B-170303, OCT 13, 1970, 50 COMP GEN 279

B-170303: Oct 13, 1970

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THE OFFICER IS NOT ENTITLED TO SAVED PAY. FOR NOT HAVING SUFFERED A REDUCTION IN PAY "BECAUSE OF HIS FORMER PERMANENT STATUS" - ALSO THAT OF ENSIGN - HE IS UNABLE TO MEET THE CRITERIA IN 10 U.S.C. 5579(D) FOR ELIGIBILITY TO HAVE THE HIGHER PAY AND ALLOWANCES RECEIVED UNDER THE TEMPORARY APPOINTMENT AS LIEUTENANT (JG) SAVED TO HIM. 1970: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MARCH 19. YOU WERE TEMPORARILY APPOINTED TO THE GRADE OF LIEUTENANT (JG) WITH DATE OF RANK AND EFFECTIVE DATE OF JULY 1. YOU WERE PERMANENTLY APPOINTED AN ENSIGN IN THE MEDICAL SERVICE CORPS. THIS LATTER APPOINTMENT WAS MADE PURSUANT TO 10 U.S.C. 5579.

B-170303, OCT 13, 1970, 50 COMP GEN 279

PAY - SAVED - TEMPORARY PROMOTIONS UPON THE ACCEPTANCE OF A PERMANENT APPOINTMENT PURSUANT TO 10 U.S.C. 5579 AS AN ENSIGN IN THE MEDICAL SERVICE CORPS, REGULAR NAVY, AND THE TERMINATION OF THE TEMPORARILY HELD RANK OF LIEUTENANT (JG) TO WHICH APPOINTED SUBSEQUENT TO SERVING UNDER A PERMANENT APPOINTMENT AS A LINE ENSIGN, THE OFFICER IS NOT ENTITLED TO SAVED PAY, FOR NOT HAVING SUFFERED A REDUCTION IN PAY "BECAUSE OF HIS FORMER PERMANENT STATUS" - ALSO THAT OF ENSIGN - HE IS UNABLE TO MEET THE CRITERIA IN 10 U.S.C. 5579(D) FOR ELIGIBILITY TO HAVE THE HIGHER PAY AND ALLOWANCES RECEIVED UNDER THE TEMPORARY APPOINTMENT AS LIEUTENANT (JG) SAVED TO HIM.

TO LIEUTENANT (JG) C. W. BAKER, DEPARTMENT OF THE NAVY, OCTOBER 13, 1970:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MARCH 19, 1970, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THAT OF AN ENSIGN AND THAT OF A LIEUTENANT (JG) FOR THE PERIOD SEPTEMBER 30, 1968, TO AUGUST 1, 1969.

IT APPEARS THAT ON MARCH 10, 1967, YOU ACCEPTED A PERMANENT APPOINTMENT AS ENSIGN, LINE, UNITED STATES NAVY, TO RANK FROM THAT DATE; THAT ON JULY 9, 1968, YOU WERE TEMPORARILY APPOINTED TO THE GRADE OF LIEUTENANT (JG) WITH DATE OF RANK AND EFFECTIVE DATE OF JULY 1, 1968; AND THAT ON AUGUST 7, 1968, YOU WERE PERMANENTLY APPOINTED AN ENSIGN IN THE MEDICAL SERVICE CORPS, REGULAR NAVY, TO RANK FROM AUGUST 1, 1968, WHICH APPOINTMENT YOU ACCEPTED ON SEPTEMBER 30, 1968. THIS LATTER APPOINTMENT WAS MADE PURSUANT TO 10 U.S.C. 5579.

YOUR PAY RECORDS, OPENED JULY 1, 1968, SHOW THAT YOU WERE PAID ACTIVE DUTY PAY AND ALLOWANCES AS A LIEUTENANT (JG) FROM JULY 1, 1968, TO SEPTEMBER 29, 1968, AND PAY AND ALLOWANCES AS AN ENSIGN BEGINNING SEPTEMBER 30, 1968, AND EXTENDING THROUGH JUNE 30, 1969, AS SHOWN BY THE LATEST PAY RECORD ON FILE BEFORE US.

YOUR CLAIM WAS DISALLOWED BY THE NAVY FINANCE CENTER, CLEVELAND, OHIO, AND BY OUR CLAIMS DIVISION, SUBSTANTIALLY FOR THE REASON THAT YOU DID NOT SUFFER ANY REDUCTION IN PAY AND ALLOWANCES BECAUSE OF YOUR FORMER PERMANENT STATUS AS AN ENSIGN WITHIN THE MEANING OF 10 U.S.C. 5579(D).

YOU SAY THAT "THE FACT THAT I HAD A PERMANENT APPOINTMENT CONVEYED UPON ME PERMANENT STATUS." YOU EXPRESS THE VIEW THAT SINCE YOU WERE RECEIVING THE PAY AND ALLOWANCES OF A LIEUTENANT (JG) YOU MET THE CRITERIA IN 10 U.S.C. 5579(D) FOR SAVED PAY; NAMELY, FORMER PERMANENT STATUS AND A REDUCTION IN PAY FROM LIEUTENANT (JG) TO ENSIGN. YOU ASK TO BE ADVISED AS TO THE MEANING AND INTENT OF SECTION 5579(D), PARTICULARLY THE PHRASE "BECAUSE OF HIS FORMER PERMANENT STATUS."

UNDER SECTION 5579 OF TITLE 10, U.S. CODE, THE SECRETARY OF THE NAVY IS AUTHORIZED TO PRESCRIBE REGULATIONS GOVERNING ORIGINAL APPOINTMENTS OF OTHERWISE QUALIFIED PERSONS IN THE MEDICAL SERVICE CORPS OF THE REGULAR NAVY IN THE GRADE OF ENSIGN, EXCEPT AS THERE INDICATED. SUBSECTION (D) OF SECTION 5579 PROVIDES THAT "AN OFFICER APPOINTED UNDER THIS SECTION FROM THE REGULAR NAVY MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF HIS APPOINTMENT BECAUSE OF HIS FORMER PERMANENT STATUS." THIS PROVISION WAS DERIVED FROM SECTION 207 OF THE ARMY-NAVY MEDICAL SERVICES CORPS ACT OF 1947, 61 STAT. 734, 738, WHICH PROVISION CONTAINS SLIGHTLY DIFFERENT LANGUAGE (FROM 10 U.S.C. 5579(D)), IN THAT IT SAVED SUCH AN OFFICER FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED "BY VIRTUE OF HIS PERMANENT STATUS."

LANGUAGE SIMILAR TO THE ABOVE SECTION 207 OF THE 1947 ACT (10 U.S.C. 5579(D)) WAS CONSIDERED BY THIS OFFICE IN DECISION OF FEBRUARY 18, 1955, B -121744, PERTAINING TO SECTION 404(J) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 872. THE OFFICER INVOLVED IN THAT DECISION ACCEPTED A PERMANENT APPOINTMENT AS ENSIGN, UNITED STATES NAVY, ON SEPTEMBER 10, 1954. ON SEPTEMBER 9, 1954, HE HELD A PERMANENT STATUS OF CHIEF MACHINIST'S MATE (ENLISTED PAY GRADE E-7). HE ACTUALLY HAD BEEN SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER AT THAT TIME AND HAD BEEN RECEIVING PAY AND ALLOWANCES IN WARRANT PAY GRADE W-3, WITH OVER 14 YEARS' SERVICE.

IN THE DECISION OF FEBRUARY 18, 1955, IT WAS POINTED OUT THAT SECTION 404(J) OF THE 1947 ACT CLEARLY PROVIDED THAT AN OFFICER APPOINTED FOR LIMITED DUTY IN ACCORDANCE WITH SECTION 404(A) OF THE SAME ACT IS SAVED ONLY FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH ENTITLED AT THE TIME OF SUCH APPOINTMENT "BY VIRTUE OF HIS PERMANENT STATUS." WE SAID THAT AN OFFICER SO APPOINTED FOR LIMITED DUTY IS NOT SAVED FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT BUT ONLY FROM A REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS THEN ENTITLED BY VIRTUE OF HIS PERMANENT STATUS IN THE NAVY.

SINCE, AT THE TIME OF THE OFFICER'S PERMANENT APPOINTMENT AS AN ENSIGN, HE WAS IN RECEIPT OF THE GREATER PAY AND ALLOWANCES OF HIS TEMPORARY RANK AS A COMMISSIONED WARRANT OFFICER, WE SAID THAT HE WAS NOT THEN ENTITLED TO PAY AND ALLOWANCES BY VIRTUE OF HIS PERMANENT STATUS IN THE NAVY (ENLISTED PAY GRADE E-7), EITHER ON A SAVED PAY BASIS UNDER OTHER PROVISIONS OF LAW, OR OTHERWISE. WE CONCLUDED THAT THE OFFICER WAS ENTITLED ONLY TO THE PAY OF HIS PERMANENT GRADE AS ENSIGN. SEE, ALSO, DECISION DATED MARCH 5, 1951, 30 COMP. GEN. 363, CONCERNING THE EFFECT OF THE SAME STATUTORY PROVISION. THE REASONS INDICATED IN THOSE DECISIONS ARE EQUALLY APPLICABLE IN DETERMINING THE EFFECT OF THE PROVISION OF LAW WHICH IS APPLICABLE IN YOUR CASE.

AT THE TIME YOU WERE PERMANENTLY APPOINTED AS ENSIGN IN THE MEDICAL SERVICE CORPS OF THE NAVY, YOU WERE IN RECEIPT OF THE GREATER PAY AND ALLOWANCES OF YOUR TEMPORARY RANK OF LIEUTENANT (JG). HENCE, YOU WERE NOT "ENTITLED" AT THE TIME OF THAT PERMANENT APPOINTMENT TO ANY PAY AND ALLOWANCES BECAUSE OF YOUR "FORMER PERMANENT STATUS" IN THE REGULAR NAVY WITHIN THE MEANING OF 10 U.S.C. 5579(D). IT FOLLOWS THAT YOU WERE NOT ENTITLED UNDER SECTION 5579(D) TO SAVED PAY BASED ON YOUR TEMPORARY RANK OF LIEUTENANT (JG) AFTER SEPTEMBER 29, 1968, WHICH APPOINTMENT APPARENTLY WAS TERMINATED ON THAT DATE, THE DATE PRECEDING THE ACCEPTANCE OF YOUR PERMANENT APPOINTMENT AS AN ENSIGN IN THE MEDICAL SERVICE CORPS. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.