B-138132, JULY 16, 1968, 48 COMP. GEN. 12

B-138132: Jul 16, 1968

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WERE RECEIGING PROFICIENCY PAY MAY NOT HAVE THE PAY AND ALLOWANCES OF THEIR PERMANENT STATUS REDUCED BECAUSE OF THE TEMPORARY APPOINTMENT AND ENTITLEMENT UNDER 37 U.S.C. 204 TO THE PAY AND ALLOWANCES OF THE TEMPORARY GRADES. THEY ARE NOT ENTITLED TO SAVED PROFICIENCY PAY UNLESS THEY CONTINUE TO MEET THE ELIGIBILITY CONDITIONS PRESCRIBED BY NAVY REGULATIONS. A MEMBER DOES NOT MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY WHEN AS PART OF HIS DUTIES AS AN OFFICER HE UTILIZES THE SKILLS OF HIS MILITARY SPECIALITY FOR WHICH THE PAY WAS AUTHORIZED IN THE SUPERVISION OF OTHER PERSONNEL WITH SIMILAR SKILLS. 1968: FURTHER REFERENCE IS MADE TO LETTER DATED MAY 1. THE REQUEST WAS ASSIGNED CONTROL NO.

B-138132, JULY 16, 1968, 48 COMP. GEN. 12

PAY - PROMOTIONS - TEMPORARY - SAVED PAY - ITEMS FOR INCLUSION OR EXCLUSION ALTHOUGH ENLISTED MEMBERS OF THE NAVY OR MARINE CORPS WHO AT THE TIME OF APPOINTMENT OR PROMOTION TO COMMISSIONED OFFICER GRADES UNDER 10 U.S.C. 5586, 5589, 5596, 5597, 5784, OR 5787, WERE RECEIGING PROFICIENCY PAY MAY NOT HAVE THE PAY AND ALLOWANCES OF THEIR PERMANENT STATUS REDUCED BECAUSE OF THE TEMPORARY APPOINTMENT AND ENTITLEMENT UNDER 37 U.S.C. 204 TO THE PAY AND ALLOWANCES OF THE TEMPORARY GRADES, THEY ARE NOT ENTITLED TO SAVED PROFICIENCY PAY UNLESS THEY CONTINUE TO MEET THE ELIGIBILITY CONDITIONS PRESCRIBED BY NAVY REGULATIONS. A MEMBER DOES NOT MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY WHEN AS PART OF HIS DUTIES AS AN OFFICER HE UTILIZES THE SKILLS OF HIS MILITARY SPECIALITY FOR WHICH THE PAY WAS AUTHORIZED IN THE SUPERVISION OF OTHER PERSONNEL WITH SIMILAR SKILLS.

TO THE SECRETARY OF THE NAVY, JULY 16, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 1, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY REQUESTING DECISION ON TWO QUESTIONS CONCERNING ENTITLEMENT OF MEMBERS APPOINTED OR PROMOTED TO COMMISSIONED OFFICER GRADES UNDER THE PROVISIONS OF 10 U.S.C. 5586, 5589, 5596, 5597, 5784 OR 5787 TO PROFICIENCY PAY AS AN ITEM OF SAVED PAY. THE REQUEST WAS ASSIGNED CONTROL NO. SS-N-994 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN HIS LETTER THE ASSISTANT SECRETARY SAYS THAT IT IS PROVIDED IN 37 U.S.C. 905 (G) AND (H), AND 10 U.S.C. 5586 (F), 5589 (D), 5596 (F), AND 5784 (E), THAT SUCH PERSONS MAY NOT SUFFER A REDUCTION IN THE PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED BECAUSE OF THEIR PERMANENT STATUS AT THE TIME OF THEIR APPOINTMENT OR PROMOTION. ALSO, HE SAYS THAT PROFICIENCY PAY IS AUTHORIZED BY 37 U.S.C. 307 FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES AND IT ALSO PROVIDES THAT THE SECRETARY OF DEFENSE WILL PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE PROGRAM.

FURTHER, THE ASSISTANT SECRETARY STATES THAT THE SECRETARY OF DEFENSE IN DOD DIRECTIVE 1340.2 ISSUED GENERAL INSTRUCTIONS IMPLEMENTING THE PROGRAM AND DELEGATED THE RESPONSIBILITY OF ADMINISTERING IT TO THE SECRETARY OF EACH MILITARY DEPARTMENT. HE REFERS TO THE REGULATIONS PERTAINING TO THE NAVY WHICH ARE CURRENTLY SET FORTH IN PARAGRAPH 4, BUPERS INSTRUCTION 1430.12G DATED DECEMBER 20, 1967. UNDER SUBPARAGRAPH B IT STATES THE SECOND REQUIREMENT AS:

B. ARE CONSIDERED QUALIFIED IN AN AUTHORIZED MILITARY SPECIALTY AND ARE ASSIGNED TO AND SERVING IN AN AUTHORIZED MILITARY SPECIALTY BILLET REFLECTED ON THE COMMAND'S MANPOWER AUTHORIZATION (OPNAV 1000/2) AND UTILIZING THE SKILLS OF THE MILITARY SPECIALTY. * * *

THE ASSISTANT SECRETARY QUOTES FROM PAGE 23 OF OUR DECISION IN 23 COMP. GEN. 21, AS FOLLOWS:

MOREOVER, WHILE THE PREVIOUS PAY AND ALLOWANCES OF A PERSON TEMPORARILY APPOINTED TO A HIGHER GRADE ARE SAVED FROM REDUCTION DUE TO THE TEMPORARY APPOINTMENT, THEY ARE NOT SAVED FROM REDUCTION DUE TO OTHER CHANGES IN THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. ALSO, HE QUOTES FROM PAGE 489 OF OUR DECISION IN 38 COMP. GEN. 487 AS FOLLOWS:

IT FOLLOWS THAT UNDER THE TERMS OF THE SAVING PROVISIONS, PROFICIENCY PAY IS SAVED TO THE MEMBERS CONCERNED, IN CONJUNCTION WITH THE OTHER PAY AND ALLOWANCES OF THEIR ENLISTED GRADES, WHILE THEY CONTINUE TO MEET ALL THE CONDITIONS OF ELIGIBILITY FOR SUCH PAY AFTER THEIR APPOINTMENTS, AND WHILE THE TOTAL PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED IN THEIR FORMER ENLISTED STATUS, INCLUDING PROFICIENCY PAY, IS IN EXCESS OF THE PAY AND ALLOWANCES OF THEIR OFFICER GRADES, EXCLUDING PROFICIENCY PAY. THAT IS, THE MEMBERS CONCERNED ARE ENTITLED TO RECEIVE AT LEAST THE PAY AND ALLOWANCES THEY WERE ENTITLED TO RECEIVE BEFORE THEIR APPOINTMENTS AS OFFICERS, TO THE EXTENT THEY WOULD HAVE CONTINUED TO RECEIVE SUCH PAY AND ALLOWANCES IF THEY HAD NOT BEEN APPOINTED TO OFFICER STATUS. IF THE MEMBERS CONCERNED DO NOT CONTINUE TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY AFTER THEIR APPOINTMENTS, THEIR PROFICIENCY PAY IS NOT SAVED TO THEM AS THE REDUCTION IN THAT CASE IS NOT DUE TO THE APPOINTMENT BUT TO THE FAILURE TO OTHERWISE QUALIFY FOR PROFICIENCY PAY.

THE ASSISTANT SECRETARY ASKS THE FOLLOWING QUESTIONS:

1. SOME DOUBT ARISES AS TO WHETHER PROFICIENCY PAY MAY PROPERLY CONTINUE AS AN ITEM OF "SAVED PAY" IN THE SITUATION WHERE THE MEMBER (NOW AN OFFICER) IS NO LONGER ACTUALLY ASSIGNED TO AND SERVING IN A BILLET LISTED ON THE MANPOWER AUTHORIZATION (NAVPERS 576), SUCH BILLET HAVING BEEN FILLED BY AN ENLISTED MEMBER WHO IS NOW ASSIGNED THERETO AND SERVING THEREIN. HOWEVER, THE DUTIES OF THE MEMBER (NOW AN OFFICER) CONTINUE TO INCLUDE THE UTILIZATION OF THE SKILL OF THE SPECIALTY.

2. YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER A MEMBER WHO WAS RECEIVING PROFICIENCY PAY (P-3) AT $100.00 PER MONTH AS AN ELECTRONICS TECHNICIAN WITH AN ASSIGNED NEC OF 3332 AT THE TIME OF HIS APPOINTMENT OR PROMOTION WOULD BE ENTITLED TO INCLUDE PROFICIENCY PAY (P-2) AT $75.00 PER MONTH AS AN ITEM OF SAVED PAY, IF HE WERE ON DUTY AT A STATION WHERE THERE WAS NO REQUIREMENT FOR A MEMBER WITH AN ASSIGNED NEC OF 3332 BUT THERE WAS A REQUIREMENT FOR ELECTRONICS TECHNICIANS AND HIS DUTIES INCLUDE THE UTILIZATION OF THE SKILLS OF AN ELECTRONICS TECHNICIAN WHILE SUPERVISING OTHERS WHO MAINTAIN THE ELECTRONIC EQUIPMENT, EVEN THOUGH HE IS NOT SERVING IN A BILLET LISTED ON THE MANPOWER AUTHORIZATION (NAVPERS 576).

SECTION 204 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER IS ENTITLED TO THE PAY OF THE GRADE IN WHICH ASSIGNED OR DISTRIBUTED IN ACCORDANCE WTH HIS YEARS OF SERVICE. THEREFORE, A MEMBER RECEIVING A TEMPORARY APPOINTMENT IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE.

HOWEVER, AS THE ASSISTANT SECRETARY POINTS OUT IN HIS LETTER, SECTIONS 905 (G) AND (H) OF TITLE 37, U.S. CODE, AND SECTIONS 5586 (F), 5589 (D), 5596 (F) AND 5784 (E) OF TITLE 10, U.S. CODE, PROVIDE IN EFFECT THAT A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER ANY ONE OF THOSE SECTIONS MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT. ALSO, AS THE ASSISTANT SECRETARY SAYS, WE HAVE HELD THAT A MEMBER'S PAY AND ALLOWANCES OF HIS PERMANENT GRADE ARE SAVED FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT, BUT ARE NOT SAVED FROM REDUCTION BY REASON OF SUBSEQUENT CHANGES IN CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES.

WITH RESPECT TO THIS, IN OUR DECISION OF SEPTEMBER 2, 1964, 44 COMP. GEN. 121, WE EXPLAINED THAT THE SAVED PAY PROVISIONS DO NOT OPERATE TO SAVE OR CONTINUE ITEMS OF PAY AND ALLOWANCES SUCH AS INCREASED PAY FOR FLYING DUTY, PROFICIENCY PAY AND RENTAL AND SUBSISTENCE ALLOWANCES TO WHICH THE MEMBER WOULD NOT BE ENTITLED, EITHER IN HIS PERMANENT STATUS OR IN HIS TEMPORARY STATUS, UNDER THE CONDITIONS OF HIS ACTUAL SUBSEQUENT SERVICE. SEE, ALSO, 47 COMP. GEN. 491.

THEREFORE, ENLISTED MEMBERS OF THE NAVY OR MARINE CORPS WHO ARE RECEIVING PROFICIENCY PAY AT THE TIME OF TEMPORARY APPOINTMENT TO OFFICER STATUS UNDER THE SECTIONS CITED ARE ENTITLED TO INCLUDE PROFICIENCY PAY AS AN ITEM OF SAVED PAY ONLY IF THEY CONTINUE TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY AFTER THEIR APPOINTMENTS.

THE PROFICIENCY PAY REGULATIONS QUOTED ABOVE, RELATING TO ELIGIBILITY FOR PROFICIENCY PAY, MAKE IT PLAIN THAT GENERALLY THE NAVY MEMBER MUST BE ASSIGNED TO AND SERVING IN AN AUTHORIZED MILITARY BILLET REQUIRING THE SKILL ON WHICH THE PROFICIENCY PAY WAS BASED AND IF HE IS ASSIGNED TO ANY BILLET NOT REQUIRING THAT SPECIALTY THE PROFICIENCY PAY MUST BE TERMINATED, REGARDLESS OF THE DUTIES WHICH HE MAY BE PERFORMING.

WHILE PARAGRAPH 4B OF BUPERS INSTRUCTION 1430.12G PROVIDES THAT THE REQUIREMENT OF BEING ASSIGNED TO AND SERVING IN A BILLET REFLECTED ON THE COMMAND'S MANPOWER AUTHORIZATION (OPNAV 1000/2) MAY BE WAIVED IN CASES OF CERTAIN SPECIFIED ASSIGNMENTS OF LIMITED DURATION, SUCH PROVISION HAS NO APPLICATION TO THE TEMPORARY APPOINTMENTS INVOLVED.

THEREFORE, IF IMMEDIATELY PRIOR TO HIS TEMPORARY APPOINTMENT AS AN OFFICER, A MEMBER WAS SERVING IN A BILLET AND UTILIZING THE SKILLS OF A MILITARY SPECIALTY FOR WHICH HE WAS RECEIVING PROFICIENCY PAY, AND UPON HIS APPOINTMENT HE WAS ASSIGNED TO A BILLET WHICH DID NOT REQUIRE THE MILITARY SPECIALTY HE WOULD NO LONGER BE FILLING A BILLET WHICH REQUIRED THE SKILL ON WHICH THE PROFICIENCY PAY WAS BASED. CONSEQUENTLY, HE WOULD NO LONGER CONTINUE TO QUALIFY FOR PROFICIENCY PAY AND HENCE IT COULD NOT BE CONTINUED ON A SAVED PAY BASIS.

IN ANSWER TO QUESTION 1, SINCE THE MEMBER IS NO LONGER ASSIGNED TO AND SERVING IN A BILLET LISTED ON THE MANPOWER AUTHORIZATION NAVPERS 576 (CURRENTLY OPNAV 1000/2), HE MAY NOT, UNDER THE NAVY REGULATIONS AS PRESENTLY CONSTITUTED PROPERLY CONTINUE TO RECEIVE PROFICIENCY PAY AS AN ITEM OF SAVED PAY.

THE SECOND QUESTION APPEARS TO BE PREDICATED ON AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION. HOWEVER, SINCE IT IS STATED IN THE QUESTION THAT THE MEMBER IS NOT ASSIGNED TO AND SERVING IN AN AUTHORIZED MILITARY SPECIALTY BILLET REFLECTED ON THE COMMAND'S MANPOWER AUTHORIZATION NAVPERS 576 (CURRENTLY OPNAV 1000/2) IT APPEARS SUCH INDIVIDUAL DOES NOT MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY EVEN THOUGH AS A PART OF HIS DUTIES AS AN OFFICER HE MAY UTILIZE THE SKILLS OF THE MILITARY SPECIALTY FOR WHICH SUCH PAY WAS AUTHORIZED WHILE SUPERVISING OTHER PERSONNEL WITH SIMILAR SKILLS. SEE OUR DECISION OF THIS DATE, B-163657.

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