B-121773, JUN. 21, 1955

B-121773, JUN. 21, 1955

TO E. NEWSOME, CHIEF PAY CLERK, USCG, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS, U.S. COAST GUARD:

REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1955, WITH ENCLOSURES, CONCERNING OUR DECISION OF JANUARY 28, 1955, B-121773, RENDERED TO LIEUTENANT C. D. MILLER, AN AUTHORIZED CERTIFYING OFFICER OF THE U.S. COAST GUARD, ON THE CASE OF LIEUTENANT (JG) ROBERT E. HARRIS, U.S. COAST GUARD RESERVE, RETIRED.

THE DECISION OF JANUARY 28, 1955, WAS RENDERED TO LIEUTENANT MILLER UPON HIS REQUEST TO BE ADVISED WHETHER PAYMENT WAS PROPER ON A VOUCHER STATED IN FAVOR OF MR. HARRIS FOR RETIRED PAY COMPUTED ON THE BASIS OF THE RANK OF LIEUTENANT, COAST GUARD RESERVE, RETIRED, FOR THE PERIOD DECEMBER 23, 1945, TO JUNE 30, 1954. THE PAYMENT PROPOSED WAS BASED ON THE CORRECTIONS WHICH WERE MADE IN MR. HARRIS' COAST GUARD RECORDS FOLLOWING APPROVAL BY THE SECRETARY OF THE TREASURY OF THE PROCEEDINGS AND FINDINGS OF THE BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST GUARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED, 5 U.S.C. 191A. IT WAS HELD THAT UNDER THE APPLICABLE PROVISIONS OF LAW MR. HARRIS PROPERLY HAS BEEN PLACED ON THE RETIRED LIST OF THE COAST GUARD RESERVE IN THE RANK OF LIEUTENANT (JG) AND THAT, IN THE ABSENCE OF A SPECIFIC DETERMINATION BY THE SECRETARY OF THE TREASURY UNDER THE PROVISIONS OF SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS ADDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 3501 (B) (2), THAT MR. HARRIS SERVED SATISFACTORILY IN THE HIGHER RANK OF LIEUTENANT UNDER A TEMPORARY APPOINTMENT DURING THE PERIOD OCTOBER 23, 1945, TO DECEMBER 22, 1945, (OR A FURTHER CORRECTION IN HIS COAST GUARD RECORDS UNDER THE PROVISIONS OF 5 U.S.C. 191A) NO PROPER BASIS WAS PRESENTED TO PAY HIM THE RETIRED PAY OF A LIEUTENANT.

THE ENCLOSURES RECEIVED WITH YOUR LETTER OF MAY 23, 1955, INCLUDE MR. HARRIS' LETTER OF MARCH 5, 1955, ADDRESSED TO COAST GUARD DISBURSING OFFICER, COAST GUARD HEADQUARTERS, REQUESTING THAT HIS CASE BE RESUBMITTED HERE FOR CONSIDERATION OF THE FOLLOWING TWO QUESTIONS:

"A. WAS THE PERMANENT COMMISSION OF LIEUTENANT WHICH WAS ISSUED TO ME BY THE SECRETARY OF THE NAVY ON DECEMBER 4, 1945 EFFECTIVE ON DECEMBER 22, 1945 SO AS TO ENTITLE ME TO RETIREMENT RANK OF LIEUTENANT UNDER THE LAW?

"B. DOES THE DETERMINATION OF SATISFACTORY SERVICE IN THE RANK OF LIEUTENANT UNDER A TEMPORARY APPOINTMENT UPON WHICH THE ISSUANCE OF THE PERMANENT COMMISSION WAS PREDICATED CONSTITUTE SATISFACTORY EVIDENCE THAT MY SERVICE IN THE RANK OF LIEUTENANT HAS ALREADY BEEN DETERMINED SATISFACTORY BY THE SECRETARY OF THE NAVY?

MR. HARRIS HAS FURNISHED A PHOTOSTATIC COPY OF HIS PERMANENT APPOINTMENT AS A LIEUTENANT IN THE COAST GUARD RESERVE TO RANK FROM OCTOBER 3, 1945. SUCH PERMANENT APPOINTMENT WAS ISSUED BY THE SECRETARY OF THE NAVY "BY DIRECTION OF THE PRESIDENT" ON DECEMBER 4, 1945. THE APPOINTMENT, HOWEVER, WAS TENDERED TO MR. HARRIS ON THE AUTHORITY OF THE SECRETARY OF THE NAVY'S LETTER TO THE COMMANDANT, U.S. COAST GUARD, DATED AUGUST 11, 1945, AND SIGNED "BY DIRECTION OF THE PRESIDENT," READING AS FOLLOWS:

"1. COMMISSIONER, COMMISSIONED WARRANT AND WARRANT OFFICERS OF THE COAST GUARD RESERVE, HERETOFORE OR HEREAFTER RELEASED FROM ACTIVE DUTY, MAY BE PERMANENTLY PROMOTED TO THE SAME RANKS AND DATES OF RANK HELD BY THEM FOR TEMPORARY SERVICE UNDER THE ACT OF JULY 24, 1941, AS AMENDED, AT THE TIME OF RELEASE FROM ACTIVE DUTY.

"2. THIS AUTHORIZATION APPLIES ONLY IN THE CASE OF THOSE OFFICERS WHOSE SERVICES WERE SATISFACTORY IN THE PERFORMANCE OF ACTIVE DUTY. SUCH PERMANENT PROMOTIONS MAY BE EFFECTED WITHOUT EXAMINATION, AND SHALL BEGIN WITH THE DATE OF ACCEPTANCE AND TAKING OF THE REQUIRED OATH.'

IT IS CLEARLY SHOWN ON THE PHOTOSTATIC COPY OF ACCEPTANCE AND OATH OF OFFICE (FORM NAVCG 9556A), FORWARDED HERE AS ONE OF THE ENCLOSURES WITH YOUR LETTER OF MAY 23, 1955, THAT MR. HARRIS DID NOT EXECUTE AND SUBSCRIBE TO THE OATH OF OFFICE UNTIL DECEMBER 28, 1945. IN VIEW OF THE SPECIFIC CONDITIONS PRESCRIBED IN THE BASIC LETTER OF AUTHORITY DATED AUGUST 11, 1945, AND SINCE MR. HARRIS DID NOT TAKE THE REQUIRED OATH OF OFFICE UNTIL DECEMBER 28, 1945, HIS PERMANENT APPOINTMENT AS A LIEUTENANT IN THE U.S. COAST GUARD RESERVE DID NOT BECOME EFFECTIVE BEFORE THAT DATE. UNDER SUCH CIRCUMSTANCES MR. HARRIS' OATH OF OFFICE, EXECUTED BY HIM ON DECEMBER 28, 1945, DID NOT RELATE BACK TO DECEMBER 22, 1945, THE DATE THAT HE ACTUALLY ACCEPTED THE APPOINTMENT. COMPARE DECISION OF APRIL 11, 1925, 4 COMP. GEN. 845, AND DECISION OF FEBRUARY 26, 1942, 21 COMP. GEN. 817. IN ANY EVENT, MR. HARRIS MUST RELY ON THE CORRECTION OF HIS RECORDS IN ORDER TO BE ENTITLED TO ANY RETIRED PAY AND HIS RECORDS, AS CORRECTED, SHOW THAT HE BECAME DISABLED IN OCTOBER 1945 WHILE HE WAS SERVING AS A LIEUTENANT (JG) AND THAT HE WAS PLACED ON THE DISABILITY RETIRED LIST AS OF DECEMBER 23, 1945, IN THE RANK OF LIEUTENANT (JG).

AS POINTED OUT IN THE DECISION OF JANUARY 28, 1955, IT IS CLEAR THAT THE OFFICER'S RIGHT TO PHYSICAL DISABILITY RETIREMENT PAY DID NOT ARISE PRIOR TO THE DATE ON WHICH HIS COAST GUARD RECORDS WERE CORRECTED AS A RESULT OF THE APPROVED FINDINGS OF THE CORRECTION BOARD CONVENED IN HIS CASE. MAY BE ASSUMED THAT IN DECEMBER 1945 MR. HARRIS WAS DEEMED TO MEET THE CONDITIONS PRESCRIBED IN THE SECRETARY OF THE NAVY'S LETTER OF AUGUST 11, 1945, WHICH APPEAR TO FORM THE BASIS FOR HIS PERMANENT APPOINTMENT, EFFECTIVE AS OF DECEMBER 28, 1945, AS A LIEUTENANT IN THE U.S. COAST GUARD RESERVE. IT IS OBVIOUS, HOWEVER, THAT SUCH ACTION TAKEN PRIOR TO THE DATE OF ENACTMENT OF THE ACT OF FEBRUARY 21, 1946, AS WELL AS PRIOR TO THE DATE ON WHICH THE OFFICER'S RIGHT TO RETIREMENT PAY AROSE, PROPERLY MAY NOT BE CONSIDERED AS CONSTITUTING A DETERMINATION OF SATISFACTORY SERVICE BY THE SECRETARY CONCERNED, MADE UNDER THE PROVISIONS AND FOR THE SPECIFIC PURPOSES OF SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, 34 U.S.C. 350I (B) (2). FURTHERMORE, THE ACTION TAKEN IN MR. HARRIS' CASE UNDER THE AUTHORITY OF THE SECRETARY OF THE NAVY'S LETTER OF AUGUST 11, 1945, DID NOT SERVE TO COMPROMISE OR LIMIT THE DISCRETIONARY AUTHORITY VESTED IN THE SECRETARY OF THE TREASURY BY THE EXPRESS PROVISIONS OF SECTION 10 (B) (2) AS SUBSEQUENTLY AMENDED ON FEBRUARY 21, 1946.

THE GREATER RETIRED PAY BENEFITS PRESCRIBED IN SECTION 10 (B) (2) OF THE 1941 ACT, AS AMENDED, ACCRUE TO AN INDIVIDUAL WHOSE STATUS BRINGS HIM WITHIN THE SCOPE OF THOSE STATUTORY PROVISIONS ONLY UPON A DETERMINATION BY THE SECRETARY OF THE DEPARTMENT CONCERNED THAT SUCH INDIVIDUAL SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT. THE AUTHORITY EXPRESSLY VESTED IN THE SECRETARIES CONCERNED IS WHOLLY DISCRETIONARY AND ADMINISTRATIVE IN NATURE. IT IS WELL ESTABLISHED THAT WHERE A STATUTE GIVES A DISCRETIONARY POWER TO AN OFFICER TO BE EXERCISED BY HIM UPON HIS OWN OPINION OF CERTAIN FACTS HE IS THE SOLE AND EXCLUSIVE JUDGE OF THE EXISTENCE OF THOSE FACTS. DECISION OF OCTOBER 6, 1954, B-116582, 34 COMP. GEN. 161. THE ACTION TAKEN IN THIS CASE BY THE SECRETARY OF THE TREASURY, UPON RECOMMENDATIONS OF THE COAST GUARD, HAS HADE THE EFFECT OF PLACING MR. HARRIS AS NEARLY AS POSSIBLE IN THE SAME POSITION HE WOULD HAVE OCCUPIED HAD HE BEEN RELEASED FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE ON DECEMBER 22, 1945, BY REASON OF PERMANENT PHYSICAL DISABILITY INCURRED AS AN INCIDENT OF HIS COAST GUARD SERVICE AND IMMEDIATELY PLACED AS A LIEUTENANT (JG) ON THE RETIRED LIST OF THE U.S. COAST GUARD RESERVE THE NEXT DAY, DECEMBER 23, 1945. THAT ACTION IS DEEMED TO ACCORD WITH THE INTENT AND PURPOSE OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, AUTHORIZING THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE AND THE SECRETARY OF THE TREASURY (WITH RESPECT TO THE COAST GUARD) TO CORRECT ANY MILITARY OR NAVAL RECORD "WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE" AND FURTHER PROVIDING THAT "CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHERE PROCURED BY MEANS OF FRAUD.'

THE REASONS WHICH MAY HAVE CAUSED THE SECRETARY OF THE TREASURY TO DECLINE TO MAKE A DETERMINATION OF SATISFACTORY SERVICE AS A LIEUTENANT IN MR. HARRIS' CASE LIE OUTSIDE THE JURISDICTION OF THIS OFFICE AND IN THE ABSENCE OF SUCH A DETERMINATION THE PROVISIONS OF SECTION 10 (B) (2) OF THE 1941 ACT, AS AMENDED, REMAIN INOPERATIVE TO CONFER ON MR. HARRIS A RIGHT TO RETIRED PAY OF A GRADE HIGHER THAN LIEUTENANT (JG). ACCORDINGLY NO PROPER BASIS IS PRESENTED TO PAY HIM THE RETIRED PAY OF A LIEUTENANT AND THE CONCLUSION REACHED IN OUR DECISION OF JANUARY 28, 1955, B-121773, IS, THEREFORE, AFFIRMED.