A-81190, NOVEMBER 18, 1936, 16 COMP. GEN. 507

A-81190, NOVEMBER 18, 1936, 16 COMP. GEN. 507

RENTAL AND SUBSISTENCE ALLOWANCES - COMMISSIONED WARRANT OFFICERS NOT ISSUED CREDITABLE RECORD CERTIFICATES A COMMISSIONED WARRANT OFFICER NOT ISSUED A CERTIFICATE OF CREDITABLE RECORD, WHO, BECAUSE OF THE SAVING CLAUSE IN THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, CONTINUES IN RECEIPT OF WARRANT OFFICER'S PAY, IS ENTITLED ONLY TO RENTAL AND SUBSISTENCE ALLOWANCES OF A WARRANT OFFICER, THOSE OF THE FIRST PERIOD.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 18, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 20, 1936, AS FOLLOWS:

SECTION 1 OF THE ACT APPROVED FEBRUARY 16, 1929 (45 STAT. 1186-1187; 37 U.S.C., SEC. 5), AMENDED THE TWELFTH PARAGRAPH OF SECTION 1 OF THE ACT APPROVED JUNE 10, 1922 (42 STAT. 627), BY STRIKING OUT THE PROVISION RELATIVE TO THE PAY OF COMMISSIONED WARRANT OFFICERS ON THE ACTIVE LIST WITH CREDITABLE RECORDS AFTER SIX AND TWELVE YEARS' COMMISSIONED SERVICE AND SUBSTITUTING THEREFOR THE FOLLOWING:

"COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST SHALL RECEIVE PAY AS FOLLOWS: DURING THE FIRST TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE SECOND PERIOD; AFTER TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE THIRD PERIOD; AFTER TWENTY YEARS OF COMMISSIONED SERVICE, THE PAY OF THE FOURTH PERIOD.'

THE EIGHTH PARAGRAPH OF SECTION 1 OF THE ACT APPROVED JUNE 10, 1922 (42 STAT. 625; 37 U.S.C., SEC. 1), PROVIDES:

"THE PAY OF THE FIRST PAY PERIOD SHALL BE PAID TO ALL OTHER OFFICERS WHOSE PAY IS PROVIDED FOR IN THIS SECTION.'

UNDER THE ORIGINAL PROVISIONS OF THE ACT OF JUNE 10, 1922, COMMISSIONED WARRANT OFFICERS DURING THE FIRST SIX YEARS OF COMMISSIONED SERVICE WERE ENTITLED TO THE PAY AND ALLOWANCES OF THE FIRST PAY PERIOD, SUBJECT TO THE RIGHT TO THE SAVED PAY OF A WARRANT OFFICER IN THE CASE OF THOSE COMMISSIONED WARRANT OFFICERS WHO HAD BEEN APPOINTED FROM WARRANT OFFICER. COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS WERE ENTITLED TO THE PAY AND ALLOWANCES OF THE SECOND PAY PERIOD AFTER SIX YEARS OF COMMISSIONED SERVICE AND THE PAY AND ALLOWANCES OF THE THIRD PAY PERIOD AFTER TWELVE YEARS OF COMMISSIONED SERVICE. THE ABOVE-QUOTED AMENDMENT OF FEBRUARY 16, 1929, PROVIDES FOR THE PAY AND ALLOWANCES OF THE SECOND, THIRD, AND FOURTH PAY PERIODS FOR COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST DURING THE FIRST TEN YEARS OF COMMISSIONED SERVICE, AFTER TEN YEARS OF COMMISSIONED SERVICE, AND AFTER TWENTY YEARS OF COMMISSIONED SERVICE, RESPECTIVELY, SUBJECT, HOWEVER, TO LIMITATIONS ON TOTAL PAY AND ALLOWANCES IN THE SECOND AND FOURTH PAY PERIODS OTHERWISE PROVIDED FOR IN THE CITED ACT OF FEBRUARY 16, 1929.

CHIEF PAY CLERK JAMES F. YOES, U.S. NAVY, WHO WAS APPOINTED A COMMISSIONED WARRANT OFFICER FROM JULY 20, 1924, IS NOW BEING PAID THE SAVED PAY OF A WARRANT OFFICER, $189 PER MONTH, AND THE ALLOWANCES OF THE SECOND PAY PERIOD, I.E., RENTAL ALLOWANCE $60 PER MONTH AND SUBSISTENCE ALLOWANCE $36 PER MONTH. THE RECORDS OF THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT SHOW THAT YOES HAS BEEN PAID THIS RATE OF PAY AND ALLOWANCES SINCE APRIL 1, 1935, AS SHOWN BY DUPLICATE PAYROLLS OF THE NAVAL TRAINING STATION, SAN DIEGO, CALIFORNIA, AND IT IS ASSUMED THAT HE HAS BEEN PAID THE ALLOWANCES OF THE SECOND PAY PERIOD FOR SOMETIME PRIOR THERETO. IT APPEARS THAT SUCH PAYMENTS HAVE BEEN PASSED BY THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICERS INVOLVED FOR A NUMBER OF YEARS.

AN ADVANCE DECISION IS REQUESTED AS TO THE ALLOWANCES WHICH MAY PROPERLY BE PAID TO A COMMISSIONED WARRANT OFFICER WHO HAS NOT BEEN ISSUED A CERTIFICATE OF CREDITABLE RECORD, AS IN THE CASE OF CHIEF PAY CLERK YOES. THE DISBURSING OFFICER CARRYING THE ACCOUNTS OF CHIEF PAY CLERK YOES HAS BEEN ADVISED OF THE SUBMISSION OF THIS QUESTION FOR DECISION AND, IN VIEW OF THE DOUBT INVOLVED ON THE QUESTION OF ALLOWANCES, TO CREDIT CHIEF PAY CLERK YOES WITH THE ALLOWANCES OF THE FIRST PAY PERIOD PENDING THE DECISION HEREIN REQUESTED.

DUE TO THE FACT THAT THE ALLOWANCES OF THE SECOND PAY PERIOD HAVE BEEN PAID TO CHIEF PAY CLERK YOES FOR A NUMBER OF YEARS AND APPARENTLY WITHOUT QUESTION IN THE AUDIT OF ACCOUNTS, IT IS REQUESTED THAT, IF IT IS HELD THAT HE IS ENTITLED UNDER THE LAW ONLY TO THE ALLOWANCES OF THE FIRST PAY PERIOD, YOUR DECISION BE NOT MADE RETROACTIVE AND THAT PAYMENTS MADE PRIOR TO OCTOBER 1, 1936, ACCORDINGLY BE NOT QUESTIONED IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED.

PARAGRAPH 12 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES:

* * * COMMISSIONED WARRANT OFFICERS ON THE ACTIVE LIST WITH CREDITABLE RECORDS SHALL, AFTER SIX YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE SECOND PERIOD, AND AFTER TWELVE YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE THIRD PERIOD: PROVIDED, THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION. * * *

THIS WAS AMENDED BY THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, 1187, TO READ AS FOLLOWS:

COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST SHALL RECEIVE PAY AS FOLLOWS: DURING THE FIRST TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE SECOND PERIOD; AFTER TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE THIRD PERIOD; AFTER TWENTY YEARS OF COMMISSIONED SERVICE, THE PAY OF THE FOURTH PERIOD: PROVIDED, THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION. * * *

SECTION 4 OF THE ACT OF FEBRUARY 16, 1929, PROVIDES:

THAT NOTHING CONTAINED HEREIN SHALL BE CONSTRUED SO AS TO REDUCE THE PAY, ALLOWANCES, EMOLUMENTS, OR OTHER BENEFITS, INCLUDING THE BENEFITS OF THE ACT OF JUNE 10, 1926, FORTY-FOURTH STATUTES AT LARGE, PAGE 725, THAT ANY PERSON NOW IN THE SERVICE IS RECEIVING AT THE DATE OF THE PASSAGE OF THIS ACT.

UNDER THE LAW PRIOR TO THE AMENDMENT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER IS SAVED ANY "REDUCTION OF PAY" BY REASON OF SUCH PROMOTION. UNDER SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, WARRANT OFFICERS OF THE NAVY ARE ENTITLED TO THE SAME MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS AS AUTHORIZED FOR COMMISSIONED OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD. UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, A COMMISSIONED WARRANT OFFICER PROMOTED FROM WARRANT OFFICER IS ENTITLED TO CONTINUE TO RECEIVE HIS RATE OF PAY AS A WARRANT OFFICER IF HIS PROMOTION TO CHIEF WARRANT OFFICER WOULD RESULT IN A REDUCTION OF PAY. ALSO, UNDER THAT ACT THE MEASURE OF MONEY ALLOWANCES FOR SUBSISTENCE AND QUARTERS IS BASED ON THE OFFICER'S PERIOD PAY. NEITHER UNDER THE ACT OF 1922 NOR THE ACT OF 1929 IS A COMMISSIONED WARRANT OFFICER WITHOUT A CREDITABLE RECORD DURING HIS FIRST SIX OR TEN YEARS' SERVICE AS SUCH ENTITLED TO ANY PAY OTHER THAN SUCH AS IS SAVED TO HIM AS A WARRANT OFFICER. UNDER THE LAW THE MONEY ALLOWANCES FOR SUBSISTENCE AND QUARTERS TO WHICH CHIEF WARRANT OFFICERS ARE ENTITLED ARE BASED ON THE OFFICER'S PAY PERIOD. UNLESS ENTITLED TO PAY AS A CHIEF WARRANT OFFICER, HE IS NOT ENTITLED TO ALLOWANCES AS SUCH. IN THE CASE OF CHIEF PAY CLERK YOES, UNDER THE SAVING CLAUSE AS TO REDUCTION OF PAY IN THE ACT OF JUNE 10, 1922, HE IS ENTITLED TO CONTINUE TO RECEIVE HIS WARRANT OFFICER'S PAY AFTER TWELVE YEARS' SERVICE AT $168 PER MONTH WHILE ON SHORE DUTY AND $189 PER MONTH ON SEA DUTY; ALSO THE ALLOWANCES AUTHORIZED FOR A WARRANT OFFICER. BEING WITHOUT ANY RIGHT TO PAY AS A COMMISSIONED WARRANT OFFICER, CHIEF PAY CLERK YOES HAS NO RIGHT TO ALLOWANCES AS SUCH, BUT UNDER THE SAVING CLAUSE IN THE ACT OF JUNE 10, 1922, HE IS ENTITLED TO CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF A WARRANT OFFICER TO WHICH HE WAS ENTITLED WHEN COMMISSIONED EXCEPT THAT HIS RATE OF PAY SINCE FEBRUARY 16, 1929, IS NOT REDUCED WHEN ON SHORE DUTY.

PAY ROLL TRACINGS SHOW THAT CHIEF PAY CLERK YOES WAS CREDITED THE MONEY ALLOWANCES OF A WARRANT OFFICER (THAT AUTHORIZED FOR COMMISSIONED OFFICERS RECEIVING FIRST PERIOD PAY) TO MARCH 31, 1935. THE LAW IS NOT AMBIGUOUS AND THERE IS NO BASIS FOR A CONSTRUCTION THAT WOULD AUTHORIZE FOR THIS OFFICER MONEY ALLOWANCES IN EXCESS OF THAT PRESCRIBED FOR A WARRANT OFFICER. THE FACT THAT BEGINNING WITH APRIL 1, 1935, WITHOUT ANY CHANGE OF STATUS, CHIEF PAY CLERK YOES HAS BEEN ILLEGALLY CREDITED MONEY ALLOWANCES DUE A CHIEF WARRANT OFFICER ENTITLED TO SECOND PERIOD PAY AND THAT SUCH ILLEGAL CREDITS HAVE NOT BEEN DETECTED IN THE AUDIT AFFORDS NO BASIS FOR ALLOWING SUCH ERRONEOUS CREDITS INCLUSIVE OF ACCOUNTS NOT YET AUDITED. CHIEF PAY CLERK YOES SHOULD BE REQUIRED TO REFUND ALL MONEY ALLOWANCES RECEIVED BY HIM IN EXCESS OF THE AMOUNT AUTHORIZED FOR A WARRANT OFFICER.