B-92765, JUNE 15, 1950, 29 COMP. GEN. 496

B-92765: Jun 15, 1950

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PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 MAY BE CREDITED ON AND AFTER THE EFFECTIVE DATE OF THE ACT WITH ITEMS OF PAY OR ALLOWANCES WHICH ARE REQUIRED BY SECTION 515 TO BE EXCLUDED FROM THE COMPUTATION OF THE MEMBER'S SAVED "TOTAL COMPENSATION" ON THE SAME BASIS AS THOUGH SUCH MEMBER WERE NOT RECEIVING SAVED TOTAL COMPENSATION. A MEMBER OF THE UNIFORMED SERVICES WHO ENLISTS OR REENLISTS ON OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 IS ENTITLED UNDER SECTION 207 TO A REENLISTMENT BONUS. WHICHEVER IS GREATER.

B-92765, JUNE 15, 1950, 29 COMP. GEN. 496

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 MAY BE CREDITED ON AND AFTER THE EFFECTIVE DATE OF THE ACT WITH ITEMS OF PAY OR ALLOWANCES WHICH ARE REQUIRED BY SECTION 515 TO BE EXCLUDED FROM THE COMPUTATION OF THE MEMBER'S SAVED "TOTAL COMPENSATION" ON THE SAME BASIS AS THOUGH SUCH MEMBER WERE NOT RECEIVING SAVED TOTAL COMPENSATION. A MEMBER OF THE UNIFORMED SERVICES WHO ENLISTS OR REENLISTS ON OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 IS ENTITLED UNDER SECTION 207 TO A REENLISTMENT BONUS, EVEN THOUGH SUCH MEMBER MAY BE RECEIVING SAVED TOTAL COMPENSATION PURSUANT TO SECTION 515, AND IN THE EVENT SUCH MEMBER QUALIFIES UNDER THE SAVINGS PROVISIONS OF SECTION 207 (D) HE MAY RECEIVE EITHER THE ENLISTMENT ALLOWANCE UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR THE REENLISTMENT BONUS UNDER THE 1949 ACT, WHICHEVER IS GREATER. FOLLOWING THE PRINCIPLES DISCUSSED IN 29 COMP. GEN. 347, AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS RECEIVING AN ALLOWANCE FOR LEAVE RATIONS UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, MAY HAVE SUCH ALLOWANCE CONSIDERED IN DETERMINING WHETHER HE IS ENTITLED TO SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949. THE INITIAL CASH CLOTHING ALLOWANCE AND THE QUARTERLY CASH MAINTENANCE ALLOWANCE IN LIEU OF CLOTHING NOT FURNISHED IN KIND TO WHICH AN ENLISTED MEMBER OF THE UNIFORMED SERVICES MAY BECOME ENTITLED ON OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 ARE NOT TO BE CONSIDERED AS ALLOWANCES REQUIRED BY SECTION 515 TO BE INCLUDED IN THE COMPUTATION OF THE MEMBER'S SAVED TOTAL COMPENSATION, BUT ARE TO BE COMPUTED UNDER THE LAW AND REGULATIONS IN EFFECT AT THE TIME OF ENTITLEMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 15, 1950:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1950, REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN THE ADMINISTRATION OF THE SAVINGS PROVISIONS OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, AND WHICH ARE STATED, IN SUCH LETTER AS FOLLOWS:

IF A MEMBER OF THE UNIFORMED SERVICES DRAWING SAVED PAY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 BECOMES ENTITLED TO AN ITEM OF PAY OR ALLOWANCE WHICH WAS NOT CONSIDERED IN DETERMINING HIS RIGHT TO SAVED PAY, SUCH AS LEAVE RATIONS, CASH CLOTHING ALLOWANCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUS, MAY HE BE CREDITED WITH SUCH ITEM AND STILL RETAIN HIS RIGHT TO SAVED PAY? IF YOUR ANSWER IS IN THE AFFIRMATIVE, SHOULD SUCH ITEMS BE CREDITED UNDER THE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, OR UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT, IF THE CREDIT IS AUTHORIZED UNDER THE PROVISIONS OF BOTH LAWS? FOR EXAMPLE, IF A MEMBER CONTINUES TO BE ENTITLED TO SAVED PAY AFTER REENLISTMENT FOLLOWING A DISCHARGE IN OCTOBER 1949, IS HE ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT, IF OTHERWISE ENTITLED TO SUCH BENEFIT, OR IS HE ENTITLED TO AN ENLISTMENT ALLOWANCE UNDER THE APPROPRIATE PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949?

SUBSECTIONS (A) AND (B) OF THE SAID SECTION 515, 63 STAT. 831, PROVIDE IN PERTINENT PART AS FOLLOWS:

(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 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 OR 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: * * *

SECTION 531 (A) AND (B) OF THE SAID ACT, 63 STAT. 838, 839, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED ON THE DATE SUCH PROVISIONS OF THIS ACT BECOME EFFECTIVE, AND THE PROVISIONS OF THIS ACT SHALL BE IN EFFECT IN LIEU THEREOF, AND SUCH REPEAL SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THE ACTS AND PARTS OF ACTS REPEALED IN SUBSECTION (B), (C), AND (D) OF THIS SECTION.

(B) THE FOLLOWING ACTS AND PARTS OF ACTS ARE HEREBY REPEALED:

(34) THE ACT OF JUNE 16, 1942 (56 STAT. 359), AS AMENDED, EXCEPT SECTION 12 OF SUCH ACT, AS AMENDED, EXCEPT THAT PART OF PARAGRAPH 1 OF SECTION 10 OF SUCH ACT, AS AMENDED, WHICH RELATES TO ENLISTED PERSONNEL IN A TRAVEL STATUS, AND EXCEPT PARAGRAPH 4 OF SECTION 15 OF SUCH ACT, AS AMENDED.

IT IS STATED THAT DOUBT HAS ARISEN AS TO WHETHER A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RECEIVE SAVED TOTAL COMPENSATION UNDER SECTION 515, SUPRA, MAY BE CREDITED ON AND AFTER OCTOBER 1, 1949, WITH ITEMS OF PAY OR ALLOWANCES WHICH ARE NOT AUTHORIZED UNDER THE SAID SECTION 515 TO BE INCLUDED IN THE COMPUTATION OF A MEMBER'S SAVED "TOTAL COMPENSATION," WITHOUT INCREASING HIS "PAY AND ALLOWANCES, OR OTHER MONETARY BENEFITS, TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949.' IT IS INDICATED THAT SUCH DOUBT EXISTS BY REASON OF CERTAIN LANGUAGE IN DECISION OF NOVEMBER 30, 1949, B-90270, 29 COMP. GEN. 241, 250 (ANSWER TO THE EIGHTH QUESTION), WHEREIN IT WAS STATED THAT:

THE SAVINGS PROVISION IN SUBSECTION (B) OF SECTION 515, AS THE TITLE TO THE SAID SECTION 515 INDICATES, IS A PROVISION TO "RETAIN PRESENT COMPENSATION; " IT MERELY SAVES A MEMBER FROM ANY ,REDUCTION" IN THE TOTAL COMPENSATION WHICH HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949; IT DOES NOT SAVE A MEMBER A RIGHT TO RECEIVE AN INCREASE AFTER OCTOBER 1, 1949, IN THE PAY AND ALLOWANCES, OR OTHER MONETARY BENEFITS, TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. * * * (ITALICS SUPPLIED.)

THE ABOVE-QUOTED STATEMENT WAS MADE IN ANSWER TO A QUESTION AS TO WHETHER ENLISTED MEMBERS WHO ARE ENTITLED TO SAVED TOTAL COMPENSATION UNDER THE SAID SECTION 515 (B/--- WHICH INCLUDES FAMILY ALLOWANCE BENEFITS--- MAY HAVE ADDED TO THE SUM SAVED TO THEM ANY AMOUNT ON ACCOUNT OF ADDITIONAL DEPENDENTS ACQUIRED ON AND AFTER OCTOBER 1, 1949. THE FIRST PART OF THE QUOTED STATEMENT MERELY REITERATED THE FACT THAT THE SAVINGS PROVISION IN SECTION 515 ONLY SAVES A MEMBER FROM REDUCTION IN THE "TOTAL COMPENSATION" (DEFINED IN THE SAID SECTION AS EXCLUDING TRAVEL AND TRANSPORTATION ALLOWANCES, ETC.) WHICH HE IS ENTITLED TO RECEIVE UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, AND THAT "IT" (THE SAVINGS PROVISION) DOES NOT SAVE A MEMBER A RIGHT TO RECEIVE AN INCREASE AFTER OCTOBER 1, 1949, IN THE PAY AND ALLOWANCES, OR OTHER MONETARY BENEFITS, TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. IT SEEMS QUITE OBVIOUS THAT THE ONLY "PAY AND ALLOWANCES, OR OTHER MONETARY BENEFITS" UPON WHICH THE SAID SAVINGS PROVISION COULD HAVE ANY AFFECT ARE THOSE NOT EXPRESSLY, OR BY NECESSARY IMPLICATION, REQUIRED BY SECTION 515 TO BE EXCLUDED FROM THE COMPUTATION OF A MEMBER'S SAVED "TOTAL COMPENSATION.' AS A GENERAL PROPOSITION, THE FACT THAT A MEMBER MAY BE RECEIVING SAVED TOTAL COMPENSATION UNDER SECTION 515 DOES NOT IN ANY WAY AFFECT HIS ENTITLEMENT TO ITEMS OF PAY AND ALLOWANCES, SUCH AS TRAVEL AND TRANSPORTATION ALLOWANCES, ETC., WHICH ARE REQUIRED BY SECTION 515 TO BE EXCLUDED FROM THE COMPUTATION OF HIS SAVED "TOTAL COMPENSATION" AND, CONSEQUENTLY, A MEMBER DRAWING SAVED TOTAL COMPENSATION IS ENTITLED TO ANY SUCH EXCLUDED ITEMS OF PAY AND ALLOWANCES, IF OTHERWISE ENTITLED THERETO, UNDER THE CAREER COMPENSATION ACT ON THE SAME BASIS AS THOUGH SUCH MEMBER WERE NOT RECEIVING SAVED TOTAL COMPENSATION.

WITH RESPECT TO THE MATTER OF ENLISTMENT ALLOWANCE AND REENLISTMENT BONUSES, IT WILL BE NOTED THAT BOTH SUBSECTIONS (A) AND (B) OF SECTION 515, SUPRA, DEFINE "TOTAL COMPENSATION" AS NOT INCLUDING, INTER ALIA,"ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES.' HENCE, SINCE SUCH ALLOWANCES AND BONUSES ARE SPECIFICALLY REQUIRED TO BE EXCLUDED "FOR THE PURPOSES OF; SUBSECTIONS (A) AND (B) OF SECTION 515, IN THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION, AND AS SECTION 531 (B) (34) OF THE ACT, SUPRA, REPEALED AS OF OCTOBER 1, 1949, THE STATUTE THERETOFORE APPLICABLE TO THE PAYMENT OF ENLISTMENT ALLOWANCE (SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED), THE REENLISTMENT ALLOWANCE OR BONUS OF ANY MEMBER WHO REENLISTS ON OR AFTER OCTOBER 1, 1949, IS TO BE COMPUTED AS AUTHORIZED UNDER SECTION 207 OF THE CAREER COMPENSATION ACT, NOTWITHSTANDING THE FACT THAT SUCH MEMBER MAY BE RECEIVING SAVED "TOTAL COMPENSATION.' IN THAT CONNECTION SUBSECTIONS (A) AND (B) OF SECTION 207 63 STAT. 811, PRESCRIBE THE CONDITION UNDER WHICH MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO REENLISTMENT BONUS AND THE AMOUNT PAYABLE UPON AN ENLISTMENT OR REENLISTMENT FOR A SPECIFIED PERIOD, ETC., AND SUBSECTION (D) OF THE SAID SECTION 207, 63 STAT. 812, PROVIDES AS FOLLOWS:

(D) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS WITHIN THREE MONTHS AFTER BEING DISCHARGED FROM THE ENLISTMENT ENTERED INTO PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR WHO REENLISTS WITHIN THREE MONTHS AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER OR WARRANT OFFICER UNDER APPOINTMENT MADE PRIOR TO THE DATE OF ENACTMENT OF THIS ACT IF SUCH COMMISSIONED OR WARRANT SERVICE IMMEDIATELY FOLLOWED ENLISTED SERVICE, SHALL BE ENTITLED TO RECEIVE EITHER (1) ENLISTMENT ALLOWANCES IN THE AMOUNT AND UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR (2) REENLISTMENT BONUS IN THE AMOUNT AND UNDER THE PROVISIONS OF THIS SECTION, WHICHEVER IS THE GREATER AMOUNT: PROVIDED, THAT THE ENLISTMENT ALLOWANCE PAYABLE UNDER (1) HEREUNDER SHALL IN NO EVENT EXCEED $300.

SECTION 520 OF THE SAID ACT, 63 STAT. 834, PROVIDES AS FOLLOWS:

ANY PROVISION OF LAW WHICH, ON THE DATE OF ENACTMENT OF THIS ACT, ENTITLES ANY PERSON TO BE RETIRED, TO RECEIVE PAY, RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY, OR OTHER MONETARY BENEFIT, AND WHICH IS DIRECTLY REPEALED, IMPLIEDLY REPEALED, OR AMENDED BY THE PROVISIONS OF THIS ACT, SHALL, IF THE ENTITLEMENT OF SUCH PERSON TO SUCH RETIREMENT, PAY, RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER MONETARY BENEFIT IS SAVED BY THE PROVISIONS OF THIS ACT, BE CONTINUED IN FULL FORCE AND EFFECT FOR SUCH ENTITLEMENT AND FOR SUCH A TIME AS SUCH ENTITLEMENT MAY EXIST.

THE SAID SECTION 207 (D), SUPRA, SPECIFICALLY SAVES CERTAIN MEMBERS A RIGHT TO RECEIVE ENLISTMENT ALLOWANCE UNDER THE OLD LAW OR TO RECEIVE A REENLISTMENT BONUS UNDER THE NEW LAW, WHICHEVER IS GREATER. HOWEVER, SUCH ALLOWANCE OR BONUS IS NOT AN ITEM OF SAVED "TOTAL OMPENSATION" AS DEFINED IN SECTION 515, BUT ACCRUES INCIDENT TO A RIGHT SAVED TO ANY MEMBER OF THE UNIFORMED SERVICES WHO ENLISTS OR REENLISTS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 207 (D), SUPRA, IRRESPECTIVE OF THE MEMBER'S ENTITLEMENT TO SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE ACT. HENCE, THE REENLISTMENT BONUS OF A MEMBER WHO ENLISTS OR REENLISTS ON OR AFTER OCTOBER 1, 1949, IS TO BE COMPUTED UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, EVEN THOUGH SUCH MEMBER MAY BE RECEIVING SAVED TOTAL COMPENSATION, AND IN THE EVENT THAT SUCH MEMBER QUALIFIED FOR THE BENEFITS OF SECTION 207 (D) OF THE ACT, HE WOULD BE ENTITLED TO ENLISTMENT ALLOWANCE UNDER SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR REENLISTMENT BONUS UNDER THE CAREER COMPENSATION ACT, WHICHEVER IS GREATER, IN VIEW OF THE EXPRESS TERMS OF THE SAID SECTION 207 (D).

WITH RESPECT TO THE MATTER OF LEAVE RATIONS, SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C. 110, PROVIDED THAT "1ENLISTED PERSONNEL NOT RECEIVING ALLOWANCES FOR SUBSISTENCE SHALL BE ENTITLED TO COMMUTATION IN LIEU OF RATIONS WHILE ON FURLOUGH OR AUTHORIZED LEAVE OR WHEN AUTHORIZED TO MESS SEPARATELY, UNDER SUCH REGULATIONS AND AT SUCH RATES AS MAY BE PRESCRIBED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED.' IN DECISION OF MARCH 3, 1950, B 90839, 29 COMP. GEN. 347 (WHICH WAS RENDERED SUBSEQUENT TO THE DATE OF YOUR SUBMISSION), IN CONNECTION WITH A QUESTION AS TO WHETHER SUBSISTENCE ALLOWANCE MAY BE INCLUDED AS AN ITEM OF SAVED TOTAL COMPENSATION UNDER SECTION 515 FOLLOWING A PERIOD IN WHICH A MEMBER IS NOT ENTITLED TO SUBSISTENCE ALLOWANCE, AS SUCH, BY REASON OF BEING IN RECEIPT OF PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS, IT WAS STATED THAT--- * * * IT HAS BEEN CONSIDERED THAT SINCE AN ENLISTED MAN IN RECEIPT OF A PER DIEM ALLOWANCE WHILE IN A TRAVEL STATUS IS BEING SUBSISTED AT GOVERNMENT EXPENSE, SUCH AN ENLISTED MAN IS NOT ENTITLED TO RECEIVE A MONEY SUBSISTENCE ALLOWANCE IN SOME OTHER FORM WHILE ENTITLED TO SUCH PER DIEM ALLOWANCE. BUT, HAVING BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, TO SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF, I THINK THE CONCLUSION MUST BE REACHED THAT AN ENLISTED MEMBER OTHERWISE ENTITLED TO SAVED TOTAL COMPENSATION IS ENTITLED TO CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF AS AN ITEM OF HIS SAVED TOTAL COMPENSATION SO LONG AS HE QUALIFIES FOR ONE OR THE OTHER. THAT IS TO SAY, THE SUBSISTENCE IN KIND AND THE MONEY ALLOWANCE ARE ALTERNATIVES OF THE SAME BASIC ALLOWANCE, AN ENLISTED MEMBER BEING ENTITLED TO ONE AS A SUBSTITUTE FOR THE OTHER AT ALL TIMES, AND THE FACT THAT THE ALLOWANCE MAY TEMPORARILY BE INCLUDED IN, OR BE PAID IN, THE FORM OF A PER DIEM TRAVEL ALLOWANCE DOES NOT RESULT IN A FAILURE OF THE MEMBER TO CONTINUE TO QUALIFY FOR SUCH BASIC SUBSISTENCE ALLOWANCE, WITHIN THE MEANING OF THE LIMITATION IN SECTION 515 (B). IT FOLLOWS THAT WHILE SERGEANT BARR IS NOT ENTITLED, DURING ANY PERIOD AFTER OCTOBER 1, 1949, WHILE ENTITLED TO A PER DIEM TRAVEL ALLOWANCE WHICH INCLUDES AN ALLOWANCE FOR MEALS OR RATIONS, TO BE PAID ALSO THE MONETARY ALLOWANCE FOR SUBSISTENCE PREVIOUSLY RECEIVED AS A PART OF HIS SAVED TOTAL COMPENSATION, UPON COMPLETION OF SUCH TRAVEL AND RETURN TO HIS STATION THE ENLISTED MAN WOULD BE ENTITLED, IF NOT OTHERWISE FURNISHED SUBSISTENCE THEREAT, TO INCLUDE IN HIS SAVED TOTAL COMPENSATION THE SUBSISTENCE MONEY ALLOWANCE WHICH HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, OR SUCH OTHER MONETARY ALLOWANCE AS PROVIDED UNDER THE PRIOR LAW AND REGULATIONS FOR THE ACTUAL CONDITIONS OF HIS SERVICE. SERGEANT BARR'S PAY ACCOUNT SHOULD BE ADJUSTED ACCORDINGLY.

THE SAME PRINCIPLES WOULD APPLY, OF COURSE, IN THE CASE OF AN ENLISTED MAN OTHERWISE ENTITLED TO SAVED TOTAL COMPENSATION WHERE HE WAS RECEIVING RATIONS OR QUARTERS, OR BOTH, IN KIND ON SEPTEMBER 30, 1949, BUT THEREAFTER BECAME ENTITLED TO MONETARY ALLOWANCES IN LIEU THEREOF.

IT IS APPARENT FROM THE FOREGOING THAT, CONTRARY TO THE ASSUMPTION MADE IN YOUR SUBMISSION, LEAVE RATIONS ARE TO BE CONSIDERED, IN A PROPER CASE, IN DETERMINING A MEMBER'S ENTITLEMENT TO SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT; AND, OF COURSE, IN SUCH CASE, THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION MUST BE ON THE BASIS OF THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND REGULATIONS ISSUED PURSUANT THERETO.

THE CASH CLOTHING ALLOWANCE REFERRED TO IN YOUR LETTER IS NOT ONE OF THE ALLOWANCES SPECIFICALLY REQUIRED BY SECTION 515, SUPRA, TO BE EXCLUDED FROM THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION. IN THAT CONNECTION, IT IS A GENERAL RULE OF STATUTORY INTERPRETATION THAT WHERE PERSONS AND THINGS TO WHICH A STATUTE REFERS ARE AFFIRMATIVELY OR NEGATIVELY DESIGNATED, THERE IS AN INFERENCE THAT ALL OMISSIONS WERE INTENDED BY THE LEGISLATURE--- EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. SEE SECTION 4915, SUTHERLAND STATUTORY CONSTRUCTION, THIRD EDITION. HOWEVER, IT ALSO IS WELL RECOGNIZED THAT THE SAID RULE IS NOT OF UNIFORM APPLICATION BUT IS TO BE APPLIED ONLY AS AN AID IN ARRIVING AT THE INTENT OF THE LEGISLATURE AND SHOULD NEVER BE FOLLOWED TO THE EXTENT OF CREATING AN ABSURDITY OR FAILING TO ACCOMPLISH THE PURPOSE FOR WHICH THE STATUTE WAS ENACTED. SEE SECTION 4917, SUTHERLAND STATUTORY CONSTRUCTION, THIRD EDITION.

IT WILL BE NOTED THAT PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, THE PRESIDENT WAS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, AS AMENDED, 37 U.S.C. 110, TO PRESCRIBE THE QUANTITY AND KIND OF CLOTHING TO BE FURNISHED ANNUALLY TO ENLISTED MEN OF THE NAVY, ETC., AND TO PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID SUCH ENLISTED MEN WHEN CLOTHING WAS NOT FURNISHED TO THEM. A SUBSTANTIALLY SIMILAR PROVISION IS NOW CONTAINED IN SECTION 505 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 828. THE PRESENT DISCUSSION HAS REFERENCE TO CASES WHERE CLOTHING IS NOT FURNISHED IN KIND AND AN ALLOWANCE IS TO BE PAID IN LIEU THEREOF. BY EXECUTIVE ORDER 10049, DATED APRIL 2, 1949, THE PRESIDENT DELEGATED TO THE SECRETARY OF DEFENSE THE AUTHORITY TO PRESCRIBE THE CLOTHING TO BE FURNISHED, OR THE CASH ALLOWANCE IN LIEU THEREOF TO BE PAID, TO ENLISTED MEN OF THE ARMED FORCES. THE REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE, EFFECTIVE JULY 1, 1949, PRESCRIBED A CASH CLOTHING ALLOWANCE PAYABLE UPON FIRST ENLISTMENT OR REENLISTMENT UNDER CERTAIN CIRCUMSTANCES, THE AMOUNT THEREOF DEPENDING UPON THE MEMBER'S GRADE OR RATING AND DUTY ASSIGNMENT. ADDITIONAL INITIAL CASH CLOTHING ALLOWANCE WAS PRESCRIBED FOR MEMBERS UPON ADVANCEMENT TO CHIEF PETTY OFFICER OR STEWARD, UPON ASSIGNMENT TO DUTY AS A MEMBER OF THE UNITED STATES NAVY BAND AND ALSO UPON ASSIGNMENT TO DUTY IN FOREIGN COUNTRIES WHERE THE WEARING OF CIVILIAN CLOTHING IS REQUIRED BY COMPETENT AUTHORITY. THE SAID REGULATION ALSO PRESCRIBED A QUARTERLY MAINTENANCE ALLOWANCE, IN CERTAIN CASES, WHICH WAS PAYABLE ON THE FIRST DAY OF EACH QUARTER TO ENLISTED MEMBERS OF THE NAVY, ETC. THE REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949, WHICH WERE ISSUED PURSUANT TO THE OLD LAW, HAVE BEEN CONTINUED IN EFFECT UNDER THE NEW LAW. SEE EXECUTIVE ORDERS 10084, DATED OCTOBER 12, 1949; 10098, JANUARY 25, 1950; 10113, FEBRUARY 24, 1950; AND 10118, MARCH 27, 1950.

THE INITIAL CASH CLOTHING ALLOWANCE AUTHORIZED UNDER THE LAW AND REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949, UPON FIRST ENLISTMENT OR REENLISTMENT IN THE ARMED SERVICES, AS WELL AS THE INITIAL ALLOWANCES PAYABLE UPON ADVANCEMENT TO CERTAIN RANKS OR RATINGS, UPON ASSIGNMENT AS A MEMBER OF THE NAVY BAND, AND UPON ASSIGNMENT TO DUTY IN FOREIGN COUNTRIES WHERE THE WEARING OF CIVILIAN CLOTHING IS REQUIRED, ARE AN INITIAL CASH CLOTHING ALLOWANCE TO WHICH MEMBERS ARE ENTITLED ONLY ONCE DURING AN ENLISTMENT OR REENLISTMENT. SUCH ALLOWANCES DO NOT ACCRUE ON A DAILY OR MONTHLY BASIS AS IS THE CASE GENERALLY WITH RESPECT TO OTHER ITEMS OF PAY AND ALLOWANCES WHICH ENTER INTO THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT. GENERALLY, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO SAVED TOTAL COMPENSATION UNDER THE SAID SECTION 515 HAD BEEN PAID OR CREDITED WITH AN INITIAL CASH CLOTHING ALLOWANCE UPON THEIR ENLISTMENT OR REENLISTMENT PRIOR TO OCTOBER 1, 1949. HENCE, IN DETERMINING WHETHER A MEMBER'S SAVED TOTAL COMPENSATION UNDER THE OLD LAW IS GREATER THAN HIS PAY AND ALLOWANCES UNDER THE NEW LAW, THERE WOULD BE NO OCCASION OR NECESSITY TO INCLUDE THE INITIAL CASH CLOTHING ALLOWANCE IN MAKING SUCH COMPUTATION. MOREOVER, SINCE A MEMBER IN SUCH CASES WOULD HAVE BEEN PAID OR CREDITED WITH AN INITIAL CASH CLOTHING ALLOWANCE UPON ENLISTMENT OR REENLISTMENT PRIOR TO OCTOBER 1, 1949--- IN SOME CASES SEVERAL YEARS PRIOR TO THAT DATE--- AND SINCE SUCH ALLOWANCE IS CREDITED OR PAID ONLY ONCE DURING AN ENLISTMENT OR REENLISTMENT, IT REASONABLY MAY NOT BE CONSIDERED THAT SUCH A MEMBER WAS "ENTITLED TO RECEIVE" AN INITIAL CASH CLOTHING ALLOWANCE "UNDER ANY PROVISION OF LAW IN EFFECT ON THE DATE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT," WITHIN THE CONTEMPLATION OF THE SAID SECTION 515. FURTHERMORE, THE SAME RULE WOULD BE EQUALLY APPLICABLE TO MEMBERS WHO WERE ENTITLED TO AN ADDITIONAL INITIAL CASH CLOTHING ALLOWANCE PRIOR TO OCTOBER 1, 1949, INCIDENT TO AN ADVANCEMENT PRIOR TO THAT DATE TO CHIEF PETTY OFFICER OR STEWARD, OR AN ASSIGNMENT TO DUTY IN FOREIGN COUNTRIES WHERE THE WEARING OF CIVILIAN CLOTHING IS REQUIRED BY COMPETENT AUTHORITY. VIEW OF THE FOREGOING, IT SEEMS REASONABLY CLEAR THAT IT WAS NOT INTENDED OR CONTEMPLATED THAT THE INITIAL CASH CLOTHING ALLOWANCE AUTHORIZED INCIDENT TO AN ENLISTMENT OR REENLISTMENT, ADVANCEMENT TO CHIEF PETTY OFFICER OR STEWARD, ETC., WAS TO BE INCLUDED IN THE COMPUTATION FOR A MEMBER'S SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949. HENCE, IF A MEMBER OTHERWISE ENTITLED TO RECEIVE SAVED TOTAL COMPENSATION BECOMES ENTITLED ON OR AFTER OCTOBER 1, 1949, TO AN ADDITIONAL INITIAL CASH CLOTHING ALLOWANCE BY REASON OF ADVANCEMENT TO CHIEF PETTY OFFICER, ETC., SUCH ALLOWANCE IS TO BE COMPUTED UNDER THE LAW AND REGULATIONS IN EFFECT AT THAT TIME.

HOWEVER, IT IS NOT ENTIRELY CLEAR WHETHER THE QUARTERLY MAINTENANCE ALLOWANCE ALSO IS TO BE EXCLUDED FROM COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION. IT IS NOTED THAT UNDER REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949, THE QUARTERLY MAINTENANCE ALLOWANCE IS PAYABLE ON THE FIRST DAY OF EACH QUARTER TO ENLISTED MEMBERS UNDER CERTAIN CIRCUMSTANCES. INASMUCH AS SUCH MAINTENANCE ALLOWANCE IS ON A QUARTERLY BASIS AND IS NOT PAYABLE UNTIL THE FIRST DAY OF EACH QUARTER, IT SEEMS AT LEAST DOUBTFUL THAT IT WAS INTENDED THAT SUCH ALLOWANCE SHOULD ENTER INTO THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION UNDER THE SAID SECTION 515. IT IS UNDERSTOOD INFORMALLY THAT INSTRUCTIONS PERTAINING TO THE PAYMENT OF CASH CLOTHING ALLOWANCE ARE NOW IN THE PROCESS OF BEING PREPARED BY PROPER AUTHORITIES PURSUANT TO SECTION 505 OF THE CAREER COMPENSATION ACT OF 1949, AND THAT SUCH REGULATIONS WOULD PLACE THE SO- CALLED QUARTERLY MAINTENANCE ALLOWANCE ON A MONTHLY BASIS PRORATED FOR A FRACTIONAL PART OF A MONTH ON THE BASIS OF 30 DAYS TO THE MONTH. IF SUCH PROPOSED REGULATIONS IN THAT RESPECT BE APPROVED, IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, FOR PURPOSES OF DETERMINING WHETHER A MEMBER'S SAVED PAY UNDER THE OLD LAW IS GREATER THAN HIS PAY AND ALLOWANCES UNDER THE NEW LAW, TO INCLUDE THE QUARTERLY MAINTENANCE ALLOWANCE ON THE ONE SIDE AND THE MONTHLY MAINTENANCE ALLOWANCE ON THE OTHER SIDE, WITHOUT ADOPTING SOME ARBITRARY BASIS SUCH AS REDUCING THE QUARTERLY MAINTENANCE ALLOWANCE TO A MONTHLY BASIS. HOWEVER THAT MAY BE, IT IS FURTHER UNDERSTOOD THAT THE NAVY DEPARTMENT HAS TAKEN THE VIEW THAT SUCH QUARTERLY MAINTENANCE ALLOWANCE IS NOT TO BE INCLUDED IN THE COMPUTATION OF A MEMBER'S SAVED TOTAL COMPENSATION, AND THERE APPEARS NO SUFFICIENT REASON FOR THIS OFFICE TO DISAGREE WITH THAT VIEW AND TO APPLY A RULE TO THE MAINTENANCE ALLOWANCE DIFFERENT FROM THAT APPLIED TO THE INITIAL CLOTHING ALLOWANCE. ACCORDINGLY, THE MAINTENANCE ALLOWANCE FOR CLOTHING PAYABLE TO ENLISTED PERSONNEL ON AND AFTER OCTOBER 1, 1949, SHOULD BE COMPUTED AND PAID WITHOUT REGARD TO THE FACT THAT THE ENLISTED PERSON CONCERNED MAY BE ENTITLED TO SAVED TOTAL COMPENSATION UNDER THE PROVISIONS OF THE SAID SECTION 515.