B-147892, APR. 24, 1962

B-147892, APR. 24, 1962

TO LIEUTENANT (JG) D. MCCLURKIN, SC, USNR:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1962, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-628, REQUESTING AN ADVANCE DECISION AS TO WHETHER ENSIGN CLARENCE F. KUECK, 651130, USN, IS ENTITLED TO CONTINUED COMMUTED RATIONS CREDITS IN A SAVED PAY STATUS FOLLOWING DETACHMENT ON SEPTEMBER 5, 1961, FROM THE STATION AT WHICH HE WAS AUTHORIZED TO RECEIVE COMMUTED RATIONS.

YOU STATE THAT ENSIGN KUECK WAS SERVING ON ACTIVE DUTY AS A MASTER CHIEF PETTY OFFICER AT THE TIME OF HIS INITIAL TEMPORARY APPOINTMENT ON AUGUST 14, 1961, AND THAT IN HIS ENLISTED STATUS HE WAS AUTHORIZED TO RECEIVE COMMUTED RATIONS AND PROFICIENCY PAY (P-1) IN ADDITION TO BASIC PAY OF PAY GRADE E-9 WITH OVER 14 YEARS OF SERVICE AND BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF MORE THAN TWO DEPENDENTS. THE TEMPORARY APPOINTMENT WAS MADE UNDER 10 U.S.C. 5596, SUBPARAGRAPH (F) OF WHICH READS, AS FOLLOWS:

"TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS. A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THIS SECTION MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT, OR ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.'

THE ABOVE-QUOTED SAVINGS PROVISION WAS DERIVED FROM THE LAST PROVISO OF SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, THE WORDING OF WHICH IS SIMILAR TO THAT OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023.

IT HAS BEEN HELD THAT, UPON TEMPORARY APPOINTMENT, A MEMBER'S PAY AND ALLOWANCES ARE SAVED FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT, BUT ARE NOT SAVED FROM REDUCTION BY REASON OF OTHER CHANGES IN THE CONDITIONS AFFECTING ENTITLEMENT. 23 COMP. GEN. 21; ID. 147; AND 38 COMP. GEN. 487. WITH RESPECT TO PROFICIENCY PAY, THEREFORE, AS LONG AS ENSIGN KUECK CONTINUES TO PERFORM THE DUTIES REQUIRED FOR ELIGIBILITY FOR PROFICIENCY PAY WITHIN THE PERIOD FOR WHICH HE WAS GRANTED SUCH PAY, THAT ITEM MAY CONTINUE TO BE INCLUDED IN THE COMPUTATION OF HIS SAVED PAY. COMP. GEN. 487.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 251, PROVIDES FOR PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED PERSONS IN THE FOLLOWING SITUATIONS:

(1) WHEN RATIONS IN KIND ARE NOT AVAILABLE

(2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED

(3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE.

IT APPEARS THAT ENSIGN KUECK WHILE SERVING AS AN ENLISTED MAN AT THE U.S. NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, HAD BEEN GRANTED PERMISSION TO MESS SEPARATELY THEREBY ENTITLING HIM TO RECEIVE COMMUTED RATIONS AT $1.10 PER DAY. HE WAS DETACHED FROM THAT STATION ON SEPTEMBER 5, 1961, AND IT APPEARS THAT HE IS NOW ASSIGNED TO DUTY AT THE U.S. NAVY SUPPLY CORPS SCHOOL, ATHENS, GEORGIA. THE REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 251, GOVERNING PAYMENT OF SUBSISTENCE ALLOWANCE TO ENLISTED MEMBERS, ARE CONTAINED IN THE BUREAU OF NAVAL PERSONNEL MANUAL, PARAGRAPH A-4404 (6) OF WHICH COVERS COMMUTED RATIONS. SUBPARAGRAPH (D) THEREOF PROVIDES THAT, WHEN AN ENLISTED MEMBER IN RECEIPT OF COMMUTED RATIONS IS TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS, THE AUTHORIZATION FOR COMMUTED RATIONS SHALL TERMINATE. SINCE HE REPORTED TO HIS NEW DUTY STATION IN HIS CAPACITY AS A TEMPORARY COMMISSIONED OFFICER, THE QUESTION OF PERMISSION TO MESS SEPARATELY IN ORDER TO RECEIVE COMMUTED RATIONS WOULD NOT ARISE, OFFICERS BEING ENTITLED AT ALL TIMES TO RECEIVE A SUBSISTENCE ALLOWANCE OF $47.88 PER MONTH.

SUBSISTENCE IN KIND AND MONEY ALLOWANCES IN LIEU THEREOF ARE REGARDED AS ALTERNATIVES OF THE SAME BASIC ALLOWANCE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF TOTAL COMPENSATION PAYABLE UNDER THE SAVINGS PROVISION, REGARDLESS OF WHETHER OR NOT PERMISSION TO MESS SEPARATELY HAS BEEN GRANTED AT THE NEW DUTY STATION. THE AMOUNT OF SUCH ALLOWANCE WOULD BE REDUCED, HOWEVER, IN THE CASE OF A MEMBER TRANSFERRED FROM A STATION AT WHICH HE IS RECEIVING THE HIGHER RATE BECAUSE GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE TO A STATION WHERE GOVERNMENT MESSING FACILITIES ARE AVAILABLE. SEE OUR DECISION TO THE SECRETARY OF OF THE NAVY UNDER DATE OF APRIL 12, 1962, B 148145. THEREFORE, ENSIGN KUECK'S SAVED PAY, FOLLOWING DETACHMENT FROM THE U.S. NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, SHOULD CONTINUE TO BE COMPUTED AS BEFORE, INCLUDING CREDIT FOR COMMUTED RATIONS.