Page images
PDF
EPUB

The conclusion in the decision of October 22, 1940, B-12332, was based upon the provision contained in the act of February 16, 1929, 45 Stat. 1186, 37 U. S. C. 5, which provides that

Commissioned warrant officers with creditable records on the active list shall receive pay as follows: During the first ten years of commissioned service, the pay of the second period; after ten years of commissioned service, the pay of the third period; after 20 years of commissioned service the pay of the fourth period;

The service record of the officer considered in the aforesaid decision indicated that he had been retired as a chief machinist January 1, 1937, at which time his commissioned service totaled 19 years, 4 months and 16 days. Following retirement he was recalled to active duty and subsequent to that time had completed an aggregate of 20 years' commissioned service, including 7 months and 14 days as a retired officer on active duty. Prior to his retirement, namely, on June 7, 1929, a certificate of creditability of record after 10 years of commissioned service had been issued and the question presented for decision was whether, if the officer's record should be certified as creditable after 20 years' commissioned service, he would legally be entitled to receive the pay and allowances of the fourth pay period under the act of February 16, 1929, supra. As a basis for the conclusion therein it was stated as follows:

Section 17 of the Joint Service Pay Act of June 10, 1922, 42 Stat. 632, as amended by the act of May 26, 1928, 45 Stat. 774, 37 U. S. C. 26, provides: "That on and after July 1, 1922, retired officers and warrant officers shall have their retired pay, or equivalent pay, computed as now authorized by law on the basis of pay provided in this Act, which pay shall include increases for all active duty performed since retirement in the computation of their longevity pay and pay period; * * Retired officers of the Army, Navy, Marine Corps, Coast Guard, and Coast and Geodetic Survey below the grade of brigadier general or commodore and retired warrant officers and enlisted men of those services, shall, when on active duty, receive full pay and allowances,

*

Under this provision of law Lieutenant Bourke is entitled to the full pay and allowances of his pay grade as chief warrant officer on the retired list, of his length of service, with a creditable record on the active list after 10 years of service (19 Comp. Gen. 433 at page 436). Different from other commissioned officers of the Navy the retired pay of a chief warrant officer changes only upon issuance of a certificate of creditable record while a commissioned officer on the active list, and section 17 of the Joint Service Pay Act, quoted above, will not change his period pay by reason of active service after retirement unless there is authority to issue a certificate of creditable record as after 20 years of commissioned service, including service both on the active list and active duty after retirement.

Ever since provision was made for retirement of officers of the armed forces there have been two lists of officers, active list and retired list, so denominated by statute. See, for example, the act of 1930 quoted above. Statutes applicable to qualification when limited to officers on the active list have been held not to apply to officers on the retired list while on active duty (17 Op. Atty. Gen. 36; 25 id. 508 at page 511; 28 id. 486; 15 Comp. Dec. 230 and 235; 19 id. 540. Ordinarily an officer is retired but once. Roget v. United States, 148 U. S. 167 at page 172). The pay of a chief warrant officer is fixed with respect to "creditable records on the active list." Under this statute active duty after retire

470350m-42-14

ment would not be service on the active list and a certificate that such additional service after retirement was creditable would not warrant a change in the base or period pay of a chief warrant officer upon which his retired pay was fixed upon his retirement.

The decision of February 21, 1931, 10 Comp. Gen. 386, considered the effect of the act of May 8, 1926, 44 Stat. 417, on the pay of commissioned warrant officers retired prior to June 30, 1922, in view of the change in the pay of commissioned warrant officers made by the act of February 16, 1929, 45 Stat. 1186. In authorizing pay as after 10 years of commissioned service, there was considered what the retired pay of a commissioned warrant officer after 10 years of commissioned service would be if retired subsequently to February 16, 1929, and the act of May 26, 1928, 45 Stat. 774, amending section 17 of the act of June 10, 1922, was stated as authorizing the counting of active duty after retirement for period pay as applicable to chief warrant officers. On this basis there was authorized in the case there considered the counting of active duty after retirement if included in a certificate of creditability issued after retirement, and without discussion of the fact that a part of the commissioned service to be counted was rendered on active duty after retirement, that the certificate of creditability was issued long after the officer's retirement and included active duty after retirement and therefore not on the active list. That decision, insofar as it relates to adjustment of the retired pay of chief warrant officers retired prior to June 30, 1922, is not affected by the decision of October 22, 1940, but to the extent that it has been considered as authority for paying retired chief warrant officers on the basis of a certificate of creditable record issued after retirement and inclusive of active duty not while on the active list of the Navy, it will no longer be followed.

(B-19495)

COMPENSATION-WITHIN-GRADE PROMOTIONS-EMPLOYEES IN POSITIONS WITH SALARY RATES SPECIFICALLY FIXED BY STATUTE Since the Congress, subsequent to the date of the Classification Act of 1923, has definitely fixed the salary rate of locomotive inspectors of the Interstate Commerce Commission at $4,000 per annum, such salary rate is not subject to any adjustment by the administrative office under the classification act as amended by the act of August 1, 1941, providing for a uniform withingrade salary-advancement plan for employees.

Comptroller General Warren to the Chairman, Interstate Commerce Commission, August 26, 1941:

I have your letter of August 6, 1941, as follows:

The Boiler Inspection Act provides that the inspectors receive a salary of $4,000 per year. The recently approved act to amend the Classification Act of 1923, as amended, provides for increases in salary within grades on the attain

ment of proper efficiency ratings. Will you please advise me whether Inspectors may be promoted under the terms of this bill if they are administratively placed in a grade for which the maximum salary is above $4,000.

The appropriation for the salaries of these inspectors is made in the Independent Offices Appropriation Act, 1942, approved April 5, 1941, Public Law 28, 55 Stat. 113, under the heading "Interstate Commerce Commission," as follows:

Locomotive inspection: For all authorized expenditures under the provisions of the Act of February 17, 1911, entitled "An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto" (45 U. S. C. 22), as amended by the act of March 4, 1915 extending "the same powers and duties with respect to all parts and appurtenances of the locomotive and tender" (45 U. S. C. 30), and amendment of June 7, 1924 (45 U. S. C. 27), providing for the appointment from time to time by the Interstate Commerce Commission of not more than fifteen inspectors in addition to the number authorized in the first paragraph of section 4 of the act of 1911 (45 U. S. C. 26), and the amendment of June 27, 1930 (45 U. S. C. 24, 26), including such legal, technical, stenographic, and clerical help as the business of the offices of the director of locomotive inspection and his two assistants may require and for traveling expenses, $475,000, of which amount not to exceed $71,450 may be expended for personal services in the District of Columbia.

The act of February 17, 1911, 36 Stat. 913-referred to in the appropriation item, supra-fixed the salary rate of inspectors of locomotive boilers at $1,800 per annum. The present rate of $4,000 per annum was fixed by section 2 of the amendatory act of June 27, 1930, 46 Stat. 823, which act, also, is referred to in the above appropriation. Hence, the appropriation, which provides for all authorized expenditures under the provisions of the basic law of 1911, as amended, must be regarded as providing for payment of inspectors of locomotive boilers at the salary rate of $4,000, as fixed by the said law as amended.

The act of August 1, 1941, Public Law 200, 55 Stat. 613, amends section 7 of the original Classification Act of 1923 to provide a uniform within-grade salary-advancement plan for employees whose salary rates are required to be fixed administratively at one of the rates within the salary ranges prescribed by section 13 of the act based on the allocation of the positions. However, the inspectors here involved do not come within that class of employees because the Congress, subsequent to the date of the classification act, definitely fixed their salary rate at $4,000 per annum. Consequently, such salary rate is not subject to any adjustment by the administrative office under the classification act, as amended by the act of August 1, 1941. Compare 4 Comp. Gen. 459; 9 id. 355, wherein it was held that the salary rate of a position specifically fixed by statute should be excluded in applying the average provision appearing in an annual appropriation act. Also, compare decision of July 11, 1941, B-18540, 21 Comp. Gen. 13, to you, holding that the increase in compensation of one valuation engineer from $6,500 to $7,500, the last mentioned

rate having been fixed in the appropriation act by legislative action, was not a within-grade salary advancement.

Accordingly, the question presented is answered in the negative.

(B-19726)

CONTRACTS-COST-PLUS-TELEGRAMS-GOVERNMENT RATE
APPLICABILITY

War Department cost-plus-a-fixed-fee contractors should be regarded as acting directly in behalf of the Federal Government in sending telegrams pertaining to the contract work, and, therefore, payment for such telegrams should be made at Government rates, whether the cost of the telegrams is paid to the contractor by way of reimbursement or whether it is paid directly to the telegraph company in accordance with the right reserved in the contract.

Acting Comptroller General Elliott to the Secretary of War, August 30, 1941:

By indorsement of August 11, 1941, the Office of the Chief of Engineers referred to this office for decision an incomplete voucher submitted by the United States Engineer Office at Savannah, Ga., with an indorsement of July 11, 1941, as follows:

1. There is transmitted herewith, in duplicate, for forwarding to the General Accounting Office for pre-audit, unnumbered voucher 1034, "Standard Voucher for Purchases and Services other than Personal" to Goode Construction Corporation, Savannah Air Base. This voucher amounts to $59.90, and is forwarded in compliance with fourth indorsement above and paragraph 769.1 of Orders and Regulations.

2. The above voucher represents telegraph services billed at commercial rates that were rendered at Savannah Air Base during the month of March, 1941, where the above-mentioned firm held cost-plus-a-fixed-fee construction contract No. W-819-Eng 778, under this office. This bill should be $30.18, tax excluded, if computed at Government rates.

3. It must be noted that the Goode Construction Corporation has not yet paid the Western Union Telegraph Company and therefore, the government is not yet authorized to pay the above bill. Pending clarification of the question in point, all cost-plus-a-fixed-fee contractors employed under this office are withholding payments to the telegraph companies.

It is noted that the Goode Construction Corporation has not paid the Western Union Telegraph Co. for the telegrams covered by the voucher and that, under the terms of the contract in question, reimbursement may not be made to the contractor either at the commercial or Government rate until the contractor shall have paid such invoices. Payment by the contractor apparently has been held in abeyance because of doubt whether the Government or commercial rate should be applied to telegrams pertaining to the work covered by the contract.

With respect to past procedure in making payment for telegrams filed by cost-plus-a-fixed-fee contractors the District Engineer in a letter of April 24, 1941, to the Chief of Engineers, makes the following statement:

1. At the time this office took over construction of the Savannah Air Base from the Constructing Quartermaster, it was the practice in that office to

consolidate statements of telegraph service furnished to the C. Q. M., and all the contractors on one statement, which was paid by the finance officer to the Telegraph Company at Government rates. This was in accordance with paragraph 21, Fixed Fee Letter No. 1, September 21, 1940, Office of the Quartermaster General. This office continued the practice.

2. Effective March 1, 1941, Western Union Telegraph Company has refused to recognize this practice and has submitted separate statements to the Government and to the various contractors, the latter at commercial rates. The local office of the Telegraph Company states that they can do nothing about it since their instructions came from their superior offices.

3. In view of the instructions contained in Fixed Fee Letter No. 1, O. Q. M. G., mentioned above, and the fact that in effect the Government will be paying commercial rates for telegraph service if its Cost Plus Fixed Fee contractors are required to pay such rates and be reimbursed, information is requested as to whether the statements should be paid by the contractors and reimbursed by the Government. If not, advice is requested as to the proper course of action.

Paragraph 21 of Fixed Fee Letter No. 1, dated September 21, 1940, to which reference is made in the above-quoted communication, is as follows:

Arrangements for telephone service must be made through Post or Corps Area Signal Officer. Your funds will be used to pay for all telephone and telegraph service used by you and your contractor. Government rates will prevail for both uses.

As regards the rates to be applied to Government telegrams section 5266, Revised Statues, as amended by section 601 of the act of June 19, 1934, 48 Stat. 1101, 47 U. S. C. 3, provides that—

Telegrams between the several departments of the Government and their officers and agents, in their transmission over the lines of any telegraph company to which has been given the right of way, timber, or station lands from the public domain shall have priority over all other business, at such rates as the Federal Communications Commission shall annually fix. And no part of any appropriation for the several departments of the Government shall be paid to any company which neglects or refuses to transmit such telegrams in accordance with the provisions of this section.

In interpreting the above-cited law it was said by an Attorney General of the United States (14 Op. Atty. Gen. 278) that the only limitation on its applicability is that the telegraphing must be in cases where the rates are payable out of public moneys or are to be accounted for to the Government by the officer making the expenditure. In considering whether Government rates were applicable to messages transmitted for the Emergency Fleet Corporation, United States Shipping Board, the Supreme Court of the United States in Emergency Fleet Corporation v. Western Union Telegraph Company, 275 U. S. 415, noted that no distinction has ever been made in the extension of priority and lower rates between messages sent to persons within the departments and those outside. In deciding that the Government rates applied to such messages, it was pointed out by the court that the Fleet Corporation was a private corporation in form but was engaged in business on behalf of the United States and that appropriations were made from the Federal Treasury for its operation so that any increased costs of transmitting telegrams

« PreviousContinue »