B-139909, AUG. 6, 1959

B-139909, AUG. 6, 1959

TO FIRST LIEUTENANT D. L. TISDEL, USAF, ACCOUNTING AND FINANCE OFFICER:

BY LETTER DATED JUNE 11, 1959, THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, COMPTROLLER, U.S. AIR FORCE, FORWARDED YOUR LETTER DATED FEBRUARY 24, 1959, PRESENTING FOR ADVANCE DECISION A MILITARY PAY ORDER DATED FEBRUARY 19, 1959, AUTHORIZING THE ADJUSTMENT OF THE PAY OF AIRMAN WILLIAM E. BUCHANAN, AF 1436 1103, FOR THE PERIOD BEGINNING OCTOBER 8, 1958, TO GIVE HIM CREDIT FOR SAVED PAY UNDER RATES IN EFFECT ON MAY 31, 1958. YOUR REQUEST FOR DECISION WAS ASSIGNED AIR FORCE REQUEST NO. 423 BY THE DEPARTMENT OF DEFENSE, MILITARY AND PAY ALLOWANCE COMMITTEE.

IT APPEARS THAT AS OF MAY 31, 1958, THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, 72 STAT. 122, AIRMAN BUCHANAN WAS ENTITLED TO THE BASIC PAY OF AN AIRMAN SECOND CLASS WITH OVER 8 YEARS OF SERVICE AT THE RATE OF $148.20 A MONTH AND THAT UNDER THE SAVINGS PROVISION OF THAT ACT HE RECEIVED PAY AT THAT RATE FROM JULY 1 THROUGH OCTOBER 7, 1958. IT ALSO APPEARS THAT BECAUSE OF REDUCTIONS IN RATINGS HE, AS AN ENLISTED MAN WITH OVER 8 YEARS OF SERVICE, WAS PAID BASIC PAY AS AN AIRMAN THIRD CLASS FROM OCTOBER 8 THROUGH NOVEMBER 16, 1958, AT $108 A MONTH, AND AS AN AIRMAN BASIC THEREAFTER AT THE RATE OF $105 A MONTH. THOSE ARE THE RATES WHICH WERE AUTHORIZED EFFECTIVE JUNE 1, 1958, UNDER THE PROVISIONS OF THE ACT OF MAY 20, 1958.

THE MILITARY PAY ORDER HERE INVOLVED PROPOSES TO ADJUST AIRMAN BUCHANAN'S PAY ON THE BASIS THAT, NOTWITHSTANDING THE REDUCTIONS IN RATINGS, HIS PAY, UNDER THE SAVINGS PROVISIONS OF THE ACT OF MAY 20, 1958, SHOULD HAVE BEEN COMPUTED AT THE RATES IN EFFECT ON MAY 31, 1958, FOR THE REDUCED RATINGS. THE MILITARY PAY ORDER CITES OUR DECISION DATED SEPTEMBER 26, 1950, 30 COMP. GEN. 119, AS AUTHORITY FOR THE ADJUSTMENT. YOU INDICATE IN YOUR LETTER DATED FEBRUARY 24, 1959, HOWEVER, THAT, SINCE THAT DECISION RELATES TO THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, DOUBT EXISTS AS TO WHETHER IT IS PROPERLY FOR APPLICATION IN THE PRESENT CASE.

THE DECISION OF SEPTEMBER 26, 1950, RECOGNIZED THAT THE SAVINGS PROVISIONS IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 SAVED A MEMBER OTHERWISE ENTITLED TO ITS BENEFITS FROM ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION, AS DEFINED THEREIN, WHICH HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949; THAT THE THIRD PROVISO IN THAT SECTION CONTEMPLATED THAT A MEMBER RECEIVING SAVED TOTAL COMPENSATION MIGHT THEREAFTER FAIL TO QUALIFY FOR A PART OF SUCH TOTAL COMPENSATION BUT SUCH FAILURE TO QUALIFY FOR A PART OF THE SAVED TOTAL COMPENSATION WOULD NOT NECESSARILY TERMINATE HIS RIGHT TO SAVED TOTAL COMPENSATION; AND THAT THE PRIMARY PURPOSE OF SECTION 515 (B) WAS TO PERMIT MEMBERS OTHERWISE ENTITLED TO ITS BENEFITS TO CONTINUE TO RECEIVE THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IN ADDITION TO THE PAY AND ALLOWANCES UNDER THE PRIOR LAW. SUCH BASIS, WE CONCLUDED THAT A MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO THE BENEFITS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 WHO WAS REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR SENTENCE OF COURT-MARTIAL IN EFFECT MERELY FAILED TO QUALIFY FOR THAT PART OF HIS SAVED TOTAL COMPENSATION REPRESENTING THE DIFFERENCE IN PAY, ETC., BETWEEN THE TWO GRADES AND, HENCE, MIGHT CONTINUE TO RECEIVE SAVED TOTAL COMPENSATION COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE REDUCED GRADE OR RATING UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, IN ADDITION TO THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED.

SECTION 10 OF THE ACT OF MAY 20, 1958, 72 STAT. 130, EFFECTIVE JUNE 1958, IS, IN PERTINENT PART, AS FOLLOWS:

"SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---

"/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.'

THAT PROVISION HAS, BY ITS EXPRESS TERMS, A MUCH MORE LIMITED APPLICATION THAN THE PROVISIONS CONSIDERED IN THE DECISION OF SEPTEMBER 26, 1950. REFERS, INSOFAR AS HERE PERTINENT, ONLY TO A REDUCTION, BECAUSE OF ENACTMENT OF THE ACT OF MAY 20, 1958, IN THE BASIC PAY TO WHICH ENTITLED ON MAY 31, 1958. IT IS APPARENT THAT A REDUCTION IN BASIC PAY BY REASON OF A REDUCTION IN GRADE OR RATING AS A RESULT OF ADMINISTRATIVE ACTION OR SENTENCE OF A COURT-MARTIAL IS NOT A REDUCTION IN BASIC PAY BY REASON OF THE "ENACTMENT OF THIS ACT.' CONSEQUENTLY, THE SAID SAVINGS PROVISION DOES NOT OPERATE TO ENTITLE SUCH A MEMBER TO CONTINUE TO RECEIVE THE SAVED BASIC PAY TO WHICH HE WAS ENTITLED PRIOR TO THE EFFECTIVE DATE OF THE REDUCTION IN GRADE OR RATING OR TO HAVE HIS BASIC PAY IN SUCH REDUCED GRADE OR RATING COMPUTED AT THE RATE IN EFFECT ON MAY 31, 1958.

SECTION 3 (D) OF H.R. 9979 (THE PREDECESSOR BILL CONSIDERED BY THE HOUSE COMMITTEE ON ARMED SERVICES PRIOR TO THE INTRODUCTION OF H.R. 11470, WHICH BECAME THE 1958 ACT) EXPRESSLY PROVIDED THAT, IF A MEMBER WAS REDUCED IN GRADE FOR INEFFICIENCY OR DISCIPLINARY REASONS, THE SAVED PAY RATE WOULD CEASE TO APPLY AND, IF REDUCED IN GRADE FOR OTHER THAN INEFFICIENCY OR DISCIPLINARY REASONS, THE MEMBER WOULD BE ENTITLED TO HAVE HIS ACTIVE DUTY PAY COMPUTED ON THE OLD RATES INCREASED BY 6 PERCENT OR ON THE NEW RATES, WHICHEVER WOULD BE HIGHER. WE VIEW THE APPARENTLY DELIBERATE OMISSION OF THAT SPECIAL PROVISION FROM THE BILL ENACTED INTO LAW AS INDICATING THE ABSENCE OF A LEGISLATIVE INTENT THAT A MEMBER SHOULD HAVE HIS ACTIVE DUTY PAY COMPUTED ON THE OLD RATES (INCLUDING THE LONGEVITY PAY FACTOR) WHEN REDUCED IN GRADE, WHATEVER THE REASON. IT MAY BE NOTED THAT THE 1958 ACT AFFECTS ACTIVE DUTY PAY DIFFERENTLY THAN RETIRED PAY, WHICH IS GOVERNED BY THE SPECIAL PROVISIONS OF SECTIONS 3 AND 4 OF THE 1958 ACT. SEE B-138825, JUNE 19, 1959, 38 COMP. GEN. - .

ACCORDINGLY, THE PROPOSED ADJUSTMENT IS NOT AUTHORIZED AND THE MILITARY PAY ORDER WHICH WAS SUBMITTED BY YOU WILL BE RETAINED HERE.