B-151568, JUNE 28, 1963, 42 COMP. GEN. 750

B-151568: Jun 28, 1963

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WAS OCCUPYING PUBLIC QUARTERS SO THAT HIS MONTHLY TAKE HOME PAY. IS GREATER THAN THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE IS ENTITLED TO HAVE THE ACTUAL CONDITIONS OF THE SERVICE CONSIDERED IN DETERMINING THE AMOUNT OF TOTAL COMPENSATION UNDER THE SAVINGS PROVISIONS OF 10 U.S.C. 5596 (F) AS WELL AS UNDER THE TEMPORARY APPOINTMENT. HE MAY CONTINUE TO RECEIVE THE GREATER TAKE-HOME PAY UNDER HIS PERMANENT GRADE UNTIL SUCH TIME AS PUBLIC QUARTERS ARE NO LONGER AVAILABLE AND IT IS TO HIS ADVANTAGE TO ELECT THE PAY AND ALLOWANCES OF A LIEUTENANT. 1963: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. IN THE SECOND INDORSEMENT IT IS REPORTED THAT LIEUTENANT STONE WAS FORMERLY A CHIEF WARRANT OFFICER.

B-151568, JUNE 28, 1963, 42 COMP. GEN. 750

PAY - PROMOTIONS - TEMPORARY - SAVED PAY - ITEMS FOR INCLUSION OR EXCLUSION A NAVY CHIEF WARRANT OFFICER WHO, WHEN GIVEN A TEMPORARY APPOINTMENT AS LIEUTENANT, WAS OCCUPYING PUBLIC QUARTERS SO THAT HIS MONTHLY TAKE HOME PAY, WITHOUT THE QUARTERS ALLOWANCE, IS GREATER THAN THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE IS ENTITLED TO HAVE THE ACTUAL CONDITIONS OF THE SERVICE CONSIDERED IN DETERMINING THE AMOUNT OF TOTAL COMPENSATION UNDER THE SAVINGS PROVISIONS OF 10 U.S.C. 5596 (F) AS WELL AS UNDER THE TEMPORARY APPOINTMENT, AND, THEREFORE, HE MAY CONTINUE TO RECEIVE THE GREATER TAKE-HOME PAY UNDER HIS PERMANENT GRADE UNTIL SUCH TIME AS PUBLIC QUARTERS ARE NO LONGER AVAILABLE AND IT IS TO HIS ADVANTAGE TO ELECT THE PAY AND ALLOWANCES OF A LIEUTENANT.

TO LIEUTENANT (JG) D. E. STONE, DEPARTMENT OF THE NAVY, JUNE 28, 1963:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1963, WITH ENCLOSURE INCLUDING A COPY OF YOUR LETTER OF FEBRUARY 20, 1963, FORWARDED BY

SECOND INDORSEMENT DATED MAY 16, 1963, OF THE COMPTROLLER OF THE NAVY UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-704, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT ROBERT S. STONE, 203281, USN, WITH SAVED PAY OF HIS FORMER RANK, CWO (W-4) OR WITH THE PAY AND ALLOWANCES OF A LIEUTENANT.

IN THE SECOND INDORSEMENT IT IS REPORTED THAT LIEUTENANT STONE WAS FORMERLY A CHIEF WARRANT OFFICER, W-4, BY PERMANENT APPOINTMENT AND THAT UNDER AUTHORITY OF 10 U.S.C. 5596 HE RECEIVED A TEMPORARY APPOINTMENT AS LIEUTENANT, U.S. NAVY, EFFECTIVE DECEMBER 27, 1960.

IN YOUR LETTER IT IS STATED THAT IN ACCORDANCE WITH PARAGRAPH 1044022-2C (2) OF THE NAVY COMPTROLLER MANUAL WHEN THE PAY AND ALLOWANCES OF A MEMBER'S RANK EXCEED THOSE OF HIS SAVED PAY, HE IS TO BE CREDITED WITH THE RATES OF PAY FOR HIS PRESENT RANK. FURTHER, IT IS STATED THAT WHEN LIEUTENANT STONE WAS PROMOTED FROM CWO (W-4) TO THE RANK OF LIEUTENANT HE ELECTED SAVED PAY; THAT AT THAT TIME HIS BASIC PAY AS A CWO (W-4) WAS $543; THAT BASIC ALLOWANCE FOR QUARTERS WAS $119.70 AND SUBSISTENCE ALLOWANCE WAS $47.88. AT THAT TIME HIS PAY AND ALLOWANCES AS A LIEUTENANT WOULD HAVE BEEN LESS THAN AS A CHIEF WARRANT OFFICER. ALSO, IT IS SHOWN THAT A COMPARISON OF SAVED PAY FOR LIEUTENANT STONE AND THE PRESENT PAY OF A LIEUTENANT IS AS FOLLOWS:

CHART

W-4 LIEUTENANT

$543.00 - BASIC PAY - $535.00

119.70 - BAQ - 130.05

47.88 - BAS - 47.00

$710.58 $712.93

IT IS POINTED OUT THAT THE MEMBER'S SAVED PAY IS NOW $2.35 LESS THAN THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED AS A LIEUTENANT BUT THAT SINCE THE MEMBER IS CURRENTLY RESIDING IN NAVY PUBLIC QUARTERS WITH HIS DEPENDENTS HIS BASIC ALLOWANCE FOR QUARTERS IS CHECKED AND, THEREFORE, EXCLUDING THE BASIC ALLOWANCE FOR QUARTERS, HIS TAKE-HOME PAY IS GREATER IF COMPUTED ON THE SAVED PAY OF A CHIEF WARRANT OFFICER RATHER THAN AS A LIEUTENANT. YOUR QUESTION IS WHETHER UNDER THESE CIRCUMSTANCES LIEUTENANT STONE MAY ELECT TO CONTINUE DRAWING SAVED PAY AS LONG AS HE IS RESIDING IN PUBLIC QUARTERS OR MUST HE BE CREDITED WITH A LIEUTENANT'S PAY.

SECTION 5596 (F) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

(F) TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS. A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THIS SECTION MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT OR ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

IN OUR DECISION OF APRIL 12, 1962, B-148145 (41 COMP. GEN. 663), COPY ENCLOSED, THE THIRD QUESTION CONCERNED A COMMISSIONED WARRANT OFFICER (W- 4) WHO RECEIVED A TEMPORARY APPOINTMENT AS LIEUTENANT (O 3E). AS A CWO (W -4) HE WAS ENTITLED TO BASIC PAY AT $528, SUBSISTENCE ALLOWANCE AT $47.88 AND BASIC ALLOWANCE FOR QUARTERS AT $119.70, A TOTAL OF $695.58. AS A LIEUTENANT (O-3E) HE WAS ENTITLED TO BASIC PAY AT $535, SUBSISTENCE ALLOWANCE AT $47.88 AND BASIC ALLOWANCE FOR QUARTERS AT $102.60, A TOTAL OF $685.48. ON SUCH BASIS THE MEMBER WAS ENTITLED TO THE SAVED PAY AND ALLOWANCES OF A CWO (W-4). IF AT THE TIME OF HIS TEMPORARY APPOINTMENT, HOWEVER, HE WAS ASSIGNED PUBLIC QUARTERS, THE AMOUNT OF SAVED PAY AND ALLOWANCES AS A CWO (W-4) FOR CREDIT TO HIS ACCOUNT WOULD HAVE BEEN $575.88 ($528 BASIC PAY AND $47.88 SUBSISTENCE ALLOWANCE) OR $7 LESS A MONTH THAN THE PAY AND ALLOWANCES OF $582.88 ($535 BASIC PAY AND $47.88 SUBSISTENCE ALLOWANCE) FOR CREDIT TO HIS ACCOUNT AS A LIEUTENANT. THESE CIRCUMSTANCES WE CONCLUDE THAT THE SAVINGS PROVISIONS OF THE STATUTE UNDER WHICH THE OFFICER WAS TEMPORARILY PROMOTED DID NOT DEPRIVE HIM, WHILE OCCUPYING GOVERNMENT QUARTERS, FROM RECEIVING THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE SINCE THE ACTUAL AMOUNT PAYABLE TO HIM OR FOR CREDIT TO HIS ACCOUNT ON THAT BASIS WOULD EXCEED THE AMOUNT HE WOULD RECEIVE ON A SAVED PAY BASIS. THIS WAS SO EVEN THOUGH THE PAY AND ALLOWANCES OF THE PERMANENT GRADE WOULD HAVE EXCEEDED THOSE OF THE TEMPORARY GRADE IF THE QUARTERS ALLOWANCE HAD BEEN PAYABLE.

THE CIRCUMSTANCES IN LIEUTENANT STONE'S CASE PRESENT THE REVERSE OF THE SITUATION CONSIDERED IN THE ABOVE DECISION. THAT IS, WHILE LIEUTENANT STONE OCCUPIES PUBLIC QUARTERS THE MONTHLY AMOUNT OF HIS TAKE-HOME PAY AND ALLOWANCES BASED ON THE PERMANENT GRADE OF CWO (W-4) IS $590.88 ($543 BASIC PAY AND $47.88 SUBSISTENCE ALLOWANCE) OR $8 MORE THAN THE PAY AND ALLOWANCE OF $582.88 ($535 BASIC PAY AND $47.88 SUBSISTENCE ALLOWANCE) HE WOULD RECEIVE ON THE BASIS OF HIS TEMPORARY GRADE. SINCE QUARTERS ALLOWANCE IS NOT PAYABLE WHEN QUARTERS IN KIND ARE FURNISHED AND SINCE THE ACTUAL CONDITIONS OF SERVICE MUST BE CONSIDERED IN DETERMINING THE AMOUNT OF TOTAL COMPENSATION UNDER THE SAVINGS PROVISIONS AS WELL AS UNDER THE TEMPORARY APPOINTMENT, THE OFFICER MAY CONTINUE TO RECEIVE THE GREATER TAKE-HOME PAY UNTIL SUCH TIME AS CONDITIONS CHANGE AT WHICH TIME HE MAY MAKE ANOTHER ELECTION.

BASED ON THE FOREGOING, LIEUTENANT STONE MAY CONTINUE TO RECEIVE SAVED PAY UNTIL SUCH TIME AS PUBLIC QUARTERS ARE NO LONGER AVAILABLE, AND IT IS TO HIS ADVANTAGE TO ELECT TO TAKE THE PAY AND ALLOWANCES OF A LIEUTENANT.