B-97459, MARCH 5, 1951, 30 COMP. GEN. 363

B-97459, MARCH 5, 1951, 30 COMP. GEN. 363

SAVED PAY AND ALLOWANCES - OFFICER PERSONNEL ACT, 1947 - SAVINGS CLAUSE OPERATION LIMITATIONS. WHILE SECTION 404 (J) OF THE OFFICER PERSONNEL ACT OF 1947 EXPRESSLY SAVES A MEMBER APPOINTED FOR LIMITED DUTY FROM REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT BY VIRTUE OF HIS PERMANENT STATUS, A PERMANENT COMMISSIONED WARRANT OFFICER OF THE NAVY WHO WAS RECEIVING THE PAY AND ALLOWANCES AND SERVING IN THE TEMPORARY RANK OF LIEUTENANT, JUNIOR GRADE, AT THE TIME OF HIS PERMANENT APPOINTMENT IN THE SAME GRADE AS A LIMITED DUTY OFFICER IS ENTITLED UPON ACCEPTANCE OF SUCH PERMANENT APPOINTMENT ONLY TO THE PAY AND ALLOWANCES OF THE PERMANENT RANK OF LIEUTENANT, JUNIOR GRADE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 5, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 11, 1950, WITH ENCLOSURE, REQUESTING DECISION AS TO "THE PROPER BASIS FOR COMPUTING THE PAY OF A PERMANENT COMMISSIONED WARRANT OFFICER AFTER DATE OF ACCEPTANCE OF PERMANENT APPOINTMENT IN COMMISSIONED GRADE IN THE REGULAR NAVY FOR LIMITED DUTY ONLY PURSUANT TO THE PROVISIONS OF SECTION 404 OF THE OFFICER PERSONNEL ACT OF 1947 (61 STAT. 870), AS AMENDED.'

IT IS STATED IN THE ENCLOSURE OF THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS THAT A CASE ILLUSTRATIVE OF THIS SITUATION IS AS FOLLOWS:

ENLISTED MAN SERVING IN RATING OF SK1C WAS TEMPORARILY APPOINTED PAY CLERK EFFECTIVE 15 AUGUST 1942. OFFICER WAS SUCCESSIVELY TEMPORARILY APPOINTED CHIEF PAY CLERK EFFECTIVE 15 AUGUST 1943, ENSIGN EFFECTIVE 15 OCTOBER 1944 AND LTJG EFFECTIVE 1 AUGUST 1946. OFFICER ACCEPTED APPOINTMENT AS CHIEF PAY CLERK ON 3 OCTOBER 1946 AND WAS REAPPOINTED TEMPORARY LTJG ON SAME DATE. SERVICE CREDITABLE FOR PAY PURPOSES ON DATE OF ACCEPTANCE OF INITIAL PERMANENT APPOINTMENT AS CHIEF WARRANT OFFICER TOTALED 13 YEARS, 10 MONTHS AND 12 DAYS. OFFICER WAS NOT DRAWING SAVED PAY OF PERMANENT STATUS ON 30 SEPTEMBER 1949, AND ON DATE PRECEDING DATE OF PERMANENT APPOINTMENT AS LTJG, SC, USN FOR LIMITED DUTY ONLY WILL BE ENTITLED TO RECEIVE BASIC PAY OF TEMPORARY RANK.

PRESUMABLY, THE TEMPORARY APPOINTMENT ON OCTOBER 3, 1946, AS LIEUTENANT, JUNIOR GRADE, WAS MADE PURSUANT TO SECTION 2 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AND, UNDER THE EXPRESS PROVISION IN SECTION 7 (A) OF THE SAID ACT, 55 STAT. 604, THE MEMBER'S PERMANENT APPOINTMENT AS COMMISSIONED WARRANT OFFICER WAS NOT VACATED BY REASON OF SUCH TEMPORARY APPOINTMENT. ALSO, THE TEMPORARY APPOINTMENT OF OCTOBER 3, 1946, APPARENTLY WAS AFFIRMED OR CONTINUED IN EFFECT UNDER THE PROVISIONS OF SUBSECTIONS (E) AND (I) OF SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, 831.

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS ORIGINALLY ENACTED PROVIDED, IN PERTINENT PART, AS FOLLOWS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED. (ITALICS SUPPLIED.)

THE SECOND PROVISO IN THE SAID SECTION 7 (A) WAS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, TO READ AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT * * *. (ITALICS SUPPLIED.)

ON OCTOBER 3, 1946, THE DATE OF THE TEMPORARY APPOINTMENT AS A LIEUTENANT, JUNIOR GRADE, THE PAY AND ALLOWANCES OF THE MEMBER'S TEMPORARY RANK EXCEEDED THOSE OF HIS PERMANENT RANK AND, UNDER THE EXPRESS PROVISION IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, THE MEMBER WAS ENTITLED ONLY TO THE PAY AND ALLOWANCES "PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED," AND, HENCE, THE SAVED PAY PROVISION IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, COULD HAVE NO APPLICATION IN THIS CASE.

UPON ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, THE PAY AND ALLOWANCES OF THE MEMBER'S PERMANENT GRADE, COMPUTED ON THE BASIS OF THE NEW RATES PRESCRIBED THEREIN, EXCEEDED THOSE AUTHORIZED THEREIN FOR HIS TEMPORARY GRADE. HOWEVER, ON OCTOBER 1, 1949, THE MEMBER WAS NOT ENTITLED TO THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE AND, THEREFORE, HE WAS NOT ENTITLED TO THE INCREASED RATES OF PAY AND ALLOWANCES APPLICABLE TO HIS PERMANENT GRADE ON AND AFTER THAT DATE; AND, EVEN THOUGH HE HAD BEEN ENTITLED TO SAVED PAY AND ALLOWANCES OF HIS PERMANENT GRADE ON THAT DATE, HE WOULD NOT HAVE BEEN ENTITLED TO COMPUTE SUCH PAY AND ALLOWANCES ON THE BASIS OF THE INCREASED RATES OF PAY PROVIDED IN THE CAREER COMPENSATION ACT OF 1949. SEE 26 COMP. GEN. 223. HENCE, ON THE DATE IMMEDIATELY PRECEDING HIS PERMANENT APPOINTMENT AS A LIMITED DUTY OFFICER UNDER SECTION 404 OF THE OFFICER PERSONNEL ACT OF 1947, THE MEMBER WAS ENTITLED TO THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK OF LIEUTENANT, JUNIOR GRADE.

SECTION 404 OF THE OFFICER PERSONNEL ACT OF 1947 AUTHORIZES THE PRESIDENT TO PERMANENTLY APPOINT IN THE REGULAR NAVY IN COMMISSIONED GRADES, NOT ABOVE COMMANDER, CERTAIN MEMBERS OF THE REGULAR NAVY, AND SECTION 404 (J) OF THE SAID ACT, 61 STAT. 872, PROVIDES AS FOLLOWS:

NO OFFICER APPOINTED FOR LIMITED DUTY ONLY SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT BY VIRTUE OF HIS PERMANENT STATUS.

DID THE CONGRESS INTEND BY THE ENACTMENT OF THE SAID PROVISION IN SECTION 404 (J) TO PERMIT MEMBERS WHO WERE RECEIVING THE PAY AND ALLOWANCES OF THEIR TEMPORARY RANKS AT THE TIME OF THEIR PERMANENT APPOINTMENTS AS LIMITED DUTY OFFICERS THEREAFTER TO RECEIVE SAVED PAY AND ALLOWANCES OF THEIR PERMANENT STATUS, NOTWITHSTANDING THE FACT THAT AT THE TIME OF SUCH PERMANENT APPOINTMENT AS LIMITED DUTY OFFICERS THEY WERE RECEIVING THE PAY AND ALLOWANCES OF THEIR TEMPORARY RANK? THE SAID PROVISION IN SECTION 404 (J) SAVES AN OFFICER APPOINTED FOR LIMITED DUTY ONLY FROM ANY REDUCTION IN THE PAY AND ALLOWANCE TO WHICH HE WAS "ENTITLED" AT THE TIME OF HIS APPOINTMENT AS SUCH OFFICER BY VIRTUE OF HIS PERMANENT STATUS. AT THE TIME THE OFFICER WAS APPOINTED A LIMITED DUTY OFFICER HE WAS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK OF LIEUTENANT, JUNIOR GRADE. HE WAS NOT "ENTITLED" TO ANY PAY AND ALLOWANCES AT THAT TIME BY VIRTUE OF HIS PERMANENT STATUS. HAD THE CONGRESS INTENDED THAT SUCH A MEMBER, UPON APPOINTMENT AS A LIMITED DUTY OFFICER, SHOULD RECEIVE THE PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SERVING IN A TEMPORARY RANK AND RECEIVING THE PAY AND ALLOWANCES OF SUCH TEMPORARY RANK, IT SEEMS REASONABLE TO ASSUME THAT LANGUAGE WOULD HAVE BEEN EMPLOYED IN SECTION 404 (J) SUCH AS THAT USED IN THE ORIGINAL SECTION 7 (A) OF THE ACT OF JULY 24, 1941, WHICH SAVED A MEMBER ENTITLED TO ITS BENEFITS FROM ANY REDUCTION IN PAY AND ALLOWANCES "TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.'

INASMUCH AS SECTION 404 (J) EXPRESSLY SAVES A MEMBER APPOINTED FOR LIMITED DUTY FROM REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS "ENTITLED AT THE TIME OF SUCH APPOINTMENT BY VIRTUE OF HIS PERMANENT STATUS" AND SINCE THE REFERRED-TO MEMBER WAS ENTITLED TO THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK AT THE TIME OF HIS PERMANENT APPOINTMENT AS A LIMITED DUTY OFFICER, IT MUST BE CONCLUDED THAT UPON ACCEPTANCE OF THE PERMANENT APPOINTMENT AS A LIMITED DUTY OFFICER HE WILL BE ENTITLED TO THE PAY AND ALLOWANCES OF HIS PERMANENT RANK OF LIEUTENANT, JUNIOR GRADE, IT BEING UNDERSTOOD THAT THE PERMANENT AND TEMPORARY APPOINTMENTS ARE SIMULTANEOUSLY TERMINATED ON THE DATE PRECEDING THE DATE OF ACCEPTANCE OF PERMANENT APPOINTMENT AS LIMITED DUTY OFFICER.