AUGUST 11, 1921, 1 COMP. GEN. 66
Highlights
IS ENTITLED. 1921: I HAVE YOUR LETTER OF JULY 29. IS ENTITLED TO THE PAY OF A GUNNER AFTER 12 YEARS OR TO THE PAY OF AN ENSIGN AFTER 10 YEARS. SINCE YOUR QUESTION INDICATES THAT GORDON IS NOW A TEMPORARY ENSIGN. THE QUESTION IS WHETHER AN OFFICER WHO. WAS PROMOTED IN PERMANENT GRADE. IS ENTITLED TO PAY AND ALLOWANCES OF SUCH PERMANENT GRADE WHEN SAME IS GREATER THAN THE PAY AND ALLOWANCE OF HIS TEMPORARY GRADE. PAY OR ALLOWANCES THAT WOULD HAVE BEEN RECEIVED BY ANY PERSON IN THE NAVY. IT WAS HELD THAT UNDER THESE PROVISIONS A WARRANT OFFICER WHO IS GIVEN A TEMPORARY COMMISSION IS ENTITLED TO CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE OR RANK WHEN SAME EXCEEDS THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK.
AUGUST 11, 1921, 1 COMP. GEN. 66
ENLISTED MAN HOLDING TEMPORARY COMMISSION AS OFFICER AN ENLISTED MAN, HOLDING TEMPORARY COMMISSION AS OFFICER, IS ENTITLED, BY VIRTUE OF SEC. 13, ACT OF MAY 22, 1917, 40 STAT., 87, TO THE PAY AND ALLOWANCES OF THE PERMANENT ENLISTED GRADE HELD BY HIM WHEN ACCEPTING THE COMMISSION OR ATTAINED DURING HIS COMMISSION, WHEN THEY EXCEED THE PAY AND ALLOWANCE TO WHICH HE WOULD BE ENTITLED UNDER THE COMMISSION.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 11, 1921:
I HAVE YOUR LETTER OF JULY 29, 1921, REFERRING FOR DECISION THE QUESTION WHETHER ENSIGN CHARLES H. GORDON, UNITED STATES NAVY, IS ENTITLED TO THE PAY OF A GUNNER AFTER 12 YEARS OR TO THE PAY OF AN ENSIGN AFTER 10 YEARS.
TRANSCRIPT OF ENSIGN GORDON'S SERVICE RECORD SHOWS THAT WHILE HOLDING COMMISSION AS ENSIGN, TEMPORARY, IN THE NAVY HE ACCEPTED APPOINTMENT AS PERMANENT GUNNER. SINCE YOUR QUESTION INDICATES THAT GORDON IS NOW A TEMPORARY ENSIGN, PRESUMABLY HIS APPOINTMENT AS GUNNER DID NOT VACATE HIS TEMPORARY APPOINTMENT AS ENSIGN, AND THE QUESTION IS WHETHER AN OFFICER WHO, WHILE HOLDING A TEMPORARY APPOINTMENT UNDER THE ACT OF MAY 22, 1917, 40 STAT., 85, WAS PROMOTED IN PERMANENT GRADE, IS ENTITLED TO PAY AND ALLOWANCES OF SUCH PERMANENT GRADE WHEN SAME IS GREATER THAN THE PAY AND ALLOWANCE OF HIS TEMPORARY GRADE.
THE ACT OF MAY 22, 1917, 40 STAT., 86, 87 PROVIDES:
SEC. 7. THAT THE PERMANENT AND PROBATIONARY COMMISSIONS, APPOINTMENTS, AND WARRANTS OF OFFICERS SHALL NOT BE VACATED BY REASON OF THEIR TEMPORARY ADVANCEMENT OR APPOINTMENT, NOR SHALL SAID OFFICERS BE PREJUDICED IN THEIR RELATIVE LINEAL RANK IN REGARD TO PROMOTION IN ACCORDANCE WITH THE ACT OF AUGUST TWENTY-NINTH, NINETEEN HUNDRED AND SIXTEEN: PROVIDED, THAT THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES OF ALL ENLISTED MEN OF THE NAVY AND MARINE CORPS NOW AUTHORIZED BY LAW SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF TEMPORARY COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED FURTHER, THAT NO PERSON WHO SHALL RECEIVE A TEMPORARY APPOINTMENT SHALL BE ENTITLED TO PAY OR ALLOWANCES EXCEPT UNDER SUCH TEMPORARY APPOINTMENT: AND PROVIDED FURTHER, THAT UPON THE TERMINATION OF TEMPORARY APPOINTMENTS IN A HIGHER GRADE OR RANK AS AUTHORIZED BY THIS ACT THE OFFICER SO ADVANCED, INCLUDING PROBATIONARY SECOND LIEUTENANTS, WARRANT OFFICERS, CLERKS TO ASSISTANT PAYMASTERS, AND ENLISTED MEN OF THE NAVY AND MARINE CORPS, COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES COAST GUARD, SHALL REVERT TO THE GRADE, RANK, OR RATING FROM WHICH TEMPORARILY ADVANCED, UNLESS SUCH OFFICERS OR ENLISTED MEN IN THE MEANTIME, IN ACCORDANCE WITH LAW, BECOME ENTITLED TO PROMOTION TO A HIGHER GRADE OR RANK IN THE PERMANENT NAVY OR MARINE CORPS, IN WHICH CASE THEY SHALL REVERT TO SAID HIGHER GRADE OR RANK AND SHALL AFTER PASSING THE PRESCRIBED EXAMINATION, BE COMMISSIONED ACCORDINGLY.
SEC. 13. NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE RANK, PAY OR ALLOWANCES THAT WOULD HAVE BEEN RECEIVED BY ANY PERSON IN THE NAVY, MARINE CORPS, OR COAST GUARD EXCEPT FOR THE PASSAGE OF THIS ACT.
IN 24 COMP. DEC., 229, IT WAS HELD THAT UNDER THESE PROVISIONS A WARRANT OFFICER WHO IS GIVEN A TEMPORARY COMMISSION IS ENTITLED TO CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE OR RANK WHEN SAME EXCEEDS THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK. IN THIS INSTANCE WE HAVE THE CONDITION IN WHICH THE OFFICER'S PERMANENT GRADE IS CHANGED WHILE HOLDING A TEMPORARY APPOINTMENT AND THE QUESTION IS WHETHER THE OFFICER IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER PERMANENT GRADE WHEN SAME EXCEEDS THE PAY AND ALLOWANCES OF HIS TEMPORARY COMMISSIONED RANK.
THE ACT OF MAY 22, 1917, PROVIDES THAT THE TEMPORARY APPOINTMENTS SHALL NOT EFFECT THE OFFICER'S RIGHTS RELATIVE TO PROMOTION IN PERMANENT GRADE. IT ALSO PROVIDES THAT SUCH TEMPORARY APPOINTMENTS OR COMMISSIONS SHALL NOT OPERATE TO REDUCE THE RANK, PAY, OR ALLOWANCES THAT THE OFFICER WOULD HAVE RECEIVED EXCEPT FOR THE TEMPORARY APPOINTMENT. IT NOT ONLY SAVES TO HIM THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE WHEN GIVEN A TEMPORARY APPOINTMENT, BUT SAVES TO HIM THE PAY AND ALLOWANCES OF ANY PERMANENT GRADE OR RANK ATTAINED WHILE HOLDING THE TEMPORARY APPOINTMENT. IN THE CASE IN QUESTION THE PERMANENT GRADE OF GUNNER WAS ATTAINED BY GORDON INDEPENDENT OF THE TEMPORARY APPOINTMENT AS ENSIGN, AND THEREFORE THE PAY AND ALLOWANCES THEREOF WOULD HAVE ACCRUED TO ENSIGN GORDON REGARDLESS OF HIS TEMPORARY APPOINTMENT AS ENSIGN.
ACCORDINGLY, YOU ARE ADVISED THAT ENSIGN GORDON IS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A GUNNER AFTER 12 YEARS WHEN THE SAME IS GREATER THAN HIS PAY AND ALLOWANCES AS AN ENSIGN.