B-161162, MAY 16, 1967, 46 COMP. GEN. 804

B-161162, MAY 16, 1967, 46 COMP. GEN. 804

RATIONS COMMUTATION PAYMENTS - SAVED ON TEMPORARY PROMOTION - RATE INCREASE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES TEMPORARILY APPOINTED AS A WARRANT OFFICER, GRADE W-1, WITHOUT A CHANGE IN THE CONDITION OF HIS SERVICE, AND ENTITLED UNDER 10 U.S.C. 5596 (F) TO SAVED PAY AND ALLOWANCES, WHICH INCLUDED A COMMUTED RATIONS ALLOWANCE AT THE DAILY RATE OF $1.17, MAY NOT BE PAID THE SUBSEQUENT INCREASE TO $1.30 IN THE COMMUTED RATIONS ALLOWANCE AS AN ITEM OF HIS ENLISTED MAN'S SAVED PAY AND ALLOWANCES IN GRADE E-9, THE INCREASE IN THE DAILY RATE OF THE COMMUTED RATIONS NOT CONSTITUTING AN INCREASE IN "SAVED" ALLOWANCES WITHIN THE MEANING OF SECTION 5596 (F), NOTWITHSTANDING THE MEMBER'S ENTITLEMENT TO SUBSISTENCE IN KIND BECAUSE OF HIS UNDERLYING ENLISTED STATUS; THAT IT COSTS AN AVERAGE OF $1.30 DAILY TO PROVIDE SUBSISTENCE IN KIND TO ENLISTED MEMBERS; AND THAT COMMUTED RATIONS ARE AN ALTERNATIVE FOR SUBSISTENCE IN KIND.

TO LIEUTENANT COLONEL JOHN A. RAPP, UNITED STATES MARINE CORPS, MAY 16, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1967, REQUESTING A DECISION WHETHER, IN THE CIRCUMSTANCES PRESENTED, WARRENT OFFICER (W-1) ROBERT E. DUNCAN, 098596, USMC, MAY BE PAID COMMUTED RATIONS AT THE DAILY RATE OF $1.30 AS AN ITEM OF HIS ENLISTED MAN'S SAVED PAY AND ALLOWANCES AFTER DECEMBER 31, 1966. THE REQUEST WAS ASSIGNED CONTROL NO. DO-MC-945 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN THAT ON DECEMBER 31, 1966, WARRANT OFFICER DUNCAN WAS IN RECEIPT OF THE PAY AND ALLOWANCES OF AN ENLISTED MEMBER IN PAY GRADE E-9 SAVED TO HIM UNDER 10 U.S.C. 5596 (F). YOU SAY THAT HE HAS BEEN CONTINUOUSLY ENTITLED TO RECEIVE SAVED PAY AND ALLOWANCES SINCE DECEMBER 31, 1966, AND THAT ONE OF HIS SAVED ALLOWANCES ON THAT DATE WAS COMMUTED RATIONS AT THE DAILY RATE OF $1.17.

SECTION 402 (B) OF TITLE 37, U.S. CODE, PROVIDES THAT THE SUBSISTENCE ALLOWANCE FOR ENLISTED MEN WHO ARE AUTHORIZED TO MESS SEPARATELY SHALL BE EQUAL TO THE COST OF THE RATION (SUBSISTENCE IN KIND) AS DETERMINED BY THE SECRETARY OF DEFENSE. EFFECTIVE JANUARY 1, 1967, THE SECRETARY OF DEFENSE DETERMINED THE COST OF THE RATION TO BE $1.30 AND THE DAILY RATE OF COMMUTED RATIONS WAS ACCORDINGLY INCREASED FROM $1.17 TO $1.30 BEGINNING ON THAT DATE.

IN DECISIONS OF APRIL 12, 1962, 41 COMP. GEN. 663, AND JUNE 8, 1966, 45 COMP. GEN. 763, WE SAID THAT THE BASIC ALLOWANCE FOR SUBSISTENCE PRESCRIBED BY LAW FOR ENLISTED MEMBERS (THE SPECIFIC AMOUNT THEREOF DEPENDING UPON THE PARTICULAR CONDITIONS UNDER WHICH THE DUTY OF THE ENLISTED MAN IS BEING PERFORMED) AND SUBSISTENCE IN KIND ARE ALTERNATIVES OF THE SAME BASIC ALLOWANCE AND THAT:

* * * AN ENLISTED MEMBER WHO IS OTHERWISE ENTITLED TO SAVED PAY AND ALLOWANCES IS ENTITLED TO CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF AS AN ITEM OF HIS SAVED PAY AND ALLOWANCES SO LONG AS HE QUALIFIED FOR ONE OR THE OTHER.

IT APPEARS THAT YOU ARE AWARE OF THOSE DECISIONS BUT YOU POINT OUT THAT (A) IT NOW COSTS AN AVERAGE OF $1.30 DAILY TO PROVIDE SUBSISTENCE IN KIND TO AN ENLISTED MEMBER, (B) BECAUSE OF HIS UNDERLYING ENLISTED STATUS, WARRANT OFFICER DUNCAN IS BASICALLY ENTITLED TO SUBSISTENCE IN KIND, PRESUMABLY IN THE QUANTITY AND QUALITY PROVIDED AT THE AVERAGE DAILY COST OF $1.30 AND (C) COMMUTED RATIONS ARE AN ALTERNATIVE OF SUBSISTENCE IN KIND. YOU FURTHER POINT OUT THAT (D) A CHANGE FROM SUBSISTENCE IN KIND TO COMMUTED RATIONS, OR FROM COMMUTED RATIONS TO SUBSISTENCE ALLOWANCE OF $2.57 OR $3.42 PER DAY, AS AUTHORIZED INCIDENT TO SERVICE UNDER PRESCRIBED CONDITIONS, IS NOT REGARDED AS AN INCREASE IN "SAVED" ALLOWANCES WITHIN THE MEANING OF 10 U.S.C. 5596 (F). IN VIEW OF THESE CONSIDERATIONS YOU SAY IT WOULD SEEM THAT DUNCAN IS ENTITLED TO RECEIVE OTHERWISE PROPER PAYMENT OF COMMUTED RATIONS AT THE DAILY RATE OF $1.30 EFFECTIVE JANUARY 1, 1967, IN COMPUTING HIS SAVED PAY AND ALLOWANCES.

YOU SAY YOUR DOUBT IN THE MATTER STEMS FROM THE FACT THAT UNDER 37 U.S.C. 402 A COMMUTED RATION IS AN ALLOWANCE, AND IT IS QUESTIONABLE IN THE LIGHT OF 23 COMP. GEN. 21 AND OTHER DECISIONS WHETHER THE PROVISIONS OF 10 U.S.C. 5596 (F) MAY BE CONSTRUED SO AS TO INCREASE THE RATE OF THE ALLOWANCE (COMMUTED RATIONS) WARRANT OFFICER DUNCAN WAS ENTITLED TO RECEIVE ($1.17) AT THE TIME HE ACCEPTED HIS TEMPORARY APPOINTMENT AS WARRANT OFFICER W-1).

INSOFAR AS HERE MATERIAL, 37 U.S.C. 204 PROVIDES THAT A MEMBER IS ENTITLED TO THE PAY OF THE GRADE IN WHICH ASSIGNED OR DISTRIBUTED IN ACCORDANCE WITH HIS YEARS OF SERVICE. BASICALLY, THEREFORE, THE MEMBER CONCERNED IN YOUR SUBMISSION IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE. HOWEVER, SECTION 5596 (F) OF TITLE 10, U.S. CODE, 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. THESE SAVINGS PROVISIONS 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.). IN 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. ALSO, WE HAVE HELD THAT 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 BY REASON OF HIS TEMPORARY POSITION. 23 COMP. GEN. 21; ID. 147; 24 ID. 192, ID. 739; 29 ID. 347; ID. 464; 31 ID. 180; 32 ID. 55; 41 ID. 663; 42 ID. 750; 44 ID. 121.

IN THE DECISION OF JUNE 8, 1966, MENTIONED ABOVE, THE MEMBER CONCERNED WAS SERVING IN THE UNITED STATES ON OCTOBER 1, 1965, THE DATE OF HIS TEMPORARY PROMOTION. THE VALUE OF COMMUTED RATIONS IN THE UNITED STATES AT THAT TIME WAS $1.09 PER DAY AND THIS BECAME PART OF HIS SAVED PAY. ARRIVED IN LONDON, ENGLAND, ON JANUARY 5, 1966, AND RECEIVED TEMPORARY LODGING ALLOWANCE WHICH TERMINATED NO LATER THAN MARCH 8, 1966. DURING THAT PERIOD THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE EXCEEDED HIS SAVED PAY AND ALLOWANCES. ON MARCH 9, 1966, THE VALUE OF COMMUTED RATIONS OUTSIDE THE CONTINENTAL UNITED STATES WAS $1.14. HOWEVER, MESSING FACILITIES WERE NOT AVAILABLE AND SINCE WE HAVE RECOGNIZED THAT THE SPECIFIC AMOUNT OF THE ALLOWANCE FOR SUBSISTENCE MAY VARY WITH CHANGED CONDITIONS OF SERVICE (41 COMP. GEN. 663), WE HELD THAT THE MEMBER WAS ENTITLED TO THE ALLOWANCE OF $2.57 PER DAY IN COMPUTING HIS SAVED PAY AND ALLOWANCES. OUR INDICATION IN THE DECISION THAT THE MEMBER WOULD HAVE BEEN ENTITLED TO A DAILY ALLOWANCE OF $1.14 IF RATIONS HAD BEEN AVAILABLE WAS ON THE BASIS THAT SINCE HE WAS SERVING OVERSEAS, HE WOULD HAVE BEEN ENTITLED TO THE HIGHER RATION ALLOWANCE PRESCRIBED FOR OVERSEAS SERVICE.

SINCE DIFFERENT RATES OF SUBSISTENCE ALLOWANCE ARE PRESCRIBED FOR SERVICE UNDER DIFFERENT CIRCUMSTANCES, THE RATE MAY VARY IN COMPUTING A MEMBER'S SAVED PAY AND ALLOWANCES BECAUSE OF CHANGED CONDITIONS OF SERVICE, BUT HE IS ONLY ENTITLED TO THE RATE PRESCRIBED FOR SUCH SERVICE AT THE TIME OF HIS TEMPORARY APPOINTMENT. IN CONSTRUING THE SIMILAR SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 802, 37 U.S.C. 315 (B) (1958 ED.), WHICH SAVED TO AN ENLISTED MEMBER THE TOTAL COMPENSATION WHICH HE WAS RECEIVING ON SEPTEMBER 30, 1949, IF GREATER THAN THE AMOUNT TO WHICH HE WAS ENTITLED UNDER THE 1949 ACT, WE HELD THAT THE MEMBER WOULD BE ENTITLED TO INCLUDE IN THE COMPUTATION OF HIS TOTAL SAVED COMPENSATION THE APPROPRIATE SUBSISTENCE ALLOWANCE WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED TO RECEIVE AT HIS STATION UNDER THE LAWS AND REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949. 29 COMP. GEN. 347; ID. 464.

ACCORDINGLY, ALTHOUGH SUBSISTENCE IN KIND AND COMMUTED RATIONS ARE ALTERNATIVE ALLOWANCES FOR THE PURPOSE OF 10 U.S.C. 5596 (F), THE MEMBER IS ENTITLED TO COUNT, FOR PURPOSES OF COMPUTING SAVED PAY, ONLY THE DAILY RATE OF COMMUTED RATIONS TO WHICH HE WAS ENTITLED IN HIS PERMANENT GRADE AT THE TIME OF HIS TEMPORARY APPOINTMENT ($1.17) AND IS NOT ENTITLED TO A SUBSEQUENT INCREASE IN THAT RATE UNDER THE SAME CONDITIONS OF SERVICE.