B-165526, DEC. 9, 1968

B-165526, DEC. 9, 1968

TO MR. SECRETARY:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF COMMANDER FELIX S. DESOBOLL (1705) UNITED STATES COAST GUARD, RETIRED, FOR THE DIFFERENCE IN RETIRED PAY WHICH HE HAS RECEIVED AS A COMMANDER AND THE RETIRED PAY OF A CAPTAIN FOR THE PERIOD FROM NOVEMBER 1, 1958, TO THE PRESENT TIME.

THE RECORD DISCLOSES THAT COMMANDER DESOBOLL SERVED AS AN ENLISTED MAN IN THE UNITED STATES COAST GUARD FROM APRIL 9, 1915, THROUGH AUGUST 30, 1917, AS A WARRANT OFFICER AND COMMISSIONED OFFICER OF THE UNITED STATES NAVAL RESERVE FOR MOST OF THE PERIOD FROM AUGUST 31, 1917, THROUGH SEPTEMBER 9, 1946, AND AS A COMMISSIONED OFFICER IN THE UNITED STATES COAST GUARD FROM SEPTEMBER 10, 1946, THROUGH OCTOBER 31, 1958; AND THAT HE RETIRED EFFECTIVE NOVEMBER 1, 1958, IN THE GRADE OF COMMANDER FOR LENGTH OF SERVICE. THE HIGHEST RANK HE HELD IN THE UNITED STATES NAVY WAS THAT OF CAPTAIN TO WHICH IT APPEARS HE WAS TEMPORARILY APPOINTED ON DECEMBER 10, 1945, AND WHICH HE HELD ON THE DATE OF HIS DISCHARGE, SEPTEMBER 9, 1946.

THE CLAIM FOR INCREASED RETIRED PAY IS BASED ON SECTIONS 8 AND 10 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 26, AND THE CASES OF SATTERWHITE V UNITED STATES, 123 CT. CL. 342 (1952), AND MILLER V UNITED STATES, 180 CT. CL. 872 (1967).

SECTION 8 (A) OF THE 1946 ACT AMENDED SECTION 10 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 605, AUTHORIZING TEMPORARY APPOINTMENTS OR ADVANCEMENT OF PERSONNEL OF THE NAVY AND MARINE CORPS, TO PROVIDE, AMONG OTHER THINGS, THAT PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS AND RESERVE COMPONENTS THEREOF APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THAT ACT SHALL, WHEN SUBSEQUENTLY RETIRED, BE ADVANCED TO THE HIGHEST GRADE OR RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS. SECTION 10 OF THE 1946 ACT PROVIDED THAT THE PROVISIONS OF THAT ACT SHALL APPLY TO PERSONNEL OF THE COAST GUARD IN RELATIONSHIP TO THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY IN RELATIONSHIP TO THE NAVY. HOWEVER, SAID SECTION 10 WAS REPEALED BY SECTION 20 OF THE ACT OF AUGUST 4, 1949, CH. 393, 63 STAT. 565, AND THE RIGHTS OF MEMBERS OF THE COAST GUARD WERE THEREAFTER GOVERNED BY THE PROVISIONS OF THAT ACT WHICH ENACTED INTO LAW TITLE 14 OF THE UNITED STATES CODE.

IN THE SATTERWHITE CASE THE COURT HELD THAT THE PLAINTIFF, A RETIRED NAVY ENLISTED MAN, WHO HAD PREVIOUSLY SATISFACTORILY HELD A FEDERALLY RECOGNIZED RANK OF CAPTAIN IN THE ARMY DURING WORLD WAR I, WAS ENTITLED, UNDER SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 830, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF SUCH RANK. IN OUR DECISION OF APRIL 2, 1953, B-112511, 32 COMP. GEN. 425, WE HELD THAT THE COURT'S DECISION IN THE SATTERWHITE CASE SHOULD BE LIMITED STRICTLY TO CASES GOVERNED BY THE PROVISIONS OF SECTION 513 OF THE 1949 ACT.

IN THE MILLER CASE THE COURT HELD THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED, UNDER THE PROVISIONS OF 14 U.S.C. 362, TO COMPUTE HIS RETIRED PAY ON THE BASIS OF A HIGHER GRADE IN WHICH HE HAD PREVIOUSLY SERVED SATISFACTORILY IN THE NAVY. THE COURT'S DECISION IN MILLER'S FAVOR WAS BASED SOLELY ON THE SPECIFIC LANGUAGE CONTAINED IN THE APPLICABLE STATUTE, 14 U.S.C. 362, REFERRED TO BY THE COURT AS SETTING FORTH "* * * THE GENERAL PROPOSITION THAT THE RETIREMENT PAY OF REGULAR ENLISTED COAST GUARD PERSONNEL SHALL BE ON THE BASIS OF THE HIGHEST HELD GRADE OR RATING WHILE ON ACTIVE DUTY.' THE COURT RESTRICTED THE SCOPE OF ITS DECISION IN THE MILLER CASE BY SETTING FORTH THE SOLE BASIC POINT AT ISSUE AS FOLLOWS:

"THE QUESTION PRESENTED IS WHETHER THE STATUTE PERMITS THE COMPUTATION OF RETIREMENT PAY ON THE BASIS OF A HIGHER RATING HELD IN A SERVICE OTHER THAN THAT FROM WHICH RETIRED.' THAT QUESTION WAS ANSWERED IN THE AFFIRMATIVE. THE JUDGMENT OF THE COURT IN THE MILLER CASE IS FINAL AND WILL BE ACCEPTED BY THIS OFFICE AS GOVERNING OTHER LIKE CASES ARISING UNDER 14 U.S.C. 362.

WHILE COMMANDER DESOBOLL RETIRED AS A COMMISSIONED OFFICER AND HIS CASE DOES NOT COME WITHIN THE PURVIEW OF 14 U.S.C. 362, HE IS ENTITLED TO THE SAME BENEFITS UNDER 14 U.S.C. 243 (1958 ED.) NOW 14 U.S.C. 334, THE LANGUAGE OF WHICH IS SUBSTANTIALLY THE SAME AS 14 U.S.C. 362 ON WHICH THE MILLER CASE WAS BASED. IN VIEW THEREOF, IT IS SUGGESTED THAT A DETERMINATION BE SECURED FROM THE SECRETARY OF THE NAVY AS TO WHETHER COMMANDER DESOBOLL'S PERFORMANCE OF DUTY IN THE GRADE OF CAPTAIN IN THE NAVY WAS SATISFACTORY AND THAT WE BE ADVISED OF THE SECRETARY'S ACTION IN ORDER THAT PROPER CONSIDERATION MAY BE GIVEN THE CLAIM FOR INCREASED RETIRED PAY.