B-92235, MARCH 16, 1950, 29 COMP. GEN. 371

B-92235, MARCH 16, 1950, 29 COMP. GEN. 371

PAY - MUSTERING-OUT - COMMISSIONED WARRANT OFFICERS WHILE THE CAREER COMPENSATION ACT OF 1949 DOES NOT PROVIDE FOR PERIOD PAY AS SUCH, SECTION 1 (B) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, PROHIBITING PAYMENT OF MUSTERING-OUT PAY TO PERSONS RECEIVING BASE PAY HIGHER THAN THAT OF THE THIRD PERIOD, CONTINUES TO APPLY TO PERSONS OCCUPYING A COMPARABLE PAY GRADE UNDER THE 1949 ACT, SO THAT COMMISSIONED WARRANT OFFICERS WHO WERE PLACED IN PAY GRADE W-4 UNDER THE 1949 ACT MAY NOT RECEIVE MUSTERING-OUT PAY, EVEN THOUGH SOME OF THEM WERE ENTITLED TO SUCH PAY PRIOR TO SAID PLACEMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 16, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 13, 1950, WHEREIN YOU PRESENT A QUESTION, HEREINAFTER STATED, CONCERNING SECTION 1 (B) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, WHICH READS AS FOLLOWS:

NO MUSTERING-OUT PAYMENT SHALL BE MADE TO---

(1) ANY MEMBER OF THE ARMED FORCES WHO, AT TIME OF DISCHARGE OR RELIEF FROM ACTIVE SERVICE, IS RECEIVING BASE PAY AT A HIGHER RATE THAN THE BASE PAY OF THE THIRD PERIOD AS PRESCRIBED IN SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

INSOFAR AS THE NAVY WAS CONCERNED, SUCH PROVISION HAD THE EFFECT OF DENYING MUSTERING-OUT PAY TO LIEUTENANT COMMANDERS, AND ABOVE, LIEUTENANTS WHO HAD COMPLETED 17 YEARS' SERVICE, AND COMMISSIONED WARRANT OFFICERS, WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER 20 YEARS OF COMMISSIONED SERVICE.

SUBSECTION (C) OF SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 807, PROVIDES THAT, FOR BASIC PAY PURPOSES, WARRANT OFFICERS SHALL BE DISTRIBUTED BY THE SECRETARY CONCERNED IN THE VARIOUS PAY GRADES (W-1 TO W-4) PRESCRIBED FOR WARRANT OFFICERS IN SUBSECTION (A) THEREOF, 63 STAT. 805, AND YOU STATE THAT PURSUANT THERETO COMMISSIONED WARRANT OFFICERS WERE DISTRIBUTED IN BASIC PAY GRADES AS FOLLOWS:

W-3. COMMISSIONED WARRANT OFFICERS WITH OVER 6 AND LESS THAN 12 YEARS' ACTIVE COMMISSIONED SERVICE, EXCEPT THOSE COMMISSIONED WARRANT OFFICERS WITH OVER 10 YEARS' COMMISSIONED SERVICE WHOSE RECORD AFTER COMPLETION OF 10 YEARS' COMMISSIONED SERVICE WAS NOT CERTIFIED AS CREDITABLE WHEN LAST REVIEWED.

W-4. COMMISSIONED WARRANT OFFICERS WITH OVER 12 YEARS' ACTIVE COMMISSIONED SERVICE, EXCEPT THOSE COMMISSIONED WARRANT OFFICERS WITH OVER 20 YEARS' COMMISSIONED SERVICE WHOSE RECORD AFTER COMPLETION OF 20 YEARS' COMMISSIONED SERVICE WAS NOT CERTIFIED AS CREDITABLE WHEN LAST REVIEWED.

YOU FURTHER STATE THAT WITH RESPECT TO ELIGIBILITY FOR MUSTERING-OUT PAY, THE FOLLOWING INSTRUCTIONS HAVE BEEN ISSUED (PARAGRAPH 9 OF ALNAV 101, DATED OCTOBER 14, 1949):

OFFICERS RECEIVING PAY UNDER CAREER COMPENSATION ACT IN PAY GRADE W 4 OR PAY GRADES O-4 (LIEUTENANT COMMANDERS) AND ABOVE AND LIEUTENANTS WITH OVER 17 YEARS' SERVICE NOT ENTITLED MUSTERING-OUT PAY.

DECISION IS REQUESTED AS TO WHETHER THE INSTRUCTIONS QUOTED ABOVE, INSOFAR AS COMMISSIONED WARRANT OFFICERS ARE CONCERNED, REPRESENT A CORRECT APPLICATION OF THE PROVISIONS OF SECTION 1 (B) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, SUPRA, ON AND AFTER OCTOBER 1, 1949.

THE CAREER COMPENSATION ACT OF 1949, SUPRA, WHICH WAS EFFECTIVE OCTOBER 1, 1949, REPEALED THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, 37 U.S.C. 101, ET SEQ., INSOFAR AS HERE PERTINENT. THE 1949 ACT MAKES NO PROVISION FOR THE PAYMENT OF PERIOD PAY SUCH AS WAS CONTAINED IN SECTION 1 OF THE 1942 ACT BUT PRESCRIBES PAY GRADES AND ESTABLISHES MONTHLY BASIC PAY WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE. AS NOTED ABOVE, WARRANT OFFICERS, INCLUDING COMMISSIONED WARRANT OFFICERS, ARE TO BE DISTRIBUTED IN THE VARIOUS PAY GRADES PRESCRIBED FOR WARRANT OFFICERS, AND COMMISSIONED OFFICERS, OTHER THAN COMMISSIONED WARRANT OFFICERS, ARE ASSIGNED TO PAY GRADES O-1 TO O-8 BY THE TERMS OF THE STATUTE.

WHILE THE RESTRICTION AGAINST THE PAYMENT OF MUSTERING-OUT PAY CONTAINED IN SECTION 1 (B) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, SUPRA, REFERS TO MEMBERS OF THE ARMED FORCES RECEIVING A PARTICULAR BASE PAY, ACTUALLY THE INTENTION APPEARS TO HAVE BEEN NOT TO DENY SUCH PAYMENTS SOLELY BECAUSE OF THE AMOUNT OF PAY SUCH MEMBERS WERE RECEIVING BUT TO DENY THEM TO MEMBERS WHO WERE RECEIVING THE BASE PAY PROVIDED FOR MEMBERS HOLDING A CERTAIN RANK, THAT IS, THE RANK OF MAJOR IN THE ARMY, AND ABOVE, OR AN EQUIVALENT RANK IN ANY OF THE OTHER ARMED SERVICES (LIEUTENANT COMMANDER IN THE NAVY) OR ABOVE. IN THAT CONNECTION, IT MAY BE NOTED THAT THE BILL H.R. 3739, 78TH CONGRESS, WHICH WAS ONE OF THE FORERUNNERS OF THE BILL WHICH BECAME THE MUSTERING OUT PAYMENT ACT OF 1944, CONTAINED A PROVISION TO THE EFFECT THAT MUSTERING-OUT PAY SHALL NOT BE PAYABLE TO ANY PERSON WHO, AT THE TIME OF DISCHARGE OR RELIEF FROM ACTIVE SERVICE, HOLDS A COMMISSION, EITHER PERMANENT OR TEMPORARY, OF ANY RANK ABOVE CAPTAIN IN THE ARMY, OR OF ANY EQUIVALENT RANK IN ANY OF THE OTHER ARMED SERVICES. IN A REPORT TO THE CHAIRMAN, COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, THE SECRETARY OF WAR REFERRED TO SUCH PROVISION AND STATED WITH RESPECT THERETO (P. 12 OF REPORT NO. 986, COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, TO ACCOMPANY S. 1543/---

* * * IF IT IS THE DESIRE OF CONGRESS TO MAKE INELIGIBLE FOR MUSTERING- OUT PAY THOSE COMMISSIONED OFFICERS DRAWING PAY OF THE GRADE OF MAJOR (LIEUTENANT COMMANDER IN THE NAVY) OR ABOVE, THEN IT WOULD SEEM THAT THE LANGUAGE OF THE BILL SHOULD DESCRIBE THE CLASSIFICATION OF PERSONS WHO ARE INELIGIBLE BY PAY PERIOD RATHER THAN BY RANK SINCE A CAPTAIN IN THE ARMY WITH SUFFICIENT NUMBER OF YEARS' SERVICE MAY BE DRAWING THE BASE PAY OF THE FOURTH PAY PERIOD TO WHICH A MAJOR IS INITIALLY ENTITLED. * * * SIMILAR OBSERVATIONS WERE MADE BY THE SECRETARY OF THE NAVY, WITH RESPECT TO ANOTHER BILL, IN A LETTER DATED DECEMBER 14, 1943, TO THE CHAIRMAN, COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, APPEARING IN THE REPORT NO. 986 REFERRED TO ABOVE, BEGINNING AT PAGE 13.

THE QUOTED INSTRUCTIONS HERE INVOLVED WOULD DENY MUSTERING-OUT PAY TO LIEUTENANT COMMANDERS, OR ABOVE, LIEUTENANTS WITH OVER 17 YEARS' SERVICE, AND COMMISSIONED WARRANT OFFICERS, WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER 20 YEARS OF COMMISSIONED SERVICE, THE SAME CLASSES OF PERSONS IN THE NAVY WHO WERE DENIED MUSTERING-OUT PAY PRIOR TO THE SAID CAREER COMPENSATION ACT OF 1949. IN ADDITION, SUCH INSTRUCTIONS WOULD HAVE THE EFFECT OF DENYING MUSTERING-OUT PAY TO CERTAIN COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST, WITH LESS THAN 20 YEARS' COMMISSIONED SERVICE, WHO, PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 ( OCTOBER 1, 1949) WERE ENTITLED TO MUSTERING-OUT PAY. PRESUMABLY, THE INSTRUCTIONS IN THAT RESPECT ARE ON THE BASIS THAT SINCE PERSONS IN THE LATTER CLASS OF COMMISSIONED WARRANT OFFICERS HAVE NOW BEEN RAISED AND PLACED IN THE SAME BASIC PAY GRADE AS COMMISSIONED WARRANT OFFICERS, WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER 20 YEARS OF COMMISSIONED SERVICE, MUSTERING-OUT PAY IS NOT AUTHORIZED TO BE PAID TO THEM AND IT IS APPARENTLY WITH RESPECT TO THOSE COMMISSIONED WARRANT OFFICERS, I.E., THOSE WITH LESS THAN 20 YEARS' COMMISSIONED SERVICE IN PAY GRADE W-4, THAT YOU DESIRE DECISION AS TO WHETHER THE PROPOSED INSTRUCTIONS ARE IN ACCORDANCE WITH THE LAW.

AS NOTED ABOVE, SECTION 1 (B) (1) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, SUPRA, DENIED MUSTERING-OUT PAY TO PERSONS RECEIVING BASE PAY HIGHER THAN THE BASE PAY OF THE THIRD PERIOD AND, WHILE UNDER THE SAID CAREER COMPENSATION ACT OF 1949 NO PROVISION IS MADE FOR PERIOD PAY AS SUCH, THE PROHIBITION MUST BE CONSIDERED AS CONTINUING TO APPLY TO PERSONS OCCUPYING A COMPARABLE PAY GRADE UNDER THE 1949 ACT WHICH, INSOFAR AS COMMISSIONED WARRANT OFFICERS ARE CONCERNED, IS PAY GRADE W 4. THE FACT THAT SOME COMMISSIONED WARRANT OFFICERS NOW IN THAT GRADE WERE ENTITLED TO MUSTERING -OUT PAY PRIOR TO OCTOBER 1, 1949, BECAUSE OF THEIR HAVING RECEIVED A BASE PAY LOWER THAN THE BASE PAY OF THE FOURTH PERIOD, DOES NOT OPERATE TO PERMIT THEM TO CONTINUE TO RECEIVE IT AFTER OCTOBER 1, 1949. THE PLACEMENT OF SUCH OFFICERS IN PAY GRADE W-4 HAS HAD THE SAME COMPARABLE EFFECT AS AN ADVANCEMENT PRIOR TO OCTOBER 1, 1949, TO A GRADE HAVING A HIGHER BASE PAY THAN THE BASE PAY OF THE THIRD PERIOD WOULD HAVE HAD.