B-61716, MAY 20, 1948, 27 COMP. GEN. 709

B-61716, MAY 20, 1948, 27 COMP. GEN. 709

AVIATION RESERVE OFFICERS' LUMP-SUM PAYMENT BASED ON CORRECTED RECORDS THE CORRECTION OF A NAVAL RESERVE AVIATION OFFICER'S RECORD, PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, TO SHOW THAT HIS TRANSFER TO THE GRADE OF AVIATION CADET HAD BEEN MADE ON AUGUST 7, 1942, THE DATE OF THE BUREAU OF NAVAL PERSONNEL DISPATCH DIRECTING SUCH TRANSFER--- WHEN IN FACT HE HAD NOT BEEN TRANSFERRED UNTIL SEPTEMBER 9, 1942--- DOES NOT AUTHORIZE THE PAYMENT OF THE LUMP SUM UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, THE PERTINENT PROVISIONS OF WHICH WERE SUSPENDED BY EXECUTIVE ORDER NO. 9268 AS TO OFFICERS FORMERLY TRANSFERRED TO THE GRADE OF AVIATION CADET SUBSEQUENT TO SEPTEMBER 3, 1942.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 20, 1948:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1948, FORWARDING FOR CONSIDERATION A LETTER DATED JANUARY 7, 1948, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO A CORRECTION OF THE RECORDS IN THE CASE OF LIEUTENANT (JG) HERBERT D. COLLYER, UNITED STATES NAVAL RESERVE. THE CIRCUMSTANCES ARE STATED IN YOUR LETTER AS FOLLOWS:

IN YOUR DECISION TO THE SECRETARY OF THE NAVY OF FEBRUARY 10, 1947, (26 C.G. 569), IT WAS HELD THAT LIEUTENANT (JUNIOR GRADE) COLLYER WAS EXCLUDED FROM THE BENEFITS PROVIDED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 (56 STAT. 737, 34 U.S.C., SUPP. V, 850), AND THAT HE WAS NOT, THEREFORE, ENTITLED TO THE LUMP SUM PAYMENT AUTHORIZED BY SAID ACT.

AS STATED IN THE ENCLOSURE, THE BOARD FOR THE CORRECTION OF NAVAL RECORDS, PURSUANT TO SECTION 207 OF THE ACT APPROVED AUGUST 2, 1946 (60 STAT. 812, 837), ON NOVEMBER 18, 1947, SUBMITTED THE FOLLOWING DECISION TO THE SECRETARY OF THE NAVY FOR HIS APPROVAL:

" IT IS THE DECISION OF THIS BOARD THAT HERBERT DAVID COLLYER'S ENLISTED RECORD BE CORRECTED TO SHOW BY AN ENTRY ON PAGE 9 THEREOF, THAT HE WAS TRANSFERRED TO THE RATING OF AVIATION CADET ON 7 AUGUST 1942 AS DIRECTED BY THE BUREAU OF NAVAL PERSONNEL DESPATCH OF THAT DATE.'

THIS DECISION WAS REVIEWED AND APPROVED BY THE SECRETARY OF THE NAVY ON NOVEMBER 18, 1947, AND EFFECTUATED ON DECEMBER 8, 1947, BY CHANGING LIEUTENANT (JUNIOR GRADE) COLLYER'S ENLISTED RECORD IN ACCORDANCE THEREWITH.

IN VIEW OF THE APPROVED ACTION OF THE BOARD FOR THE CORRECTION OF NAVAL RECORDS, YOU REQUEST A DECISION AS TO WHETHER LIEUTENANT COLLYER IS NOW ENTITLED TO A LUMP-SUM PAYMENT UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, NOTWITHSTANDING THE DECISION OF THIS OFFICE TO THE CONTRARY PRIOR TO SUCH CORRECTION OF THE RECORDS.

THE SAID SECTION 12 OF THE NAVAL AVIATION CADET ACT OF AUGUST 4, 1942, 56 STAT. 738, PROVIDES:

WHEN OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY, OR IN THE EVENT OF THE DEATH OF SUCH OFFICERS AFTER CONTINUOUS ACTIVE DUTY FOR ONE OR MORE YEARS, THE BENEFICIARIES SPECIALLY DESIGNATED IN THE MANNER PRESCRIBED BY THE SECRETARY OF THE NAVY, SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE, AND IN THE EVENT OF THEIR DEATH NOT THE RESULT OF THEIR OWN MISCONDUCT, OR IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON THEIR OWN REQUEST OR AS A RESULT OF DISCIPLINARY ACTION, THIS LUMP SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE: PROVIDED, THAT THE LUMP SUM PAYMENTS AUTHORIZED HEREIN SHALL ACCRUE FOR NOT MORE THAN SEVEN YEARS AND SHALL BE IN ADDITION TO ANY PAY, ALLOWANCE, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION, EXCEPT THOSE OF THE FIRST PROVISO THEREOF, MAY BE SUSPENDED DURING WAR OR NATIONAL EMERGENCY WHEN THE PRESIDENT SHALL SO DIRECT, AS TO ALL OFFICERS WHO WERE FORMERLY ENLISTED IN THE GRADE OF AVIATION CADET OR TRANSFERRED TO THAT ENLISTED GRADE MORE THAN THIRTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT.

EXECUTIVE ORDER 9268, NOVEMBER 9, 1942, PROVIDES:

BY VIRTUE OF THE AUTHORITY VESTED IN MY BY THE NAVAL AVIATION CADET ACT OF 1942, APPROVED AUGUST 4, 1942 ( PUBLIC LAW 698--- 77TH CONGRESS), THE PROVISIONS OF SECTION 12 OF SAID ACT, EXCEPT THOSE OF THE FIRST PROVISO THEREOF, ARE HEREBY SUSPENDED DURING THE PRESENT WAR AS TO ALL OFFICERS WHO WERE FORMERLY ENLISTED IN THE GRADE OF AVIATION CADET OR TRANSFERRED TO THAT ENLISTED GRADE SUBSEQUENT TO SEPTEMBER 3, 1942.

IN THE DECISION OF FEBRUARY 10, 1947, 26 COMP. GEN. 569, CITED BY YOU, IT WAS HELD, QUOTING THE SYLLABUS, THAT:

A NAVAL RESERVE AVIATION OFFICER WHO HAD NOT ACTUALLY BEEN PROMOTED FROM SEAMAN, SECOND CLASS, V-5, USNR, TO AVIATION CADET UNTIL AFTER SEPTEMBER 3, 1942, ALTHOUGH COMMANDING OFFICERS HAD BEEN DIRECTED TO MAKE SUCH PROMOTIONS UPON ENACTMENT OF THE NAVAL AVIATION CADET ACT OF AUGUST 4, 1942, MAY NOT BE REGARDED AS HAVING BEEN PROMOTED PRIOR TO SEPTEMBER 4, 1942, SO AS TO BE ENTITLED TO THE LUMP-SUM PAYMENT AUTHORIZED BY SECTION 12 OF SAID ACT, THE PERTINENT PROVISIONS OF WHICH WERE SUSPENDED BY EXECUTIVE ORDER NO. 9268 AS TO OFFICERS TRANSFERRED TO THE GRADE OF AVIATION CADET MORE THAN 30 DAYS AFTER THE APPROVAL OF THE ACT.

SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, APPROVED AUGUST 2, 1946, 60 STAT. 837, PROVIDES:

THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD, RESPECTIVELY, UNDER PROCEDURES SET UP BY THEM, AND ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS, ARE AUTHORIZED TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE.

THE QUESTION THUS PRESENTED IS WHETHER MR. COLLYER, WHO IS NOT ENTITLED TO A LUMP SUM ON THE ACTUAL FACTS IN HIS CASE (HAVING BEEN TRANSFERRED TO THE GRADE OF AVIATION CADET SUBSEQUENT TO SEPTEMBER 3, 1942), MAY BE ENTITLED TO SUCH LUMP SUM ON THE BASIS THAT HIS RECORDS HAVE BEEN ,CORRECTED" TO SHOW SUCH TRANSFER AS OF AUGUST 7, 1942.

IMMEDIATELY FOLLOWING YOUR SUBMISSION IN THE PRESENT CASE THE SECRETARY OF THE ARMY SUBMITTED FOR DECISION VARIOUS QUESTIONS INVOLVING THE POSSIBLE EXTENT AND PROPRIETY OF MAKING PAYMENTS FROM PUBLIC FUNDS INCIDENT TO THE CORRECTION OF RECORDS UNDER THE SAID SECTION 207 OF THE ACT OF AUGUST 2, 1946. IN DECISION DATED MAY 4, 1948, B-74279, 27 COMP. GEN. 665, COPY HEREWITH, AFTER CAREFUL CONSIDERATION OF THE SCOPE AND PURPOSE OF SECTION 207, READ IN CONJUNCTION WITH SECTION 131 OF THE SAME ACT, 60 STAT. 831, THIS OFFICE WAS CONSTRAINED TO HOLD THAT NEITHER SECTION 207 NOR OTHER LEGISLATION VESTS IN THE HEADS OF THE SPECIFIED DEPARTMENTS OR IN THIS OFFICE ANY AUTHORITY TO ORDER OR DIRECT THE ALLOWANCE OR PAYMENT OF ANY CLAIM FOR MONEY, OR TO USE APPROPRIATED FUNDS TO PAY ANY CLAIM FOR MONEY, BASED ON CORRECTIONS MADE IN THE MILITARY OR NAVAL RECORDS OF AN INDIVIDUAL UNDER THE AUTHORITY OF THAT SECTION. VIEW OF THE CONCLUSIONS REACHED IN THAT DECISION, I HAVE TO ADVISE THAT THE CHANGE IN MR. COLLYER'S RECORDS TO SHOW THAT HE WAS TRANSFERRED TO THE GRADE OF AVIATION CADET ON AUGUST 7, 1942--- WHEN IN FACT HE WAS NOT SO TRANSFERRED UNTIL SEPTEMBER 9, 1942--- DOES NOT HAVE THE LEGAL EFFECT OF AUTHORIZING THE PAYMENT TO HIM OF A LUMP SUM UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942. IT FOLLOWS THAT THE QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.