B-48979, MAY 26, 1945, 24 COMP. GEN. 854

PAY - SERVICE CREDITS - MIDSHIPMAN SERVICE AN OFFICER COMMISSIONED IN THE NAVAL RESERVE AFTER HAVING RESIGNED HIS COMMISSION IN THE REGULAR NAVY IS NOT ENTITLED TO COUNT SERVICE AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY FROM JULY, 1911, TO JUNE, 1915, FOR PURPOSE OF PAY AS A RESERVE OFFICER UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, EVEN THOUGH--- HAVING BEEN AN OFFICER IN SERVICE ON JUNE 30, 1922, ENTITLED TO COUNT MIDSHIPMAN SERVICE--- SUCH SERVICE HAD BEEN INCLUDED IN THE COMPUTATION OF A REGULAR NAVY OFFICER UNDER THE ACT OF JUNE 10, 1922.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. (JG) S. W. HINRICHS, U.S. NAVAL RESERVE, MAY 26, 945:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1945, WITH ENCLOSURES, AS FOLLOWS: SUBJECT: CAPTAIN ROBERT M. FORTSON, USNR, DECISION REQUIRED ON

REQUEST FOR CHECK AGE ENCLOSURES: (A) USNAB, NAVY 131-S/A

AND R/C 10/17/42 TO 3/31/43 (B) COMSERVRONSOPAC-TPA,

S/A AND R/C 4/1/43 TO 5/6/43 (C) 20TH. US NCB-TPA, S/A

AND R/C 5/7/43 TO 6/30/43 20TH. US NCB-R/C 7/1/43

TO 9/30/43 20TH. US NCB-R/C 10/1/43 TO 11/30/43 (D)

USNB, NAVY 722-TPA, S/A AND R/C 12/1/43 TO 5/18/44 (E)

USNB, NAVY 3149-4/C 5/19/44 TO 6/30/44 USNB, NAVY

3149-R/C 7/1/44 TO 1/31/45

1. THE ENCLOSED STATEMENTS OF ACCOUNTS AND REQUESTS FOR CHECK AGE HAVE BEEN FORWARDED TO THIS ACTIVITY. CAPTAIN FORTSON STATES THAT HE THOROUGHLY DISCUSSED THE MATTER WITH THE DISBURSING OFFICER AT NAVY 134 AND IT WAS DECIDED THAT HE WAS ENTITLED TO LONGEVITY WHILE A MIDSHIPMAN DURING THE PERIOD 7/8/11-6/4/15 SINCE HE CLAIMS IT COUNTED AT THAT TIME.

2. SINCE THEN THE DECISION HAS BEEN RENDERED THAT A MIDSHIPMAN IS NOT ENTITLED TO LONGEVITY.

3. THIS ACTIVITY DOES NOT HAVE SUFFICIENT RECORDS ON HAND TO THOROUGHLY INVESTIGATE THE MATTER, AND AND ACCORDINGLY REQUESTS A DECISION.

4. IF THE DECISION STATES THAT THE SUBJECT OFFICER'S ACCOUNT SHOULD BE CHECKED, IT IS REQUESTED THAT AN ORDER TO THAT EFFECT BE SENT TO THIS ACTIVITY AS SOON AS POSSIBLE SINCE HE HAS STATED THAT THIS ACTIVITY IS NOT TO CHECK HIS ACCOUNT UNTIL A DECISION HAS BEEN RENDERED.

IT APPEARS THAT CAPTAIN FORTSON WAS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY FROM JULY 8, 1911, TO JUNE 5, 1915; THAT HE WAS COMMISSIONED AN ENSIGN IN THE REGULAR NAVY TO RANK FROM DATE OF GRADUATION; AND THAT HE SERVED IN THE REGULAR NAVY UNTIL JULY 26, 1923, ON WHICH DATE HE RESIGNED HIS COMMISSION. ON FEBRUARY 12, 1924, CAPTAIN FORTSON WAS COMMISSIONED IN THE UNITED STATES NAVAL RESERVE AND APPARENTLY HAS SERVED AS AN OFFICER IN THE NAVAL RESERVE SINCE THAT DATE.

IT APPEARS FURTHER THAT BEGINNING WITH OCTOBER 17, 1942, CAPTAIN FORTSON WAS GIVEN CREDIT FOR SERVICE AS A MIDSHIPMAN IN COMPUTING HIS PAY; THAT THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE HAS TAKEN EXCEPTION TO THE INCREASES OF PAY AND ALLOWANCES REFLECTED ON HIS PAY VOUCHERS BY REASON THEREOF FOR THE REASON THAT THE OFFICER IS NOT ENTITLED TO CREDIT FOR MIDSHIPMAN SERVICE IN COMPUTING LONGEVITY PAY; AND THAT THE REQUESTS FOR CHECK AGE ARE BASED ON SUCH AUDIT DIVISION EXCEPTIONS.

IN A FIRST INDORSEMENT DATED MARCH 21, 1945, TO YOUR LETTER OF MARCH 17, CAPTAIN FORTSON STATES AS THE REASON FOR HIS PROTEST, THAT HE WAS CREDITED WITH MIDSHIPMAN SERVICE FOR LONGEVITY PAY PURPOSES DURING HIS SERVICE IN THE REGULAR NAVY; AND SINCE IT IS CUSTOMARY TO INCLUDE A SAVING CLAUSE IN ALL PAY ACTS, WHICH WILL PREVENT THE LOSS OF PAY TO ANY OFFICER WHO THERETOFORE ENJOYED THE BENEFITS OF THE INCREASED CREDITS EXCLUDED BY SUBSEQUENT PAY ACTS, HE BELIEVES THE REQUESTED CHECK AGES ARE BASED ON AN ERRONEOUS INTERPRETATION OF THE PAY ACTS.

IT MAY BE STATED FOR YOUR INFORMATION THAT THIS OFFICE IS WITHOUT AUTHORITY TO ISSUE YOU AN ORDER TO MAKE THE REQUESTED CHECK AGES; HOWEVER, YOUR ATTENTION IS INVITED TO PARAGRAPH 6 (D), (1/-/8), ARTICLE 2150, SUPPLIES AND ACCOUNTS MEMORANDUM NO. 500, MAY, 1944, CONTAINING DETAILED INSTRUCTIONS ON THE SUBJECT. IT WILL BE NOTED THAT SUBPARAGRAPH (D) (7) STATES THAT,"IT IS NOT NECESSARY THAT THE INDIVIDUAL TO A CHECK AGE.' NEITHER IS THIS OFFICE AUTHORIZED TO RENDER YOU A DECISION RELATIVE TO THE PROPRIETY OF REQUESTED CHECK AGES, MADE UPON YOU BY OTHER DISBURSING OFFICERS, WHO APPARENTLY HAD NO OPPORTUNITY TO ACCOMPLISH THE CHECK AGES WHILE CARRYING THE PAY ACCOUNTS OF THE DEBTOR. HOWEVER, THE FILE INDICATES THAT THE OFFICER'S PAY ACCOUNT WAS TRANSFERRED TO YOU ON FEBRUARY 1, 1945, AND IT IS ASSUMED THAT HIS CURRENT PAY VOUCHERS ARE BEFORE YOU FOR PAYMENT. IN ORDER TO AVOID FURTHER DELAY YOUR SUBMISSION WILL BE CONSIDERED AS A REQUEST FOR A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE OFFICER WITH MIDSHIPMAN SERVICE FOR PAY PURPOSES. THE ANSWER TO THAT QUESTION WOULD APPEAR, INCIDENTALLY, TO ANSWER THE QUESTION RELATIVE TO THE PROPRIETY OF THE REQUESTED CHECK AGES.

THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY THE ACTS OF DECEMBER 2, 1942, 56 STAT. 1037, AND SEPTEMBER 7, 1944, 58 STAT. 729 (37 U.S.C. SUPP. IV, 101, ET SEQ.), TITLED," AN ACT TO READJUST THE PAY AND ALLOWANCES OF PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," PROVIDES IN PERTINENT PART AS FOLLOWS:

(SEC. 1.) THAT, FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS OF THE REGULAR ARMY AND MARINE CORPS BELOW THE GRADE OF BRIGADIER GENERAL; OF THE NAVY, THE COAST GUARD, AND THE COAST AND GEODETIC SURVEY BELOW THE GRADE OF REAR ADMIRAL; AND OF THE PUBLIC HEALTH SERVICE BELOW THE GRADE OF ASSISTANT TO THE SURGEON GENERAL, PAY PERIODS ARE PRESCRIBED, AND THE BASE PAY FOR EACH IS FIXED AS FOLLOWS:

THE FIRST PERIOD, $1,800; THE SECOND PERIOD, $2,000; THE THIRD PERIOD, $2,400; THE FOURTH PERIOD, $3,000;, THE FIFTH PERIOD, $3,500; AND THE SIXTH PERIOD, $4,000.

THE PAY OF THE SIXTH PERIOD SHALL BE PAID TO COLONELS OF THE ARMY, CAPTAINS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE; TO LIEUTENANT COLONELS OF THE ARMY, COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, AND LIEUTENANT COMMANDERS OF THE LINE AND ENGINEER CORPS OF THE COAST GUARD, WHO HAVE COMPLETED THIRTY YEARS' SERVICE * * *.

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS.

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF THIS SECTION, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS' RESERVE CORPS, OR IN THE MEDICAL RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE OF COAST AND GEODETIC SURVEY OFFICERS AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS): PROVIDED, THAT FOR OFFICERS IN SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION, IN ADDITION TO THE SERVICE SET FORTH ABOVE, ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME. LONGEVITY PAY FOR OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES WHICH IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE PROVISIONS OF THIS ACT OR AS MAY OTHERWISE BE PROVIDED BY LAW. * *

SEC. 3. WHEN OFFICERS OF THE NATIONAL GUARD OR THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE OFFICERS, ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, THEY SHALL RECEIVE PAY AS PROVIDED IN SECTION 1 OF THIS ACT, AND IN COMPUTING THEIR SERVICE FOR PAY THEY SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS RESERVE CORPS, OR IN THE MEDICAL RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS).

SEC. 3A. IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 1, 3, 8, OR 9 OF THIS ACT, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE OR IN THE MEDICAL RESERVE CORPS OF THE NAVY, THE DENTAL RESERVE CORPS OF THE NAVY, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ENLISTED RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, OR IN THE COAST AND GEODETIC SURVEY AS AUTHORIZED BY SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 (56 STAT. 6). THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY PERSON TO RECEIVE PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES OF HIS RANK, GRADE, OR RATING BY ANY OF THE PROVISIONS OF THIS ACT , NOR TO MODIFY THE CHARACTER OF SERVICE REQUIRED FOR ADVANCEMENT OF COMMISSIONED WARRANT OFFICERS TO A HIGHER PAY PERIOD. * * * * * * * *

SEC. 14. OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, OR PUBLIC HEALTH SERVICE. * * * * * * * *

SEC. 19. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: * * * * * * * * * *

THE PROVISIONS OF THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942.

IT WILL BE NOTED THAT SECTION 1, 56 STAT. 359, COVERS PERIOD AND LONGEVITY PAY FOR OFFICERS OF THE REGULAR NAVY AND THAT SECTION 3, 56 STAT. 1037, COVERS PERIOD AND LONGEVITY PAY FOR OFFICERS OF THE RESERVE FORCES. EACH SECTION, TOGETHER WITH SECTION 3A, 58 STAT. 729, APPLICABLE TO BOTH, CONTAINS AN EXTENSIVE ENUMERATION OF THE ORGANIZATIONS IN WHICH PRIOR SERVICE MAY BE CREDITED IN THE COMPUTATION OF PAY OF OFFICERS SERVING IN THE RESPECTIVE BRANCHES, AND MIDSHIPMAN SERVICE, EXCEPT INSOFAR AS IT IS AUTHORIZED BY THE PROVISO IN SECTION 1 RELATIVE TO OFFICERS OF THE REGULAR NAVY IN SERVICE ON JUNE 30, 1922, IS NOT INCLUDED IN EITHER SECTION. AN OFFICER PAID UNDER EITHER OF THE SECTIONS IS ENTITLED ONLY TO THE PAY AND ALLOWANCES PROVIDED THEREBY, EXCEPT AS AFFECTED BY SECTION 14, 56 STAT. 367, IN THE CASE OF RESERVE OFFICERS.

IF CAPTAIN FORTSON WERE AN OFFICER IN THE REGULAR NAVY, AND HAD SERVED CONTINUOUSLY IN THAT POSITION SINCE HIS GRADUATION FROM THE NAVAL ACADEMY, HE WOULD HAVE BEEN ENTITLED TO CREDIT FOR SUCH MIDSHIPMAN SERVICE IN COMPUTING HIS PERIOD AND LONGEVITY PAY UNDER THE PROVISO OF SECTION 1. COMP. GEN. 463. HOWEVER, SUCH IS NOT THE CASE. THE OFFICER RESIGNED HIS COMMISSION IN THE REGULAR NAVY ON JULY 26, 1923, AND THEREBY SURRENDERED WHATEVER RIGHT HE HAD UNDER THE PROVISO TO COUNT HIS SERVICE WHILE A MIDSHIPMAN FOR THE PURPOSE OF COMPUTING PAY. A SUBSEQUENT REENTRY INTO SERVICE DOES NOT REVIVE THAT RIGHT. HOFFMAN V. UNITED STATES, 66 C.1CLS. 452.

CAPTAIN FORTSON IS SERVING UNDER A COMMISSION IN THE NAVAL RESERVE AND HIS RIGHTS WITH RESPECT TO PAY AND ALLOWANCES NECESSARILY ARE GOVERNED BY THE LAWS APPLICABLE TO THE RESERVE FORCES.

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES IN THAT REGARD AS FOLLOWS: COMMISSIONED OFFICERS * * *, WHEN EMPLOYED ON ACTIVE DUTY * * *, SHALL RECEIVE THE PAY AND ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES. * * * (ITALICS SUPPLIED.)

NEITHER SECTION 3 NOR 3A OF THE ACT OF JUNE 16, 1942, SUPRA, NOR SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDING FOR THE PAY AND ALLOWANCES OF THE RESERVE FORCES PRIOR TO THE ACT OF JUNE 16, 1942, AUTHORIZES MIDSHIPMAN SERVICE TO BE CREDITED IN COMPUTING THE PAY OF OFFICERS, AND SINCE SERVICE AS A MIDSHIPMAN IS NEITHER "COMMISSIONED" NOR "ENLISTED" SERVICE, IT IS SPECIFICALLY EXCLUDED UNDER BOTH ACTS FROM BEING COUNTED FOR PURPOSES OF COMPUTING PAY. HENCE, CAPTAIN FORTSON IS NOT NOW, NOR WAS HE, PRIOR TO THE EFFECTIVE DATE OF THE ACT OF JUNE 16, 1942, AUTHORIZED BY LAW TO COUNT MIDSHIPMAN SERVICE IN COMPUTING PAY AS A RESERVE OFFICER. INASMUCH AS THE OFFICER WAS NOT ENTITLED TO CREDIT FOR MIDSHIPMAN SERVICE IN COMPUTING PAY ON THE EFFECTIVE DATE OF THE SAID ACT OF JUNE 16, 1942, THE SAVING CLAUSE CONTAINED IN SECTION 19 THEREOF, 56 STAT. 369, HAS NO PROPER APPLICATION TO HIS CASE.

THE OFFICER'S RIGHTS IN THE MATTER ARE NOT AFFECTED BY SECTION 14, SUPRA. AN OFFICER OF THE REGULAR NAVY WHOSE GRADE AND LENGTH OF SERVICE CORRESPOND TO CAPTAIN FORTSON-S--- THAT IS, ONE WHO WAS APPOINTED TO THE UNITED STATES NAVAL ACADEMY PRIOR TO AUGUST 24, 1912, AND LATER WAS COMMISSIONED IN THE REGULAR NAVY AND WAS SERVING UNDER THAT COMMISSION ON JUNE 30, 1922, BUT WHO THEREAFTER RESIGNED HIS COMMISSION--- WOULD NOT BE ENTITLED TO COUNT FOR PAY PURPOSES HIS SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY. HOFFMAN V. UNITED STATES, SUPRA.

YOUR SUBMISSION IS ANSWERED ACCORDINGLY AND THE ENCLOSURES TRANSMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.