B-100646, AUGUST 28, 1951, 31 COMP. GEN. 54

B-100646, AUGUST 28, 1951, 31 COMP. GEN. 54

PAY - ACTIVE DUTY; RETIRED - TEMPORARILY PROMOTED NAVY OFFICERS - EFFECT OF COMBAT COMMENDATION SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 WHICH PROVIDES GENERALLY THAT 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 SHALL, WHEN RETIRED, BE PLACED ON 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, IS NOT APPLICABLE TO RETIRED OFFICERS OF THE NAVY WHO ARE SO COMMENDED WHILE SERVING ON ACTIVE DUTY, OR TO RETIRED ENLISTED MEN OF THE NAVY SO COMMENDED WHILE SERVING UNDER A TEMPORARY COMMISSION. A RETIRED NAVY OFFICER OR RETIRED ENLISTED MAN, SERVING UNDER A TEMPORARY COMMISSION, PURPORTEDLY ADVANCED TO THE NEXT HIGHER GRADE THAN THAT HELD AT THE TIME OF RETIREMENT, UNDER THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, BY REASON OF HAVING BEEN SPECIALLY COMMENDED BY THE SECRETARY OF THE NAVY FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT WHILE SERVING ON ACTIVE DUTY MAY NOT, UPON SUBSEQUENT RECALL TO ACTIVE DUTY, RECEIVE THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, AUGUST 28, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1951, ENCLOSING A LETTER DATED NOVEMBER 9, 1950, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION ON CERTAIN QUESTIONS RELATING TO THE APPLICATION OF THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AS ORIGINALLY ENACTED, 61 STAT. 874.

THE LETTER OF THE BUREAU OF SUPPLIES AND ACCOUNTS PRESENTS TWO CASES AS TYPICAL OF THOSE GIVING RISE TO THE QUESTIONS, THE FIRST OF SUCH CASES BEING THAT OF AN OFFICER OF THE REGULAR NAVY WHO WAS RETIRED IN HIS PERMANENT RANK OF COMMANDER ON JULY 1, 1939, AND WHO SERVED ON ACTIVE DUTY FROM SEPTEMBER 28, 1939, TO NOVEMBER 2, 1946. AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY HE HELD THE RANK OF CAPTAIN, FOR TEMPORARY SERVICE, TO WHICH HE HAD BEEN ADVANCED PRIOR TO JULY 1, 1946. HE WAS SPECIALLY COMMENDED BY THE SECRETARY OF NAVY FOR AN ACT PERFORMED WHILE HE WAS SERVING ON ACTIVE DUTY DURING WORLD WAR II AND, ON AUGUST 8, 1950, IT WAS DETERMINED BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR THAT THE OFFICER WAS ELIGIBLE FOR THE SPECIAL BENEFITS OF THE SAID SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947.

THE SECOND CASE PRESENTED AS TYPICAL OF THOSE GIVING RISE TO YOUR REQUEST FOR DECISION RELATES TO AN ENLISTED MAN WHO WAS TRANSFERRED TO THE FLEET RESERVE AND RELEASED TO INACTIVE DUTY ON SEPTEMBER 2, 1931. HE WAS PLACED ON THE RETIRED LIST ON JUNE 1, 1941, AND ON DECEMBER 15, 1941, HE WAS CALLED TO ACTIVE DUTY. EVENTUALLY HE WAS APPOINTED TO THE RANK OF LIEUTENANT COMMANDER FOR TEMPORARY SERVICE WHICH RANK HE HELD AT THE TIME OF RELEASE FROM ACTIVE DUTY ON MARCH 17, 1947. ON JULY 2, 1950, HE WAS NOTIFIED OF HIS ADVANCEMENT TO THE RANK OF COMMANDER, EFFECTIVE AUGUST 7, 1947, PRESUMABLY UNDER THE PROVISIONS OF THE SAID SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947. IT IS STATED THAT THE ACT FOR WHICH HE WAS SPECIALLY COMMENDED WAS PERFORMED SUBSEQUENT TO HIS RETIREMENT WHILE HE WAS ON ACTIVE DUTY DURING WORLD WAR II.

ON THE STATED FACTS YOU REQUEST DECISION AS TO WHETHER, UNDER THE PROVISIONS OF THE SAID SECTION 412 (A) OF THE 1947 ACT, WHICH WAS EFFECTIVE AUGUST 7, 1947, AND SECTIONS 519 AND 520 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 834, THE MEMBERS IN QUESTION ARE ENTITLED TO RETIRED PAY AT THE RATE OF THREE FOURTHS OF THE ACTIVE DUTY PAY OF THE TEMPORARY RANK HELD ON DATE OF RELEASE FROM ACTIVE DUTY, RETROACTIVE TO AUGUST 7, 1947.

SECTION 412 (A) OF SUCH OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, AS ORIGINALLY ENACTED, PROVIDED, 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.

SUCH SUBSECTION WAS AMENDED BY SECTION 522A OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 835, BY DELETING THE WORDS "AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' THIS IS SUBJECT, HOWEVER, TO SECTIONS 519 AND 520 OF THE LATTER ACT, 63 STAT. 834, WHICH PROVIDES AS FOLLOWS:

SEC. 519. ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES OR ANY PERSON ENTITLED TO THE RIGHTS, BENEFITS, AND PRIVILEGES OF A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES, INCLUDING ANY PERSON ENTITLED TO THE BENEFITS PROVIDED IN THE ACT OF MAY 7, 1948 (62 STAT. 211), WHO ON THE DATE OF ENACTMENT OF THIS ACT, IS RECEIVING OR IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY PURSUANT TO ANY PROVISION OF LAW, SHALL, NOTWITHSTANDING THE PROVISIONS OF THIS ACT BE ENTITLED TO CONTINUE TO RECEIVE OR SHALL CONTINUE HIS ENTITLEMENT TO RECEIVE THE RETIRED OR RETIREMENT PAY WHICH SUCH MEMBER OR FORMER MEMBER IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY PRECEDING DATE OF ENACTMENT OF THIS ACT.

SEC. 520. ANY PROVISION OF LAW WHICH, ON THE DATE OF ENACTMENT OF THIS ACT, ENTITLES ANY PERSON TO BE RETIRED, TO RECEIVE PAY, RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY, OR OTHER MONETARY BENEFIT, AND WHICH IS DIRECTLY REPEALED, IMPLIEDLY REPEALED, OR AMENDED BY THE PROVISIONS OF THIS ACT, SHALL, IF THE ENTITLEMENT OF SUCH PERSON TO SUCH RETIREMENT, PAY, RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER MONETARY BENEFIT IS SAVED BY THE PROVISIONS OF THIS ACT, BE CONTINUED IN FULL FORCE AND EFFECT FOR SUCH ENTITLEMENT AND FOR SUCH A TIME AS SUCH ENTITLEMENT MAY EXIST.

IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED DECEMBER 2, 1946, NAVY DEPARTMENT COURT-MARTIAL ORDER NO. 12-1946, PAGE 391, THERE WAS CONSIDERED THE QUESTION AS TO WHETHER THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, AS AMENDED, 34 U.S.C. 404 (1), WHICH WERE QUITE SIMILAR TO THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, HAD ANY APPLICATION TO AN OFFICER WHO, WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT, WAS SPECIALLY COMMENDED FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED. IN REACHING A NEGATIVE CONCLUSION IT WAS POINTED OUT BY THE JUDGE ADVOCATE GENERAL THAT THE PHRASES "WHEN RETIRED" AND "UPON RETIREMENT" OBVIOUSLY REFER TO OFFICERS ON THE ACTIVE LIST AND CONNOTE PROSPECTIVE RATHER THAN ACCOMPLISHED RETIREMENT, AND THAT, HENCE, THEY COULD NOT APPLY TO AN OFFICER WHO WAS SPECIALLY COMMENDED FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT.

SUCH REASONING WOULD APPEAR TO BE APPLICABLE LIKEWISE TO THE PROVISIONS OF THE SAID SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947. HOWEVER, IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY DATED JULY 11, 1949, NAVY DEPARTMENT COURT-MARTIAL ORDER NO. 8-1949, PAGE 193, A CONTRARY CONCLUSION WAS REACHED. SUCH CONTRARY CONCLUSION WAS BASED ON THE FOURTH PROVISO OF SUCH SECTION 412 (A) WHICH PROVIDES THAT OFFICERS OF THE CLASSES DESCRIBED IN THAT SUBSECTION WHO WERE RETIRED PRIOR TO THE DATE OF APPROVAL OF THAT ACT SHALL BE ENTITLED TO THE BENEFITS OF SUCH SUBSECTION FROM THE DATE OF APPROVAL OF THE ACT, IS BEING OBSERVED, IN SUCH OPINION, THAT SUCH PROVISO MAKES NO DISTINCTION BETWEEN OFFICERS RETIRED BEFORE OR THOSE RETIRED AFTER THE COMMENDATION IN QUESTION.

HAD IT BEEN THE INTENT OF THE CONGRESS, IN INCLUDING SUCH FOURTH PROVISO, TO EXTEND THE BENEFITS IN QUESTION TO OFFICERS WHO WERE SPECIALLY COMMENDED WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT, IT IS TO BE SUPPOSED THAT THE LANGUAGE OF THE WHOLE SUBSECTION WOULD HAVE BEEN COMPOSED OR ADJUSTED TO REFLECT THAT INTENT. BUT THE LANGUAGE ACTUALLY USED IN THE SUBSECTION MAKES IT REASONABLY CLEAR THAT AN OFFICER'S RIGHT TO ITS BENEFITS DEPENDS ON HIS STATUS AT THE TIME OF HIS RETIREMENT. THE SAID SUBSECTION PROVIDES THAT THE OFFICERS REFERRED TO THEREIN "WHEN RETIRED" SHALL,"UPON RETIREMENT" BE PLACED ON 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, AS INDICATED ABOVE, THE QUOTED PHRASES OBVIOUSLY CONNOTE PROSPECTIVE, RATHER THAN ACCOMPLISHED, RETIREMENT. IN THAT CONNECTION, IT MAY BE NOTED THAT PRIOR TO THE ENACTMENT OF THE SAID SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, THE BENEFITS THEREBY CONFERRED WERE NOT GRANTED TO OFFICERS OF THE RESERVE COMPONENTS OF THE NAVY AND MARINE CORPS; AND, INSOFAR AS OFFICERS OF THE REGULAR NAVY AND THE REGULAR MARINE CORPS WERE CONCERNED, THE PREVIOUS LAWS AUTHORIZING ADVANCEMENT IN RANK TO OFFICERS WITH A COMBAT COMMENDATION REFERRED ONLY TO ADVANCEMENT FROM A PERMANENT AND NOT A TEMPORARY RANK. SEE DECISION OF FEBRUARY 28, 1947, 26 COMP. GEN. 636. REENACTING SUCH PROVISIONS IN THE 1947 ACT, MEMBERS OF THE RESERVE COMPONENTS WERE EXPRESSLY INCLUDED AND SUCH PROVISIONS ALSO WERE MADE APPLICABLE TO TEMPORARY AS WELL AS PERMANENT RANKS. THAT IS MADE CLEAR AND DEFINITE BY THE LANGUAGE USED BUT THERE IS NO SIMILAR LANGUAGE INDICATING ANY INTENT TO EXTEND THE BENEFITS OF THE SECTION TO OFFICERS WHO MIGHT HAVE BEEN COMMENDED FOR THE PERFORMANCE OF DUTY SUBSEQUENT TO RETIREMENT. IT IS CLEAR THAT THE PROVISO IN QUESTION DOES NOT RELATE TO OFFICERS THEREAFTER RETIRED AND IT MAY NOT BE ASSUMED THAT THE CONGRESS INTENDED BY SUCH PROVISO TO CONFER A SPECIAL BENEFIT ON OFFICERS RETIRED PRIOR TO THE ENACTMENT OF THE 1947 ACT WHICH WAS NOT AUTHORIZED FOR OFFICERS THEREAFTER RETIRED. THE PROVISO CONFERRED THE "BENEFITS OF THIS SUBSECTION" ON OFFICERS THERETOFORE RETIRED BUT THE SUBSECTION DID NOT CONFER ANY BENEFITS FOR COMMENDATIONS FOR DUTY PERFORMED AFTER RETIREMENT.

FOR SUCH REASONS, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

IN ADDITION TO THE REASONS NOTED ABOVE AS TO WHY THE INCREASED RETIRED PAY WOULD NOT BE AUTHORIZED IN THESE CASES, THERE WOULD APPEAR TO BE AN ADDITIONAL OBJECTION IN THE SECOND CASE. THAT IS THE FACT THAT THE MAN'S PERMANENT STATUS WAS THAT OF AN ENLISTED MAN AND, HE WAS NOT RETIRED AS AN OFFICER, AS APPARENTLY CONTEMPLATED BY SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947. COMPARE DECISION OF JULY 3, 1946, 26 COMP. GEN. 5, AND DECISION OF MARCH 23, 1949, 28 COMP. GEN. 536.

YOU FURTHER REQUEST DECISION AS TO WHETHER THE MEMBERS REFERRED TO ABOVE "WOULD BE ENTITLED, UPON RECALL TO ACTIVE DUTY IN THE HIGHER RANK TO WHICH ADVANCED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947," TO THE ACTIVE DUTY PAY AND ALLOWANCES OF SUCH HIGHER RANK UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949.

SINCE, AS INDICATED ABOVE, THE MEMBERS IN QUESTION ARE NOT ENTITLED TO THE BENEFITS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, THIS QUESTION IS ANSWERED IN THE NEGATIVE.