B-116582, SEPTEMBER 15, 1953, 33 COMP. GEN. 120

B-116582, SEPTEMBER 15, 1953, 33 COMP. GEN. 120

PAY - RETIRED - MEMBERS WHO SERVED IN RANK HIGHER THAN HELD AT TIME OF RETIREMENT - ADVANCEMENT IN RANK ON RETIRED LIST A REGULAR NAVY ENLISTED MAN WHO HELD TEMPORARY APPOINTMENTS AS COMMISSIONED WARRANT OFFICER AND AS LIEUTENANT (JG) UNDER THE ACT OF JULY 24, 1941, AS AMENDED, AND WHO IS PLACED ON THE RETIRED LIST WHILE SERVING AS TEMPORARY COMMISSIONED WARRANT OFFICER UNDER TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, IS WITHIN THE SCOPE OF SECTION 316 (J) OF THE 1947 ACT SO AS TO BE ENTITLED TO BE PLACED ON THE RETIRED LIST IN THE RANK OF COMMISSIONED WARRANT OFFICER WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF SUCH RANK, HOWEVER HE MAY NOT BE ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT (JG) UNDER SECTION 10 (B) (2) OF THE 1941 ACT AND RECEIVE THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, SEPTEMBER 15, 1953:

REFERENCE IS MADE TO LETTER OF AUGUST 10, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, FORWARDING A LETTER DATED JULY 20, 1953, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, REQUESTING DECISION AS TO THE RETIRED PAY THAT WILL BE PAYABLE TO CLEO L. GEE, NOW SERVING AS A COMMISSIONED WARRANT OFFICER (CHIEF SHIP'S CLERK), U.S. NAVY, UNDER A TEMPORARY APPOINTMENT, IF AS IS CONTEMPLATED, HE IS PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 1, 1953, UNDER THE PROVISIONS OF 34 U.S. CODE, 431.

IT APPEARS THAT MR. GEE, WHOSE PERMANENT ENLISTED STATUS IN THE REGULAR NAVY IS THAT OF YEOMAN, HAS HELD THE FOLLOWING TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, 34 U.S.C. 350, ET SEQ.; SHIP'S CLERK, EFFECTIVE SEPTEMBER 1, 1942; CHIEF SHIP'S CLERK, EFFECTIVE JUNE 9, 1944, AND LIEUTENANT (JG), EFFECTIVE DECEMBER 29, 1945. THE LATTER TEMPORARY APPOINTMENT--- A SPOT APPOINTMENT OF LIMITED DURATION --- WAS EXTENDED AS PROVIDED IN SECTION 304 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 836, 34 U.S.C. 211A (E), AND SUBSEQUENTLY WAS TERMINATED AS OF DECEMBER 15, 1950, ON WHICH DATE MR. GEE REVERTED TO HIS LOWER TEMPORARY RANK OF CHIEF SHIP'S CLERK, AFFIRMED BY ALNAV 231-47. IS FURTHER INDICATED THAT UNDER THE OFFICER PERSONNEL ACT OF 1947, SUPRA, A TEMPORARY APPOINTMENT AS CHIEF SHIP'S CLERK TO RANK FROM AUGUST 7, 1947, WAS ISSUED IN JUNE 1951, AND THAT, IN THE ABSENCE OF UNFORESEEN CIRCUMSTANCES, MR. GEE WILL BE SERVING UNDER THE SAID TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER, PAY GRADE W-3, AT THE TIME HE IS PLACED ON THE RETIRED LIST OCTOBER 1, 1953. IT FURTHER APPEARS THAT ON THE EFFECTIVE DATE OF HIS RETIREMENT, HE WILL HAVE OVER 30 YEARS' CUMULATIVE SERVICE.

THE BASIC PAY PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF MAY 19, 1952, 66 STAT. 79, FOR A COMMISSIONED WARRANT OFFICER ASSIGNED TO WARRANT PAY GRADE W-3, WITH OVER 30 YEARS' SERVICE, IS $408.56 PER MONTH, WHEREAS THE BASIC PAY PRESCRIBED FOR A LIEUTENANT (JG), WITH OVER 30 YEARS' SERVICE, IS $363.10 PER MONTH. HENCE, THE FIRST QUESTION PRESENTED IS WHETHER MR. GEE, AS A COMMISSIONED WARRANT OFFICER WITH OVER 30 YEARS' SERVICE AS OF OCTOBER 1, 1953, WILL BE WITHIN THE SCOPE OF SECTION 316 (J), TITLE III, OFFICER PERSONNEL ACT OF 1947, 61 STAT. 868, 34 U.S.C. 410M, SO AS TO BE ENTITLED TO BE PLACED ON THE RETIRED LIST IN THE RANK OF COMMISSIONED WARRANT OFFICER WITH RETIRED PAY BASED ON HIS ACTIVE DUTY PAY ($408.56 PER MONTH) AS OF SEPTEMBER 30, 1953, THE DATE PRECEDING THE SCHEDULED DATE OF HIS RETIREMENT. THE FURTHER QUESTION IS PRESENTED AS TO WHETHER, IN THE EVENT THAT HE IS HELD TO BE ENTITLED TO THE RETIREMENT PAY BENEFITS PRESCRIBED IN SECTION 316 (J) SUPRA, HE MAY ALSO BE ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT (JG) PURSUANT TO THE PROVISIONS OF SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I (B) (2) AND REMAIN ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF HIS PAY AS A COMMISSIONED WARRANT OFFICER AS PROVIDED IN SECTION 316 (J), OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA.

THE STATUTORY PROVISIONS WHICH ARE CODIFIED IN SECTION 431, TITLE 34, U.S. CODE, STATED AS CONSTITUTING THE BASIS FOR MR. GEE'S RETIREMENT EFFECTIVE OCTOBER 1, 1953, IN PERTINENT PART PROVIDE THAT WHEN AN ENLISTED MAN OF THE NAVY OR MARINE CORPS SHALL HAVE SERVED 30 YEARS HE SHALL, UPON APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST WITH THE RATING OR RANK HELD BY HIM AT THE DATE OF RETIREMENT, AND WITH 75 PERCENTUM OF THE PAY OF THE SAID RATING OR RANK. UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA, MR. GEE, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY IS REQUIRED TO BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AND IS ENTITLED TO RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN HIS CASE BUT BASED UPON SUCH HIGHER RANK. SECTION 10 (E) OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350I (E) PROVIDES, INTER ALIA, THAT THE HIGHEST RANK IN WHICH AN OFFICER SERVED ON OR PRIOR TO JUNE 30, 1946, IS THE HIGHEST RANK IN WHICH SUCH OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED PURSUANT TO SAID SECTION 10, UNLESS UNDER OTHER PROVISIONS OF LAW "HE IS ENTITLED TO A HIGHER RANK ON THE RETIRED LIST OR TO A HIGHER RETIRED PAY, OR UNLESS AT THE TIME OF RETIREMENT HE IS SERVING IN A HIGHER PERMANENT GRADE OR RANK.'

SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, ABOVE-CITED, PROVIDES THAT ANY OFFICER SERVING IN THE GRADE OF REAR ADMIRAL OR BELOW, UNDER AUTHORITY OF TITLE III OF THE SAID ACT, BY VIRTUE OF A TEMPORARY APPOINTMENT THEREIN SHALL, IF RETIRED WHILE SO SERVING, BE RETIRED IN THE GRADE IN WHICH SERVING, WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH SUCH OFFICER WAS ENTITLED AT THE TIME OF RETIREMENT UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED GRADE OR PAY. THE SAID STATUTORY PROVISIONS AUTHORIZING RETIREMENT OF ANY OFFICER IN THE HIGHER TEMPORARY GRADE OF REAR ADMIRAL OR BELOW IN WHICH SERVING, WITH RETIRED PAY BASED ON THE ACTIVE DUTY PAY TO WHICH ENTITLED AT DATE OF RETIREMENT CLEARLY CONTEMPLATES AND INCLUDES PERSONNEL OF THE NAVY SERVING IN TEMPORARY OFFICER GRADES PURSUANT TO THE PROVISIONS OF SECTIONS 302 (C) AND 302 (D), TITLE III OF THE ACT, 61 STAT. 830, 34 U.S.C. 3C (C) AND (D). INASMUCH AS SECTION 302 (C) SUPRA, EXPRESSLY PROVIDES THAT NAVAL PERSONNEL OF THE CLASSES THEREIN DESIGNATED MAY BE TEMPORARILY APPOINTED TO GRADES IN THE REGULAR NAVY OR MARINE CORPS, EXCEPT IN THE NURSE CORPS OF THE REGULAR NAVY ,INCLUDING THE GRADES OF WARRANT OFFICER AND COMMISSIONED WARRANT OFFICER" NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS, AND SINCE SUBSECTION (A) OF SECTION 316 OF THE 1947 ACT MAKES REFERENCE TO OFFICERS "SERVING IN WARRANT GRADE," THE CONCLUSION APPEARS INDICATED THAT THE BENEFITS PRESCRIBED IN SECTION 316 (J) OF THE SAID ACT, SUPRA, WERE INTENDED TO APPLY TO NAVAL PERSONNEL TEMPORARILY SERVING AT THE TIME OF THEIR RETIREMENT IN THE GRADES OF WARRANT OFFICER AND COMMISSIONED WARRANT OFFICERS AS WELL AS TO PERSONNEL OF THE NAVAL SERVICE TEMPORARILY SERVING AT TIME OF RETIREMENT IN THE GRADES FROM ENSIGN TO REAR ADMIRAL. SUCH CONCLUSION WOULD APPEAR TO BE WARRANTED NOTWITHSTANDING THAT SECTION 302 (A) OF THE ACT, 61 STAT. 829, 34 U.S.C. 3 (C) (A), IN GIVING A DEFINITION OF THE WORD "OFFICERS" FOR THE PURPOSES, GENERALLY, OF TITLE III OF THE ACT, PROVIDES THAT "UNLESS OTHERWISE QUALIFIED" THE WORD "OFFICERS" SHALL BE INTERPRETED TO MEAN "ALL OFFICERS OF THE GRADE OF ENSIGN AND ABOVE ON ACTIVE DUTY IN THE NAVY" EXCLUSIVE OF OFFICERS ON THE RETIRED LIST AND EXCLUSIVE OF CERTAIN DESIGNATED CATEGORIES OF OFFICERS OF THE NAVAL RESERVE. COMPARE DECISION OF OCTOBER 21, 1949, B 87642, 29 COMP. GEN. 196. ACCORDINGLY, IN ANSWER TO THE FIRST QUESTION IT MAY BE STATED THAT IF MR. GEE IS RETIRED AS CONTEMPLATED HE MAY BE PLACED ON THE RETIRED LIST PURSUANT TO THE AUTHORITY OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, IN THE RANK OF COMMISSIONED WARRANT OFFICER (PAY GRADE W- 3) WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF SUCH RANK.

WITH RESPECT TO THE SECOND QUESTION, HOWEVER, SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDES, INTER ALIA, THAT PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THAT ACT SHALL "WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.' ( ITALICS SUPPLIED.) THE GRADE AND PAY BENEFITS SO PRESCRIBED AND TO WHICH AN INDIVIDUAL MAY BE ENTITLED ARE EXCLUSIVE OF ANY BENEFITS TO WHICH THE INDIVIDUAL MAY BE ENTITLED UNDER OTHER PROVISIONS OF LAW. COMPARE 27 COMP. GEN. 197, 204. AS ABOVE-STATED IN ANSWER TO THE FIRST QUESTION, MR. GEE WILL BE ENTITLED TO BE PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, IN THE RANK OF COMMISSIONED WARRANT OFFICER WITH RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THE RANK SO HELD AT THE TIME OF HIS RETIREMENT AND RETIRED PAY WHICH HE WOULD RECEIVE IF HE IS ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT (JG) UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, SUPRA, IT BEING ASSUMED IN SUCH CONNECTION THAT HE WOULD OTHERWISE MEET THE CONDITIONS STIPULATED FOR ADVANCEMENT ON THE RETIRED LIST UNDER THE 1941 STATUTE. HOWEVER, THE BENEFITS OF EITHER OF THE ABOVE-CITED STATUTES, BEING IN THE ALTERNATIVE, MAY NOT BE COMBINED WITH THE OTHER AND HENCE NO PROPER BASIS IS PRESENTED WHEREBY THE SUBJECT OFFICER MAY BE ADVANCED UNDER THE AUTHORITY OF THE 1941 STATUTE TO THE RANK OF LIEUTENANT (JG) ON THE RETIRED LIST AND CONTINUE TO BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED, AS PROVIDED BY THE OFFICER PERSONNEL ACT OF 1947, ON THE BASIS OF HIS TEMPORARY RANK AS A COMMISSIONED WARRANT OFFICER, HELD BY HIM UNDER THE 1947 ACT AT THE TIME OF HIS RETIREMENT. QUESTION TWO, ACCORDINGLY, IS ANSWERED IN THE NEGATIVE.