A-16666, MAR. 1, 1968

A-16666, MAR. 1, 1968

ARMED SERVICES - PAY - TEMPORARY PROMOTIONS DECISION TO RETIRED NAVY RESERVE OFFICER DISALLOWING CLAIM FOR DIFFERENCE IN ACTIVE DUTY PAY OF COMMANDER AND OF LIEUTENANT COMMANDER. SINCE UNDER SEC. 5 OF ACT OF JUNE 30, 1942, OFFICER RECEIVED PAY AND ALLOWANCES ON BASIS OF RANK UNDER TEMPORARY APPOINTMENT CLAIM FOR ADDITIONAL ACTIVE DUTY PAY WOULD HAVE TO BE DISALLOWED EVEN IF NOT BARRED BY ACT OF OCT. 9, 1940.

TO COMMANDER ROY A. DARLING, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1968, ASSERTING A CLAIM FOR THE DIFFERENCE IN THE ACTIVE DUTY PAY OF A COMMANDER AT THE RATE OF $500 PER MONTH AND THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER AT THE RATE OF $437.50 PER MONTH FOR THE PERIOD AUGUST 27, 1943, TO DECEMBER 15, 1945, INCLUSIVE.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, FOREVER BARS CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS SUCH CLAIM IS RECEIVED IN THIS OFFICE "* * * WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' SEE OUR LETTER TO YOU OF AUGUST 15, 1967, A-16666. YOUR CLAIM FOR ADDITIONAL ACTIVE DUTY PAY DURING THE PERIOD AUGUST 27, 1943, TO DECEMBER 15, 1945, WAS NOT RECEIVED IN THIS OFFICE WITHIN TEN FULL YEARS AFTER SUCH CLAIM ACCRUED AND, HENCE, ACTION THEREON IS BARRED BY THE 1940 LAW.

HOWEVER, NOTWITHSTANDING THE EXPRESS PROVISIONS OF THE 1940 LAW, YOU MAY BE ADVISED THAT THE INFORMATION CONTAINED IN AVAILABLE RECORDS DOES NOT SUPPORT YOUR CLAIM. ALNAV NO. 177 OF SEPTEMBER 12, 1944, IN PERTINENT PART READS AS FOLLOWS:

"THE PRESIDENT ON 12 SEPTEMBER 1944 APPOINTED THE FOLLOWING LIEUTENANT COMMANDERS OF THE RETIRED LIST OF THE REGULAR NAVY AND NAVAL RESERVE TO THE RANK OF COMMANDER FOR TEMPORARY SERVICE TO RANK FROM 27 AUGUST 1943 SUBJECT TO THE PROVISIONS OF BUPERS CIRLTR 222 43.'

* * * * * * * "NAVAL RESERVE: ROY ANDREW DARLING"

THE ACT OF JUNE 30, 1942, PUBLIC LAW 639, 77TH CONGRESS, CH. 462, 56 STAT. 463-465, SUSPENDED THE PROVISIONS OF THEN EXISTING LAW RELATING TO THE PERMANENT PROMOTION OR ADVANCEMENT OF OFFICERS OF THE NAVY, MARINE CORPS AND COAST GUARD, TOGETHER WITH THE RESERVE COMPONENTS UNTIL JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE WAR THEN CURRENT WAS ENDED. INSOFAR AS HEREIN PERTINENT IT WAS PROVIDED IN NAVY DEPARTMENT CIRCULAR LETTER NO. 101-42, DATED JULY 16, 1942, THAT "* * * ALL PROMOTIONS DURING THE LIFE OF THIS ACT WILL BE MADE ON A TEMPORARY BASIS PURSUANT TO THE PROVISIONS OF THE ACT APPROVED JULY 24, 1941 (PUBLIC LAW NO. 188, 77TH CONG.).' CONSEQUENTLY, IT WILL BE SEEN THAT YOUR APPOINTMENT BY THE PRESIDENT ON SEPTEMBER 12, 1944, TO THE RANK OF COMMANDER IN THE NAVAL RESERVE "FOR TEMPORARY SERVICE TO RANK FROM 27 AUGUST 1943" WAS EFFECTED IN ACCORDANCE WITH PUBLIC LAW 188, 77TH CONGRESS, THE TEMPORARY PROMOTION ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603-605.

SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, PROVIDED AS FOLLOWS:

"SEC. 5. PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 (PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.'

UNDER THE EXPLICIT TERMS OF THE ABOVE-QUOTED STATUTORY PROVISIONS YOU BECAME ENTITLED TO THE PAY AND ALLOWANCES OF A COMMANDER ON SEPTEMBER 12, 1944, THE DATE ON WHICH YOUR TEMPORARY APPOINTMENT TO THAT GRADE WAS MADE BY THE PRESIDENT AS EVIDENCED IN ALNAV 177. YOUR NAVAL PAY RECORDS COVERING THE PERIOD JULY 1, 1944, TO DECEMBER 15, 1945, INCLUSIVE (THE LATTER DATE WAS THE LAST DAY THAT YOU WERE ON ACTIVE DUTY BEFORE REVERTING TO AN INACTIVE STATUS ON THE RETIRED LIST), SHOW THAT YOU WERE PROPERLY CREDITED ACTIVE DUTY PAY COMMENCING SEPTEMBER 12, 1944, AT THE RATE OF $500 PER MONTH AS A COMMANDER WITH OVER 30 YEARS OF SERVICE. THUS YOU WOULD NOT BE ENTITLED TO RECEIVE ANY ADDITIONAL ACTIVE DUTY PAY EVEN IF YOUR CLAIM WERE NOT BARRED BY THE ACT OF OCTOBER 9, 1940.