B-13893, MAY 26, 1941, 20 COMP. GEN. 813

B-13893, MAY 26, 1941, 20 COMP. GEN. 813

PAY - PROMOTIONS - EFFECTIVE DATE - NAVAL RESERVE OFFICERS WHILE SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AUTHORIZES PAY AND ALLOWANCES TO PROMOTED RESERVE OFFICERS FROM THE DATE OF RANK AS STATED IN THEIR COMMISSIONS, THE OFFICERS ARE NOT ENTITLED TO SUCH BENEFITS PRIOR TO THE TIME THEY ARE EMPLOYED ON ACTIVE DUTY, SO THAT A NAVAL RESERVE OFFICER UPON PROMOTION TO A HIGHER GRADE OR RANK EFFECTIVE DURING A PERIOD OF INACTIVE DUTY IS ENTITLED TO DRILL PAY OF THE HIGHER GRADE OR RANK ONLY FROM THE DATE OF ISSUANCE OF HIS COMMISSION, OR DATE OF ORDER TO ACTIVE DUTY, WHICHEVER COMES FIRST.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 26, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 7, 1940, REQUESTING DECISION ON QUESTIONS PRESENTED IN A LETTER FROM THE PAYMASTER, HEADQUARTERS UNITED STATES MARINE CORPS, DATED NOVEMBER 29, 1940, AS FOLLOWS:

(A) ARE NAVAL RESERVE OFFICERS ON PROMOTION TO A HIGHER GRADE OR RANK, ENTITLED TO BE PAID THE DRILL PAY OF THE HIGHER GRADE OR RANK, FROM THE DATES OF RANK AS STATED IN THEIR COMMISSIONS?

(B) IF THE ANSWER TO (A) IS IN THE NEGATIVE, FROM WHAT DATE WOULD THE DRILL PAY OF THE HIGHER GRADE OR RANK BE PROPERLY PAYABLE, IN THE CASE OF A 2ND LIEUTENANT, U.S.M.C.R., WHO IS PROMOTED TO A FIRST LIEUTENANT, U.S.M.C.R.: HIS COMMISSION BEING DATED AUGUST 31, 1940, WITH RANK FROM FEBRUARY 10, 1940; HE HAVING ACCEPTED HIS COMMISSION ON SEPTEMBER 17, 1940?

IN DECISION B-8923, DATED APRIL 16, 1940, 19 COMP. GEN. 864, IT WAS HELD THAT OFFICERS OF THE NAVAL RESERVE PROMOTED UNDER THE PROVISIONS OF SECTION 312 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, AS ORIGINALLY ENACTED, WERE ENTITLED TO PAY OF THE HIGHER GRADE OR RANK ONLY FROM THE DATE OF ISSUANCE OF THE COMMISSION. BY SECTION 8 (C) OF THE ACT OF AUGUST 27, 1940, PUBLIC NO. 775, 54 STAT. 865, SECTION 312 OF THE NAVAL RESERVE ACT OF 1938 WAS AMENDED BY DELETING THE SECOND PROVISO THEREOF AND IN LIEU THEREOF INSERTING A PROVISION WHICH, FROM THE DATE OF AMENDMENT, CAUSES SECTION 312 TO READ AS FOLLOWS:

IN TIME OF WAR OR NATIONAL EMERGENCY, OFFICERS OF THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY SHALL BE ADVANCED IN THEIR RESPECTIVE CORPS IN GRADE AND RANK IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY OR THE MARINE CORPS, RESPECTIVELY, IN SUCH NUMBERS FOR EACH GRADE OR RANK, AS MAY BE PRESCRIBED FROM TIME TO TIME, BY THE SECRETARY OF THE NAVY, AND WHEN SO ADVANCED THEY SHALL TAKE PRECEDENCE AMONG THEMSELVES AND WITH OTHER OFFICERS OF THE NAVY AND MARINE CORPS, IN ACCORDANCE WITH DATE OF SUCH ADVANCEMENT OF PROMOTION: PROVIDED THAT NO OFFICER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE SHALL BE ADVANCED TO A HIGHER RANK UNTIL HE HAS QUALIFIED THEREFOR BY SUCH MENTAL, MORAL, PROFESSIONAL, AND PHYSICAL EXAMINATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE: PROVIDED FURTHER, THAT HEREAFTER ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK IN TIME OF PEACE OR IN TIME OF WAR OR NATIONAL EMERGENCY UNDER THE PROVISIONS OF THIS ACT, SHALL BE ALLOWED THE 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, AND THE DATES OF RANK AS STATED IN THEIR COMMISSIONS SHALL BE CONCLUSIVE FOR ALL PURPOSES: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO OFFICERS WHO HAVE BEEN OR MAY HEREAFTER BE RETIRED FROM THE NAVAL OR MARINE CORPS RESERVE FORCE OR THE NAVAL OR MARINE CORPS RESERVE.

IN THE DECISION OF APRIL 16, 1940, IT WAS SHOWN THAT TERMINOLOGY SUCH AS USED IN SECTION 312 WAS PROBABLY DEVELOPED AS A RESULT OF LONG USAGE OF TERMS OF A SIMILAR NATURE IN CONNECTION WITH THE EFFECTIVE DATE OF PROMOTION FOR PAY PURPOSES IN THE REGULAR NAVY. IN CONTEMPLATION OF LAW, OF COURSE, COMMISSIONED OFFICERS OF THE REGULAR NAVY HAVE AN ACTIVE NAVY STATUS AT ALL TIMES BY VIRTUE OF THEIR COMMISSIONS ALONE AND THE PROMOTION OF SUCH OFFICERS TO FILL VACANCIES OBVIOUSLY COULD NOT BE MADE RETROACTIVELY EFFECTIVE INTO A PERIOD OF INACTIVE DUTY. OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE HAVE A STATUS "ACTIVE AND INACTIVE" WHICH SEEMS TO BE CLEARLY RECOGNIZED BY THE USE OF THE LANGUAGE AT THE BEGINNING OF SECTION 312, WHICH PROVIDES THAT "IN TIME OF WAR OR NATIONAL EMERGENCY OFFICERS ON THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY," ETC. THE SECOND PROVISO OF SECTION 312, EFFECTIVE FROM AUGUST 27, 1940, WHILE AUTHORIZING PAY AND ALLOWANCES TO PROMOTED OFFICERS OF THE RESERVE FROM THE DATE OF RANK AS STATED IN THEIR COMMISSIONS, DOES NOT APPEAR TO HAVE BEEN INTENDED TO BESTOW SUCH BENEFITS ANTERIOR TO THE TIME THAT SUCH OFFICERS WERE EMPLOYED ON ACTIVE DUTY SO AS TO AUTHORIZE DRILL PAY BASED UPON THE HIGHER RANK RETROACTIVELY. ALTHOUGH THE SECOND PROVISO IN SECTION 312, AS AMENDED BY THE ACT OF AUGUST 27, 1940, USES THE TERM "ALL OFFICERS" AND STATES FURTHER THAT "DATES OF RANK AS STATED IN THEIR COMMISSION SHALL BE CONCLUSIVE FOR ALL PURPOSES," THIS AMENDED PROVISO, IN VIEW OF THE LANGUAGE CONTAINED IN THE ANTECEDENT CLAUSE, DOES NOT APPEAR TO HAVE CONTEMPLATED THE PROMOTION WITH PAY PRIOR TO THE ISSUANCE OF THE COMMISSION IN THE HIGHER RANK TO OFFICERS OF THE RESERVE UNLESS DURING SUCH PERIOD, BETWEEN THE DATE OF THE HIGHER RANK AND DATE OF THE COMMISSION, SUCH OFFICERS WERE ON ACTIVE DUTY. IF ANY DOUBT EXISTS THAT THIS WAS THE PURPOSE OF THE AMENDMENT, REFERENCE MAY BE MADE TO THE REPORT OF THE SENATE COMMITTEE ON NAVAL AFFAIRS, ACCOMPANYING H.R. 10030, 76TH CONGRESS, 3D SESSION (PAGE 9, SENATE REPORT 1947), WHERE IT WAS STATED:

SUBSECTION (C).--- THE PURPOSE OF THIS SUBSECTION IS TO AMEND SECTION 312, TITLE III OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, TO PROVIDE THAT OFFICERS OF THE NAVAL RESERVE SERVING ON ACTIVE DUTY EITHER IN TIME OF PEACE OR IN TIME OF WAR OR NATIONAL EMERGENCY SHALL, WHEN PROMOTED TO A HIGHER GRADE OR RANK, RECEIVE THE INCREASED PAY AND ALLOWANCES OF SUCH GRADE OR RANK FROM THE DATES OF RANK AS STATED IN THEIR COMMISSIONS AS DISTINGUISHED FROM THE DATES OF ISSUANCE OF SUCH COMMISSIONS OR DATES OF ACCEPTANCE OF SUCH COMMISSION. THE EXISTING PROVISIONS OF SECTION 312 OF THE NAVAL RESERVE ACT WILL NOT PERMIT THE INCREASED PAY TO BE PAID AN OFFICER PROMOTED WHILE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY, EXCEPT FROM THE DATE OF THE ISSUANCE OF THE COMMISSION BY THE SECRETARY OF THE NAVY. MANY ADMINISTRATIVE DELAYS OCCUR IN THE ISSUANCE OF COMMISSIONS AND IN THE EXAMINATION OF OFFICERS FOR PROMOTION WHICH ARE NO FAULT OF THE OFFICERS CONCERNED. ( ITALICS SUPPLIED.)

IN VIEW OF THE PURPOSE OF SECTION 312 AS A WHOLE, AS AMENDED BY THE ACT OF AUGUST 27, 1940, AND THE LEGISLATIVE HISTORY REFERRED TO, IT APPEARS CLEAR THAT NAVAL RESERVE OFFICERS UPON PROMOTION TO A HIGHER RANK OR GRADE EFFECTIVE DURING A PERIOD OF INACTIVE DUTY ARE NOT ENTITLED TO DRILL PAY OF THE HIGHER GRADE OR RANK PRIOR TO THE DATE OF ISSUANCE OF THEIR COMMISSIONS, OR DATE OF ORDER TO ACTIVE DUTY WHICHEVER COMES FIRST. THEY 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. THIS SEEMS TO BE THE REQUIREMENT, ALSO, OF SECTION 313. QUESTION (A) IS ANSWERED IN THE NEGATIVE.

ON THE FACTS RELATED IN QUESTION (B) THE RESERVE OFFICER BECAME ENTITLED TO DRILL PAY AS A FIRST LIEUTENANT FROM AND AFTER AUGUST 31, 1940, THE DATE OF COMMISSION IN THAT RANK.