B-110959, JULY 29, 1952, 32 COMP. GEN. 55

B-110959, JULY 29, 1952, 32 COMP. GEN. 55

PAY ADDITIONAL - HAZARDOUS DUTY - COMBAT DUTY PAY COMBAT PAY PROVIDED BY THE COMBAT DUTY PAY ACT OF 1952, LIKE BASIC PAY AND THE VARIOUS CLASSES OF HAZARDOUS DUTY PAY AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, IS TO BE CONSIDERED MONTHLY COMPENSATION WITHIN THE MEANING OF THE ACT OF JUNE 30, 1906, AS AMENDED, AND THEREFORE, A MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO SUCH PAY WHO IS NOT ENTITLED TO BASIC PAY FOR AN ENTIRE MONTH SHOULD HAVE HIS COMBAT PAY ALSO PRORATED ON A FRACTIONAL PART OF A MONTH BASIS. A MEMBER OF THE ARMED FORCES WHO IS HOSPITALIZED FOR THE TREATMENT OF AN INJURY OR WOUND RECEIVED IN ACTION WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA IS ENTITLED, UNDER SECTION 704 OF THE COMBAT DUTY PAY ACT OF 1952, TO RECEIVE COMBAT PAY AT THE RATE OF $45 PER MONTH FOR SUCH PART OF THE CALENDAR MONTH DURING WHICH HE IS INJURED OR WOUNDED AS HE MAY BE IN A BASIC PAY STATUS AND ALSO FOR THOSE DAYS DURING THE NEXT THREE SUCCEEDING CALENDAR MONTHS ON WHCIH HE IS HOSPITALIZED FOR THE TREATMENT OF THE INJURY OR WOUND. A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO INCENTIVE PAY UNDER SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, FOR A FRACTIONAL PART OF A MONTH DURING WHICH HE IS OTHERWISE ENTITLED TO COMBAT PAY, MAY BE PAID COMBAT PAY ON A PRORATED BASIS, UNDER SECTION 705 OF THE COMBAT DUTY PAY ACT OF 1952, FOR THE FRACTIONAL PART OF THE MONTH DURING WHICH HE IS NOT ENTITLED TO INCENTIVE PAY, EVEN THOUGH THE MEMBER QUALIFIED FOR THE INCENTIVE PAY. INASMUCH AS COMBAT PAY AUTHORIZED BY THE COMBAT DUTY PAY ACT OF 1952, IS CONSIDERED MONTHLY COMPENSATION WITHIN THE MEANING OF THE ACT OF JUNE 30, 1906, AS AMENDED, IT MAY BE INCLUDED IN THE SIX MONTHS' DEATH GRATUITY PAYABLE UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO SUCH PAY DURING THE MONTH OF DEATH. A MEMBER OF THE UNIFORMED SERVICES MAY NOT RETAIN SAVED PAY FOR A PARTICULAR PERIOD AND BE PAID, IN ADDITION THERETO, COMBAT PAY FOR THE SAME PERIOD UNDER THE COMBAT DUTY PAY ACT OF 1952; HOWEVER, WHERE A MEMBER'S PAY HAS ACCRUED ON A SAVED PAY BASIS AND HE IS QUALIFIED FOR COMBAT PAY DURING ALL OR PART OF SUCH PERIOD, HIS PAY MAY BE ADJUSTED, FOR THE PERIOD OF ENTITLEMENT TO COMBAT PAY ONLY, SO AS TO ALLOW HIM THE DIFFERENCE, IF ANY, BETWEEN SAVED PAY AND PAY AT THE RATES AND UNDER THE CONDITIONS SET FORTH IN LAWS IN EFFECT DURING THE PERIOD, INCLUDING RETROACTIVE PAY UNDER SAID COMBAT DUTY PAY ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JULY 29, 1952:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 22, 1952, REQUESTING A DECISION ON SEVERAL QUESTIONS INVOLVING THE INTERPRETATION AND APPLICATION OF THE COMBAT DUTY PAY ACT OF 1952, 66 STAT. 538, ( TITLE VII OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, PUBLIC LAW 488, APPROVED JULY 10, 1952, 66 STAT. 517), AND PARTICULARLY THE PROVISIONS OF SECTIONS 703 AND 704 OF SUCH ACT, WHICH SECTIONS ARE AS FOLLOWS:

SEC. 703. EACH MEMBER AND FORMER MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE COMBAT PAY IN THE AMOUNT OF $45 PER MONTH FOR EACH MONTH BEGINNING AFTER MAY 31, 1950, FOR WHICH SUCH MEMBER WAS ENTITLED TO RECEIVE BASIC PAY AND DURING WHICH HE WAS A MEMBER OF A COMBAT UNIT IN KOREA ON---

(A) NOT LESS THAN SIX DAYS OF SUCH MONTH; OR

(B) ONE OR MORE DAYS OF SUCH MONTH INCLUDED WITHIN A PERIOD OF NOT LESS THAN SIX CONSECUTIVE DAYS ON WHICH HE WAS A MEMBER OF A COMBAT UNIT IN KOREA, IF SUCH PERIOD BEGAN IN THE NEXT PRECEDING MONTH AND HE IS NOT ENTITLED TO RECEIVE COMBAT PAY UNDER THIS TITLE FOR SUCH PRECEDING MONTH.

SEC. 704. EACH MEMBER AND FORMER MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE COMBAT PAY IN THE AMOUNT OF $45 PER MONTH FOR EACH MONTH BEGINNING AFTER MAY 31, 1950, FOR WHICH HE WAS ENTITLED TO RECEIVE BASIC PAY AND IN WHICH---

(A) HE WAS KILLED IN ACTION, INJURED IN ACTION, OR WOUNDED IN ACTION WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA, AND FOR NOT MORE THAN THREE MONTHS THEREAFTER DURING WHICH HE WAS HOSPITALIZED FOR THE TREATMENT OF AN INJURY OR WOUND RECEIVED IN ACTION WHILE SO SERVING; OR

(B) HE WAS CAPTURED OR ENTERED A MISSING-IN-ACTION STATUS WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA, AND FOR NOT MORE THAN THREE MONTHS THEREAFTER DURING WHICH HE OCCUPIED SUCH STATUS.

EACH OF YOUR QUESTIONS WILL BE STATED AND THEN CONSIDERED AND ANSWERED BEFORE PROCEEDING TO A STATEMENT AND DISCUSSION OF THE NEXT QUESTION.

QUESTION 1

IS COMBAT PAY PROVIDED BY THE COMBAT DUTY PAY ACT OF 1952 TO BE CONSTRUED AS MONTHLY COMPENSATION WITHIN THE MEANING OF THE ACT OF JUNE 30, 1906, AND PRORATED FOR A FRACTIONAL PART OF A MONTH IN THOSE CASES WHERE A MEMBER OTHERWISE ENTITLED TO SUCH PAY IS NOT ENTITLED TO BASIC PAY FOR THE ENTIRE MONTH?

SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, AS AMENDED, 5 U.S.C. 84, IS, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER, WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES * * * IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE HEREBY ESTABLISHED: * * * IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE THIRTIETH * * * OF A MONTHLY COMPENSATION SHALL BE THE DAILY RATE OF PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. * *

IN THE CONSIDERATION OF YOUR FIRST QUESTION, AND OF ALL OF YOUR QUESTIONS, DUE ATTENTION HAS BEEN GIVEN NOT ONLY TO THE LANGUAGE OF THE COMBAT DUTY PAY ACT OF 1952 BUT TO ITS LEGISLATIVE HISTORY AND BACKGROUND. READING THE STATUTE IN THE LIGHT OF SUCH BACKGROUND IT SEEMS REASONABLY APPARENT THAT THE CONGRESS INTENDED TO PROVIDE COMBAT PAY AS AN ADDITIONAL CLASS OF INCENTIVE PAY FOR HAZARDOUS DUTY AND CONCEIVED SUCH PAY TO BE SIMILAR IN ESSENCE TO OTHER CLASSES OF HAZARDOUS DUTY PAY, SUCH AS FLYING PAY, SUBMARINE PAY, PARACHUTE PAY, ETC., WHICH ARE AUTHORIZED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AND WHICH ARE TREATED AS MONTHLY COMPENSATION WITHIN THE MEANING OF THE 1906 ACT, SUPRA. SUCH INTENT IS SUGGESTED (1) BY THE USE, THROUGHOUT THE STATUTE, OF THE TERM "COMBAT PAY" TO DESCRIBE THE PAYMENTS AUTHORIZED THEREBY; AND (2) BY THE PROVISION IN SECTION 705 THAT " NO PERSON SHALL BE ENTITLED TO RECEIVE FOR ANY MONTH * * * COMBAT PAY UNDER THIS TITLE IN ADDITION TO ANY INCENTIVE OR SPECIAL PAY" AUTHORIZED BY SECTION 203, 204, OR 205 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810. MOREOVER, SECTIONS 703 AND 704 OF THE COMBAT DUTY PAY ACT, SUPRA, AUTHORIZE COMBAT PAY "IN THE AMOUNT OF $45 PER MONTH FOR EACH MONTH" WHEN A MEMBER QUALIFIES FOR SUCH PAY, AND THE USE OF THE PHRASE PER MONTH IN CONJUNCTION WITH THE PHRASE FOR EACH MONTH APPARENTLY WOULD HAVE BEEN UNNECESSARY AND INAPPROPRIATE IF THE INTENTION HAD BEEN TO AUTHORIZE THE PAYMENT OF COMBAT PAY ON THE BASIS OF AN INDIVISIBLE LUMP-SUM OF $45 FOR EACH MONTH OR FRACTION THEREOF DURING WHICH A MEMBER MEETS THE QUALIFICATIONS TO RECEIVE SUCH PAY. FOR SUCH REASONS, IT WOULD APPEAR THAT COMBAT PAY, LIKE BASIC PAY AND THE VARIOUS CLASSES OF HAZARDOUS DUTY PAY AUTHORIZED BY THE CAREER COMPENSATION ACT SHOULD BE CONSIDERED AS MONTHLY COMPENSATION WITHIN THE MEANING OF THE ACT OF JUNE 30, 1906, AS AMENDED, SUPRA. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE:

QUESTIONS 2A AND 2B

IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, THE FOLLOWING ADDITIONAL QUESTIONS ARE FOR CONSIDERATION:

A. IN THE CASE OF A MEMBER WHO IS HOSPITALIZED FOR THE TREATMENT OF AN INJURY OR WOUND RECEIVED IN ACTION WHILE SERVING AS A MEMBER OF A COMBAT UNIT IN KOREA, IF SUCH MEMBER IS DISCHARGED FROM HOSPITALIZATION DURING AN INTERMEDIATE DAY OF THE FIRST, SECOND, OR THIRD MONTH FOLLOWING THE MONTH IN WHICH INJURED OR WOUNDED AND DOES NOT OTHERWISE QUALIFY FOR COMBAT PAY FOR THE MONTH OF SUCH DISCHARGE, IS HE ENTITLED FOR SUCH MONTH ONLY TO A PRORATED PORTION OF COMBAT PAY FOR THE FRACTIONAL PART OF THE MONTH WHILE HOSPITALIZED?

B. IF A MEMBER IS ENTITLED TO INCENTIVE PAY PROVIDED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, FOR A FRACTIONAL PART OF A MONTH DURING WHICH HE IS OTHERWISE ENTITLED TO COMBAT PAY, IS SUCH MEMBER ENTITLED TO A PRORATED PORTION OF COMBAT PAY FOR THE FRACTIONAL PART OF SUCH MONTH DURING WHICH HE IS NOT ENTITLED TO INCENTIVE PAY (1) IF THE MEMBER QUALIFIED FOR COMBAT PAY DURING THE SAME PERIOD THAT HE QUALIFIED FOR INCENTIVE PAY; (2) IF THE MEMBER QUALIFIED FOR COMBAT PAY DURING A PART OF THE MONTH WHEN HE WAS NOT ENTITLED TO INCENTIVE PAY?

WITH RESPECT TO MEMBERS OF THE UNIFORMED SERVICES WHO ARE INJURED IN ACTION OR WOUNDED IN ACTION WHILE SERVING WITH A COMBAT UNIT IN KOREA, THE REASONABLE MEANING OF THE LANGUAGE EMPLOYED IN SECTION 704 OF THE COMBAT DUTY PAY ACT, WHEN READ IN THE LIGHT OF THE WHOLE ACT, IS THAT A MEMBER IS ENTITLED TO RECEIVE COMBAT PAY AT THE RATE OF $45 PER MONTH FOR SUCH PART OF THE CALENDAR MONTH DURING WHICH HE IS INJURED OR WOUNDED AS HE MAY BE IN A BASIC PAY STATUS AND FOR THOSE DAYS DURING THE NEXT THREE SUCCEEDING CALENDAR MONTHS ON WHICH HE IS HOSPITALIZED FOR THE TREATMENT OF THE INJURY OR WOUND HE RECEIVED IN ACTION, ASSUMING THAT HE DOES NOT OTHERWISE QUALIFY FOR COMBAT PAY DURING ANY PART OF THE THREE CALENDAR MONTHS FOLLOWING THE MONTH IN WHICH HE IS INJURED OR WOUNDED. QUESTION 2 (A) IS ANSWERED ACCORDINGLY.

WITH RESPECT TO CONCURRENT ACCRUAL OF COMBAT PAY AND ANY OTHER INCENTIVE OR SPECIAL PAY, SECTION 705 OF THE COMBAT DUTY PAY ACT PROVIDES AS FOLLOWS:

NO PERSON SHALL BE ENTITLED TO RECEIVE FOR ANY MONTH---

(A) MORE THAN ONE COMBAT PAY AUTHORIZED BY THIS TITLE; OR

(B) COMBAT PAY UNDER THIS TITLE IN ADDITION TO ANY INCENTIVE OR

SPECIAL PAY.

WHILE THE LANGUAGE OF THE SAID SECTION 705 MIGHT SEEM TO POINT TO THE CONCLUSION THAT A MEMBER WOULD NOT BE ENTITLED TO RECEIVE ANY COMBAT PAY FOR ANY PART OF ANY CALENDAR MONTH IF HE HAD RECEIVED ANY INCENTIVE PAY OR SPECIAL PAY FOR ANY PART OF THE SAME CALENDAR MONTH, SUCH CONCLUSION WOULD NOT BE CONSISTENT WITH THE CONCEPTS, INDICATED ABOVE, (1) THAT COMBAT PAY ACCRUES FROM DAY TO DAY AT THE RATE OF $45 PER MONTH RATHER THAN ON THE BASIS OF AN INDIVISIBLE LUMP-SUM OF $45 FOR EACH MONTH OR FRACTION THEREOF DURING WHICH A MEMBER MEETS THE QUALIFICATIONS TO RECEIVE SUCH PAY AND (2) THAT THE CONGRESS INTENDED TO PROVIDE COMBAT PAY AS A CLASS OF PAY FOR HAZARDOUS DUTY TO BE ADDED TO THE OTHER CLASSES OF SUCH PAY AUTHORIZED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949. ALL CLASSES OF HAZARDOUS DUTY PAY PROVIDED BY SECTION 204 OF THE CAREER COMPENSATION ACT ARE, OF COURSE, SUBJECT TO THE PROVISIONS OF SUBSECTION (F) OF THE SAID SECTION AS FOLLOWS:

NO MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE MORE THAN ONE PAYMENT OF ANY INCENTIVE PAY AUTHORIZED PURSUANT TO THIS SECTION FOR THE SAME PERIOD OF TIME DURING WHICH HE MAY QUALIFY FOR MORE THAN ONE PAYMENT OF SUCH INCENTIVE PAY. THE PROVISIONS OF SUCH SUBSECTION ARE QUITE SIMILAR TO THE PROVISIONS OF SECTION 705 OF THE COMBAT DUTY PAY ACT, SUPRA, EXCEPT THAT, AS TO THE MATTER OF TIME, SUBSECTION 204 (F) CONTAINS THE PHRASE "FOR THE SAME PERIOD OF TIME" WHILE SECTION 705 EMPLOYS THE PHRASE "FOR ANY MONTH.' NOTWITHSTANDING SUCH DIFFERENCE IN THE TERMS OF THE TWO STATUTES, IT WOULD APPEAR FROM THE LANGUAGE OF THE COMBAT DUTY PAY ACT AS A WHOLE AND FROM THE LEGISLATIVE BACKGROUND OF THAT ACT THAT THE CONGRESS INTENDED, BY THE ENACTMENT OF THE SAID SECTION 705, MERELY TO PREVENT DOUBLE PAYMENT OF COMBAT PAY FOR ANY PERIOD AND THE PAYMENT OF COMBAT PAY FOR ANY DAY OR DAYS FOR WHICH THE MEMBER HAS RECEIVED SOME OTHER INCENTIVE PAY OR SPECIAL PAY. AND IN CONNECTION WITH THE MATTER OF PAYMENT OF COMBAT PAY FOR PART OF A MONTH AND INCENTIVE PAY OR SPECIAL PAY UNDER THE CAREER COMPENSATION ACT FOR ANOTHER PART OF THE SAME MONTH, THERE APPEARS TO BE NOTHING IN THE STATUTE TO REQUIRE A DISTINCTION BETWEEN CASES IN WHICH THE MEMBER QUALIFIED FOR COMBAT PAY DURING THE SAME PERIOD THAT HE QUALIFIED FOR INCENTIVE PAY AND CASES IN WHICH THE MEMBER QUALIFIED FOR COMBAT PAY DURING A PART OF THE MONTH WHEN HE WAS NOT ENTITLED TO INCENTIVE PAY. ACCORDINGLY, BOTH PARTS OF QUESTION 2B ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 3

IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, MAY COMBAT PAY BE INCLUDED IN THE SIX MONTHS' DEATH GRATUITY PAYABLE UPON THE DEATH OF MEMBER IF SUCH MEMBER IS ENTITLED TO COMBAT PAY DURING THE MONTH OF DEATH?

SINCE QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, IT IS EVIDENT THAT COMBAT PAY IS TO BE INCLUDED IN THE COMPUTATION OF THE SIX MONTHS' GRATUITY PAYABLE UPON THE DEATH OF A MEMBER IF SUCH MEMBER IS ENTITLED TO COMBAT PAY DURING THE MONTH OF DEATH.

QUESTION 4

IF A MEMBER IS ENTITLED TO INCENTIVE PAY PROVIDED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, DURING A MONTH IN WHICH HE IS OTHERWISE ENTITLED TO COMBAT PAY, IS SUCH MEMBER ENTITLED TO INCENTIVE PAY OR COMBAT PAY, WHICHEVER IS GREATER?

IN THE LIGHT OF THE INTERPRETATION PLACED UPON SECTION 705 OF THE COMBAT DUTY PAY ACT IN THE ANSWER TO QUESTION 2B, ABOVE, AND IN VIEW OF THE LEGISLATIVE BACKGROUND OF THE SAID ACT, IT IS CONCLUDED THAT THE CONGRESS INTENDED THE LANGUAGE OF PART (B) OF SECTION 705 OF SUCH ACT TO BE GIVEN AN APPLICATION SIMILAR TO THE APPLICATION BEING GIVEN SOMEWHAT COMPARABLE LANGUAGE IN SECTION 204 (F) OF THE CAREER COMPENSATION ACT, SUPRA. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

QUESTIONS 5 AND 6

THE FIFTH QUESTION IS AS FOLLOWS:

IF A MEMBER QUALIFIES FOR COMBAT PAY DURING A MONTH IN WHICH HE IS ENTITLED TO SAVED PAY UNDER THE PROVISIONS OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, MAY SUCH MEMBER RECEIVE COMBAT PAY WITHOUT AFFECTING HIS RIGHT TO CONTINUE IN RECEIPT OF SAVED PAY?

ADDITIONAL QUESTIONS, NUMBERED 6A, 6B, AND 6C, INVOLVING THE SAVINGS PROVISIONS IN SUBSECTIONS (A) AND (B) OF SECTION 515 OF THE CAREER COMPENSATION ACT, 63 STAT. 831, ARE PRESENTED FOR DECISION BUT SUCH QUESTIONS ARE PREMISED ON A NEGATIVE ANSWER TO QUESTION 5 AND SINCE IT APPEARS THAT THE ANSWER TO QUESTION 5 MUST BE A QUALIFIED ONE, THE MATTER OF SAVED PAY, UNDER THE SAID SUBSECTIONS, WILL BE DISCUSSED GENERALLY AND THE CONCLUSIONS OF THIS OFFICE THEREON WILL BE GIVEN GENERALLY WITHOUT REFERENCE TO ANY ONE OF THE SPECIFIC QUESTIONS YOU PRESENT. IT IS BELIEVED THAT YOU WILL THUS BE GIVEN A WORKABLE RULE THAT WILL PERMIT OF APPROPRIATE DISPOSITION OF ALL CASES OF THE TYPE INVOLVED WHICH MAY ARISE.

SAVED PAY UNDER BOTH SUBSECTIONS (A) AND (B) OF SECTION 515 OF THE CAREER COMPENSATION ACT IS MERELY A MINIMUM OR FLOOR FOR PAY COMPUTED UNDER CURRENT LAWS, THE ONLY THING SAVED TO ANY MEMBER BEING A RIGHT NOT TO SUFFER ANY REDUCTION, BY REASON OF THE SAID ACT, IN THE AMOUNT OF TOTAL COMPENSATION PREVIOUSLY RECEIVED. SUCH SAVED PAY (WHICH IS PAY COMPUTED UNDER REPEALED LAWS) IS LEGALLY PAYABLE FOR ANY PERIOD ONLY WHEN THE PAY OF THE MEMBER INVOLVED WOULD BE LESS FOR SUCH PERIOD IF COMPUTED AT RATES FIXED IN CURRENT LAWS. HENCE, FOR ANY PERIOD FOR WHICH A MEMBER IS QUALIFIED TO RECEIVE COMBAT PAY HE IS ENTITLED TO THE GREATER OF (1) SAVED PAY OR (2) COMBAT PAY PLUS OTHER PAY COMPUTED AT RATES FIXED IN THE LAWS CURRENTLY IN EFFECT DURING THE PERIOD. THE QUESTION WHETHER A MEMBER WHO ONCE HAD BECOME ENTITLED TO BASIC PAY UNDER THE CAREER COMPENSATION ACT PLUS COMBAT PAY WOULD BE BARRED FROM REVERTING TO A SAVED PAY BASIS (BY THE PROVISOS IN BOTH SUBSECTIONS (A) AND (B) OF SECTION 515) FOR SUBSEQUENT PERIODS OF NON-ENTITLEMENT TO COMBAT PAY APPARENTLY NEED NOT BE RESOLVED HERE IN VIEW THAT THE SAVINGS PROVISIONS IN BOTH SUBSECTIONS (A) AND (B) OF THE SAID SECTION 515 ARE EFFECTIVE ONLY AS TO PERIODS PRIOR TO JULY 1, 1952, AND THAT MEMBERS WHO BECAME ENTITLED TO SAVED PAY PRIOR TO JULY 1, 1952, UNDER THE LAWS THEN IN EFFECT, ACQUIRED A VESTED RIGHT TO SUCH SAVED PAY WHICH COULD NOT BE DIVESTED TO THEIR DISADVANTAGE BY THE RETROACTIVE PROVISIONS OF THE SUBSEQUENTLY ENACTED COMBAT DUTY PAY ACT OF 1952, APPROVED JULY 10, 1952. IN CONNECTION WITH THE MATTER OF VESTED RIGHTS, SEE B-108117, MAY 29, 1952, 31 COMP. GEN. 619, WHEREIN IT WAS STATED:

* * * THE RULE IS WELL ESTABLISHED THAT, GENERALLY, NEITHER THE FEDERAL GOVERNMENT NOR THE STATES MAY IMPAIR OR DIVEST VESTED RIGHTS EXCEPT IN A LEGITIMATE EXERCISE OF THE POLICE POWER, AND THAT RETROSPECTIVE LAWS OR ADMINISTRATIVE ACTION DISTURBING OR DESTROYING EXISTING OR VESTED RIGHTS, OR CREATING NEW OBLIGATIONS WITH RESPECT TO PAST TRANSACTIONS, ARE INVALID. HOWEVER, IN ANY CASE WHERE A MEMBER'S PAY ACCRUED ON A SAVED PAY BASIS FOR A GIVEN PERIOD AND IT IS DETERMINED THAT HE IS QUALIFIED, UNDER THE COMBAT DUTY PAY ACT, FOR COMBAT PAY DURING ALL OR PART OF SUCH PERIOD, HIS PAY MAY BE ADJUSTED, FOR THE PERIOD OF ENTITLEMENT TO COMBAT PAY ONLY, SO AS TO ALLOW HIM THE DIFFERENCE, IF ANY, BETWEEN SAVED PAY ON THE ONE HAND AND PAY AT THE RATES AND UNDER THE CONDITIONS SET FORTH IN LAWS IN EFFECT DURING THE PERIOD, INCLUDING RETROACTIVE PAY UNDER THE COMBAT DUTY PAY ACT, ON THE OTHER HAND. IN NO CASE SHOULD A MEMBER BE PERMITTED TO RETAIN SAVED PAY, AS SUCH, FOR A PARTICULAR MONTH OR MONTHS AND BE PAID, IN ADDITION THERETO, COMBAT PAY FOR THE SAME MONTH OR MONTHS, SINCE SAVED PAY (UNDER BOTH SUBSECTIONS (A) AND (B) OF SECTION 515) IS "TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING" OCTOBER 1, 1949, AND MAY NOT BE INCREASED OR SUPPLEMENTED BY COMBAT PAY OR ANY OTHER PAY AUTHORIZED BY LAWS WHICH WERE NOT IN EFFECT ON SEPTEMBER 30, 1949. HE MAY, HOWEVER, AS STATED ABOVE, BE PAID THE DIFFERENCE BETWEEN THE AMOUNT OF SUCH SAVED PAY AND THE TOTAL PAY HE WOULD HAVE RECEIVED UNDER THE CAREER COMPENSATION ACT AND THE COMBAT DUTY PAY ACT.

QUESTIONS 7 AND 8

YOUR SEVENTH AND EIGHTH QUESTIONS ARE SIMILAR IN GENERAL PURPORT TO YOUR FIFTH AND SIXTH QUESTIONS EXCEPT THAT, INSTEAD OF THE SAVINGS PROVISIONS IN SECTION 515 OF THE CAREER COMPENSATION ACT, THEY INVOLVE THE SAVINGS PROVISIONS IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED, 34 U.S.C. 350F, AND SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, AS AMENDED, 34 U.S.C. 3C. IT IS BELIEVED THAT THE PRINCIPLES STATED ABOVE, IN CONNECTION WITH YOUR FIFTH AND SIXTH QUESTIONS, FURNISH A BASIS FOR APPROPRIATE DISPOSITION OF ALL CASES WHICH MAY ARISE OF THE TYPES CONTEMPLATED BY YOUR SEVENTH AND EIGHTH QUESTIONS. IF ANY CASE SHOULD ARISE WHICH IS NOT GOVERNED BY SUCH PRINCIPLES IT WILL BE GIVEN SPECIAL CONSIDERATION UPON YOUR REQUEST THEREFOR.