B-70840, MARCH 28, 1963, 42 COMP. GEN. 535

B-70840, MARCH 28, 1963, 42 COMP. GEN. 535

QUARTERS ALLOWANCES - INCREASES UNDER PUBLIC LAW 87-531 - ENTITLEMENT RESTRICTION A MARINE CORPS GENERAL APPOINTED IN ACCORDANCE WITH THE ACT OF MARCH 21, 1945, WHOSE PERMANENT GRADE WAS ATTAINED PURSUANT TO THE ACT OF MARCH 23, 1946, UNDER WHICH UPON RETIREMENT HE BECAME ENTITLED TO THE PAY AND ALLOWANCES PRESCRIBED BY THE 1945 ACT FOR A REAR ADMIRAL OF THE UPPER HALF, BUT WHOSE PAY AND ALLOWANCE WERE FROZEN BY THE ACT OF MAY 20, 1958, WHICH EXCLUDED THE 1946 ACT FROM ITS COVERAGE, IS PRECLUDED FROM RECEIVING THE INCREASE PROVIDED BY THE ACT OF JULY 10, 1962, IN THE RATE OF BASIC ALLOWANCES FOR QUARTERS PRESCRIBED BY THE CAREER COMPENSATION ACT, AS AMENDED, FOR A REAR ADMIRAL OF THE UPPER HALF IN THE ABSENCE OF SPECIFIC LANGUAGE IN THE 1962 ACT REMOVING THE RESTRICTION IN THE 1958 ACT FREEZING THE PAY AND ALLOWANCES OF OFFICERS COVERED BY THE 1946 CT; THEREFORE, THE PRIOR SPECIAL STATUTORY PROVISION REMAINING IN EFFECT AS A QUALIFICATION OF OR EXCEPTION TO THE LATER GENERAL STATUTE, THE RETIRED GENERAL IS NOT ENTITLED TO THE INCREASED RATE OF BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY THE 1962 ACT.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, MARCH 28, 1963:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1963, REQUESTING DECISION CONCERNING THE PROPER RATE OF BASIC ALLOWANCE FOR QUARTERS PAYABLE EFFECTIVE FROM JANUARY 1, 1963, TO GENERAL ALEXANDER A. VANDERGRIFT, U.S. MARINE CORPS, RETIRED. YOUR SUBMISSION WAS ASSIGNED NO. DO-MC-695 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

GENERAL VANDERGRIFT WAS APPOINTED GENERAL OF THE MARINE CORPS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 21, 1945, CH. 29, 59 STAT. 36, 50 U.S.C. APP. 1711 (1946 ED.). SECTION 3 OF THAT ACT, 50 U.S.C. APP. 1713 (1946 ED.), PROVIDED THAT A PERSON APPOINTED UNDER THOSE STATUTORY PROVISIONS "SHALL, WHILE ON ACTIVE DUTY, RECEIVE THE SAME PAY AND ALLOWANCES AS A REAR ADMIRAL OF THE UPPER HALF, PLUS A PERSONAL MONEY ALLOWANCE OF $2,200 PER ANNUM.'

PURSUANT TO THE AUTHORITY OF SECTION 2 OF THE ACT OF MARCH 23, 1946, CH. 112, 60 STAT. 60, 50 U.S.C. APP. 1711 NOTE (1946 ED.), GENERAL VANDERGRIFT ATTAINED THE PERMANENT GRADE OF GENERAL OF THE MARINE CORPS. SECTION 2 FURTHER PROVIDED THAT ANY OFFICER APPOINTED UNDER THE PROVISIONS OF THAT SECTION

SHALL RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY SECTION 3 OF THE ACT OF MARCH 21, 1945 * * * AND ANY SUCH OFFICER WHO HAS BEEN OR MAY HEREAFTER BE RETIRED OR RELIEVED FROM ACTIVE DUTY SHALL BE ENTITLED TO HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RANK HELD BY HIM ON THE ACTIVE LIST OR WHILE ON ACTIVE DUTY, AND SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS OFFICERS APPOINTED UNDER THIS SECTION ARE ENTITLED TO RECEIVE WHILE ON ACTIVE DUTY.

GENERAL VANDERGRIFT WAS PLACED ON THE RETIRED LIST OF THE MARINE CORPS EFFECTIVE APRIL 1, 1949, AND UNDER THE ABOVE QUOTED PROVISIONS OF LAW HE BECAME ENTITLED TO RECEIVE, WHILE ON THE RETIRED LIST, THE PAY AND ALLOWANCES PRESCRIBED IN SECTION 3 OF THE ACT OF MARCH 21, 1945, NAMELY, THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF, PLUS A PERSONAL MONEY ALLOWANCE OF $2,200 A YEAR.

UNDER THE PROVISIONS OF SECTION 302 (F) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 813, AS AMENDED BY SECTION 1 (B) OF THE ACT OF MAY 19, 1952, CH. 310, 66 STAT. 79, 37 U.S.C. 252 (F), THE RATE OF BASIC ALLOWANCES FOR QUARTERS FOR A REAR ADMIRAL OF THE UPPER HALF, WITH DEPENDENTS, WAS $171 A MONTH. THAT RATE WAS INCREASED TO $201 A MONTH EFFECTIVE JANUARY 1, 1963, BY SECTION 1 OF PUBLIC LAW 87-531, APPROVED JULY 10, 1962, 76 STAT. 152, 37 U.S.C. 252 (F).

SECTION 7 (A) OF PUBLIC LAW 85-422, APPROVED MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE, IS AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EACH OFFICER ENTITLED TO PAY AND ALLOWANCES UNDER ANY OF THE FOLLOWING PROVISIONS OF LAW SHALL CONTINUE TO RECEIVE THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT:

(1) THE ACT OF MARCH 23, 1946 (60 STAT. 59).

(2) THE ACT OF JUNE 26, 1948 (62 STAT. 1052).

(3) THE ACT OF SEPTEMBER 18, 1950 (PRIVATE LAW 957, EIGHTY-FIRST

CONGRESS).

YOU PRESENT THE QUESTION WHETHER THE PROVISIONS OF SECTION 7 (A) OF THE 1958 ACT, WHICH BECAME EFFECTIVE JUNE 1, 1958, WERE INTENDED TO APPLY ONLY IN CONNECTION WITH THAT ACT OR WHETHER THEY ,ALSO APPLY TO BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY THE 1962 ACT.'

THE LEGISLATIVE HISTORY OF SECTION 7 (A) OF PUBLIC LAW 85-422 DISCLOSES A DEFINITE INTENT TO ,FREEZE" THE PAY AND ALLOWANCES OF THOSE OFFICERS ENTITLED THERETO UNDER AUTHORITY OF THE ACT OF MARCH 23, 1946 (APPLICABLE IN GENERAL VANDERGRIFT'S CASE), THE ACT OF JUNE 26, 1948, 5 U.S.C. 626C NOTE (1952 ED.), AND THE ACT OF SEPTEMBER 18, 1950, 64 STAT. A224, AT THE RATES IN EFFECT ON MAY 31, 1958. SEE S.REPT.NO. 1472 TO ACCOMPANY H.R. 11470 (ENACTED MAY 20, 1958, AS PUBLIC LAW 85 422) AT PAGE 24. SECTION 7 (A) OF THE ACT OF MAY 20, 1958, THEREFORE PRECLUDED GENERAL VANDERGRIFT FROM RECEIVING ANY INCREASE IN HIS STATUTORY PAY OR ALLOWANCES EFFECTIVE JUNE 1, 1958.

ALTHOUGH SECTION 1 OF PUBLIC LAW 87-531 INCREASED, EFFECTIVE JANUARY 1, 1963, THE RATES OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED IN SECTION 302 (F) OF THE 1949 LAW, THERE IS NOTHING IN THE LANGUAGE OF THE 1962 ACT OR IN ITS LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT THE RESTRICTION PRESCRIBED IN SECTION 7 (A) OF THE 1958 LAW WAS INTENDED TO BE REMOVED. ON THE CONTRARY THE 1962 ACT MERELY AMENDED THE TABLE OF RATES FOR BASIC ALLOWANCE FOR QUARTERS SET FORTH IN SECTION 302 OF THE 1949 LAW, 37 U.S.C. 252.

IN SUTHERLAND, STATUTORY CONSTRUCTION, VOLUME I, THIRD EDITION, SECTION 2021, IT IS STATED THAT THE LEGISLATURE IS PRESUMED TO HAVE KNOWLEDGE OF THE EXISTENCE OF A PRIOR SPECIAL LAW AND IN THE ABSENCE OF EXPRESS LANGUAGE ESTABLISHING OTHERWISE, TO HAVE CONTEMPLATED ONLY A GENERAL TREATMENT OF THE SAME SUBJECT MATTER IN A LATER GENERAL ENACTMENT. THUS, WHERE THE LATER GENERAL STATUTE DOES NOT PROPOSE AN IRRECONCILABLE CONFLICT, THE PRIOR SPECIAL STATUTORY PROVISIONS WILL BE CONSTRUED AS REMAINING IN EFFECT AS A QUALIFICATION OF OR EXCEPTION TO THE LATER GENERAL LAW.

IN THE PRESENT SITUATION IT MAY BE PRESUMED THAT CONGRESS WAS FULLY AWARE OF THE RESTRICTION PRESCRIBED IN SECTION 7 (A) OF THE 1958 ACT AND THAT IF IT HAD BEEN INTENDED THAT SUCH RESTRICTION SHOULD NOT APPLY WITH RESPECT TO THE PROVISIONS OF SECTION 1 OF THE 1962 LAW, CLEAR AND SPECIFIC LANGUAGE WOULD HAVE BEEN EMPLOYED TO THAT EFFECT. IN THE CIRCUMSTANCES THUS PRESENTED, THE CONCLUSION IS REQUIRED THAT THE 1962 AMENDMENT OF THE BASIC RATES OF QUARTERS ALLOWANCE SET FORTH IN SECTION 302 (F) OF THE 1949 LAW DID NOT REMOVE THE RESTRICTION CONTAINED IN SECTION 7 (A) OF THE 1958 ACT.

THEREFORE, GENERAL VANDERGRIFT IS NOT ENTITLED TO THE MONTHLY RATE OF BASIC ALLOWANCE FOR QUARTERS EFFECTIVE JANUARY 1, 1963, AS PRESCRIBED IN SECTION 1 OF PUBLIC LAW 87-531.