B-38881, JANUARY 10, 1944, 23 COMP. GEN. 502

B-38881: Jan 10, 1944

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OFFICERS OF THE REGULAR ARMY WHO RECEIVE STATUTORY PROMOTIONS SUBJECT TO EXAMINATION UNDER THE SAID ACT BUT WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR. ARE NOT ENTITLED. TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES OF THE GRADE TO WHICH THEY ARE THUS PROMOTED. WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR. ARE NOT ENTITLED. TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS. WHO RECEIVE STATUTORY PROMOTIONS SUBJECT TO EXAMINATION BUT WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR. ARE ENTITLED. TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES OF THE GRADE TO WHICH THEY ARE THUS PROMOTED. THE EXAMINATIONS REFERRED TO ARE THOSE REQUIRED BY SECTION 3 OF THE ACT OF OCTOBER 1.

B-38881, JANUARY 10, 1944, 23 COMP. GEN. 502

PAY - MISSING, INTERNED, ETC., ARMY OFFICERS PROMOTED "SUBJECT TO EXAMINATION" THE PROVISION IN THE ACT OF FEBRUARY 2, 1901, AUTHORIZING THE PROMOTION OF OFFICERS OF THE REGULAR ARMY "SUBJECT TO EXAMINATION," CREATES ONLY AN INCHOATE RIGHT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE PENDING QUALIFICATION ON SUBSEQUENT EXAMINATION, AND, THEREFORE, OFFICERS OF THE REGULAR ARMY WHO RECEIVE STATUTORY PROMOTIONS SUBJECT TO EXAMINATION UNDER THE SAID ACT BUT WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR, OR REPORTED AS MISSING OR MISSING IN ACTION; OR INTERNED IN A NEUTRAL COUNTRY, ARE NOT ENTITLED, PRIOR TO SUCH EXAMINATION, TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES OF THE GRADE TO WHICH THEY ARE THUS PROMOTED. OFFICERS ON THE PROMOTION LIST OF THE REGULAR ARMY, SERVING IN THEIR PERMANENT GRADE, WHO RECEIVE STATUTORY PROMOTIONS "SUBJECT TO EXAMINATION" UNDER THE ACT OF FEBRUARY 2, 1901, BUT WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR, OR REPORTED AS MISSING OR MISSING IN ACTION, OR INTERNED IN A NEUTRAL COUNTRY, ARE NOT ENTITLED, BY VIRTUE OF SECTION 2 OF THE ACT OF MARCH 7, 1942, RESPECTING THE CONTINUANCE OF PAY AND ALLOWANCES OF PERSONS CAPTURED, INTERNED, ETC., OR THE ACT OF OCTOBER 14, 1942, WITH RESPECT TO THE EFFECTIVE DATE OF PROMOTIONS, TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS, PRIOR TO SUCH EXAMINATION, THE PAY AND ALLOWANCES OF THE GRADE TO WHICH THUS PROMOTED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 10, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 9, 1943, REQUESTING DECISION WHETHER OFFICERS ON THE PROMOTION LIST OF THE REGULAR ARMY, SERVING IN THEIR PERMANENT GRADE, WHO RECEIVE STATUTORY PROMOTIONS SUBJECT TO EXAMINATION BUT WHO CANNOT BE EXAMINED BECAUSE THEY ARE PRISONERS OF WAR, OR REPORTED AS MISSING OR MISSING IN ACTION, OR INTERNED IN A NEUTRAL COUNTRY, ARE ENTITLED, PRIOR TO EXAMINATION, TO RECEIVE OR HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES OF THE GRADE TO WHICH THEY ARE THUS PROMOTED.

THE EXAMINATIONS REFERRED TO ARE THOSE REQUIRED BY SECTION 3 OF THE ACT OF OCTOBER 1, 1890, 26 STAT. 562, AS AMENDED BY SECTION 24C OF THE NATIONAL DEFENSE ACT OF 1916, ADDED THERETO BY SECTION 24 OF THE ACT OF JUNE 4, 1920, 41 STAT. 771, 774 WHICH PROVIDES:

* * * EXISTING LAWS PROVIDING FOR THE EXAMINATION OF OFFICERS FOR PROMOTION ARE HEREBY REPEALED, EXCEPT THOSE RELATING TO PHYSICAL EXAMINATION, WHICH SHALL CONTINUE TO BE REQUIRED FOR PROMOTION TO ALL GRADES BELOW THAT OF BRIGADIER GENERAL, AND EXCEPT ALSO THOSE GOVERNING THE EXAMINATION OF OFFICERS OF THE MEDICAL, DENTAL, AND VETERINARY CORPS. OFFICERS OF SAID THREE CORPS SHALL BE EXAMINED IN ACCORDANCE WITH LAWS GOVERNING EXAMINATION OF OFFICERS OF THE MEDICAL CORPS, SECOND LIEUTENANTS OF THE VETERINARY CORPS BEING SUBJECT TO THE SAME PROVISIONS AS FIRST LIEUTENANTS.

BY THE ACT OF NOVEMBER 29, 1940, 54 STAT. 1219, THE SECRETARY OF WAR WAS AUTHORIZED, IN HIS DISCRETION, TO DISPENSE WITH UNTIL MAY 15, 1945, ANY PART OF THE EXAMINATION FOR PROMOTION IN THE REGULAR ARMY OF OFFICERS OF THE MEDICAL, DENTAL AND VETERINARY CORPS, EXCEPT THOSE RELATING TO PHYSICAL EXAMINATION.

SECTION 1 OF THE ACT OF JULY 31, 1935, 49 STAT. 505, PROVIDING FOR PROMOTIONS UNDER CERTAIN CIRCUMSTANCES IN THE REGULAR ARMY AND THE PHILIPPINE SCOUTS, CONTAINS, INTER ALIA, THE FOLLOWING REQUIREMENT:

ALL PROMOTIONS PROVIDED FOR IN THIS ACT SHALL BE SUBJECT TO THE EXAMINATION PRESCRIBED BY EXISTING LAW.

SECTION 3 OF THE SAID ACT OF JULY 31, 1935, AS AMENDED, BY SECTION 2 OF THE ACT OF JUNE 13, 1940, 54 STAT. 379, PROVIDES A PROMOTION SYSTEM FOR OFFICERS OF THE REGULAR ARMY, THE RIGHT TO PROMOTION THEREUNDER BEING BASED GENERALLY ON LENGTH OF SERVICE WITHOUT REGARD TO VACANCIES IN THE HIGHER RANK OR GRADE.

SECTION 32 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 756, PROVIDES:

THAT WHEN THE EXIGENCIES OF THE SERVICE OF ANY OFFICER WHO WOULD BE ENTITLED TO PROMOTION UPON EXAMINATION REQUIRE HIM TO REMAIN ABSENT FROM ANY PLACE WHERE AN EXAMINING BOARD COULD BE CONVENED, THE PRESIDENT IS HEREBY AUTHORIZED TO PROMOTE SUCH OFFICER, SUBJECT TO EXAMINATION, AND THE EXAMINATION SHALL TAKE PLACE AS SOON THEREAFTER AS PRACTICABLE. IF UPON EXAMINATION, THE OFFICER BE FOUND DISQUALIFIED FOR PROMOTION, HE SHALL, UPON THE APPROVAL OF THE PROCEEDINGS BY THE SECRETARY OF WAR, BE TREATED IN THE SAME MANNER AS IF HE HAD BEEN EXAMINED PRIOR TO PROMOTION. CONSIDERING THE APPLICATION OF THAT SECTION IT WAS HELD IN A DECISION OF THE COMPTROLLER OF THE TREASURY, 17 COMP. DEC. 264, QUOTING THE SYLLABUS:

THE PROMOTION BY THE PRESIDENT OF AN OFFICER OF THE ARMY SUBJECT TO EXAMINATION UNDER SECTION 32 OF THE ACT OF FEBRUARY 2, 1901 (31 STAT. 756), IS ON CONDITION THAT THE OFFICER HE FOUND QUALIFIED FOR PROMOTION ON EXAMINATION REQUIRED BY LAW. IF ON EXAMINATION HE BE FOUND DISQUALIFIED FOR PROMOTION, HE IS NOT ENTITLED TO THE PAY OF THE HIGHER GRADE FOR ANY PERIOD. HE SHOULD BE TREATED TO PROMOTION AND PAY IN THE SAME MANNER AS IF HE HAD BEEN EXAMINED PRIOR TO PROMOTION AND HAD FAILED IN HIS EXAMINATION. THAT DECISION HAS BEEN UNIFORMLY FOLLOWED (SEE 5 COMP. GEN. 922 AND PARAGRAPH 4, AR 35-1660) AND WOULD APPEAR TO BE CONTROLLING OF THE QUESTION HERE INVOLVED. HOWEVER, YOU REFER TO SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144, AND THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, WHICH PROVIDE AS FOLLOWS (THE ITALICIZED PORTIONS BEING EMPHASIZED IN YOUR LETTER):

SECTION 2 OF THE ACT OF MARCH 7, 1942---

ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER * * *. ( ITALICS SUPPLIED).

ACT OF OCTOBER 14, 1942---

THAT EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE AT ANY TIME AFTER DECEMBER 7, 1941, SHALL BE DEEMED FOR ALL PURPOSES TO HAVE ACCEPTED HIS PROMOTION TO HIGHER GRADE UPON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE SHALL EXPRESSLY DECLINE SUCH PROMOTION, AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM SUCH DATE UNLESS HE IS ENTITLED UNDER SOME OTHER PROVISION OF LAW TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE. NO SUCH OFFICER WHO SHALL HAVE SUBSCRIBED TO THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES, SHALL BE REQUIRED TO RENEW SUCH OATH OR TO TAKE A NEW OATH UPON HIS PROMOTION TO A HIGHER GRADE, IF HIS SERVICE AFTER THE TAKING OF SUCH AN OATH SHALL HAVE BEEN CONTINUOUS. ( ITALICS SUPPLIED). AND YOU STATE:

IT IS THE VIEW OF THE WAR DEPARTMENT THAT THE CLEAR INTENT OF THE ABOVE WARTIME ENACTMENTS IS TO SAFEGUARD THE INTERESTS AND ENTITLEMENTS OF PERSONS MISSING IN ACTION OR TAKEN PRISONERS INCLUDING ENTITLEMENT TO RECEIVE OR TO HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES SUCH PERSONS BECOME ENTITLED TO AFTER BEING REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY OR CAPTURED BY AN ENEMY AND THAT SUCH PERSONS SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE SUCH PERSONS WERE PROMOTED TO A HIGHER GRADE. IN VIEW OF THE INEQUITY OF DEPRIVING OFFICERS OF THE BENEFITS OF DULY EARNED PROMOTIONS BECAUSE THE EXIGENCIES OF THE SERVICE PREVENT OR DELAY THEIR EXAMINATION, SOMETIMES FOR INDEFINITELY EXTENDED PERIODS, YOUR EARLY ADVICE IS REQUESTED AS TO WHETHER SUCH OFFICERS ARE ENTITLED, UNDER THE PROVISIONS OF THE ABOVE ACTS OR OTHERWISE, TO RECEIVE OR TO HAVE CREDITED TO THEIR ACCOUNTS THE PAY AND ALLOWANCES OF THE HIGHER GRADE WHEN PROMOTED SUBJECT TO EXAMINATION.

INSOFAR AS THE QUOTED PROVISION OF THE ACT OF MARCH 7, 1942, SUPRA, IS CONCERNED, IT WOULD APPEAR TO BE SUFFICIENT TO NOTE THAT UNTIL THE OFFICERS ENTITLED TO A PROMOTION TO A HIGHER PERMANENT GRADE SUCCESSFULLY PASS THE REQUIRED EXAMINATION THEY ARE NOT ENTITLED TO THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE; AND, UNTIL THEY ARE SO ENTITLED, SUCH STATUTORY PROVISION FOR PAYING TO THEM, OR CREDITING THEIR ACCOUNTS WITH, THE PAY AND ALLOWANCES TO WHICH THEY MAY BECOME ENTITLED AFTER BEING OFFICIALLY REPORTED AS MISSING, ETC., WOULD HAVE NO APPLICATION WITH RESPECT TO THEIR PROMOTION SUBJECT TO EXAMINATION. NOR DOES IT APPEAR THAT THE PROVISION OF THE ACT OF OCTOBER 14, 1942, SUPRA, ENTITLING EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE AT ANY TIME AFTER DECEMBER 7, 1941, TO THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE FROM THE DATE OF THE ORDER ANNOUNCING IT, HAS ANY EFFECT ON THE MATTER HERE CONSIDERED. IT WOULD APPEAR OBVIOUS THAT THE PURPOSE OF THAT ACT WAS TO DISPENSE WITH THE REQUIREMENT THAT THE OFFICERS CONCERNED FORMALLY ACCEPT THEIR PROMOTIONS IN ORDER TO BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED. CERTAINLY THERE IS NO INDICATION THAT IT WAS INTENDED TO ENTITLE OFFICERS TO THE PAY AND ALLOWANCES OF A GRADE UNDER A PROMOTION FOR WHICH THEY WERE NOT OTHERWISE QUALIFIED. THAT IS TO SAY, THE PROMOTIONS HERE IN QUESTION ARE QUALIFIED IN THAT THEY ARE MADE SUBJECT TO THE OFFICERS LATER BEING PHYSICALLY EXAMINED AND FOUND QUALIFIED THEREFOR. FORMAL ACCEPTANCE OF SUCH PROMOTION WOULD NOT REMOVE THE NECESSITY FOR THE OFFICER TO BE PHYSICALLY EXAMINED IN ORDER TO BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE AND, ACCORDINGLY, THE FACT THAT A FORMAL ACCEPTANCE OF THE PROMOTION IS NO LONGER REQUIRED LIKEWISE WOULD HAVE NO SUCH EFFECT.

THE PROVISION IN THE ACT OF FEBRUARY 2, 1901, AUTHORIZING PROMOTIONS "SUBJECT TO EXAMINATION" HAS BEEN UNDERSTOOD AND APPLIED FOR MORE THAN 30 YEARS AS CREATING ONLY AN INCHOATE RIGHT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE PENDING QUALIFICATION ON SUBSEQUENT EXAMINATION. NOTHING HAS BEEN FOUND EITHER IN SECTION 2 OF THE ACT OF MARCH 7, 1942, OR IN THE ACT OF OCTOBER 14, 1942, SUPRA, OR IN THEIR LEGISLATIVE HISTORIES, WHICH WOULD INDICATE ANY INTENTION TO DISPENSE WITH THE LONG EXISTING STATUTORY REQUIREMENTS THAT OFFICERS OF THE REGULAR ARMY BE EXAMINED PHYSICALLY FOR PROMOTION. ACCORDINGLY, THE QUESTION PRESENTED IN YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.