B-5705, OCTOBER 16, 1939, 19 COMP. GEN. 436

B-5705, OCTOBER 16, 1939, 19 COMP. GEN. 436

PAY - PROMOTIONS - EFFECTIVE DATE - NAVAL AND MARINE CORPS OFFICERS COMMISSIONED FROM AVIATION CADETS AVIATION CADETS COMMISSIONED ENSIGNS OF THE NAVAL RESERVE OR SECOND LIEUTENANTS OF THE MARINE CORPS RESERVE WHO SUBSEQUENTLY ARE COMMISSIONED LIEUTENANTS ( JR. GR.) IN THE NAVAL RESERVE OR FIRST LIEUTENANTS IN THE MARINE CORPS RESERVE PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, ARE ENTITLED, WHEN THEY HAVE ACCEPTED THEIR COMMISSIONS, TO PAY AND ALLOWANCES IN THE ADVANCED GRADES OF LIEUTENANT ( JR. GR.) OR FIRST LIEUTENANT, FROM THE DATES STATED IN THEIR COMMISSIONS ALTHOUGH PRIOR TO THE ACTUAL DATES OF ACCEPTANCE AND OATH OF OFFICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF THE NAVY, OCTOBER 16, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 19, 1939, AS FOLLOWS:

SECTIONS 2 AND 3 OF THE NAVAL AVIATION RESERVE ACT OF 1939, APPROVED JUNE 13, 1939 ( PUBLIC NO. 129 - 76TH CONGRESS), PROVIDE:

"SEC. 2. AVIATION CADETS MAY, IF QUALIFIED AFTER COMPLETION OF TRAINING, BE COMMISSIONED ENSIGNS IN THE NAVAL RESERVE OR SECOND LIEUTENANTS IN THE MARINE CORPS RESERVE.

"SEC. 3. ENSIGNS OR SECOND LIEUTENANTS COMMISSIONED PURSUANT TO THIS ACT MAY, AFTER THREE YEARS OF SERVICE AS SUCH AND IF FOUND QUALIFIED AFTER SUCH EXAMINATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, BE COMMISSIONED LIEUTENANTS (JUNIOR GRADE) IN THE NAVAL RESERVE OR FIRST LIEUTENANTS IN THE MARINE CORPS RESERVE, RESPECTIVELY: PROVIDED, THAT THE ACTIVE DUTY OF AVIATION CADETS SUBSEQUENT TO COMPLETION OF THEIR ACTIVE DUTY WHILE UNDERGOING TRAINING SHALL BE COUNTED AS SUCH SERVICE FOR THE PURPOSES OF PROMOTIONS AUTHORIZED BY THIS SECTION.'

ALL OFFICERS, EX-AVIATION CADETS, WHO ARE SERVING ON CONTINUOUS ACTIVE DUTY PURSUANT TO THE PROVISIONS OF THE NAVAL AVIATION RESERVE ACT OF 1939, BELONG TO THE RECENTLY ESTABLISHED CLASS A-V (N) OF THE NAVAL RESERVE. THE NAVY DEPARTMENT IS IN DOUBT AS TO THE CORRECT DATE FROM WHICH ENSIGNS A-V (N), U.S. NAVAL RESERVE, SERVING ON ACTIVE DUTY IN THE NAVY, MAY BE CREDITED WITH THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE GRADE OF LIEUTENANT (JUNIOR GRADE) WHEN PROMOTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3, SUPRA, OF THE NAVAL AVIATION RESERVE ACT OF 1939.

AN EXAMINATION OF THE HEARINGS AND REPORTS ON THE BILL H.R. 5765, WHICH AFTERWARDS BECAME THE NAVAL AVIATION RESERVE ACT OF 1939, INDICATES THAT IT WAS INTENDED UNDER THE PROVISIONS OF SECTION 3, SUPRA, TO ALLOW PAY AND ALLOWANCES OF THE RANK OF LIEUTENANT (JUNIOR GRADE), U.S. NAVAL RESERVE, FROM THE DATES OF RANK STATED IN THEIR COMMISSIONS RATHER THAN FROM THE DATES OF ACCEPTANCE AND EXECUTION OF OATH OF OFFICE UNDER THEIR COMMISSIONS AS LIEUTENANTS (JUNIOR GRADE).

IN THE TESTIMONY OF THE THEN CHIEF OF THE BUREAU OF NAVIGATION ON THE BILL H.R. 5765, IT IS STATED:

"IT ( H.R. 5765) PROVIDES FOR THE ADVANCE OF THESE OFFICERS FROM ENSIGN TO LIEUTENANT (JG) AFTER THREE YEARS' ACTIVE SERVICE, AND CORRESPONDS THEREIN TO THE PROMOTION OF THE LINE OFFICER FROM THE RANK OF ENSIGN TO THE RANK OF LIEUTENANT (JG) AFTER THREE YEARS' SERVICE FROM DUATION.' HOUSE NAVAL AFFAIRS COMMITTEE HEARINGS, NO. 113, P. 981, PAR. 6.)

THIS SAME STATEMENT IS CONTAINED IN PARAGRAPH 7, PAGE 2, OF THE HOUSE NAVAL AFFAIRS COMMITTEE REPORT NO. 464, ON THE BILL H.R. 5765. THE CHIEF OF THE BUREAU OF AERONAUTICS MADE SUBSTANTIALLY THE SAME REMARKS IN THE HEARINGS BEFORE THE NAVAL AFFAIRS COMMITTEE (BOTTOM OF PAGE 4 AND TOP OF PAGE 5, SENATE NAVAL AFFAIRS COMMITTEE HEARINGS ON THE BILL H.R. 5765, DATED MAY 4, 1939), WHICH STATEMENT WAS REITERATED IN THE REPORT OF THE SENATE NAVAL AFFAIRS COMMITTEE (PAR. 5, P. 2, OF SENATE NAVAL AFFAIRS COMMITTEE REPORT, NO. 391, ON H.R. 5765).

AN ENSIGN OF THE REGULAR NAVY IS ELIGIBLE FOR PROMOTION TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) UPON QUALIFICATION THEREFOR AFTER THREE YEARS' SERVICE (34 U.S. CODE, 314). HE IS ALLOWED THE PAY AND ALLOWANCES OF THE GRADE TO WHICH SO PROMOTED FROM THE DATE STATED IN HIS COMMISSION (34 U.S. CODE, 870), RATHER THAN FROM THE DATE OF ACCEPTANCE AND EXECUTION OF OATH OF OFFICE. THE ASSIMILATION OF THE STATUS OF OFFICERS OF CLASS A-V (N) TO THAT OF OFFICERS OF THE REGULAR NAVY IS FURTHER EMPHASIZED BY THE FOLLOWING FACTS:

(A) THE AVIATION RESERVE PROGRAM, AS CONTEMPLATED BY THE NAVAL AVIATION RESERVE ACT OF 1939, IS TO PROVIDE ADDITIONAL PILOTS FOR SERVICE IN THE FLEET, ALTHOUGH THE ULTIMATE EFFECT WILL BE TO PROVIDE ADDITIONAL RESERVE PILOTS FOR ASSIGNMENT TO NAVAL RESERVE AVIATION SQUADRONS UPON THE RETURN OF OFFICERS OF THIS CLASS TO INACTIVE DUTY.

(B) THE PAY AND ALLOWANCES OF SUCH OFFICERS COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 IS PAID FROM APPROPRIATIONS FOR " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL"RATHER THAN FROM THE NAVAL RESERVE APPROPRIATION.

(C) CONDITIONS SIMILAR IN ALL RESPECTS TO SERVICE IN THE NAVY GOVERN THE OFFICERS OF CLASS A-V (N) ON ACTIVE DUTY. IN ADDITION TO ADMINISTRATIVE DELAYS IN ISSUING AUTHORITY FOR EXAMINATIONS AND MARKING EXAMINATION PAPERS IN ADVANCE OF THE DATES ON WHICH THEY BECOME DUE FOR PROMOTION, THE EXIGENCIES OF THE SERVICE, SUCH AS FLEET PROBLEMS AND OTHER DUTIES OCCUPYING THE FULL TIME OF ALL PERSONNEL, MANY TIMES WILL PREVENT ASSEMBLING SUPERVISORY BOARDS TO CONDUCT THEIR EXAMINATIONS OR THE PRESENCE OF THE CANDIDATE BEFORE SUCH SUPERVISORY BOARD.

THE NAVY DEPARTMENT IS STRONGLY OF THE OPINION THAT SUCH OFFICERS IN ACTIVE SERVICE ARE ENTITLED TO THE SAME PRIVILEGES IN REGARD TO DATE OF COMMENCEMENT OF INCREASED PAY ON PROMOTION AS OFFICERS OF THE REGULAR SERVICE, IN VIEW OF THE FACT THAT THEY ARE SUBJECT TO THE SAME SERVICE CONDITIONS AS OFFICERS OF THE REGULAR NAVY. THIS IS NOT DEEMED TO BE INCONSISTENT WITH THE NAVAL AVIATION RESERVE ACT OF 1939 OR WITH THE PROVISIONS OF SECTION 312, TITLE III, OF THE NAVAL RESERVE ACT OF 1938, WHICH PROVIDES IN PART:

" * * * PROVIDED FURTHER, THAT ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK UNDER THE PROVISIONS OF THIS TITLE SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES OF RANK STATED IN THEIR COMMISSIONS: * * *.'

THE CASES OF THE BELOW-NAMED ENSIGNS ARE CITED. THEY WERE AMONG THE FIRST GROUP OR CLASS OF AVIATION CADETS APPOINTED JULY 3, 1935, UNDER THE NAVAL RESERVE AVIATION CADET ACT OF 1935. THEY HAVE BEEN APPOINTED AS ENSIGNS, CLASS A-V (N), U.S. NAVAL RESERVE, TO RANK FROM SEPTEMBER 1, 1936. THEY THEREFORE BECOME DUE FOR PROMOTION TO LIEUTENANT (JUNIOR GRADE) AS OF SEPTEMBER 1, 1939, THE DATE ON WHICH THEY COMPLETE THREE YEARS' ACTIVE SERVICE, COUNTED FROM THE DATE THEY COMPLETED ACTIVE DUTY UNDERGOING TRAINING AT THE NAVAL AIR STATION, PENSACOLA, FLA., AND WERE ASSIGNED TO ACTIVE DUTY IN THE NAVY. ALL OF THESE ENSIGNS HAVE REQUESTED FURTHER ACTIVE DUTY AND WILL BE SO ORDERED TO CONTINUE ON ACTIVE DUTY UNDER THE PROVISIONS OF SECTION 3 OF THE NAVAL AVIATION RESERVE ACT OF 1939, AT LEAST DURING THE REMAINDER OF THE CURRENT FISCAL YEAR. THE ENSIGNS IN QUESTION ARE AS FOLLOWS:

ENSIGN PAUL P. BARRICK, A-V (N), NAVAL RESERVE AVIATION BASE,

CHICAGO, ILL.

ENSIGN VINCENT F. CASEY, A-V (N), FIGHTING SQUADRON 4, U.S.S.

RANGER.

ENSIGN JOHN R. HOYT, A-V (N), NAVAL RESERVE AVIATION BASE, LONG

BEACH, CALIF.

ENSIGN KEITH F. SCHADER, A-V (N), NAVAL AIR STATION, PENSACOLA,

FLA.

ENSIGN JOSEPH R. VENSEL, A-V (N), NAVAL RESERVE AVIATION BASE,

ANACOSTIA, D.C.

ENSIGN ELLIOTT M. WEST, A-V (N), NAVAL RESERVE AVIATION BASE,

MIAMI, FLA.

IT IS NOT POSSIBLE IN THESE CASES TO CONDUCT THE EXAMINATIONS, MARK PAPERS, ISSUE COMMISSIONS, ETC., SO THAT ALL OFFICERS WHO QUALIFY FOR PROMOTION WILL EXECUTE THEIR ACCEPTANCE AND OATH OF OFFICE ON THE SAME DATE IN ORDER THEIR INCREASED PAY WILL START ON THE SAME DATE. IT IS ALSO QUITE PROBABLE THAT SOME ENSIGNS A-V (N) MIGHT BE RELEASED FROM ACTIVE DUTY WITHOUT HAVING RECEIVED COMMISSIONS AS LIEUTENANT (JUNIOR GRADE) FOR WHICH DUE AND QUALIFIED, AND CONSEQUENTLY WOULD NOT GET THE INCREASED PAY PROVIDED BY THE NAVAL AVIATION RESERVE ACT OF 1939. THE NUMBER OF OFFICERS AFFECTED WILL INCREASE AS LATER CLASSES BECOME DUE FOR PROMOTION. THERE ALSO IS MUCH WIDER DISTRIBUTION OF ASSIGNMENTS IN THE AVIATION SQUADRONS OF THE FLEET THAN IS INDICATED BY THE ABOVE CITED CASES.

THERE IS ENCLOSED FOR YOUR FURTHER INFORMATION A COPY OF THE INSTRUCTIONS WHICH WERE ISSUED TO THE SERVICE BY THE BUREAU OF NAVIGATION IN LETTER OF JUNE 21, 1939, RELATIVE TO THE EFFECTS OF THE NAVAL AVIATION RESERVE ACT OF 1939 ON INDIVIDUALS SERVING IN THE GRADE OF AVIATION CADET AND AS TO THE ADMINISTRATIVE PROCEDURE INVOLVED UNDER SAID ACT.

YOUR DECISION IS REQUESTED AS TO THE DATE FROM WHICH ENSIGNS A-V (N), U.S. NAVAL RESERVE, SERVING ON ACTIVE DUTY IN THE NAVY, ARE AUTHORIZED TO BE CREDITED WITH THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE GRADE OF LIEUTENANT (JUNIOR GRADE) WHEN PROMOTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE NAVAL AVIATION RESERVE ACT OF 1939.

IT WAS HELD IN DECISION OF MAY 27, 1939, B-3565, 18 COMP. GEN. 890, THAT THE PROVISION QUOTED IN YOUR LETTER FROM SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1184, WAS APPLICABLE ONLY IN TIME OF WAR OR NATIONAL EMERGENCY. THE PROVISION APPEARS TO HAVE NO APPLICATION TO THE QUESTION HERE PRESENTED, AS THE ACT OF APRIL 15, 1935, 49 STAT. 156,"TO PROVIDE FOR AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE," AND THE ACT OF JUNE 13, 1939, PUBLIC, NO. 129, 53 STAT. 819,"TO AUTHORIZE COMMISSIONING AVIATION CADETS IN THE NAVAL AND MARINE CORPS RESERVES UPON COMPLETION OF TRAINING" ARE SPECIAL PROVISIONS FOR A LIMITED CLASS OF PERSONNEL DESIGNED TO INCREASE THE AVAILABLE FLYING PERSONNEL FOR DUTY WITH THE NAVY AND THE MARINE CORPS.

BY THE ACT OF 1935, PROVISION WAS MADE FOR A CONTINUOUS PERIOD OF ACTIVE DUTY FOR 4 YEARS, UNLESS SOONER RELEASED, AND PAY WAS PROVIDED FOR AVIATION CADETS UNDERGOING TRAINING AND A HIGHER RATE OF PAY FOR AVIATION CADETS NOT UNDERGOING TRAINING, BOTH PERIODS BEING INCLUDED IN THE 4 YEARS OF CONTINUOUS ACTIVE DUTY, AND AFTER THE COMPLETION OF THEIR PERIODS OF ACTIVE DUTY AVIATION CADETS, IF QUALIFIED, WERE ELIGIBLE FOR COMMISSIONS IN THE NAVAL RESERVE OR THE MARINE CORPS RESERVE "WITH DATE OF PRECEDENCE AS OF DATE OF APPOINTMENT AS AVIATION CADET" (SEC. 1). THE 1939 ACT ELIMINATED THE SOMEWHAT CUMBERSOME AND POSSIBLY MISLEADING DESCRIPTIVE TITLE OF "AVIATION CADETS NOT UNDERGOING TRAINING" AND PROVIDED BY SECTION 2 FOR COMMISSIONING OF QUALIFIED AVIATION CADETS, AFTER COMPLETION OF TRAINING, AS ENSIGNS IN THE NAVAL RESERVE OR SECOND LIEUTENANTS IN THE MARINE CORPS RESERVE. SECTION 5 INCREASED THE PERMISSIVE PERIOD OF EMPLOYMENT ON ACTIVE DUTY AS FOLLOWS:

OFFICERS COMMISSIONED PURSUANT TO THIS ACT MAY BE EMPLOYED ON ACTIVE DUTY IN TIME OF PEACE ONLY DURING THE SEVEN-YEAR PERIOD NEXT FOLLOWING THE COMPLETION OF THEIR DUTY AS AVIATION CADETS UNDERGOING TRAINING, * * * (WITH AN EXCEPTION NOT HERE MATERIAL).

SECTION 3 OF THE 1939 ACT AUTHORIZES PROMOTION FROM THE GRADE OF ENSIGN OR SECOND LIEUTENANT AFTER 3 YEARS' SERVICE AS SUCH, IF FOUND QUALIFIED, TO THE GRADE OF LIEUTENANT ( JR. GR.), NAVAL RESERVE, OR FIRST LIEUTENANT, MARINE CORPS RESERVE, AND THE PROVISO TO THE SECTION SPECIFICALLY AUTHORIZES THE COUNTING OF SERVICE (BOTH FOR THE PURPOSE OF COMMISSION AND FOR PROMOTION) SUBSEQUENT TO THE COMPLETION OF ACTIVE DUTY WHILE UNDERGOING TRAINING. SECTION 10 OF THE ACT PROVIDES THAT NO PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THE ACT PRIOR TO ITS ENACTMENT, AND SECTION 1 PROVIDES THAT IT SHALL TAKE EFFECT JULY 1, 1939.

THERE IS EVIDENT HERE A PURPOSE TO FIX THE PAY OF AVIATION CADETS AND MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE COMMISSIONED FROM SUCH A STATUS AND ON CONTINUOUS ACTIVE DUTY: (1) DURING THE PERIOD OF TRAINING AS PROVIDED IN THE ACT OF 1935, (2) AFTER COMPLETION OF TRAINING AND DURING THE FIRST 3 YEARS OF SERVICE AS ENSIGNS, AND (3) IF FOUND QUALIFIED AND PROMOTED TO THE GRADES OF LIEUTENANT ( JR. GR.), NAVAL RESERVE, OR FIRST LIEUTENANT, MARINE CORPS RESERVE, DURING THE 4 YEARS FOLLOWING AS THE PAY AND ALLOWANCES OF THE LAST CITED GRADES. WHILE THE PROMOTION IS TO AN OFFICE IN THE NAVAL RESERVE OR MARINE CORPS RESERVE AND MUST BE ACCEPTED TO BECOME EFFECTIVE, IT IS ALSO INTENDED AS A MEANS OF PROVIDING THE PAY CONTEMPLATED TO BE PAID TO PERSONS COMMISSIONED FROM A STATUS OF AVIATION CADETS OF THE NAVAL RESERVE. ACCORDINGLY, WHEN THE OFFICER HAS ACCEPTED THE COMMISSION, PAY AND ALLOWANCES IN THE ADVANCED GRADE OF LIEUTENANT ( JR. GR.), NAVAL RESERVE, OR FIRST LIEUTENANT, MARINE CORPS RESERVE, ARE PAYABLE FROM THE DATE STATED IN THE COMMISSIONS, IF THE DATE STATED IS THE CORRECT DATE, ALTHOUGH PRIOR TO THE ACTUAL DATE OF ACCEPTANCE AND OATH OF OFFICE.