B-121744, FEB 18, 1955

B-121744, FEB 18, 1955

PRECIS-UNAVAILABLE

N. H. BROWN, USN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1954, FORWARDED TO THIS OFFICE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION WHETHER THE PAY ACCOUNT OF ENSIGN LLOYD H. GIBBONEY, U.S. NAVY, MAY BE CREDITED WITH THE SAVED PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-3, WITH OVER 14 YEARS' SERVICE.

IT APPEARS THAT MR. GIBBONEY ACCEPTED A PERMANENT APPOINTMENT AS ENSIGN, CEC, U.S. NAVY, ON SEPTEMBER 10, 1954, FOR LIMITED DUTY PURSUANT TO THE PROVISIONS OF SECTION 404(A) AND (B) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 870, 34 U.S.C. 211CA) AND (B), RESPECTIVELY. IT FURTHER APPEARS THAT ON THE PRECEDING DAY, SEPTEMBER 9, 1954, HIS PERMANENT STATUS IN THE U.S. NAVY WAS THAT OF CHIEF MACHINIST'S MATE (ENLISTED PAY GRADE, E-7). HOWEVER, HE WAS ACTUALLY SERVING ON THAT DATE UNDER A TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER AND RECEIVING PAY AND ALLOWANCES IN WARRANT PAY GRADE, W-3, WITH OVER 14 YEARS' SERVICE.

YOU STATE THAT THE PAY ACCOUNT OF ENSIGN GIBBONEY IS BEING CREDITED WITH THE BASIC PAY AND ALLOWANCES OF AN ENSIGN, WITH OVER 14 YEARS' SERVICE, AND THAT SINCE THE TOTAL PAY AND ALLOWANCES WHICH HE WAS RECEIVING ON SEPTEMBER 9, 1954, AS A COMMISSIONED WARRANT OFFICER EXCEED THE TOTAL PAY AND ALLOWANCES WHICH HE IS RECEIVING AS AN ENSIGN WITH OVER 14 YEARS' SERVICE, THE OFFICER HAS REQUESTED THAT THE GREATER PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AS A TEMPORARY COMMISSIONED WARRANT OFFICER BE SAVED TO HIM UNDER THE PROVISIONS OF SECTION 404(J) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 872, 34 U.S.C. 211C (J).

SECTION 404(A), 61-STAT. 870, AUTHORIZES THE PRESIDENT TO PERMANENTLY APPOINT IN THE REGULAR NAVY IN COMMISSIONED GRADES, CERTAIN CLASSES OF PETTY OFFICERS, WARRANT OFFICERS, AND COMMISSIONED WARRANT OFFICERS FOR THE PERFORMANCE OF LIMITED DUTY ONLY IN THE TECHNICAL FIELDS INDICATED BY THEIR WARRANTS OR RATINGS. THE APPOINTMENT OF SUCH OFFICERS IN THE STAFF CORPS OF THE REGULAR NAVY IS LIMITED TO THE SUPPLY CORPS AND CIVIL ENGINEERING CORPS. SEE SECTION 404(B), 61 STAT. 871.

SECTION 404(J) OF THE ACT PROVIDES THAT "NO OFFICER APPOINTED FOR LIMITED DUTY ONLY SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT BY VIRTUE OF HIS PERMANENT STATUS."

THE STATUTE THUS CLEARLY PROVIDES THAT AN OFFICER APPOINTED FOR LIMITED DUTY IN ACCORDANCE WITH SECTION 404(A) IS SAVED ONLY FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT "BY VIRTUE OF HIS PERMANENT STATUS." AN OFFICER SO APPOINTED FOR LIMITED DUTY IS NOT SAVED FROM ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH APPOINTMENT BUT ONLY FROM A REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS THEN ENTITLED BY VIRTUE OF HIS PERMANENT STATUS IN THE NAVY. COMPARE THE SECOND PROVISO IN SECTION 302(E) OF THE ACT, 61 STAT. 830, CONSIDERED IN DECISION OF JULY 7, 1950, 30 COMP. GEN. 2, 6.

AT THE TIME ENSIGN GIBBONEY WAS PERMANENTLY APPOINTED AS A LIMITED DUTY OFFICER HE WAS IN RECEIPT OF THE GREATER PAY AND ALLOWANCES OF HIS TEMPORARY RANK AS A COMMISSIONED WARRANT OFFICER. HENCE HE WAS NOT THEN ENTITLED TO ANY PAY AND ALLOWANCES BY VIRTUE OF HIS PERMANENT STATUS IN THE NAVY (ENLISTED PAY GRADE, E-7) EITHER ON A SAVED PAY BASIS UNDER OTHER PROVISIONS OF LAW OR OTHERWISE. ACCORDINGLY, ENSIGN GIBBONEY IS NOT ENTITLED TO SAVED PAY BASED ON HIS TEMPORARY RANK OF COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE, W-3, BUT EFFECTIVE FROM SEPTEMBER 10, 1954, AS A LIMITED DUTY OFFICER IN THE STAFF CORPS (CEC) OF THE REGULAR NAVY, HE IS ENTITLED ONLY TO THE PAY OF HIS PERMANENT GRADE AS ENSIGN, WITH OVER 14 YEARS' SERVICE.