B-138132, JANUARY 9, 1959, 38 COMP. GEN. 487

B-138132, JANUARY 9, 1959, 38 COMP. GEN. 487

MILITARY PERSONNEL - PROFICIENCY PAY - SIX MONTHS' DEATH GRATUITY - CHANGE FROM ENLISTED TO OFFICER STATUS ALTHOUGH PROFICIENCY PAY IS NOT DESIGNATED AS SPECIAL OR INCENTIVE PAY FOR INCLUSION IN THE DETERMINATION OF PAY ON DATE OF DEATH UNDER THE SIX MONTHS' DEATH GRATUITY STATUTE, 10 U.S.C. 1478, IT IS NOT UNCOMMON FOR SPECIAL PAY TO BE DESIGNATED BY A PARTICULAR NAME CONNOTING THE DUTY OR SPECIALTY FOR WHICH IT IS PROVIDED AND THE LEGISLATIVE HISTORY OF THE ACT OF MAY 20, 1958, PROVIDING PROFICIENCY PAY, SHOWS THAT IT WAS CONSIDERED TO BE A SPECIAL OR INCENTIVE PAY AND, THEREFORE, COMES WITHIN THE MEANING OF "PAY" AS DEFINED BY 10 U.S.C. 101 (27) FOR PURPOSES OF 10 U.S.C. 1478. ENLISTED MEMBERS OF THE NAVY OR MARINE CORPS WHO ARE RECEIVING PROFICIENCY PAY AT THE TIME OF APPOINTMENT TO OFFICER STATUS UNDER 10 U.S.C. 5586, 5589 AND 5596, ARE ENTITLED UNDER THE SAVED PAY PROVISIONS OF THOSE SECTIONS TO RECEIVE AT LEAST THE PAY AND ALLOWANCES THEY WERE RECEIVING BEFORE THEIR APPOINTMENTS AS OFFICERS INCLUDING PROFICIENCY PAY, BUT IF THE MEMBERS DO NOT CONTINUE TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY AFTER THEIR APPOINTMENTS THEIR PROFICIENCY PAY IS NOT SAVED TO THEM.

TO THE SECRETARY OF DEFENSE, JANUARY 9, 1959:

BY LETTER DATED DECEMBER 5, 1958, THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTS OUR DECISION ON CERTAIN QUESTIONS CONTAINED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 228 OF THE MILITARY PAY AND ALLOWANCES COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. MAY THE AMOUNT OF PROFICIENCY PAY PAID TO ENLISTED MEMBERS UNDER THE PROVISIONS OF SECTION 209 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 1 (8) OF THE ACT OF 20 MAY 1958 (72 STAT. 125), BE INCLUDED IN THE COMPUTATION OF SIX MONTHS' DEATH GRATUITY PAYMENTS?

2. MAY THE AMOUNT OF PROFICIENCY PAY BEING PAID TO AN ENLISTED MEMBER OF THE NAVY OR MARINE CORPS UNDER THE PROVISIONS OF SECTION 209 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 1 (8) OF THE ACT OF 20 MAY 1958 (72 STAT. 125), AT THE TIME OF HIS APPOINTMENT UNDER SECTIONS 5586, 5589 AND 5596 OF TITLE 10, U.S.C., BE INCLUDED IN THE COMPUTATION OF THE HIGHER PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE "SAVED PAY" PROVISIONS OF THESE SECTIONS?

SECTION 1478, TITLE 10 OF THE U.S.C. PROVIDES THAT:

(A) THE DEATH GRATUITY UNDER SECTIONS 1475-1477 OF THIS TITLE SHALL BE EQUAL TO SIX MONTHS' PAY AT THE RATE TO WHICH THE DECEDENT WAS ENTITLED ON THE DATE OF HIS DEATH, EXCEPT THAT THE GRATUITY MAY NOT BE LESS THAN $800 OR MORE THAN $3,000. * * *

THE TERM "PAY" IS DEFINED IN SECTION 101 (27) OF TITLE 10 OF THE CODE AS INCLUDING "BASIC PAY, SPECIAL PAY, RETAINER PAY, INCENTIVE PAY, RETIRED PAY, AND EQUIVALENT PAY," AND THE LEGISLATIVE HISTORY OF SECTION 1478 SHOWS THAT SUCH TERM AS USED IN THAT SECTION IS TO HAVE THAT MEANING.

QUESTION NO. 1 IS DISCUSSED IN THE COMMITTEE ACTION, IN PART, AS FOLLOWS:

IT WOULD NOT BE UNREASONABLE TO ARGUE THAT PROFICIENCY PAY IS A SPECIAL OR INCENTIVE PAY, EVEN THOUGH CLASSIFIED AS "PROFICIENCY PAY" IN SECTION 209, CAREER COMPENSATION ACT OF 1949, SUPRA.IN SENATE REPORT 1472 TO ACCOMPANY H.R. 11470, WHICH LATER BECAME THE ACT OF 20 MAY 1958, THE SIGNIFICANT FEATURES OF THE TWO PROFICIENCY PAY SYSTEMS ARE DISCUSSED. DISCUSSING THE PROFICIENCY RATING SYSTEM IT IS STATED ON PAGE 7 THAT "THESE AMOUNTS COULD BE PAID TO AN ENLISTED MAN OVER AND ABOVE THE BASIC PAY AND ANY OTHER SPECIAL OR INCENTIVE PAYS TO WHICH HE MAY BE ENTITLED.' ( ITALICS SUPPLIED.) ON PAGE 19 IT IS STATED THAT " THE COMMITTEE DELETED LANGUAGE IN THE HOUSE BILL WHICH WOULD HAVE PERMITTED INCLUSION IN THE COMPUTATION OF RETIRED PAY THE PROFICIENCY PAY BASED ON PAYMENTS OF $50, $100, AND $150 PER MONTH. THE REASON FOR THIS EXCLUSION IS THE FACT THAT THE VARIOUS OTHER SPECIAL PAYS NOW AUTHORIZED * * *.' ( ITALICS SUPPLIED.) ALSO, SEE PAGE 16 OF HOUSE CONFERENCE REPORT NO. 1701 TO ACCOMPANY H.R. 11470, WHEREIN IT IS STATED:

"UNDER THE HOUSE BILL, THE PROFICIENCY PAY SYSTEM RECOMMENDED FOR ENLISTED PERSONNEL AUTHORIZED TWO PROFICIENCY PAY SYSTEMS; ONE A SYSTEM WHICH GRANTED THE PAY OF A HIGHER GRADE AND THE OTHER WHICH PROVIDED SPECIFIC AMOUNTS OF ADDITIONAL PAY WITHOUT THE PAY OF THE HIGHER GRADE, BUT EITHER SYSTEM TO BE USED IN DETERMINING RETIRED PAY. THE SENATE AMENDMENT DELETED THAT PORTION OF THE HOUSE BILL WHICH PERMITTED THE SPECIAL PROFICIENCY PAY, AS DISTINGUISHED FROM THE PAY OF A HIGHER GRADE, FROM BEING USED IN COMPUTING RETIRED PAY. SINCE THE HOUSE BILL MIGHT HAVE BEEN CONSTRUED AS A PRECEDENT FOR OTHER SPECIAL PAYS AT SOME FUTURE DATE, THE HOUSE CONFEREES AGREED TO THE SENATE AMENDMENT AND, AS A RESULT, THE SPECIAL PROFICIENCY PAY AUTHORIZED IN DOLLAR AMOUNTS, AS DISTINGUISHED FROM THE PAY OF A HIGHER GRADE, MAY NOT BE USED IN DETERMINING ENLISTED RETIRED Y.' ( ITALICS SUPPLIED.)

SECTION 210, ACT 20 MAY 1958, CLASSIFIES THE RESPONSIBILITY PAY AUTHORIZED CERTAIN DESIGNATED OFFICERS AS "SPECIAL PAY.' HOWEVER, THE LEGISLATIVE HISTORY OF THE ACT OF 20 MAY 1958 CLEARLY INDICATES THAT THE PURPOSE OF SECTIONS 209 AND 210 IS THE SAME. CONSEQUENTLY, TO TREAT THE PAYS AUTHORIZED BY SECTIONS 209 AND 210 DIFFERENTLY WOULD RESULT IN DISCRIMINATION IN FAVOR OF THE OFFICER RECEIVING SPECIAL (RESPONSIBILITY) PAY.

WE ARE IN ACCORD WITH THAT VIEW. IN SUCH CONNECTION IT MAY BE NOTED THAT IT IS NOT UNCOMMON FOR SPECIAL PAY TO BE DESIGNATED BY A PARTICULAR NAME CONNOTING THE DUTY OR SPECIALTY FOR WHICH IT IS PROVIDED. SOME INSTANCES OF SUCH DESIGNATIONS ARE SEA AND FOREIGN DUTY PAY AND DIVING DUTY PAY. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

THE SECTIONS OF TITLE 10 OF THE U.S.C. MENTIONED IN QUESTION NO. 2 AUTHORIZE THE APPOINTMENT OF ENLISTED MEMBERS TO COMMISSIONED OFFICER STATUS IN THE NAVY AND MARINE CORPS AND PROVIDE IN SUBSTANCE THAT MEMBERS SO APPOINTED MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED AT THE TIME OF APPOINTMENT BECAUSE OF THEIR FORMER STATUS. WE BELIEVE SUCH PROVISIONS ARE INTENDED TO SAVE TO THE MEMBER CONCERNED THE PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED BECAUSE OF THEIR ENLISTED STATUS AT THE TIME OF THEIR APPOINTMENTS AS OFFICERS, INCLUDING ANY AND ALL MONEY PAYMENTS ACCRUING BY VIRTUE OF THEIR STATUS OR DUTY IN THAT STATUS.

TO BE ENTITLED TO PROFICIENCY PAY THE MEMBER MUST BE AN ENLISTED MAN, HE MUST BE DESIGNATED AS POSSESSING SPECIAL PROFICIENCY IN A MILITARY SKILL OF THE SERVICE CONCERNED, AND HE MUST MEET CERTAIN OTHER CONDITIONS OF ELIGIBILITY PRESCRIBED IN DEPARTMENT OF DEFENSE DIRECTIVE NO. 1340.2 DATED SEPTEMBER 27, 1958. SUCH PAY IS NOT AUTHORIZED FOR OFFICERS. HOWEVER, THE SAVING PROVISIONS HERE CONCERNED EXPRESSLY SAVE AN OFFICER APPOINTED UNDER THE MENTIONED SECTIONS FROM ANY REDUCTION IN THE "PAY" TO WHICH HE WAS ENTITLED BECAUSE OF HIS FORMER ENLISTED STATUS. THE TERM "PAY" INCLUDES SPECIAL PAYS. SEE ANSWER TO QUESTION NO. 1. BUT FOR THEIR APPOINTMENT TO OFFICER STATUS, THE ENLISTED MEMBERS CONCERNED UNQUESTIONABLY WOULD HAVE BEEN ENTITLED TO PROFICIENCY PAY WHILE THEY CONTINUED TO MEET ALL THE CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY. IT FOLLOWS THAT UNDER THE TERMS OF THE SAVING PROVISIONS, PROFICIENCY PAY IS SAVED TO THE MEMBERS CONCERNED, IN CONJUNCTION WITH THE OTHER PAY AND ALLOWANCES OF THEIR ENLISTED GRADES, WHILE THEY CONTINUE TO MEET ALL THE CONDITIONS OF ELIGIBILITY FOR SUCH PAY AFTER THEIR APPOINTMENTS, AND WHILE THE TOTAL PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED IN THEIR FORMER ENLISTED STATUS, INCLUDING PROFICIENCY PAY, IS IN EXCESS OF THE PAY AND ALLOWANCES OF THEIR OFFICER GRADES, EXCLUDING PROFICIENCY PAY. THAT IS, THE MEMBERS CONCERNED ARE ENTITLED TO RECEIVE AT LEAST THE PAY AND ALLOWANCES THEY WERE ENTITLED TO RECEIVE BEFORE THEIR APPOINTMENTS AS OFFICERS, TO THE EXTENT THEY WOULD HAVE CONTINUED TO RECEIVE SUCH PAY AND ALLOWANCES IF THEY HAD NOT BEEN APPOINTED TO OFFICER STATUS. IF THE MEMBERS CONCERNED DO NOT CONTINUE TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY AFTER THEIR APPOINTMENTS, THEIR PROFICIENCY PAY IS NOT SAVED TO THEM AS THE REDUCTION IN THAT CASE IS NOT DUE TO THE APPOINTMENT BUT TO THE FAILURE TO OTHERWISE QUALIFY FOR PROFICIENCY PAY. SEE 23 COMP. GEN. 147. QUESTION NO. 2 IS ANSWERED ACCORDINGLY.