B-81489, MARCH 14, 1949, 28 COMP. GEN. 512

B-81489: Mar 14, 1949

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THERE MAY BE INCLUDED IN THE SAVED COMPENSATION A FOREIGN DUTY DIFFERENTIAL WHICH WAS APPLICABLE TO THEIR PERMANENT CIVILIAN POSITIONS AS PART OF THEIR REGULAR CIVILIAN COMPENSATION WHEN COMMISSIONED IN THE COAST GUARD. SUCH FOREIGN DUTY DIFFERENTIAL MAY CONTINUE TO BE INCLUDED IN THE SAVED COMPENSATION EVEN THOUGH SUCH OFFICERS SUBSEQUENTLY ARE TRANSFERRED TO POSTS OF DUTY IN THE CONTINENTAL UNITED STATES. WHO IS COMMISSIONED. PERSONNEL OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION WAS TRANSFERRED TO THE COAST GUARD BY EXECUTIVE ORDER NO. 9083. CERTAIN OF THE INSPECTORS OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION WERE ON ASSIGNMENT TO POSTS OF DUTY IN HONOLULU. THEREAFTER CERTAIN OF THOSE INSPECTORS WERE COMMISSIONED IN THE COAST GUARD RESERVE.

B-81489, MARCH 14, 1949, 28 COMP. GEN. 512

SAVED PAY AND ALLOWANCES - FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION EMPLOYEE IN COAST GUARD UNDER SECTION 13 OF THE ACT OF JULY 23, 1947, SAVING TO COAST GUARD OFFICERS THE ANNUAL COMPENSATION AND ALLOWANCES APPLICABLE TO THEIR CIVILIAN POSITIONS WITH THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AT THE TIME OF COMMISSIONING, THERE MAY BE INCLUDED IN THE SAVED COMPENSATION A FOREIGN DUTY DIFFERENTIAL WHICH WAS APPLICABLE TO THEIR PERMANENT CIVILIAN POSITIONS AS PART OF THEIR REGULAR CIVILIAN COMPENSATION WHEN COMMISSIONED IN THE COAST GUARD, AND SUCH FOREIGN DUTY DIFFERENTIAL MAY CONTINUE TO BE INCLUDED IN THE SAVED COMPENSATION EVEN THOUGH SUCH OFFICERS SUBSEQUENTLY ARE TRANSFERRED TO POSTS OF DUTY IN THE CONTINENTAL UNITED STATES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 14, 1949:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 4, 1948, IN WHICH YOU PRESENT CERTAIN QUESTIONS RESPECTING THE OPERATION OF SECTION 13 OF THE ACT OF JULY 23, 1947, 60 STAT. 413, WHICH SECTION PROVIDES, GENERALLY, THAT ANY EMPLOYEE OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION, DEPARTMENT OF COMMERCE, WHO IS COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO CERTAIN OTHER PROVISIONS OF THE SAID ACT OF JULY 23, 1947, SHALL NOT SUFFER ANY REDUCTION IN ANNUAL COMPENSATION, INCLUDING ALLOWANCES, BELOW THE COMPENSATION APPLICABLE TO HIS PERMANENT CIVIL SERVICE POSITION AT THE TIME OF SUCH COMMISSION, APPOINTMENT, OR ENLISTMENT, EXCLUSIVE OF OVERTIME COMPENSATION.

IT APPEARS THAT, WHEN A PORTION OF THE FUNCTIONS, RECORDS, PROPERTY, AND PERSONNEL OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION WAS TRANSFERRED TO THE COAST GUARD BY EXECUTIVE ORDER NO. 9083, DATED FEBRUARY 28, 1942, CERTAIN OF THE INSPECTORS OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION WERE ON ASSIGNMENT TO POSTS OF DUTY IN HONOLULU, HAWAII, SAN JUAN, PUERTO RICO, AND JUNEAU, ALASKA. THEREAFTER CERTAIN OF THOSE INSPECTORS WERE COMMISSIONED IN THE COAST GUARD RESERVE, ASSIGNED TO MILITARY DUTY, AND PLACED ON MILITARY FURLOUGH FROM THEIR CIVILIAN POSITIONS.

WHILE ON MILITARY FURLOUGH FROM THEIR CIVILIAN POSITIONS AND WHILE IN THE ACTIVE SERVICE AS MEMBERS OF THE COAST GUARD RESERVE, THOSE INSPECTORS WERE ADVISED THAT THE PAY OF THEIR CIVILIAN POSITIONS HAD BEEN INCREASED BY THE ADDITION OF A PAY DIFFERENTIAL OF 25 PERCENTUM PURSUANT TO EXECUTIVE ORDER NO. 8955 OF DECEMBER 1, 1941 (WHICH SUBSEQUENTLY WAS REVOKED BY EXECUTIVE ORDER NO. 9314, DATED MARCH 15, 1943), AND LETTER OF AUTHORITY OF THE NAVY DEPARTMENT DATED DECEMBER 13, 1942, WHICH WAS BASED UPON A DECISION OF THIS OFFICE, B-30338, DATED NOVEMBER 23, 1942, 22 COMP. GEN. 491, TO THE CIVIL SERVICE COMMISSION. IT IS STATED THAT SUCH EMPLOYEES CONTINUED TO SERVE IN THEIR MILITARY CAPACITIES UNTIL FEBRUARY 1948, AT WHICH TIME, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF JULY 23, 1947, SUPRA, THEY WERE OFFERED THE ELECTION OF ACCEPTING PERMANENT COMMISSIONS IN THE REGULAR COAST GUARD OR RETURNING TO THEIR FORMER CIVIL SERVICE POSITIONS. YOUR QUESTIONS INVOLVE THOSE EMPLOYEES WHO PURSUANT TO SUCH OFFER ACCEPTED COMMISSIONS IN THE REGULAR COAST GUARD IN LIEU OF REVERTING TO THEIR FORMER CIVILIAN STATUS. AS TO SUCH PERSONS, YOUR QUESTIONS ARE---

(1) SINCE THE PERSONNEL FORMERLY ASSIGNED TO HONOLULU, SAN JUAN, AND JUNEAU COULD HAVE REVERTED TO THEIR CIVILIAN STATUS AND PAY, WOULD SUCH PERSONNEL, SUBSEQUENT TO COMMISSIONING, BE ENTITLED TO CONTINUE TO RECEIVE THE 25 PERCENT PAY DIFFERENTIAL BECAUSE OF THE SAVING PROVISION OF SECTION 13 OF THE ACT OF JULY 23, 1947?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE WOULD SUCH OFFICERS CONTINUE TO BE ENTITLED TO RECEIVE THE 25 PERCENT DIFFERENTIAL AS PART OF THEIR "SAVED PAY" IF THEY ARE SUBSEQUENTLY TRANSFERRED TO POSTS OF DUTY IN THE CONTINENTAL UNITED STATES?

SECTION 13 OF THE ACT OF JULY 23, 1947, 61 STAT. 413, PROVIDES---

NO PERSON DESCRIBED IN CATEGORY (6) OF SECTION 3, CATEGORY (7) OF SECTION 5, OR CATEGORY (5) OF SECTION 6 WHO IS COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THE PROVISIONS OF THIS ACT SHALL SUFFER ANY REDUCTION IN ANNUAL COMPENSATION, INCLUDING ALLOWANCES, BELOW THE COMPENSATION APPLICABLE TO HIS PERMANENT CIVIL SERVICE POSITION AT THE TIME OF SUCH COMMISSIONING, APPOINTMENT, OR ENLISTMENT, EXCLUSIVE OF OVERTIME COMPENSATION, AND THE CIVIL-SERVICE STATUS, TENURE, SENIORITY, AND COMPENSATION OF ANY SUCH PERSON WHO FOR ANY REASON IS NOT COMMISSIONED, APPOINTED, OR ENLISTED UNDER THE PROVISIONS OF THIS ACT SHALL NOT BE IMPAIRED BY REASON OF THIS ACT.

AS YOU DOUBTLESS ARE AWARE, THE LONG-EXISTING ADMINISTRATIVE PRACTICE--- WHICH THIS OFFICE PREVIOUSLY HAD RECOGNIZED IN MANY DECISIONS--- OF PAYING A DIFFERENTIAL IN SALARY RATES OF NOT TO EXCEED 25 PERCENTUM FOR SERVICE OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA NOW HAS BEEN SUPERSEDED BY SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, AND BY THE RULES AND REGULATIONS ISSUED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10,000, OF SEPTEMBER 16, 1948, ISSUED PURSUANT THERETO. HOWEVER, PRIOR TO THE ENACTMENT OF THAT SECTION, AND AT THE TIME THE COMMISSIONS IN THE PRESENT CASE WERE ISSUED, THE DIFFERENTIAL, WHEN FIXED BY PROPER AUTHORITY, BECAME A PART OF THE REGULAR SALARY OR COMPENSATION FOR THE POSITION. SEE 26 COMP. GEN. 660, AND CASES THEREIN CITED. AS SUCH, IT WOULD APPEAR TO COME SQUARELY WITHIN THE WORDING OF THE SAVING PROVISION OF SECTION 13 OF SAID ACT OF JULY 23, 1947.

SINCE IT IS STATED THAT THE PERSONNEL FORMERLY ASSIGNED TO HONOLULU, SAN JUAN, AND JUNEAU COULD HAVE REVERTED TO THEIR FORMER POSITIONS (PRESUMABLY UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED AND RELATED ACTS), NO REASON APPEARS WHY, IN THE COMPENSATION SAVED TO THEM UNDER THE PROVISIONS OF SECTION 13 OF THE ACT OF JULY 23, 1947, SUPRA, THERE SHOULD NOT BE INCLUDED THE DIFFERENTIAL WHICH, AS STATED IN YOUR LETTER, WAS APPLICABLE TO THEIR PERMANENT CIVIL SERVICE POSITIONS "AT THE TIME OF SUCH COMMISSIONING" IN THE COAST GUARD IN FEBRUARY 1948. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO YOUR SECOND QUESTION, IT MAY BE STATED THAT THE STATUTE SPECIFICALLY MAKES REFERENCE TO THE COMPENSATION APPLICABLE TO THE PERMANENT CIVIL SERVICE POSITION "AT THE TIME OF SUCH COMMISSIONING.' HENCE, THERE DO NOT APPEAR TO BE FOR CONSIDERATION CHANGES WHICH THEREAFTER MIGHT BE EFFECTED IN THE COMPENSATION OF THE EMPLOYEE IF HE HAD ELECTED TO RETURN TO HIS CIVILIAN POSITION. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.