B-5639, SEPTEMBER 6, 1939, 19 COMP. GEN. 323

B-5639, SEPTEMBER 6, 1939, 19 COMP. GEN. 323

PAY - ADDITIONAL - AIDES - NAVY OFFICERS - EFFECT OF RETROACTIVE PROMOTION AND ADDITIONAL "SEPARATE AND DISTINCT" DUTIES A NAVY OFFICER, TO BE ENTITLED TO ADDITIONAL PAY AS AIDE UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, MUST BE OF A GRADE NOT ABOVE LIEUTENANT, BUT AN OFFICER'S RIGHT TO AIDE'S PAY IS NOT AFFECTED BY THE FACT THAT UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892, AN OFFICER WHEN ADVANCED IN RANK PURSUANT TO LAW IS ENTITLED TO PAY OF THE ADVANCED RANK RETROACTIVELY FROM DATE OF RANK AS STATED IN THE COMMISSION. WHERE A NAVY OFFICER'S ORDERS ASSIGNED HIM TO DUTY AS AIDE TO A REAR ADMIRAL WITH ADDITIONAL DUTY "UNDER INSTRUCTION AT THE NAVAL WAR COLLEGE," HE IS NOT ENTITLED TO ADDITIONAL PAY AS AIDE FOR THE PERIOD INVOLVED, AS DUTY UNDER INSTRUCTIONS AT THE WAR COLLEGE WAS "SEPARATE AND DISTINCT" FROM DUTY AS AIDE, IT BEING ESSENTIAL TO QUALIFY AN OFFICER FOR ADDITIONAL PAY AS AIDE TO A REAR ADMIRAL THAT THE DUTY SO PERFORMED NOT BE COMBINED WITH OTHER DUTIES "SEPARATE AND DISTINCT" FROM THOSE OF AN AIDE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 6, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 17, 1939, FORWARDING THE REQUEST OF THE DISBURSING OFFICER, NAVAL TRAINING STATION, NEWPORT, R.I., FOR DECISION WHETHER LT. COMDR. THOMAS C. RAGAN, UNITED STATES NAVY, IS ENTITLED TO AIDE'S PAY FOR THE PERIOD JUNE 30, TO JULY 20, 1939, UNDER ORDERS OF JUNE 6, 1939, AS FOLLOWS: FROM: THE CHIEF OF THE BUREAU OF NAVIGATION. TO: LIEUTENANT THOMAS C. RAGAN, U.S.N., STAFF, COMMANDER, BATTLE FORCE. VIA: COMMANDER, BATTLE FORCE. SUBJECT: ORDERS OF APRIL 17, 1939, MODIFIED.

1.YOUR ORDERS OF APRIL 17, 1939, ARE SO FAR MODIFIED THAT AFTER ARRIVAL AT NEWPORT, R.I., AND UPON THE REPORTING OF REAR ADMIRAL EDWARD C. KALBFUS, U.S.N., AS PRESIDENT, NAVAL WAR COLLEGE, YOU WILL REPORT TO THAT OFFICER FOR DUTY AS HIS AIDE WITH ADDITIONAL DUTY UNDER INSTRUCTION AT THE NAVAL WAR COLLEGE.

2. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

INDORSEMENTS ON THESE ORDERS SHOW THAT LIEUTENANT COMMANDER RAGAN REPORTED TO THE PRESIDENT OF THE NAVAL WAR COLLEGE FOR DUTY UNDER INSTRUCTIONS ON JUNE 27, 1939, AND THAT HE ALSO REPORTED TO REAR ADMIRAL E. C. KALBFUS "FOR DUTY AS AIDE" ON JUNE 30, 1939. IT IS STATED IN THE SUBMISSION THAT LIEUTENANT RAGAN WAS PROMOTED TO THE RANK OF LIEUTENANT COMMANDER AND EXECUTED OATH OF OFFICE AND ACCEPTANCE ON JULY 21, 1939.

ONE OF THE QUALIFICATIONS ESSENTIAL TO ENTITLE AN OFFICER TO ADDITIONAL PAY AS AIDE UNDER PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, IS THAT THE OFFICER MUST BE OF A GRADE NOT ABOVE LIEUTENANT. HOWEVER, AN OFFICER'S RIGHT TO AIDE'S PAY IS NOT EFFECTED BY THE FACT THAT UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 892, AN OFFICER WHEN ADVANCED IN RANK PURSUANT TO LAW IS ENTITLED TO PAY OF THE ADVANCED RANK RETROACTIVELY FROM DATE OF RANK AS STATED IN THE COMMISSION. KNOX V. UNITED STATES, 52 CT.1CLS. 22; DOWNES V. UNITED STATES, 52 CT.1CLS. 237, 327.

ANOTHER ESSENTIAL TO QUALIFY AN OFFICER FOR ADDITIONAL PAY AS AIDE TO A REAR ADMIRAL IS THAT THE DUTY SO PERFORMED CANNOT BE COMBINED WITH OTHER DUTIES SEPARATE AND DISTINCT FROM THOSE OF AN AIDE. KNOX V. UNITED STATES, 52 CT.1CLS. PAGE 27. LIEUTENANT COMMANDER RAGAN WAS DIRECTED BY HIS ORDERS TO PERFORM DUTY "UNDER INSTRUCTIONS AT THE NAVAL WAR COLLEGE.' IN THE SUBMISSION THERE IS CITED DECISION OF THE COMPTROLLER OF THE TREASURY, MARCH 21, 1912, 18 COMP. DEC. 721, AS APPARENTLY AUTHORIZING AIDE'S PAY UNDER ORDERS DIRECTING THE OFFICER TO REPORT TO A REAR ADMIRAL "FOR DUTY AS HIS AIDE AND FOR SUCH OTHER DUTY AS HE MAY ASSIGN YOU AT THE STATION UNDER HIS COMMAND,"AS AUTHORIZING AIDE'S PAY NOTWITHSTANDING THE OFFICER PERFORMED OTHER DUTY PURSUANT TO HIS ORDERS. IN THAT CONNECTION YOUR ATTENTION IS INVITED TO THE CERTIFICATE OF THE REAR ADMIRAL CONCERNED AS FOLLOWS;

1. RESPECTFULLY FORWARDED TO THE COMPTROLLER OF THE TREASURY INVITING ATTENTION TO THE FACT THAT LIEUT. SWANSON, IN COMPLIANCE WITH SPECIFIC ORDERS FROM THE SECRETARY OF THE NAVY, REPORTED TO ME AS MY PERSONAL AIDE ON DECEMBER 14, 1911. SINCE THAT DATE HE HAS BEEN PERFORMING THE DUTIES AS SUCH AS THOSE ALONE AS MY PERSONAL AIDE, BEARING THE PERSONAL EXPENSE AND WEARING THE ADDITIONAL UNIFORM PERTAINING TO THOSE DUTIES.

IN ANY EVENT, THAT DECISION WAS RENDERED PRIOR TO THE DECISION OF THE COURT OF CLAIMS IN THE KNOX CASE DECIDED JANUARY 8, 1917. SINCE THE KNOX CASE THE DECISIONS OF THIS OFFICE HAVE HELD THAT WHERE THE DEPARTMENT IN ASSIGNING AN OFFICER TO DUTY AS AIDE TO A REAR ADMIRAL ALSO ASSIGNS HIM TO ADDITIONAL DUTIES THE OFFICER IS NOT ENTITLED TO AIDE'S PAY. DECISIONS A- 11843, MAY 10, 1927; A-19895, NOVEMBER 5, 1927; A-90433, NOVEMBER 20, 1937. SINCE DUTY UNDER INSTRUCTIONS AT THE WAR COLLEGE WAS "SEPARATE AND DISTINCT" FROM DUTY AS AIDE TO REAR ADMIRAL KALBFUS, YOU ARE ADVISED THAT LIEUTENANT COMMANDER RAGAN IS NOT ENTITLED TO ADDITIONAL PAY AS AIDE FOR THE PERIOD IN QUESTION.