B-149487, JULY 8, 1966, 46 COMP. GEN. 17

B-149487, JULY 8, 1966, 46 COMP. GEN. 17

PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - PERMANENT V. TEMPORARY RANK. THE COURT OF CLAIMS IN FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, HAVING DETERMINED THAT THE PLANTIFF RETIRED AS AN ENLISTED MAN FOR PHYSICAL DISABILITY SHOULD HAVE BEEN ADVANCED TO THE RANK OF FIRST LIEUTENANT, ALTHOUGH HE HAD HELD A "PERMANENT" AND NOT A "TEMPORARY" GRADE, AND THAT HE WAS ENTITLED TO THE PAY BENEFITS OF 10 U.S.C. 1372 (2) PROVIDING THAT ANY MEMBER OF THE ARMED FORCES RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205 IS ENTITLED TO A GRADE EQUIVALENT TO THE "HIGHEST TEMPORARY GRADE OR RANK" IN WHICH SATISFACTORY SERVICE WAS PERFORMED, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM WHICH RETIRED, THE RULE OF THE CASE MAY BE APPLIED TO ALL DISABILITY RETIREMENTS UNDER 10 U.S.C. 1372 (2) IN VIEW OF THE FACT CERTIORARI WILL NOT BE REQUESTED, ALTHOUGH THE COURT DISREGARDED THE EXPLICIT LANGUAGE RESTRICTING THE BENEFITS OF SECTION 1372 (2) TO THE "HIGHEST TEMPORARY GRADE OR RANK;, PAY - SEVERANCE - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT SEPARATION. ALTHOUGH THE PROVISIONS OF 10 U.S.C. 1372 ARE APPLICABLE ONLY IN A CASE WHERE A MEMBER OF THE ARMED FORCES IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204, OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205, WHERE THE PROVISIONS OF 10 U.S.C. 1212/A) (2) (B) (II) ARE FOR APPLICATION IN A CLOSELY COMPARABLE SITUATION IN COMPUTING THE DISABILITY SEVERANCE PAYMENT OF A MEMBER OF AN ARMED FORCE SEPARATED UNDER SECTION 1203 OR 1206 BY REASON OF PHYSICAL DISABILITY, THE RULE IN FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, SHOULD BE FOLLOWED; HOWEVER, ABSENT STATUTORY AMENDMENT THE CASE MAY NOT BE EXPANDED AND APPLIED TO RETIREMENT STATUTES SUCH AS 10 U.S.C. 3963/A), 3964, 6151, 8963/A) AND 8964 ON THE BASIS THE WORDS ,TEMPORARY GRADE OR RANK" ARE TO BE READ "TEMPORARY OR PERMANENT GRADE OR RANK", AND ONLY THE OFFICERS AND ENLISTED MEN WITHIN THE PURVIEW OF SECTION 1212/A) (2) (B) (II) WHO WERE PAID DISABILITY SEVERANCE PAY BELOW THEIR HIGHEST PERMANENT GRADES ARE ENTITLED TO RELIEF UNDER THE FRIESTEDT RULE.

TO THE SECRETARY OF DEFENSE, JULY 8, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 19, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) AND THE ENCLOSED COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 374, TRANSMITTED THEREWITH, REQUESTING AN ADVANCE DECISION CONCERNING THE EFFECT TO BE GIVEN TO THE DECISION IN FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, IN DISABILITY RETIREMENT AND OTHER RETIREMENT CASES. THE FOLLOWING THREE QUESTIONS ARE PRESENTED IN COMMITTEE ACTION NO. 374:

1. SHOULD THE SERVICES APPLY THE RULE OF THE FRIESTEDT CASE TO ALL DISABILITY RETIREMENTS TO WHICH 10 U.S.C. 1372/2) IS APPLICABLE?

2. IF THE ANSWER TO NO. 1 IS YES, SHOULD THE FRIESTEDT RULE BE APPLIED TO ALL OTHER STATUTES, SUCH AS 10 U.S.C. 1212/A) (2) (B) (II), 3963/A), 3964, 6151, 8963/A), AND 8964, UNDER WHICH THE AMOUNT OF SEVERANCE PAY OR RETIREMENT BENEFITS PAYABLE DEPENDS UPON A SERVICE IN THE "HIGHEST TEMPORARY GRADE?"

3. IF THE ANSWER TO ONE OR BOTH OF THE FIRST TWO QUESTIONS IS YES, ARE OFFICERS AND ENLISTED MEN PREVIOUSLY RETIRED OR PAID SEVERANCE PAY UNDER THE CITED STATUTES IN GRADES BELOW THEIR HIGHEST PERMANENT GRADES ENTITLED TO RELIEF UNDER THE FRIESTEDT RULE ?

SECTION 1372, TITLE 10, U.S.C. (ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 105), CODIFYING THOSE PROVISIONS OF SECTION 402/D) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 818, 819, APPLICABLE TO RETIRED GRADE PROVIDES AS FOLLOWS:

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(1) THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.

(2) THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM WHICH HE IS RETIRED.

(3) THE PERMANENT REGULAR OR RESERVE GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED AND WHICH WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

(4) THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

THE COURT OF CLAIMS HELD IN THE DECISION OF NOVEMBER 12, 1965, THAT FRIESTEDT WAS ENTITLED TO RETIRED PAY BENEFITS AS A FIRST LIEUTENANT UNDER THE PROVISIONS OF CLAUSE (2) OF SECTION 1372 RELATING TO "HIGHEST TEMPORARY GRADE OR RANK" IRRESPECTIVE OF THE FACT THAT THE HIGHEST GRADE IN WHICH THE PLAINTIFF, FRIESTEDT, HAD SERVED WAS THE "PERMANENT" GRADE OF FIRST LIEUTENANT AND THAT HE HAD NEVER SERVED OR HELD AT ANY TIME THE TEMPORARY GRADE OF FIRST LIEUTENANT. THE COURT'S CONCLUSION WAS BASED ON ITS PRIOR HOLDING IN GRAYSON V. UNITED STATES, 137 CT. CL. 779 (1957). QUOTING TWO PARAGRAPHS OF THAT DECISION THE COURT ADDED:

SO IN THIS CASE PLAINTIFF (FRIESTEDT) SERVED AS A FIRST LIEUTENANT AND SHOULD HAVE BEEN ADVANCED TO THAT RANK WHEN HE WAS RETIRED AS AN ENLISTED MAN FOR PHYSICAL DISABILITY. SEE, ALSO, TRACY V. UNITED STATES, 136 CT. CL. 211, 142 F. SUPP. 943 (1956).

IN LETTER OF DECEMBER 1, 1965, B-149487, THIS OFFICE STRONGLY URGED THE DEPARTMENT OF JUSTICE TO ATTEMPT TO GET A REVERSAL OF THE FRIESTEDT DECISION. OUR VIEW OF THE MATTER IS THAT THE EFFECT OF THIS DECISION, IF ALLOWED TO STAND, IS A JUDICIAL AMENDMENT OF 10 U.S.C. 1372/2), BOTH AS TO THE TYPE OF SERVICE SPECIFIED THEREIN (IN TEMPORARY OR PERMANENT GRADE) AND THE AUTHORITY FOR DETERMINING WHETHER OR NOT THE SERVICE IN QUESTION WAS SATISFACTORY (BY THE SECRETARY OF THE ARMED FORCE FROM WHICH HE IS RETIRED OR, IN THE ABSENCE OF SUCH A DETERMINATION, ON THE BASIS OF GOOD OR BETTER EFFICIENCY RATINGS). (ITALICS INDICATES ADDITIONS TO THE LAW BY JUDICAL AMENDMENT.)

THE COURT MAKES NO MENTION OF THE FACT THAT 10 U.S.C. 1372 IS LARGELY A CODIFICATION OF SECTION 402/D) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, WHICH ACT CONTAINED SECTION 513 (AUTHORIZING ADVANCEMENT TO THE HIGHEST GRADE SATISFACTORILY HELD DURING WORLD WAR I "UNDER A PERMANENT OR TEMPORARY APPOINTMENT"). UNTIL THE COURT EXPLAINS HOW THE CONGRESS COULD HAVE INTENDED TO EXPRESS THE SAME THOUGHT BY THE USE OF THE WORD "TEMPORARY" IN SECTION 402/D) AND THE WORDS "PERMANENT OR TEMPORARY" IN SECTION 513, IT HAS NOT FACED WHAT IN OUR VIEW IS THE REAL ISSUE IN THIS CASE. NO WEIGHT IS ADDED TO THE COURT'S DECISION BY CITING THE GRAYSON CASE, 137 CT. CL. 779 (1957), SINCE THERE TOO, THE COURT ELECTED NOT TO DISCUSS THE SIGNIFICANCE OF THE WORD "TEMPORARY" IN SECTION 203/A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 1002 (1952ED.), WHEN COMPARED TO THE WORDS "TEMPORARY OR PERMANENT" IN SECTION 302 OF THAT ACT, 10 U.S.C. 1036A (1952 ED.).

THE SECOND PARAGRAPH ON PAGE 4 OF THE COURT'S SLIP OPINION AMOUNTS TO A HOLDING THAT THE COURT IS A BETTER JUDGE OF THE INTENT OF THE CONGRESS THAN IS THE HOUSE OF REPRESENTATIVES AND THAT THE HOUSE PERFORMED ACTS OF NO LEGISLATIVE SIGNIFICANCE IN PASSING THE BILLS THERE MENTIONED---THE OBVIOUS PURPOSE OF WHICH WAS TO CHANGE THE CLEAR AND UNAMBIGUOUS PROVISIONS OF 10 U.S.C. 1372---SINCE THE COURT HAD ALREADY DECIDED THAT A SIMILAR LAW (SECTION 203/A) OF THE 1948 ACT) MUST BE VIEWED AS INCLUDING LANGUAGE SUCH AS THE AMENDING LANGUAGE CONTAINED IN SUCH BILLS, BECAUSE, IN THE COURT'S VIEW, THE CONGRESS SHOULD OR MUST HAVE INTENDED WHAT IT FAILED TO EXPRESS. IT IS BELIEVED TO BE BEYOND THE AUTHORITY OF THE COURT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE HOUSE OF REPRESENTATIVES AS TO MEANING OF LAWS WHICH HAVE BEEN ENACTED, ON THE BASIS OF NOTHING MORE TANGIBLE THAN ITS BELIEF THAT THE "CONGRESS COULD NOT HAVE INTENDED" WHAT WAS CLEARLY PROVIDED. THE COURT SHOULD NOT, BY JUDICIAL INTERPRETATION, SUPPLY A PROVISION WHICH IT FEELS THAT THE CONGRESS SHOULD HAVE ENACTED.

THE ASSISTANT ATTORNEY GENERAL ADVISED THIS OFFICE IN LETTER OF APRIL 22, 1966, THAT THE DEPARTMENT OF JUSTICE "HAS DETERMINED THAT IT WILL NOT SEEK CERTIORARI IN THIS CASE" ALTHOUGH "THE DECISION APPEARS TO BE ERRONEOUS;,

WHILE THE COURT OF CLAIMS HAS SEEN FIT TO DISREGARD THE EXPLICIT LANGUAGE CONTAINED IN CLAUSE (2) OF SECTION 1372 RESTRICTING THE BENEFITS THEREIN PRESCRIBED TO "HIGHEST TEMPORARY GRADE OR RANK", IT IS UNDERSTOOD THAT THE DEFENDANT SUBMITTED FOR THE COURT'S CONSIDERATION ALL THE ARGUMENTS WHICH HAVE BEEN SUGGESTED AGAINST THE CONCLUSION REACHED. IN SUCH CIRCUMSTANCES, AN AFFIRMATIVE ANSWER TO QUESTION 1 APPEARS WARRANTED.

ALTHOUGH THE PROVISIONS OF SECTION 1372, TITLE 10, U.S. CODE, ARE APPLICABLE ONLY IN A CASE WHERE A MEMBER OF THE ARMED FORCES IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204, OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205, THE PROVISIONS OF 10 U.S.C. 1212/A) (2) (B) (II) ARE FOR APPLICATION IN A CLOSELY COMPARABLE SITUATION IN COMPUTING THE DISABILITY SEVERANCE PAYMENT OF A MEMBER OF AN ARMED FORCE WHO IS SEPARATED FROM THAT FORCE UNDER SECTION 1203 OR 1206 BY REASON OF PHYSICAL DISABILITY AND IT IS OUR VIEW THAT THE RULE OF THE FRIESTEDT CASE SHOULD BE APPLIED AND FOLLOWED IN SUCH A SITUATION. HOWEVER, WE CANNOT REACH THE SAME CONCLUSION WITH RESPECT TO THE OTHER STATUTORY PROVISIONS CITED IN QUESTION 2. THE COURT'S OPINION DOES NOT DISCLOSE ANY SOUND BASIS ON WHICH IT MAY BE EXPANDED AND APPLIED TO RETIREMENT STATUTES GENERALLY. IN OTHER WORDS, ON THE BASIS OF THE FRIESTEDT CASE WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT IN EACH CASE WHERE THE WORDS "TEMPORARY GRADE OR RANK" APPEAR IN RETIREMENT LEGISLATION IT WAS THE INTENTION OF THE CONGRESS, NOTWITHSTANDING THE EXACT LANGUAGE USED, THAT SUCH WORDS WERE TO BE READ "TEMPORARY OR PERMANENT GRADE OR RANK;, IF IT WAS THE DESIRE OF CONGRESS THAT SUCH LAWS SHOULD BE SO INTERPRETED, THERE HAS BEEN AMPLE OPPORTUNITY FOR THAT TO BE MADE CLEAR BY PROPER STATUTORY AMENDMENT. BUT NONE OF THE LEGISLATIVE PROPOSALS FOR THAT PURPOSE HAS TO DATE BEEN ENACTED. IN THE CIRCUMSTANCES, WE BELIEVE THAT IF THE RULE OF THE FRIESTEDT CASE IS TO BE EXTENDED TO RETIREMENT STATUTES GENERALLY IN THE ABSENCE OF FURTHER LEGISLATION, SUCH EXTENSION SHOULD BE MADE BY THE COURT IN CLEAR AND UNMISTAKABLE TERMS AND NOT BY THIS OFFICE. QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3 IS ANSWERED AFFIRMATIVELY AS TO THOSE CASES WHICH LIE WITHIN THE PURVIEW OF 10 U.S.C. 1212/A) (2) (B) (II) AND IN THE NEGATIVE AS TO ALL OTHER CASES.