B-165276, DECEMBER 11, 1968, 48 COMP. GEN. 390

B-165276, DECEMBER 11, 1968, 48 COMP. GEN. 390

COAST GUARD - COMMISSIONED PERSONNEL - SERVICE CREDITS - TEMPORARY SERVICE IN A HIGHER GRADE WHEN A COAST GUARD OFFICER WHO IS ADVANCED IN GRADE UNDER THE TEMPORARY PROMOTION SYSTEM AUTHORIZED IN 14 U.S.C. 275 REVERTS TO HIS PERMANENT PROMOTION SYSTEM GRADE, THE TIME IN THE TEMPORARY SERVICE GRADE, ABSENT SPECIFIC LEGISLATION, MAY NOT BE USED AS TIME IN A GRADE HIGHER THAN THE PERMANENT GRADE FROM WHICH ORIGINALLY APPOINTED FOR TEMPORARY SERVICE IN VIEW OF THE FACT THAT WHEN READ TOGETHER, SECTIONS 275 (H) WHICH PRESCRIBES THAT UPON THE TERMINATION OR EXPIRATION OF A TEMPORARY APPOINTMENT "THE OFFICER SHALL REVERT TO HIS FORMER GRADE," AND 257 (B) WHICH PROVIDES THAT SERVICE IN A TEMPORARY GRADE IS SERVICE "ONLY IN A GRADE THAT THE OFFICER CONCERNED WOULD HAVE HELD HAD HE NOT BEEN SO APPOINTED," PERMIT ONLY THE COUNTING OF THE TEMPORARY SERVICE AS TIME IN THE OFFICER'S PERMANENT GRADE HELD IMMEDIATELY PRECEDING THE TEMPORARY SERVICE APPOINTMENT.

TO THE SECRETARY OF TRANSPORTATION, DECEMBER 11, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 16, 1968, FROM THE COMMANDANT, UNITED STATES COAST GUARD, SUGGESTING CERTAIN CHANGES IN THE OFFICER PROMOTION POLICY OF THE COAST GUARD IN THE LIGHT OF THE STATUTORY AUTHORITY THERE CITED AND REQUESTING OUR VIEWS ON THE PROPOSED ACTION.

IT IS STATED THAT THE COAST GUARD DESIRES TO PROMOTE ENSIGNS TO LIEUTENANTS (JUNIOR GRADE) AT THE COMPLETION OF 12 MONTHS' ACTIVE SERVICE AND TO PROMOTE LIEUTENANTS (JUNIOR GRADE) TO LIEUTENANTS AT THE COMPLETION OF 3 YEARS' ACTIVE COMMISSIONED SERVICE. THIS IS SAID TO BE IN LINE WITH CURRENT PRACTICE IN THE NAVY. THE VIEW IS EXPRESSED THAT A POSSIBLE BASIS TO ACCOMPLISH THIS RESULT IS THE TEMPORARY SERVICE PROMOTION AUTHORITY CONTAINED IN 14 U.S.C. 275, WHICH IT IS SAID IS SIMILAR TO 10 U.S.C. 5787 PERTAINING TO THE NAVY. IT IS STATED THAT THE COAST GUARD IS SEEKING A LEGAL MEANS WHICH WILL CAUSE THE LEAST POSSIBLE DISRUPTION TO THE COAST GUARD'S EXISTING PERMANENT PROMOTION SYSTEM, PARTICULARLY AS IT RELATES TO GRADES ABOVE LIEUTENANT.

THE PRIMARY QUESTION WHICH CONCERNS THE COAST GUARD, AS STATED IN THE COMMANDANT'S LETTER, IS AS FOLLOWS:

WHEN REVERTING FROM A TEMPORARY PROMOTION SYSTEM TO A PERMANENT PROMOTION SYSTEM AS CONTEMPLATED IN 14 U.S.C. 275 (I), DOES THE SECOND SENTENCE OF SUBSECTION 14 UCS 257 (B) PERMIT THE USE OF TIME IN TEMPORARY SERVICE GRADE AS TIME IN A GRADE HIGHER THAN THE PERMANENT GRADE FROM WHICH ORIGINALLY APPOINTED TO A HIGHER GRADE FOR TEMPORARY SERVICE?

THE COMMANDANT EXPRESSES THE VIEW THAT THE AUTHORITY CONTAINED IN 14 U.S.C. 275 (A) AND (B) COULD BE USED TO EFFECTUATE A TEMPORARY SERVICE PROMOTION SYSTEM BUT THAT A TEMPORARY SYSTEM UNDER SECTION 275, UNLIKE THE SIMILAR 10 U.S.C. 5787, PERTAINING TO THE NAVY, MUST SUPPLANT THE STATUTORY PERMANENT SYSTEM. IT IS FURTHER STATED THAT IT IS CONCEIVABLE THAT A TEMPORARY PROMOTION SYSTEM COULD CONTINUE FOR SOME TIME, AND THAT OFFICERS COULD ADVANCE UPWARD THROUGH SEVERAL SUCCESSIVE TEMPORARY GRADES. IN THE LIGHT OF THE AUTHORITY IN 14 U.S.C. 275 (I), IT IS SUGGESTED THAT WHEN REVERTING FROM A TEMPORARY GRADE TO A PERMANENT GRADE, VACANCIES AT THAT TIME COULD BE FILLED BY PERMANENT APPOINTMENTS TO ALL GRADES REGARDLESS OF THE LOWER PERMANENT GRADES OF THE OFFICERS WHICH ORIGINALLY EXISTED WHEN THE TEMPORARY SYSTEM BEGAN.

IN ORDER FOR NORMAL PERMANENT PROMOTION FLOW TO CONTINUE FROM THE TIME OF REVERSION TO A PERMANENT SYSTEM, HOWEVER, IT IS STATED THAT IT WOULD BE NECESSARY FOR OFFICERS APPOINTED TO THE NEW PERMANENT GRADES TO HAVE SOME VARYING TIME IN GRADE ELIGIBILITIES WITHIN THE MEANING OF 14 U.S.C. 257 (A). OTHERWISE, IT IS POINTED OUT THAT IF THE TEMPORARY SYSTEM HAD EXISTED LONG ENOUGH FOR ALL OFFICERS TO HAVE ADVANCED THROUGH SEVERAL TEMPORARY SERVICE GRADES AND AT REVERSION TO A PERMANENT SYSTEM MANY HAD RECEIVED PERMANENT APPOINTMENTS TO GRADES TWO STEPS OR MORE BEYOND THE PERMANENT GRADES THAT THEY HAD ORIGINALLY HELD AT INCEPTION OF THE TEMPORARY SYSTEM, NO SUBSEQUENT PROMOTIONS COULD FOLLOW FOR SEVERAL YEARS WHILE THE ELIGIBILITY REQUIREMENTS OF 14 U.S.C. 257 (A) WERE SATISFIED. THE VIEW IS EXPRESSED THAT THE LAW DOES NOT REQUIRE THIS UNREASONABLE RESULT.

IT IS STATED THAT THE LANGUAGE IN THE SECOND SENTENCE OF 14 U.S.C. 257 (B) "* * * IN THE GRADE THAT THE OFFICER CONCERNED WOULD HAVE HELD * * *," SUGGESTS MORE THAN THE COUNTING OF TEMPORARY SERVICE TIME IN A HIGHER GRADE MERELY AS TIME IN THE PERMANENT GRADE FROM WHICH APPOINTED. IT IS THE COAST GUARD'S VIEW THAT IF IT COULD ESTABLISH WITH SOME CERTAINTY THAT AN OFFICER WOULD HAVE ADVANCED UNDER THE PERMANENT PROMOTION SYSTEM ON A PARTICULAR DATE, THEN, FROM THAT DATE, TIME IN THE SAME OR HIGHER TEMPORARY SERVICE GRADE WOULD BE COUNTED AS TIME IN THE GRADE TO WHICH THE OFFICER WOULD HAVE ADVANCED HAD THE PERMANENT SYSTEM BEEN IN EFFECT. THE COAST GUARD PROPOSES TO CONTINUE ITS CURRENT PRACTICE AND PROCEDURES WITH RESPECT TO SELECTING OFFICERS FOR PROMOTION AND RELATED MATTERS, BUT INSTEAD OF PERMANENT PROMOTION APPOINTMENTS BEING MADE, PERSONNEL RECORD ENTRIES WILL BE MADE TO SHOW THE DATES UPON WHICH OFFICERS WOULD HAVE BEEN APPOINTED TO A HIGHER GRADE.

A SECOND QUESTION IS ASKED--- CONCERNING OFFICERS IN GRADES OF ENSIGNS AND LIEUTENANTS (JUNIOR GRADE/--- WHETHER THE SUSPENSION AUTHORITY IN 14 U.S.C. 275 PERMITS SUSPENSION OF APPLICABLE SECTIONS, SUBSECTIONS, OR PROVISIONS OF CHAPTER 11 OF TITLE 14,"ONLY AS THEY PERTAIN TO CERTAIN RANKS OR GRADES SO THAT A TEMPORARY PROMOTION SYSTEM COULD BE UTILIZED FOR THOSE GRADES WITHOUT AFFECTING THE LEGAL APPLICABILITY OF THOSE SECTIONS TO OTHER GRADES?

SECTION 257 OF TITLE 14, U.S. CODE, AS ADDED BY PUBLIC LAW 88-130 APPROVED SEPTEMBER 24, 1963, 77 STAT. 179, PRESCRIBES THE ELIGIBILITY REQUIREMENTS OF COAST GUARD OFFICERS FOR CONSIDERATION FOR PROMOTION AND PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) AN OFFICER ON THE ACTIVE DUTY PROMOTION LIST BECOMES ELIGIBLE FOR CONSIDERATION FOR PROMOTION TO THE NEXT HIGHER GRADE AT THE BEGINNING OF THE FISCAL YEAR IN WHICH HE COMPLETES THE FOLLOWING AMOUNT OF SERVICE COMPUTED FROM HIS DATE OF RANK IN THE GRADE IN WHICH HE IS SERVING:

(B) FOR THE PURPOSE OF THIS SECTION, SERVICE IN A GRADE INCLUDES ALL QUALIFYING SERVICE IN THAT GRADE OR A HIGHER GRADE, UNDER EITHER A TEMPORARY OR PERMANENT APPOINTMENT. HOWEVER, SERVICE IN A GRADE UNDER A TEMPORARY SERVICE APPOINTMENT UNDER SECTION 275 OF THIS TITLE IS CONSIDERED AS SERVICE ONLY IN THE GRADE THAT THE OFFICER CONCERNED WOULD HAVE HELD HAD HE NOT BEEN SO APPOINTED.

THE AUTHORITY FOR PROMOTING COAST GUARD OFFICERS UNDER THE REGULAR PROMOTION SYSTEM AND THE PROCEDURE TO BE FOLLOWED IS CONTAINED IN SECTION 271 OF TITLE 14. IN TIME OF WAR OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, TEMPORARY SERVICE PROMOTIONS ARE AUTHORIZED AS PROVIDED IN SECTION 275 IN PERTINENT PART, AS FOLLOWS:

(A) IN TIME OF WAR, OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OR CONGRESS, THE PRESIDENT MAY SUSPEND ANY SECTION OF THIS CHAPTER RELATING TO THE SELECTION, PROMOTION, OR INVOLUNTARY SEPARATION OF OFFICERS. SUCH A SUSPENSION MAY NOT CONTINUE BEYOND SIX MONTHS AFTER THE TERMINATION OF THE WAR OR NATIONAL EMERGENCY.

(B) WHEN THE PRECEDING SECTIONS OF THIS CHAPTER RELATING TO SELECTION AND PROMOTION OF OFFICERS ARE SUSPENDED IN ACCORDANCE WITH SUBSECTION (A), AND THE NEEDS OF THE SERVICE REQUIRE, THE PRESIDENT MAY, UNDER REGULATIONS PRESCRIBED BY HIM, PROMOTE TO A HIGHER GRADE ANY OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF ENSIGN OR ABOVE IN THE COAST GUARD.

(H) AN APPOINTMENT UNDER THIS SECTION DOES NOT TERMINATE ANY APPOINTMENTS HELD BY AN OFFICER CONCERNED UNDER ANY OTHER PROVISIONS OF THIS TITLE. THE PRESIDENT MAY TERMINATE TEMPORARY APPOINTMENTS MADE UNDER THIS SECTION AT ANY TIME. AN APPOINTMENT UNDER THIS SECTION IS EFFECTIVE FOR SUCH PERIOD AS THE PRESIDENT DETERMINES. HOWEVER, AN APPOINTMENT MAY NOT BE EFFECTIVE LATER THAN SIX MONTHS AFTER THE END OF THE WAR OR NATIONAL EMERGENCY. WHEN HIS TEMPORARY APPOINTMENT UNDER THIS SECTION IS TERMINATED OR EXPIRES, THE OFFICER SHALL REVERT TO HIS FORMER GRADE.

(I) NOT LATER THAN SIX MONTHS AFTER THE END OF THE WAR OR NATIONAL EMERGENCY THE PRESIDENT SHALL, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, REESTABLISH THE ACTIVE DUTY PROMOTION LIST WITH ADJUSTMENTS AND ADDITIONS APPROPRIATE TO THE CONDITIONS OF ORIGINAL APPOINTMENT AND WARTIME SERVICE OF ALL OFFICERS TO BE INCLUDED THEREON. THE PRESIDENT MAY, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, APPOINT OFFICERS ON THE REESTABLISHED ACTIVE DUTY PROMOTION LIST TO FILL VACANCIES IN THE AUTHORIZED ACTIVE DUTY STRENGTH OF EACH GRADE. SUCH APPOINTMENTS SHALL BE CONSIDERED TO HAVE BEEN MADE UNDER SECTION 271 OF THIS TITLE.

IT IS NOTED THAT THE TEMPORARY SERVICE PROMOTION AUTHORITY IN SECTION 275, WHICH THE COAST GUARD PROPOSES TO USE, CAN BECOME OPERATIVE ONLY PURSUANT TO PRESIDENTIAL ACTION. IT IS INDICATED IN THE COMMANDANT'S LETTER THAT NO SUCH ACTION HAS BEEN TAKEN TO IMPLEMENT THIS PROVISION BUT THAT APPROPRIATE ACTION WILL BE TAKEN TO CARRY OUT THAT SECTION SHOULD IT BE DETERMINED APPROPRIATE.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 88-130, THE COAST GUARD HAD AUTHORITY TO MAKE TEMPORARY PROMOTIONS IN TIME OF WAR OR NATIONAL EMERGENCY AS DETERMINED BY THE PRESIDENT. SEE 14 U.S.C. 436 (1958 ED.). THIS AUTHORITY WAS DERIVED FROM SECTION 11 (B) OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, 34 U.S.C. 350J (B) (1952 ED.), WHICH GAVE THE COAST GUARD THE SAME AUTHORITY GRANTED THE NAVY AND MARINE CORPS WITH RESPECT TO MAKING TEMPORARY APPOINTMENTS AND PROMOTIONS OF NAVY AND MARINE CORPS OFFICERS. SECTION 436 WAS REPEALED BY SECTION 4 OF PUBLIC LAW 88- 130. THE TEMPORARY PROMOTION AUTHORITY OF THE NAVY IS CURRENTLY CONTAINED IN 10 U.S.C. 5787.

SUBSECTION (H) OF SECTION 275, TITLE 14, U.S. CODE, EXPRESSLY PROVIDES THAT WHEN A TEMPORARY APPOINTMENT MADE UNDER THAT SECTION TERMINATES OR EXPIRES,"THE OFFICER SHALL REVERT TO HIS FORMER GRADE.' THE TIME IN GRADE ELIGIBILITY PROVISIONS OF THE PERMANENT PROMOTION SYSTEM PRESCRIBED IN SECTION 257 PROVIDE IN SUBSECTION (B) THAT SERVICE IN A GRADE UNDER A TEMPORARY SERVICE APPOINTMENT UNDER SECTION 275 IS CONSIDERED AS SERVICE "ONLY IN THE GRADE THAT THE OFFICER CONCERNED WOULD HAVE HELD HAD HE NOT BEEN SO APPOINTED.' IT WOULD SEEM THAT THOSE TWO SECTIONS (257 AND 275) WHEN READ TOGETHER, DO NOTHING MORE THAN PERMIT THE COUNTING OF TEMPORARY SERVICE IN THE TEMPORARY HIGHER GRADE AS TIME IN THE OFFICER'S PERMANENT GRADE THAT HE HELD IMMEDIATELY PRECEDING HIS TEMPORARY SERVICE APPOINTMENT.

THE LANGUAGE IN THE SECOND SENTENCE OF SUBSECTION (B) OF SECTION 257 AND SUBSECTION (H) OF SECTION 275 IS SUBSTANTIALLY THE SAME AS THAT PERTAINING TO THE NAVY AND MARINE CORPS WARTIME TEMPORARY SERVICE PROMOTIONS AUTHORITY IN SUBSECTION (J) OF SECTION 5787, TITLE 10, WHICH PROVIDES THAT WHEN A TEMPORARY APPOINTMENT MADE UNDER THAT SECTION TERMINATES OR EXPIRES, THE MEMBER CONCERNED "SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED ANY SUCH APPOINTMENT.'

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-130--- OF WHICH THE ABOVE SECTIONS 257, 271 AND 275 ARE A PART--- DISCLOSES THAT THE PURPOSE OF THE BILL (H.R. 5623) WAS, AMONG OTHER THINGS, TO ESTABLISH A "PERMANENT PROMOTION SYSTEM" BASED ON MERIT RATHER THAN SOLELY ON SENIORITY AND, IN ADDITION, TO PROVIDE AUTHORITY FOR TEMPORARY PROMOTIONS IN TIME OF WAR "WHEN THE REGULAR PROMOTION SYSTEM IS SUSPENDED.' IT IS ALSO DISCLOSED THAT THE DEFENSE DEPARTMENT'S REPORT ON THE BILL NOTES THAT THE PROPOSED LEGISLATION WOULD BE SIMILAR TO THE PRESENT NAVY AND MARINE CORPS OFFICER PERSONNEL SYSTEMS. SEE PAGES 3 AND 12 OF H.REPT. NO. 583 DATED JULY 25, 1963, AND PAGE 3 OF S.REPT. NO. 476 DATED AUGUST 30, 1963. BOTH REPORTS ACCOMPANIED H.R. 5623 WHICH BECAME PUBLIC LAW 88-130.

WE FIND NOTHING IN PUBLIC LAW 88-130 OR ITS LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT, EXCEPT FOR THE SPECIFIC AUTHORITY MENTIONED IN SUBSECTION (I) OF SECTION 275, TITLE 14, U.S. CODE, CONGRESS INTENDED TO ENLARGE THE SCOPE OF THE COAST GUARD'S WARTIME TEMPORARY PROMOTION AUTHORITY IN SECTION 275 BEYOND THAT PREVIOUSLY AUTHORIZED FOR THE COAST GUARD BY THE ACT OF JULY 24, 1941. AS INDICATED ABOVE, THIS AUTHORITY (ACT OF JULY 24, 1941) IS CURRENTLY AVAILABLE TO THE NAVY AND MARINE CORPS AS PROVIDED IN 10 U.S.C. 5787. HOWEVER, UNLIKE THE COAST GUARD, THE NAVY AND MARINE CORPS HAVE ADDITIONAL AUTHORITY TO PROMOTE NAVY TEMPORARY OFFICERS SERVING ON ACTIVE DUTY IN THE GRADE OF ENSIGN TO THE GRADE TO LIEUTENANT (JUNIOR GRADE) AND MARINE CORPS OFFICERS SERVING IN THE GRADE OF SECOND LIEUTENANT TO THE GRADE OF FIRST LIEUTENANT. SEE 10 U.S.C. 5784. THIS AUTHORITY STEMS FROM SECTION 302, OFFICER PERSONNEL ACT OF AUGUST 7, 1947, CH. 512, 61 STAT. 829-831.

THE NAVY AND MARINE CORPS DO NOT REGARD THE WARTIME TEMPORARY PROMOTION PROVISIONS IN 10 U.S.C. 5787 AS FURNISHING AUTHORITY FOR COUNTING SERVICE UNDER A TEMPORARY PROMOTION, IN MEETING THE TIME IN GRADE REQUIREMENTS FOR CAREER ADVANCEMENT IN THE NAVAL SERVICE. IN THIS CONNECTION SEE OUR DECISION OF APRIL 24, 1968, 47 COMP. GEN. 587, 596, AND THE SECNAV NOTICE 1412 THERE QUOTED. ALSO, ACCOMPANYING THE SUBMISSION ON WHICH THE DECISION OF APRIL 24, 1968, WAS RENDERED IS A COPY OF A MEMORANDUM DATED JANUARY 5, 1967, BY THE DEPUTY DIRECTOR, ADMINISTRATIVE LAW DIVISION, NAVY JUDGE ADVOCATE GENERAL, WHICH STATE IN PERTINENT PART, AS FOLLOWS:

IT IS ALSO IMPORTANT TO RECOGNIZE THAT THERE WAS A SECOND, SEPARATE TEMPORARY APPOINTMENT AND/OR PROMOTION SYSTEM IN THE NAVAL SERVICE OUTSIDE OF THE TEMPORARY AND PERMANENT PROMOTIONS WHICH WAS RETAINED, WITHOUT MATERIAL CHANGE, AFTER THE PASSAGE OF THE OPA IN 1947. COMMONLY CALLED "TEMPORARY WAR OR NATIONAL EMERGENCY" APPOINTMENTS OR PROMOTIONS, 10 U.S.C. 5597 AND 5787 CONTAIN AUTHORIZATION FOR THE TEMPORARY APPOINTMENT AND PROMOTION UP TO 0-8 OF NAVY AND MARINE CORPS OFFICERS BASED ON THE ACT OF 24 JULY 1941, C. 320, 55 STAT. 603, ET SEQ, AS AMENDED. TEMPORARY PROMOTIONS UNDER THIS LAW DO NOT BECOME PERMANENT, AS DO TEMPORARY PROMOTIONS UNDER OPA, AND TIME SPENT IN A GRADE TO WHICH AN OFFICER HAS BEEN ADVANCED UNDER 10 U.S.C. 5787 CANNOT BE COUNTED AS THE REQUISITE TIME IN GRADE FOR FURTHER PROMOTION UNDER THE PROVISIONS OF OPA WHICH ACTUALLY REGULATE THE NAVAL OFFICER'S NORMAL CAREER. WE DOUBT THAT THE CONGRESS INTENDED TO GIVE THE COAST GUARD ANY GREATER RIGHT IN THE EXERCISE OF ITS WARTIME PROMOTION AUTHORITY UNDER 14 U.S.C. 275 THAN THAT GIVEN THE NAVY UNDER 10 U.S.C. 5787, FOR PURPOSES OF COUNTING TEMPORARY SERVICE AS THE REQUISITE TIME IN GRADE FOR FURTHER PROMOTION UNDER THE PERMANENT PROMOTION SYSTEM. IN THE LIGHT OF THE ABOVE, IT IS OUR VIEW THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY--- SIMILAR TO 10 U.S.C. 5784--- THERE APPEARS TO BE NO LEGAL BASIS FOR THE COAST GUARD TO CARRY OUT A PROMOTION PROCEDURE SUCH AS SUGGESTED IN THE COMMANDANT'S LETTER. IF THE NEEDS OF THE SERVICE REQUIRE A REVISION IN THE PROMOTION POLICY OF THE COAST GUARD, SPECIFIC LEGISLATION IN THIS AREA SHOULD BE REQUESTED.

ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO THE SECOND QUESTION IS REQUIRED.