B-172784, MAY 26, 1971

B-172784: May 26, 1971

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IS NOT ENTITLED TO SAVED PAY. ALTHOUGH THE LAW GOVERNING NAVY AND MARINE CORPS PERSONNEL IS SIMILAR TO THAT GOVERNING THE COAST GUARD. IT IS NOT CONTROLLING. CLAIMANT IS NOT ENTITLED TO PAY BASED ON HIS PRECEDING TEMPORARY RANK. AS HOLST'S FORMER PERMANENT RANK WAS W-2. HE IS NOT ENTITLED TO SAVED PAY. HOLST WAS APPOINTED TO THE PERMANENT GRADE OF CHIEF WARRANT OFFICER. THAT HE WAS TEMPORARILY PROMOTED TO THE GRADE OF CHIEF WARRANT OFFICER. THAT HE WAS APPOINTED A TEMPORARY COMMISSIONED OFFICER IN THE REGULAR COAST GUARD IN THE GRADE OF ENSIGN ON JANUARY 22. WHICH IS LESS THAN THE PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED AS CHIEF WARRANT OFFICER. HOLST IS OF THE OPINION THAT UNDER THE PROVISIONS OF 14 U.S.C. 214(D).

B-172784, MAY 26, 1971

MILITARY PERSONNEL - COAST GUARD - SAVED PAY DECISION HOLDING THAT ENSIGN CARROL H. HOLST, JR., USCG, APPOINTED A TEMPORARY COMMISSIONED OFFICER HAVING A LOWER PAY THAN HIS PREVIOUS TEMPORARY RANK, CWO, W-3, IS NOT ENTITLED TO SAVED PAY. ALTHOUGH THE LAW GOVERNING NAVY AND MARINE CORPS PERSONNEL IS SIMILAR TO THAT GOVERNING THE COAST GUARD, IT IS NOT CONTROLLING. AS TO COAST GUARD PERSONNEL, 14 U.S.C. 214 GOVERNS, AND UNDER THE LAW, CLAIMANT IS NOT ENTITLED TO PAY BASED ON HIS PRECEDING TEMPORARY RANK, BUT ON HIS PREVIOUS PERMANENT RANK. AS HOLST'S FORMER PERMANENT RANK WAS W-2, WHICH HAS A LOWER PAY THAN ENSIGN, HE IS NOT ENTITLED TO SAVED PAY.

TO MR. F. B. ZOLDER:

THIS REFERS TO YOUR LETTER DATED APRIL 27, 1971, REQUESTING A DECISION REGARDING PAYMENT OF SAVED PAY TO ENSIGN CARROL H. HOLST, JR., 8997, U.S. COAST GUARD, UNDER THE CONDITIONS IN HIS CASE.

THE RECORDS SHOW THAT MR. HOLST WAS APPOINTED TO THE PERMANENT GRADE OF CHIEF WARRANT OFFICER, W-2, IN THE UNITED STATES COAST GUARD EFFECTIVE NOVEMBER 1, 1969, PURSUANT TO 10 U.S.C. 555(B); THAT HE WAS TEMPORARILY PROMOTED TO THE GRADE OF CHIEF WARRANT OFFICER, W-3, EFFECTIVE AND TO RANK FROM NOVEMBER 1, 1970, PURSUANT TO 14 U.S.C. 277; AND THAT HE WAS APPOINTED A TEMPORARY COMMISSIONED OFFICER IN THE REGULAR COAST GUARD IN THE GRADE OF ENSIGN ON JANUARY 22, 1971, PURSUANT TO 14 U.S.C. 214.

YOU SAY THAT, BASED ON THE RULING IN OUR DECISION B-170303, OCTOBER 13, 1970, 50 COMP. GEN. , SAVED PAY HAS BEEN WITHHELD. IT APPEARS THAT THE OFFICER HAS BEEN PAID SINCE JANUARY 22, 1971, THE PAY AND ALLOWANCES OF AN ENSIGN WITH OVER 10 YEARS OF SERVICE WHO HAS BEEN CREDITED WITH OVER 4 YEARS' ACTIVE SERVICE AS AN ENLISTED MEMBER, WHICH IS LESS THAN THE PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED AS CHIEF WARRANT OFFICER, W-3, WITH OVER 10 YEARS OF SERVICE.

IN VIEW OF THE PROVISIONS OF PARAGRAPH 10222A OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, RELATING TO SAVED PAY AND ALLOWANCES OF NAVY AND MARINE CORPS MEMBERS, MR. HOLST IS OF THE OPINION THAT UNDER THE PROVISIONS OF 14 U.S.C. 214(D), WHICH HE BELIEVES ARE SIMILAR TO THE PROVISIONS OF 10 U.S.C. 5589(B), MENTIONED IN PARAGRAPH 10222A, HE IS ENTITLED TO SAVED PAY ON THE BASIS OF HIS TEMPORARY STATUS OF CHIEF WARRANT OFFICER, W-3.

SECTION 214, TITLE 14, U.S. CODE, UNDER WHICH THE OFFICER WAS APPOINTED A TEMPORARY COMMISSIONED OFFICER, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(D) TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF PERSONS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS. A PERSON WHO IS APPOINTED 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 UNDER THIS SECTION."

WHILE THE ACT OF SEPTEMBER 24, 1963, PUBLIC LAW 88-130, 77 STAT. 174, OF WHICH 14 U.S.C. 214 IS A PART, IS SIMILAR TO LAWS GOVERNING NAVY AND MARINE CORPS MEMBERS, THE RIGHTS OF COAST GUARD MEMBERS MUST BE DETERMINED UNDER THE SPECIFIC PROVISIONS OF TITLE 14 OF THE CODE. THE PROVISIONS OF PARAGRAPH 10222A, DODPM, AND THE LAWS IMPLEMENTED BY THOSE PROVISIONS, APPLY ONLY TO NAVY AND MARINE CORPS MEMBERS AND HAVE NO APPLICATION TO MR. HOLST'S SITUATION. THUS, THERE IS NO NEED TO GIVE CONSIDERATION TO THE EFFECT OF THAT PARAGRAPH OF THE REGULATIONS.

IN OUR DECISION B-170303 OF OCTOBER 13, 1970, WE HELD, CITING 30 COMP. GEN. 363 (1951) AND B-121744, FEBRUARY 18, 1955, THAT A MEMBER APPOINTED AS ENSIGN IN THE MEDICAL SERVICE CORPS, REGULAR NAVY, PURSUANT TO 10 U.S.C. 5579, WHILE SERVING IN THE TEMPORARY GRADE OF LIEUTENANT (JG) WITH A PERMANENT APPOINTMENT AS ENSIGN WAS NOT "ENTITLED" AT THE TIME OF HIS PERMANENT APPOINTMENT AS ENSIGN, MEDICAL SERVICE CORPS, TO ANY PAY AND ALLOWANCES BECAUSE OF HIS "FORMER PERMANENT STATUS" IN THE REGULAR NAVY WITHIN THE MEANING OF 10 U.S.C. 5579(D), WHICH CONTAINS LANGUAGE SIMILAR TO 14 U.S.C. 214(B).

AT THE TIME MR. HOLST WAS APPOINTED A TEMPORARY ENSIGN, HE WAS IN RECEIPT OF THE GREATER PAY AND ALLOWANCES OF THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER, W-3. HE WAS NOT ENTITLED, UNDER SECTION 214(B) TO SAVED PAY BASED ON THAT TEMPORARY GRADE AFTER JANUARY 21, 1971, WHICH APPOINTMENT APPARENTLY TERMINATED ON THAT DATE, THE DATE PRECEDING THE ACCEPTANCE OF HIS TEMPORARY APPOINTMENT AS ENSIGN, BUT ONLY TO THE "PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT" WHICH WAS IN THE GRADE OF CHIEF WARRANT OFFICER, W-2.

ACCORDINGLY, MR. HOLST'S CASE FALLS SQUARELY WITHIN THE RULE OF OUR OCTOBER 13, 1970, DECISION AND EFFECTIVE FROM JANUARY 22, 1971, HE IS ONLY ENTITLED TO THE PAY OF HIS TEMPORARY GRADE OF ENSIGN.