B-48866, APRIL 19, 1945, 24 COMP. GEN. 761

B-48866, APRIL 19, 1945, 24 COMP. GEN. 761

SAVED PAY AND ALLOWANCES - TEMPORARILY PROMOTED NAVY OFFICERS - RETENTION OF PAY AS CHIEF OF BUREAU UNDER THE SAVING PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, A NAVY OFFICER RECEIVING THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) AS A CHIEF OF BUREAU FOR A FOUR-YEAR TERM, AS PROVIDED BY THE ACT OF JULY 1, 1918, WHEN TEMPORARILY APPOINTED, IN RELATION TO HIS LOWER PERMANENT GRADE ON THE ACTIVE LIST, TO THE GRADE OF PAY DIRECTOR WITH THE RANK OF REAR ADMIRAL AND RELIEVED OF HIS ASSIGNMENT AS CHIEF OF BUREAU FOR A SPECIAL ASSIGNMENT MAY CONTINUE TO RECEIVE SUCH PAY AND ALLOWANCES FOR THE REMAINDER OF THE FOUR-YEAR PERIOD HE WOULD OTHERWISE HAVE SERVED AS CHIEF OF BUREAU.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 19, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 31, 1945 (REFERENCE JAG:II:1WJG:Z 100--- YOUNG, W. B. (L16-4), REQUESTING A DECISION AS THE RIGHT OF REAR ADMIRAL W. B. YOUNG, SUPPLY CORPS, USN, TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) THROUGH MARCH 31, 1946, IF OTHERWISE ENTITLED, UNDER THE CONDITIONS SET FORTH IN AN ENCLOSED LETTER DATED MARCH 27, 1945, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS: REFERENCE: (A) ACT OF 24 JULY 1941 AS AMENDED (56 STAT. 1023).

(B) ACT OF 1 JULY 1918, 40 STAT. 717 (5 U.S.C. 441).

1. ON 15 FEBRUARY 1945 THE PRESIDENT, PURSUANT TO THE PROVISIONS OF REFERENCE (A), AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE APPOINTED REAR ADMIRAL WILLIAM B. YOUNG A PAY DIRECTOR IN THE NAVY WITH THE RANK OF REAR ADMIRAL, FOR TEMPORARY SERVICE, TO RANK FROM THE ST DAY OF JUNE 1942. AT THE TIME OF THIS APPOINTMENT REAR ADMIRAL YOUNG WAS SERVING AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AND, WHILE SO SERVING, WAS ENTITLED, PURSUANT TO THE PROVISIONS OF REFERENCE (B), TO THE RANK AND PAY OF A REAR ADMIRAL, UPPER HALF.

2. ON 8 MARCH 1945 REAR ADMIRAL YOUNG WAS DETACHED FROM DUTY AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AND ASSIGNED TO DUTY AS ASSISTANT COMMISSIONER IN THE OFFICE OF THE ARMY-NAVY LIQUIDATION COMMISSION.

3. THE QUESTION HAS NOW ARISEN WHETHER, AS A RESULT OF REAR ADMIRAL YOUNG'S DETACHMENT FROM DUTY AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, HE IS STILL ENTITLED TO THE PAY OF A REAR ADMIRAL, UPPER HALF.

4. THAT HE WOULD SEEM TO BE SO ENTITLED IS INDICATED BY SECTION 7 (A) OF REFERENCE (A) WHICH READS IN PART AS FOLLOWS:

"* * * NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER RANK OR GRADE.'

5.INASMUCH AS ADMIRAL YOUNG, AT THE TIME OF HIS APPOINTMENT PURSUANT TO REFERENCE (A), WAS RECEIVING THE PAY OF A REAR ADMIRAL, UPPER HALF, IT WOULD SEEM THAT THE EFFECT OF THE ABOVE-QUOTED PROVISION WOULD BE TO PRESERVE THAT PAY STATUS FOR HIM THROUGH 31 MAY, 1946, THE DATE ON WHICH HIS FOUR-YEAR TERM AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS WOULD NORMALLY HAVE EXPIRED.

5. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER, UNDER THE ABOVE-QUOTED SAVINGS CLAUSE OF REFERENCE (A), ADMIRAL YOUNG IS ENTITLED TO THE PAY OF A REAR ADMIRAL, UPPER HALF, THROUGH 31 MAY 1946.

SECTION 3 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZES, INTER ALIA, THE TEMPORARY APPOINTMENT OF OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY TO HIGHER RANKS OR GRADES DURING THE EXISTENCE OF A STATE OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT.

THE SITUATION IN THE PRESENT CASE IS UNUSUAL, IN THAT THE TEMPORARY APPOINTMENT OF ADMIRAL YOUNG, UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, TO THE GRADE OF A PAY DIRECTOR IN THE NAVY, WITH THE RANK OF REAR ADMIRAL, APPARENTLY WAS IN RELATION TO HIS LOWER PERMANENT GRADE ON THE ACTIVE LIST OF THE NAVY, ALTHOUGH, AT THE TIME, HE ACTUALLY WAS NOT SERVING IN SUCH LOWER PERMANENT GRADE BUT IN THE GRADE OF CHIEF OF BUREAU FOR A FOUR-YEAR TERM. WHILE THAT SITUATION MAY NOT HAVE BEEN PARTICULARLY CONTEMPLATED WHEN THE STATUTE WAS ENACTED, THE TEMPORARY APPOINTMENT SO MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, APPEARS TO BE WITHIN THE TERMS AND GENERAL PURPOSES OF THE ACT, AND CANNOT BE SAID TO HAVE BEEN UNAUTHORIZED THEREUNDER.

SECTION 7 (A) OF THE ACT, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, PROVIDES, IN PERTINENT PART, THAT:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS, OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER * * * PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT * * *.

THE QUOTED PROVISO IN SAID SECTION 7 (A) OF THE ACT, IF APPLIED LITERALLY, WOULD OPERATE TO SAVE INDEFINITELY TO A PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THE ACT THE PAY AND ALLOWANCES "TO WHICH HE WAS ENTITLED AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, PURSUANT TO THE ACT OF JULY 1, 1918, 40 STAT. 716, 717, AT THE TIME OF HIS TEMPORARY APPOINTMENT TO THE GRADE OF PAY DIRECTOR IN THE NAVY, WITH THE RANK OF REAR ADMIRAL, UNDER THE AUTHORITY OF THE SAID ACT OF JULY 24, 1941. HOWEVER, SUCH SAVING CLAUSE IN SECTION 7 (A) OF THE ACT HAS NOT BEEN APPLIED AS CONTEMPLATING THE INDEFINITE CONTINUATION OF ITEMS OF PAY AND ALLOWANCES WHICH WOULD NOT HAVE CONTINUED INDEFINITELY IN THE GRADE HELD AT THE TIME OF THE TEMPORARY APPOINTMENT. THE MATTER WAS DISCUSSED IN DECISION OF JULY 14, 1943, 23 COMP. GEN. 21, IN PART AS FOLLOWS:

* * * MOREOVER, WHILE THE PREVIOUS PAY AND ALLOWANCES OF A PERSON TEMPORARILY APPOINTED TO A HIGHER GRADE ARE SAVED FROM REDUCTION DUE TO THE TEMPORARY APPOINTMENT, THEY ARE NOT SAVED FROM REDUCTION DUE TO OTHER CHANGES IN THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. A PERSON ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCE ON ACCOUNT OF DEPENDENTS WHEN TEMPORARILY APPOINTED TO A HIGHER GRADE, ALTHOUGH ENTITLED TO CONTINUE TO RECEIVE SUCH INCREASED ALLOWANCES AFTER SUCH APPOINTMENT AS A PART OF HIS "SAVED" PAY AND ALLOWANCES, CLEARLY WOULD NOT BE ENTITLED TO CONTINUE TO RECEIVE SUCH ADDITIONAL ALLOWANCES AS PART OF HIS SAVED PAY AND ALLOWANCES IF HIS DEPENDENTS DIED OR AFTER THEY OTHERWISE CEASED BEING DEPENDENTS. THE REDUCTION IN SUCH A CASE WOULD NOT BE DUE TO THE TEMPORARY APPOINTMENT BUT TO THE DEATH OR LOSS OF THE DEPENDENTS. LIKEWISE, SO FAR AS RENTAL OR QUARTERS ALLOWANCE FOR DEPENDENTS IS CONCERNED, IT WOULD NOT BE ,SAVED" FOR PERIODS WHEN THE DEPENDENTS OCCUPIED PUBLIC QUARTERS, NOR WOULD RENTAL OR QUARTERS ALLOWANCE FOR THE MAN HIMSELF BE "SAVED" FOR PERIODS WHEN HE WAS FURNISHED QUARTERS, THE QUARTERS BEING IN LIEU OF THE ALLOWANCE, OR VICE VERSA, AND THE ELIMINATION OF THE ALLOWANCE NOT BEING DUE TO THE TEMPORARY APPOINTMENT, BUT TO THE OCCUPANCY OF QUARTERS. LIKEWISE, FLYING PAY WOULD NOT BE SAVED FOR PERIODS AFTER THE TEMPORARY APPOINTMENT WHEN THE PERSON WAS NOT ON FLYING DUTY, THE REDUCTION NOT BEING DUE TO THE TEMPORARY APPOINTMENT BUT TO BEING RELIEVED FROM FLYING DUTY. NOR WOULD FOREIGN SERVICE OR SEA PAY BE SAVED AFTER RETURN TO THE UNITED STATES BECAUSE SUCH REDUCTION WOULD NOT BE CAUSED BY THE TEMPORARY APPOINTMENT BUT TO BEING TRANSFERRED TO A LOCATION WHERE SUCH ADDITIONAL PAY WAS NOT PAYABLE. THE SAME WOULD APPEAR TO BE TRUE OF ANY PAY OR ALLOWANCES NOT PRIMARILY DEPENDENT ON THE GRADE OR RANK OR PRIOR SERVICE BUT TO THE CIRCUMSTANCES AND CONDITIONS UNDER WHICH SERVICE ACTUALLY IS PERFORMED. SUCH APPLICATION OF THE STATUTORY PROVISION OPERATES TO SAVE A PERSON TEMPORARILY APPOINTED TO A HIGHER GRADE FROM ANY REDUCTION IN THE ITEMS OF PAY AND ALLOWANCES TO WHICH HE ACTUALLY WAS ENTITLED AT THE TIME OF THE TEMPORARY APPOINTMENT TO THE EXTENT HE WOULD HAVE RECEIVED SUCH PAY AND ALLOWANCES IN HIS PERMANENT GRADE UNDER THE CONDITIONS OF HIS ACTUAL SUBSEQUENT SERVICE. * * * (ITALICS SUPPLIED.)

ADMIRAL YOUNG ACTUALLY WAS SERVING IN THE GRADE OF CHIEF OF BUREAU AT THE TIME HE WAS TEMPORARILY APPOINTED A PAY DIRECTOR WITH THE RANK OF REAR ADMIRAL UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941. HENCE, UNDER THE EXPRESS PROVISIONS OF THE SAVING CLAUSE IN SECTION 7 (A) OF SUCH ACT, AS AMENDED, THE PAY AND ALLOWANCES OF THAT GRADE TO WHICH HE WAS THEN ENTITLED WERE SAVED TO HIM WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENT. OTHERWISE, HE WOULD SUFFER A REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF THE TEMPORARY APPOINTMENT, CONTRARY TO THE EXPRESS TERMS OF THE STATUTE AND ITS EVIDENT PURPOSE. CF. 31 OP. ATTY. GEN. 505; REMY V. UNITED STATES, 33 C.1CLS. 218; 27 COMP. DEC. 227. ON THE OTHER HAND, THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) TO WHICH HE WAS THEN ENTITLED AS CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS WOULD HAVE TERMINATED AT THE EXPIRATION OF HIS FOUR-YEAR TERM IN THAT OFFICE, IRRESPECTIVE OF THE TEMPORARY APPOINTMENT UNDER THE ACT OF JULY 24, 1941, AND, CONSEQUENTLY, THE SAVING CLAUSE IN THAT ACT REASONABLY MAY NOT BE VIEWED AS SAVING TO HIM THE PAY AND ALLOWANCES OF THAT GRADE BEYOND THE TIME THEY WOULD HAVE BEEN SO TERMINATED BY LEGAL LIMITATIONS EXTRANEOUS TO SUCH ACT. 23 COMP. GEN. 21, SUPRA.

ACCORDINGLY, ON THE PREMISES SET FORTH IN THE LETTER FROM THE PRESENT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, QUOTED ABOVE, THE QUESTION STATED IN THE LAST PARAGRAPH THEREOF IS ANSWERED IN THE AFFIRMATIVE.