B-159860, SEPTEMBER 23, 1966, 46 COMP. GEN. 248

B-159860, SEPTEMBER 23, 1966, 46 COMP. GEN. 248

UNIFORMS - MILITARY PERSONNEL - OFFICERS - TEMPORARY - SAVED PAY AND ALLOWANCES ELECTION. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES TEMPORARILY APPOINTED TO THE RANK OF WARRANT OFFICER UNDER 10 U.S.C. 5596, WHO ELECTS TO RECEIVE THE SAVED PAY AND ALLOWANCES OF HIS ENLISTED GRADE IS ENTITLED TO THE INITIAL UNIFORM ALLOWANCES AUTHORIZED BY 37 U.S.C. 415/E) FOR OFFICERS. THE UNIFORM ALLOWANCE, A SPECIAL ALLOWANCE THAT IS NOT PART OF THE BASIC PAY AND ALLOWANCES OF EITHER SAVED PAY OR OFFICER PAY AND THEREFORE NOT FOR CONSIDERATION IN MAKING THE COMPARISON CONTEMPLATED BY 10 U.S.C. 5596/F) BETWEEN THE MONTHLY BASIC PAY AND ALLOWANCES OF A MEMBER'S PERMANENT ENLISTED GRADE AND HIS TEMPORARY OFFICER GRADE, BUT INTENDED AS REIMBURSEMENT FOR UNIFORMS REQUIRED TO BE WORN AS A TEMPORARY OFFICER, IS PAYABLE WITHOUT REGARD TO THE PAY AND ALLOWANCES ELECTED BY A MEMBER TEMPORARILY APPOINTED TO AN OFFICER GRADE.

TO MAJOR K. F. MAY, UNITED STATES MARINE CORPS, SEPTEMBER 23, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1966, YOUR REFERENCE KFM/BG 7220, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF THE INITIAL UNIFORM ALLOWANCE TO WARRANT OFFICER WALTER STIPANOVICH, 099413, UNITED STATES MARINE CORPS, UPON HIS FIRST TEMPORARY APPOINTMENT TO WARRANT RANK FROM AN ENLISTED GRADE. YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED AUGUST 8, 1966, AND WAS ASSIGNED CONTROL NUMBER DO-MC-919 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT WARRANT OFFICER STIPANOVICH WAS PROMOTED TO HIS PRESENT RANK ON JUNE 30, 1966, UNDER AUTHORITY OF 10 U.S.C. 5596 AND UPON ACCEPTANCE OF HIS APPOINTMENT, HE ELECTED TO RECEIVE THE SAVED PAY AND ALLOWANCES OF HIS ENLISTED GRADE. AS THIS APPOINTMENT WAS HIS FIRST APPOINTMENT AS AN OFFICER OF THE ARMED FORCES HE FILED CLAIM FOR UNIFORM ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 415/E). SINCE PARAGRAPH 044022CL OF THE NAVY COMPTROLLER MANUAL PROVIDES THAT A MEMBER ENTITLED TO SAVED PAY IS NOT AUTHORIZED TO RECEIVE THE BASIC PAY FOR ONE GRADE AND THE ALLOWANCES FOR ANOTHER GRADE, YOU EXPRESS DOUBT AS TO WHETHER PAYMENT OF THE UNIFORM ALLOWANCE MAY BE MADE IN THIS CASE. IT IS STATED IN THE LETTER OF AUGUST 8, 1966, THAT THE MARINE CORPS, BASED LARGELY ON OUR DECISION B-39566, OF FEBRUARY 25, 1944, HAS CONSISTENTLY VIEWED THE UNIFORM ALLOWANCE AUTHORIZED BY 37 U.S.C. 415/E) AS NOT PAYABLE TO A TEMPORARY OFFICER WHO ELECTS TO RECEIVE THE SAVED PAY OF HIS PERMANENT ENLISTED GRADE.

OUR DECISION OF FEBRUARY 25, 1944, CONSIDERED THE CASE OF A MEMBER WHO HAD BEEN DISCHARGED AND REENLISTED AS AN ENLISTED MAN SUBSEQUENT TO HIS TEMPORARY APPOINTMENTS AS AN OFFICER BUT PRIOR TO ACCEPTANCE OF THE APPOINTMENT AND THERE WAS IN QUESTION ONLY THE RESPECTIVE BENEFITS OF ENLISTED AND OFFICER STATUS FOR THE PERIOD BETWEEN THE EFFECTIVE DATE OF THE APPOINTMENT AND THE DATE OF FORMAL ACCEPTANCE THEREOF. THAT DECISION WAS NOT INTENDED TO HAVE APPLICATION IN A CASE SUCH AS IS HERE INVOLVED.

IT IS PROVIDED IN SUBSECTION (F) OF 10 U.S.C. 5596 THAT:

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.

THIS PROVISION CONTEMPLATES A COMPARISON BETWEEN THE MONTHLY BASIC PAY AND ALLOWANCES OF THE PERSON'S PERMANENT ENLISTED GRADE WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF HIS TEMPORARY APPOINTMENT AND THE MONTHLY BASIC PAY AND ALLOWANCES OF HIS TEMPORARY OFFICER GRADE.

THE $250 UNIFORM ALLOWANCE AUTHORIZED BY 37 U.S.C. 415/E) IS A SPECIAL ALLOWANCE AS REIMBURSEMENT FOR UNIFORMS REQUIRED TO BE WORN AS A TEMPORARY OFFICER. THAT ALLOWANCE IS NOT A PART OF THE BASIC PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED EITHER AS SAVED PAY OR AS OFFICER PAY FOR ANY MONTH AND THEREFORE IS PAYABLE WITHOUT REGARD TO THE ELECTION HE MAY MAKE AS TO HIS PAY AND ALLOWANCES.

ACCORDINGLY, WARRANT OFFICER STIPANOVICH MAY BE CREDITED WITH THE $250 UNIFORM ALLOWANCE.