Where the pay and allowances of the permanent grade of a Marine Corps commissioned warrant officer temporarily appointed to the grade of first lieutenant under authority of the act of July 24, 1941, would have been the same as the pay and allowances of the temporary grade, but, due to assignment of quarters, the pay and allowances of his temporary grade are less than those to which he would have been entitled had he been assigned quarters in his permanent grade, the appointee should, in accordance with the saving provisions of section 7 (a) of the said act, receive the higher pay and allowances of the permanent grade. Whenever the pay and allowances of the permanent grades occupied by Marine Corps personnel immediately prior to their temporary appointment under the act of July 24, 1941, would, by reason of changes in status with respect to assignment of quarters or payment of money allowance therefor, subsistence allowance, and type of duty assigned, have exceeded the pay and allowances of the temporary grades, the appointees should be permitted to shift from the pay and allowances of the temporary grades to those of the permanent grades in order to draw the higher total compensation as provided in the saving provisions of section 7 (a) of the said act. Assistant Comptroller General Elliott to the Secretary of the Navy, May 15, 1942: There has been received your letter of April 29, 1942, requesting decision on questions presented in a letter from the Paymaster, United States Marine Corps, dated April 24, 1942, as follows: 1. There has been presented to this office the question as to the correct pay and allowances to be credited in the account of Marine Gunner (temporary) William F. Watson, U. S. Marine Corps, upon his acceptance of appointment as such under the provisions of the act approved July 24, 1941. 2. Section 2 (b) of the act of July 24, 1941, Public Law 188, 77th Congress, authorizes the temporary appointment of commissioned warrant and warrant officers and enlisted men of the rank of platoon or staff sergeant and above in the Regular Marine Corps to ranks not above captain in the Regular Marine Corps. Section 7 (a) of the above cited act provides, in part, as follows: 66 * * * 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 would have been entitled had he not been so temporarily appointed." [Italics supplied.] 3. The records show that Marine Gunner Watson accepted temporary appointment as a marine gunner on April 10, 1942, with rank from March 2, 1942 On the date prior to acceptance of the temporary appointment as marine gunner, Watson was serving in the enlisted rank of master technical sergeant (first grade) and was on duty with the American Legation, Guatemala City, Guatemala, and entitled to an allowance for quarters and subsistence at the rate of $4.00 per diem, under the provisions of Table I of Executive Order No. 8704. dated March 4, 1941, as amended. The records further show that Watson has over 12 years' service which may be counted for pay purposes both as a warrant officer and as an enlisted man, and that he is detailed to duty involving flying and entitled to increased pay for aviation duty. The following is a comparison of the present total pay and allowances of the permanent and temporary rank in the case of Watson based on a 30-day month: The records show that Marine Gunner Watson is married and would be entitled to a quarters allowance under the provisions of the act of October 17, 1940, 54 Stat. 1205, in his permanent rank as an enlisted man, provided no quarters were available or assigned his dependent wife, were it not for the fact that he is now on duty at a station where no quarters and rations are available and entitled to a quarters allowance in his own right. 4. In view of the foregoing, and in order that the paymaster, U. S. Marine Corps, may correctly advise disbursing officers of this department as to the method of settling the accounts of individuals temporarily promoted under the authority of the act of July 24, 1941, supra, it is requested that the following questions be submitted to the Comptroller General of the United States for a decision: (a) Is Marine Gunner Watson entitled to retain his total enlisted pay and allowances (including the station money allowance for quarters and subsistence) upon acceptance of temporary appointment as marine gunner? (b) If the answer to (a) above is in the affirmative, what pay and allowances will Watson be entitled to receive in the event of his transfer-while holding said temporary rank-to a station where, for instance due to a decrease in the money allowance for quarters and subsistence authorized for the station to which transferred, the total pay and allowances (in money) which he would be entitled to receive in his permanent rank as an enlisted man would be less than the total pay and allowances of the temporary rank? 5. It is further requested that a decision be obtained on the following questions: (a) Should a commissioned warrant officer temporarily appointed to the rank of first lieutenant, where the total of the pay and allowances of either his temporary or permanent rank is the same ($271.00 a month), continue to be credited the pay and allowances of his permanent rank or should he be credited the pay and allowances of the rank temporarily held? For example, the account of a permanent commissioned warrant officer with dependents, and with over 20 years' total service and with over three years' commissioned service, in a rental allowance status, drawing the saved pay of a warrant officer for comparison may be stated as follows: (b) In the event that in answer to question (a) it is held that the officer should be credited the pay and allowances of the temporary rank, what pay and allowances would the officer be entitled to receive in the event of his assignment to public quarters where the actual amount of money received by the officer in his temporary rank ($211.00 per month) would be less than that to which he would be entitled in his permanent rank ($221.00 per month)? (c) Are individuals temporarily appointed under the authority of the act cited to be permitted to shift from the total pay and allowances of their permanent rank to the total pay and allowances of their temporary rank, or vice versa, whenever a change in status occurs in order to permit them, at all times, to draw the highest total compensation? Section 7 (a) of the act of July 24, 1941, 55 Stat. 604, 34 U. S. C. 350f, provides: 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 would have been entitled had he not been so temporarily appointed. In decision of this office to the Secretary of the Navy, B-24219, dated May 7, 1942, 21 Comp. Gen. 991, it was said with reference to the effect of the saving clause contained in section 7 (a) of the act of July 24, 1941, on the pay of enlisted men in the regular establishment holding temporary commissions that: * It would include the pay and allowances to which entitled in his permanent status at the time of temporary appointment and additional pay for length of service when and if an additional period of service authorized to be counted is completed. It would include, also, any and all pay, and allowances payable in money, which would have accrued by virtue of his station and duty in the status occupied when first temporarily appointed. * The payment of money allowances being dependent upon the duty status of the enlisted man, and the availability of quarters and subsistence in kind, if they would be paid in money, they are for including as part of the allowances contemplated by the last proviso of section 7 (a) of the act of July 24, 1941, to be used as a basis for comparison during periods when performing the duties of a temporary commissioned officer under similar conditions. Therefore, when the enlisted man is or would have been entitled to receive the money allowance for quarters, that item represents part of his pay and allowances within contemplation of the last proviso of section 7 (a) of the act of July 24, 1941, supra. B-24472, dated today, 21 Comp. Gen. 1012. Question (a) in paragraph 4 is answered that so long as Marine Gunner Watson remains at a duty station which would have entitled him as an enlisted man in the permanent Marine Corps to the items of pay and allowances in an amount greater than the pay and allowances of a Marine gunner, the last proviso of section 7 (a) is applicable and he would be entitled to continue to receive the pay and allowances pertaining to his permanent status as an enlisted man. Question (b), paragraph 4, is answered that since, as an enlisted man in the permanent Marine Corps, his pay and allowances would be less than the total pay and allowances applicable to the temporary warrant office he would be entitled to the pay and allowances of the temporary rank. (Question (a), paragraph 5). The first proviso of section 7 requires that no person who shall accept a commission or warrant under the provisions of the act shall, while serving thereunder, be entitled to pay or allowances except as provided by law for the position temporarily occupied, which is followed by the proviso which prohibits reduction in pay and allowances to which he would have been entitled had he not been so temporarily appointed. Unless, therefore, the pay and allowances of the permanent status are more than that applicable to the higher temporary commission the temporary officer is required to be paid under his temporary commission. Under the situation referred to in question (b), paragraph 5, the commissioned warrant officer, permanent Marine Corps, had he not been temporarily appointed first lieutenant, would have been entitled to the pay and allowances in the amount of $221 per month, and the last proviso of section 7 (a) provides that he shall suffer no reduction in pay and allowances to which he would have been entitled had he not been so temporarily advanced. Accordingly, the officer would be entitled to the pay and allowances of commissioned warrant officer under his permanent appointment in the Marine Corps. Question (c), paragraph 5, is stated too broadly. Assuming that the intent of the question is in relation to the pay and allowances of the rank or grade which the person held in the permanent Marine Corps immediately prior to appointment in a higher temporary commission or warrant, and interpreting the word "status" as referring to changes with respect to quarters or a money allowance therefor, subsistence allowance if payable in the permanent status in that particular assignment, and sea duty or foreign duty, it may be answered in the affirmative. See in this connection decision to the Secretary of the Navy, B-24219, dated May 7, 1942, 21 Comp. Gen. 991. (B-25633) STATUTORY FOREIGN PRODUCTS PURCHASE RESTRICTIONS-WAIVER AUTHORITY UNDER FIRST WAR POWERS ACT * The provisions in the Naval Appropriation Acts for 1942 and 1943 prohibiting the procurement of articles of food or clothing not grown or produced in the United States or its possessions are not provisions of law "relating to the making of contracts" which may be disregarded under authority of section 201 of the First War Powers Act, 1941, empowering the President to authorize certain Government departments and agencies in the exercise of their wartime functions to enter into contracts without regard to the provisions of law relating to the making, etc., of contracts. Acting Comptroller General Elliott to the Secretary of the Navy, May 18, 1942: I have your letter of April 23, 1942, as follows: The Naval Appropriation Acts for the fiscal years 1942 and 1943 contain a proviso reading as follows: "That no part of this or any other appropriation contained in this act shall be available for the procurement of any article of food or clothing not grown cr produced in the United States or its possessions, except to the extent that the Secretary of the Navy shall determine that articles of food or clothing grown or produced in the United States or its possessions cannot be procured of satisfactory quality and in sufficient quantities and at reasonable prices as and when needed, and except procurements by vessels in foreign waters and by establishments located outside the continental United States, except the Territories of Hawaii and Alaska, for the personnel attached thereto." The First War Powers Act, 1941, provides that the President may authorize Government departments engaged in war functions "to enter into contracts and to make advance, progress and other payments thereon, without egard to the provisions of law relating to making ** of contracts." This act became law on December 18, 1941, after the date of approval of the Naval Appropriation Act, 1942, on May 6, 1941; but the Naval Appropriation Act, 1943, was enacted subsequently, on February 7, 1942. It clearly appears that contracts may be made under the authority of the First War Powers Act, 1941, and payment therefor may be made, without regard to the subject proviso as contained in the Naval Appropriation Act, Act, 1941. * * 1942, inasmuch as that proviso is obviously a "provision of law relating to the making * of contracts" within the meaning of the First War Powers It further appears, however, that some question may possibly be raised with respect to the effect to be given to the similar proviso of the Naval Appropriation Act, 1943, since that act became law subsequent to the First War Powers Act. * * * From the broad terms of the First War Powers Act, as well as from the stated legislative purpose thereof ("an act to expedite the prosecution of the war effort"), it would appear that it was the intention of the Congress to permit the making of war contracts without regard to restrictive statutes relating to Government contracts, regardless of whether or not the statutes were existing at the time of enactment of the First War Powers Act, 1941. This conclusion is supported by the fact that the expression "without regard to the provisions of law relating to the making of contracts is not qualified by the word "existing " or any equivalent thereof. Furthermore, the provisions of the First War Powers Act relating to the making of contracts, are not self-executing; therefore that act and subsequent restrictive statutes may coexist without conflict, and the provisions of later statutes may be given effect generally, unless and until the authority of the First War Powers Act is invoked by action of the President. Even when that is done, the later restrictive statutes will lose their effect only as to contracts specifically entered into under authority of the First War Powers Act. This circumstance would appear to negative the possible argument that Congress would have been doing a useless act by including the restrictive proviso in the Naval Appropriation Act, 1943, unless it was intended that this provision should override the authority of the First War Powers Act. To clear up any possible doubt, however, your opinion is requested as to whether contracts may be made under authority of the First War Powers Act, 1941, without regard to the above-quoted proviso of the Naval Appropriation Act, 1943. Although the so-called "Buy American Act," 47 Stat. 1520, has been in effect since March 3, 1933, the specific statutory provision quoted in your letter prohibiting the procurement of articles of food or clothing not grown or produced in the United States or its possessions, first appeared in the Fifth Supplemental National Defense Appropriation Act, 1941, approved April 5, 1941, Public Law 29, 55 Stat. 125. See House Report 301, 77th Congress, on that legislation, pages 10-11. Thereafter, the provision was inserted in the Naval Appropriation Act, 1942, 55 Stat. 159, in the form as quoted in your letter, in order that it would conform with said provision as contained in the Fifth Supplemental National Defense Appropriation Act, 1941. See page 3 of House Report 454, 77th Congress. It thus appears that this provision was incorporated into an appropriation act for the first time on April 5, 1941, or more than 9 months before the First War Powers Act, 1941, 55 Stat 838, and that like provisions have been contained in other appropriation acts enacted both prior and subsequent to said First War Powers Act, 1941. Title II, section 201, First War Powers Act, 1941, 55 Stat. 839, provides, in pertinent part, as follows: The President may authorize any department or agency of the Government exercising functions in connection with the prosecution of the war effort, in accordance with regulations prescribed by the President for the protection of the interests of the Government, to enter into contracts and into amendments |
