A-20182, NOVEMBER 29, 1927, 7 COMP. GEN. 361

A-20182, NOVEMBER 29, 1927, 7 COMP. GEN. 361

PAY - REDUCTION IN RATING - NAVY ENLISTED MAN THE LONG CONTINUED AND UNIFORM CONSTRUCTION BY THE NAVY DEPARTMENT THAT THE PROVISIONS OF ARTICLE 24 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY PERTAINING TO "REDUCTION OF ANY RATING ESTABLISHED BY HIMSELF" APPLY TO THE OFFICE OF THE COMMANDING OFFICER OF THE PARTICULAR SHIP OR STATION, AND NOT TO THE INDIVIDUAL, WILL BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF ACCOUNTS.

COMPTROLLER GENERAL MCCARL TO MARTIN J. MCMANUS, NOVEMBER 29, 1927:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR REVIEW OF SETTLEMENT CLAIM NO. 0193173, DATED OCTOBER 5, 1927, DISALLOWING YOUR CLAIM FOR DIFFERENCE BETWEEN PAY OF CHIEF MACHINIST'S MATE (ACTING APPOINTMENT) AND MACHINIST'S MATE, FIRST CLASS, UNITED STATES NAVY, FROM JULY 9, 1920, TO JUNE 22, 1927, THE BASIS OF YOUR CLAIM BEING THAT YOU WERE ILLEGALLY DISRATED FROM THE HIGHER RATING ON JULY 9, 1920. IT APPEARS THAT YOU ENLISTED IN THE NAVY DECEMBER 10, 1917, EXTENDED YOUR ENLISTMENT FOR TWO YEARS FROM THE DATE OF ITS EXPIRATION, AUGUST 23, 1919, AND WERE DISCHARGED JUNE 7, 1921; THAT YOU REENLISTED JUNE 23, 1921, UNDER WHICH REENLISTMENT AS SUBSEQUENTLY EXTENDED YOU SERVED UNTIL JUNE 22, 1927, WHEN YOU WERE DISCHARGED.

IT ALSO APPEARS THAT WHILE YOU WERE SERVING AT THE RECEIVING SHIP,NAVAL AIR STATION, PENSACOLA, FLA., YOU WERE RATED BY THE COMMANDING OFFICER OF THAT VESSEL AUGUST 1, 1919, CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, AND THAT YOU WERE DISRATED TO MACHINIST'S MATE, FIRST CLASS, ON JULY 9, 1920, BY THE COMMANDING OFFICER OF THE SAME VESSEL, STATED TO HAVE BEEN AS A PUNISHMENT FOR AN OFFENSE.

YOU CONTEND THAT THIS DISRATING WAS IN VIOLATION OF ARTICLE 24 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY IN THAT THE RATING AND DISRATING WERE NOT DONE BY ONE AND THE SAME PERSON, AND WAS THEREFORE ILLEGAL AND OF NO EFFECT.

BEFORE CONSIDERING THE QUESTION THUS PRESENTED IT MAY BE NOTED THAT THIS DISRATING OCCURRED WHILE YOU WERE SERVING UNDER YOUR FIRST ENLISTMENT AS EXTENDED. YOU SUBSEQUENTLY REENLISTED JUNE 23, 1921, AS MACHINIST'S MATE, FIRST CLASS, AND YOUR RATING UNDER THIS REENLISTMENT IS NOT AFFECTED BY THE LEGALITY OR ILLEGALITY OF YOUR DISRATING IN A FORMER ENLISTMENT. HAVING REENLISTED ON JUNE 23, 1921, IN THE RATING OF MACHINIST'S MATE, FIRST CLASS, YOU WERE ENTITLED TO THE PAY OF THAT RATING UNDER THAT REENLISTMENT AND NOT THE PAY OF A RATING WHICH YOU HELD IN THE FORMER ENLISTMENT. FOR THIS REASON THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE OF PAY FOR THE PERIOD FROM JUNE 23, 1921, TO JUNE 22, 1927, IS SUSTAINED.

THE QUESTION AS TO THE ILLEGALITY OF THE DISRATING WILL NOT BE CONSIDERED AS AFFECTING YOUR CLAIM FOR THE PERIOD FROM JULY 9, 1920, THE DATE OF THE DISRATING, TO JUNE 7, 1921, THE DATE OF YOUR DISCHARGE UNDER THE THEN CURRENT ENLISTMENT.

ARTICLE 24 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, SECTION 1624, REVISED STATUTES, PROVIDES THAT NO COMMANDER OF A VESSEL SHALL "INFLICT, OR CAUSE TO BE INFLICTED, UPON ANY PETTY OFFICER, OR PERSON OF INFERIOR RATING, OR MARINE, FOR A SINGLE OFFENSE, OR AT ANY ONE TIME, ANY OTHER THAN ONE OF THE FOLLOWING PUNISHMENTS, NAMELY:

FIRST. REDUCTION OF ANY RATING ESTABLISHED BY HIMSELF.

THE PARTICULAR QUESTION HERE PRESENTED HAS NEVER BEEN DECIDED BY THIS OFFICE OR THE COURTS. IT IS UNDERSTOOD, HOWEVER, THAT ARTICLE 24 PERTAINING TO "REDUCTION OF ANY RATING ESTABLISHED BY HIMSELF" HAS BEEN UNIFORMLY CONSTRUED BY THE DEPARTMENT TO APPLY TO THE OFFICE OF THE COMMANDING OFFICER OF THE PARTICULAR SHIP OR STATION, AND NOT TO THE COMMANDING OFFICER PERSONALLY.

THIS CONSTRUCTION IS CLEARLY STATED IN BUREAU OF NAVIGATION MANUAL, 1925, AS FOLLOWS:

D-5113. * * *

(2) THE PROVISIONS OF ARTICLE 24 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY PERTAINING TO ,REDUCTION OF ANY RATING ESTABLISHED BY HIMSELF" APPLY TO THE OFFICE OF THE COMMANDING OFFICER OF THE PARTICULAR SHIP OR STATION.

(A) FOR EXAMPLE, IF AN ENLISTED MAN ATTACHED TO A SUBMARINE BASE IS RATED BY HIS COMMANDING OFFICER, CAPT. JOHN DOE, THAT MAN MAY BE LATER REDUCED AS A PUNISHMENT, IN ACCORDANCE WITH ARTICLE 24, BY CAPT. JOHN DOE. CAPT. JOHN DOE IS RELIEVED OF HIS COMMAND, HIS SUCCESSOR IN OFFICE MAY ALSO REDUCE THE MAN AS A PUNISHMENT IN ACCORDANCE WITH ARTICLE 24.

(B) IF, HOWEVER, THE ABOVE-MENTIONED MAN, RATED BY THE COMMANDING OFFICER OF THE SUBMARINE BASE, IS TRANSFERRED TO ANOTHER SHIP OR STATION, HE MAY NOT THEN BE REDUCED IN RATING UNDER THE PROVISIONS OF ARTICLE 24, AS THE POWER OF THE COMMANDING OFFICER TO REDUCE IN RATING AS A PUNISHMENT IS RESTRICTED TO THE COMMAND IN WHICH THE MAN RECEIVED HIS RATING.

SEE ALSO BUR.NAV.MANUAL, 1921, ARTICLE D-4561 (2).

THIS LONG-CONTINUED AND UNIFORM CONSTRUCTION OF ARTICLE 24 BY THE DEPARTMENT CHARGED WITH ITS EXECUTION IS ENTITLED TO GREAT WEIGHT, AND IT IS NOT SO CLEARLY WRONG AS WOULD JUSTIFY THIS OFFICE IN OVERTURNING IT.

THIS CASE IS TO BE DISTINGUISHED FROM THAT OF DEMPSEY, DECIDED JANUARY 30, 1923, REVIEW NO. 2936, TO WHICH YOU REFER, IN THAT DEMPSEY'S RATING, FROM WHICH HE WAS REDUCED BY THE COMMANDING OFFICER OF THE U.S.S. GILMER, WAS NOT ESTABLISHED BY THE COMMANDING OFFICER OF THAT VESSEL.