B-78670, NOVEMBER 19, 1948, 28 COMP. GEN. 318

B-78670, NOVEMBER 19, 1948, 28 COMP. GEN. 318

UNIFORM ALLOWANCE - MARINE CORPS ENLISTED PERSONNEL APPOINTED AS TEMPORARY OFFICERS - EFFECT OF SECTION 302 (F) OF THE OFFICER PERSONNEL ACT OF 1947 MARINE CORPS ENLISTED PERSONNEL WHO RECEIVED A $250 UNIFORM ALLOWANCE UPON BEING INITIALLY APPOINTED AS TEMPORARY OFFICERS UNDER THE PROVISIONS OF SECTION 7 (B) OF THE ACT OF JULY 24, 1941, AND WHO, SUBSEQUENT TO REVERSION TO THEIR PERMANENT ENLISTED STATUS, WERE GIVEN TEMPORARY APPOINTMENTS UNDER THE OFFICER PERSONNEL ACT OF 1947 ARE NOT ENTITLED TO A SECOND UNIFORM GRATUITY UNDER SECTION 302 (F) OF THE 1947 ACT, WHICH AUTHORIZES PAYMENT OF A UNIFORM GRATUITY ONLY TO ENLISTED MEN WHO PREVIOUSLY HAVE NOT RECEIVED SUCH A GRATUITY UNDER THE PROVISIONS OF THE 1941 ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 19, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 16, 1948, IN WHICH YOU REQUEST DECISION AS TO WHETHER ENLISTED MEN OF THE MARINE CORPS, WHO RECEIVED A $250 UNIFORM GRATUITY INCIDENT TO APPOINTMENT FOR TEMPORARY SERVICE UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, WILL BE ENTITLED, UPON APPOINTMENT UNDER THE AUTHORITY OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, PUBLIC LAW 381, 80TH CONGRESS, TO PAYMENT OF THE UNIFORM GRATUITY OF $250 AS PROVIDED FOR BY SECTION 302 (F) OF THE LATTER ACT.

YOU ENCLOSE A LETTER DATED JUNE 29, 1948, FROM THE COMMANDANT OF THE MARINE CORPS, IN WHICH IT IS STATED THAT, IN ACCORDANCE WITH INSTRUCTIONS ISSUED ON APRIL 28, 1948, BY HEADQUARTERS, U.S. MARINE CORPS, THE ONLY ENLISTED PERSONNEL WHO WILL BE ELIGIBLE FOR TEMPORARY APPOINTMENTS UNDER SECTION 302 (C) OF THE SAID OFFICER PERSONNEL ACT OF 1947 ARE THOSE WHO PREVIOUSLY HAVE HELD TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AND WHO HAVE BEN PAID THE UNIFORM GRATUITY AUTHORIZED BY SECTION 7 (B) OF SAID ACT.

SECTIONS 1 AND 2 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, PROVIDE:

THAT EXCEPT AS OTHERWISE SPECIFIED HEREIN THE AUTHORITY GRANTED BY THIS ACT SHALL BE EXERCISED ONLY IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT.

SEC. 2. (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK," AS THE CASE MAY BE.

(B) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO RANKS OR GRADE IN THE REGULAR NAVY OR MARINE CORPS, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(0) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND PLATOON OR STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS, INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.

(4)ENLISTED MEN OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ON ACTIVE DUTY IN THE GRADES HEREIN SPECIFIED FOR ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS.

SECTION 7 (B) OF THE ABOVE ACT, 55 STAT. 604, PROVIDES:

(B) ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY SECTION 2 OF THIS ACT, BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY.

SECTION 10 OF THE ABOVE ACT, 55 STAT. 605, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, PROVIDES IN PERTINENT PART:

(A) PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS * * *.

PERTINENT PROVISIONS OF SAID TITLE III OF THE ACT OF AUGUST 7, 1947, SUPRA, 60 STAT. 829, 830, 831, 840, ARE AS FOLLOWS:

SEC. 301. THE AUTHORITY GRANTED BY THIS TITLE AND ALL PROVISIONS HEREOF SHALL BE TERMINATED WHEN THE PRESIDENT SHALL DETERMINE THAT THE NUMBER OF OFFICERS HOLDING PERMANENT APPOINTMENTS ON THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY IS EQUAL TO 95 PERCENTUM OF THE NUMBER OF SUCH OFFICERS AUTHORIZED BY LAW OR ON JANUARY 1, 1957, WHICHEVER SHALL OCCUR THE EARLIER.

SEC. 302. * * *

(C) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO GRADES IN THE REGULAR NAVY OR MARINE CORPS, EXCEPT IN THE NURSE CORPS OF THE REGULAR NAVY, INCLUDING THE GRADES OF WARRANT OFFICER AND COMMISSIONED WARRANT OFFICER, NOT, ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(1) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS.

(F) ENLISTED MEN SHALL, UPON BEING INITIALLY APPOINTED AS PROVIDED BY THIS SECTION, BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY.

(I) NOT LATER THAN THE FIRST DAY OF THE FOURTH MONTH FOLLOWING THE DATE OF APPROVAL OF THIS ACT, ALL TEMPORARY APPOINTMENTS OF NAVAL AND MARINE CORPS PERSONNEL MADE PURSUANT TO THE ACT OF JULY 24, 1941 (55 STAT. 603), AS AMENDED, EXCEPT THOSE WHICH ARE AFFIRMED OR CONTINUED IN EFFECT PURSUANT TO THIS ACT, SHALL BE TERMINATED.

SEC. 304. * * *

(N) NO ADDITIONAL TEMPORARY APPOINTMENTS IN THE NAVAL SERVICE SHALL BE EFFECTED PURSUANT TO THE AUTHORITY OF THE ACT OF JULY 24, 1941 (55 STAT. 603), AS AMENDED, AFTER THE EFFECTIVE DATE OF THIS ACT, BUT NOTHING HEREIN CONTAINED SHALL BE HELD TO IMPAIR THE AUTHORITY TO MAKE TEMPORARY APPOINTMENTS UNDER THAT ACT DURING ANY FUTURE WAR OR NATIONAL EMERGENCY.

THE ACT OF JULY 24, 1941, SUPRA, PROVIDES, INTER ALIA, FOR THE TEMPORARY APPOINTMENT OF CERTAIN ENLISTED PERSONNEL OF THE MARINE CORPS TO OFFICER GRADES, NOT ABOVE THAT OF CAPTAIN IN THE MARINE CORPS, DURING TIME OF WAR OR NATIONAL EMERGENCY. TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, WHICH TEMPORARILY SUPERSEDES, BUT DOES NOT REPEAL, THE ABOVE ACT OF JULY 24, 1941, PROVIDES, INTER ALIA, FOR THE TEMPORARY APPOINTMENT--- DURING A LIMITED PERIOD RUNNING FROM THE EFFECTIVE DATE OF THE ACT UNTIL NOT LATER THAN JANUARY 1, 1947--- OF CERTAIN ENLISTED PERSONNEL OF THE MARINE CORPS TO OFFICER GRADES, NOT ABOVE THAT OF CAPTAIN IN THE MARINE CORPS. EACH ACT PROVIDES THAT ENLISTED MEN "UPON BEING INITIALLY APPOINTED" THEREUNDER SHALL BE PAID THE SUM OF $250 AS A UNIFORM GRATUITY. THE LEGISLATIVE HISTORY OF THE OFFICER PERSONNEL ACT OF 1947 GIVE NO INDICATION OF AN INTENT TO PAY A UNIFORM GRATUITY TO AN INDIVIDUAL APPOINTED THEREUNDER FROM AN ENLISTED STATUS TO A TEMPORARY OFFICER STATUS, WHO ALREADY HAD RECEIVED AN IDENTICAL GRATUITY INCIDENT TO A LIKE APPOINTMENT UNDER THE ACT OF JULY 24, 1941.

INSOFAR AS THE APPOINTMENT OF ENLISTED PERSONNEL TO TEMPORARY OFFICER GRADE IS CONCERNED, TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 IS LARGELY A CONTINUATION OF THE ACT OF JULY 24, 1941, CARRYING ON WITHOUT A BREAK THE PROVISIONS OF THE EARLIER ACT RELATIVE TO SUCH APPOINTMENTS. THE PROVISION IN THE LATER ACT FOR UNIFORM GRATUITY UPON APPOINTMENT TO OFFICER STATUS IS A REENACTMENT OF THE SAME PROVISION IN THE EARLIER ACT. THE TWO PROVISIONS MUST BE CONSTRUED TOGETHER AS INTENDED TO GRANT TO AN ENLISTED MAN, UPON HIS FIRST APPOINTMENT AS A TEMPORARY OFFICER, A GRATUITY FOR THE PURPOSE OF RELIEVING HIM IN LARGE PART OF THE FINANCIAL BURDEN OF PROVIDING HIMSELF WITH THE UNIFORM REQUIRED TO BE WORN BY HIM UPON HIS INITIAL ENTRY UPON ACTIVE DUTY AS AN OFFICER. IN THIS CONNECTION, SEE DECISION B-33536 DATED APRIL 16, 1943, WHERE WAS CONSIDERED THE CASE OF AN OFFICER OF THE MARINE CORPS RESERVE WHO WAS PAID UNIFORM ALLOWANCES OF $100 ON AUGUST 21, 1939, AND $150 ON NOVEMBER 15, 1940, UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180. HIS RESIGNATION AS AN OFFICER OF THE MARINE CORPS RESERVE WAS ACCEPTED AUGUST 4, 1941. HE AGAIN WAS APPOINTED AN OFFICER IN THE MARINE CORPS RESERVE, ACCEPTED APPOINTMENT OCTOBER 1, 1942, AND REPORTED FOR ACTIVE DUTY OCTOBER 26, 1942. IT WAS HELD THAT HE WAS NOT ENTITLED TO ANY UNIFORM ALLOWANCE UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, INCIDENT TO HIS REPORTING FOR ACTIVE DUTY UNDER THE SECOND APPOINTMENT.

THE CONGRESS HAS NOT AUTHORIZED THE PAYMENT OF A UNIFORM GRATUITY UNDER THE 1947 ACT TO AN OFFICER WHO PREVIOUSLY WAS, OR CONTINUES TO BE, AN OFFICER APPOINTED UNDER THE ACT OF JULY 24, 1941, AND WHO HAD NO INTERVENING STATUS AS AN ENLISTED MAN OF THE REGULAR SERVICE. HENCE, NO PARITY WOULD BE ATTAINED BY THE PAYMENT OF ANOTHER UNIFORM GRATUITY TO TEMPORARY OFFICERS OF THE MARINE CORPS APPOINTED UNDER THE ACT OF JULY 24, 1941, AS AMENDED, WHO REVERTED TO A PERMANENT ENLISTED STATUS AND SUBSEQUENTLY WERE GIVEN APPOINTMENTS UNDER THE 1947 ACT.

THIS OFFICE HAS HELD CONSISTENTLY THAT A SECOND UNIFORM ALLOWANCE IS NOT PAYABLE, EVEN THOUGH A SECOND APPOINTMENT BE MADE UNDER AN ENTIRELY DIFFERENT LAW, IF THE SAME OR SUBSTANTIALLY THE SAME UNIFORM IS REQUIRED INCIDENT TO EACH APPOINTMENT. COMPARE B-37635, DECEMBER 1, 1943; B-73731, APRIL 9, 1948.

ACCORDINGLY, THE PROVISION CONTAINED IN SECTION 302 (F) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, IS GIVEN PROPER EFFECT, WITHOUT CREATING ANY DISPARITY AMONG PERSONS WHO HELD COMMISSIONS UNDER THE ACT OF JULY 24, 1941, AS AMENDED, BY LIMITING ITS APPLICATION TO ENLISTED MEN WHO HAVE NOT PREVIOUSLY RECEIVED THE $250 UNIFORM GRATUITY INCIDENT TO AN APPOINTMENT UNDER THE PROVISIONS OF THE SAID 1941 ACT. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.