B-150268, DECEMBER 7, 1962, 42 COMP. GEN. 302

B-150268, DECEMBER 7, 1962, 42 COMP. GEN. 302

DETAILS - MILITARY PERSONNEL - CIVILIAN POSITION - SUPERGRADE POSITION THE ENTITLEMENT OF A NAVY OFFICER DETAILED TO A SUPERGRADE POSITION IN THE MARITIME ADMINISTRATION UNDER SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, TO THE COMPENSATION DIFFERENTIAL BETWEEN HIS NAVY PAY AND ALLOWANCES AND THE COMPENSATION OF A SUPERGRADE POSITION DOES NOT DEPEND ON THE AVAILABILITY OF AN APPROPRIATE SUPERGRADE POSITION IN THE ADMINISTRATION, SECTION 201 (F) PROVIDING THAT THE BASIS FOR DETERMINING THE AGGREGATE COMPENSATION PAYABLE TO AN OFFICER ON DETAIL TO THE ADMINISTRATION IS A POSITION OF COMPARABLE IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY IN THE OFFICER'S MILITARY SERVICE, OR A CIVILIAN POSITION IN A CORRESPONDING EXECUTIVE DEPARTMENT, RATHER THAN THE POSITION TO WHICH DETAILED; THEREFORE, THE DETAILED OFFICER MAY BE PAID A COMPENSATION DIFFERENTIAL UNDER SECTION 201 (F) THAT WILL EQUAL THE DIFFERENCE BETWEEN HIS MILITARY PAY AND ALLOWANCES AND THE COMPENSATION APPLICABLE TO A DEPARTMENT OF THE NAVY SUPERGRADE POSITION OF SIMILAR IMPORTANCE, DIFFICULTY AND RESPONSIBILITY AS THE POSITION TO WHICH HE IS DETAILED.

TO THE SECRETARY OF COMMERCE, DECEMBER 7, 1962:

ON NOVEMBER 9, 1962, YOUR ASSISTANT SECRETARY REQUESTED OUR DECISION REGARDING THE ELIGIBILITY OF A NAVY OFFICER DETAILED TO THE MARITIME ADMINISTRATION FOR A COMPENSATION DIFFERENTIAL REPRESENTING THE DIFFERENCE BETWEEN THE NAVY PAY AND ALLOWANCES AND THE COMPENSATION APPLICABLE TO THE POSITION TO WHICH HE IS DETAILED. YOUR ASSISTANT SECRETARY SAYS, IN EFFECT, THAT THE POSITION TO WHICH THE OFFICER IS DETAILED IS CONSIDERED TO BE A SUPERGRADE POSITION BUT THAT ALL SUPERGRADE POSITIONS ALLOCATED TO THE MARITIME ADMINISTRATION OTHERWISE HAVE BEEN FILLED. THE VIEW OF YOUR DEPARTMENT IS SET FORTH IN YOUR ASSISTANT SECRETARY'S LETTER AS FOLLOWS:

IT IS OUR VIEW THAT SINCE THIS IS A DETAIL TO THE POSITION THE FACT THAT A SLOT IS NOT AVAILABLE AT THIS TIME TO PERMIT CLASSIFICATION OF THE POSITION AT THE APPROPRIATE SUPERGRADE LEVEL IS IMMATERIAL. WE BELIEVE THAT AFTER DETERMINATION OF THE GRADE LEVEL OF THE POSITION BY THE CIVIL SERVICE COMMISSION, SECTION 201 (F) OF THE MERCHANT MARINE ACT AUTHORIZES THE PAYMENT OF THE SALARY DIFFERENTIAL FOR AN OFFICER ON DETAIL WITHOUT REGARD TO THE STATUTORY QUOTA APPLICABLE TO POSITIONS AT GRADES GS-16, GS- 17 AND GS-18.

THE STATUTORY AUTHORITY TO PAY A COMPENSATION DIFFERENTIAL TO A NAVY OFFICER DETAILED TO THE MARITIME ADMINISTRATION IS CONTAINED IN SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, AS ADDED BY SECTION 4 OF THE ACT OF AUGUST 4, 1939, PUBLIC LAW 259, 53 STAT. 1182, 46 U.S.C. 1111 (F), READING AS FOLLOWS:

WHENEVER ANY OFFICER (NOT EXCEEDING FIVE IN NUMBER AT ANY TIME) OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD IS DETAILED TO THE COMMISSION, HE SHALL RECEIVE FROM THE COMMISSION, FOR THE PERIOD DURING WHICH HE IS SO DETAILED, SUCH COMPENSATION AS ADDED TO HIS PAY AND ALLOWANCES AS AN OFFICER IN SUCH SERVICE WILL MAKE HIS AGGREGATE COMPENSATION EQUAL TO THE PAY AND ALLOWANCES HE WOULD RECEIVE IF HE WERE THE INCUMBENT OF AN OFFICE OR POSITION IN SUCH SERVICE (OR IN THE CORRESPONDING EXECUTIVE DEPARTMENT), WHICH, IN THE OPINION OF THE COMMISSION, INVOLVES THE PERFORMANCE OF WORK SIMILAR IN IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY TO THAT PERFORMED BY HIM WHILE DETAILED TO THE COMMISSION.

THE APPARENT PURPOSE OF SECTION 201 (F) IS TO AUTHORIZE THE PAYMENT OF A COMPENSATION DIFFERENTIAL TO OFFICERS DETAILED TO THE COMMISSION AND TO PRESCRIBE THE BASIS FOR DETERMINING THE AMOUNT OF DIFFERENTIAL TO BE PAID. IN THAT CONNECTION THE SECTION SAYS THAT AN OFFICER SO DETAILED SHALL RECEIVE SUCH COMPENSATION WHICH, WHEN ADDED TO HIS MILITARY PAY AND ALLOWANCES, SHALL CAUSE HIS AGGREGATE COMPENSATION TO EQUAL THE PAY AND ALLOWANCES HE WOULD RECEIVE "IF HE WERE THE INCUMBENT OF AN OFFICE OR POSITION IN SUCH SERVICE (OR IN THE CORRESPONDING EXECUTIVE DEPARTMENT) WHICH, IN THE OPINION OF THE COMMISSION, INVOLVES THE PERFORMANCE OF WORK SIMILAR IN IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY TO THAT PERFORMED BY HIM WHILE DETAILED TO THE COMMISSION.' SIGNIFICANTLY, THE SECTION DOES NOT SAY THAT THE AGGREGATE COMPENSATION SUCH OFFICER WOULD RECEIVE WOULD EQUAL THE COMPENSATION OF THE POSITION TO WHICH DETAILED. ON THE CONTRARY IT APPEARS MERELY TO PROVIDE FOR THE FIXING OF THE OFFICER'S AGGREGATE COMPENSATION IN AN AMOUNT EQUAL TO THE PAY AND ALLOWANCES OF THAT GRADE OF HIS OWN SERVICE (OR ON THE BASIS OF THE COMPENSATION OF A POSITION IN THE EXECUTIVE DEPARTMENT CORRESPONDING TO THE MILITARY OR NAVAL SERVICE OF WHICH HE IS A MEMBER) WHICH WOULD BE COMPARABLE IN IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY TO THE POSITION HE OCCUPIES WHILE ON DETAIL.

THE INTENT OF CONGRESS IN THIS REGARD IS SET FORTH ON PAGE 4 OF H.REPT.NO. 824, ON H.R. 6746 (ENACTED AS PUBLIC LAW 259), AND ON PAGE 5 OF S.REPT.NO. 724, ON S. 1960. THE LANGUAGE USED IN SUCH REPORTS IS AS FOLLOWS:

THIS SECTION WOULD AUTHORIZE THE COMMISSION, WHEN IT IS NECESSARY TO BORROW SKILLED ASSISTANCE FROM THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD TO PAY SUCH AN OFFICER (NOT TO EXCEED FIVE PERSONS AT ANY TIME) THE DIFFERENCE BETWEEN HIS PAY AND ALLOWANCES, AND THE PAY AND ALLOWANCES OF THAT GRADE OF HIS OWN SERVICE (OR OF THAT POSITION IN THE CORRESPONDING DEPARTMENT) WHICH WOULD BE APPROPRIATE TO THE POSITION HE OCCUPIES WHILE ON DETAIL.

IN VIEW OF THE LANGUAGE OF SECTION 201 (F) AND THE EXPLANATION OF THE INTENT OF THE CONGRESS APPEARING IN THE CITED COMMITTEE REPORT, WE CONCUR IN YOUR VIEW THAT THE AVAILABILITY OF A VACANT SUPERGRADE POSITION IN YOUR AGENCY HAS NO BEARING UPON THE OFFICER'S ENTITLEMENT TO A COMPENSATION DIFFERENTIAL. HOWEVER, THE AMOUNT OF COMPENSATION DIFFERENTIAL AUTHORIZED TO BE PAID UNDER SECTION 201 (F) SHOULD BE DETERMINED UPON THE BASIS OF A GRADE IN THE NAVAL SERVICE WHICH WOULD BE APPROPRIATE FOR THE POSITION THE OFFICER OCCUPIES WHILE ON DETAIL WITH THE MARITIME ADMINISTRATION, OR UPON THE BASIS OF THE COMPENSATION OF CIVILIAN POSITION IN THE DEPARTMENT OF THE NAVY (THE CORRESPONDING EXECUTIVE DEPARTMENT), THE DUTIES OF WHICH ARE SIMILAR IN IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY TO THOSE PERFORMED BY THE OFFICER ON DETAIL TO THE MARITIME ADMINISTRATION. HENCE, SHOULD THE MARITIME ADMINISTRATION DETERMINE THAT A SUPERGRADE POSITION IN THE DEPARTMENT OF THE NAVY EMBRACES DUTIES SIMILAR IN "IMPORTANCE, DIFFICULTY, AND ESPONSIBILITY" TO THOSE PERFORMED BY THE OFFICER WHILE ON DETAIL TO THE MARITIME ADMINISTRATION, THEN THE COMPENSATION DIFFERENTIAL PAYABLE UNDER SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, WOULD EQUAL THE DIFFERENCE BETWEEN THE OFFICER'S MILITARY PAY AND ALLOWANCES AND THE COMPENSATION APPLICABLE TO SUCH SUPERGRADE POSITION IN THE DEPARTMENT OF THE NAVY.