B-112873, MAR 10, 1953

B-112873, MAR 10, 1953

PRECIS-UNAVAILABLE

LIEUTENANT JEAN I. MOON, SC, USN:

BY LETTER DATED NOVEMBER 18, 1952 (JAG:II:2:WEN:SMS), THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED TO THIS OFFICE YOUR LETTER OF OCTOBER 9, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER EDWARD J. ELSASSER, 273 016, MEDICAL SERVICE CORPS, USN, MAY BE CREDITED WITH THE PAY AND ALLOWANCES OF PAY GRADE 0-2 FROM MAY 22, 1952.

IT APPEARS THAT ON MAY 10, 1952, UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND SUBJECT TO THE QUALIFICATIONS AND INSTRUCTIONS PRESCRIBED BY BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER 108- 51, THE PRESIDENT APPOINTED EDWARD J. ELSASSER, HMC, USN, AN ENSIGN IN THE MEDICAL SERVICE CORPS, USN, FOR TEMPORARY SERVICE, TO RANK FOR PRECEDENCE PURPOSES FROM MAY 22, 1950. IT SEEMS THAT IN ASSIGNING SUCH DATE OF RANK, THERE WAS TAKEN INTO CONSIDERATION PRIOR COMMISSIONED SERVICE AS A TEMPORARY OFFICER DURING WORLD WAR II. BY LETTER DATED SEPTEMBER 23, 1952, FROM THE COMMANDING OFFICER, UNITED STATES NAVAL HOSPITAL, NATIONAL MEDICAL CENTER, BETHESDA, MARYLAND, TO ELSASSER, RECEIPT OF WHICH WAS ACKNOWLEDGED BY FIRST INDORSEMENT OF THE SAME DATE, HE WAS NOTIFIED OF SUCH APPOINTMENT, HAVING BEEN FOUND QUALIFIED UNDER THE CONDITIONS PRESCRIBED IN THE LETTER OF APPOINTMENT. ALSO, ON THE SAME DATE ELSASSER'S COMMANDING OFFICER ADDRESSED A LETTER TO HIM AS FOLLOWS:

"SUBJ: TEMPORARY APPOINTMENT UNDER PROVISIONS OF PUBLIC LAW 188, 77TH CONGRESS, AS AMENDED

"1. HAVING BEEN FOUND QUALIFIED IN ACCORDANCE WITH THE APPOINTMENT AUTHORIZATION REFERENCED BELOW, YOU ARE HEREBY NOTIFIED OF YOUR TEMPORARY APPOINTMENT TO THE GRADE INDICATED.

"2. YOU WILL INDICATE BY ENDORSEMENT TO THIS NOTICE WHETHER YOU DO OR DO NOT DECLINE THIS APPOINTMENT.

"3. IN ACCORDANCE WITH ALNAV 33-51, YOU ARE THIS DATE TEMPORARILY APPOINTED TO THE RANK OF LIEUTENANT (JUNIOR GRADE), TO RANK FROM 22 MAY 1952." ALNAV 33, DATED APRIL 11, 1951, READS, IN PART, AS FOLLOWS:

"SUBJECT TO CONDITIONS STATED HEREIN, THE PRESIDENT ON 14 APRIL 1951 UNDER THE PROVISIONS OF PUBLIC LAW 188, 77TH CONGRESS, AS AMENDED, TEMPORARILY APPOINTS TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) TO RANK FROM 14 APRIL 1951 THOSE ENSIGNS OF THE LINE AND STAFF CORPS OF THE NAVY AND NAVAL RESERVE ON EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS WHOSE DATES OF RANK AS SUCH ARE WITHIN THE PERIOD 14 APRIL 1948 TO 14 APRIL 1949 INCLUSIVE.

"SUBJECT TO CONDITIONS STATED HEREIN, EACH ENSIGN OF THE LINE AND STAFF CORPS OF THE NAVY AND NAVAL RESERVE ON EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS WHOSE DATE OF RANK IS ON OR AFTER 15 APRIL 1949 IS TEMPORARILY APPOINTED BY THE PRESIDENT TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) ON THE DATE HE COMPLETES 24 MONTHS' SERVICE IN THE GRADE OF ENSIGN COMPUTED FROM DATE OF RANK TO RANK FROM THE DATE OF SUCH APPOINTMENT.

"SUBJECT TO CONDITIONS STATED HEREIN, EACH ENSIGN NAVAL RESERVE WITH DATE OF RANK ON OR AFTER 14 APRIL 1948 WHO REPORTS FOR EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS AFTER DATE OF COMPLETION OF 24 MONTHS' SERVICE DETERMINED AS ABOVE IS TEMPORARILY APPOINTED BY THE PRESIDENT TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) ON THE DATE OF REPORTING FOR SUCH DUTY TO RANK FROM THE DATE OF COMPLETION OF 24 MONTHS' SERVICE IN GRADE OF ENSIGN OR FROM 14 APRIL 1951 WHICHEVER IS LATER."

IN ADDITION TO THE FOREGOING PROVISIONS, THE ALNAV PROVIDES THAT ELIGIBLE APPOINTEES BE GIVEN A PHYSICAL EXAMINATION AND THE COMMANDING OFFICER IS DIRECTED TO DETERMINE WHETHER IN HIS OPINION EACH OFFICER IS MENTALLY, MORALLY, AND PROFESSIONALLY QUALIFIED FOR TEMPORARY PROMOTION. IF THE OFFICER IS FOUND NOT QUALIFIED FOR PROMOTION "THE TEMPORARY APPOINTMENT OF EACH SUCH OFFICER IS TERMINATED." IT IS FU THER PROVIDED THAT THE COMMANDING OFFICER SHALL EFFECT THE APPOINTMENTS OF QUALIFIED OFFICERS BY NOTIFICATION IN WRITING AND THE APPOINTEES IN EACH CASE SHALL ENDORSE THEREON WHETHER HE DOES OR DOES NOT DECLINE THE APPOINTMENT. UPON BEING TEMPORARILY APPOINTED PURSUANT TO THE ABOVE, THE ALNAV PROVIDES THAT PERSONNEL SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED FROM THE DATE ON WHICH THE APPOINTMENTS ARE MADE BY THE PRESIDENT AND SUCH APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE.

SINCE ELSASSER'S DATE OF RANK AS ENSIGN UNDER HIS APPOINTMENT OF MAY 10, 1952, WAS SPECIFIED AS MAY 22, 1950, THE QUESTION PRESENTED IS ADVANCING HIM TO THE TEMPORARY GRADE OF LIEUTENANT, JUNIOR GRADE, ON MAY 22, 1952, FOR PAY PURPOSES.

THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, PROVIDES, INTER ALIA, THAT DURING TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT, THE ENLISTED OR WARRANT OFFICER PERSONNEL THEREIN SPECIFIED MAY BE TEMPORARILY APPOINTED OR ADVANCED IN RANK OR GRADE IN THE REGULAR NAVY OR MARINE CORPS NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS. SECTION 12 OF THE ACT, AS ADDED BY SECTION 3 OF THE ACT OF MAY 22, 1950, 64 STAT. 187, PROVIDES:

"SEC. 12. PERSONNEL TEMPORARILY APPOINTED PURSUANT TO THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE."

ALNAV 33-51 DOES NOT SPECIFY THAT IT SHALL APPLY TO ENSIGNS WHO MIGHT THEREAFTER BE APPOINTED, NOR DOES THE LANGUAGE USED IN ANNOUNCING SUCH PROMOTIONS INDICATE ANY SUCH AN INTENTION. PRESUMABLY IF IT HAD BEEN INTENDED TO ADVANCE TO THE GRADE OF LIEUTENANT, JUNIOR GRADE, UNDER THE CONDITIONS STATED, NOT ONLY THOSE PERSONS WHO WERE ENSIGNS AT THE DATE OF ISSUANCE OF THE ALNAV BUT ALSO TO ESTABLISH A PROCEDURE FOR AUTOMATICALLY PROMOTING THOSE PERSONS WHO MIGHT SUBSEQUENTLY BE APPOINTED TO THAT GRADE, SUCH AN INTENTION WOULD HAVE BEEN STATED IN CLEAR AND UNMISTAKABLE TERMS.

THEREFORE, SINCE THE OFFICER INVOLVED WAS NOT AN ENSIGN AT THE TIME OF ISSUANCE OF ALNAV 33-51 IT MAY NOT BE CONCLUDED THAT IT OPERATED TO ADVANCE HIM TO THE GRADE OF LIEUTENANT, JUNIOR GRADE, AS OF MAY 22, 1952, AND THE COMMANDING OFFICER'S LETTER OF SEPTEMBER 23, 1952, PURPORTING TO NOTIFY HIM OF SUCH AN APPOINTMENT WAS WITHOUT EFFECT, TO CONFER UPON THE OFFICER PAY AND ALLOWANCES OF A LIEUTENANT, JUNIOR GRADE, FROM SUCH DATE. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.