B-68965, JUL. 19, 1955

B-68965, JUL. 19, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MARCH 30, 1955, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, FORWARDING A REQUEST FOR DECISION FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO. THE QUESTION PRESENTED IN THE DIRECTOR'S LETTER OF FEBRUARY 2, 1955, IS WHETHER, IN THE CIRCUMSTANCES STATED, REAR ADMIRAL JOSEPH W. MCCOLL, JR., U.S. NAVY, RETIRED, IS ENTITLED TO (1) THE DIFFERENCE BETWEEN ACTIVE DUTY PAY BASED ON THE RANK OF REAR ADMIRAL (LOWER HALF) AND THAT OF CAPTAIN WITH OVER 27 BUT LESS THAN 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD APRIL 1, 1945 TO MARCH 31, 1947; (2) THE DIFFERENCE BETWEEN ACTIVE DUTY PAY BASED ON THE RANK OF REAR ADMIRAL (UPPER HALF) AND THAT OF CAPTAIN WITH OVER 27 BUT LESS THAN 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD APRIL 1 TO 11, 1947; (3) THE DIFFERENCE BETWEEN ACTIVE DUTY PAY BASED ON THE RANK OF REAR ADMIRAL (UPPER HALF) AND THAT OF CAPTAIN WITH OVER 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD APRIL 12, 1947, TO MAY 23, 1947; AND (4) THE DIFFERENCE BETWEEN RETIRED PAY BASED ON THE RANK OF REAR ADMIRAL (UPPER HALF) AND THAT OF CAPTAIN WITH OVER 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD FROM MAY 24, 1947, TO DATE.

THE PERTINENT FACTS RESPECTING REAR ADMIRAL MCCOLL'S NAVAL SERVICE, INCLUDING HIS ADVANCEMENT ON THE RETIRED LIST OF THE NAVY TO THE RANK OF REAR ADMIRAL UNDER THE PROVISIONS OF 34 U.S.C. (1946 ED.) 404 (1), EFFECTIVE APRIL 1, 1945, THE DATE OF HIS RETIREMENT, ARE SET FORTH IN OUR DECISION OF JANUARY 21, 1948, B-68965, 27 COMP. GEN. 386. THE PRECISE QUESTION CONSIDERED IN THAT DECISION WAS WHETHER THE OFFICER, FROM THE DATE OF HIS RETIREMENT, APRIL 1, 1945, HELD THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WITHIN THE MEANING OF THE ACT OF APRIL 8, 1946, 60 STAT. 86, 34 U.S.C. 428, WHICH PROVIDES:

"THAT ANY OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE AND WHO IS, HAS BEEN, OR MAY BE RECALLED TO ACTIVE DUTY AND WHO IN TIME OF WAR OR OTHER NATIONAL EMERGENCY SERVED, SERVES, OR MAY SERVE SATISFACTORILY ON ACTIVE DUTY FOR A PERIOD OF TWO YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE, SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER PAY AND ALLOWANCES, AND HE SHALL BE ENTITLED WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER RETIRED PAY OR ALLOWANCES: PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THIS ACT PRIOR TO THE DATE OF ITS APPROVAL.'

IT WILL BE NOTED THAT THESE STATUTORY PROVISIONS, AUTHORIZING ADVANCEMENT OF REAR ADMIRALS FROM THE LOWER HALF TO THE UPPER HALF FOR PAY PURPOSES UNDER THE CONDITIONS SPECIFIED, ARE APPLICABLE ONLY TO AN OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD "OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL.'

IT WAS POINTED OUT IN THE DECISION OF JANUARY 21, 1948, THAT THERE APPEARED NO BASIS TO JUSTIFY THE CONCLUSION THAT THE OFFICER'S ADVANCEMENT TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST OF THE NAVY PURSUANT TO THE PROVISIONS OF 34 U.S.C. (1946 ED.) 404 (1) MIGHT BE REGARDED AS AN ADVANCEMENT TO THE "PERMANENT GRADE OR RANK OF REAR ADMIRAL.' HENCE, IT WAS HELD THAT THE OFFICER WAS NOT AN OFFICER OF THE RETIRED LIST OF THE NAVY "OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL" WITHIN THE MEANING OF THE ACT OF APRIL 8, 1946. OUR DECISION OF FEBRUARY 17, 1955, B-122314, 34 COMP. GEN. 387, IN THE CASE OF REAR ADMIRAL PAUL L. MATHER, U.S. NAVY, RETIRED (TO WHICH REFERENCE IS MADE IN ONE OF THE ENCLOSURES RECEIVED WITH THE LETTER OF MARCH 30, 1955), DID NOT MODIFY, IN ANY MANNER, THE CONCLUSION REACHED IN THE DECISION OF JANUARY 21, 1948, WITH RESPECT TO REAR ADMIRAL MCCOLL'S STATUS FOR PURPOSES OF THE 1946 LAW.

ACCORDINGLY, WITH RESPECT TO THE PERIODS APRIL 1 TO 11, 1947, AND APRIL 12, 1947 TO MAY 23, 1947, (THE PERIODS MENTIONED IN (2) AND (3) ABOVE), YOU ARE ADVISED THAT THE OFFICER IS NOT ENTITLED TO ADDITIONAL ACTIVE DUTY PAY BASED ON THE RANK OF REAR ADMIRAL (UPPER HALF). LIKEWISE, FOR THE PERIOD SINCE MAY 24, 1947 (THE PERIOD MENTIONED IN (4) ABOVE), HE IS NOT ENTITLED TO ADDITIONAL RETIRED PAY BASED ON THE RANK OF REAR ADMIRAL (UPPER HALF).

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C. (1946 ED.) 115--- IN EFFECT UNTIL OCTOBER 1, 1949--- PROVIDED, IN PERTINENT PART, THAT "RETIRED OFFICERS OF THE ARMY, NAVY * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY.' THE RECORD SHOWS THAT REAR ADMIRAL MCCOLL WAS CONTINUED ON ACTIVE DUTY AFTER THE DATE OF HIS RETIREMENT (APRIL 1, 1945), DURING THE PERIOD FROM APRIL 1, 1945, TO MAY 23, 1947, INCLUSIVE. ORDERS ISSUED BY THE CHIEF OF NAVAL PERSONNEL ON APRIL 3, 1945, WERE ADDRESSED TO HIM AS "REAR ADMIRAL JOSEPH W. MCCOLL, USN, RETIRED" AND ADVISED HIM (INSOFAR AS HERE PERTINENT) THAT HE WAS TO REGARD HIMSELF DETACHED FROM DUTY ON THE JOINT ARMY AND NAVY EXPERIMENTAL AND RESEARCH TESTING BOARD, FORT PIERCE, FLORIDA, AND WAS TO PROCEED TO CASTINE, MAINE, AND REPORT TO THE SUPERINTENDENT, MAINE MARITIME ACADEMY, FOR DUTY AS SUPERINTENDENT. SUBSEQUENTLY, THE OFFICER'S RELEASE FROM ACTIVE DUTY AS SUPERINTENDENT, MAINE MARITIME ACADEMY, WAS ACCOMPLISHED PURSUANT TO ORDERS OF THE CHIEF OF NAVAL PERSONNEL, DATED MARCH 4, 1947, AND TO THE SEVERAL ENDORSEMENTS ON THOSE ORDERS, ALL ADDRESSED TO HIM AS REAR ADMIRAL, USN, RETIRED.

IT IS PLAIN FROM THE FOREGOING THAT THE OFFICER'S ACTIVE DUTY AS A RETIRED OFFICER OF THE NAVY FROM APRIL 1, 1945, TO MAY 23, 1947, ACTUALLY WAS PERFORMED BY HIM, UNDER COMPETENT ACTIVE-DUTY ORDERS, IN THE RANK OF REAR ADMIRAL. CONSEQUENTLY, HAVING SERVED ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL, HE IS ENTITLED, UNDER THE PROVISIONS OF SECTION 15 OF THE 1942 ACT, TO THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY OF A REAR ADMIRAL (LOWER HALF) AND THAT OF A CAPTAIN WITH OVER 27 BUT LESS THAN 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD APRIL 1, 1945 TO MARCH 31, 1947 (THE PERIOD MENTIONED IN (1) ABOVE), AND FROM APRIL 1, 1947 TO APRIL 11, 1947 (THE PERIOD MENTIONED IN (2) ABOVE).

NO ADJUSTMENT APPEARS TO BE NECESSARY FOR THE PERIOD APRIL 12, 1947, TO MAY 23, 1947, INCLUSIVE (THE PERIOD MENTIONED IN (3) ABOVE), SINCE THE OFFICER IS STATED TO HAVE COMPLETED 30 YEARS OF CREDITABLE SERVICE ON APRIL 11, 1947. HENCE, AFTER THAT DATE, HIS ACTIVE DUTY PAY AS A CAPTAIN WITH OVER 30 YEARS' CREDITABLE SERVICE WAS THE SAME AS THE ACTIVE DUTY PAY THEN PRESCRIBED FOR A REAR ADMIRAL (LOWER HALF). SEE 37 U.S.C. (1946 ED.) 101, 107. ALSO, NO ADJUSTMENT IS REQUIRED WITH RESPECT TO THE OFFICER'S RETIRED PAY FOR THE PERIOD FROM MAY 24, 1947, TO SEPTEMBER 30, 1949, INCLUSIVE.

IT IS FURTHER STATED THAT HAVING BEEN RETIRED FOR PHYSICAL DISABILITY, EFFECTIVE APRIL 1, 1945, AND THEREFORE COMING WITHIN THE SCOPE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. (1952 ED.) 281, THE OFFICER ELECTED TO HAVE HIS RETIRED PAY COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, AS PRESCRIBED IN METHOD (B) UNDER SECTION 511 OF THAT ACT, 63 STAT. 829, 37 U.S.C. (1952 ED.) 311. ENCLOSURE (F) DATED SEPTEMBER 20, 1954, RECEIVED WITH THE LETTER OF MARCH 30, 1955, EVIDENCES A DETERMINATION MADE PURSUANT TO THE AUTHORITY OF SECTION 511 THAT THE HIGHEST FEDERALLY RECOGNIZED RANK SATISFACTORILY HELD BY THE OFFICER IS THAT OF REAR ADMIRAL. ON THE BASIS OF THAT DETERMINATION, HIS CASE PROPERLY MAY BE VIEWED AS COMING WITHIN THE SCOPE OF THE DECISIONS OF THE COURT OF CLAIMS IN ALGER V. UNITED STATES, 126 C.CLS. 561, AND MILLER V. UNITED STATES, 123 C.CLS. 351, HOLDING THAT SECTION 511 CONFERS THE RIGHT TO RETIRED PAY COMPUTED UPON THE BASIS OF THE HIGHEST RANK SATISFACTORILY HELD ON ACTIVE DUTY BY THE RETIRED MEMBER DURING HIS ENTIRE CAREER, WHETHER THE RANK WAS HELD BY FORMAL APPOINTMENT OR THROUGH ADVANCEMENT BY STATUTE. ACCORDINGLY, THE OFFICER IS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS OF THE RANK OF REAR ADMIRAL (LOWER HALF).

SINCE THE DEPARTMENT OF THE NAVY IS AUTHORIZED TO PAY ONLY THAT PORTION OF REAR ADMIRAL MCCOLL'S CLAIM WHICH DOES NOT INVOLVE LAPSED APPROPRIATIONS, THE BALANCE OF THE CLAIM MAY BE PROCESSED BY THE DEPARTMENT OF THE NAVY AND FORWARDED FOR SETTLEMENT TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE. REAR ADMIRAL MCCOLL'S LETTER OF DECEMBER 6, 1954, WITH ENCLOSURES, IS RETURNED. AFTER IT HAS SERVED THE PURPOSES OF THE DEPARTMENT OF THE NAVY IT SHOULD BE ..END :