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decided that his temporary appointment as a lieutenant in the Navy did not expire until December 31, 1921. On the basis of this letter the claimant filed the claim for the difference in pay of lieutenant and lieutenant (junior grade) for the period from October 30 to December 31, 1921.
The claim was disallowed for the reason that claimant's temporary appointment as lieutenant was terminated on the date of acceptance of his permanent appointment, and a charge was raised by the settlement of $317.73 on account of overpayments of the difference be tween the pay of lieutenant and a lieutenant (junior grade) made from September 20, 1920, to October 29, 1921.
Section 7 of the act of May 22, 1917, 40 Stat., 86, provides: That the permanent and probationary commissions, appointments and warrants of officers shall not be vacated by reason of their teniporary advancement or appointment, nor shall said officers be prejudiced in their relative lineal rank in regard to promotion in accordance with the Act of August twenty-ninth, nine teen hundred and sixteen
* That upon the termination of temporary appointments in a higher grade or rank as authorized by this Act the officers so advanced
shall revert to the grade, rank, or rating from which temporarily advanced, unless such officers or enlisted men in the meantime, in accordance with law, become entitled to promotion to a bigher grade or rank in the permanent Navy or Marine Corps, in which case they shall revert to said higher grade or rank and shall, after passing the prescribed examinations, be commissioned accordingly.
Section 8 of the same act provides: That all temporary appointments or advancements authorized by this Act shall continue in force only until otherwise directed by the President or until Congress shall amend or repeal the authorization for the increases herein provided and not later than six months after the termination of the present war.
The time for the termination of all temporary appointments was extended by section 2 of the act of June 4, 1920, 41 Stat., 834, as follows:
That, until December 31, 1921, temporary appointments now existing may be continued in force in any grade or rank, not to exceed the number allowed in any grade or rank based upon the total permanent authorized commissioned strength of the line or of any staff corps;
The ad interim appointment of claimant to the permanent office of lieutenant (junior grade) in the regular Navy, together with his subsequent appointment thereto by nomination, confirmation, and recommissioning occurring after June 4, 1920, and prior to December 31, 1921, are shown to have been made under section 4 of the act of June 4, 1920, 41 Stat., 835, which provides:
That in addition to the number of transfers and appointments hereinbefore allowed, commissioned warrant officers of more than fifteen years' service since date of warrant or date of first appointment as paymaster's clerk, pharmacist or mate, who have creditably served in the war with the German Government in temporary commissioned ranks or grades in the regular Navy, shall be appointed to a permanent rank or grade for which they may be qualified as established and shown by their records of service during their term of service not above the temporary rank or grade held by them at the time of transfer
Provided further, That no transfers or appointments made in accordance with sections 3 and 4 of this Act shall be to a higher grade or rank than lieutenant in the Navy: And provided further, That officers appointed to the permanent Navy in accordance with the foregoing sections who now hold permanent warrant or permanent commissioned warrant rank in the United States Navy sball, if they thereafter fail professionally on examination for promotion, revert to such permanent warrant or permanent commissioned warrant status
It is contented, however, that notwithstanding such appointments and acceptance thereof, the provisions of the act of May 22, 1917, supra, when considered with those of section 2 of the act of June 4, 1920, supra, operate to permit him, as a temporary officer qualify. ing for a permanent office in the Navy, to continue to serve in his higher temporary office until December 31, 1921.
It clearly appears that the purpose of the act of May 22, 1917, was intended merely to protect officers, warrant officers, etc., of the regular Navy in their permanent offices therein on their appointment to temporary ones, and to prevent them from being deprived by the acceptance of a temporary office of any right to permanent promotion which they then possessed. The act of 1920, unlike that of 1917, contains no saving clause. See 1 Comp. Gen., 294.
The subsequent legislation in section 4 of the act of June 4, 1920, expressly authorized certain permanent commissioned warrant of ficers, who had served in the war in temporary offices of the regular Navy, including claimant, to be appointed to permanent offices for which qualified not above that of lieutenant, and it was under this express avthorization, and not by virtue of any reversion from a temporary to a “higher grade" under the act of 1917 that claimanta permanent chief warrant officer and a temporary lieutenant-became a permanent lieutenant, junior grade, under his ad interim commission by the President of August 30, 1920, accepted September 20, 1920, followed by his subsequent nomination, confirmation, and commissioning to said office. This appointment of this temporary officer to a permanent office by virtue of, and pursuant to, this later legislation of 1920 in itself operated as a termination of his temporary office of lieutenant independently and apart from the provisions for the termination of such temporary office in the act of 1917 as amended by section 2 of the act of June 4, 1920.
The authorization in section 2 for the continuance of temporary appointments, within the limitations therein stated, “until December 31, 1921," merely substituted as to the appointments to which it applied “ until December 31, 1921,” for the former provision for their termination “not later than six months after the termination of the present war," leaving in effect as theretofore the authorizations for their termination otherwise under the original provision, which read
shall continue in effect until otherwise directed by the President or until Congress shall amend or repeal the authorization for the increases herein provided
There is no authority for the holding by claimant at the same time of three offices, that by reversion or otherwise of a chief warrant office, temporary lieutenant, and permanent lieutenant (junior grade).
It is concluded that his temporary office of lieutenant terminated on the date of the acceptance of his permanent office of lieutenant (junior grade), and that he is not entitled to be paid as a lieutenant from and after September 19, 1920.
Upon review no difference is found and the settlement is sustained.
CONTRACT SURGEON SERVICECOUNTING SERVICE AS CIVILIAN
VETERINARIAN AS, FOR LONGEVITY-ACT OF JUNE 10, 1922.
Service as a civilian veterinarian with the Quartermaster Corps of the Army
was not service as a “contract surgeon serving full time," and may not be counted for longevity pay purposes under the act of June 10, 1922, 42
Stat., 626. Comptroller General McCarl to the Secretary of War, November 29, 1922.
I have your letter of November 10, 1922, requesting decision whether Lieut. Col. Robert Vans Agnew, Veterinary Corps, United States Army, is entitled to count his service as a civilian veterinarian with the Quartermaster Corps of the Army 1900–1902, for purpose of longevity increase of pay under the provisions of paragraphs 10 and 11 of section 1, act of June 10, 1922, 42 Stat., 626 and 627. These provisions, so far as here material, are:
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.
For officers in the service on June 30, 1922, there shall be included in the computation all service which is now counted in computing longevity pay, and service as a contract surgeon serving full time; and also 75 per centum of all other periods of time during which they have held commissions as officers of the Organized Militia between January 21, 1903, and July 1, 1916. or of the National Guard, the Naval Militia, or the National Naval Volun. teers since June 3, 1916, and service as a contract surgeon serving full time, shall be included in the computation.
The service of Col. Vans Agnew which is in question is reported to have been as follows:
October 10, 1900: Hired by Capt. S. W. Kimball, A. Q. M, Presidio of San Francisco, as veterinars surgeon at $100 per month.
October 18, 1900: Transferred to Lieut. P. L. Smith, Q. M., O. S. A. T. Connemaugh.
November 29, 1900: Transferred to Major John T. Knight, Q. M., Manila, P. I. December 3, 1900: Transferred to Capt. L. V. Williams, A. Q. M., DaguJune 1, 1901: Transferred to Fred S. Wild, A. C. Q. M., Dagupan, P. I. February 14, 1902: Dropped by Capt. W. S. Wood, C. Q. M., Dagupan, P. I. As to his subsequent service, it is stated : It further appears that Lieut. Colonel Vans Agnew was appointed a veterinarian in the Army April 15, 1902, and accepted April 24, 1902. He remained in the service as a veterinarian until appointed a commissioned officer under section 16, act of June 3, 1916.
pan. P. I.
The Army Register for 1922 shows that he was appointed assistant veterinariao June 3, 1916; veterinarian June 3, 1916; accepted April 6, 1917; major, Veterinary Corps, June 4, 1920; lieut. colonel, Veterinary Corps, December 18, 1920.
Col. Vans Agnew was hired as a veterinary surgeon at $100 per month for service in the Philippine Islands in October, 1900, apparently under the provisions contained in appropriation for “Incidental expenses, Quartermaster Corps, 1901,"contained in the act of May 26, 1900, 31 Stat., 213, as follows:
for the following expenditures required for the several regiments of cavalry, the batteries of light artillery, and such companies of infantry and scouts as may be mounted, the authorized number of officers' horses, and for the trains, to wit: hire or veterinary surgeons, purchase of medicines for horses and mules, picket ropes, blacksmiths' tools and materials, horseshoes and blacksmiths' tools for the cavalry service, and for the shoeing of horses and mules,
A similar provision appears in the appropriation act for the Army for the fiscal year 1902, 31 Stat., 905, and section 20 of the act of February 2, 1901, 31 Stat., 753, provided :
That the grade of veterinarian of the second class in cavalry regiments, United States Army, is hereby abolished, and hereafter the two veterinarians authorized for each cavalry regiment and the one veterinarian authorized for each artillery regiment shall receive the pay and allowances of second lieutenants, mounted. Such number of veterinarians as the Secretary of War may authorize shall be employed to attend animals pertaining to the quartermaster's or other departments not directly connected with the cavalry and artillery regiments, at a compensation not exceeding one hundred dollars per month.
It was held, 27 Comp. Dec., 997, quoting the syllabus:
Service as a veterinarian in the capacity of a civilian employee in the Quarter. master Corps of the Army under appointment from the United States, but not in the regular, provisional, or temporary forces of the Army, may not be counted in computing length of service of Army officers for longevity pay purposes.
The service of Col. Vans Agnew, 1900–1902, was that of a civilian employed in the capacity of a veterinary surgeon for duty with the Quartermaster Corps of the Army, but it is suggested, in view of the provision of the act of June 10, 1922, authorizing the counting for longevity of service as a “contract surgeon serving full time,” and decision of October 11, 1922, to the Secretary of the Navy, case of Lieutenant Commander Cole, Medical Corps, United States Navy, 2 Comp. Gen., 271, that Col. Vans Agnew is entitled to credit for this civilian service.
The term “contract surgeon serving full time” has a definite and well-established meaning in the Army; see paragraph 53, Manual for the Medical Department, 1916; and includes only practitioners of medicine, physicians employed by contract for the medical and surgical care and treatment of the personnel of the Army. It has never been suggested, for example, that civilian veterinarians employed for
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service with the Army were entitled to mileage under the appropriation “ For mileage to commissioned officers and contract surgeons, and if they were not "contract surgeons” for the purpose of mileage, neither were they contract surgeons for the purpose of computing longevity increase of pay under a subsequent appointment as an officer of the Army.
In the decision of October 11, 1922, cited, the question was whether the term “contract surgeon serving full time” had application to any of the services to which the act of June 10, 1922, applied. It was held that credit was authorized for services as a contract surgeon serving full time in the United States Revenue Cutter Service, where the service was that of a physician rendered pursuant to contract specifically authorized by law (the identical situation with respect to contract surgeons in the Army); and that under the terms of section 11 of the act of May 18, 1920, 41 Stat., 604, an officer of the Medical Corps of the Navy in the service June 30, 1922, was entitled on and after that date to count for longevity pay purposes his service as a contract surgeon serving full time in the United States Revenue Cutter Service.
The service of a veterinary surgeon hired as were other civilian employees of the Quartermaster's Department, under authority contained in an appropriation act, was not service as a “contract surgeon serving full time "; such veterinarians were never referred to or considered as contract surgeons, and such service may not be included in computing longevity increase of pay under the act of June 10, 1922, any more than under prior provisions of law.
This is true potwithstanding the fourth paragraph of section 16 of the act of June 3, 1916, 39 Stat., 177, entitled a veterinarian to count his prior “governmental service” as a veterinarian in the War Department (Op. J. A. G., 1912–1917, p. 666) for the purpose of determining his rank in the Veterinary Corps then created; and the second paragraph of section 10 of the act, as amended by section 10 of the act of June 4, 1920, 41 Stat., 767, entitled him to count for purposes of promotion his “ governmental veterinary service rendered prior to June 3, 1916.” Longevity increase of pay is payable for service in a military capacity in the Army; United States v. La Tourrett, 151 U. S., 572, 574; Yomans v. United States, 52 Ct. Cls., 388, and in the absence of a specific provision therefor otherwise (as in the case of contract surgeons) is not payable for other service, even though such other service may under specific provisions of law be counted for other purposes, such as eligibility for appointment, rank, or promotion.
Your question is answered accordingly.