Price Administration performing, or supervising the performance of, the duties and responsibilities imposed by law upon that agency. The description of the duties of the office or position to which he formally was appointed effective May 3, 1943, forwarded with your letter, shows without doubt that he was not a consultant thereafter within the meaning of that term as used in the appropriation acts under consideration on and after the date of the appointment. Also, as you state specifically that "he was assigned duties of Acting Deputy Administrator on or about November 5, 1942, thereby virtually becoming the operating head of the Administrative Management Department” (the duties and responsibilities of which are understood to be substantially those described for the position to which he formally was appointed May 3, 1943), it must be concluded that he was not a "consultant" on and after November 5, 1942, notwithstanding the fact that he continued to serve under his appointment as "consultant" until May 3, 1943.

Accordingly, on the basis of the facts presented, the traveling expense voucher forwarded with your letter covering a period entirely after November 5, 1942, may not be certified for payment. The voucher is returned herewith.

(B-36941)

PAY-ADDITIONAL-AIDES TO COMMODORES

The establishment by the act of April 9, 1943, of the rank of commodore during the present war, is not to be considered as reviving the provisions of the act of March 3, 1899-assimilating the pay of Navy officers to that of Army officers-upon which the right of Navy officers to aides' pay depended prior to the act of May 13, 1908, authorizing additional pay for aides to rear admirals, so as to confer a right to additional pay upon Navy officers serving as aides to commodores.

Assistant Comptroller General Yates to the Secretary of the Navy, January 8, 1944:

Consideration has been given your letter of September 10, 1943, forwarding a letter dated August 13, 1943, from the Disbursing Officer, U. S. Naval Operating Base, Iceland, with enclosure and accompanying indorsements relative to the question as to whether Lieutenant (jg) Cornelius R. Gray, D-V (S), USNR, is entitled to additional compensation as aide's pay under orders assigning him to duty as aide to Commodore Ralph S. Wentworth, USN, Commandant, Naval Operating Base, Iceland. You request a decision on questions presented by the Disbursing Officer, Naval Operating Base, Iceland, as follows:

(1) Is he authorized to credit Aide's pay at the rate of $150 per annum in a case where an officer of the rank of Lieutenant or below assumes personal and confidential duties as Aide to a Flag Officer of the rank of Commodore?

(2) If the answer to (1) is in the affirmative, is the effective date of pay as Aide in the case of Lieutenant (jg) Cornelius R. Gray, D-V (S), USNR, as Aide to Commodore R. S. Wentworth, USN, 10 May 1943 or 22 June 1943?

It appears that Commodore Wentworth holds an appointment in the temporary rank and grade of commodore, established by section 6 of the act of July 24, 1941, 55 Stat. 603, as amended by Public Law 26, 78th Congress, approved April 9, 1943, 57 Stat. 59, as follows:

The rank and grade of commodore are hereby established for the purposes of this Act: Provided, That all officers appointed to the rank of commodore pursuant to the authority of this Act, while serving in such rank, shall be entitled to the pay and allowances provided for an officer of the sixth pay period.

*

Prior to 1908 the right of Navy officers to additional pay while serving as aides was based on the general assimilation provision contained in section 13 of the Naval Personnel Act of March 3, 1899, 30 Stat. 1007, to the effect that after June 30, 1899, commissioned officers of the Navy should "receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army." United States v. Crosley, 196 U. S. 327; United States v. Miller, 208 U. S. 32. By the same act the rank and grade of commodore in the Navy was eliminated, so far as the active list was concerned. Rodgers v. United States, 185 U. S. 83; Gibson v. United States, 194 U. S. 182.

The pay of aides in the Navy was subsequently expressly fixed by a clause in the Navy Pay Act of May 13, 1908, 35 Stat. 128, as follows:

Aids to rear-admirals embraced in the nine lower numbers of that grade shall each receive one hundred and fifty dollars additional per annum, and aids to all other rear-admirals, two hundred dollars additional per annum each. *

The opinion in the case of Knox v. United States, 52 C. Cls. 22, makes it clear that after the passage of the act of May 13, 1908, the right to aide's pay depended on that act and not on the said assimilation provision in the Navy Personnel Act of March 3, 1899, although the conditions under which aide's pay theretofore had been allowed under the assimilation provision in the 1899 act were taken as determinative of the meaning of the word "aids" as used in the 1908 act. In the case of Frucht v. United States, 49 C. Cls. 570, it was pointed out that the act of May 13, 1908, does not authorize aide's pay for an officer when assigned to duty as aide to an officer of a rank below that of rear admiral. In Wood v. United States, 224 U. S. 132, the Supreme Court of the United States held that an aide to an admiral (for a period prior to May 13, 1908) was not entitled to aide's pay. The last paragraph of the Court's opinion in that case is as follows:

The failure by Congress during the many years which have elapsed since the re-creation of the office of Admiral to make any provision concerning the pay of aids to that officer gives rise to the assumption of a legislative construction in accord with the view which we have expressed. The matter is not however left to mere inference resulting from silence, since although Congress in what is known

as the New Navy Pay Act of May 13, 1908, 35 Stat. 127, c. 166, in terms specifically provided for the pay of every officer in the Navy, including the Admiral and embracing extra compensation to aids to Rear Admirals, made no provision whatever for compensation for services which might be rendered by an officer acting as aid to the Admiral. The incongruity, if any, which it is suggested must result from providing for extra compensation for an aid to a Rear Admiral and none for aids to the higher officer, the Admiral, if admitted, would be but the consequence of legislative omission, and would not justify the exertion of judicial power for the purpose of re-creating a provision of law, concerning aids to the General of the Army, which has long since ceased to exist, in order to afford a subject upon which the assimilating provision of the Naval Personnel Act of 1899 might operate.

Under the said provisions of the act of May 13, 1908, additional pay as aide is payable only when the officer is assigned as aide to a rear admiral. Therefore, an officer assigned to duty as an aide to a flag officer of the rank of commodore is not entitled to aide's pay under that act and apparently that act, which "in terms specifically provided for the pay of every officer in the Navy," superseded the 1899 provision and was intended to be exclusive with respect to the payment of aides' pay in the Navy thereafter. Wood v. United States, supra. But even were it otherwise, it would appear that any remaining force in the said assimilation provision in the 1899 act, insofar as it might apply to an aide to a commodore, was vitiated by section 22 of the Joint Service Pay Act of June 10, 1922, 42 Stat. 633, which expressly repealed all laws and parts of laws inconsistent therewith. While section 21 of that act provided that nothing therein should "operate to change in any way existing laws or regulations made in pursuance of law," governing, inter alia, additional pay for aides, there was then no "existing laws or regulations" governing additional pay for aides for commodores, because there was no grade of commodore on the active list at that time. When the said 1922 act was enacted the only existing express provisions for aide's pay for Naval officers were those in the Navy Pay Act of May 13, 1908, authorizing additional pay for aides to rear admirals; and the subsequent establishment of the rank and grade of commodore during the present war by the act of April 9, 1943, supra, may not be viewed as reviving the assimilation provision of the 1899 act in that respect so as to confer a similar right on aides to commodores.

Accordingly, question (1) is answered in the negative and that renders an answer to question (2) unnecessary.

(B-38881)

PAY-MISSING, INTERNED, ETC., ARMY OFFICERS PROMOTED "SUBJECT TO EXAMINATION"

The provision in the act of February 2, 1901, authorizing the promotion of offi cers of the Regular Army "subject to examination," creates only an inchoate right to the pay and allowances of the higher grade pending qualification

on subsequent examination, and, therefore, officers of the Regular Army who receive statutory promotions subject to examination under the said act but who cannot be examined because they are prisoners of war, or reported as missing or missing in action, or interned in a neutral country, are not entitled, prior to such examination, to receive or have credited to their accounts the pay and allowances of the grade to which they are thus promoted. Officers on the promotion list of the Regular Army, serving in their permanent grade, who receive statutory promotions "subject to examination" under the act of February 2, 1901, but who cannot be examined because they are prisoners of war, or reported as missing or missing in action, or interned in a neutral country, are not entitled, by virtue of section 2 of the act of March 7, 1942, respecting the continuance of pay and allowances of persons captured, interned, etc., or the act of October 14, 1942, with respect to the effective date of promotions, to receive or have credited to their accounts, prior to such examination, the pay and allowances of the grade to which thus promoted.

Assistant Comptroller General Yates to the Secretary of War, January 10, 1944:

There has been considered your letter of December 9, 1943, requesting decision whether officers on the promotion list of the Regular Army, serving in their permanent grade, who receive statutory promotions subject to examination but who cannot be examined because they are prisoners of war, or reported as missing or missing in action, or interned in a neutral country, are entitled, prior to examination, to receive or have credited to their accounts the pay and allowances of the grade to which they are thus promoted.

The examinations referred to are those required by section 3 of the act of October 1, 1890, 26 Stat. 562, as amended by section 24c of the National Defense Act of 1916, added thereto by section 24 of the act of June 4, 1920, 41 Stat. 771, 774 which provides:

Existing laws providing for the examination of officers for promotion are hereby repealed, except those relating to physical examination, which shall continue to be required for promotion to all grades below that of brigadier general, and except also those governing the examination of officers of the Medical, Dental, and Veterinary Corps. Officers of said three Corps shall be examined in accordance with laws governing examination of officers of the Medical Corps, second lieutenants of the Veterinary Corps being subject to the same provisions as first lieutenants.

By the act of November 29, 1940, 54 Stat. 1219, the Secretary of War was authorized, in his discretion, to dispense with until May 15, 1945, any part of the examination for promotion in the Regular Army of officers of the Medical, Dental and Veterinary Corps, except those relating to physical examination.

Section 1 of the act of July 31, 1935, 49 Stat. 505, providing for promotions under certain circumstances in the Regular Army and the Philippine Scouts, contains, inter alia, the following requirement: All promotions provided for in this Act shall be subject to the examination prescribed by existing law.

Section 3 of the said act of July 31, 1935, as amended, by section 2 of the act of June 13, 1940, 54 Stat. 379, provides a promotion system for officers of the Regular Army, the right to promotion thereunder

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being based generally on length of service without regard to vacancies in the higher rank or grade.

Section 32 of the Act of February 2, 1901, 31 Stat. 756, provides:

That when the exigencies of the service of any officer who would be entitled to promotion upon examination require him to remain absent from any place where an examining board could be convened, the President is hereby authorized to promote such officer, subject to examination, and the examination shall take place as soon thereafter as practicable. If upon examination the officer be found disqualified for promotion, he shall, upon the approval of the proceedings by the Secretary of War, be treated in the same manner as if he had been examined prior to promotion.

In considering the application of that section it was held in a decision of the Comptroller of the Treasury, 17 Comp. Dec. 264, quoting the syllabus:

The promotion by the President of an officer of the army subject to examination under section 32 of the act of February 2, 1901 (31 Stat., 756), is on condition that the officer be found qualified for promotion on examination required by law. If on examination he be found disqualified for promotion, he is not entitled to the pay of the higher grade for any period. He should be treated as to promotion and pay in the same manner as if he had been examined prior to promotion and had failed in his examination.

That decision has been uniformly followed (see 5 Comp. Gen. 922 and paragraph 4, AR 35-1660) and would appear to be controlling of the question here involved. However, you refer to section 2 of the act of March 7, 1942, 56 Stat. 144, and the act of October 14, 1942, 56 Stat. 787, which provide as follows (the italicized portions being emphasized in your letter):

Section 2 of the act of March 7, 1942

Any person who is in active service and is officially reported as missing, missing in action, interned in a neutral country, or captured by an enemy shall, while so absent, be entitled to receive or to have credited to his account the same pay and allowances to which such person was entitled at the time of the beginning of the absence or may become entitled to thereafter [Italics supplied.]

Act of October 14, 1942

That every officer of the Army of the United States, or any component thereof, promoted to a higher grade at any time after December 7, 1941, shall be deemed for all purposes to have accepted his promotion to higher grade upon the date of the order announcing it unless he shall expressly decline such promotion, and shall receive the pay and allowances of the higher grade from such date unless he is entitled under some other provision of law to receive the pay and allowances of the higher grade from an earlier date. No such officer who shall have subscribed to the oath of office required by section 1757, Revised Statutes, shall be required to renew such oath or to take a new oath upon his promotion to a higher grade, if his service after the taking of such an oath shall have been continuous. [Italics supplied.]

and you state:

It is the view of the War Department that the clear intent of the above wartime enactments is to safeguard the interests and entitlements of persons missing in action or taken prisoners including entitlement to receive or to have credited to their accounts the pay and allowances such persons become entitled to after being reported as missing, missing in action, interned in a neutral country or captured by an enemy and that such persons shall receive the pay and allow