B-34770, JUNE 15, 1943, 22 COMP. GEN. 1107

B-34770, JUNE 15, 1943, 22 COMP. GEN. 1107

TRANSPORTATION OF HOUSEHOLD EFFECTS - NAVAL OFFICER - WEIGHT ALLOWANCE - CHANGE OF STATION PRIOR TO RECEIPT OF NOTICE OF PROMOTION WHERE A NAVAL OFFICER, PRIOR TO RECEIPT OF NOTICE OF HIS TEMPORARY PROMOTION TO A HIGHER RANK, IS REQUIRED TO COMPLY WITH ORDERS FOR A PERMANENT CHANGE OF STATION AS AN OFFICER OF THE LOWER RANK, HE IS NOT ENTITLED TO THE WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS AUTHORIZED BY NAVY REGULATIONS TO BE TRANSPORTED IN KIND FOR OFFICERS OF THE HIGHER RANK, BY VIRTUE OF SECTION 5 OF THE ACT OF JUNE 30, 1942, PROVIDING THAT PERSONNEL TEMPORARILY APPOINTED PURSUANT TO THE ACT OF JULY 24, 1941, SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE RANK TO WHICH SO APPOINTED FROM THE DATE SUCH APPOINTMENTS ARE MADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 15, 1943:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1943, REQUESTING DECISION ON A QUESTION PRESENTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IN A LETTER DATED MAY 18, 1943, AS FOLLOWS:

1. IN DECISION OF NOVEMBER 14, 1933, A-51525, THE COMPTROLLER GENERAL HELD THAT AN OFFICER ORDERED TO MAKE A PERMANENT CHANGE OF STATION AND PROMOTED FROM THE RANK OF LIEUTENANT TO THE RANK OF LIEUTENANT COMMANDER WAS NOT ENTITLED TO TRANSPORTATION OF THE WEIGHT OF HOUSEHOLD EFFECTS AUTHORIZED FOR A LIEUTENANT COMMANDER UPON PERMANENT CHANGE OF STATION--- ALTHOUGH THE EFFECTIVE DATE OF THE OFFICER'S ORDERS WAS SUBSEQUENT TO THE DATE SPECIFIED IN HIS COMMISSION AS A LIEUTENANT COMMANDER--- BECAUSE THE COMMISSION AS A LIEUTENANT COMMANDER WAS ACCEPTED SUBSEQUENT TO THE EFFECTIVE DATE OF SUCH ORDERS.

2. THE APPLICABLE LAW AT THE DATE OF CITED DECISION WAS THE ACT OF MARCH 4, 1913, 37 STAT. 892, 34 U.S.C. 870, WHICH PROVIDED THAT OFFICERS OF THE NAVY ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHOULD BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS. PRESUMABLY, THE DECISION WAS BASED UPON THE PREMISE THAT THE RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS WAS NOT AN "ALLOWANCE" WITHIN THE MEANING OF THAT TERM AS USED IN THE CITED ACT. APPLYING THE DECISION, IT HAS BEEN CONSIDERED THAT THE EFFECTIVE DATE OF THE ORDERS WAS THE DATE OF THE OFFICER'S DETACHMENT FROM THE OLD DUTY STATION, AND THAT THE DATE OF HIS ADVANCEMENT IN RANK (FOR PURPOSES OF COMPUTING AUTHORIZED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS) WAS THE DATE OF HIS EXECUTION OF OATH AND ACCEPTANCE OF THE HIGHER RANK.

3. SECTION 5 OF THE ACT OF JUNE 30, 1942, PUBLIC LAW 639 - 77TH CONGRESS, PROVIDES AS FOLLOWS:

"PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE ENTITLED ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK 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.'

4. SINCE THE ACT OF JUNE 30, 1942, DISPENSES WITH THE NECESSITY FOR FORMAL ACCEPTANCE OR OATH OF OFFICE, AND SINCE IT PROVIDES THAT APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, PUBLIC LAW 188, 77TH CONGRESS, SHALL BE REGARDED "FOR ALL PURPOSES" AS HAVING BEEN ACCEPTED ON THE DATE MADE, IT WOULD APPEAR THAT AN OFFICER PROMOTED UNDER THE LATTER ACT SHOULD BE ENTITLED TO TRANSPORTATION OF THE WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS FOR AN OFFICER OF THE RANK TO WHICH HE WAS PROMOTED FROM THE DATE ON WHICH HIS APPOINTMENT TO THE HIGHER RANK WAS MADE BY THE PRESIDENT.

5. IN VIEW OF THE COMPTROLLER GENERAL'S DECISION OF NOVEMBER 14, 1933, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO RENDER A DECISION AS TO WHETHER AN OFFICER APPOINTED TO A HIGHER RANK UNDER THE ACT OF JULY 24, 1941, AND DETACHED FROM HIS PERMANENT STATION ON OR AFTER THE DATE OF HIS APPOINTMENT BY THE PRESIDENT TO SUCH HIGHER RANK, IS ENTITLED TO TRANSPORTATION OF THE AUTHORIZED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS FOR AN OFFICER OF THE RANK TO WHICH HE WAS PROMOTED, REGARDLESS OF WHETHER THE OFFICER HAD NOTICE OF THE TEMPORARY APPOINTMENT PRIOR TO THE SHIPMENT OF HIS HOUSEHOLD EFFECTS AND REGARDLESS OF WHETHER HE HAD INDICATED HIS ACCEPTANCE OF THE APPOINTMENT.

THE ACT OF MARCH 4, 1913, 37 STAT. 892, CITED IN PARAGRAPH 2 OF THE ABOVE LETTER, PROVIDES:

THAT ALL OFFICERS OF THE NAVY WHO, SINCE THE THIRD DAY OF MARCH EIGHTEEN HUNDRED AND NINETY NINE, HAVE BEEN ADVANCED OR MAY HEREAFTER BE ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS.

SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, QUOTED IN PARAGRAPH 3 OF THE ABOVE LETTER, DOES NOT SUPERSEDE THE ACT OF MARCH 4, 1913, WHICH IS APPLICABLE TO THE REGULAR NAVY, BUT SUPPLEMENTS AND EXTENDS ITS PRACTICAL EFFECT TO INCLUDE PERSONNEL TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941, 55 STAT. 603. THE ACT OF MARCH 4, 1913, IS STILL APPLICABLE TO PERMANENT PROMOTIONS IN THE REGULAR NAVY.

IT WAS HELD IN THE CITED DECISION OF NOVEMBER 14, 1933, THAT AN OFFICER IN THE NAVY WHO RECEIVED NOTICE OF HIS PROMOTION AND ACCEPTED APPOINTMENT TO A HIGHER RANK SUBSEQUENT TO THE EFFECTIVE DATE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION, WAS ENTITLED TO HAVE SHIPPED AT PUBLIC EXPENSE ONLY THE AUTHORIZED CHANGE OF STATION ALLOWANCE PRESCRIBED FOR THE RANK IN WHICH HE WAS SERVING AT THE TIME THE RIGHT ACCRUED. THE RULE WAS STATED IN THE SAID DECISION AS FOLLOWS:

THE AMOUNT OF BAGGAGE WHICH AN OFFICER IS ENTITLED TO HAVE TRANSPORTED AT GOVERNMENT EXPENSE ON CHANGE OF STATION IS THE AMOUNT AUTHORIZED BY REGULATIONS FOR HIS RANK WHEN HIS ORDERS BECOME EFFECTIVE AND AN ORDER TO MAKE A PERMANENT CHANGE OF STATION IS EFFECTIVE ON THE DATE ON WHICH IT IS REQUIRED TO BE OBEYED. A-22309, JUNE 15, 1928. THE TRANSPORTATION FURNISHED IS A SERVICE TO BE RENDERED IN KIND AND MUST NECESSARILY DEPEND ON THE OFFICER'S RANK WHEN THE RIGHT ACCRUES. * *

THAT DECISION, WHICH HAS UNIFORMLY BEEN FOLLOWED, WAS BASED UPON THE FACT THAT THE TRANSPORTATION OF HOUSEHOLD EFFECTS FURNISHED AN OFFICER IS A SERVICE RENDERED IN KIND, AND THAT THE MEASURE THEREOF DEPENDS UPON THE RANK WHICH THE OFFICER IN FACT HELD ON THE EFFECTIVE DATE OF THE ORDERS TO MAKE A CHANGE OF STATION. AN OFFICER, PRIOR TO RECEIPT OF INFORMATION OR KNOWLEDGE OF A TEMPORARY PROMOTION, WEARS THE INSIGNIA OF THE LOWER RANK IN WHICH HE IS SERVING, HAS PRECEDENCE IN SUCH LOWER RANK AND ACTUALLY RECEIVES THE ALLOWANCES PRESCRIBED IN KIND FOR SUCH LOWER RANK. IT WAS HELD IN A DECISION OF NOVEMBER 4, 1942, 22 COMP. GEN. 435, THAT SECTION 5 OF THE ACT OF JUNE 30, 1942, SUPRA, WAS NOT INTENDED TO CHANGE, RETROACTIVELY, ACCRUED RIGHTS TO ALLOWANCES FURNISHED NAVY PERSONNEL IN KIND. SEE ALSO DECISION OF MARCH 18, 1943 TO THE SECRETARY OF THE NAVY, B -32969, AND 19 COMP. DEC. 414.

INASMUCH AS AN OFFICER PROMOTED TEMPORARILY IS PRESUMED TO BE FUNCTIONING IN THE LOWER GRADE UNTIL THE TIME OF RECEIPT OF NOTICE OF HIS PROMOTION, WHEN HE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION AS AN OFFICER OF SUCH LOWER RANK, HIS RIGHTS TO TRANSPORTATION OF HOUSEHOLD EFFECTS ARE TO THE SERVICES PRESCRIBED BY NAVY REGULATIONS TO BE FURNISHED TO HIM IN KIND FOR THE RANK WHICH HE IN FACT HELD ON THE EFFECTIVE DATE OF SUCH ORDERS. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.