A-8620, MARCH 23, 1925, 4 COMP. GEN. 789

A-8620: Mar 23, 1925

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ALLOWANCES OF A LIEUTENANT COMMANDER WITH OVER 40 YEARS' SERVICE AT DATE OF RETIREMENT IS ENTITLED TO RETIRED PAY COMPUTED UPON THE PAY OF A COMMANDER. 1925: I HAVE YOUR LETTER OF MARCH 14. WILL ATTAIN THE AGE OF SIXTY-FOUR YEARS ON MARCH 24. WILL THEREFORE BE RETIRED FROM ACTIVE SERVICE ON THAT DATE BY DIRECTION OF THE PRESIDENT. HE WILL. HAVE HAD MORE THAN FORTY-ONE YEARS' SERVICE. DISTRICT SUPERINTENDENT TUNNELL IS A COMMISSIONED OFFICER OF THE COAST GUARD (SEC. 2 OF THE ACT APPROVED JANUARY 28. HE IS THE SENIOR DISTRICT SUPERINTENDENT. IT IS REQUESTED THAT YOU ADVISE ME WHETHER DISTRICT SUPERINTENDENT WILLIAM EDWARD TUNNEL. THE HIGHEST RANK OF THE LINE OFFICERS AND ENGINEER OFFICERS OF THE ACTIVE LIST OF THE COAST GUARD IS LIMITED TO CAPTAIN.

A-8620, MARCH 23, 1925, 4 COMP. GEN. 789

COAST GUARD - RETIRED PAY OF A DISTRICT SUPERINTENDENT UNDER THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, A DISTRICT SUPERINTENDENT OF THE COAST GUARD WITH THE RANK, PAY, AND ALLOWANCES OF A LIEUTENANT COMMANDER WITH OVER 40 YEARS' SERVICE AT DATE OF RETIREMENT IS ENTITLED TO RETIRED PAY COMPUTED UPON THE PAY OF A COMMANDER, NOTWITHSTANDING THE LIMITATION IN RANK OF DISTRICT SUPERINTENDENTS ON THE ACTIVE LIST TO NOT ABOVE THAT OF LIEUTENANT COMMANDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 23, 1925:

I HAVE YOUR LETTER OF MARCH 14, 1925, AS FOLLOWS:

DISTRICT SUPERINTENDENT WILLIAM EDWARD TUNNELL, U.S. COAST GUARD, WILL ATTAIN THE AGE OF SIXTY-FOUR YEARS ON MARCH 24, 1925, AND WILL THEREFORE BE RETIRED FROM ACTIVE SERVICE ON THAT DATE BY DIRECTION OF THE PRESIDENT, IN CONFORMITY WITH THE PROVISIONS OF SECTION 4 OF THE ACT APPROVED APRIL 12, 1902 (32 STAT. 100) , AS EXTENDED BY SECTION 3 OF THE ACT APPROVED JANUARY 28, 1915 (38 STAT. 801) .

DISTRICT SUPERINTENDENT TUNNELL ORIGINALLY ENTERED THE LIFE SAVING SERVICE ON JANUARY 1, 1884, AND HAS SERVED CONTINUOUSLY AND CREDITABLY IN THE LIFE SAVING SERVICE AND IN THE COAST GUARD SINCE THAT DATE. HE WILL, THEN, WHEN RETIRED, HAVE HAD MORE THAN FORTY-ONE YEARS' SERVICE. SECTION 3 OF THE ACT APPROVED JANUARY 28, 1915 (38 STAT. 802) , PROVIDES THAT IN COMPUTING LENGTH OF SERVICE "FOR ANY PURPOSE" ALL CREDITABLE SERVICE IN THE LIFE SAVING SERVICE SHALL BE INCLUDED.

SECTION 3 OF THE ACT OF JANUARY 12, 1923 (42 STAT. 1131), PROVIDES AS FOLLOWS: "THAT HEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD FORTY YEARS' SERVICE SHALL RETIRE HE SHALL BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF HIS RETIREMENT * * *.'

DISTRICT SUPERINTENDENT TUNNELL IS A COMMISSIONED OFFICER OF THE COAST GUARD (SEC. 2 OF THE ACT APPROVED JANUARY 28, 1915, 38 STAT., 801) . HE IS THE SENIOR DISTRICT SUPERINTENDENT, AND AS SUCH HAS THE RANK, PAY, AND ALLOWANCES OF A LIEUTENANT COMMANDER IN THE COAST GUARD (SEC. 8 OF THE ACT APPROVED MAY 18, 1920, 41 STAT., 603, AND ACT APPROVED JUNE 5, 1920, 41 STAT., 879) .

IT IS REQUESTED THAT YOU ADVISE ME WHETHER DISTRICT SUPERINTENDENT WILLIAM EDWARD TUNNEL, U.S. COAST GUARD, SHOULD BE RETIRED ON MARCH 24, 1925, AS A DISTRICT SUPERINTENDENT WITH THE RANK OF COMMANDER AND WITH THE RETIRED PAY OF A COMMANDER IN THE COAST GUARD OF HIS LENGTH OF SERVICE, OR BE RETIRED AS A DISTRICT SUPERINTENDENT WITH HIS PRESENT RANK OF LIEUTENANT COMMANDER AND WITH THE RETIRED PAY OF A LIEUTENANT COMMANDER IN THE COAST GUARD. * * *

ASIDE FROM THE COMMANDANT AND ENGINEER IN CHIEF, THE HIGHEST RANK OF THE LINE OFFICERS AND ENGINEER OFFICERS OF THE ACTIVE LIST OF THE COAST GUARD IS LIMITED TO CAPTAIN, ACT OF JANUARY 12, 1923, 42 STAT. 1130, AND OF DISTRICT SUPERINTENDENTS, LIEUTENANT COMMANDER, ACTS OF MAY 18, 1920, 41 STAT. 603, AND JUNE 5, 1920, 41 STAT. 879. FOR THE RETIRED LIST SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, FIXES THE RANK OF COMMODORE AS THE HIGHEST RANK ON THE RETIRED LIST, THAT RANK TO CORRESPOND IN PAY WITH THAT OF A COMMODORE IN THE NAVY.

I UNDERSTAND THE POINT WHICH YOU DESIRE DECIDED IS WHETHER, WITH THE LIMITATION IN RANK OF DISTRICT SUPERINTENDENTS TO NOT ABOVE THAT OF LIEUTENANT COMMANDER, A RANK WITH PAY THEREOF HIGHER THAN THAT OF LIEUTENANT COMMANDER MAY BE GIVEN ON THE RETIRED LIST.

IT IS WITHIN THE JURISDICTION OF CONGRESS TO FIX THE PAY OF COMMISSIONED OFFICERS OF THE ACTIVE LIST OF THE COAST GUARD AND TO PLACE A LIMITATION THEREON AS TO THE MAXIMUM WHICH MAY BE PAID FOR ANY CORPS THEREOF. IT IS EQUALLY WITHIN ITS JURISDICTION TO PROVIDE FOR THE RATES OF RETIRED PAY. THIS HAS BEEN EXERCISED BY LIMITING THE PAY ON THE ACTIVE LIST TO THAT OF A CERTAIN RANK AND EXTENDING THE PAY FOR COMPUTATION OF THE RETIRED PAY TO THAT OF THE NEXT HIGHER RANK. WOOD V. UNITED STATES, 15 CT.CLS. 151; 107 U.S. 414.

A SOMEWHAT SIMILAR QUESTION WAS PRESENTED TO THE COMPTROLLER OF THE TREASURY IN 1903, 9 COMP. DEC. 515, VIZ, THAT OF AN OFFICER OF THE NAVY WHO OCCUPIED THE HIGHEST GRADE AND RELATIVE RANK AS AN ENGINEER OFFICER AND FOR WHOM AN ACT WAS PASSED PROVIDING THAT HE BE ADVANCED ON THE RETIRED LIST "TO THE NEXT HIGHER GRADE.' THE COMPTROLLER HELD:

* * * SINCE HE ALREADY OCCUPIED THE HIGHEST GRADE AND RELATIVE RANK AS A RETIRED ENGINEER OFFICER, IT WAS NOT POSSIBLE TO GIVE HIM A HIGHER GRADE IN THAT CORPS, AND IN ORDER TO GIVE THE ACT ANY EFFECTIVE OPERATION IT MUST BE CONSTRUED AS AUTHORIZING AN ADVANCEMENT OF ONE GRADE IN RANK ABOVE THAT WHICH HE OCCUPIED IN THE ENGINEER CORPS AT THE DATE WHEN HE WAS RETIRED. * * * (SEE ALSO 13 COMP. DEC. 617.)

IN THE CASE OF DISTRICT SUPERINTENDENT TUNNELL THERE HAS BEEN EXTENDED TO HIM BY THE ACT OF JANUARY 12, 1923, THE RIGHT TO HAVE HIS RETIRED PAY AS A DISTRICT SUPERINTENDENT COMPUTED UPON THE PAY OF A COMMANDER IN THE COAST GUARD.