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B-123745, AUGUST 11, 1955, 35 COMP. GEN. 80

B-123745 Aug 11, 1955
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PAY - RETIRED - WARRANT OFFICERS OF THE COAST GUARD THE RETIRED PAY OF NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD WHO WERE RETIRED PRIOR TO OCTOBER 1. 1955: REFERENCE IS MADE TO LETTER OF APRIL 19. IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF WARRANT PAY GRADE W-2. ERICKSON WAS RETIRED ON NOVEMBER 1. IT IS STATED THAT APPROXIMATELY 125 OTHER NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD RETIRED FOR VARIOUS REASONS PRIOR TO OCTOBER 1. PRIOR TO THE DATE OF THEIR RETIREMENT WERE. THE CLAIM IS BASED ON THE VIEW THAT UNDER THE REGULATIONS PROMULGATED OCTOBER 25. ERICKSON AND THE OTHER NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD REFERRED TO WERE ENTITLED TO BE PLACED IN WARRANT PAY GRADE W-2 EFFECTIVE OCTOBER 1.

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B-123745, AUGUST 11, 1955, 35 COMP. GEN. 80

PAY - RETIRED - WARRANT OFFICERS OF THE COAST GUARD THE RETIRED PAY OF NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, THE DATE OF THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, HAS BEEN PROPERLY COMPUTED ON AND AFTER OCTOBER 1, 1949, ON THE BASIS OF THE FIRST PAY GRADE (W-1) IN ACCORDANCE WITH REGULATIONS OF THE SECRETARY OF THE TREASURY, WHICH DIRECTED THAT ALL WARRANT OFFICERS THEN ON THE RETIRED LIST SHOULD BE CARRIED IN THE PAY GRADE IN WHICH SERVING WHEN RETIRED.

TO THE SECRETARY OF THE TREASURY, AUGUST 11, 1955:

REFERENCE IS MADE TO LETTER OF APRIL 19, 1955, WITH ENCLOSURES, FROM THE ACTING SECRETARY OF THE TREASURY, REQUESTING DECISION WHETHER PAY CLERK CARL F. ERICKSON, UNITED STATES COAST GUARD, RETIRED, IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF WARRANT PAY GRADE W-2, EFFECTIVE FROM OCTOBER 1, 1949.

IT APPEARS THAT MR. ERICKSON WAS RETIRED ON NOVEMBER 1, 1941, AFTER HAVING SERVED CONTINUOUSLY AND SATISFACTORILY AS A PAY CLERK (NONCOMMISSIONED WARRANT OFFICER) FROM AUGUST 14, 1931. IT IS STATED THAT APPROXIMATELY 125 OTHER NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD RETIRED FOR VARIOUS REASONS PRIOR TO OCTOBER 1, 1949, AND WHO HAD SATISFACTORILY COMPLETED SIX OR MORE YEARS OF SERVICE AS WARRANT OFFICER, OR IN A HIGHER GRADE, PRIOR TO THE DATE OF THEIR RETIREMENT WERE, LIKE MR. ERICKSON, PLACED IN WARRANT PAY GRADE W-1, EFFECTIVE OCTOBER 1, 1949, UNDER THE AUTHORITY OF SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 232 (C).

THE VOUCHER RECEIVED WITH THE LETTER OF APRIL 19, 1955, CONSTITUTES MR. ERICKSON'S CLAIM AS A NONCOMMISSIONED WARRANT OFFICER OF THE COAST GUARD FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THAT COMPUTED ON WARRANT PAY GRADE W-2 AND THE AMOUNT OF RETIRED PAY RECEIVED BY HIM ON THE BASIS OF WARRANT PAY GRADE W-1, FOR THE PERIOD FROM OCTOBER 1, 1949, TO JUNE 30, 1954, INCLUSIVE. THE CLAIM IS BASED ON THE VIEW THAT UNDER THE REGULATIONS PROMULGATED OCTOBER 25, 1949, BY THE SECRETARY OF THE TREASURY PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 201 (C), MR. ERICKSON AND THE OTHER NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD REFERRED TO WERE ENTITLED TO BE PLACED IN WARRANT PAY GRADE W-2 EFFECTIVE OCTOBER 1, 1949.

SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949 BECAME EFFECTIVE ON OCTOBER 1, 1949. SUCH SECTION WAS REPEALED EFFECTIVE NOVEMBER 1, 1954, BY SECTION 20 (N) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 167, 37 U.S.C. 232. IT WAS PROVIDED IN SECTION 201 (C) THAT:

FOR BASIC PAY PURPOSES, WARRANT OFFICERS (INCLUDING WARRANT OFFICERS HERETOFORE RETIRED) SHALL BE DISTRIBUTED BY THE SECRETARY CONCERNED IN THE VARIOUS PAY GRADES PRESCRIBED FOR WARRANT OFFICERS IN SUBSECTION (A) OF THIS SECTION.

REGULATIONS GOVERNING THE DISTRIBUTION OF WARRANT OFFICERS OF THE COAST GUARD IN THE WARRANT PAY GRADES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, FOR THE BASIC PAY PURPOSES OF THAT ACT, WERE APPROVED OCTOBER 25, 1949, BY THE SECRETARY OF THE TREASURY. THOSE REGULATIONS, WHICH WERE PUBLISHED IN COAST GUARD PERSONNEL CIRCULAR NO. 55-49, DATED OCTOBER 31, 1949, PROVIDED IN PERTINENT PART AS FOLLOWS:

WARRANT OFFICERS

1. COMMISSIONED WARRANT AND WARRANT OFFICERS SHALL BE PLACED IN PAY GRADES W-1, W-2, W-3, AND W-4 AS FOLLOWS:

(A) W-4: NOT TO EXCEED, EXCEPT AS PROVIDED FOR IN PARAGRAPH 3 OF THESE REGULATIONS, SEVEN PERCENTUM OF THE NUMBER OF COMMISSIONED WARRANT OFFICERS ON ACTIVE DUTY IN THE COAST GUARD ON THE DATES OF THE COMPUTATIONS PROVIDED FOR IN PARAGRAPH 4 OF THESE REGULATIONS AND CONSISTING OF THE MOST SENIOR COMMISSIONED WARRANT OFFICERS SHOWN IN THE PRECEDENCE LIST MAINTAINED AT HEADQUARTERS WHO HAVE OVER 12 YEARS CREDITABLE ACTIVE COMMISSIONED SERVICE.

(B) W-3: NOT TO EXCEED, EXCEPT AS PROVIDED FOR IN PARAGRAPH 3 OF THESE REGULATIONS, COMMISSIONED WARRANT OFFICERS, WHO HAVE OVER SIX YEARS CREDITABLE ACTIVE COMMISSIONED SERVICE AND WHO ARE NEXT JUNIOR ON THE PRECEDENCE LIST MAINTAINED AT HEADQUARTERS TO THOSE IN PAY GRADE W-4, IN A NUMBER EQUAL TO 30 PERCENTUM OF THE NUMBER OF COMMISSIONED WARRANT OFFICERS ON ACTIVE DUTY IN THE COAST GUARD ON THE DATES OF THE COMPUTATIONS PROVIDED FOR IN PARAGRAPH 4 OF THESE REGULATIONS; AND EXCEPT FURTHER, THAT IF THE NUMBER OF COMMISSIONED WARRANT OFFICERS IN PAY GRADE W-4 IS LESS THAN THE PERCENTAGE SPECIFIED IN PARAGRAPH 1 (A) OF THESE REGULATIONS, THE NUMBER IN PAY GRADE W-3 MAY BE INCREASED SO THAT THE TOTAL IN PAY GRADES W-4 AND W-3 COMBINED SHALL NOT EXCEED THIRTY-SEVEN PERCENTUM.

(C) W-2: ALL COMMISSIONED WARRANT OFFICERS NOT INCLUDED IN PAY GRADES W-4 AND W-3 AND ALL WARRANT OFFICERS HAVING OVER SIX YEARS ACTIVE CREDITABLE SERVICE AS A WARRANT OFFICER OR IN A HIGHER GRADE.

(D) W-1: ALL WARRANT OFFICERS NOT INCLUDED IN PAY GRADE W-2.

RETIRED WARRANT OFFICERS

ALL COMMISSIONED WARRANT AND WARRANT OFFICERS NOW ON THE RETIRED LIST OR WHO ARE HEREAFTER RETIRED SHALL BE CARRIED ON THE RETIRED LIST IN THE PAY GRADE IN WHICH SERVING WHEN RETIRED UNLESS ENTITLED TO HIGHER PAY BY SOME OTHER PROVISION OF LAW.

THE DIFFICULTY NOW BEING ENCOUNTERED IN INTERPRETING THE FINAL PARAGRAPH OF THE ABOVE-QUOTED REGULATIONS APPARENTLY HAS ARISEN BECAUSE WARRANT OFFICER PAY GRADES (W-1 TO W-4) ARE PRESCRIBED IN THE 1949 ACT, WHEREAS, SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 362, DID NOT PRESCRIBE PAY GRADES W-1, W-2, W-3, AND W-4, AS SUCH. HOWEVER, INSOFAR AS THE COAST GUARD IS CONCERNED, THE 1942 ACT PLACED ALL WARRANT OFFICERS (COMMISSIONED AND NONCOMMISSIONED) IN FOUR PAY GROUPS. IT WOULD SEEM, THEREFORE, THAT IT WAS THE INTENT OF THE LAST PARAGRAPH OF THE ABOVE- QUOTED REGULATIONS THAT RETIRED WARRANT OFFICERS THERETOFORE RECEIVING RETIRED PAY BASED ON THE PAY OF THE LOWEST PAID OF THE FOUR PAY GROUPS WOULD BE CONSIDERED AS BEING IN PAY GRADE W-1 FOR THE PURPOSE OF ADJUSTING TO THE PAY RATES AUTHORIZED BY THE 1949 ACT, AND THAT, FOR THE SAME PURPOSE, RETIRED WARRANT OFFICERS IN THE SECOND, THIRD AND FOURTH PAY GROUPS WOULD BE CONSIDERED AS BEING IN PAY GRADES W-2, W-3, AND W-4, RESPECTIVELY,"UNLESS ENTITLED TO HIGHER PAY BY SOME OTHER PROVISION OF LAW.' IT APPEARS, HOWEVER, THAT THE REGULATIONS WERE SO APPLIED BY THE COAST GUARD, CONTEMPORANEOUSLY, WITH RESPECT TO ITS NONCOMMISSIONED WARRANT OFFICERS ONLY AND THAT RETIRED COMMISSIONED WARRANT OFFICERS OF THE COAST GUARD WERE DISTRIBUTED IN PAY GRADES W-2, W-3 AND W-4 ON THE SAME BASIS AS ACTIVE COMMISSIONED WARRANT OFFICERS. THUS, THE ADMINISTRATIVE APPLICATION OF THE LAST PARAGRAPH OF THE REGULATIONS HAS NOT BEEN CONSISTENT.

WHILE WE DO NOT PROPOSE, CURRENTLY, TO TAKE EXCEPTION TO ANY PAYMENT OF RETIRED PAY ON THE BASIS THAT THE 1949 GRADE DISTRIBUTION OF THE RETIRED COMMISSIONED WARRANT OFFICERS OF THE COAST GUARD WAS ERRONEOUS, WE, NEVERTHELESS, ARE FIRMLY OF THE OPINION THAT THE QUOTED REGULATIONS DID NOT INTEND THAT ANY RETIRED NONCOMMISSIONED WARRANT OFFICERS WOULD BE PLACED IN PAY GRADE W-2, PARTICULARLY SINCE THE RETIRED PAY OF ALL RETIRED NONCOMMISSIONED WARRANT OFFICERS OF THE COAST GUARD WAS BASED ON THE PAY OF THE LOWEST PAID GROUP OF THE SEVERAL WARRANT OFFICER PAY GROUPS CREATED BY THE PAY READJUSTMENT ACT OF 1942, AND SINCE THE COAST GUARD'S CONTEMPORANEOUS APPLICATION OF THE REGULATIONS WAS CONSISTENT WITH THE VIEW THAT NO "ADVANCEMENT" OF RETIRED NONCOMMISSIONED WARRANT OFFICERS FROM PAY GROUP 1 TO PAY GRADE W-2 WAS CONTEMPLATED. IN THAT CONNECTION, IT HAS BEEN NOTED THAT THE DEPARTMENT OF THE NAVY PLACED ALL NONCOMMISSIONED WARRANT OFFICERS OF THE NAVY IN PAY GRADE W-1, EFFECTIVE OCTOBER 1, 1949 ( ALNAV 97, OCTOBER 12, 1949), AND THAT UNDER THE WARRANT OFFICER ACT OF 1954, 68 STAT. 157, EFFECTIVE NOVEMBER 1, 1954, ONLY COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS AND COAST GUARD ARE ELIGIBLE FOR PAY GRADES W-2, W-3, AND W-4.

SECTION 201 (C) OF THE 1949 ACT VESTED FULL AUTHORITY IN THE SECRETARY OF THE DEPARTMENT CONCERNED TO DISTRIBUTE WARRANT OFFICERS, INCLUDING WARRANT OFFICERS PREVIOUSLY RETIRED, IN THE VARIOUS WARRANT OFFICER PAY GRADES PRESCRIBED IN SECTION 201 (A) OF THE SAME ACT. WHILE IT MAY BE THAT SECTION 201 (C) CONTEMPLATED UNIFORMITY OF ACTION WITH RESPECT TO ALL PERSONNEL SIMILARLY SITUATED, THERE APPEARS NO REQUIREMENT IN THE STATUTORY PROVISIONS IN QUESTION, EITHER EXPRESS OR IMPLIED, THAT WARRANT OFFICERS ON THE RETIRED LIST WERE TO BE TREATED IN PRECISELY THE SAME MANNER AS WARRANT OFFICERS THEN ON ACTIVE DUTY. WARRANT OFFICERS ON THE RETIRED LIST AND WARRANT OFFICERS ON ACTIVE DUTY ARE NOT SIMILARLY SITUATED. ON THE CONTRARY THE MANY DIFFERENCES IN THEIR STATUSES WOULD APPEAR TO FURNISH AMPLE BASIS FOR DIFFERENT TREATMENT OF THE TWO GROUPS BY THE SECRETARY OF THE DEPARTMENT CONCERNED IN MAKING THE WARRANT OFFICER PAY GRADE DISTRIBUTION AS PRESCRIBED IN SECTION 201 (C). HENCE, IN THE ABSENCE OF AN EXPRESS LIMITATION OR RESTRICTION ON THE AUTHORITY VESTED BY SECTION 201 (C) IN THE SECRETARY OF THE DEPARTMENT CONCERNED, THE CONCLUSION IS REQUIRED THAT THE REGULATIONS APPROVED OCTOBER 25, 1949, BY THE SECRETARY OF THE TREASURY, AND IN PARTICULAR THE LAST PARAGRAPH OF THOSE REGULATIONS DIRECTING THAT ALL COMMISSIONED WARRANT OFFICERS AND WARRANT OFFICERS THEN ON THE RETIRED LIST "SHALL BE CARRIED ON THE RETIRED LIST IN THE PAY GRADE IN WHICH SERVING WHEN RETIRED," ARE VALID AND EFFECTIVE REGULATIONS PROMULGATED WITHIN THE SCOPE OF THE STATUTORY AUTHORITY ON WHICH THEY WERE BASED. THE CONTEMPORANEOUS ADMINISTRATIVE UNDERSTANDING AND APPLICATION OF THE REGULATION IS STRONG EVIDENCE OF ITS ACTUAL INTENT WHICH MAY NOT NOW BE DISREGARDED.

IT IS CONCLUDED, THEREFORE, THAT PAY CLERK ERICKSON'S RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, PROPERLY HAS BEEN COMPUTED, UNDER THE PROVISIONS OF THE LAST PARAGRAPH OF THE REGULATIONS OF OCTOBER 25, 1949, ON THE BASIS OF THE PAY OF PAY GRADE W-1, AND THAT HE IS NOT ENTITLED TO HAVE SUCH RETIRED PAY RECOMPUTED ON THE BASIS OF THE PAY OF PAY GRADE W- 2.

IN VIEW OF THE ANSWER TO THE FIRST QUESTION, NO ANSWER APPEARS TO BE REQUIRED TO THE FURTHER QUESTION PRESENTED IN THE LETTER OF APRIL 19, 1955, RELATING TO THE AVAILABILITY OF CERTAIN LAPSED COAST GUARD APPROPRIATIONS FOR PAYMENT OF ADDITIONAL RETIRED PAY TO MR. ERICKSON AND OTHER RETIRED WARRANT OFFICERS SIMILARLY SITUATED.

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