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motion from warrant officers become entitled by virtue of the promotion to the pay attaching to the commissioned warrant officer unless his pay as a warrant officer is greater, in which event he is entitled to pay as a warrant officer unless and until the pay as a commissioned warrant officer is greater. 3 Comp. Gen. 142; 26 Comp. Dec. 935. Where the commissioned warrant officer is entitled to saved pay of a warrant officer the increase provided in section 18 of the act of March 7, 1942, is required to be computed on the percentage applicable to warrant officers. See 16 Comp. Dec. 135.

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(4) It is requested that a decision be obtained from the Comptroller General as to whether the applicable rates of pay set forth in Table V of the Pay Bill Instructions, which gives effect to the rates of pay specified for Nurses, may be considered as base pay and whether the percentage increase of 20 percent may be computed on the basis of the annual pay prescribed therein for the several periods of service.

Section 13 of the act of June 10, 1922, 42 Stat. 631, 37 U. S. C. 22, provides:

That, commencing July 1, 1922, the annual pay of female nurses of the Army and Navy shall be as follows: During the first three years of service, $840; from the beginning of the fourth year of service until the completion of the sixth year of service, $1,080; from the beginning of the seventh year of service until the completion of the ninth year of service, $1,380; from the beginning of the tenth year of service, $1,560.

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Although the annual rates of pay authorized by section 13 of the act of June 10, 1922, for nurses, female, of the Navy are referred to as "the annual pay" as distinguished from annual "base" pay or "base" pay as used in section 10 with reference to the pay fixed for warrant officers of the Navy and Coast Guard, the pay provided for nurses, female, represents their statutory pay and is indivisible. While the annual rates of pay authorized in section 13 increase from the beginning of the fourth year of service, there is nothing therein to indicate that the higher rates are intended to represent the sum of the initial annual salary rate and the difference therein provided as an increase due to length of service. It is concluded that the percentage increase under section 18 of the act of March 7, 1942, should be computed on the annual pay rates to which the individual nurse is entitled.

(5). It is requested that a decision be obtained as to whether enlisted men and warrant officers temporarily appointed to warrant or commissioned rank are entitled to compute their saved pay on the basis of 20 percent of their base pay as enlisted men or warrant officers.

The act of July 24, 1941, Public, No. 188, 55 Stat. 603, 604, provides, in part:

SEC. 2. (a) As used in this Act, the words "temporarily appointed" shall be interpreted to mean also "temporarily promoted" or "temporarily advanced in rank," as the case may be.

(b) The following personnel may be temporarily appointed to ranks or grades in the Regular Navy or Marine Corps, not above lieutenant in the Navy and captain in the Marine Corps:

(2) Warrant officers of the Regular Navy and Marine Corps.

(3) First-class petty officers and above in the Regular Navy and platoon or staff sergeants and above in the Regular Marine Corps, including enlisted men of those grades on the retired list on active duty.

(4) Enlisted men of the Fleet Reserve and the Fleet Marine Corps Reserve on active duty in the grades herein specified for enlisted men of the Regular Navy or Marine Corps.

SEC. 7. (a) The permanent, probationary, or acting appointments 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 or allowance 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 would have been entitled had he not been so temporarily appointed.

By reason of the last proviso of section 7 (a) of the act of July 24, 1941, enlisted men and warrant officers temporarily appointed to warrant or commissioned grades in accordance with the provisions of sections 2 and 3 of that act, are entitled to the benefits of the pay and allowance provisions applicable to their permanent enlisted or warrant grades where the pay and allowances applicable to the warrant or commissioned grade to which temporarily appointed are less. Where such temporarily promoted warrant or commissioned officers receive the saved pay and allowances of their enlisted or warrant grades, the increase under section 18 of the act of March 7, 1942, should be computed on 20 per centum of the base pay of their enlisted or warrant grades.

(6) The Insular Force, United States Navy, was established by Executive Order dated April 5, 1901, under which the Secretary of the Navy was authorized to enlist in the Insular Force not to exceed 500 Filipinos in the ratings and at the rates of pay specified therein. In 12 Comp. Dec. 189 it was held : "Although under the foregoing Executive Order [of April 5, 1901] the men are enlisted in what is designated as the insular force, United States Navy, they are, nevertheless, enlisted men in and of the Regular Navy of the United States. The fact that they are attached to a part or branch thereof termed the insular force cannot affect the conclusion just stated. For said insular force was established under and by virtue of the statutes relating to and governing the Navy of the United States; and, unless said insular force be a part of the Regular Navy, there would exist no authority for the establishment of such insular force."

In this connection, attention is also invited to 27 Comp. Dec. 357. Enlisted men may be transferred away from the Philippine Islands for duty (Navy Department file 26754-3591:9, February 9, 1924; L. R. N. A., 1929, p. 103); they are eligible for transfer to the Fleet Reserve (Navy Department file 26254-3591:9-7 J:AC; August 11, 1925 CMO 8–1925 page 7); they are entitled to the enlistment allowance authorized by Section 10 of the Act of June 10, 1922 (Navy Department file 12423-13-K, July 19, 1923); they are entitled to outfits on first enlistment in the amounts set forth in Article 1431-3 (b) Bureau of Supplies and Accounts Manual (1 Comp. Gen. 480); and they come within the provisions of the Act of June 4, 1920, authorizing payment of six months' death gratuity under the conditions specified therein (Navy Deparment file 26252-127:10 J, February 11, 1926).

8. Section 10 of the Act of June 10, 1922, provides that the rates of pay of members of the Insular Force shall be one-half the rates prescribed for enlisted men of the Navy in corresponding ratings. Public Law 490 dated March 7, 1942, in effect increases the base pay of enlisted men in the Naval forces and, therefore, such increase comes within the category of pay conferred upon all enlisted men by statute and under 26 Comp. Dec. 428 should be paid to enlisted men of the Insular Force. It is requested that a decision be obtained from the Comptroller General whether enlisted men of the Insular Force may be paid the 20 percent increase authorized by Public 490 approved March 7, 1942, under the same conditions as enlisted men of the Regular Navy. In 26 Comp. Dec. 428, it was held that enlisted men of the insular force of the Navy were entitled to the extra pay conferred by statute upon all enlisted men. Under section 10 of the act of June 10, 1922, 42 Stat. 630, 37 U. S. C. 16, the rates of pay of the insular force of the Navy were fixed at one-half the rates of pay prescribed for enlisted men of the Navy in corresponding grades. Section 18 of the act of March 7, 1942, embraces any enlisted man in the naval forces of the United States for any period of service while on sea duty or duty in any place beyond the continental limits of the United States or in Alaska. In view of the long administrative and accounting understanding of the status of persons constituting the insular force and the statute now fixing their pay at one-half the rates of pay prescribed for enlisted men of the Navy of corresponding ratings, it is reasonably clear they are entitled to the benefits of section 18 of the act of March 7, 1942. That is, to preserve the one-half pay to which the enlisted men of the insular force are entitled under section 10 of the act of June 10, 1922, and at the same time give full effect to section 18 of the act of March 7, 1942, the pay of members of the insular force of the Navy should include the per centum authorized by the last-mentioned act for any period of sea duty or duty in any place beyond the continental limits of the United States or in Alaska.

(7) 9. Former Cadets, Merchant Marine Reserve, serving in Merchant Marine Vessels taken over by the Navy and who volunteer for active duty, under the instructions contained in Bureau of Navigation Circular letter 101-41 dated August 12, 1941 (copy enclosed herewith) are appointed as Midshipmen, Merchant Marine Reserve. In accordance with Section 7 of the Naval Reserve Act of 1938 Midshipmen of the Naval Reserve on active duty are entitled to receive the same pay and allowances as Midshipmen of the Regular Navy. At the present time this consists of pay at the rate of $780.00 per annum and a ration allowance of $0.75 per day. There are a number of Midshipmen, Merchant Marine Reserve, now serving on active duty as junior officers on vessels of the Navy and it is requested that a decision be obtained from the Comptroller General as to whether such Midshipmen are entitled to percentage increase of 20 per cent or 10 per cent for sea duty.

Section 7 of the Naval Reserve Act of 1938, 52 Stat. 1176, 34 U.S.C. 853e, provides, in part:

Reserve

Midshipmen, warrant officers, nurses, and enlisted men of the Naval when employed on active duty or on training duty with pay or when employed in authorized travel to and from such duty, shall receive the same pay and allowances as received by midshipmen, warrant officers. nurses, and enlisted men of the Regular Navy of the same rank, grade, or rating, and of the same length of service

Section 305 of the same act, 52 Stat. 1182, 34 U. S. C. 855d, provides, in part:

Subject to the provisions of section 306 hereof, in time of peace commissioned officers appointed to the Naval Reserve shall be commissioned to serve during the pleasure of the President, in grades or ranks not above that of lieutenant commander, except that a small percentage of officers in the higher grades or ranks may, if qualified, be commissioned in the grades or ranks of rear admiral, captain, and commander. Warrant officers, aviation and merchant marine cadets, and midshipmen shall be appointed to serve during the pleasure of the Secretary of the Navy.

Article H-2104 (3), Bureau of Navigation Manual, provides:

Aviation cadets and cadets, Merchant Marine Reserve, shall be appointed by the Secretary of the Navy to serve during the pleasure of the Secretary of the Navy. Appointments to the grade of midshipman will be made only during times of threatened emergency, in accordance with instructions issued by the Bureau of Navigation in separate publications.

Section 18 of the act of March 7, 1942, provides in express terms for a per centum increase in the base pay of any enlisted man, warrant officer, nurse (female) and any commissioned officer for any period of service while on sea duty. It does not mention midshipmen. Prior to the act of March 7, 1912, 37 Stat. 73, students at the Naval Academy were required to serve six years, the last two of which were required to be performed as midshipmen at sea with a higher rate of pay therefor. See, 1556 Revised Statutes, and the act of May 13, 1908, 35 Stat. 128. Also, 20 Comp. Dec. 141. The grade of midshipmen as part of the active list of the line was abolished and the grade of junior ensign created by the act of March 3, 1883, 22 Stat. 472, which provided that midshipmen then on the list shall constitute a junior grade of and be commissioned as ensigns having the same rank and pay as then provided by law for midshipmen. The grade of junior ensign was abolished by the act of June 26, 1884, 23 Stat. 60, which provided that the junior ensigns then on the list should be commissioned ensigns in the Navy and that graduates of the Naval Academy who are assigned to the line of the Navy on the successful completion of their course shall be commissioned ensigns in the Navy. See Laws Relating to the Navy, Annotated, page 799.

In 5 Comp. Dec. 136, it was held (quoting from the syllabus):

Naval cadets pursuing a course of study on the U. S. S. Santee are not entitled to the increased pay provided for service at sea in other than practice ships, such vessel while so engaged being to all intents and purposes a practice ship.

In 14 Comp. Dec. 882, it was held that midshipmen after graduation are not entitled to the 10 per centum increase of pay provided by the act of May 13, 1908, 35 Stat. 128, while serving on sea duty or on shore duty beyond the continental United States.

While midshipmen have been held to be officers for certain purposes, United States v. Cook, 128 U. S. 254; United States v. Baker,

125 U. S. 645, they are not commissioned officers nor are they enlisted men. With this in mind it is to be inferred that the express enumeration in section 18 was distributive and exclusive and was not intended to affect or increase the statutory pay of midshipmen of the Naval Academy while pursuing their normal course of instructions. The pay of midshipmen of the Naval Reserve being assimilated to the pay of midshipmen of the Naval Academy they are not entitled to increased pay under section 18 of the act of March 7, 1942, either as enlisted men, warrant officers, or as commissioned officers.

(8) 10. The question also arises as to whether personnel on sea duty or on foreign service duty are entitled to continue in receipt of the applicable percentage increase while absent from their permanent stations on temporary duty in the continental limits of the United States or in connection with ships fitting out or undergoing conversion. In connection with the right of an officer to sea duty pay under the provisions of the Act of May 13, 1908, the Comptroller of the Treasury in 16 Comp. Dec. 464 stated that Naval officers on duty at sea who are ordered to duty on shore under orders which specify that such shore duty is temporary and in addition to their present duties are entitled to the pay allowed an officer on sea duty. In decision of January 17, 1916, the Comptroller of the Treasury ruled that an officer ordered from shore duty beyond the seas to temporary duty in the United States is not entitled to the 10% additional pay during the period of temporary duty. It is therefore requested that a decision be obtained from the Comptroller General on the following points:

(a) Whether personnel of the Navy on sea duty or foreign service duty ordered to temporary additional duty ashore in the United States are entitled to continue in receipt of applicable increase of pay during period of such temporary duty? If not, from what date should credit of the increase be discontinued and from what date should the credit be resumed following detachment from such temporary duty?

(b) Whether personnel of the Navy on shore duty in the United States ordered to temporary additional sea duty or temporary additional foreign shore duty are entitled to the applicable increase while serving under such temporary duty orders? If so, for what inclusive periods are such personnel entitled to the applicable increase?

(c) Whether personnel of the Navy on sea duty ordered to temporary additional duty in connection with the fitting out, conversion and fitting out of a vessel, are entitled to continue in receipt of sea pay? If not, from what date should credit of the increase be discontinued and from what date should the credit be resumed following detachment from such temporary duty? In this connection, it is requested that there be taken into consideration the factor that the ship may be placed in service, placed in full commission, or commissioned in ordinary before being placed in full commission. (Art. 637, 639, 640 Navy Regulations).

The decision 16 Comp. Dec. 464-upon the right of a naval officer to additional pay under the act of May 13, 1908, 35 Stat. 128, during a period while the officer under orders was assigned to temporary duty in Washington, D. C., in addition to his then present duties upon completion of which he was directed to proceed and resume his duties on board the U. S. S. Georgia-was predicated upon the decision of the Supreme Court of the United States in the case of United States v. Engard, 196 U. S. 511. In that case the former Comptroller of the Treasury referred to the court's reply to the argument advanced by the attorney for the Government in the Engard case quoting therefrom, 16 Comp. Dec. 466, as follows:

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