A-4307, JANUARY 2, 1925, 4 COMP. GEN. 577

A-4307, JANUARY 2, 1925, 4 COMP. GEN. 577

NAVY PAY, PROMOTION - WARRANT OFFICER APPOINTED ENSIGN WHERE THE APPOINTMENT OF A WARRANT OFFICER OF THE NAVY TO ENSIGN ENTAILS A REDUCTION IN PAY, THE ACT OF MARCH 4, 1913, 37 STAT. 892, WHICH PROVIDES THAT OFFICERS OF THE NAVY PROMOTED SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER RANK FROM THE DATE STATED IN THEIR COMMISSION, DOES NOT REQUIRE THE REFUND OF THE HIGHER PAY RECEIVED AS WARRANT OFFICER FROM THE DATE STATED IN THE COMMISSION AS ENSIGN TO THE DATE OF ACCEPTANCE OF SAID COMMISSION.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 2, 1925:

THERE IS FOR CONSIDERATION THE RATE OF PAY TO WHICH GEORGE WASHINGTON ALLEN, ENSIGN, UNITED STATES NAVY, IS ENTITLED FOR THE PERIOD FROM FEBRUARY 9 TO MAY 27, 1924.

THE FACTS OF THE CASE ARE STATED AS FOLLOWS:

* * * ON MAY 27, 1924, WHILE HOLDING RANK AS WARRANT OFFICER, ALLEN ACCEPTED COMMISSION DATED MAY 5, 1924, AS ENSIGN TO RANK FROM FEBRUARY 9, 1924. IT HAS BEEN HELD THAT ENSIGN ALLEN, AFTER BEING COMMISSIONED AS ENSIGN, IS ENTITLED TO PAY ONLY AS ENSIGN IN FIRST PAY PERIOD AFTER THREE YEARS (COMPTROLLER GENERAL A-4307 DATED AUGUST 29, 1924). HIS PAY WAS CHANGED ON MAY 5, 1924, FROM WARRANT OFFICER AFTER TWELVE YEARS TO ENSIGN AFTER THREE YEARS, AND HE IS THEREBY SUFFERED A REDUCTION IN PAY FROM $189 PER MONTH TO $131.25 PER MONTH.

IN THIS CONNECTION REFERENCE IS MADE TO THE ACT OF MARCH 4, 1913, 37 STAT. 892, WHICH PROVIDES:

THAT ALL OFFICERS OF THE NAVY WHO * * * HAVE BEEN ADVANCED OR WHO MAY HEREAFTER BE ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATE STATED IN THEIR COMMISSIONS.

IN 25 COMP. DEC. 852, THE ABOVE ACT IS HELD TO APPLY TO WARRANT OFFICERS PROMOTED TO COMMISSIONED GRADES.

THE QUESTION FOR DETERMINATION IS WHETHER IN VIEW OF THE ABOVE PROVISIONS OF LAW, ENSIGN ALLEN SHOULD HAVE BEEN PAID AS ENSIGN, OVER THREE YEARS, FROM FEBRUARY 9, 1924, DATE OF RANK OF HIS COMMISSION, OR WHETHER HE IS ENTITLED TO THE HIGHER PAY RECEIVED BY HIM AS A WARRANT OFFICER, OVER TWELVE YEARS, FROM THAT DATE TO MAY 5, 1924.

THE ENACTMENT IS BENEFICIAL LEGISLATION. ITS GENERAL OPERATION IS TO GIVE A RETROACTIVE EFFECT TO A HIGHER RATE OF PAY, AN ADVANCE OR INCREASE OF PAY BEING NORMALLY CONSEQUENT UPON AN ADVANCE OF RANK OR GRADE. BROADLY CONSIDERED, THE QUESTION IS, SHOULD THE PROVISION BE HELD TO OPERATE RETROACTIVELY IN SUCH A CASE SO AS TO ENFORCE A REDUCTION OR FORFEITURE OF PAY OVER THE PERIOD FROM DATE OF RANK STATED IN COMMISSION TO DATE OF ACCEPTANCE THEREOF.

DURING THE PERIOD FROM FEBRUARY 9, 1924, DATE OF RANK IN HIS COMMISSION AS ENSIGN, TO MAY 27, 1924, DATE HE ACCEPTED THE COMMISSION, ENSIGN ALLEN SERVED AS A GUNNER WITH OVER TWELVE YEARS' SERVICE, AND WAS ENTITLED TO PAY AS OF THAT RANK AND LENGTH OF SERVICE AS PROVIDED BY STATUTE. HE DID NOT HOLD THE OFFICE OF ENSIGN UNTIL HE ACCEPTED THE APPOINTMENT MAY 27, 1924, AND THE ACT OF MARCH 4, 1913, CAN NOT THEREFORE OPERATE TO EXACT A FORFEITURE OF THE PAY LEGALLY RECEIVED AS A WARRANT OFFICER. 8 COMP. DEC. 386.

THE AMOUNT PAID ENSIGN ALLEN AS A GUNNER WITH OVER TWELVE YEARS' SERVICE FROM FEBRUARY 9 TO MAY 5, 1924, WILL NOT BE DISTURBED.