B-145892, JUL. 18, 1961

B-145892, JUL. 18, 1961

TO TECHNICAL SERGEANT LEO J. WERNER, USMC, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 22, 1960, WHICH ALLOWED YOU, AS A RETIRED MEMBER OF THE U.S. MARINE CORPS, THE SUM OF $5,179.27 AS ADJUSTMENT OF RETAINER PAY AND RETIRED PAY FOR THE PERIOD FROM MARCH 22, 1950, TO OCTOBER 31, 1960, BASED ON THE ACTIVE DUTY PAY OF A TECHNICAL SERGEANT (E- 6). YOU SAY THAT YOU SERVED IN THE U.S. COAST GUARD IN THE HIGHER GRADE OF CHIEF SPECIALIST (E-7) DURING WORLD WAR II, WHEN SUCH SERVICE WAS "NAVAL SERVICE," AND THAT YOU BELIEVE YOUR RETIRED PAY SHOULD BE COMPUTED ON THE BASIC PAY OF THAT GRADE.

IT APPEARS FROM INFORMATION WHICH HAS BEEN MADE AVAILABLE TO US BY THE U.S. MARINE CORPS THAT, AS OF JANUARY 31, 1949, IT WAS DETERMINED THAT YOU HAD TOTAL SERVICE OF 20 YEARS, 10 MONTHS AND 3 DAYS (INCLUDING 16 YEARS, 2 MONTHS AND 23 DAYS OF ACTIVE SERVICE) WHICH WAS CREDITABLE FOR RETIREMENT PURPOSES. YOU WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON THAT DATE, IN THE GRADE OF CORPORAL, PURSUANT TO THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854B (1946 EDITION). UPON COMPLETION OF 30 YEARS AND 3 DAYS OF SERVICE IN THE U.S. MARINE CORPS, THE MARINE CORPS RESERVE, THE COAST GUARD RESERVE AND THE FLEET MARINE CORPS RESERVE, YOU WERE TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEN OF THE REGULAR MARINE CORPS ON APRIL 1, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 6331. DURING THE PERIOD FROM FEBRUARY 1, 1949, TO OCTOBER 31, 1960, YOU WERE PAID MONTHLY RETAINER PAY AND RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF A CORPORAL.

THE SECRETARY OF THE NAVY, ON NOVEMBER 8, 1960, DETERMINED THAT THE HIGHEST RANK SATISFACTORILY HELD BY YOU IN THE U.S. MARINE CORPS, WITHIN THE MEANING OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, WAS THAT OF TECHNICAL SERGEANT (E 6). ACCORDINGLY, YOU WERE ALLOWED THE ADDITIONAL SUM OF $5,179.27 IN THE SETTLEMENT OF NOVEMBER 22, 1960, ON THE BASIS THAT YOUR RETAINER PAY AND RETIRED PAY FOR THE PERIOD FROM MARCH 22, 1950, TO OCTOBER 31, 1960, SHOULD HAVE BEEN BASED ON THE ACTIVE DUTY PAY OF A TECHNICAL SERGEANT (E- 6) INSTEAD OF THE ACTIVE DUTY PAY OF A CORPORAL (E-3). YOU WERE ADVISED IN THAT SETTLEMENT THAT YOUR CLAIM FOR ANY PERIOD PRIOR TO MARCH 22, 1950, WAS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

SO FAR AS IS HERE PERTINENT, SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 AUTHORIZED MEMBERS OF THE UNIFORMED SERVICES RETIRED BEFORE OCTOBER 1, 1949, AND MEMBERS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE BEFORE THAT DATE TO RECEIVE MONTHLY RETIRED PAY OR RETAINER PAY---

"* * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *.'

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, LEGISLATION AUTHORIZING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE PAY OF A GRADE HIGHER THAN THAT HELD AT THE TIME OF RETIREMENT, GENERALLY LIMITED SUCH BENEFIT TO THE SERVICE IN WHICH RETIRED. WE CONCLUDED, THEREFORE, THAT HAD THE CONGRESS INTENDED TO ADOPT A NEW LEGISLATIVE POLICY IN THAT RESPECT IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, DOUBTLESS IT WOULD HAVE CLEARLY INDICATED ITS INTENTION BY THE USE OF APT LANGUAGE FOR THAT PURPOSE, AS WAS DONE WITH RESPECT TO OTHER DEPARTURES FROM PRIOR LEGISLATION INCLUDED IN THAT ACT. ON SUCH BASIS WE CONSISTENTLY HAVE HELD IN CASES INVOLVING SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 THAT A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO SATISFACTORILY HELD A HIGHER RANK, GRADE OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE OR RATING. COMP. GEN. 437 AND 32 COMP. GEN. 425.

ALTHOUGH THE COAST GUARD WHILE OPERATING AS A PART OF THE NAVY DURING WORLD WAR II WAS A PART OF THE NAVAL ESTABLISHMENT, IT IS A SEPARATE AND DISTINCT SERVICE FOR THE PURPOSES OF THE CAREER COMPENSATION ACT OF 1949. SECTION 102 (A) OF THAT ACT, 63 STAT. 804, 37 U.S.C. 231, PROVIDES THAT THE TERM "UNIFORMED SERVICES," UNLESS OTHERWISE QUALIFIED, SHALL BE INTERPRETED TO MEAN AND INCLUDE THE ARMY OF THE UNITED STATES, THE NAVY, THE AIR FORCE OF THE UNITED STATES, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE,"AND ALL REGULAR AND RESERVE COMPONENTS THEREOF.' ACCORDINGLY, IT IS CONCLUDED THAT YOU ARE NOT ENTITLED TO HAVE YOUR RETAINER PAY AND RETIRED PAY FOR THE PERIOD INVOLVED COMPUTED ON THE BASIS OF THE ACTIVE DUTY PAY OF THE HIGHER GRADE OF CHIEF SPECIALIST (E-7) HELD BY YOU IN THE U.S. COAST GUARD.

IT APPEARS IN THE REVIEW OF YOUR CASE, HOWEVER, THAT SINCE YOU HAD NO ENTITLEMENT TO RETIRED PAY BASED ON THE RANK OF TECHNICAL SERGEANT UNTIL THE SECRETARY OF THE NAVY MADE THE NECESSARY DETERMINATION ON NOVEMBER 8, 1960, THE 10-YEAR BARRING PERIOD PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, COMMENCED ON THAT DATE. CONSEQUENTLY, YOUR CLAIM COVERING THE PERIOD FROM OCTOBER 1, 1949, TO MARCH 21, 1950, WAS NOT BARRED BY THAT ACT. OUR CLAIMS DIVISION WILL ISSUE A SUPPLEMENTAL SETTLEMENT ALLOWING YOU THE ADDITIONAL AMOUNT DUE FOR SUCH PERIOD.