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B-145843, AUGUST 14, 1961, 41 COMP. GEN. 110

B-145843 Aug 14, 1961
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PAY - SERVICE CREDITS - TEMPORARY HIGHER GRADE APPOINTMENT - SATISFACTORY SERVICE DETERMINATIONS - DUTY REQUIREMENT ALTHOUGH NO MINIMUM AMOUNT OF SERVICE IS SPECIFIED IN 10 U.S.C. 1372 BEFORE A DETERMINATION MAY BE MADE BY THE SECRETARY OF THE ARMED FORCE CONCERNED THAT A MEMBER OF THE UNIFORMED SERVICES HAS SERVED SATISFACTORILY IN A HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT TO BE ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE. THE STATUTE MUST BE CONSTRUED AS CONTEMPLATING THAT THE DETERMINATIONS WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE MEMBER IN THAT GRADE. FOR UNLESS ACTIVE DUTY IS ACTUALLY PERFORMED IN THE TEMPORARY GRADE UNDER CONDITIONS REQUIRING DUTY COMPARABLE TO THAT ENCOUNTERED DURING A NORMAL TOUR OF DUTY.

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B-145843, AUGUST 14, 1961, 41 COMP. GEN. 110

PAY - SERVICE CREDITS - TEMPORARY HIGHER GRADE APPOINTMENT - SATISFACTORY SERVICE DETERMINATIONS - DUTY REQUIREMENT ALTHOUGH NO MINIMUM AMOUNT OF SERVICE IS SPECIFIED IN 10 U.S.C. 1372 BEFORE A DETERMINATION MAY BE MADE BY THE SECRETARY OF THE ARMED FORCE CONCERNED THAT A MEMBER OF THE UNIFORMED SERVICES HAS SERVED SATISFACTORILY IN A HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT TO BE ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE, THE STATUTE MUST BE CONSTRUED AS CONTEMPLATING THAT THE DETERMINATIONS WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE MEMBER IN THAT GRADE, FOR UNLESS ACTIVE DUTY IS ACTUALLY PERFORMED IN THE TEMPORARY GRADE UNDER CONDITIONS REQUIRING DUTY COMPARABLE TO THAT ENCOUNTERED DURING A NORMAL TOUR OF DUTY, THERE WOULD BE NO EVIDENCE UPON WHICH A DETERMINATION OF SATISFACTORY SERVICE COULD BE MADE. SERVICE BY AN ENLISTED MARINE CORPS MEMBER IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER ON ONLY ONE DAY, ON WHICH THE MEMBER DID NOT PERFORM ANY OF THE DUTIES NORMALLY REQUIRED OF AN OFFICER ON ACTIVE DUTY, DOES NOT CONSTITUTE A SUFFICIENT BASIS FOR A DETERMINATION BY THE SECRETARY OF THE NAVY THAT THE MEMBER SERVED SATISFACTORILY IN THE HIGHER GRADE WITHIN THE MEANING OF 10 U.S.C. 1372, WHICH CONTEMPLATES THAT THE DETERMINATION WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE MEMBER IN THAT GRADE, AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 14, 1961:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1961, REQUESTING A DECISION WITH RESPECT TO THE PROPER BASIS (GRADE) ON WHICH TO COMPUTE THE DISABILITY RETIRED PAY OF EARNEST B. YARNELL, U.S. MARINE CORPS, RETIRED. YOUR REQUEST WAS ASSIGNED NO. DO-MC-577 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE PERTINENT FACTS RELATING TO MR. YARNELL'S RETIRED PAY STATUS ARE REPORTED BY YOU TO BE AS FOLLOWS:

(1) HE ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE ON MAY 14, 1946, FOLLOWING HIS RELEASE FROM ACTIVE DUTY.

(2) HE WAS ASSIGNED TO ACTIVE DUTY AT HIS HOME FOR ONE DAY, JULY 28, 1947; WAS TEMPORARILY PROMOTED ON THAT DAY TO COMMISSIONED WARRANT OFFICER UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND REVERTED TO INACTIVE STATUS AS A WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE ON THE SAME DAY.

(3) ON MARCH 16, 1948, HE ACCEPTED A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE AND WAS DISCHARGED ON FEBRUARY 24, 1949.

(4) HE ENLISTED IN THE REGULAR MARINE CORPS ON FEBRUARY 25, 1949, AND THEREAFTER HE SERVED CONTINUOUSLY ON ACTIVE DUTY THROUGH APRIL 30, 1961, BEING TRANSFERRED EFFECTIVE MAY 1, 1961, TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS IN HIS ENLISTED STATUS IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1202.

(5) HE WAS ADVANCED ON THE TEMPORARY DISABILITY RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (W-2) UPON A DETERMINATION BY THE SECRETARY OF THE NAVY UNDER AUTHORITY OF CLAUSE (2), 10 U.S.C. 1372, THAT THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE HAD "SERVED SATISFACTORILY" WAS THAT OF COMMISSIONED WARRANT OFFICER.

AS INDICATED ABOVE, MR. YARNELL WAS TEMPORARILY PROMOTED ON JULY 28, 1947, TO THE CURRENTLY EQUIVALENT GRADE OF COMMISSIONED WARRANT OFFICER (W -2) AND THE SOLE ISSUE PRESENTED IN YOUR REQUEST FOR A DECISION IS WHETHER HIS "SERVICE" IN SUCH HIGHER TEMPORARY GRADE ON THAT ONE DAY WAS OF SUCH NATURE AS TO BRING HIS RETIRED PAY STATUS WITHIN THE SCOPE AND PURVIEW OF CLAUSE (2), 10 U.S.C. 1372, SO AS TO ENTITLE HIM TO COMPUTE HIS DISABILITY RETIRED PAY ON THE BASIS OF SUCH HIGHER GRADE. 10 U.S.C. 1372 PROVIDES, IN PERTINENT PART, 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:

(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.

A VERY NEARLY IDENTICAL QUESTION AROSE IN THE CASE OF STANLEY E. RAUB, U.S. NAVAL RESERVE, RETIRED, WHICH WAS DECIDED BY US ON JULY 7, 1961, 41 COMP. GEN. 11. A COPY OF THAT DECISION IS ENCLOSED FOR YOUR INFORMATION. MR. RAUB (WHILE A MEMBER OF THE U.S. MARINE CORPS RESERVE IN AN INACTIVE DUTY STATUS LIKE MR. YARNELL) WAS ASSIGNED TO ACTIVE DUTY AT HIS HOME FOR ONE DAY ONLY, JULY 28, 1947, AND WAS TEMPORARILY PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, TO THE CURRENTLY EQUIVALENT GRADE OF COMMISSIONED WARRANT OFFICER (W-2). LATER, FOLLOWING HIS DISCHARGE FROM THE MARINE CORPS RESERVE, MR. RAUB SERVED ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE NAVAL RESERVE FROM JUNE 3, 1949, TO MAY 31, 1960, BEING PLACED ON THE NAVAL RESERVE RETIRED LIST EFFECTIVE JUNE 1, 1960, IN HIS ENLISTED GRADE AS PROVIDED IN 10 U.S.C. 6327. UNDER THE PROVISIONS OF 10 U.S.C. 6151 (A), EACH MEMBER, OTHER THAN A RETIRED MEMBER, OF THE NAVY OR MARINE CORPS IS ENTITLED, WHEN RETIRED, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH THE INDIVIDUAL CONCERNED "SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT" AS DETERMINED BY THE SECRETARY OF THE NAVY. IN ACCORDANCE WITH THOSE STATUTORY PROVISIONS MR. RAUB WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (W-2) ON THE BASIS THAT HE HAD TEMPORARILY HELD AND "SERVED SATISFACTORILY" IN THAT GRADE ON JULY 28, 1947.

IT WAS POINTED OUT IN THE DECISION OF JULY 7, 1961, THAT UNDER THE APPLICABLE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED, MR. RAUB HAD HELD THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER ON ONE DAY ONLY, JULY 28, 1947. IN THAT CONNECTION IT WAS STATED THAT WHILE NO MENTION IS MADE IN SECTION 6151 (A), TITLE 10, U.S. CODE, TO THE AMOUNT OF SERVICE REQUIRED BEFORE THE SECRETARY OF THE NAVY COULD DETERMINE THAT A MEMBER HAD "SERVED SATISFACTORILY" IN A HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT, IT IS OBVIOUS THAT UNLESS ACTIVE DUTY ACTUALLY IS PERFORMED IN THE TEMPORARY GRADE UNDER CONDITIONS REQUIRING DUTY WHICH IS COMPARABLE TO THAT ENCOUNTERED DURING A NORMAL TOUR OF ACTIVE DUTY THERE IS NO EVIDENCE UPON WHICH A DETERMINATION OF SATISFACTORY SERVICE COULD BE MADE. REFERRING TO AN EXAMINATION OF COMPARABLE STATUTORY PROVISIONS DISCLOSING THAT IT HAS BEEN THE POLICY OF THE CONGRESS TO REQUIRE A SUBSTANTIAL AMOUNT OF SERVICE FOR SUCH A DETERMINATION (CITING IN PARTICULAR 10 U.S.C. 1371 WHICH IS EXPRESSLY APPLICABLE TO WARRANT OFFICERS AND WHICH REQUIRES SATISFACTORY ACTIVE DUTY SERVICE "FOR A PERIOD OF MORE THAN 30 DAYS"), IT WAS CONCLUDED THAT THE LAW CONTEMPLATES THAT THE DETERMINATION BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE SERVICE OF THE OFFICER IN THAT GRADE. IT WAS FURTHER POINTED OUT IN THE DECISION OF JULY 7, 1961, THAT ARMY AND AIR FORCE OFFICERS MUST HAVE SERVED ON ACTIVE DUTY SATISFACTORILY AS DETERMINED BY THE SECRETARY CONCERNED FOR NOT LESS THAN 6 MONTHS (SEE 10 U.S.C. 3963 AND 8963, RESPECTIVELY) AND THAT UNDER OTHER COMPARABLE STATUTORY PROVISIONS INCLUDING 10 U.S.C. 1372, WHERE NO MINIMUM PERIOD OF SERVICE IS SPECIFIED, THE ARMY AND THE AIR FORCE REQUIRE SERVICE OF AT LEAST 6 MONTHS FOR THE PURPOSE OF BASING A DETERMINATION OF "SATISFACTORY SERVICE" IN SUCH HIGHER GRADE OR RANK. IN THIS LATTER CONNECTION, SEE ROBERTS V. UNITED STATES, CT. CL. NO. 247-59, DECIDED NOVEMBER 2, 1960.

THE RECORD INDICATES THAT MR. YARNELL SERVED IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER ON ONLY ONE DAY, JULY 28, 1947, AND THAT ON THAT DAY HE PERFORMED NONE OF THE DUTIES NORMALLY REQUIRED OF AN OFFICER ON ACTIVE DUTY. IN THOSE CIRCUMSTANCES, THE BASIS FOR THE DETERMINATION THAT HE SERVED SATISFACTORILY IN SUCH HIGHER GRADE WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 1372 IS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT THERE IS AUTHORITY FOR PAYING HIM INCREASED RETIRED PAY COMPUTED ON THE PAY OF THAT HIGHER GRADE. SEE CHARLES V. UNITED STATES, 19 CT.1CL. 316, AND LONGWILL V. UNITED STATES, 17 CT.1CL. 288. ..END :

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