B-42484, SEPTEMBER 7, 1944, 24 COMP. GEN. 192

B-42484, SEPTEMBER 7, 1944, 24 COMP. GEN. 192

SAVED PAY AND ALLOWANCES - MAINTENANCE ALLOWANCE; GOVERNMENT CONTRIBUTIONS TO FAMILY ALLOWANCE - FORMER LIGHTHOUSE SERVICE EMPLOYEES NOW IN COAST GUARD THE TOTAL ANNUAL COMPENSATION AND ALLOWANCES OF CIVILIAN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE WHICH IS SAVED TO THEM UNDER SECTION 7 OF THE ACT OF AUGUST 5, 1939, UPON THEIR ENLISTMENT IN THE COAST GUARD PURSUANT TO THE ACT, IF THE TOTAL PAY AND ALLOWANCES OF THEIR ENLISTED RATING IS LESS, MAY NOT BE INCREASED BY AN AMOUNT EQUAL TO THE QUARTERLY MAINTENANCE ALLOWANCE (CLOTHING) AUTHORIZED FOR COAST GUARD ENLISTED MEN BY EXECUTIVE ORDER NO. 9356. EVEN THOUGH THE FAMILY ALLOWANCE AUTHORIZED BY SECTION 100 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, FOR DEPENDENTS OF ENLISTED PERSONNEL IS PAID DIRECTLY TO THE DEPENDENT RATHER THAN TO THE ENLISTED MAN HIMSELF, THE GOVERNMENT'S CONTRIBUTION TO THE ALLOWANCE SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES OF FORMER LIGHTHOUSE SERVICE EMPLOYEES WHO WERE ENLISTED IN THE COAST GUARD PURSUANT TO THE ACT OF AUGUST 5, 1939, IN DETERMINING WHETHER SUCH PAY AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "ANNUAL COMPENSATION AND ALLOWANCES" SUCH MEN WERE RECEIVING ON THE DATE OF THEIR ENLISTMENT, WHICH IS SAVED TO THEM BY SECTION 7 OF THE LATTER ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 7, 1944:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1944 (FILE JAG:II:WJG:Z L16- 4/ET14), REQUESTING DECISION ON SEVERAL QUESTIONS PRESENTED IN A LETTER DATED MAY 18, 1944, FROM THE COMMANDANT, UNITED STATES COAST GUARD, AS FOLLOWS:

QUESTION (A) WHETHER THE SAVED PAY OF AN ENLISTED MAN UNDER SECTION 7, ACT OF AUGUST 5, 1939, MAY BE INCREASED TO INCLUDE THE QUARTERLY MAINTENANCE ALLOWANCE WITH THE TOTAL ANNUAL COMPENSATION AND ALLOWANCES HE WAS RECEIVING WHEN HE ENLISTED?

QUESTION (B) SINCE THE FAMILY ALLOWANCE BENEFITS ARE PAYABLE ONLY TO THE DEPENDENTS OF ENLISTED PERSONNEL WOULD IT BE PROPER TO INCLUDE THAT PORTION OF THE FAMILY ALLOWANCE CONTRIBUTED BY THE GOVERNMENT TO THE DEPENDENT OF AN ENLISTED MAN IN MAKING COMPARISON BETWEEN HIS MILITARY PAY AND ALLOWANCES AND THE TOTAL ANNUAL COMPENSATION AND ALLOWANCES HE WAS RECEIVING WHEN HE ENLISTED?

BY SECTION 2 (A) OF REORGANIZATION PLAN NO. II, 53 STAT. 1432, EFFECTIVE JULY 1, 1939, THE BUREAU OF LIGHTHOUSES IN THE DEPARTMENT OF COMMERCE WAS TRANSFERRED TO AND CONSOLIDATED WITH THE COAST GUARD IN THE TREASURY DEPARTMENT. THE ACT OF AUGUST 5, 1939, 53 STAT. 1216, WAS ENACTED FOR THE PURPOSE OF PERFECTING THE CONSOLIDATION OF THE LIGHTHOUSE SERVICE WITH THE COAST GUARD BY AUTHORIZING THE COMMISSIONING, APPOINTMENT, AND ENLISTMENT IN THE COAST GUARD OF CERTAIN OFFICERS AND EMPLOYEES OF THE LIGHTHOUSE SERVICE, AND SECTION 7, 53 STAT. 1217, THEREOF PROVIDED, IN PERTINENT PART, AS FOLLOWS:

NO PERSON COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THIS ACT SHALL SUFFER ANY REDUCTION IN THE TOTAL OF THE ANNUAL COMPENSATION AND ALLOWANCES WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT. * * *

THIS SECTION 7 SAVED TO A PERSON COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 5, 1939, THE TOTAL ANNUAL COMPENSATION AND ALLOWANCES HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT. HOWEVER, IT DOES NOT APPEAR THAT A MAINTENANCE ALLOWANCE--- SUCH AS THAT NOW AUTHORIZED UNDER EXECUTIVE ORDER NO. 9356, DATED JUNE 24, 1943, FOR ENLISTED MEN OF THE COAST GUARD--- WAS AUTHORIZED BY LAW OR REGULATIONS FOR CIVILIAN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE. HENCE, SINCE SUCH AN ALLOWANCE CONSTITUTED NO PART OF THE "ANNUAL COMPENSATION AND ALLOWANCES" OF CIVILIAN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR INCREASING THE TOTAL OF THE ANNUAL COMPENSATION AND ALLOWANCES, SAVED TO SUCH ENLISTED MEN UNDER THE 1939 ACT, BY AN AMOUNT EQUAL TO THE QUARTERLY MAINTENANCE ALLOWANCE (CLOTHING) AUTHORIZED FOR ENLISTED MEN OF THE COAST GUARD. SEE B-24751, JULY 1, 1942; CF. 19 COMP. GEN. 756. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE.

SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY SECTION 1 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, PROVIDES THAT THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN IS IN THE ACTIVE MILITARY OR NAVAL SERVICE, AND SECTION 102 THEREOF, AS AMENDED, PROVIDES THAT---

THE MONTHLY FAMILY ALLOWANCE PAYABLE UNDER THIS TITLE TO THE DEPENDENT OR DEPENDENTS OF ANY SUCH ENLISTED MAN SHALL CONSIST OF THE GOVERNMENT'S CONTRIBUTION TO SUCH ALLOWANCE AND THE REDUCTION IN OR CHARGE TO THE PAY OF SUCH ENLISTED MAN, EXCEPT AS TO THE INITIAL FAMILY ALLOWANCE PROVIDED BY SECTION 107 (A) HEREOF.

SECTION 108 (B) OF THE SAID ACT, AS ADDED THERETO BY SECTION 8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, PROVIDES:

(B) EXCEPT AS OTHERWISE HEREIN PROVIDED, MONETARY ALLOWANCES IN LIEU OF QUARTERS FOR DEPENDENTS AS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHALL NOT BE PAYABLE FOR THE PERIOD DURING WHICH FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. AN ENLISTED MAN WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS RECEIVING, OR, BEING ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, HAS APPLIED THEREFOR, MAY, AT HIS OPTION, RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCE: PROVIDED, THAT PAYMENT OF SUCH MONETARY ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIODS, FROM THE EFFECTIVE DATE OF THIS ACT, AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. NO DEPENDENT OF ANY ENLISTED MAN SHALL BE ENTITLED TO FAMILY ALLOWANCE FOR ANY PERIOD FOR WHICH SUCH MONETARY ALLOWANCE IS PAID TO THE ENLISTED MAN. AN ENLISTED MAN'S ELECTION TO HAVE HIS DEPENDENTS RECEIVE FAMILY ALLOWANCE MAY BE MADE AT ANY TIME AND WHEN MADE SHALL BE IRREVOCABLE DURING THE PERIOD OF ENTITLEMENT TO FAMILY ALLOWANCE AS SET OUT IN SECTION 101: PROVIDED, THAT THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO MAKE THE ELECTION ON BEHALF OF THE ENLISTED MAN IN ANY CASE IN WHICH HE DEEMS IT DESIRABLE AND FINDS IT IMPRACTICABLE FOR THE ENLISTED MAN TO SO ELECT, SUBJECT TO TERMINATION AT A LATER DATE UPON SPECIFIC REQUEST OF THE ENLISTED MAN. IF AN ELECTION IS MADE THE MONETARY ALLOWANCE SHALL BE DISCONTINUED AT A DATE TO BE PRESCRIBED BY THE SECRETARY OF THE DEPARTMENT CONCERNED. THE MONTHLY PAY OF ANY ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADES WHO IS PROVIDED WITH PUBLIC QUARTERS FOR HIS DEPENDENTS AND ANY OF WHOSE DEPENDENTS IS RECEIVING A FAMILY ALLOWANCE SHALL BE REDUCED BY, OR CHARGED WITH, 90 CENTS PER DAY.

IT WOULD APPEAR THAT THE PURPOSE AND INTENT OF THE SAVING CLAUSE IN SECTION 7 OF THE ACT OF AUGUST 5, 1939, SUPRA, WOULD BE MET SO LONG AS THE GOVERNMENT CONTINUES TO PAY THE MAN INVOLVED--- OR HIS DEPENDENTS-- A TOTAL AMOUNT EQUAL TO THAT RECEIVED BY HIM AS A FORMER CIVILIAN EMPLOYEE OF THE LIGHTHOUSE SERVICE. THAT VIEW OF THE SAID SAVING CLAUSE WOULD APPEAR TO BE FAIR AND EQUITABLE BOTH TO THE GOVERNMENT AND THE MAN, IN THAT, THE MAN AND HIS DEPENDENTS WOULD CONTINUE TO BE ENTITLED TO RECEIVE FROM THE GOVERNMENT AT LEAST THE SAME AMOUNT OF MONEY PREVIOUSLY PAID ON ACCOUNT OF HIS SERVICE IN A CIVILIAN POSITION IN THE FORMER LIGHTHOUSE SERVICE.

MOREOVER, SUCH VIEW APPEARS TO BE REQUIRED IN THE LIGHT OF THE PROVISIONS OF SECTION 8 OF THE ACT OF OCTOBER 23, 1943, SUPRA, GRANTING ENLISTED MEN OF THE FIRST, SECOND, AND THIRD PAY GRADES AN ELECTION TO ACCEPT THE BENEFITS EITHER OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OR THE MONETARY ALLOWANCES IN LIEU OF QUARTERS AUTHORIZED FOR ENLISTED MEN WITH DEPENDENTS OF THE FIRST THREE PAY GRADES UNDER SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363. WHILE THE MONETARY ALLOWANCE IN LIEU OF QUARTERS IS PAID TO THE ENLISTED MAN HIMSELF, SUCH ALLOWANCE IS PAID SOLELY ON ACCOUNT OF HIS DEPENDENTS AND, LIKE THE FAMILY ALLOWANCE, IS FOR THE BENEFIT OF THE DEPENDENTS. CLEARLY SUCH MONETARY ALLOWANCE IN LIEU OF QUARTERS WOULD BE REQUIRED UNDER SECTION 7 OF THE SAID 1939 ACT TO BE INCLUDED IN THE ENLISTED MAN'S MILITARY PAY AND ALLOWANCES FOR PURPOSES OF COMPARISON OF HIS CIVILIAN ANNUAL COMPENSATION AND ALLOWANCES WITH HIS MILITARY PAY AND ALLOWANCES; AND THE FACT THAT THE GOVERNMENT PERMITS SUCH AN ENLISTED MAN TO OBTAIN GREATER FINANCIAL BENEFITS FOR HIS DEPENDENTS BY ELECTING TO HAVE THEM RECEIVE THE FAMILY ALLOWANCE INSTEAD OF HIMSELF PERSONALLY RECEIVING THE MONETARY ALLOWANCE IN LIEU OF QUARTERS WOULD NOT OPERATE TO CHANGE THE CHARACTER OF THE BENEFITS THUS RECEIVED SO AS TO EXCLUDE IT FROM THE COMPUTATION OF HIS MILITARY PAY AND ALLOWANCES, AT LEAST INSOFAR AS CONCERNS THE SAVING CLAUSE CONTAINED IN THE SAID 1939 ACT. ANY OTHER VIEW OF THE MATTER WOULD RESULT, IN MANY CASES, IN THE ENLISTED MAN RECEIVING, AT HIS ELECTION, AN AMOUNT EQUAL TO HIS CIVILIAN COMPENSATION AND ALLOWANCES AND ALSO, HIS DEPENDENTS RECEIVING PAYMENT OF THE FAMILY ALLOWANCE, THE COMBINATION OF WHICH WOULD EXCEED THE TOTAL ANNUAL COMPENSATION AND ALLOWANCES RECEIVED BY HIM IN HIS CIVILIAN POSITION IN THE FORMER LIGHTHOUSE SERVICE. IT DOES NOT APPEAR THAT ANY SUCH RESULT WAS EVER INTENDED OR CONTEMPLATED.

ACCORDINGLY, IN ANSWER TO QUESTION (B), I HAVE TO ADVISE THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES OF THE FORMER LIGHTHOUSE SERVICE EMPLOYEES NOW IN THE COAST GUARD IN DETERMINING WHETHER SUCH PAY AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "ANNUAL COMPENSATION AND ALLOWANCES" SAVED TO THEM BY THE SAID SECTION 7 OF THE ACT OF AUGUST 5, 1939.