B-46317, APRIL 10, 1945, 24 COMP. GEN. 739

B-46317, APRIL 10, 1945, 24 COMP. GEN. 739

SAVED PAY AND ALLOWANCES - WARRANT OFFICERS TEMPORARILY COMMISSIONED IN ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, SAVING TO WARRANT OFFICERS APPOINTED AS TEMPORARY COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE AUTHORITY THEREOF THE PAY AND ALLOWANCES TO WHICH ENTITLED "AT THE TIME OF SUCH TEMPORARY APPOINTMENT," A CHIEF WARRANT OFFICER WITH LESS THAN 3 YEARS' SERVICE WHOSE BASE PAY PURSUANT TO SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 AT THE RATE OF $2,100 PER ANNUM WAS SAVED TO HIM WHEN TEMPORARILY APPOINTED AS SECOND LIEUTENANT IS NOT SAVED THE RIGHT TO A 5 PERCENT INCREASE IN SUCH BASE PAY UPON COMPLETION OF 3 YEARS' SERVICE. UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, SAVING TO WARRANT OFFICERS APPOINTED AS TEMPORARY COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE AUTHORITY THEREOF THE PAY AND ALLOWANCES TO WHICH ENTITLED "AT THE TIME OF SUCH TEMPORARY APPOINTMENT," THE RIGHT TO RENTAL ALLOWANCE APPLICABLE TO OFFICERS OF THE SECOND PAY PERIOD WHICH WOULD HAVE BEEN PAYABLE TO A CHIEF WARRANT OFFICER HAD HE NOT BEEN FURNISHED GOVERNMENT QUARTERS AT THE TIME OF HIS TEMPORARY APPOINTMENT AS SECOND LIEUTENANT IS SAVED TO HIM WHEN SERVING IN HIS TEMPORARY RANK UNDER CONDITIONS ENTITLING HIM TO RENTAL ALLOWANCE.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. T. E. KLEMENS, ARMY OF THE UNITED STATES, APRIL 10, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 11, 1944, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF ROBERT A. OBRIST, SECOND LIEUTENANT, FD, AUS, FOR $137 REPRESENTING THE DIFFERENCE BETWEEN THE PAY OF A CHIEF WARRANT OFFICER WITH LESS THAN THREE YEARS' SERVICE AND OF A CHIEF WARRANT OFFICER WITH OVER THREE YEARS' SERVICE FOR THE PERIOD MARCH 7 TO NOVEMBER 30, 1944, AND RENTAL ALLOWANCE APPLICABLE TO AN OFFICER OF THE SECOND PAY PERIOD, WITHOUT DEPENDENTS, FOR THE PERIOD NOVEMBER 1 TO 30, 1944.

IT IS UNDERSTOOD THAT ROBERT A. OBRIST ENLISTED MARCH 7, 1941; THAT HE WAS APPOINTED A CHIEF WARRANT OFFICER OCTOBER 1, 1942, AND TEMPORARILY APPOINTED A SECOND LIEUTENANT MAY 23, 1943, UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728.

THE ACT OF JULY 7, 1943, 57 STAT. 380, AMENDED THE SAID JOINT RESOLUTION BY ADDING A PROVISO AS FOLLOWS:

PROVIDED FURTHER, THAT NO WARRANT OFFICER TEMPORARILY APPOINTED AS A COMMISSIONED OFFICER UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.

SENATE REPORT NO. 368, ON H.R. 2349, WHICH BECAME PUBLIC LAW 114, 78TH CONGRESS, ST SESSION, IS IN PART AS FOLLOWS:

UNDER EXISTING LAW, A CHIEF WARRANT OFFICER, OR WARRANT OFFICER (JUNIOR GRADE), UPON BEING APPOINTED AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941 (55 STAT. 728), IS ENTITLED TO RECEIVE ONLY THE PAY OF THE GRADE TO WHICH HE IS APPOINTED WHILE SERVING THEREIN. THE PAY OF THE LOWER COMMISSIONED GRADES IS LESS IN SOME INSTANCES THAN THE PAY THE WARRANT OFFICER CONCERNED IS ENTITLED TO RECEIVE IN THE WARRANT OFFICER GRADE IN WHICH HE SERVES IMMEDIATELY PRIOR TO BEING APPOINTED TO A COMMISSIONED GRADE. ACCORDINGLY, IN SUCH CASE, THE PERSON CONCERNED SUFFERS A REDUCTION IN PAY UPON THE ACCEPTANCE OF APPOINTMENT AS AN OFFICER.

THE BILL WOULD AMEND THE ABOVE-MENTIONED STATUTE SO AS TO PREVENT ANY WARRANT OFFICER, CHIEF OR JUNIOR GRADE, FROM INCURRING A REDUCTION IN PAY BY REASON OF HIS APPOINTMENT AS A COMMISSIONED OFFICER THEREUNDER. PERSONNEL OF THE NAVY ARE THUS PROTECTED UNDER EXISTING LAW BY A SIMILAR PROVISION (SEC. 7, ACT JULY 24, 1941, 55 STAT. 604, AS AMENDED BY THE ACT OF NOVEMBER 30, 1941, PUBLIC LAW 777, 77TH CONG.), AND YOUR COMMITTEE CONSIDER THAT MILITARY PERSONNEL SHOULD LIKEWISE BE PROTECTED.

THE EFFECT OF THE PROVISION CONTAINED IN THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, AMENDING SECTION 7 (A) OF THE ACT OF JULY 24, 1941, APPLICABLE TO PERSONNEL OF THE NAVY, MARINE CORPS, AND COAST GUARD, WAS CONSIDERED IN DECISION OF THIS OFFICE DATED JULY 14, 1943, 23 COMP. GEN. 21, 24, AND IT WAS HELD INTER ALIA (PAGE 23) THAT:

* * * THE AMENDED PROVISO SAVES FROM REDUCTION BY REASON OF THE TEMPORARY APPOINTMENT ONLY THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF HIS TEMPORARY APPOINTMENT, THAT IS, IT DOES NOT SAVE A RIGHT TO FURTHER OR INCREASED PAY AND ALLOWANCES WHICH OTHERWISE MIGHT HAVE ACCRUED TO HIM UNDER HIS PERMANENT STATUS SUBSEQUENT TO THE DATE HE WAS SO TEMPORARILY APPOINTED. * * *

THE SAVING CLAUSE CONTAINED IN THE ACT OF JULY 7, 1943, SUPRA, LIKE THAT IN THE ACT OF NOVEMBER 30, 1942, DOES NOT AUTHORIZE THE PAYMENT OF THE PAY AND ALLOWANCES IN THE WARRANT OFFICER GRADE WHICH MIGHT OTHERWISE HAVE ACCRUED BUT FOR THE PROMOTION TO A COMMISSIONED GRADE, BUT SPECIFICALLY SAVES THE PAY AND ALLOWANCES "TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.' ON MAY 23, 1943, CHIEF WARRANT OFFICER OBRIST HAD LESS THAN 3 YEARS OF SERVICE. THE PAY TO WHICH HE THEN WAS ENTITLED WAS FIXED BY PARAGRAPH 3, SECTION 8, OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, AT $2,100 PER ANNUM, PLUS THE MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THAT ACT FOR AN OFFICER RECEIVING PAY OF THE SECOND PERIOD.

ACCORDINGLY, THE COMPLETION OF THREE YEARS' SERVICE SUBSEQUENT TO THE APPOINTMENT AS SECOND LIEUTENANT FORMS NO LEGAL BASIS FOR ADDING A FIVE PERCENT INCREASE TO THE SAVED PAY OF A CHIEF WARRANT OFFICER UNDER THE ACT OF JULY 7, 1943.

IT APPEARS THAT AT THE TIME OF HIS APPOINTMENT AS SECOND LIEUTENANT, HE OCCUPIED GOVERNMENT QUARTERS AND THEREFORE WAS NOT IN RECEIPT OF RENTAL ALLOWANCE, BUT HAD THE OFFICER AT THAT TIME NOT BEEN FURNISHED QUARTERS, HE WOULD HAVE BEEN ENTITLED, UNDER THE SAVING CLAUSE CONTAINED IN THE JULY 7, 1943, ACT WHICH BY SECTION 2 WAS RETROACTIVELY EFFECTIVE DECEMBER 7, 1941, TO RENTAL ALLOWANCE AS PROVIDED FOR OFFICERS RECEIVING THE PAY OF THE SECOND PERIOD AND SUCH BENEFIT WAS SAVED TO HIM WHEN SERVING UNDER CONDITIONS WHICH ENTITLED HIM TO RENTAL ALLOWANCE.

CHIEF WARRANT OFFICER OBRIST WAS NOT ENTITLED TO AN INCREASE OF FIVE PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR 3 YEARS' SERVICE ON THE DATE OF HIS APPOINTMENT AS SECOND LIEUTENANT AND THE RIGHT TO SUCH INCREASE WHILE SERVING AS SUCH SECOND LIEUTENANT WAS NOT A BENEFIT "SAVED" TO HIM. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER OF LONGEVITY INCREASE FOR THE PERIOD MARCH 7 TO NOVEMBER 30, 1944. PAYMENT OF SO MUCH OF THE VOUCHER, RETURNED HEREWITH, AS COVERS RENTAL ALLOWANCE FOR THE PERIOD NOVEMBER 1 TO 30, 1944, IS AUTHORIZED WHEN THE VOUCHER SHALL HAVE BEEN ADJUSTED TO INCLUDE THAT ITEM ONLY.