B-93680, SEPTEMBER 26, 1950, 30 COMP. GEN. 119

B-93680: Sep 26, 1950

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WHO IS REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR SENTENCE OF COURT MARTIAL. 1950: REFERENCE IS MADE TO YOUR LETTER OF MARCH 7. REQUESTING DECISION ON CERTAIN QUESTIONS CONCERNING THE SAVED "TOTAL COMPENSATION" TO WHICH MEMBERS OF THE UNIFORMED SERVICES WHO ARE REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR A SENTENCE OF COURT MARTIAL ARE ENTITLED UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949. THE QUESTIONS PRESENTED ARE AS FOLLOWS: (1) IF A MEMBER WHO IS ENTITLED TO SAVED PAY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 IS REDUCED IN RATING OR GRADE. IN WHAT MANNER WOULD SUCH SAVED PAY BE COMPUTED? (2) IF IT IS YOUR DECISION THAT ENTITLEMENT TO SAVED PAY CONTINUES AFTER REDUCTION IN RATING OR GRADE.

B-93680, SEPTEMBER 26, 1950, 30 COMP. GEN. 119

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 - REDUCTION IN GRADE AND SUBSEQUENT PROMOTION A MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, WHO IS REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR SENTENCE OF COURT MARTIAL, MAY CONTINUE TO RECEIVE SAVED TOTAL COMPENSATION COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE REDUCED GRADE OR RATING UNDER THE LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE 1949 ACT; HOWEVER, A SUBSEQUENT PROMOTION WOULD NOT ENTITLE SUCH MEMBER TO INCREASED SAVED TOTAL COMPENSATION OF THE HIGHER GRADE OR RATING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 26, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1950, REQUESTING DECISION ON CERTAIN QUESTIONS CONCERNING THE SAVED "TOTAL COMPENSATION" TO WHICH MEMBERS OF THE UNIFORMED SERVICES WHO ARE REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR A SENTENCE OF COURT MARTIAL ARE ENTITLED UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949. THE QUESTIONS PRESENTED ARE AS FOLLOWS:

(1) IF A MEMBER WHO IS ENTITLED TO SAVED PAY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 IS REDUCED IN RATING OR GRADE, DOES SUCH MEMBER'S ENTITLEMENT TO SUCH SAVED PAY OR TO ANY PART THEREOF CONTINUE AFTER THE EFFECTIVE DATE OF THE REDUCTION? IF SO, IN WHAT MANNER WOULD SUCH SAVED PAY BE COMPUTED?

(2) IF IT IS YOUR DECISION THAT ENTITLEMENT TO SAVED PAY CONTINUES AFTER REDUCTION IN RATING OR GRADE, IN WHAT MANNER WOULD SUCH SAVED PAY BE AFFECTED BY A PROMOTION TO THE RATING OR GRADE PREVIOUSLY HELD OR TO A RATING OR GRADE NOT HIGHER THAN THAT FROM WHICH REDUCED?

THE SAVINGS PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 831, PROVIDES IN PART AS FOLLOWS:

ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING AS AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBERS 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 QUALIFY THEREFOR OR TO BE ENTITLED THERETO. * * *

THE SAVINGS PROVISION IN SECTION 515 (B), SUPRA (WHICH, INSOFAR AS HERE MATERIAL, IS SIMILAR TO THE SAVINGS PROVISION IN SUBSECTION (A) OF SECTION 515, 63 STAT. 831), SAVES A MEMBER OTHERWISE ENTITLED TO ITS BENEFITS FROM ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION, AS DEFINED THEREIN, WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949. IT IS APPARENT THAT A REDUCTION IN TOTAL COMPENSATION BY REASON OF A REDUCTION IN GRADE OR RATING AS A RESULT OF ADMINISTRATIVE ACTION OR SENTENCE OF A COURT MARTIAL IS NOT A REDUCTION IN TOTAL COMPENSATION "BY REASON OF THIS ACT" AND, CONSEQUENTLY, THE SAID SAVINGS PROVISION DOES NOT OPERATE TO ENTITLE SUCH A MEMBER TO CONTINUE TO RECEIVE THE SAVED TOTAL COMPENSATION TO WHICH HE WAS ENTITLED PRIOR TO THE EFFECTIVE DATE OF THE REDUCTION IN GRADE OR RATING. MOREOVER, THE THIRD PROVISO IN SUBSECTION (B), SUPRA, WAS INSERTED THEREIN TO MAKE IT CLEAR THAT THE SAVINGS PROVISION IN SUBSECTION (B) WOULD CEASE TO APPLY TO "ANY PART" OF A MEMBER'S SAVED "TOTAL COMPENSATION" UPON HIS FAILURE (OR THAT OF HIS DEPENDENT OR DEPENDENTS) TO QUALIFY THEREFOR OR TO BE ENTITLED THERETO. HOWEVER, THE REAL QUESTION INVOLVED APPEARS TO BE WHETHER A MEMBER'S FAILURE TO QUALIFY FOR THE TOTAL COMPENSATION OF THE PARTICULAR GRADE OR RATING WHICH HE HELD ON SEPTEMBER 30, 1949, WOULD WHOLLY TERMINATE HIS RIGHT TO RECEIVE ANY FURTHER BENEFITS OF THE SAID SAVINGS PROVISION AND, IF NOT, WHETHER THE SAID SAVINGS PROVISION MAY BE APPLIED TO THE "TOTAL COMPENSATION" OF THE REDUCED GRADE OR RATING.

IN DECISION OF NOVEMBER 30, 1949, 29 COMP. GEN. 238, IT WAS CONCLUDED THAT UNDER THE SAID SAVINGS PROVISION IN SECTION 515 (B) AN ENLISTED MEMBER PROMOTED TO A HIGHER GRADE AFTER THE EFFECTIVE DATE OF THE ACT (THE PAY AND ALLOWANCES OF THE HIGHER GRADE UNDER THE NEW LAW 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. ALSO, IN DECISION OF NOVEMBER 30, 1949, 29 COMP. GEN. 241, 253 (THE 11TH QUESTION), IT WAS HELD THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT PRECLUDED FROM THE BENEFITS OF THE SAVINGS PROVISION OF SECTION 515 (B) MERELY BECAUSE THEY WERE IN A NONPAY STATUS ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE ACT. IT WAS POINTED OUT IN THE SAID DECISION THAT THE STATUTE DOES NOT SAY THE TOTAL COMPENSATION THE MEMBER WAS ENTITLED TO RECEIVE FOR THAT PROCEEDING DAY BUT, MORE BROADLY, THE TOTAL COMPENSATION HE WAS ENTITLED TO RECEIVE "UNDER ANY PROVISION OF LAW IN EFFECT" ON THAT DAY.

THE THIRD PROVISO IN SECTION 515 (B) CLEARLY CONTEMPLATES THAT A MEMBER RECEIVING SAVED TOTAL COMPENSATION MIGHT THEREAFTER FAIL TO QUALIFY FOR A PART OF SUCH TOTAL COMPENSATION BUT SUCH FAILURE TO QUALIFY FOR A PART OF THE SAVED TOTAL COMPENSATION WILL NOT NECESSARILY TERMINATE HIS RIGHT TO SAVED TOTAL COMPENSATION UNLESS, OF COURSE, THE TOTAL COMPENSATION UNDER THE PRIOR LAWS FALLS BELOW THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED UNDER THE NEW ACT. WHILE THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT THE SAID THIRD PROVISO HAD REFERENCE TO THE USUAL SITUATION OF THE FAILURE OF A MEMBER TO QUALIFY FOR CERTAIN ITEMS OF PAY AND ALLOWANCES (SUCH AS FLYING PAY, SEA AND FOREIGN SHORE DUTY PAY, INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS, ETC.), THERE APPEARS TO BE NO SUBSTANTIAL REASON TO BELIEVE THAT THE CONGRESS INTENDED TO PERMANENTLY DEPRIVE A MEMBER OF THE BENEFITS OF SUCH SAVINGS PROVISION MERELY BECAUSE HE FAILED TO QUALIFY FOR A PART OF THE TOTAL COMPENSATION TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, BY REASON OF A REDUCTION IN GRADE OR RATING THEREAFTER. IN THAT CONNECTION, IT SEEMS APPARENT THAT THE PRIMARY PURPOSE OF SECTION 515 (B) WAS TO PERMIT MEMBERS OTHERWISE ENTITLED TO ITS BENEFITS TO CONTINUE TO RECEIVE THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED, IN ADDITION TO THE PAY AND ALLOWANCES UNDER THE PRIOR LAW, AND A STRICT OR NARROW DECISION IN THE PRESENT MATTER WOULD HAVE THE EFFECT, IN MOST CASES, OF DEPRIVING MEMBERS AND THEIR DEPENDENTS OF THE BENEFITS OF THE FAMILY ALLOWANCE STATUTES. AFTER CAREFULLY CONSIDERING THE ENTIRE MATTER, IT IS CONCLUDED THAT A MEMBER OTHERWISE ENTITLED TO THE BENEFITS OF SECTION 515 (B) WHO IS REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR SENTENCE OF COURT MARTIAL IN EFFECT MERELY FAILS TO QUALIFY FOR THAT PART OF HIS SAVED TOTAL COMPENSATION REPRESENTING THE DIFFERENCE IN PAY, ETC., BETWEEN THE TWO GRADES AND, HENCE, IS ENTITLED TO RECEIVE SAVED TOTAL COMPENSATION COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE REDUCED GRADE OR RATING UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, IN ADDITION TO THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. HOWEVER, IN THE EVENT SUCH A MEMBER SUBSEQUENTLY IS PROMOTED HE WOULD NOT BE ENTITLED TO INCREASED SAVED TOTAL COMPENSATION OF THE HIGHER GRADE OR RATING, IT HAVING BEEN HELD THAT ONCE A MEMBER FAILS TO QUALIFY FOR SOME PART OF SAVED TOTAL COMPENSATION, THE PART FOR WHICH HE FAILS TO QUALIFY MAY NOT BE RESTORED UPON HIS SUBSEQUENT REQUALIFICATION. 29 COMP. GEN. 352.