B-79630, FEBRUARY 23, 1949, 28 COMP. GEN. 474

B-79630, FEBRUARY 23, 1949, 28 COMP. GEN. 474

SAVED PAY AND ALLOWANCES - FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION EMPLOYEE IN COAST GUARD THE ANNUAL COMPENSATION AND ALLOWANCES OF A CIVILIAN EMPLOYEE OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION WHICH ARE SAVED TO HIM UNDER SECTION 13 OF THE ACT OF JULY 23, 1947, UPON BEING APPOINTED A COMMISSIONED OFFICER IN THE COAST GUARD PURSUANT TO SECTION 3 (CATEGORY (6) ( OF SAID ACT, IF THE MILITARY PAY AND ALLOWANCES OF HIS COMMISSIONED RANK ARE LESS, MAY NOT BE INCREASED BY AN AMOUNT EQUAL TO THE PERCENTAGE INCREASE IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR OFFICERS ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. UNDER SECTION 13 OF THE ACT OF JULY 23, 1947, SAVING TO COMMISSIONED COAST GUARD OFFICERS THE ANNUAL COMPENSATION AND ALLOWANCES APPLICABLE TO THEIR CIVILIAN POSITIONS WITH THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AT THE TIME OF COMMISSIONING IN THE COAST GUARD, A FORMER CIVILIAN EMPLOYEE OF SUCH BUREAU SERVING IN A COMMISSIONED STATUS WITH THE COAST GUARD OVERSEAS IS NOT ENTITLED TO A FOREIGN PAY DIFFERENTIAL FOR THE AREA IN WHICH SERVING, WHERE SUCH A DIFFERENTIAL WAS NOT APPLICABLE TO HIS FORMER CIVILIAN POSITION AT THE TIME OF COMMISSIONING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, FEBRUARY 23, 1949:

THERE HAS BEEN CONSIDERED LETTER OF AUGUST 16, 1948, FROM THE ACTING SECRETARY OF THE TREASURY, WHEREIN DECISION IS REQUESTED ON SEVERAL QUESTIONS RELATIVE TO THE PAY STATUS OF REAR ADMIRAL HALERT C. SHEPHEARD, UNITED STATES COAST GUARD, FORMERLY ASSISTANT DIRECTOR OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION, WHILE HE WAS ON OFFICIAL DUTY IN LONDON, ENGLAND, DURING THE PERIOD APRIL 14 TO JUNE 17, 1948.

IT APPEARS THAT ADMIRAL SHEPHEARD WAS PERMANENTLY APPOINTED AS A COMMISSIONED OFFICER IN THE UNITED STATES COAST GUARD ON JANUARY 6, 1948, UNDER THE PROVISIONS OF SECTION 3 (CATEGORY (6) ( OF THE ACT OF JULY 23, 1947, 61 STAT. 410, AND IT IS STATED THAT, UNDER THE PROVISIONS OF SECTION 13 OF SUCH ACT (61 STAT. 413), ADMIRAL SHEPHEARD IS RECEIVING THE SALARY WHICH HE WAS ENTITLED TO RECEIVE FROM HIS FORMER CIVILIAN POSITION AT THE TIME HE WAS COMMISSIONED, RATHER THAN THE PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) IN THE COAST GUARD AUTHORIZED BY SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, AS AMENDED, 37 U.S.C., SUPP. I, 107. IT IS FURTHER STATED THAT ADMIRAL SHEPHEARD, PURSUANT TO DULY ISSUED ORDERS, WAS ON DUTY IN LONDON, ENGLAND, FROM APRIL 14, TO JUNE 17, 1948.

THE SAID SECTION 13 OF THE ACT OF JULY 23, 1947, PROVIDES AS FOLLOWS:

NO PERSON DESCRIBED IN CATEGORY (6) OF SECTION 3, CATEGORY (7) OF SECTION 5, OR CATEGORY (5) OF SECTION 6 WHO IS COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THE PROVISIONS OF THIS ACT SHALL SUFFER ANY REDUCTION IN ANNUAL COMPENSATION, INCLUDING ALLOWANCES, BELOW THE COMPENSATION APPLICABLE TO HIS PERMANENT CIVIL SERVICE POSITION AT THE TIME OF SUCH COMMISSIONING, APPOINTMENT, OR ENLISTMENT, EXCLUSIVE OF OVERTIME COMPENSATION, AND CIVIL-SERVICE STATUS, TENURE, SENIORITY, AND COMPENSATION OF ANY SUCH PERSON WHO FOR ANY REASON IS NOT COMMISSIONED, APPOINTED, OR ENLISTED UNDER THE PROVISIONS OF THIS ACT SHALL NOT BE IMPAIRED BY REASON OF THIS ACT.

THE FIRST QUESTION IS WHETHER OR NOT THE OFFICER IS ENTITLED TO THE INCREASE OF 10 PERCENTUM IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, FOR OFFICERS ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

THE ONLY RIGHT SAVED BY SECTION 13 OF THE ACT OF JULY 23, 1947, QUOTED ABOVE, TO A FORMER EMPLOYEE OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION, COMMISSIONED IN THE COAST GUARD, UNDER THE PROVISIONS OF SUCH ACT, IS THAT HE SHALL SUFFER NO REDUCTION "IN ANNUAL COMPENSATION, INCLUDING ALLOWANCES, BELOW THE COMPENSATION APPLICABLE TO HIS PERMANENT CIVIL SERVICE POSITION AT THE TIME OF SUCH COMMISSIONING.' THE AMOUNT OF SUCH SAVED COMPENSATION, INCLUDING ALLOWANCES, BECAME FIXED AS OF THE DATE HE WAS COMMISSIONED AND THEREAFTER WAS NOT SUBJECT TO VARIATION. THE SAID SECTION 13 MERELY CONTEMPLATES THE PAYMENT BY THE GOVERNMENT OF AN AMOUNT OF MONEY EQUAL TO THAT PREVIOUSLY PAID ON ACCOUNT OF HIS SERVICE IN HIS FORMER CIVILIAN POSITION, UNTIL THE EMOLUMENTS INCIDENT TO HIS COMMISSIONED STATUS EQUAL OR EXCEED THE AMOUNT SAVED TO HIM AS A FORMER CIVILIAN EMPLOYEE. BUT, HE MAY NOT RECEIVE THE COMPENSATION OF HIS FORMER CIVILIAN EMPLOYMENT AND AT THE SAME TIME RECEIVE ANY OF THE PAY AND ALLOWANCES PROVIDED FOR COMMISSIONED OFFICERS. SEE 21 COMP. GEN. 849; 24 ID. 192; ID. 779. CF. 26 COMP. GEN. 804, 816. SINCE IT IS STATED THAT ADMIRAL SHEPHEARD IS RECEIVING THE COMPENSATION WHICH HE WAS ENTITLED TO RECEIVE FROM HIS FORMER CIVILIAN POSITION AT THE TIME HE WAS COMMISSIONED, THERE WOULD BE NO AUTHORITY OF LAW FOR HIM TO RECEIVE, IN ADDITION THERETO, THE INCREASE IN BASE PAY PROVIDED FOR COMMISSIONED OFFICERS OF THE COAST GUARD SERVING ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE SECOND AND THIRD QUESTIONS ARE PREDICATED ON AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION AND, THEREFORE, NEED NOT BE CONSIDERED.

THE FOURTH, AND LAST, QUESTION IS WHETHER, ASSUMING THERE WAS IN EFFECT THE FOREIGN PAY DIFFERENTIAL FOR CIVILIAN EMPLOYEES IN LONDON, ENGLAND, AS CONTEMPLATED BY SECTION 3 OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, PUBLIC LAW 491, APPROVED APRIL 20, 1948, 62 STAT. 194, AND EXECUTIVE ORDER 9962, DATED MAY 24, 1948, ADMIRAL SHEPHEARD WOULD HAVE BEEN ENTITLED TO SUCH ADDITIONAL PAY.

AS STATED ABOVE, THE AMOUNT OF THE COMPENSATION, INCLUDING ALLOWANCES, OF HIS FORMER CIVILIAN POSITION SAVED TO ADMIRAL SHEPHEARD BECAME FIXED AS OF THE DATE OF HIS COMMISSION AND, THEREAFTER, IT WAS NOT SUBJECT TO VARIATION.

IT IS STATED THAT AT THE TIME OF ADMIRAL SHEPHEARD'S COMMISSIONING HE WAS SERVING IN HIS CIVILIAN POSITION AS ASSISTANT DIRECTOR OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION AND, AS SUCH, IT APPEARS THAT HE WAS STATIONED IN WASHINGTON, D.C. ACCORDINGLY, IT DOES NOT APPEAR THAT THERE WAS, OR COULD HAVE BEEN ANY FOREIGN PAY DIFFERENTIAL APPLICABLE TO SUCH POSITION. HENCE, EVEN IF IT COULD BE CONSIDERED THAT, IN AN OTHERWISE PROPER CASE, A FOREIGN PAY DIFFERENTIAL COULD BE SAVED TO AN INDIVIDUAL UNDER THE PROVISIONS OF SECTION 13 OF THE ACT OF JULY 23, 1947, YOUR FOURTH QUESTION NECESSARILY IS ANSWERED IN THE NEGATIVE.