B-8923, APRIL 16, 1940, 19 COMP. GEN. 864

B-8923, APRIL 16, 1940, 19 COMP. GEN. 864

PAY - PROMOTIONS - EFFECTIVE DATE - NAVAL RESERVE OFFICERS A NAVAL RESERVE OFFICER ADVANCED IN GRADE OR RANK UNDER SECTION 312 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1183, IS ENTITLED TO THE INCREASED PAY AND ALLOWANCES FROM THE DATE OF RANK STATED IN HIS COMMISSION BUT THAT DATE MAY NOT BE EARLIER THAN THE DATE OF ISSUANCE OF THE COMMISSION. DECISION B-8076, FEBRUARY 5, 1940, MODIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 16, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 4, 1940, AS FOLLOWS:

IN THE DECISION OF THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES OF FEBRUARY 5, 1940, B-8076, IT IS HELD THAT A NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THE NATIONAL EMERGENCY DECLARED AS EXISTING IN EXECUTIVE ORDER OF SEPTEMBER 8, 1939, AND WHO WAS PROMOTED WHILE EMPLOYED ON SUCH ACTIVE DUTY, TO TAKE RANK IN THE HIGHER GRADE FROM A DATE PRIOR TO THE DATE OF THE PRESENT DECLARED NATIONAL EMERGENCY,"IS ENTITLED TO PAY AND ALLOWANCES OF THE HIGHER GRADE FROM OCTOBER 4, 1939, THE DATE HE REPORTED FOR ACTIVE DUTY.'

IT IS NOT CLEAR FROM THE DECISION OF FEBRUARY 5, 1940, WHAT THE CORRECT EFFECTIVE DATE WOULD BE FOR PURPOSES OF PAYMENT OF INCREASED PAY AND ALLOWANCES TO A NAVAL RESERVE OFFICER WHO WAS SERVING ON ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE PRIOR TO SEPTEMBER 8, 1939, THE EFFECTIVE DATE OF THE PRESENT DECLARED NATIONAL EMERGENCY, AND WHO WAS PROMOTED SUBSEQUENT TO THAT DATE WHILE STILL PERFORMING ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE.

YOUR DECISION ACCORDINGLY IS REQUESTED AS TO THE EFFECTIVE DATE FROM WHICH THE TWO NAVAL RESERVE OFFICERS NAMED BELOW ARE ENTITLED UNDER THE CONDITIONS STATED, TO THE INCREASED PAY AND ALLOWANCES OF THE HIGHER GRADE TO WHICH PROMOTED:

(A) LIEUTENANT ERNEST A. RUST, U.S. NAVAL RESERVE, IS NOW ATTACHED TO THE NAVAL AIR STATION, PENSACOLA, FLORIDA, PERFORMING ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE. THIS OFFICER, THEN A LIEUTENANT (JUNIOR GRADE), REPORTED FOR ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE AT THE NAVAL RESERVE AVIATION BASE, SEATTLE, WASHINGTON, JUNE 14, 1935. ON FEBRUARY 1, 1940, HE WAS ISSUED A COMMISSION AS A LIEUTENANT TO RANK FROM OCTOBER 25, 1939. HE ACCEPTED THIS COMMISSION AND EXECUTED OATH OF OFFICE ON FEBRUARY 12, 1940.

(B) LIEUTENANT COMMANDER CHARLES D. WILLIAMS, JR., U.S. NAVAL RESERVE, IS NOW PERFORMING ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE AT THE NAVAL RESERVE AVIATION BASE, SEATTLE, WASHINGTON. HE REPORTED FOR ACTIVE DUTY ON AUGUST 11, 1930, AT THE NAVAL RESERVE AVIATION BASE, DETROIT MICHIGAN, AND HAS BEEN ON ACTIVE DUTY CONTINUOUSLY SINCE THAT DATE. WHILE SERVING ON ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE, THIS OFFICER, THEN A LIEUTENANT, BECAME DUE FOR PROMOTION TO LIEUTENANT COMMANDER BY REASON OF SENIORITY AS OF JULY 1, 1937. HE WAS EXAMINED AND FOUND QUALIFIED FOR PROMOTION. HOWEVER, HIS COMMISSION AS A LIEUTENANT COMMANDER WAS WITHHELD IN VIEW OF THE LIMITATION REGARDING THE NUMBER OF OFFICERS OF THE NAVAL RESERVE ABOVE THE RANK OF LIEUTENANT ALLOWED TO BE PAID FROM THE NAVAL RESERVE APPROPRIATION AS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE NAVAL SERVICE. ON DECEMBER 21, 1939, THE FOLLOWING LETTER WAS ADDRESSED TO LIEUTENANT CHARLES D. WILLIAMS VIA THE COMMANDANT, THIRTEENTH NAVAL DISTRICT:

"YOU HAVE BEEN SELECTED AS ONE OF THE NAVAL RESERVE OFFICERS ENTITLED, WHILE PERFORMING ACTIVE DUTY, TO THE FULL PAY AND ALLOWANCES OF THEIR RANKS UNDER THE PROVISIONS OF THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR, 1940.

"ACCORDINGLY, AT SUCH TIME, NOT PRIOR TO 1 JANUARY 1940, AS YOU EXECUTE OATH AND ACCEPTANCE OF OFFICE AS LIEUTENANT COMMANDER, A-O, U.S. NAVAL RESERVE, YOU WILL BE ENTITLED TO THE PAY AND ALLOWANCES OF THAT RANK FOR THE PERFORMANCE OF ACTIVE DUTY. A COMMISSION AS LIEUTENANT COMMANDER, A- O, U.S. NAVAL RESERVE, WILL BE FORWARDED TO YOU WITHIN A FEW DAYS.' THE SAME DATE A COMMISSION AS A LIEUTENANT COMMANDER, DATED DECEMBER 18, 1939, TO RANK FROM JULY 1, 1937, WAS FORWARDED TO LIEUTENANT COMMANDER WILLIAMS. HE ACCEPTED THIS COMMISSION AND EXECUTED OATH OF OFFICE ON JANUARY 1, 1940.

IN THE CASE OF LT. COMDR. CHARLES D. WILLIAMS, JR., UNITED STATES NAVAL RESERVE, IT APPEARS HE HAS BEEN ON CONTINUOUS ACTIVE DUTY IN CONNECTION WITH THE INSTRUCTION, TRAINING, AND DRILLING OF THE NAVAL RESERVE SINCE AUGUST 11, 1930, AND BY REASON OF LIMITING LANGUAGE CONTAINED IN THE APPROPRIATION FOR THE NAVAL RESERVE FOR 1938 AND PRIOR YEARS, HE WAS NOT PROMOTED TO THE GRADE OF LIEUTENANT COMMANDER WHEN, UNDER THE REGULATIONS CONTAINED IN THE BUREAU OF NAVIGATION MANUAL, HE OTHERWISE MIGHT HAVE BEEN SO PROMOTED. THE APPROPRIATION UNDER " NAVAL RESERVE" FOR THE FISCAL YEAR 1938, 50 STAT. 101, CONTAINS A PROVISO AS FOLLOWS:

* * * PROVIDED, THAT NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE TO PAY MORE THAN TWENTY OFFICERS OF THE NAVAL RESERVE AND ONE OFFICER OF THE MARINE CORPS RESERVE ABOVE THE GRADE OF LIEUTENANT OR CAPTAIN, RESPECTIVELY, THE PAY AND ALLOWANCES OF THEIR GRADE FOR THE PERFORMANCE OF ACTIVE DUTY OTHER THAN THE PERFORMANCE OF DRILLS OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR APPROPRIATE DUTIES AND THE PERFORMANCE OF FIFTEEN DAYS' ACTIVE TRAINING DUTY, AND OTHER OFFICERS ABOVE SUCH GRADES EMPLOYED ON SUCH CLASS OF ACTIVE DUTY (NOT TO EXCEED FOUR MONTHS IN ANY CALENDAR YEAR) SHALL NOT BE ENTITLED TO BE PAID A GREATER RATE OF PAY AND ALLOWANCES THAN AUTHORIZED BY LAW FOR A LIEUTENANT OF THE NAVY OR A CAPTAIN OF THE MARINE CORPS ENTITLED TO NOT EXCEEDING TEN YEARS' LONGEVITY PAY: * * *

IN THE APPROPRIATION FOR THE FISCAL YEAR 1939, 52 STAT. 223, THIS PROVISION (PAGE 228) WAS QUALIFIED BY THE INCLUSION OF THE PHRASE "EXCEPT IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT," AND THE SAME QUALIFICATION APPEARS IN THE APPROPRIATION FOR THE FISCAL YEAR 1940, 53 STAT. 757. ACT OF MAY 25, 1939, PUBLIC, NO. 90. OTHERWISE THE APPROPRIATIONS FOR THE FISCAL YEARS 1939 AND 1940 CONTAIN THE SAME RESTRICTION AS PROVIDED FOR THE FISCAL YEAR 1938.

A NATIONAL EMERGENCY WAS DECLARED AS EXISTING BY THE EXECUTIVE ORDER OF SEPTEMBER 8, 1939.

SECTIONS 311 AND 312 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1183, PROVIDE:

SEC. 311. IN TIME OF PEACE, OFFICERS OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE ACCORDING TO SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE: PROVIDED, THAT WHEN MOBILIZED WITH THE REGULAR NAVY FOR WAR OR A NATIONAL EMERGENCY, EACH OFFICER OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE NEXT AFTER THAT OFFICER OF THE REGULAR NAVY OF THE SAME RANK OR GRADE WHOSE LENGTH OF SERVICE IN SUCH RANK OR GRADE ON THE DATE OF SUCH MOBILIZATION IS ONE-HALF OR THE NEAREST ONE HALF OF THAT OF THE RESERVE OFFICER.

SEC. 312. IN TIME OF WAR OR NATIONAL EMERGENCY, OFFICERS OF THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY SHALL BE ADVANCED IN THEIR RESPECTIVE CORPS IN GRADE AND RANK IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY OR THE MARINE CORPS, RESPECTIVELY, IN SUCH NUMBERS FOR EACH GRADE OR RANK, AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF THE NAVY, AND WHEN SO ADVANCED THEY SHALL TAKE PRECEDENCE AMONG THEMSELVES AND WITH OTHER OFFICERS OF THE NAVY AND MARINE CORPS, IN ACCORDANCE WITH DATE OF SUCH ADVANCEMENT OR PROMOTION: PROVIDED, THAT NO OFFICER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE SHALL BE ADVANCED TO A HIGHER RANK UNTIL HE HAS QUALIFIED THEREFOR BY SUCH MENTAL, MORAL, PROFESSIONAL, AND PHYSICAL EXAMINATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE: PROVIDED FURTHER, THAT ALL OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK UNDER THE PROVISIONS OF THIS TITLE SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES OF RANK STATED IN THEIR COMMISSIONS: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO OFFICERS WHO HAVE BEEN OR MAY HEREAFTER BE RETIRED FROM THE NAVAL OR MARINE CORPS RESERVE FORCE OR THE NAVAL OR MARINE CORPS RESERVE.

TERMINOLOGY SUCH AS USED IN SECTION 312 AS TO THE DATE FROM WHICH PAY IS PAYABLE ON PROMOTION WAS DEVELOPED DURING A COURSE OF YEARS IN THE REGULAR NAVY AND AN EXAMINATION OF THAT DEVELOPMENT MAY AID IN THE SOLUTION OF THE QUESTION HERE INVOLVED. BY THE ACT OF MARCH 3, 1835, 4 STAT. 755, IT WAS PROVIDED THAT EACH OFFICER OF THE NAVY, UNDER CERTAIN CIRCUMSTANCES, SHOULD HAVE A CERTAIN RATE OF PAY "FOR THE FIRST 5 YEARS AFTER THE DATE OF HIS COMMISSION.' SEE, ALSO, SECTION 2 OF JULY 15, 1870, 16 STAT. 330, ET SEQ. THAT PHRASEOLOGY WAS CONSTRUED BY THE SECOND COMPTROLLER OF THE TREASURY, DIGEST SECOND COMPTROLLER'S DECISIONS 1865, NOTE TO PARAGRAPH 1018, AS FOLLOWS:

THE PAY OF A PROMOTED OFFICER COMMENCES ON THE DATE WHEN HIS APPOINTMENT TO THE HIGHER RANK IS SIGNED, NOT FROM THE DATE FROM WHICH HE IS ENTITLED TO RANK. * * * RULES OF THE ACCOUNTING OFFICERS, NOS. 90, 91, DECEMBER 15, 1864.

AS PAY FOR SEVERAL CLASSES OF OFFICERS HAD BEEN FIXED IN THE ACT OF JULY 15, 1870, FOR THE FIRST 4 OR THE FIRST 5 YEARS AFTER DATE OF COMMISSION, A CHANGE IN THE RULE OF CONSTRUCTION ADOPTED BY THE ACCOUNTING OFFICERS WAS PRESCRIBED IN SECTION 7 OF THE ACT AS FOLLOWS:

* * * THAT HEREAFTER THE INCREASED PAY OF A PROMOTED OFFICER SHALL COMMENCE FROM THE DATE HE IS TO TAKE RANK AS STATED IN HIS COMMISSION; * * * THIS PROVISION WHEN CARRIED INTO SECTION 1561, REVISED STATUTES, WAS MODIFIED SOMEWHAT.

BY THE ACT OF JUNE 22, 1874, 18 STAT. 191, THE BROAD LANGUAGE OF SECTION 7 OF THE ACT OF 1870, THAT THE INCREASED PAY OF A PROMOTED OFFICER SHALL COMMENCE FROM THE DATE HE IS TO TAKE RANK AS STATED IN HIS COMMISSION WAS QUALIFIED AS FOLLOWS:

THAT ON AND AFTER THE PASSAGE OF THIS ACT, ANY OFFICER OF THE NAVY WHO MAY BE PROMOTED IN COURSE TO FILL A VACANCY IN THE NEXT HIGHER GRADE SHALL BE ENTITLED TO THE PAY OF THE GRADE TO WHICH PROMOTED FROM THE DATE HE TAKES RANK THEREIN, IF IT BE SUBSEQUENT TO THE VACANCY HE IS APPOINTED TO FILL.

SECTION 1467, REVISED STATUTES, PROVIDES THAT "LINE OFFICERS SHALL TAKE RANK IN EACH GRADE ACCORDING TO THE DATES OF THEIR COMMISSIONS.'

SECTION 1485, REVISED STATUTES, FIXED THE PRECEDENCE OF OFFICERS OF THE STAFF CORPS OF THE NAVY ACCORDING TO LENGTH OF SERVICE IN THE NAVY AND SECTION 1486 PROVIDED THAT OFFICERS OF THE STAFF CORPS SHOULD TAKE PRECEDENCE IN THEIR SEVERAL GRADES AND WITH THOSE OFFICERS OF THE LINE OF THE NAVY WITH WHOM THEY HOLD RELATIVE RANK WHO HAD BEEN IN THE NAVAL SERVICE 6 YEARS LONGER THAN SUCH OFFICERS OF SAID STAFF CORPS HAD BEEN IN THE SERVICE.

THE ACT OF MARCH 4, 1913, 37 STAT. 892, CONTAINS THE FOLLOWING LANGUAGE:

* * * THAT SECTION FOURTEEN HUNDRED AND EIGHTY-SIX OF THE REVISED STATUTES SHALL NOT APPLY IN THE CASE OF OFFICERS WHO ENTER THE NAVY AFTER THE PASSAGE OF THIS ACT AND ALL SUCH OFFICERS SHALL TAKE PRECEDENCE WHEN OF THE SAME GRADE ACCORDING TO THEIR RESPECTIVE DATES OF COMMISSION IN THAT GRADE.

THAT ALL OFFICERS OF THE NAVY WHO, SINCE THE THIRD DAY OF MARCH, EIGHTEEN HUNDRED AND NINETY-NINE, HAVE BEEN ADVANCED OR MAY HEREAFTER BE ADVANCED IN GRADE OR RANK PURSUANT TO LAW SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATES STATED IN THEIR COMMISSIONS.

IN 18 OP. ATTY. GEN. 393, 394 (1886) THE ATTORNEY GENERAL USED THE FOLLOWING LANGUAGE:

PROMOTION AMONG OFFICERS IN THE LINE OF THE NAVY GOES BY SENIORITY, AND SENIORITY IS DETERMINED BY THE DATE OF COMMISSION, THAT IS TO SAY, THE DATE FROM WHICH THE COMMISSION RECITES THAT THE APPOINTMENT TO A GIVEN GRADE BEGINS. SEE, ALSO, TOULON V. UNITED STATES, 51 CT.1CLS. 87; 52 ID. 3; AND 4 COMP. GEN. 961; 5 ID. 79.

IT THUS APPEARS THAT IN THE REGULAR NAVY AS TO OFFICERS ADVANCED IN GRADE OR RANK THE "DATE OF COMMISSION" AND THE "DATE OF RANK STATED IN THE COMMISSION" ARE SUBSTANTIALLY SYNONYMOUS TERMS. IN THE ABSENCE OF LOSS OF NUMBERS OR SUSPENSION FROM PROMOTION, WHICH MAY VARY THE DATE WHEN THE OFFICER IS PROMOTED, THE TERMS REFERRED TO INDICATE THE DATE THE OFFICER BECAME ELIGIBLE FOR PROMOTION EITHER BY THE HAPPENING OF A VACANCY OR THE PASSAGE OF TIME, IRRESPECTIVE OF WHEN THE COMMISSION TO THE HIGHER GRADE IS ACTUALLY ISSUED OR ACCEPTED BY THE OFFICER; AND THE OFFICER'S PRECEDENCE WITH OTHER OFFICERS IS FIXED BY SUCH DATE.

IT WILL BE OBSERVED THAT UNDER SECTION 311 OF THE NAVAL RESERVE ACT OFFICERS OF THE NAVAL RESERVE IN TIME OF PEACE SHALL TAKE PRECEDENCE ACCORDING TO SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, AND THE SECTION PRESCRIBES THE PRECEDENCE OF OFFICERS OF THE NAVAL RESERVE WITH OFFICERS OF THE REGULAR NAVY WHEN MOBILIZED WITH THE REGULAR NAVY FOR WAR OR A NATIONAL EMERGENCY. SECTION 312 PROVIDES THAT OFFICERS OF THE NAVAL RESERVE EMPLOYED ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE ADVANCED IN GRADE OR RANK IN THE SAME MANNER AS MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY IN SUCH NUMBERS FOR EACH GRADE OR RANK AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF THE NAVY. WHEN SO ADVANCED OFFICERS OF THE NAVAL RESERVE SHALL TAKE PRECEDENCE AMONG THEMSELVES AND WITH OTHER OFFICERS OF THE NAVY IN ACCORDANCE WITH THE DATE OF SUCH ADVANCEMENT OR PROMOTION, WITH THE FURTHER PROVISION THAT OFFICERS OF THE NAVAL RESERVE WHO MAY BE ADVANCED TO A HIGHER GRADE OR RANK SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE OR RANK FROM THE DATE OF RANK STATED IN THE COMMISSION. PRECEDENCE IS HERE FIXED "IN ACCORDANCE WITH DATE OF SUCH ADVANCEMENT OR PROMOTION.' THERE ARE NO FIXED OR LIMITED NUMBER OF OFFICERS IN THE VARIOUS GRADES IN THE NAVAL RESERVE, SECTION 306 PROVIDING THAT THE OFFICERS SHALL BE DISTRIBUTED IN THE VARIOUS GRADES OR RANKS AS THEREIN LIMITED IN SUCH MANNER AS THE SECRETARY OF THE NAVY MAY PRESCRIBE. WHEN A NAVAL RESERVE OFFICER ON ACTIVE DUTY DURING WAR OR NATIONAL EMERGENCY IS PROMOTED, THE FIXING OF THE DATE OF RANK PRIOR TO THE DATE OF ADVANCEMENT DOUBTLESS HAS SOME REFERENCE TO PRECEDENCE, IT MAY INDICATE A DATE WHEN THE OFFICER WAS DUE FOR PROMOTION PRIOR TO THE WAR OR DECLARATION OF EMERGENCY, BUT FOR PAY PURPOSES IT SEEMS NOT TO BE IN ACCORD WITH THE PROVISIONS OF SECTION 312 THAT THE PRECEDENCE SHALL BE "IN ACCORDANCE WITH DATE OF SUCH ADVANCEMENT OR PROMOTION.' IT IS NOTED THAT PARAGRAPH H 3201 ET SEQ., OF THE BUREAU OF NAVIGATION MANUAL PROVIDES FOR PROMOTION OF OFFICERS OF THE ORGANIZED NAVAL RESERVE BY SENIORITY ON LINEAL PRECEDENCE LISTS ARRANGED IN EACH GRADE ACCORDING TO DATE OF COMMISSION, FIXES A PERCENTAGE OF THE TOTAL NUMBER OF OFFICERS IN THE GRADES OF LIEUTENANT COMMANDER AND LIEUTENANT, COMPUTATIONS TO BE MADE SEMIANNUALLY, DECEMBER 31 AND JUNE 30, REQUIRES 5 YEARS' SERVICE IN GRADE FOR PROMOTION AND CERTAIN PERIODS OF ACTIVE DUTY, AND PARAGRAPH H 3207 PROVIDES THAT AN OFFICER OF THE ORGANIZED RESERVES OR THE VOLUNTEER RESERVES (GENERAL SERVICE) WILL BE REQUIRED TO QUALIFY FOR PROMOTION WITHIN A PERIOD OF 6 MONTHS FROM DATE OF NOTIFICATION THAT HE IS DUE THEREFOR AND IF HE QUALIFIES WITHIN THAT PERIOD HE WILL BE PROMOTED WITHOUT LOSS OF PRECEDENCE; BUT IF HE FAILS TO QUALIFY HE MAY BE DISCHARGED OR RETAINED IN HIS RANK FOR A PERIOD OF 6 MONTHS AND IF DURING THE SECOND 6-MONTHS' PERIOD HE SHOULD QUALIFY HE MAY BE PROMOTED BUT HIS DATE OF PRECEDENCE IN THE NEXT HIGHER GRADE SHALL NOT BE EARLIER THAN HIS DATE OF QUALIFICATION THEREFOR, WITH A SPECIFIC PROVISION THAT SHOULD HE FAIL TO QUALIFY WITHIN 1 YEAR HE SHALL BE DISCHARGED OR TRANSFERRED IN PRESENT RANK TO THE SPECIAL SERVICE CLASS OF THE VOLUNTEER RESERVE IN WHICH QUALIFIED FOR ORIGINAL APPOINTMENT. IT APPEARS THESE RULES WERE DEPARTED FROM IN THE CASE OF LIEUTENANT COMMANDER WILLIAMS.

THE NUMBER IN EACH GRADE UNDER SECTION 312 IS AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE SECRETARY OF THE NAVY. THERE IS NO VESTED RIGHT IN THE OFFICER TO ADVANCEMENT. THE NUMBER TO BE ADVANCED AND THE DATE OF THEIR ADVANCEMENT ARE ENTIRELY IN THE DISCRETION OF THE SECRETARY OF THE NAVY. THE SECRETARY OF THE NAVY HAVING PRESCRIBED ADDITIONAL VACANCIES IN GRADES AND THE OFFICER HAVING BEEN ADVANCED "IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY," HE IS TO TAKE PRECEDENCE "IN ACCORDANCE WITH THE DATE OF SUCH ADVANCEMENT OR PROMOTION.' THE EVIDENCE OF THE DATE OF SUCH ADVANCEMENT OR PROMOTION IS THE COMMISSION, AND FOR PAY PURPOSES THE RANK STATED IN HIS COMMISSION MAY NOT ANTEDATE THE ISSUANCE OF THE COMMISSION, AS UNTIL SUCH ISSUANCE THE MATTER IS ENTIRELY DISCRETIONARY WITH THE SECRETARY OF THE NAVY.

ACCORDINGLY, LT. ERNEST A. RUST, UNITED STATES NAVAL RESERVE, IS ENTITLED, IF OTHERWISE PROPER, TO PAY AND ALLOWANCES IN THE GRADE OF LIEUTENANT, NAVAL RESERVE, FROM FEBRUARY 1, 1940.

IN THE CASE OF LT. COMDR. CHARLES D. WILLIAMS, JR., UNITED STATES NAVAL RESERVE, THE DEPARTMENT REQUIRED A DELAY UNTIL JANUARY 1, 1940, BEFORE TAKING THE OATH OF OFFICE AS LIEUTENANT COMMANDER, AND INDICATED HIS RIGHT TO PAY AND ALLOWANCES IN THE HIGHER GRADE WOULD COMMENCE FROM THAT DATE. BUT THE COMMISSION IS STATED TO HAVE BEEN DATED DECEMBER 18, 1939. IF THE DEPARTMENT INTENDED THAT HIS APPOINTMENT SHOULD BE EFFECTIVE JANUARY 1, 1940, THE DATE OF THE COMMISSION SHOULD BE CORRECTED. IF THE DATE OF COMMISSION AS STATED IN YOUR LETTER IS THE DATE INTENDED BY THE DEPARTMENT, AND THE OFFICER IS OTHERWISE ENTITLED, PAY AND ALLOWANCES IN THE ADVANCED GRADE MAY BE PAID FROM AND AFTER DECEMBER 18, 1939.

THE DECISION OF FEBRUARY 5, 1940, B-8076, IS MODIFIED TO ACCORD WITH THE VIEWS HEREIN EXPRESSED, BUT CREDIT WILL BE ALLOWED FOR OTHERWISE PROPER PAYMENTS MADE UNDER AUTHORITY OF THAT DECISION PRIOR TO THE DATE OF THIS DECISION.