B-81288, FEBRUARY 10, 1949, 28 COMP. GEN. 453

B-81288, FEBRUARY 10, 1949, 28 COMP. GEN. 453

PAY - ADDITIONAL - SPECIAL QUALIFICATION IN USE OF ARMS THE RIGHT TO PAYMENT OF THE ADDITIONAL COMPENSATION PRESCRIBED FOR MARINE CORPS ENLISTED MEN BY EXECUTIVE ORDER NO. 9209, ISSUED PURSUANT TO SECTION 16 OF THE PAY READJUSTMENT ACT OF 1942, FOR SPECIAL QUALIFICATION IN THE USE OF ARMS WHICH THEY MAY BE REQUIRED TO USE ARISES ONLY UPON A PROPER QUALIFICATION THEREFOR OBTAINED WHILE SERVING IN AN ENLISTED STATUS, AND THEREFORE, SUCH ADDITIONAL COMPENSATION MAY NOT BE PAID TO AN ENLISTED MAN WHO OBTAINED HIS QUALIFICATION AS A CARBINE EXPERT WHILE SERVING AS A TEMPORARY WARRANT OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO H. A. ZEHINGEBOT, DEPARTMENT OF THE NAVY, FEBRUARY 10, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 13, 1948, RECEIVED BY ENDORSEMENT OF THE QUARTERMASTER GENERAL OF THE MARINE CORPS DATED OCTOBER 25, 1948, IN WHICH YOU REQUEST DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MASTER SERGEANT ROLAND K. BENSON FOR ADDITIONAL PAY AS A CARBINE EXPERT, AT THE RATE OF $5 PER MONTH, FOR THE PERIOD JANUARY 22 TO SEPTEMBER 30, 1948, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9209, DATED AUGUST 1, 1942.

YOU STATE THAT THE RECORDS AVAILABLE IN YOUR OFFICE SHOW THAT MR. BENSON ENLISTED IN THE U.S. MARINE CORPS ON SEPTEMBER 17, 1940, WAS APPOINTED WARRANT OFFICER ON MAY 1, 1943, QUALIFIED AS CARBINE EXPERT ON DECEMBER 19, 1947, AND WAS REVERTED TO THE RANK OF MASTER SERGEANT AND DISCHARGED ON JANUARY 21, 1948, AND REENLISTED IN THE MARINE CORPS ON JANUARY 22, 1948. CERTIFIED COPIES OF AN EXTRACT FROM A " REPORT OF INDIVIDUAL RECORD QUALIFICATION" SUBMITTED BY THE MARINE BARRACKS, U.S. NAVAL BASE, LOS ANGELES, NAVAL STATION, LONG BEACH, CALIFORNIA, WHICH YOU ENCLOSED, SHOW THAT MR. BENSON QUALIFIED AS A CARBINE EXPERT WHILE SERVING IN THE CAPACITY OF WARRANT OFFICER.

SECTION 16 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, PROVIDES AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD MAY RECEIVE ADDITIONAL COMPENSATION NOT LESS THAN $1 NOR MORE THAN $5 PER MONTH, FOR SPECIAL QUALIFICATION IN THE USE OF THE ARM OR ARMS WHICH THEY MAY BE REQUIRED TO USE. REGULATIONS GOVERNING THE PAYMENT OF ADDITIONAL COMPENSATION TO ENLISTED MEN OF THE MARINE CORPS FOR SPECIAL QUALIFICATION IN THE USE OF ARMS PROMULGATED PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT UNDER THE QUOTED STATUTORY PROVISIONS ARE CONTAINED IN EXECUTIVE ORDER NO. 9209, DATED AUGUST 1, 1942, WHICH PROVIDES, INTER ALIA, AS FOLLOWS:

ENLISTED MEN OF THE MARINE CORPS WHERESOEVER STATIONED WHO HAVE ESTABLISHED THEIR SPECIAL QUALIFICATIONS IN THE USE OF THE ARM OR ARMS WHICH THEY MAY BE REQUIRED TO USE, SHALL RECEIVE ADDITIONAL COMPENSATION, UNDER SUCH REGULATIONS AND CONDITIONS AND FOR SUCH PERIODS OF TIME AS ARE NOW OR MAY HEREAFTER BE PRESCRIBED BY THE SECRETARY OF THE NAVY * * *.

ARTICLE 25-135 OF THE MARINE CORPS MANUAL PRESCRIBES THE GRADE DESIGNATIONS FOR VARIOUS CLASSES FOR THE PURPOSE OF ADDITIONAL COMPENSATION FOR ENLISTED PERSONNEL BY REASON OF SPECIAL QUALIFICATION IN THE USE OF ARMS WHICH THEY MAY BE REQUIRED TO USE, AND PROVIDES FOR THE CONTINUATION OF ADDITIONAL COMPENSATION FOR SUCH QUALIFICATION FOR A PERIOD OF ONE YEAR, PROVIDED THAT DURING THAT TIME THE ENLISTED MAN DOES NOT ATTAIN A HIGHER OR LOWER QUALIFICATION OR DOES NOT FAIL TO REQUALIFY. THE FOREGOING STATUTORY PROVISIONS, AND REGULATIONS ISSUED THEREUNDER, CONTEMPLATE THAT THE RIGHT TO ADDITIONAL COMPENSATION AUTHORIZED FOR PAYMENT TO AN ENLISTED MAN FOR SPECIAL QUALIFICATION IN THE USE OF THE ARM OR ARMS WHICH HE MAY BE REQUIRED TO USE SHALL ARISE ONLY INCIDENT TO AND AS A RESULT OF PROPER QUALIFICATION THEREFOR OBTAINED DURING A PERIOD WHILE HE IS SERVING AS AN ENLISTED MAN. CF. 27 COMP. DEC. 914.

PRESUMABLY, MR. BENSON'S APPOINTMENT ON MAY 1, 1943, TO THE RANK OF WARRANT OFFICER AND HIS REVERSION TO HIS PRIOR ENLISTED GRADE AND DISCHARGE ON JANUARY 21, 1948, WERE EFFECTED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. SECTION 7 (A) OF THAT ACT, 55 STAT. 604, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCORDANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTION 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED * * * DURING THE PERIOD WHILE SERVING AS A TEMPORARY WARRANT OFFICER UNDER THE ACT OF JULY 24, 1941, MR. BENSON WAS A WARRANT OFFICER IN FACT, ENTITLED TO THE PAY AND ALLOWANCES OF THAT RANK. IT WAS IN THAT CAPACITY THAT HE OBTAINED QUALIFICATION AS CARBINE EXPERT ON DECEMBER 19, 1947. WHILE UNDER SECTION 7 (A), ABOVE, HIS ENLISTED STATUS IN THE MARINE CORPS, INCLUDING HIS RIGHT TO PROMOTION, ADVANCEMENT, OR APPOINTMENT, AND RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES WERE SAVED TO HIM, SUCH PROVISIONS DO NOT AUTHORIZE ANY MONEY BENEFITS ARISING BY REASON OF HIS ENLISTED STATUS DURING THAT PERIOD. 21 COMP. GEN. 991. SUCH PROVISIONS DO NOT MODIFY THE REQUIREMENTS OF SECTION 16 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AND THE REGULATIONS PROMULGATED PURSUANT THERETO, WHICH AUTHORIZE THE PAYMENT TO AN ENLISTED MAN OF ADDITIONAL COMPENSATION FOR SPECIAL QUALIFICATION IN THE USE OF ARMS ONLY UPON A PROPER QUALIFICATION THEREFOR OBTAINED WHILE SERVING IN AN ENLISTED STATUS.

SINCE MR. BENSON'S QUALIFICATION AS CARBINE EXPERT WAS OBTAINED DURING THE PERIOD WHILE HE WAS SERVING AS TEMPORARY WARRANT OFFICER, SUCH QUALIFICATION DOES NOT ENTITLE HIM TO THE ADDITIONAL COMPENSATION CLAIMED FOR THE PERIOD IN QUESTION. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUBMITTED VOUCHER WHICH IS RETAINED IN THIS OFFICE.