B-85471, AUGUST 10, 1949, 29 COMP. GEN. 64

B-85471, AUGUST 10, 1949, 29 COMP. GEN. 64

ACTIVE-DUTY PAY AND ALLOWANCES - RETIRED NAVY OFFICERS ADVANCED ON RETIRED LIST NAVY OFFICERS OF THE GRADE OR RANK OF CAPTAIN OR BELOW, EITHER PERMANENT OR TEMPORARY, WHO WERE SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT UNDER SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 AND, BY REASON THEREOF, PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, WOULD NOT BE ENTITLED TO BE RECALLED TO ACTIVE DUTY IN SUCH HONORARY RANK AND RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF THAT RANK. 28 COMP. GEN. 531, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 10, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 8, 1949, WITH ENCLOSURE, REQUESTING DECISION AS TO WHETHER AN ENLISTED MAN OF THE REGULAR NAVY WHO SERVED ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS A LIEUTENANT PRIOR TO JULY 1, 1946, AND WAS RETIRED JUNE 1, 1948, FOR PHYSICAL DISABILITY PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED, 34 U.S.C. 350G (A), AND SECTION 1453, REVISED STATUTES, AS AMENDED, 34 U.S.C. 417, AND WHO WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, IS ENTITLED, UNDER SECTION 412 (A) OF OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, UPON RECALL TO ACTIVE DUTY, TO ACTIVE-DUTY PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER.

SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 874, PROVIDES AS FOLLOWS:

ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT OFFICERS ON A PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT AND THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN: PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER RECALLED TO ACTIVE DUTY, MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE RETIRED LIST: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY IN THE CASE OF ANY OFFICER WHO HAS BEEN SO COMMENDED IF THE ACT OR SERVICE JUSTIFYING THE COMMENDATION WAS PERFORMED AFTER DECEMBER 31, 1946: PROVIDED FURTHER, THAT NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO INCREASE THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER PLACED UPON THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE: PROVIDED FURTHER, THAT OFFICERS OF THE CLASSES DESCRIBED IN THIS SUBSECTION WHO HAVE BEEN RETIRED PRIOR TO THE DATE OF APPROVAL OF THIS ACT SHALL BE ENTITLED TO THE BENEFITS OF THIS SUBSECTION FROM THE DATE OF APPROVAL OF THIS ACT: AND PROVIDED FURTHER, THAT NOTHING IN THIS SUBSECTION SHALL BE HELD TO REDUCE THE RETIRED RANK OR PAY TO WHICH AN OFFICER WOULD BE ENTITLED UNDER OTHER PROVISION OF LAW.

IN DECISION OF MARCH 21, 1949, B-78774, 28 COMP. GEN. 531, THERE WAS CONSIDERED, INTER ALIA, THE QUESTION WHETHER A PERMANENT COMMISSIONED OFFICER OF THE NURSE CORPS, REGULAR NAVY, WHO WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AND WAS PLACED ON THE RETIRED LIST WITH THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, IS ENTITLED UNDER SECTION 412 (A), SUPRA, IF ASSIGNED TO ACTIVE DUTY SUBSEQUENT TO RETIREMENT, TO BE RECALLED IN HER HIGHER RETIRED RANK AND RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HIGHER RANK. THAT DECISION IT WAS STATED IN PART AS FOLLOWS:

THE PROVISIONS OF THE SAID SECTION 412 (A) ARE APPLICABLE TO " ALL OFFICERS OF THE NAVY," MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL), WHICH WOULD INCLUDE OFFICERS OF THE NAVY NURSE CORPS COMMISSIONED IN THE REGULAR NAVY PURSUANT TO SECTION 203 OF THE ARMY-NAVY NURSES ACT OF 1947, 61 STAT. 47. CONSEQUENTLY, AN OFFICER OF THE NAVY NURSE CORPS WHO HAS BEEN COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND WHO OTHERWISE IS ELIGIBLE FOR RETIREMENT UNDER OTHER PROVISIONS OF LAW, WOULD BE ENTITLED, UPON RETIREMENT, TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE, EITHER PERMANENT OR TEMPORARY, IN WHICH SERVING AT THE TIME OF RETIREMENT. IT IS APPARENT THAT SECTION 412 (A) OF THE SAID ACT DOES NOT AUTHORIZE AN OFFICER SO COMMENDED TO RECEIVE RETIRED PAY BASED UPON SUCH HIGHER HONORARY RANK AND RECEIVE ACTIVE DUTY PAY AND ALLOWANCES OF SUCH RANK. THE FACT THAT AN OFFICER MAY BE ACCORDED HIGHER HONORARY RANK ON THE RETIRED LIST DOES NOT AFFECT THE OFFICE HELD BY HIM UPON RETIREMENT. THAT IS TO SAY, A LIEUTENANT OF THE NAVY MAY BE PLACED ON THE RETIRED LIST AS A LIEUTENANT COMMANDER UNDER THE PROVISIONS OF SECTION 412 (A) BUT HIS OFFICE REMAINS THAT OF LIEUTENANT. SEE 22 COMP. GEN. 328, 329. AND IN THE EVENT SUCH AN OFFICER IS ASSIGNED TO ACTIVE DUTY AFTER RETIREMENT, THERE IS NOTHING IN THE SAID SECTION 412 (A) WHICH MAY BE VIEWED AS ENTITLING SUCH AN OFFICER TO BE ASSIGNED TO ACTIVE DUTY IN SUCH HONORARY RANK WITH THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. THE FIRST PROVISO IN THE SAID SECTION 412 (A) SPECIFICALLY AUTHORIZES OFFICERS SO COMMENDED, HOLDING RANK ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY SOLELY BY VIRTUE OF SUCH COMMENDATION, TO BE RECALLED TO ACTIVE DUTY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, IN THE RANK HELD ON THE RETIRED LIST OR THE RANK TO WHICH THEY OTHERWISE WOULD BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK BY VIRTUE OF SUCH COMMENDATION. HOWEVER, THERE IS NO SIMILAR PROVISION IN THE SAID ACT WHICH MAY BE VIEWED AS REQUIRING OR PERMITTING A SPECIALLY COMMENDED RETIRED OFFICER OF THE RANK OF CAPTAIN OR BELOW TO BE RECALLED TO ACTIVE DUTY IN HIS HONORARY RANK AND RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION ENTITLING OFFICERS SO COMMENDED TO BE RECALLED TO ACTIVE DUTY WITH SUCH HONORARY RANK, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT SUCH A RETIRED OFFICER, UPON RECALL TO ACTIVE DUTY, WOULD BE ENTITLED TO BE RECALLED IN SUCH HONORARY RANK AND RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HONORARY RANK.

ON THE BASIS OF SUCH DECISION, NO OFFICER OF THE NAVY OF THE GRADE OR RANK OF CAPTAIN OR BELOW, EITHER PERMANENT OR TEMPORARY, WHO WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT UNDER SECTION 412 (A), SUPRA, WOULD BE ENTITLED TO BE RECALLED TO ACTIVE DUTY IN SUCH HONORARY RANK AND RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. ACCORDINGLY, THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.