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B-146659, DECEMBER 18, 1961, 41 COMP. GEN. 406

B-146659 Dec 18, 1961
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THE PROVISION IN PARAGRAPH (E) RELATIVE TO THE TEMPORARY PROMOTION OF SUCH DENTAL OFFICERS AT ANY TIME AFTER 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL IS NOT CONSTRUED AS BARRING ALL PROMOTIONS OF LIEUTENANT (JUNIOR GRADE) DENTAL CORPS OFFICERS UNTIL 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL. AN INITIAL APPOINTMENT OF A DENTAL SCHOOL GRADUATE AS AN OFFICER IN THE DENTAL CORPS OF THE NAVY IS SPECIFICALLY REQUIRED BY PARAGRAPHS (E) AND (F) OF SECTION 201 OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947 TO BE MADE IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND A PERSON WHO HAS JUST GRADUATED FROM DENTAL SCHOOL MAY NOT BE REGARDED AS ELIGIBLE FOR AN INITIAL APPOINTMENT IN THE GRADE OF LIEUTENANT.

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B-146659, DECEMBER 18, 1961, 41 COMP. GEN. 406

PAY - MEDICAL AND DENTAL OFFICERS - NAVY DENTAL CORPS - PROMOTION ELIGIBILITY--- PAY - MEDICAL AND DENTAL OFFICERS - NAVY DENTAL CORPS - APPOINTMENT GRADE--- PAY - MEDICAL AND DENTAL OFFICERS - NAVY DENTAL CORPS - PROMOTION ELIGIBILITY IN VIEW OF THE ADDITIONAL INDUCEMENTS OFFERED PHYSICIANS AND DENTISTS TO ENTER THE MILITARY SERVICE, SUCH AS THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED FOR DENTISTS AT THE TIME OF APPOINTMENT AS LIEUTENANTS (JUNIOR GRADE) IN THE NAVY AND THE ASSIGNMENT OF LINE RUNNING MATES FOR PROMOTION PURPOSES PROVIDED IN PARAGRAPHS (B) AND (F) OF SECTION 201 OF THE ARMY- 1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, THE PROVISION IN PARAGRAPH (E) RELATIVE TO THE TEMPORARY PROMOTION OF SUCH DENTAL OFFICERS AT ANY TIME AFTER 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL IS NOT CONSTRUED AS BARRING ALL PROMOTIONS OF LIEUTENANT (JUNIOR GRADE) DENTAL CORPS OFFICERS UNTIL 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL. AN INITIAL APPOINTMENT OF A DENTAL SCHOOL GRADUATE AS AN OFFICER IN THE DENTAL CORPS OF THE NAVY IS SPECIFICALLY REQUIRED BY PARAGRAPHS (E) AND (F) OF SECTION 201 OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947 TO BE MADE IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND A PERSON WHO HAS JUST GRADUATED FROM DENTAL SCHOOL MAY NOT BE REGARDED AS ELIGIBLE FOR AN INITIAL APPOINTMENT IN THE GRADE OF LIEUTENANT. A DENTIST WHO ACCEPTED AN APPOINTMENT AS LIEUTENANT (JUNIOR GRADE) IN THE NAVY DENTAL CORPS UPON GRADUATION FROM DENTAL SCHOOL ( JUNE 4, 1958) AND WHO WAS ASSIGNED A LINE OFFICER AS RUNNING MATE WHO WAS ELIGIBLE FOR PROMOTION TO LIEUTENANT 3 DAYS PRIOR TO THE DATE OF APPOINTMENT MAY NOT HAVE THE INITIAL APPOINTMENT REGARDED AS ERRONEOUSLY MADE IN THE JUNIOR GRADE RATHER THAN IN THE GRADE OF LIEUTENANT, BECAUSE INITIAL APPOINTMENTS OF DENTAL GRADUATES ARE REQUIRED TO BE MADE IN THE JUNIOR GRADE AND UNDER PARAGRAPH (F) OF SECTION 201 OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, ASSIGNMENTS OF LINE RUNNING MATES ARE REQUIRED TO BE MADE IN THE SAME GRADE (JUNIOR GRADE); HOWEVER, SINCE THE OFFICER ACCEPTED AN APPOINTMENT AS LIEUTENANT ON JULY 3, 1958, AS A RESULT OF THE VACANCY, THE OFFICER'S RIGHT TO PAY OF THAT GRADE FROM THE DATE THE LINE OFFICER WHO SHOULD HAVE BEEN ASSIGNED AS RUNNING MATE WAS PROMOTED WILL NOT BE QUESTIONED.

TO THE SECRETARY OF THE NAVY, DECEMBER 18, 1961:

REFERENCE IS MADE TO LETTER OF AUGUST 11, 1961, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING RECONSIDERATION OF A NOTICE OF EXCEPTION ISSUED AGAINST THE JULY 1958 PAY ACCOUNT OF LIEUTENANT ROBERT E. HUETTNER, DENTAL CORPS, UNITED STATES NAVY, COVERING THE DIFFERENCE BETWEEN HIS PAY AS LIEUTENANT AND LIEUTENANT (JUNIOR GRADE) FOR THE PERIOD JULY 3, 1958, TO JUNE 3, 1959. THE REQUEST IS STATED TO HAVE BEEN CLEARED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. 595.

THE NOTICE OF EXCEPTION WAS BASED ON THE BELIEF THAT PAYMENT TO THE OFFICER OF THE PAY OF A LIEUTENANT IN THE DENTAL CORPS WAS IMPROPER UNDER THE PROVISIONS OF SECTION 201 (E) OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, AS AMENDED BY THE ACT OF APRIL 30, 1956, 70 STAT. 119, 34 U.S.C. APP. 51B (E) (1952 USED., SUPP. V), RELATING TO PROMOTION TO LIEUTENANT AT ANY TIME AFTER 1 YEAR AFTER THE COMPLETION OF DENTAL SCHOOL. THE RECORD SHOWS THAT LIEUTENANT HUETTNER ACCEPTED AN APPOINTMENT AS A LIEUTENANT (JUNIOR GRADE) UPON THE COMPLETION OF DENTAL SCHOOL ON JUNE 4, 1958. IT IS STATED THAT THE LINE OFFICER WHO WAS ASSIGNED AS HIS RUNNING MATE, UNDER APPLICABLE PROVISIONS OF LAW AND REGULATIONS, WAS ELIGIBLE FOR PROMOTION TO THE GRADE OF LIEUTENANT AND THAT IN THE MIDDLE OF JUNE 1958, IT BECAME APPARENT THAT A VACANCY HAD OCCURRED ON JUNE 1, 1958, FOR SUCH PROMOTION. LIEUTENANT HUETTNER'S APPOINTMENT AS LIEUTENANT DATED JUNE 27, 1958, WAS ACCEPTED BY HIM ON JULY 3, 1958.

SECTION 201 OF THE ARMY-1NAVY-1PUBLIC HEALTH SERVICE MEDICAL OFFICER PROCUREMENT ACT OF 1947, WAS AMENDED BY THE ACT OF APRIL 30, 1956, PUBLIC LAW 497, 70 STAT. 119, 34 U.S.C. APP. 51B (1952 USED., SUPP. V), TO INCREASE BY 1 YEAR, THE 4 AND 3 YEARS, RESPECTIVELY, OF CONSTRUCTIVE CREDIT GRANTED TO MEDICAL AND DENTAL OFFICERS AT THE TIME OF APPOINTMENT, SUCH SERVICE TO BE CREDITED FOR PURPOSES OF DETERMINING LINEAL POSITION, PERMANENT GRADE, POSITION ON A PROMOTION LIST, SENIORITY IN PERMANENT GRADE AND ELIGIBILITY FOR PROMOTION. PARAGRAPH (E) OF THAT SECTION PERMITTED MEDICAL AND DENTAL OFFICERS TO BE PROMOTED TO THE TEMPORARY GRADE OF CAPTAIN IN THE ARMY AND AIR FORCE AND LIEUTENANT IN THE NAVY AT ANY TIME AFTER 1 YEAR FOLLOWING COMPLETION OF MEDICAL OR DENTAL SCHOOL. PARAGRAPH (F), 34 U.S.C. APP. 51B (F) (1952 USED., SUPP. V), PROVIDED THAT AN OFFICER OF THE MEDICAL CORPS OR THE DENTAL CORPS OF THE NAVY APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) SHOULD BE ASSIGNED AS HIS RUNNING MATE A JUNIOR LINE OFFICER IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) BY THE METHOD THERE PRESCRIBED.

PARAGRAPH I (3) OF REGULATIONS PROMULGATED MAY 16, 1956, UNDER AUTHORITY OF SECTION 202 OF THE 1947 ACT, AS AMENDED, 34 U.S.C. APP. 21D (1952 USED., SUPP. V), PROVIDES THAT IF A RUNNING MATE WHO IS ASSIGNED TO THE APPLICANT FOR APPOINTMENT UNDER THAT ACT IS ON A PROMOTION LIST TO THE NEXT HIGHER GRADE, THE APPLICANT SHALL BE APPOINTED IN THE LOWER GRADE AND PROMOTED WHEN HIS RUNNING MATE IS PROMOTED. IT IS REPORTED THAT, AT THE TIME OF LIEUTENANT HUETTNER'S APPOINTMENT (STATED TO BE MAY 13, 1958, ALTHOUGH HE WAS NOT ELIGIBLE TO BE APPOINTED UNTIL JUNE 4, 1958), LINE OFFICERS WHO HAD 4 YEARS' ACTUAL SERVICE HAD BEEN SELECTED FOR PROMOTION AND WERE ON A PROMOTION LIST WAITING VACANCIES IN THE GRADE OF LIEUTENANT.

THE REASONS FOR ENACTING PARAGRAPH (E) OF SECTION 201, AS AMENDED BY PUBLIC LAW 497, ARE NOT CLEAR. HOWEVER, SINCE IT APPEARS THAT ALL OTHERWISE QUALIFIED LIEUTENANT (JUNIOR GRADE) LINE OFFICERS WITH 4 YEARS' ACTUAL SERVICE WERE BEING PROMOTED TO THE GRADE OF LIEUTENANT AT THAT TIME AS VACANCIES OCCURRED, IT WOULD BE STRANGE IF THE CONGRESS IN ENACTING A LAW DESIGNED TO INDUCE--- BY MEANS OF AUTHORIZING ADDITIONAL CONSTRUCTIVE SERVICE--- DOCTORS AND DENTISTS TO ENTER THE MILITARY SERVICE HAD INTENDED THAT DENTISTS APPOINTED UNDER ITS PROVISIONS WITH 4 YEARS' CONSTRUCTIVE SERVICE SHOULD NOT BE PROMOTED UNTIL AFTER 1 YEAR FOLLOWING THE COMPLETION OF DENTAL SCHOOL, IN MOST IF NOT ALL CASES, MONTHS AFTER THE RUNNING MATES WHO WERE AUTHORIZED TO BE ASSIGNED TO THEM UNDER THAT ACT HAD BEEN PROMOTED. 10 U.S.C. 5768 PROVIDES THAT THE NORMAL TERM OF SERVICE OF MALE LINE OFFICERS OF THE NAVY IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) NOT DESIGNATED FOR LIMITED DUTY IS 6 YEARS' COMMISSIONED SERVICE. POSSIBLY PARAGRAPH (E) OF SECTION 201 WAS ENACTED WITH SUCH PROVISIONS IN MIND AND TO PERMIT PROMOTIONS OF DENTAL OFFICERS AFTER 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL IN THE EVENT THAT VACANCIES DID NOT OCCUR FOR SOME OF THEIR PROMOTION LIST RUNNING MATES WITHIN THAT TIME. ALSO, FUTURE SITUATIONS MIGHT HAVE BEEN ENVISIONED WHEREIN GRADUATES OF DENTAL SCHOOLS COMMISSIONED AS LIEUTENANTS (JUNIOR GRADE) WOULD BE ASSIGNED RUNNING MATES WHO WERE NOT ON A PROMOTION LIST. WHILE THE MATTER IS NOT FREE FROM DOUBT, WE BELIEVE THAT THE INTENT INDICATED BY THE LANGUAGE APPEARING IN PARAGRAPHS (B) AND (F) OF SECTION 201, 34 U.S.C. APP. 51B (B) AND (F) (1952 USED., SUPP. V), IS SUCH AS TO PRECLUDE AN INTERPRETATION OF PARAGRAPH (E) WHICH WOULD BAR ALL PROMOTIONS OF LIEUTENANT (JUNIOR GRADE) DENTAL CORPS OFFICERS UNTIL 1 YEAR AFTER COMPLETION OF DENTAL SCHOOL.

THE UNDER SECRETARY OF THE NAVY IS OF THE VIEW THAT LIEUTENANT HUETTNER'S INITIAL APPOINTMENT IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) WAS ERRONEOUS FOR THE STATED REASON THAT SUCH APPOINTMENT DID NOT REFLECT THE 4 YEARS' MANDATORY CONSTRUCTIVE SERVICE TO WHICH HE WAS ENTITLED AT THE TIME OF HIS ENTRY INTO THE REGULAR NAVY AND THAT IF IT HAD BEEN KNOWN THAT A VACANCY IN THE GRADE OF LIEUTENANT WOULD OCCUR ON JUNE 1, 1958, FOR HIS RUNNING MATE, SUCH INITIAL APPOINTMENT WOULD HAVE BEEN MADE IN THE GRADE OF LIEUTENANT RATHER THAN LIEUTENANT (JUNIOR GRADE).

WE FIND NOTHING IN THE 1947 ACT, AS AMENDED BY PUBLIC LAW 497, WHICH REQUIRES OR EVEN PERMITS APPOINTMENTS IN THE GRADE OF LIEUTENANT IN THE DENTAL CORPS OF PERSONS HAVING THE QUALIFICATIONS POSSESSED BY LIEUTENANT HUETTNER AT THE TIME OF HIS GRADUATION FROM DENTAL SCHOOL ON JUNE 4, 1958. PARAGRAPHS (E) AND (F) OF SECTION 201 OF THAT ACT, AS SO AMENDED, CLEARLY INDICATE THAT INITIAL APPOINTMENTS IN THE DENTAL CORPS, UNDER THOSE STATUTORY PROVISIONS, OF PERSONS HAVING SUCH QUALIFICATIONS ARE TO BE IN THE GRADE OF LIEUTENANT (JUNIOR GRADE). 10 U.S.C. 5578 (A) EXPRESSLY PROVIDED THAT APPOINTMENTS OF PERSONS WITH SUCH QUALIFICATIONS "SHALL BE IN THE GRADE OF LIEUTENANT (JUNIOR GRADE).' IT APPEARS THAT SUCH LANGUAGE WAS FIRST ADDED TO THE THEN CURRENT PROVISIONS OF LAW WHEN SUCH PROVISIONS WERE CODIFIED IN THE ACT OF AUGUST 10, 1956, 70A STAT. 322. WHILE SECTION 49 (A) OF THAT ACT, 70A STAT. 640, PROVIDED THAT LAWS EFFECTIVE AFTER MARCH 31, 1955, THAT WERE INCONSISTENT WITH THAT ACT "SHALL BE CONSIDERED AS SUPERSEDING IT TO THE EXTENT OF THE INCONSISTENCY" AND PUBLIC LAW 497 WAS ENACTED AFTER MARCH 31, 1955, WE FIND NO INCONSISTENCY BETWEEN 10 U.S.C. 5578 (A) AND PUBLIC LAW 497, AS FAR AS THE MATTER HERE INVOLVED IS CONCERNED.

IT IS NOT READILY APPARENT HOW LIEUTENANT HUETTNER, WHO WAS NOT ELIGIBLE FOR APPOINTMENT AS A LIEUTENANT (JUNIOR GRADE) IN THE DENTAL CORPS UNTIL JUNE 4, 1958, COULD HAVE HAD ASSIGNED AS HIS RUNNING MATE A LINE OFFICER WHO WAS ON A PROMOTION LIST AWAITING A VACANCY IN THE GRADE OF LIEUTENANT AND FOR WHOM SUCH VACANCY OCCURRED ON JUNE 1, 1958. PRESUMABLY HIS PROMOTION TO THE GRADE OF LIEUTENANT WAS MADE EFFECTIVE AS OF THAT DATE. 10 U.S.C. 5769 (B) (1) AND 5775 (A) (1). AS INDICATED ABOVE, WE THINK THAT LIEUTENANT HUETTNER WAS PROPERLY INITIALLY APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE). PARAGRAPH (F), SECTION 201 OF THE 1947 ACT, AS AMENDED BY PUBLIC LAW 497, EXPRESSLY REQUIRES THAT A DENTAL CORPS OFFICER APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) SHALL HAVE ASSIGNED AS HIS RUNNING MATE A JUNIOR LINE OFFICER OF THE SAME GRADE. SINCE THE OFFICER WHO WAS ASSIGNED AS LIEUTENANT HUETTNER'S RUNNING MATE WAS NOT A LIEUTENANT (JUNIOR GRADE) WHEN LIEUTENANT HUETTNER BECAME ELIGIBLE FOR APPOINTMENT IN THE DENTAL CORPS, IT APPEARS THAT ANOTHER LINE OFFICER HOLDING THAT GRADE THEN ON THE PROMOTION LIST SHOULD HAVE BEEN ASSIGNED AS HIS RUNNING MATE. SINCE SUCH ACTION WAS NOT TAKEN, WE CANNOT DETERMINE, ON THE PRESENT RECORDS, WHEN HE BECAME ENTITLED TO THE PAY OF A LIEUTENANT. HOWEVER, SINCE HE ACTUALLY ACCEPTED AN APPOINTMENT AS A LIEUTENANT ON JULY 3, 1958, WE WILL NOT QUESTION HIS RIGHT TO THE PAY OF THAT GRADE FROM THE DATE THE LIEUTENANT (JUNIOR GRADE) LINE OFFICER WHO SHOULD HAVE BEEN ASSIGNED AS HIS RUNNING MATE WAS PROMOTED TO THE GRADE OF LIEUTENANT. UPON RECEIPT OF INFORMATION AS TO THIS MATTER, THE AUDIT EXCEPTION WILL BE RESTATED IF IT THEN STILL APPEARS THAT HE RECEIVED THE PAY OF THAT GRADE FOR A PERIOD PRIOR TO THE TIME A RIGHT TO SUCH PAY ACCRUED. IF SUCH INFORMATION SHOWS THAT NO OVERPAYMENT HAS BEEN MADE THE AUDIT EXCEPTION WILL BE REMOVED.

IT IS SUGGESTED THAT IF CURRENT REGULATIONS AND PROMOTION PROCEDURES ARE CONTRARY TO THE CONCLUSIONS EXPRESSED HEREIN, THEY BE REEXAMINED WITH A VIEW TO CHANGING THEM WHERE NECESSARY.

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