B-162598, MARCH 19, 1968, 47 COMP. GEN. 491

B-162598, MARCH 19, 1968, 47 COMP. GEN. 491

PAY - PROMOTIONS - TEMPORARY - SAVED PAY - TEMPORARY GRADE PAY HIGHER A MEMBER OF THE UNIFORMED SERVICES IN THE PERMANENT ENLISTED GRADE E 8, WHO WHEN TEMPORARILY APPOINTED A WARRANT OFFICER ELECTS TO RECEIVE SAVED PAY PURSUANT TO 10 U.S.C. 5596, AND WHO, THEREFORE, WHEN ASSIGNED OVERSEAS IS NOT ELIGIBLE TO RECEIVE HOSTILE FIRE PAY, FAMILY SEPARATION ALLOWANCE, AND COST-OF-LIVING ALLOWANCE, NOR THE STATUTORY INCREASE IN PAY GRADE E-8 THAT BECAME EFFECTIVE AFTER HIS TEMPORARY PROMOTION, MAY NOT BE PAID THE DIFFERENCE BETWEEN THE SAVED PAY AND THE PAY OF HIS PERMANENT GRADE WHICH WOULD HAVE ACCRUED TO HIM IF HE HAD NOT RECEIVED HIS APPOINTMENT AS A TEMPORARY OFFICER. HOWEVER, NOTWITHSTANDING THE MEMBER'S ELECTION, 37 U.S.C. 204 REQUIRES THAT WHEN AND IF THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE EQUAL OR EXCEED THOSE OF HIS PERMANENT GRADE SAVED UNDER 10 U.S.C. 5596 (F), THE MEMBER MUST BE PAID THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE.

TO D. F. BOHENSKY, UNITED STATES MARINE CORPS, MARCH 19, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26, 1967, AND ATTACHMENTS, REQUESTING A DECISION AS TO THE ENTITLEMENT OF WARRANT OFFICER RICHARD B. LA TONDRE, 098957, USMC, TO HOSTILE FIRE PAY, FAMILY SEPARATION ALLOWANCE AND COST-OF-LIVING ALLOWANCE UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. DO MC-976 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON JUNE 30, 1966, MR. LA TONDRE, WHOSE PERMANENT STATUS IN THE MARINE CORPS IS THAT OF AN ENLISTED MEMBER (ENLISTED PAY GRADE E-8) WAS TEMPORARILY APPOINTED A WARRANT OFFICER (W-1). IT HAS BEEN ASCERTAINED INFORMALLY THAT SUCH TEMPORARY APPOINTMENT WAS ACCOMPLISHED UNDER 10 U.S.C. 5596 AND THAT HE REPORTED TO HIS OVERSEAS DUTY ASSIGNMENT IN VIETNAM ON MARCH 1, 1967.

WITH YOUR LETTER OF SEPTEMBER 26, 1967, YOU ENCLOSED A LETTER DATED SEPTEMBER 5, 1967, FROM MR. LA TONDRE, TO YOU, IN WHICH HE STATES THAT AT THE TIME OF HIS APPOINTMENT TO AND ACCEPTANCE OF HIS TEMPORARY WARRANT OFFICER GRADE HE ELECTED SAVED PAY TO PRECLUDE THE LOSS OF PAY AS A RESULT OF HIS ACCEPTANCE OF THE PROMOTION. ALSO, HE STATES THAT BECAUSE HE WAS ON SAVED PAY CERTAIN PAY AND ALLOWANCES WERE NOT AVAILABLE TO HIM AND THAT HE HAS COMPUTED AND ARRIVED AT A MONETARY LOSS TO HIMSELF OF $1,085.60, WHICH APPEARS TO BE THE DIFFERENCE BETWEEN HIS SAVED PAY AND THE PAY AND ALLOWANCES WHICH WOULD HAVE ACCRUED TO HIM IN HIS ENLISTED GRADE (E-8) HAD HE NOT BEEN PROMOTED.

IN YOUR LETTER YOU SAY THE MEMBER SUBMITTED A REQUEST TO END HIS ENTITLEMENT TO SAVED PAY ON APRIL 3, 1967. YOU REQUEST OUR DECISION WHETHER HE IS ENTITLED TO THE FOLLOWING PAY AND ALLOWANCES DESCRIBED IN HIS LETTER: HOSTILE FIRE PAY, FAMILY SEPARATION ALLOWANCE, COST-OF LIVING ALLOWANCES AND STATUTORY INCREASES IN PAY OF HIS PERMANENT ENLISTED PAY GRADE, E-8.

YOUR LETTER WAS FORWARDED HERE BY THE COMMANDANT OF THE MARINE CORPS BY LETTER DATED DECEMBER 14, 1967, IN WHICH HE CITED OUR DECISION IN 44 COMP. GEN. 121 AND STATED THAT THE QUESTION INVOLVED IN THEREQUEST IS WHETHER PAYMENT OF HOSTILE FIRE PAY, FAMILY SEPARATION ALLOWANCE AND COST-OF- LIVING ALLOWANCE MAY BE EFFECTED IN THE CASE OF A MEMBER IN RECEIPT OF SAVED PAY AND WHO WAS NOT OTHERWISE ENTITLED TO THOSE EMOLUMENTS PRIOR TO ACCEPTANCE OF A TEMPORARY APPOINTMENT AS A WARRANT OFFICER.

AS WE UNDERSTAND IT, MR. LA TONDRE WAS APPOINTED A TEMPORARY WARRANT OFFICER ON JUNE 30, 1966, AT WHICH TIME HE "ELECTED" SAVED PAY. REPORTED TO HIS OVERSEAS ASSIGNMENT ON MARCH 1, 1967, AND WAS ELIGIBLE FOR HOSTILE FIRE PAY, FAMILY SEPARATION ALLOWANCE AND COST-OF-LIVING ALLOWANCE INCIDENT TO HIS APPOINTMENT AS A TEMPORARY WARRANT OFFICER. HOWEVER, THOSE ALLOWANCES WERE NOT CREDITED TO HIS PAY ACCOUNT UNTIL HE SUBMITTED A REQUEST TO END HIS ENTITLEMENT TO SAVED PAY.

WE HAVE ASCERTAINED INFORMALLY THAT IT IS THE EXISTING PRACTICE OF THE NAVY AND MARINE CORPS, WHEN AN ENLISTED MEMBER IS TEMPORARILY PROMOTED TO OFFICER RANK, TO PERMIT HIM TO "ELECT" TO RECEIVE THE SAVED PAY OF HIS ENLISTED RANK. IF HIS OFFICER PAY LATER BECOMES GREATER THAN HIS SAVED PAY, HE MAY REVOKE HIS SO-CALLED ELECTION TO RECEIVE SAVED PAY. HE IS NOT VIEWED AS BEING ENTITLED TO RECEIVE THE HIGHER OFFICER PAY UNTIL SUCH TIME AS HE REVOKES HIS PRIOR ELECTION. FURTHER, IF IT SUBSEQUENTLY DEVELOPS THAT HIS OFFICER PAY BECOMES LESS THAN HIS SAVED PAY, HE IS NO LONGER CONSIDERED TO BE ENTITLED CREDITED WITH SAVED PAY. WITH RESPECT TO THIS, PARAGRAPH 10222D (2), MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT ONCE SAVED PAY IS DROPPED IT CAN NEVER BE REINSTATED.

SECTION 204 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER IS ENTITLED TO THE PAY OF THE GRADE IN WHICH ASSIGNED OR DISTRIBUTED IN ACCORDANCE WITH HIS YEARS OF SERVICE. THEREFORE, MR. LA TONDRE IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE. HOWEVER, SECTION 5596 (F) OF TITLE 10, U.S. CODE, PROVIDES THAT A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THAT 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. THESE SAVINGS PROVISIONS WERE DERIVED FROM THE LAST PROVISO OF SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 830, 34 U.S.C. 3C (E) (1952ED.), 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, 34 U.S.C. 350F (A) (1952 ED.).

IN CONSTRUING SUCH STATUTORY PROVISIONS WE HAVE HELD THAT UPON TEMPORARY APPOINTMENT A MEMBER'S PAY AND ALLOWANCES OF HIS PERMANENT GRADE ARE SAVED FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT, BUT ARE NOT SAVED FROM REDUCTION BY REASON OF SUBSEQUENT CHANGES IN CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES. ALSO, WE HAVE HELD THAT WHILE THE PAY AND ALLOWANCES TO WHICH THE MEMBER WAS ENTITLED IN HIS PERMANENT GRADE AT THE TIME OF HIS TEMPORARY APPOINTMENT ARE NOT TO BE REDUCED BY REASON OF THE TEMPORARY APPOINTMENT, THE SAVINGS PROVISION DOES NOT AUTHORIZE A SUBSEQUENT INCREASE IN THE AMOUNT OF PAY AND ALLOWANCES OF THE PERMANENT GRADE SO THAT THE MEMBER WOULD RECEIVE MORE THAN HE WAS ENTITLED TO AT THE TIME OF THE TEMPORARY APPOINTMENT AND ALSO MORE THAN THE PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED BY REASON OF HIS TEMPORARY POSITION. 23 COMP. GEN. 21; ID. 147; 24 ID. 192; ID. 739; 29 ID. 347; ID. 464; 31 ID. 180; 32 ID. 55; 41 ID. 663; 42 ID. 750; 44 ID. 121; 46 ID. 804.

WITH RESPECT TO MR. LA TONDRE'S CLAIM FOR THE DIFFERENCE BETWEEN HIS SAVED PAY AND THE HIGHER PAY AND ALLOWANCES AFTER JUNE 30, 1966, THAT HE WOULD HAVE BEEN ENTITLED TO AS A MEMBER IN PAY GRADE E-8, EXCEPT FOR HIS APPOINTMENT AS A WARRANT OFFICER ON THAT DATE, IN OUR DECISION OF SEPTEMBER 2, 1964, 44 COMP. GEN. 121, WE HELD THAT A WARRANT OFFICER IN THE NAVY WHO RECEIVED A TEMPORARY APPOINTMENT AS LIEUTENANT (JG) ENTITLING HIM TO SAVED PAY AND WHO WAS SUBSEQUENTLY TRANSFERRED TO AN OVERSEAS DUTY STATION WAS NOT ENTITLED TO A COST-OF LIVING ALLOWANCE AND FAMILY SEPARATION ALLOWANCE IN ADDITION TO THE SAVED PAY AND ALLOWANCES, SUCH ALLOWANCES BEING FOR PAYMENT, IF OTHERWISE PROPER, ONLY AS A PART OF THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE.

SIMILARLY, IT FOLLOWS THAT HOSTILE FIRE PAY AUTHORIZED UNDER 37 U.S.C. 310, WHICH IS A SPECIAL PAY TO MEMBERS FOR DUTY IN AREAS OUTSIDE THE UNITED STATES SUBJECT TO HOSTILE FIRE, MAY BE INCLUDED IN THE COMPUTATION OF SAVED PAY ONLY IF THE MEMBER WAS ENTITLED TO THE SPECIAL PAY ON THE DATE HE ENTERED A SAVED PAY STATUS.

SINCE MR. LA TONDRE WAS NOT ENTITLED TO HOSTILE FIRE PAY OR THE STATUTORY INCREASE EFFECTIVE JULY 1, 1966, IN THE PAY OF HIS PERMANENT GRADE (E-8) WHEN HE RECEIVED HIS TEMPORARY OFFICER APPOINTMENT, HE MAY NOT BE CREDITED WITH SUCH PAY IN THE COMPUTATION OF HIS SAVED PAY. AS STATED ABOVE, HE IS ENTITLED TO SAVED PAY OR THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE, WHICHEVER IS GREATER, BUT NOT TO THE DIFFERENCE BETWEEN THE SAVED PAY AND THE PAY OF HIS PERMANENT GRADE WHICH WOULD HAVE ACCRUED TO HIM IF HE HAD NOT RECEIVED HIS APPOINTMENT AS A TEMPORARY OFFICER. THUS, HIS CLAIM AS PRESENTED IS NOT FOR ALLOWANCE. YOUR QUESTION IS ANSWERED ACCORDINGLY.

HOWEVER, FOR THE REASONS HEREINAFTER STATED MR. LA TONDRE NEVERTHELESS MAY BE ENTITLED TO BE PAID ADDITIONAL PAY AND ALLOWANCES. TARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, REFERRED TO ABOVE, TRAY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, REFERRED TO ABOVE, APPEARS TO HAVE FIRST APPEARED IN PARAGRAPH 044022, CHANGE 119, FEBRUARY 1963, NAVY COMPTROLLER MANUAL. HAS BEEN INFORMALLY ASCERTAINED THAT CHANGE 119 IS BASED ON THE ANSWER TO QUESTION 3 IN OUR DECISION OF APRIL 12, 1962, 41 COMP. GEN. 663, 668.

IN QUESTION 3 WE CONSIDERED THE SITUATION OF A COMMISSIONED WARRANT OFFICER WHO WAS NOT FURNISHED GOVERNMENT QUARTERS AT THE TIME OF HIS TEMPORARY APPOINTMENT TO LIEUTENANT (O-3E) SO THAT HIS SAVED PAY (BASE PAY, SUBSISTENCE ALLOWANCE AND QUARTERS ALLOWANCE) EXCEEDED THE PAY AND ALLOWANCES AS A TEMPORARY OFFICER. HOWEVER, UPON HIS TEMPORARY APPOINTMENT TO LIEUTENANT, HE WAS ASSIGNED GOVERNMENT QUARTERS SO THAT HIS CREDIT OF SAVED PAY AND ALLOWANCES AS A COMMISSIONED WARRANT OFFICER (W-4) WOULD BE LESS THAN THE PAY AND ALLOWANCES AS A LIEUTENANT (O-3E) AND SUCH SITUATION WOULD CONTINUE UNTIL SUCH TIME AS PUBLIC QUARTERS WERE NO LONGER AVAILABLE.

THE QUESTION PRESENTED WAS WHETHER THE MEMBER COULD ELECT TO RECEIVE THE PAY OF THE RANK TO WHICH APPOINTED OR PROMOTED EVEN THOUGH THE VALUE OF THE SAVED PAY, AS DISTINGUISHED FROM THE AMOUNT PAYABLE, MAY BE GREATER. IN OUR ANSWER WE EXPLAINED THAT SINCE QUARTERS IN KIND AND THE MONEY ALLOWANCE MUST BE REGARDED AS ALTERNATIVES OF THE SAME BASIC ALLOWANCE, SUCH ALLOWANCE IS ONE OF THE ITEMS PROPERLY FOR CONSIDERATION IN DETERMINING WHETHER OR NOT A MEMBER IS ENTITLED TO SAVED PAY.

WHILE THE SAVED PAY RATE, INCLUDING THE VALUE OF THE GOVERNMENT QUARTERS, WOULD CONTINUE TO EXCEED THE PAY RATE OF THE TEMPORARY GRADE, THE QUARTERS ALLOWANCE WAS NO LONGER PAYABLE, AND, HENCE, THE ACTUAL PAYMENT OF PAY AND ALLOWANCES OF THE TEMPORARY GRADE EXCEEDED THE SAVED PAY THAT WOULD HAVE BEEN PAYABLE. THEREFORE, IT WAS TO THE MEMBER'S ADVANTAGE TO BE PAID THE PAY AND ALLOWANCES INCIDENT TO HIS APPOINTMENT AS A TEMPORARY OFFICER. THESE CIRCUMSTANCES, WE SAID THE SAVINGS PROVISIONS DO NOT DEPRIVE MEMBERS TEMPORARILY APPOINTED OR TEMPORARILY PROMOTED OF THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE HIGHER GRADE TO WHICH APPOINTED, OR PROMOTED, AND SUCH MEMBERS WHO ARE FURNISHED GOVERNMENT QUARTERS MAY ELECT TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE.

IN THE LAST SENTENCE OF THE NEXT TO THE LAST PARAGRAPH OF THAT DECISION WE INADVERTENTLY SAID THAT THE PAY AND ALLOWANCES OF THE PERMANENT GRADE,"OMITTING" THE QUARTERS ALLOWANCE NOT ACTUALLY PAYABLE UNDER THE CIRCUMSTANCES THERE INVOLVED, EXCEED THOSE OF THE TEMPORARY GRADE. ACTUALLY, THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE, OMITTING THE QUARTERS ALLOWANCE NOT PAYABLE, EXCEEDED THE AMOUNT PAYABLE AS SAVED PAY AND IT WAS ON THAT BASIS THAT WE SAID THE MEMBER COULD BE PAID ON THE BASIS OF HIS TEMPORARY GRADE.

ALTHOUGH IN THAT CASE WE SAID THAT THE OFFICER COULD ELECT WHAT WAS MORE BENEFICIAL TO HIM, OUR USE OF THE WORD "ELECT" WAS IN ANSWER TO QUESTION 3 AS PRESENTED AND WAS NOT INTENDED TO IMPLY THAT THE LAW REQUIRES ANY SUCH ELECTION. THE LAW (37 U.S.C. 204) CONTAINS NO REQUIREMENT OF AN ELECTION BUT PROVIDES WITHOUT EXCEPTION THAT SUCH A MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH ASSIGNED. THUS, THE MEMBERS CONCERNED ARE ENTITLED AT ALL TIMES TO THE PAY OF THEIR TEMPORARY OFFICER GRADES. UNDER THE PROVISIONS OF SECTION 5596 (F), HOWEVER, A MEMBER RECEIVING A TEMPORARY APPOINTMENT UNDER THAT SECTION MAY NOT SUFFER A REDUCTION IN THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE AT THE TIME OF HIS TEMPORARY APPOINTMENT AS A RESULT OF HIS TEMPORARY APPOINTMENT. THE PRACTICAL EFFECT OF THIS SAVINGS PROVISION IS TO GUARANTEE THAT THE PAY AND ALLOWANCES WHICH THE MEMBER WILL RECEIVE AS A TEMPORARY WARRANT OFFICER WILL NEVER BE LESS THAN THE PAY AND ALLOWANCES HE WAS RECEIVING AT THE TIME OF HIS TEMPORARY APPOINTMENT WHENEVER HE WOULD QUALIFY FOR SUCH AMOUNTS IF HE HAD CONTINUED TO SERVE IN HIS PERMANENT ENLISTED GRADE.

CONSEQUENTLY, SUCH A MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES OF THE TEMPORARY GRADE TO WHICH APPOINTED UNLESS THE SAVED PAY TO WHICH HE IS OTHERWISE ENTITLED WOULD GIVE HIM A GREATER AMOUNT, IN WHICH EVENT HE IS AUTOMATICALLY ENTITLED TO BE PAID ON A SAVED PAY BASIS. THESE ARE STATUTORY RIGHTS AND ANY ADMINISTRATIVE REGULATION WHICH WOULD RESTRICT SUCH RIGHTS BY REQUIRING AN ELECTION BY THE MEMBER TO ENTITLE HIM TO THE PAY OF THE TEMPORARY OFFICER GRADE OR DENY HIM THE RIGHT TO REVERT TO A SAVED PAY BASIS WHEN PAYMENT ON THAT BASIS WOULD GIVE HIM A GREATER AMOUNT IS WITHOUT LEGAL EFFECT.

SINCE THE COMPLETE RECORD OF THE OFFICER'S SERVICE IS NOT NOW AVAILABLE IN THIS OFFICE, WE ARE UNABLE TO COMPUTE EITHER HIS SAVED PAY OR HIS PAY AND ALLOWANCES AS A WARRANT OFFICER W-1. HOWEVER, IF AND WHEN THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE EQUALED OR EXCEEDED THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE SAVED TO HIM UNDER 10 U.S.C. 5596 (F) THE LAW REQUIRES THAT HE BE PAID THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE, REGARDLESS OF WHETHER HE MADE AN ELECTION TO BE PAID ON THAT BASIS. SEE 36 COMP. GEN. 13. ALSO, REGARDLESS OF ANY ELECTION, THE MEMBER WOULD AUTOMATICALLY REVERT TO A SAVED PAY STATUS WHEN THE SAVED PAY EXCEEDS THE PAY OF THE TEMPORARY GRADE. 45 COMP. GEN. 763. MR. LA TONDRE'S PAY ACCOUNT SHOULD BE ADJUSTED IN ACCORD WITH THE FOREGOING AND ANY ADDITIONAL PAY AND ALLOWANCES FOUND TO BE DUE CREDITED TO HIS ACCOUNT.