B-80638, OCTOBER 27, 1948, 28 COMP. GEN. 266

B-80638, OCTOBER 27, 1948, 28 COMP. GEN. 266

COMPENSATION - DIFFERENTIAL - SELECTIVE SERVICE SYSTEM EMPLOYEES UNDER SECTION 301 OF EXECUTIVE ORDER NO. 10000, ISSUED PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, AUTHORIZING THE TEMPORARY CONTINUANCE OF ADDITIONAL COMPENSATION PAYMENTS FOR POSITIONS OUTSIDE CONTINENTAL UNITED STATES ON THE BASIS OF PREVIOUSLY EXISTING ADMINISTRATIVE PRACTICES IN EFFECT PRIOR TO APRIL 20, 1948, SUCH DIFFERENTIAL PAYMENTS, NOT IN EXCESS OF 25 PERCENT OF THE RATES PAID FOR COMPARABLE SERVICES IN CONTINENTAL UNITED STATES, MAY BE PAID TO THE SELECTIVE SERVICE SYSTEM EMPLOYEES IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS, EVEN THOUGH THE SYSTEM, AS PRESENTLY CONSTITUTED, DID NOT EXIST PRIOR TO APRIL 20, 1948.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF SELECTIVE SERVICE, OCTOBER 27, 1048:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 30, 1948, FILE 1-49-1, IN WHICH YOU REQUEST DECISION UPON THE QUESTION OF WHETHER THE SELECTIVE SERVICE SYSTEM, OPERATING UNDER THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 604, PROPERLY MAY PAY A SALARY DIFFERENTIAL TO CERTAIN OF ITS OFFICERS AND EMPLOYEES IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS, PENDING ISSUANCE OF INSTRUCTIONS AND RATES BY THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948.

THE SELECTIVE SERVICE SYSTEM AS IT NOW EXISTS WAS ESTABLISHED BY SECTION 10 OF THE SELECTIVE SERVICE ACT OF 1948, APPROVED JUNE 24, 1948, 62 STAT. 618, WHICH, AMONG OTHER THINGS, TRANSFERRED TO THE SELECTIVE SERVICE SYSTEM AND THE DIRECTOR OF SELECTIVE SERVICE THE FUNCTIONS OF THE OFFICE OF SELECTIVE SERVICE RECORDS AND OF THE DIRECTOR OF THE OFFICE OF SELECTIVE SERVICE RECORDS. THE OFFICE OF SELECTIVE SERVICE RECORDS, HEADED BY A DIRECTOR, WAS ESTABLISHED BY PUBLIC LAW 26, APPROVED MARCH 31, 1947, 61 STAT. 31, FOR THE PURPOSE OF LIQUIDATING THE SELECTIVE SERVICE SYSTEM--- WHICH HAD BEEN CREATED PURSUANT TO AUTHORITY CONTAINED IN SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 893--- FOLLOWING THE TERMINATION OF THE FUNCTIONS OF THAT AGENCY AND FOR THE PURPOSE, AMONG OTHERS, OF PRESERVING AND SERVICING THE SELECTIVE SERVICE RECORDS.

IT IS UNDERSTOOD FROM YOUR LETTER (1) THAT THE COMPENSATION FOR CERTAIN POSITIONS IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS WITH THE SELECTIVE SERVICE SYSTEM, UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WAS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, AT RATES OF PAY EQUAL TO THOSE PAID FOR THE SAME OR SIMILAR SERVICES PERFORMED IN THE CONTINENTAL UNITED STATES, PLUS A DIFFERENTIAL OF NOT TO EXCEED 25 PERCENTUM; (2) THAT WHEN THE OFFICE OF SELECTIVE SERVICE RECORDS WAS ESTABLISHED COMPENSATION WAS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND A DIFFERENTIAL WAS NOT PAID; AND (3) UPON THE REESTABLISHMENT OF THE SELECTIVE SERVICE SYSTEM, UNDER THE SELECTIVE SERVICE ACT OF 1948, THE COMPENSATION FOR CERTAIN POSITIONS IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS AGAIN HAS BEEN FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, AT RATES OF PAY EQUAL TO THOSE PAID FOR THE SAME OR SIMILAR SERVICES IN THE CONTINENTAL UNITED STATES, PLUS A DIFFERENTIAL OF NOT TO EXCEED 25 PERCENTUM.

PRIOR TO THE ENACTMENT OF SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, APPROVED APRIL 20, 1948, 62 STAT. 194, THIS OFFICE IN A NUMBER OF DECISIONS HAD RECOGNIZED THE LONG-EXISTING ADMINISTRATIVE PRACTICE OF PROVIDING COMPENSATION FOR POSITIONS OUTSIDE THE CONTINENTAL UNITED STATES, WHICH INCLUDED A DIFFERENTIAL OF NOT TO EXCEED 25 PERCENTUM IN ADDITION TO THE RATES OF COMPENSATION PROVIDED FOR COMPARABLE GOVERNMENT POSITIONS IN THE CONTINENTAL UNITED STATES. SEE 26 COMP. GEN. 660, AND CASES THEREIN CITED. THE PURPOSE OF SAID SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS ORIGINALLY ENACTED, WAS TO MAKE UNIFORM THAT RECOGNIZED PRACTICE. SEE PAGE 4 OF HOUSE REPORT 1288, 80TH CONGRESS, SECOND SESSION. THAT PURPOSE DOES NOT APPEAR TO HAVE BEEN CHANGED BY THE AMENDED WORDING OF THE SECTION CONTAINED IN SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, PUBLIC LAW 862, APPROVED JUNE 30, 1948, 62 STAT. 1205, WHICH PROVIDES:

SEC. 104. SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 207. ANY APPROPRIATIONS OR FUNDS AVAILABLE TO THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS FOR THE PAYMENT OF SALARIES AND COMPENSATION TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO SUCH PERSONS BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA, OR CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE STATES AND WARRANT ADDITIONAL COMPENSATION AS A RECRUITMENT INCENTIVE, OR BOTH SUCH ACTORS: PROVIDED, THAT SUCH ADDITIONAL COMPENSATION EXCEPT AS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, SHALL BE PAID ONLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT ESTABLISHING RATES OF SUCH ADDITIONAL COMPENSATION AND DEFINING THE AREA, GROUPS OF POSITIONS, AND CLASSES OF PERSONS TO WHICH EACH SUCH RATE APPLIES: PROVIDED FURTHER, THAT NO ADDITIONAL COMPENSATION BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA SHALL BE PAID UNDER THIS SECTION TO ANY PERSON WHO IS ENTITLED TO RECEIVE A COST-OF-LIVING ALLOWANCE UNDER SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946 OR SECTION 204 OF THIS ACT: PROVIDED FURTHER, THAT SUCH ADDITIONAL COMPENSATION SHALL NOT EXCEED IN ANY INSTANCE 25 PERCENTUM OF THE RATE OF BASIC COMPENSATION: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE SIXTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT, OR ON SUCH EARLIER DATE AS MAY BE SPECIFIED IN REGULATIONS ISSUED BY THE PRESIDENT HEREUNDER, AND ADDITIONAL COMPENSATION PAYABLE UNDER REGULATIONS AND PROCEDURES IN EFFECT ON THE DATE OF APPROVAL OF THIS ACT MAY CONTINUE TO BE PAID UNTIL THE EFFECTIVE DATE OF THIS SECTION.'

SINCE, BY SPECIFIC PROVISION, SAID SECTION OF THE STATUTE WAS NOT TO BECOME EFFECTIVE UNTIL ,SIXTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT, OR ON SUCH EARLIER DATE AS MAY BE SPECIFIED IN REGULATIONS ISSUED BY THE PRESIDENT" THERE APPARENTLY IS NO QUESTION THAT AMPLE AUTHORITY EXISTED WHEN THE SELECTIVE SERVICE SYSTEM WAS ESTABLISHED BY THE SELECTIVE SERVICE ACT OF 1948 FOR AUTHORIZING THE PAYMENT OF A DIFFERENTIAL TO THE OCCUPANTS OF POSITIONS WITH THE SELECTIVE SERVICE SYSTEM IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS, IN ACCORDANCE WITH THE PRACTICE WHICH HAD BEEN RECOGNIZED PRIOR TO THE ENACTMENT OF THAT SECTION. YOUR INQUIRY MORE PARTICULARLY APPEARS TO BE WHETHER, UNDER THE WORDING OF THE REGULATIONS PROVIDING FOR THE PAYMENT OF A DIFFERENTIAL WHICH WERE PRESCRIBED BY THE PRESIDENT UNDER EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948, A DIFFERENTIAL MAY CONTINUE TO BE PAID. THAT EXECUTIVE ORDER, INTER ALIA, DIRECTS THE SECRETARY OF STATE AS TO FOREIGN AREAS, AND THE CIVIL SERVICE COMMISSION AS TO TERRITORIES, TO FIX THE ADDITIONAL COMPENSATION RATES AS WELL AS THE AREAS TO WHICH EACH SUCH ADDITIONAL COMPENSATION RATE SHALL APPLY. SECTION 301 OF THAT EXECUTIVE ORDER PROVIDES:

SEC. 301. TEMPORARY REGULATIONS.--- DURING THE PERIOD COMMENCING WITH THE DATE OF THIS ORDER OR THE EFFECTIVE DATE OF SECTION 207 OF THE ACT (AS DEFINED IN SECTION 101 HEREOF), WHICHEVER SHALL OCCUR EARLIER, AND ENDING ON A DATE OR DATES FIXED BY THE SECRETARY OF STATE AND THE CIVIL SERVICE COMMISSION, RESPECTIVELY, AS THE EFFECTIVE DATES OF THE DESIGNATION OF PLACES AND OF THE FIXING OF ADDITIONAL RATES OF COMPENSATION, UNDER PARTS I AND II OF THIS ORDER, BUT IN NO EVENT LATER THAN JANUARY 1, 1949, AND NOTWITHSTANDING THE PROVISIONS OF PARTS I AND II OF THIS ORDER, THE PAYMENT OF SALARIES AND COMPENSATION (INCLUDING THE PAYMENT OF ADDITIONAL COMPENSATION) OF PERSONS SUBJECT TO THE PROVISIONS OF SAID SECTION 207 SHALL BE GOVERNED BY THE REGULATIONS AND PRACTICES IN EFFECT IN THE RESPECTIVE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS IMMEDIATELY PRIOR TO APRIL 20, 1948. EXECUTIVE ORDER NO. 9962 OF MAY 24, 1948 IS HEREBY REVOKED. ( ITALICS SUPPLIED.) INASMUCH AS THE SELECTIVE SERVICE SYSTEM, AS PRESENTLY CONSTITUTED, WAS NOT IN EXISTENCE IMMEDIATELY PRIOR TO APRIL 20, 1948, THE SPECIFIC QUESTION APPEARS TO BE WHETHER THERE NOW EXISTS ANY BASIS FOR PAYMENT OF ADDITIONAL COMPENSATION.

WHILE A STRICT CONSTRUCTION OF THAT SECTION MIGHT WARRANT A CONCLUSION THAT AT THE PRESENT TIME THERE EXISTS NO BASIS UPON WHICH ADDITIONAL COMPENSATION COULD BE PAID TO EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM AT POINTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES FOR THE REASON THAT THERE WAS NO PRACTICE IN EFFECT IN THE SELECTIVE SERVICE SYSTEM OF PAYING ADDITIONAL COMPENSATION IMMEDIATELY PRIOR TO APRIL 20, 1948, YET, HAVING IN MIND THAT THE PURPOSE OF THE LEGISLATION AUTHORIZING THE PAYMENT OF ADDITIONAL COMPENSATION WAS TO MAKE UNIFORM A PREVIOUSLY EXISTING PRACTICE AND THAT THE APPARENT PURPOSE OF SECTION 301 OF THE EXECUTIVE ORDER, SUPRA, WAS TO AUTHORIZE PAYMENTS TO CONTINUE IN ACCORDANCE WITH THAT PREVIOUSLY EXISTING PRACTICE UNTIL SUCH TIME AS SPECIFIC RATES AND AREAS HAVE BEEN PRESCRIBED BY THE SECRETARY OF STATE AND THE CIVIL SERVICE COMMISSION, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF ADDITIONAL COMPENSATION TO EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM IN ALASKA, HAWAII, PUERTO RICO, AND THE VIRGIN ISLANDS, IN AMOUNTS NOT EXCEEDING 25 PERCENTUM OF THE RATES PAID FOR THE SAME OR SIMILAR SERVICES IN THE CONTINENTAL UNITED STATES.

HOWEVER, IT SHOULD BE NOTED THAT UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, SUPRA, AND THE REGULATIONS ISSUED THEREUNDER, SUCH ADDITIONAL COMPENSATION NO LONGER MAY BE CONSIDERED AS COMPENSATION FIXED FOR A POSITION AND PAYABLE TO THE OCCUPANT OF A POSITION AS PART OF THE SALARY FOR THAT POSITION, BUT NOW IS ADDITIONAL COMPENSATION PAYABLE UPON A PERSONAL BASIS, AND BY SECTION 208 (B) OF EXECUTIVE ORDER NO. 10000 (CONTRARY TO THE PREVIOUSLY RECOGNIZED PRACTICE) IT MAY NOT BE INCLUDED IN THE BASE USED IN COMPUTING OVERTIME, HOLIDAY PAY, AND RETIREMENT DEDUCTIONS.