B-84044, JULY 7, 1950, 30 COMP. GEN. 2

B-84044: Jul 7, 1950

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PAY - PROMOTIONS - EFFECTIVE DATE - WARRANT OFFICERS COMMISSIONED IN THE MARINE CORPS THE EFFECTIVE DATE OF A PROMOTION FOR PAY PURPOSES OF A PERMANENT COMMISSIONED WARRANT OFFICER WHO WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE MARINE CORPS PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 IS THE DATE THE OFFICER ACCEPTED SUCH APPOINTMENT. PROVIDED SUCH PAY AND ALLOWANCES ARE IN EXCESS OF THOSE TO WHICH HE IS ENTITLED UNDER THE TEMPORARY APPOINTMENT. A TEMPORARY WARRANT OFFICER OF THE MARINE CORPS WHO IS PROMOTED TO TEMPORARY COMMISSIONED WARRANT OFFICER PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 MAY NOT BE REGARDED AS HAVING BEEN TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER FROM THE DATE ON WHICH HE COMPLETED SIX YEARS' SERVICE IN WARRANT OR HIGHER GRADES SO AS TO BE ENTITLED TO CREDIT FOR .

B-84044, JULY 7, 1950, 30 COMP. GEN. 2

PAY - PROMOTIONS - EFFECTIVE DATE - WARRANT OFFICERS COMMISSIONED IN THE MARINE CORPS THE EFFECTIVE DATE OF A PROMOTION FOR PAY PURPOSES OF A PERMANENT COMMISSIONED WARRANT OFFICER WHO WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE MARINE CORPS PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 IS THE DATE THE OFFICER ACCEPTED SUCH APPOINTMENT, AND, IF OTHERWISE ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS IN SECTION 302 (E), HE MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES TO WHICH ENTITLED ON THE DATE OF ACCEPTANCE OF THE TEMPORARY APPOINTMENT, PROVIDED SUCH PAY AND ALLOWANCES ARE IN EXCESS OF THOSE TO WHICH HE IS ENTITLED UNDER THE TEMPORARY APPOINTMENT. A TEMPORARY WARRANT OFFICER OF THE MARINE CORPS WHO IS PROMOTED TO TEMPORARY COMMISSIONED WARRANT OFFICER PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 MAY NOT BE REGARDED AS HAVING BEEN TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER FROM THE DATE ON WHICH HE COMPLETED SIX YEARS' SERVICE IN WARRANT OR HIGHER GRADES SO AS TO BE ENTITLED TO CREDIT FOR ,CONSTRUCTIVE" COMMISSIONED SERVICE IN DETERMINING WHETHER HE HAS COMPLETED 10 YEARS' COMMISSIONED SERVICE FOR PAY PURPOSES UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. SINCE THE APPOINTMENT OF A PERMANENT COMMISSIONED WARRANT OFFICER OF THE MARINE CORPS TO THE PERMANENT RANK OF SECOND LIEUTENANT FOR LIMITED DUTY PURSUANT TO SECTION 404 OF THE OFFICER PERSONNEL ACT OF 1947 IS NOT CLEARLY AN ADVANCEMENT IN RANK OR GRADE PURSUANT TO LAW, WITHIN THE MEANING OF THE ACT OF MARCH 4, 1913, SUCH APPOINTMENT MAY BE CONSIDERED FOR PAY PURPOSES AS EFFECTIVE UPON THE DATE OF ACCEPTANCE OF THE APPOINTMENT BY THE OFFICER, IN THE ABSENCE OF A JUDICIAL DETERMINATION IN THE MATTER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 7, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 23, 1949, REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE BEEN PRESENTED BY THE U.S. MARINE CORPS CONCERNING THE EFFECTIVE DATE FOR PAY PURPOSES OF THE APPOINTMENT OR PROMOTION OF CERTAIN GRADES OF ENLISTED MEN, WARRANT OFFICERS, AND COMMISSIONED WARRANT OFFICERS TO HIGHER TEMPORARY AND PERMANENT GRADES OR RANKS IN THE U.S. MARINE CORPS PURSUANT TO CERTAIN SECTIONS OF TITLES III AND IV OF THE OFFICER PERSONNEL ACT OF 1947. FOR THE PURPOSE OF CONVENIENCE THE QUESTIONS PRESENTED IN THE LETTER OF THE MARINE CORPS WILL BE REARRANGED AND ANSWERED IN THE ORDER AS SO REARRANGED.

THE FIRST QUESTION--- PERTINENT TO THE DISCUSSION IN PARAGRAPHS 2 TO 8 OF THE LETTER OF THE MARINE CORPS, AS WELL AS THE QUESTIONS CONTAINED IN PARAGRAPH 9, EXCEPT PARAGRAPH 9 (C/--- CONCERNS THE EFFECTIVE DATE FOR PAY PURPOSES IN THE CASE OF A PERMANENT COMMISSIONED WARRANT OFFICER WHO WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE MARINE CORPS PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, 830; AND, ALSO, THE RATE OF SAVED PAY AND ALLOWANCES TO WHICH SUCH OFFICER IS ENTITLED UNDER SECTION 302 (E) OF THE SAID ACT UPON ACCEPTANCE OF SUCH TEMPORARY APPOINTMENT. IT IS STATED THAT HE WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT SEPTEMBER 16, 1948, TO RANK FROM AUGUST 3, 1948, WHICH IS THE DATE THE VACANCY OCCURRED; THAT HE ACCEPTED SUCH APPOINTMENT ON SEPTEMBER 17, 1948; AND THAT HE COMPLETED NINE YEARS' SERVICE FOR LONGEVITY PAY PURPOSES ON SEPTEMBER 11, 1948.

SECTION 302 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, WHICH IS APPLICABLE TO THE NAVY AND MARINE CORPS, PROVIDES, INTER ALIA, THAT STAFF SERGEANTS AND ABOVE, WARRANT OFFICERS, AND COMMISSIONED WARRANT OFFICERS MAY BE TEMPORARILY APPOINTED TO GRADES IN THE MARINE CORPS, INCLUDING THE GRADES OF WARRANT OFFICER AND COMMISSIONED WARRANT OFFICER, NOT ABOVE CAPTAIN. SUBSECTION (G), 61 STAT. 830, PROVIDES THAT SUCH TEMPORARY APPOINTMENTS MAY BE MADE IN SUCH NUMBERS AS THE PRESIDENT MAY DETERMINE NECESSARY, WITH CERTAIN LIMITATIONS, AND SUBSECTION (E) OF THE SAID ACT, 61 STAT. 830, PROVIDES AS FOLLOWS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE 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 ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN, NO PERSON WHO SHALL ACCEPT A TEMPORARY APPOINTMENT UNDER THE PROVISIONS OF THIS TITLE SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: AND PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS SECTION SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS PERMANENT STATUS AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

IT WILL BE NOTED THAT VARIOUS PROVISIONS ARE MADE IN TITLE III OF THE SAID ACT WITH RESPECT TO THE EFFECTIVE DATE FOR PAY PURPOSES OF CERTAIN TEMPORARY PROMOTIONS MADE PURSUANT THERETO, BUT NO PROVISION--- OTHER THAN THAT CONTAINED IN THE FIRST PROVISO IN SECTION 302 (E) SUPRA -- APPEARS TO HAVE BEEN MADE THEREIN WITH RESPECT TO THE EFFECTIVE DATE FOR PAY PURPOSES OF TEMPORARY PROMOTIONS OF PERSONNEL DESCRIBED IN SUBSECTION (C) OF SECTION 302. SEE, FOR EXAMPLE, SECTION 311 (A) (2) OF THE SAID ACT, 61 STAT. 852, WHICH APPEARS TO RELATE TO LINE OFFICERS OF THE NAVY OF THE GRADE OF ENSIGN AND ABOVE WHO ARE RECOMMENDED FOR TEMPORARY PROMOTION BY SELECTION BOARDS (APPLICABLE BY ASSIMILATION UNDER SECTION 314 (A), 61 STAT. 863, TO COMMISSIONED OFFICERS OF THE MARINE CORPS), AND WHICH PROVIDES THAT UPON TEMPORARY PROMOTION TO A HIGHER GRADE AN "OFFICER" (DEFINED IN SECTION 302 (A) AS ENSIGN OR ABOVE) SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM ,THE DATE OF THE OCCURRENCE OF THE VACANCY WHICH HE IS TEMPORARILY PROMOTED TO FILL.' SEE, ALSO, SUBSECTIONS (0) AND (S) OF SECTION 304, AS ADDED BY SUBSECTIONS (A) AND (B) OF SECTION 1 OF THE ACT OF AUGUST 5, 1949, 63 STAT. 567, AND SECTIONS 311 (B) (1), (2), AND (3) AND 314 (H) OF THE 1947 ACT, 61 STAT. 853, 864, RESPECTING THE EFFECTIVE DATE OF TEMPORARY PROMOTIONS MADE PURSUANT TO THOSE SECTIONS. HENCE, NO OTHER PROVISION HAVING BEEN MADE IN THAT RESPECT, THERE IS FOR CONSIDERATION WHETHER THE FIRST PROVISO IN SUBSECTION (E) OF SECTION 302 FIXES THE EFFECTIVE DATE OF TEMPORARY PROMOTIONS OF PERSONNEL APPOINTED PURSUANT TO THAT SECTION.

THE FIRST PROVISO IN SECTION 302 (E), SUPRA, REFERS TO PERSONS WHO "ACCEPT" TEMPORARY APPOINTMENTS UNDER TITLE III OF THE ACT, AND PROVIDES THAT,"EXCEPT AS OTHERWISE PROVIDED HEREIN," NO SUCH PERSON SHALL BE ENTITLED,"WHILE SERVING THEREUNDER" TO PAY AND ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. THE SAID PROVISO IS SUBSTANTIALLY SIMILAR TO THE FIRST PROVISO WHICH APPEARED IN SECTION 7 (A) OF THE TEMPORARY PROMOTION ACT OF JULY 24, 1941, 55 STAT. 604, AND UNDER THAT PROVISO--- AT LEAST PRIOR TO THE ENACTMENT OF THE ACT OF JUNE 30, 1942, 56 STAT. 465--- IT WAS CONSIDERED THAT THE SAID PROVISO WAS A CLEAR PROHIBITION AGAINST THE PAYMENT OF PAY AND ALLOWANCES TO ANY PERSON WHO ACCEPTS A TEMPORARY COMMISSION OR WARRANT PURSUANT TO THAT ACT, EXCEPT THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. SEE 21 COMP. GEN. 991, 993; 22 ID. 548, 551. HOWEVER, SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465 (WHICH WAS REPEALED BY SECTION 426 (A) OF THE OFFICER PERSONNEL ACT, 61 STAT. 880), EXPRESSLY FIXED THE EFFECTIVE DATE FOR PAY PURPOSES OF TEMPORARY PROMOTIONS THERETOFORE OR THEREAFTER MADE PURSUANT TO THE 1941 ACT AS "THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT," UNLESS EXPRESSLY DECLINED, AND SUCH APPOINTMENTS WERE REGARDED AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE. HENCE, SINCE THE FIRST PROVISO IN SECTION 302 (E), SUPRA, IN EFFECT, PROHIBITS PERSONS WHO "ACCEPT" TEMPORARY APPOINTMENTS UNDER THAT TITLE FROM RECEIVING PAY AND ALLOWANCES OTHER THAN THOSE PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, AND AS THE EFFECTIVE DATE OF SUCH TEMPORARY APPOINTMENTS OR PROMOTIONS FOR PAY PURPOSES IS NOT "OTHERWISE PROVIDED HEREIN," IT MUST BE CONCLUDED THAT A PERSON WHO ACCEPTS A TEMPORARY APPOINTMENT PURSUANT TO SECTION 302 IS NOT ENTITLED TO THE INCREASED PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE OR RANK PRIOR TO THE DATE OF ACCEPTANCE OF THE TEMPORARY APPOINTMENT. THE SAID PROVISO HAVING, IN EFFECT, PRESCRIBED THE DATE THAT PERSONS TEMPORARILY APPOINTED OR PROMOTED UNDER THAT TITLE WOULD BE ENTITLED TO THE INCREASED PAY AND ALLOWANCES OF THEIR TEMPORARY GRADES OR RANKS, STATUTES SUCH AS THE ACT OF MARCH 4, 1913, 37 STAT. 892 (34 U.S.C. 870), AND SECTION 1560, REVISED STATUTES (34 U.S.C. 862), FIXING THE EFFECTIVE DATE FOR PAY PURPOSES OF APPOINTMENTS AND PROMOTIONS GENERALLY, IN THE NAVY AND MARINE CORPS, ARE INAPPLICABLE. ACCORDINGLY, UNDER THE CIRCUMSTANCES IN THE PRESENT CASE, THE EFFECTIVE DATE FOR PAY PURPOSES OF THE TEMPORARY APPOINTMENT MADE PURSUANT TO SECTION 302 IS THE DATE THE OFFICER ACCEPTED SUCH APPOINTMENT, NAMELY, SEPTEMBER 17, 1948. THE QUESTION IN PARAGRAPH 9 (A) OF YOUR LETTER IS ANSWERED ACCORDINGLY AND IN VIEW OF SUCH ANSWER NO ANSWER TO THE QUESTION CONTAINED IN PARAGRAPH 9 (B) IS NECESSARY.

THE SECOND OR LAST PROVISO IN SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, QUALIFIES THE FIRST PROVISO IN THAT SECTION SO AS TO SAVE A PERSON WHO ACCEPTS A TEMPORARY APPOINTMENT UNDER THAT SECTION FROM ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS PERMANENT STATUS "AT THE TIME OF SUCH TEMPORARY APPOINTMENT.' THE QUOTED PHRASE WHEN CONSIDERED IN CONJUNCTION WITH THE PROVISION IN THE FIRST PROVISO IN SUBSECTION (E) OF SECTION 302 (WHICH REFERS TO PERSONS WHO "ACCEPT" SUCH TEMPORARY APPOINTMENTS AND RESTRICTS THE PAY AND ALLOWANCES OF SUCH PERSONS "WHILE SERVING THEREUNDER" TO THOSE AUTHORIZED FOR THE TEMPORARY GRADE OR RANK), APPEARS TO HAVE REFERENCE TO THE DATE OF ACCEPTANCE OF THE TEMPORARY APPOINTMENT, THAT IS, THE EFFECTIVE DATE OF THE TEMPORARY APPOINTMENT FOR PAY PURPOSES, RATHER THAN THE ACTUAL DATE OF THE TEMPORARY APPOINTMENT. HENCE, A PERSON OTHERWISE ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS IN SECTION 302 (E), INCLUDING AN ENLISTED PERSON TEMPORARILY APPOINTED A COMMISSIONED OFFICER, IS ENTITLED TO CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE OR RANK (OR IN A PROPER CASE THE PAY AND ALLOWANCES TO WHICH ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE) TO WHICH ENTITLED ON THE DATE OF ACCEPTANCE OF SUCH TEMPORARY APPOINTMENT, IF SUCH PAY AND ALLOWANCES ARE IN EXCESS OF THOSE TO WHICH ENTITLED UNDER TEMPORARY APPOINTMENT. IT IS TO BE UNDERSTOOD, OF COURSE, THAT CONDITIONS UNDER WHICH AN OFFICER IS SERVING ON DATE OF ACCEPTANCE OF TEMPORARY APPOINTMENT MAY SO CHANGE SUBSEQUENTLY THERETO AS TO AFFECT THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER HIS STATUS PRIOR TO SUCH ACCEPTANCE. SEE, GENERALLY, 23 COMP. GEN. 21 AND 24 ID. 739. THE QUESTIONS IN PARAGRAPH 9 (D) AND (E) OF THE LETTER ARE ANSWERED ACCORDINGLY.

THE SECOND MATTER FOR CONSIDERATION--- PARAGRAPHS 10, 11, 12, 13, AND 14 OF THE LETTER--- CONCERNS THE DATE OF RANK AND THE EFFECTIVE DATE FOR PAY PURPOSES OF A PROMOTION FROM TEMPORARY WARRANT OFFICER TO TEMPORARY COMMISSIONED WARRANT OFFICER PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947. IN THE CASE MENTIONED IN PARAGRAPH 14 (A) OF THE MARINE CORPS' LETTER, THE OFFICER'S PERMANENT STATUS IS THAT OF AN ENLISTED MAN AND AT THE TIME OF HIS TEMPORARY APPOINTMENT UNDER THE ACT OF JULY 24, 1941, AS A WARRANT OFFICER, NOVEMBER 23, 1946, HE HAD COMPLETED OVER SIX YEARS' ACTIVE COMMISSIONED SERVICE IN THE MARINE CORPS RESERVE. UNDER SECTIONS 302 AND 316 (A) OF THE OFFICER PERSONNEL ACT, HE WAS TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER ON NOVEMBER 2, 1948, TO RANK FROM NOVEMBER 23, 1946, WHICH TEMPORARY APPOINTMENT HE ACCEPTED NOVEMBER 9, 1948.

AS STATED IN THE ANSWER TO THE FIRST QUESTION, THE EFFECTIVE DATE FOR PAY PURPOSES IN THE CASE OF A WARRANT OFFICER TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER UNDER SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 IS THE DATE THE OFFICER ACCEPTS SUCH TEMPORARY APPOINTMENT AND NOT THE DATE OF RANK STATED IN HIS COMMISSION. ACCORDINGLY, THE OFFICER REFERRED TO IN PARAGRAPH 14 (A) OF THE LETTER FROM THE MARINE CORPS IS ENTITLED TO PAY AND ALLOWANCES AS A COMMISSIONED WARRANT OFFICER WITH LESS THAN 10 YEARS' COMMISSIONED SERVICE FROM NOVEMBER 9, 1948, THE DATE HE ACCEPTED SUCH TEMPORARY APPOINTMENT. IN VIEW OF THE ANSWER TO THE ABOVE QUESTION, THE NEXT QUESTION FOR CONSIDERATION CONCERNS THE DATE ON WHICH SUCH OFFICER IS TO BE CONSIDERED AS HAVING COMPLETED 10 YEARS' COMMISSIONED SERVICE. THE QUESTION IS STATED IN PARAGRAPH 14 (B) AS FOLLOWS:

(B) IF IT BE HELD THAT ENTITLEMENT TO PAY AND ALLOWANCES ACCRUES FROM A DATE OTHER THAN DATE OF RANK, IS THE OFFICER ENTITLED TO CONSTRUCTIVE COMMISSIONED SERVICE FROM DATE OF RANK, 23 NOVEMBER, 1946, TO INCLUDE THE DATE PRIOR TO THE DATE HE BECOMES ENTITLED TO PAY AND ALLOWANCES AS A COMMISSIONED WARRANT OFFICER?

SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 262, AS AMENDED, 37 U.S.C. 108, PROVIDED IN PERTINENT PART AS FOLLOWS:

COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER TEN YEARS OF COMMISSIONED SERVICE, AND MASTERS AND CHIEF ENGINEERS IN THE ARMY MINE PLANTER SERVICE, SHALL RECEIVE THE BASE PAY OF THE THIRD PERIOD AS ESTABLISHED BY SECTION 101 OF THIS TITLE AND SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 105 AND 106 OF THIS TITLE FOR OFFICERS RECEIVING THE PAY OF THE THIRD PERIOD.

SECTION 316 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 867, PROVIDES AS FOLLOWS:

NO OFFICER SERVING IN WARRANT GRADE SHALL BE TEMPORARILY ADVANCED TO COMMISSIONED WARRANT OFFICER UNTIL HE SHALL HAVE COMPLETED SIX YEARS OF SERVICE IN WARRANT OR HIGHER GRADE.

COMPARE THE ACT OF JUNE 10, 1926, 44 STAT. 725, AND THE ACT OF FEBRUARY 15, 1929, 45 STAT. 1180, AS AMENDED, 34 U.S.C. 331A, APPLICABLE TO THE PERMANENT APPOINTMENT OF COMMISSIONED WARRANT OFFICERS. IN THE CASE REFERRED TO IN PARAGRAPH 14 (B) OF LETTER FROM THE MARINE CORPS, THE WARRANT OFFICER HAD COMPLETED THE "SIX YEARS OF SERVICE IN WARRANT OR HIGHER GRADE," WHICH INCLUDES SERVICE UNDER EITHER A TEMPORARY OR PERMANENT APPOINTMENT, LONG PRIOR TO THE TIME HE WAS TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER UNDER SECTION 302 OF SAID 1947 ACT. PRESUMABLY, IT IS THE VIEW THAT UNDER SUCH CIRCUMSTANCES THE OFFICER MAY BE CONSIDERED AS CONSTRUCTIVELY HAVING BEEN TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER UNDER SECTION 302 OF THE OFFICER PERSONNEL ACT ON THE DATE FOLLOWING THE DATE ON WHICH HE COMPLETED THE SIX YEARS' SERVICE REQUIRED UNDER SECTION 316 (A), SUPRA; AND, ON SUCH BASIS EVEN THOUGH NOT APPOINTED A TEMPORARY COMMISSIONED WARRANT OFFICER UNTIL LONG AFTER COMPLETION OF SUCH SIX YEARS' SERVICE, THAT ALL SERVICE AS A WARRANT OFFICER AFTER COMPLETION OF THE REQUIRED SIX YEARS' SERVICE IS TO BE CONSIDERED AS "CONSTRUCTIVE" COMMISSIONED SERVICE FOR THE PURPOSE OF DETERMINING WHETHER THE OFFICE HAS COMPLETED 10 YEARS' COMMISSIONED SERVICE SO AS TO ENTITLE HIM TO THE PAY AND ALLOWANCES AUTHORIZED UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 AS AMENDED.

THE SAID SECTION 316 (A), SUPRA, DOES NOT APPEAR TO BE A MANDATORY REQUIREMENT THAT ALL WARRANT OFFICERS WITH SIX YEARS' SERVICE IN WARRANT OR HIGHER GRADES ARE TO BE TEMPORARILY APPOINTED COMMISSIONED WARRANT OFFICERS UNDER SECTION 302 OF THE 1947 ACT. ON THE CONTRARY, IT APPEARS TO BE IN THE NATURE OF A PROHIBITION OR RESTRICTION AGAINST THE APPOINTMENT OF WARRANT OFFICERS AS TEMPORARY COMMISSIONED WARRANT OFFICERS UNDER THAT TITLE UNTIL THEY HAVE COMPLETED AT LEAST SIX YEARS' SERVICE IN WARRANT OR HIGHER GRADES. A TEMPORARY WARRANT OFFICER HAS NO VESTED RIGHT UNDER SECTIONS 302 AND 316A OF THE 1947 ACT TO BE TEMPORARILY APPOINTED A COMMISSIONED WARRANT OFFICER UPON COMPLETION OF THE REQUIRED SIX YEARS' SERVICE. AND NO PROVISION IN THE OFFICER PERSONNEL ACT, OR ANY OTHER ACT, HAS BEEN FOUND UNDER WHICH PERSONS TEMPORARILY APPOINTED COMMISSIONED WARRANT OFFICERS UNDER SECTION 302 OF THE OFFICER PERSONNEL ACT MAY BE REGARDED AS HAVING BEEN TEMPORARILY APPOINTED COMMISSIONED WARRANT OFFICERS FROM THE DATE ON WHICH THEY COMPLETED SIX YEARS' SERVICE IN WARRANT OR HIGHER GRADES. IN THAT CONNECTION SEE THE FIRST PROVISO IN THE ACT OF FEBRUARY 15, 1929, 45 STAT. 1180, APPLICABLE TO PERMANENT COMMISSIONED WARRANT OFFICERS IN THE NAVY AND MARINE CORPS, WHICH PROVIDES THAT CERTAIN WARRANT OFFICERS WHO HAVE "HERETOFORE" BEEN COMMISSIONED CHIEF WARRANT OFFICERS SHALL "FOR ALL PURPOSES" BE REGARDED AS HAVING BEEN SO COMMISSIONED FROM COMPLETION OF SUCH SIX-YEAR SERVICE. SEE COUVRETTE V. UNITED STATES, 76 C.CLS. 746. ACCORDINGLY, THE OFFICER REFERRED TO IN PARAGRAPH 14 (A) AND (B) IS NOT ENTITLED TO CREDIT FOR "CONSTRUCTIVE" COMMISSIONED SERVICE IN DETERMINING WHETHER HE HAS COMPLETED 10 YEARS' COMMISSIONED SERVICE UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 AS AMENDED. THE SAME RULE RESPECTING THE COUNTING OF CONSTRUCTIVE COMMISSIONED SERVICE ALSO IS APPLICABLE IN THE CASE REFERRED TO IN PARAGRAPH 14 (C) OF THE LETTER.

THE THIRD AND LAST QUESTION PRESENTED--- PARAGRAPH 9 (C) OF THE MARINE CORPS' LETTER--- IS WHETHER THE ABOVE RULE, RESPECTING THE EFFECTIVE DATE FOR PAY PURPOSES OF TEMPORARY APPOINTMENTS UNDER SECTION 302 (E), SUPRA, ALSO IS APPLICABLE IN THE CASE OF A PERMANENT COMMISSIONED WARRANT OFFICER WHO WAS PERMANENTLY APPOINTED A SECOND LIEUTENANT FOR LIMITED DUTY PURSUANT TO THE PROVISIONS OF SECTION 404 (A) AND (C) OF THE OFFICE PERSONNEL ACT OF 1947, 61 STAT. 870, 871, WHICH PROVISIONS ARE MADE APPLICABLE TO THE REGULAR MARINE CORPS BY SUBSECTION (D) OF SECTION 404, 61 STAT. 871. THE SAID SECTION 404 (A) AUTHORIZES THE PRESIDENT TO APPOINT PERMANENTLY IN THE REGULAR NAVY--- AND BY ASSIMILATION IN THE REGULAR MARINE CORPS--- IN COMMISSIONED GRADES, NOT ABOVE COMMANDER, CERTAIN GRADES OF ENLISTED MEN, WARRANT OFFICERS, AND COMMISSIONED WARRANT OFFICERS FOR THE PERFORMANCE OF LIMITED DUTY IN TECHNICAL FIELDS INDICATED IN THEIR WARRANTS OR RATINGS. THE ELIGIBILITY OF SUCH PERSONS FOR APPOINTMENT AS LIMITED DUTY OFFICERS IS TO BE DETERMINED IN ACCORDANCE WITH RULES PRESCRIBED BY THE SECRETARY OF THE NAVY, BUT NO PERSON IS TO BE REGARDED ELIGIBLE FOR SUCH AN APPOINTMENT UNTIL HE HAS COMPLETED TEN YEARS OF NAVAL SERVICE, EXCLUSIVE OF ACTIVE DUTY FOR TRAINING IN A RESERVE COMPONENT. SEE SUBSECTION (C) OF SECTION 404, AS AMENDED BY SECTION 1 (F) OF THE ACT OF AUGUST 5, 1949, 63 STAT. 568. UNDER SECTION 404 (J) OF THE OFFICER PERSONNEL ACT, 61 STAT. 872, WHICH IS MADE APPLICABLE TO THE MARINE CORPS BY SECTION 404 (K), 61 STAT. 872, NO OFFICER APPOINTED FOR LIMITED DUTY IS TO SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED "AT THE TIME OF SUCH APPOINTMENT" BY VIRTUE OF HIS PERMANENT STATUS.

NO PROVISION HAS BEEN FOUND IN SECTION 404, OR ANY OTHER SECTION OF THE ACT, WHICH EXPRESSLY FIXES THE EFFECTIVE DATE FOR PAY PURPOSES OF PERMANENT APPOINTMENTS FOR LIMITED DUTY IN THE REGULAR MARINE CORPS PURSUANT TO SUBSECTIONS (A) AND (C) OF SECTION 404. IT IS NOTED, HOWEVER, THAT THE DEPARTMENT OF THE NAVY HAS TAKEN THE VIEW THAT SUCH PERMANENT APPOINTMENTS ARE NOT EFFECTIVE FOR PAY PURPOSES UNTIL ACCEPTED BY THE OFFICER. SEE PARAGRAPH 54105 B, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. SUCH VIEW APPEARS TO BE BASED UPON AN ADMINISTRATIVE UNDERSTANDING THAT A PERMANENT APPOINTMENT AS A LIMITED DUTY OFFICER UNDER SUCH CIRCUMSTANCES IS AN "ORIGINAL ENTRY INTO THE SERVICE" WITHIN THE MEANING OF SECTION 1560, REVISED STATUTES, 34 U.S.C. 862 (WHICH PROVIDES THAT THE PAY OF A NAVAL OFFICER UPON ORIGINAL ENTRY INTO THE SERVICE SHALL COMMENCE UPON THE DATE OF ACCEPTANCE OF THE APPOINTMENT), RATHER THAN AN ADVANCEMENT IN GRADE OR RANK PURSUANT TO LAW UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892, 34 U.S.C. 870, WHICH PROVIDES THAT ALL OFFICERS OF THE NAVY "ADVANCED IN GRADE OR RANK PURSUANT TO LAW" SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS.

IT IS UNDERSTOOD THAT, GENERALLY, PERSONS ELIGIBLE FOR PERMANENT APPOINTMENT AS LIMITED DUTY OFFICERS, INCLUDING TEMPORARY OFFICERS ELIGIBLE FOR APPOINTMENT UNDER SECTION 404 (H), AS AMENDED, SUBMIT THEIR APPLICATION FOR APPOINTMENT TO PROPER AUTHORITIES AND IF SUCH APPLICATION IS APPROVED AN APPOINTMENT IS TENDERED THE INDIVIDUAL, WHICH APPOINTMENT MUST BE ACCEPTED WITHIN A SPECIFIED PERIOD OF TIME. HOWEVER, UNTIL SUCH TIME AS THE APPOINTMENT IS APPROVED BY PROPER AUTHORITIES AND ACCEPTED BY THE OFFICER, HE CONTINUES TO SERVE UNDER HIS PRIOR APPOINTMENT. IN THAT CONNECTION, IT IS UNDERSTOOD THAT A NUMBER OF PERSONS WHO SERVED IN HIGHER TEMPORARY GRADES HAVE RECEIVED PERMANENT APPOINTMENTS AS LIMITED DUTY OFFICERS UNDER SECTION 404 (H) OF THE SAID ACT, AS AMENDED, IN GRADES LOWER THAN THEIR TEMPORARY GRADES, AND IT HAS BEEN CONSIDERED THAT THE EFFECTIVE DATE OF SUCH PERMANENT APPOINTMENTS IS THE DATE OF ACCEPTANCE. THERE IS NOTHING IN SECTION 404 OF THE OFFICER PERSONNEL ACT OF 1947, OR OTHERWISE, INDICATIVE OF AN INTENT TO FIX THE EFFECTIVE DATE FOR PAY PURPOSES OF PERMANENT APPOINTMENTS UNDER THAT SECTION PRIOR TO THE DATE ON WHICH SUCH APPOINTMENTS ARE ACCEPTED BY THE INDIVIDUALS CONCERNED. HENCE, IRRESPECTIVE OF WHETHER A PERMANENT APPOINTMENT AS A LIMITED DUTY OFFICER UNDER SECTION 404 MUST BE CONSIDERED AN ORIGINAL ENTRY INTO THE SERVICE WITHIN THE MEANING OF SECTION 1560, REVISED STATUTES, IT IS AT LEAST NOT SO CLEARLY AN ADVANCEMENT IN GRADE OR RANK PURSUANT TO LAW, WITHIN THE MEANING OF THE ACT OF MARCH 4, 1913, THAT THIS OFFICER IS REQUIRED, IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE MATTER, TO DISAGREE WITH THE ADMINISTRATIVE VIEW THAT SUCH PERMANENT APPOINTMENTS ARE NOT EFFECTIVE FOR PAY PURPOSES UNTIL THE DATE OF ACCEPTANCE OF THE APPOINTMENT.