B-70902, MARCH 1, 1948, 27 COMP. GEN. 483

B-70902: Mar 1, 1948

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OR AS LIEUTENANTS (JUNIOR GRADE) UNDER SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947 ARE NOT COMMISSIONED OFFICERS OF THE MEDICAL CORPS OF THE REGULAR NAVY WITHIN THE CONTEMPLATION OF SECTION A (B) OF THE LATTER ACT FOR SUCH COMMISSIONED OFFICERS. REQUESTING DECISION ON THE FOLLOWING QUESTIONS PRESENTED THEREIN: (A) ARE ACTING ASSISTANT SURGEONS APPOINTED FOR TEMPORARY SERVICE UNDER THE ACT OF AUGUST 8. (B) ARE LIEUTENANTS (JUNIOR GRADE) APPOINTED FOR TEMPORARY SERVICE UNDER SECTION 424 OF THE ACT APPROVED AUGUST 7. SHALL BE INTERPRETED TO MEAN ONLY (1) THOSE COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY AND COMMISSIONED MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION.

B-70902, MARCH 1, 1948, 27 COMP. GEN. 483

PAY - ADDITIONAL - NAVY MEDICAL OFFICERS APPOINTED FOR TEMPORARY SERVICE PERSONS APPOINTED FOR TEMPORARY SERVICE IN THE NAVY MEDICAL CORPS AS ACTING ASSISTANT SURGEONS UNDER THE ACT OF AUGUST 8, 1946, OR AS LIEUTENANTS (JUNIOR GRADE) UNDER SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947 ARE NOT COMMISSIONED OFFICERS OF THE MEDICAL CORPS OF THE REGULAR NAVY WITHIN THE CONTEMPLATION OF SECTION A (B) OF THE LATTER ACT FOR SUCH COMMISSIONED OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 1, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 4, 1947, TRANSMITTING A LETTER FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED AUGUST 10, 1947, WITH ACCOMPANYING ENDORSEMENTS THEREON, AND REQUESTING DECISION ON THE FOLLOWING QUESTIONS PRESENTED THEREIN:

(A) ARE ACTING ASSISTANT SURGEONS APPOINTED FOR TEMPORARY SERVICE UNDER THE ACT OF AUGUST 8, 1946 (60 STAT. 932), AND NOW PERFORMING TEMPORARY SERVICE, ENTITLED TO ADDITIONAL PAY AT THE RATE OF $100 PER MONTH AS PROVIDED BY SECTION A (B) OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AS AMENDED?

(B) ARE LIEUTENANTS (JUNIOR GRADE) APPOINTED FOR TEMPORARY SERVICE UNDER SECTION 424 OF THE ACT APPROVED AUGUST 7, 1947 ( PUBLIC LAW 381- - 80TH CONGRESS), ENTITLED TO ADDITIONAL PAY AT THE RATE OF $100 PER MONTH AS PROVIDED BY SECTION A (B) OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AS AMENDED?

SECTION A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ARMY-NAVY-PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, PUBLIC LAW 365, APPROVED AUGUST 5, 1947, 61 STAT. 776, PROVIDES AS FOLLOWS:

SEC. A. (A) THE TERM "COMMISSIONED OFFICERS," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN ONLY (1) THOSE COMMISSIONED OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY AND COMMISSIONED MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION; (2) THOSE OFFICERS WHO ARE HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY AND NAVY OR AS MEDICAL AND DENTAL OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION; (3) SUCH OFFICERS, NOW OR HEREAFTER COMMISSIONED IN THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE CORPS, THE NAVAL RESERVE, THE NATIONAL GUARD, THE ARMY OF THE UNITED STATES, OR AS MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WHO MAY, DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER; (4) GENERAL OFFICERS APPOINTED FROM THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, OR THE ARMY OF THE UNITED STATES WHO ARE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS SECTION; (5) GENERAL OFFICERS WHO MAY HEREAFTER BE APPOINTED FROM THOSE OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE REGULAR ARMY, THE OFFICERS' RESERVE CORPS, THE NATIONAL GUARD, OR THE ARMY OF THE UNITED STATES WHO ARE INCLUDED IN (1), (2), OR (3) ABOVE.

(B) IN ADDITION TO ANY PAY, ALLOWANCES, OR EMOLUMENTS THAT THEY ARE OTHERWISE ENTITLED TO RECEIVE, COMMISSIONED OFFICERS AS DEFINED IN SUBSECTION (A) OF THIS SECTION SHALL BE ENTITLED TO PAY AT THE RATE OF $100 PER MONTH FOR EACH MONTH OF ACTIVE SERVICE FOLLOWING THE DATE OF ENACTMENT OF THIS SECTION: PROVIDED, THAT SUCH SUM SHALL NOT BE INCLUDED IN COMPUTING THE AMOUNT OF INCREASE IN PAY AUTHORIZED BY ANY OTHER PROVISION OF LAW OR IN COMPUTING RETIRED PAY: PROVIDED FURTHER, THAT THE TOTAL AMOUNT WHICH MAY BE PAID TO ANY ONE OFFICER UNDER THE AUTHORITY CONTAINED IN THIS SECTION SHALL NOT EXCEED $36,000: AND PROVIDED FURTHER, THAT THE COMMISSIONED OFFICERS DESCRIBED IN SUBSECTION (A) (3) OF THIS SECTION SHALL RECEIVE THE PAY PROVIDED BY THIS SUBSECTION ONLY DURING PERIODS OF VOLUNTEER SERVICE.

THE ACT OF AUGUST 8, 1946, 60 STAT. 932, AMENDED THE ACT OF MAY 4, 1898, AS AMENDED, TO READ AS FOLLOWS:

THE PRESIDENT IS HEREBY AUTHORIZED TO APPOINT FOR TEMPORARY SERVICE TWO HUNDRED AND FIFTY ACTING ASSISTANT SURGEONS WHO SHALL HAVE THE RANK AND COMPENSATION OF ASSISTANT SURGEONS: PROVIDED, THAT NOT MORE THAN TWO HUNDRED AND FIFTY OF SUCH ACTING ASSISTANT SURGEONS MAY BE SERVING IN THE NAVAL SERVICE AT ANY ONE TIME: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY, IN TIME OF WAR OR DECLARED NATIONAL EMERGENCY, MAY APPOINT, FOR TEMPORARY SERVICE WITH THE COMPENSATION OF ASSISTANT SURGEONS, SUCH ACTING ASSISTANT SURGEONS AS THE EXIGENCIES OF THE SERVICE MAY REQUIRE.

IN ITS REPORT OF JULY 17, 1946, ON THE BILL, S. 2401, WHICH BECAME THE SAID ACT OF AUGUST 8, 1946, THE SENATE COMMITTEE ON NAVAL AFFAIRS MADE THE FOLLOWING EXPLANATORY STATEMENTS:

THE PURPOSE OF THE BILL IS TO INCREASE FROM 100 TO 250 THE NUMBER OF ACTING ASSISTANT SURGEONS WHICH THE PRESIDENT IS AUTHORIZED TO APPOINT FOR TEMPORARY SERVICE WITH THE RANK AND COMPENSATION OF ASSISTANT SURGEONS.

UNDER THE PRESENT LAW CONTAINED IN 34 U.S.C. 21, THE PRESIDENT IS AUTHORIZED TO APPOINT, FOR TEMPORARY SERVICE, 100 ACTING ASSISTANT SURGEONS WITH THE RANK AND COMPENSATION OF ASSISTANT SURGEONS, AND, IN TIME OF WAR OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, THE SECRETARY OF THE NAVY IS AUTHORIZED TO APPOINT, FOR TEMPORARY SERVICE WITH THE SAME COMPENSATION AS THAT RECEIVED BY ASSISTANT SURGEONS, SUCH ACTING ASSISTANT SURGEONS AS THE EXIGENCIES OF THE SERVICE MAY REQUIRE. APPLICANTS APPOINTED UNDER THIS LAW ARE GRADUATES OF SCHOOLS OF MEDICINE AND ARE ASSIGNED TO NAVAL HOSPITALS FOR THE YEAR OF INTERNSHIP REQUIRED FOR A DEGREE IN MEDICINE. AFTER THIS YEAR OF SERVICE, THE APPOINTEE IS ELIGIBLE TO TAKE AN EXAMINATION TO DETERMINE HIS QUALIFICATIONS FOR APPOINTMENT AS AN ASSISTANT SURGEON IN THE NAVY. THE TEMPORARY APPOINTMENTS OF THOSE WHO FAIL TO QUALIFY EXPIRE 18 MONTHS FROM THE DATE OF THE APPOINTMENT.

SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947, PUBLIC LAW 381, APPROVED AUGUST 7, 1947, 61 STAT. 879, FURTHER AMENDED THE ACT OF MAY 4, 1898, AS AMENDED BY THE SAID ACT OF AUGUST 8, 1946, TO READ AS FOLLOWS:

IN ADDITION TO THE NUMBER OF OFFICERS OF THE MEDICAL CORPS OF THE NAVY AUTHORIZED BY OTHER PROVISIONS OF LAW THE PRESIDENT MAY APPOINT, WITHOUT THE ADVICE AND CONSENT OF THE SENATE, FOR TEMPORARY SERVICE IN SUCH CORPS, LIEUTENANTS (JUNIOR GRADE) WHO SHALL WHILE SO SERVING RECEIVE THE PAY AND ALLOWANCES NOW OR HEREAFTER PRESCRIBED BY LAW FOR THAT GRADE. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, PERSONS APPOINTED PURSUANT TO THE AUTHORITY CONTAINED IN THIS ACT SHALL NOT BE PLACED ON THE LINEAL LIST OF THE MEDICAL CORPS, SHALL NOT BE ASSIGNED RUNNING MATES, AND SHALL NOT BE ELIGIBLE FOR PROMOTION WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENTS. THE NUMBER OF PERSONS WHO MAY BE SO SERVING AT ANY ONE TIME PURSUANT TO THIS ACT SHALL NOT EXCEED TWO HUNDRED AND FIFTY: PROVIDED, THAT IN TIME OF WAR OF (SIC) DECLARED NATIONAL EMERGENCY THE NUMBER OF PERSONS WHO MAY BE SO TEMPORARILY APPOINTED AND WHO MAY SO SERVE MAY BE INCREASED TO THE EXTENT DETERMINED BY THE PRESIDENT AS NECESSARY TO MEET THE EXIGENCIES OF THE NAVAL SERVICE.

THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY MADE THE FOLLOWING COMMENTS ON THE MATTER UNDER DATE OF AUGUST 22, 1947:

2. APPOINTMENT FOR TEMPORARY SERVICE OF LIEUTENANTS (JUNIOR GRADE) PURSUANT TO SECTION 424 OF PUBLIC LAW 381, 80TH CONGRESS, APPROVED AUGUST 7, 1947, IS CONSIDERED BY THIS BUREAU TO BE A CONTINUATION OF A NAVY DEPARTMENT POLICY FOR MANY YEARS TO GENERALLY APPOINT AND ASSIGN GRADUATES OF SCHOOLS OF MEDICINE TO NAVAL HOSPITALS FOR THE YEAR OF INTERNSHIP REQUIRED FOR A DEGREE IN MEDICINE. AFTER THIS YEAR OF SERVICE SUCH AN APPOINTEE WAS ELIGIBLE TO TAKE AN EXAMINATION FOR APPOINTMENT AS AN ASSISTANT SURGEON IN THE MEDICAL CORPS OF THE REGULAR NAVY. APPOINTMENTS OF THOSE WHO FAILED TO QUALIFY WOULD TERMINATE. THIS POLICY WAS PLANNED IN THE POST WAR NAVY.

3. PRIOR TO ENACTMENT OF PUBLIC LAW 381, 80TH CONGRESS, WHICH PROVIDED FOR APPOINTMENTS FOR TEMPORARY SERVICE IN THE MEDICAL CORPS OF LIEUTENANTS (JUNIOR GRADE), SUCH APPOINTEES WERE CALLED ACTING ASSISTANT SURGEONS WHO SERVED UNDER AN APPOINTMENT RATHER THAN WITH A COMMISSION AND APPEAR TO HAVE BEEN NOT CONSIDERED AS COMMISSIONED OFFICERS OF THE NAVY WITHIN LAWS RELATIVE TO COMMISSIONED OFFICERS SUCH AS THOSE AUTHORIZING RETIREMENT FOR PHYSICAL DISABILITY INCIDENT TO SERVICE, AT CETERA.

4. ATTENTION IS INVITED TO THE FACT THAT EVEN UNDER THE MOST RECENT ENACTMENT, PUBLIC LAW 381, 80TH CONGRESS, APPOINTEES WILL SERVE, WITH CERTAIN RESTRICTIONS, I.E. SUCH PERSONS SHALL NOT BE PLACED ON THE LINEAL LIST OF THE MEDICAL CORPS, SHALL NOT BE ASSIGNED RUNNING MATES AND SHALL NOT BE ELIGIBLE FOR PROMOTION WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENT.

THE ONLY CATEGORIES OF OFFICERS REFERRED TO IN SECTION A OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WHICH COULD INCLUDE ACTING ASSISTANT SURGEONS APPOINTED FOR TEMPORARY SERVICE UNDER THE SAID ACT OF AUGUST 8, 1946, OR SIMILAR APPOINTEES UNDER SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947, WOULD BE COMMISSIONED OFFICERS OF THE MEDICAL CORPS OF THE REGULAR NAVY WHO WERE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THAT SECTION OR THOSE OFFICERS WHO WERE THEREAFTER COMMISSIONED IN THE MEDICAL CORPS OF THE REGULAR NAVY DURING THE FIVE-YEAR PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THAT SECTION. IT LONG HAS BEEN RECOGNIZED, HOWEVER, THAT ACTING ASSISTANT SURGEONS APPOINTED IN THE NAVY FOR TEMPORARY SERVICE ARE NOT COMMISSIONED OFFICERS IN THE REGULAR NAVY WITHIN THE MEANING OF DIFFERENT STATUTES EVEN THOUGH THEY MAY BE SERVING UNDER SOME FORM OF COMMISSION ( TAYLOR V. UNITED STATES, 38 C.1CLS. 155; NELSON V. UNITED STATES, 41 C.1CLS. 157, CF. PLUMMER V. UNITED STATES, 224 U.S. 137) AND IT DOES NOT APPEAR THAT THEIR STATUS IN THAT RESPECT WAS INTENDED TO BE CHANGED BY THE AMENDMENTS CONTAINED IN THE ACT OF AUGUST 8, 1946, AND SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947.

AT THE HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES COMMITTEE ON NAVAL AFFAIRS ON H.R. 6992, WHICH WAS IDENTICAL TO THE SAID S. 2401, THE BILL WHICH BECAME THE ACT OF AUGUST 8, 1946, IT WAS STATED (PAGE 2 OF THE REPORT OF THE HEARINGS, NO. 273):

MR. DREWRY. THE MAIN PURPOSE OF THIS PROPOSED LEGISLATION IS TO INCREASE THE OPPORTUNITY OF THE NAVY TO GET SURGEONS WHO WILL BE QUALIFIED LATER TO GO INTO THE REGULAR NAVAL SERVICE? IS THAT THE IDEA?

ADMIRAL AGNEW. YES, SIR.

MR. DREWRY. AND THE APPOINTMENT IS ONLY FOR A YEAR?

ADMIRAL AGNEW. YES, SIR.

MR. DREWRY. AND CAN BE REVOKED AT ANY TIME AFTER APPOINTMENT?

ADMIRAL AGNEW. YES, SIR.

MR. DREWRY. IT MAY BE MORE THAN A YEAR?

ADMIRAL AGNEW. NO, SIR. AT THE END OF THE YEAR THEY ARE EITHER QUALIFIED FOR APPOINTMENT IN THE REGULAR NAVY OR THEY ARE RELEASED TO CIVIL LIFE. ( ITALICS SUPPLIED.)

ALSO, AS POINTED OUT BY THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY, SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947, ENACTED IN LIEU OF THE PROVISIONS IN THE ACT OF AUGUST 8, 1946, BUT FOR THE SAME GENERAL PURPOSE, SPECIFICALLY PROVIDES THAT THE OFFICERS APPOINTED IN THE MEDICAL CORPS FOR TEMPORARY SERVICE PURSUANT TO ITS PROVISIONS SHALL NOT BE PLACED ON THE LINEAL LIST OF THE MEDICAL CORPS, THAT THEY SHALL NOT BE ASSIGNED RUNNING MATES, AND THAT THEY SHALL NOT BE ELIGIBLE FOR PROMOTION WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENTS. IN VIEW OF THESE MATTERS, I DO NOT BELIEVE THE CONCLUSION IS WARRANTED THAT PERSONS TEMPORARILY APPOINTED UNDER EITHER ACT FOR SUCH INTERNSHIPS WERE INTENDED TO BE CONSIDERED COMMISSIONED OFFICERS OF THE MEDICAL CORPS OF THE REGULAR NAVY WITHIN THE CONTEMPLATION OF THE SAID ACT OF AUGUST 5, 1957, GRANTING THE $100 A MONTH INCREASE IN PAY.

IN CONNECTION WITH THE QUESTIONS PRESENTED THERE HAS NOT BEEN OVERLOOKED THE FACT THAT THE ACT OF AUGUST 8, 1946, PROVIDES THAT ACTING ASSISTANT SURGEONS APPOINTED PURSUANT THERETO ARE TO HAVE THE COMPENSATION OF ASSISTANT SURGEONS. HOWEVER, THE PAYMENT OF THE ADDITIONAL $100 A MONTH PROVIDED FOR BY SECTION A OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IS EXPRESSLY RESTRICTED TO THE PARTICULAR COMMISSIONED OFFICERS DEFINED THEREIN. THAT ACT WAS DESIGNED TO GRANT THE ADDITIONAL $100 A MONTH TO THOSE OFFICERS FOR A PARTICULAR PURPOSE AND THERE APPEARS NO BASIS FOR A CONCLUSION THAT IT COULD APPLY TO OTHER OFFICERS BY ASSIMILATION. SECTION 424 OF THE OFFICER PERSONNEL ACT OF 1947, OF COURSE, MERELY GRANTS THE OFFICERS APPOINTED THEREUNDER THE PAY AND ALLOWANCES OF LIEUTENANTS (JUNIOR GRADE) GENERALLY AND COULD NOT, UNDER ANY CIRCUMSTANCES, BE CONSIDERED AS OPERATING TO GRANT SUCH OFFICERS THE ADDITIONAL $100 A MONTH.

FOR THE REASONS STATED ABOVE, BOTH QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE.