B-39166, FEBRUARY 10, 1944, 23 COMP. GEN. 578

B-39166, FEBRUARY 10, 1944, 23 COMP. GEN. 578

PAY - AVIATION - CONTINUANCE OF NAVY ENLISTED MEN IN FLYING STATUS AFTER TEMPORARY PROMOTION AS OFFICERS A NAVY ENLISTED MAN WHO, AFTER HIS TEMPORARY APPOINTMENT AS A WARRANT OFFICER UNDER THE ACT OF JULY 24, 1941, CONTINUED TO PERFORM AERIAL FLIGHTS UNDER ORDERS ISSUED TO HIM AS AN ENLISTED MAN BY HIS COMMANDING OFFICER, INSTEAD OF UNDER ORDERS OF THE BUREAU OF NAVAL PERSONNEL ASSIGNING HIM TO FLYING DUTY IN HIS STATUS AS A WARRANT OFFICER AS REQUIRED BY EXECUTIVE ORDER NO. 9195, IS NOT ENTITLED TO FLYING PAY AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, AFTER THE EFFECTIVE DATE OF HIS TEMPORARY APPOINTMENT AS WARRANT OFFICER. WHERE A NAVY ENLISTED MAN, SUBSEQUENT TO THE DATE OF HIS TEMPORARY APPOINTMENT AS A WARRANT OFFICER, CONTINUED TO PERFORM AERIAL FLIGHTS UNDER ORDERS ISSUED TO HIM AS AN ENLISTED MAN BY HIS COMMANDING OFFICER, INSTEAD OF UNDER ORDERS ISSUED BY THE BUREAU OF NAVAL PERSONNEL ASSIGNING HIM TO FLYING DUTY IN HIS STATUS AS A WARRANT OFFICER AS REQUIRED BY EXECUTIVE ORDER NO. 9195, THE SAVED PAY PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, DO NOT OPERATE SO AS TO SAVE TO HIM THE FLYING PAY OF HIS PERMANENT ENLISTED GRADE AFTER THE DATE OF HIS TEMPORARY APPOINTMENT AS WARRANT OFFICER. A NAVY DISBURSING OFFICER WHO, ALTHOUGH IN DOUBT AS TO THE LEGALITY OF A CERTAIN PAYMENT, PROCEEDED TO MAKE SUCH PAYMENT NOTWITHSTANDING THE FACT THAT UNDER SECTION 8 OF THE ACT, JULY 31, 1894, AS AMENDED, HE WAS ENTITLED TO SUBMIT THE MATTER TO THIS OFFICE FOR AN ADVANCE DECISION, MAY NOT BE RELIEVED OF RESPONSIBILITY FOR SUCH ERRONEOUS PAYMENT.

COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 10, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 24, 1943, WITH ENCLOSURES, FILE JAG:K:WJG:HR SO11 7 35, REQUESTING DECISION WHETHER, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH, ENSIGN KENNETH P. MCDANIEL, USN, AND ENSIGN KARL C. LACKEY, USN, ARE ENTITLED TO FLYING PAY PROVIDED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, FOR OFFICERS, WARRANT OFFICERS, ENLISTED MEN, ETC., WHO BY ORDERS OF COMPETENT AUTHORITY ARE REQUIRED TO PARTICIPATE AND DO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.

IT APPEARS THAT PRIOR TO JUNE 25, 1942, THESE OFFICERS THEN SERVING AS ENLISTED MEN--- AVIATION CHIEF MACHINIST'S MATES--- BY ORDERS OF COMPETENT AUTHORITY WERE REQUIRED TO PARTICIPATE AND DID PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND ACCORDINGLY THEY WERE AT THAT TIME BEING CREDITED WITH OR PAID FLYING PAY AS PROVIDED IN THE CITED STATUTE. JUNE 25, 1942, PRESUMABLY UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, 55 STAT. 603, THEY WERE GIVEN TEMPORARY APPOINTMENTS AS MACHINISTS (WARRANT OFFICERS), MCDANIEL ACCEPTING SUCH APPOINTMENT ON NOVEMBER 10, 1942, AND LACKEY ON AUGUST 8, 1942.

BY THE TERMS OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, IN ORDER TO BE ENTITLED TO FLYING PAY WARRANT OFFICERS OF THE NAVY MUST BE ASSIGNED TO DUTY REQUIRING REGULAR AND FREQUENT FLIGHTS BY ORDERS OF THE BUREAU OF NAVAL PERSONNEL. APPARENTLY, NO ORDERS WERE EVER ISSUED BY THE BUREAU OF NAVAL PERSONNEL TO MCDANIEL AND LACKEY ASSIGNING THEM TO FLYING DUTIES SUBSEQUENT TO THEIR TEMPORARY APPOINTMENT AS MACHINISTS NOR WERE SUCH ORDERS ISSUED--- AT LEAST NOT BEFORE AUGUST 1943--- SUBSEQUENT TO THEIR TEMPORARY APPOINTMENTS AS ENSIGNS ON MAY 15 AND JUNE 15, 1943, RESPECTIVELY. HOWEVER, IT IS STATED THAT DURING THE ENTIRE PERIOD AFTER THEIR TEMPORARY APPOINTMENT AS MACHINISTS, AND AS ENSIGNS, AND UNTIL AUGUST 1943, THEY CONTINUED TO PERFORM AERIAL FLIGHTS UNDER ORDERS ISSUED TO THEM AS ENLISTED MEN BY THE COMMANDING OFFICER, NAVAL PROVING GROUND, DAHLGREN, VIRGINIA, AND THAT FOR SUCH PERIOD THEY WERE CREDITED WITH OR WERE PAID THE PAY AND ALLOWANCES, WITH FLYING PAY, OF THEIR PERMANENT ENLISTED GRADE OF AVIATION CHIEF MACHINIST'S MATE. IN AN UNDATED STATEMENT, CONTAINED IN THE FILE, THE DISBURSING OFFICER PAYING THEIR ACCOUNTS, LIEUTENANT G. O. R. ROBERSON ( SC), USN, MAKES THE FOLLOWING EXPLANATION WITH RESPECT TO THESE PAYMENTS:

WHEN ENSIGNS LACKEY AND MCDANIEL (THEN AVIATION CHIEF MACHINIST'S MATES (PERMANENT APPOINTMENT) (, RECEIVED THEIR TEMPORARY APPOINTMENTS AS WARRANT MACHINISTS, A CAREFUL STUDY OF ALNAVS 188, 205, AND 218 OF 1942 AND OF ALL OTHER AVAILABLE EXISTING INSTRUCTIONS WAS MADE. VARIOUS PERSONS IN THE BUREAU OF SUPPLIES AND ACCOUNTS WERE ALSO CONTACTED BY TELEPHONE AND QUESTIONED AS TO THE PROPRIETY OF CREDITING THESE OFFICERS WITH THE PAY OF THEIR PERMANENT ENLISTED STATUS PLUS ALLOWANCES, WHICH INCLUDING AVIATION PAY, WAS GREATER THAN THEIR PAY AS WARRANT OFFICERS.

THE CONCLUSION OF THIS STUDY WAS THAT THEY WERE ENTITLED TO RECEIVE THEIR SAVED PAY AND ALLOWANCES, INCLUDING AVIATION PAY, IF SUBSTANTIATED BY FLIGHT CERTIFICATES. FLIGHT CERTIFICATES WERE FURNISHED SUBSTANTIATING CREDITS OF AVIATION PAY TO THEIR ACCOUNTS.

IT WAS BELIEVED THAT THE ISSUANCE OF ORDERS TO DUTY INVOLVING FLYING, BY THE COMMANDING OFFICER, IN THE CASE OF OFFICER PERSONNEL DRAWING SAVED PAY OF THEIR ENLISTED STATUS, CONSTITUTED COMPETENT AUTHORITY WITHIN THE MEANING OF THE LAW.

HOWEVER, WHEN "ADMINISTRATIVE EXAMINATION" OF THE PAY ROLLS FOR THE FOURTH QUARTER 1943, WAS MADE, EXCEPTION WAS TAKEN TO THE CREDIT OF "AVIATION PAY," STATING THAT NO ORDERS TO DUTY INVOLVING FLYING, ISSUED BY COMPETENT AUTHORITY, WERE ON FILE. THE BUREAU OF SUPPLIES AND ACCOUNTS, HOLDS THAT THE FACT THESE OFFICERS ARE DRAWING "SAVED PAY OF THEIR PERMANENT ENLISTED STATUS" DOES NOT AUTHORIZE THEIR BEING ORDERED TO DUTY INVOLVING FLYING, EXCEPT BY BUREAU OF NAVAL PERSONNEL ORDERS, AND THEY WERE NOT, THEREFORE, ENTITLED TO DRAW AVIATION PAY.

YOU NOW REQUEST DECISION AS TO WHETHER UNDER THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, THE PAYMENTS AS MADE WERE AUTHORIZED BY LAW, PARTICULAR REFERENCE BEING MADE TO DECISION OF THIS OFFICE DATED AUGUST 31, 1943, 23 COMP. GEN. 147; AND, IF NOT, WHETHER THE OFFICERS MAY BE PERMITTED TO RETAIN THE AMOUNTS THUS RECEIVED ON THE BASIS OF THEIR HAVING BEEN IN A DE FACTO STATUS DURING THE PERIOD IN QUESTION, UNDER THE RULING IN THE CASE OF ROYER V. UNITED STATES, U.S. 394.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, AS ORIGINALLY ENACTED, PROVIDED IN PERTINENT PART:

* * * THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.

THAT PROVISO WAS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, TO READ AS FOLLOWS:

THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT * * *.

IN THE DECISION OF AUGUST 31, 1943, 23 COMP. GEN. 147, REFERRED TO IN YOUR LETTER, THERE WAS CONSIDERED THE CASE OF A LIEUTENANT IN THE NAVY WHO, WHILE SERVING AS AN AIDE TO A REAR ADMIRAL, WAS PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COMMANDER UNDER THE AUTHORITY OF THE SAID ACT OF JULY 24, 1941. HE CONTINUED TO SERVE AS AN AIDE AFTER SUCH PROMOTION AND HE CLAIMED THE SAVED PAY AND ALLOWANCES OF A LIEUTENANT INCLUDING THE ADDITIONAL PAY FOR AN AIDE UNDER THE PROVISION OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941. WHILE ONE OF THE QUALIFICATIONS TO ENTITLE AN OFFICER OF THE NAVY TO ADDITIONAL PAY AS AN AIDE IS THAT THE OFFICER BE OF A GRADE NOT ABOVE LIEUTENANT, IT WAS HELD THAT BY VIRTUE OF THE STATUTORY PROVISION REFERRED TO THE OFFICER WAS ENTITLED TO CONTINUE TO DRAW HIS PAY AND ALLOWANCES OF HIS PERMANENT GRADE OF LIEUTENANT, INCLUDING AIDE'S PAY, WHILE SERVING UNDER HIS TEMPORARY APPOINTMENT AS LIEUTENANT COMMANDER PROVIDED HE CONTINUE TO SERVE ALSO AS AN AIDE. THAT CONNECTION IT WAS STATED (23 COMP. GEN. 149):

* * * IF LIEUTENANT GAYLORD HAD NOT BEEN TEMPORARILY PROMOTED TO THE RANK OF LIEUTENANT COMMANDER, UNQUESTIONABLY HE WOULD HAVE BEEN ENTITLED TO AIDE'S PAY WHILE HE CONTINUED TO SERVE AS AN AIDE. IT FOLLOWS THAT UNDER THE EXPRESS TERMS OF THE STATUTE AND THE PRINCIPLES STATED IN THE DECISION OF MAY 15, 1942, 21 COMP. GEN. 1012, SUPRA, SUCH PAY WAS SAVED TO HIM, IN CONJUNCTION WITH OTHER PAY AND ALLOWANCES OF HIS PERMANENT GRADE, WHILE HE CONTINUED TO SERVE AS AN AIDE AFTER HIS TEMPORARY PROMOTION TO A HIGHER RANK, AND WHILE THE TOTAL OF THE PAY AND ALLOWANCE OF THE LOWER PERMANENT GRADE, INCLUDING AIDE'S PAY WAS IN EXCESS OF THE PAY AND ALLOWANCES OF HIGH HIGHER TEMPORARY GRADE, EXCLUDING AIDE'S PAY NOT AUTHORIZED TO BE PAID IN SUCH HIGHER GRADE. * * * HOWEVER, IT WILL BE NOTED THAT THERE WERE NO FORMALITIES NECESSARY TO PERMIT THE OFFICER IN THAT CASE TO CONTINUE TO SERVE AS AN AIDE. THE ONLY QUESTION INVOLVED WAS WHETHER, WHILE SO CONTINUING TO SERVE, HE WOULD BY VIRTUE OF THE PROVISIONS IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, BE ENTITLED TO CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS PERMANENT RANK OF LIEUTENANT, INCLUDING AIDE'S PAY, REGARDLESS OF THE FACT THAT AS A LIEUTENANT COMMANDER HE WOULD NOT UNDER THE LAW BE ENTITLED TO AIDE'S PAY.

IN DECISION OF JULY 14, 1943, 23 COMP. GEN. 21, 24, IT WAS STATED THAT THE ABOVE-QUOTED PROVISION OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, WOULD NOT OPERATE TO SAVE FLYING PAY FOR PERIODS AFTER THE TEMPORARY APPOINTMENT WHEN THE PERSON WAS NOT ON FLYING DUTY, BECAUSE THE REDUCTION IN SUCH CASES IS NOT DUE TO THE TEMPORARY APPOINTMENT BUT TO BEING RELIEVED FROM FLYING DUTY. AS STATED ABOVE, IN ORDER TO BE ENTITLED TO FLYING PAY, OFFICERS OF THE NAVY, INCLUDING WARRANT OFFICERS, MUST BE ASSIGNED TO DUTIES REQUIRING THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF THE BUREAU OF NAVAL PERSONNEL. SEE, IN THIS CONNECTION, ARTICLE 2142-6, (C) (1) (B), BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA, WHICH PROVIDES THAT IN COMPUTING SAVED PAY AND ALLOWANCES, ON THE BASIS OF ENLISTED PAY, ONLY ITEMS WHICH THE TEMPORARY OFFICER WAS RECEIVING AT THE TIME OF HIS TEMPORARY APPOINTMENT ARE TO BE INCLUDED AND THAT EXTRA COMPENSATION FOR AVIATION DUTY, ALSO, MAY BE COMPUTED PROVIDED HE IS ASSIGNED TO DUTY INVOLVING FLYING IN HIS STATUS OF TEMPORARY OFFICER. THE OFFICERS HERE CONCERNED WERE NOT SO ASSIGNED; THEREFORE, THE SAID SAVING PROVISION OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, WOULD NOT HAVE ANY APPLICATION TO THEIR SITUATION. YOUR QUESTION IN THIS RESPECT IS ANSWERED IN THE NEGATIVE, LEAVING FOR CONSIDERATION YOUR FURTHER QUESTION WHETHER THESE OFFICERS ARE ENTITLED TO RETAIN AMOUNTS RECEIVED BY THEM AS FLYING PAY ON THE BASIS OF THEIR HAVING BEEN IN A DE FACTO STATUS DURING THE PERIOD INVOLVED.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDES:

* * * THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT, SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED * * *.

AN ASSIGNMENT TO FLYING DUTY IS NOT AN APPOINTMENT TO AN OFFICE. IN THE ROYER CASE, REFERRED TO BY YOU, THERE WAS CONSIDERED THE QUESTION AS TO WHETHER THE APPOINTMENT OF AN OFFICER TO THE RANK OF MAJOR, NOT BEING A DE JURE APPOINTMENT, COULD BE CONSIDERED AS HAVING PLACED THE OFFICER IN A DE FACTO STATUS AS MAJOR. HERE THERE IS NO APPOINTMENT TO ANY OFFICE, BUT MERELY AN ASSIGNMENT OF ADDITIONAL OR SPECIAL DUTY TO DE JURE MEMBERS OF THE SERVICE. FURTHERMORE, EVEN WERE THE CASE ONE WHICH OTHERWISE MIGHT BE FOR CONSIDERATION UNDER THE PRINCIPLE OF THE ROYER CASE, THE FACTS HERE PRESENT ARE SUCH AS WOULD PRECLUDE ANY FAVORABLE DETERMINATION IN THAT RESPECT. IN ORDER FOR THERE TO BE A DE FACTO STATUS THE PROPRIETY OF THE APPOINTMENT MUST HAVE BEEN FREE FROM DOUBT, INSOFAR AS THE APPOINTING POWER IS CONCERNED, AT THE TIME IT WAS MADE. HERE THE COMMANDING OFFICER ADMITTEDLY WAS IN DOUBT AS TO WHAT COURSE OF ACTION SHOULD BE TAKEN. SUCH DOUBT COULD HAVE BEEN RESOLVED BY A FORMAL SUBMISSION OF THE MATTER TO THE PROPER AUTHORITIES FOR DETERMINATION. HOWEVER, THE COMMANDING OFFICER ELECTED TO ACT UPON HIS OWN INITIATIVE AND THE FACT THAT THE ACTION HE THUS DECIDED TO TAKE WAS INCORRECT CANNOT OPERATE TO OBLIGATE THE GOVERNMENT FOR THE ERRONEOUS PAYMENTS RESULTING THEREFROM. MOREOVER, FROM THE DISBURSING OFFICER'S STATEMENT, HEREINBEFORE QUOTED, IT IS APPARENT THAT HE WAS IN DOUBT AS TO WHETHER THE PAYMENTS HERE INVOLVED WERE LEGAL. YET, HE PROCEEDED TO MAKE SUCH PAYMENTS, NOTWITHSTANDING THE FACT THAT UNDER SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208, AS AMENDED BY THE ACT OF JUNE 10, 1921, 42 STAT. 24; 31 U.S.C. 74 (SEE, ALSO ARTICLE 2302, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL), HE WAS ENTITLED TO SUBMIT THE MATTER TO THIS OFFICE FOR AN ADVANCE DECISION. UNDER SUCH CIRCUMSTANCES, THERE WOULD BE NO BASIS FOR RELIEVING HIM FROM RESPONSIBILITY FOR THE ERRONEOUS PAYMENTS THUS MADE. SEE 14 COMP. GEN. 464.

IN VIEW OF THE FOREGOING, THERE WOULD APPEAR NO BASIS IN LAW FOR PERMITTING ENSIGN MCDANIEL AND ENSIGN LACKEY TO RETAIN AMOUNTS ERRONEOUSLY RECEIVED BY THEM FOR FLYING PAY AFTER THE DATES UPON WHICH THEY WERE GIVEN TEMPORARY APPOINTMENTS AS MACHINISTS.

THE PAPERS TRANSMITTED WITH YOUR LETTER ARE RETURNED HEREWITH AS REQUESTED BY YOU.