B-70840, APR 4, 1958

B-70840, APR 4, 1958

HEADNOTES-UNAVAILALBE PRECIS-UNAVAILABLE

MAJOR R. M. BURRILL, DISBURSING OFFICER:

BY FIRST ENDORSEMENT DATED MARCH 10, 1958 (REFERENCE DO NO. 323), THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF MARCH 4, 1958, REQUESTING A DECISION ON THE FOLLOWING QUESTION:

"IS GENERAL (ALEXANDER A.) VANDEGRIFT ENTITLED TO RECEIVE THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH AS AUTHORIZED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, WHILE ON THE RETIRED LIST?"

THE ADDITIONAL INCREMENT OF BASIC PAY PAYABLE TO OFFICERS SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL OR ADMIRAL IS AUTHORIZED BY SUBSECTION (F) OF SECTION 201 OF THE CAREER COMPENSATION ACT 1949, AS ADDED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, 69 STAT. 19, EFFECTIVE APRIL 1, 1955. THAT SUBSECTION IS, IN PERTINENT PART, AS FOLLOWS:

"*** ANY OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL OR ADMIRAL SHALL, IN ADDITION TO THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED BY THE PROVISIONS OF THIS ACT, BE ENTITLED TO AN ADDITIONAL INCREMENT OF BASIC PAY IN AN AMOUNT OF $200 PER MONTH. THE ADDITIONAL INCREMENTS PROVIDED BY THIS SUBSECTION SHALL NOT BE CONSIDERED A PART OF THE ACTIVE DUTY PAY OR OF THE MONTHLY BASIC PAY OF THESE GRADES FOR THE PURPOSE OF THE COMPUTATION OF RETIRED PAY."

YOU SAY THAT EFFECTIVE APRIL 1, 1955, THE DISBURSING OFFICER SETTLING THE RETIRED PAY ACCOUNTS AT THAT TIME CREDITED GENERAL VANDEGRIFT'S ACCOUNT WITH THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 PER MONTH. YOU FURTHER STATE, HOWEVER, THAT AFTER A REVIEW AND STUDY OF THE CASE, DOUBT AROSE AS TO GENERAL VANDEGRIFT'S ENTITLEMENT TO SUCH ADDITIONAL INCREMENT OF BASIC PAY AND, THEREFORE YOU DISCONTINUED PAYMENT OF SUCH INCREMENT EFFECTIVE FEBRUARY 1, 1958.

IT APPEARS THAT GENERAL VANDEGRIFT WAS PLACED ON THE RETIRED LIST OF THE MARINE CORPS EFFECTIVE APRIL 1, 1949, WITH THE RANK OF GENERAL AND PAY AND ALLOWANCES AS PROVIDED BY THE ACT OF MARCH 23, 1946, 60 STAT. 59. SECTION 2 OF THAT ACT PROVIDES AS FOLLOWS:

"THE PRESIDENT IS HEREBY AUTHORIZED, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO APPOINT TO THE PERMANENT GRADE OF GENERAL IN THE MARINE CORPS ANY INDIVIDUAL WHO SHALL HAVE SERVED AS COMMANDANT OF THE MARINE CORPS, WITH THE GRADE AND RANK OF GENERAL, AFTER MARCH 21, 1945, AND BEFORE AUGUST 14, 1945. ANY OFFICER APPOINTED UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY SECTION 3 OF THE ACT OF MARCH 21, 1945 (PUBLIC LAW 19, SEVENTY-NINTH CONGRESS (59 STAT. 36); AND ANY SUCH OFFICER WHO HAS BEEN OR MAY HEREAFTER BE RETIRED OR RELIEVED FROM ACTIVE DUTY SHALL BE ENTITLED TO HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RANK HELD BY HIM ON THE ACTIVE LIST OR WHILE ON ACTIVE DUTY, AND SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS OFFICERS APPOINTED UNDER THIS SECTION ARE ENTITLED TO RECEIVE WHILE ON ACTIVE DUTY."

UPON APPOINTMENT TO THE PERMANENT GRADE OF GENERAL IN THE MARINE CORPS ON APRIL 4, 1946, GENERAL VANDEGRIFT BECAME ENTITLED, UNDER THE EXPRESS PROVISIONS OF THE 1946 ACT, TO RECEIVE BOTH BEFORE AND AFTER RETIREMENT THE PAY AND ALLOWANCES PRESCRIBED BY SECTION 3 OF THE ACT OF MARCH 21, 1945, 59 STAT. 36, THAT IS, "THE SAME PAY AND ALLOWANCES AS A REAR ADMIRAL OF THE UPPER HALF, PLUS A PERSONAL MONEY ALLOWANCE OF $2,200 PER ANNUM," IRRESPECTIVE OF WHETHER HE WAS THEN SERVING, OR CONTINUED TO SERVE AS COMMANDANT OF THE MARINE CORPS. SEE 27 COMP.GEN. 296. WHILE SECTION 2 OF THE 1946 ACT, BY REFERENCE TO SECTION 3 OF THE 1945 ACT, FIXED THE ACTIVE- DUTY PAY AND ALLOWANCES OF AN OFFICER APPOINTED TO THE PERMANENT GRADE OF GENERAL IN THE MARINE CORPS, THE 1945 ACT WAS TEMPORARY LEGISLATION, EFFECTIVE ONLY FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER. NOTE APPEARING UNDER 50 U.S.C. APP. 1711-1715 (THE SECTIONS OF THE CODE WHICH HAD BEEN USED FOR THE ACT OF MARCH 21, 1945, 59 STAT. 36) IS AS FOLLOWS:

"SECTION 2 OF ACT MAR. 23, 1946, CH. 112, 60 STAT. 60, PROVIDES FOR THE PERMANENT APPOINTMENT IN THE GRADE OF GENERAL IN THE REGULAR MARINE CORPS OF GENERAL ALEXANDER A. VANDEGRIFT. SECTION ALSO PROVIDED FOR FULL PAY UPON RETIREMENT.

IT SEEMS REASONABLY EVIDENT THAT, IN REFERRING TO SECTION 3 OF THE ACT OF MARCH 21, 1945, FOR A DESCRIPTION OF THE ACTIVE-DUTY PAY AND ALLOWANCES OF GENERAL VANDEGRIFT, THE CONGRESS DID NOT INTEND THAT THE FULL ACTIVE-DUTY PAY AND ALLOWANCES AUTHORIZED FOR HIM WHILE ON THE RETIRED LIST WOULD THEREAFTER BE LIMITED TO PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF PLUS $2,200 PER ANNUM, AS THEN PRESCRIBED IN THE 1945 ACT, PARTICULARLY SINCE THAT ACT WAS NOT PERMANENT LEGISLATION. IN THAT CONNECTION, PAGE 2 OF SENATE REPORT NO. 1764, JUNE 17, 1948, TO ACCOMPANY H.R. 6039, WHICH BECAME THE ACT OF JUNE 26, 1948-- AUTHORIZING THE OFFICERS APPOINTED UNDER THAT ACT TO RECEIVE "THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS AUTHORIZED BY LAW FOR OFFICERS ON THE ACTIVE LIST SERVING IN THE GRADE OF GENERAL"-- IT WAS STATED THAT:

"IF H.R. 6039 IN THE AMENDED FORM IS APPROVED BY THE SENATE, THE PRESENT STATUS OF OFFICERS RETIRED WITH FULL PAY AND ALLOWANCES WILL BE THAT, IN ADDITION TO THE EIGHT FAMOUS FIVE-STAR OFFICERS, THERE WILL BE ON THE RETIRED LIST IN FOUR-STAR RANK WITH FULL PAY AND ALLOWANCES, ONE FROM THE ARMY, GENERAL BRADLEY; ONE FROM THE AIR FORCE, GENERAL SPAATZ; ONE FROM THE NAVY, ADMIRAL SPRUANCE; ONE FROM THE MARINE CORPS, GENERAL VANDERGRIFT; AND ONE FROM THE COAST GUARD, ADMIRAL WAESCHE.

IN A DECISION DATED JULY 27, 1955, B-123689, 35 COMP.GEN. 48, WE HELD THAT ADMIRAL SPRUANCE, WHILE ON THE RETIRED LIST, IS ENTITLED TO THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON ACTIVE DUTY.

IN THE LIGHT OF THE FOREGOING AND THE LEGISLATIVE HISTORY OF THE ACT OF MARCH 23, 1946, IT SEEMS REASONABLY CLEAR THAT THE PURPOSE OF THE ACT WAS TO MAKE PERMANENT THE GRADES HELD BY THE OFFICERS THERE DESCRIBED INCLUDING GENERAL ALEXANDER A. VANDEGRIFT, AND TO PERMIT THOSE OFFICERS TO CONTINUE TO RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF THEIR PERMANENT GRADES WHILE ON THE RETIRED LIST. SEE, PARTICULARLY, HOUSE OF REPRESENTATIVES CONFERENCE REPORT NO. 1754, MARCH 18, 1946, AND PAGES 2422 AND 2423 OF THE CONGRESSIONAL RECORD FOR MARCH 18, 1946.

ALTHOUGH GENERAL VANDEGRIFT IS ON THE RETIRED LIST, IT IS OUR VIEW THAT IT IS THE INTENT OF THE APPLICABLE STATUTE THAT HE RECEIVE, CURRENTLY, THE FULL ACTIVE-DUTY PAY AND ALLOWANCES AUTHORIZED FOR AN OFFICER HOLDING THE PERMANENT GRADE OF GENERAL IN THE MARINE CORPS ON ACTIVE DUTY. CONSEQUENTLY, THE PROVISION IN THE CAREER INCENTIVE ACT OF 1955 THAT THE ADDITIONAL $200 INCREMENT OF MONTHLY BASIC PAY AUTHORIZED FOR AN OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL SHALL NOT BE CONSIDERED A PART OF THE ACTIVE-DUTY PAY OR THE MONTHLY BASIC PAY OF SUCH GRADE "FOR THE PURPOSE OF THE COMPUTATION OF RETIRED PAY" WOULD NOT BE FOR APPLICATION IN THIS CASE. IN OTHER WORDS, UNDER THE 1946 ACT, HIS PAY IS ACTIVE-DUTY PAY AND, THEREFORE, IN PAYING HIM, THERE DOES NOT APPEAR TO BE INVOLVED ANY "COMPUTATION OF RETIRED PAY" WITHIN THE MEANING OF THE GENERAL PROVISIONS OF THE 1955 ACT. SEE 35 COMP.GEN. 48, CITED ABOVE.

ACCORDINGLY, YOU ARE AUTHORIZED TO CREDIT GENERAL VANDEGRIFT'S PAY ACCOUNT ON THE BASIS THAT HE IS ENTITLED TO THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON ACTIVE DUTY.