B-142415, SEP. 9, 1960

B-142415, SEP. 9, 1960

TO MR. HUBERT CRAVEN, CHSCLK, USCG, U.S. COAST GUARD HEADQUARTERS:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16, 1960, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 4, 1960, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR SAVED PAY AS CHIEF YEOMAN, UNITED STATES COAST GUARD, FOR THE PERIOD MAY 1, 1951, TO APRIL 30, 1952. THE STATED BASIS FOR YOUR REQUEST FOR RECONSIDERATION IS THAT YOUR HOSPITALIZATION ON APRIL 30, 1951, WAS NOT A "PLANNED CHANGE OF EVENTS" SINCE YOUR ORDERS TRANSFERRING YOU TO A HOSPITAL FOR TREATMENT WERE FOR"TEMPORARY ADDITIONAL DUTY" AND THAT UNDER SUCH ORDERS YOU WERE REQUIRED TO RETURN TO YOUR PERMANENT DUTY STATION.

THE RECORD SHOWS THAT YOU WERE ADVANCED FROM CHIEF PETTY OFFICER, E 7, TO SHIP'S CLERK, W-1, EFFECTIVE MAY 1, 1951, AND IT IS INDICATED THAT YOU WERE CREDITED WITH BASIC ALLOWANCE FOR SUBSISTENCE THROUGH APRIL 30, 1951. AT 0800 ON APRIL 30, 1951, WHILE ASSIGNED TO THE COAST GUARD RECRUITING STATION, LOS ANGELES, CALIFORNIA, YOU DEPARTED THAT STATION FOR INPATIENT TREATMENT AT THE U.S. MARINE HOSPITAL, SAN FRANCISCO, CALIFORNIA, RETURNING TO THE RECRUITING STATION AT LOS ANGELES AT 0830 ON JUNE 5, 1951, ON COMPLETION OF TREATMENT. ON THE SAME DAY YOU DEPARTED THAT STATION ON CONVALESCENT LEAVE, RETURNING FROM SUCH LEAVE AT 0900 ON JULY 6, 1951. THE RECORD SHOWS FURTHER THAT AT 1300 ON JULY 9, 1951, YOU DEPARTED THE RECRUITING STATION AT LOS ANGELES ON PERMANENT CHANGE OF STATION TO COMMANDER 12TH COAST GUARD DISTRICT, SAN FRANCISCO.

IN REFERRING YOUR CLAIM TO OUR CLAIMS DIVISION FOR SETTLEMENT THE UNITED STATES COAST GUARD EXPRESSED THE VIEW THAT CREDIT FOR BASIC ALLOWANCE FOR SUBSISTENCE SHOULD HAVE BEEN TERMINATED AS OF 0800 ON APRIL 30, 1951, WHEN YOU ENTERED A TRAVEL STATUS ON YOUR DEPARTURE FROM YOUR PERMANENT DUTY STATION TO THE U.S. MARINE HOSPITAL AT SAN FRANCISCO, AND THAT, THEREFORE, YOU CANNOT BE CONSIDERED AS BEING IN RECEIPT OF BASIC ALLOWANCE FOR SUBSISTENCE AT THE TIME OF YOUR APPOINTMENT TO THE RANK OF SHIP'S CLERK, W -1.

INFORMAL ADVICE FROM HEADQUARTERS, UNITED STATES COAST GUARD, IS TO THE EFFECT THAT YOUR APPOINTMENT AS SHIP'S CLERK, W-1, EFFECTIVE MAY 1, 1951, WAS PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED. INSOFAR AS THE QUESTION OF SAVED PAY AND ALLOWANCES IS CONCERNED, SECTION 7 (A) OF THE ACT, PRIOR TO THE AMENDMENT, PROVIDED, IN PART, AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.'

HOWEVER, THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, AMENDED THE ABOVE- QUOTED PROVISO TO READ AS FOLLOWS:

"THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT. * * *"

IT WILL BE SEEN THAT THE AMENDING ACT OF NOVEMBER 30, 1942, MATERIALLY CHANGED THE SAVINGS CLAUSE. WHILE THAT PROVISION AS ORIGINALLY ENACTED SAVED FROM REDUCTION THE PAY AND ALLOWANCES TO WHICH THE MEMBER "WOULD HAVE BEEN ENTITLED" HAD HE NOT BEEN SO TEMPORARILY APPOINTED, THE AMENDING PROVISO SAVED FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT ONLY THE PAY AND ALLOWANCES TO WHICH THE MEMBER WAS ENTITLED AT THE TIME OF HIS TEMPORARY APPOINTMENT. 23 COMP. GEN. 21. THE CITED SECTIONS WERE REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641. THEY WERE, HOWEVER, IN EFFECT ON THE DATE OF YOUR TEMPORARY APPOINTMENT ON MAY 1, 1951.

UNDER THE FACTS IN THIS CASE THERE IS FOR CONSIDERATION THE QUESTION WHETHER UNDER THE AMENDING ACT OF NOVEMBER 30, 1942, THERE WAS "SAVED" TO YOU ANY PAY OR ALLOWANCES ON THE DATE OF YOUR PROMOTION. YOU CLAIMED THAT YOU WERE ENTITLED TO "SAVED" PAY AND ALLOWANCES AMOUNTING TO $4,544.10 FOR THE PERIOD MAY 1, 1951, THROUGH APRIL 30, 1952, WHEREAS YOU WERE CREDITED WITH PAY AND ALLOWANCES AMOUNTING TO ONLY $4,372.20--- A DIFFERENCE OF $171.90. THE INDICATED AMOUNT OF $4,544.10 CONSISTS OF PAY AMOUNTING TO $2,910.60, BASIC ALLOWANCE FOR QUARTERS AMOUNTING TO $810, AND BASIC ALLOWANCE FOR SUBSISTENCE AMOUNTING TO $823.50--- 366 DAYS AT $2.25 PER DAY.

IT IS OUR VIEW THAT YOUR ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE TERMINATED AT 0800 ON APRIL 30, 1951--- THE HOUR OF YOUR DEPARTURE FROM THE RECRUITING STATION AT LOS ANGELES FOR INPATIENT TREATMENT AT THE U.S. MARINE HOSPITAL, SAN FRANCISCO, CALIFORNIA. IN OTHER WORDS, AT THE HOUR OF YOUR DEPARTURE YOU BECAME ENTITLED TO A PER DIEM ALLOWANCE AND YOUR RIGHT TO A SUBSISTENCE CEASED. SEE PARAGRAPH 2B01020, COMPTROLLER'S MANUAL, UNITED STATES COAST GUARD. IT FOLLOWS THAT AS OF MIDNIGHT APRIL 30, 1951, YOU WERE ENTITLED TO PAY AND ALLOWANCES AS A CHIEF YEOMAN AT THE MONTHLY RATE OF $310.05 CONSISTING OF PAY AT THE RATE OF $242.55 AND BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH A DEPENDENT WIFE AT THE RATE OF $67.50. EFFECTIVE MAY 1, 1951, HOWEVER, YOU WERE ENTITLED AS A WARRANT OFFICER, W-1, TO PAY AT THE MONTHLY RATE OF $247.35, BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH A DEPENDENT WIFE AT THE RATE OF $75 AND SUBSISTENCE ALLOWANCE AT THE RATE OF $42, SINCE AN OFFICER IS AT ALL TIMES ENTITLED TO A SUBSISTENCE ALLOWANCE. THEREFORE, ON THE EFFECTIVE DATE OF YOUR APPOINTMENT AS SHIP'S CLERK, YOUR MONTHLY RATE OF PAY AND ALLOWANCES FOR THAT POSITION AMOUNTED TO $364.35, WHICH, OF COURSE, EXCEEDED THE PAY AND ALLOWANCES TO WHICH YOU WERE ENTITLED AS CHIEF YEOMAN ($310.05). HENCE, THE PAY AND ALLOWANCES OF SUCH ENLISTED GRADE WERE NOT SAVED TO YOU.

IN OUR DECISION OF MAY 15, 1942, 21 COMP. GEN. 1012, IT WAS HELD THAT UNDER THE SAVINGS PROVISIONS OF SECTION 7 OF THE ACT OF JULY 24, 1941, THE MONEY ALLOWANCES FOR QUARTERS AND SUBSISTENCE APPLICABLE TO AN APPOINTEE'S PERMANENT AND TEMPORARY GRADES ARE FOR INCLUSION IN THE ALLOWANCES CONTEMPLATED BY THE SECTION TO BE USED FOR COMPARISON PURPOSES IN DETERMINING WHICH OF THE GRADES CARRIES THE HIGHER TOTAL PAY AND ALLOWANCES. HOWEVER, IT WAS FURTHER STATED THAT IF AN ENLISTED MAN WITHOUT DEPENDENTS WAS ASSIGNED TO DUTY ASHORE AT A PLACE WHERE SUCH AN ENLISTED MAN OF THE GRADE HELD IMMEDIATELY PRIOR TO ACCEPTANCE OF HIS COMMISSION WOULD BE FURNISHED QUARTERS, THE QUARTERS ALLOWANCE SHOULD NOT BE INCLUDED IN THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE FOR COMPARISON WITH HIS PAY AND ALLOWANCES AS AN OFFICER. LIKEWISE, IF AN ENLISTED MAN'S DUTY ASSIGNMENT WAS SUCH THAT HE WAS NOT ENTITLED TO A SUBSISTENCE ALLOWANCE AT THE TIME OF HIS APPOINTMENT AS AN OFFICER THEN THE SUBSISTENCE ALLOWANCE MAY NOT BE INCLUDED IN THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE FOR COMPARISON PURPOSES IN DETERMINING HIS RIGHT TO SAVED PAY.

ACCORDINGLY, IT IS OUR VIEW THAT THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 4, 1960, WAS CORRECT AND THAT ACTION IS SUSTAINED.