B-57583, OCTOBER 7, 1949, 29 COMP. GEN. 172

B-57583, OCTOBER 7, 1949, 29 COMP. GEN. 172

PAY - RETIRED - REAR ADMIRAL OF NAVAL RESERVE UNDER SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, PROVIDING THAT THE RETIRED PAY OF AN OFFICER RETIRED PURSUANT TO SECTION 6 OF THE ACT MAY BE BASED ON THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD WHILE ON ACTIVE DUTY PRIOR TO JUNE 30, 1946, UNLESS AT THE TIME OF RETIREMENT HE IS SERVING IN A HIGHER PERMANENT RANK OR GRADE, A REAR ADMIRAL OF THE NAVAL RESERVE ENTITLED TO THE ACTIVE-DUTY PAY OF THE UPPER HALF BY VIRTUE OF THE ACT OF MARCH 17, 1949, MAY HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF A REAR ADMIRAL, UPPER HALF, WHEN TRANSFERRED TO THE RETIRED LIST PURSUANT TO SAID SECTION 6.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 7, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1949, REQUESTING DECISION AS TO WHETHER REAR ADMIRAL IRVING M. MCQUISTON, UNITED STATES NAVAL RESERVE, WILL BE ENTITLED, IN THE EVENT OF HIS TRANSFER TO THE RETIRED LIST ON HIS OWN APPLICATION PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, 27, TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF A REAR ADMIRAL, UPPER HALF.

IT IS STATED THAT REAR ADMIRAL MCQUISTON WAS APPOINTED A REAR ADMIRAL IN THE U.S. NAVAL RESERVE FOR TEMPORARY SERVICE ON NOVEMBER 2, 1945, PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350, ET SEQ., AND THAT HE WAS APPOINTED TO THE PERMANENT RANK OF REAR ADMIRAL IN THE U.S. NAVAL RESERVE ON JUNE 3, 1948, TO RANK FROM JULY 8, 1942. IT IS FURTHER STATED THAT REAR ADMIRAL MCQUISTON HAS COMPLETED MORE THAN 20 YEARS' ACTIVE SERVICE IN THE NAVAL RESERVE, AT LEAST 10 YEARS OF WHICH HAS BEEN ACTIVE COMMISSIONED SERVICE, AND, CONSEQUENTLY, HE IS ELIGIBLE TO APPLY FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, 34 U.S.C. 410B. ALSO, IT IS UNDERSTOOD THAT AT THE PRESENT TIME THE OFFICER IS ENTITLED TO THE ACTIVE- DUTY PAY AND ALLOWANCES PRESCRIBED BY LAW FOR A REAR ADMIRAL OF THE UPPER HALF, PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 17, 1949, PUBLIC LAW 21, 63 STAT. 14, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT ANY OFFICER OF THE NAVAL RESERVE SERVING IN THE GRADE OF REAR ADMIRAL SHALL, WHEN OTHERWISE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF WHEN ANY OFFICER OF THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY, JUNIOR TO HIM, IS IN THE UPPER HALF OF THE LIST OF REAR ADMIRALS: PROVIDED, THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO OFFICERS OF THE NAVAL RESERVE WHILE ON ANY LINEAL LIST ESTABLISHED PURSUANT TO TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 * * *.

SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AS AMENDED, WHICH PRESCRIBES THE BASIS UPON WHICH THE PAY OF OFFICERS RETIRED UNDER THE SAID SECTION 6 IS TO BE COMPUTED, AUTHORIZES OFFICERS PLACED ON THE RETIRED LIST TO BE PLACED THEREON WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY THEM WHILE ON ACTIVE DUTY, WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH ACTIVE-DUTY PAY. THE SAID SECTION 7 FURTHER PROVIDES, INSOFAR AS HERE MATERIAL, THAT:

THE HIGHEST RANK IN WHICH AN OFFICER SERVED ON OR PRIOR TO JUNE 30, 1946, OR IF A PRISONER OF WAR AT ANY TIME DURING WORLD WAR II, THE HIGHEST RANK TO WHICH AN OFFICER WAS TEMPORARILY APPOINTED PURSUANT TO THE PROVISIONS OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 603), IS THE HIGHEST RANK IN WHICH THE OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED PURSUANT TO THIS SECTION, UNLESS UNDER PROVISIONS OF LAW OTHER THAN THOSE CONTAINED WITHIN THIS SECTION 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. ( ITALICS SUPPLIED.)

UNDER SUCH PROVISION, IF AN OFFICER IS SERVING IN A HIGHER PERMANENT GRADE OR RANK AT THE TIME OF RETIREMENT, HE MAY BE RETIRED WITH SUCH HIGHER PERMANENT GRADE OR RANK, EVEN THOUGH ACQUIRED AFTER JUNE 30, 1946. CONSEQUENTLY, IN ANSWER TO YOUR SPECIFIC QUESTION, IF REAR ADMIRAL MCQUISTON IS TRANSFERRED TO THE RETIRED LIST PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AND IF AT THE TIME OF RETIREMENT HE IS SERVING IN THE PERMANENT RANK OF REAR ADMIRAL IN THE NAVAL RESERVE AND IS ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF, UNDER THE PROVISIONS OF THE ACT OF MARCH 17, 1949, HIS RETIRED PAY MAY BE COMPUTED ON THE BASIS OF THE ACTIVE DUTY PAY OF A REAR ADMIRAL, UPPER HALF.