B-67952, AUGUST 20, 1947, 27 COMP. GEN. 109

B-67952: Aug 20, 1947

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WHO ARE ON A PARITY WITH FOREIGN SERVICE OFFICERS WITH RESPECT TO THE CLASSES TO WHICH THEY ARE APPOINTED OR ASSIGNED AND THE SALARIES THEY RECEIVE. IN VIEW OF THE FACT THAT FOREIGN SERVICE OFFICERS ARE PROMOTED "BY APPOINTMENT TO A HIGHER CLASS" IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 621. RECEIVE A RATE HIGHER THAN THE LOWEST RATE IN THE CLASS TO WHICH HE IS PROMOTED. IT IS DESIRED. TO PERMIT THE RESERVE OFFICER WHO HAS BEEN PROMOTED TO RECEIVE ANY ONE OF THE RATES OF THE CLASS TO WHICH HE IS PROMOTED. IT IS BELIEVED THAT SECTION 624. IS SUFFICIENTLY BROAD IN ITS LANGUAGE TO JUSTIFY THE DESIRED INTERPRETATION. THE QUESTION IS NOT ENTIRELY FREE FROM DOUBT. (B) A RESERVE OFFICER SHALL RECEIVE SALARY AT ANY ONE OF THE RATES PROVIDED FOR THE CLASS TO WHICH HE IS APPOINTED OR ASSIGNED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 523.

B-67952, AUGUST 20, 1947, 27 COMP. GEN. 109

COMPENSATION - PROMOTIONS - INITIAL SALARY RATE - FOREIGN SERVICE RESERVE OFFICERS FOREIGN SERVICE RESERVE OFFICERS, WHO ARE ON A PARITY WITH FOREIGN SERVICE OFFICERS WITH RESPECT TO THE CLASSES TO WHICH THEY ARE APPOINTED OR ASSIGNED AND THE SALARIES THEY RECEIVE, MAY, IN VIEW OF THE FACT THAT FOREIGN SERVICE OFFICERS ARE PROMOTED "BY APPOINTMENT TO A HIGHER CLASS" IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 621, 622, AND 623 OF THE FOREIGN SERVICE ACT OF 1946 "AT THE MINIMUM RATE" PROVIDED FOR SUCH HIGHER CLASS PURSUANT TO SECTION 413 (B) OF SAID ACT, BE PROMOTED FROM ONE CLASS TO THE NEXT HIGHER CLASS ONLY AT THE MINIMUM RATE PROVIDED FOR SUCH HIGHER CLASS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, AUGUST 20, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 10, 1947, REFERENCE LE/A, AS FOLLOWS:

SECTION 624 OF THE FOREIGN SERVICE ACT OF 1946 PROVIDES THAT:

"ANY RESERVE OFFICER MAY RECEIVE PROMOTIONS FROM ONE CLASS TO A NEXT HIGHER CLASS IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY.'

IN PREPARING THE REGULATIONS UNDER THE FOREGOING SECTION OF THE ACT, A QUESTION HAS ARISEN WHETHER A RESERVE OFFICER MAY, UPON PROMOTION FROM ONE CLASS TO ANOTHER, RECEIVE A RATE HIGHER THAN THE LOWEST RATE IN THE CLASS TO WHICH HE IS PROMOTED, OR, TO PUT IT CONVERSELY, WHETHER HE MUST NECESSARILY RECEIVE THE LOWEST RATE OF THAT CLASS. IF POSSIBLE, IT IS DESIRED, IN THE INTERESTS OF ADMINISTRATIVE FLEXIBILITY, TO PERMIT THE RESERVE OFFICER WHO HAS BEEN PROMOTED TO RECEIVE ANY ONE OF THE RATES OF THE CLASS TO WHICH HE IS PROMOTED. IT IS BELIEVED THAT SECTION 624, SINCE IT IMPOSES NO LIMITS UPON THE DISCRETION OF THE SECRETARY, IS SUFFICIENTLY BROAD IN ITS LANGUAGE TO JUSTIFY THE DESIRED INTERPRETATION. AS, HOWEVER, THE QUESTION IS NOT ENTIRELY FREE FROM DOUBT, YOUR ADVICE WOULD BE APPRECIATED.

SECTIONS 412, 413, AND 414 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1003, PROVIDE AS OLLOWS:

SEC. 412. THERE SHALL BE SEVEN CLASSES OF FOREIGN SERVICE OFFICERS, INCLUDING THE CLASS OF CAREER MINISTER. THE PER ANNUM SALARY OF A CAREER MINISTER SHALL BE $13,500. THE PER ANNUM SALARIES OF FOREIGN SERVICE OFFICERS WITHIN EACH OF THE OTHER CLASSES SHALL BE AS FOLLOWS:

CLASS 1, $12,000, $12,400, $12,800, $13,200, $13,500;

CLASS 2, $10,000, $10,350, $10,700, $11,050, $11,400, $11,750, $11,900;

CLASS 3, $8,000, $8,300, $8,600, $8,900, $9,200, $9,500, $9,800, $9,900;

CLASS 4, $6,000, $6,300, 6,600, $6,900, $7,200, $7,500, $7,800, $7,900;

CLASS 5, $4,500, $4,700, $4,900, $5,100, $5,300, $5,500, $5,700, $5,900;

CLASS 6, $3,300, $3,500, $3,700, $3,900, $4,100, $4,300, $4,400.

SALARIES AT WHICH FOREIGN SERVICE OFFICERS MAY BE APPOINTED

SEC. 413. (A) A PERSON APPOINTED AS A FOREIGN SERVICE OFFICER OF CLASS 6 SHALL RECEIVE SALARY AT THAT ONE OF THE RATES PROVIDED FOR THAT CLASS BY SECTION 412 WHICH THE SECRETARY SHALL, TAKING INTO CONSIDERATION HIS AGE, QUALIFICATIONS, AND EXPERIENCE, DETERMINE TO BE APPROPRIATE FOR HIM TO RECEIVE.

(B) A PERSON APPOINTED AS A FOREIGN SERVICE OFFICER OF CLASSES 1 THROUGH 5, INCLUSIVE, SHALL RECEIVE SALARY AT THE MINIMUM RATE PROVIDED FOR THE CLASS TO WHICH HE HAS BEEN APPOINTED.

SEC. 414. (A) THERE SHALL BE SIX CLASSES OF FOREIGN SERVICE RESERVE OFFICERS, REFERRED TO HEREAFTER AS RESERVE OFFICERS, WHICH CLASSES SHALL CORRESPOND TO CLASSES 1 TO 6 OF FOREIGN SERVICE OFFICERS.

(B) A RESERVE OFFICER SHALL RECEIVE SALARY AT ANY ONE OF THE RATES PROVIDED FOR THE CLASS TO WHICH HE IS APPOINTED OR ASSIGNED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 523.

(C) A PERSON ASSIGNED AS A RESERVE OFFICER FROM ANY GOVERNMENT AGENCY SHALL RECEIVE HIS SALARY FROM APPROPRIATIONS PROVIDED FOR THE DEPARTMENT DURING THE PERIOD OF HIS SERVICE AS A RESERVE OFFICER.

SECTION 523 OF SAID STATUTE, 60 STAT. 1009, PROVIDES THAT THE CLASS TO WHICH A RESERVE OFFICER ,SHALL BE APPOINTED OR ASSIGNED SHALL DEPEND UPON HIS AGE, QUALIFICATIONS, AND EXPERIENCE," AND SECTION 414 (B), SUPRA, STATES THAT HE SHALL RECEIVE SALARY "AT ANY ONE OF THE RATES" PROVIDED FOR SUCH CLASS. THUS, IT SEEMS CLEAR THAT A RESERVE OFFICER'S AGE, QUALIFICATIONS, AND EXPERIENCE CONSTITUTES FACTORS WHICH ARE REQUIRED TO BE CONSIDERED IN DETERMINING THE CLASS TO WHICH HE SHOULD BE APPOINTED INITIALLY, AND IN FIXING HIS INITIAL SALARY "AT ANY ONE OF THE RATES" PROVIDED FOR SUCH CLASS. AS SHOWN UNDER SECTION 413 (A), SUPRA, THOSE FACTORS AS TO A PERSON'S AGE, QUALIFICATIONS, AND EXPERIENCE ALSO ARE REQUIRED TO BE CONSIDERED IN FIXING THE INITIAL SALARY OF FOREIGN SERVICE OFFICERS OF CLASS 6 "AT THAT ONE OF THE RATES" PROVIDED FOR SUCH CLASS. HOWEVER, IT IS STIPULATED UNDER SECTION 413 (B), SUPRA, THAT A PERSON SHALL RECEIVE SALARY "AT THE MINIMUM RATE PROVIDED FOR THE CLASS TO WHICH HE HAS BEEN APPOINTED.'

THE FACT THAT THE CLASS TO WHICH FOREIGN SERVICE RESERVE OFFICERS ARE APPOINTED OR ASSIGNED, AND THE SALARIES THEY RECEIVE, ARE THE SAME AS THOSE OF FOREIGN SERVICE OFFICERS INDICATES THAT THERE WAS AN INTENTION ON THE PART OF CONGRESS TO PLACE FOREIGN SERVICE OFFICERS UPON AN EXACT EQUALITY FOR PAY PURPOSES. SEE, IN THAT CONNECTION, SECTION 625 OF THE ACT, 60 STAT. 1014, WHICH SHOWS THAT RESERVE OFFICERS ARE GIVEN THE SAME RIGHTS TO IN-CLASS SALARY INCREASES AS FOREIGN SERVICE OFFICERS.

IN VIEW THEREOF AND SINCE THE PROMOTION OF FOREIGN SERVICE OFFICERS "BY APPOINTMENT TO A HIGHER CLASS" IN ACCORDANCE WITH PROVISIONS OF SECTIONS 621, 622, AND 623 OF THE STATUTE, 60 STAT. 1014, CAN BE MADE ONLY "AT THE MINIMUM RATE" PROVIDED FOR SUCH HIGHER CLASS (SEE SECTION 413 (B), SUPRA), YOU ARE ADVISED THAT FOREIGN SERVICE RESERVE OFFICERS PROPERLY MAY BE PROMOTED FROM ONE CLASS TO THE NEXT HIGHER CLASS ONLY AT THE MINIMUM RATE PROVIDED FOR SUCH NEXT HIGHER CLASS.