B-107760, AUGUST 2, 1961, 41 COMP. GEN. 67

B-107760, AUGUST 2, 1961, 41 COMP. GEN. 67

PAY - RETIRED - COMBAT CITATIONS - ENLISTED MAN ADVANCED TO RANK OF OFFICER ON RETIRED LIST A NAVY ENLISTED MEMBER WHO, PRIOR TO TRANSFER TO THE FLEET RESERVE HAD BEEN SPECIALLY COMMENDED FOR EXTRAORDINARY HEROISM AND WHO, AFTER SUBSEQUENT ACTIVE DUTY WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 RELATING TO ENLISTED MEN AND LATER ADVANCED ON THE RETIRED LIST TO LIEUTENANT UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, IS RETIRED AS AN ENLISTED MAN RATHER THAN AN OFFICER SO THAT THE INCREASED RETIRED PAY BENEFITS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, FOR OFFICERS SPECIALLY COMMENDED FOR HEROISM, ARE NOT APPLICABLE, AND A RECORD CORRECTION ACTION TO SHOW ADVANCEMENT TO THE GRADE OF LIEUTENANT COMMANDER BY REASON OF HAVING BEEN SPECIALLY COMMENDED PURSUANT TO SECTION 412 (A) OF THE 1947 ACT IS INEFFECTIVE TO ENTITLE THE MEMBER TO INCREASED RETIRED PAY.

TO LIEUTENANT COMMANDER E. L. TRUAX, DEPARTMENT OF THE NAVY, AUGUST 2, 1961:

REFERENCE IS MADE TO LETTER OF YOUR PREDECESSOR DATED MARCH 20, 1961, FORWARDED HERE BY THE COMMANDING OFFICER, U.S. NAVY FINANCE CENTER, THROUGH THE COMPTROLLER OF THE NAVY, REQUESTING ADVANCE DECISION WHETHER LIEUTENANT THOMAS N. RUSSELL, USN (RETIRED), 122267, IS ENTITLED TO RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, 34 U.S.C. 410N (1952 USED.), FROM AUGUST 1, 1947, IN THE CIRCUMSTANCES DISCLOSED. DOUBT AS TO HIS ENTITLEMENT IS STATED TO ARISE BY REASON OF THE VIEWS EXPRESSED IN 31 COMP. GEN. 54. THE REQUEST HAS BEEN CLEARED THROUGH THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. 100-N-585.

IT IS REPORTED THAT LIEUTENANT RUSSELL TRANSFERRED TO THE FLEET RESERVE, CLASS F-4-C, ON MARCH 25, 1931, IN THE RATING OF CPHM ( PA), AND WAS RELEASED TO INACTIVE DUTY THE SAME DATE. IT APPEARS THAT DURING WORLD WAR I HE RECEIVED DIFFERENT AWARDS AND CITATIONS FOR EXCEPTIONAL HEROISM AND GALLANTRY IN ACTION. AT TIME OF TRANSFER TO THE FLEET RESERVE HE WAS CREDITED WITH EXACTLY 16 YEARS OF SERVICE FOR TRANSFER PURPOSES. HE WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 4, 1940, RELEASED THEREFROM ON MAY 20, 1946, AND PLACED ON THE RETIRED LIST EFFECTIVE JUNE 1, 1946, UNDER THE NAVAL RESERVE ACT OF 1938, BY REASON OF COMPLETION OF 30 YEARS' ACTIVE AND INACTIVE SERVICE. HE WAS ADVANCED TO THE RANK OF LIEUTENANT ON THE RETIRED LIST UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I (1952 USED.). ON DATE OF TRANSFER HE HAD COMPLETED 15 YEARS 6 MONTHS AND 4 DAYS' ACTIVE SERVICE FOR PAY PURPOSES. SUCH SERVICE, WHEN ADDED TO HIS SUBSEQUENT SERVICE OF 5 YEARS 6 MONTHS AND 17 DAYS, TOTALS 21 YEARS AND 21 DAYS. HE RECEIVED RETAINER PAY AS A CHIEF PETTY OFFICER, AND RETIRED PAY AS A LIEUTENANT, COMPUTED UNDER THE ONE-THIRD FORMULA, WITH 10 PERCENT ADDITIONAL FOR EXTRAORDINARY HEROISM, UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 8548 (1952 USED.), FOR THE PERIOD MAY 21, 1946, THROUGH SEPTEMBER 30, 1949. BEGINNING OCTOBER 1, 1949, HIS PAY WAS COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311. HE PETITIONED THE COURT OF CLAIMS IN THE CASE OF MAAR, ET AL. V. UNITED STATES, CT.1CL. NO. 50223, FILED JULY 9, 1951, FOR THE DIFFERENCE BETWEEN PAY COMPUTED UNDER THE ONE-HALF AND ONE-THIRD FORMULAS. IT IS STATED THAT THE JUDGMENT DATED JULY 12, 1957, AWARDING HIM ADJUSTED RETIRED PAY ON THE ONE-HALF FORMULA COVERED THE PERIOD MAY 21, 1946, THROUGH DECEMBER 31, 1956.

THE BOARD FOR CORRECTION OF NAVAL RECORDS LATER FOUND THAT THE NAVAL RECORD OF LIEUTENANT RUSSELL SHOULD BE CORRECTED, WHERE APPROPRIATE, TO SHOW THAT HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COMMANDER BY REASON OF HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT PURSUANT TO THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874. THE FINDING WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) ON NOVEMBER 9, 1960. IT IS STATED, HOWEVER, THAT IN VIEW OF 31 COMP. GEN. 54, THE MEMBER'S ENTITLEMENT TO INCREASED RETIRED PAY COMPUTED UNDER THAT SECTION IS DOUBTFUL. IN THE EVENT IT IS DECIDED THAT LIEUTENANT RUSSELL IS ENTITLED TO INCREASED RETIRED PAY COMPUTED UNDER SECTION 412 (A), DECISION IS ALSO REQUESTED AS TO WHETHER HE IS ENTITLED TO PAY AT 75 PERCENT OF THE ACTIVE DUTY PAY OF A CHIEF PETTY OFFICER OR OF A LIEUTENANT.

SECTION 412 (A) OF THE OFFICER PERSONNEL ACT, AS ORIGINALLY ENACTED, PROVIDED, WITH EXCEPTIONS NOT MATERIAL HERE, AS FOLLOWS:

(A) 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 * * * 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 * * *. THAT OFFICERS OF THE CLASSES DESCRIBED IN THE 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 *

IN 31 COMP. GEN. 54, THERE WERE CONSIDERED THE RIGHTS OF AN ENLISTED MAN, UNDER SECTION 412 (A), WHO WAS SO SPECIALLY COMMENDED WHILE SERVING UNDER A TEMPORARY COMMISSION FOLLOWING HIS TRANSFER TO THE FLEET RESERVE, PLACEMENT ON THE RETIRED LIST AND SUBSEQUENT RECALL TO ACTIVE DUTY. WAS HELD, AMONG OTHER THINGS, THAT A RETIRED ENLISTED MAN SERVING UNDER A TEMPORARY COMMISSION WAS EXCLUDED FROM THE BENEFITS OF SECTION 412 (A) SINCE THAT SECTION APPARENTLY CONTEMPLATED RETIREMENT AS AN OFFICER.

IN VIEW OF THE FACT THAT SECTION 412 (A) WAS ADDRESSED TO "OFFICERS * * * SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY" IN ACTUAL COMBAT, THE CONCLUSION APPEARS WARRANTED THAT SUCH COMMENDATION MUST RELATE TO SERVICE PERFORMED AS AN OFFICER. IN ANY EVENT, ITS BENEFITS APPLY ONLY WHEN HE IS RETIRED AS AN OFFICER. APPARENTLY, LIEUTENANT RUSSELL SERVED AS AN ENLISTED MAN DURING WORLD WAR I AND IT IS OUR VIEW THAT HE WAS RETIRED AS AN ENLISTED MAN.

THE CORRECTION BOARD'S ACTION IN THIS CASE WAS BASED ON AN OPINION BY THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT LIEUTENANT RUSSELL COULD BE LEGALLY ADVANCED TO THE RANK OF LIEUTENANT COMMANDER UNDER SECTION 412 (A). THAT CONCLUSION APPARENTLY WAS BASED ON THE VIEW THAT 31 COMP. GEN. 54, 58, APPLIES ONLY WHERE A PERMANENT ENLISTED MEMBER, SERVING UNDER A TEMPORARY COMMISSION, WAS "RETIRED IN ENLISTED GRADE," AND THAT SUCH RETIRED ENLISTED MAN'S ADVANCEMENT ON THE RETIRED LIST UPON HIS RETURN TO AN INACTIVE STATUS UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350I (1952 USED.), WAS NOT A RETIREMENT SUCH AS WOULD PERMIT AN ADVANCEMENT ON THE RETIRED LIST AS AUTHORIZED TO "OFFICERS * * * WHEN RETIRED" UNDER SECTION 412 (A) OF THE 1947 ACT. WHILE LIEUTENANT RUSSELL HAD NOT BEEN PLACED ON THE RETIRED LIST PRIOR TO HIS RELEASE FROM ACTIVE DUTY IN MAY 1946, HE WAS RETIRED AS AN ENLISTED MAN AND WE VIEW THE RULING IN 31 COMP. GEN. 54 58, AS BEING EQUALLY APPLICABLE TO HIS SITUATION. COMPARE 26 COMP. GEN. 5.

IN THE RECENT CASE OF JONES V. UNITED STATES, CT.1CL. NO. 300-56, DECIDED OCTOBER 5, 1960, THE COURT HELD THAT A RETIRED ENLISTED MAN WHO WAS PROMOTED TO A TEMPORARY COMMISSIONED GRADE UNDER THE ACT OF JULY 24, 1941, AFTER BEING RECALLED TO ACTIVE DUTY, WAS "RE-RETIRED" UPON HIS RELEASE TO INACTIVE DUTY AND THAT ALTHOUGH HE WAS ADVANCED ON THE RETIRED LIST TO HIS COMMISSIONED GRADE, HE ACTUALLY WAS RE-RETIRED AS AN ENLISTED MAN AND HENCE, WAS NOT AN "OFFICER * * * HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115. IN VIEW OF THAT HOLDING, WE SEE NO BASIS FOR A CONCLUSION THAT LIEUTENANT RUSSELL IS ONE OF THE "OFFICERS" WHO ARE ENTITLED TO THE BENEFITS OF SECTION 412 (A) OF THE 1947 ACT "WHEN RETIRED.' HE WAS NOT RETIRED AS AN OFFICER BUT WAS PLACED ON THE RETIRED LIST UNDER PROVISIONS OF THE 1938 ACT RELATING TO ENLISTED MEN.

WHILE 10 U.S.C. 1552 PROVIDES THAT A CORRECTION OF RECORDS "UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES," EXCEPT WHEN PROCURED BY FRAUD, THE FACT THAT LIEUTENANT RUSSELL WAS ADVANCED ON THE RETIRED LIST IS NOT SUFFICIENT FOR THIS OFFICE TO APPLY THE PAY PROVISIONS OF SECTION 412 (A) OF THE 1947 ACT AND AUTHORIZE PAYMENT TO HIM OF 75 PERCENT OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH HE WAS SERVING AT THE TIME OF RETIREMENT, SINCE IT IS OUR VIEW THAT THE PROVISIONS OF THAT SECTION ARE NOT APPLICABLE TO HIM. HENCE, THE CORRECTION BOARD ACTION TAKEN IS INEFFECTIVE TO GRANT ENTITLEMENT TO RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND THE SECOND QUESTION REQUIRES NO ANSWER.