B-15515, APRIL 10, 1941, 20 COMP. GEN. 613

B-15515, APRIL 10, 1941, 20 COMP. GEN. 613

PAY - ADDITIONAL - AIDES - NAVAL RESERVE OFFICERS A NAVAL RESERVE OFFICER WHILE ON ACTIVE DUTY AND SERVING AS AIDE TO A REAR ADMIRAL IS ENTITLED TO THE SAME ADDITIONAL PAY AS THAT PAYABLE TO AN OFFICER OF THE REGULAR NAVY WHILE SO SERVING AS AIDE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 10, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 11, 1941, WITH ENCLOSURES, REQUESTING DECISION ON THE QUESTION WHETHER LT. J. PIERRE BERNARD, UNITED STATES NAVAL RESERVE, MAY BE PAID ADDITIONAL PAY AS AIDE TO REAR ADMIRAL GEORGE T. PETTENGILL, UNITED STATES NAVY, COMMANDANT, NAVY YARD, WASHINGTON, D.C.

BY ORDERS OF THE CHIEF OF THE BUREAU OF NAVIGATION, DATED DECEMBER 11, 1940, LT. JEAN PIERRE BERNARD, D-V/S), UNITED STATES NAVAL RESERVE, WAS DIRECTED, IF FOUND PHYSICALLY QUALIFIED, TO PROCEED TO WASHINGTON, D.C., AND ON DECEMBER 15, 1940, REPORT FOR ACTIVE DUTY AS AIDE TO REAR ADMIRAL G. T. PETTENGILL, COMMANDANT, WASHINGTON NAVY YARD. INDORSEMENTS ON THE ORDERS INDICATE THAT THE RESERVE OFFICER SO REPORTED AND REAR ADMIRAL PETTENGILL HAS STATED THAT THE DUTIES PERFORMED BY LIEUTENANT BERNARD DURING THE PERIOD DECEMBER 15 TO DECEMBER 31, 1940,"WERE STRICTLY PERSONAL, CONFIDENTIAL, AND OF A ROUTINE CHARACTER AS CONTRASTED WITH GENERAL STAFF DUTY.'

IT HAS BEEN HELD THAT AN OFFICER OF THE REGULAR NAVY ORDERED TO DUTY AS AIDE TO A REAR ADMIRAL, COMMANDANT OF A STATION, IS ENTITLED TO ADDITIONAL PAY AS AIDE AS PROVIDED BY THE ACT OF MAY 13, 1908, 35 STAT. 128, AND SECTION 1098 OF THE REVISED STATUTES, 18 COMP. DEC. 721, AND THE QUESTION HERE PRESENTED IS WHETHER OFFICERS OF THE NAVAL RESERVE, CREATED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1175, 34 U.S.C. 852, ET SEQ., ON ACTIVE DUTY AND OTHERWISE ENTITLED TO PAY, WHILE ACTING AS AIDES ARE ENTITLED TO THE BENEFITS THAT ACCRUE TO OFFICERS OF THE REGULAR NAVY.

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 853E, PROVIDES, IN PART---

COMMISSIONED OFFICERS OF THE NAVAL RESERVE * * * WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY SHALL BE DEEMED TO HAVE BEEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE AND SHALL RECEIVE THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES, * * *

SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, 37 U.S.C. 7, PROVIDES SPECIFIC BASE OR PERIOD PAY FOR COMMISSIONED OFFICERS OF THE RESERVE FORCES WHO MAY BE SERVING IN GRADES CORRESPONDING TO THOSE OF COLONEL TO SECOND LIEUTENANT IN THE ARMY, TOGETHER WITH INCREASES FOR LONGEVITY AS THEREIN PROVIDED. THE FACT THAT THERE IS NO SPECIFIC AUTHORITY CONTAINED IN THE NAVAL RESERVE ACT OF 1938, FOR THE PAYMENT TO OFFICERS OF THE NAVAL RESERVE OF ADDITIONAL PAY WHILE ACTING AS AIDES IS NOT NECESSARILY CONCLUSIVE UPON THEIR RIGHTS. UNDER SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 853, THE NAVAL RESERVE IS A COMPONENT PART OF THE UNITED STATES NAVY AND RECENT DECISIONS HAVE HELD THAT THE APPARENTLY RESTRICTIVE LANGUAGE IN SECTION 7 OF THE ACT AS TO PAY AND ALLOWANCES OF COMMISSIONED OFFICERS THEREOF DOES NOT NECESSARILY FORECLOSE PAYMENTS IN OTHERWISE PROPER CASES OF CERTAIN EMOLUMENTS EVEN THOUGH SUCH PAYMENTS BE NOT SPECIFICALLY MENTIONED IN THE NAVAL RESERVE ACT. SEE DECISION B-3084, DATED JUNE 19, 1939, INVOLVING THE PAY OF REAR ADMIRAL OF THE NAVAL RESERVE, AND DECISION B 13922, DATED JANUARY 13, 1941, 20 COMP. GEN. 363. IN THE LATTER DECISION IT WAS SAID, PAGE 367:

* * * THE MATTER WAS HERETOFORE CONSIDERED IN DECISION TO YOU OF JUNE 19, 1939, B-3084, WITH REFERENCE TO THE PAY THAT MIGHT BE ALLOWED TO A REAR ADMIRAL OF THE NAVAL RESERVE WHEN ON ACTIVE OR TRAINING DUTY. OBVIOUSLY THERE WAS NOT PURPOSE TO DENY TO RESERVE OFFICERS SUCH OTHER ALLOWANCES AS WOULD ACCRUE TO OFFICERS OF THE REGULAR ESTABLISHMENT OF THE SAME GRADE AND LENGTH OF SERVICE, AND THE PROVISIONS CONTAINED IN SECTION 301 OF THE NAVAL RESERVE ACT OF 1938 THAT " ALL MEMBERS OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY * * * SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY," WILL SUPPORT THE GRANTING OF SUCH ALLOWANCES, WHEN THE REQUISITE CONDITIONS EXIST, TO OFFICERS OF THE NAVAL RESERVE ON ACTIVE DUTY WHICH ACCRUE TO OFFICERS OF THE SAME GRADE AND LENGTH OF SERVICE OF THE REGULAR NAVY UNDER APPROPRIATE LAWS AND REGULATIONS, IN ADDITION TO THE ALLOWANCES SPECIFICALLY PROVIDED FOR IN SECTION 14 OF THE JOINT SERVICE PAY ACT OF 1922, AND IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, THESE SPECIFIC PROVISIONS NOT BEING INTENDED TO DENY SUCH OTHER ALLOWANCES.

SINCE UNDER THE SPECIFIC TERMS OF SECTION 21 OF THE ACT OF JUNE 10, 1922, 42 STAT. 633, THERE WAS NO CHANGE MADE IN EXISTING LAWS OR REGULATIONS IN PURSUANCE THEREOF GOVERNING THE "ADDITIONAL PAY FOR AIDES" AND INASMUCH AS THE SELECTION BY THE SECRETARY OF THE NAVY OF A COMMISSIONED OFFICER OF THE NAVAL RESERVE TO ACT AS AN AIDE TO A REAR ADMIRAL MUST BE CONSIDERED AS EVIDENCE THAT THE NEEDS AND REQUIREMENTS OF THE SERVICE WILL BE FULFILLED IN LIKE MANNER AS WOULD THE APPOINTMENT OF COMMISSIONED OFFICER OF THE REGULAR NAVY, IT IS CONCLUDED THAT SUCH RESERVE OFFICER WHILE SO SERVING IS ENTITLED TO THE ADDITIONAL PAY THEREFOR TO THE EXTENT OTHERWISE CORRECT. SEE BOWDITCH V. UNITED STATES, 60 CT.1CLS. 92. ..END :