B-102939, NOVEMBER 20, 1951, 31 COMP. GEN. 180

B-102939, NOVEMBER 20, 1951, 31 COMP. GEN. 180

PAY - SAVED PAY AND ALLOWANCES - TEMPORARILY PROMOTED REGULAR NAVY PERSONNEL UNDER THE PROVISIONS OF SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947 SAVING TO REGULAR NAVY OR MARINE CORPS PERSONNEL THE PAY AND ALLOWANCES TO WHICH ENTITLED AT THE TIME OF TEMPORARY PROMOTION, AN ENLISTED MAN OF THE REGULAR NAVY TEMPORARILY APPOINTED A WARRANT OFFICER UNDER SAID ACT WHOSE DUTY ASSIGNMENT DID NOT CHANGE AFTER THE TEMPORARY PROMOTION, AN ENLISTED MAN OF THE REGULAR NAVY TEMPORARILY APPOINTED A WARRANT OFFICER UNDER SAID ACT WHOSE DUTY ASSIGNMENT DID NOT CHANGE AFTER THE TEMPORARY APPOINTMENT MAY CONTINUE TO RECEIVE THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE IF GREATER THAN THOSE OF THE WARRANT OFFICER GRADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 20, 1951:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1951, REQUESTING DECISION WHETHER SHIPS CLERK BRUCE F. VORCE, U.S. NAVY, PROPERLY MAY BE CREDITED WITH SAVED PAY AND ALLOWANCES OF $380.35 PER MONTH UNDER THE PROVISIONS OF SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, FROM FEBRUARY 14, 1951, UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

IT APPEARS FROM THE ENCLOSURES THAT ON JANUARY 16, 1951, CHIEF YEOMAN VORCE WAS TEMPORARILY APPOINTED TO THE WARRANT GRADE OF SHIPS CLERK UNDER THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829. AT THE TIME OF SUCH TEMPORARY APPOINTMENT, HE WAS ADMINISTRATIVELY ATTACHED TO THE RECEIVING STATION, WASHINGTON, D.C., AND ASSIGNED TO DUTY IN THE OFFICE OF THE UNDER SECRETARY OF THE NAVY. PRIOR TO SUCH TEMPORARY APPOINTMENT, BY ORDERS DATED MARCH 18, 1949, A CASH ALLOWANCE IN LIEU OF SUBSISTENCE WAS AUTHORIZED EFFECTIVE MARCH 1, 1949, FOR THE REASON THAT THE DUTIES PERFORMED BY HIM PRECLUDED THE UTILIZATION OF EXISTING MESSING FACILITIES. IMMEDIATELY PRIOR TO HIS TEMPORARY APPOINTMENT AS A WARRANT OFFICER, HIS TOTAL PAY AND ALLOWANCES AMOUNTED TO $380.35 PER MONTH CONSISTING OF PAY $227.85; BASIC ALLOWANCE FOR QUARTERS $85; SUBSISTENCE $67.50 ($2.25 A DAY). HIS TOTAL MONTHLY PAY AND ALLOWANCES AS A WARRANT OFFICER AMOUNTED TO $349.80, CONSISTING OF PAY $232.80, BASIC ALLOWANCE FOR QUARTERS $75, SUBSISTENCE $42.

SECTION 302 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, PROVIDES, INSOFAR AS HERE MATERIAL, THAT FIRST CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY MAY BE TEMPORARILY APPOINTED TO GRADES IN THE REGULAR NAVY, INCLUDING THE GRADE OF WARRANT OFFICER, AND SUBSECTION (E) OF THE SAID SECTION PROVIDES AS FOLLOWS:

(E) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NO PERSON WHO SHALL ACCEPT A TEMPORARY APPOINTMENT UNDER THE PROVISIONS OF THIS TITLE SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: AND PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS SECTION SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS PERMANENT STATUS AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

IN DECISION OF JULY 14, 1943, B-31978, 23 COMP. GEN. 21, IN CONSTRUING THE SAVINGS PROVISION IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED (WHICH IS SUBSTANTIALLY SIMILAR TO THE SAVINGS PROVISION CONTAINED IN SECTION 302 (E) SUPRA), IT WAS STATED THAT SUCH PROVISION SAVES A PERSON TEMPORARILY APPOINTED TO A HIGHER GRADE FROM ANY REDUCTION IN THE ITEMS OF PAY AND ALLOWANCES TO WHICH HE ACTUALLY WAS ENTITLED AT THE TIME OF THE TEMPORARY APPOINTMENT TO THE EXTENT HE WOULD HAVE RECEIVED SUCH PAY AND ALLOWANCES IN HIS PERMANENT GRADE UNDER THE CONDITIONS OF HIS ACTUAL SUBSEQUENT SERVICE. AT THE TIME OF THE TEMPORARY APPOINTMENT AS A WARRANT OFFICER, THE ENLISTED MAN WAS ENTITLED TO RECEIVE A SUBSISTENCE ALLOWANCE OF $2.25 PER DAY BECAUSE HIS DUTY ASSIGNMENT IN THE OFFICE OF THE UNDER SECRETARY OF THE NAVY PRECLUDED UTILIZATION OF EXISTING MESSING FACILITIES. WHILE HE WAS DETACHED FROM THE RECEIVING STATION, WASHINGTON, D.C., SHORTLY AFTER HIS TEMPORARY APPOINTMENT, SUCH DETACHMENT DID NOT NECESSARILY TERMINATE HIS RIGHT TO CONTINUE TO RECEIVE SUCH SUBSISTENCE ALLOWANCE. THE MAN'S DUTY ASSIGNMENT WAS NOT CHANGED AFTER HIS TEMPORARY APPOINTMENT AND, ASSUMING THAT HIS DUTY ASSIGNMENT IN THE UNDER SECRETARY'S OFFICE AFTER SUCH TEMPORARY APPOINTMENT CONTINUED TO BE SUCH AS TO PRECLUDE UTILIZATION OF EXISTING MESSING FACILITIES HAD HE BEEN SERVING IN HIS ENLISTED GRADE, HE WOULD BE ENTITLED UNDER THE SAID SAVINGS PROVISION OF SECTION 302 (E) TO CONTINUE TO INCLUDE SUCH ALLOWANCE AS AN ITEM OF SAVED PAY AND ALLOWANCES AFTER HIS TEMPORARY APPOINTMENT AND DETACHMENT FROM THE RECEIVING STATION, WASHINGTON, D.C. ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, IT IS CONCLUDED THAT THE OFFICER IS ENTITLED TO CONTINUE TO RECEIVE SAVED PAY AND ALLOWANCES OF $380.35 PER MONTH, IF OTHERWISE CORRECT, FROM FEBRUARY 14, 1951.