B-90270, NOVEMBER 30, 1949, 29 COMP. GEN. 241

B-90270, NOVEMBER 30, 1949, 29 COMP. GEN. 241

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 WHILE, UNDER THE CAREER COMPENSATION ACT OF 1949, INCREASED ALLOWANCES MAY NOT BE PAID TO MEMBERS OF THE UNIFORMED SERVICES ON OR AFTER OCTOBER 1, 1949, FOR DEPENDENT PARENTS UNLESS THE PARENT ,ACTUALLY RESIDES" IN THE MEMBER'S HOUSEHOLD, THE SAVINGS PROVISION OF SECTION 515 (A) OF THE ACT PREVENTS FOR A LIMITED TIME ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION WHICH A MEMBER IS ENTITLED TO RECEIVE UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949, SO THAT MEMBERS OTHERWISE CONTINUING TO QUALIFY UNDER PRIOR LAW ARE ENTITLED TO RECEIVE FOR SUCH LIMITED TIME INCREASED ALLOWANCES FOR DEPENDENT PARENTS, EVEN THOUGH SUCH PARENTS DO NOT RESIDE IN THE MEMBER'S HOUSEHOLD. ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO, ON OCTOBER 1, 1949, WERE SERVING UNDER ENLISTMENTS OR REENLISTMENTS WHICH HAD BEEN EXTENDED ON OR AFTER JULY 1, 1946, CANNOT BE REGARDED AS SERVING ON OCTOBER 1, 1949,"IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946," SO AS TO BE ENTITLED TO THE SAVED TOTAL COMPENSATION PROVIDED BY SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949. THE MAXIMUM "TOTAL COMPENSATION" SAVED TO MEMBERS OF THE UNIFORMED SERVICES WHO, UPON PROMOTION IN GRADE AFTER OCTOBER 1, 1949, BECOME ENTITLED TO AN INCREASE IN PAY INSUFFICIENT TO EFFECT A TERMINATION OF THEIR RIGHTS UNDER THE SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, IS THE PAY AND ALLOWANCES FIXED BY PRIOR LAW FOR THE GRADES WHICH SUCH MEMBERS HELD ON SEPTEMBER 30, 1949, INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, PROVIDED THE QUALIFICATIONS THEREFOR DO NOT CEASE, AND MAY NOT INCLUDE ANY INCREASE IN PAY APPERTAINING TO THE PROMOTIONS. WHILE THE CAREER COMPENSATION ACT OF 1949 REPEALED THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, THE PROVISIONS OF SECTION 107 OF THE LATTER ACT, AS AMENDED, UNDER WHICH THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO FAMILY ALLOWANCES TERMINATED AT THE END OF THE MONTH DURING WHICH QUALIFICATION THEREFOR CEASED, WERE CONTINUED IN EFFECT BY THE 1949 ACT FOR SUCH TIME AS THE MEMBER IS ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 THEREOF, SO THAT NEITHER THE GOVERNMENT'S NOR THE MEMBER'S CONTRIBUTION TO THE FAMILY ALLOWANCE NEED BE PRORATED WHEN THE RIGHT TO SAVED TOTAL COMPENSATION TERMINATES ON AN INTERMEDIATE DAY OF THE MONTH. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO THE SAVED COMPENSATION BENEFITS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 MAY, AFTER THE EFFECTIVE DATE OF THE ACT, ELECT TO TERMINATE PAYMENT OF THE MONTHLY FAMILY ALLOWANCE TO ANY CLASS B OR B-1 DEPENDENT, PURSUANT TO THE OPTION CONTAINED IN SECTION 104 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, SUCH SECTION HAVING BEEN CONTINUED IN EFFECT BY THE 1949 ACT WITH RESPECT TO MEMBERS ENTITLED TO SAVED "TOTAL COMPENSATION.' WHILE SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 SAVES CERTAIN MEMBERS OF THE UNIFORMED SERVICES FROM ANY REDUCTION IN THE TOTAL COMPENSATION RECEIVED UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949, IT DOES NOT SAVE TO SUCH MEMBERS AFTER OCTOBER 1, 1949, A RIGHT TO AN INCREASE IN PAY AND ALLOWANCES OR OTHER MONETARY BENEFITS SUCH AS AN INCREASE IN FAMILY ALLOWANCES BY REASON OF THE ACQUISITION OF ADDITIONAL DEPENDENTS, AS AUTHORIZED BY PRIOR LAW. THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, COINCIDENTALLY WITH ITS REPEAL ON OCTOBER 1, 1949, WAS CONTINUED IN EFFECT FOR A LIMITED PERIOD BY THE CAREER COMPENSATION ACT OF 1949 AS TO MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) THEREOF, SO THAT THE SECRETARIES OF THE DEPARTMENTS CONCERNED MAY CONTINUE, AFTER OCTOBER 1, 1949, BUT UNDER THE AUTHORITY OF SECTION 112 OF THE 1942 ACT, AS AMENDED, TO WAIVE RECOVERY OF ERRONEOUS OR EXCESS PAYMENTS OF FAMILY ALLOWANCES, PROVIDED SUCH PAYMENTS WERE MADE TO DEPENDENTS OF MEMBERS WHO REMAIN WITHIN THE PURVIEW OF THE TOTAL COMPENSATION SAVINGS PROVISION. WHILE THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE OF A MEMBER OF THE UNIFORMED SERVICES IS INCLUDED IN THE "TOTAL COMPENSATION" SAVED TO SUCH MEMBER BY SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, SUCH CONTRIBUTION IS NOT A PART OF SUCH MEMBER'S PAY SO AS TO BE SUBJECT TO DEDUCTIONS FOR ABSENCE WITHOUT LEAVE, STOPPAGES, OR CHECK AGES; HOWEVER, WHETHER SUCH CONTRIBUTIONS ARE A PART OF A MEMBER'S PAY FOR INCOME TAX WITHHOLDING PURPOSES IS A QUESTION FOR DETERMINATION BY THE BUREAU OF INTERNAL REVENUE. MEMBERS OF THE UNIFORMED SERVICES ARE NOT PRECLUDED FROM THE BENEFITS OF THE TOTAL COMPENSATION SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 MERELY BECAUSE THEY WERE IN A NONPAY STATUS ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE ACT, SUCH PROVISIONS BEING INTENDED TO SAVE MEMBERS GENERALLY FROM REDUCTIONS IN THE TOTAL COMPENSATION WHICH THEY WERE ENTITLED TO RECEIVE "UNDER ANY PROVISION OF LAW" IN EFFECT ON THAT DATE. MEMBERS OF THE UNIFORMED SERVICES IN A FLYING PAY STATUS ON SEPTEMBER 30, 1949, MAY INCLUDE FLYING PAY AS AN ITEM OF "TOTAL COMPENSATION" SAVED UNDER THE SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, FOR THE PERIOD SPECIFIED THEREIN, PROVIDED THEY CONTINUE TO QUALIFY FOR SUCH FLYING PAY UNDER APPLICABLE REGULATIONS, INCLUDING THOSE WITH RESPECT TO MAKING UP FLIGHT REQUIREMENTS, ETC., IN EFFECT ON SEPTEMBER 30, 1949.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, NOVEMBER 30, 1949:

THERE HAVE BEEN CONSIDERED YOUR IDENTICAL LETTERS OF OCTOBER 27 AND 31, 1949, REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE SAVINGS PROVISIONS CONTAINED IN SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949. THE QUESTIONS WILL BE CONSIDERED IN THE ORDER STATED.

YOUR FIRST QUESTION IS AS FOLLOWS:

1. IS A MEMBER OF THE UNIFORMED SERVICES, WHO WAS ENTITLED TO RECEIVE ON 30 SEPTEMBER 1949, INCREASED ALLOWANCES ON ACCOUNT OF A FATHER OR MOTHER (OR BOTH) DEPENDENT UPON SUCH MEMBER FOR CHIEF SUPPORT, BUT NOT ACTUALLY RESIDING IN THE HOUSEHOLD OF SAID MEMBER, ENTITLED TO HAVE SUCH ALLOWANCES SAVED TO HIM (OR HER) UNDER THE PROVISIONS OF SECTION 515 (A) OF THE ABOVE CITED ACT?

IN CONNECTION WITH THE FOREGOING QUESTION, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 102 (G) OF THE ACT CITED SUPRA, DEFINING A FATHER OR MOTHER AS A DEPENDENT WHEN "IN FACT DEPENDENT UPON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT, AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER," AND TO THE LANGUAGE OF SECTION (2) OF THE FIRST PROVISO OF SECTION 515 (A), SETTING FORTH THAT THE PROVISIONS OF SUCH SUBSECTION "SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR.'

SECTION 515 (A) OF THE SAID ACT OF OCTOBER 12, 1949, 63 STAT. 802, 831, PROVIDES AS FOLLOWS:

NO MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS ACT SHALL, PRIOR TO JULY 1, 1952, AND WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF LAST DISCHARGE, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE: PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR; PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES.

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, A DEPENDENT WAS DEFINED, FOR RENTAL AND SUBSISTENCE ALLOWANCE PURPOSES, AS INCLUDING THE FATHER OR MOTHER OF AN OFFICER IF HE OR SHE WAS IN FACT DEPENDENT ON SUCH OFFICER FOR HIS OR HER CHIEF SUPPORT; HOWEVER, SECTION 102 (G) OF THE SAID ACT, 63 STAT. 804, NOW DEFINES A DEPENDENT AS INCLUDING THE FATHER OR MOTHER OF A MEMBER OF THE UNIFORMED SERVICES, PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH MEMBER FOR OVER HALF OF HIS OR HER CHIEF SUPPORT "AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER.' HENCE, IF A DEPENDENT PARENT DOES NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF SUCH MEMBER, INCREASED ALLOWANCES MAY NOT BE PAID ON ACCOUNT OF SUCH DEPENDENT ON OR AFTER OCTOBER 1, 1949, UNLESS SUCH ALLOWANCES ARE SAVED TO SUCH MEMBER UNDER THE SAVINGS PROVISION OF SECTION 515 (A) OF THE SAID ACT. THE FIRST PART OF THE SAVINGS PROVISION IN THE SAID SECTION 515 (A) IS DESIGNED TO PREVENT ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION WHICH A MEMBER IS ENTITLED TO RECEIVE UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. THE FIRST PART OF THE FIRST PROVISO IN THE SAID SECTION 515 (A) PROVIDES THAT THE SAVINGS PROVISION SHALL "CEASE" TO APPLY WHENEVER A MEMBER BECOMES ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THAT WHICH HE WAS ENTITLED TO RECEIVE UNDER THE LAW IN EFFECT ON THE DAY PRECEDING THE EFFECTIVE DATE OF THE ACT; AND, UNDER THE SECOND PART OF SUCH PROVISO, THE SAVINGS PROVISION "CEASES" TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION "UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR.' IS A MEMBER WHO IS ENTITLED TO SAVED "TOTAL COMPENSATION" UNDER SECTION 515 (A), SUPRA, REQUIRED TO QUALIFY UNDER THE NEW LAW, OR MAY HE CONTINUE TO QUALIFY UNDER THE OLD LAW? IT SEEMS REASONABLY CLEAR THAT THE LATTER PART OF THE FIRST PROVISO IN SECTION 515 (A) DOES NOT CONTEMPLATE THAT A MEMBER OTHERWISE ENTITLED TO SAVED "TOTAL COMPENSATION" WILL BE REQUIRED TO QUALIFY FOR INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT PARENT UNDER THE PROVISIONS OF THE NEW LAW. TO REQUIRE A MEMBER RECEIVING SAVED "TOTAL COMPENSATION" TO QUALIFY FOR INCREASED ALLOWANCES UNDER THE PROVISIONS OF THE NEW LAW ON AND AFTER OCTOBER 1, 1949, WOULD PRECLUDE ALL MEMBERS WHOSE PARENT OR PARENTS DO NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF SUCH MEMBERS FROM RECEIVING THE INCREASED ALLOWANCES AFTER THAT DATE; AND IT WOULD SEEM THAT, IF THE ELIMINATION OF SUCH INCREASED ALLOWANCES ACTUALLY REDUCED THE MEMBER'S "TOTAL COMPENSATION" BELOW THAT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, HE WOULD SUFFER A REDUCTION IN COMPENSATION ,BY REASON OF THIS ACT.' IT WAS JUST SUCH REDUCTIONS IN "TOTAL COMPENSATION" THAT THE SAVINGS PROVISION IN SECTION 515 (A) WAS INTENDED TO PREVENT. HENCE, THOSE MEMBERS WHO WERE ENTITLED TO RECEIVE SUCH INCREASED ALLOWANCES ON SEPTEMBER 30, 1949, UNDER THE PROVISIONS OF THE PRIOR LAW (WHICH LAW WAS CONTINUED IN EFFECT BY SECTION 520 OF THE SAID ACT, 63 STAT. 834, FOR SO LONG AS ANY RIGHTS ARE SAVED UNDER THE VARIOUS SAVINGS PROVISIONS OF THE SAID ACT) ARE ENTITLED, UNDER THE SAID SAVING PROVISIONS, IF OTHERWISE ENTITLED TO SAVED PAY AND ALLOWANCES, TO CONTINUE TO RECEIVE SUCH INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENTS UNTIL JULY 1, 1952, OR AS OTHERWISE PROVIDED THEREIN, SO LONG AS THE PARENTS REMAIN DEPENDENT ON THEM FOR CHIEF SUPPORT AND SUCH MEMBERS OTHERWISE CONTINUE, WITHOUT INTERRUPTION, TO QUALIFY UNDER THE PROVISIONS OF THE PRIOR STATUTE FOR SUCH ALLOWANCES, TOGETHER WITH OTHER SAVED PAY AND ALLOWANCES, EVEN THOUGH THE PARENTS DO NOT ACTUALLY RESIDE IN THEIR HOUSEHOLDS. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND, THIRD, AND FOURTH QUESTIONS ARE SET FORTH IN PARAGRAPHS 2, 3, AND 4 OF YOUR LETTER, AS FOLLOWS:

2. PURSUANT TO THE SECOND PROVISO OF SECTION 515 (B), IS AN ENLISTED MEMBER OF THE ARMED SERVICES WHO EXTENDED HIS ENLISTMENT AFTER 1 JULY 1946 AND PRIOR TO THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS THEREOF FOR PERIOD OF EXTENSION OF ENLISTMENT?

IF YOUR DECISION IS IN THE AFFIRMATIVE, IS AN ENLISTED MEMBER OF THE ARMED SERVICES WHOSE ENLISTMENT EXPIRES BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO EXTENDS HIS ENLISTMENT, ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) FOR THE PERIOD OF EXTENSION OF ENLISTMENT?

3. PURSUANT TO THE SECOND PROVISO OF SECTION 515 (B), IS AN ENLISTED MEMBER OF THE ARMED SERVICES WHO EXTENDS HIS ENLISTMENT AFTER THE DAY FOLLOWING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, BUT NOT LATER THAN 1 JULY 1952, ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS THEREOF FOR THE PERIOD OF EXTENSION OF ENLISTMENT, OR FOR THE PERIOD OF EXTENSION OF ENLISTMENT UP TO 1 JULY 1952 WHERE THE EXTENSION OF ENLISTMENT MADE PRIOR TO 1 JULY 1952 RUNS BEYOND 1 JULY 1952?

4. IN CONNECTION WITH THE QUESTIONS PRESENTED IN PARAGRAPHS 2 AND 3, YOUR ATTENTION IS INVITED TO DECISION OF THE COMPTROLLER GENERAL, B-57734 DATED 5 AUGUST 1946, AS PUBLISHED IN 26 COMP. GEN. 83. INFORMATION IS ADDITIONALLY FURNISHED THAT THERE WAS AVAILABLE TO ARMY AND AIR FORCE PERSONNEL PRIOR TO 1 JULY 1946, A MAXIMUM ENLISTMENT PERIOD OF THREE YEARS, WHEREAS IN 1947, THERE WERE AUTHORIZED ENLISTMENTS UP TO SIX OR FOR INDEFINITE PERIODS IN YEARS. ON THE OTHER HAND, IT IS UNDERSTOOD BY THE DEPARTMENT OF THE ARMY THAT THE NAVY AND PERHAPS OTHER UNIFORMED SERVICES OFFERED ENLISTMENTS PRIOR TO 1 JULY 1946 FOR TERMS UP TO SIX YEARS.

THE SECOND PROVISO OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, IS AS FOLLOWS:

* * * PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING PROVISO, IN THE CASE OF ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946, SUCH MEMBER SHALL NOT, PRIOR TO THE EXPIRATION OF SUCH ENLISTMENT OR REENLISTMENT OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT, THE COMPUTATION OF SUCH TOTAL COMPENSATION, FOR THE PURPOSE OF THIS PROVISO ONLY, NOT TO INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, BUT SHALL INCLUDE ALL CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED * * *.

THE BENEFITS OF THE SAID PROVISO ARE APPLICABLE ONLY TO MEMBERS WHO, ON OCTOBER 1, 1949, ARE ,SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946; " HENCE, IT IS NOT READILY APPARENT HOW AN ARMY ENLISTED MAN MIGHT BE REGARDED ON OCTOBER 1, 1949, AS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946. UNDER THE ENLISTMENT ALLOWANCE STATUTE IN EFFECT IMMEDIATELY PRIOR TO JULY 1, 1946 (SECTION 3 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 538), THE SECRETARY OF THE ARMY WAS AUTHORIZED TO ACCEPT ENLISTMENTS OR REENLISTMENTS IN THE REGULAR ARMY FOR PERIODS OF EIGHTEEN MONTHS, TWO YEARS, OR THREE YEARS. SECTION 9 (A) OF THE SAME ACT, 59 STAT. 541, WHICH AMENDED SECTION 101 OF TH SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, PROVIDED THAT THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN OF THE REGULAR ARMY, ETC., SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE FOR ANY PERIOD THE ENLISTED MAN IS IN THE ACTIVE MILITARY SERVICE ON OR AFTER JUNE 1, 1942, DURING, INTER ALIA,"A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED BY SUCH ENLISTED MAN PRIOR TO JULY 1, 1946.'

IN DECISION OF AUGUST 5, 1946, 26 COMP. GEN. 83, THERE WAS CONSIDERED THE QUESTION AS TO WHETHER AN ARMY ENLISTED MAN WHO, PRIOR TO JULY 1, 1946, ENLISTED IN THE REGULAR ARMY FOR ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS MAY HAVE HIS CURRENT ENLISTMENT CONTRACT EXTENDED TO A THREE-YEAR ENLISTMENT CONTRACT SO AS TO ENTITLE HIS DEPENDENTS TO CONTINUE TO RECEIVE THE BENEFITS OF THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT. IN THAT DECISION IT WAS STATED THAT IT DID NOT APPEAR THAT THERE WAS CONTEMPLATED AN EXTENSION OF AN ENLISTMENT SUCH AS IS AUTHORIZED FOR NAVAL PERSONNEL BY THE ACT OF AUGUST 22, 1912, 37 STAT. 331, BUT RATHER AN AMENDMENT TO THE ENLISTMENT CONTRACT VOLUNTARILY ENTERED INTO BY THE ENLISTED MAN TO CHANGE THE TERM OF SERVICE UNDER SUCH ENLISTMENT FROM A SHORTER PERIOD "TO THE MAXIMUM PERIOD OF THREE YEARS AUTHORIZED BY THE STATUTE, THE TIME SERVED IN THE ORIGINAL ENLISTMENT TO BE CREDITED ON THE AMENDED ENLISTMENT.' AND, IT WAS POINTED OUT IN THAT DECISION THAT SUCH ACTION WOULD NOT OPERATE TO GIVE THE ENLISTED MAN ANY GREATER BENEFITS THAN THOSE CONTEMPLATED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT. ANY ENLISTMENT IN THE ARMY ENTERED INTO PRIOR TO JULY 1, 1946, OR ANY EXTENSION OF ENLISTMENT, AS DISCUSSED IN THE SAID DECISION, WOULD HAVE EXPIRED ON OR PRIOR TO JUNE 30, 1949. IT IS NOTED THAT THE ACT OF JUNE 28, 1947, 61 STAT. 191, 10 U.S.C. 628, AUTHORIZES THE SECRETARY OF WAR, EFFECTIVE JULY 1, 1947, TO ACCEPT ORIGINAL ENLISTMENTS IN THE REGULAR ARMY FOR PERIODS OF TWO, THREE, FOUR, FIVE, OR SIX YEARS AND TO ACCEPT REENLISTMENTS FOR PERIODS OF THREE, FOUR, FIVE, OR SIX YEARS, AND ALSO PROVIDES THAT PERSONS OF THE FIRST THREE GRADES MAY BE REENLISTED FOR UNSPECIFIED PERIODS OF TIME ON A CAREER BASIS. IT IS NOT UNDERSTOOD, HOWEVER, HOW AN ARMY ENLISTED MAN WHO ENLISTED OR REENLISTED UNDER THAT ACT, WHICH WAS NOT EFFECTIVE UNTIL JULY 1, 1947, MAY BE CONSIDERED AS "SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946," WITHIN THE MEANING OF THE SECOND PROVISO IN THE SAID SECTION 515 (B). THE 1947 ACT MAY NOT BE VIEWED AS AUTHORIZING ARMY ENLISTED MEN, WHO ENLISTED PRIOR TO JULY 1, 1946, THEREAFTER TO EXTEND THEIR ENLISTMENTS FOR PERIODS UP TO SIX YEARS, OR FOR AN INDEFINITE PERIOD, SO AS TO BE ENTITLED TO THE BENEFITS OF THE SAID SECOND PROVISO FOR THE PERIOD OF SUCH ENLISTMENTS, AS EXTENDED, OR JULY 1, 1952, WHICHEVER IS EARLIER. MOREOVER, IT MAY BE POINTED OUT THAT, WITH RESPECT TO EXTENSIONS OF ENLISTMENTS IN THE NAVAL SERVICE, WHILE STATUTES IN EFFECT PRIOR TO JULY 1, 1946, PERMITTED ENLISTMENTS FOR A MAXIMUM PERIOD OF SIX YEARS (34 U.S.C. 181), IT IS NOT PERCEIVED HOW AN EXTENSION OF SUCH AN ENLISTMENT ON OR AFTER JULY 1, 1946, WOULD CONFER ANY RIGHT UNDER THE SAVINGS PROVISION OF THE QUOTED SECOND PROVISO OF SUBSECTION (B). SUCH AN EXTENSION WOULD, IN EFFECT, CONSTITUTE A DISCHARGE AND REENLISTMENT, FOR PAY PURPOSES, IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 22, 1912, 37 STAT. 331, 34 U.S.C. 184, WHICH PROVIDES, INTER ALIA, THAT ENLISTED MEN WHO EXTEND THE TERM OF ENLISTMENT AS AUTHORIZED THEREIN SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES "IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF THEIR TERM OF LISTMENT.' HENCE, SUCH AN EXTENSION OF ENLISTMENT ON OR AFTER JULY 1, 1946, WOULD NOT CONSTITUTE ,AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946," WITHIN THE MEANING OF THE SAID SECOND PROVISO.

ACCORDINGLY, ALL THREE OF THESE QUESTIONS ARE ANSWERED IN THE NEGATIVE.

YOUR FIFTH QUESTION IS AS FOLLOWS:

5. IF A MEMBER OF THE UNIFORMED SERVICES RECEIVES A PROMOTION IN GRADE WHICH IS INSUFFICIENT TO EFFECT A TERMINATION OF THE SAVINGS PROVISIONS OF SECTION 515 (B), IS SUCH A MEMBER ENTITLED TO RECEIVE THE PAY OF SUCH HIGHER GRADE AT THE RATE PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WITHOUT DIMINUTION OF THE GOVERNMENT'S CONTRIBUTION TO FAMILY ALLOWANCES WHICH ARE BEING CONTINUED UNDER SUCH SECTION, OR IS SUCH MEMBER TO RECEIVE THE PAY OF THE GRADE HELD ON 30 SEPTEMBER 1949 SO LONG AS ENTITLED TO SAVED PAY, INCLUDING THE CONTINUATION OF THE GOVERNMENT'S CONTRIBUTION TO FAMILY ALLOWANCE AND PAYMENT THEREOF TO SUCH MEMBER'S DEPENDENTS? THIS QUESTION IS PREMISED ON THE ASSUMPTION THAT THE ENLISTED MEMBER, SO LONG AS THE SAVINGS PROVISIONS OF SAID SECTION 515 (B) ARE APPLICABLE TO SUCH MEMBER, WILL CONTINUE TO RECEIVE PAY COMPUTED UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

UNDER THE SAVINGS PROVISION IN SUBSECTION (B) OF SECTION 515, A MEMBER OTHERWISE WITHIN THE PURVIEW OF THE SAID SUBSECTION IS NOT TO SUFFER ANY REDUCTION "BY REASON OF THIS ACT" IN THE TOTAL COMPENSATION WHICH HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949. THE THIRD PROVISO IN THE SAID SUBSECTION (B) PROVIDES THAT THE PROVISIONS OF THE SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION "UNDER THE PROVISIONS OF THIS ACT" IN EXCESS OF THE AMOUNT OF SUCH TOTAL COMPENSATION TO WHICH HE WAS ENTITLED ON THE DATE PRECEDING THE EFFECTIVE DATE OF THIS ACT. SUCH PROVISION CONTEMPLATES THAT THE COMPARISON FOR SAVED PAY AND ALLOWANCE PURPOSES IS TO BE MADE ON THE BASIS OF THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SUCH MEMBER WAS ENTITLED ON SEPTEMBER 30, 1949, UNDER LAWS IN EFFECT ON THAT DATE, EXCEPT TO THE EXTENT THAT SUCH PAY AND ALLOWANCES THEREAFTER MAY BE REDUCED BY FAILURE OF A MEMBER TO QUALIFY OR TO BE ENTITLED THERETO. THE ASSUMPTION CONTAINED IN THE LAST SENTENCE OF THE QUOTED PARAGRAPH 5 AS TO THE EFFECT OF THE SAVINGS PROVISION OF SAID SECTION 515 (B), IS CORRECT. SUCH PROVISION AND SIMILAR PROVISIONS IN PRIOR STATUTES, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, HAVE NEVER BEEN CONSTRUED AS AUTHORIZING THE PAYMENT OF MORE THAN THE TOTAL AMOUNT OF THE COMBINED ITEMS ENTERING INTO THE SAVED COMPENSATION WHEN THEY EXCEEDED THE COMBINED ITEMS ENTERING INTO THE LESSER COMPENSATION PAYABLE UNDER THE NEW STATUTE. TO AUTHORIZE PART PAYMENT UNDER EACH STATUTE, IN ORDER TO SECURE A GREATER AMOUNT THAN IS SAVED, WOULD IN EFFECT CHANGE THE CHARACTER OF THE SAVINGS PROVISION TO A COMBINATION OF THE OLD AND NEW STATUTES IN THE COMPUTATION OF THE "SAVED" COMPENSATION AND NEITHER THE WORDING NOR THE IMPLICATION OF THE SAID SAVINGS PROVISION MANIFESTS SUCH A PURPOSE OR INTENT. THE MAXIMUM SAVED TOTAL COMPENSATION OF THE MEMBER REFERRED TO IN PARAGRAPH 5 WOULD CONSIST OF THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, PLUS THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE AND, HENCE, COULD NOT INCLUDE ANY INCREASE OF PAY APPERTAINING TO A PROMOTION SUBSEQUENT TO THAT DATE. SUCH PROMOTED MEMBER, THEREFORE, WOULD CONTINUE TO RECEIVE THE PAY OF THE GRADE HELD ON SEPTEMBER 30, 1949, TOGETHER WITH THE BENEFIT OF THE GOVERNMENT'S CONTRIBUTION TO HIS DEPENDENTS, SO LONG AS HE AND THEY OTHERWISE REMAINED ENTITLED THERETO. SEE 29 COMP. GEN. 238.

YOUR SIXTH QUESTION IS AS FOLLOWS:

6. UNDER THE LANGUAGE OF SECTION 515, THE SAVINGS PROVISIONS THEREOF CEASE TO APPLY TO A MEMBER "WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION UNDER THE PROVISIONS OF THIS ACT IN EXCESS OF THE AMOUNT OF SUCH TOTAL COMPENSATION TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING THE EFFECTIVE DATE OF THIS ACT.' WITH REFERENCE TO SUCH QUOTED LANGUAGE, IF AN ENLISTED MEMBER IS PROMOTED TO A GRADE, AT AN INTERMEDIATE DATE IN A CALENDAR MONTH, WHICH OPERATES TO TERMINATE HIS RIGHT TO FURTHER SAVED PAY AS EXPRESSED IN THE ABOVE QUOTED PROVISION, WILL THE PAYMENT OF FAMILY ALLOWANCE CEASE AT THE END OF THAT MONTH OR THE PRIOR MONTH OR MUST THE FAMILY ALLOWANCE PAYMENT BE PRORATED FOR THE MONTH IN WHICH PROMOTED? IF PRORATION OF FAMILY ALLOWANCE PAYMENT IS REQUIRED, MUST THE DEDUCTION MADE FROM THE PAY OF THE ENLISTED PERSON BE PRORATED?

UNDER THE SAID SAVINGS PROVISIONS AND SUBJECT TO THE LIMITATIONS CONTAINED THEREIN, AN ENLISTED MEMBER IS ENTITLED TO CONTINUE TO RECEIVE THE "TOTAL COMPENSATION" WHICH HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, UNDER ANY PROVISION OF LAW THEN IN EFFECT, SO LONG AS HE OTHERWISE QUALIFIES THEREFOR, UNTIL SUCH TIME AS HE BECOMES ENTITLED TO RECEIVE TOTAL COMPENSATION UNDER THE NEW LAW IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949. WHILE THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT WAS REPEALED BY SECTION 531 (D) OF THE ACT OF OCTOBER 12, 1949, 63 STAT. 841, THE PROVISIONS THEREOF WERE CONTINUED IN FULL FORCE AND EFFECT BY SECTION 520 OF THE ACT AS TO ANY MEMBER FOR SUCH TIME AS HE MAY BE ENTITLED TO THE SAVED COMPENSATION BENEFITS OF THE ACT. UNDER THE PROVISIONS OF SECTION 107 OF THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 383, AS AMENDED, 37 U.S.C. 207, A RIGHT TO FAMILY ALLOWANCE TERMINATES AT THE END OF THE MONTH IN WHICH A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT OCCURS. HENCE, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, IT IS CONCLUDED THAT NEITHER THE PAYMENT OF FAMILY ALLOWANCE NOR THE REQUIRED DEDUCTIONS FROM THE MEMBER'S PAY NEED BE PRORATED FOR A FRACTIONAL PART OF THE MONTH IN WHICH THE MEMBER'S RIGHT TO SAVED PAY TERMINATES BUT, IF OTHERWISE PROPER, PAYMENT THEREOF AND DEDUCTION THEREFOR SHOULD BE MADE FOR THE WHOLE OF SUCH MONTH. CF. 23 COMP. GEN. 1.

YOUR SEVENTH QUESTION IS AS FOLLOWS:

7. UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, AN ENLISTED MEMBER MAY, AT SUCH MEMBER'S OPTION, DISCONTINUE TO RECEIVE THE BENEFITS PROVIDED IN SUCH ACT WITH RESPECT TO DEPENDENTS OF CLASS B OR B-1 (FATHERS OR MOTHERS; SISTERS AND BROTHERS, DEPENDENT FOR SUBSTANTIAL OR CHIEF SUPPORT). WITH RESPECT TO SUCH PROVISION, MAY AN ENLISTED MEMBER EXERCISE SUCH ELECTION AFTER 1 OCTOBER 1949 TO DISCONTINUE TO RECEIVE THE BENEFITS OF SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, ON ACCOUNT OF CLASS B OR B-1 DEPENDENTS?

AS INDICATED IN THE ANSWER TO THE PRECEDING QUESTION THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT WERE CONTINUED IN EFFECT FOR A LIMITED PERIOD FOR ENLISTED MEN ENTITLED TO SAVED COMPENSATION. UNDER SECTION 104 OF THE SAID ACT, 56 STAT. 381, AS AMENDED, 37 U.S.C. 204, SO CONTINUED IN EFFECT, THE PAYMENT OF MONTHLY FAMILY ALLOWANCE TO ANY CLASS B OR B-1 DEPENDENT OR DEPENDENTS MAY BE TERMINATED UPON RECEIPT BY THE DEPARTMENT CONCERNED OF A WRITTEN REQUEST BY AN ENLISTED MAN THAT SUCH ALLOWANCE BE TERMINATED. NO PROVISION HAS BEEN FOUND IN THE CAREER COMPENSATION ACT OF OCTOBER 12, 1949, WHICH MAY BE REGARDED AS AFFECTING A MEMBER'S RIGHT TO TERMINATE PAYMENT OF THE MONTHLY FAMILY ALLOWANCE TO ANY CLASS B OR B-1 DEPENDENT ON OR AFTER OCTOBER 1, 1949. ON THE CONTRARY, THE THIRD PROVISO IN SUBSECTION (B) OF SECTION 515 OF THE ACT OF OCTOBER 12, 1949, PROVIDES THAT THE SAVINGS PROVISIONS OF THE SAID SECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION "UPON FAILURE OF SUCH MEMBER OR HIS DEPENDENT OR DEPENDENTS TO QUALIFY THEREFOR OR TO BE ENTITLED THERETO.' WHEN THE RIGHT OF A CLASS B OR CLASS B-1 DEPENDENT TO RECEIVE THE FAMILY ALLOWANCE IS TERMINATED BY REASON OF THE VOLUNTARY ACTION OF THE ENLISTED MEMBER, OR OTHERWISE, THE SAVINGS PROVISIONS OF THE SAID SECTION 515 (B) CEASE TO APPLY TO THAT PART OF THE TOTAL COMPENSATION REPRESENTING THE GOVERNMENT'S CONTRIBUTION TO FAMILY ALLOWANCE TO SUCH DEPENDENT.

YOUR EIGHTH QUESTION IS AS FOLLOWS:

8. WITH RESPECT TO ENLISTED MEMBERS WHO, FROM 1 OCTOBER 1949 ARE ENTITLED TO THE SAVINGS PROVISIONS OF SECTION 515 (B), CAREER COMPENSATION ACT OF 1949, ARE THEY ENTITLED TO HAVE ADDED TO THE SUM SAVED TO THEM, ANY AMOUNT ON ACCOUNT OF ADDITIONAL DEPENDENTS ACQUIRED ON AND AFTER 1 OCTOBER 1949, AND WITHIN THE LIMITING PERIODS STATED IN SAID SECTION 515 (B/? THIS QUESTION IS PREDICATED ON THE ASSUMPTION THAT BY SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, HAS BEEN CONTINUED IN EFFECT FOR THE PERIOD OF ENTITLEMENT SET FORTH IN SECTION 515 (B) AND THAT SAID ENLISTED MEMBERS ARE STILL ELIGIBLE TO THE FULL BENEFITS OF SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, FOR SUCH STATED PERIODS OF TIME.

IF YOUR ANSWER IS IN THE AFFIRMATIVE, MAY SUCH ADDITIONAL FAMILY ALLOWANCE BENEFITS BE INCLUDED THEREAFTER IN COMPUTING "TOTAL COMPENSATION" SAVED UNDER SECTION 515 (B/?

THE SAVINGS PROVISION IN SUBSECTION (B) OF SECTION 515, AS THE TITLE TO THE SAID SECTION 515 INDICATES, IS A PROVISION TO "RETAIN PRESENT COMPENSATION; " IT MERELY SAVES A MEMBER FROM ANY ,REDUCTION" IN THE TOTAL COMPENSATION WHICH HE WAS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949; IT DOES NOT SAVE A MEMBER A RIGHT TO RECEIVE AN INCREASE AFTER OCTOBER 1, 1949, IN THE PAY AND ALLOWANCES, OR OTHER MONETARY BENEFITS, TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. ACCORDINGLY, THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO THE SECOND PART OF THE QUESTION IS REQUIRED.

YOUR NINTH QUESTION IS AS FOLLOWS:

9. IF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IS CONTINUED IN EFFECT AS TO SUCH MEMBERS AND FOR SUCH PERIODS AS ARE COVERED UNDER SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, DOES SUCH CONTINUATION CARRY WITH IT THE AUTHORITY OF THE SERVICES CONCERNED TO EXERCISE WAIVER OF RECOVERY ACTION WITH RESPECT TO OVERPAYMENTS THAT MAY HAVE BEEN MADE TO DEPENDENTS OF SUCH MEMBERS?

SECTION 515 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, SHALL, ON THE DATE OF ENACTMENT OF THIS ACT, BECOME INOPERATIVE FOR THE DEPENDENT OR DEPENDENTS OF ALL MEMBERS OTHER THAN THOSE PRESCRIBED IN SUBSECTION (B) OF THIS SECTION.

SECTION 520 OF THE SAID ACT, 63 STAT. 834, PROVIDES AS FOLLOWS:

ANY PROVISION OF LAW WHICH, ON THE DATE OF ENACTMENT OF THIS ACT, ENTITLES ANY PERSON TO BE RETIRED, TO RECEIVE PAY, RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY, OR OTHER MONETARY BENEFIT, AND WHICH IS DIRECTLY REPEALED, IMPLIEDLY REPEALED, OR AMENDED BY THE PROVISIONS OF THIS ACT, SHALL, IF THE ENTITLEMENT OF SUCH PERSON TO SUCH RETIREMENT, PAY, RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER MONETARY BENEFIT IS SAVED BY THE PROVISIONS OF THIS ACT, BE CONTINUED IN FULL FORCE AND EFFECT FOR SUCH ENTITLEMENT AND FOR SUCH A TIME AS SUCH ENTITLEMENT MAY EXIST.

SECTION 531 (D) OF THE SAID ACT, 63 STAT. 841, EXPRESSLY REPEALED THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, EFFECTIVE OCTOBER 1, 1949. SEE SECTION 533 (A), 63 STAT. 841.

IT WILL BE NOTED THAT THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, WAS EXPRESSLY REPEALED, BUT THE PROVISIONS THEREOF WERE CONTINUED IN FULL FORCE AND EFFECT AS TO MEMBERS WHO ARE ENTITLED TO SAVED "TOTAL COMPENSATION" UNDER SUBSECTION (B) OF SECTION 515 FOR SUCH TIME AS ENTITLEMENT THERETO MAY EXIST. IT IS TO BE UNDERSTOOD THAT WHAT IS SAID HEREINAFTER, UNLESS OTHERWISE INDICATED, HAS REFERENCE SOLELY TO MEMBERS AND THEIR DEPENDENTS WHO ARE ENTITLED TO CONTINUE TO RECEIVE FAMILY ALLOWANCE PAYMENTS BY REASON OF THE SAVINGS PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949.

SECTION 112 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 384, AS AMENDED, 37 U.S.C. 212, VESTS IN THE SECRETARIES OF THE DEPARTMENTS CONCERNED THE AUTHORITY, IN THE ADMINISTRATION OF THE ACT, TO MAKE VARIOUS DETERMINATIONS OF FACT, INCLUDING THE FACT OF DEPENDENCY, AND TO WAIVE RECOVERY OF CERTAIN OVERPAYMENTS AND ERRONEOUS PAYMENTS. INASMUCH AS ENLISTED MEMBERS AND THEIR DEPENDENTS WHO ARE OTHERWISE ELIGIBLE FOR FAMILY ALLOWANCE MUST CONTINUE TO QUALIFY FOR SUCH ALLOWANCES AFTER SEPTEMBER 30, 1949, THERE WOULD SEEM TO BE LITTLE DOUBT THAT THE SECRETARIES RETAIN THE RIGHT TO MAKE THE NECESSARY DETERMINATIONS AND TO WAIVE RECOVERY OF OVERPAYMENTS OR ERRONEOUS PAYMENTS FOR PERIODS ON AND AFTER OCTOBER 1, 1949, IN SUCH CASES SO LONG AS A RIGHT TO FAMILY ALLOWANCES CONTINUES TO EXIST. FURTHERMORE, IN SUCH CASES IT WOULD APPEAR THAT THE SECRETARIES ALSO RETAIN THE RIGHT TO WAIVE RECOVERY OF OVERPAYMENTS OR ERRONEOUS PAYMENTS WHICH OCCURRED PRIOR TO OCTOBER 1, 1949, NOTWITHSTANDING THE FACT THAT THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT WAS REPEALED EFFECTIVE OCTOBER 1, 1949. IN THAT CONNECTION, IT IS TO BE NOTED THAT ITS PROVISIONS WERE CONTINUED IN EFFECT FOR MEMBERS ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT AND, CONSEQUENTLY, THERE WOULD APPEAR FOR APPLICATION THE RULE OF STATUTORY CONSTRUCTION THAT WHERE A STATUTE IS REPEALED AND ALL, OR SOME, OF ITS PROVISIONS ARE AT THE SAME TIME REENACTED, THE REENACTMENT IS CONSIDERED A REAFFIRMANCE OF THE OLD LAW AND A NEUTRALIZATION OF THE REPEAL, SO THAT THE PROVISIONS OF THE REPEALED ACT WHICH ARE THUS REENACTED AND CONTINUE IN FORCE WITHOUT INTERRUPTION, AND ALL RIGHTS AND LIABILITIES INCURRED THEREUNDER, ARE PRESERVED AND MAY BE ENFORCED AND PENDING PROCEEDINGS NOT FULLY CONSUMMATED DO NOT FALL WITH THE REPEAL OF LAWS UNDER WHICH THEY ARE BEGUN. SEE 50 AM. JUR. STATUTES, SECTION 533. APPLYING SUCH RULE TO THE INSTANT CASE, IT APPEARS THAT THE SECRETARIES RETAIN AUTHORITY TO WAIVE RECOVERY OF OVERPAYMENTS AND ERRONEOUS PAYMENTS MADE PRIOR TO OCTOBER 1, 1949. HOWEVER, AS HEREINBEFORE INDICATED, THE FOREGOING RULE IS ONLY APPLICABLE TO CASES WHERE DEPENDENTS ARE RECEIVING FAMILY ALLOWANCES BY REASON OF THE SAVINGS PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949. BUT WHEN IN ANY CASE THE SAID SAVINGS PROVISIONS CEASE TO APPLY, THE RULE IS OTHERWISE. THE CAREER COMPENSATION ACT EXPRESSLY REPEALED THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, EXCEPT AS TO PERSONNEL ENTITLED TO THE SAVINGS PROVISION OF SECTION 515 (B), AND WHERE SAVINGS CLAUSES REFER TO A SPECIFIC MATTER, IT IS USUALLY TAKEN AS AN INDICATION OF LEGISLATIVE INTENT TO SAVE NOTHING ELSE FROM THE REPEAL. HANES V. WADEY, 41 N.W. 222. AND, IT IS A RULE OF ALMOST UNIVERSAL APPLICATION THAT, WHERE A RIGHT IS CREATED SOLELY BY A STATUTE, AND IS DEPENDENT ON THE STATUTE ALONE AND SUCH RIGHT IS STILL INCHOATE, THE REPEAL OF THE STATUTE DESTROYS THE REMEDY UNLESS THE REPEALING STATUTE CONTAINS A SAVINGS CLAUSE. NATA STATE HOSPITAL V. FLAHERTY, 66 PAC. 332. ALSO, SEE TODD V. LANDRY, 12 AM. DEC. 479, HOLDING THAT REPEAL OF A STATUTE GIVING A COURT JURISDICTION DEPRIVES IT OF THE RIGHT TO PRONOUNCE JUDGMENT IN A PROCEEDING PREVIOUSLY PENDING; AND GRANT V. GRANT, 32 AM. REP. 506, TO THE EFFECT THAT A STATUTE REPEALING ALL DIVORCE LAWS OF A STATE OUSTS THE COURT OF JURISDICTION IN PENDING DIVORCE ACTIONS. SEE, ALSO, MISSOURI PACIFIC RAILROAD COMPANY V. UNITED STATES, 16 F.1SUPP. 752, HOLDING THAT, WHERE A STATUTE EXPIRES BY ITS OWN LIMITATIONS, THE EFFECT ON PENDING TRANSACTIONS IS THE SAME AS IF THE STATUTES WERE REPEALED AT THAT TIME, AND, IN THE ABSENCE OF A SAVINGS CLAUSE, ALL SUITS MUST STOP WHERE EXPIRATION OF THE STATUTE FOUND THEM. IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE AUTHORITY VESTED IN THE SECRETARIES TO WAIVE RECOVERY OF OVERPAYMENTS AND ERRONEOUS PAYMENTS OF FAMILY ALLOWANCES UNDER SECTION 112 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 384, AS AMENDED, TERMINATED ON THE DATE OF REPEAL OF THE SAID ACT, EXCEPT TO THE EXTENT SAVED BY THE SAVINGS PROVISION IN SECTIONS 515 (C) AND 520 OF THE CAREER COMPENSATION ACT OF 1949. HENCE, IF A MEMBER IS NOT ENTITLED TO THE BENEFITS OF THE SAID SAVINGS PROVISION, THE SECRETARY IS NOT AUTHORIZED TO WAIVE RECOVERY OF OVERPAYMENTS OR ERRONEOUS PAYMENTS OF FAMILY ALLOWANCES WHICH OCCURRED EITHER PRIOR OR SUBSEQUENT TO SUCH REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED.

YOUR TENTH QUESTION IS AS FOLLOWS:

10. IF THE CONTRIBUTION BY THE GOVERNMENT UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IS SAVED UNDER SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, IS SUCH CONTRIBUTION LEGALLY CONSIDERED AS A PART OF THE MEMBER'S PAY? IN THIS CONNECTION, COMPUTATIONS ON PAY ACCOUNTS HAVING PERIODS OF ABSENCE WITHOUT LEAVE, STOPPAGES, OR CHECK AGES, AND AMOUNTS WITHHELD FOR INCOME TAX PURPOSES WILL BE AFFECTED.

PRIOR TO THE CAREER COMPENSATION ACT OF 1949, THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE WAS NOT CONSIDERED A PART OF AN ENLISTED MAN'S PAY; SUCH ALLOWANCE CONSISTED OF TWO PARTS (1) A "CONTRIBUTION" BY THE GOVERNMENT, AND (2) A DEDUCTION OR CHARGE AGAINST THE ENLISTED MAN'S PAY. THE FAMILY ALLOWANCE WAS PAYABLE DIRECTLY TO THE DEPENDENT OR DEPENDENTS AND, IN THE CASE OF CLASS A DEPENDENTS, IT WAS PAYABLE UPON APPLICATION THEREFOR BY SUCH DEPENDENT OR DEPENDENTS. WHILE THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE IS DIRECTED TO BE INCLUDED, IN CERTAIN INSTANCES, IN THE "COMPUTATION" OF "TOTAL COMPENSATION" IN FIXING THE BENEFITS WHICH ARE TO BE SAVED TO A MEMBER OF THE UNIFORMED SERVICES ON AND AFTER OCTOBER 1, 1949, UNDER THE SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT, THERE APPEARS NO BASIS TO REGARD SUCH CONTRIBUTION AS A PART OF A MEMBER'S PAY WHICH IS SUBJECT TO DEDUCTION ON ACCOUNT OF PERIODS OF ABSENCE WITHOUT LEAVE, STOPPAGES, OR CHECK AGES. NO CHANGE APPEARS TO HAVE BEEN MADE IN THE CHARACTER OF THE FAMILY ALLOWANCE; IT CONTINUES TO BE PAYABLE DIRECTLY TO THE DEPENDENTS, AND IF A MEMBER OR HIS DEPENDENTS FAILS TO QUALIFY OR TO BE ENTITLED TO SUCH ALLOWANCE, THE SAVINGS PROVISION IN SECTION 515 (B) CEASES TO APPLY, AND THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE NO LONGER MAY BE INCLUDED IN THE SAVED "TOTAL COMPENSATION.' HENCE, IT IS CONCLUDED THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE SHOULD NOT BE CONSIDERED A PART OF AN ENLISTED MEMBER'S PAY FOR THE PURPOSES ENUMERATED IN THIS QUESTION, EXCEPT THAT ANY QUESTION AS TO WHETHER SUCH CONTRIBUTION TO THE FAMILY ALLOWANCE SHOULD BE CONSIDERED A PART OF THE ENLISTED MEMBER'S PAY IN CONNECTION WITH AMOUNTS TO BE WITHHELD FOR INCOME TAX PURPOSES WOULD APPEAR TO BE A MATTER FOR CONSIDERATION BY THE BUREAU OF INTERNAL REVENUE.

THE ELEVENTH QUESTION IS AS FOLLOWS:

11. IF A MEMBER IS IN A NON-PAY STATUS ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, IS SUCH MEMBER ENTITLED TO SAVED PAY UNDER SECTION 515 IF THE TOTAL COMPENSATION TO WHICH HE SHOULD HAVE BEEN ENTITLED ON THE DAY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 EXCEEDS THE TOTAL COMPENSATION TO WHICH HE IS ENTITLED UNDER THE CAREER COMPENSATION ACT OF 1949?

THE PRIMARY PURPOSE OF THE SAVINGS PROVISIONS IN SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, IS TO SAVE ANY MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THE ACT, OCTOBER 1, 1949, FROM ANY REDUCTION IN THE "TOTAL COMPENSATION" WHICH HE WAS "ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE.' THE STATUTE DOES NOT SAY THE TOTAL COMPENSATION HE WAS ENTITLED TO RECEIVE FOR THAT PRECEDING DAY BUT, MORE BROADLY, THE TOTAL COMPENSATION HE WAS ENTITLED TO RECEIVE "UNDER ANY PROVISION OF LAW IN EFFECT" ON THAT DAY. THERE APPEARS NO SUBSTANTIAL REASON TO BELIEVE THAT THE CONGRESS INTENDED BY SUCH LANGUAGE TO FORFEIT SUCH RIGHT OR TO DEPRIVE A MEMBER OF THE BENEFITS OF SUCH SAVINGS PROVISIONS DURING A PERIOD WHICH MIGHT EXTEND AS LATE AS JULY 1, 1952, OR ALMOST THREE YEARS, MERELY BECAUSE HE HAPPENED TO BE IN A NONPAY STATUS ON THAT PARTICULAR DAY, SEPTEMBER 30, 1949, BY REASON, FOR EXAMPLE, OF AUTHORIZED LEAVE WITHOUT PAY, ABSENCE OVER LEAVE, EXCESS LEAVE, ETC., WHERE HE WAS OTHERWISE IN A STATUS GENERALLY ENTITLING HIM, UNDER LAWS IN EFFECT ON THAT DAY, TO TOTAL COMPENSATION SUFFICIENT TO BRING HIM WITHIN SUCH SAVINGS PROVISIONS. ON SUCH BASIS, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE TWELFTH QUESTION IS AS FOLLOWS:

12. IF A MEMBER OF THE UNIFORMED SERVICES IS UNDER COMPETENT ORDERS TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, IS HE ENTITLED TO SAVE HIS FLYING PAY UNDER THE PROVISIONS OF SECTION 515 IN THE FOLLOWING CASES, ASSUMING THAT HIS TOTAL COMPENSATION INCLUDING FLYING PAY UNDER LAWS IN EXISTENCE PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 EXCEEDS THE TOTAL COMPENSATION TO WHICH HE IS ENTITLED UNDER THE CAREER COMPENSATION ACT OF 1949?

A. FLIGHT REQUIREMENTS MET THROUGH 31 AUGUST 1949. SEPTEMBER--- FLIGHT REQUIREMENTS NOT MET. OCTOBER--- FLIGHT REQUIREMENTS FOR SEPTEMBER AND OCTOBER WERE MET.

B. SEPTEMBER--- FLIGHT REQUIREMENTS NOT MET. OCTOBER--- FLIGHT REQUIREMENTS MET FOR OCTOBER ONLY. NOVEMBER--- FLIGHT REQUIREMENTS MET FOR SEPTEMBER AND NOVEMBER.

IF FLIGHT PAY CAN BE SAVED UNDER B, WILL THE FLIGHT PAY CREDITED AS OF 31 OCTOBER 1949 BE BASED UPON LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 OR UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949?

SECTION 204 (A) AND (B) OF THE CAREER COMPENSATION ACT, 63 STAT. 809, 810, FIXES INCENTIVE PAY FOR HAZARDOUS DUTY (WHICH INCLUDES DUTY AS A CREW MEMBER OR NONCREW MEMBER INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS) AT MONTHLY RATES RANGING FROM $100 PER MONTH FOR OFFICERS IN PAY GRADE O-1 TO $210 PER MONTH FOR OFFICERS IN PAY GRADE O-6, AND AT THE RATE OF $150 PER MONTH FOR OFFICERS IN PAY GRADE O-8, INSTEAD OF 50 PERCENTUM OF THEIR PAY AS PREVIOUSLY AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AS AMENDED.

UNDER THE SAVINGS PROVISION IN SECTION 515 NO MEMBER IS TO SUFFER ANY REDUCTION IN THE "TOTAL COMPENSATION" WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949. HENCE, IF A MEMBER IN A FLYING PAY STATUS ON SEPTEMBER 30, 1949, IS ENTITLED TO LESS "TOTAL COMPENSATION"--- INCLUDING FLYING PAY--- UNDER THE PROVISIONS OF THE NEW ACT THAN THAT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, HE WOULD CONTINUE TO BE ENTITLED TO RECEIVE TOTAL COMPENSATION, INCLUDING FLYING PAY, UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR THE PERIOD PRESCRIBED IN SECTION 515, OR UNTIL HE BECOMES ENTITLED TO RECEIVE TOTAL COMPENSATION UNDER THE NEW ACT IN EXCESS OF THAT TO WHICH HE WAS ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. HOWEVER, THE SAID SAVINGS PROVISION CEASES TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION ,UPON FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR," AND IT WOULD APPEAR THAT A MEMBER WHO IS ENTITLED TO FLYING PAY UNDER THE PROVISIONS OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AS AN ITEM OF SAVED "TOTAL COMPENSATION" MUST "QUALIFY" FOR SUCH FLYING PAY UNDER THE PROVISIONS OF THE EXECUTIVE REGULATIONS ISSUED PURSUANT TO THE PAY READJUSTMENT ACT OF 1942, THAT IS, EXECUTIVE ORDER 9195, JULY 7, 1942, AS AMENDED. CONSEQUENTLY, THE REGULATIONS HERETOFORE APPLICABLE WITH RESPECT TO MAKING UP FLIGHT REQUIREMENTS, ETC., WOULD CONTINUE TO APPLY DURING THE PERIOD SUCH MEMBER CONTINUED TO BE ENTITLED TO RECEIVE SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT.

IN EXAMPLE (A) REFERRED TO IN YOUR LETTER, FLIGHT REQUIREMENTS WERE NOT MET FOR SEPTEMBER AND, HENCE, THE MEMBER ACTUALLY WAS NOT IN RECEIPT OF FLYING PAY ON SEPTEMBER 30, 1949, BUT HE WAS ,ENTITLED TO RECEIVE" FLYING PAY FOR SEPTEMBER UNDER THE PROVISIONS OF THE LAW AND REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949, BY MAKING UP THE FLIGHT REQUIREMENTS THE FOLLOWING MONTH. SEE 23 COMP. GEN. 948, AND CASES THEREIN CITED. EXAMPLE (B), THE FLIGHT REQUIREMENTS WERE LIKEWISE MADE UP WITHIN THE PERIOD PRESCRIBED IN EXECUTIVE ORDER 9195, AS AMENDED, AND, HENCE, THE MEMBER WOULD BE ENTITLED, IN BOTH CASES, TO INCLUDE FLYING PAY IN THE COMPUTATION OF HIS SAVED "TOTAL COMPENSATION" ON THE BASIS OF THE LAW AND REGULATIONS IN EFFECT PRIOR TO SEPTEMBER 30, 1949.