(B-72912)

POSTAL SERVICE-ALLOWANCES OF FOURTH-CLASS POSTMASTERSPERIODS OF ABSENCE WITHOUT PAY

The 15 percent allowance for quarters, fuel, light, and equipment authorized under the act of May 24, 1928, for postmasters of fourth-class offices may be paid for periods postmasters continue to furnish such facilities while on leave without pay and during which periods the person acting in lieu of the postmaster is compensated by the Government pursuant to the act of July 22, 1947. 7 Comp. Gen. 793, modified.

Comptroller General Warren to the Postmaster General, March 15, 1948: Consideration has been given your letter of January 15, 1948, reference 50, as follows:

The Act of May 24, 1928, 45 Stat. 724, (39 U. S. C. 60a) provides that postmasters of the fourth class shall be paid as allowances for rent, fuel, light and equipment, an amount equal to 15 per centum of the compensation earned in each quarter. Public Law 211, approved July 22, 1947, provides for the payment of compensation, at the rate provided by law for postmasters' compensation, to persons who perform the duties of the postmaster at post offices of the fourth class during the absence of the postmaster on sick or annual leave, or leave without pay.

Under normal conditions the postmaster of a fourth-class office while absent on leave with or without pay would continue to furnish quarters, fuel, light and equipment, but the language of the Act of May 24, 1928 raises a question as to whether he properly may claim the allowance therefor while on leave without pay.

Your decision is requested as to whether the 15 percent allowance for rent, fuel, light and equipment properly may be claimed by or paid to a postmaster of a fourth-class office for a period of leave without pay and in an amount computed wholly or partially upon the compensation paid to the person who performed the duties of postmaster during the absence of the postmaster on leave without pay.

If your reply to the preceding question is in the negative, may the 15 percent allowance for rent, fuel, light and equipment properly be paid to the person who performs the duties of the postmaster during the absence of the postmaster on leave without pay, as provided in Public Law 211?

In decision of June 12, 1928, 7 Comp. Gen. 793, it was held that, under the act of May 24, 1928, 45 Stat. 724, postmasters of the fourth class are entitled to allowances for rent, fuel, light, and equipment in an amount equal to 15 per centum of the compensation actually allowable and payable for each quarter or for quarters under all of the provisions of the act of June 4, 1926, 44 Stat. 695. That decision was rendered at a time when the compensation of fourth-class postmasters was determined quarterly upon the basis of quarterly returns rather than upon an annual basis, as now is provided by section 8 (a) of Public Law 134, approved July 6, 1945, 59 Stat. 437. Also, it was rendered at a time when there existed no authority such as now is contained in Public Law 211, approved July 22, 1947, 61 Stat. 400, for the Government to assume the cost of compensating persons performing duties of postmasters at post offices of the fourth class during periods of annual and sick leave or while such postmasters are absent in a leave without pay status. At that time, any such cost was assumed by the postmaster concerned.

I find no indication that Congress, in authorizing the Government to assume such cost through the enactment of the act of July 22, 1947, supra, also intended to burden the postmasters with costs of rent, fuel, light, and equipment which the Government previously had been authorized to assume in the form of allowances. Therefore, it is concluded that where the postmaster of a post office of the fourth class absent on leave without pay continues to furnish quarters, fuel, light, and equipment, he may be paid the allowances for rent, fuel, light, and equipment to the same extent, computed in the same manner, as would be proper if there were no absence.

The decision reported in 7 Comp. Gen. 793, is modified accordingly.

(B-73016)

SAVED PAY AND ALLOWANCES-NAVY OFFICER SERVING IN PREVIOUS TEMPORARY RANK AFTER PERMANENT APPOINTMENT

Under the provisions of section 7 (a) of the act of July 24, 1941, as amended, saving to naval personnel the pay and allowances to which entitled at the time of temporary promotion, a Navy enlisted man whose temporary appointment as ensign was revoked and who, on the next day, was reappointed to such temporary rank after acceptance of a permanent appointment as a commissioned warrant officer, pursuant to section 5 of the act of April 18, 1946, is entitled to receive the higher pay and allowances of a commissioned warrant officer.

Assistant Comptroller General Yates to the Secretary of the Navy, March 15, 1948:

There has been considered your letter of January 13, 1948, with enclosed letter from the Chief of the Bureau of Supplies and Accounts, dated December 15, 1947, requesting a review of exceptions taken by the Audit Division of this Office to the payment of saved pay and allowances under the provisions of section 7 (a) of the act of July 24, 1941, 55 Stat. 604, as amended by the act of November 30, 1942, 56 Stat. 1023, to officers of the Navy appointed to permanent warrant or commissioned rank who are serving in higher temporary ranks.

Specific reference is made to the exception taken to the payment made to Ensign (T) Lovine B. Luckenback, United States Navy, covering the period August 23 to December 31, 1946, in the accounts of Lieutenant M. O. Vermillion (SC), United States Navy, incident to the officer's acceptance of a permanent appointment as a commissioned warrant officer in the Regular Navy on August 23, 1946, and appointment to the rank of ensign in the Navy, for temporary service on that same date.

The said section 7 (a) of the act of July 24, 1941, as amended, 34 U. S. C., Supp. V, 350f, provides, in pertinent part, that—

The permanent, probationary, or acting appointments of those persons temporarily appointed in accordance with the provisions of sections 350-350j of this title shall not be vacated by reason of such temporary appointments Pro

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vided further, That no person temporarily appointed under the authority of sections 350-350j of this title 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

*

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It appears that on November 20, 1943, Ensign Luckenbach, while serving as an enlisted man, accepted an appointment as a boatswain (warrant officer) for temporary service; that on February 1, 1945, he was appointed a chief boatswain (commissioned warrant officer) for temporary service; and that on May 15, 1945, he was appointed an ensign for temporary service. These appointments apparently were all made under the authority of the said act of July 24, 1941, and since the pay and allowances of a commissioned warrant officer were higher than those of an ensign at the time of his appointment as such on May 15, 1945, he presumably continued to receive the pay and allowances of a commissioned warrant officer.

It will be noted that under the savings clause quoted above, it was the pay and allowances authorized for a commissioned warrant officer as of the date of his temporary appointment as ensign-May 15, 1945-that were saved to the officer in question (decision of January 29, 1943, B-30652) and by virtue of the act of June 29, 1946, 60 Stat. 343, which raised the pay of service personnel generally, on July 1, 1946, the pay and allowances of an ensign were higher than the pay and allowances of a commissioned warrant officer on May 15, 1945. Accordingly, on July 1, 1946, Ensign Luckenbach's right to the saved pay and allowances of a commissioned warrant officer ceased and he thereafter was entitled only to the pay and allowances of an ensign. 26 Comp. Gen. 223. However, it appears that on August 22, 1946, Ensign Luckenbach's temporary appointment as ensign was revoked and he was honorably discharged from his enlistment in the United States Navy in order to accept a permanent appointment as a commissioned warrant officer. He accepted such permanent appointment on August 23, 1946, and on that same date he was again given a temporary appointment as an ensign.

The action taken in revoking the officer's temporary appointment as ensign on August 22, 1946, and reappointing him thereto on August 23, after his acceptance of his permanent appointment as a commissioned warrant officer, apparently was taken pursuant to the provisions of the act of April 18, 1946, 60 Stat. 92, 93, section 5 of which provides, in pertinent part, as follows:

(a) The President may appoint male officers of the Naval Reserve and of the Marine Corps Reserve, officers of the Regular Navy and Marine Corps without permanent appointments therein, commissioned warrant and warrant officers of the Regular Navy and Marine Corps with temporary appointments in higher grades and ranks, and persons who served on active duty in any such capacity during World War II and shall have been separated from such officer status under honorable conditions, to permanent warrant grades or, with the advice and consent of the Senate, to permanent commissioned grades and ranks in the Regular Navy and Marine Corps, respectively

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(b) (1) Each appointee who is serving on active duty in a higher grade or rank than that in which appointed under subsection (2) of this section shall also be appointed for temporary service pursuant to, and subject to the limitations of, the Act of July 24, 1941 (55 Stat. 603), as now or hereafter amended, to such higher grade or rank and with the precedence held by him at the time of acceptance of permanent appointment

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It would appear that Ensign Luckenbach's separation from the service on August 22, 1946, was bona fide and that upon his permanent appointment as a commissioned warrant officer on August 23, 1946, he became entitled to the pay and allowances of that grade. Since, at that time, those pay and allowances were higher than those of an ensign, he was entitled to continue to receive them upon his appointment as an ensign for temporary service by virtue of the provisions of section 7 (a) of the act of July 24, 1941, supra.

In view of the foregoing the payment of the saved pay and allowances of a commissioned warrant officer to Ensign Luckenbach from and after August 23, 1946, and like payments made to others, will not be further questioned, if otherwise correct.

(B-73694)

MARITIME COMMISSION LEASES OF SHIPYARDS, ETC.-DEPOSIT REQUIREMENT OF AMOUNTS RECEIVED IN REIMBURSEMENT OF UTILITIES FURNISHED, DAMAGE REPAIR PAYMENTS, ETC.

In view of the provisions in the Independent Offices Appropriation Act, 1948, limiting the amount that the construction fund of the Maritime Commission may be obligated for maintenance and operation of shipyards, warehouses, and terminals, and requiring that receipts which otherwise would be deposited to the credit of such fund to be covered into miscellaneous receipts, amounts paid by lessees of shipyards, warehouses, and terminals as reimbursement for utilities furnished by the Government, as well as payments on account of damage repair and rental of Government-owned and operated equipment, may not be credited to the construction fund for additional obligation but are for depositing into miscellaneous receipts.

Comptroller General Warren to the Chairman, United States Maritime Commission, March 16, 1948:

Reference is made to your letter of February 13, 1948, relative to the proposed leasing to commercial interests of several permanent installations (marine terminals, reserve shipyards and warehouses) which are not surplus to the present or future requirements of the

United States Maritime Commission, and which are maintained by the Commission.

There was forwarded with your letter a memorandum dated February 6, 1948, which explains the circumstances involved in the leasing of such installations, and which reads, in part, as follows:

It would appear to be in the best interest of the Government to lease these properties to commercial interests, subject to recapture, proper maintenance, preservation of the character of the facility, etc. Such a policy would aid local and national economies and reimburse the Government for maintenance, perservation and security expenses and with definite profit possibilities.

There are presently pending before the Commission several offers to lease portions of various shipyards and of one warehouse. However, before such leases can be considered, a determination will have to be made as a result of a situation created by (1) extremely limited budget for Fiscal Year 1949 (for shipyards $118,750 per yard as against $180,000 for Fiscal Year 1948) for maintenance, preservation and security, and (2) present government rulings prohibiting reimbursement of such funds for monies advanced for the account of lessees, tenants, etc. Such reimbursements arise normally out of the leasing situation and are generally as follows:

(1) Reimbursement to maintenance fund for tenant's share of cost of utili ties (heat, light, power and water).

(2) Reimbursement to maintenance fund for repair work (damage) performed for the account of the tenant, etc.

(3) Reimbursement to maintenance fund for miscellaneous labor (crane and equipment operators, etc.) and fuel, etc., furnished from time to time for account of tenant.

Payment of such costs, for which no budgetary provision was made, out of limited maintenance budget funds would either be impossible or would drastically reduce the amount and quality of the maintenance, preservation and security afforded.

With respect to utilities at shipyards, it is stated that electrical energy is purchased from local power companies by the Commission under a power contract and that lessees would reimburse the Commission for their share of energy consumed. Also, it is stated that such arrangement is necessary because the installation was not laid out so that a portion of the yards could be connected directly to the local power lines; that, as a consequence, all power charges are an obligation against the Commission appropriation and that, with a number of tenants at a yard, it would be desirable for the Commission to retain the power contract and bill each lessee for the proportionate share of the total billing. It is stated further that such a situation would also be true as regards water supply. With respect to utilities at terminals, the memorandum states that, at the Boston and Norfolk terminals, the utilities are furnished to the tenants through the Departments of the Army and the Navy, respectively, but that the said Departments bill your agency for the amounts involved which are paid from the Commission's appropriation and then collected from the tenants, and that, in such instances, the Maritime Commission is merely a collection agency.

As to damage repairs, the memorandum states that, while the leases require lessees to repair all damages, it is sometimes more satisfac