acknowledges, the infant meets the requirement of the statute for a legitimate child. There is noted Wilcox's statement in numbered paragraph 2 of his letter that he was paid quarters allowance by check, that before indorsing the check he consulted his commanding officer and was advised that he would have to accept the money and if it were decided he was not entitled to it, have his pay accounts adjusted accordingly. In conformity with the conclusion herein reached, the claimant's pay accounts should be adjusted to take up the unauthorized payment, in which connection there is to be noted his statement that his present enlistment expires December 12, 1941. Of course, what has been said applies to the particular case here presented and others similar thereto. (B-18786) GENERAL ACCOUNTING OFFICE-DECISIONS-HYPOTHETICAL QUESTIONS Since the question presented for decision is of a hypothetical nature depending upon the contingency of the President promulgating a proposed amendment to existing executive regulations which may or may not be approved, an authoritative decision on such question at the present time would not be appropriate or proper under the provisions of the act of July 31, 1894, as amended. Assistant Comptroller General Elliott to the Secretary of the Navy, July 29, 1941: There has been received your letter, dated July 11, 1941, as follows: The act approved October 17, 1940 (Public, No. 872, 76th Congress), entitled "An Act to provide for an extension of the conditions under which a money allowance for quarters may be paid to certain noncommissioned officers of the Army of the United States," provides: "That each enlisted man of the first, second, or third grade of the Army of the United States in the active military service of the United States, having a dependent as defined in sections 8 and 8a, title 37, United States Code, shall, under such regulations as the President may prescribe, be entitled to receive, for any period during which public quarters are not provided and available for his dependent, the money allowance for quarters authorized by law to be granted to each enlisted man not furnished quarters in kind." Reguations issued in pursuance of this act are set forth in Executive Order No. 8688 of February 19, 1941, copy enclosed. In the Comptroller General's decisions of March 17, 1941, and April 15, 1941, B-15346, it was held that, by virtue of section 12 (a) of the act of September 16, 1940 (Public, No. 783, 76th Congress), enlisted men of the Navy were entitled to the benefits of the act of October 17, 1940, on a parity with enlisted men of the first three grades of the Army. Accordingly, it was held that enlisted men of the Navy, Marine Corps and Coast Guard were entitled to the money allowance for quarters for dependents under the same conditions as applicable to enlisted men of the first three grades of the Army. In this connection, the Navy Department has under consideration a recommendation to the President for a change in paragraph 2 of Executive Order No. 8688 of February 19, 1941, so as to authorize enlisted men of the first three grades, while in receipt of quarters allowance in their own right under section 11 of the act of June 10, 1922 (42 Stat. 630; 37 U. S. C. 19), and Executive Order No. 8704 of March 4, 1941, copy enclosed, by reason of no public quarters being available for themselves, to be paid an additional money allowance for quarters for dependents while on duty at stations from which their dependents are barred by competent authority. Paragraph 2 of said Executive Order No. 8688, modified to accomplish this purpose, would read as follows: 2. Payments. a. Effective as of October 17, 1940, each enlisted man of the first, second, or third grade of the Army of the United States, other than Philippine Scouts, in the active military service of the United States who is not entitled to a money allowance for quarters in a nontravel status under the provisions of section 11 of the act of June 10, 1922, 42 Stat. 630 (U. S. C., title 37, sec. 19), or who is so entitled at stations from which dependents are barred by competent authority, and who has a dependent as defined above, shall be entitled to receive for any period during which public quarters are not provided and available for his dependent, the money allowance for quarters prescribed for enlisted men in a nontravel status by Executive Order No. 8704 of March 4, 1941, or any amendments thereto, issued under section 11 of the said act of June 10, 1922." The reason for the changes which the Navy Department proposes to recommend in Executive Order No. 8688 of February 19, 1941, so as to provide for payment of the additional money allowance to enlisted men of the first three grades, is that there are naval enlisted men on duty ashore in various foreign countries who have dependents. The Navy Department does not furnish transportation for dependents to these stations. When the enlisted men concerned are not furnished government quarters, they must establish a residence for themselves. If their dependents are not present they must also establish a residence for them elsewhere. The proposed amendment will permit payment of an additional money allowance for quarters for dependents under such conditions. The further proposed change in paragraph 2 of Executive Order No. 8688 is necessitated by the fact that Executive Order No. 7293 of February 14, 1936, with amendments thereto, was expressly superseded by the last paragraph of Executive Order No. 8704 of March 4, 1941. This change in reference to the applicable Executive Order will bring the executive regulations into accord with the current regulations on the subject. The proposed payment of the additional money allowance for quarters to enlisted men of the first three pay grades, who are already entitled to such allowance in their own right at stations from which their dependents are barred by competent authority, appears to be within the meaning and intent of the act of October 17, 1940. The payment of this additional money allowance for quarters, even though it may result in exceeding the maximum daily allowance of $4.00 for commutation of quarters and subsistence to be paid to enlisted men in their own right under section 11 of the act of June 10, 1922, supra, is considered proper as a payment authorized to be made separate and distinct from those provided for in said section 11. Your early decision is requested as to whether. if Executive Order No. 8688 of February 19, 1941, should be amended as herein proposed, payments from current naval appropriations of the additional money allowance for dependents of enlisted men of the first three grades on duty at stations from which their dependents are barred by competent authority, even though such enlisted men are contemporaneously in receipt of quarters allowance in their own right under section 11 of the act of June 10, 1922, supra, and Executive Order No. 8704 of March 4, 1941, by reason of no public quarters being available for themselves at their duty stations, will be passed in the audit. Inasmuch as the question upon which decision is requested is of a hypothetical nature depending upon the contingency of the promulgation by the President of an amendment to existing executive regulation which may or may not be approved, I am inclined to the view that an authoritative decision thereon at the present time would not be appropriate or proper under the provisions of section 8 of the act of July 31, 1894, 28 Stat. 208, as amended. (B-17547) PAY-PERIOD AND LONGEVITY-NAVAL AVIATOR RESERVES APPOINTED AS REGULAR LINE OFFICERS A naval aviator of the Naval Reserve who is appointed a lieu enant commander in the line of the Regular Navy under authority of the act of August 27, 1940, and who at the time of appointment had nine years' active commissioned service under another Federal appointment, and fifteen years' service for longevity purposes as outlined in section 3 of the act of June 10, 1922, as amended, is entitled, if his first appointment in the Regular Navy was in a grade above ensign, to the pay of the fourth pay period increased by 25 per centum for over 15 years' service. A lieutenant of the Staff Corps of the Navy is not entitled to the pay of the fourth pay period on the basis that his total commissioned service equals that of a naval aviator of the Naval Reserve who is appointed a lieutenant commander in the line of the Regular Navy under authority of the act of August 27, 1940, and who is entitled to the pay of the fourth period by reason of having been first appointed in the Regular Navy in a grade above ensign. Assistant Comptroller General Elliott to the Secretary of the Navy, July 30, 1941: There has been received your letter of June 3, 1941, transmitting a letter from the Chief of the Bureau of Supplies and Accounts, dated May 26, 1941, in which decision is requested on questions as follows: 4. As to the rate of pay to which an officer is entitled if appointed to the rank of lieutenant commander of the line of the Navy under the act of August 27, 1940, who, at time of appointment, had nine years' active commissioned service under another Federal appointment, and fifteen years' service for longevity purposes as outlined in section 3 of the act of June 10, 1922. b. If it is decided that the officer mentioned in the preceding paragraph is entitled to the pay of the fourth pay period by reason of having been first appointed in the regular Navy in a grade above ensign, are lieutenants of the Staff Corps of the Navy whose total commissioned service equals that of such lieutenant commanders entitled to the pay of the fourth pay period from the date of oath and acceptance of office in his case? Section 2 of the act of August 27, 1940, Public, No. 775, 76th Congress, 54 Stat. 864, provides: The President of the United States is authorized to appoint to the line of the Regular Navy and Marine Corps, by and with the advice and consent of the Senate, as many naval aviators of the Naval and Marine Corps Reserve as he may deem necessary and the authorized number of commissioned officers of the line of the Navy and the Marine Corps is increased accordingly. These officers shall be appointed to the same grade occupied by them in the Naval or Marine Corps Reserve, as the case may be, at the time of such appointment and shall take precedence in such grade in accordance with the provisions of section 8 (e) of this act: Provided, That they shall first establish their moral, physical, mental, and professional qualifications in accordance with such rules and regulations as the Secretary of the Navy may prescribe: Provided further, That officers so appointed shall, on June 30 of the calendar year in which they are appointed, have completed not less than eighteen months of continuous active service next following the completion of their duty as aviation cadets undergoing training and shall, on June 30 of the calendar year in which appointed, be less than twentysix years of age: Provided further, That during a period of six months from the date of approval of this act the Secretary of the Navy is authorized to waive the foregoing age requirement and continuous service requirements: Provided further. That during a period of six months from the date of approval of this act those naval aviators who have not undergone training as aviation cadets but who have completed not less than one year of active service other than training duty in the Naval or Marine Corps Reserve may also be so appointed regardless of their age. Officers appointed under the authority of this proviso shall, upon appointment, be additional numbers in the grade to which appointed and in any grade to which they may thereafter be promoted: And provided further, That in computing the pay of officers appointed under the authority of this act, credit for longevity shall be given them for all service, including service as aviation cadets, with which they have heretofore been credited. The act of June 10, 1922, 42 Stat. 625, et seq., as amended, provides, in pertinent part: Section 1: * commanders [Par. 5] The pay of the fourth period shall be paid to of the Navy, and officers of corresponding grade who are not entitled to the pay of the fifth and sixth period; to * * lieutenant commanders of the Navy, and officers of corresponding grade who have completed fourteen years' service, or whose first appointment in the permanent service was in a grade above that corresponding to second lieutenant in the Army, * lieutenants of the Navy, and officers of corresponding grade who have completed seventeen years' service, *; and to lieutenant commanders and lieutenants of the Staff Corps of the Navy, * whose total commissioned service equals that of lieutenant commanders of the line of the Navy drawing the pay of this period. [Par. 10] Every officer paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his period for each three years of service up to thirty years: * * * * * * * [Par. 11] For officers appointed on and after July 1, 1922, no service shall be counted for purposes of pay, except active commissioned service under a Federal appointment and commissioned service in the National Guard when called out by order of the President. Section 3 of the act of June 10, 1922, as amended by the act of May 31, 1924, 43 Stat. 250, provides that when officers of the National Guard or of the Reserve Forces are authorized to receive Federal pay, they shall have pay periods according to grades as therein specified The provision as to service to be counted for longevity in that section is as follows: In computing the increase of pay for each period of three years' service, such officers shall be credited with full time for all periods during which they have held commissions as officers of any of the services mentioned in the title of this act, or in the Organized Militia prior to July 1, 1916, or in the National Guard, or in the Naval Militia, or in the National Naval Volunteers, or in the Naval Reserve Force or Marine Corps Reserve Force, when confirmed in grade and qualified for all general service, with full time for all periods during which they have performed active duty under reserve commissions, and with one-half time for all other periods during which they have held reserve commissions. For officers of the Regular service appointed on or after July 1, 1922, "no service shall be counted for purposes of pay, except active commissioned service." Thus, but for the last proviso in section 2 of the act of August 27, 1940, naval aviators of the Naval and Marine. Corps Reserve, appointed in the line of the Regular Navy and Marine Corps as therein authorized, would be limited in the computation of their longevity increase in pay to the "active commissioned service" specified in section 1 of the act of June 10, 1922, causing them to lose the benefit of any inactive commissioned Reserve service and other noncommissioned service which they may have been entitled to count as Reserve officers under section 3. The last proviso to section 2 of the act of August 27, 1940, was inserted so that "this situation can be taken care of by providing that they shall count for purposes of pay as Regular officers the same service which they now count for purposes of pay as Reserve Officers." See Senate Report No. 1947, 76th Congress, which accompanied H. R. 10030, page 6. The main purpose of the last proviso, therefore, was to avoid a reduction in the pay of those Naval and Marine Corps Reserve aviators who might be appointed in the line of the Regular services under the provisions of section 2. Apparently the officer referred to in the first question was appointed as an additional number as authorized in the fourth proviso of section 2 of the act of August 27, 1940. Upon the assumption that he was first appointed in the Regular Navy in a grade above ensign, his pay as a lieutenant commander should be computed on that of the fourth pay grade increased by 25 per centum for over 15 years' service, the pay he presumably received when on active duty while commissioned in the Naval Reserve. Special provision was made as to the pay of certain aviation officers of the Naval Reserve who were authorized to be appointed in the line of the Navy by the act of August 27, 1940. Those provisions do not apply to officers of the line of the Navy generally. The purpose of the provision for fourth period pay to lieutenant commanders and lieutenants of the Staff Corps of the Navy, it is well known, was inserted to equalize the pay of officers of the Staff Corps of the Navy appointed after March 4, 1913, with the pay of line officers of the Navy who were in the Naval Academy March 4, 1913 (see 37 Stat. 891), and who were entitled to count their services at the Naval Academy until graduation therefrom for purposes of longevity pay, while the repeal of the provision for constructive longevity increase of pay for officers of the Navy appointed from civil life was effective on that date. Officers of the Staff Corps of the Navy so appointed after March 3, 1913, were not entitled to credit for constructive service for purposes of longevity pay while midshipmen who had entered the Naval Academy prior to March 4, 1913, and were subsequently commissioned as officers in the Navy were entitled to count the entire period of their attendance at the Naval Academy for the purpose of longevity pay. It is obvious the comparison contemplated by the act of June 10, 1922, as amended, was not intended to apply where appointments are made to the line of the Navy under special acts, for special purposes, and with authority to count for purposes of pay services which are not authorized to be counted by officers of the Navy generally, as in this case. Your second question, is therefore, answered in the negative. 470350m-42 |