B-136856, AUGUST 4, 1958, 38 COMP. GEN. 105

B-136856, AUGUST 4, 1958, 38 COMP. GEN. 105

MILITARY PERSONNEL - PAY - ADDITIONAL - PROFICIENCY RATES ALTHOUGH SECTION 209 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 240 (A) (2), CONFERS UPON THE SECRETARIES OF THE MILITARY DEPARTMENTS BROAD AND FLEXIBLE AUTHORITY TO ESTABLISH BOTH THE NUMBER OF PROFICIENCY PAY RATES BASED ON SPECIAL MILITARY SKILL AND THE AMOUNT OF THE RATES SUBJECT TO THE SPECIFIED MAXIMUM RATES, IT DOES NOT AUTHORIZE THE PAYMENT OF "TRANSITIONAL PROFICIENCY PAY" WHICH WOULD NOT BE BASED SOLELY ON PROFICIENCY AND SKILL BUT WOULD BE IN THE NATURE OF SAVED PAY FOR MEMBERS OF THE UNIFORMED SERVICE WHO ON PROMOTION IN GRADE DO NOT RECEIVE AN INCREASE IN TOTAL PAY BECAUSE OF THE RECEIPT IN THE FORMER GRADE OF A PROFICIENCY RATE.

TO THE SECRETARY OF DEFENSE, AUGUST 4, 1958:

REFERENCE IS MADE TO LETTER OF JULY 18, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION WHETHER WE WOULD BE REQUIRED TO INTERPOSE ANY LEGAL OBJECTION TO THE DEPARTMENT OF DEFENSE PRESCRIBING A "TRANSITIONAL PROFICIENCY PAY" SCHEDULE UNDER SECTION 209 OF THE CAREER COMPENSATION ACT, AS ADDED BY PUBLIC LAW 85-422, APPROVED MAY 20, 1958, 72 STAT. 125, 37 U.S.C. 240, FOR THE STATED PURPOSE OF INSURING THAT PROMOTION TO A HIGHER GRADE WILL NOT RESULT IN A REDUCTION IN TOTAL PAY, INCLUDING PROFICIENCY PAY, FOR ANY ENLISTED MEMBER OF THE ARMED FORCES WHO IS RECEIVING PROFICIENCY PAY UNDER SUBSECTION (A) (2) OF THAT SECTION, 37 U.S.C. 240 (A) (2), IMMEDIATELY PRIOR TO HIS PROMOTION BUT WHO IS UNABLE TO QUALIFY FOR PROFICIENCY PAY IN THE HIGHER GRADE.

SECTION 209 IS AS FOLLOWS:

SEC. 209. (A) AN ENLISTED MEMBER OF A UNIFORMED SERVICE ENTITLED BASIC PAY AND DESIGNATED AS POSSESSING SPECIAL PROFICIENCY IN A MILITARY SKILL OF THE SERVICE CONCERNED MAY---

(1) BE ADVANCED TO ANY ENLISTED PAY GRADE PRESCRIBED IN SECTION 201 (A) OF THIS ACT THAT IS HIGHER THAN HIS PAY GRADE AT THE TIME OF DESIGNATION AND RECEIVE THE PAY, ALLOWANCES, AND SPECIAL OR INCENTIVE PAYS OF THE HIGHER PAY GRADE IN ACCORDANCE WITH HIS CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES; OR

(2) IN ADDITION TO ANY PAY, ALLOWANCES, SPECIAL OR INCENTIVE PAYS TO WHICH HE IS ENTITLED UNDER THIS ACT, BE PAID PROFICIENCY PAY AT A MONTHLY RATE NOT TO EXCEED THE MAXIMUM RATE PRESCRIBED IN THE FOLLOWING TABLE FOR THE PROFICIENCY RATING TO WHICH HE IS ASSIGNED:

PROFICIENCY RATING MAXIMUM MONTHLY RATES P-1

$50 P-2

100 P-3 150

(B) AN ENLISTED MEMBER WHO HAS LESS THAN EIGHT OR TEN, AS THE CASE MAY BE, OF CUMULATIVE YEARS OF ENLISTED SERVICE FOR BASIC PAY PURPOSES AND WHO IS ADVANCED UNDER SUBSECTION (A) (1) TO PAY GRADE E-8 OR E-9, RESPECTIVELY IS ENTITLED TO THE MINIMUM AMOUNT OF BASIC PAY, ALLOWANCES, AND SPECIAL OR INCENTIVE PAYS PRESCRIBED FOR THAT PAY GRADE UNTIL SUCH TIME AS HIS CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES ENTITLES HIM TO A HIGHER RATE OF SUCH PAYS.

(C) THE SECRETARY CONCERNED SHALL DETERMINE WHETHER ENLISTED MEMBERS OF ANY UNIFORMED SERVICE UNDER HIS JURISDICTION ARE TO BE PAID PROFICIENCY PAY EITHER UNDER SUBSECTION (A) (1) OR (A) (2). HOWEVER, HE MAY ELECT ONLY ONE OF THESE METHODS OF PAYING PROFICIENCY PAY FOR EACH UNIFORMED SERVICE UNDER HIS JURISDICTION. IF HE ELECTS TO HAVE PROFICIENCY PAY PAID UNDER SUBSECTION (A) (1), ENLISTED MEMBERS IN A MILITARY RANK ASSIGNED TO PAY GRADES E-8 AND E-9 MAY BE PAID PROFICIENCY PAY AT A MONTHLY RATE NOT TO EXCEED THE MAXIMUM RATE PRESCRIBED IN SUBSECTION (A) (2). IF HE ELECTS TO HAVE PROFICIENCY PAY PAID UNDER SUBSECTION (A) (2), HE SHALL PRESCRIBE, WITHIN THE LIMITATIONS SET FORTH IN SUBSECTION (A) (2), THE AMOUNT OF SUCH PAY FOR EACH PROFICIENCY RATING PRESCRIBED THEREIN. HE SHALL ALSO DESIGNATE, FROM TIME TO TIME, THOSE SKILLS WITHIN EACH UNIFORMED SERVICE UNDER HIS JURISDICTION IN WHICH PROFICIENCY PAY IS AUTHORIZED, AND SHALL PRESCRIBE THE CRITERIA UNDER WHICH MEMBERS OF THAT UNIFORMED SERVICE ARE ELIGIBLE FOR A PROFICIENCY RATING IN EACH SUCH SKILL. HE MAY, WHENEVER HE DEEMS IT NECESSARY, INCREASE, DECREASE, OR ABOLISH PROFICIENCY PAY FOR ANY SUCH SKILL.

(D) THIS SECTION SHALL BE ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE UNIFORMED SERVICE UNDER HIS JURISDICTION, AND BY THE SECRETARY OF THE TREASURY FOR THE COAST GUARD WHEN THE COAST GUARD IS NOT OPERATING AS A SERVICE IN THE NAVY.

ONE OF THE ENCLOSURES RECEIVED WITH THE ASSISTANT SECRETARY'S LETTER IS A MEMORANDUM DATED JULY 17, 1958, EXPLAINING AND SUPPORTING THE PROPOSAL TO PRESCRIBE "TRANSITIONAL PROFICIENCY PAY.' WITH RESPECT TO THE NATURE OF THE PROPOSED "TRANSITIONAL PROFICIENCY PAY" AND THE BASIS FOR ITS ESTABLISHMENT, SUCH MEMORANDUM CONTAINS THE FOLLOWING EXPLANATION:

UNDER SECTION 209, AN ENLISTED MEMBER MAY BE AWARDED PROFICIENCY PAY IF HE IS FOUND TO HAVE ,SPECIAL PROFICIENCY IN A MILITARY SKILL.' THIS IS INTERPRETED AS REQUIRING A FINDING THAT THE ENLISTED MEMBER EITHER (1) IS FULLY QUALIFIED IN A CRITICAL MILITARY SKILL IN THE PAY GRADE AND SKILL- LEVEL IN WHICH HE IS SERVING, OR (2) HAS DEMONSTRATED OUTSTANDING EFFECTIVENESS IN AN ASSIGNED SKILL IRRESPECTIVE OF ITS CRITICALITY. THIS CONNECTION, IT SHOULD BE NOTED THAT IN THE ARMED FORCES THE TERM "MILITARY SKILL" REFERS TO A SPECIFIC MILITARY SPECIALTY AND SKILL-LEVEL WITHIN THAT SPECIALTY. EACH SKILL-LEVEL NORMALLY HAS A DIRECT COUNTERPART IN TERMS OF MILITARY PAY GRADES.

IT IS ANTICIPATED THAT IN SOME ARMED FORCES (E.G., THE AIR FORCE) AND IN SOME HIGHLY CRITICAL SPECIALTIES ALL FULLY QUALIFIED SPECIALISTS WILL BE ELIGIBLE TO RECEIVE AT LEAST ONE PROFICIENCY RATING. HOWEVER, UNDER THE TENTATIVE PLANS DEVELOPED BY THE ARMED FORCES, IN THE LARGE MAJORITY OF SKILLS ONLY LIMITED-PERCENTAGES OF QUALIFIED PERSONNEL WILL BE AWARDED PROFICIENCY PAY. IT WILL THEREFORE BE NECESSARY FOR THE ARMED FORCES TO IDENTIFY THE ENLISTED PERSONNEL WHO ARE MOST PROFICIENT IN THEIR RESPECTIVE SKILLS, BASED ON SERVICE-WIDE WRITTEN TESTS AND SUPERVISORY RATINGS. ALL THESE TESTS AND RATINGS WILL BE DIFFERENTIATED BY GRADE OR SKILL-LEVEL.

BECAUSE IDENTIFICATION OF THE "MOST PROFICIENT" OR "OUTSTANDING" PERSONNEL IS BASED ON COMPETITIVE RATINGS WITHIN A SPECIALTY AND SKILL LEVEL, IT IS DESIRABLE TO HAVE PROFICIENCY PAY TERMINATE UPON MILITARY GRADE ADVANCEMENT (EXCEPT FOR TRANSITIONAL PROFICIENCY PAY), TO BE REINSTITUTED IF THE MEMBER IS DETERMINED TO BE QUALIFIED FOR PROFICIENCY PAY IN HIS NEW MILITARY PAY GRADE. SUCH "REQUALIFICATION" WOULD BE AUTOMATIC AND IMMEDIATE IF THE ONLY CONDITION FOR ELIGIBILITY IS QUALIFICATION IN A CRITICAL MILITARY SKILL. ON THE OTHER, IT WOULD NOT BE AUTOMATIC OR IMMEDIATE WHERE THE NEWLY PROMOTED MEMBER MUST BERATED IN COMPARISON WITH OTHER PERSONNEL SERVING IN THE SAME PAY GRADE; IT WOULD INVOLVE A LAPSE OF TIME.

C. TRANSITIONAL PROFICIENCY PAYMENTS--- WHEN RELATED TO THE BASIC ENLISTED PAY STRUCTURE, THESE CONSIDERATIONS CREATED A STRONG NEED FOR A SYSTEM OF TRANSITIONAL PROFICIENCY PAYMENTS TO BRIDGE THE GAPS THAT WOULD OTHERWISE EXIST IN MANY CASES BETWEEN (1) THE TIME WHEN A MILITARY GRADE PROMOTION IS AWARDED TO AN INDIVIDUAL ALREADY RECEIVING PROFICIENCY PAY AND (2) THE TIME WHEN HE CAN BE RATED COMPETITIVELY AGAINST OTHER PERSONNEL IN HIS NEW PAY GRADE TO DETERMINE WHETHER HE IS ENTITLED TO A NEW FULL AWARD OF PROFICIENCY PAY IN THAT NEW GRADE.

AS SHOWN IN THE ACCOMPANYING CHART, THE INCREASES IN BASIC PAY RESULTING FROM A PROMOTION IN MILITARY PAY GRADE VARY WIDELY AND UNEVENLY BY GRADE AND YEARS OF SERVICE. THE INCREASES RANGE FROM AS LOW AS $15 PER MONTH (E5-E6, 10 YEARS OF SERVICE) TO AS MUCH AS $60 (E6-E7, 20 YEARS OR MORE OF SERVICE). IF A PROFICIENCY RATE WERE SET ABOVE $15, A SITUATION COULD WELL ARISE IN WHICH THE BASIC PAY OF SOME INDIVIDUALS WOULD BE REDUCED, ON THEIR PROMOTION, BY AS MUCH AS $135, BECAUSE THE LAW ENVISAGES THE POSSIBILITY OF A PROFICIENCY PAYMENT AS HIGH AS $150 PER MONTH. SUCH A REDUCTION IN BASIC PAY WOULD PLAINLY UNDERMINE THE INCENTIVES UPON WHICH ANY PROMOTION SYSTEM IS BASED.

THE TRANSITIONAL PROFICIENCY PAY APPROACH DEALS WITH THIS PROBLEM BY PROVIDING THAT A MEMBER WHOSE BASIC PAY ON PROMOTION IS LESS THAN THE TOTAL OF BASIC PAY PLUS PROFICIENCY PAY THAT HE WAS PREVIOUSLY RECEIVING MAY KEEP ENOUGH OF HIS CURRENT PROFICIENCY PAY TO PREVENT A CUT-BACK. THIS IS IN RECOGNITION OF HIS ESTABLISHED PROFICIENCY IN THE LOWER PAY GRADE IN THAT SKILL. THE AMOUNT OF THE PROFICIENCY RATE FOR PERSONNEL IN THIS SITUATION WOULD BE ESTABLISHED IN SCHEDULES VARYING IN RELATION TO GRADE AND LENGTH OF SERVICE. THE SCHEDULE FOR FY 1959, WHICH IS RELATED TO A STANDARD "P-1" AMOUNT OF $35, WOULD VARY FROM ABOUT $5 TO $20 PER MONTH. ADDITIONAL SCHEDULES WOULD EVENTUALLY BE REQUIRED FOR PERSONNEL RECEIVING "P-2" OR "P-3" RATINGS. HOWEVER, IT IS NOT CONTEMPLATED THAT MULTIPLE PROFICIENCY PAYMENTS WOULD BE AWARDED IN FY 1959, ALTHOUGH THIS IS ANTICIPATED IN LATER YEARS.

THE PROPOSED TRANSITIONAL PROFICIENCY APPROACH CONTEMPLATES THAT SUCH PAYMENTS WOULD BE REDUCED OR TERMINATED IF THE MEMBER'S BASIC PAY INCREASES AS A RESULT OF LONGEVITY OR FURTHER PROMOTION IN MILITARY GRADE, OR IF HE RECEIVES A FULL PROFICIENCY PAYMENT IN HIS NEW PAY GRADE. OTHER RESPECTS MAINTENANCE OF THIS TRANSITIONAL PROFICIENCY PAYMENT WOULD BE SUBJECT TO THE SAME CONDITIONS AS PRESCRIBED FOR OTHER PROFICIENCY PAYMENTS. THUS, TO CONTINUE RECEIVING TRANSITIONAL PROFICIENCY PAY, A MEMBER WHO HAD BEEN PROMOTED TO E-6 WOULD BE SUBJECT TO THE SAME PERFORMANCE STANDARDS AS AN E-5 HOLDING THE COMPARABLE FULL PROFICIENCY RATING.

SOME OF THE ARGUMENTS ADVANCED IN THE MEMORANDUM IN SUPPORT OF THE LEGALITY OF ESTABLISHING THE PROPOSED "TRANSITIONAL PROFICIENCY PAY" ARE AS FOLLOWS:

SECTION 209 DOES NOT, OF COURSE, SPECIFICALLY AUTHORIZE THE AWARD TO TRANSITIONAL PROFICIENCY PAY. NEVERTHELESS, A CLOSE EXAMINATION OF THAT SECTION AND ITS LEGISLATIVE HISTORY NOT ONLY DOES NOT DISCLOSE ANY LANGUAGE THAT FORECLOSES AN INTERPRETATION AUTHORIZING SUCH AN AWARD BUT FURNISHES POSITIVE SUPPORT FOR IT. WHETHER OR NOT CONGRESS HAD THE PARTICULAR CONTINGENCY SPECIFICALLY IN MIND, IT USED LANGUAGE SUGGESTING THAT IT INTENDED TO PROVIDE THE SECRETARY OF DEFENSE WITH A TOOL OF THE GREATEST FLEXIBILITY IN MEETING THE MYRIAD COMPETITIVE AND OTHER SITUATIONS THAT AFFECT INDIVIDUAL INCENTIVES.

SECTION 209, HAVING ESTABLISHED THREE GENERAL ZONES (P-1, P-2, AND P 3) AND THREE RESPECTIVE CEILING RATES FOR THOSE ZONES ($50, $100, AND $150), USES THE MOST GENERAL AND FLEXIBLE TERMS. WITHIN THE BASIC LIMITS JUST MENTIONED, IT CONFERS ON THE SECRETARIES CONCERNED FULL AUTHORITY TO DESIGNATE SKILLS AND TO FIX, CHANGE, OR ABOLISH PROFICIENCY PAY RATES.

INCLUDED IN ITS EXPRESS TERMS IS THE AUTHORITY TO TAKE EACH OF THESE ACTIONS WITH RESPECT TO SPECIFIC SKILLS (E.G., " HE MAY . . . INCREASE, DECREASE, OR ABOLISH PROFICIENCY PAY FOR ANY SUCH SKILL ( ITALICS SUPPLIED) ). THIS AFFIRMATIVE RECOGNITION OF THE SECRETARY'S AUTHORITY TO PRESCRIBE, WHERE APPROPRIATE, RATES VARYING ACCORDING TO SKILL IS NOWHERE NEGATED IN THE OTHER LANGUAGE OF SECTION 209. THE REFERENCE, IN SECTION 209 (A) (2), TO "A MONTHLY RATE" ( ITALICS SUPPLIED) DOES NOT LIMIT THE SECRETARY TO ONE P-1 RATE FOR ALL PERSONS AND SKILLS, BECAUSE IT IS ADDRESSED TO A SUBJECT THAT WAS PHRASED IN THE SINGULAR ( "AN ENLISTED MEMBER"). FOR A SINGLE INDIVIDUAL ENGAGED IN A SPECIFIC SKILL AT A SPECIFIC SKILL-LEVEL, CERTAINLY THERE COULD BE ONLY A SINGLE RATE. BUT THAT FACT SAYS NOTHING ABOUT THE POSSIBILITY OF DIFFERENT P-1 RATES FOR DIFFERENT PERSONS IN DIFFERENT SKILLS OR AT DIFFERENT SKILL-LEVELS. THE FACT THAT SUBSECTION (A) IS THUS PHRASED IN THE SINGULAR ALSO EXPLAINS THE REFERENCE TO "THE AMOUNT OF SUCH PAY" ( ITALICS SUPPLIED) IN THE FOURTH SENTENCE OF SUBSECTION (C). NOR CAN ANY NEGATIVE INFERENCE BE DRAWN FROM THE FACT THAT P-1, P-2, AND P-3 RESPECTIVELY CARRY SINGLE MAXIMUM RATES. THERE IS NOTHING IN THE IDEA OF A SINGLE MAXIMUM THAT SUGGESTS THAT WHAT THE SECRETARY MAY ESTABLISH SUBJECT TO THAT MAXIMUM MUST ALSO BE SINGLE, INSTEAD OF SEVERAL OR EVEN MANY. THE FACT THAT IT MIGHT WELL BE MANY WAS MADE CLEAR IN THE HEARINGS ON THE SUBJECT LEGISLATION BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES. ON PAGE 5522 OF THE PRINTED TRANSCRIPT OF THOSE HEARINGS ( NO. 76, METHOD OF COMPUTING BASIC PAY), CHAIRMAN KILDAY SAID:

" I POINT OUT THAT IS INTENDED TO BE MUCH MORE FLEXIBLE THAN THAT WHICH IS PROPOSED IN THE LANGUAGE NOW IN THE BILL, BECAUSE IT PROVIDES THAT THE PROFICIENCY PAY SHALL BE IN THE AMOUNT NOT TO EXCEED THE AMOUNT STATED IN THIS PARTICULAR PROVISION. SO THE POSSIBLE COMBINATION, I GUESS, IS PROBABLY IN THE THOUSANDS AS TO WHERE YOU WOULD GRANT PAY IN YOUR "P" DESIGNATIONS . . .

"IT SHOULD BE JUST AS FLEXIBLE AS WE CAN POSSIBLE MAKE IT, SO THAT WHATEVER THE GOING RATE IS IN A HIGHLY COMPETITIVE MARKET FOR PERSONNEL, THE DEPARTMENT WILL BE IN A POSITION TO PAY IT . . " ( ITALICS SUPPLIED.)

TO APPLY THE LEGISLATIVE TOOL HERE PROVIDED TO THE GREAT COMPLEX OF COMPETITIVE SITUATIONS IN WHICH THERE IS "A GOING RATE" COULD ONLY MEAN THAT IF WITH RESPECT TO A PARTICULAR SKILL OR SKILL-LEVEL THERE IS A GOING RATE THAT IS SIGNIFICANTLY DIFFERENT FROM THE GOING RATE FOR ANOTHER SKILL OR SKILL-LEVEL, THE SECRETARY IS AUTHORIZED, WHERE IT SEEMS DESIRABLE AND PRACTICABLE TO DO SO, TO FIX SPECIFIC PROFICIENCY PAY RATES THAT ARE DIFFERENTIATED ACCORDINGLY. ON THE BASIS OF THE STATEMENT OF THE CHAIRMAN OF THE SUBCOMMITTEE, WHO WAS THE PRIME SPONSOR OF THE PROVISION, IT SEEMS FAIR TO ASSUME THAT THE SECRETARY OF DEFENSE WAS AUTHORIZED TO TAKE ANY REASONABLE ACTION THAT CIRCUMSTANCES MIGHT MAKE APPROPRIATE, SUBJECT ONLY TO THE LIMITATION THAT HE STAY WITHIN THE "P" SYSTEM AND NOT EXCEED THE STATED CEILINGS. SECTION 209 CONFERS UPON THE SECRETARIES CONCERNED A BROAD AND FLEXIBLE AUTHORITY TO FIX PROFICIENCY PAY RATES ON THE BASIS OF PROFICIENCY AND SKILL AND AFTER CAREFUL STUDY WE BELIEVE THAT THAT STATUTORY PROVISION IS BROAD ENOUGH TO AUTHORIZE THE SECRETARIES, SO LONG AS THE SPECIFIED MAXIMUM RATES ARE NOT EXCEEDED, TO FIX A DIFFERENT RATE FOR EACH "MILITARY SKILL," THAT IS, FOR EACH SKILL LEVEL WITHIN EACH MILITARY SPECIALTY. UNDER THAT SECTION, AN ENLISTED MEMBER IN A BASIC PAY STATUS WHO IS "DESIGNATED AS POSSESSING SPECIAL PROFICIENCY IN A MILITARY SKILL" MAY BE PAID PROFICIENCY PAY AT A RATE PRESCRIBED FOR HIS DESIGNATED SKILL AND THE PROFICIENCY RATING TO WHICH HE IS ASSIGNED. IF A MEMBER IS SO DESIGNATED AND SO ASSIGNED, HE QUALIFIES FOR PROFICIENCY PAY AND, IN OUR VIEW, HIS CONTINUED QUALIFICATION FOR PROFICIENCY PAY UPON PROMOTION TO A HIGHER GRADE WOULD DEPEND UPON WHETHER HE CONTINUED TO BE SO DESIGNATED AND ASSIGNED OR WAS AGAIN DESIGNATED AS HAVING SPECIAL PROFICIENCY IN THE SAME OR ANOTHER MILITARY SKILL AND WAS AGAIN ASSIGNED TO A PROFICIENCY RATING. IF, ON THE BASIS OF HIS DESIGNATION AND ASSIGNMENT, HE QUALIFIED FOR PROFICIENCY PAY, THEN HE PLAINLY WOULD BE ENTITLED, UNDER THE LAW, TO EXACTLY THE SAME PROFICIENCY PAY AS THAT FIXED FOR PAYMENT TO OTHERS DESIGNATED AS POSSESSING THE SAME MILITARY SKILL AND ASSIGNED TO THE SAME PROFICIENCY RATING. IF HE CEASES TO BE DESIGNATED AS POSSESSING SPECIAL PROFICIENCY IN A MILITARY SKILL AND TO BE ASSIGNED TO A PROFICIENCY RATING, IT SEEMS OBVIOUS THAT HE WOULD CEASE TO BE ENTITLED, UNDER THE LAW, TO ANY PROFICIENCY PAY. IN OTHER WORDS, A MAN IS EITHER FULLY QUALIFIED FOR PROFICIENCY PAY BASED ON HIS PROFICIENCY AND SKILL OR HE IS NOT QUALIFIED FOR PROFICIENCY PAY. HENCE, IT IS NOT UNDERSTOOD HOW IT WOULD BE LEGALLY TENABLE, AS URGED IN THE MEMORANDUM OF JULY 17, 1958, TO CONSTRUE SECTION 209 AS AUTHORIZING THE PAYMENT OF SO-CALLED "TRANSITIONAL PROFICIENCY PAY" WHICH IS MEASURED NOT SOLELY ON THE BASIS OF PROFICIENCY OR SKILL (AS CLEARLY CONTEMPLATED BY THE STATUTE) BUT PRINCIPALLY ON THE BASIS THAT THE INCREASE IN BASIC PAY RESULTING FROM PROMOTION IN GRADE, IN CERTAIN INSTANCES, IS INSUFFICIENT TO INSURE AN INCREASE IN TOTAL PAY. AS A MATTER OF FACT, THE "TRANSITIONAL PROFICIENCY PAY," INCIDENT TO A PARTICULAR PROMOTION, WOULD BECOME LESS AND LESS AS THE MAN'S LONGEVITY (AND PRESUMABLY, IN MANY INSTANCES, HIS EXPERIENCE IN HIS MILITARY SKILL) WOULD INCREASE. THUS, WHILE WE AGREE THAT THE AUTHORITY CONFERRED BY SECTION 209 IS BROAD AND FLEXIBLE WITH RESPECT TO BOTH THE NUMBER OF PROFICIENCY PAY RATES AND THE AMOUNT OF SUCH RATES, WE FIND NO AUTHORITY IN SUCH SECTION FOR ,PROFICIENCY" PAY RATES TO BE BASED ON CONSIDERATIONS OTHER THAN PROFICIENCY AND SKILL. IT WOULD NOT BE CONSISTENT WITH EITHER THE LANGUAGE OR THE SPIRIT OF THAT SECTION TO PERMIT IT TO BE USED AS AUTHORITY FOR PRESCRIBING, BY REGULATION, A SCHEDULE OF PAY RATES IN THE NATURE OF "SAVED PAY" RATES BASED ON THE DIFFERENCE BETWEEN PAST TOTAL PAY AND PRESENT BASIC PAY RATHER THAN CURRENT PROFICIENCY IN THE GRADE, RATING AND MILITARY SKILL ACTUALLY HELD, ASSIGNED AND DESIGNATED.

WE HAVE CAREFULLY CONSIDERED THE LEGISLATIVE HISTORY OF SECTION 209 AND ALL OF THE POLICY, COST, AND LEGAL CONSIDERATIONS SET FORTH AND DISCUSSED IN THE ABOVE-QUOTED MEMORANDUM, BUT WE ARE CONSTRAINED TO HOLD THAT SUCH SECTION DOES NOT AUTHORIZE THE ESTABLISHMENT OF A SCHEDULE OF ,TRANSITIONAL PROFICIENCY PAY" RATES OF THE NATURE DESCRIBED IN THAT MEMORANDUM.