B-92165, MAY 17, 1950, 29 COMP. GEN. 464

B-92165, MAY 17, 1950, 29 COMP. GEN. 464

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 A NAVY ENLISTED MAN WHO WHILE HOSPITALIZED WAS RECEIVING SUBSISTENCE IN KIND ON THE DAY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND WHO OTHERWISE IS ENTITLED TO THE SAVED TOTAL COMPENSATION THEREUNDER, MAY UPON RETURN FROM THE HOSPITAL TO HIS PERMANENT DUTY STATION INCLUDE IN THE COMPUTATION OF HIS SAVED TOTAL COMPENSATION THE APPROPRIATE STATION SUBSISTENCE ALLOWANCE WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED TO RECEIVE AT HIS PERMANENT DUTY STATION UNDER PRIOR LAWS. A MEMBER OF THE NAVY WHOSE SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949 INCLUDES SUBMARINE PAY AND WHO IS DETACHED FROM ONE SUBMARINE AND REPORTS ON BOARD ANOTHER ON THE SAME OR FOLLOWING DAY DOES NOT THEREBY FAIL TO QUALIFY FOR SUBMARINE PAY AND WHO IS DETACHED FROM ONE SUBMARINE AND REPORTS ON BOARD ANOTHER ON THE SAME OR FOLLOWING DAY DOES NOT THEREBY FAIL TO QUALIFY FOR SUBMARINE PAY UNDER PRIOR LAWS AND, THEREFORE, MAY CONTINUE TO RECEIVE SUCH PAY AS A PART OF HIS SAVED TOTAL COMPENSATION; HOWEVER, A MEMBER WHO FAILS TO REPORT FOR DUTY ON BOARD ANOTHER SUBMARINE ON THE DAY OF DETACHMENT OR ON THE FOLLOWING DAY DOES THEREBY FAIL TO QUALIFY FOR SUBMARINE PAY UNDER PRIOR LAWS AND, THEREFORE, MAY NOT INCLUDE SUCH PAY AS A PART OF HIS SAVED TOTAL COMPENSATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 17, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 16, 1950, REQUESTING DECISION ON SEVERAL 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, 63 STAT. 802. IT IS ASSUMED THAT THE ENLISTED MEMBERS IN EACH CASE WERE ENTITLED TO THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, ON SEPTEMBER 30, 1949.

THE FIRST QUESTION PRESENTED INVOLVES THE CASE OF AN ENLISTED MEMBER OF THE NAVY WHO ALTHOUGH ENTITLED TO STATION SUBSISTENCE ALLOWANCE WHEN PERFORMING DUTY AT HIS PERMANENT DUTY STATION WAS NOT ACTUALLY IN RECEIPT OF SUCH ALLOWANCE ON SEPTEMBER 30, 1949, BY REASON OF THE FACT THAT HE WAS CONFINED AS A PATIENT AT A NAVAL HOSPITAL FROM SEPTEMBER 12 TO OCTOBER 28, 1949, WHERE HE WAS FURNISHED RATIONS IN KIND. THE QUESTION IS WHETHER, UPON RETURN FROM THE HOSPITAL TO HIS PERMANENT DUTY STATION, THE SUBSISTENCE ALLOWANCE AUTHORIZED UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949, MAY BE INCLUDED IN COMPUTING THE MEMBER'S SAVED "TOTAL COMPENSATION," AS DEFINED IN SECTION 515 (B), EVEN THOUGH HE WAS NOT ACTUALLY RECEIVING SUCH ALLOWANCE ON SEPTEMBER 30, 1949.

SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, PROVIDES IN PART AS FOLLOWS:

ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBER WHOSE ENLISTMENT TERMINATED IN THE PERIOD BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO HAS ENTERED INTO A NEW ENLISTMENT WITHIN ONE MONTH OF SUCH TERMINATION SHALL NOT, PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE, OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE 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 SAID SECTION 515 (B) BROADLY REFERS TO THE TOTAL COMPENSATION WHICH THE MEMBER WAS ENTITLED TO RECEIVE "UNDER ANY PROVISION OF LAW IN EFFECT" ON SEPTEMBER 30, 1949, AND, AS STATED IN DECISION OF NOVEMBER 30, 1949, 29 COMP. GEN. 241, 253 (ANSWER TO THE 11TH QUESTION), THERE IS NO SUBSTANTIAL REASON TO BELIEVE THAT THE CONGRESS INTENDED BY SUCH LANGUAGE TO DEPRIVE A MEMBER OF THE BENEFITS OF SUCH SAVINGS PROVISION DURING A PERIOD WHICH MIGHT EXTEND AS LATE AS JULY 1, 1952, OR ALMOST THREE YEARS, MERELY BECAUSE THE MEMBER HAPPENED TO BE IN A NONPAY STATUS ON SEPTEMBER 30, 1949, OR BY REASON, FOR EXAMPLE, OF AUTHORIZED LEAVE WITHOUT PAY, ABSENCE OVER LEAVE, EXCESS LEAVE, ETC., WHERE HE OTHERWISE WAS IN A STATUS GENERALLY ENTITLING HIM UNDER LAWS IN EFFECT ON THAT DATE TO TOTAL COMPENSATION SUFFICIENT TO BRING HIM WITHIN SUCH SAVINGS PROVISION. NOR DOES THERE APPEAR TO BE ANY INTENT TO DEPRIVE A MEMBER OF THE BENEFITS OF THE SAID SAVINGS PROVISION MERELY BECAUSE THE MEMBER WAS BEING SUBSISTED IN KIND RATHER THAN BEING PAID A SUBSISTENCE ALLOWANCE ON SEPTEMBER 30, 1949. AS A MATTER OF FACT, THE LAW IN EFFECT ON SEPTEMBER 30, 1949 (SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, 37 U.S.C. 110), AUTHORIZED EACH ENLISTED MEMBER NOT FURNISHED RATIONS IN KIND TO BE PAID AN ALLOWANCE FOR SUBSISTENCE, THE AMOUNT THEREOF DEPENDING UPON THE CONDITIONS UNDER WHICH THE DUTY OF THE MEMBER WAS BEING PERFORMED; AND THE SAID SECTION 10 FURTHER PROVIDED THAT ENLISTED MEMBERS ENTITLED TO RECEIVE ALLOWANCES FOR QUARTERS OR SUBSISTENCE SHOULD CONTINUE, WE THEIR PERMANENT STATION REMAINED UNCHANGED, TO RECEIVE SUCH ALLOWANCES WHILE SICK IN HOSPITAL OR ABSENT FROM THEIR PERMANENT DUTY STATIONS IN A PAY STATUS, WITH THE PROVISO THAT ALLOWANCES FOR SUBSISTENCE SHOULD NOT ACCRUE WHILE THE MEMBER WAS IN FACT BEING SUBSISTED AT GOVERNMENT EXPENSE. CONSEQUENTLY, ON SEPTEMBER 30, 1949, THE ENLISTED MEMBER HERE INVOLVED WAS ENTITLED, UNDER THE LAW IN EFFECT ON THAT DATE, TO SUBSISTENCE IN KIND OR MONEY ALLOWANCE IN LIEU THEREOF, AND, AS STATED IN DECISION OF MARCH 3, 1950, B-90839, 29 COMP. GEN. 347:

* * * THE CONCLUSION MUST BE REACHED THAT AN ENLISTED MEMBER OTHERWISE ENTITLED TO SAVED TOTAL COMPENSATION IS ENTITLED TO CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF AS AN ITEM OF HIS SAVED TOTAL COMPENSATION SO LONG AS HE QUALIFIES FOR ONE OR THE OTHER. THAT IS TO SAY, THE SUBSISTENCE IN KIND AND THE MONEY ALLOWANCE ARE ALTERNATIVES OF THE SAME BASIC ALLOWANCE, AN ENLISTED MEMBER BEING ENTITLED TO ONE AS A SUBSTITUTE FOR THE OTHER AT ALL TIMES, AND THE FACT THAT THE ALLOWANCE MAY TEMPORARILY BE INCLUDED IN, OR BE PAID IN, THE FORM OF A PER DIEM TRAVEL ALLOWANCE DOES NOT RESULT IN A FAILURE OF THE MEMBER TO CONTINUE TO QUALIFY FOR SUCH BASIC SUBSISTENCE ALLOWANCE, WITHIN THE MEANING OF THE LIMITATION IN SECTION 515 (B). * * *

THE REASONING IN THAT DECISION IS EQUALLY APPLICABLE IN THE PRESENT CASE. ACCORDINGLY, IF THE ENLISTED MEMBER HERE INVOLVED OTHERWISE WOULD HAVE BEEN IN A STATUS ENTITLING HIM TO SAVED TOTAL COMPENSATION ON SEPTEMBER 30, 1949, HE WOULD BE ENTITLED, UPON RETURN FROM THE HOSPITAL TO HIS PERMANENT DUTY STATION, TO INCLUDE IN THE COMPUTATION OF HIS SAVED TOTAL COMPENSATION THE APPROPRIATE STATION SUBSISTENCE ALLOWANCE WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED TO RECEIVE AT HIS PERMANENT DUTY STATION UNDER LAWS AND REGULATIONS IN EFFECT ON SEPTEMBER 30, 1949.

THE SECOND QUESTION INVOLVES AN ENLISTED MEMBER WHO WAS ENTITLED TO STATION SUBSISTENCE ALLOWANCE ON SEPTEMBER 30, 1949, AND THEREAFTER WAS ORDERED TO PERFORM TEMPORARY ADDITIONAL DUTY AWAY FROM HIS PERMANENT STATION FOR A SPECIFIED PERIOD DURING WHICH HE RECEIVED A TRAVEL ALLOWANCE OR WAS FURNISHED RATIONS IN KIND. THE QUESTION IS WHETHER THE MEMBER'S PAY ACCOUNT MAY BE CREDITED WITH STATION SUBSISTENCE ALLOWANCE UPON RETURN TO HIS PERMANENT DUTY STATION FOLLOWING THE PERIOD OF ENTITLEMENT TO TRAVEL ALLOWANCE OR SUBSISTENCE IN KIND; AND, PRESUMABLY, SUCH QUESTION ARISES BY REASON OF THE PROVISION IN SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949 WHICH PROVIDES AS FOLLOWS:

* * * PROVIDED FURTHER, THAT * * * (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER OR HIS DEPENDENT OR DEPENDENTS TO QUALIFY THEREFOR OR TO BE ENTITLED THERETO * * *.

THE IDENTICAL QUESTION WAS CONSIDERED IN DECISION OF MARCH 3, 1950, B- 90839, 29 COMP. GEN. 347, WHERE IT WAS HELD (QUOTING THE SYLLABUS):

AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS RECEIVING SUBSISTENCE IN KIND OR A MONEY ALLOWANCE IN LIEU THEREOF UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, AND WHO IS OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION PROVIDED FOR IN SECTION 515 (B), OF THE CAREER COMPENSATION ACT OF 1949, MAY CONTINUE TO RECEIVE EITHER SUBSISTENCE IN KIND OR A MONEY ALLOWANCE AS AN ITEM OF HIS SAVED TOTAL COMPENSATION SO LONG AS HE QUALIFIES THEREFOR EVEN THOUGH THE ALLOWANCE TEMPORARILY MAY BE INCLUDED IN, OR BE PAID IN, THE FORM OF A PER DIEM TRAVEL ALLOWANCE.

ACCORDINGLY, THE FACT THAT AN ENLISTED MEMBER MAY PERFORM TEMPORARY ADDITIONAL DUTY AWAY FROM HIS PERMANENT DUTY STATION WOULD NOT OPERATE TO DEPRIVE HIM OF THE BENEFITS OF THE SAID SAVINGS PROVISION IN SECTION 515 (B), IF OTHERWISE ENTITLED THERETO, UPON RETURN TO HIS PERMANENT DUTY STATION.

THE NEXT QUESTION CONCERNS THE RIGHT OF AN ENLISTED MEMBER OF THE NAVY TO CONTINUE TO INCLUDE SUBMARINE PAY IN THE COMPUTATION OF HIS SAVED TOTAL COMPENSATION UNDER SECTION 515 OF THE CAREER COMPENSATION ACT FOLLOWING HIS DETACHMENT FROM ONE SUBMARINE AND ATTACHMENT TO ANOTHER SUBMARINE ON THE SAME DAY OR THE FOLLOWING DAY. PRESUMABLY, THE DOUBT IN THE MATTER IS WHETHER, UNDER SUCH CIRCUMSTANCES, A MEMBER IS TO BE REGARDED AS HAVING FAILED TO QUALIFY FOR SUBMARINE PAY WITHIN THE MEANING OF THE PROVISO IN SECTION 515 (B), SUPRA (AND THE IDENTICAL PROVISION IN THE FIRST PROVISO IN SECTION 515 (A) OF THE ACT, 63 STAT. 831), SO AS TO EXCLUDE SUCH ADDITIONAL PAY FROM THE COMPUTATION OF THE MEMBER'S SAVED TOTAL COMPENSATION. ALSO, DECISION IS REQUESTED ON TWO RELATED QUESTIONS AS FOLLOWS:

(A) IS A MEMBER, OTHERWISE ENTITLED TO "SAVED PAY" (INCLUDING SUBMARINE CREDIT ITEMS OR PAY FOR DUTY ABOARD A SUBMARINE), UPON DETACHMENT FROM A SUBMARINE AND SUBSEQUENTLY REPORTING ON BOARD ANOTHER SUBMARINE AFTER AN INTERVAL OF ONE DAY, ENTITLED TO "SAVED PAY" OR TO PAY UNDER THE CAREER COMPENSATION ACT OF 1949?

(B) IS A MEMBER, OTHERWISE ENTITLED TO "SAVED PAY" (INCLUDING SUBMARINE CREDIT ITEMS OF PAY FOR DUTY ABOARD A SUBMARINE), UPON DETACHMENT FROM A SUBMARINE AND REPORTING TO ANOTHER SUBMARINE, UNDER ORDERS WHICH REQUIRE TRAVEL OVER A PERIOD OF SEVERAL DAYS, ENTITLED, AFTER SUCH DETACHMENT, TO "SAVED PAY" OR TO PAY UNDER THE CAREER COMPENSATION ACT OF 1949?

UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949, INSOFAR AS CONCERNS THE PRESENT QUESTION, ENLISTED MEMBERS OF THE NAVY "ON DUTY ON BOARD A SUBMARINE OF THE NAVY" WERE ENTITLED "WHILE SO SERVING" TO RECEIVE 50 PERCENTUM ADDITIONAL PAY OF THEIR RANK OR RATING. SEE THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED, 34 U.S.C. 886, 1946 USED. IT HAS BEEN HELD THAT UNDER THE SAID 1928 ACT, AS AMENDED, SUBMARINE PAY IS CREDITABLE ONLY FOR PERIODS OF ACTUAL SERVICE ON BOARD A SUBMARINE OF THE NAVY AND NOT FOR PERIODS OF ABSENCE ON TEMPORARY DUTY, LEAVE OR SICKNESS; AND, ALSO, THAT SUBMARINE PAY IS CREDITABLE FROM THE DATE OF REPORTING TO DUTY ON BOARD A SUBMARINE AND TERMINATES ON THE DATE OF DETACHMENT THEREFROM. SEE PARAGRAPH 54314-2 OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. ALSO, SEE 14 COMP. GEN. 635; 19 ID. 90. THE RULES THEREIN ENUNCIATED WITH RESPECT TO OFFICERS WERE MADE EQUALLY APPLICABLE TO ENLISTED MEN BY THE PROVISIONS OF THE ACT OF AUGUST 4, 1942, 56 STAT. 736, WHICH, IN EFFECT, MADE THE STATUTORY PROVISIONS RELATING TO SUBMARINE PAY THERETOFORE APPLICABLE TO OFFICERS ALSO APPLICABLE TO ENLISTED MEN OF THE NAVY. ACCORDINGLY, A MEMBER OTHERWISE ENTITLED TO ADDITIONAL PAY FOR SUBMARINE DUTY NEED NOT BE VIEWED AS HAVING FAILED TO QUALIFY FOR SUBMARINE PAY UNDER THE 1928 ACT, AS AMENDED, IF, FOLLOWING DETACHMENT FROM ONE SUBMARINE, HE REPORTS ON BOARD ANOTHER SUBMARINE PAY FOR THE WHOLE OF BOTH DAYS, THE LAW IN THAT RESPECT NOT TAKING ACCOUNT OF FRACTIONS OF A DAY. SEE A 75179, MAY 28, 1936, AND B-91668, MARCH 3, 1950, 29 COMP. GEN. 352. HOWEVER, IF A MEMBER, UPON DETACHMENT FROM ONE SUBMARINE, FAILS TO REPORT FOR DUTY ON BOARD ANOTHER SUBMARINE ON THE SAME DAY OR THE FOLLOWING DAY, IRRESPECTIVE OF THE REASONS THEREFOR, IT MUST BE CONCLUDED THAT HE FAILED TO QUALIFY FOR SUBMARINE PAY AND, IF THE LOSS OF SUBMARINE PAY REDUCES THE SAVED TOTAL COMPENSATION BELOW THE AMOUNT OF TOTAL COMPENSATION HE WOULD THEN RECEIVE UNDER THE NEW ACT, HE WOULD BE REQUIRED TO BE PAID THEREAFTER UNDER THE NEW ACT. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.