B-33169, JUNE 3, 1943, 22 COMP. GEN. 1071

B-33169, JUNE 3, 1943, 22 COMP. GEN. 1071

PERSONAL MONEY ALLOWANCE - ADMIRALS AND VICE ADMIRALS THE GENERAL PROVISIONS OF SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING THE PAYMENT OF A "PERSONAL MONEY ALLOWANCE" TO OFFICERS OF THE NAVY WHILE SERVING IN THE GRADES OF VICE ADMIRAL AND ADMIRAL, WERE NOT INTENDED TO BE RESTRICTED TO OFFICERS SERVING WITH SUCH RANK IN THE PARTICULAR SITUATIONS SPECIFIED IN THE ACTS OF AUGUST 29, 1916, MAY 22, 1917, AND JULY 17, 1941, BUT, RATHER, WERE INTENDED TO APPLY GENERALLY TO ALL OFFICERS SERVING IN SUCH RANKS FROM AND AFTER JUNE 1, 1942, THE EFFECTIVE DATE OF THE SAID PAY READJUSTMENT ACT, INCLUDING, BY VIRTUE OF THE PROVISIONS OF SECTION 15 OF THAT ACT, RETIRED OFFICERS SERVING ON ACTIVE DUTY IN SUCH RANKS. 22 COMP. GEN. 284, MODIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 3, 1943:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1943, REQUESTING DECISION ON A MATTER PRESENTED IN THE SECOND ENDORSEMENT, MARCH 8, 1943, OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

1. PURSUANT TO ORDERS OF DECEMBER 14, 1941, REAR ADMIRAL RUSSELL WILLSON USN WAS DETACHED FROM DUTY AS SUPERINTENDENT OF THE NAVAL ACADEMY AND REPORTED ON DECEMBER 30, 1941, TO THE COMMANDER IN CHIEF, U.S. FLEET, AS CHIEF OF STAFF AND AIDE. IT APPEARS FROM REFERENCE(B) THAT REAR ADMIRAL WILLSON, WHILE SERVING IN THAT CAPACITY, WAS, ON MARCH 21, 1942, APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, A VICE ADMIRAL FOR TEMPORARY SERVICE TO RANK FROM MARCH 10, 1942; THE REQUIRED ACCEPTANCE AND OATH OF OFFICE WAS EXECUTED ON MARCH 21, 1942. HIS STATUS WAS NOT, THEREFORE, THAT OF A REAR ADMIRAL ON THE ACTIVE LIST HOLDING THE RANK AND ENTITLED TO THE PAY AND ALLOWANCES OF A VICE ADMIRAL BY VIRTUE OF DESIGNATION BY THE PRESIDENT TO PERFORM SPECIAL OR UNUSUAL DUTY AS AUTHORIZED BY THE ACT OF JULY 17, 1941.

2. PURSUANT TO ORDERS OF SEPTEMBER 1, 1942, VICE ADMIRAL WILLSON WAS DETACHED FROM DUTY AS CHIEF OF STAFF AND AIDE TO THE COMMANDER IN CHIEF, U.S. FLEET, AND DIRECTED TO REPORT TO THE COMMANDER IN CHIEF FOR DUTY AS DEPUTY COMMANDER IN CHIEF, U.S. FLEET, AND BY ORDERS OF NOVEMBER 11, 1942, HE WAS DIRECTED TO REPORT TO THE COMMANDER IN CHIEF U.S. FLEET, FOR ADDITIONAL AND PARAMOUNT DUTY AS NAVY MEMBER OF THE JOINT STRATEGY SURVEY COMMITTEE. BY ORDERS OF THE COMMANDER IN CHIEF, U.S. FLEET, DATED NOVEMBER 19, 1942, HE WAS RELIEVED FROM DUTY AS DEPUTY COMMANDER IN CHIEF AND DIRECTED TO REPORT TO THE COMMANDER IN CHIEF FOR DUTY IN HIS HEADQUARTERS AS NAVY MEMBER OF THE JOINT STRATEGY SURVEY COMMITTEE.

3. THE PRESIDENT ON DECEMBER 8, 1942, APPROVED THE PROCEEDINGS AND FINDINGS OF A NAVAL RETIRING BOARD IN THE CASE OF VICE ADMIRAL WILLSON AND HE WAS PLACED ON THE RETIRED LIST OF JANUARY 1, 1943, UNDER THE PROVISIONS OF SECTION 1453, REVISED STATUTES, FOR DISABILITY RESULTING FROM AN INCIDENT OF THE SERVICE, IN THE RANK OF VICE ADMIRAL UNDER THE AUTHORITY CONTAINED IN SECTION 1457, REVISED STATUTES, AND THE ACT OF JULY 24, 1941. BY ORDERS OF DECEMBER 24, 1942, VICE ADMIRAL WILLSON, UPON BEING PLACED ON THE RETIRED LIST, WAS DIRECTED TO CONTINUE ON DUTY AT HEADQUARTERS, COMMANDER IN CHIEF, U.S. FLEET, AS A NAVY MEMBER OF THE JOINT STRATEGY SURVEY COMMITTEE.

4. THE SECRETARY OF THE NAVY IN LETTER OF JULY 15, 1942, REQUESTED A DECISION AS TO WHETHER THE CHANGE BETWEEN THE LANGUAGE IN SECTION 8 OF THE ACT OF JUNE 10, 1922, AND THAT CONTAINED IN SECTION 7 OF THE ACT OF JUNE 16, 1942, WITH RESPECT TO PERSONAL MONEY ALLOWANCE AUTHORIZED THEREIN FOR OFFICERS OF THE NAVY SERVING IN THE GRADE OF ADMIRAL AND VICE ADMIRAL, MODIFIED THE RULING IN 21 COMP. GEN. 164 (161) WITH RESPECT TO THE RIGHT OF RETIRED OFFICERS OF THE NAVY, RETIRED IN RANK ABOVE THAT OF REAR ADMIRAL BY REASON OF THE STATUTES CITED BELOW, TO THE PERSONAL MONEY ALLOWANCE AUTHORIZED IN SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942 UPON RECALL TO ACTIVE DUTY AFTER RETIREMENT IN THE RANK OF ADMIRAL OR VICE ADMIRAL:

ACT OF JUNE 21, 1930 (46 STAT. 793) (34 U.S.C. 399C)

ACT OF JUNE 22, 1938 (52 STAT. 839) (34 U.S.C. 685A)

ACT OF JUNE 23, 1938 (52 STAT. 949) (34 U.S.C. 404B)

ACT OF JUNE 16, 1942 (56 STAT. 370). THIS QUESTION WAS CONSIDERED BY THE COMPTROLLER GENERAL IN 22 COMP. GEN. 284 IN WHICH IT WAS STATED THAT OFFICERS ON THE RETIRED LIST OF THE NAVY WITH THE RANK OF ADMIRAL OR VICE ADMIRAL, AND WITH THE RETIRED PAY OF A REAR ADMIRAL, WHO ARE CALLED TO ACTIVE DUTY DO NOT BY VIRTUE OF THEIR RANK ALONE SERVE IN THE CAPACITIES OF ADMIRAL OR VICE ADMIRAL UNDER THE PROVISIONS OF LAW UNDER WHICH OFFICERS ON THE ACTIVE LIST SERVE TEMPORARILY IN THOSE GRADES, AND IT IS ONLY WHEN OFFICERS ON THE ACTIVE LIST SERVE TEMPORARILY IN THOSE GRADES THAT THE MONEY ALLOWANCE AUTHORIZED IN SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942 IS PAYABLE. IT WAS HELD IN THIS DECISION, QUOTING FROM THE SYLLABUS, THAT:

"WHEN OFFICERS ON THE RETIRED LIST OF THE NAVY WITH THE RANK OF ADMIRAL OR VICE ADMIRAL--- BY REASON OF TEMPORARY SERVICE ON THE ACTIVE LIST IN THOSE GRADES--- AND WITH THE RETIRED PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) ARE ON ACTIVE DUTY, THE "FULL PAY AND ALLOWANCES" TO WHICH THEY ARE ENTITLED UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 DOES NOT INCLUDE THE PERSONAL MONEY ALLOWANCE AUTHORIZED BY SECTION 7 OF SAID ACT FOR OFFICERS SERVING IN THE GRADE OF VICE ADMIRAL OR ADMIRAL, UNLESS THEY ARE SERVING IN ONE OF THE POSITIONS FOR WHICH THE RANK OF VICE ADMIRAL OR ADMIRAL IS AUTHORIZED FOR AN OFFICER ON THE ACTIVE LIST.'

5. AS HEREINBEFORE STATED, VICE ADMIRAL WILLSON WAS NOT HERETOFORE, NOR IS HE NOW, SERVING IN ONE OF THE POSITIONS FOR WHICH THE RANK OF ADMIRAL OR VICE ADMIRAL IS AUTHORIZED FOR AN OFFICER ON THE ACTIVE LIST BY THE ACT OF MAY 22, 1917, AS EXTENDED BY THE ACT OF JULY 17, 1941; BUT THE PRESIDENT, WITH THE CONCURRENCE OF THE SENATE, APPOINTED HIM A VICE ADMIRAL FOR TEMPORARY SERVICE AND, WHILE SO SERVING IN THAT RANK, HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF VICE ADMIRAL AND CONTINUED ON ACTIVE DUTY. THE FACTS IN HIS CASE ARE DIFFERENT ESSENTIALLY FROM THOSE PREVIOUSLY CONSIDERED BY THE COMPTROLLER GENERAL IN 20 COMP. GEN. 164 (161) AND 22 COMP. GEN. 284 IN THAT THE PRIOR DECISIONS INVOLVED CONSTRUCTION OF LAWS AND CIRCUMSTANCES UNDER WHICH OFFICERS WERE RETIRED IN THE RANK OF REAR ADMIRAL AND ADVANCED ON THE RETIRED LIST TO THE RANK OF ADMIRAL OR VICE ADMIRAL, THE RANK PREVIOUSLY HELD ON THE ACTIVE LIST BY REASON OF HAVING SERVED AS CHIEF OF NAVAL OPERATIONS OR AS COMMANDER OF A FLEET OR SUBDIVISION THEREOF.

6. IN VIEW OF THE PRIOR RULINGS OF THE COMPTROLLER GENERAL, IT HAS NOT BEEN CONSIDERED ADVISABLE TO CREDIT VICE ADMIRAL WILLSON WITH THE PERSONAL MONEY ALLOWANCE OF $500.00 SINCE JANUARY 1, 1943, DATE ON WHICH HE WAS PLACED ON THE RETIRED LIST. HOWEVER, IT WOULD APPEAR THAT VICE ADMIRAL WILLSON HAVING BEEN ENTITLED TO THE PERSONAL MONEY ALLOWANCE WHILE SERVING ON THE ACTIVE LIST IN THE RANK OF VICE ADMIRAL, UNDER AN APPOINTMENT MADE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WOULD BE ENTITLED TO CONTINUE IN RECEIPT OF SUCH MONEY ALLOWANCE WHILE SERVING IN THAT RANK ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT IN HIS TEMPORARY RANK OF VICE ADMIRAL. * * *

SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, PROVIDES:

AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

THE NINTH PARAGRAPH OF SECTION ONE OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 359, PUBLIC LAW 607, PROVIDES:

OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT TEMPORARILY APPOINTED TO HIGHER GRADES OR RANKS SHALL, FOR THE PURPOSES OF THIS ACT, BE CONSIDERED OFFICERS OF SUCH GRADES OR RANKS WHILE HOLDING SUCH TEMPORARY APPOINTMENTS.

THE SECOND PARAGRAPH OF SECTION 7 OF THE SAID PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, PROVIDES, IN PART:

OFFICERS OF THE NAVY SERVING IN THE GRADE OF VICE ADMIRAL * * * SHALL BE ENTITLED, WHILE SO SERVING, TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) AND TO A PERSONAL MONEY ALLOWANCE OF $500 PER YEAR. * * *

SECTION 15 OF THE SAID PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES IN PART:

* * * RETIRED OFFICERS OF THE * * * NAVY * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY * * *.

HAVING BEEN RETIRED IN THE RANK OF VICE ADMIRAL PURSUANT TO SECTION 8 (A) OF THE ACT OF JULY 24, 1941, SUPRA, VICE ADMIRAL WILLSON HOLDS THAT RANK ON THE RETIRED LIST AND, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, WOULD APPEAR TO BE ENTITLED, UNDER THE EXPRESS PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, TO THE "FULL PAY AND ALLOWANCES" OF THAT GRADE OR RANK WHILE SERVING ON ACTIVE DUTY IN SUCH GRADE OR RANK SUBSEQUENT TO RETIREMENT, WHICH "FULL PAY AND ALLOWANCES" WOULD INCLUDE THE "PERSONAL MONEY ALLOWANCE OF $500 PER YEAR" WHICH SECTION 7 OF THAT ACT EXPRESSLY PROVIDES SHALL BE PAID TO OFFICERS OF THE NAVY "SERVING IN THE GRADE OF VICE MIRAL.'

THE ONLY DOUBT IN THE MATTER ARISES FROM THE CONSIDERATIONS DISCUSSED IN THE DECISION OF SEPTEMBER 30, 1942, 22 COMP. GEN. 284, CITED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHERE IT WAS CONCLUDED THAT OFFICERS ON THE RETIRED LIST OF THE NAVY WITH THE RANK OF ADMIRAL OR VICE ADMIRAL ARE NOT ENTITLED WHILE ON ACTIVE DUTY TO THE PERSONAL MONEY ALLOWANCES UNDER SAID SECTION 7 OF THE PAY READJUSTMENT ACT UNLESS THEY ARE SERVING IN ONE OF THE POSITIONS FOR WHICH THE RANK OF VICE ADMIRAL OR ADMIRAL IS AUTHORIZED FOR AN OFFICER ON THE ACTIVE LIST. THAT DECISION WAS ON THE BASIS THAT THE GENERAL LANGUAGE IN SECTION 7 OF THE PAY READJUSTMENT ACT PROVIDING THAT OFFICERS OF THE NAVY SERVING IN THE GRADES OF VICE ADMIRAL AND ADMIRAL SHALL BE ENTITLED, WHILE SO SERVING, TO THE PAY AND ALLOWANCE OF A REAR ADMIRAL AND TO A STIPULATED PERSONAL MONEY ALLOWANCE HAD REFERENCE TO OFFICERS OF LOWER RANK TEMPORARILY SERVING IN THOSE GRADES PURSUANT TO THE ACT OF AUGUST 29, 1916, 39 STAT. 558, SECTION 18 OF THE ACT OF MAY 22, 1917, 40 STAT. 89, OR THE ACT OF JULY 17, 1941, 55 STAT. 598, WHICH CONCLUSION, IN TURN, WAS ON THE BASIS THAT OFFICERS ON THE ACTIVE LIST WERE ENTITLED TO SUCH HIGHER RANKS ONLY WHEN SERVING IN THE LIMITED SITUATIONS DESCRIBED IN THOSE ACTS. HOWEVER, THAT DECISION DID NOT TAKE INTO CONSIDERATION THE TEMPORARY APPOINTMENT OF OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS TO HIGHER RANKS OR GRADES IN TIME OF WAR OR NATIONAL EMERGENCY PURSUANT TO SECTION 3 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, WITHOUT EXPRESS LIMITATION AS TO ANY SPECIFIC DUTIES TO BE ASSIGNED, OR THE PROVISIONS IN SECTION 8 OF THAT ACT AUTHORIZING THE RETIREMENT OF SUCH OFFICERS, UNDER CERTAIN CONDITIONS, IN THEIR HIGHER TEMPORARY RANKS. IN THE LIGHT OF YOUR PRESENT SUBMISSION THE CONCLUSION APPEARS REQUIRED THAT THE GENERAL PROVISIONS IN SECTION 7 OF THE PAY READJUSTMENT ACT, SUBSEQUENTLY ENACTED--- AND WHICH CHANGED THE LANGUAGE THERETOFORE CONTAINED IN SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, WITH RESPECT TO THE PAY AND ALLOWANCES OF OFFICERS SERVING IN THE GRADES OF VICE ADMIRAL AND ADMIRAL--- WERE NOT INTENDED TO BE RESTRICTED TO OFFICERS SERVING WITH THAT RANK IN THE PARTICULAR SITUATIONS SPECIFIED IN THE SAID THREE EARLIER ACTS OF AUGUST 29, 1916, MAY 22, 1917, AND JULY 17, 1941, BUT WERE INTENDED TO APPLY GENERALLY TO ALL OFFICERS SERVING IN SUCH RANKS FROM AND AFTER JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, INCLUDING, BY VIRTUE OF THE PROVISIONS OF SECTION 15 OF THAT ACT, SUPRA, RETIRED OFFICERS SERVING ON ACTIVE DUTY IN SUCH RANKS. THE DECISION OF SEPTEMBER 30, 1942, IS MODIFIED ACCORDINGLY.

IT FOLLOWS THAT, IF OTHERWISE ENTITLED, VICE ADMIRAL WILLSON IS ENTITLED TO PAYMENT OF THE PERSONAL MONEY ALLOWANCE OF $500 A YEAR WHILE SERVING ON ACTIVE DUTY IN THE RANK OF VICE ADMIRAL SUBSEQUENT TO HIS RETIREMENT ON JANUARY 1, 1943.