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FOR DEPENDENTS OF ENLISTED PERSONNEL SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES OF FORMER LIGHTHOUSE SERVICE EMPLOYEES WHO WERE ENLISTED IN THE COAST GUARD PURSUANT TO THE ACT OF AUGUST 5. TO DETERMINE WHETHER SUCH PAY AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "ANNUAL COMPENSATION AND ALLOWANCES" SUCH MEN WERE RECEIVING ON THE DATE OF THEIR ENLISTMENT. WHICH IS SAVED TO THEM BY SECTION 7 OF THE LATTER ACT. 24 COMP. TO BE PAID TO THE DEPENDENTS OF ENLISTED PERSONNEL MAY NOT BE PAID TO THE DEPENDENTS OF FORMER MEMBERS OF THE LIGHTHOUSE SERVICE WHO WERE ENLISTED IN THE COAST GUARD UNDER AUTHORITY OF THE ACT OF AUGUST 5. ARE RECEIVING THE SAVED TOTAL ANNUAL COMPENSATION AND ALLOWANCES OF THEIR FORMER LIGHTHOUSE SERVICE POSITIONS BY REASON OF THE FACT THAT SUCH COMPENSATION AND ALLOWANCES EXCEED THE MILITARY PAY AND ALLOWANCES.

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B-42484, APRIL 24, 1945, 24 COMP. GEN. 779

SAVED PAY AND ALLOWANCES - FORMER LIGHTHOUSE SERVICE EMPLOYEES NOW IN COAST GUARD - FAMILY ALLOWANCE THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, FOR DEPENDENTS OF ENLISTED PERSONNEL SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES OF FORMER LIGHTHOUSE SERVICE EMPLOYEES WHO WERE ENLISTED IN THE COAST GUARD PURSUANT TO THE ACT OF AUGUST 5, 1939, TO DETERMINE WHETHER SUCH PAY AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "ANNUAL COMPENSATION AND ALLOWANCES" SUCH MEN WERE RECEIVING ON THE DATE OF THEIR ENLISTMENT, WHICH IS SAVED TO THEM BY SECTION 7 OF THE LATTER ACT. 24 COMP. GEN. 192, RECONSIDERED AND AFFIRMED. THE FAMILY ALLOWANCE AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TO BE PAID TO THE DEPENDENTS OF ENLISTED PERSONNEL MAY NOT BE PAID TO THE DEPENDENTS OF FORMER MEMBERS OF THE LIGHTHOUSE SERVICE WHO WERE ENLISTED IN THE COAST GUARD UNDER AUTHORITY OF THE ACT OF AUGUST 5, 1939, AND WHO, PURSUANT TO SECTION 7 THEREOF, ARE RECEIVING THE SAVED TOTAL ANNUAL COMPENSATION AND ALLOWANCES OF THEIR FORMER LIGHTHOUSE SERVICE POSITIONS BY REASON OF THE FACT THAT SUCH COMPENSATION AND ALLOWANCES EXCEED THE MILITARY PAY AND ALLOWANCES, INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE. 24 COMP. GEN. 192, AMPLIFIED. THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, FOR DEPENDENTS OF ENLISTED PERSONNEL--- WHICH ALLOWANCE IS PAYABLE DIRECTLY TO THE DEPENDENT IRRESPECTIVE OF WHETHER PAY ACCRUES TO THE ENLISTED MAN OR HIS PAY IS REDUCED OR CHARGED WITH HIS SHARE OF THE ALLOWANCE--- CONSTITUTES NO PART OF THE PAY AND ALLOWANCES SAVED TO COAST GUARD ENLISTED MEN BY SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED, UPON TEMPORARY APPOINTMENT AS WARRANT OR COMMISSIONED OFFICERS. DERED IN COMPUTING SAVED PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 24, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 13, 1944, AS FOLLOWS:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF SEPTEMBER 7, 1944, B-42484, WHEREIN IT IS HELD THAT IN THE CASE OF ENLISTED MILITARY PERSONNEL OF THE COAST GUARD INDUCTED FROM THE FORMER LIGHTHOUSE SERVICE WHO ARE IN RECEIPT OF "SAVED" PAY AND ALLOWANCES UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 5, 1939 (14 U.S.C. 181), THAT PART OF THE FAMILY ALLOWANCE CONTRIBUTED BY THE GOVERNMENT, THOUGH PAID TO THE DEPENDENTS OF SUCH PERSONNEL,"SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES" OF SUCH PERSONNEL "IN DETERMINING WHETHER SUCH PAY AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "ANNUAL COMPENSATION AND ALLOWANCES" SAVED TO THEM BY THE SAID SECTION 7 OF THE ACT OF AUGUST 5, 1939.'

IN CONNECTION WITH THE ABOVE CITED DECISION, THERE IS TRANSMITTED HEREWITH A LETTER FROM THE COMMANDANT OF THE COAST GUARD, DATED OCTOBER 20, 1944, WITH ACCOMPANYING ENDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED NOVEMBER 6, 1944, WITH REQUEST FOR RECONSIDERATION OF THE DECISION OF SEPTEMBER 7, 1944, FOR REASONS FULLY SET FORTH IN THE ENCLOSURE. IT IS HOPED THAT, UPON RECONSIDERATION OF SAID DECISION, YOU MAY SEE YOUR WAY CLEAR TO NOW HOLDING THAT SUCH PART OF THE FAMILY ALLOWANCE CONTRIBUTED BY THE GOVERNMENT, THOUGH PAID TO THE DEPENDENTS OF FORMER LIGHTHOUSE SERVICE PERSONNEL WHO WERE INDUCTED INTO THE COAST GUARD AS ENLISTED MILITARY PERSONNEL UNDER THE ACT OF AUGUST 5, 1939, SUPRA, IS NOT REQUIRED TO BE ADDED TO THE MILITARY PAY AND ALLOWANCES OF SUCH PERSONNEL IN DETERMINING WHETHER SUCH PAY, AND ALLOWANCES ARE GREATER THAN THE TOTAL OF THE "COMPENSATION AND ALLOWANCES" UNDER THE "SAVED PAY" PROVISION IN QUESTION.

HOWEVER, IN THE EVENT THAT YOU SHOULD, UPON RECONSIDERATION OF THE DECISION OF SEPTEMBER 7, 1944, ADHERE TO THE POSITION THEREIN TAKEN, YOUR FURTHER DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) WHAT TYPE OF PAY AND ALLOWANCES (MILITARY OR SAVED) SHOULD BE USED IN CARRYING AN EMPLOYEE OF THE FORMER LIGHTHOUSE SERVICE, NOW AN ENLISTED MAN IN THE COAST GUARD, WHERE APPLICATION FOR FAMILY ALLOWANCE HAS BEEN MADE, AND WHERE THE TOTAL OF HIS MILITARY PAY AND ALLOWANCES, INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, DOES NOT EQUAL OR EXCEED THE TOTAL OF HIS SAVED PAY AND ALLOWANCES?

(2) WHETHER AN ENLISTED MAN IN PAY GRADE 1 OR 2 APPOINTED TO TEMPORARY WARRANT, COMMISSIONED WARRANT, OR COMMISSIONED RANK, EFFECTIVE ON AND AFTER NOVEMBER 1, 1943, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1944 (1941) (55 STAT. 603), AS AMENDED, IS ENTITLED TO INCLUDE AS AN ITEM OF SAVED PAY AND ALLOWANCES THE FAMILY ALLOWANCE BENEFITS, I.E., THE GOVERNMENT'S CONTRIBUTIONS, WHICH HIS DEPENDENTS WERE RECEIVING ON EFFECTIVE DATE OF SUCH TEMPORARY APPOINTMENT?

THE SEVERAL REASONS URGED BY THE COAST GUARD IN ITS REQUEST FOR RECONSIDERATION OF THAT PORTION OF THE DECISION OF SEPTEMBER 7, 1944, 24 COMP. GEN. 192, PERTAINING TO QUESTION (B), ARE SET FORTH IN THE COMMANDANT'S LETTER OF OCTOBER 2, 1944, IN PERTINENT PART, AS FOLLOWS:

4. THE FOREGOING QUOTED SECTIONS (1 AND 2 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED) COMPRISE THE PROVISIONS IN THE LAW WHICH STATE THE BASIC GRANT OF THE ALLOWANCE. THERE IS HERE NO LANGUAGE INDICATING OR SUGGESTING ANY LIMITATION IN RESPECT TO THE AMOUNT OF PAY OR THE MANNER OR BASIS OF ITS DETERMINATION IN ORDER TO OBTAIN THE GRANT OF THE FAMILY ALLOWANCE. THE ONLY QUALIFICATION IS THAT IT IS PAYABLE ONLY TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN. THE PERSONNEL UNDER CONSIDERATION ARE ENLISTED MEN OF THE COAST GUARD. THE NORMAL INFERENCE FROM SUCH LANGUAGE IS THAT THE GRANT IS DEFINITELY PAYABLE ACCORDING TO THE STATED TERMS AND THAT ANY LIMITATIONS OR QUALIFICATIONS APPEARING LATER IN THE ACT ARE TO BE CONFINED TO THE SPECIFIC CONDITIONS WITH RESPECT TO WHICH THEY ARE SET FORTH.

5. IN HIS DECISION B-42484 THE COMPTROLLER GENERAL USES THE FOLLOWING ARGUMENT:

"IT WOULD APPEAR THAT THE PURPOSE OF THE SAVING CLAUSE IN SECTION 7 OF THE ACT OF AUGUST 5, 1939, SUPRA, WOULD BE MET SO LONG AS THE GOVERNMENT CONTINUES TO PAY THE MAN INVOLVED--- OR HIS DEPENDENTS--- A TOTAL AMOUNT EQUAL TO THAT RECEIVED BY HIM AS A FORMER CIVILIAN EMPLOYEE OF THE LIGHTHOUSE SERVICE. THAT VIEW OF THE SAVING CLAUSE WOULD APPEAR TO BE FAIR AND EQUITABLE BOTH TO THE GOVERNMENT AND THE MAN, IN THAT THE MAN AND HIS DEPENDENTS WOULD CONTINUE TO BE ENTITLED TO RECEIVE FROM THE GOVERNMENT AT LEAST THE SAME AMOUNT OF MONEY PREVIOUSLY PAID ON ACCOUNT OF HIS SERVICE IN A CIVILIAN POSITION IN THE FORMER LIGHTHOUSE SERVICE.'

IT IS SUBMITTED THAT THIS ARGUMENT HAS APPLICATION AND WEIGHT ONLY ON THE ASSUMPTION THAT CONDITIONS REMAINED SUBSTANTIALLY THE SAME AS WHEN THE ACT OF AUGUST 5, 1939, WAS ENACTED. AT THAT TIME THE COUNTRY WAS AT PEACE, WITH NO CONTEMPLATION OF WAR WHATEVER. IT WAS A MONTH EVEN BEFORE WAR WAS DECLARED IN EUROPE, AND TWO YEARS AND FOUR MONTHS BEFORE THIS COUNTRY WAS FORMALLY INVOLVED IN WAR. THE FAMILY ALLOWANCE ACT OF JUNE 23, 1942, AS AMENDED, WAS DESIGNEDLY TO MAKE ADDITIONAL PROVISION FOR THE CLASSES OF PERSONNEL DESIGNATED, BY WAY OF ALLOWANCE TO THEIR DEPENDENTS, DUE TO THE EXISTENCE OF WAR AND THEIR PARTICIPATION IN IT. IT WAS ESSENTIALLY SOMETHING ADDITIONAL FOR SUCH PERSONNEL (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED) AND BEING GRANTED OUT OF SPECIAL CONSIDERATION OF WARTIME CONDITIONS WOULD, SO FAR AS THE TERMS OF THE ACT ARE CONCERNED, APPEAR TO BE AS FULLY AVAILABLE TO PERSONS OF THE CLASSES INCLUDED WHO ARE COMPENSATED ON A SAVED-PAY BASIS AS TO ANY OTHERS.

6. THE COMPTROLLER GENERAL'S DECISION LAYS MUCH STRESS ON THE ANALOGY THAT HE FINDS IMPLIED IN THE PROVISIONS OF SECTION 8 OF THE AMENDATORY ACT OF OCTOBER 23, 1943, GRANTING ENLISTED MEN OF THE FIRST, SECOND, AND THIRD PAY GRADES AN ELECTION TO ACCEPT THE BENEFITS EITHER OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OR THE MONETARY ALLOWANCES IN LIEU OF QUARTERS AUTHORIZED FOR ENLISTED MEN, WITH DEPENDENTS, OF THE FIRST THREE PAY GRADES. * * *

7. IT IS TO BE ESPECIALLY NOTED THAT THE PROVISION IN SECTION 8 OF THE ACT OF OCTOBER 23, 1943, RELATES SPECIFICALLY TO AN ALLOWANCE FOR OR ON ACCOUNT OF AN ENLISTED MAN'S DEPENDENTS, AND IT IS CLEAR THAT ITS EXPRESS PURPOSE WAS TO AVOID GRANTING TO ENLISTED PERSONNEL OF THE FIRST, SECOND, AND THIRD PAY GRADES A PALPABLE DUPLICATION OF ALLOWANCE FOR DEPENDENTS. ONLY IN THIS RESPECT AND TO THIS EXTENT, I.E., WHERE A DUPLICATION IN ALLOWANCE WOULD RESULT, DID CONGRESS PLACE ANY LIMITATION ON THE GRANT OF THE FAMILY ALLOWANCE TO ENLISTED PERSONNEL OF THE PAY GRADES INCLUDED, AND IT SEEMS CLEAR THAT ITS APPLICATION SHOULD BE STRICTLY CONFINED TO CASES WHERE SUCH CONDITION OBTAINS. IN THE PAY AND ALLOWANCES OF PERSONNEL OF THE FORMER LIGHTHOUSE SERVICE AT THE TIME OF INDUCTION INTO THE MILITARY ORGANIZATION OF THE COAST GUARD THERE WAS NO PROVISION FOR DEPENDENTS OR AMOUNT INCLUDED ON THEIR ACCOUNT. SUCH PERSONNEL RECEIVED A BASE PAY, AND SUCH ALLOWANCES AS THEY RECEIVED CONSISTED ONLY OF SUBSISTENCE, OR COMMUTATION THEREOF, AND QUARTERS IN KIND ON SHIPBOARD FOR THEMSELVES INDIVIDUALLY. IT MAY NOT BE EFFECTIVELY CONTENDED THAT THEIR PAY WAS IN CONTEMPLATION OF SUPPORT OF DEPENDENTS, SINCE THE INCUMBENTS OF SUCH POSITIONS RECEIVED THE PAY FIXED THEREFOR IRRESPECTIVE OF WHETHER THEY HAD DEPENDENTS OR NOT. ACCORDINGLY, THERE APPEARS TO BE COGENT REASON FOR HOLDING THAT SECTION 8, OF THE ACT OF OCTOBER 23, 1943, HAS NO BEARING ON THE QUESTION OF FAMILY ALLOWANCE FOR SUBJECT PERSONNEL COMPENSATED ON THE SAVED PAY BASIS, AND THAT SUCH PERSONNEL OF THE PAY GRADES SPECIFIED, HAVING PREVIOUSLY HAD NO PROVISION FOR DEPENDENTS, WERE PLACED IN STATUS TO RECEIVE SOME PROVISION THEREFOR IN VIRTUE OF THE FAMILY ALLOWANCE ACT. SUCH PROVISION, OF COURSE, WOULD BE A NULLITY IF IT WERE NOT IN ADDITION TO WHAT THEY WERE ALREADY RECEIVING.

8. MOREOVER, THE ANALOGY OF SECTION 8 OF THE ACT OF OCTOBER 23, 1943, BREAKS DOWN COMPLETELY WHEN CONSIDERATION IS HAD OF ENLISTED PERSONNEL IN THE FOUR LOWER GRADES TO WHOM SECTION 8 DOES NOT APPLY AND FOR WHOM NO PROVISION IS MADE FOR DEPENDENTS IN THEIR REGULAR ALLOWANCES. IN THEIR CASE THERE IS NO QUESTION THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE AMOUNTS TO AN OUTRIGHT GRATUITY, AND AS SUGGESTED ABOVE, THERE IS NO BASIS IN THE ACT FOR REGARDING IT OTHERWISE IN ANY CASE EXCEPT AS SPECIFICALLY SET FORTH. WHILE THE LAW USES THE TERM "FAMILY ALLOWANCE" FOR THIS SPECIFIC GRANT, IT IS CLEARLY AN ALLOWANCE OF AN EXCEPTIONAL AND EXTRAORDINARY KIND, OF TEMPORARY APPLICATION, AND ESSENTIALLY OF THE NATURE OF A GRATUITY; AND IT SEEMS REASONABLE TO CONCLUDE THAT CONGRESS, IN THE ACT OF AUGUST 5, 1939, CONTEMPLATED FOR COMPARISON ONLY THE USUAL, NORMALLY-CONTINUOUS, AND THEN EXISTING ALLOWANCES. IT IS ALSO PERTINENT TO NOTE THAT SECTION 8 OF THE ACT OF OCTOBER 23, 1943, ON WHICH CITED DECISION PLACES MUCH RELIANCE, WAS NOT ENACTED UNTIL MORE THAN A YEAR AFTER THE DATE OF THE BASIC FAMILY ALLOWANCE ACT IN THE CASE OF ENLISTED MEN OF THE FOUR LOWER GRADES, UPON WHICH SECTION 8 OF THE AMENDATORY ACT HAD AND HAS NO BEARING, AND THUS MAY NOT BE REGARDED AS CONTROLLING ON THE QUESTION AT ISSUE.

9. UNDER THE COMPTROLLER GENERAL'S RULING ENLISTED MEN OF THE FOUR LOWER GRADES, WHOSE PAY AND ALLOWANCES ARE ON THE MILITARY BASIS, MAY RECEIVE THIS GRATUITY, BUT ENLISTED MEN OF THE SAME GRADES COMPENSATED ON THE SAVED PAY BASIS MAY NOT RECEIVE THE GRATUITY WITHOUT SURRENDERING THEIR SAVED PAY AND ALLOWANCES. THE EFFECT OF THE RULING IS TO HOLD THAT CONGRESS DID NOT INTEND THIS LATTER GROUP TO SHARE IN THE GRATUITY WHICH IT WAS PROVIDING FOR OTHER PERSONNEL OF THE ARMED FORCES IN THE SAME GRADES, AND THAT IN SECTION 7 OF THE ACT OF AUGUST 5, 1939, CONGRESS VIRTUALLY BARRED ITSELF FROM THEREAFTER GRANTING TO THE PERSONNEL ON SAVED PAY ANY ADDITIONAL COMPENSATION OR PROVISION WHATSOEVER, EVEN AS A GRATUITY.

10. FOR THE REASONS STATED ABOVE IT IS SUBMITTED THAT THE VIEW OF THE SAVING CLAUSE IN SECTION 7 OF THE ACT OF AUGUST 5, 1939, SET FORTH IN THE COMPTROLLER GENERAL'S DECISION B-42484 DOES NOT DO ADEQUATE JUSTICE TO THE INTENT OF CONGRESS IN ITS ENACTMENT; THAT CONGRESS INTENDED THEREBY TO PRESERVE TO PERSONNEL OF THE FORMER LIGHTHOUSE SERVICE INDUCTED INTO THE MILITARY ESTABLISHMENT OF THE COAST GUARD, WHO ELECTED TO RETAIN THE SAVED PAY, ANY BENEFITS OR ADVANTAGES AS TO PAY AND ALLOWANCES ACQUIRED OR POSSESSED BY THEM IN THEIR CIVILIAN STATUS, ACCORDING TO WHICH INTENT THEY WOULD BE AS ELIGIBLE AS ANY OTHER ENLISTED PERSONNEL TO RECEIVE ANY EXTRAORDINARY OR ADDITIONAL GRANTS, AUTHORIZED BY CONGRESS, AND THAT THE MILITARY PAY OR ALLOWANCES FOR COMPARISON WITH THE SAVED PAY WERE THOSE OF THE KIND APPLICABLE AND IN EXISTENCE AT THE TIME OF INDUCTION.

11. * * * UNDER THE RULING IN DECISION B-42484, THE ENTIRE FAMILY ALLOWANCE AMOUNTS TO NOTHING MORE OR LESS THAN A VOLUNTARY ALLOTMENT BY THE ENLISTED MAN, THAT IT COMES ENTIRELY FROM HIS SAVED PAY AND ALLOWANCES, AND THAT IN REALITY THERE IS NO GOVERNMENT CONTRIBUTION. WHERE UNDER THE PROVISIONS OF SECTION 7 ACT OF AUGUST 5, 1939, SUCH AN ENLISTED MAN HAS ELECTED TO RETAIN HIS CIVILIAN PAY AND ALLOWANCES, IT WOULD FOLLOW THAT WHILE SO ELECTING THERE IS GRAVE QUESTION WHETHER HIS SAVED PAY AND ALLOWANCES ARE SUBJECT TO ANY REQUIREMENTS AS TO ALLOTMENTS OR ALLOWANCES FOR DEPENDENTS WITHOUT HIS CONSENT, IF HE OR THEY RECEIVE NO ACTUAL CONTRIBUTION FROM THE GOVERNMENT. THUS APPLICATION TO HIM OF THE FAMILY ALLOWANCE ACT PROVISIONS MIGHT INVOLVE AN IMPAIRMENT OF HIS RIGHT TO SAVED PAY AND ALLOWANCES UNDER THE ACT OF AUGUST 5, 1939. IN THIS VIEW IT WOULD SEEM THAT EFFECT COULD NOT BE GIVEN TO THE PROVISION IN SECTION 4, ACT OF JUNE 23, 1943, AS AMENDED (37 U.S.C. SUPP. III, 204) ESPECIALLY WHERE APPLICATION FOR FAMILY ALLOWANCE MIGHT BE MADE BY ALLEGED DEPENDENTS ADVERSE TO HIS PERSONAL WISHES OR INTERESTS. THUS THE CANON OF STATUTORY CONSTRUCTION THAT STATUTES APPARENTLY IN CONFLICT ARE TO BE HARMONIZED AND BOTH GIVEN EFFECT, IF NOT CLEARLY INCOMPATIBLE, SEEMS TO REQUIRE, AS CONTENDED FOR ABOVE, THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE BE REGARDED AS AN ADDITIONAL GRATUITOUS GRANT, AVAILABLE TO THE PERSONNEL UNDER CONSIDERATION OVER AND ABOVE THEIR SAVED PAY AND ALLOWANCES.

SECTION 7 OF THE ACT OF AUGUST 5, 1939, 53 STAT. 1217, PROVIDES AS FOLLOWS:

SEC. 7. NO PERSON COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THIS ACT SHALL SUFFER ANY REDUCTION IN THE TOTAL OF THE ANNUAL COMPENSATION AND ALLOWANCES WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT. UPON HIS RETIREMENT FROM ACTIVE DUTY IN THE COAST GUARD, THE RETIRED PAY OF ANY PERSON SO COMMISSIONED, APPOINTED OR ENLISTED, SHALL NOT BE LESS THAN AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED, SUBSTITUTING, HOWEVER, FOR PURPOSES OF SUCH COMPUTATION, THE ANNUAL COMPENSATION WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT IN THE COAST GUARD FOR THE AVERAGE ANNUAL PAY RECEIVED BY HIM FOR THE LAST FIVE YEARS OF SERVICE. IN THE DECISION OF SEPTEMBER 7, 1944, IT WAS CONCLUDED, IN ANSWER TO QUESTION (B), THAT THE PURPOSE AND INTENT OF THE SAVING CLAUSE IN SECTION 7 OF THE ACT OF AUGUST 5, 1939, 53 STAT. 1217, WOULD BE MET SO LONG AS THE GOVERNMENT CONTINUES TO PAY A FORMER CIVILIAN EMPLOYEE OF THE LIGHTHOUSE SERVICE, NOW IN THE COAST GUARD, OR HIS DEPENDENTS, A TOTAL AMOUNT EQUAL TO THAT RECEIVED BY HIM AS A FORMER CIVILIAN EMPLOYEE OF THE LIGHTHOUSE SERVICE, AND, THEREFORE, THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE SHOULD BE ADDED TO THE MILITARY PAY AND ALLOWANCES, WHICH OTHERWISE WOULD BE PAYABLE TO SUCH PERSON WERE IT NOT FOR THE SAID SAVING CLAUSE, IN DETERMINING WHETHER SUCH MILITARY PAY AND ALLOWANCES ARE GREATER THEN THE TOTAL "ANNUAL COMPENSATION AND ALLOWANCES" SAVED TO HIM BY THE SAID SECTION 7 OF THE 1939 ACT.

THE ORIGINAL SUBMISSION IN THE MATTER MERELY PRESENTED THE QUESTION OF THE PROPRIETY OF INCLUDING THAT PORTION OF THE FAMILY ALLOWANCE CONTRIBUTED BY THE GOVERNMENT TO THE DEPENDENTS OF A FORMER LIGHTHOUSE SERVICE EMPLOYEE IN MAKING THE COMPARISON BETWEEN HIS MILITARY PAY AND ALLOWANCES HE WAS RECEIVING AT THE TIME OF HIS ENLISTMENT. HOWEVER, THE PRESENT SUBMISSION INDICATES THAT IT IS THE ADMINISTRATIVE VIEW THAT SUCH AN ENLISTED MAN IS ENTITLED TO RECEIVE NOT ONLY THE SAVED COMPENSATION AND ALLOWANCES OF HIS FORMER CIVILIAN POSITION, IF IT IS GREATER THAN THE COMBINED TOTAL OF HIS MILITARY PAY AND ALLOWANCES INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, BUT, ALSO, TO HAVE HIS DEPENDENTS RECEIVE THE FAMILY ALLOWANCE BENEFITS, NOTWITHSTANDING THAT THE PAY AND ALLOWANCES, INCLUDING THE FAMILY ALLOWANCE BENEFITS, PAYABLE IN HIS ENLISTED STATUS, EXCEED THE COMPENSATION AND ALLOWANCES HE WAS RECEIVING WHEN HE ENLISTED.

THE ONLY RIGHT SAVED BY SECTION 7 OF THE ACT OF AUGUST 5, 1939, TO AN EMPLOYEE OF THE FORMER LIGHTHOUSE SERVICE, NOW IN THE COAST GUARD, UNDER THE ACT OF AUGUST 5, 1939, IS THAT HE SHALL SUFFER NO REDUCTION "IN THE TOTAL OF THE ANNUAL COMPENSATION AND ALLOWANCES WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT.' THE AMOUNT OF SUCH SAVED COMPENSATION AND ALLOWANCES BECAME FIXED AS OF THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT IN THE COAST GUARD AND THEREAFTER WAS NOT SUBJECT TO VARIATION. 21 COMP. GEN. 849. THE SAID SECTION 7 MERELY CONTEMPLATES THE PAYMENT BY THE GOVERNMENT OF AN AMOUNT OF MONEY EQUAL TO THAT PREVIOUSLY PAID ON ACCOUNT OF HIS SERVICE IN A CIVILIAN POSITION IN THE FORMER LIGHTHOUSE SERVICE, UNTIL THE EMOLUMENTS INCIDENT TO HIS ENLISTED STATUS EQUAL OR EXCEED THE AMOUNT SAVED TO HIM AS A FORMER CIVILIAN EMPLOYEE.

AT THE TIME THE BENEFITS OF SECTION 7 OF THE 1939 ACT WERE BESTOWED UPON CIVILIAN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE VOLUNTARILY ENLISTING IN THE COAST GUARD, THE BASE PAY OF AN ENLISTED MAN OF THE LOWEST GRADE IN THE COAST GUARD WAS $21 PER MONTH; THERE WAS NO PROVISION 4 FOR THE PAYMENT OF A QUARTERS ALLOWANCE FOR DEPENDENTS; AN OUTFIT OR CLOTHING ALLOWANCE WAS AUTHORIZED ONLY UPON FIRST ENLISTMENT, WITH NO PERIODIC PAYMENTS FOR MAINTENANCE AND REPLACEMENT OF CLOTHING; THERE WAS NO PROVISION FOR INCREASE IN PAY DUE TO SERVICE FOR DEPENDENTS. THUS, WHEN THE PAY OF OTHER ENLISTED MEN WAS AS LOW AS $21 PER MONTH AND NONE OF THE ABOVE-MENTIONED MONETARY BENEFITS WERE AUTHORIZED, THESE CIVILIAN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE WHO ENTERED THE COAST GUARD WERE ACCORDED PREFERENTIAL TREATMENT IN THAT THEY WERE PERMITTED TO CONTINUE TO RECEIVE THE GREATER COMPENSATION AND ALLOWANCES WHICH ATTACHED TO THEIR FORMER CIVILIAN GOVERNMENT EMPLOYMENT--- A BENEFIT NOT ACCORDED OTHER GOVERNMENT EMPLOYEES ENTERING THE MILITARY OR NAVAL SERVICE. ALSO, SUCH PERSONNEL ARE NOT RESTRICTED TO THE "SAVED" COMPENSATION AND ALLOWANCES OF THEIR FORMER CIVILIAN POSITIONS, BY VIRTUE OF THEIR ENLISTED STATUS IN THE COAST GUARD, BECAUSE WHEN THE TOTAL OF THE BENEFITS ACCRUING TO SUCH A PERSON INCIDENT TO HIS ENLISTED STATUS IN THE COAST GUARD EXCEED THE COMPENSATION AND ALLOWANCES WHICH ATTACHED TO HIS EMPLOYMENT IN THE FORMER LIGHTHOUSE SERVICE, HE BECOMES ENTITLED TO THE STATUTORY EMOLUMENTS APPLICABLE TO HIS ENLISTED GRADE IN THE COAST GUARD. THUS, THE MONETARY BENEFITS ACCRUING TO SUCH A PERSON MAY EXCEED THOSE PROVIDED FOR ENLISTED MEN GENERALLY OF HIS GRADE AND LENGTH OF SERVICE, BUT UNDER NO CIRCUMSTANCE WOULD HE BE REQUIRED TO ACCEPT LESS THAN THOSE AUTHORIZED FOR ENLISTED MEN GENERALLY. IN OTHER WORDS, HE RECEIVES EITHER THE CIVILIAN COMPENSATION AND ALLOWANCES OF HIS FORMER LIGHTHOUSE SERVICE EMPLOYMENT, OR THE STATUTORY BENEFITS SPECIFICALLY PROVIDED FOR ENLISTED MEN OF THE COAST GUARD, WHICHEVER IS GREATER. BUT HE MAY NOT, WITHIN THE REASONABLE CONTEMPLATION OF THE LAW, RECEIVE THE COMPENSATION AND ALLOWANCES OF HIS FORMER LIGHTHOUSE SERVICE EMPLOYMENT PLUS THE ADDITIONAL MONETARY BENEFITS PROVIDED FOR ENLISTED MEN GENERALLY.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 57 STAT. 577, DISCLOSES THAT THE TESTIMONY OF THE VARIOUS PERSONS APPEARING BEFORE THE COMMITTEES--- INCLUDING THAT OF NAVY PERSONNEL--- HAD REFERENCE TO ENLISTED PERSONNEL RECEIVING THE PAY AND ALLOWANCES PROVIDED FOR ENLISTED PERSONNEL, GENERALLY, AND NO MENTION APPEARS TO HAVE BEEN MADE AT SUCH HEARINGS WITH RESPECT TO ENLISTED MEN OF THE COAST GUARD RECEIVING SAVED COMPENSATION AND ALLOWANCES OF THEIR FORMER CIVILIAN POSITIONS IN THE LIGHTHOUSE SERVICE. WHILE THE SAID ACT IS BY ITS PROVISIONS MADE APPLICABLE TO THE DEPENDENT OR DEPENDENTS OF "ANY ENLISTED MAN," WITHIN THE LIMITATIONS THEREIN PRESCRIBED, IT MAY NOT BE ASSUMED THAT THE CONGRESS INTENDED TO GRANT A SELECTED GROUP OF ENLISTED MEN IN THE COAST GUARD THE RIGHT TO RECEIVE THE HIGHER COMPENSATION AND ALLOWANCES OF THEIR FORMER CIVILIAN POSITIONS IN THE LIGHTHOUSE SERVICE AND AT THE SAME TIME TO HAVE THEIR DEPENDENTS RECEIVE THE FAMILY ALLOWANCE BENEFITS. IN ANY EVENT, IF IT BE THE VIEW OF THE COAST GUARD THAT PRESENT WAR CONDITIONS JUSTIFY THIS PARTICULAR GROUP OF ENLISTED MEN RECEIVING THE GREATER COMPENSATION AND ALLOWANCES OF THEIR CIVILIAN LIGHTHOUSE SERVICE EMPLOYMENT AND IN ADDITION THERETO THE MONETARY BENEFITS PROVIDED FOR ENLISTED MEN GENERALLY, THEN THE MATTER IS PROPERLY FOR ADMINISTRATIVE PRESENTATION TO THE CONGRESS FOR ITS CONSIDERATION WHERE THE WHOLE SUBJECT OF "SAVED" COMPENSATION AND ALLOWANCES NOW AUTHORIZED FOR THIS PARTICULAR GROUP OF MEN MAY BE CONSIDERED IN THE LIGHT OF CONDITIONS ARISING SINCE THE PASSAGE OF THE 1939 STATUTE.

THIS MATTER HAS BEEN GIVEN THE MOST CAREFUL CONSIDERATION IN VIEW OF THE REPRESENTATIONS MADE IN THE COMMANDANT'S LETTER, BUT I FIND NOTHING THEREIN WHICH WOULD WARRANT ANY CHANGE IN THE CONCLUSION HERETOFORE REACHED BY THIS OFFICE IN THE DECISION OF SEPTEMBER 7, 1944, WITH RESPECT TO QUESTION (B).

AS TO YOUR SECOND QUESTION, SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, PROVIDES AS FOLLOWS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED 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 NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER RANK OR GRADE: PROVIDED FURTHER, THAT ENLISTED MEN WHO ARE TEMPORARILY APPOINTED TO COMMISSIONED RANK UNDER THE AUTHORITY OF THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS GREATER: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE TO ALL PERSONNEL HERETOFORE TEMPORARILY APPOINTED TO ANY GRADE OR RANK EXCEPT THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE PRIOR TO JUNE 1, 1942.

IN DISCUSSING THE RIGHTS, BENEFITS, ETC., SAVED TO ENLISTED PERSONS UPON THEIR TEMPORARY APPOINTMENT TO WARRANT OR COMMISSIONED RANK, IT WAS STATED IN DECISION OF MAY 7, 1942, 20 COMP. GEN. 991, IN CONNECTION WITH SECTION 7 (A) AS ORIGINALLY ENACTED, THAT---

THE FIRST CLAUSE OF SECTION 7 (A) PROVIDES FOR THE SAVING OF THE STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS IN THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENT HELD IN THE REGULAR ESTABLISHMENT, AND IT SAVES TO SUCH PERSONS THEIR RIGHT TO PROMOTION, ADVANCEMENT, OR APPOINTMENT "IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS" AND FURTHER THAT "THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS" UNDER THE ACT. THIS LAST PROVISION RELATES TO THE RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES THAT MIGHT HAVE ACCRUED OR WHICH MIGHT THEREAFTER ACCRUE TO THEM IN THEIR STATUS IN THE REGULAR NAVY OR REGULAR MARINE CORPS UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS, BUT IT DOES NOT AUTHORIZE ANY MONEY BENEFITS TO THEM UNDER THEIR PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS IN THE REGULAR NAVY OR MARINE CORPS WHILE HOLDING A TEMPORARY APPOINTMENT AS AUTHORIZED IN THE ACT. THIS IS MADE CLEAR BY THE FIRST PROVISO WHICH DENIES TO THEM ANY PAY OR ALLOWANCES WHILE SERVING UNDER A TEMPORARY APPOINTMENT EXCEPT THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. THE SECOND PROVISO IS A SAVINGS CLAUSE APPLYING TO THE PAY PROVISIONS IN THE FIRST PROVISO, THAT IS, THE FIRST PROVISO HAVING FIXED THEIR PAY AND ALLOWANCES UNDER THEIR TEMPORARY STATUS, THE SECOND PROVISO IS:

"* * * THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.'

THIS LAST PROVISO OF THE SECTION NEGATIVES ANY SAVINGS OF PAY OR ALLOWANCES IN THE FIRST PART OF SECTION 7 (A), OTHERWISE, IT WOULD BE MERELY A REPETITION. THE PERMANENT STATUS WITH ALL ITS RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES CONTINUES, EXCEPT AS TO PAY AND ALLOWANCES; AND THE PAY AND ALLOWANCES ACCRUING UNDER THE TEMPORARY APPOINTMENT ARE SUBJECT TO THE SAVINGS CLAUSE IN LAST PROVISO OF THE SAID SECTION 7 (A). PAY, OR ALLOWANCES PAYABLE IN MONEY, OF ANY KIND OR CHARACTER WHICH MIGHT HAVE ACCRUED UNDER THE PERMANENT STATUS DO NOT ACCRUE TO THE PERSON IN EXCESS OF THAT PROVIDED FOR HIS TEMPORARY OFFICE EXCEPT AS SUCH PAY AND ALLOWANCES MAY FALL WITHIN THE SAVINGS CLAUSE IN THE SAID LAST PROVISO. IF THE PERSON IS ENTITLED TO PROMOTION OR ADVANCEMENT IN DUE COURSE, OR TO APPOINTMENT AFTER THE STIPULATED LEGAL PERIOD, APPLICABLE TO HIS PERMANENT STATUS AT THE TIME OF TEMPORARY APPOINTMENT HE WILL BE ENTITLED TO SUCH PROMOTION, ADVANCEMENT, OR APPOINTMENT IN THE PERMANENT SERVICE SUBJECT TO ALL PROVISIONS OF LAW FOR SUCH PROMOTION, ADVANCEMENT, OR APPOINTMENT, BUT HIS PAY AND ALLOWANCES IN HIS TEMPORARY STATUS WILL BE GOVERNED BY THE PROVISIONS MADE IN THE PROVISOS OF SECTION 7 (A).

THUS, THE ONLY "MONEY BENEFITS" SAVED TO PERSONS TEMPORARILY APPOINTED TO COMMISSIONED OR WARRANT RANK UNDER THE SAID ACT ARE THE "PAY AND ALLOWANCES" TO WHICH THEY WERE ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT. THE PAY AND ALLOWANCES OF ENLISTED MEN BEING SPECIFICALLY PRESCRIBED BY STATUTE, IT SEEMS CLEAR THAT THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE--- WHICH IS PAYABLE DIRECTLY TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN IRRESPECTIVE OF WHETHER PAY ACCRUES TO HIM OR HIS PAY IS REDUCED OR CHARGED WITH HIS SHARE OF THE FAMILY ALLOWANCE--- CONSTITUTES NO PART OF THE PAY AND ALLOWANCES OF AN ENLISTED MAN WITHIN THE CONTEMPLATION OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, AS AMENDED. THAT THIS IS THE CORRECT VIEW OF THE SAID SECTION APPEARS TO HAVE BEEN RECOGNIZED BY THE NAVY DEPARTMENT IN ALNAV 183-43, DATED NOVEMBER 12, 1943, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * ON ADVANCEMENT TO WARRANT OR COMMISSIONED RANK * * * FAMILY ALLOWANCE CHECK AGES WILL BE STOPPED * * *. * * * * * * * *

5. DEPENDENTS OF ENLISTED PERSONNEL PROMOTED TO WARRANT OR COMMISSIONED RANK NOT ENTITLED FAMILY ALLOWANCE AND SUCH ALLOWANCE NOT CONSI ..END :

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