B-90872, DECEMBER 5, 1949, 29 COMP. GEN. 265

B-90872: Dec 5, 1949

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SUCH PROVISION IS APPLICABLE TO THAT SECTION ONLY. IS NOT TO BE REGARDED AS A MEMBER WITHOUT DEPENDENTS WHO IS FURNISHED QUARTERS ADEQUATE FOR HIMSELF. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ADJUST THE PAY RECORD OF PRIVATE FIRST CLASS JOHN BLACKBURN ON THE BASIS SET FORTH IN YOUR LETTER. THE AIRMAN WAS ENTITLED UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942. WAS $108 PER MONTH. " IS ENTITLED TO BASIC PAY OF $90 PER MONTH. IT FURTHER APPEARS THAT IN DETERMINING THE BASIS ON WHICH THE AIRMAN'S PAY RECORD WAS TO BE ADJUSTED. THE AMOUNT OF $45 WAS DEDUCTED FROM THE "TOTAL COMPENSATION" OF $108 BEGINNING OCTOBER 1949. BECAUSE THE AIRMAN WAS FURNISHED QUARTERS FOR HIMSELF IN BARRACKS AT HIS STATION.

B-90872, DECEMBER 5, 1949, 29 COMP. GEN. 265

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 WHILE SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, IN PRESCRIBING BASIC ALLOWANCES FOR QUARTERS FURNISHED, REQUIRES THAT MEMBERS OF THE UNIFORMED SERVICES IN THE FOUR LOWER PAY GRADES BE CONSIDERED MEMBERS WITHOUT DEPENDENTS, SUCH PROVISION IS APPLICABLE TO THAT SECTION ONLY, SO THAT A PRIVATE FIRST-CLASS WITH DEPENDENTS, WHO ON SEPTEMBER 30, 1949, RECEIVED BOTH DEPENDENTS' ALLOWANCE AND BARRACKS QUARTERS, IS NOT TO BE REGARDED AS A MEMBER WITHOUT DEPENDENTS WHO IS FURNISHED QUARTERS ADEQUATE FOR HIMSELF, SUBJECT TO THE PROVISIONS IN SECTION 515 (B) OF THE ACT REQUIRING THAT THE TOTAL COMPENSATION SAVED THEREBY BE REDUCED BY THE CASH VALUE OF THE QUARTERS FURNISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. H. E. RUSSELL, DEPARTMENT OF THE AIR FORCE, DECEMBER 5, 1949:

THERE HAS BEEN RECEIVED BY REFERENCE OF THE ACTING DIRECTOR OF FINANCE, HEADQUARTERS, U.S. AIR FORCE, YOUR LETTER OF NOVEMBER 16, 1949, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ADJUST THE PAY RECORD OF PRIVATE FIRST CLASS JOHN BLACKBURN ON THE BASIS SET FORTH IN YOUR LETTER.

IT APPEARS THAT ON SEPTEMBER 30, 1949, THE AIRMAN WAS ENTITLED UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, TO BASE PAY OF $80 PER MONTH, AND THAT HE HAD IN EFFECT ON THAT DATE A CLASS B-1 FAMILY ALLOWANCE ON BEHALF OF HIS MOTHER, TO WHICH THE GOVERNMENT CONTRIBUTED $28 PER MONTH. THUS, ON SEPTEMBER 30, 1949, THE AIRMAN'S "TOTAL COMPENSATION," AS DEFINED IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, AND EFFECTIVE OCTOBER 1, 1949, WAS $108 PER MONTH, CONSISTING OF $80 PAY AND $28 WHICH REPRESENTS THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE. UNDER THE SAID CAREER COMPENSATION ACT OF 1949, THE AIRMAN, IF NOT ENTITLED TO GREATER SAVED "TOTAL COMPENSATION," IS ENTITLED TO BASIC PAY OF $90 PER MONTH. IT FURTHER APPEARS THAT IN DETERMINING THE BASIS ON WHICH THE AIRMAN'S PAY RECORD WAS TO BE ADJUSTED, THE AMOUNT OF $45 WAS DEDUCTED FROM THE "TOTAL COMPENSATION" OF $108 BEGINNING OCTOBER 1949, BECAUSE THE AIRMAN WAS FURNISHED QUARTERS FOR HIMSELF IN BARRACKS AT HIS STATION. IT IS STATED THAT SUCH DEDUCTION WAS MADE IN ACCORDANCE WITH PARAGRAPH 46E OF AIR FORCE LETTER 173-2, AS AMENDED, WHICH PURPORTEDLY IS BASED ON THE PROVISO IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT WHEN A MEMBER IS FURNISHED GOVERNMENT QUARTERS ADEQUATE FOR HIMSELF, IF WITHOUT DEPENDENTS, OR ADEQUATE FOR HIMSELF AND DEPENDENTS, IF WITH DEPENDENTS, THE TOTAL SUM SAVED FOR HIM BY THIS SUBSECTION SHALL BE REDUCED BY THE CASH VALUE OF THE BASIC ALLOWANCE FOR QUARTERS ESTABLISHED UNDER SECTION 302 OF THIS ACT: * * * (ITALICS SUPPLIED.)

SECTION 302 OF THE SAID ACT PRESCRIBES THE BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS OF THE UNIFORMED SERVICES AT MONTHLY RATES DEPENDING ON THE MEMBER'S GRADE AND WHETHER HE IS WITH OR WITHOUT DEPENDENTS. SUBSECTION (A) OF THE SAID SECTION 302, 63 STAT. 812, PROVIDES AS FOLLOWS:

(A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION: PROVIDED, THAT AN ENLISTED MEMBER IN PAY GRADE E-4 (LESS THAN SEVEN YEARS' SERVICE), E-3, E-2, AND E-1, SHALL BE CONSIDERED AT ALL TIMES AS A MEMBER WITHOUT DEPENDENTS FOR THE PURPOSES OF THIS SECTION.

IT WILL BE NOTED THAT ENLISTED MEMBERS OF THE THREE LOWER PAY GRADES AND THOSE OF THE FOURTH PAY GRADE WITH LESS THAN SEVEN YEARS' SERVICE ARE TO BE CONSIDERED UNDER SECTION 302 (A), SUPRA, AS MEMBERS WITHOUT DEPENDENTS "FOR THE PURPOSES OF THIS SECTION," THAT IS, SECTION 302 OF THE SAID ACT. SUCH PROVISION BEING THUS SPECIFICALLY LIMITED TO THE PURPOSES OF SAID SECTION 302, IT WOULD SEEM CLEARLY TO HAVE NO APPLICATION UNDER SECTION 515 (B) OF THE ACT TO MEMBERS OF SUCH FOUR LOWER PAY GRADES ENTITLED THEREUNDER TO SAVED TOTAL COMPENSATION, EXPRESSLY INCLUDING FAMILY ALLOWANCE FOR DEPENDENTS. THAT IS TO SAY, A MEMBER WITH DEPENDENTS WHO IS OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) BY REASON OF SUCH DEPENDENTS IS NOT TO BE CONSIDERED AS A MEMBER WITHOUT DEPENDENTS FOR THE PURPOSE OF THE QUOTED PROVISO IN THE SAME SUBSECTION MERELY BECAUSE HE IS IN ONE OF THE FOUR LOWER PAY GRADES AND, HENCE, WOULD NOT BE ENTITLED UNDER SECTION 302 TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF SUCH DEPENDENTS.

THE PRIMARY PURPOSE OF THE SAID PROVISO, INSOFAR AS THE PRESENT CASE IS CONCERNED, APPEARS TO HAVE BEEN TO PROVIDE FOR SITUATIONS WHERE THE DEPENDENTS ARE RECEIVING FAMILY ALLOWANCE PAYMENTS AND AT THE SAME TIME THE MEMBER AND HIS DEPENDENTS ARE FURNISHED GOVERNMENT QUARTERS. IN SUCH CASES, THE TOTAL COMPENSATION SAVED TO THE MEMBER IS TO BE REDUCED BY THE CASH VALUE OF THE BASIC ALLOWANCE FOR QUARTERS SET FORTH IN SECTION 302 OF THE ACT. THE SAID PROVISO IN THAT RESPECT IS SUBSTANTIALLY SIMILAR TO THE PROVISION IN SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C. 208, WHICH PROVIDED THAT THE MONTHLY PAY OF ANY ENLISTED MAN OF THE FIRST THREE PAY GRADES WHO IS PROVIDED WITH PUBLIC QUARTERS FOR HIS DEPENDENTS AND WHOSE DEPENDENTS ARE RECEIVING THE FAMILY ALLOWANCE SHALL BE REDUCED BY, OR CHARGED WITH, 90 CENTS A DAY. UNDER THE SAID PROVISO IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT, THE TOTAL COMPENSATION SAVED TO A MEMBER, WHICH INCLUDES THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, IS TO BE REDUCED--- NOT BY 90 CENTS PER DAY AS HERETOFORE--- BUT "BY THE CASH VALUE OF THE BASIC ALLOWANCE FOR QUARTERS ESTABLISHED UNDER SECTION 302 OF THIS ACT.' THE RATES PRESCRIBED IN SECTION 302 OF THE ACT, IN EFFECT, ARE SUBSTITUTED FOR THE 90 CENTS A DAY PREVIOUSLY PROVIDED IN SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. THE BASIS UPON WHICH THE AIRMAN'S PAY RECORD HAS BEEN ADJUSTED IN THE PRESENT CASE (THAT IS, REDUCING HIS TOTAL COMPENSATION OF $108 BY $45 PER MONTH) IS TANTAMOUNT TO CHARGING THE MEMBER FOR QUARTERS ALLOWANCE FOR HIMSELF AND HIS DEPENDENTS WHEN IN FACT THE GOVERNMENT IS NOT ACTUALLY FURNISHING GOVERNMENT QUARTERS FOR THE MEMBER AND HIS DEPENDENTS, THE RESULT BEING TO DEPRIVE HIM OF THE FAMILY ALLOWANCE SAVED TO HIM BY THE SAID SECTION 515 (B). ANY SUCH RESTRICTIVE APPLICATION OF THE PROVISO IN SECTION 515 (B) WOULD, IN EFFECT, NULLIFY THE WHOLE SUBSECTION WITH RESPECT TO PRACTICALLY ALL MEMBERS SERVING IN THE FOUR LOWER PAY GRADES, FOR WHOSE BENEFIT IT WAS PRINCIPALLY DESIGNED, AND PERMIT THE CONTINUATION OF FAMILY ALLOWANCE PAYMENTS ONLY FOR MEMBERS OF THE HIGHER PAY GRADES. IF THE CONGRESS HAD INTENDED ANY SUCH INCONSISTENT APPLICATION OF THE PROVISO, IT IS BELIEVED THAT SUCH INTENT WOULD HAVE BEEN CLEARLY SET FORTH IN THE LAW, OR AT LEAST INDICATED IN THE LEGISLATIVE HISTORY OF THE ACT, AND THAT SUCH AN IMPORTANT MATTER WOULD NOT HAVE BEEN LEFT OPEN TO DOUBT.

ACCORDINGLY, ON THE BASIS OF THE FACTS PRESENTED, YOU ARE ADVISED THAT THE PAY RECORD OF THE ENLISTED MEN HERE INVOLVED SHOULD BE ADJUSTED ON THE BASIS THAT HE IS ENTITLED TO SAVED TOTAL COMPENSATION OF $108 PER MONTH, WITHOUT ANY DEDUCTION FOR THE BARRACK QUARTERS WHICH HE IS OCCUPYING.