B-73016, MARCH 15, 1948, 27 COMP. GEN. 525

B-73016, MARCH 15, 1948, 27 COMP. GEN. 525

SAVED PAY AND ALLOWANCES - NAVY OFFICER SERVING IN PREVIOUS TEMPORARY RANK AFTER PERMANENT APPOINTMENT UNDER THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, SAVING TO NAVAL PERSONNEL THE PAY AND ALLOWANCES TO WHICH ENTITLED AT THE TIME OF TEMPORARY PROMOTION, A NAVY ENLISTED MAN WHOSE TEMPORARY APPOINTMENT AS ENSIGN WAS REVOKED AND WHO, ON THE NEXT DAY, WAS REAPPOINTED TO SUCH TEMPORARY RANK AFTER ACCEPTANCE OF A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER, PURSUANT TO SECTION 5 OF THE ACT OF APRIL 18, 1946, IS ENTITLED TO RECEIVE THE HIGHER PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 15, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 13, 1948, WITH ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED DECEMBER 15, 1947, REQUESTING A REVIEW OF EXCEPTIONS TAKEN BY THE AUDIT DIVISION OF THIS OFFICE TO THE PAYMENT OF SAVED PAY AND ALLOWANCES UNDER THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, TO OFFICERS OF THE NAVY APPOINTED TO PERMANENT WARRANT OR COMMISSIONED RANK WHO ARE SERVING IN HIGHER TEMPORARY RANKS.

SPECIFIC REFERENCE IS MADE TO THE EXCEPTION TAKEN TO THE PAYMENT MADE TO ENSIGN (T) LOVINE B. LUCKENBACH, UNITED STATES NAVY, COVERING THE PERIOD AUGUST 23 TO DECEMBER 31, 1946, IN THE ACCOUNTS OF LIEUTENANT M. O. VERMILLION ( SC), UNITED STATES NAVY, INCIDENT TO THE OFFICER'S ACCEPTANCE OF A PERMANENT APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR NAVY ON AUGUST 23, 1946, AND APPOINTMENT TO THE RANK OF ENSIGN IN THE NAVY, FOR TEMPORARY SERVICE ON THAT SAME DATE.

THE SAID SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C., SUPP. V, 350F, PROVIDES, IN PERTINENT PART, THAT---

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 350-350J OF THIS TITLE SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS * * * PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF SECTIONS 350-350J OF THIS TITLE SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER RANK OR GRADE * * *.

IT APPEARS THAT ON NOVEMBER 20, 1943, ENSIGN LUCKENBACH, WHILE SERVING AS AN ENLISTED MAN, ACCEPTED AN APPOINTMENT AS A BOATSWAIN (WARRANT OFFICER) FOR TEMPORARY SERVICE; THAT ON FEBRUARY 1, 1945, HE WAS APPOINTED A CHIEF BOATSWAIN (COMMISSIONED WARRANT OFFICER) FOR TEMPORARY SERVICE; AND THAT ON MAY 15, 1945, HE WAS APPOINTED AN ENSIGN FOR TEMPORARY SERVICE. THESE APPOINTMENTS APPARENTLY WERE ALL MADE UNDER THE AUTHORITY OF THE SAID ACT OF JULY 24, 1941, AND SINCE THE PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER WERE HIGHER THAN THOSE OF AN ENSIGN AT THE TIME OF HIS APPOINTMENT AS SUCH ON MAY 15, 1945, HE PRESUMABLY CONTINUED TO RECEIVE THE PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER.

IT WILL BE NOTED THAT UNDER THE SAVINGS CLAUSE QUOTED ABOVE, IT WAS THE PAY AND ALLOWANCES OF HIS TEMPORARY APPOINTMENT AS ENSIGN--- MAY 15, 1945- -- THAT WERE SAVED TO THE OFFICER IN QUESTION (DECISION OF JANUARY 29, 1943, B-30652) AND BY VIRTUE OF THE ACT OF JUNE 29, 1946, 60 STAT. 343, WHICH RAISED THE PAY OF SERVICE PERSONNEL GENERALLY, ON JULY 1, 1946, THE PAY AND ALLOWANCES OF AN ENSIGN WERE HIGHER THAN THE PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER ON MAY 15, 1945, ACCORDINGLY, ON JULY 1, 1946, ENSIGN LUCKENBACH'S RIGHT TO THE SAVED PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER CEASED AND HE THEREAFTER WAS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF AN ENSIGN. 26 COMP. GEN. 223. HOWEVER, IT APPEARS THAT ON AUGUST 22, 1946, ENSIGN LUCKENBACH'S TEMPORARY APPOINTMENT AS ENSIGN WAS REVOKED AND HE WAS HONORABLY DISCHARGED FROM HIS ENLISTMENT IN THE UNITED STATES NAVY IN ORDER TO ACCEPT A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER. HE ACCEPTED SUCH PERMANENT APPOINTMENT ON AUGUST 23, 1946, AND ON THAT SAME DATE HE WAS GIVEN A TEMPORARY APPOINTMENT AS AN ENSIGN.

THE ACTION TAKEN IN REVOKING THE OFFICER'S TEMPORARY APPOINTMENT AS ENSIGN ON AUGUST 22, 1946, AND REAPPOINTING HIM THERETO ON AUGUST 23, AFTER HIS ACCEPTANCE OF HIS PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER, APPARENTLY WAS TAKEN PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 18, 1946, 60 STAT. 92, 93, SECTION 5 OF WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) THE PRESIDENT MAY APPOINT MALE OFFICERS OF THE NAVAL RESERVE AND OF THE MARINE CORPS RESERVE, OFFICERS OF THE REGULAR NAVY AND MARINE CORPS WITHOUT PERMANENT APPOINTMENTS THEREIN, COMMISSIONED WARRANT AND WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS WITH TEMPORARY APPOINTMENTS IN HIGHER GRADES AND RANKS, AND PERSONS WHO SERVED ON ACTIVE DUTY IN ANY SUCH CAPACITY DURING WORLD WAR II AND SHALL HAVE BEEN SEPARATED FROM SUCH OFFICER STATUS UNDER HONORABLE CONDITIONS, TO PERMANENT WARRANT GRADES OR, WITH THE ADVICE AND CONSENT OF THE SENATE, TO PERMANENT COMMISSIONED GRADES AND RANKS IN THE REGULAR NAVY AND MARINE CORPS, RESPECTIVELY * *

(B) (1) EACH APPOINTEE WHO IS SERVING ON ACTIVE DUTY IN A HIGHER GRADE OR RANK THAN THAT IN WHICH APPOINTED UNDER SUBSECTION (2) OF THIS SECTION SHALL ALSO BE APPOINTED FOR TEMPORARY SERVICE PURSUANT TO, AND SUBJECT TO THE LIMITATIONS OF, THE ACT OF JULY 24, 1941 (55 STAT. 603), AS NOW OR HEREAFTER AMENDED, TO SUCH HIGHER GRADE OR RANK AND WITH THE PRECEDENCE HELD BY HIM AT THE TIME OF ACCEPTANCE OF PERMANENT APPOINTMENT * * *.

IT WOULD APPEAR THAT ENSIGN LUCKENBACH'S SEPARATION FROM THE SERVICE ON AUGUST 22, 1946, WAS BONA FIDE AND THAT UPON HIS PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER ON AUGUST 23, 1946, HE BECAME ENTITLED TO THE PAY AND ALLOWANCES OF THAT GRADE. SINCE, AT THAT TIME, THOSE PAY AND ALLOWANCES WERE HIGHER THAN THOSE OF AN ENSIGN, HE WAS ENTITLED TO CONTINUE TO SERVICE BY VIRTUE OF THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA.

IN VIEW OF THE FOREGOING THE PAYMENT OF THE SAVED PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER TO ENSIGN LUCKENBACH FROM AND AFTER AUGUST 23, 1946, AND LIKE PAYMENTS MADE TO OTHERS, WILL NOT BE FURTHER QUESTIONED, IF OTHERWISE CORRECT.