B-90114, NOVEMBER 30, 1949, 29 COMP. GEN. 238

B-90114: Nov 30, 1949

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ANY REDUCTION IN THE "TOTAL COMPENSATION" TO WHICH THEY WERE ENTITLED IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE ACT. REQUESTING DECISION AS TO THE BASIS ON WHICH YOU ARE TO ADJUST THE PAY ACCOUNT OF CORPORAL EARNEST F. THE ENLISTED MAN WAS SERVING AS PRIVATE. THAT HE WAS ENTITLED TO THE PAY OF THAT GRADE. THE ENLISTED MAN'S "TOTAL COMPENSATION" WAS $112 PER MONTH. HE WAS ENTITLED UNDER THE CAREER COMPENSATION ACT OF 1949. HE WAS ENTITLED TO BE PLACED IN PAY GRADE E-3. WHICH IS LESS THAN THE . TOTAL COMPENSATION" THAT HE WAS ENTITLED TO RECEIVE AS A PRIVATE. IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT. WHICHEVER IS EARLIER. SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT: PROVIDED.

B-90114, NOVEMBER 30, 1949, 29 COMP. GEN. 238

PAY - PROMOTION - SAVED PAY AND ALLOWANCES UNDER CAREER COMPENSATION ACT OF 1949 UNDER THE SAVINGS CLAUSE IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDING THAT FOR A LIMITED TIME ENLISTED MEMBERS OF THE UNIFORMED SERVICES SHALL NOT SUFFER, BY REASON OF THE ACT, ANY REDUCTION IN THE "TOTAL COMPENSATION" TO WHICH THEY WERE ENTITLED IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THE ACT, AN ENLISTED MAN PROMOTED TO A HIGHER GRADE AFTER THE EFFECTIVE DATE OF THE ACT, THE PAY AND ALLOWANCES OF SUCH GRADE BEING LESS THAN THE "TOTAL COMPENSATION" RECEIVED IN THE LOWER GRADE UNDER PRIOR LAW, MAY CONTINUE TO BE PAID THE "TOTAL COMPENSATION" RECEIVED IN THE LOWER GRADE PROVIDED HE CONTINUES TO QUALIFY THEREFOR.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. G. R. FRANK, U.S. MARINE CORPS, NOVEMBER 30, 1949:

THERE HAS BEEN RECEIVED, BY FIRST ENDORSEMENT OF THE OFFICE OF THE QUARTERMASTER GENERAL OF THE MARINE CORPS, YOUR LETTER OF OCTOBER 17, 1949, REQUESTING DECISION AS TO THE BASIS ON WHICH YOU ARE TO ADJUST THE PAY ACCOUNT OF CORPORAL EARNEST F. POUILLIARD, U.S. MARINE CORPS, UPON HIS PROMOTION OCTOBER 3, 1949, FROM PRIVATE, FIRST CLASS, TO CORPORAL.

IT APPEARS THAT ON SEPTEMBER 30, 1949, THE ENLISTED MAN WAS SERVING AS PRIVATE, FIRST CLASS; THAT HE WAS ENTITLED TO THE PAY OF THAT GRADE, WITH OVER THREE YEARS' SERVICE, OR $84 PER MONTH; AND THAT HE HAD IN EFFECT ON THAT DATE A CLASS A FAMILY ALLOWANCE ON BEHALF OF HIS WIFE, TO WHICH THE GOVERNMENT CONTRIBUTED $28 PER MONTH. THUS, ON SEPTEMBER 30, 1949, THE ENLISTED MAN'S "TOTAL COMPENSATION" WAS $112 PER MONTH, CONSISTING OF $84 PAY AND $28 WHICH REPRESENTED THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE. ON OCTOBER 1, 1949, HE WAS ENTITLED UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, TO BE PLACED IN PAY GRADE E-2, WITH OVER FOUR YEARS' SERVICE, WITH BASIC PAY AT THE RATE OF $97.50 PER MONTH AND, UPON PROMOTION TO CORPORAL OCTOBER 3, HE WAS ENTITLED TO BE PLACED IN PAY GRADE E-3, WITH OVER FOUR YEARS' SERVICE, WITH BASIC PAY UNDER THE NEW ACT AT THE RATE OF $110.25 PER MONTH, WHICH IS LESS THAN THE ,TOTAL COMPENSATION" THAT HE WAS ENTITLED TO RECEIVE AS A PRIVATE, FIRST CLASS, ON SEPTEMBER 30, 1949, UNDER THE PRIOR LAW.

THE SAVINGS PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, PROVIDES, IN PART, AS FOLLOWS:

(B) ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBER WHOSE ENLISTMENT TERMINATED IN THE PERIOD BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO HAS ENTERED INTO A NEW ENLISTMENT WITHIN ONE MONTH OF SUCH TERMINATION SHALL NOT, PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE, OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT: PROVIDED, THAT FOR THE PURPOSES OF THIS SUBSECTION, UNLESS OTHERWISE PROVIDED, THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, AND FOLLOWING THAT DATE WHICH IS THE LAST DAY OF THE SIXTH CALENDAR MONTH FOLLOWING THE MONTH IN WHICH THIS ACT IS ENACTED, SHALL NOT INCLUDE THE CONTRIBUTION BY THE GOVERNMENT UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TO MONTHLY FAMILY ALLOWANCE (1) FOR A FATHER OR MOTHER DEPENDENT FOR SUBSTANTIAL SUPPORT OR (2) FOR A FATHER OR MOTHER DEPENDENT FOR CHIEF SUPPORT WHEN A MONTHLY ALLOWANCE IS AUTHORIZED FOR A WIFE OR CHILD OF SUCH MEMBER OR (3) FOR A BROTHER OR SISTER DEPENDENT FOR CHIEF OR SUBSTANTIAL SUPPORT, BUT SHALL INCLUDE OTHER CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED: PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING PROVISO, IN THE CASE OF ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946, SUCH MEMBER SHALL NOT, PRIOR TO THE EXPIRATION OF SUCH ENLISTMENT OR REENLISTMENT OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT, THE COMPUTATION OF SUCH TOTAL COMPENSATION, FOR THE PURPOSE OF THIS PROVISO ONLY, NOT TO INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, BUT SHALL INCLUDE ALL CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED: PROVIDED FURTHER, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION UNDER THE PROVISIONS OF THIS ACT IN EXCESS OF THE AMOUNT OF SUCH TOTAL COMPENSATION TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING THE EFFECTIVE DATE OF THIS ACT AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER OR HIS DEPENDENT OR DEPENDENTS TO QUALITY THEREFOR OR TO BE ENTITLED THERETO. * * * (ITALICS SUPPLIED.)

IT APPEARS THAT DOUBT IN THE MATTER EXISTS BECAUSE OF THE POSSIBILITY THAT, UNDER THE ITALICIZED PROVISION, WHEN A MEMBER IS PROMOTED TO A HIGHER GRADE HE WOULD FAIL TO QUALIFY FOR THE PAY OF THE GRADE IN WHICH SERVING AT THE TIME HIS SAVED PAY WAS ESTABLISHED AND, HENCE, WOULD LOSE HIS RIGHT TO THAT PART OF THE "TOTAL COMPENSATION" WHICH REPRESENTED HIS PRIOR RATE OF PAY, SO THAT THE REMAINDER OF HIS "TOTAL COMPENSATION" BEING LESS THAN THE PAY OF HIS NEW GRADE AS COMPUTED UNDER THE CAREER COMPENSATION ACT OF 1949, HE MUST THEREAFTER BE PAID UNDER THE PROVISIONS OF THAT ACT. THE NET EFFECT OF THE PROPOSITION ADVANCED IN THE SUBMISSION, PREMISED ON THE SUPPOSITION THAT UPON A CHANGE IN GRADE A MEMBER NO LONGER QUALIFIES FOR ANY PART OF HIS FORMER GRADE, IS THAT THE ITALICIZED PORTION OF THE SECTION, SUPRA, IS THUS TANTAMOUNT TO A PROVISION WHICH WOULD REQUIRE A CESSATION OF THE BENEFITS UPON CHANGE OF STATUS FROM A LOWER TO A HIGHER GRADE OR RATING. AFTER A CAREFUL STUDY OF THE PERTINENT PROVISIONS OF THE STATUTE, ITS LEGISLATIVE HISTORY, AND THE PURPOSE SOUGHT TO BE ACCOMPLISHED, IT MUST BE CONCLUDED OTHERWISE. BY THE SAVINGS PROVISIONS, THE STATUTE PRIMARILY SETS UP A MEASURE OF COMPARISON OF COMPENSATION, RATHER THAN GRADE, OF EACH INDIVIDUAL MEMBER BETWEEN THAT IN EFFECT PRIOR TO OCTOBER 1, 1949, AND THAT IN EFFECT UNDER THE NEW LAW AND, INASMUCH AS A PROMOTED MEMBER IS ENTITLED TO AT LEAST AS MUCH PAY AS PREVIOUSLY RECEIVED, NO ACTUAL SERVICE IS REQUIRED IN THE GRADE OR RATING FROM WHICH PROMOTED FOR HIM TO CONTINUE TO QUALIFY FOR THAT MUCH PAY AS AN ELEMENT OF HIS SAVED TOTAL COMPENSATION. THAT IS, THE SAVINGS PROVISION IN THE FIRST PART OF SUBSECTION (B), SUPRA, WAS INTENDED TO INSURE ENLISTED MEMBERS OF THE UNIFORMED SERVICES THAT FOR A LIMITED PERIOD THEY WOULD SUFFER NO REDUCTION,"BY REASON OF THIS ACT," IN THE TOTAL COMPENSATION WHICH THEY WERE ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949; HOWEVER, UNDER THE ITALICIZED PORTION OF THE SUBSECTION, SUCH SAVINGS PROVISION CEASES TO APPLY TO ANY PART OF SUCH SAVED TOTAL COMPENSATION UPON FAILURE OF THE MEMBER OR HIS DEPENDENT TO QUALIFY THEREFOR. THE LATTER PROVISION WAS INSERTED IN THE SAID ACT TO MAKE IT CLEAR THAT A MEMBER WOULD NOT BE ENTITLED TO CONTINUE TO RECEIVE THE "TOTAL COMPENSATION"--- INCLUDING PAY, FOREIGN SERVICE PAY, GOVERNMENT CONTRIBUTIONS TO THE FAMILY ALLOWANCE, ETC.--- WHICH HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, AND WHICH IS SAVED TO HIM FOR A LIMITED PERIOD BY THE SAID ACT, UNLESS HE OR HIS DEPENDENTS CONTINUED TO QUALIFY FOR SUCH PAY, ETC., AFTER OCTOBER 1, 1949. FOR EXAMPLE, IF THE DEPENDENT OF AN ENLISTED MEMBER WHO WAS RECEIVING FAMILY ALLOWANCE AFTER OCTOBER 1, 1949, BY REASON OF DEATH, OR OTHERWISE, THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE NO LONGER MAY BE INCLUDED IN THE ,TOTAL COMPENSATION" WHICH IS SAVED TO THE ENLISTED MEMBER UNDER THE SAID SAVINGS PROVISION. THINK IT IS CLEAR, HOWEVER, THAT THE ITALICIZED PROVISION, SUPRA, WAS NOT INTENDED TO DEPRIVE A MEMBER OF THE UNIFORMED SERVICES OF THE BENEFITS OF THE SAVINGS PROVISION UPON HIS PROMOTION TO A HIGHER GRADE IF THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE UNDER THE NEW LAW ARE LESS THAN THE ,TOTAL COMPENSATION" WHICH HE WAS ENTITLED TO RECEIVE IN HIS PRIOR GRADE UNDER THE OLD LAW. IT SEEMS TO HAVE BEEN REALIZED THAT MANY ENLISTED MEMBERS, ESPECIALLY THOSE RECEIVING THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, WOULD HAVE TO BE PROMOTED MORE THAN ONE GRADE BEFORE THEY WOULD RECEIVE ANY ADVANTAGE FROM THE NEW RATES OF PAY AND ALLOWANCES ESTABLISHED BY THE CAREER COMPENSATION ACT OF 1949, AND TO HOLD THAT A PROMOTED MEMBER, WHO THEREBY OTHERWISE QUALIFIES FOR A HIGHER RATE OF PAY UNDER THE NEW ACT, NO LONGER CONTINUES TO QUALIFY FOR THE LESSER AMOUNT OF PAY PREVIOUSLY RECEIVED UNDER THE OLD ACT WOULD BE CONTRARY TO THE BASIC PURPOSE OF THE SAVINGS PROVISION.

ACCORDINGLY, IT IS CONCLUDED THAT, UNDER THE SAID SAVINGS PROVISION IN SECTION 515 (B), CORPORAL POUILLIARD IS ENTITLED, TO THE EXTENT OTHERWISE AUTHORIZED, TO CONTINUE TO RECEIVE THE "TOTAL COMPENSATION" WHICH HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, NOTWITHSTANDING HIS PROMOTION TO A HIGHER GRADE SUBSEQUENT TO THAT DATE. SEE THE ANSWER TO THE FIFTH QUESTION IN DECISION OF TODAY, B-90270, 29 COMP. GEN. 241, TO THE SECRETARY OF THE ARMY.

THE QUESTION OF THE EFFECT OF THE SAVINGS PROVISIONS, WHERE A MEMBER HAS BEEN REDUCED IN GRADE OR RATING, IS NOT PRESENTLY BEFORE ME, AND, HENCE, THAT QUESTION IS NOT HERE CONSIDERED OR DECIDED.