interest may be made under 10 U.S.C. 1035 (c) only upon his discharge or at such time before his discharge as may be prescribed by the Secretary of the Navy. In paragraph 044336–1, Navy Comptroller Manual, the Secretary has authorized payment of all sums deposited during his enlistment that have not been withdrawn upon the depositor's appointment to a warrant or commissioned rank.

Section 5596 (b) of Title 10, U.S. Code, enacted August 10, 1956, ch. 1041, 70A Stat. 329, provides that temporary appointments in the Regular Marine Corps in grades not above captain may be made from "master, technical, and staff sergeants of the Regular Marine Corps." The Historical and Revision Notes to that section indicate that such provision was derived from section 302 (c) of the Officer Personnel Act of 1947, ch. 512, 61 Stat. 830, 34 U.S.C. 3c (1952 Ed.), which authorized temporary appointments in the Regular Marine Corps in grades not above captain of "staff sergeants and above in the Regular Marine Corps." The notes further state that "the words 'and above' have been executed by naming the grades they imply, to wit * * * master and technical sergeants." At that time the only grades above staff sergeant in the Marine Corps were the grades of technical sergeant (E-6) and master sergeant (E-7). Section 5596 (b) reenacted the law, as it then existed, without substantive change. See section 49 (a) of the act of August 10, 1956, 70A Stat. 640.

Enlisted pay grades E-8 and E-9 were established by section 1(1) of the military pay act of 1958, Public Law 85-422, approved May 20, 1958, 72 Stat. 123, amending section 201(a) of the Career Compensation Act of 1949, ch. 681, approved October 12, 1949, 63 Stat. 805, 37 U.S.C. 232 (a) (1958 Ed.), now codified in 37 U.S.C. 203. Enlisted members serving in the grade of master gunnery sergeant have been assigned pay grade E-9 by the Secretary of the Navy under 37 U.S.C. 201 (g).

Inasmuch as the provisions of 10 U.S.C. 5596(b) do not expressly authorize the appointment of an enlisted member in the Regular Marine Corps in the grade of master gunnery sergeant (E-9) to the grade of second lieutenant, you say that there is doubt that the appointment of Sergeant Shiver to the commissioned grade of second lieutenant is legally sufficient to authorize payment of the deposits and interest at the time of such appointment in view of (1) the rule of statutory construction that the express enumeration of certain classes of persons indicates an intent to exclude any class of persons not mentioned and (2) cautions in certain judicial decisions against departing from the literal language of a statute in order to reach a conclusion deemed to be in accord with the spirit and purpose of the statute. In that connection you say that memory suggests that at hearings

(a copy of which you do not have) before Subcommittee No. 2 of the Committee on Armed Services, House of Representatives, on H.R. 9979, 85th Cong., a bill similar to H.R. 11470, which became the military pay act of May 20, 1958, the Department of Defense indicated that the new enlisted pay grades E-8 and E-9 were to be the terminal points in the military careers of enlisted members promoted to those grades and that those grades would not be used as stepping stones for promotion to warrant officer or commissioned officer grades.

The legislative history of the 1958 military pay act indicates that the proposed new pay grades E-8 and E-9 should be reserved for career enlisted men (that former commissioned officers should not be appointed to such grades upon enlistment following commissioned officer service). An intention to preclude the appointment of enlisted members in grades E-8 and E-9 as commissioned officers, however, was expressly disavowed. Thus, in the hearings on H.R. 9979 at page 5141 there appears the following exchange:

Mr. WILSON. It would be pretty obvious when we got into the E-8 or E-9 category he would not be considered in the future for any warrant officer or officer promotions?

Colonel KECK. Short of exceptional ability, peculiar skill, or possibly mobilization. It is not intended that this be utilized for other than a normal enlisted career pattern.

With respect to appointments of enlisted members in grades E-8 and E-9 to commissioned officer grades, it is stated in H. Rept. No. 1538, 85th Cong., 2d sess., at page 46 that:

H.R. 11470 also provides a special pay scale in the 3 lower officer grades for enlisted personnel with more than 4 years of enlisted service. Without such a provision, the enlisted man E-5 through E-9 could not in the future become an officer without suffering a loss of pay too great to be endurable.

In view of the legislative history of 10 U.S.C. 5596(b) and the expressly stated legislative intent in the act of August 10, 1956, to restate existing law without substantive change, we believe it is evident the Congress intended that qualified enlisted men of the Marine Corps in the grades of staff sergeant and above should be eligible for temporary officer appointments in the Regular Marine Corps under that section. In such circumstances, a conclusion that in creating two top additional enlisted grades the Congress intended to bar persons holding those grades from the temporary promotion benefits of section 5596 (b) would appear to be warranted only on the basis of language clearly so providing. Since such language was not included in the 1958 act and its legislative history contains expressions negativing such intent, it is our view that the appointment of Master Gunnery Sergeant Shiver as a second lieutenant was authorized under the provisions of 10 U.S.C. 5596 (b).

Accordingly, we think that such appointment is proper and that payment on the enclosed voucher is authorized, if otherwise correct.

[B-159715]

Funds Federal Grants, Etc., to Other Than States-Program Participation by Federal Agencies

In connection with the College Work-Study Program prescribed by the Economic Opportunity Act of 1964, as amended, providing for the part-time employment of students and authorizing the Commissioner of Education to enter into grant agreements with institutions of higher education and to pay the "Federal share" of 90 percent of the cost of a program, the remaining 10 percent of the cost is not considered within the purview of the "Federal share" contribution and a Federal agency, authorized as a "public organization" to utilize work-study enrollees is not precluded from making payments under a study program that are in addition to those made by the Commissioner, provided no profit results to the sponsoring institution.

Colleges, Schools, Etc.-Work Study Programs-Economic Oppor tunity Act-Agency Participation Apart From Grant Agreement

The unreimbursed administrative costs, such as social security taxes, compensation insurance and other standard contributions, relating to enrollees placed with Federal agencies in connection with the College Work-Study Program authorized by the Economic Opportunity Act of 1964, as amended, may be paid by the agencies in addition to the 10-percent payment made under the grant agreement. Colleges, Schools, Etc.-Work Study Programs Economic Oppor tunity Act-Agency Participation Apart From Grant Agreement The additional payments by Federal agencies employing students under the College Work-Study Program prescribed by the Economic Opportunity Act of 1964 may be made on a flat percentage rather than an actual cost basis, provided the records of the institutions of higher education are periodically reviewed to assure the appropriateness of the payments being made and the percentages adjusted where necessary to maintain a reasonable long-term relationship between actual costs and payments.

To the Administrator, Veterans Administration, August 4, 1966:

By letter of July 19, 1966, you submitted for our consideration and decision the question as to whether the Veterans Administration may make payments to colleges for employer contributory payroll costs in connection with the College Work-Study Program under title 1-C of the Economic Opportunity Act of 1964, as amended, 42 U.S.C. 2751 et seq.

The general purpose of the work-study program is to stimulate and promote the part-time employment of students in institutions of higher education who are in need of earnings to pursue their courses of study. 42 U.S.C. 2751. Toward this objective, the Commissioner of Education is authorized to enter into grant agreements with institutions of higher education providing for operation by the institu

tions of programs for the part-time employment of their students in work for the institutions themselves or work in the public interest for public or private nonprofit organizations. The "Federal" share of the compensation of the students is limited to 90 percent of such compensation for work performed during the period ending August 19, 1967, and 75 percent thereafter. 42 U.S.C. 2753 (a); id. 2754(f). It has been determined that Federal agencies qualify as public organizations which may utilize the services of students in the program. Cf. our decision of July 21, 1964, B-153694. See also letter of June 9, 1965, from the Assistant Attorney General Office of Legal Counsel, to the General Counsel, Office of Economic Opportunity. United States Civil Service Commission Bulletin No. 300-5, November 5, 1965, stipulates the conditions under which Federal agencies may cooperate with institutions by providing job opportunities for students in the program. The Veterans Administration is participating in the program as authorized by CSC Bulletin No. 300-5 with the Office of Education bearing 90 percent of the compensation cost involved and the Veterans Administration bearing the remaining 10 percent.

Your inquiry to this Office stems from several requests that the Veterans Administration pay in addition to the 10 percent remainder, the employer contributory payroll costs (social security taxes, compensation insurance and related standard contributions) and that such payment be at a flat percentage charge directly related to the employer payroll contributions, rather than on the basis of exact costs. The extent of authorized Federal participation in the program is contained in subsections 124 (b) and 124(f) of the Economic Opportunity Act of 1964, as amended, 42 U.S.C. 2754 (b) and 2754(f). Subsection 124 (f) provides that agreements with institutions of higher education for work-study grants shall:

provide that the Federal share of the compensation of students employed in the work-study program in accordance with the agreement will not exceed 90 per centum of such compensation for work performed during the period ending three years after the date of enactment of this Act, and 75 per centum thereafter.

Subsection 124 (b) authorizes the institutions to utilize a limited amount of grant funds to cover administrative expenses.

While it might well be argued that the specific limiting provisions cited preclude contribution toward student compensation and administrative expenses by any Federal agency over and above the contributions by the Commissioner of Education, such a contention has been cast aside by construction of the term “Federal share” as pertaining only to payments made by the Commissioner of Education. On this basis it has been concluded that the quoted limitation does not pre

clude other Federal agencies which utilize work-study enrollees from making payments in addition to those of the Commissioner. But though the term "Federal share" may properly be restricted to payments by the Commissioner of Education, that is not to say that additional payments by other Federal agencies are authorized to be made without limitation. Although there is no specific provision of law which can be cited as limiting the contributions of Federal agencies which engage in the work-study program as "public organizations" authorized under the act, we believe it would be stretching too far the concept pursuant to which Federal payments in addition to those of the Commissioner of Education have been authorized if such additional payments together with those of the Commissioner were allowed to result in a profit to the sponsoring institution. However, to the extent that the sponsoring institutions actually incur unreimbursed administrative costs related to enrollees placed with Federal agencies, we perceive of no reason why the Federal agencies may not properly include such otherwise unreimbursed costs in amounts to be paid by them under the program. And there is no reason for construing the institutions' contributory payroll costs as other than administrative costs. Accordingly, the question presented is answered in the affirmative to the extent that the costs in question are not recovered by the institutions from any other source.

With regard to that portion of your inquiry as to whether such additional payments as are herein authorized may be made on a flat percentage rather than actual cost basis, we would have no objection to such a procedure, provided that the records of the institutions are periodically reviewed to assure the appropriateness of the payments being made and the percentages adjusted where necessary to maintain a reasonable long term relationship between actual costs and payments. Since implementation of this decision may require some degree of coordination with the Commissioner of Education, we are sending him a copy.

[B-159727]

Compensation-Postal Service-Downgrading-Saved Compensation-Service Credits

A postal employee in grade PFS-7, step 8, under a permanent appointment at the time of demotion to grade PFS-4, may have his service under a temporary promotion to grade PFS-7 added to his permanent service in that grade to qualify him for salary retention under 39 U.S.C. 3560 at the rate of pay he was receiving at the time of his demotion, 39 U.S.C. 3560 (b) (3) providing that salary protection will not be afforded an employee whose reduction in salary was a condition of his temporary promotion having no application to the employee serving under a permanent appointment at the time of demotion, nor does section 753.42 of the Postal Manual preclude credit for service under a temporary promotion made