lations provides that intermittent and irregular employees shall be paid, in lieu of overtime, additional compensation at. the rate of (a) $300 per annum, if their earned basic compensation is at the rate of less than $2,000 per annum, or (b) 15 percent of so much of their earned basic compensation as is not in excess of a rate of $2,900 if their earned basic compensation is at a rate of $2,000 per annum or more, subject to the limitation that the additional compensation shall not exceed 25 percent of the earned basic compensation of the employee for such period. Part IV, Section 4, provides:

"In the case of an employee who receives in lieu of overtime compensation additional compensation under Section 2 of Part IV at a rate of $300 per annum, the deduction from such additional compensation shall be 1/360 of $300 for each day of leave without pay."

This regulation apparently applies to employees paid on a per annum basis, although it is not expressly so limited. If the compensation of an intermittent or irregular employee is computed on a per annum basis, it is clear, under the above regulation, that the employee should receive 1/360 of the rate of $300 per annum as the daily rate of additional compensation, assuming that the salary rate is $1,200 or more but less than $2,000. Similarly, if the per annum rate is less than $1,200, the additional daily compensation rate would be 1/360 of 25 percent of the per annum rate. It would appear that intermittent or irregular employees, paid on a daily or hourly basis, should receive additional compensation in lieu of overtime on the basis of the actual tour of duty of employees similarly situated. Applying this principle, if an intermittent or irregular employee paid on a daily or hourly basis is working with employees whose weekly tour of duty is six days, the additional compensation should be 1/313 of the additional annual rate for the six-day week tour of duty.

It is noted that, in the decision of May 19, 1943, B-34456, addressed to the Librarian of Congress, it was held that full time per diem employees entitled to a minimum of $300 per annum in lieu of overtime compensation of a less amount, pursuant to Section 3 (b) of the Act, are entitled to be paid 1/313 of $300 for each day that they are in a pay status. It is apparent that this refers to full time employees who regularly work a six-day, 48-hour week, since the decision, B31623, of March 5, 1943, which relates to such employees, was cited in the submission of the Librarian of Congress. It would appear that employees who regularly work 51⁄2 and 5-day workweeks should receive 1/287 and 1/261, respectively, of $300 as additional daily compensation in lieu of overtime. (See, in this connection, 22 Comp. Gen. 589, 595.)

Please advise whether our interpretation of the provisions of the act and regulations referred to herein is correct. An early reply to this submission will be appreciated.

In the decision of January 30, 1943, 22 Comp. Gen. 720, to which you refer, it was held (quoting from the syllabus):

In the settlement by this office of the quarterly accounts of United States commissioners, involving any fee earned during the period December 1, 1942, through April 30, 1943, the effective period of the overtime and additional compensation act of December 22, 1942, the total amount of the fees allowed will be increased by 10 percent-the percentage increase authorized by said act—subject to the maximum monthly increase of $24.16 authorized by the act, provided that only so much of the monthly increase will be allowed as will not increase the monthly "aggregate compensation" beyond $416.66 (1/12 of the $5,000 per annum limitation of the act) any necessary adjustment to be made as of April 30, 1943, so that the proper amount of increase may be received for the five months involved.

That portion of the rule above quoted relating to the ceiling rate of $5,000 per annum is, of course, for disregarding in considering under the War Overtime Pay Act of 1943, 57 Stat. 76, the first question presented in the second paragraph of your letter. Only that portion of the rule relating to the ceiling rate of $2,900 per annum is required to be considered here.

The statute [section 3 (c), 57 Stat. 77] authorizes an increase of 15 percent of $2,900 of fees actually earned during the year and the "year", for the purpose of this case, may be regarded as the fiscal year.

For each pay period—that is, the period over which fees are usually periodically paid-the additional compensation paid should be 15 percent of the fees actually earned during that period but no more than 15 percent of the pro rata amount based on the rate of $2,900 per annum. For example, if fees usually are paid semimonthly the maximum additional compensation for the pay period would be limited to 15 percent of 24 of $2,900, or $18.12. However, as the right of an employee to the total additional compensation based on $2,900 for the fiscal year may not be defeated while the law is in operation, an adjustment, when required to preserve such right, may be effected at the end of each fiscal year (in this instance, June 30, 1943, to cover the months of May and June, 1943), so as to pay the employee 15 percent additional compensation on the amount of fees, not to exceed $2,900, actually earned during the fiscal year.

Referring to your second question, the formulas stated in your letter for computing the additional compensation of intermittent or irregular employees are correct.

(B-31978)

SAVED PAY AND ALLOWANCES OF TEMPORARILY PROMOTED NAVY, MARINE CORPS AND COAST GUARD PERSONNEL

The provisions of section 7 (a) of the act of July 24, 1941, as now amended, respecting the saved pay and allowances of Navy, Marine Corps and Coast Guard personnel temporarily promoted under authority of the act, save to such a temporarily promoted person only the pay and allowances to which he was entitled at the time of his temporary promotion, and do not-as was the case under the act as originally enacted-save a right to further or increased pay and allowances which otherwise might have accrued under his permanent status subsequent to the date of the temporary promotion. 21 Comp. Gen. 1012 and ibid. 1015, modified. While, under the provisions of section 7 (a) of the act of July 24, 1941, as amended, the previous pay and allowances of Navy, Marine Corps and Coast Guard personnel temporarily appointed to a higher grade or rank under the said act are saved from reduction due to the temporary appointment, they are not saved from reduction due to other changes in conditions affecting such pay and allowances, that is, the statute does not operate to save or continue items of pay and allowances (such as increased pay for flying duty, sea duty, foreign duty, etc., and rental and subsistence allowances) to which the person would not have been entitled, either in his permanent or in his temporary status, under the conditions of his actual subsequent service. 21 Comp. Gen. 1012 and ibid. 1015, modified. Under the provisions of section 7 (a) of the act of July 24, 1941, as amended, respecting the saved pay and allowances received by Navy, Marine Corps and Coast Guard personnel at the time of temporary promotion, a temporary warrant officer of the Coast Guard who was promoted from a permanent enlisted status and, at the time of appointment, received the pay and allowances of his temporary grade because they were equal to or greater than those of his permanent grade may not now be paid the pay and allowances of his permanent grade which, because of changed conditions of service, are greater than those of his temporary grade.

Assistant Comptroller General Yates to the Secretary of the Navy, July 14, 1943: There has been considered your letter of January 22, 1943 (JAG: K:WJG: gb SO 1 20 366), requesting decision on a question raised by

the Commandant, U. S. Coast Guard, in his letter of January 11, 1943, as to the pay and allowances which may be saved a temporary warrant officer of the Coast Guard appointed under the provisions of the act of July 24, 1941, 55 Stat. 604, as amended. The circumstances of the case are stated in the Commandant's letter as follows:

The officer in question, immediately prior to his temporary promotion to a warrant grade, was a chief petty officer with over 18 years' prior military service. At the present time this officer is assigned duty on shore in Havana, Cuba, as disbursing officer for a group of small boats and is receiving monthly pay and allowances, namely, pay at the rate of $195, foreign service pay $30 and rental and subsistence allowance $102, or a total of $327 per month.

No Government quarters or messing facilities are available either for an officer or enlisted man on shore duty at the place where this officer is serving, and if this officer is entitled to be paid in his permanent status as an enlisted man his monthly pay and allowances would be namely, pay at the rate of $179.40, foreign service pay $27.60, quarters allowance for self $37.50 and subsistence allowance $67.50 and quarters allowance for dependents prevented from residing with him $37.50, or a total of $349.50 per month.

The Commandant's letter invites attention to the act of November 30, 1942, 56 Stat. 1023, which amended section 7 (a) of the said act of July 24, 1941, and asks whether such amendment modifies a decision of this office dated May 15, 1942, 21 Comp. Gen. 1015.

The decision of May 15, 1942, referred to, held, in effect, that under the savings clause contained in section 7 (a) of the act of July 24, 1941, 55 Stat. 604, a person who was temporarily appointed to a higher rank or grade under the provisions of such act would be entitled to the pay and allowances of his permanent rank or grade as long as they were greater than the pay and allowances of his temporary rank and grade but that when the latter were equal to or exceeded the former he would be required to be paid under his temporary appointment. In other words, his pay and allowances, from time to time, would alternate between those of his permanent assignment and those of his temporary assignment, depending on which were the higher. See, also, decision of the same date, 21 Comp. Gen. 1012.

Insofar as the question of saved pay and allowances are concerned, the said decisions were based on the second proviso of section 7 (a), of the act of July 24, 1941, supra, as originally enacted. Section 7 (a), before being amended, read 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 would have been entitled had he not been so temporarily appointed. [Italics supplied.]

However, the act of November 30, 1942, 56 Stat. 1023, amended the second proviso of the above-quoted section 7 (a) to read:

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 * *. [Italics supplied.]

That the amending act of November 30, 1942, materially changed the savings clause is readily apparent. While that provision as originally enacted saved from reduction the pay and allowances to which the man "would have been entitled" had he not been so temporarily appointed, the amended proviso saves from reduction by reason of the temporary appointment only the pay and allowances to which he was entitled at the time of his temporary appointment, that is, it does not save a right to further or increased pay and allowances which otherwise might have accrued to him under his permanent status subsequent to the date he was so temporarily appointed. There remained unchanged the primary requirement of the first or basic proviso that persons temporarily appointed under the act to higher positions should not be entitled, while serving in such positions, to pay or allowances except as provided by law for such positions. This was qualified by the second proviso, as amended, so that such a person should not suffer, by reason of his appointment to a higher temporary rank or grade, any reduction in the pay and allowances to which he was entitled at the time he was so appointed. That is, while the pay and allowances to which he was then entitled were not to be reduced by the temporary appointment to a higher grade, the amended saving clause does not authorize a subsequent increase in the amount of pay and allowances so that such a person would receive more than he was entitled to at the time of the temporary appointment and, also, more than the pay and allowances to which he would be entitled in his temporary position. Moreover, while the previous pay and allowances of a person temporarily appointed to a higher grade are saved from reduction due to the temporary appointment, they are not saved from reduction due to other changes in the conditions affecting such pay and allowances. A person entitled to increased rental and subsistence allowance on account of dependents when temporarily appointed to a higher grade, although entitled to continue to receive such increased allowances after such appointment as a part of his "saved" pay and allowances, clearly would not be entitled to continue to receive such additional allowances as part of his saved pay and allowances if his dependents died or after they otherwise ceased being dependents. The reduction in such a case would not be due to the temporary appointment but to the death or loss of the dependents. Likewise, so far as rental or quarters allowance for dependents is concerned, it would not be "saved" for periods when the dependents

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occupied public quarters, nor would rental or quarters allowance for the man himself be "saved" for periods when he was furnished quarters, the quarters being in lieu of the allowance, or vice versa, and the elimination of the allowance not being due to the temporary appointment, but to the occupancy of quarters. Likewise, flying pay would not be saved for periods after the temporary appointment when the person was not on flying duty, the reduction not being due to the temporary appointment but to being relieved from flying duty. Nor would foreign service or sea pay be saved after return to the United States because such reduction would not be caused by the temporary appointment but to being transferred to a location where such additional pay was not payable. The same would appear to be true of any pay or allowances not primarily dependent on the grade or rank or prior service but to the circumstances and conditions under which service actually is performed. Such application of the statutory provision operates to save a person temporarily appointed to a higher grade from any reduction in the items of pay and allowances to which he actually was entitled at the time of the temporary appointment to the extent he would have received such pay and allowances in his permanent grade under the conditions of his actual subsequent service. In view of the first or basic proviso in said section 7 (a) that no person temporarily appointed under the act shall, while so serving, be entitled to pay and allowances except as provided by law for the position temporarily occupied, it is not believed that the qualification, or saving clause, in the second proviso, as amended, was intended to operate to save or continue items of pay and allowances to which the person would not have been entitled either in his permanent or in his temporary status under the conditions of his actual service. To the extent indicated herein, the amendment of the said saving clause in section 7 (a) by the act of November 30, 1942, had the effect of modifying the rules applied in the cited prior decisions.

The case presented by you concerns a temporary warrant officer who is receiving the pay and allowances of his temporary grade-presumably because they are equal to or greater than the pay and allowances to which he was entitled at the time of his temporary appointment. Under such circumstances, he is not entitled to increased pay and allowances by reason of the fact that he is now serving under conditions where the pay and allowances of his permanent grade would be greater than those to which he was entitled at the time of his temporary appointment, which is the maximum saved from reduction by the saving clause in section 7 (a) as amended.