B-60009, OCTOBER 2, 1946, 26 COMP. GEN. 223

B-60009: Oct 2, 1946

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A COMMISSIONED WARRANT OFFICER WHO WAS SAVED THE MAXIMUM PAY AND ALLOWANCES AUTHORIZED BY SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 AT THE TIME OF HIS TEMPORARY PROMOTION IS NOT ENTITLED TO SAVED PAY AND ALLOWANCES COMPUTED ON THE BASIS OF THE INCREASED RATES OF PAY SUBSEQUENTLY PROVIDED BY SECTION 2 OF THE ACT OF JUNE 29. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE QUESTION HEREINAFTER PRESENTED. 2. STAHL WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE MARINE CORPS UNDER THE AUTHORITY OF THE TEMPORARY PROMOTION ACT OF 1941. SHOWS THAT THE PERMANENT STATUS OF THIS OFFICER WAS THAT OF A COMMISSIONED WARRANT OFFICER. THIS OFFICER WAS SUBSEQUENTLY TEMPORARILY APPOINTED A FIRST LIEUTENANT IN THE MARINE CORPS ON 2 APRIL 1945.

B-60009, OCTOBER 2, 1946, 26 COMP. GEN. 223

SAVED PAY AND ALLOWANCES OF TEMPORARILY PROMOTED MARINE CORPS PERSONNEL EFFECT OF SUBSEQUENT LEGISLATION INCREASING PAY RATES UNDER THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, SAVING TO MARINE CORPS PERSONNEL THE PAY AND ALLOWANCES TO WHICH ENTITLED "AT THE TIME" OF TEMPORARY PROMOTION, A COMMISSIONED WARRANT OFFICER WHO WAS SAVED THE MAXIMUM PAY AND ALLOWANCES AUTHORIZED BY SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 AT THE TIME OF HIS TEMPORARY PROMOTION IS NOT ENTITLED TO SAVED PAY AND ALLOWANCES COMPUTED ON THE BASIS OF THE INCREASED RATES OF PAY SUBSEQUENTLY PROVIDED BY SECTION 2 OF THE ACT OF JUNE 29, 1946, FOR COMMISSIONED WARRANT OFFICERS, SUBJECT TO THE NEW MAXIMUM LIMITATION ON PAY AND ALLOWANCES PRESCRIBED THEREIN.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 2, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 14, 1946, REQUESTING A DECISION ON A QUESTION PRESENTED BY THE COMMANDANT OF THE MARINE CORPS IN HIS LETTER OF AUGUST 1, 1946, AS FOLLOWS:

SUBJECT: REQUEST FOR DECISION OF THE COMPTROLLER GENERAL OF

THE UNITED STATES.

REFERENCE: (A) 23 COMP. GEN. 21; ID. 387.

1. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE QUESTION HEREINAFTER PRESENTED.

2. ON 4 DECEMBER 1943, GEORGE W. STAHL WAS TEMPORARILY APPOINTED A SECOND LIEUTENANT IN THE MARINE CORPS UNDER THE AUTHORITY OF THE TEMPORARY PROMOTION ACT OF 1941, 56 STAT. 1023, AS AMENDED. THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS, DATED 1 JULY 1942, AT PAGE 830, SHOWS THAT THE PERMANENT STATUS OF THIS OFFICER WAS THAT OF A COMMISSIONED WARRANT OFFICER, WITH OVER 20 YEARS' COMMISSIONED SERVICE WITH CREDITABLE RECORD, AND WITH OVER 24 YEARS' TOTAL SERVICE CREDITABLE FOR PAY PURPOSES. THIS OFFICER WAS SUBSEQUENTLY TEMPORARILY APPOINTED A FIRST LIEUTENANT IN THE MARINE CORPS ON 2 APRIL 1945. ON 4 DECEMBER 1943 HIS STATUS WITH RESPECT TO RENTAL ALLOWANCE WAS THAT OF AN OFFICER WITH DEPENDENTS, NO ADEQUATE QUARTERS ASSIGNED. NO CHANGES IN THIS RESPECT HAVE OCCURRED SINCE THAT DATE.

3. AT THE TIME OF HIS APPOINTMENT TO THE TEMPORARY RANK OF SECOND LIEUTENANT ON 4 DECEMBER 1943 LIEUTENANT STAHL WAS ENTITLED TO RECEIVE PAY AND ALLOWANCES AS FOR AN OFFICER OF THE FOURTH PAY PERIOD, WITH DEPENDENTS, SUBJECT TO THE LIMITATION IMPOSED ON THE TOTAL PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER BY THE SEVENTH PARAGRAPH OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR $458.33 MONTHLY. ACCORDINGLY, UNDER THE PROVISIONS OF SECTION 7 (A) OF THE TEMPORARY PROMOTION ACT OF 1941, AND THE INTERPRETATIONS PLACED THEREON BY THE COMPTROLLER GENERAL IN REFERENCE (A), LIEUTENANT STAHL WAS ENTITLED TO CONTINUE IN RECEIPT OF HIS "SAVED PAY AND ALLOWANCES" AS A COMMISSIONED WARRANT OFFICER ON AND AFTER 4 DECEMBER 1943, SINCE SUCH PAY AND ALLOWANCES EXCEEDED THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK, I.E., THE PAY AND ALLOWANCES AS FOR AN OFFICER OF THE SECOND PAY PERIOD, WITH DEPENDENTS, AND WITH OVER 24 YEARS' SERVICE FOR PAY PURPOSES.

4. ON 6 JUNE 1944, LIEUTENANT STAHL COMPLETED 27 YEARS' SERVICE CREDITABLE FOR PAY PURPOSES. HOWEVER, THIS COMPLETION OF AN ADDITIONAL INCREMENT OF SERVICE DID NOT TEND TO INCREASE HIS PAY AND ALLOWANCES ON AND AFTER 7 JUNE 1944, FOR THREE REASONS, NAMELY:

(1) THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON 4 DECEMBER 1943 ($458.33) EXCEEDED THE PAY AND ALLOWANCES OF A SECOND LIEUTENANT WITH OVER 27 YEARS' SERVICE;

(2) UNDER THE RULINGS SET FORTH IN REFERENCE (A) HIS "SAVED PAY AND ALLOWANCES" WERE LIMITED TO THOSE TO WHICH ENTITLED ON 4 DECEMBER 1943, DATE OF TEMPORARY APPOINTMENT; AND

(3) THE OFFICER WAS ALREADY ENTITLED TO THE MAXIMUM PAY AND ALLOWANCES PAYABLE TO A COMMISSIONED WARRANT OFFICER.

FURTHER, ON PROMOTION TO FIRST LIEUTENANT ON 2 APRIL 1945, LIEUTENANT STAHL RECEIVED NO INCREASE IN PAY AND ALLOWANCES SINCE HIS SAVED PAY AND ALLOWANCES EXCEEDED THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT WITH OVER 27 YEARS' SERVICE.

5. THE ACT APPROVED 29 JUNE 1946, PUBLIC LAW 474, 79TH CONGRESS, FURTHER AMENDED THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, BY ESTABLISHING NEW BASE RATES OF PAY FOR EACH OF THE SEVERAL PAY PERIODS ESTABLISHED BY THE FIRST SECTION THEREOF, AND INCREASED THE LIMITATION ON THE TOTAL PAY AND ALLOWANCES OF COMMISSIONED WARRANT OFFICERS, AS CONTAINED IN THE SEVENTH PARAGRAPH OF SECTION 8 OF SAID ACT, FROM $458.33 PER MONTH TO $550.00 PER MONTH IN ORDER TO GIVE FULL EFFECT TO THE INCREASE IN THE BASE PAY OF OFFICERS OF THIS CATEGORY.

6. THE QUESTION FOR PRESENTATION TO THE COMPTROLLER GENERAL OF THE UNITED STATES IS AS OLLOWS:

(1) MAY LIEUTENANT STAHL COMPUTE HIS "SAVED PAY AND ALLOWANCES" ON THE BASIS OF THE RATES OF PAY ESTABLISHED BY PUBLIC LAW 474, ON AND AFTER 1 JULY 1946, I.E.: PAY WITH OVER 24 YEARS' SERVICE ------------- ----------- -----$385.00 SUBSISTENCE ---------------------------------- -------------- - 63.00 RENTAL (AS LIMITED) --------------------------- -------------- 102.00

TOTAL ----------------------------------------------$550.00

7. IN CONNECTION WITH THE CASE OF LIEUTENANT STAHL IT IS REQUESTED THAT THE COMPTROLLER GENERAL TAKE INTO CONSIDERATION THE FOLLOWING FACTS:

(A) THAT SECTION 4 OF PUBLIC LAW 474, APPROVED 29 JUNE 1946, MERELY ESTABLISHED NEW RATES OF BASE PAY FOR OFFICERS OF THE SEVERAL PAY PERIODS. IT IN NO WISE AFFECTED THE THEN EXISTING PAY STRUCTURE.

(B) THE INCREASE IN THE LIMITATION IMPOSED BY THE SEVENTH PARAGRAPH OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, FROM $458.33 TO $550.00 REPRESENTS AN INTENT ON THE PART OF THE CONGRESS TO INCREASE THE PAY AND ALLOWANCES OF COMMISSIONED WARRANT OFFICERS IN PROPORTION TO THE INCREASE GRANTED OTHER OFFICERS WHOSE PAY AND ALLOWANCES ARE NOT SUBJECT TO LIMITATION.

(C) IT WAS APPARENTLY NOT COMPREHENDED THAT THE LANGUAGE IN THE FIRST PROVISO CLAUSE OF SECTION 7 (A) OF THE TEMPORARY PROMOTION ACT OF 1941, AS AMENDED, MIGHT BE APPLIED TO TOLL THE RIGHT OF OFFICERS DRAWING SAVED PAY WHILE HOLDING A HIGHER TEMPORARY RANK TO THE BENEFITS OF AN INCREASE IN BASE PAY PROVIDED FOR ALL PERSONNEL.

(D) IF THE ANSWER TO THE QUESTION PROPOUNDED IN PARAGRAPH 6 IS NOT IN THE AFFIRMATIVE, LIEUTENANT STAHL IS ONLY ENTITLED TO THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT WITH OVER 27 YEARS' SERVICE FOR PAY PURPOSES ON AND AFTER 1 JULY 1946, SINCE THESE PAY AND ALLOWANCES WILL EXCEED THE "SAVED PAY AND ALLOWANCES" TO WHICH HE WAS ENTITLED ON 4 DECEMBER 1943. HIS PAY AND ALLOWANCES AS A FIRST LIEUTENANT WOULD BE AS FOLLOWS:

PAY --------------------------------- $333.50

SUBSISTENCE ------------------------- 42.00

RENTAL ------------------------------ 90.00

$465.50

THIS WOULD MEAN THAT LIEUTENANT STAHL WILL RECEIVE AN INCREASE IN PAY AND ALLOWANCES ON AND AFTER 1 JULY 1946, OF 1015 PERCENT ($465.50 OVER $458.33), WHEREAS OFFICERS OF THE SAME PERMANENT RANK AND LENGTH OF SERVICE, WHO ARE NOT HOLDING TEMPORARY APPOINTMENTS, WILL RECEIVE AN INCREASE IN PAY AND ALLOWANCES OF 20 PERCENT ($550.00 OVER $458.33).

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS ORIGINALLY ENACTED, PROVIDED AS FOLLOWS:

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, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.

THE SAID SECTION 7 (A) WAS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, WHICH IS AS FOLLOWS:

THAT SUBSECTION (A) OF SECTION 7 OF THE ACT ENTITLED "AN ACT AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS, AND FOR OTHER PURPOSES," APPROVED JULY 24, 1941 (34 U.S.C., 1940 EDITION, SUPP. I, 350F), IS HEREBY AMENDED BY STRIKING OUT THE SECOND PROVISO AND INSERTING IN LIEU THEREOF THE FOLLOWING: "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 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: PROVIDED FURTHER, THAT ENLISTED MEN WHO ARE TEMPORARILY APPOINTED TO COMMISSIONED RANK UNDER THE AUTHORITY OF THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS THE GREATER: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE TO ALL PERSONNEL HERETOFORE TEMPORARILY APPOINTED TO ANY GRADE OR RANK EXCEPT THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE PRIOR TO JUNE 1, 1942.'

IT APPEARS THAT AT SOME TIME PRIOR TO DECEMBER 4, 1943, LIEUTENANT STAHL RECEIVED A PERMANENT APPOINTMENT AS COMMISSIONED WARRANT OFFICER OF THE MARINE CORPS, THAT HE WAS SERVING UNDER SUCH APPOINTMENT ON DECEMBER 3, 1943, AND THAT AFTER HIS TEMPORARY APPOINTMENTS AS SECOND LIEUTENANT ON DECEMBER 4, 1943, AND AS FIRST LIEUTENANT ON APRIL 2, 1945, HE CONTINUED TO DRAW, BY REASON OF THE SAVING PROVISIONS IN THE ABOVE-QUOTED ACT, AS AMENDED, THE SAME PAY AND ALLOWANCES THAT HE HAD BEEN RECEIVING PRIOR TO DECEMBER 4, 1943, AS A COMMISSIONED WARRANT OFFICER, SUCH PAY AND ALLOWANCES AMOUNTING TO MORE THAN THE AMOUNT TO WHICH HE WOULD HAVE BEEN ENTITLED AS A SECOND LIEUTENANT OR AS A FIRST LIEUTENANT PRIOR TO THE EFFECTIVE DATE OF THE ACT OF JUNE 29, 1946, CITED IN THE SAID LETTER OF AUGUST 1, 1946. HIS TOTAL PAY AND ALLOWANCES ON DECEMBER 3, 1943, AS A COMMISSIONED WARRANT OFFICER, WITH OVER 20 YEARS' COMMISSIONED SERVICE WITH CREDITABLE RECORD, WITH OVER 24 YEARS' TOTAL SERVICE CREDITABLE FOR PAY PURPOSES, WITH DEPENDENTS AND NOT ASSIGNED ADEQUATE PUBLIC QUARTERS, WOULD HAVE AMOUNTED TO $518 PER MONTH EXCEPT THAT IT WAS LIMITED TO $458.33 PER MONTH BY REASON OF THE LAST PARAGRAPH OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, AS FOLLOWS:

WHEN THE TOTAL PAY AND ALLOWANCES AUTHORIZED BY THIS SECTION FOR ANY PERSON SHALL EXCEED THE RATE OF $458.33 PER MONTH, THE AMOUNT OF THE ALLOWANCES TO WHICH SUCH PERSON IS ENTITLED SHALL BE REDUCED BY THE AMOUNT ABOVE $458.33.

THE ACT OF JUNE 29, 1946, PUBLIC LAW 474, 60 STAT. 345, AMENDING THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, INCREASED THE BASE PAY OF ALL SIX OF THE PAY PERIODS PROVIDED FOR OFFICERS, AND SECTION 2 (B) THEREOF, 60 STAT. 344, AMENDED THE LAST PARAGRAPH OF THE ABOVE-QUOTED SECTION 8 TO READ AS FOLLOWS:

WHEN THE TOTAL PAY AND ALLOWANCES AUTHORIZED BY THIS SECTION FOR ANY PERSON SHALL EXCEED THE RATE OF $550 PER MONTH, THE AMOUNT OF THE ALLOWANCES TO WHICH SUCH PERSON IS ENTITLED SHALL BE REDUCED BY THE AMOUNT ABOVE $550.

THE MONTHLY PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER, WITH THE SAME LENGTH AND TYPE OF SERVICE AS LIEUTENANT STAHL HAD ON DECEMBER 3, 1943, AND SERVING UNDER THE SAME CONDITIONS AS LIEUTENANT STAHL, COMPUTED ON THE NEW RATE OF BASE PAY ($3,300 PER YEAR) PROVIDED IN THE ACT OF JUNE 29, 1946, SUPRA, FOR OFFICERS ENTITLED TO THE PAY OF THE FOURTH PAY PERIOD, WOULD EXCEED $550 EXCEPT FOR THE LIMITATION TO THAT AMOUNT IN THE ABOVE-QUOTED AMENDMENT OF SECTION 8. AS A FIRST LIEUTENANT, STAHL'S MONTHLY PAY AND ALLOWANCES COMPUTED ON THE NEW RATE OF BASE PAY FOR THE THIRD PAY PERIOD ($2,760 PER YEAR) WOULD AMOUNT TO $465.50 IN A 30-DAY MONTH.

UNDER THE PLAIN LANGUAGE OF THE ABOVE-QUOTED AMENDATORY ACT OF NOVEMBER 30, 1942, LIEUTENANT STAHL IS ENTITLED TO BE PAID EITHER THE "PAY AND ALLOWANCES * * * PROVIDED BY LAW" FOR THE POSITION "TEMPORARILY OCCUPIED" OR THE "PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF * * * TEMPORARY APPOINTMENT," WHICHEVER IS HIGHER. HE HAS NO RIGHT, WHILE HOLDING HIS TEMPORARY APPOINTMENT AS FIRST LIEUTENANT, TO THE "PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED (AS A PERMANENT COMMISSIONED WARRANT OFFICER UNDER SUBSEQUENT LEGISLATION) HAD HE NOT BEEN SO TEMPORARILY APPOINTED.' 23 COMP. GEN. 21; B-49428, AUGUST 2, 1945; B- 50548, SEPTEMBER 5, 1945; B-32718, JULY 26, 1943. CF. 24 COMP. GEN. 739. THAT CONCLUSION IS REQUIRED BY THE CLEAR TERMS OF THE EXISTING STATUTORY PROVISIONS, AND TO HOLD OTHERWISE WOULD BE TO DENY EFFECT TO THE STATUTORY AMENDMENT OF NOVEMBER 30, 1942.

SINCE IT APPEARS THAT AT THE TIME OF HIS TEMPORARY APPOINTMENT AS FIRST LIEUTENANT, STAHL WAS ENTITLED TO SAVED PAY AND ALLOWANCES IN THE AMOUNT OF $458.33 PER MONTH AND SINCE THE PAY AND ALLOWANCES NOW "PROVIDED BY LAW" FOR A FIRST LIEUTENANT WITH OVER 27 YEARS' CREDITABLE SERVICE FOR PAY PURPOSES, WITH DEPENDENTS, AND NOT ASSIGNED ADEQUATE PUBLIC QUARTERS, AMOUNTS TO $465.50 IN A 30-DAY MONTH, LIEUTENANT STAHL IS NOT ENTITLED TO PAY AND ALLOWANCES IN EXCESS OF THIS LATTER AMOUNT EXCEPT FOR THE ADDITIONAL SUBSISTENCE ALLOWANCE OF $1.40 IN A 31-DAY MONTH. ACCORDINGLY, THE QUESTION PRESENTED IN THE SIXTH PARAGRAPH OF THE COMMANDANT'S LETTER MUST BE, AND IS, ANSWERED IN THE NEGATIVE.