B-106251, JANUARY 9, 1952, 31 COMP. GEN. 254

B-106251: Jan 9, 1952

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED. ON THE BASIS OF THE RANK OR GRADE TO WHICH HE MAY HAVE BEEN ADVANCED ON THE RETIRED LIST UNDER SECTION 3 OF THE ACT OF JANUARY 12. WAS ADVANCED TO REAR ADMIRAL ON RETIRED LIST UNDER SECTION 3. HAVE THEIR RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER RANKS AND GRADES IN WHICH THEY SERVED ON ACTIVE DUTY AFTER RETIREMENT. 1952: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23. IT IS STATED THAT 16 OF THE 21 OFFICERS INVOLVED HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 ON THE BASIS OF THE ADVANCED RANK AUTHORIZED BY SECTION 3 OF THE ACT OF JANUARY 12. THAT THE REMAINING 5 OFFICERS HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED UNDER THE METHOD (B) ON THE GRADE OF REAR ADMIRAL.

B-106251, JANUARY 9, 1952, 31 COMP. GEN. 254

PAY - RETIRED - OFFICERS RETIRED PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 AN OFFICER OF THE COAST GUARD WHO RETIRED PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AFTER COMPLETING 40 YEARS' SERVICE, IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED, UNDER METHOD (B) IN SECTION 511 OF SAID ACT, ON THE BASIS OF THE RANK OR GRADE TO WHICH HE MAY HAVE BEEN ADVANCED ON THE RETIRED LIST UNDER SECTION 3 OF THE ACT OF JANUARY 12, 1923, BUT ON THE BASIS OF THE HIGHEST RANK OR GRADE TO WHICH HE RECEIVED AN APPOINTMENT AS AN OFFICER. AN OFFICER OF THE COAST GUARD WHO HAD 40 YEARS' SERVICE AND HELD APPOINTMENT AS CAPTAIN AT TIME OF RETIREMENT; WHO, UPON RETIREMENT PRIOR TO OCTOBER 1, 1949, WAS ADVANCED TO REAR ADMIRAL ON RETIRED LIST UNDER SECTION 3, ACT OF JANUARY 12, 1923; AND WHO THEREAFTER SERVED ON ACTIVE DUTY AS A REAR ADMIRAL, AND RECEIVED THE PAY OF A REAR ADMIRAL, UPPER HALF, UNDER THE ACT OF APRIL 8, 1946, MAY NOT BE REGARDED AS HAVING HELD AN "APPOINTMENT" AS A REAR ADMIRAL, WITHIN THE CONTEMPLATION OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO BE ENTITLED TO RETIRED PAY AS A REAR ADMIRAL, UPPER HALF ON AND AFTER OCTOBER 1, 1949, COMPUTED ON THE BASIS PRESCRIBED IN METHOD (B) OF SECTION 511 OF THE 1949 ACT. RETIRED OFFICERS RECALLED TO ACTIVE DUTY DURING WORLD WAR II WHO REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1949, AND WHO DID NOT SERVE ON ACTIVE DUTY AFTER THAT DATE, MAY NOT, UNDER THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, HAVE THEIR RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER RANKS AND GRADES IN WHICH THEY SERVED ON ACTIVE DUTY AFTER RETIREMENT, AS AN ALTERNATIVE TO RECEIVING PAY UNDER METHOD (B) OF SECTION 511 OF THE ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JANUARY 9, 1952:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1951, REQUESTING DECISION AS TO WHETHER THE RETIRED PAY OF CERTAIN OFFICERS OF THE COAST GUARD WHO RETIRED PRIOR TO OCTOBER 1, 1949, FOR AGE, LENGTH OF SERVICE, OR PHYSICAL DISABILITY MAY BE COMPUTED ON AND AFTER OCTOBER 1, 1949, UNDER METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, ON THE BASIS OF (1) THE ADVANCED RANK CONFERRED UNDER SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, OR (2) THE HIGHER PAY CONFERRED BY THE ACT OF APRIL 8, 1946, 60 STAT. 86.

IT IS STATED THAT 16 OF THE 21 OFFICERS INVOLVED HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 ON THE BASIS OF THE ADVANCED RANK AUTHORIZED BY SECTION 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, AND THAT THE REMAINING 5 OFFICERS HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED UNDER THE METHOD (B) ON THE GRADE OF REAR ADMIRAL, UPPER HALF, HAVING BEEN IN RECEIPT OF RETIRED PAY OF A REAR ADMIRAL, UPPER HALF, PRIOR TO OCTOBER 1, 1949, PURSUANT TO THE SAID ACT OF APRIL 8, 1946.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 829, PROVIDES IN PART AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *. ( ITALICS SUPPLIED.)

SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, 14 U.S.C. 174, PROVIDED IN PART 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 RETIREMENT; AND, IN THE CASE OF A CAPTAIN, THE RANK AND RETIRED PAY OF ONE GRADE ABOVE SHALL BE THE RANK OF COMMODORE AND THE PAY OF A COMMODORE IN THE NAVY ON THE RETIRED LIST. THE SAID ACT OF JANUARY 12, 1923, WAS REPEALED, EFFECTIVE NOVEMBER 1, 1949, BY SECTIONS 19 AND 20 OF THE ACT OF AUGUST 4, 1949, 63 STAT. 561.

UNDER METHOD (A) OF THE SAID SECTION 511, A MEMBER IS ENTITLED TO CONTINUE TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. HENCE, SINCE THE REPEAL OF SECTION 3 OF THE ACT OF JANUARY 12, 1923, WAS NOT EFFECTIVE UNTIL NOVEMBER 1, 1949, A MEMBER WHOSE RETIRED PAY PROPERLY WAS COMPUTED PRIOR TO OCTOBER 1, 1949, ON THE BASIS OF THE PROVISIONS OF SECTION 3 OF THE 1923 ACT IS ENTITLED TO CONTINUE TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE ADVANCED RANK UNDER LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. HOWEVER, IF SUCH MEMBER'S RETIRED PAY IS TO BE COMPUTED AS PROVIDED IN METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUCH COMPUTATION IS REQUIRED TO BE MADE IN ACCORDANCE WITH AND SUBJECT TO THE LIMITATIONS CONTAINED THEREIN. IT WILL BE NOTED THAT UNDER METHOD (B) OF THE SAID SECTION 511, MONTHLY RETIRED PAY IS COMPUTED AS PRESCRIBED THEREIN ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A TEMPORARY OR PERMANENT APPOINTMENT, SATISFACTORILY HELD BY THE MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING.

IT IS UNDERSTOOD INFORMALLY THAT THE SECRETARY OF THE TREASURY HAS MADE NO OFFICIAL DETERMINATION THAT ANY OF THE HIGHER RANKS ACQUIRED UNDER THE 1923 ACT BY THE MEMBERS HERE INVOLVED WERE "SATISFACTORILY HELD" WITHIN THE MEANING AND INTENT OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

IN DECISION OF APRIL 26, 1951, B-100766, 30 COMP. GEN. 419 (INVOLVING THE QUESTION WHETHER OFFICERS ADVANCED ON THE RETIRED LIST BY REASON OF COMBAT CITATION PURSUANT TO THE PROVISIONS OF 34 U.S.C. 404 (1) OR 34 U.S.C. 410N ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE ADVANCED RANK, ON AND AFTER OCTOBER 1, 1949, UNDER SECTIONS 402 (D) AND 511 OF THE CAREER COMPENSATION ACT OF 1949), IT WAS STATED THAT:

IT SEEMS CLEAR THAT SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, REFERS ONLY TO A RANK, GRADE, OR RATING TO WHICH A MEMBER OF THE UNIFORMED SERVICES WAS DULY APPOINTED BY COMPETENT AUTHORITY, REFERRING AS IT DOES TO THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY "APPOINTMENT" SATISFACTORILY HELD. AND, IT WOULD APPEAR TO BE WELL SETTLED THAT WHILE THE CONGRESS MAY CHANGE THE MERE RANK OF AN OFFICER ON THE RETIRED LIST AT PLEASURE WITHOUT COMING IN CONFLICT WITH THE CONSTITUTION, AN "APPOINTMENT" TO AN EXECUTIVE OFFICE MAY BE MADE ONLY BY THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE MANNER PRESCRIBED BY THE CONSTITUTION AND MAY NOT BE MADE BY CONGRESSIONAL ENACTMENT. SEE WOOD V. UNITED STATES, 15 C.1CLS. 151 AFFIRMED, 107 U.S. 414. IT IS NOT INDICATED, NOR DOES IT APPEAR, THAT THE OFFICERS TO WHOM YOU REFER HAVE EVER ACTUALLY BEEN GIVEN APPOINTMENTS TO THE HIGHER HONORARY RANK GIVEN THEM BY THE CONGRESS BY THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AS AMENDED, OR SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, AND THEREFORE, SUCH HIGHER HONORARY RANK MAY NOT BE CONSIDERED TO BE A HIGHER RANK SATISFACTORILY HELD WITHIN THE PURVIEW OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. AND IN THE CASE OF MASON V. UNITED STATES, 47 C.1CLS. 31, THE COURT OF CLAIMS STATED, AT PAGE 35, THAT:

THE CASE OF GEN. WOOD PERMANENTLY SETTLES THE DIFFERENCES BETWEEN OFFICE, RANK, AND GRADE OF LINE AND STAFF OFFICERS OF THE UNITED STATES ARMY. ALSO DETERMINES THAT APPOINTMENTS TO OFFICE IN THE MILITARY ARM OF THE GOVERNMENT CAN ONLY BE MADE BY THE EXECUTIVE BRANCH IN THE MANNER PROVIDED BY ARTICLE II AND SECTION 2 OF THE CONSTITUTION, AND NOT BY CONGRESSIONAL ENACTMENT; AND THAT THE CONGRESS MAY RETIRE AN OFFICER FROM ACTIVE SERVICE AND PLACE HIM ON THE RETIRED LIST UPON RANK DIFFERENT FROM THAT WHICH ATTACHES TO HIS OFFICE BY GENERAL LAWS, AND MAY CHANGE THE MERE RANK OF AN OFFICER ON THE ACTIVE OR THE RETIRED LIST AT PLEASURE, WITHOUT CONFLICTING WITH THE CONSTITUTION. ( ITALICS SUPPLIED.)

ONE OF THE DIFFERENCES BETWEEN THE PRESENT CASE AND THAT CONSIDERED IN THE DECISION OF APRIL 26, 1951, IS, AS INDICATED IN YOUR SUBMISSION, THAT THE OFFICERS IN THE PRIOR DECISION WERE NOT ISSUED COMMISSIONS, WHEREAS IN THE PRESENT CASE THE SECRETARY OF THE TREASURY," BY DIRECTION OF THE PRESIDENT," ISSUED A COMMISSION TO EACH OF THE OFFICERS INVOLVED IN THE HIGHER RANK TO WHICH ENTITLED UNDER THE ACT OF JANUARY 12, 1923. THE MERE ISSUANCE OF SUCH A COMMISSION, HOWEVER, DOES NOT CONSTITUTE AN "APPOINTMENT" IN THE MANNER PROVIDED BY THE CONSTITUTION, THERE HAVING BEEN NO STATUTE AUTHORIZING SUCH "APPOINTMENTS" TO BE MADE EITHER WITH OR WITHOUT SENATE CONFIRMATION. IN THAT CONNECTION IT MAY BE NOTED THAT IN DISCUSSING THE SIMILAR PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, THE COURT OF CLAIMS IN THE CASE OF KIMBERLY V. UNITED STATES, C.1CLS. NO. 49940, DECIDED JUNE 5, 1951, STATED THAT:

IT IS MANIFEST FROM THE VARIOUS OFFICIAL DOCUMENTS THAT OUR RETIREMENT PROVISIONS WERE INTENDED BY THE CONGRESS TO BE MADE ON THE BASIS OF THE ACTUAL RANK HELD BY OFFICERS AT THE TIME OF THE RETIREMENT AND THAT THE PROVISIONS OF THE ACT OF OCTOBER 12, 1940, WERE INTENDED MERELY TO GIVE THE RETIRING OFFICER THE ADVANTAGES OF A HIGHER RANK WHERE THE PROMOTIONS WERE REAL AND COVERED THE ACTUAL SERVICE IN THE UNITED STATES ARMY AS SUCH.

WHILE THE SAID SECTION 402 (D) REFERS TO A HIGHER TEMPORARY RANK, GRADE, OR RATING IN WHICH THE MEMBER "SERVED SATISFACTORILY" WHEREAS METHOD (B) OF SECTION 511 REFERS TO THE HIGHEST RANK, GRADE, OR RATING "SATISFACTORILY HELD," WHETHER UNDER "A PERMANENT OR TEMPORARY APPOINTMENT," IT MAY NOT BE ASSUMED THAT BY THIS DIFFERENCE IN LANGUAGE THE CONGRESS INTENDED BY SECTION 511 TO GRANT TO OFFICERS PREVIOUSLY RETIRED THE PRIVILEGE OF COMPUTING THEIR RETIRED PAY UNDER THE CAREER COMPENSATION ACT ON HONORARY RANKS HELD ON THE RETIRED LIST WHILE IN EFFECT DENYING BY SECTION 402 (D) ANY SUCH PRIVILEGES TO OFFICERS THEREAFTER RETIRED FOR PHYSICAL DISABILITY. FOR SUCH REASONS, IT MUST BE HELD THAT THE CONCLUSION REACHED IN THE SAID DECISION OF APRIL 26, 1951, IS EQUALLY APPLICABLE IN THE CASE OF COAST GUARD OFFICERS WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, AND WHO HAD COMPLETED 40 YEARS' SERVICE PRIOR TO RETIREMENT. THAT IS TO SAY, IF SUCH AN OFFICER'S RETIRED PAY IS TO BE COMPUTED ON OR AFTER OCTOBER 1, 1949, UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUCH COMPUTATION MUST BE MADE ON THE BASIS OF THE HIGHEST RANK OR GRADE TO WHICH HE RECEIVED AN "APPOINTMENT" AS AN OFFICER, AS DISTINGUISHED FROM THE RANK OR GRADE TO WHICH HE MAY HAVE BEEN ADVANCED ON THE RETIRED LIST UNDER SECTION 3 OF THE ACT OF JANUARY 12, 1923. SEE, ALSO, B 102149, AUGUST 13, 1951, 31 COMP. GEN. 28.

THE ACT OF APRIL 8, 1946, 60 STAT. 86, PROVIDES AS FOLLOWS:

THAT ANY OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE AND WHO IS, HAS BEEN, OR MAY BE RECALLED TO ACTIVE DUTY AND WHO IN TIME OF WAR OR OTHER NATIONAL EMERGENCY SERVED, SERVES, OR MAY SERVE SATISFACTORILY ON ACTIVE DUTY FOR A PERIOD OF TWO YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE, SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OFA REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER PAY AND ALLOWANCES, AND HE SHALL BE ENTITLED WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER RETIRED PAY OR ALLOWANCES: PROVIDED: THAT NO BACK PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THIS ACT PRIOR TO THE DATE OF ITS APPROVAL.

THE OBVIOUS PURPOSE OF THE SAID ACT IS TO PERMIT RETIRED REAR ADMIRALS, LOWER HALF, WHO ARE RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND WHO SERVE ON ACTIVE DUTY FOR TWO OR MORE YEARS IN TIME OF WAR, TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES AS REAR ADMIRALS, UPPER HALF, AND, UPON REVERSION TO AN INACTIVE STATUS, TO RECEIVE RETIRED PAY AS REAR ADMIRALS, UPPER HALF. PRIOR TO THE SAID ACT OF APRIL 8, 1946, A RETIRED REAR ADMIRAL, LOWER HALF, WHEN ON ACTIVE DUTY COULD NOT BECOME ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF. SEE 23 COMP. GEN. 507.

IT APPEARS THAT THE OFFICER REFERRED TO IN PARAGRAPH 3 (C) OF THE " APPENDIX" TRANSMITTED WITH YOUR LETTER HELD AN "APPOINTMENT" AS A CAPTAIN ONLY, AT THE TIME OF HIS RETIREMENT, SEPTEMBER 1, 1941, AND ALTHOUGH THE SECRETARY OF THE TREASURY, BY DIRECTION OF THE PRESIDENT, APPARENTLY ISSUED HIM A COMMISSION AS A REAR ADMIRAL ON THE RETIRED LIST, IT DOES NOT APPEAR THAT SUCH ACTION WAS TAKEN PURSUANT TO ANY STATUTORY PROVISION AUTHORIZING HIS "APPOINTMENT" TO THE OFFICE OF REAR ADMIRAL IN THE MANNER PRESCRIBED BY THE CONSTITUTION. ACCORDINGLY, IT MUST BE CONCLUDED THAT THE SAID OFFICER MAY NOT BE REGARDED AS HAVING HELD AN "APPOINTMENT" AS A REAR ADMIRAL WITHIN THE CONTEMPLATION OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO ENTITLE HIM TO RETIRED PAY AS A REAR ADMIRAL, UPPER HALF, ON AND AFTER OCTOBER 1, 1949, COMPUTED ON THE BASIS PRESCRIBED IN METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT.

THE FINAL QUESTION PRESENTED IS WHETHER RETIRED OFFICERS WHO WERE RECALLED TO ACTIVE DUTY DURING WORLD WAR II AND WHO REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1949, ARE ENTITLED, UNDER THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, TO HAVE THEIR RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER RANKS AND GRADES IN WHICH THEY SERVED ON ACTIVE DUTY AFTER RETIREMENT, AS AN ALTERNATIVE TO RECEIVING RETIRED PAY COMPUTED AS PROVIDED IN METHOD (B) OF SECTION 511 OF THE SAID ACT. THE SAID SECTION 516, 63 STAT. 832, PROVIDES IN PART AS FOLLOWS: MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES, INCLUDING MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED OR TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY COMPUTED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE: PROVIDED, THAT THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY AT THE TIME OF HIS RETIREMENT OR TRANSFER PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY PAY OR THE BASIC PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED OR TRANSFERRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON OR A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE * * *. THE FIRST PART OF THE SAID SECTION 516, LIKE THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED, PERMITS RETIRED MEMBERS TO RECEIVE INCREASES IN RETIRED PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT, SUBJECT TO THE RESTRICTIONS CONTAINED THEREIN. THE LANGUAGE IN THE FIRST PROVISO IN SECTION 516 PROVIDING THAT THE RETIRED PAY TO WHICH SUCH A MEMBER "SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY" SHALL BE COMPUTED ON THE BASIS OF RANK OR GRADE IN WHICH "HE WOULD BE ELIGIBLE" THEN TO BE RETIRED, IF NOT ALREADY RETIRED, IS CLEARLY PROSPECTIVE IN FORM. SINCE THE SAID SECTION 516 WAS NOT EFFECTIVE UNTIL OCTOBER 1, 1949, IT SEEMS REASONABLE TO CONCLUDE THAT THE ABOVE- QUOTED PHRASE HAS REFERENCE TO A RELEASE FROM ACTIVE DUTY ON OR AFTER THAT DATE. SEE B-106318, DECEMBER 27, 1951, AND COMPARE B-101345, AUGUST 22, 1951, 31 COMP. GEN. 39. THE RETIRED OFFICERS ASSOCIATION HAS STRONGLY URGED IN A BRIEF SUBMITTED TO THIS OFFICE THAT THE LANGUAGE OF SECTION 516 IS AMBIGUOUS IN THIS RESPECT AND SHOULD BE INTERPRETED AS RETROSPECTIVELY EFFECTIVE. HOWEVER, IN DETERMINING WHETHER STATUTES ARE TO OPERATE RETROSPECTIVELY OR PROSPECTIVELY ONLY, THE COURTS HAVE ADOPTED A STRICT RULE OF CONSTRUCTION AGAINST RETROSPECTIVE OPERATION AND INDULGE IN THE PRESUMPTION THAT THE LEGISLATURE INTENDED STATUTES ENACTED BY IT TO OPERATE PROSPECTIVELY ONLY AND THAT WHERE THE INTENTION OF THE LEGISLATURE TO MAKE A STATUTE RETROACTIVE IS NOT STATED IN EXPRESS TERMS OR CLEARLY SHOWN BY NECESSARY IMPLICATION, THE STATUTE WILL NOT BE SO REGARDED. AND, IF IT IS AT ALL DOUBTFUL WHETHER THE STATUTE WAS INTENDED TO OPERATE RETROSPECTIVELY, THE DOUBT WILL BE RESOLVED AGAINST SUCH OPERATION. AM. JUR. STATUTES, SECTION 478. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT FAILS TO INDICATE, EVEN REMOTELY, THAT THE SAID SECTION 516 WAS INTENDED TO OPERATE ON ANY CASES EXCEPT THOSE INVOLVING THE PERFORMANCE OF ACTIVE DUTY ON OR AFTER OCTOBER 1, 1949. ACCORDINGLY, YOUR FINAL QUESTION MUST BE ANSWERED IN THE NEGATIVE.