B-108840, MAY 22, 1952

B-108840, MAY 22, 1952

PRECIS-UNAVAILABLE

COLONEL J.W. MCMANUS, F.C.; DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR FOURTH INDORSEMENT DATED MARCH 4, 1952, ON LETTER OF JANUARY 28, 1952, FROM ACTING UNITED STATES PROPERTY AND DISBURSING OFFICER FOR NORTH CAROLINA, WHICH WAS FORWARDED HERE UNDER THE SIXTH INDORSEMENT DATED MARCH 27, 1952, FROM THE OFFICE OF CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WHEREIN ADVICE IS REQUESTED AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH, PAYMENT MAY BE MADE ON THE SUPPLEMENTAL CIVILIAN PAY ROLLS TRANSMITTED THEREWITH COVERING RETROACTIVE COMPENSATION INCREASES TO CERTAIN NGM MAINTENANCE PERSONNEL OF THE NORTH CAROLINA NATIONAL GUARD.

IT APPEARS FROM THE INFORMATION TRANSMITTED HERE WITH YOUR REQUEST FOR DECISION THAT DURING THE PERIOD JULY 1 TO DECEMBER 31, 1951, THE EMPLOYEES IN QUESTION WERE PAID COMPENSATION IN ACCORDANCE WITH THE RATES PRESCRIBED IN A STATE (NORTH CAROLINA) PAY SCHEDULE FOR CERTAIN CIVILIAN EMPLOYEES OF THE NATIONAL GUARD OF NORTH CAROLINA, WHICH RATES WERE LESS THAN THE MAXIMUM RATES AUTHORIZED UNDER THE APPLICABLE NATIONAL GUARD BUREAU SUPPORT SCHEDULE FOR ARMY NGM EMPLOYEES, STATE OF NORTH CAROLINA. THE REASON ASSIGNED FOR PAYMENT AT THE LOWER STATE RATES IS STATED IN THE BASIC LETTER OF THE ACTING UNITED STATES PROPERTY AND DISBURSING OFFICER AS FOLLOWS:

"*** THE SALARY LEVELS AUTHORIZED BY THE NGB SUPPORT SCHEDULE, INCLOSURE NO. 3, EFFECTIVE 1 JULY 1951, BASED ON THE DEGREE OF SKILL OR SUPERVISORY DUTIES, COULD NOT BE PUT INTO EFFECT FOR NGM MAINTENANCE EMPLOYEES OF THIS STATE 1 JULY 1951 DUE TO A LACK OF NGB FUNDS PROGRAMMED FOR PROJECT 1213 FOR THIS STATE AT THAT TIME. DUE TO THIS LACK OF PROJECT 1213 FUNDS, NGM MAINTENANCE EMPLOYEES OF THIS STATE WERE PAID AT THE PAY RATES PUBLISHED IN STATE PAY RATES, NGM MAINTENANCE PERSONNEL, NC NG, FROM 1 JULY THROUGH 31 DECEMBER 1951."

FURTHER, IT IS STATED IN THE BASIC CORRESPONDENCE TRANSMITTED HERE THAT -

"*** TWX BU 1550, NATIONAL GUARD BUREAU, 26 DECEMBER 1951, COPY ATTACHED AS INCLOSURE NO. 2, STATES THAT, "INASMUCH AS THE PRESENT NGM (ARMY) FEDERAL SUPPORT SCHEDULE WAS IN EFFECT ON 1 JULY 1951 AND HAS NOT BEEN CHANGED, STATE ADJUTANT GENERAL HAS AUTHORITY TO MAKE PAY INCREASES WITHIN AVAILABLE FUNDS AND EFFECTIVE ON ANY DATE DESIRED SO LONG AS HE DOES NOT AUTHORIZE PAY INCREASES THAT AT ANY TIME ARE IN EXCESS OF THE AUTHORIZED SUPPORT SCHEDULE,' AND, 'WHERE BECAUSE OF LACK OF FUNDS PROGRAMMED FOR PROJECT 1213 A STATE HAS PAID BELOW THE AUTHORIZED SCHEDULE, A STATE MAY MAKE SUCH RAISES RETROACTIVE IF STATE LAW PERMITS, TO THE BEGINNING OF ANY PAY PERIOD SUBSEQUENT TO 1 JULY 1951.'"

ALSO, IT IS STATED THAT FOLLOWING THE SUPPLEMENTAL APPORTIONMENT OF FUNDS FOR THE FISCAL YEAR 1952, THE PAY RATES OF THE PERSONNEL IN QUESTION WERE RAISED RETROACTIVELY EFFECTIVE TO JULY 1, 1951, TO THE MAXIMUM LEVELS AUTHORIZED IN THE NATIONAL GUARD BUREAU SUPPORT SCHEDULE FOR ARMY NGM EMPLOYEES, STATE OF NORTH CAROLINA. THE PAY ROLL VOUCHERS TRANSMITTED HERE WITH YOUR REQUEST FOR DECISION ARE FOR A LUMP SUM REPRESENTING THE DIFFERENCE BETWEEN AMOUNTS ACTUALLY PAID THE EMPLOYEES IN QUESTION FOR THE PERIOD JULY 1, 1951, TO DECEMBER 31, 1951, AND THE AMOUNTS SUCH EMPLOYEES WOULD HAVE RECEIVED HAD THEY BEEN PAID AT THE MAXIMUM RATES AUTHORIZED UNDER SUCH SUPPORT SCHEDULE DURING THAT PERIOD.

UNITED STATES NATIONAL GUARD REGULATION 75-16-6 IS, IN PART, AS FOLLOWS:

"6. RATES OF PAY. - THE MAXIMUM PAY SCALE FOR ACCOUNTING CLERKS AND CARETAKERS WILL BE ANNOUNCED PERIODICALLY BY THE CHIEF, NATIONAL GUARD BUREAU. ACTUAL RATES OF PAY WILL BE FIXED BY THE SEVERAL ADJUTANTS GENERAL WITHIN THE LIMITATIONS PRESCRIBED. TOTAL PAYMENT FROM FEDERAL FUNDS WILL NOT EXCEED THE ALLOTMENT FOR THAT PURPOSE, BUT SUPPLEMENTAL PAYMENTS MAY BE MADE FROM OTHER SOURCES. ***"

IT IS APPARENT FROM THE QUOTED REGULATION THAT THE SUPPORT SCHEDULE PRESCRIBED BY THE NATIONAL GUARD BUREAU MERELY FIXED THE MAXIMUM RATES PAYABLE FROM ALLOTTED FUNDS TO THE PERSONNEL CONCERNED. THE RATES SET FORTH THEREIN DID NOT PURPORT TO CONSTITUTE THE COMPENSATION PAYABLE TO INDIVIDUAL EMPLOYEES; ON THE CONTRARY, SAID RATES MERELY ESTABLISHED A CEILING UPON THE COMPENSATION THAT EACH SUCH EMPLOYEE LAWFULLY COULD BE PAID FROM ALLOTTED FUNDS. DURING THE PERIOD INVOLVED THE LAWFUL RATES OF COMPENSATION WERE THOSE ESTABLISHED BY THE STATE ADJUTANT GENERAL, I.E., THE RATES SET FORTH IN THE STATE WAGE SCHEDULE. EVEN IF, DURING THE PERIOD JULY 1 TO DECEMBER 31, 1951, FUNDS HAD BEEN ALLOTTED FOR PAYMENT AT THE HIGHER RATES FIXED IN THE NATIONAL GUARD BUREAU SUPPORT SCHEDULE, SUCH HIGHER RATES LAWFULLY COULD NOT HAVE BEEN PAID TO THE EMPLOYEES IN THE ABSENCE OF ACTION ON THE PART OF THE ADJUTANT GENERAL OF THE STATE OF NORTH CAROLINA INCREASING THEIR COMPENSATION RATES. THUS, IT MAY BE SEEN THAT THE RATES ACTUALLY PAID THE EMPLOYEES DURING THE PERIOD JULY 1 TO DECEMBER 31, 1951, WERE THOSE LEGALLY IN EFFECT AND APPLICABLE TO THEIR INDIVIDUAL POSITIONS. SUCH BEING THE CASE, IN THE ABSENCE OF A STATUTE SO AUTHORIZING, NO BASIS IS APPARENT UPON WHICH THE NATIONAL GUARD BUREAU PROPERLY COULD AUTHORIZE THE RETROACTIVE PAYMENT TO SUCH EMPLOYEES OF COMPENSATION IN ADDITION TO THAT TO WHICH THEY LEGALLY WERE ENTITLED AND, IN FACT, DID RECEIVE FOR THE SERVICES RENDERED DURING THE PERIOD IN QUESTION. COMPARE 25 COMP. GEN. 601.

ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHERS IS NOT AUTHORIZED. THE SAID VOUCHERS WILL BE RETAINED IN THIS OFFICE.