B-56247, AUGUST 2, 1946, 26 COMP. GEN. 78

B-56247: Aug 2, 1946

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AIDES TO REAR ADMIRALS - COAST GUARD THE FACT THAT ADDITIONAL PAY FOR DIVING DUTY WAS NOT AUTHORIZED FOR COAST GUARD OFFICERS AND ENLISTED MEN IN EITHER THE ACT OF JUNE 10. 1946) THE COAST GUARD WAS RETURNED BY EXECUTIVE ORDER FROM NAVY TO TREASURY DEPARTMENT JURISDICTION. TO COAST GUARD PERSONNEL WHO ARE DIRECTED TO CONTINUE TO SERVE AS PART OF THE NAVY PURSUANT TO EXECUTIVE ORDER NO. 9666. - AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED ON THE QUESTIONS HEREINAFTER SET FORTH. REFERENCE IS ALSO MADE TO TREASURY DEPARTMENT GENERAL ORDER 1-46. 1946 (11 F.R. 185). (1) ARE AIDES TO FLAG OFFICERS (RANK OF REAR ADMIRAL) IN THE COAST GUARD ENTITLED TO CONTINUE TO RECEIVE ADDITIONAL PAY PROVIDED BY THE ACT OF MAY 13.

B-56247, AUGUST 2, 1946, 26 COMP. GEN. 78

PAY - ADDITIONAL - DIVING DUTY; AIDES TO REAR ADMIRALS - COAST GUARD THE FACT THAT ADDITIONAL PAY FOR DIVING DUTY WAS NOT AUTHORIZED FOR COAST GUARD OFFICERS AND ENLISTED MEN IN EITHER THE ACT OF JUNE 10, 1922, OR THE PAY READJUSTMENT ACT OF 1942 MAY NOT BE VIEWED AS REVIVING THE SUPERSEDED PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920, ASSIMILATING THE PAY OF COAST GUARD PERSONNEL TO THAT OF NAVY PERSONNEL, SO AS TO ENTITLE COAST GUARD PERSONNEL TO DIVING PAY, ON THE BASIS AUTHORIZED BY LAW FOR NAVY PERSONNEL, FROM THE DATE ( JANUARY 1, 1946) THE COAST GUARD WAS RETURNED BY EXECUTIVE ORDER FROM NAVY TO TREASURY DEPARTMENT JURISDICTION. ADDITIONAL PAY FOR DIVING DUTY AUTHORIZED BY THE ACT OF AUGUST 4, 1942, FOR OFFICERS AND ENLISTED MEN OF THE NAVY MAY CONTINUE TO BE PAID ON AND AFTER JANUARY 1, 1946, TO COAST GUARD PERSONNEL WHO ARE DIRECTED TO CONTINUE TO SERVE AS PART OF THE NAVY PURSUANT TO EXECUTIVE ORDER NO. 9666, OTHERWISE RETURNING THE COAST GUARD FROM NAVY TO TREASURY DEPARTMENT JURISDICTION. THE ACT OF JULY 24, 1941, AS AMENDED, ESTABLISHING THE WARTIME RANK OF REAR ADMIRAL IN THE COAST GUARD, MAY NOT BE VIEWED AS REVIVING THE SUPERSEDED PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920, ASSIMILATING THE PAY OF COAST GUARD PERSONNEL TO THAT OF NAVY PERSONNEL, SO AS TO CONFER THE RIGHT TO AIDE'S PAY, ON THE BASIS AUTHORIZED BY LAW FOR NAVY OFFICERS, UPON AIDES TO REAR ADMIRALS OF THE COAST GUARD SUBSEQUENT TO THE RETURN OF THE COAST GUARD FROM NAVY TO TREASURY DEPARTMENT JURISDICTION PURSUANT TO EXECUTIVE ORDER NO. 9666, EFFECTIVE JANUARY 1, 1946.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, AUGUST 2, 1946:

THERE HAS BEEN CONSIDERED A LETTER DATED FEBRUARY 21, 1946, FROM THE GENERAL COUNSEL, TREASURY DEPARTMENT--- PRESUMABLY WRITTEN AT YOUR DIRECTION--- AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE QUESTIONS HEREINAFTER SET FORTH, WHICH ARISE IN CONSEQUENCE OF THE RETURN OF THE COAST GUARD TO THE TREASURY DEPARTMENT PURSUANT TO EXECUTIVE ORDER NO. 9666, DECEMBER 28, 1945 (11 F.R. 1). REFERENCE IS ALSO MADE TO TREASURY DEPARTMENT GENERAL ORDER 1-46, JANUARY 1, 1946 (11 F.R. 185).

(1) ARE AIDES TO FLAG OFFICERS (RANK OF REAR ADMIRAL) IN THE COAST GUARD ENTITLED TO CONTINUE TO RECEIVE ADDITIONAL PAY PROVIDED BY THE ACT OF MAY 13, 1908, AS AMENDED (34 U.S.C. 867), FOR AIDES TO REAR ADMIRALS OF THE NAVY?

WHILE THE COAST GUARD WAS OPERATING AS PART OF THE NAVY IN PURSUANCE OF EXECUTIVE ORDER NO. 8929, OF NOVEMBER 1, 1941 (6 F.R. 5581), DESIGNATION OF AIDES TO CERTAIN FLAG OFFICERS (REAR ADMIRALS) IN THE COAST GUARD WAS AUTHORIZED BY COMMANDANT'S CIRCULAR NO. 25-45, 24 AUGUST, 1945 (COPY ENCLOSED), INCLUDING AUTHORITY TO PAY THEM THE ADDITIONAL PAY PROVIDED BY THE ABOVE CITED STATUTE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY GOVERNING SUCH PAYMENTS TO NAVY OFFICERS. COPY OF COAST GUARD FINANCE AND SUPPLY CIRCULAR NO. 149-45, 26 SEPTEMBER 1945, IS ALSO ENCLOSED. THE QUESTION OF AUTHORITY TO CONTINUE SUCH ADDITIONAL PAY WOULD APPEAR TO DEPEND ON THE APPLICABILITY TO THIS SITUATION OF SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, WHICH ASSIMILATES PAY, ALLOWANCES, AND INCREASES OF COAST GUARD OFFICERS AND ENLISTED MEN TO THOSE PRESCRIBED FOR OFFICERS AND ENLISTED MEN OF THE NAVY. CONSIDERATION HAS BEEN GIVEN TO THE DECISION A-95202, DATED AUGUST 17, 1938, BY THE ACTING COMPTROLLER GENERAL, WHICH DENIED SUCH ADDITIONAL PAY TO THE AIDE TO REAR ADMIRAL R. R. WAESCHE, COMMANDANT OF THE UNITED STATES COAST GUARD, BUT THIS IS PREDICATED ON THE STATUS OF THE OFFICE OF COMMANDANT OF THE COAST GUARD AS IN EFFECT THAT OF A BUREAU CHIEF IN THE TREASURY DEPARTMENT. THE STATUS OF THE FLAG OFFICERS (REAR ADMIRALS) COVERED BY COMMANDANT'S CIRCULAR NO. 25-45, IS NOT OF SUCH CHARACTER AND WOULD NOT SEEM TO BE SUBJECT TO THAT RULING. THESE FLAG OFFICERS OCCUPY HIGH POSTS IN THE FIELD SERVICE OF THE COAST GUARD, AND HAVE BEEN ADVANCED TO RANK OF REAR ADMIRAL PURSUANT TO THE TEMPORARY PROMOTION ACT OF JULY 24, 1941, AS AMENDED (34 U.S.C. 350-350J).

(2) ARE COAST GUARD OFFICERS AND ENLISTED MEN ENTITLED TO CONTINUE TO RECEIVE, AFTER DECEMBER 31, 1945, ADDITIONAL PAY FOR DIVING AS PROVIDED BY LAW FOR NAVY PERSONNEL?

THE ACT OF APRIL 9, 1928 (45 STAT. 412), AS AMENDED (34 U.S.C. 886), PROVIDES ADDITIONAL PAY FOR OFFICERS AND ENLISTED MEN OF THE NAVY WHEN ASSIGNED TO THE DUTY OF DIVING AND WHEN EMPLOYED AS DIVERS IN ACTUAL SALVAGE OPERATIONS. IN THE DECISION B-30586, FEBRUARY 1, 1943 (22 COMP. GEN. 723), THE ASSISTANT COMPTROLLER GENERAL HELD THAT PAYMENT OF SUCH ADDITIONAL PAY TO OFFICERS AND ENLISTED MEN OF THE COAST GUARD WAS AUTHORIZED WHILE THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY IN ACCORDANCE WITH LAW. COAST GUARD FINANCE AND SUPPLY CIRCULAR NO. 154-44, 7 NOVEMBER, 1944 (COPY ENCLOSED), CONTAINS THE ADMINISTRATIVE INSTRUCTIONS ON THIS SUBJECT, PREDICATED ON SAID DECISION. WHILE THE DECISION STRESSES THE CONDITION OF THE COAST GUARD'S OPERATING AS PART OF THE NAVY, IT DOES NOT SPECIFICALLY STATE THAT SUCH ADDITIONAL PAY FOR DIVING SERVICES IS NOT APPLICABLE TO OFFICERS AND ENLISTED MEN OF THE COAST GUARD OTHER THAN WHEN THE COAST GUARD OPERATES AS PART OF THE NAVY, THIS QUESTION NOT THEN BEING PERTINENT SINCE THE COAST GUARD WAS AT THAT TIME OPERATING AS PART OF THE NAVY. AND IN THE REFERENCE MADE TO SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, THE IMPLICATION SEEMS TO BE THAT SINCE ADDITIONAL PAY FOR DIVING SERVICES WAS NOT COVERED IN THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT., 625, AND THE PAY ADJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, SECTION 8 OF THE ACT OF MAY 18, 1920, MIGHT BE REGARDED AS OPERATIVE TO ASSIMILATE THE PAY OF OFFICERS AND ENLISTED MEN OF THE COAST GUARD IN THIS RESPECT TO THAT OF THE NAVY. THIS WOULD SEEM TO BE A SITUATION THAT CALLS FOR GIVING SUCH EFFECT TO SECTION 8 OF THE ACT OF MAY 18, 1920. THE COAST GUARD HAS OPERATIONS, APART FROM THOSE CONNECTED WITH ITS OPERATING AS PART OF THE NAVY, THAT REQUIRE THE SERVICES OF PERSONS QUALIFIED AS DIVERS, INCLUDING OPERATIONS CONNECTED WITH THE LOCATION AND REMOVAL OF WRECKS AND DERELICTS ( COAST GUARD REGULATIONS, ARTS. 3101-3120), AND IN UNDER WATER EXAMINATIONS FOR SUBMARINE FOUNDATIONS FOR LIGHTHOUSES AND OTHER STRUCTURES.

EXECUTIVE ORDER NO. 9666 DATED DECEMBER 28, 1945, DIRECTING THE RETURN OF THE COAST GUARD TO THE TREASURY DEPARTMENT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

WHEREAS EXECUTIVE ORDER NO. 8929 OF NOVEMBER 1, 1941 (6 F.R. 5581), DIRECTED THAT FROM THAT DATE AND UNTIL FURTHER ORDERS THE COAST GUARD SHOULD OPERATE AS A PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY; AND

WHEREAS THE NEED FOR THE OPERATION OF THE COAST GUARD AS A PART OF THE NAVY NO LONGER EXISTS, ITS PRIMARY MISSION IN OPERATING AS A PART OF THE NAVY HAVING BEEN ACCOMPLISHED:

NOW THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE CONSTITUTION AND STATUTES OF THE UNITED STATES, INCLUDING TITLE I OF THE FIRST WAR POWERS ACT, 1941 (55 STAT. 838), AND AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY DIRECTED THAT ON AND AFTER JANUARY 1, 1946, THE COAST GUARD SHALL OPERATE UNDER THE DEPARTMENT OF THE TREASURY; AND THEREUPON ALL AUTHORITY, POWERS, AND DUTIES CONFERRED UPON OR VESTED IN THE SECRETARY OF THE NAVY BY ANY LAW, PROCLAMATION OR EXECUTIVE ORDER AFFECTING THE COAST GUARD, ENACTED OR PROMULGATED DURING THE PERIOD THE COAST GUARD HAS BEEN OPERATING AS A PART OF THE NAVY AND NOW IN EFFECT, SHALL, TO THE EXTENT THAT THEY AFFECT THE COAST GUARD, VEST IN AND BE EXERCISED BY THE SECRETARY OF THE TREASURY.

THIS ORDER IS SUBJECT TO THE FOLLOWING EXCEPTIONS, PROVISIONS, AND CONDITIONS:

"1. IN THE INTEREST OF EXPEDITIOUS DEMOBILIZATION AND OTHER EXIGENCIES OF THE NAVAL SERVICE, SUCH COAST GUARD VESSELS, FACILITIES, AND PERSONNEL AS THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE NAVY MAY MUTUALLY AGREE UPON SHALL CONTINUE TO OPERATE AS A PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY, FOR SUCH ADDITIONAL TIME BEYOND JANUARY 1, 1946, AS THE AGREEMENT MAY PROVIDE.'

IN THE DECISION OF FEBRUARY 1, 1943, B-30586, 22 COMP. GEN. 723, REFERRED TO IN THE LETTER OF THE GENERAL COUNSEL, IT WAS STATED THAT ALTHOUGH THE STATUTE (ACT OF AUGUST 4, 1942, 56 STAT. 736) AUTHORIZING ADDITIONAL PAY FOR DIVING DUTY MENTIONS SPECIFICALLY OFFICERS AND ENLISTED MEN OF THE NAVY, THE WORD " NAVY" IN GENERAL STATUTORY PROVISIONS HAS BEEN CONSTRUED TO INCLUDE THE COAST GUARD WHILE OPERATING AS A PART OF THE NAVY WHERE THAT INTERPRETATION CLEARLY APPEARS CONSISTENT WITH THE PURPOSE AND SPIRIT OF THE STATUTE INVOLVED AND THE OBJECT WHICH IT WAS INTENDED TO ACCOMPLISH. HENCE, IT WAS CONCLUDED THAT WHEN DIVING DUTY IS PERFORMED BY OFFICERS AND ENLISTED MEN OF THE COAST GUARD WHO HAVE BEEN ASSIGNED TO THE DUTY OF DIVING WHILE THE COAST GUARD IS OPERATING AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, PAYMENT OF THE ADDITIONAL PAY IS AUTHORIZED, SUBJECT TO THE SAME CONDITIONS AND LIMITATIONS AS IN THE CASE OF OFFICERS AND ENLISTED MEN OF THE NAVY PROPER UNDER SUCH CIRCUMSTANCES. PRESUMABLY, THE SAID DECISION OF FEBRUARY 1, 1943, AND OTHER DECISIONS TO THE EFFECT THAT WHEN THE COAST GUARD IS OPERATING AS A PART OF THE NAVY, PERSONNEL THEREOF ARE ENTITLED TO CERTAIN BENEFITS UNDER THE SAME CONDITIONS AS IS AUTHORIZED BY LAW FOR PERSONNEL OF THE NAVY (23 COMP. GEN. 796, 24 ID. 681, AND B-36641, OCTOBER 26, 1943) HAVE BEEN VIEWED ADMINISTRATIVELY AS AUTHORITY FOR THE ISSUANCE OF THE COMMANDANT'S CIRCULAR NO. 25-46 DATED AUGUST 24, 1945, AUTHORIZING THE PAYMENT OF AIDE'S PAY TO OFFICERS OF THE COAST GUARD ASSIGNED AS AIDES TO REAR ADMIRALS OF THE COAST GUARD, IN ACCORDANCE WITH NAVY REGULATIONS GOVERNING THE PAYMENT OF AIDE'S PAY. WHETHER THAT CONCLUSION WAS CORRECT IS NOT FREE FROM DOUBT. HOWEVER, SINCE THE COAST GUARD WAS RETURNED TO THE TREASURY DEPARTMENT EFFECTIVE JANUARY 1, 1946, THE QUESTION NOW ARISES AS TO WHETHER THE PAYMENT OF ADDITIONAL PAY FOR AIDES AND DIVING DUTY MAY CONTINUE TO BE PAID TO SUCH OFFICERS AND ENLISTED MEN OF THE COAST GUARD ON AND AFTER THAT DATE.

IN THE SAID DECISION OF FEBRUARY 1, 1943, IT WAS POINTED OUT THAT THE PROVISION IN SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, REFERRED TO IN THE LETTER OF THE GENERAL COUNSEL, ASSIMILATING THE PAY AND ALLOWANCES OF OFFICERS AND ENLISTED MEN OF THE COAST GUARD TO THOSE PRESCRIBED BY LAW FOR CORRESPONDING GRADES AND RATINGS IN THE NAVY, WAS LARGELY SUPERSEDED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 359. THE FACT THAT ADDITIONAL PAY FOR DIVING DUTY WAS NOT SPECIFICALLY AUTHORIZED FOR OFFICERS AND ENLISTED MEN OF THE COAST GUARD IN EITHER THE 1922 OR THE 1942 PAY ACTS MAY NOT BE VIEWED AS REVIVING THE ASSIMILATION PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920, AS AS TO ENTITLE OFFICERS AND ENLISTED MEN OF THE COAST GUARD TO DIVING PAY WHEN THE COAST GUARD IS OPERATING UNDER THE TREASURY DEPARTMENT. HOWEVER, UNDER THE PRINCIPLES STATED IN THE DECISION OF FEBRUARY 1, 1943, DIVING PAY MAY CONTINUE TO BE PAID TO PERSONNEL OF THE COAST GUARD WHO CONTINUE ON AND AFTER JANUARY 1, 1946, TO OPERATE AS A PART OF THE NAVY PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 9666, SUPRA. QUESTION (2) IS ANSWERED ACCORDINGLY.

INASMUCH AS NO SPECIFIC STATUTORY PROVISION EXISTS FOR THE PAYMENT OF AIDE'S PAY TO OFFICERS OF THE COAST GUARD AND AS SECTION 21 OF THE ACT OF JUNE 10, 1922, 42 STAT. 633, 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, IT IS NECESSARY TO CONSIDER BRIEFLY THE LAWS GOVERNING THE PAYMENT OF AIDE'S PAY TO OFFICERS OF THE NAVY AND PRIOR LAWS APPLICABLE TO THE COAST GUARD AND FORMER REVENUE CUTTER SERVICE TO DETERMINE WHETHER PAYMENT OF AIDE'S PAY IS AUTHORIZED UNDER SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, OR OTHERWISE, FOR OFFICERS OF THE COAST GUARD.

PRIOR TO 1908 THE RIGHT OF NAVY OFFICERS TO ADDITIONAL PAY WHILE SERVING AS AIDES TO REAR ADMIRALS 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. THE PAY OF AIDES IN THE NAVY SUBSEQUENTLY WAS 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 PER ANNUM EACH. * * *

THE OPINION IN THE CASE OF KNOX V. UNITED STATES, 52 C.CLS. 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 NAVAL 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. THE LATTER ACT--- WHICH CURRENTLY IS IN EFFECT--- WAS IN EFFECT AT THE TIME OF THE PASSAGE OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, CREATING THE COAST GUARD BY COMBINING THEREIN THE EXISTING LIFE SAVING SERVICE AND THE REVENUE CUTTER SERVICE. SECTIONS 2 AND 3 OF THE SAID ACT, 38 STAT. 801, PROVIDED IN PART, AS FOLLOWS:

SEC. 2. THAT IN THE COAST GUARD THERE SHALL BE A CAPTAIN COMMANDANT, SENIOR CAPTAINS, CAPTAINS, FIRST LIEUTENANTS, SECOND LIEUTENANTS, THIRD LIEUTENANTS * * * ALL OF SAID OFFICES, RESPECTIVELY, CORRESPONDING TO THE PRESENT OFFICES OF THE REVENUE-CUTTER SERVICE, WHICH ARE TRANSFERRED TO THE COAST GUARD, AND ALL THE PRESENT INCUMBENTS, OFFICERS AND ENLISTED MEN, ARE ALSO TRANSFERRED TO CORRESPONDING POSITIONS IN THE COAST GUARD *

SEC. 3. THAT ALL EXISTING LAWS AFFECTING RANK, PAY, AND ALLOWANCES IN THE PRESENT LIFE-SAVING SERVICE AND THE PRESENT REVENUE-CUTTER SERVICE SHALL APPLY TO THE CORRESPONDING POSITIONS IN THE COAST GUARD AND THE OFFICERS AND MEN TRANSFERRED THERETO AND THEIR SUCCESSORS. * * * SECTION 1 OF THE ACT OF APRIL 16, 1908, 35 STAT. 61, AUTHORIZED THE PRESIDENT TO APPOINT IN THE REVENUE CUTTER SERVICE, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ONE CAPTAIN COMMANDANT WITH THE RANK OF COLONEL IN THE ARMY AND A CAPTAIN IN THE NAVY, WHO SHALL HAVE THE PAY AND ALLOWANCES OF A COLONEL IN THE ARMY AND COMMANDER IN THE NAVY, WHO SHALL HAVE THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL IN THE ARMY. THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, ESTABLISHED THE TITLE OF COMMANDANT AND ABOLISHED THE TITLE OF CAPTAIN COMMANDANT IN THE COAST GUARD, AND FURTHER PROVIDED THAT THE COMMANDANT SHALL HAVE, WHILE SERVING AS COMMANDANT, THE RANK, PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY. THE 1923 STATUTE WAS AMENDED BY THE ACT OF APRIL 23, 1930, 46 STAT. 253, TO PROVIDE THAT THEREAFTER THE COMMANDANT OF THE COAST GUARD SHALL, WHILE SO SERVING, HAVE CORRESPONDING RANK AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW OR HEREAFTER MAY BE PRESCRIBED BY LAW FOR CHIEFS OF BUREAUS OF THE NAVY DEPARTMENT. SECTION 3 OF THE ACT OF JUNE 6, 1940, 54 STAT. 246, AUTHORIZED THE PRESIDENT TO APPOINT IN THE COAST GUARD, BY AND WITH THE ADVICE OF THE SENATE, ONE ASSISTANT COMMANDANT WHO SHALL HAVE THE RANK OF REAR ADMIRAL AND THE PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF), AND SECTION 1 (B) OF THE SAID ACT, 54 STAT. 246, PROVIDED THAT THE ENGINEER IN CHIEF, WHILE SO SERVING, SHALL HAVE THE RANK OF A REAR ADMIRAL (LOWER HALF). THUS, IT WILL BE NOTED THE CITED STATUTES DID NOT SPECIFICALLY AUTHORIZE THE RANK OF REAR ADMIRAL IN THE COAST GUARD UNTIL JANUARY 12, 1923, AND EVEN THEN, SUCH RANK WAS AUTHORIZED ONLY FOR THE COMMANDANT WHILE SERVING AS COMMANDANT. IT WAS NOT UNTIL THE ENACTMENT OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF APRIL 9, 1943, 57 STAT. 59, 60, THAT THE APPOINTMENT OF COAST GUARD OFFICERS GENERALLY TO THE TEMPORARY RANK OF REAR ADMIRAL WAS AUTHORIZED, AND, PRESUMABLY, IT IS AIDES TO THIS LATTER CLASS OF OFFICERS TO WHICH QUESTION (1) IS DIRECTED. CF. A-95202, AUGUST 17, 1938; 17 COMP. GEN. 40.

WHILE SECTION 21 OF THE ACT OF JUNE 10, 1922, 42 STAT. 633, PROVIDED THAT NOTHING THEREIN SHOULD OPERATE TO CHANGE IN ANY WAY EXISTING LAWS AND REGULATIONS MADE IN PURSUANCE OF LAW GOVERNING ADDITIONAL PAY FOR AIDES, THERE WERE THEN NO EXISTING LAWS OR REGULATIONS GOVERNING ADDITIONAL PAY FOR AIDES TO REAR ADMIRALS OF THE COAST GUARD BECAUSE THE RANK OF REAR ADMIRAL IN THE COAST GUARD WAS NOT SPECIFICALLY AUTHORIZED BY LAW AT THAT TIME. WHEN THE ACT OF JUNE 10, 1922, WAS ENACTED THE ONLY EXISTING STATUTORY PROVISION FOR AIDE'S PAY FOR NAVAL OFFICERS WAS THAT IN THE NAVY PAY ACT OF MAY 13, 1908, SUPRA, AUTHORIZING ADDITIONAL PAY FOR AIDES TO REAR ADMIRALS; AND THE SUBSEQUENT ENACTMENT OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF APRIL 9, 1943, AUTHORIZING THE TEMPORARY APPOINTMENT OF OFFICERS OF THE COAST GUARD TO THE RANK OF REAR ADMIRAL IN THE COAST GUARD DURING THE PRESENT WAR MAY NOT BE VIEWED AS REVIVING THE ASSIMILATION PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920--- WHICH LARGELY WERE SUPERSEDED BY THE ACT OF JUNE 10, 1922, AND THE PAY READJUSTMENT ACT OF 1942--- SO AS TO CONFER RIGHTS TO AIDE'S PAY UPON AIDES TO REAR ADMIRALS OF THE COAST GUARD WHILE THE COAST GUARD IS OPERATING UNDER THE TREASURY DEPARTMENT. CF. 23 COMP. GEN. 500. QUESTION (1) IS ANSWERED IN THE NEGATIVE.