A-92119, MARCH 21, 1938, 17 COMP. GEN. 759

A-92119, MARCH 21, 1938, 17 COMP. GEN. 759

PAY - RETIRED - ENLISTED MEN - CHANGE IN RATING AFTER APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, THE RETIRED PAY OF AN ENLISTED MAN IS REQUIRED TO BE COMPUTED ON HIS ACTIVE DUTY PAY IN THE GRADE HELD WHEN APPLICATION FOR RETIREMENT IS MADE, AND THERE IS NO AUTHORITY FOR PAYMENT OF INCREASED RETIRED PAY BASED ON A CHANGE IN RATING OF A NAVY ENLISTED MAN AFTER THE DATE OF APPLICATION FOR RETIREMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MARCH 21, 1938:

THERE HAS BEEN RECEIVED BY YOUR DIRECTION LETTER OF JANUARY 25, 1938, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER, WITH INCLOSURES, FROM THE PAYMASTER GENERAL OF THE NAVY, DATED JANUARY 19,1938, WITH REQUEST FOR YOUR DECISION ON THE QUESTION THEREIN PRESENTED AS TO WHETHER, ON THE FACTS STATED IN THE INCLOSURES, THOMAS BURKE, CHIEF MACHINIST'S MATE (AA), U.S. NAVY, RETIRED, IS ENTITLED TO BE PAID RETIRED PAY AS A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, AT THE RATE OF $108.56 MONTHLY, OR AS A MACHINIST'S MATE FIRST CLASS, AT THE RATE OF $94.50 MONTHLY.

IT APPEARS FROM THE RECORDS IN THE CASE THAT BURKE APPLIED FOR TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY ON NOVEMBER 29, 1937; THAT HIS TRANSFER WAS APPROVED DECEMBER 10, 1937, AND ON DECEMBER 13, 1937, ORDERS WERE ISSUED TRANSFERRING HIM TO THE RETIRED LIST OF THE REGULAR NAVY EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING RECEIPT OF THE ORDERS, THAT IS, ON JANUARY 1, 1938, PURSUANT TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253; THAT WHEN BURKE MADE APPLICATION FOR RETIREMENT HE WAS SERVING IN THE RATING OF MACHINIST'S MATE, FIRST CLASS, WITH PAY OF $105 PER MONTH; THAT ON DECEMBER 31, 1937, HIS RATING WAS CHANGED TO CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, WHICH RATING ENTITLED HIM TO PAY AT $123.75 PER MONTH, BUT THAT BY REASON OF THE ADVANCE RATING BECOMING EFFECTIVE ON THE 31ST DAY OF THE MONTH BURKE RECEIVED NO PAY OF THAT RATING WHILE ON THE ACTIVE LIST. THE QUESTION IS WHETHER IN THE COMPUTATION OF BURKE'S RETIRED PAY HE IS ENTITLED TO 75 PERCENT OF THE ACTIVE DUTY PAY IN THE RATING OF MACHINIST'S MATE, FIRST CLASS, OR TO 75 PERCENT OF HIS ACTIVE DUTY PAY AS CHIEF MACHINIST'S MATE, ACTING APPOINTMENT.

BURKE'S RETIREMENT WAS UNDER PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217 (SEC. 947, TITLE 10, UNITED STATES CODE) WHICH PROVIDES:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDED, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

THE CASE OF WILMER BLACKETT V. THE UNITED STATES, 81 CT.CLS. 884, INVOLVED THE RETIRED PAY OF AN ENLISTED MAN OF THE ARMY WHO WAS SERVING IN THE GRADE OF MASTER SERGEANT WHEN HE MADE APPLICATION FOR RETIREMENT AFTER THIRTY YEARS' SERVICE AND WHO WAS AFTER SUCH APPLICATION FOR RETIREMENT, REDUCED TO A LOWER GRADE AND RETIRED IN THE LOWER GRADE. THE COURT HELD THAT THE MAN WAS ENTITLED TO RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THE GRADE HELD WHEN HE MADE APPLICATION FOR RETIREMENT. AS REASONS FOR THAT CONCLUSION THE COURT STATED:

THE ACT GIVES NO DISCRETION TO THE PRESIDENT. IF NO DISCRETION IS PLACED BY CONGRESS IN THE COMMANDER-IN-CHIEF OF THE ARMY AND NAVY, CERTAINLY NONE CAN BE READ INTO THE ACT FOR ANY SUBORDINATE OFFICER. CHARACTER AND CONDUCT OF THE APPLICANT DURING THE THIRTY YEARS CANNOT BE CONSIDERED. THE FACT THAT THE ENLISTED MAN HAS SERVED FOR SO LONG A PERIOD IN THE ARMY WAS CONSIDERED SUFFICIENT BY CONGRESS TO GIVE HIM A RIGHT TO RETIRE IN THE GRADE IN WHICH HE WAS THEN SERVING. THE PRESUMPTION IS THAT WERE HE AN UNWORTHY CHARACTER OR HIS CONDUCT DETRIMENTAL TO THE SERVICE HE COULD NOT HAVE SERVED FOR THAT PERIOD OF YEARS. THE RIGHT GRANTED BY CONGRESS WAS WITHOUT CONDITION AND ABSOLUTE. NO RULE OR REGULATION OF THE DEPARTMENT COULD CIRCUMSCRIBE OR IMPAIR IT, AND ANY ACTION, WHICH PLACED CONDITIONS ON RETIREMENT OR ATTEMPTED TO SELECT THE GRADE IN WHICH RETIREMENT WAS GRANTED, WAS WITHOUT WARRANT OF LAW. THE REDUCTION IN GRADE TO PRIVATE AND CONSENT TO RETIREMENT IN THAT GRADE WAS ARBITRARY AND ILLEGAL. * * * THE ENLISTED MAN APPLIED TO BE RETIRED WHEN HE WAS A MASTER SERGEANT AND THE DEPARTMENT GAVE CONSENT FOR THE RETIREMENT AS A PRIVATE. THE LAW FIXED THE GRADE UPON WHICH HE SHOULD RETIRE. IT GAVE NO AUTHORITY TO ANYONE FOR ANY CAUSE WHATSOEVER TO DESIGNATE THE GRADE AFTER APPLICATION HAS BEEN MADE TO THE PRESIDENT. COMPENSATION DURING RETIREMENT FOLLOWED THE GRADE. NO OFFICIAL APPROVAL WAS NECESSARY.

THE WORDS OF THE ACT ARE PLAIN, AND THEIR MEANING SIMPLE. THE ACT IMPOSED AN IMPERATIVE DUTY AND NOT A DISCRETIONARY POWER. THE DEPARTMENT HAS READ INTO THE ACT DISCRETIONARY POWERS AND HAS ASSUMED THE RIGHT TO PERMIT RETIREMENT AND TO SELECT THE GRADE IN WHICH RETIREMENT IS PERMITTED. THE ACT CONFERS NO SUCH POWERS ON THE PRESIDENT. A REASONABLE TIME TO ASCERTAIN THE DURATION OF SERVICE IS ALLOWABLE. FOUR MONTHS' DELVING INTO THE CHARACTER AND PAST CONDUCT OF THE APPLICANT IS UNREASONABLE WHEN THE LENGTH OF SERVICE WAS KNOWN AND ADMITTED. THE ORDER OF DECEMBER 16, 1926, PERMITTING HIM TO RETIRE HAD THE EFFECT OF RETIRING HIM AND THE GRADE IN WHICH HE WAS ENTITLED TO BE RETIRED WAS THAT IN WHICH HE WAS SERVING WHEN THE APPLICATION WAS MADE. * * *

THE COURT APPLIED THE SAME RULE IN STANDERSON V. THE UNITED STATES, 83 CT.CLS. 663,

THE COURT IN THE BLACKETT CASE, HELD THERE WAS NO DISCRETION LEFT TO THE PRESIDENT AND THE MAN'S RIGHT TO RETIREMENT IS "WITHOUT CONDITION AND ABSOLUTE," AND THE MAN MUST BE RETIRED IN THE GRADE HELD WHEN APPLICATION IS MADE, THAT THERE IS NO WARRANT OF LAW FOR THE DEPARTMENT ATTEMPT ,TO SELECT THE GRADE IN WHICH RETIREMENT WAS GRANTED.' ACCORDINGLY, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, AS CONSTRUED BY THE COURT OF CLAIMS IN BLACKETT V. THE UNITED STATES, THE RETIREMENT PAY OF BURKE IS REQUIRED TO BE COMPUTED ON HIS ACTIVE DUTY PAY AS A MACHINIST'S MATE, FIRST CLASS--- THAT IS, 75 PERCENTUM OF $105 PER MONTH, $78.75, PLUS $15.75 ALLOWANCES, OR AT $94.50.