B-154481, SEPTEMBER 2, 1964, 44 COMP. GEN. 121

B-154481: Sep 2, 1964

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PAY - PROMOTIONS - TEMPORARY - SAVED PAY - ITEMS FOR INCLUSION OR EXCLUSION A WARRANT OFFICER IN THE NAVY WHO WAS NOT TRANSFERRED TO AN OVERSEAS DUTY STATION UNTIL SOME TIME AFTER HE RECEIVED A TEMPORARY APPOINTMENT AS LIEUTENANT (JG) ENTITLING HIM TO SAVED PAY AND ALLOWANCES MAY NOT HAVE THE SAVED PAY AND ALLOWANCE PROVISIONS IN 10 U.S.C. 5596 (F) CONSTRUED AS AUTHORIZING A SUBSEQUENT INCREASE IN THE AMOUNT OF SAVED PAY AND ALLOWANCES BY REASONS OF THE CHANGED CONDITIONS OF OVERSEAS DUTY AND. ALTHOUGH COST-OF-LIVING ALLOWANCES AND FAMILY SEPARATION ALLOWANCES ARE FOR CONSIDERATION IN COMPUTING SAVED PAY. IS NOT ENTITLED TO A COST-OF-LIVING ALLOWANCE AND FAMILY SEPARATION ALLOWANCE IN ADDITION TO THE SAVED PAY AND ALLOWANCES HE WAS ENTITLED TO AT THE TIME OF THE TEMPORARY PROMOTION.

B-154481, SEPTEMBER 2, 1964, 44 COMP. GEN. 121

PAY - PROMOTIONS - TEMPORARY - SAVED PAY - ITEMS FOR INCLUSION OR EXCLUSION A WARRANT OFFICER IN THE NAVY WHO WAS NOT TRANSFERRED TO AN OVERSEAS DUTY STATION UNTIL SOME TIME AFTER HE RECEIVED A TEMPORARY APPOINTMENT AS LIEUTENANT (JG) ENTITLING HIM TO SAVED PAY AND ALLOWANCES MAY NOT HAVE THE SAVED PAY AND ALLOWANCE PROVISIONS IN 10 U.S.C. 5596 (F) CONSTRUED AS AUTHORIZING A SUBSEQUENT INCREASE IN THE AMOUNT OF SAVED PAY AND ALLOWANCES BY REASONS OF THE CHANGED CONDITIONS OF OVERSEAS DUTY AND, THEREFORE, ALTHOUGH COST-OF-LIVING ALLOWANCES AND FAMILY SEPARATION ALLOWANCES ARE FOR CONSIDERATION IN COMPUTING SAVED PAY, THE MEMBER, UPON TRANSFER OVERSEAS, IS NOT ENTITLED TO A COST-OF-LIVING ALLOWANCE AND FAMILY SEPARATION ALLOWANCE IN ADDITION TO THE SAVED PAY AND ALLOWANCES HE WAS ENTITLED TO AT THE TIME OF THE TEMPORARY PROMOTION, BUT IS ONLY ENTITLED TO SUCH ALLOWANCES AS A PART OF THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE.

TO LIEUTENANT D. D. CULLEN, DEPARTMENT OF THE NAVY, SEPTEMBER 2, 1964:

THERE HAS BEEN RECEIVED BY SECOND INDORSEMENT OF THE COMPTROLLER OF THE NAVY DATED JUNE 15, 1964, YOUR LETTER DATED APRIL 28, 1964, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT (JG) RICHARD EARLE OTIS (SC), USN, WITH COST-OF LIVING ALLOWANCES AND FAMILY SEPARATION ALLOWANCE WHILE STATIONED IN VIETNAM. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-N-779, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

LIEUTENANT OTIS REQUESTS PAYMENT OF A COST-OF-LIVING ALLOWANCE AND FAMILY SEPARATION ALLOWANCE COMMENCING FEBRUARY 6, 1964. IT IS REPORTED THAT ON JANUARY 11, 1963, THE OFFICER ACCEPTED AN APPOINTMENT TO LIEUTENANT (JG) IN THE SUPPLY CORPS, U.S. NAVY, UNDER THE AUTHORITY OF 10 U.S.C. 5596, FOR TEMPORARY SERVICE, FOR LIMITED DUTY ONLY, TO RANK FROM DECEMBER 30, 1962. AT THAT TIME HE WAS A WARRANT OFFICER, W 4, ON DUTY IN THE UNITED STATES AND APPARENTLY WAS PAID THE SAVED PAY AND ALLOWANCES OF THAT RANK FROM DATE OF PROMOTION. IT IS INDICATED HE WAS SUBSEQUENTLY TRANSFERRED TO DUTY AT VIETNAM, AND HE CONTENDS THAT HE IS ENTITLED TO COST-OF-LIVING AND FAMILY SEPARATION ALLOWANCE PAYMENTS FROM FEBRUARY 6, 1964, UPON REPORTING TO NAVY SECTION, MAAG, VIETNAM.

THE PERTINENT STATUTORY PROVISION, 10 U.S.C. 5596 (F), PROVIDES THAT A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THAT 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. COST-OF-LIVING ALLOWANCES, WHICH ARE PART OF STATION ALLOWANCE PAYMENTS TO MEMBERS ON PERMANENT ASSIGNMENT OUTSIDE THE UNITED STATES, ARE AUTHORIZED UNDER 37 U.S.C. 405 WHICH PROVIDES THAT WITHOUT REGARD TO THE MONETARY LIMITATIONS OF TITLE 37, THE SECRETARY CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING, TO MEMBERS OF THE UNIFORMED SERVICES UNDER HIS JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE AND OTHER NECESSARY INCIDENTAL EXPENSES TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. FAMILY SEPARATION ALLOWANCES ARE AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 427 AS ADDED BY SECTION 11 OF PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, 77 STAT. 217. SUBSECTION 427 (B) PROVIDES THAT, IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THAT TITLE, INCLUDING SUBSECTION 427 (A), A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO $30 UNDER THE CONDITIONS STATED THEREIN.

THE SAVINGS PROVISIONS IN 10 U.S.C. 5596 (F) WERE DERIVED FROM THE LAST PROVISO OF SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, 34 U.S.C. 3C (E) (1952 ED.), THE WORDING OF WHICH IS SIMILAR TO THAT OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, 34 U.S.C. 350F (A) (1952 ED.). CONSTRUING SUCH STATUTORY PROVISIONS WE HAVE HELD THAT UPON TEMPORARY APPOINTMENT A MEMBER'S PAY AND ALLOWANCES OF HIS PERMANENT GRADE ARE SAVED FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT, BUT ARE NOT SAVED FROM REDUCTION BY REASON OF SUBSEQUENT CHANGES IN CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. THAT IS, THE STATUTE DOES NOT OPERATE TO SAVE OR CONTINUE ITEMS OF PAY AND ALLOWANCES SUCH AS INCREASED PAY FOR FLYING DUTY, PROFICIENCY PAY AND RENTAL AND SUBSISTENCE ALLOWANCES TO WHICH THE MEMBER WOULD NOT BE ENTITLED, EITHER IN HIS PERMANENT STATUS OR IN HIS TEMPORARY STATUS, UNDER THE CONDITIONS OF HIS ACTUAL SUBSEQUENT SERVICE. FURTHERMORE, WHILE THE PAY AND ALLOWANCES TO WHICH THE MEMBER WAS ENTITLED IN HIS PERMANENT GRADE AT THE TIME OF HIS TEMPORARY APPOINTMENT ARE NOT TO BE REDUCED BY REASON OF THE TEMPORARY APPOINTMENT, THE SAVINGS PROVISION DOES NOT AUTHORIZE A SUBSEQUENT INCREASE IN THE AMOUNT OF PAY AND ALLOWANCES OF THE PERMANENT GRADE SO THAT THE MEMBER WOULD RECEIVE MORE THAN HE WAS ENTITLED TO AT THE TIME OF THE TEMPORARY APPOINTMENT AND ALSO MORE THAN THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IN HIS TEMPORARY POSITION. 23 COMP. GEN. 21; ID. 147; 32 ID. 55; 41 ID. 663; 42 ID. 750.

BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE ARE ITEMS OF PAY AND ALLOWANCES THAT ENTER INTO THE COMPUTATION OF SAVED PAY UNDER THE PROVISIONS OF 10 U.S.C. 5596 (F). IT FOLLOWS THAT STATION ALLOWANCES AUTHORIZED UNDER 37 U.S.C. 405, WHICH ARE IN THE NATURE OF ADDITIONAL QUARTERS AND SUBSISTENCE ALLOWANCES PAYABLE TO MEMBERS WHO ARE ON DUTY AT A STATION OUTSIDE THE UNITED STATES, AS WELL AS FAMILY SEPARATION ALLOWANCES UNDER THE PROVISIONS OF 37 U.S.C. 427 (A) AND (B), WHICH ALSO ARE IN THE NATURE OF ADDITIONAL QUARTERS ALLOWANCES, MUST ALSO BE CONSIDERED AS PART OF THE TOTAL PAY AND ALLOWANCES IN COMPUTING ENTITLEMENT OF SAVED PAY, IN THE ABSENCE OF ANY STATUTE SPECIFICALLY AUTHORIZING SUCH ALLOWANCES IN ADDITION TO THE MEMBER'S PAY AND ALLOWANCES UNDER THE SAVINGS PROVISIONS OF SECTION 5596 (F). WE FIND NO BASIS TO CONCLUDE THAT EITHER THE PHRASE ,WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THIS TITLE" AS CONTAINED IN 37 U.S.C. 405, OR THE PHRASE "IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, INCLUDING SUBSECTION (A) OF THIS SECTION" AS CONTAINED IN 37 U.S.C. 427 (B), INDICATE AN INTENT BY THE CONGRESS TO EXEMPT THESE ALLOWANCES FROM THE DETERMINATION OF ENTITLEMENT TO SAVED PAY. ACCORDINGLY, LIEUTENANT OTIS IS NOT ENTITLED TO COST-OF-LIVING ALLOWANCE AND FAMILY SEPARATION ALLOWANCE IN ADDITION TO THE SAVED PAY AND ALLOWANCES TO WHICH HE IS OTHERWISE ENTITLED WHILE ON DUTY AT VIETNAM, SUCH ALLOWANCES BEING FOR PAYMENT, OF OTHERWISE PROPER, ONLY AS A PART OF THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE.