B-68785, OCTOBER 17, 1949, 29 COMP. GEN. 188

B-68785, OCTOBER 17, 1949, 29 COMP. GEN. 188

PAY - PROMOTIONS - EFFECTIVE DATE - FORMAL ANNOUNCEMENT REQUIREMENT IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 14, 1942, FIXING THE DATE FOR COMMENCEMENT OF HIGHER PAY BECAUSE OF THE PROMOTION OF ARMY OFFICERS AS THE DATE OF THE ORDER ANNOUNCING THE PROMOTION, AN ARMY OFFICER WHO, UNDER SECTION 3 OF THE ACT OF JULY 31, 1935, AS AMENDED, WAS ENTITLED TO BE IMMEDIATELY PROMOTED FROM CAPTAIN TO MAJOR BY REASON OF HAVING COMPLETED 17 YEARS' SERVICE, BUT WHOSE PROMOTION WAS NOT ACCOMPLISHED AND FORMALLY ANNOUNCED UNTIL SOMETIME LATER, IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR UNTIL THE DATE THE PROMOTION WAS ANNOUNCED BY FORMAL ORDER.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. C. B. LENOW, DEPARTMENT OF THE ARMY, OCTOBER 17, 1949:

REFERENCE IS MADE TO A LETTER DATED AUGUST 11, 1947, FROM COLONEL CARL WITCHER, F.D., U.S. ARMY, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF MAJOR ABRAM L. WHIPPLE, JR., IN THE AMOUNT OF $342.73, REPRESENTING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE PROVIDED FOR A CAPTAIN WITH OVER THREE YEARS' SERVICE AND THOSE PROVIDED FOR A MAJOR WITH OVER THREE YEARS' SERVICE FOR THE PERIOD MARCH 19 TO JULY 21, 1947.

IT APPEARS THAT BY PARAGRAPH 58, SPECIAL ORDERS NO. 28, WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), WASHINGTON, D.C., DATED FEBRUARY 10, 1947, ANNOUNCEMENT WAS MADE, BY DIRECTION OF THE PRESIDENT, OF THE APPOINTMENT OF ABRAM L. WHIPPLE, JR., AS A CAPTAIN IN THE JUDGE ADVOCATE GENERAL'S DEPARTMENT, REGULAR ARMY, EFFECTIVE THAT DATE. WHILE IT IS NOT EXPRESSLY SO STATED, IT IS ASSUMED THAT THIS APPOINTMENT WAS MADE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 663. BY PARAGRAPH 13, SPECIAL ORDERS NO. 143, WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), DATED JULY 22, 1947, ANNOUNCEMENT WAS MADE OF THE PROMOTION IN THE REGULAR ARMY OF CAPTAIN ABRAM L. WHIPPLE, JR., TO MAJOR TO RANK FROM MARCH 19, 1947. IT IS STATED IN FIRST ENDORSEMENT FROM THE CHIEF OF FINANCE, DATED AUGUST 12, 1947, TRANSMITTING THE LETTER OF AUGUST 11, 1947, AND ENCLOSURES TO THIS OFFICE, THAT MAJOR WHIPPLE WAS PROMOTED FROM CAPTAIN TO MAJOR UNDER THE PROVISIONS OF SECTION 7 OF THE SAID ACT OF DECEMBER 28, 1945, 59 STAT. 665. HOWEVER, THAT SECTION MERELY PROVIDES FOR THE COUNTING OF CERTAIN SERVICE, OR CONSTRUCTIVE SERVICE, FOR THE PURPOSE OF DETERMINING "ELIGIBILITY FOR" PROMOTION AND DOES NOT CONTAIN ANY AUTHORITY FOR ACTUALLY EFFECTING PROMOTIONS. THEREFORE, IT IS ASSUMED THAT HIS PROMOTION ACTUALLY WAS MADE PURSUANT TO SECTION 3 OF THE ACT OF JULY 31, 1935, AS AMENDED, 10 U.S.C. 552A, WHICH PROVIDES, IN PERTINENT PART, AS OLLOWS:

* * * EXCEPT AS HEREINAFTER PROVIDED PROMOTION-LIST CAPTAINS * * * SHALL BE PROMOTED TO THE * * * GRADE OF MAJOR * * * IMMEDIATELY UPON COMPLETING * * * SEVENTEEN YEARS' * * * CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY * * *. PRESUMABLY, MAJOR WHIPPLE COMPLETED SEVENTEEN YEARS' SERVICE ON MARCH 18, 1947, FOR PROMOTION PURPOSES, COMPUTED UNDER THE PROVISIONS OF SECTION 5 OF THE SAID ACT OF DECEMBER 28, 1945, 59 STAT. 665.

THUS, THE QUESTION PRESENTED FOR DECISION APPEARS TO BE WHETHER OR NOT, IN VIEW OF THE PROVISIONS OF THE SAID AMENDED SECTION 3 OF THE ACT OF JULY 31, 1935, MAJOR WHIPPLE IS ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR FROM AND AFTER MARCH 19, 1947, NOTWITHSTANDING THE FACT THAT HIS PROMOTION WAS NOT FORMALLY ANNOUNCED UNTIL JULY 22, 1947.

WHILE THE RULE APPEARS TO HAVE ORIGINATED IN THE ARMY, AND BEEN ACQUIESCED IN BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS EARLY AS, IF NOT PRIOR TO, OCTOBER 25, 1886 (DECISION OF 2D COMP., MS. VOL. 54, P. 196), OF RECOGNIZING A RIGHT TO PAY OF THE PROMOTED GRADE FROM THE DATE OF VACANCY WHEN THE PROMOTION IN ANY PARTICULAR LINE OR DEPARTMENT WAS MADE IN ORDINARY COURSE BY VIRTUE OF SENIORITY (SEE 15 COMP. DEC. 157, AND CASES THEREIN CITED), THAT CONCLUSION, EVEN THEN, WAS FOUNDED NOT ONLY UPON A LONG-ESTABLISHED CUSTOM AND PRACTICE, BUT ALSO WAS PREDICATED UPON THE ABSENCE OF CONGRESSIONAL ENACTMENT FIXING THE TIME WHEN THE PAY OF THE HIGHER GRADE SHOULD BEGIN TO ACCRUE TO THE PROMOTED OFFICER.

IN THE DECISION OF SEPTEMBER 25, 1908 (15 COMP. DEC. 157, SUPRA), A FORMER COMPTROLLER OF THE TREASURY QUOTED FROM A PRIOR DECISION DATED JANUARY 18, 1899 (8 MS. COMP. DEC. 85), AS FOLLOWS (PP. 159-160):

IF THE QUESTION PRESENTED BY THE AUDITOR WERE A NEW ONE, IN THE ABSENCE OF CONGRESSIONAL ENACTMENT FIXING THE TIME WHEN THE PAY OF THE HIGHER GRADE SHOULD BEGIN TO ACCRUE TO THE PROMOTED OFFICER IN THE ARMY, I SHOULD HESITATE TO HOLD THAT HE SHOULD BE ALLOWED SUCH PAY FROM THE DATE OF THE VACANCY IN THE HIGHER GRADE.

SECTION 1204, REVISED STATUTES, AND SECTION 1, ACT OF APRIL 26, 1898, SEEM ONLY TO PRESCRIBE THE MODE IN WHICH THE VACANCIES IN CERTAIN GRADES IN THE ARMY SHALL BE FILLED, AND IT WOULD SEEM TO BE THE MOST REASONABLE CONSTRUCTION OF THE LAW TO HOLD THAT UNTIL THE OFFICER NEXT IN ORDER OF SUCCESSION HAS BEEN DULY APPOINTED AND HAS ACCEPTED THE APPOINTMENT TO THE OFFICE OF THE HIGHER GRADE HE IS NOT SUCH OFFICER, AND THEREFORE NOT ENTITLED TO PAY AS SUCH; BUT THE LONG-CONTINUED CONSTRUCTION OF THE LAW BY THE ACCOUNTING OFFICERS HAS BEEN THAT SUCH OFFICERS, PROMOTED ACCORDING TO SENIORITY, SHOULD BE ALLOWED THE PAY OF THE HIGHER GRADE FROM THE DATE OF THE VACANCY.

AS TO OFFICERS OF THE STAFF CORPS PROMOTED TO HIGHER RANK BY REASON OF LENGTH OF SERVICE, IT WAS HELD IN DECISION OF DECEMBER 2, 1929, 9 COMP. GEN. 232, THAT THE DATE OF THE ORDER ANNOUNCING A PROMOTION WAS NOT EFFECTIVE TO CONFER SUCH PAY PRIOR TO THE COMPLETION OF THE REQUISITE SERVICE REQUIRED UNDER THE APPLICABLE STATUTE. IN THAT CASE IT IS SHOWN THAT THE OFFICER'S PROMOTION (A MEMBER OF THE DENTAL CORPS) WAS ANNOUNCED ON JULY 17, 1929, TO RANK FROM JULY 13, 1929, AND HAVING COMPLETED TWELVE YEARS' SERVICE ON JULY 20, 1929, IT WAS HELD THEREIN THAT PAY OF THE PROMOTED GRADE FROM JULY 17 TO 20, 1929, WAS NOT AUTHORIZED.

THE PROVISIONS OF LAW NOW FIXING THE DATE FOR COMMENCEMENT OF THE HIGHER PAY BY REASON OF PROMOTION OF OFFICERS OF THE ARMY ARE CONTAINED IN THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, 10 U.S.C. 558, AS FOLLOWS:

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. * * *

THIS STATUTE IS SPECIFIC IN PROVIDING THAT EVERY OFFICER OF THE ARMY SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF THE ORDER ANNOUNCING THE PROMOTION TO A HIGHER GRADE, UNLESS HE IS ENTITLED "UNDER SOME OTHER PROVISION OF LAW" TO RECEIVE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE AND, BEING INCONSISTENT WITH AND CONTRARY TO THE EARLIER PRACTICE WHICH WAS PREDICATED UPON THE NON-EXISTENCE OF A STATUTORY PROVISION FIXING SUCH DATE, IT NECESSARILY HAS THE LEGAL EFFECT OF SUPERSEDING THAT PRACTICE, EXCEPT WHERE SOME OTHER PROVISION OF LAW FIXES A DIFFERENT DATE FOR PAY PURPOSES. WAR DEPARTMENT SPECIAL ORDERS NO. 143, ANNOUNCING THE PROMOTION OF CAPTAIN WHIPPLE TO THE GRADE OF MAJOR, IS DATED JULY 22, 1947, AND IN THE ABSENCE OF ANY STATUTORY PROVISION AUTHORIZING PAY AND ALLOWANCES ABOVE THOSE OF A CAPTAIN PRIOR TO JULY 22, 1947, THE PAYMENT TO HIM IN THE GRADE OF MAJOR PRIOR THERETO WOULD BE CONTRARY TO THE SAID ACT OF OCTOBER 14, 1942. IT FOLLOWS THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED IN THIS OFFICE.