANCE OF LAW," GOVERNING, INTER ALIA, ADDITIONAL PAY FOR AIDES, THERE WAS THEN NO "EXISTING LAWS OR REGULATIONS" GOVERNING ADDITIONAL PAY FOR AIDES FOR COMMODORES, BECAUSE THERE WAS NO GRADE OF COMMODORE ON THE ACTIVE LIST AT THAT TIME. WHEN THE SAID 1922 ACT WAS ENACTED THE ONLY EXISTING EXPRESS PROVISIONS FOR AIDE'S PAY FOR NAVAL OFFICERS WERE THOSE IN THE NAVY PAY ACT OF MAY 13, 1908, AUTHORIZING ADDITIONAL PAY FOR AIDES TO REAR ADMIRALS; AND THE SUBSEQUENT ESTABLISHMENT OF THE RANK AND GRADE OF COMMODORE DURING THE PRESENT WAR BY THE ACT OF APRIL 9, 1943, SUPRA, MAY NOT BE VIEWED AS REVIVING THE ASSIMILATION PROVISION OF THE 1899 ACT IN THAT RESPECT SO AS TO CONFER A SIMILAR RIGHT ON AIDES TO COMMODORES.

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE AND THAT RENDERS AN ANSWER TO QUESTION (2) UNNECESSARY.