B-27564, SEPTEMBER 18, 1942, 22 COMP. GEN. 236

B-27564, SEPTEMBER 18, 1942, 22 COMP. GEN. 236

PAY AND ALLOWANCES OF NAVY PERSONNEL AS AFFECTED BY SAVING, ETC., PROVISIONS OF PAY READJUSTMENT ACT OF 1942 A PERMANENT COMMISSIONED WARRANT OFFICER OF THE NAVY PROMOTED FROM THE GRADE OF WARRANT OFFICER, WITH LESS THAN 3 YEARS' COMMISSIONED SERVICE AND OVER 21 YEARS' TOTAL SERVICE, SERVING IN THE TEMPORARY GRADE OF LIEUTENANT (JG), UNDER THE ACT OF JULY 24, 1941, IS ENTITLED TO THE PAY, COMPUTED UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, OF A WARRANT OFFICER WITH OVER 21 YEARS' TOTAL SERVICE, AND THE ALLOWANCES OF THE SECOND PAY PERIOD PROVIDED FOR COMMISSIONED WARRANT OFFICERS WITH LESS THAN 3 YEARS' SERVICE. A PERMANENT WARRANT OFFICER WHO, ON JUNE 1, 1942, WAS BEING PAID THE GREATER PAY AND ALLOWANCES APPLICABLE TO THE TEMPORARY GRADE OF FIRST LIEUTENANT IN WHICH HE WAS TEMPORARILY SERVING UNDER THE ACT OF JULY 24, 1941, IS ENTITLED UNDER THE SAVING PROVISIONS OF SECTION 7 (A) OF THAT ACT TO RECEIVE ON AND AFTER JUNE 1, 1942, THE GREATER PAY AND ALLOWANCES, COMPUTED UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, APPLICABLE TO HIS PERMANENT GRADE OF WARRANT OFFICER. A COMMISSIONED WARRANT OFFICER OF THE NAVY WITH LESS THAN 3 YEARS' COMMISSIONED SERVICE AND OVER 27 YEARS' TOTAL SERVICE WHO, ON JUNE 1, 1942, WAS BEING PAID THE SAVED PAY OF A WARRANT OFFICER AND THE ALLOWANCES OF THE SECOND PAY PERIOD, IS ENTITLED, UNDER THE PROVISIONS OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, TO RECEIVE ON AND AFTER JUNE 1, 1942, THE PAY, INCLUDING LONGEVITY INCREASE, OF A WARRANT OFFICER WITH OVER 27 YEARS' SERVICE AND THE ALLOWANCES OF THE SECOND PAY PERIOD PRESCRIBED BY SAID SECTION 8 FOR COMMISSIONED WARRANT OFFICERS WITH HIS COMMISSIONED SERVICE. WARRANT OFFICERS OF THE NAVY, MARINE CORPS AND COAST GUARD MAY COUNT ALL SERVICE, BOTH ACTIVE AND INACTIVE, AND COMMISSIONED WARRANT OFFICERS MAY COUNT ALL COMMISSIONED SERVICE, BOTH ACTIVE AND INACTIVE, IN THE FORMER NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, IN COMPUTING LONGEVITY INCREASES IN PAY AS PROVIDED IN SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, FOR EACH 3 YEARS OF SERVICE. ONLY ACTIVE COMMISSIONED SERVICE IN THE NAVY, MARINE CORPS AND COAST GUARD, AND THE RESERVE COMPONENTS THEREOF, MAY BE COUNTED BY A COMMISSIONED WARRANT OFFICER OF ANY OF THOSE SERVICES IN DETERMINING WHETHER HE HAS COMPLETED THE 10 OR 20 YEARS OF COMMISSIONED SERVICE WITH CREDITABLE RECORD ON THE ACTIVE LIST TO ENTITLE HIM TO THE PAY OF THE THIRD OR FOURTH PERIOD, AS THE CASE MAY BE, UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942. ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD MAY COUNT INACTIVE SERVICE IN THE FORMER NAVAL RESERVE FORCE AND THE FORMER MARINE CORPS RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, IN COMPUTING LONGEVITY INCREASES IN PAY AS PROVIDED BY SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942 FOR EACH 3 YEARS OF SERVICE. A NAVY ENLISTED MAN WHOSE PAY PRIOR TO JUNE 1, 1942, PLUS THE $10 PER MONTH ADDITIONAL PAY AFTER 12 MONTHS' SERVICE PROVIDED BY SECTION 8 OF THE ACT OF AUGUST 18, 1941, WAS GREATER THAN HIS PAY WHEN COMPUTED UNDER THE PAY READJUSTMENT/ACT OF 1942, IS ENTITLED, UNDER THE SAVING PROVISIONS OF SECTION 19 OF THE 1942 ACT, TO CONTINUE TO RECEIVE HIS FORMER PAY INCLUDING THE $10 PER MONTH ADDITIONAL, SO LONG AS HIS GRADE OR RATING IS NOT CHANGED, UNTIL THE PAY COMPUTED UNDER THE 1942 ACT EQUALS OR EXCEEDS SUCH FORMER PAY, NOTWITHSTANDING THE REPEAL OF SAID SECTION 8 BY THE 1942 ACT. THE GENERAL SAVING CLAUSE IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, PROVIDING THAT NO PERSON SHALL SUFFER, BY REASON OF THE ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH ENTITLED UPON THE EFFECTIVE DATE OF THE ACT, OPERATES ONLY WHEN THE TOTAL OF THE PAY AND ALLOWANCES COMPUTED UNDER PRIOR LAWS EXCEEDS THE TOTAL OF THE PAY AND ALLOWANCES COMPUTED UNDER THE 1942 ACT, AND DOES NOT OPERATE TO ENTITLE A PERMANENT WARRANT OFFICER OF THE NAVY TO GREATER PAY COMPUTED UNDER PRIOR LAWS AND GREATER ALLOWANCES COMPUTED UNDER THE 1942 ACT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 18, 1942:

THERE HAS BEEN CONSIDERED YOUR REQUEST OF JULY 20, 1942, FOR DECISION ON QUESTIONS SET FORTH IN A LETTER TRANSMITTED THEREWITH, DATED JULY, 14, 1942, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, ARISING UNDER CERTAIN PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 359.

THE QUESTIONS WILL BE CONSIDERED IN THE ORDER STATED.

(A) A PERMANENT COMMISSIONED WARRANT OFFICER WITH LESS THAN THREE YEARS' COMMISSIONED SERVICE AND WITH OVER TWENTY-ONE YEARS' TOTAL SERVICE, SERVING IN THE TEMPORARY GRADE OF LIEUTENANT (JG) UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, 77TH CONGRESS) ON JUNE 1, 1942, WAS BEING PAID THE PAY AND ALLOWANCES (SECOND PAY PERIOD) OF A COMMISSIONED OFFICER WITH LESS THAN THREE YEARS' COMMISSIONED SERVICE AS PROVIDED BY SECTION 1 OF THE ACT OF JUNE 10, 1922, DUE TO THE FACT THAT THE TOTAL OF SUCH PAY AND ALLOWANCES WAS THE SAME AS HE WOULD HAVE RECEIVED IN HIS PERMANENT GRADE AS A COMMISSIONED WARRANT OFFICER BY REASON OF THE LIMITATIONS IMPOSED BY THE ACT OF FEBRUARY 16, 1929.

QUESTION. UNDER THE PROVISIONS OF THE SAVING CLAUSE IN THE LAST PROVISO OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, IS SUCH AN OFFICER ENTITLED ON AND AFTER JUNE 1, 1942, TO BE PAID SAVED PAY COMPUTED ON THE BASIS OF THE PAY OF A WARRANT OFFICER, WITH OVER TWENTY-ONE YEARS' TOTAL SERVICE (LONGEVITY INCREASE OF 35 PERCENT ON THE BASE PAY OF A WARRANT OFFICER) AS PRESCRIBED BY SECTION 8 OF THE ACT OF JUNE 16, 1942, AND THE ALLOWANCES OF THE SECOND PAY PERIOD?

SECTION 8 OF THE ACT OF JUNE 16, 1942, PUBLIC LAW 607, 56 STAT. 362, PROVIDES:

(1) SEC. 8. WARRANT OFFICERS (JUNIOR GRADE) OF THE ARMY EXCEPT FIRST MATES AND ASSISTANT ENGINEERS OF THE ARMY MINE PLANTER SERVICE, AND WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD, SHALL RECEIVE THE BASE PAY OF THE FIRST PERIOD AS ESTABLISHED BY SECTION 1 OF THIS ACT AND SHALL BE ENTITLED THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

(2) FIRST MATES AND ASSISTANT ENGINEERS OF THE ARMY MINE PLANTER SERVICE SHALL RECEIVE BASE PAY AT THE RATE OF $1,950 PER ANNUM AND SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

(3) CHIEF WARRANT OFFICERS OF THE ARMY EXCEPT MASTERS IN THE ARMY MINE PLANTER SERVICE, AND COMMISSIONED WARRANT OFFICERS WITH LESS THAN TEN YEARS OF COMMISSIONED SERVICE, OF THE NAVY, MARINE CORPS, AND COAST GUARD, SHALL RECEIVE BASE PAY AT THE RATE OF $2,100 PER ANNUM AND SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE SECOND PERIOD: PROVIDED, THAT COMMISSIONED WARRANT OFFICER OR CHIEF WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER OR WARRANT OFFICER (JUNIOR GRADE) SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION: PROVIDED FURTHER, THAT NOTHING HEREIN CONTAINED SHALL BE HELD TO AFFECT THE AUTHORITY OF THE SECRETARY OF WAR TO DESIGNATE PERMANENT OR TEMPORARY CHIEF WARRANT OFFICERS OF THE ARMY TO RECEIVE THE BASE PAY PERMANENT OR TEMPORARY CHIEF WARRANT OFFICERS OF THE ARMY TO RECEIVE THE BASE PAY AND ALLOWANCES OF THE THIRD AND FOURTH PAY PERIODS AS PROVIDED IN SECTION 3 OF THE ACT APPROVED AUGUST 21, 1941 ( PUBLIC LAW 230, SEVENTY-SEVENTH CONGRESS).

(4) COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER TENYEARS OF COMMISSIONED SERVICE, AND MASTERS IN THE ARMY MINE PLANTER SERVICE, SHALL RECEIVE THESE PAY OF THE THIRD PERIOD AS ESTABLISHED BY SECTION 1 OF THIS ACT AND BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE THIRD PERIOD.

(4) COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD, WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER TWENTY YEARS OF COMMISSIONED SERVICE, SHALL RECEIVE THE BASE PAY OF THE FOURTH PERIOD AS ESTABLISHED BY SECTION 1 OF THIS ACT AND SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FOURTH PERIOD.

(6) EVERY PERSON PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE, NOT EXCEEDING THIRTY YEARS. SUCH SERVICE SHALL BE: ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE NAVAL RESERVE, MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE: PROVIDED, THAT COMMISSIONED WARRANT OFFICERS SHALL BE CREDITED ONLY WITH ALL COMMISSIONED SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT INCLUDING COMMISSIONED SERVICE IN THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD.

(7) WHEN THE TOTAL PAY AND ALLOWANCES AUTHORIZED BY THIS SECTION FOR ANY PERSON SHALL EXCEED THE RATE OF $458.33 PER MONTH, THE AMOUNT OF THE ALLOWANCES TO WHICH SUCH PERSON IS ENTITLED SHALL BE REDUCED BY THE AMOUNT ABOVE $458.33.

THE SECOND PARAGRAPH OF SECTION 19 OF THE ACT OF JUNE 16, 1942, 56 STAT. 369, PROVIDES IN PART:

* * * THAT ACTS OR PARTS OF ACTS INCORPORATING DIRECTLY, BY IMPLICATION, OR BY REFERENCE, THE PROVISIONS OF THE ACT OF JUNE 10, 1922, AS AMENDED, AND NOT IN CONFLICT HEREWITH, SHALL NOT BE CONSIDERED MODIFIED BY THE PROVISIONS OF THIS ACT, EXCEPT THAT THE PAY, ALLOWANCES,OR COMPENSATION ESTABLISHED HEREIN SHALL BE SUBSTITUTED FOR THE PAY, ALLOWANCES, OR COMPENSATION SET OUT IN THE ACT OF JUNE 10, 1922, AS AMENDED.

THE FIRST PARAGRAPH OF SECTION 19 OF THE ACT PROVIDES, IN PART:

NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: * * *

SECTION 7 (A) OF PUBLIC LAW 188, APPROVED JULY 24, 1941, 55 STAT. 603, 604, PROVIDES:

SEC. 7. (A) 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 IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, 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 WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.

UNDER SECTION 19 OF THE ACT OF JUNE 16, 1942, THE PAY AND ALLOWANCES PROVIDED BY THAT ACT ARE SUBSTITUTED FOR THE PAY AND ALLOWANCES AUTHORIZED BY THE ACT OF JUNE 10, 1922, AS AMENDED, AND THE GENERAL SAVING CLAUSE IN THE FIRST PARAGRAPH OF THAT SECTION PROHIBITS ANY REDUCTION IN ANY PAY, ALLOWANCES OR COMPENSATION TO WHICH THE PERSON WAS ENTITLED ON THE EFFECTIVE DATE OF THE ACT. THE SAVING CLAUSE IN SECTION 8 OF THE ACT PROVIDES THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION. THE SEVENTH PARAGRAPH OF SECTION 8 OF THE ACT OF JUNE 16, 1942, REMOVED, EFFECTIVE JUNE 1, 1942, THE MAXIMUM LIMITATIONS UPON THE TOTAL MONTHLY PAY AND ALLOWANCES OF COMMISSIONED WARRANT OFFICERS WHICH APPEARED IN SECTION 2 OF THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1187, EXCEPT AS TO A MAXIMUM LIMITATION OF $458.33 PER MONTH.

THE OFFICER REFERRED TO IN THIS QUESTION IS A PERMANENT COMMISSIONED WARRANT OFFICER WITH LESS THAN THREE YEARS' COMMISSIONED SERVICE, SERVING IN THE TEMPORARY GRADE OF LIEUTENANT (JUNIOR GRADE), AND UNLESS THE PAY AND ALLOWANCES INCIDENT TO HIS STATUS AS PERMANENT COMMISSIONED WARRANT OFFICER WERE GREATER THAN THE PAY AND ALLOWANCES OF A LIEUTENANT (JUNIOR GRADE), IT IS NOT UNDERSTOOD THAT SECTION 7 (A) OF THE ACT OF JULY 24, 1941, HAS ANY APPLICATION. SEE 21 COMP. GEN. 1015, ANSWER TO QUESTION (A), PARAGRAPH 5. UNDER THE FIRST PARAGRAPH OF SECTION 19 OF THE ACT OF JUNE 16, 1942, THE OFFICER IS ENTITLED TO HAVE HIS PAY AND ALLOWANCES AS A PERMANENT COMMISSIONED WARRANT OFFICER AND AS A TEMPORARY LIEUTENANT (JUNIOR GRADE) COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE ACT OF JUNE 16, 1942, IN ORDER TO ASCERTAIN WHETHER THERE IS ANY REDUCTION "IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.'

THE ACT OF MARCH 3, 1909, 35 STAT. 771, CONTAINED A PROVISO THAT---

* * * NO WARRANT OFFICER, HERETOFORE OR HEREAFTER PROMOTED SIX YEARS FROM DATE OF WARRANT, SHALL SUFFER A REDUCTION IN PAY WHICH, BUT FOR SUCH PROMOTION, WOULD HAVE BEEN RECEIVED BY HIM: * * *

THE ANALOGOUS PROVISION IN SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, IS:

* * * THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION. * * *

THE PRESENT PROVISION IS IN THE THIRD PARAGRAPH OF SECTION 8 OF THE ACT OF JUNE 16, 1942, AS HEREINBEFORE QUOTED.

FOR ALL PRACTICAL INTENTS AND PURPOSES THESE THREE PROVISIONS LAST MENTIONED ARE SUBSTANTIALLY THE SAME, NAMELY, TO SAVE TO A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER, THE PAY WHICH WAS OR MAY BECOME APPLICABLE TO THE WARRANT OFFICER GRADE IF GREATER THAN THE PAY PERTAINING TO THE COMMISSIONED WARRANT GRADE. PRIOR DECISIONS HAVE HELD THAT IN THOSE CASES WHERE THE WARRANT OFFICER PAY WAS GREATER, THAT PAY WAS PAYABLE TO THE COMMISSIONED WARRANT OFFICER PLUS THE ALLOWANCES PERTAINING TO THE COMMISSIONED WARRANT OFFICER, SUBJECT TO THE LIMITATION UPON THE TOTAL PAY AND ALLOWANCES OF COMMISSIONED WARRANT OFFICERS UNDER SECTION 2 OF THE ACT OF FEBRUARY 16, 1929. THE ACT OF JUNE 16, 1942, DOES NOT CHANGE THIS METHOD OF COMPARISON, ITS ONLY EFFECT BEING TO INCREASE THE PAY AND ALLOWANCES INCIDENT TO THE HIGHER PERCENTUM FOR LONGEVITY INCREASE APPLICABLE TO WARRANT OFFICERS AND TO THE GREATER ALLOWANCES PROVIDED FOR COMMISSIONED WARRANT OFFICERS ENTITLED TO SECOND PERIOD PAY PLUS REMOVAL OF THE MAXIMUM LIMITATION ON TOTAL PAY AND ALLOWANCES IN THE LAST PARAGRAPH OF SECTION 8. FOR REASONS HEREIN STATED QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE. 24 COMP. DEC. 138.

(B) A PERMANENT WARRANT OFFICER WITH NO PRIOR COMMISSIONED SERVICE, BUT WITH OVER TWENTY-ONE YEARS' TOTAL SERVICE, SERVING IN THE TEMPORARY GRADE OF FIRST LIEUTENANT, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, 77TH CONGRESS) WAS BEING PAID ON JUNE 1, 1942, THE PAY AND ALLOWANCES (SECOND PAY PERIOD) OF A COMMISSIONED OFFICER (TEMPORARY GRADE IN WHICH SERVING) WITH LESS THAN THREE YEARS' COMMISSIONED SERVICE, AS PROVIDED BY SECTION 1 OF THE ACT OF JUNE 10, 1922, DUE TO THE FACT THAT THE TOTAL OF SUCH PAY AND ALLOWANCES WAS GREATER THAN THE TOTAL PAY AND ALLOWANCES OF HIS PERMANENT GRADE AS A WARRANT OFFICER.

QUESTION. UNDER THE PROVISIONS OF THE SAVING CLAUSE CONTAINED IN THE LAST PROVISO OF SECTION 7 (A) OF SAID ACT OF JULY 24, 1941, IS SUCH OFFICER ENTITLED ON AND AFTER JUNE 1, 1942, TO BE PAID THE TOTAL PAY AND ALLOWANCES OF HIS PERMANENT GRADE, THAT OF A WARRANT OFFICER WITH OVER TWENTY-ONE YEARS' SERVICE AS ESTABLISHED BY SECTION 8 OF THE ACT OF JUNE 16, 1942?

THE SAVING CLAUSE IN SECTION 8 OF THE ACT OF JUNE 16, 1942, OBVIOUSLY HAS NO APPLICATION, THE OFFICER HAVING BEEN APPOINTED TEMPORARY FIRST LIEUTENANT, NOT A COMMISSIONED WARRANT OFFICER. SEE ALLEN V. UNITED STATES, 67 C.1CLS. 558, FOLLOWING 4 COMP. GEN. 237. HAD THIS OFFICER NOT BEEN TEMPORARILY PROMOTED TO FIRST LIEUTENANT, HE WOULD HAVE BEEN ENTITLED TO THE PAY AND ALLOWANCES APPLICABLE TO A WARRANT OFFICER COMPUTED ON THE RATES PRESCRIBED IN THE ACT OF JUNE 16, 1942. SECTION 7 (A) OF THE ACT OF JULY 24, 1941, IS APPLICABLE TO THIS CASE. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. (C) A COMMISSIONED WARRANT OFFICER WITH LESS THAN THREE YEARS' COMMISSIONED SERVICE AND WITH OVER 27 YEARS' TOTAL SERVICE, WHO, ON JUNE 1, 1942, WAS BEING PAID THE SAVED PAY OF A WARRANT OFFICER AND THE ALLOWANCES OF THE SECOND PAY PERIOD AS PRESCRIBED BY THE ACT OF FEBRUARY 16, 1929.

QUESTION. IS SUCH OFFICER ENTITLED TO BE PAID ON AND AFTER JUNE 1, 1942, THE SAVED PAY OF A WARRANT OFFICER, WITH OVER 27 YEARS' TOTAL SERVICE (LONGEVITY INCREASE OF 45 PERCENT ON THE BASE PAY OF A WARRANT OFFICER) AS PRESCRIBED BY SECTION 8 OF THE ACT OF JUNE 16, 1942, AND THE ALLOWANCES OF THE SECOND PAY PERIOD? THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION (A) OF THIS PARAGRAPH.

4. PRIOR TO JUNE 1, 1942, COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WERE ENTITLED TO COUNT ONLY ACTIVE SERVICE IN DETERMINING LONGEVITY INCREASES TO WHICH ENTITLED UNDER EXISTING LAWS AND ACTIVE COMMISSIONED SERVICE TO DETERMINE PERIOD PAY TO WHICH ENTITLED UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF FEBRUARY 16, 1929. SECTION 8 OF THE " PAY READJUSTMENT ACT OF 1942" PRESCRIBES THE PAY OF COMMISSIONED WARRANT AND WARRANT OFFICERS, AND PROVIDES THAT:

"EVERY PERSON PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE, NOT EXCEEDING THIRTY YEARS. SUCH SERVICE SHALL BE: ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE NAVAL RESERVE, MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE: PROVIDED, THAT COMMISSIONED WARRANT OFFICERS SHALL BE CREDITED ONLY WITH ALL COMMISSIONED SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT INCLUDING COMMISSIONED SERVICE IN THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD.' NO MENTION IS MADE OF THE SERVICE WHICH COMMISSIONED WARRANT OFFICERS MAY COUNT IN DETERMINING DATE OF COMPLETION OF TEN AND TWENTY YEARS' COMMISSIONED SERVICE FOR PERIOD PAY PURPOSES. NEITHER IS IT CLEAR FROM THE WORDING OF THE ABOVE QUOTED PROVISION OF LAW WHETHER WARRANT OFFICERS MAY COUNT ALL SERVICE, AND WHETHER COMMISSIONED WARRANT OFFICERS MAY COUNT ALL COMMISSIONED SERVICE, IN THE NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, FOR LONGEVITY PAY PURPOSES. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER:

(1) WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD MAY COUNT ALL SERVICE, BOTH ACTIVE AND INACTIVE, IN THE NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, IN DETERMINING DATE OF COMPLETION OF EACH PERIOD OF THREE YEARS' SERVICE FOR PAY PURPOSES.

(2) WHETHER COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD MAY COUNT ALL COMMISSIONED SERVICE, BOTH ACTIVE AND INACTIVE, IN THE NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, IN DETERMINING DATE OF COMPLETION OF THREE YEARS' SERVICE FOR PAY PURPOSES.

(3) WHETHER COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD MAY COUNT ALL COMMISSIONED SERVICE, BOTH ACTIVE AND INACTIVE, IN THE SERVICES MENTIONED IN THE SIXTH PARAGRAPH OF SECTION 8, INCLUDING THE NAVAL RESERVE FORCE, IN DETERMINING DATE OF COMPLETION OF TEN AND TWENTY YEARS' SERVICE TO ENTITLE THEM TO THE PAY AND ALLOWANCES OF THE THIRD AND FOURTH PAY PERIOD, RESPECTIVELY.

THE FOURTH AND FIFTH PARAGRAPHS OF SECTION 8 OF THE ACT OF JUNE 16, 1942, PROVIDE THIRD AND FOURTH PERIOD PAY AND ALLOWANCES FOR COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST AFTER 10 AND 20 YEARS' COMMISSIONED SERVICE, RESPECTIVELY. LONGEVITY PAY, OR PAY FOR EACH THREE YEARS OF SERVICE, WITH A LIMIT, IS FIXED IN THE SIXTH PARAGRAPH OF SECTION 8. BY THE PROVISO FOLLOWING THE ENACTING CLAUSE OF THE SIXTH PARAGRAPH OF SECTION 8, COMMISSIONED WARRANT OFFICERS ARE EXCEPTED FROM THE BENEFITS OF ALL BUT "COMMISSIONED SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING COMMISSIONED SERVICE IN THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD.'

THE NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 587, ET SEQ., PRECEDED THE NAVAL RESERVE CREATED BY THE ACTS OF FEBRUARY 28, 1925, 43 STAT. 1080, AND JUNE 25, 1938, 52 STAT. 1175; MEMBERS THEREOF WERE TRANSFERRED TO THE NAVAL RESERVE LATER CREATED AND IT IS CLEAR THAT SERVICE THEREIN WAS INTENDED TO BE COUNTED. NOTE IN THIS CONNECTION THAT THE NATIONAL DEFENSE ACT IN WHICH COMPREHENSIVE PROVISION WAS MADE FOR THE NATIONAL GUARD, WAS THE ACT OF JUNE 3, 1916, 39 STAT. 166, AND ACTIVE NATIONAL GUARD SERVICE IS AUTHORIZED TO BE COUNTED. QUESTION 1 AND QUESTION 2 OF PARAGRAPH 4 ARE ANSWERED IN THE AFFIRMATIVE.

THE SIXTH PARAGRAPH HAS NO APPLICATION TO THE COMMISSIONED SERVICE REQUIRED IN PARAGRAPHS 4 AND 5 OF SECTION 8, THE LATTER OF WHICH ENTITLES A COMMISSIONED WARRANT OFFICER TO THIRD OR FOURTH PERIOD PAY AFTER 10 OR 20 YEARS OF COMMISSIONED SERVICE WITH CREDITABLE RECORD ON THE ACTIVE LIST. THE ACTIVE LIST CONTEMPLATES ACTIVE SERVICE AND THEREFORE INCLUDES ONLY ACTIVE COMMISSIONED SERVICE IN THE NAVY, MARINE CORPS, AND COAST GUARD AND THE RESERVE COMPONENTS THEREOF.

* * * IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD MAY COUNT INACTIVE SERVICE IN THE NAVAL RESERVE FORCE AND MARINE CORPS RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, FOR LONGEVITY PAY PURPOSES.

THE THIRD PARAGRAPH OF SECTION 9 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, PROVIDES:

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE.

THE QUESTION CONTAINED IN PARAGRAPH 5 IS ANSWERED IN THE AFFIRMATIVE. SEE THE ANSWERS ALSO TO QUESTIONS 1 AND 2 OF PARAGRAPH 4, SUPRA.

THE QUESTION CONTAINED IN THE 6TH PARAGRAPH OF THE LETTER OF JULY 14, 1942, IS---

* * * WHETHER AN ENLISTED MAN IN RECEIPT OF THE ADDITIONAL PAY OF $10.00 PER MONTH ON JUNE 1, 1942 IS ENTITLED TO SAVED PAY COMPUTED UNDER THE ACT OF AUGUST 18, 1941, UNTIL THE PAY PRESCRIBED FOR A MAN OF HIS RATING AND LENGTH OF SERVICE UNDER THE ACT OF JUNE 16, 1942 EQUALS OR EXCEEDS THE PAY HE WAS IN RECEIPT OF ON JUNE 1, 1942.

SECTION 8 (A) OF JOINT RESOLUTION APPROVED AUGUST 18, 1941, 55 STAT. 627, PROVIDES:

SEC. 8. (A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR ACTIVE TRAINING AND SERVICE, UNDER SECTION 3 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 SHALL, IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE TO SUCH PERSON WITH RESPECT TO SUCH TRAINING AND SERVICE, BE ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH TRAINING AND SERVICE IN EXCESS OF TWELVE. THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY (1) TO ANY ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, OR SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, FOR ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL IN EXCESS OF TWELVE MONTHS, AND (2) TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER THE DATE OF ENACTMENT OF THIS JOINT RESOLUTION, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS TWELVE MONTHS.

WHILE THE LANGUAGE OF THIS SECTION WAS APPLICABLE TO ANY PERSON "INDUCTED" INTO THE LAND OR NAVAL FORCES, MEN WHO ENLISTED IN THE NAVY SECURED ITS BENEFITS BY REASON OF THE LAST SENTENCE OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, 54 STAT. 895, AND THE LAST MENTIONED SECTION WAS EXPRESSLY REPEALED BY THE SECOND PARAGRAPH OF SECTION 19 OF THE ACT OF JUNE 16, 1942, AS WAS SECTION 8 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627. HOWEVER, THE FIRST PARAGRAPH OF SECTION 19 DEFINITELY PROVIDES THAT:

NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT. * * * UNDER THE PROVISION LAST ABOVE QUOTED, AN ENLISTED MAN WHOSE PAY INCLUDED THE $10 PER MONTH PROVIDED BY SECTION 8 OF THE ACT OF AUGUST 18, 1941, WAS GREATER THAN HIS PAY WHEN COMPUTED UNDER THE ACT OF JUNE 16, 1942, IS ENTITLED TO CONTINUE TO RECEIVE HIS FORMER PAY INCLUDING THE $10 ITEM, SO LONG AS HIS GRADE OR RATING IS NOT CHANGED, UNTIL THE PAY COMPUTED ON THE BASIS OF THE 1942 ACT EQUALS SUCH FORMER PAY. THE QUESTION IN PARAGRAPH 6 IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.

7. SECTION 19 OF THE " PAY READJUSTMENT ACT OF 1942" CONTAINS A GENERAL SAVING CLAUSE, WHICH PROVIDES THAT NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO THE EFFECT OF THE AFOREMENTIONED SAVING CLAUSE ON THE PAY AND ALLOWANCES TO WHICH A PERMANENT WARRANT OFFICER IS ENTITLED EFFECTIVE JUNE 1, 1942, IN THE FOLLOWING CASE:

(A) A PERMANENT WARRANT OFFICER WITH OVER TWELVE YEARS' SERVICE WAS BEING PAID ON JUNE 1, 1942, THE PAY AND ALLOWANCES PRESCRIBED FOR HIS GRADE AND SERVICE BY THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF FEBRUARY 16, 1929, I.E., PAY $189.00, RENTAL $40.00, SUBSISTENCE $18.00.

QUESTION. MAY A PERMANENT WARRANT OFFICER WITH OVER 12 YEARS' SERVICE BE PAID THE PAY OF A WARRANT OFFICER PRESCRIBED BY THE ACT OF JUNE 10, 1922, AS AMENDED, AND THE RENTAL AND SUBSISTENCE ALLOWANCE OF THE FIRST PAY PERIOD AS PRESCRIBED FOR A WARRANT OFFICER BY SECTIONS 5 AND 6 OF THE , PAY READJUSTMENT ACT OF 1942?

THE PAY OF A WARRANT OFFICER WITH OVER TWELVE YEARS' SERVICE UNDER THE LAWS IN EFFECT PRIOR TO JUNE 1, 1942, $189 PER MONTH, IS GREATER THAN THE PAY OF A WARRANT OFFICER WITH THE SAME LENGTH OF SERVICE WHEN COMPUTED UNDER SECTION 8 OF THE ACT OF JUNE 16, 1942 ($150 BASE PAY INCREASED BY $20 PER MONTH), BUT THE ALLOWANCES UNDER SECTIONS 5 AND 6 OF THE 1942 ACT, 56 STAT. 361, ARE GREATER. THE QUESTION IS WHETHER THE WARRANT OFFICER IN SUCH A CASE MAY BE GIVEN THE ADVANTAGES OF GREATER PAY UNDER THE PRIOR LAWS, AND THE GREATER ALLOWANCES UNDER THE ACT OF JUNE 16, 1942. THE GENERAL SAVING CLAUSE CONTAINED IN SECTION 19 OF THE ACT OF JUNE 16, 1942, HAS BEEN PREVIOUSLY QUOTED HEREIN AND, WHILE THE LANGUAGE THEREOF IS STATED DISJUNCTIVELY, THE OBVIOUS PURPOSE OF THE PROVISION IS TO SAVE TO THE PERMANENT WARRANT OFFICER THE TOTAL OF HIS PAY AND ALLOWANCES ONLY WHEN THEY EXCEED THE TOTAL PAY AND ALLOWANCES COMPUTED UNDER THE ACT OF JUNE 16, 1942. IF THIS TOTAL PAY AND ALLOWANCES WHEN COMPUTED UNDER THE ACT OF JUNE 16, 1942, ARE GREATER THAN THE TOTAL OF SUCH PAY AND ALLOWANCES COMPUTED UNDER THE LAWS IN EFFECT PRIOR THERETO, THERE IS NO OCCASION OR NECESSITY FOR OPERATION OF THE SAVING CLAUSE. THIS QUESTION IS ANSWERED IN THE NEGATIVE.