B-26040, JULY 9, 1942, 22 COMP. GEN. 11

B-26040, JULY 9, 1942, 22 COMP. GEN. 11

SAVINGS DEPOSITS - NAVY ENLISTED MEN TEMPORARILY PROMOTED NAVY ENLISTED MEN TEMPORARILY APPOINTED AS COMMISSIONED OR WARRANT OFFICERS PURSUANT TO THE ACT OF JULY 24, 1941, ARE NOT ENLISTED MEN WITHIN THE MEANING OF THE ACT OF FEBRUARY 9, 1889, GRANTING ENLISTED MEN OF THE NAVY THE PRIVILEGE OF DEPOSITING THEIR SAVINGS AND OF RECEIVING INTEREST THEREON, AND THE PAYMENT OF INTEREST ON SUCH DEPOSITS UNDER THE ANNUAL APPROPRIATION PROVIDING FOR ,INTEREST ON DEPOSITS OF MEN" SUBSEQUENT TO THEIR TEMPORARY APPOINTMENT IS NOT AUTHORIZED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 9, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 13, 1942, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION AS TO WHETHER AN ENLISTED MAN ACCEPTING A TEMPORARY APPOINTMENT AS WARRANT OR COMMISSIONED OFFICER UNDER SECTION 2 (A) (3) OF THE ACT OF JULY 24, 1941 ( PUBLIC LAW NO. 188--- 77TH CONGRESS), MAY CONTINUE TO MAKE DEPOSITS OF HIS SAVINGS AS AUTHORIZED IN ARTICLE 1781, U.S. NAVY REGULATIONS, DURING THE ENLISTMENT CURRENT AT THE TIME OF ACCEPTANCE OF TEMPORARY APPOINTMENTS; AND FURTHER, WHETHER SUCH ENLISTED MEN, UPON DISCHARGE AND REENLISTMENT WHILE HOLDING A TEMPORARY APPOINTMENT, MAY CONTINUE TO MAKE DEPOSITS AS AUTHORIZED IN SAID ARTICLE 1781.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, PROVIDES, WITH RESPECT TO ENLISTED PERSONNEL ACCEPTING TEMPORARY APPOINTMENTS IN ACCORDANCE WITH THE PROVISIONS OF SAID ACT, THAT "THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES, SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER.' IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF MAY 7, 1942, B-24219, IT WAS STATED THAT THE PROVISION WHICH IS QUOTED FROM THE ACT OF JULY 24, 1941---

" * * * RELATES TO THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES THAT MIGHT HAVE ACCRUED OR WHICH MIGHT THEREAFTER ACCRUE TO THEM IN THEIR STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS, BUT IT DOES NOT AUTHORIZE ANY MONEY BENEFITS TO THEM UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS WHILE HOLDING A TEMPORARY APPOINTMENT AS AUTHORIZED IN THE ACT. THIS IS MADE CLEAR BY THE FIRST PROVISO WHICH DENIES TO THEM ANY PAY OR ALLOWANCES WHILE SERVING UNDER A TEMPORARY APPOINTMENT EXCEPT THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. * * *

" * * * THE PERMANENT STATUS WITH ALL ITS RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES CONTINUES, EXCEPT AS TO PAY AND ALLOWANCES; AND THE PAY AND ALLOWANCES ACCRUING UNDER THE TEMPORARY APPOINTMENT ARE SUBJECT TO THE SAVINGS CLAUSE IN LAST PROVISO OF THE SAID SECTION 7 (A). PAY, OR ALLOWANCES PAYABLE IN MONEY, OF ANY KIND OR CHARACTER WHICH MIGHT HAVE ACCRUED UNDER THE PERMANENT STATUS DO NOT ACCRUE TO THE PERSON IN EXCESS OF THAT PROVIDED FOR HIS TEMPORARY OFFICE EXCEPT AS SUCH PAY AND ALLOWANCES MAY FALL WITHIN THE SAVINGS CLAUSE IN THE SAID LAST PROVISO.

UNDER SECTION 7 (A) OF THE ACT OF JULY 24, 1941, THE LOSS OR ABRIDGMENT IN ANY RESPECT WHATEVER OF THE "RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES" OF ENLISTED MEN WHO ACCEPT TEMPORARY COMMISSIONS OR WARRANTS UNDER SAID ACT IS PROHIBITED. THE NAVY DEPARTMENT ACCORDINGLY CONSIDERS THAT ALL ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS UNDER THE SAID ACT OF JULY 24, 1941, ARE AUTHORIZED TO CONTINUE TO MAKE DEPOSITS OF THEIR SAVINGS AS PROVIDED BY ARTICLE 1781, NAVY REGULATIONS.

WITH FURTHER REFERENCE TO THE QUESTION AS TO WHETHER SUCH ENLISTED MEN, UPON DISCHARGE AND REENLISTMENT WHILE HOLDING A TEMPORARY APPOINTMENT, MAY CONTINUE TO MAKE DEPOSITS AS AUTHORIZED IN ARTICLE 1781, NAVY REGULATIONS, IT IS NOTED FROM THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF MAY 7, 1942, THAT "TO DISCHARGE AN ENLISTED MAN WHO HAD BEEN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT WOULD TERMINATE HIS PERMANENT STATUS CONTRARY TO THE PLAIN TERMS OF THE LAW" AND THAT A "DISCHARGE OR REENLISTMENT WHILE A TEMPORARY OFFICER FOR THE SOLE PURPOSE OF ATTEMPTING TO CREATE A RIGHT TO ALLOWANCES,WHEN THE STATUTE SPECIFICALLY REQUIRES THAT THE PERMANENT STATUS SHALL NOT BE TERMINATED, IS WHOLLY WITHOUT AUTHORITY OF LAW.' THESE QUOTED PROVISIONS ARE INTERPRETED TO MEAN THAT SINCE THE PERMANENT ENLISTED STATUS OF MEN GIVEN TEMPORARY WARRANTS OR COMMISSIONS UNDER THE ACT OF JULY 24, 1941, CONTINUES WHILE HOLDING SUCH TEMPORARY APPOINTMENTS THEY MAY BE PERMITTED TO CONTINUE TO MAKE DEPOSITS OF THEIR SAVINGS AS AUTHORIZED IN ARTICLE 1781, NAVY REGULATIONS.

THE NAVY DEPARTMENT ACCORDINGLY CONSIDERS THAT ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, MAY CONTINUE TO MAKE DEPOSITS AS AUTHORIZED IN ARTICLE 1781, NAVY REGULATIONS, DURING THE TENURE OF THEIR TEMPORARY APPOINTMENTS AND THAT THE CURRENT APPROPRIATION UNDER " PAY OF NAVAL PERSONNEL," AS CONTAINED IN THE ANNUAL NAVAL APPROPRIATION ACTS, FOR PAYMENT OF "INTEREST ON DEPOSITS BY MEN," IS AVAILABLE FOR PAYMENT OF INTEREST ON DEPOSITS MADE BY SUCH ENLISTED MEN.

THE NAVY DEPARTMENT REQUESTS AN EXPRESSION OF YOUR VIEWS ON THE QUESTIONS HEREIN PRESENTED, WITH PARTICULAR REFERENCE AS TO WHETHER OR NOT THE APPROPRIATION "INTEREST ON DEPOSITS BY MEN" IS CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF INTEREST ON DEPOSITS MADE BY ENLISTED MEN HOLDING TEMPORARY APPOINTMENTS AS WARRANT OR COMMISSIONED OFFICERS UNDER THE CONDITIONS HEREIN STATED.

THE ACT OF FEBRUARY 9, 1889, 25 STAT. 657, 658, PROVIDES:

THAT ANY ENLISTED MAN OR APPOINTED PETTY OFFICER OF THE NAVY MAY DEPOSIT HIS SAVINGS, IN SUMS NOT LESS THAN FIVE DOLLARS, WITH THE PAYMASTER UPON WHOSE BOOKS HIS ACCOUNT IS BORNE; AND HE SHALL BE FURNISHED WITH A DEPOSIT -BOOK, IN WHICH THE SAID PAYMASTER SHALL NOTE, OVER HIS SIGNATURE, THE AMOUNT, DATE, AND PLACE OF SUCH DEPOSIT. THE MONEY SO DEPOSITED SHALL BE ACCOUNTED FOR IN THE SAME MANNER AS OTHER PUBLIC FUNDS, AND SHALL PASS TO THE CREDIT OF THE APPROPRIATION FOR " PAY FOR THE NAVY," AND SHALL NOT BE SUBJECT TO FORFEITURE BY SENTENCE OF COURT-MARTIAL, BUT SHALL BE FORFEITED BY DESERTION, AND SHALL NOT BE PERMITTED TO BE PAID UNTIL FINAL PAYMENT ON DISCHARGE, OR TO THE HEIRS OR REPRESENTATIVES OF A DECEASED SAILOR, AND THAT SUCH DEPOSIT BE EXEMPT FROM LIABILITY FOR SUCH SAILOR'S DEBTS: PROVIDED, THAT THE GOVERNMENT SHALL BE LIABLE FOR THE AMOUNT DEPOSITED TO THE PERSON SO DEPOSITING THE SAME.

SEC. 2. THAT FOR ANY SUMS NOT LESS THAN FIVE DOLLARS SO DEPOSITED FOR THE PERIOD OF SIX MONTHS OR LONGER, THE SAILOR, ON HIS FINAL DISCHARGE, SHALL BE PAID INTEREST AT THE RATE OF FOUR PERCENTUM PER ANNUM.

THE ABOVE PROVISIONS ARE APPLICABLE ALSO TO DEPOSITS MADE BY ENLISTED MEN OF THE MARINE CORPS. ( ACT OF JUNE 29, 1906, 34 STAT. 579.)

IN 24 COMP. DEC. 179, THERE WAS CONSIDERED THE QUESTION WHETHER ENLISTED MEN WHO WERE TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT OF MAY 22, 1917, 40 STAT. 84, WERE ENTITLED TO BE PAID THEIR DEPOSITS AT THE TIME THEY WERE SO TEMPORARILY WARRANTED OR COMMISSIONED, AND IN ANSWERING THE QUESTION IN THE AFFIRMATIVE IT WAS HELD THAT SUCH PAYMENT WAS THE EQUIVALENT OF A FINAL PAYMENT ON DISCHARGE FOR THE PURPOSE OF EFFECTING THE INTENT OF THE 1889 STATUTE IN ITS APPLICATION TO THE THEN CURRENT CONDITIONS.

THE PROVISIONS OF SECTION 7 OF THE ACT OF MAY 22, 1917, 40 STAT. 86, WERE PRACTICALLY IDENTICAL TO THE CORRESPONDING PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, INSOFAR AS DEPOSITS UNDER THE ACT OF FEBRUARY 9, 1889, ARE CONCERNED. SUCH TEMPORARY OFFICERS APPOINTED UNDER THE ACT OF JULY 24, 1941, ARE NOT ENLISTED MEN WITHIN THE MEANING OF THE ACT OF FEBRUARY 9, 1889, AND THE PAYMENT OF INTEREST ON SUCH DEPOSITS UNDER THE APPROPRIATION PROVIDING FOR "INTEREST ON DEPOSITS OF MEN" SUBSEQUENT TO THEIR TEMPORARY APPOINTMENT IS NOT AUTHORIZED. SEE, IN THIS CONNECTION, NOTES TO SECTION 1409 OF THE REVISED STATUTES AT PAGE 524-525 OF LAWS RELATING TO THE NAVY, ANNOTATED.