B-169262, APRIL 22, 1970, 49 COMP. GEN. 722

B-169262, APRIL 22, 1970, 49 COMP. GEN. 722

PUBLIC HEALTH SERVICE -- COMMISSIONED PERSONNEL -- PAY, ETC. -- ASSIMILATION TO ARMED SERVICES THE PROVISION IN SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT (1944) THAT THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (PHS) "DURING THE PERIOD OF HIS APPOINTMENT AS SUCH, SHALL BE OF THE SAME GRADE, WITH THE SAME PAY AND ALLOWANCES, AS THE SURGEON GENERAL OF THE ARMY" DOES NOT REQUIRE THE PROMOTION OF THE PHS SURGEON GENERAL TO PAY GRADE 0-9 (LIEUTENANT GENERAL) ON THE BASIS THE ARMY SURGEON GENERAL WAS ADVANCED BY PUBLIC LAW 89-288 (1965) TO THE GRADE OF LIEUTENANT GENERAL AND ASSIGNED TO PAY GRADE 0-9, AS THE ASSIMILATION REQUIREMENT OF THE 1944 ACT WAS IMPLIEDLY REPEALED BY THE ASSIGNMENT OF THE PHS OFFICER TO PAY 0-8 BY SECTION 201(B) OF THE CAREER COMPENSATION ACT OF 1949. THE CODIFICATION OF THE 1949 ACT THEN ELIMINATED THE PHRASE "WITH THE SAME PAY AND ALLOWANCES" FROM SECTION 206(A) OF THE 1944 ACT AND THE TERM "GRADE" NO LONGER RELATING TO "PAY GRADE," THERE IS NO BASIS FOR PROMOTING THE PHS OFFICER TO PAY GRADE 0-9.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, APRIL 22, 1970:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1970, REQUESTING A DECISION WHETHER SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT, CH. 373, 58 STAT. 684, APPROVED JULY 1, 1944, 42 U.S.C. 207(A), REQUIRES THE PROMOTION OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-9 (LIEUTENANT GENERAL).

SECTION 206(A) OF THE 1944 ACT PROVIDED THAT THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, "DURING THE PERIOD OF HIS APPOINTMENT AS SUCH, SHALL BE OF THE SAME GRADE, WITH THE SAME PAY AND ALLOWANCES, AS THE SURGEON GENERAL OF THE ARMY." PRIOR TO OCTOBER 22, 1965, SECTION 3036(B) OF TITLE 10, U.S. CODE, PROVIDED THAT THE SURGEON GENERAL OF THE ARMY, IF HE HOLDS A LOWER REGULAR GRADE, SHALL BE APPOINTED IN THE REGULAR GRADE OF MAJOR GENERAL. THE ACT OF OCTOBER 22, 1965, PUBLIC LAW 89-288, 79 STAT. 1050, AMENDED 10 U.S.C. 3036(B) TO PROVIDE THAT THE SURGEON GENERAL OF THE ARMY, "WHILE SO SERVING, HAS THE GRADE OF LIEUTENANT GENERAL," WHICH RANK IS ASSIGNED TO PAY GRADE 0-9 BY 37 U.S.C. 201(A).

YOU SAY THAT IT APPEARS THAT THE CLEAR INTENT OF SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT IN RELATION TO 10 U.S.C. 3036(B) REQUIRES THE PROMOTION OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-9, BUT THAT YOU HAVE SOME HESITANCY TO TAKE SUCH ACTION IN VIEW OF THE PROVISIONS OF SECTION 201(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 307, NOW CODIFIED IN 37 U.S.C. 201(A), WHICH PROVIDE THAT THE COMMISSIONED OFFICER SERVING IN THE GRADE OR RANK OF SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE IN PAY GRADE 0-8, TO WHICH GRADE MAJOR GENERALS AND REAR ADMIRALS (UPPER HALF) ARE THERE ASSIGNED.

YOU STATE THAT SECTION 201(B) OF THE CAREER COMPENSATION ACT OF 1949 ASSIGNED THE RANK OR GRADE OF GENERAL, LIEUTENANT GENERAL, AND MAJOR GENERAL IN THE ARMY, AS WELL AS THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, TO PAY GRADE 0-8, THE HIGHEST PAY GRADE THEN AUTHORIZED BY LAW, THEREBY MERELY MAINTAINING THE PREVIOUS EQUIVALENCY BETWEEN THE RANKS AND PAY GRADES OF THE SURGEON GENERAL OF THE ARMY AND THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE.

YOU SUGGEST THAT SECTION 201(B) OF THE CAREER COMPENSATION ACT WAS NOT INTENDED TO RESTRICT THE OPERATION OF SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT, BUT RATHER TO EFFECTUATE SUCH PROVISION BY PLACING THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE IN THE SAME PAY GRADE AS THE SURGEON GENERAL OF THE ARMY, WHO BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 81 (1946 ED.) HELD THE RANK OF MAJOR GENERAL.

THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 124, AMENDING SECTION 201(B) OF THE CAREER COMPENSATION ACT, CREATED TWO ADDITIONAL PAY GRADES FOR COMMISSIONED OFFICERS, 0-9 FOR LIEUTENANT GENERALS AND VICE ADMIRALS, AND 0-10 FOR GENERALS AND ADMIRALS. NO CHANGE WAS THERE MADE IN THE PAY GRADE STRUCTURE RELATING TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, THE PAY GRADE OF THE SURGEON GENERAL BEING LISTED AS 0-8 AS IT IS IN THE CURRENT PROVISIONS OF 37 U.S.C. 201(A). YOU SAY THAT AT THAT TIME THE STATUTORY RANK OF THE SURGEON GENERAL OF THE ARMY CONTINUED TO BE MAJOR GENERAL AND HENCE THERE WAS NO OCCASION FOR CHANGING THE PAY GRADE FOR THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, INASMUCH AS UNDER SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT THE STATUTORY GRADE OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE WAS THE SAME RANK (MAJOR GENERAL) AS THAT PROVIDED IN SECTION 201(B) OF THE 1949 ACT, AS AMENDED BY THE 1958 ACT.

YOU STATE THAT UNDER THE PROVISIONS OF 10 U.S.C. 3066 THE PRESIDENT PROMOTED MAJOR GENERAL HEATON, SURGEON GENERAL OF THE ARMY, TO THE GRADE OF LIEUTENANT GENERAL (0-9) IN 1959, AND THAT IN THE BELIEF THAT SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT RELATED TO THE STATUTORY GRADE OF THE SURGEON GENERAL OF THE ARMY, NO ACTION WAS TAKEN TO PROMOTE THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-9. YOU SAY, HOWEVER, THAT SINCE THE STATUTORY GRADE OF THE SURGEON GENERAL OF THE ARMY WAS CHANGED TO LIEUTENANT GENERAL, PAY GRADE 0-9, BY PUBLIC LAW 89-288 IN 1965, IT IS YOUR OPINION THAT THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHOULD LIKEWISE HAVE BEEN PROMOTED TO PAY GRADE 0-9 AS REQUIRED BY SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT.

SECTION 10 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 171, 10 U.S.C. 81 (1940 ED.), PROVIDED THAT THE SURGEON GENERAL OF THE ARMY SHALL HAVE THE RANK OF MAJOR GENERAL. SECTION 8 OF THE UNIFORMED SERVICES PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 12 (1940 ED.), PROVIDED THAT THE ANNUAL BASE PAY OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE $6,000 AND THAT OF A MAJOR GENERAL OF THE ARMY $8,000.

SECTION 10(B) OF THE ACT OF APRIL 9, 1930, CH. 125, 46 STAT. 152, 42 U.S.C. 11A (1940 ED.), AN ACT TO PROVIDE FOR THE COORDINATION OF THE PUBLIC-HEALTH ACTIVITIES OF THE GOVERNMENT, PROVIDED THAT "HEREAFTER THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE ENTITLED TO THE SAME PAY AND ALLOWANCES AS THE SURGEON GENERAL OF THE ARMY."

SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 37 U.S.C. 107 (1940 ED., SUPP. II), PROVIDED THAT THE ANNUAL BASE PAY OF A MAJOR GENERAL OF THE ARMY AND OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE $8,000. AS STATED ABOVE, SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944 (AN ACT TO CONSOLIDATE AND REVISE THE LAWS RELATING TO THE PUBLIC HEALTH SERVICE) PROVIDED THAT THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE "SHALL BE OF THE SAME GRADE, WITH THE SAME PAY AND ALLOWANCES, AS THE SURGEON GENERAL OF THE ARMY" (WHO UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 81 (1940 ED.), WAS A MAJOR GENERAL).

THE BILL WHICH BECAME THE PUBLIC HEALTH SERVICE ACT OF 1944 WAS CONSIDERED IN PART A "CODIFICATION OF THE PUBLIC HEALTH LAWS." HOUSE HEARINGS ON H.R. 3379, WHICH BECAME THE 1944 ACT, AT PAGE 29. THE COMMITTEE REPORTS OF BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE STATE THAT "THE BILL FOR THE MOST PART IS MERELY A RESTATEMENT OF THE LAWS RELATING TO THE PUBLIC HEALTH SERVICE." H. REPT. NO. 1364, 78TH CONG., 2D SESS. 1 AND S. REPT. NO. 1027, 78TH CONG., 2D SESS. 1. ITS PURPOSES WERE THERE STATED TO BE "TO BRING TOGETHER, IN A COMPACT AND ORDERLY ARRANGEMENT, SUBSTANTIALLY ALL THE EXISTING LAW ON THE SUBJECT EXCEPT OBSOLETE PROVISIONS."

INASMUCH AS BOTH THE 1930 PUBLIC HEALTH LAW AND THE PAY READJUSTMENT ACT OF 1942 WERE IN AGREEMENT WITH RESPECT TO THE PAY AND ALLOWANCES OF THE SURGEON GENERAL, THERE WAS NO OCCASION TO THEN CHANGE THE PROVISIONS OF THE PUBLIC HEALTH SERVICE LAWS. THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE 1944 LAW THAT THE PROVISIONS OF SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944 WERE TO SUPERSEDE THE PROVISIONS OF SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, WHICH WAS AMENDED BY SECTION 3 OF THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 344, TO PROVIDE THAT THE ANNUAL BASE PAY OF A MAJOR GENERAL OF THE ARMY AND OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE $8,800.

THE PAY SYSTEM THEN IN EFFECT WAS MATERIALLY CHANGED BY THE CAREER COMPENSATION ACT OF 1949 WHICH ELIMINATED THE BASE AND LONGEVITY PAY AND PAY PERIOD SYSTEMS IN EFFECT FOR A NUMBER OF YEARS AND SUBSTITUTED THEREFOR A PAY GRADE SYSTEM TOGETHER WITH BASIC PAY WHICH INCLUDES, IN A SINGLE SUM, THE AMOUNT TO WHICH EACH MEMBER OF A UNIFORMED SERVICE IS ENTITLED IN ACCORDANCE WITH HIS PAY GRADE AND CUMULATIVE YEARS OF SERVICE.

SECTION 201(B) OF THE CAREER COMPENSATION ACT OF 1949 ASSIGNED, FOR BASIC PAY PURPOSES, THE RANK OR GRADE OF GENERAL, LIEUTENANT GENERAL, AND MAJOR GENERAL OF THE ARMY AS WELL AS THE GRADE OF SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-8, THEN THE HIGHEST PAY GRADE PROVIDED FOR COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES. THAT SECTION, THEREFORE, EFFECTIVELY ESTABLISHED THE BASIC PAY GRADE OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE AS PAY GRADE 0-8.

IT WOULD THUS SEEM THAT SECTION 201(B), BEING THE LATER AND THE SPECIFIC PAY STATUTE DIRECTLY PRESCRIBING THE PAY GRADE AND BASIC PAY OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SUPERSEDED THAT PART OF SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944 RELATING TO PAY AND ALLOWANCES. SEE DECISION OF APRIL 15, 1941, 20 COMP. GEN. 645, HOLDING THAT A STATUTE ASSIMILATING THE PAY AND ALLOWANCES OF MARINE CORPS PERSONNEL TO THOSE OF THE ARMY IS INAPPLICABLE TO CASES WHERE THE MARINE CORPS PERSONNEL ARE OTHERWISE SPECIFICALLY PROVIDED FOR. SEE, ALSO, DECISIONS OF SEPTEMBER 2, 1942, 22 COMP. GEN. 171, AND JULY 4, 1944, 24 COMP. GEN. 4, HOLDING THAT SUBSEQUENT STATUTES SPECIFICALLY SETTING FORTH THE PAY AND ALLOWANCES OF MARINE CORPS PERSONNEL MAKE PRIOR STATUTORY ASSIMILATION PROVISIONS INOPERATIVE WITH RESPECT TO SUCH PAY AND ALLOWANCES. COMPARE 32 COMP. GEN. 35 (1952) AND 44 COMP. GEN. 708 (1965).

IN THE CASE OF BEASLEY V UNITED STATES, 176 CT. CL. 491 (1966), INVOLVING THE PAY RIGHTS OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, THE COURT CONSIDERED THE EFFECT OF SEVERAL STATUTORY PROVISIONS SIMILAR TO THOSE APPLICABLE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE.

SECTION 205 OF THE PUBLIC WORKS APPROPRIATION ACT, 1958, 71 STAT. 423, PROVIDED THAT AFTER AUGUST 1957 THE SALARY OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR SHALL BE THE SAME AS THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR. SECTION 3(B) OF THE ACT OF SEPTEMBER 23, 1959, 73 STAT. 651, AMENDED SECTION 106(B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956 TO PROVIDE THAT THE ANNUAL RATE OF BASIC COMPENSATION OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR SHALL BE $19,000. SECTION 106(A) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956 WAS AMENDED EFFECTIVE JULY 10, 1960, TO INCREASE THE SALARY OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR FROM $19,000 TO $20,000. EFFECTIVE JULY 4, 1964, NEW SALARY RATES WERE ESTABLISHED FOR BOTH POSITIONS.

BASED ON THE 1958 ASSIMILATION LAW THE ADMINISTRATIVE ASSISTANT SECRETARY SUED FOR THE DIFFERENCE IN SALARY BETWEEN $19,000 AND $20,000 FOR THE PERIOD FROM JULY 10, 1960, TO JULY 4, 1964. THE COMMISSIONER'S OPINION, AS MODIFIED AND ADOPTED BY THE COURT OF CLAIMS (WITH RESPECT TO THE 1958 AND 1959 LAWS RELATING TO THE SALARY OF THE ADMINISTRATIVE ASSISTANT SECRETARY) SAID:

THE TWO STATUTORY PROVISIONS REFERRED TO IN THE PRECEDING PARAGRAPH- THE EARLIER OF WHICH WOULD ENTITLE THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR TO A SALARY OF $20,000 PER ANNUM FOR THE PERIOD IN QUESTION AND THE LATER OF WHICH EXPRESSLY FIXED THE SALARY OF THE POSITION AT $19,000 PER ANNUM FOR THE SAME PERIOD--ARE CLEARLY INCONSISTENT WITH EACH OTHER. BOTH OF THEM CANNOT POSSIBLY BE GIVEN EFFECT WITH RESPECT TO THE PERIOD OF TIME THAT IS INVOLVED IN THE PRESENT CASE. IN SUCH A SITUATION, THE RULE IS THAT THE LATER OF THE TWO IRRECONCILABLE DECLARATIONS OF THE LEGISLATURE MUST PREVAIL, AS IT IS REGARDED AS AN IMPLIED REPEAL OF THE EARLIER PROVISION. UNITED STATES V YUGINOVICH, 256 U. S. 450, 463 (1921); 1 SUTHERLAND, STATUTORY CONSTRUCTION SECS. 1922, 2012 (3RD ED. 1943).

IN THE PRESENT CASE, SECTION 106(B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED BY SECTION 3(B) OF THE ACT OF SEPTEMBER 23, 1959, WAS THE LATER OF THE TWO CLEARLY INCONSISTENT STATUTORY PROVISIONS THAT RELATED TO THE COMPENSATION OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR; AND IT MUST BE REGARDED AS HAVING IMPLIEDLY REPEALED THE REPUGNANT PORTION OF SECTION 205 OF THE PUBLIC WORKS APPROPRIATION ACT OF 1958. THEREFORE, THE PLAINTIFF, AS THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, WAS PROPERLY PAID A SALARY OF $19,000 PER ANNUM DURING THE PERIOD JULY 10, 1960-JULY 4, 1964 IN ACCORDANCE WITH SECTION 106(B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED BY SECTION 3(B) OF THE ACT OF SEPTEMBER 23, 1959.

WHILE THE INTENT OF THE CONGRESS BECAME LESS CLEAR WHEN THE ASSIMILATING LANGUAGE "WITH THE SAME PAY AND ALLOWANCES," WAS INCLUDED IN SECTION 206(A) OF THE 1944 ACT WHEN THAT SECTION WAS AMENDED BY THE ACT OF OCTOBER 31, 1951, CH. 653, 65 STAT. 700, IT SHOULD BE NOTED THAT WHEN SECTION 1(2) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 124, AMENDED SECTION 201(B) OF THE CAREER COMPENSATION ACT OF 1949 TO CREATE TWO NEW PAY GRADES, 0-10 AND 0-9, MAJOR GENERALS OF THE ARMY AND THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE WERE AGAIN ASSIGNED TO PAY GRADE 0- 8.

WHATEVER DOUBT AS TO THE INTENT OF THE CONGRESS WHICH MAY HAVE RESULTED FROM THE 1951 AMENDMENT TO SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT OF 1944, THAT DOUBT WAS REMOVED BY THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 451, WHICH CODIFIED THE CAREER COMPENSATION ACT OF 1949 IN TITLE 37, U.S.C. SECTION 201(A) OF TITLE 37, AS THERE CODIFIED, ASSIGNS MAJOR GENERALS OF THE ARMY AND THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-8. SECTION 11 OF THAT ACT AMENDED SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT "BY STRIKING OUT THE WORDS, 'WITH THE SAME PAY AND ALLOWANCES,'" WITH RESPECT TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, SO THAT THE SAID SECTION NOW READS THAT "THE SURGEON GENERAL, DURING THE PERIOD OF HIS APPOINTMENT AS SUCH, SHALL BE OF THE SAME GRADE AS THE SURGEON GENERAL OF THE ARMY." INASMUCH AS THE TERM "GRADE" IS NOT LIMITED TO PAY GRADE, BUT IS DEFINED IN BOTH TITLE 10 AND TITLE 37, U.S. CODE, TO MEAN A STEP OR DEGREE, IN A GRADUATED SCALE OF OFFICE OR RANK, THAT IS ESTABLISHED AND DESIGNATED AS A GRADE BY LAW OR REGULATION, AND INASMUCH AS THE SAME LAW THAT CODIFIED TITLE 37, U.S. CODE, AND RETAINED THE TERM "GRADE" IN SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT ALSO ASSIGNED THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO PAY GRADE 0-8, IT IS OUR OPINION THAT THE TERM "GRADE" IN THE SAID SECTION 206(A) DOES NOT RELATE TO "PAY GRADE."

THE OBVIOUS EFFECT OF THE 1962 AMENDMENT WAS TO COMPLETELY ELIMINATE FROM SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT THE PROVISION OF LAW ASSIMILATING THE PAY AND ALLOWANCES OF THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE TO THE PAY AND ALLOWANCES OF THE SURGEON GENERAL OF THE ARMY. WE MUST CONCLUDE THEREFORE, THAT SECTION 1 OF THE ACT OF OCTOBER 22, 1965, PUBLIC LAW 89-288, AMENDING 10 U.S.C. 3036(B) TO PROVIDE THAT THE SURGEON GENERAL OF THE ARMY "HAS THE GRADE OF LIEUTENANT GENERAL" DID NOT HAVE THE EFFECT OF AUTHORIZING THE PAYMENT TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE OF THE SAME PAY AND ALLOWANCES TO WHICH THE SURGEON GENERAL OF THE ARMY, A LIEUTENANT GENERAL IN PAY GRADE 0-9, IS ENTITLED.

ON THE CONTRARY, THE CAREER COMPENSATION ACT OF 1949 HAVING IMPLIEDLY REPEALED THE ASSIMILATION PROVISION IN SECTION 206(A) OF THE PUBLIC HEALTH SERVICE ACT AND SECTION 11 OF THE ACT OF SEPTEMBER 2, 1962, PUBLIC LAW 87- 649, HAVING EXPRESSLY ELIMINATED THE PAY AND ALLOWANCE ASSIMILATION PROVISION THEREFROM, THERE IS NO BASIS, UNDER THE PRESENT LAW, FOR PAYING THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE THE BASIC PAY PRESCRIBED FOR PAY GRADE 0-9.