B-84309, JUNE 10, 1949, 28 COMP. GEN. 699

B-84309, JUNE 10, 1949, 28 COMP. GEN. 699

APPROPRIATIONS - NAVY DEPARTMENT - AVAILABILITY FOR PAY, ALLOWANCES, AND LUMP-SUM PAYMENTS TO AVIATION RESERVE OFFICERS ON ACTIVE DUTY NAVAL RESERVE OFFICERS COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 OR THE NAVAL AVIATION CADET ACT OF 1942, WHO ARE ASSIGNED TO THE PEACETIME RESERVE PROGRAM PRIOR TO THE EXPIRATION OF THE SEVEN-YEAR PERIOD WHEN EMPLOYED ON ACTIVE DUTY, SHOULD HAVE THEIR PAY AND ALLOWANCES WHILE ON ACTIVE DUTY WITH THE ACTIVE NAVY CHARGED TO THE APPROPRIATION " PAY AND SUBSISTENCE OF NAVAL PERSONNEL; " HOWEVER, WHEN A RESERVE OFFICER'S STATUS IS CHANGED TO THAT OF AN OFFICER ON ACTIVE DUTY INSTRUCTING AND TRAINING RESERVISTS THROUGH THE ISSUANCE OF APPROPRIATE ORDERS, WITHOUT FIRST BEING RELEASED FROM ACTIVE DUTY WITH THE ACTIVE NAVY, HIS PAY AND ALLOWANCES WOULD BE CHARGEABLE TO THE APPROPRIATION " NAVAL RESERVE.' LUMP-SUM PAYMENTS AUTHORIZED FOR NAVAL RESERVE AVIATION OFFICERS BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 UPON RELEASE FROM ACTIVE DUTY ARE CHARGEABLE, IN VIEW OF THE FACT THAT SUCH PAYMENTS RELATE MAINLY TO PERIODS OF ACTIVE SERVICE WITH THE ACTIVE NAVY RATHER THAN TO PERIODS OF SERVICE RELATING TO THE TRAINING OF RESERVISTS IN CONNECTION WITH THE PEACETIME RESERVE PROGRAM, TO THE APPROPRIATION , PAY AND SUBSISTENCE OF NAVAL PERSONNEL" RATHER THAN TO THE APPROPRIATION " NAVAL RESERVE.' NAVAL RESERVE OFFICERS COMMISSIONED UNDER THE NAVAL AVIATION RESERVE ACT OF 1939 OR THE NAVAL AVIATION CADET ACT OF 1942, WHO COMPLETED THE SEVEN- YEAR PERIOD OF CONTINUOUS ACTIVE DUTY FOLLOWING FLIGHT TRAINING AS AVIATION CADETS, MAY, UPON THE ISSUANCE OF APPROPRIATE ORDERS, CONTINUE ON ACTIVE DUTY FOR THE PURPOSE OF INSTRUCTING AND TRAINING RESERVISTS WITHOUT FIRST BEING RELEASED FROM ACTIVE DUTY; AND ANY AVIATION RESERVE OFFICERS' LUMP-SUM PAYMENTS PAYABLE PURSUANT TO SECTION 12 OF THE 1942 ACT UPON RELEASE FROM ACTIVE DUTY SHOULD BE PAID FROM THE APPROPRIATION " PAY AND SUBSISTENCE OF NAVAL PERSONNEL" CURRENT AT THE TIME OF RELEASE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 10, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS RELATIVE TO THE STATUS OF OFFICERS COMMISSIONED IN THE NAVAL RESERVE PURSUANT TO THE PROVISIONS OF THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, AS AMENDED, AND THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737, AS AMENDED.

YOUR FIRST QUESTION IS WHETHER THE APPROPRIATION "1PAY AND SUBSISTENCE OF NAVAL PERSONNEL" OR THE APPROPRIATION " NAVAL RESERVE" IS CHARGEABLE WITH THE PAY AND ALLOWANCES OF OFFICERS COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 OR THE NAVAL AVIATION CADET ACT OF 1942, SUPRA, WHO ARE ASSIGNED TO THE PEACETIME RESERVE PROGRAM PRIOR TO THE EXPIRATION OF THE SEVEN-YEAR PERIOD NEXT FOLLOWING COMMISSIONING FROM AVIATION CADET STATUS, WITHOUT FIRST BEING RELEASED FROM ACTIVE DUTY. THE EVENT IT IS CONCLUDED THAT SUCH PAY AND ALLOWANCES ARE CHARGEABLE TO THE APPROPRIATION " NAVAL RESERVE," YOU PRESENT THE FURTHER QUESTION AS TO WHICH APPROPRIATION WOULD BE CHARGEABLE WITH THE LUMP SUM PAYMENTS AUTHORIZED FOR SUCH PERSONNEL.

THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, AS AMENDED, WAS REPEALED BY SECTION 15 (B) OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 739, AND, HENCE, THE ANSWERS TO THE QUESTIONS PRESENTED MUST BE DETERMINED BY REFERENCE TO THE PROVISIONS OF THIS LATTER ACT.

THE APPLICABLE SECTIONS OF THE NAVAL AVIATION CADET ACT OF 1942 ARE SECTIONS 10, 12, AND 13, 56 STAT. 738, 739, WHICH READ, IN PERTINENT PART, AS FOLLOWS:

SECTION 10:

IN TIME OF PEACE OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) MAY BE EMPLOYED ON ACTIVE DUTY ONLY DURING THE SEVEN-YEAR PERIOD NEXT FOLLOWING THE DATE OF SUCH COMMISSIONING, EXCEPT THAT SUCH OFFICERS MAY BE ORDERED TO ACTIVE DUTY THEREAFTER FOR THE PURPOSE OF INSTRUCTING AND TRAINING MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE.

SECTION 12:

WHEN OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY * * * SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF CONTINUOUS COMMISSION ACTIVE SERVICE * * * PROVIDED, THAT THE LUMP SUM PAYMENTS AUTHORIZED HEREIN SHALL ACCRUE FOR NOT MORE THAN SEVEN YEARS * * *.

SECTION 13:

* * * THE PAY AND ALLOWANCES OF OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 619), WHILE SERVING ON CONTINUOUS ACTIVE DUTY NEXT FOLLOWING THE DATE OF SUCH COMMISSIONING, SHALL BE PAID FROM APPROPRIATIONS " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL" AND " PAY, MARINE CORPS," EXCEPT FOR THOSE OFFICERS ORDERED TO ACTIVE DUTY PURSUANT TO AUTHORITY CONTAINED IN THE EXCEPTION IN SECTION 10 OF THIS ACT, THE PAY AND ALLOWANCES OF WHICH OFFICERS SHALL BE PAID FROM APPROPRIATIONS FOR " NAVAL RESERVE" AND " PAY, MARINE CORPS.'

THE DEPARTMENT OF THE NAVY APPROPRIATION ACT, 1949, PUBLIC LAW 753, APPROVED JUNE 24, 1948, 62 STAT. 586, PROVIDES, UNDER THE HEADING "1NAVAL RESERVE," IN PERTINENT PART, AS FOLLOWS:

FOR ALL EXPENSES NOT OTHERWISE PROVIDED FOR, AUTHORIZED BY THE NAVAL RESERVE ACT OF 1938, AS AMENDED (34 U.S.C. 852), AND THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED (34 U.S.C. 850A), IN CONNECTION WITH ORGANIZING, ADMINISTERING, RECRUITING, INSTRUCTING, TRAINING, AND DRILLING THE NAVAL RESERVE * * * PROVIDED, THAT ONLY THIS APPROPRIATION SHALL BE AVAILABLE FOR SUCH OF THE OBJECTS AND PURPOSES SPECIFIED UNDER THE APPROPRIATIONS " PAY AND SUBSISTENCE OF NAVAL PERSONNEL" AND " TRANSPORTATION AND RECRUITING OF NAVAL PERSONNEL," AS ARE AUTHORIZED BY LAW FOR PERSONNEL OF THE NAVAL RESERVE ON ACTIVE OR INACTIVE DUTY IN CONNECTION WITH ORGANIZING, ADMINISTERING, RECRUITING, INSTRUCTING, TRAINING, AND DRILLING THE NAVAL RESERVE.

UNDER THE PROVISIONS OF SECTION 10 OF THE 1942 ACT, QUOTED ABOVE, THE OFFICERS REFERRED TO MAY NOT BE EMPLOYED ON ACTIVE DUTY DURING PEACETIME BEYOND THE SEVEN-YEAR PERIOD NEXT FOLLOWING THE DATE OF THEIR COMMISSIONING WITH THE EXCEPTION THAT THEY MAY BE ORDERED TO ACTIVE DUTY AFTER SUCH SEVEN-YEAR PERIOD FOR THE PURPOSE OF INSTRUCTING AND TRAINING MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE. WHEN SUCH PROVISIONS ARE READ IN CONJUNCTION WITH THE QUOTED PROVISIONS OF SECTION 13, THE IMPRESSION MIGHT WELL BE HAD THAT DURING SUCH SEVEN YEAR PERIOD THE PAY AND ALLOWANCES OF THE OFFICERS INVOLVED SHOULD BE CHARGED TO THE APPROPRIATIONS FOR PAY AND ALLOWANCES OF PERSONNEL OF THE REGULAR NAVY WITHOUT REGARD TO THE NATURE OF THE DUTIES PERFORMED BY SUCH OFFICERS. HOWEVER, LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 13 OF THE 1942 ACT APPEARED IN SECTION 9 OF THE 1939 ACT, 53 STAT. 820, AND ITS INCLUSION WAS EXPLAINED AS FOLLOWS (SEE PAGE 1015 OF HEARINGS BEFORE THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, DATED APRIL 19, 1939, ON H.R. 5765 WHICH BECAME THE 1939 ACT):

ADMIRAL RICHARDSON. SECTION 9 PLACES THE CHARGES FOR OFFICERS COMMISSIONED PURSUANT TO THIS ACT AND DOING ACTIVE DUTY IN THE NAVY UPON THE APPROPRIATIONS WHICH MAINTAIN THE PERSONNEL OF THE ACTIVE NAVY RATHER THAN, AS NOW FOR AVIATION CADETS, UPON THE APPROPRIATION FOR THE NAVAL RESERVE. THIS APPEARS APPROPRIATE SINCE THE SERVICES OF THESE OFFICERS ARE BEING UTILIZED IN THE FLEET AND IN OTHER STATIONS OF THE ACTIVE NAVY, AND THEY WILL NOT, UNTIL THEY HAVE BEEN RELEASED FROM ACTIVE DUTY, FUNCTION IN THE RESERVE PROPER, BUT RATHER IN THE ACTIVE NAVY.' FROM THAT AND FROM AN ANALYSIS OF THE STATUTORY PROVISIONS INVOLVED, I THINK IT IS REASONABLY CLEAR THAT IT WAS INTENDED THAT APPROPRIATIONS FOR THE PAY AND ALLOWANCES OF PERSONNEL OF THE REGULAR NAVY WERE TO BE CHARGED WITH THE PAY AND ALLOWANCES OF THE RESERVE OFFICERS HERE CONCERNED WHILE SUCH OFFICERS REMAINED ON ACTIVE DUTY GENERALLY WITH THE ACTIVE NAVY RATHER THAN ON ACTIVE DUTY IN CONNECTION WITH INSTRUCTING AND TRAINING THE NAVAL RESERVE. AND WERE THE MATTER OTHERWISE IN DOUBT, SUCH DOUBT WOULD SEEM TO BE RESOLVED BY THE PROVISO CONTAINED IN THE SAID APPROPRIATION " NAVAL SERVE," QUOTED ABOVE. THAT PROVISO FIRST APPEARED IN THE DEPARTMENT OF THE NAVY APPROPRIATION ACT, 1949, SUPRA, AND AT THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 80TH CONGRESS, ON THE DEPARTMENT OF THE NAVY APPROPRIATION BILL FOR 1949 ( H.R. 6772), ITS INCLUSION WAS EXPLAINED AS FOLLOWS (SEE PAGES 254 AND 416 OF THE REPORT OF THE EARINGS):

(PAGE 254):

CLARIFYING LANGUAGE HAS BEEN INCLUDED UNDER THE APPROPRIATION FOR THE NAVAL RESERVE. THE NAVY HAS ESTIMATED FOR IN THE PAST, AND HAS BEEN EXPENDING FROM THIS APPROPRIATION, FUNDS FOR THE PAY, ALLOWANCES, AND TRANSPORTATION, INCLUDING THE TRANSPORTATION OF DEPENDENTS, OF RESERVE PERSONNEL ON ACTIVE DUTY IN CONNECTION WITH THE NAVAL RESERVE PROGRAM. HOWEVER, TO PRECLUDE ANY MISUNDERSTANDING AS TO POSSIBLE DUPLICATIONS OF LANGUAGE FOR THESE EXPENDITURES, THE CHANGE IS REQUESTED.

(PAGE 416):

"THE THIRD CHANGE ADDS A PROVISO WHICH SUPPLEMENTS THE APPROPRIATION LANGUAGE OF " PAY AND SUBSISTENCE TO NAVAL PERSONNEL" AND " TRANSPORTATION AND RECRUITING OF NAVAL PERSONNEL.' IT IS DESIGNED TO MAKE THE APPROPRIATION " NAVAL RESERVE" UNMISTAKABLY AVAILABLE FOR NAVAL RESERVISTS ON DUTY IN DIRECT CONNECTION WITH THE OPERATION OF THIS PROGRAM WHILE THE OTHER APPROPRIATIONS SUPPORT NAVAL RESERVISTS THAT MAY BE ON DUTY IN CONNECTION WITH THE NAVAL ESTABLISHMENT GENERALLY. THE PROVISO STATES THE DIVISION OF RESPONSIBILITY BETWEEN THE APPROPRIATIONS.

THERE WOULD APPEAR TO BE NO REASONABLE BASIS UPON WHICH IT COULD BE CONCLUDED THAT AN OFFICER ALREADY ON ACTIVE DUTY IN A REGULAR NAVY BILLET WOULD HAVE TO BE RELEASED THEREFROM IN ORDER TO CHANGE HIS STATUS TO THAT OF AN OFFICER ON ACTIVE DUTY FOR THE PURPOSE OF INSTRUCTING AND TRAINING MEMBERS OF THE NAVAL RESERVE. THE SAME RESULT WOULD BE ACCOMPLISHED BY THE ISSUANCE OF ORDERS CHANGING THE OFFICER'S STATUS IN THAT RESPECT, AND, IN VIEW OF WHAT IS STATED ABOVE, WHEN SUCH CHANGE IS ACCOMPLISHED HIS PAY AND ALLOWANCES THEREAFTER WOULD BE CHARGEABLE TO THE APPROPRIATION " NAVAL RESERVE.'

AS TO THE LUMP SUM PAYMENT PROVIDED FOR BY SECTION 12 OF THE 1942 ACT, SUPRA, IT IS CLEAR THAT NO RIGHT TO SUCH PAYMENT ACCRUES UNTIL THE DATE ON WHICH THE OFFICER CONCERNED IS RELEASED FROM ACTIVE DUTY AND, ACCORDINGLY, THE APPROPRIATION PROPERLY CHARGEABLE THEREWITH IS THE APPROPRIATION CURRENT AT THAT TIME. HOWEVER, SINCE THE PURPOSE OF AUTHORIZING THE LUMP SUM PAYMENTS WAS PRIMARILY TO OBTAIN THE SERVICES OF SUCH RESERVE OFFICERS FOR SEVERAL YEARS AS NAVAL AVIATORS IN THE FLEET AND IN OTHER STATIONS OF THE ACTIVE NAVY AND NOT FOR THE TRAINING OF OTHER RESERVE OFFICERS IN THE PEACETIME RESERVE PROGRAM, AND SINCE THE ACCRUAL OF SUCH LUMP SUM PAYMENTS WAS TERMINATED JUNE 24, 1948, BY SECTION 13 (C) OF PUBLIC LAW 759, 62 STAT. 623, APPROVED THAT DATE, SO THAT THE PAYMENTS REMAINING TO BE MADE RELATE WHOLLY OR MOSTLY TO PERIODS OF SERVICE OTHER THAN TRAINING THE NAVAL RESERVE, IT SEEMS OBVIOUS THAT CHARGING SUCH PAYMENTS, IN SUBSTANTIAL AMOUNTS, AGAINST CURRENT APPROPRIATIONS FOR THE NAVAL RESERVE WOULD UNFAIRLY BURDEN SUCH APPROPRIATIONS FOR PURPOSES NOT INTENDED OR CONTEMPLATED BY THE CONGRESS. YOU ARE ADVISED, THEREFORE, THAT SUCH LUMP SUM PAYMENTS SHOULD BE MADE FROM THE APPROPRIATION FOR " PAY AND SUBSISTENCE OF NAVAL PERSONNEL," AS BASICALLY PROVIDED BY SECTION 13 OF THE NAVAL AVIATION CADET ACT OF 1942, SUPRA.

YOUR THIRD QUESTION IS WHETHER OFFICERS COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 OR THE NAVAL AVIATION CADET ACT OF 1942, WHO COMPLETE THE SEVEN-YEAR PERIOD OF CONTINUOUS ACTIVE DUTY NEXT FOLLOWING COMPLETION OF FLIGHT TRAINING AS AVIATION CADETS, MAY THEREAFTER BE CONTINUED ON ACTIVE DUTY FOR THE PURPOSE OF INSTRUCTING AND TRAINING MEMBERS OF THE NAVAL RESERVE WITHOUT FIRST BEING RELEASED FROM ACTIVE DUTY TO BREAK THEIR CONTINUITY OF SERVICE, IT BEING NOTED THAT THE UNITED STATES STILL LEGALLY IS IN A STATE OF WAR. IF SO, YOU REQUEST DECISION AS TO THE APPROPRIATION CHARGEABLE WITH THE LUMP SUM PAYMENT IN SUCH CASES.

AS INDICATED ABOVE, THERE WOULD BE NO REASONABLE BASIS UPON WHICH IT COULD BE CONCLUDED THAT A RESERVE OFFICER ALREADY ON ACTIVE DUTY IN A REGULAR NAVY BILLET WOULD HAVE TO BE RELEASED THEREFROM IN ORDER TO CHANGE HIS STATUS TO THAT OF AN OFFICER ON ACTIVE DUTY FOR THE PURPOSE OF INSTRUCTING AND TRAINING MEMBERS OF THE NAVAL RESERVE. SUCH CHANGE IN STATUS PROPERLY MAY BE ACCOMPLISHED MERELY BY THE ISSUANCE OF APPROPRIATE ORDERS WITHOUT AN ACTUAL BREAK IN THE CONTINUITY OF ACTIVE SERVICE, AND THE FACT THAT THE UNITED STATES LEGALLY IS STILL IN A STATE OF WAR WOULD SUPPORT SUCH ACTION SINCE, ALTHOUGH SECTION 10, SUPRA, LIMITS THE LENGTH OF TIME THE OFFICERS MAY BE KEPT ON ACTIVE DUTY IN REGULAR NAVY BILLETS IN TIME OF PEACE, IT DOES NOT PROHIBIT THEIR BEING ON ACTIVE DUTY IN CONNECTION WITH THE RESERVE PROGRAM IN TIME OF WAR. ACCORDINGLY, THE FIRST PART OF YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE AND, IN ANSWER TO THE SECOND PART OF SUCH QUESTION, YOU ARE ADVISED THAT FOR THE REASONS STATED ABOVE, ANY LUMP SUM PAYMENTS PAYABLE UPON RELEASE FROM ACTIVE DUTY IN SUCH CASES SHOULD BE MADE FROM THE APPROPRIATION FOR " PAY AND SUBSISTENCE OF NAVAL PERSONNEL" CURRENT AT THE TIME OF RELEASE.