B-125311, NOVEMBER 7, 1955, 35 COMP. GEN. 276

B-125311, NOVEMBER 7, 1955, 35 COMP. GEN. 276

SAVED PAY AND ALLOWANCES - PAY AND ALLOWANCES OF PERMANENT GRADE GREATER THAN TEMPORARY GRADE A COAST GUARD COMMISSIONED WARRANT OFFICER WHO, WHILE SERVING AS A TEMPORARY LIEUTENANT AND RECEIVING THE PAY AND ALLOWANCES UNDER THE SAVED PAY PROVISIONS OF 34 U.S.C. 350F (A), IS ADVANCED IN HIS PERMANENT GRADE OF COMMISSIONED WARRANT OFFICER BUT CONTINUES SERVING IN HIS TEMPORARY GRADE OF LIEUTENANT IS NOT, UNDER THE PROVISIONS OF 34 U.S.C. 135A (B), ENTITLED TO THE HIGHER PAY AND ALLOWANCES OF HIS PERMANENT GRADE.

TO P. D. SHOST, UNITED STATES COAST GUARD, NOVEMBER 7, 1955:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1955, WITH ENCLOSURES, FORWARDED THROUGH HEADQUARTERS, U.S. COAST GUARD, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER DRAWN IN FAVOR OF JAMES T. SANDWICH, COVERING HIS CLAIM FOR THE DIFFERENCE BETWEEN ACTIVE-DUTY PAY AND ALLOWANCES COMPUTED ON THE BASIS OF HIS PERMANENT STATUS AS A COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-4, AND THE ACTIVE DUTY PAY AND ALLOWANCES PAID TO HIM UNDER HIS PRIOR APPOINTMENT AS LIEUTENANT FOR TEMPORARY SERVICE FOR THE PERIOD FROM MARCH 1, 1955, TO JUNE 30, 1955, INCLUSIVE.

IT IS SHOWN THAT FOLLOWING PRIOR COAST GUARD SERVICE THE OFFICER EXECUTED AN OATH OF OFFICE AS A PERMANENT PAY CLERK (WARRANT OFFICER), ON SEPTEMBER 28, 1948, AND THAT HE WAS REAPPOINTED IN THE COAST GUARD ON THE SAME DAY AS A CHIEF PAY CLERK (COMMISSIONED WARRANT OFFICER), FOR TEMPORARY SERVICE. EFFECTIVE JANUARY 1, 1950, UNDER THE AUTHORITY OF SECTION 201 (C), OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 232 (C), HE WAS PLACED IN WARRANT PAY GRADE W-3. HE EXECUTED A NEW OATH OF OFFICE ON SEPTEMBER 29, 1950, AS A PERMANENT CHIEF PAY CLERK (COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-3) IN THE U.S. COAST GUARD. IT IS FURTHER SHOWN THAT UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603-605, AS AMENDED, 34 U.S.C. 350-350K, HE ACCEPTED AN APPOINTMENT FOR TEMPORARY SERVICE AS LIEUTENANT (JG) ON JUNE 21, 1951, AND AS LIEUTENANT ON SEPTEMBER 1, 1954, ALSO FOR TEMPORARY SERVICE. HE WAS APPOINTED BY THE PRESIDENT ON FEBRUARY 11, 1955, AND IT IS INDICATED THAT HE EXECUTED THE OATH FOR THIS OFFICE ON MARCH 1, 1955. THE OFFICER COMPLETED 22 CUMULATIVE YEARS OF SERVICE ON SEPTEMBER 29, 1951, FOR THE PURPOSE OF COMPUTING HIS BASIC PAY UNDER THE PROVISIONS OF SECTION 201 (A), OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, 37 U.S.C. 232 (A).

SECTION 7 (A), OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED, 34 U.S.C. 350F (A), PROVIDES IN PERTINENT PART:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT * * * 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 COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED 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 RANK OR GRADE: * * *

IN ACCORDANCE WITH THESE STATUTORY PROVISIONS THE OFFICER HAS BEEN ENTITLED, SINCE HIS APPOINTMENT AS A COMMISSIONED OFFICER ON JUNE 21, 1951, FOR TEMPORARY SERVICE, TO BE PAID EITHER THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED BY HIM OR THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT. SEE SUBPARAGRAPH 4A, PARAGRAPH 2B01187 AND SUBPARAGRAPHS 1 AND 2, PARAGRAPH 2B01473, VOLUME 2, COAST GUARD COMPTROL MANUAL. THE MAXIMUM AMOUNT THUS "SAVED" TO HIM IS THE TOTAL OF PAY AND ALLOWANCES WHICH HE WAS ENTITLED TO RECEIVE AS A PERMANENT COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-3, WITH DEPENDENTS AND WITH OVER 18 CUMULATIVE YEARS OF SERVICE AT THE TIME OF HIS TEMPORARY APPOINTMENT ON JUNE 21, 1951, TO COMMISSIONED OFFICER GRADE. 23 COMP. GEN. 21; 26 COMP. GEN. 223.

THE COAST GUARD PAY RECORDS SHOW THAT HE WAS CREDITED "SAVED" PAY AND ALLOWANCES ON THAT BASIS FOR THE PERIOD JUNE 21, 1951, TO APRIL 30, 1952, INCLUSIVE. EFFECTIVE MAY 1, 1952, THE ACTIVE-DUTY PAY AND ALLOWANCES PAYABLE TO HIM AS A LIEUTENANT (JG), PAY GRADE O-2, WITH DEPENDENTS AND WITH OVER 22 CUMULATIVE YEARS OF SERVICE, BASED ON THE INCREASE IN RATES PRESCRIBED IN SECTION 1 OF THE ACT APPROVED MAY 19, 1952, 66 STAT. 79, 37 U.S.C. 232A, EXCEEDED THE "SAVED" PAY AND ALLOWANCES OF HIS PERMANENT COMMISSIONED WARRANT OFFICER STATUS. ACCORDINGLY, THE SUBJECT OFFICER'S RIGHT TO THE "SAVED" PAY AND ALLOWANCES OF HIS PERMANENT COMMISSIONED WARRANT OFFICER STATUS CEASED ON APRIL 30, 1952, AND ON MAY 1, 1952, HE BECAME ENTITLED TO THE HIGHER PAY AND ALLOWANCES OF A LIEUTENANT (JG). THEREAFTER, ON SEPTEMBER 1, 1954, AS A RESULT OF HIS APPOINTMENT UNDER THE 1941 ACT AS A LIEUTENANT, FOR TEMPORARY SERVICE, HE BECAME ENTITLED, EFFECTIVE FROM THAT DATE, TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF A LIEUTENANT, PAY GRADE O-3, WITH DEPENDENTS AND WITH OVER 22 CUMULATIVE YEARS OF SERVICE. THE COAST GUARD PAY RECORDS SHOW THAT HE WAS PAID ACTIVE DUTY PAY AND ALLOWANCES ON THAT BASIS FOR THE PERIOD FROM MAY 1, 1952, TO JUNE 30, 1955, INCLUSIVE.

IT APPEARS FROM THE ENCLOSURES RECEIVED WITH THE LETTER OF AUGUST 3, 1955, THAT THE SUBJECT CLAIM IS BASED UPON THE PROVISIONS OF SECTION 3 (B) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 158, 34 U.S.C 135A (B). 1952 USED., SUPP. II, PROVIDING AS FOLLOWS:

THE APPOINTMENT OF A PERMANENT WARRANT OFFICER TO HIGHER TEMPORARY WARRANT OF ANY COMMISSIONED OFFICER GRADE SHALL NOT OPERATE TO VACATE HIS PERMANENT WARRANT OFFICER GRADE, NOR SHALL IT IN ANY WAY PREJUDICE ANY RIGHT, PRIVILEGE, BENEFIT, OR PROMOTION STATUS TO WHICH HE MAY BE ENTITLED BY VIRTUE OF HIS PERMANENT WARRANT OFFICER GRADE.

THE PROVISIONS OF THE WARRANT OFFICER ACT OF 1954 BECAME EFFECTIVE ON NOVEMBER 1, 1954, AND ARE PROSPECTIVE, ONLY, IN OPERATION. HENCE, EVEN IF THE SUBJECT OFFICER'S STATUS OTHERWISE CAME WITHIN THE SCOPE OF SECTION 3 (B) OF THE ACT, SINCE HIS APPOINTMENT UNDER THE 1941 ACT TO THE HIGHER TEMPORARY COMMISSIONED OFFICER GRADE OF LIEUTENANT WAS ACCOMPLISHED ON SEPTEMBER 1, 1954, BEFORE THE EFFECTIVE DATE OF THE WARRANT OFFICER ACT OF 1954, THE PROVISIONS OF SECTION 3 (B) OF THAT ACT WOULD NOT APPEAR TO BE FOR APPLICATION IN DETERMINING HIS RIGHTS. IN ADDITION, IT SEEMS PLAIN THAT SECTION (B) DOES NOT OPERATE TO PREVENT LOSS OF RIGHTS OR BENEFITS ATTACHING TO A PERMANENT GRADE STATUS UNLESS THAT STATUS IS IN EXISTENCE ON THE DATE WHEN THE TEMPORARY APPOINTMENT INVOLVED BECOMES EFFECTIVE.

THE PERMANENT APPOINTMENT OF MR. SANDWICH AS A COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-4, BECAME EFFECTIVE ON MARCH 1, 1955, AND HE HAS RECEIVED NO APPOINTMENT TO A TEMPORARY COMMISSIONED OFFICER GRADE SINCE THAT DATE. IT SEEMS TO FOLLOW THAT THE PROVISIONS OF SECTION 3 (B) OF THE 1954 ACT DO NOT OPERATE TO SAVE HIM, OR CONFER UPON HIM, THE RIGHTS AND BENEFITS WHICH WOULD ACCRUE TO HIM IN HIS PERMANENT (W-4) WARRANT OFFICER STATUS IF HE HAD NO TEMPORARY COMMISSIONED OFFICER STATUS. THAT CONNECTION IT IS NOTED THAT THE OFFICER'S PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER, WARRANT PAY GRADE W-4, WAS ACCOMPLISHED UNDER THE AUTHORITY OF SECTION 228, TITLE 14, U.S. CODE, AND THE PROVISIONS OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 157-168. PARAGRAPH 4 OF THE APPOINTMENT LETTER OF FEBRUARY 24, 1955, ADDRESSED TO THE OFFICER BY THE COMMANDANT, U.S. COAST GUARD, IS AS FOLLOWS:

IF YOU ARE PRESENTLY SERVING IN THE COMMISSIONED GRADE OF ENSIGN OR HIGHER FOR THE TEMPORARY SERVICE, THIS APPOINTMENT IN NO WAY AFFECTS SUCH TEMPORARY STATUS. THE APPOINTMENT CONCERNS ITSELF SOLELY WITH YOUR PERMANENT WARRANT STATUS. HOWEVER, PAY AND ALLOWANCES OF THE WARRANT GRADE DO NOT BEGIN TO ACCRUE TO YOU UNTIL SUCH TIME AS YOU MAY BE REVERTED TO AND COMMENCE SERVING IN THE PERMANENT WARRANT GRADE INDICATED.

THUS IT IS APPARENT THAT THE SUBJECT OFFICER'S PERMANENT APPOINTMENT TO A HIGHER COMMISSIONED WARRANT OFFICER RANK, WARRANT PAY GRADE W-4, WHICH BECAME EFFECTIVE MARCH 1, 1955, WAS ACCOMPLISHED SOLELY TO ACCORD HIM A NEW PERMANENT WARRANT OFFICER STATUS IN THE COAST GUARD AND THAT IT WAS INTENDED THAT HIS TEMPORARY STATUS, UNDER HIS APPOINTMENT OF SEPTEMBER 1, 1954, TO THE COMMISSIONED OFFICER GRADE OF LIEUTENANT FOR TEMPORARY SERVICE, MADE UNDER THE PROVISIONS OF THE 1941 LAW, AS AMENDED, WOULD REMAIN UNAFFECTED. IT IS OUR VIEW THAT THE RESTRICTION CONTAINED IN PARAGRAPH 4 OF THE LETTER OF FEBRUARY 24, 1955, PROVIDING THAT THE PAY AND ALLOWANCES OF HIS NEW PERMANENT WARRANT GRADE WOULD NOT BEGIN TO ACCRUE UNTIL HE SHOULD BE REVERTED TO AND COMMENCES TO SERVE IN THAT GRADE IS PROPER UNDER SECTION 7 (A) OF THE 1941 LAW AND DOES NOT CONFLICT WITH THE PROVISIONS OF SECTION 3 (B) OF THE 1954 ACT.

ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED AND THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.