The Anomaly of the "Enlisted Officer"
A series of decisions rendered by the Comptroller General of the United States relative to the status of certain temporary officers of the Navy and Marine Corps has created what might be termed the anomaly of the "enlisted officer." The persons affected hold a status in the Navy and Marine Corps which has no counterpart in the Army and Air Force. Their number is substantial.1 Even if the number were of no consequence, however, the trend of the decisions would be important, for the implications, as will be seen, are far reaching.
What is the enlisted officer? He is an enlisted man of the regular Navy or Marine Corps appointed to commissioned officer status in the regular service by the President of the United States under authority of federal statute enacted by Congress. His commission is revocable at the pleasure of the President.
The creation of this group of "enlisted officers" was occasioned by the National Emergency which preceded World War II. The rapid expansion of the Naval Establishment from the small pre-war Navy to the giant Navy of the 1942-1945 period required a greatly expanded officer corps.2 A well known source of this expansion was the commissioning in the Naval Reserve of persons direct from civil life, as well as the calling to active duty of persons already holding commissions in the Naval Reserve.3 A source less well known was the creation of "enlisted officers," commonly referred to as "temporary officers," by the commissioning of permanent enlisted personnel of the career Navy, with temporary commissioned status. Many of these latter officers are still in uniform.4 Their uniforms and responsibilities are identical to those of officers holding permanent commissions. Only in the question of benefits do they become distinguishable, and in this field they receive a distinction that appears to many to be discriminatory.
Did the Congress intend that these persons should acquire the benefits as well as the responsibilities of officers? There has been a variance of opinion on this question amongst persons in federal office who have had the question presented to them for administrative decision. In general, the Judge Advocate General of the Navy had held "yes." In general, the Comptroller General of the United States has held "no."
Regardless of the effect of these decisions upon these temporary officers as individuals, the more far-reaching effect of the series of decisions of the Comptroller General with respect to the status of temporary officers becomes apparent. If an officer of the United States, duly appointed to officer under the appointive power of the President acting to fill an office created by the Congress, can in this instance (the instance of temporary officers of the Naval Service) be held at a later time never to have been an officer at all, in the sense of many of the statutes which govern the status and compensation of military personnel of our nation, where does the interpretation end? Can persons granted temporary or interim appointment to office under the United States other than military also be held at a later date never to have been an officer of the United States?
The decisions of the Comptroller General in this regard are worthy of consideration in order that their development may be analyzed, and their possible consequences in the field of administrative law considered.
During World War I, the appointment of temporary officers was authorized by an act of Congress.5 This act specifically provided that such temporary appointment of officers would not, by virtue of its operation, entitle persons so appointed to any of the retirement rights provided by law for officers holding permanent appointment in the Navy, except for disability incurred in the line of duty,6 was clear and well defined in comparison with the corresponding World War II act. That the latter leaves question is well illustrated by the split of opinion on the "officer" status of World War II temporary officers when their retirement is in question, as well as with respect to other benefits of law. The problem was further simplified with respect to World War I temporary officers by the limited number of officers appointed to this status, the brief duration of the War in comparison with World War II, and the rapid return to a peace which lasted two decades and involved no complicating "Koreas."
The temporary officer with which the present note deals came into being with the Second World War. The Act of July 24, 19417 authorized the temporary appointment to commissioned status of certain enlisted and warrant personnel of the Navy and Marine Corps. Section 2(b) of the Act provided:
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:
- Commissioned warrant officers of the Regular Navy and Marine Corps.
- Warrant officers of the Regular Navy and Marine Corps.
- 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.
- 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.
This legislation had been sought by the Navy. The purpose is perhaps best described in the testimony of Admiral Chester Nimitz, USN, then assistant chief of the Bureau of Navigation, before the Committee on Naval Affairs, House of Representatives,8 during May 1941, which reads in part:
Many warrant officers and enlisted men of the Regular Navy would be of greater value in their specialty in time of war in a higher status than in their present enlisted or warrant capacity. This is because of the great expansion of the naval establishment, in both ships and aviation, such as that upon which we are now entering.
... Also it seems logical to utilize the men whom the Navy has trained, in the highest capacity for which their abilities qualify them.
Once appointed to commissioned status under the authority of this Act,9 these temporary officers took precedence in accordance with their date of commission in grade. From that time they were promoted to successive grades
concurrently with their contemporaries already holding commissions in the Regular Navy and in the Naval Reserve. Many rose to the grade of lieutenant commander, with a few rare cases reaching commander grade.
Upon cessation of the hostilities and the eventual signing of the peace, the question arose as to what to do with the temporary officers. The boards that convened in the Navy Department to consider the post-war officer structure of the Navy concluded that the world commitments of the United States for several years would necessitate the employment on active duty of more officers than the number then holding permanent commissions in the Regular Navy.10 It was thus decided to use the temporary officers (as well as officers of the Naval Reserve on active duty) to supplement the career officers during the gradual return to purely career service. To this end, when legislation was drafted to govern the appointment, promotion, and involuntary retirement of officers of the post-war Navy, provision was made for the continued employment of temporary officers, and for the confirmation of their appointments made under the Act of July 24, 1941, as appointments under the authority of the new legislation. This legislation became the Officer Personnel Act of 1947.11
When the Act was passed, it was the intent that the Navy would return to its permanent peacetime strength and composition within a ten year period. During this period, temporary officers were to be gradually phased out. The occurrence of the Korean emergency, however, and the existence of World tensions calling for larger military forces than the law had envisioned, delayed the reversion of temporary officers to their permanent enlisted status (or to retirement from the service.)
The majority of temporary officers have therefore occupied officer status for a period of over ten years. Despite this period of commissioned service, the rulings of law are now in conflict over whether or not they are in fact officers. At the present time, there are 7,393 temporary officers in the Navy and 2,546 in the Marine Corps.12
Prior to the time when the question was presented for administrative decision, it had been the popular opinion in the Navy that temporary officers were in fact "officers." The men so serving appeared, performed, and executed the duties of their officer status, not their enlisted status. It did not occur to the service at large that these persons would later be held not to be regular officers of the Naval Service.
This was not only the popular opinion in the Navy, but that of its lawyers as well. The Judge Advocate General of the Navy, in an opinion rendered to the Chief of Naval Personnel in May 1948,13 stated that temporary officers "... while so serving, have all the authority, responsibilities, and duties of the office so occupied, together with the pay and allowances provided by law therefor, and having been clothed by the Congress with such indicia of office, must be held to be officers of the Navy within the meaning of statutes of general application relating to officers of the Navy...."
In this opinion, the Judge Advocate General held that temporary officers of the Navy and Marine Corps were eligible to be retired by reason of physical disability in accordance with the Federal Statutes which provided for such retirement for "officers" of the Navy.14 No corresponding provision of law existed for the retirement of enlisted personnel for physical disability. Temporary officers, if considered "officers," were entitled to disability retirement. If not so considered, their retirement could be accomplished only
indirectly through the means of the Fleet Reserve. The Judge Advocate found them to be officers in the meaning of the statute, and entitled.
In succeeding months, question after question arose with respect to the "officer" status of temporary officers. Temporary officers were reaching ages, periods of service, incurring injuries, or meeting other circumstances under which they were eligible for retirement, or compensation, or recognition in the form of promotion on the retired list if they were "officers," but to which they would not be entitled if they were in fact "enlisted personnel."
Several statutes were of particular concern to the temporary officers, the most pertinent of which provided in general and in brief:
That "any officer of the Navy" who has been forty years in the service may be retired by the Secretary of the Navy upon his own application.15
That "an officer of the Navy" who has been thirty years in the service may upon his own application, in the discretion of the Secretary, be retired.16
That "any officer" of the Regular Navy or Marine Corps or Reserve Components thereof who has completed twenty years of active service at least ten years of which shall have been active commissioned service, may upon his own application, in the discretion of the President, be retired.17
That "any officer of the Regular Navy or Marine Corps" below the rank of fleet admiral who has attained the age of 62 years, shall be placed upon the retired list by the President.18
That when a retiring board finds "an officer" incapacitated for active service, not the result of any incident of the service, such officer shall, if said decision is approved by the Secretary, be retired on furlough pay, or wholly retired as the Secretary may determine.19
That "all officers of the Navy and Marine Corps, and the Reserve Components thereof," who have been specially commended for performance of duty in combat, when retired, shall be placed upon the retired list with the rank of the next higher grade than that in which serving at the time of retirement.20
Consequently, the Chief of Naval Personnel requested the opinion of the Judge Advocate General of the Navy as to whether or not temporary officers were "officers" within the meaning of each of the above.
The Judge Advocate General of the Navy considered this question in an opinion rendered in May 1949.21 In this opinion he reiterated the position that temporary officers have the authority, responsibility, and duties of office, together with the pay and allowances, have been clothed by the Congress with such indicia of office, and must be held to be officers. He stated that, with respect to each of the above provisions of law, he inclined to the view that temporary officers were included in those who might benefit from the provisions. The words "inclined to the view" were soon explained, for the Judge Advocate General went on to state that since rendering his previous opinion, that temporary officers were officers entitled to the disability retirement law, the Comptroller General of the United States had expressed his decision that they were not so entitled.22 He would therefor withhold further opinion pending reconsideration in the matter by the Comptroller General.
The control of the purse strings had made its influence felt. Since an opinion by the Judge Advocate General could not operate to bind the Comptroller General with respect to the audit of accounts of Navy disbursing officers, the Judge Advocate was naturally reluctant to express an opinion contrary to the trend shown by the Comptroller General. An opinion by the Judge Advocate General holding a particular type of retirement to be legal would be of small consolation to a Navy disbursing officer whose account had been disallowed by the Comptroller General for the amount paid such officer on the retired list.
Although the Comptroller General had ruled in one type of retirement only (physical disability), the Judge Advocate General was reluctant to give further opinion on the subject in view of the negative attitude expressed by the keeper of the purse strings.
This then was the background upon which was founded a series of decisions by the Comptroller General on the status of temporary officers within the meaning of "officer" in related statutes. If the words of the Congress had not stated an anomaly in this respect, they had at best invited an interpretation that was anomalous.
The Comptroller General Decisions
The decisions of the Comptroller General may best be considered by grouping them into (1) decisions relating to eligibility for retirement, (2) decision relating to status on the retired list once eligible, (3) decisions relating to holding dual federal office, (4) decisions relating to receiving dual federal compensation.
Eligibility for Retirement
The first question to give rise to an opinion by the Comptroller General with respect to the retirement of temporary officers appointed to commissioned rank under the Act of July 24, 194123 was occasioned by a letter from the Secretary of the Treasury in behalf of the Coast Guard, to secure a decision with respect to temporary officers of the Coast Guard.
The Act of February 21, 194624 provided temporary legislation authorizing boards of officers to consider and recommend for involuntary retirement certain officers of the Navy and Marine Corps. The involuntary retirement provisions of law for service in grade had been suspended during the war years to conserve manpower in the officer corps. The legislation was intended as a means of clearing the active list of officers who would normally have been involuntarily retired had not the authority been suspended. The provisions of the statute were applicable by the assimilation features of its Section 10, to officers of the Coast Guard as well as the Navy and Marine Corps. The question: Did the authority to involuntarily retire "officers of the Regular Navy" include authority to involuntarily retire temporary officers?
The Comptroller General held that, for this purpose, temporary officers did not fall within the term "officers."25 It was concluded that the term "officers" contemplated officers holding permanent rank as such. The Comptroller General felt that the intent of the Congress as revealed by the words of the act and its
legislative history was that when a temporary officer could no longer be utilized efficiently in such temporary rank, he was to revert to his permanent enlisted status rather than to be retired in such temporary rank.
While the decision held the "enlisted officer" not to be an officer, it was regarded as a just decision by the services, since the effect was to exempt temporary officers from the "plucking boards" convened to recommend officers for involuntary retirement. The result was therefor that while the decision said temporary officers were not "officers," it at the same time exempted them from transfer to the retired list involuntarily, and therefor protected their active duty officer status. While temporary officers could, and did, voluntarily revert to enlisted status in a few cases, no involuntary reversions were effected at this time, and the services did not think of the officers retaining their temporary commissions as anything but "officers."
The next question to be presented to the Comptroller General involved a beneficial retirement question with respect to temporary officers. It has been mentioned earlier that the Judge Advocate General of the Navy rendered an opinion to the Chief of Naval Personnel that temporary officers were officers eligible for retirement under the physical disability retirement statute.26 The Chief of the Bureau of Supplies and Accounts, Department of the Navy, requested through the Secretary of the Navy a decision from the Comptroller General in this matter, in order that Navy supply officers disbursing funds to pay the retired temporary officers might be protected.27 The Comptroller General considered the question and reached the opposite view from that taken by the Judge Advocate General, concluding that temporary officers were not "officers."28
In this opinion, the Comptroller General cited opinions of the Attorney General of the United States as authority that the laws providing generally for the retirement of officers of the Navy refer only to officers holding permanent commissions in the Regular Navy.29 There is precedent in court decisions that an individual can be an officer of the Navy for the purposes of one statute and not an officer of the Navy for the purposes of another statute.30
In reaching the decision above, the Comptroller General reviewed testimony before the Congress during hearings on the bill that eventually became the Act of July 24, 1941, providing for the appointment of enlisted personnel to temporary officer rank, that, in his opinion, led to the conclusion that an enlisted man of the Regular Navy so commissioned was not an officer within the purview of the physical disability retirement act.31 This testimony centered about the statement by a Navy witness that it was the intent of the Navy to revert temporary officers to their permanent enlisted status within six months after the termination of the emergency, or war. When it is considered that this statement was made prior to the outbreak of World War II, or more properly, prior to the entry of the United States into World War II, it might be felt that time and circumstance would make the statement of dubious value in determining the post war status of temporary officers, particularly when they not only had not been reverted subsequent to the termination of hostilities, but they would be utilized and still will be utilized, for an indefinite period, as commissioned officers of the Regular Navy.
The previous decision had exempted temporary officers from involuntary retirement. This one denied their retirement as officers for physical disability incurred as enlisted personnel. The decision was of concern to the temporary officers in a magnified proportion since no statutory authority existed for their retirement for physical disability as enlisted men. Still, the decision was not a
clear-cut denial of "officer" status, for the physical disability of the temporary officer concerned in the decision had been incurred while he was enlisted, and prior to his advancement to commissioned status.
Status on the Retired List Once Eligible
The status of temporary officers next came before the Comptroller General in October 1949.32 A temporary officer had again incurred physical disability incident to service. This time, however, the disability was incurred after advancement to officer status and fell clearly within a provision of the Act of July 24, 1941:33a
Sec. 8 (a) An officer or enlisted man of the active list of the Regular Navy or Marine Corps or an enlisted man of the Fleet Reserve or Fleet Marine Corps Reserve, who incurs physical disability while serving under a temporary appointment in a higher rank, shall be retired in such higher rank with the retired pay at the rate of 75 per centum of the active duty pay to which entitled while serving in that rank.
At the time the disability was incurred, the temporary officer was serving in the grade of ensign. There was no question that he was entitled to be placed on the retired list in this grade. However, subsequent to incurring the disability, and prior to the time the question was presented, he had been promoted in an en bloc promotion to lieutenant (junior grade).
Section 316 (j) of the Officer Personnel Act of 194733b provides:
316 (j) Any officer serving in the grade of rear admiral or below under the authority of this title by virtue of a temporary appointment therein shall, if retired while so serving be retired in the grade in which serving with retired pay based on the active duty pay to which he was entitled at the time of retirement unless otherwise entitled to higher retired grade or pay.
If the term "any officer" included temporary officers, the person in question could be retired in the rank of lieutenant (junior grade). This was the decision requested.
The words of the latter section, "by virtue of a temporary appointment therein," while appearing to give special significance in the case of a temporary officer, in fact do not. They refer to temporary promotion from one officer grade to another, and not to temporary appointment to officer status from enlisted status.
Eligible for such temporary promotion from one officer grade to a higher grade were officers holding permanent commissions in the Regular Navy, officers holding temporary commissions in the Regular Navy whose permanent status was enlisted (temporary officers), and officers holding commissions in the Naval Reserve.
In deciding whether or not temporary officers were included in the term "any officer" as used in this section of the Officer Personnel Act of 1947, the Comptroller General turned to the definition of "officer" in section 302(a) of the act.34
302 (a) As used in this title ... the word "officers" shall, unless otherwise qualified, be interpreted to mean all officers of the grade of ensign and above on
active duty in the Navy, exclusive of officers of the Naval Reserve assigned to active duty for training, and exclusive of officers of the Naval Reserve ordered to active duty in connection with organizing, administering, recruiting, instructing, training, or drilling the Naval Reserve, or ordered to temporary active duty for the purpose of prosecuting special work ...
The Comptroller General reached the conclusion that, except for those expressly excluded, the term "officers" was intended to include all persons holding a commission in the Navy, both regular and reserver, regardless of whether such person held a permanent commission.35 It was therefor held that a temporary officer was an officer within the meaning of section 316 (j) of the Act and therefor entitled to be retired in the rank of lieutenant (junior grade) in the instance in question, and to receive retired pay based on that grade.36
In the final paragraph of the decision, it was stated:37
The facts in this case are, of course, to be distinguished from those in the cases considered in the decision of March 23, 1949, 28 Compt. Gen 535, where the answer turned on the fact that there was no basic authority to retire individuals there concerned, and hence section 316 (j) of the Officer Personnel Act of 1947, supra, was not for application.
The decision in this case has been discussed above, and relates the fact that a temporary officer is not an officer in the eyes of the disability retirement law.38
This decision in effect said, a temporary officer is not an officer for the purpose of determining eligibility for retirement under statutes of general application, but if retired, he is an officer for the purpose of determining rank and pay on the retired list. The temporary officer, except where express provision is made for his retirement as such, would gain retired status in accord with his permanent enlisted grade. However, once retired, he would take grade and pay in accord with status dictated by his officer category.
At this point, the temporary officers of the Naval Service, who had followed closely the discussions of their status, gave up all hope of learning whether they were fish or fowl.
The Department of Defense Appropriation Act of 195239 again brought the temporary officer into question. This act contained a provision which precluded the payment of retired pay to any officer who retired voluntarily during that year, unless such retirement was approved by the Secretary of the Navy as necessary to avoid severe personal hardship, or for the good of the service. Question: Were temporary officers "officers" within the meaning of the prohibition?
The restriction on voluntary retirements had inception in the partial mobilization of the armed forces incident to the Korean emergency. To expand the military establishment to meet the emergency, officers of the reserve components were called involuntarily to active duty. In the opinion of the Congress, it was inconsistent to permit the voluntary retirement of regular officers at the same time reserve officers were being called involuntarily. Accordingly, the so-called Van Zandt amendment was introduced and became a part of the appropriation act.40 It provided:
For retired pay and retirement pay, as authorized by law, of military personnel on the retired lists ... Provided, that no part of such sum shall be used to pay the retired pay of any commissioned member of the Regular Army, Navy, Marine Corps, or Air Force, who is voluntarily retired after the date of enactment of this Act, unless such member was retired because of (1) being unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability incurred in the line of duty, or (2) achieving the age of which retirement is required by law, or (3) whose application is approved in writing by the Secretary of Defense stating that the retirement is in the best interests of the service, or, is required to avoid cases of individual hardship.
Was a temporary officer such a "commissioned member?"
The Comptroller General concluded that he was not. He reached this decision through examination of section 302 of the Officer Personnel Act of 1947, which provides that permanent status of temporary officers, that is to say, their enlisted status, is not vacated during their service as officers, and that their rights, benefits, and privileges shall not be lost or abridged by acceptance of such temporary commission. This led to the conclusion by the Comptroller General that a temporary officer, never having vacated his enlisted rating, was not a "commissioned member" of the Regular Navy or Marine Corps, and therefor was not prohibited from voluntary retirement by the provision of the Appropriation Act.
While the decision produced a satisfactory result so far as the service was concerned, since it protected a right which the temporary officer would have enjoyed had he not accepted commissioned status, could the reasoning not be applied with equal force in respect to other statutes? Would it not be equally sound to hold that where to insist on enlisted status as over-riding in the dual status of enlisted-officer would result in depriving the temporary officer of a benefit to which he would otherwise be entitled as an officer, the intent of Congress was not to so deprive him? If the intent of Congress was to protect persons so appointed from being deprived of benefits, gained as enlisted men, was it also the intent to deny them, through this projection, benefits of commissioned status which they otherwise would have gained? The Judge Advocate General of the Navy thought not. The Comptroller General of the United States thought so.
During the period covered by the above decisions, there had existed one provision of law upon which it was felt there could be little question. Its terms were so broad, its intent seemed so obvious that it was generally taken for granted that temporary officers would be considered "officers" within its provisions. This was section 6 of the Act of February 21, 1946.41 This section provided:
When any officer of the Regular Navy or the Regular Marine Corps or the Reserve Components thereof has completed more than twenty years of active service in the Navy, Marine Corps, or Coast Guard, or the Reserve Components thereof, including active duty for training, at least ten years of which shall have been active commissioned service, he may at any time thereafter, upon his own application, in the discretion of the President, be placed upon the retired list on the first day of such month as the President may designate.
The provision that at least ten years of the required twenty years service be commissioned service made it seem obvious to temporary officers that the provision not included their case, but was expressly designed for it.
Wrong again! In a decision to the Secretary of the Navy rendered in July 1952,42
the Assistant Comptroller General of the United States held that a temporary officer is not an "officer of the Regular Navy or the Regular Marine Corps or the Reserve Components thereof" for the purpose of this statute.
The facts in the particular case that gave issue to this decision are pertinent to an understanding of the decisions with respect to temporary office under the United States, and to an interpretation of the intent of the Congress with respect thereto.
The case was that of Lieutenant Commander Charles E. London, USN (T). On July 23, 1942, London, then an aviation machinist mate USN (enlisted petty officer) was appointed by the President to the temporary grade of Ensign under the authority of the Act of July 24, 1941.43 London progressed through the several grades to the grade of lieutenant commander, in which grade he was serving in 1952 under the authority of the Officer Personnel Act of 1947.44
The Under Secretary of the Navy, on May 20, 1952, addressed a letter to the Comptroller General in which he said in part45 with respect to London:
... He will have completed ten years of active commissioned service on July 22, 1952, and if eligible for retirement, it is proposed that he will be transferred to the retired list effective August 1, 1952 ...
The sole question presented to the Comptroller General was whether London, a temporarily commissioned officer of the Regular Navy, who retained his permanent enlisted status, might be considered to be "an officer of the Regular Navy" within the meaning of section 6 of the act of February 21, 1946, supra.
The Assistant Comptroller General, after reviewing the previous decisions relating to temporary officers and the pertinent provisions of law concluded:46
... Accordingly, since section 6 of the Act of February 21, 1946 supra, does not expressly or by necessary implication appear to include within its terms enlisted personnel serving under temporary appointments as commissioned officers, the conclusion is required that lieutenant commander London would not be entitled to retired pay on the basis of a purported retirement under the provisions of that section. The question is therefor answered accordingly.
The last shadow of doubt had been removed. In the eyes of retirement statutes of general application governing eligibility to be placed on the retired list, temporary officers were not officers in the sense that would so entitle them.
Dual Federal Office
It has been indicated that once retired as enlisted men, temporary officers were entitled to promotion on the retired list to grade based on temporary rank held within certain dates and conditions.47 Thus, even though they must serve thirty years to be eligible for retirement as enlisted men, instead of shorter periods which would be possible to make them eligible as officers, once placed on the retired list, they would be advanced to commissioned status.
Certain statutes affect officers on the retired list and enlisted men on the retired list in different manner. The question therefor arose which status temporary officers retired as enlisted men and then advanced on the retired list to officer grades occupied, officer or enlisted?
A federal statute prohibits the holding of dual federal officer under certain conditions.48 It provides as follows:
No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; ... Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause ... shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement.
The question: Are individuals retired as enlisted men but advanced to officer grade and pay on the retired list by virtue of service as a temporary officer, "retired enlisted men" and therefor specifically exempt from the provision, or "retired officers" and therefor subject to the prohibition?
In a decision rendered during October 1946, the Comptroller General decided that persons in this circumstance hold enlisted office on the retired list and not that of officers on the retired list.49 A retired Navy enlisted man who returned to inactive status with commissioned rank held under a temporary appointment while on active duty does not hold the "office" of a retired officer, but, rather continues to hold the "office" of an enlisted man on the retired list and, therefore, remains within the exception of retired enlisted men from the prohibition quoted above against the appointment to, or the holding of, more than one office.
It was reasoned that the Congress may properly determine the rank and retired pay of officers and enlisted men on the retired list, but it can not by legislation appoint such officers and enlisted men to new offices or change the office which they hold on the retired list.50
The decision in Wood v. United States,51 quoted in part, is pertinent to the reasoning of this decision:
... But being such officer, thus appointed of any grade on the active list, he may be retired with a rank higher or lower than that which belongs to his office whenever Congress sees fit so to provide. Congress cannot appoint him to a new and different office, because the Constitution vests the appointing power in the President, with the advice of the Senate, or in certain cases in the President alone, the heads of the executive departments, or the courts of law; but the Congress may transfer him to the retired list, and may change his rank and pay at any time, without coming in conflict with that provision of the Constitution.
Dual Federal Compensation
If temporary officers advanced to commissioned grade and pay on the retired list were not "retired officers" for the purpose of determining eligibility to office, were they then "retired officers" for the purpose of determining liability to the prohibitions against dual federal compensation? The Comptroller General next considered this question.52
Section 212 (a) of the Economy Act of 1932 as amended,53 provides in part:
... no person holding a civilian office or position, appointive or elective, under the United States Government ... Shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services ... at a rate in excess of an amount which when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $3,000 ...
Question: Was a retired Navy enlisted man advanced to officer grade upon the retired list by virtue of service as a temporary officer, receiving retired pay "for or on account of services as a commissioned officer" within the meaning of the act so as to be regarded as limited to $3,000 dual compensation? The Comptroller General held that he fell within this category, and was so restricted. He further held that such person may not waive his retired pay based on officer status and elect to receive retired pay based on enlisted status so as to render himself exempt from the limitation on the combined rate of civilian compensation and retired pay.
The anomaly was complete!
The temporary officer, that person in the Regular Navy or Regular Marine Corps who holds permanent enlisted status but is appointed to commissioned rank under revocable commission, holds varying status in the eyes of the statutory provisions governing retirement, status on the retired list, dual federal office, and dual federal compensation, according to the decisions in these circumstances rendered by the Comptroller General of the United States.
The temporary officer is held to be an enlisted man, or to be performing enlisted service in the eyes of the following:
(a) Statutes of general application governing the retirement of officers of the Regular Navy.54
(b) The statute prohibiting dual federal office.55
(c) The statute providing for the involuntary retirement of officers designated by a board convened for this purpose in the post-World War II period.56
(d) The statute providing for the voluntary retirement of officers of the Regular Navy and Naval Reserve who complete 20 years active duty, 10 of which was commissioned service.57
(e) The act providing for promotion to the next higher grade on the retired list, or any officer specially commended by the Secretary for action in combat.
(e) The appropriation limitation on the pay of officers retired voluntarily during the fiscal years 1953 and 1954.58
The temporary officer is held to be an officer, or to be performing officer service in the eyes of the following:
Promotion on the retired list to the highest grade of temporary promotion in which an officer served under the Officer Personnel Act of 1947, as amended.59
Promotion on the retired list to the highest grade in which an officer served under the temporary promotion act, Act of July 24, 1941.60
The act prohibiting dual compensation in excess of specified amount by persons drawing retired pay as a result of officer service.61
The act providing for promotion to the next higher grade on the retired list, of any officer specially commended by the Secretary for action in combat.62
The decisions above which adversely affect the temporary officers are believed to be contrary to the intent of Congress, and it is submitted that the Comptroller General could have found, as the Judge Advocate General of the Navy found, that the intent was to protect the status of temporary officers with regard to any benefit which they would have incurred as enlisted men had they not accepted such temporary appointments, but not to deny them any benefit that they would normally incur as officers on the ground that they had not vacated their enlisted status.
Aside from the above, the effect of these decisions on the status in general of officers of the United States holding temporary appointment is considered to be negligible. This rests in the fact that nowhere in the decisions is there any indication that temporary officers did not hold "office" under the United States, the sole question was that of which office they held. In some instances, it was held that it was their enlisted office. In others, it was held that it was their officer office. In all cases they held "office," enlisted, officer, active list, retired list, in one capacity or another.
* * * * *
1. Temporary officers are enlisted personnel of the Regular Navy or Regular Marine Corps appointed to commissioned rank under revocable commissions. On September 30, 1953, there were a total of 7,393 in the Navy on active duty in this status, of whom 9 were commanders, 800 lieutenant commanders, 2,918 lieutenants, 148 lieutenant (junior grade), and 3,518 were commissioned warrant officers, all of whom hold permanent status in the eyes of the law as enlisted men. On September 30, 1953, there were a total of 2,546 Marine Corps temporary officers on active duty, of whom 1 was a Lieutenant Colonel, 37 majors, 236 captains, 864 first lieutenants, 1036 second lieutenants, and 382 commissioned warrant officers. The temporary officers comprise 10% of the regular officer strength in the Navy, and 24% in the Marine Corps. See Military Personnel Statistics, Navy and Marine Corps, NAVPERS 15658, 30 September 1953, published by the Bureau of Naval Personnel, Department of the Navy.
2. At the conclusion of World War II, the officer corps of the Navy had expanded to thirty-six times its pre-war size. Ibid.
3. The pre-war Naval Reserve constituted an officer of the line strength about equal to that of the Regular Navy line strength, which varied between six and seven thousand. At the peak of the war, there were 250,000 line officers on active duty. Ibid.
4. See footnote 1.
5. The Act of May 22, 1917, 40 Stat. 84.
6. Ibid, at 86.
7. The Act of July 24, 1941, 55 Stat. 603.
8. Hearings before the Committee on Naval Affairs on H.R. 4473, 77th Cong., 1st Sess. 1167 (1941).
9. The Bill became the Act of July 24, 1941, footnote 7.
10. Report of the Board Convened to study the Post-War Structure of the Navy Personnel, RADM. Francis Lowe senior member. Library of the Navy.
11. Officer Personnel Act of 1947, 61 Stat. 795.
12. See footnote 1.
13. JAG ltr to Chief NavPers, JAG: II: GSC: eab, dtd. 14 May 1948.
14. Sec. 1448, 1451, 1452, and 1453 R.S. (1875) as amended: 34 USC 411, 415, 416, 417.
15. Sec. 1443 R.S. (1875), as amended by the Act of June 17, 1948, 62 Stat. 447, 34 U.S.C.A. Sec. 381 (Supp. 1952).
16. The Act of May 13, 1908, 35 Stat. 128, as amended by the Act of June 17, 1948, 62 Stat. 477, 34 U.S.C.A. Sec. 383 (Supp. 1952).
17. Section 6 of the Act of February 21, 1946, 60 Stat. 27, 34 U.S.C.A. Sec. 410 (b) (Suppl. 1952).
18. Section 9 of the Act of February 21, 1946, 60 Stat. 27, 34 U.S.C.A. Sec. 410 (d) (Supp. 1952).
19. Sec. 1454, R.S. (1875) as amended by the Act of June 17, 1948, 62 Stat. 477, 34 U.S.C.A. 418 (Supp. 1952).
20. Sec. 412 (a) of the Officer Personnel Act of 1947, 61 Stat. 795, 34 U.S.C.A. Sec. 410 (n) (Supp. 1952).
21. JAG ltr. to Chief NavPers, JAG: II: GSS en of 11 May 1949.
22. Asst. Comp. Gen. Decision B-81385, dtd. 23 March 1949, 28 Comp. Gen. 536.
23. The Act of July 24, 1941, 55 Stat. 603, U.S.C.
24. Act of February 21, 1946, 60 Stat. 26, 27.
25. See note 22. 28 Comp. Gen. 538.
26. See footnote 13.
27. Secretary of the Navy letter to the Comptroller General of the United States, dated November 3, 1948.
28. Comptroller General Decision B 81385, 28 Comp. Gen. 536.
29. Cf. 22 Op. Atty. Gen. 199, 201, and 25 Op. Atty. Gen. 312, 316.
30. Ashton v. United States, 51 C.Cls. 65 citing United States v. Mouat, 124 U.S. 303, and United States v. Hendee, 124 U.S. 309.
31. Hearings before Committee on Naval Affairs on H.R. 4473, 77th Cong., 1st Sess. 1224 (1941).
32. Comptroller General Decision B-87642 of 21 October 1949, 29 Comp.Gen. 196.
33. (a) Sec. 8(a) of the Act of July 24, 1941, 55 Stat. 604.
33. (b) The Officer Personnel Act of 1947, the Act of Aug. 7, 1947, c. 512, Title III, sec. 316 (j), 61 Stat. 868, 34 U.S.C.A. sec. 410m (Supp. 52).
34. Ibid. at 829.
35. Hearings before Committee on Armed Services, Subcommittee No 1, Personnel, on H.R. 2536 (forerunner of H.R. 3830), 80th Cong., 1st Sess. 2667 et. seq.
36. See Coud v. United States, 43 C. Cls. 69, and 25 Comp.Gen. 626.
37. See note 32, 29 Comp.Gen. 198.
38. Act of May 22, 1917, 40 Stat. 84.
39. Department of Defense Appropriation Act of 1952, The Act of October 18, 1951, 65 Stat. 424.
41. The Act of Feb. 21, 1946, 60 Stat. 27, 34 U.S.C.A. 410b (Supp. 1952).
42. Comp. Gen. Decision B-109511 of July 22, 1952, unpublished.
43. 55 Stat. 603, 34 U.S.C. 350 et. seq.
44. Section 302 of the Officer Personnel Act of 1947, Act of Aug. 7, 1947, c. 512, Title III, sec 302, 61 Stat. 829, 34 U.S.C.A. 3c, (Supp. 52).
45. Under Secretary of the Navy letter to the Comptroller General of the United States, dated 20 May 1952, Sec. Nav. Mail Room, Dept. of the Navy.
46. Comp. Gen. Decision B-109511 of July 22, 1952, unpublished.
47. The Act of July 24, 1941, supra, eventually entitled temporary officers appointed under its authority to eventual rank on the retired list in the highest grade held prior to the legal termination of the war or emergency. The Officer Personnel Act of 1947, supra, entitled officers whose appointment to commissioned grade in temporary status was affirmed or made under the authority of that Act, to be placed in the highest temporary grade held under the Act when retired.
48. The Act of July 31, 1894, 28 Stat. 205, as amended by the Act of May 31, 1924, 43 Stat. 245, and subsequent acts, 5 U.S.C. 62.
49. Comp. Gen. Decision B-61122 of 28 Oct. 1946, 26 Comp.Gen. 271 et. seq.
50. Ibid. at 275.
51. Wood v. United States, 15 C.Cls. 151, 160, affirmed, 107 U.S. 414.
52. Comp. Gen. Decision of 28 Oct. 1946, B-61122, 26 Comp. Gen. 276 et. seq.
53. Act of June 30, 1932, 47 Stat. 406 as amended by section 3 of the Act of July 15, 1940, 54 Stat. 761, 5 U.S.C. 59z.
54. See footnotes 15, 16, 19.
55. See footnote 48.
56. See footnote 24.
57. See footnote 17.
58. See footnote 40.
59. See footnote 33b.
60. See footnote 33a.
61. [Missing from Library's copy.]
62. [Missing from Library's copy.]
Source: "Rank" ZV file, Navy Department Library.