B-91668, MARCH 3, 1950, 29 COMP. GEN. 352

B-91668: Mar 3, 1950

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EVEN THOUGH SUCH FAILURE TO QUALIFY WAS DUE TO A RETURN TO THE CONTINENTAL UNITED STATES ON OPERATIONAL ORDERS. 1950: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE SAVINGS PROVISIONS OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949. THE QUESTIONS SUBMITTED ARE AS FOLLOWS: 1. SUCH LEAVES OF ABSENCE ARE VERY IMPORTANT IN MAINTAINING THE HEALTH AND EFFICIENCY OF THE PERSONNEL CONCERNED. 3. LARGE AIRCRAFT ASSIGNED TO OVERSEAS STATIONS ARE FLOWN PERIODICALLY TO THE UNITED STATES FOR MAJOR OVERHAULS. IT IS POSSIBLE THAT SUCH PERIOD MIGHT BE LESS THAN 24 HOURS. 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 SUCH EFFECTIVE DATE: PROVIDED.

B-91668, MARCH 3, 1950, 29 COMP. GEN. 352

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 A MEMBER OF THE UNIFORMED SERVICES WHOSE SAVED "TOTAL COMPENSATION" UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 INCLUDES FOREIGN SERVICE PAY MAY NOT, UPON THE TEMPORARY FAILURE TO QUALIFY OR TO BE ENTITLED TO SUCH PAY, INCLUDE IT IN THE COMPUTATION OF HIS SAVED "TOTAL COMPENSATION" UPON A SUBSEQUENT REQUALIFICATION, EVEN THOUGH SUCH FAILURE TO QUALIFY WAS DUE TO A RETURN TO THE CONTINENTAL UNITED STATES ON OPERATIONAL ORDERS, TEMPORARY DUTY, OR FOR THE PURPOSE OF LEAVE. A MEMBER OF THE UNIFORMED SERVICES WHOSE SAVED "TOTAL COMPENSATION" UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 INCLUDES FOREIGN SERVICE PAY, AND WHO DEPARTS FROM THE CONTINENTAL UNITED STATES ON THE SAME DAY HE RETURNS THERETO OR ON THE FOLLOWING DAY, DOES NOT THEREBY FAIL TO QUALIFY FOR FOREIGN SERVICE PAY UNDER THE PRIOR STATUTE AND MAY CONTINUE TO RECEIVE SUCH PAY AS A PART OF HIS SAVED "TOTAL COMPENSATION" UNDER THE 1949 ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE AIR FORCE, MARCH 3, 1950:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1949 (RECEIVED HERE DECEMBER 28), REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE SAVINGS PROVISIONS OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, WITH RESPECT TO MEMBERS OF THE UNIFORMED SERVICES WHOSE SAVED "TOTAL PENSATION," AS DEFINED IN SECTION 515, INCLUDES FOREIGN SERVICE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, 37 U.S.C. 102.

THE QUESTIONS SUBMITTED ARE AS FOLLOWS:

1. WOULD THE RETURN OF SUCH MEMBER TO THE CONTINENTAL UNITED STATES FOR A SHORT PERIOD OF TEMPORARY DUTY, PURSUANT TO OFFICIAL ORDERS, DISQUALIFY HIM FOR THE RECEIPT OF FOREIGN SERVICE PAY FOR SUBSEQUENT SERVICE AT HIS PERMANENT FOREIGN DUTY STATION?

2. WOULD THE RETURN OF SUCH MEMBER TO THE CONTINENTAL UNITED STATES ON AUTHORIZED LEAVE DISQUALIFY HIM FOR THE RECEIPT OF FOREIGN SERVICE PAY FOR SUBSEQUENT SERVICE AT HIS PERMANENT FOREIGN DUTY STATION? IN THIS CONNECTION IT SHOULD BE NOTED THAT, BECAUSE OF UNFAVORABLE CLIMATIC CONDITIONS AT SOME FOREIGN STATIONS, SUCH LEAVES OF ABSENCE ARE VERY IMPORTANT IN MAINTAINING THE HEALTH AND EFFICIENCY OF THE PERSONNEL CONCERNED.

3. WOULD THE RETURN OF SUCH MEMBER TO THE CONTINENTAL UNITED STATES ON OPERATIONAL ORDERS DISQUALIFY HIM FOR THE RECEIPT OF FOREIGN SERVICE PAY FOR SUBSEQUENT SERVICE AT HIS PERMANENT FOREIGN DUTY STATION? THIS QUESTION PERTAINS TO A NUMBER OF POSSIBLE SITUATIONS. FOR EXAMPLE, LARGE AIRCRAFT ASSIGNED TO OVERSEAS STATIONS ARE FLOWN PERIODICALLY TO THE UNITED STATES FOR MAJOR OVERHAULS. DEPENDENT UPON CIRCUMSTANCES, MEMBERS OF THE CREW WOULD REMAIN IN THE UNITED STATES FOR VARYING PERIODS OF TIME. IT IS POSSIBLE THAT SUCH PERIOD MIGHT BE LESS THAN 24 HOURS. ALSO, LONG-RANGE AIRCRAFT ON TRAINING FLIGHTS FROM FOREIGN STATIONS MIGHT LAND AND STOP OVER AT BASES IN THE UNITED STATES FOR SHORT PERIODS OF TIME.

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

SEC. 515. (A) NO MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS ACT SHALL, PRIOR TO JULY 1, 1952, AND WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF LAST DISCHARGE, 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 SUCH EFFECTIVE DATE: PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES.

(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 FAMILY 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 QUALIFY THEREFOR OR TO BE ENTITLED THERETO * *

IT WILL BE NOTED THAT SUBSECTIONS (A) AND (B) OF THE SAID SECTION 515 BOTH PROVIDE THAT A MEMBER SHALL NOT SUFFER ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION AS THEREIN DEFINED, WHICH HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE. UNDER THE LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE SAID ACT (SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED), MEMBERS OF THE ARMED FORCES WERE ENTITLED TO A PERCENTAGE INCREASE IN THEIR BASE PAY "FOR ANY PERIOD OF SERVICE WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' IN DECISION OF APRIL 17, 1942, 21 COMP. GEN. 932, 940, IT WAS HELD THAT AN OFFICER WHO IS ORDERED TO "TEMPORARY ADDITIONAL DUTY" IN THE UNITED STATES IS NOT ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHILE PERFORMING SUCH TEMPORARY ADDITIONAL DUTY SO AS TO ENTITLE HIM TO THE PERCENTAGE INCREASE IN BASE PAY FOR FOREIGN SERVICE AFTER HIS ARRIVAL IN THE UNITED STATES. SEE, ALSO, 22 COMP. GEN. 1123, TO THE EFFECT THAT UNDER SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 THE RIGHT TO ADDITIONAL PAY FOR DUTY OUTSIDE THE UNITED STATES TERMINATES UPON RETURN TO THE UNITED STATES. ALSO, SEE 25 COMP. GEN. 712; B-28693, SEPTEMBER 29, 1942, AND B-35646, OCTOBER 5, 1943. THUS, IT HAS BEEN HELD CONSISTENTLY THAT A MEMBER OF THE UNIFORMED SERVICES, AFTER RETURN TO THE UNITED STATES, FAILS TO QUALIFY OR TO BE ENTITLED TO FOREIGN DUTY PAY AT LEAST FOR THE PERIOD HE REMAINS IN THE UNITED STATES. THE QUESTION IS WHETHER SUCH TEMPORARY FAILURE TO "QUALIFY" OR "TO BE ENTITLED" TO FOREIGN SERVICE PAY PERMANENTLY PRECLUDES SUCH MEMBER, UPON EVENTUAL RETURN TO HIS FOREIGN DUTY STATION, FROM INCLUDING FOREIGN SERVICE PAY IN THE COMPUTATION OF HIS SAVED "TOTAL COMPENSATION," ASSUMING, OF COURSE, THAT HE OTHERWISE CONTINUES TO BE ENTITLED TO THE BENEFITS OF THE SAID SECTION 515.

THE MATTER HAS BEEN GIVEN EXTENDED CONSIDERATION, PARTICULARLY IN VIEW OF THE SEEMING HARDSHIP INDICATED BY THE EXAMPLES STATED IN THE SUBMISSION, BUT NO SUFFICIENT BASIS IS FOUND FOR CONCLUDING THAT THE CONGRESS INTENDED TO PERMIT A RESTORATION OF ANY PART OF THE SAVED TOTAL COMPENSATION FOR WHICH A MEMBER ONCE FAILED TO QUALIFY ON OR AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. SUBSECTION 515 (A) AND 515 (B) OF THAT ACT, SUPRA, EACH SPECIFICALLY STATES THAT THE PROVISIONS OF SUCH SUBSECTION SHALL "CEASE TO APPLY" TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE "FAILURE" OF SUCH MEMBER TO QUALIFY THEREFOR. THE WORD "FAILURE" IS NOT MODIFIED AND NO DISTINCTION IS INDICATED BETWEEN A PERMANENT AND A TEMPORARY FAILURE TO QUALIFY. THE WORD "CEASE" IN STATUTES AND LEGAL DOCUMENTS IS GENERALLY INTERPRETED AS CONNOTING A PERMANENT STOPPAGE, 6 WORDS AND PHRASES, PERMANENT EDITION, 400 ET SEQ., AND IT DOES NOT APPEAR TO HAVE BEEN INTENDED DIFFERENTLY IN THIS INSTANCE. IN THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED FORCES, HOUSE OF REPRESENTATIVES, ON H.R. 2553, 81ST CONGRESS (WHICH AS REWRITTEN WAS REINTRODUCED AS H.R. 5007 AND BECAME THE CAREER COMPENSATION ACT OF 1949), THE EXECUTIVE SECRETARY OF THE ADVISORY COMMISSION ON SERVICE PAY, MR. JOHN L. HOEN, IN DISCUSSING THE EFFECT OF SIMILAR SAVINGS PROVISIONS IN THAT BILL ON THE PROPOSED REDUCTION IN SEA AND FOREIGN SERVICE PAY, STATED (PAGE 1640 OF THE REPORT OF THE HEARINGS):

IT SIMPLY PROTECTS A MAN FROM REDUCTION WHILE HE REMAINS IN THE SAME GRADE OR RATING OR IN THIS SEA DUTY STATUS. IN OTHER WORDS, IF A MAN WENT TO SEA AND TRANSFERRED TO SHORE AND THEN A YEAR LATER TRANSFERRED BACK TO SEA, THEN THE SECOND YEAR AT SEA HE WOULD NOT GET IT WHEN HE WENT OUT. IS ONLY WHILE HE REMAINS IN THE SAME STATUS.

LATER IN THE HEARINGS (P. 1748), MR. JOHN R. BLANDFORD, PROFESSIONAL STAFF MEMBER FOR THE COMMITTEE, STATED:

* * * UNDER ANOTHER PROVISO, ANY PART OF THE TOTAL COMPENSATION TO WHICH SUCH MEMBER SUBSEQUENTLY CEASES TO BE ENTITLED BECAUSE OF FAILURE TO QUALIFY THEREFOR UNDER PROVISIONS OF LAW IN EFFECT ON THE DATE OF ENACTMENT OF THIS ACT SHALL NOT THEREAFTER BE SAVED TO A MEMBER BY VIRTUE OF THIS SECTION. * * *

IT SEEMS CLEAR THAT THESE GENTLEMEN HAD IN MIND THAT A FAILURE TO QUALIFY FOR SOME PART OF THE SAVED TOTAL COMPENSATION WOULD PRECLUDE PAYMENT OF THAT PART THEREAFTER AND THAT THERE WOULD BE NO RESTORATION UPON A SUBSEQUENT REQUALIFICATION. NOTHING HAS BEEN FOUND INDICATING ANY DISAGREEMENT WITH THAT VIEW OR ANY DIFFERENT LEGISLATIVE INTENT. WHILE A "TEMPORARY" DISQUALIFICATION, SUCH AS HERE INVOLVED, WAS NOT DISCUSSED, NO SOUND BASIS IS PERCEIVED FOR ASCRIBING A DIFFERENT MEANING TO THE WORD "CEASE" WHEN APPLIED TO A SHORT PERIOD OF DISQUALIFICATION FROM THAT WHEN APPLIED TO A LONGER ONE. IN EITHER EVENT THERE IS A "FAILURE TO QUALIFY" AND THE STATUTE DIRECTS THAT UPON SUCH FAILURE THE SAVINGS PROVISIONS SHALL "CEASE TO APPLY" TO THAT PART OF THE SAVED TOTAL COMPENSATION, APPARENTLY WITHOUT REGARD TO THE REASON FOR THE FAILURE OR THE LENGTH OF THE DISQUALIFICATION. WHILE THE CONGRESS MIGHT HAVE FIXED A DIFFERENT RULE FOR TEMPORARY DISQUALIFICATIONS, SUCH AS THOSE HERE INVOLVED, IF THE MATTER HAD BEEN BROUGHT TO ATTENTION, THE OVERSIGHT, IF IT BE AN OVERSIGHT, CANNOT, OF COURSE, BE CORRECTED BY INTERPRETATION. AND, RESPECTING THE SEEMING HARDSHIP IN THE PRESENT CASES, IT MAY BE POINTED OUT THAT MEMBERS WHO MAY LOSE THEIR RIGHT TO SAVED FOREIGN SERVICE PAY BY TEMPORARILY RETURNING TO THE UNITED STATES ARE THEN IN NO WORSE POSITION THAN MEMBERS ENTITLED TO SAVED TOTAL COMPENSATION WHO WERE SERVING IN THE UNITED STATES ON SEPTEMBER 30, 1949, AND WHO THEREAFTER HAVE BEEN, OR MAY BE, TRANSFERRED TO FOREIGN SERVICE.

IT MUST BE CONCLUDED, THEREFORE, THAT IN NONE OF THE CIRCUMSTANCES INDICATED IN YOUR THREE QUESTIONS WOULD A MEMBER THEREAFTER BE ENTITLED TO FOREIGN SERVICE PAY UNDER THE PRIOR LAW AS A PART OF THE TOTAL COMPENSATION SAVED TO HIM BY THE SAID SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, EXCEPT THAT, WITH RESPECT TO THE LAST PART OF THE THIRD QUESTION, A MEMBER NEED NOT BE VIEWED AS FAILING TO QUALIFY FOR FOREIGN SERVICE PAY UNDER THE PRIOR STATUTE IF HE DEPARTS FROM THE CONTINENTAL UNITED STATES ON THE SAME DAY HE RETURNS THERETO OR ON THE FOLLOWING DAY, SINCE HE WOULD BE ENTITLED TO FOREIGN SERVICE PAY FOR THE WHOLE OF BOTH DAYS, 21 COMP. GEN. 932, THE LAW IN THAT RESPECT NOT TAKING ACCOUNT OF FRACTIONS OF A DAY. CF. 28 COMP. GEN. 381, LAST PARAGRAPH. THERE ARE TWO SUPPLEMENTARY QUESTIONS IMMEDIATELY RELATED TO THE MATTER WHICH SHOULD BE ESOLVED: (1) WHERE THE LOSS OF FOREIGN SERVICE PAY REDUCES THE SAVED TOTAL COMPENSATION BELOW THE COMPARABLE TOTAL COMPENSATION PAYABLE UNDER THE NEW ACT, IS A MEMBER ENTITLED THEREAFTER TO BE PAID UNDER THE NEW ACT, AND (2) WHERE THE LOSS OF FOREIGN SERVICE PAY DOES NOT REDUCE THE SAVED TOTAL COMPENSATION BELOW THE COMPARABLE TOTAL COMPENSATION PAYABLE UNDER THE NEW ACT, IS AN ENLISTED MEMBER UPON RETURN TO FOREIGN SERVICE ENTITLED TO FOREIGN SERVICE PAY UNDER THE NEW ACT (AS PROVIDED IN SECTION 206 THEREOF, 63 STAT. 811, EXCLUSIVELY FOR ENLISTED MEMBERS) IN ADDITION TO THE BALANCE OF HIS SAVED TOTAL COMPENSATION UNDER THE PRIOR LAWS?

THE FIRST QUESTION ARISES BECAUSE SUBSECTION 515 (A) AND 515 (B) OF THE NEW ACT, SUPRA, EACH EXPRESSLY PROVIDES THAT THE PROVISIONS THEREOF SHALL CEASE TO APPLY TO A MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING THE EFFECTIVE DATE OF THE ACT, THAT IS, ON SEPTEMBER 30, 1949, BUT MAKES NO PROVISION FOR SITUATIONS WHERE THE SAVED TOTAL COMPENSATION, BY SUBSEQUENT FAILURE TO QUALIFY FOR SOME PART THEREOF, FALLS BELOW THAT TO WHICH HE THEN WOULD BE ENTITLED UNDER THE NEW ACT. WHILE THAT POINT IS NOT EXPRESSLY COVERED, THERE WOULD SEEM TO BE LITTLE DOUBT FROM THE GENERAL PATTERN OF THE LEGISLATION THAT IT WAS INTENDED THAT A MEMBER SHOULD BE PAID UNDER THE NEW ACT WHENEVER HIS TOTAL COMPENSATION THEREUNDER WOULD EXCEED THAT UNDER PRIOR STATUTES. THE BASIC PROVISION IN EACH SUBSECTION IS THAT NO MEMBER SHALL SUFFER ANY REDUCTION BY REASON OF THE ACT IN THE TOTAL COMPENSATION TO WHICH HE WAS ENTITLED UNDER PRIOR LAWS. SUCH PROVISION WOULD HAVE NO APPLICATION IN THE FIRST PLACE TO A MEMBER ENTITLED TO MORE UNDER THE NEW ACT THAN UNDER PRIOR LAWS, NOR OF ITS OWN FORCE WOULD IT HAVE ANY CONTINUED APPLICATION TO A MEMBER WHOSE TOTAL COMPENSATION UNDER PRIOR LAWS FELL BELOW THAT TO WHICH HE WOULD BE ENTITLED UNDER THE NEW ACT, THE PURPOSE BEING THAT HE SHOULD NOT "SUFFER ANY REDUCTION" BY REASON OF THE NEW ACT AND NOT TO CONTINUE HIM AT REDUCED RATES BELOW THOSE PROVIDED IN THE NEW ACT. COMPARE 22 COMP. GEN. 236, 243. HOWEVER, THE FIRST PROVISO IN SUBSECTION 515 (A) IS AS FOLLOWS:

* * * PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR * * *.

THE THIRD PROVISO IN SUBSECTION 515 (B) IS ESSENTIALLY THE SAME AS SUCH FIRST PROVISO IN 515 (A). SINCE THE BASIC SAVINGS PROVISION IN EACH SUBSECTION WOULD OF ITSELF HAVE NO APPLICATION TO A MEMBER IF AND WHILE ENTITLED TO GREATER TOTAL COMPENSATION UNDER THE NEW ACT THAN UNDER PRIOR STATUTES, THE PURPOSE OF THE FIRST PART OF EACH SUCH PROVISO EVIDENTLY WAS TO MAKE CERTAIN, PARTICULARLY BY USE OF THE WORD "CEASE," THAT ONCE A MEMBER'S TOTAL COMPENSATION UNDER THE NEW ACT EXCEEDED THAT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, HE SHOULD NOT THEREAFTER SHIFT BACK TO THE PRIOR BASIS, EVEN THOUGH THAT MIGHT BE TO HIS ADVANTAGE UNDER SOME CHANGE IN THE CONDITIONS OF HIS SERVICE. LIKEWISE, THE PURPOSE OF THE SECOND PART OF EACH PROVISO EVIDENTLY WAS TO MAKE CERTAIN, AGAIN USING THE WORD "CEASE," THAT MEMBERS WHO FAILED TO QUALIFY FOR SOME PART OF THEIR SAVED TOTAL COMPENSATION SHOULD NOT THEREAFTER HAVE IT RESTORED, AS CONCLUDED ABOVE, ALTHOUGH THE SAVED TOTAL COMPENSATION MIGHT NOT THEREBY BE REDUCED BELOW THAT TO WHICH THEY WOULD BE ENTITLED UNDER THE NEW ACT. IF IT WAS REDUCED BELOW THAT UNDER THE NEW ACT, THE BASIC PROVISION, OF ITSELF, WOULD NO LONGER BE APPLICABLE AND, SINCE THE LOST PART OF THE SAVED TOTAL COMPENSATION COULD NOT BE RESTORED, THE MEMBER WOULD THEREAFTER BE PAID UNDER THE NEW ACT. SO UNDERSTOOD, THE TWO PARTS OF THE PROVISO COMPLEMENT EACH OTHER IN RESTRICTING THE APPLICATION OF THE BASIC PROVISION, WITH THE NET EFFECT THAT MEMBERS ONCE BECOMING ENTITLED TO TOTAL COMPENSATION UNDER THE NEW ACT MAY NOT THEREAFTER SHIFT BACK TO SAVED TOTAL COMPENSATION UNDER PRIOR LAWS AND MEMBERS ONCE DISQUALIFIED FOR SOME PART OF THEIR SAVED TOTAL COMPENSATION MAY NOT THEREAFTER INCLUDE THAT PART IN SUCH SAVED TOTAL COMPENSATION, EVEN THOUGH THE REDUCTION BE NOT SUFFICIENT TO SHIFT THE MEMBER TO COMPENSATION UNDER THE NEW ACT.

ON SUCH BASIS IT IS CONCLUDED, WITH RESPECT TO THE PRESENT MATTER, THAT IF THE LOSS OF FOREIGN SERVICE PAY UPON RETURN TO THE UNITED STATES REDUCES THE SAVED TOTAL COMPENSATION OF A MEMBER BELOW THE AMOUNT OF TOTAL COMPENSATION HE WOULD THEN RECEIVE UNDER THE NEW ACT, HE WOULD BE ENTITLED TO BE PAID THEREAFTER UNDER THE NEW ACT, NOTWITHSTANDING THAT THE TOTAL COMPENSATION THEREUNDER WOULD NOT BE IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, THE DATE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE NEW ACT, AS EXPRESSLY PROVIDED BY THE FIRST PART OF THE SAID PROVISOS.

RESPECTING THE QUESTION AS TO WHETHER AN ENLISTED MEMBER UPON RETURN TO FOREIGN SERVICE MIGHT BE ENTITLED TO FOREIGN-SERVICE PAY UNDER SECTION 206 OF THE NEW ACT IN CONJUNCTION WITH THE BALANCE OF HIS SAVED TOTAL COMPENSATION UNDER PRIOR STATUTES, WHILE THERE IS NOTHING IN THE STATUTE EXPRESSLY PRECLUDING SUCH PAYMENT, IT IS AT LEAST VERY DOUBTFUL THAT SUCH A COMBINATION OF PAY UNDER THE OLD AND NEW STATUTES WAS CONTEMPLATED. THE SAID SUBSECTIONS 515 (A) AND 515 (B) SPEAK OF "TOTAL" COMPENSATION UNDER THE PROVISIONS OF THE NEW ACT AND "TOTAL" COMPENSATION UNDER LAWS PREVIOUSLY IN EFFECT AND THE PURPOSE WAS TO SAVE A MEMBER FROM ANY IMMEDIATE REDUCTION IN SUCH TOTAL COMPENSATION HE WAS RECEIVING ON SEPTEMBER 30, 1949, WHERE THAT WAS IN EXCESS OF THE TOTAL COMPENSATION HE OTHERWISE WOULD RECEIVE UNDER THE NEW ACT. TO COMBINE SUCH SAVED TOTAL COMPENSATION UNDER PRIOR LAWS WITH ITEMS OF TOTAL COMPENSATION UNDER THE NEW LAW MIGHT RESULT IN A TOTAL GREATER THAN THAT WHICH HE WAS RECEIVING ON SEPTEMBER 30, 1949, OR THAN THAT WHICH HE WOULD RECEIVE UNDER THE NEW ACT. FOR EXAMPLE, AN ENLISTED MEMBER SERVING IN THE UNITED STATES ON SEPTEMBER 30, 1949, WOULD NOT BE ENTITLED TO FOREIGN SERVICE PAY AS A PART OF HIS TOTAL SAVED COMPENSATION AND IF UPON BEING SENT ON FOREIGN DUTY THEREAFTER HE SHOULD BE PAID FOREIGN SERVICE PAY UNDER SECTION 206 OF THE NEW ACT IN ADDITION TO HIS UNREDUCED SAVED TOTAL COMPENSATION UNDER PRIOR LAWS HE WOULD RECEIVE MORE THAN HE WAS RECEIVING ON SEPTEMBER 30, 1949, AND ALSO MORE THAN THAT TO WHICH HE WOULD BE ENTITLED IF PAID WHOLLY UNDER THE NEW ACT. THAT WOULD SEEM CLEARLY CONTRARY TO THE BASIC PURPOSE OF THE SAVINGS PROVISIONS, WHICH WAS ONLY TO SAVE HIM FROM ANY REDUCTION, FOR THE TIME BEING, IN THE AMOUNT HE WAS RECEIVING ON SEPTEMBER 30, 1949, SO LONG AS HE OTHERWISE CONTINUED TO QUALIFY THEREFOR. THERE APPEARS NO SOUND BASIS IN THAT RESPECT FOR A DISTINCTION BETWEEN A MEMBER WHO WAS SERVING IN THE UNITED STATES ON SEPTEMBER 30, 1949, AND ONE WHO LATER RETURNED TO THE UNITED STATES AND THEREUPON LOST HIS FOREIGN-SERVICE PAY. THEREAFTER NEITHER WOULD BE ENTITLED TO FOREIGN SERVICE PAY AS PART OF HIS SAVED TOTAL COMPENSATION AND IF BOTH WERE LATER ASSIGNED TO FOREIGN DUTY THERE WOULD BE NO MORE REASON IN ONE CASE THAN IN THE OTHER TO GRANT FOREIGN- SERVICE PAY UNDER THE NEW ACT IN ADDITION TO SAVED TOTAL COMPENSATION UNDER THE OLD. IN EITHER CASE THE MEMBER, WITHOUT SUCH FOREIGN-SERVICE PAY, EITHER WOULD CONTINUE TO RECEIVE MORE AS SAVED TOTAL COMPENSATION THAN HE WOULD RECEIVE UNDER THE NEW ACT, WITH FOREIGN-SERVICE PAY, OR HE WOULD SHIFT TO TOTAL COMPENSATION UNDER THE NEW ACT, INCLUDING FOREIGN- SERVICE PAY, IN A TOTAL AMOUNT GREATER THAN HIS SAVED TOTAL COMPENSATION. IT IS CONCLUDED, THEREFORE, THAT A MEMBER WHOSE SAVED TOTAL COMPENSATION UNDER PRIOR LAWS IS REDUCED BY THE LOSS OF FOREIGN-SERVICE PAY UPON RETURN TO THE UNITED STATES MAY NOT, UPON RETURN TO FOREIGN SERVICE, RECEIVE FOREIGN-SERVICE PAY UNDER THE NEW STATUTE IN ADDITION TO THE BALANCE OF HIS SAVED TOTAL COMPENSATION UNDER PRIOR STATUTES BUT, IF AN ENLISTED MEMBER, HE WOULD BE ENTITLED TO SUCH FOREIGN-SERVICE PAY AS A PART OF HIS TOTAL COMPENSATION UNDER THE NEW ACT IF AND WHEN SUCH TOTAL COMPENSATION EXCEEDED THE BALANCE OF HIS SAVED TOTAL COMPENSATION UNDER PRIOR LAWS. COMPARE THE ANSWER TO THE FIFTH QUESTION IN DECISION OF NOVEMBER 30, 1949, B-90270, 29 COMP. GEN. 241, 247. SEE, ALSO, 22 COMP. GEN. 236, 243, ANSWER TO THE SEVENTH QUESTION.