A-43444, JULY 25, 1932, 12 COMP. GEN. 108

A-43444, JULY 25, 1932, 12 COMP. GEN. 108

ECONOMY ACT - PROMOTIONS - ALLOWANCES - DEDUCTIONS - NAVY ADVANCEMENT OF A REAR ADMIRAL FROM THE LOWER HALF TO THE UPPER HALF, WHICH BECOMES EFFECTIVE UPON A VACANCY IN THE UPPER HALF, CONSTITUTES AN AUTOMATIC PROMOTION FOR THE PURPOSES OF PAY WITHIN THE PURVIEW OF SECTION 201 OF THE ACT OF JUNE 30, 1932, 47 STAT. 403, AND PAYMENT OF THE INCREASED COMPENSATION, WHEN SUCH ADVANCEMENT OCCURS AFTER JUNE 30, 1932, IS PROHIBITED DURING THE FISCAL YEAR 1933. AS THE AMOUNT OF ALLOWANCES FOR QUARTERS, HEAT AND LIGHT, AND SUBSISTENCE TO MILITARY AND NAVAL OFFICERS IS DEPENDENT UPON THE RECEIPT OF THE BASE PAY OF A CERTAIN PERIOD, NO OFFICER MAY RECEIVE EITHER INCREASED PAY OR INCREASED ALLOWANCES BY REASON OF HIS PASSING INTO A HIGHER PAY PERIOD DURING THE FISCAL YEAR 1933. NO RENTAL OR SUBSISTENCE ALLOWANCES ACCRUE TO A NAVAL OFFICER OR NURSE DURING A PERIOD OF ABSENCE ON LEAVE WITHOUT PAY IN EXCESS OF THE 24 DAYS' LEGISLATIVE FURLOUGH REQUIRED BY SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399. THE THREE MONTHS' PAY AUTHORIZED BY THE ACT OF MARCH 4, 1917, 39 STAT. 1181, TO BE ADVANCED TO NAVAL OFFICERS UNDER CERTAIN CONDITIONS, MUST HAVE DEDUCTED THEREFROM TWO AND ONE-HALF DAYS' PAY FOR EACH MONTH'S SALARY SO ADVANCED. THE 20 CENTS HOSPITAL CHECK AGE REQUIRED BY SECTION 4818, REVISED STATUTES, IS FROM PAY DUE EACH OFFICER AND, ACCORDINGLY, NO DEDUCTION IS REQUIRED WHEN NO PAY IS DUE BY REASON OF THE OFFICER BEING ON LEAVE WITHOUT PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 25, 1932:

THERE HAS BEEN RECEIVED, BY YOUR INDORSEMENT OF JULY 16, 1932, REQUEST FOR DECISION UPON POINTS AS FOLLOWS:

(1) IN LETTER OF JULY 5, 1932, THE SECRETARY OF THE NAVY ADVISED REAR ADMIRAL RIDLEY MCLEAN, U.S. NAVY, AS FOLLOWS:

"ON JULY 1, 1932, YOU ENTERED THE UPPER HALF OF THE LIST OF REAR ADMIRALS IN THE NAVY UPON THE RETIREMENT OF REAR ADMIRAL WILLIAM D. MACDOUGALL, U.S. NAVY.'

SECTION 201 OF REFERENCE (A) PROVIDES:

"ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.'

INASMUCH AS THE ENTRY OF ADMIRAL MCLEAN INTO THE UPPER HALF OF THE LIST INVOLVES INCREASED COMPENSATION, BUT IS NOT DUE TO "LENGTH OF SERVICE" NOR IS IT A "PROMOTION," IT DOES NOT APPEAR THAT IT FALLS UNDER THE SUSPENSION CONTAINED IN SECTION 201. IT IS THEREFORE RECOMMENDED THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE REQUESTED TO DECIDE WHETHER REAR ADMIRAL RIDLEY MCLEAN, U.S. NAVY, IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR AN ADMIRAL OF THE UPPER HALF ON AND AFTER 1 JULY, 1932.

(2) IN THE CASE OF OFFICERS WHO ARE PROMOTED TO HIGHER RANK AND/OR ENTER ANOTHER PAY PERIOD BY REASON OF LENGTH OF SERVICE DURING THE FISCAL YEAR ENDING JUNE 30, 1933, DOES SECTION 201 PROHIBIT THE PAYMENT OF INCREASED RENTAL AND/OR SUBSISTENCE ALLOWANCES AS PROVIDED IN THE ACT OF JUNE 10, 1922?

(3) IN DECISION OF JULY 8, 1932, A-43276, THE COMPTROLLER GENERAL OF THE UNITED STATES STATED THAT---

"* * * WHEN PAY HAS BEEN DEDUCTED FOR 24 WORKING DAYS AT THE RATE OF 1 1/4 DAYS' PAY PER DAY (ONE MONTH'S PAY), NO FURTHER DEDUCTION WILL BE MADE ON ACCOUNT OF FURLOUGH UNDER SECTION 101 (B) AND ANY ADDITIONAL ABSENCES, EXCEPT ON SICK LEAVE OR MILITARY LEAVE WHEN AUTHORIZED BY LAW OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, WILL BE REGARDED AS ABSENCE WITHOUT PAY AND CHARGED FOR IN ACCORDANCE WITH RULES AND REGULATIONS HERETOFORE APPLICABLE TO SUCH ABSENCES.'

UNDER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT AS CONSTRUED IN THIS DECISION, OFFICERS AND NURSES WHILE ON AUTHORIZED LEAVE, OTHER THAN SICK LEAVE, IN EXCESS OF 24 WORKING DAYS DURING THE FISCAL YEAR 1933 WOULD BE ON LEAVE WITHOUT PAY DURING SUCH PERIOD. IN DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES DATED JULY 25, 1922 (2 COMP. GEN. 47) AND NOVEMBER 21, 1922 (2 COMP. GEN. 333), IT WAS DECIDED THAT AN OFFICER IS NOT ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES FOR PERIODS DURING WHICH HE IS NOT ENTITLED TO PAY. IT IS REQUESTED THEREFORE, THAT DECISION BE OBTAINED ON THE QUESTION WHETHER OFFICERS AND NURSES ON AUTHORIZED LEAVE IN EXCESS OF 24 DAYS DURING THE FISCAL YEAR 1933, ARE ENTITLED DURING SUCH PERIODS TO RENTAL AND SUBSISTENCE ALLOWANCE.

(4) ARTICLE 1802, NAVY REGULATIONS, BASED ON THE ACT OF MARCH 4, 1917 (39 STAT. 1181), AUTHORIZES ADVANCES OF PAY TO OFFICERS UNDER CERTAIN CONDITIONS. A DECISION IS REQUESTED WHETHER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT REQUIRE A REDUCTION OF 8 1/3 PERCENT OF THE AMOUNT ADVANCED TO OFFICERS UNDER THESE REGULATIONS OR WHETHER A TOTAL OF ONE, TWO, OR THREE MONTHS' ADVANCE MAY BE MADE WITHOUT ANY DEDUCTION THEREFROM.

(5) SECTION 1408 (4808) OF THE REVISED STATUES PROVIDES:

"THE SECRETARY OF THE NAVY SHALL DEDUCT FROM THE PAY DUE EACH OFFICER, SEAMAN, AND MARINE IN THE NAVY, AT THE RATE OF 20 CENTS PER MONTH FOR EACH PERSON, TO BE APPLIED TO THE FUND FOR NAVY HOSPITALS.'

IN THE CASE OF OFFICERS OR NURSES WHO MAY BE ON LEAVE WITHOUT PAY FOR AN ENTIRE CALENDAR MONTH OR FRACTIONAL PART THEREOF, SHOULD A DEDUCTION AT THE RATE OF 20 CENTS PER MONTH BE MADE FOR SUCH PERIOD?

THE GRADE OF REAR ADMIRAL FOR PURPOSES OF PAY IS DIVIDED INTO TWO CLASSES --- THE LOWER HALF CONSTITUTES ONE CLASS AND THE UPPER HALF ANOTHER CLASS. THE PAY OF REAR ADMIRALS OF THE LOWER HALF IS FIXED BY SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, AT $6,00 PER ANNUM, AND THE PAY OF REAR ADMIRALS OF THE UPPER HALF AT $8,000 PER ANNUM. THE ADVANCEMENT OF A REAR ADMIRAL FROM THE LOWER HALF TO THE UPPER HALF HAS BEEN HELD TO BE A PROMOTION. 8 COMP. DEC. 689; 22 ID. 110. SUCH BEING THE CASE, AND AS THE ADVANCEMENT FROM THE LOWER TO THE MUST BE CONSIDERED AN AUTOMATIC PROMOTION AT LEAST FOR THE PURPOSE OF PAY WITHIN THE PURVIEW OF SECTION 201 OF THE ACT OF JUNE 30, 1932, QUOTED IN YOUR SUBMISSION. ACCORDINGLY, REAR ADMIRAL MCLEAN MAY NOT RECEIVE ANY INCREASED COMPENSATION BY REASON OF SUCH ADVANCEMENT DURING THE FISCAL YEAR 1933.

AS TO QUESTION 2, SECTION 5 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 628, PROVIDES:

* * * TO EACH OFFICER OF ANY OF SAID SERVICES RECEIVING THE BASE PAY OF THE FIRST PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO ONE SUBSISTENCE ALLOWANCE; TO EACH OFFICER RECEIVING THE BASE PAY OF THE SECOND, THIRD, OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO TWO SUBSISTENCE ALLOWANCES; AND TO EACH OFFICER RECEIVING THE BASE PAY OF THE FOURTH OR FIFTH PERIOD THE AMOUNT OF THE ALLOWANCE SHALL BE EQUAL TO THREE SUBSISTENCE ALLOWANCES: PROVIDED, THAT AN OFFICER WITH NO DEPENDENTS SHALL RECEIVE ONE SUBSISTENCE ALLOWANCE IN LIEU OF THE ABOVE ALLOWANCES.

SECTION 6 OF THE ACT, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES:

TO AN OFFICER HAVING A DEPENDENT, RECEIVING THE BASE PAY OF THE FIRST PERIOD, THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THAT FOR TWO ROOMS, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE SECOND PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THAT FOR THREE ROOMS, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE THIRD PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THAT FOR FOUR ROOMS, TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FOURTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THAT OF FIVE ROOMS, AND TO SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FIFTH OR SIXTH PERIOD THE AMOUNT OF THIS ALLOWANCE SHALL BE EQUAL TO THAT FOR SIX ROOMS.

AN OFFICER HAVING NO DEPENDENT, RECEIVING THE BASE PAY OF THE FIRST OR SECOND PERIOD SHALL RECEIVE THE ALLOWANCE FOR TWO ROOMS, SUCH AN OFFICER RECEIVING THE BASE PAY OF THE THIRD OR FOURTH PERIOD SHALL RECEIVE THE ALLOWANCE FOR THREE ROOMS, AND SUCH AN OFFICER RECEIVING THE BASE PAY OF THE FIFTH OR SIXTH PERIOD SHALL RECEIVE THE ALLOWANCE FOR FOUR ROOMS.

AS THE EFFECT OF SECTION 201 OF THE ECONOMY ACT IS TO PROHIBIT AN OFFICER FROM RECEIVING THE BASE PAY OF A HIGHER PAY PERIOD BY REASON OF ADDITIONAL LENGTH OF SERVICE OR PROMOTION, THE OFFICER IS NOT "RECEIVING" THE BASE PAY OF A HIGHER PAY PERIOD, BUT THE BASE PAY OF THE PAY PERIOD WHICH HE WAS RECEIVING JUNE 30, 1932, AND HE IS ENTITLED TO RECEIVE ONLY THE RENTAL AND SUBSISTENCE ALLOWANCES APPERTAINING TO THE PAY PERIOD HE IS ENTITLED TO RECEIVE. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 3, YOU ARE INFORMED THAT THERE IS NOTHING IN THE ECONOMY ACT WHICH CHANGES THE STATUS OF AN OFFICER OR A NURSE ON LEAVE OF ABSENCE WITHOUT PAY, IN EXCESS OF THE 24 WORKING DAYS' FURLOUGH REQUIRED BY SECTION 101 (B) OF THE ACT OF JUNE 30, 1932. ACCORDINGLY, DURING SUCH EXCESS LEAVE WITHOUT PAY NO RENTAL OR SUBSISTENCE ALLOWANCES WOULD BE PAYABLE. 2 COMP. GEN. 47; ID. 333.

THE ACT OF MARCH 4, 1917, 39 STAT. 1181, PROVIDES:

* * * HEREAFTER ADVANCES OF PAY NOT TO EXCEED THREE MONTHS' PAY IN ANY ONE CASE MAY BE MADE TO OFFICERS ORDERED TO AND FROM SEA DUTY AND TO AND FROM SHORE DUTY BEYOND THE SEAS UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE.

IN MAKING ADVANCES OF PAY UNDER THIS STATUTORY PROVISION, THERE SHOULD BE DEDUCTED FROM THE AMOUNT ADVANCED TWO AND ONE-HALF DAYS' PAY FOR EACH MONTH'S SALARY SO ADVANCED. SEE DECISION OF JULY 8, 1932, A 43276, 12 COMP. GEN. 16.

IN RESPONSE TO QUESTION 5, YOU ARE INFORMED THAT THE DIRECTION IN SECTION 4808, REVISED STATUTES, IS THAT THERE SHALL BE DEDUCTED FROM THE "PAY DUE EACH OFFICER" AT THE RATE OF 20 CENTS PER MONTH TO BE APPLIED TO THE FUND FOR THE NAVAL HOSPITALS. ACCORDINGLY, AS NO PAY IS DUE AN OFFICER FOR THE TIME ON LEAVE WITHOUT PAY, NO DEDUCTION IS REQUIRED. SEE 12 COMP. DEC. 549; 18 ID. 724.