B-36294, NOVEMBER 26, 1943, 23 COMP. GEN. 387

B-36294, NOVEMBER 26, 1943, 23 COMP. GEN. 387

SAVED PAY AND ALLOWANCES OF TEMPORARILY PROMOTED NAVY ENLISTED PERSONNEL WHILE, UNDER THE THIRD PROVISO OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, NAVY ENLISTED MEN TEMPORARILY APPOINTED TO COMMISSIONED RANK ARE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR THE PAY AND ALLOWANCES OF THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS GREATER, THE SECOND PROVISO OF THAT SECTION SAVES TO PERSONS TEMPORARILY APPOINTED THE PAY AND ALLOWANCES TO WHICH THEY ARE ENTITLED AT THE TIME OF APPOINTMENT, AND, THEREFORE, AN ENLISTED MAN APPOINTED A TEMPORARY COMMISSIONED OFFICER UNDER SAID ACT MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE, IF GREATER THAN THOSE OF A WARRANT OFFICER OR THE POSITION TEMPORARILY OCCUPIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 26, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 9, 1943, FILE JAG:K:WG:EMM SO8 1 40 L16-4/MM, REQUESTING A DECISION ON A QUESTION PRESENTED IN A LETTER DATED JULY 27, 1943, FROM THE COMMANDANT, UNITED STATES COAST GUARD, AS TO WHETHER AN ENLISTED MAN WHO IS APPOINTED A TEMPORARY COMMISSIONED OFFICER UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, MAY, IN VIEW OF THE THIRD PROVISO OF SECTION 7 (A) OF SUCH ACT, AS ADDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, CONTINUE IN RECEIPT OF THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE IF THEY ARE HIGHER THAN THE PAY AND ALLOWANCES OF A WARRANT OFFICER WITH EQUIVALENT SERVICE OR THE PAY AND ALLOWANCES OF THE POSITION TEMPORARILY OCCUPIED.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA, PROVIDES AS FOLLOWS, THE PROVISO IN QUESTION BEING INDICATED BY ITALICS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENT OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, 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 AND ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, 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 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: PROVIDED FURTHER, THAT ENLISTED MEN WHO ARE TEMPORARILY APPOINTED TO COMMISSIONED RANK UNDER THE AUTHORITY OF THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS THE GREATER: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE TO ALL PERSONNEL HERETOFORE TEMPORARILY APPOINTED TO ANY GRADE OR RANK EXCEPT THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE PRIOR TO JUNE 1, 1942. ( ITALICS PROVIDED.)

WHILE THE USUAL FUNCTION OF A PROVISO IS TO LIMIT OR TO MODIFY THE GENERAL LEGISLATIVE PROVISIONS TO WHICH IT IS ATTACHED, IT IS NOT AN UNCOMMON PRACTICE TO ENACT INDEPENDENT LEGISLATION BY MEANS OF PROVISOS, THE WORD "PROVIDED" OFTEN BEING USED INDISCRIMINATELY. AS STATED IN MCDONALD V. UNITED STATES, 279 U.S. 12, 20:

AS A GENERAL RULE, A PROVISO IS INTENDED TO TAKE A SPECIAL CASE OR CLASS OF CASES OUT OF THE OPERATION OF THE BODY OF THE SECTION IN WHICH IT IS FOUND. WAYMAN V. SOUTHARD, 10 WHEAT. 1, 30. UNITED STATES V. DICKSON, 15 PET. 141, 165. RYAN V. CARTER, 93 U.S. 78, 83. UNITED STATES V. MCELVAIN, 272 U.S. 633, 635. BUT A PROVISO IS NOT ALWAYS LIMITED IN ITS EFFECT TO THE PART OF THE ENACTMENT WITH WHICH IT IS IMMEDIATELY ASSOCIATED; IT MAY APPLY GENERALLY TO ALL CASES WITHIN THE MEANING OF THE LANGUAGE USED. UNITED STATES V. BABBITT, 1 BLACK 55. SPRINGER V. PHILIPPINE ISLANDS, 277 U.S. 189, 207. LITTLE IF ANY SIGNIFICANCE IS TO BE GIVEN TO THE USE OF THE WORD ,PROVIDED.' IN ACTS OF CONGRESS, THAT WORD IS EMPLOYED FOR MANY PURPOSES. SCHLEMMER V. BUFFALO, ROCHESTER ETC. RY., 205 U.S. 1, 10. SOMETIMES IT IS USED MERELY TO SAFEGUARD AGAINST MISINTERPRETATION OR TO DISTINGUISH DIFFERENT PARAGRAPHS OR SENTENCES. GEORGIA BANKING CO. V. SMITH, 128 U.S. 174, 181. FOR THE PROPER CONSTRUCTION OF THE PROVISION IN QUESTION, CONSIDERATION NEED NOT BE LIMITED TO THE SUBDIVISION IN WHICH IT IS FOUND; THE GENERAL PURPOSE OF THE SECTION MAY BE TAKEN INTO ACCOUNT. UNITED STATES V. WHITRIDGE, 197 U.S. 135, 143.

THE GENERAL PURPOSE OF THE SAID SECTION 7 (A) OF THE ACT OF JULY 24, 1941, IS, OF COURSE, TO SAVE PERSONS TEMPORARILY APPOINTED UNDER SUCH ACT FROM SUFFERING ANY REDUCTION, BY REASON THEREOF, IN THE PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED AT THE TIME THEY WERE SO APPOINTED. IT WILL BE NOTED THAT BY VIRTUE OF THE SECOND PROVISO OF SUCH SECTION AN ENLISTED MAN WHO RECEIVES SUCCESSIVE TEMPORARY APPOINTMENTS AS WARRANT OFFICER AND AS AN ENSIGN HAS THE PAY AND ALLOWANCES HE RECEIVED AS A TEMPORARY WARRANT OFFICER SAVED TO HIM, IT OFTEN BEING THE CASE THAT HIS PAY AND ALLOWANCES AS A TEMPORARY WARRANT OFFICER ARE HIGHER THAN THOSE OF EITHER HIS PERMANENT ENLISTED GRADE OR HIS TEMPORARY COMMISSIONED OFFICE. EXCEPT FOR THE SAID THIRD PROVISO OF THAT SECTION THE RESULT IN MANY INSTANCES WOULD BE TO PUT ENLISTED PERSONNEL APPOINTED DIRECTLY FROM AN ENLISTED GRADE TO TEMPORARY COMMISSIONED RANK, WITHOUT EVER HAVING SERVED AS WARRANT OFFICERS, AT A DISADVANTAGE, INSOFAR AS PAY IS CONCERNED, FOR THE REASON THAT THE PAY AND ALLOWANCES RECEIVED BY THEM FREQUENTLY WOULD BE LESS THAN THOSE SAVED THE ENLISTED MEN WHO WENT UP THROUGH THE WARRANT GRADE. AND IT WAS FOR THAT REASON THAT SUCH THIRD PROVISO WAS ADDED. AT THE HEARING OCTOBER 1, 1942, BEFORE THE SENATE COMMITTEE ON NAVAL AFFAIRS ON THE BILL S.2795 (PAGE 2 OF THE REPORT OF THE HEARING) THE MATTER WAS EXPLAINED BY CAPTAIN HOPWOOD OF THE BUREAU OF NAVAL PERSONNEL, NAVY DEPARTMENT, AS FOLLOWS:

A FURTHER INCONGRUOUS SITUATION EXISTS WITH RESPECT TO THE CHIEF PETTY OFFICER PROMOTED DIRECTLY TO TEMPORARY ENSIGN. FOR EXAMPLE, A MAN IN THIS STATUS MAY BE RECEIVING $280 PER MONTH AS AN ENLISTED MAN, UPON PROMOTION TO ENSIGN HE CONTINUES TO RECEIVE HIS ENLISTED PAY, ALTHOUGH THE RATE OF PAY FOR AN ENSIGN IS $267 WITH DEPENDENTS. HOWEVER, ANOTHER MAN WITH THE SAME AMOUNT OF ENLISTED SERVICE IS APPOINTED TO WARRANT RANK AND IS ENTITLED TO PAY AND ALLOWANCES EQUAL TO $334.50 PER MONTH, $54.50 MORE THAN HIS CONTEMPORARY WHO IS PROMOTED TO THE HIGHER RANK OF ENSIGN. IT IS FELT THAT THE PETTY OFFICER WHO IS CONSIDERED QUALIFIED FOR COMMISSIONED RANK WITHOUT A PERIOD OF SERVICE AS A WARRANT OFFICER SHOULD NOT RECEIVE LESS PAY THAN THE FIRST ONE WHO FLEETS UP THROUGH THE TEMPORARY WARRANT GRADE. THE SECOND PROVISO OF THE BILL (THIRD PROVISO OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED) IS INTENDED TO CORRECT THIS CONDITION BY GRANTING TO THE MAN APPOINTED DIRECT TO THE GRADE OF ENSIGN THE SAME PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED HAD HE BEEN APPOINTED TO WARRANT GRADE INSTEAD OF THE HIGHER GRADE OF ENSIGN. ITALICS SUPPLIED).

THUS IT SEEMS CLEAR THAT THE PROVISO HERE IN QUESTION WAS NOT MEANT TO LIMIT OR TO MODIFY THE RIGHTS OTHERWISE CONFERRED BY THE SAID SECTION 7 (A) BUT WAS INTENDED TO GIVE ENLISTED PERSONNEL BENEFITS IN ADDITION TO THOSE OTHERWISE PROVIDED. AMONG SUCH OTHER BENEFITS WERE THOSE PRESCRIBED IN THE SECOND PROVISO, WHICH SAVED TO A PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THE ACT THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.

ACCORDINGLY, I HAVE TO ADVISE THAT AN ENLISTED MAN WHO IS APPOINTED A TEMPORARY COMMISSIONED OFFICER UNDER THE SAID ACT OF JULY 24, 1941, AS AMENDED, MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE IF THEY ARE HIGHER THAN THOSE OF A WARRANT OFFICER WITH EQUIVALENT SERVICE OR THOSE PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. HOWEVER, SEE, IN THIS CONNECTION, DECISION OF JULY 14, 1943, B-31978, 23 COMP. GEN. 21, AND DECISION OF JULY 26, 1943, B-32718, WITH RESPECT TO THE PAY AND ALLOWANCES SO SAVED.