B-102212, JUNE 26, 1951, 30 COMP. GEN. 524

B-102212, JUNE 26, 1951, 30 COMP. GEN. 524

PAY - PROMOTIONS - EFFECTIVE DATE - NAVAL RESERVE OFFICERS UNDER THE PROVISIONS OF SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AUTHORIZING PAY AND ALLOWANCES TO PROMOTED RESERVE OFFICERS FROM THE DATE OF RANK AS STATED IN THEIR COMMISSIONS, A NAVAL RESERVE OFFICER WHO IS PROMOTED TO A HIGHER RANK EFFECTIVE DURING A PERIOD OF INACTIVE DUTY IS ENTITLED TO DRILL PAY OF THE HIGHER RANK ONLY FROM THE DATE OF ISSUANCE OF HIS COMMISSION, OR DATE OF ORDER TO ACTIVE DUTY, WHICHEVER COMES FIRST.

ASSISTANT COMPTROLLER GENERAL YATES TO LOUIS H. R. ZANNER, JUNE 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1951, AND ENCLOSURES RECEIVED THEREWITH, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 29, 1951, CERTIFICATE NO. 1909484, TO THE EXTENT THAT IT DISALLOWED FOR THE REASON THAT THE RECORD INDICATES YOU PERFORMED NO ACTIVE DUTY DURING THE PERIOD MAY 24 TO SEPTEMBER 11, 1948.

IT APPEARS THAT ON JUNE 30, 1949, WHILE HOLDING A COMMISSION AS ENSIGN, UNITED STATES NAVAL RESERVE, YOU EXECUTED AN OATH OF OFFICE AND ACCEPTED PERMANENT APPOINTMENT AS LIEUTENANT (JG) IN THE UNITED STATES NAVAL RESERVE TO RANK FROM MAY 24, 1948, SUCH APPOINTMENT HAVING BEEN MADE ON DECEMBER 31, 1948.

IN DECISION OF MAY 26, 1941, 20 COMP. GEN. 813, TO THE SECRETARY OF THE NAVY, IT WAS HELD THAT SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, AS AMENDED BY SECTION 8 (C) OF THE ACT OF AUGUST 27, 1940, 54 STAT. 865 (34 U.S.C. 855K), WHICH AUTHORIZES PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES OF RANK AS STATED IN THEIR COMMISSIONS, AS DISTINGUISHED FROM THE DATES OF COMMISSION, OR DATES OF ACCEPTANCE OF COMMISSION, TO ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE THEREAFTER ADVANCED TO A HIGHER GRADE OR RANK UNDER THE PROVISIONS OF THAT ACT DOES NOT AUTHORIZE DRILL PAY BASED ON THE PAY OF THE HIGHER GRADE OR RANK PRIOR TO THE DATE OF ISSUANCE OF ANY SUCH COMMISSION OR DATE OF ORDER TO ACTIVE DUTY, WHICHEVER COMES FIRST. IT WAS STATED THAT IF SAID OFFICERS PERFORM NO ACTIVE DUTY IN THE HIGHER GRADE PRIOR TO SUCH COMMISSION THE RETROACTIVE PAYMENT TO THEM OF DRILL PAY OF THE HIGHER RANK OR GRADE WOULD NOT BE AUTHORIZED, IT BEING CLEAR FROM THE PROVISIONS OF SECTION 312, AS AMENDED, QUOTED IN FULL IN SAID DECISION, THAT PAY OF THE HIGHER GRADE OR RANK IS NOT PROPER FOR ANY PERIOD PRIOR TO THE DATE OF ISSUANCE OF THE COMMISSION UNLESS DURING SUCH PERIOD, BETWEEN THE DATE OF THE HIGHER RANK AND DATE OF THE COMMISSION, SUCH OFFICERS WERE ON ACTIVE DUTY.

WITH RESPECT TO YOUR DUTY STATUS THE CHIEF OF NAVAL PERSONNEL WAS REQUESTED BY THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE TO ADVISE WHETHER YOU HAD PERFORMED ANY ACTIVE DUTY OR TRAINING DUTY DURING THE PERIOD MAY 24 TO DECEMBER 31, 1948, AND IN A REPLY DATED DECEMBER 29, 1950, IT IS STATED THAT YOU PERFORMED TRAINING DUTY WITH PAY FROM SEPTEMBER 12 TO 25, 1948. HENCE, INASMUCH AS THE RECORD SHOWS THAT THE FIRST ACTIVE DUTY PERFORMED BY YOU SUBSEQUENT TO MAY 24, 1948, WAS DURING THE PERIOD SEPTEMBER 11 TO 26, 1948 (INCLUDING TWO DAYS' TRAVEL TIME TO AND FROM SUCH ACTIVE DUTY) THERE IS NO AUTHORITY OF LAW TO PAY YOU DRILL PAY BASED ON THE HIGHER RANK OF LIEUTENANT (JG) FOR ANY OF THE NAVAL RESERVE DRILLS WHICH YOU PERFORMED PRIOR TO SEPTEMBER 11, 1948. IN THAT CONNECTION, IT MAY BE STATED THAT ATTENDANCE AT DRILLS DOES NOT CONSTITUTE THE PERFORMANCE OF ACTIVE DUTY NOR DID YOUR TRANSFER, EFFECTIVE AS OF OCTOBER 6, 1947, FROM THE VOLUNTEER RESERVE TO THE ORGANIZED RESERVE AND ASSIGNMENT TO SURFACE DIVISION 9-77, DETROIT, MICHIGAN, AS EVIDENCED BY THE CERTIFIED TRUE COPY OF ORGANIZED NAVAL RESERVE TRANSFER NOTICE, DATED JUNE 9, 1948, RECEIVED WITH YOUR LETTER OF FEBRUARY 27, 1951, CHANGE YOUR "INACTIVE DUTY" STATUS IN THE NAVAL RESERVE TO THAT OF "ACTIVE DUTY.' ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM COVERING THE PERIOD MAY 24, 1948, TO SEPTEMBER 11, 1948, WAS CORRECT AND IS SUSTAINED.