B-33763, MAY 20, 1943, 22 COMP. GEN. 1049

PAY - PROMOTIONS - EFFECTIVE DATE - MEMBERS OF ARMY NURSE CORPS A MEMBER OF THE ARMY NURSE CORPS MAY BE CONSIDERED AN "OFFICER" WITHIN THE PURPOSE AND INTENT OF THE ACT OF OCTOBER 14, 1942, WHICH PROVIDES, INTER ALIA, THAT EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE 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, AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM SUCH DATE, SO THAT, UPON PROMOTION, MEMBERS OF THE CORPS MAY BE CONSIDERED AS HAVING ACCEPTED IN LIKE MANNER AS OFFICERS OF THE ARMY OF THE UNITED STATES.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. H. A. PIERCE, U.S. ARMY, MAY 20, 1943:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF APRIL 9, 1943, YOUR LETTER OF MARCH 1, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUTENANT AMELIA M. FRAZIER, CHIEF NURSE ( RES. NURSE), ARMY NURSE CORPS, COVERING DIFFERENCE IN PAY BETWEEN SECOND LIEUTENANT AND FIRST LIEUTENANT FOR THE PERIOD JULY 14, 1942, DATE OF ORDER ANNOUNCING HER PROMOTION AND JULY 23, 1942, DATE PRECEDING EXECUTION OF NEW OATH OF APPOINTMENT.

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, PROVIDES:

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.

THE ARMY NURSE CORPS IS A PART OF THE MEDICAL DEPARTMENT OF THE ARMY, SECTION 10 OF THE ACT OF JUNE 3, 1916, 39 STAT. 171. THE ACT OF JULY 9, 1918, 40 STAT. 879, PROVIDES THAT THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY SHOULD THEREAFTER BE KNOWN AS THE ARMY NURSE CORPS. SECTION 3 OF THAT ACT IS AS FOLLOWS:

THAT THE SUPERINTENDENT SHALL BE APPOINTED BY, AND, AT HIS DISCRETION, BE REMOVED BY, THE SECRETARY OF WAR; THAT ALL OTHER MEMBERS OF SAID CORPS SHALL BE APPOINTED BY, AND, AT HIS DISCRETION, BE REMOVED BY, THE SURGEON GENERAL BY AND WITH THE APPROVAL OF THE SECRETARY OF WAR; BUT THE ASSISTANT SUPERINTENDENTS, THE DIRECTORS, THE ASSISTANT DIRECTORS, AND THE CHIEF NURSES SHALL BE APPOINTED BY PROMOTION FROM OTHER MEMBERS OF THE CORPS, AND SHALL, UPON BEING RELIEVED FROM DUTY AS SUCH, UNLESS REMOVED FOR INCOMPETENCY OR MISCONDUCT, REVERT TO THE GRADES IN THE CORPS FROM WHICH THEY WERE PROMOTED.

THE LAST PARAGRAPH OF SECTION 10 OF THE ACT OF JUNE 4, 1920, 41 STAT. 766, 767, 768, PROVIDES:

HEREAFTER THE MEMBERS OF THE ARMY NURSE CORPS SHALL HAVE RELATIVE RANK AS FOLLOWS: THE SUPERINTENDENT SHALL HAVE THE RELATIVE RANK OF MAJOR; THE ASSISTANT SUPERINTENDENTS, DIRECTOR AND ASSISTANT DIRECTORS, THE RELATIVE RANK OF CAPTAIN; CHIEF NURSES, THE RELATIVE RANK OF FIRST LIEUTENANT; HEAD NURSES AND NURSES, THE RELATIVE RANK OF SECOND LIEUTENANT; AND AS REGARDS MEDICAL AND SANITARY MATTERS AND ALL OTHER WORK WITHIN THE LINE OF THEIR PROFESSIONAL DUTIES SHALL HAVE AUTHORITY IN AND ABOUT MILITARY HOSPITALS NEXT AFTER THE OFFICERS OF THE MEDICAL DEPARTMENT. THE SECRETARY OF WAR SHALL MAKE THE NECESSARY REGULATIONS PRESCRIBING THE RIGHTS AND PRIVILEGES CONFERRED BY SUCH RELATIVE RANK.

SEE ALSO PUBLIC LAW 828 APPROVED DECEMBER 22, 1942, 56 STAT. 1072.

WHETHER THE WORD "OFFICER" OCCURRING IN A STATUTE IS TO BE CONSTRUED IN A STRICTLY TECHNICAL SENSE OR IN A BROADER, MORE POPULAR SENSE IS FOR DETERMINATION FROM THE INTENTION OF THE CONGRESS IN EACH CASE. THIS IS EXEMPLIFIED BY DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN THE CASES OF UNITED STATES V. MOUAT, 124 U.S. 303, AND UNITED STATES V. HENDEE, 124 U.S. 309. IN THE MOUAT CASE, IT WAS HELD THAT A NAVAL PAYMASTER'S CLERK WAS NOT AN OFFICER WITHIN A STATUTE AUTHORIZING PAYMENT OF MILEAGE OF OFFICERS, WHEREAS IN THE HENDEE CASE IT WAS HELD THAT A NAVAL PAYMASTER'S CLERK WAS AN OFFICER OF THE NAVY UNDER A STATUTE AUTHORIZING LONGEVITY INCREASE OF PAY FOR SERVICES AS AN OFFICER.

THE ACT OF OCTOBER 14, 1942, SUPRA, REFERS TO "EVERY OFFICER OF THE ( ARMY OF THE) UNITED STATES OR ANY COMPONENT THEREOF," NOT TO COMMISSIONED OFFICERS ONLY; MEMBERS OF THE ARMY NURSE CORPS ARE A PART OF THE MEDICAL DEPARTMENT OF THE ARMY, AND WHILE NOT OFFICERS IN THE ARMY, THEY HAVE RELATIVE RANK.

IN A DECISION DATED APRIL 28, 1941, TO THE SECRETARY OF THE NAVY, B 16088, THE QUESTION WAS PRESENTED WHETHER APPROPRIATED FUNDS FOR THE PAY OF ENLISTED MEN OF THE NAVY WERE AVAILABLE FOR THE PAY OF SUCH MEN IF ASSIGNED TO DUTY IN CONNECTION WITH A NAVY NURSES' MESS ASHORE, SUCH ENLISTED MEN BEING IN EXCESS OF THE NUMBER AUTHORIZED TO BE ASSIGNED TO OFFICERS' MESSES BY THE ACT OF MARCH 17, 1941, 55 STAT. 34, PUBLIC LAW 13, 77TH CONGRESS. AFTER A BRIEF REFERENCE TO THE STATUTORY PROVISIONS RELATIVE TO PAY AND ALLOWANCES OF FEMALE NURSES OF THE ARMY AND NAVY IT WAS SAID IN THAT DECISION:

IT WILL THUS BE SEEN THAT NAVY NURSES FOR SOME PURPOSES ARE ASSIMILATED TO OFFICERS, AND SEE THE ACT OF MAY 13, 1926, 44 STAT. 532; THEY HAVE A MILITARY STATUS, LAWS RELATING TO THE NAVY, ANNOTATED, SUPPLEMENT 1929, PAGE 180. THEIR PAY AND ALLOWANCES ARE APPROPRIATED FOR UNDER " PAY OF NAVAL PERSONNEL," AND THEY HAVE VARIOUS BENEFITS ACCRUING TO OFFICERS AND ENLISTED MEN OF THE NAVY, SEE LAWS RELATING TO THE NAVY, ANNOTATED, SUPPLEMENT 1929, PAGE 1013. THEY DO NOT HAVE AN ENLISTED STATUS AND THEY MORE NEARLY PROXIMATE THE STATUS OF AN OFFICER. HAVING A MILITARY STATUS AND RIGHTS SUPERIOR TO THOSE OF ENLISTED MEN, BUT POSSIBLY INFERIOR TO THOSE OF COMMISSIONED OFFICERS, THEY ARE WITHIN THE REASON FOR THE RULE FIXED BY THE STATUTE YOU HAVE QUOTED AND FOR THE PURPOSE OF THAT PROHIBITION MUST BE TREATED AS OFFICERS.

ATTENTION MAY BE INVITED ALSO TO A DECISION OF THIS OFFICE DATED JANUARY 12, 1940, TO THE SECRETARY OF THE NAVY, B-7514, IN WHICH IT WAS HELD, IN EFFECT, THAT THE PAY OF RETIRED NURSES OF THE NAVY WHO WERE ENTITLED TO HOSPITALIZATION AND DOMICILIARY CARE WAS SUBJECT TO THE SAME DEDUCTIONS AS WAS THE PAY OF RETIRED OFFICERS RECEIVING SUCH MEDICAL ATTENTION UNDER SIMILAR CIRCUMSTANCES.

SOME OF THE REASONS ADVANCED BY THE SECRETARY OF WAR FOR ENACTMENT OF PUBLIC LAW 746, AS SET FORTH IN A LETTER DATED JULY 28, 1942, TO THE CHAIRMAN, COMMITTEE ON MILITARY AFFAIRS, UNITED STATES SENATE, WERE TO OBVIATE THE NECESSITY OF OBTAINING A NEW OATH OF OFFICE FROM AN OFFICER EACH TIME HE WAS PROMOTED, AND THE VIRTUAL IMPOSSIBILITY TO GET THE NECESSARY PAPERS TO THE OFFICER CONCERNED OR TO HAVE THEM RETURNED AS IN THE CASE OF AN OFFICER IN THE FIELD, AN OFFICER ENGAGED IN COMBAT OPERATIONS, OR AN OFFICER IN THE HANDS OF THE ENEMY AS A PRISONER OF WAR. MEMBERS OF THE ARMY NURSE CORPS ARE ON DUTY AT FAR DISTANT POSTS AND IT IS UNDERSTOOD THAT SOME ARE IN THE HANDS OF THE ENEMY AS PRISONERS OF WAR. IT IS APPARENT THAT THE REASONS ADVANCED BY THE SECRETARY OF WAR AS A BASIS FOR THE ENACTMENT OF THE ACT OF OCTOBER 14, 1942, ARE APPLICABLE, ALSO, TO MEMBERS OF THE ARMY NURSE CORPS. THEREFORE, THEY COME WITHIN THE PURPOSE AND INTENT OF PUBLIC LAW 746, SUPRA, AND UPON PROMOTION MAY BE CONSIDERED AS HAVING ACCEPTED IN LIKE MANNER AS OFFICERS OF THE ARMY OF THE UNITED STATES.

ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.