B-115145, OCTOBER 8, 1953, 33 COMP. GEN. 151

B-115145, OCTOBER 8, 1953, 33 COMP. GEN. 151

QUARTERS ALLOWANCE - MARITIME SERVICE ENROLLEES - ALLOTMENT REQUIREMENT ENROLLEES OF THE MARITIME SERVICE BELOW OFFICER RANK SERVING ON ACTIVE ADMINISTRATIVE DUTY ARE ENTITLED TO THE INCREASED QUARTERS ALLOWANCES FOR DEPENDENTS AUTHORIZED BY THE ACT OF MAY 19, 1952, EFFECTIVE MAY 1, 1952, PROVIDED THEY HAVE AN ALLOTMENT FOR DEPENDENTS AS REQUIRED BY SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 AND CLAIMS FOR SUCH ALLOWANCES, RETROACTIVE TO MAY 1, 1952, MAY BE ADJUSTED ADMINISTRATIVELY PROVIDED AN ALLOTMENT IS INSTITUTED RETROACTIVELY TO COVER THE PERIOD FOR WHICH THE ALLOWANCE IS CLAIMED, OR PROVIDED SUCH ALLOTMENT REQUIREMENT IS WAIVED ADMINISTRATIVELY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, OCTOBER 8, 1953:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF MR. CARLINGTON E. FOSTER, CHIEF COMMISSARY STEWARD, UNITED STATES MARITIME SERVICE, FOR THE DIFFERENCE IN QUARTERS ALLOWANCE AT THE RATE OF $77.10 PER MONTH AND AT THE RATE OF $96.90 PER MONTH FOR OVER TWO DEPENDENTS THE PERIOD MAY 1, 1952, TO MARCH 1, 1953.

MR. FOSTER CLAIMS THE ALLOWANCE COMPUTED AT THE HIGHER RATE AUTHORIZED FOR OVER TWO DEPENDENTS BY SECTION 302 (F) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, EFFECTIVE MAY 1, 1952, BY SECTION 1 (C) OF THE ACT OF MAY 19, 1952, 66 STAT. 79, IN VIEW OF THE PROVISIONS OF SECTION 509 OF THE 1949 ACT WHICH WAS AMENDED BY SECTION 3 OF THE SAID ACT OF MAY 19, 1952, 66 STAT. 79, 80, TO READ AS FOLLOWS:

SEC. 509. THE PROVISIONS OF TITLE II AND III OF THIS ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING, NOT AS MEMBERS OF ANY OF THE UNIFORMED SERVICES, BUT WHOSE PAY OR ALLOWANCES, OR BOTH, UNDER EXISTING LAW OR REGULATION PROMULGATED PURSUANT TO LAW ARE ASSIMILATED TO THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS, WARRANT OFFICERS, OR ENLISTED PERSONS OF ANY RANK OR GRADE OF ANY OF THE UNIFORMED SERVICES.

IN A LETTER DATED APRIL 7, 1953, FROM THE CHIEF, OFFICE OF MARITIME TRAINING, MARITIME ADMINISTRATION, WRITTEN IN RESPONSE TO A REQUEST FROM THIS OFFICE FOR A REPORT RELATIVE TO THE CLAIM, IT IS STATED THAT MR. FOSTER HAS THREE DEPENDENTS OF RECORD FOR THE PERIOD IN QUESTION AND THAT HIS PAY GRADE IS E-7, HIS RATE OF PAY BEING $221.68 PER MONTH PLUS A BASIC QUARTERS ALLOWANCE OF $77.10 PER MONTH. IT IS FURTHER STATED THAT BASIC QUARTERS ALLOWANCE OF $77.10 PER MONTH IS AUTHORIZED BY SECTION 310.21 (A) (1), GENERAL ORDER 23, REVISED, SUPPLEMENT 3, AMENDMENT 1 ( MAY 29, 1952), WSA FUNCTION SERIES, REGULATIONS FOR THE GOVERNMENT OF THE UNITED STATES MARITIME SERVICE, WHICH PROVIDES FOR THE PAY AND ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE ON ACTIVE ADMINISTRATIVE DUTY; THAT THE AMENDMENT WHICH HAS THE EFFECT OF LAW SINCE IT WAS ISSUED PURSUANT TO 46 U.S.C. 1126, PROVIDES, INTER ALIA, THAT ENROLLEES BELOW OFFICER RANK WHO ARE ENTITLED TO RECEIVE BASIC ALLOWANCES FOR QUARTERS SHALL BE ENTITLED TO AN INCREASE OF SUCH ALLOWANCES IN AN AMOUNT EQUAL TO 14 PERCENT OF THE MONTHLY RATES ACCORDING TO THE PAY GRADE TO WHICH ASSIGNED FOR BASIC PAY PURPOSES AS PROVIDED IN SECTION 302 (F) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, THAT SAID ENROLLEES, HOWEVER, WERE NOT ACCORDED THE BENEFITS OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, AT THE TIME OF ITS ENACTMENT OR AS IT WAS AMENDED BY THE ACT OF MAY 19, 1952, SUPRA, SINCE SUCH LEGISLATION WAS ENACTED TO PROVIDE ADDITIONAL ALLOWANCES FOR THE DEPENDENTS OF ENLISTED PERSONNEL OF THE ARMED SERVICES. HENCE, THE CLAIM WAS ADMINISTRATIVELY DISAPPROVED.

THE LEGISLATIVE HISTORY OF THE ACT OF MAY 19, 1952, SHOWS THAT SECTION 3 THEREOF WAS INTRODUCED BY SENATOR JOHNSON OF COLORADO AS AN AMENDMENT TO H.R. 5715, WHICH BECAME THE SAID ACT, AND IN EXPLAINING ITS PURPOSE HE STATED THAT "THIS IS A TECHNICAL AMENDMENT WHICH EXTENDS THE BENEFITS OF THE BILL TO THOSE IN THE MARITIME SERVICE WHOSE SALARIES ARE DETERMINED AS ARE THE SALARIES OF THE PERSONNEL IN THE COAST GUARD.' CONGRESSIONAL RECORD, MARCH 31, 1952, PAGE 3197.

GENERAL ORDER 23, REVISED, SUPPLEMENT 3, WSA FUNCTION SERIES, DATED DECEMBER 20, 1949, AMENDED SECTION 310.21 OF THE REGULATIONS FOR THE GOVERNMENT OF THE UNITED STATES MARITIME SERVICE TO PROVIDE THAT EFFECTIVE JANUARY 1, 1950," ENROLLEES OF THE MARITIME SERVICE WHILE ON ACTIVE ADMINISTRATIVE DUTY SHALL RECEIVE THE SAME PAY AND ALLOWANCES ACCORDING TO CUMULATIVE YEARS OF SERVICE OF THEIR RESPECTIVE RANKS, GRADES AND RATINGS AS ARE NOW OR SHALL HEREAFTER BE PRESCRIBED FOR PERSONNEL OF THE COAST GUARD WITH SIMILAR RANKS, GRADES AND RATINGS IN TITLES II AND III OF THE CAREER COMPENSATION ACT OF 1949 * * * .' IN ACCORDANCE WITH THAT ORDER THE INSTRUCTIONS FOR THE UNITED STATES MARITIME SERVICE PRESCRIBED THE BASIC PAY AND ALLOWANCE RATES SET FORTH IN THE SAID TITLES II AND III OF THE 1949 ACT. WHILE IT IS STATED THAT THE MARITIME SERVICE DID NOT "ACCORD" TO ITS ADMINISTRATIVE ENROLLEES THE INCREASED RATES OF QUARTERS ALLOWANCE AUTHORIZED FOR ENLISTED PERSONNEL BY THE DEPENDENTS ASSISTANCE ACT OF 1950, SUPRA, THE PAY AND ALLOWANCES OF ENROLLEES, WHILE SERVING ON ACTIVE ADMINISTRATIVE DUTY, WERE ASSIMILATED TO THE PAY AND ALLOWANCES OF PERSONS OF CORRESPONDING RANKS, GRADES AND RATINGS IN THE COAST GUARD AT THE TIME OF ENACTMENT ON MAY 19, 1952, OF THE AMENDMENT TO THE SAID SECTION 509. HENCE, THE PLAIN LANGUAGE OF THAT SECTION AS AMENDED NOW OPERATES AS A POSITIVE STATUTORY PRESCRIPTION OF THE RATES OF PAY AND ALLOWANCES SET FORTH IN TITLE II AND III OF THE 1949 ACT, AS AMENDED, FOR ENROLLEES OF THE MARITIME SERVICE WHILE SERVING ON ACTIVE ADMINISTRATIVE DUTY AND, HENCE, HAS SUPERSEDED THE AUTHORITY VESTED IN THE MARITIME ADMINISTRATION BY SECTION 216 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1126 (A) TO "FIX THE RATES OF PAY OF SUCH PERSONS.'

SINCE ENROLLEES BELOW OFFICER RANK SERVING ON ACTIVE ADMINISTRATIVE DUTY ARE ENTITLED TO THE INCREASED QUARTERS ALLOWANCES AUTHORIZED BY SECTION 302 (F) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 795, READING AS FOLLOWS:

SEC. 4 FOR THE DURATION OF THIS ACT SECTION 302 OF THE ACT OF OCTOBER 12, 1949 ( PUBLIC LAW 351, EIGHTY-FIRST CONGRESS), IS HEREBY AMENDED BY ADDING THE FOLLOWING NEW SUBSECTIONS:

(G) SUBJECT TO THE PROVISIONS OF THIS SECTION, ENLISTED MEMBERS WITHOUT DEPENDENTS SHALL BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $45 PER MONTH.

(H) THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS PROVIDED IN SUBSECTION (F) OF THIS SECTION FOR ENLISTED MEMBERS WITH DEPENDENTS SHALL BE MADE ONLY FOR SUCH PERIOD AS THE ENLISTED MEMBER HAS IN EFFECT AN ALLOTMENT OF PAY NOT LESS THAN THE SUM OF THE BASIC ALLOWANCE FOR QUARTERS TO WHICH HE IS ENTITLED PLUS $40 (OR IN THE CASE OF ENLISTED MEMBERS IN PAY GRADES E-4 AND E-5, $60; OR IN THE CASE OF ENLISTED MEMBER IN PAY GRADES E-6 AND E-7, $80), FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED: PROVIDED, THAT SUCH ALLOTMENT SHALL NOT BE REQUIRED, (1) FOR THE CALENDAR MONTH IN WHICH SUCH MEMBER ENTERS ON ACTIVE DUTY IN A PAY STATUS IF THE ALLOTMENT IS EFFECTIVE FROM THE FOLLOWING MONTH; (2) FOR THE CALENDAR MONTH IN WHICH SUCH MEMBER IS DISCHARGED, IF NOT IMMEDIATELY REENLISTED; (3) FOR THE CALENDAR MONTH IN WHICH SUCH MEMBER IS RELEASED FROM ACTIVE DUTY; (4) FOR THE CALENDAR MONTH IN WHICH DEPENDENCY CEASES; (5) FOR THE CALENDAR MONTH IN WHICH DEPENDENCY COMMENCES IF THE ALLOTMENT IS EFFECTIVE FROM THE FOLLOWING MONTH; (6) FOR THE CALENDAR MONTH IN WHICH SUCH MEMBER IS ASSIGNED TO QUARTERS FOR HIMSELF AND HIS DEPENDENTS OR FOR THE CALENDAR MONTH IN WHICH SUCH ASSIGNMENT IS TERMINATED: PROVIDED FURTHER, THAT SUCH ALLOTMENT MAY BE INITIATED, CONTINUED, MODIFIED, OR DISCONTINUED IN ACCORDANCE WITH SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE DEPARTMENT ONCERNED: AND PROVIDED FURTHER, THAT THE MINIMUM ALLOTMENT REQUIRED FOR ANY MONTH SHALL BE BASED ON THE LOWEST RATE OF PAY GRADE IN WHICH THE MEMBER IS SERVING DURING SUCH MONTH.

(I) THE ALLOTMENT REQUIRED BY SUBSECTION (H) OF THIS SECTION SHALL BE PAID IN OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS AS MAY BE SPECIFIED BY THE ENLISTED MEMBER CONCERNED, SUBJECT TO SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE.

(J) ANY DELAY IN INITIATING AN ALLOTMENT AS REQUIRED BY THIS SECTION SHALL NOT INVALIDATE ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS, PROVIDED THAT SUCH ALLOTMENT IS MADE RETROACTIVE FOR SUCH PERIOD AS THE MEMBER MAY ELECT TO CLAIM THE ALLOWANCE FOR HIS DEPENDENT OR DEPENDENTS. IF THE SECRETARY CONCERNED FINDS THAT SUCH DELAY WAS CAUSED BY THE EXIGENCIES OF THE SERVICE HE MAY WAIVE THE ALLOTMENT REQUIREMENT, OR THE ADDITIONAL INCREMENT THERETO, AS APPLICABLE, FOR SUCH RETROACTIVE PERIOD.

(K) THE ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR BY THIS SECTION SHALL BE SUBSTANTIATED IN SUCH MANNER AND IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE.

IT WILL BE SEEN THAT UNDER THE FOREGOING PROVISIONS PAYMENT OF THE INCREASED ALLOWANCE FOR QUARTERS TO AN ENLISTED MEMBER WITH DEPENDENTS GENERALLY IS CONTINGENT UPON SUCH MEMBER HAVING IN EFFECT AN ALLOTMENT OF HIS PAY FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED, SUCH ALLOTMENT TO BE IN AN AMOUNT NOT LESS THAN THE SUM OF THE BASIC ALLOWANCE FOR QUARTERS TO WHICH HE IS ENTITLED PLUS THE ADDITIONAL AMOUNT SPECIFICALLY PROVIDED BY THE STATUTE. IT IS UNDERSTOOD THAT ENROLLEES OF THE MARITIME SERVICE HAVE NOT HAD IN EFFECT ALLOTMENTS OF PAY FOR THE SUPPORT OF THEIR DEPENDENTS, IT BEING NOTED THAT ARTICLE 1114 OF THE UNITED STATES MARITIME SERVICE INSTRUCTIONS PROVIDES THAT NO ALLOTMENTS OF PAY SHALL BE REGISTERED FOR ANY ENROLLEE OF THE MARITIME SERVICE.

IN VIEW OF THE APPARENT MISUNDERSTANDING AS TO THE LEGAL EFFECT OF THE AMENDMENT OF DECEMBER 20, 1949, TO SECTION 310.21 OF THE MARITIME SERVICE REGULATIONS, AND OF SECTION 509 OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED BY THE 1952 ACT, THIS OFFICE WILL NOT QUESTION PAYMENTS, MADE PRIOR TO RECEIPT OF THIS DECISION, OF INCREASED QUARTERS ALLOWANCES ON ACCOUNT OF THE DEPENDENTS OF ENROLLEES BELOW OFFICER RANK EVEN THOUGH THE ENROLLEES HAVE NOT HAD IN EFFECT ALLOTMENTS FOR THE SUPPORT OF THEIR DEPENDENTS AS PROVIDED BY THE STATUTE, PROVIDING SUCH PAYMENTS WERE OTHERWISE CORRECT AND IN ACCORDANCE WITH THE MARITIME SERVICE REGULATIONS. HOWEVER, PAYMENTS OF INCREASED QUARTERS ALLOWANCES ON ACCOUNT OF THE DEPENDENTS OF ENROLLEES BELOW OFFICER RANK MADE SUBSEQUENT TO OCTOBER 31, 1953, WILL BE QUESTIONED IN THE AUDIT UNLESS SUCH ENROLLEES HAVE IN EFFECT ALLOTMENTS OF PAY FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED, AS REQUIRED BY THE ABOVE-QUOTED AMENDMENT OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949 MADE BY SECTION 4 OF THE 1950 ACT, AND SUCH REGULATIONS AS YOU MAY ISSUE PURSUANT THERETO, SUCH AMENDMENT, AS AN EXISTING PART OF TITLE III OF THE CAREER COMPENSATION ACT, HAVING BEEN MADE APPLICABLE TO THE ADMINISTRATIVE ENROLLEES OF THE MARITIME SERVICE BY SECTION 3 OF THE ACT OF MAY 19, 1952, SUPRA. THE AMENDED LEGISLATION MAKES NO DISTINCTION IN THAT RESPECT BETWEEN ENLISTED MEMBERS OF THE ARMED FORCES AND OTHER PERSONNEL MADE SUBJECT THERETO.

WITH RESPECT TO SUCH CASES AS THAT OF MR. FOSTER-S, IN WHICH CLAIM IS MADE FOR THE DIFFERENCE BETWEEN THE AMOUNT OF QUARTERS ALLOWANCE WHICH HE HAS BEEN PAID FOR THE PERIOD SINCE MAY 1, 1952, AND THE AMOUNT AUTHORIZED BY THE SAID ACT OF MAY 19, 1952, FOR A MEMBER OF HIS GRADE AND NUMBER OF DEPENDENTS, IT WILL BE NOTED THAT SUBSECTION (J) OF SECTION 302 OF THE 1949 ACT AS ADDED BY SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, PROVIDES THAT A DELAY IN INITIATING AN ALLOTMENT AS REQUIRED BY THE SECTION SHALL NOT INVALIDATE ENTITLEMENT TO THE ALLOWANCE PROVIDED THAT AN ALLOTMENT IS MADE RETROACTIVE TO COVER THE PERIOD FOR WHICH THE MEMBER ELECTS TO CLAIM THE ALLOWANCE FOR HIS DEPENDENTS, AND THAT IF THE SECRETARY CONCERNED FINDS THAT THE DELAY WAS CAUSED BY THE EXIGENCIES OF THE SERVICE HE MAY WAIVE THE ALLOTMENT REQUIREMENT OR THE ADDITIONAL INCREMENT THERETO FOR SUCH PERIOD. IN VIEW OF SUCH PROVISIONS THE ACCOUNTS OF ENROLLEES ENTITLED TO AN ADDITIONAL AMOUNT UNDER THE ACT OF MAY 19, 1952, MAY BE ADJUSTED ADMINISTRATIVELY PROVIDED THE REQUIRED ALLOTMENTS ARE INSTITUTED RETROACTIVELY TO COVER THE PERIOD INVOLVED OR, IF YOU FIND "THAT SUCH DELAY WAS CAUSED BY THE EXIGENCIES OF THE SERVICE," YOU MAY WAIVE SUCH REQUIREMENT IN ADJUSTING SUCH ACCOUNTS. ANY SUCH CLAIMS THAT MAY NOT BE ADJUSTED ADMINISTRATIVELY SHOULD BE FORWARDED TO THE CLAIMS DIVISION OF THIS OFFICE FOR SETTLEMENT ACCOMPANIED BY A REPORT WITH RESPECT TO ANY ALLOTMENT THAT MAY HAVE BEEN INSTITUTED RETROACTIVELY OR THE WAIVER ACTION, IF ANY, TAKEN IN THE CASE.

THE CLAIM OF MR. FOSTER IS ENCLOSED FOR ADMINISTRATIVE CONSIDERATION AND DISPOSITION IN ACCORDANCE WITH THE FOREGOING, THERE BEING NO AUTHORITY UNDER WHICH THIS OFFICE MAY ALLOW HIM THE ADDITIONAL AMOUNT CLAIMED IN THE ABSENCE OF EVIDENCE THAT HE HAS AUTHORIZED THE REQUIRED ALLOTMENT TO COVER THE PERIOD INVOLVED OR THAT SUCH ALLOTMENT REQUIREMENT HAS BEEN WAIVED.