B-108045, APRIL 21, 1952, 31 COMP. GEN. 529

B-108045: Apr 21, 1952

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WAS SERVING AS A TEMPORARY COMMISSIONED OFFICER ENTITLED. IS ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE AND RANK IN WHICH HE SERVED UNDER A TEMPORARY APPOINTMENT AS AN OFFICER PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24. 1952: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12. REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN CONCERNING THE APPLICATION OF THE RESTRICTION CONTAINED IN TITLE II (" RETIRED PAY") OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT. THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOWS: (A) ARE THE FUNDS APPROPRIATED BY THE DEPARTMENT OF DEFENSE APPROPRIATION ACT. AVAILABLE FOR PAYMENT OF RETIREMENT TO A TEMPORARILY COMMISSIONED OFFICER WHOSE PERMANENT STATUS IS ENLISTED.

B-108045, APRIL 21, 1952, 31 COMP. GEN. 529

PAY - RETIRED - REGULAR NAVY ENLISTED MEN HOLDING TEMPORARY COMMISSIONS RETIRED PAY RESTRICTION OF DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952 A TEMPORARY OFFICER OF THE REGULAR NAVY APPOINTED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 WHO DID NOT VACATE HIS PERMANENT ENLISTED STATUS MAY NOT BE CONSIDERED AS AN "OFFICER" ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 13, 1908, AS AMENDED, WHICH PROVIDES FOR THE VOLUNTARY RETIREMENT OF "OFFICERS" OF THE NAVY UPON COMPLETION OF 30 YEARS SERVICE. THE RETIRED PAY RESTRICTIONS OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, DIRECTED AGAINST COMMISSIONED PERSONNEL DO NOT PRECLUDE THE PAYMENT OF RETIRED PAY TO A PERMANENT ENLISTED MEMBER OF THE ARMED SERVICES WHO, WHEN RETIRED AS AN ENLISTED MAN, WAS SERVING AS A TEMPORARY COMMISSIONED OFFICER ENTITLED, UNDER THE PROVISIONS OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, TO BE RETIRED IN SUCH HIGHER TEMPORARY GRADE. A PERMANENT ENLISTED MAN OF THE NAVY WHO, UPON RETIREMENT, IS ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE AND RANK IN WHICH HE SERVED UNDER A TEMPORARY APPOINTMENT AS AN OFFICER PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, MAY NOT BE CONSIDERED AS BEING A ,COMMISSIONED MEMBER OF THE REGULAR NAVY" WITHIN THE MEANING AND INTENT OF THE PROVISION IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, AND, THEREFORE HE WOULD NOT BE PREVENTED BY SAID ACT FROM RECEIVING THE RETIRED PAY OF HIS COMMISSIONED GRADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 21, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1952, REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN CONCERNING THE APPLICATION OF THE RESTRICTION CONTAINED IN TITLE II (" RETIRED PAY") OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 423, AGAINST THE PAYMENT OF RETIRED OR RETIREMENT PAY TO CERTAIN MEMBERS OF THE ARMED FORCES VOLUNTARILY RETIRED AFTER THE DATE OF ENACTMENT OF THE SAID ACT. THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOWS:

(A) ARE THE FUNDS APPROPRIATED BY THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, AVAILABLE FOR PAYMENT OF RETIREMENT TO A TEMPORARILY COMMISSIONED OFFICER WHOSE PERMANENT STATUS IS ENLISTED, WITHOUT SPECIFIC APPROVAL OF THE SECRETARY OF DEFENSE? ( SUCH AN OFFICER IS PRESENTLY RETIRED PURSUANT TO THE PROVISIONS OF 34 U.S.C. 431, WITH THE RANK IN WHICH SERVING AT THE TIME OF RETIREMENT PURSUANT TO 34 U.S.C. 410M.)

(B) DOES THE PROVISION OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, REFERRED TO ABOVE PREVENT AN ENLISTED MAN, WHO IS RETIRED PURSUANT TO 34 U.S.C. 431, WHILE SERVING IN AN ENLISTED RATING AND IS SUBSEQUENTLY ADVANCED TO A COMMISSIONED GRADE IN WHICH HE PREVIOUSLY PERFORMED SATISFACTORY SERVICE (AUTHORIZED BY 34 U.S.C. 350I), FROM RECEIVING THE RETIRED PAY OF HIS COMMISSIONED GRADE, IF HIS RETIREMENT HAS NOT BEEN JUSTIFIED IN WRITING BY THE SECRETARY OF DEFENSE?

THE SAID PROVISION IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, PUBLIC LAW 179, APPROVED OCTOBER 18, 1951, 65 STAT. 424, READS AS FOLLOWS:

FOR RETIRED PAY AND RETIREMENT PAY, AS AUTHORIZED BY LAW, OF MILITARY PERSONNEL ON THE RETIRED LISTS OF THE ARMY, NAVY, MARINE CORPS, AND THE AIR FORCE, INCLUDING THE RESERVE COMPONENTS HEREOF; AND RETAINER PAY FOR PERSONNEL OF THE INACTIVE FLEET RESERVE; $345,000,000: PROVIDED, THAT NO PART OF SUCH SUM SHALL BE USED TO PAY THE RETIRED OR RETIREMENT PAY OF ANY COMMISSIONED MEMBER OF THE REGULAR ARMY, NAVY, MARINE CORPS, OR AIR FORCE WHO IS VOLUNTARILY RETIRED AFTER THE DATE OF ENACTMENT OF THIS ACT, UNLESS SUCH MEMBER WAS RETIRED BECAUSE OF (1) BEING UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, OR (2) ACHIEVING THE AGE AT WHICH RETIREMENT IS REQUIRED BY LAW, OR (3) WHOSE APPLICATION IS APPROVED IN WRITING BY THE SECRETARY OF DEFENSE STATING THAT THE RETIREMENT IS IN THE BEST INTERESTS OF THE SERVICE, OR, IS REQUIRED TO AVOID CASES OF INDIVIDUAL HARDSHIP.

THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 34 U.S.C. 431, REFERRED TO IN QUESTIONS (A) AND (B), PROVIDES THAT ENLISTED MEN OF THE ARMY, NAVY, OR MARINE CORPS WHO HAVE SERVED 30 YEARS SHALL, UPON MAKING APPLICATION THEREFOR, BE PLACED UPON THE RETIRED LIST WITH 75 PERCENTUM OF THE PAY OF HIS RANK OR RATING. SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 868, 34 U.S.C. 410M, REFERRED TO IN QUESTION (A), PROVIDES THAT OFFICERS SERVING IN THE GRADE OF REAR ADMIRAL OR BELOW UNDER AUTHORITY OF TITLE III OF THIS ACT BY VIRTUE OF A TEMPORARY APPOINTMENT SHALL, IF RETIRED WHILE SO SERVING, BE RETIRED IN THE GRADE IN WHICH SERVING WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF RETIREMENT UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED GRADE OR PAY. SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I, REFERRED TO IN QUESTION (B), PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) (2) PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS AND PERSONNEL OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE APPOINTED OR ADVANCED UNDER AUTHORITY OF THIS ACT, SHALL, WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

IT APPEARS THAT THE ENLISTED MEMBER REFERRED TO IN QUESTION (B) WAS TEMPORARILY APPOINTED A COMMISSIONED OFFICER PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, AND UPON TERMINATION OF SUCH TEMPORARY APPOINTMENT HE REVERTED TO HIS PERMANENT ENLISTED STATUS AND THEREAFTER SERVED ON ACTIVE DUTY IN SUCH ENLISTED STATUS. HE WAS SUBSEQUENTLY RETIRED IN HIS PERMANENT ENLISTED GRADE AND, UPON RETIREMENT,"ADVANCED" ON THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, TO THE HIGHEST COMMISSIONED OFFICER RANK IN WHICH HE SERVED SATISFACTORILY, WITH THE RETIRED PAY OF SUCH HIGHER RANK. DECISION OF OCTOBER 28, 1946, 26 COMP. GEN. 271, 275, IT WAS HELD THAT THE PROVISIONS OF THE SAID SECTION 10 OF THE 1941 ACT, AS AMENDED, SUPRA, AFFECT ONLY THE RETIRED RANK AND RETIRED PAY OF ENLISTED MEN UPON RETIREMENT AND THAT SUCH PROVISION DOES NOT AFFECT IN ANY WAY THE "OFFICE" HELD BY SUCH PERSONNEL. THAT IS TO SAY, SUCH AN ENLISTED MEMBER RETAINS THE "OFFICE" OF AN ENLISTED MAN ON THE RETIRED LIST. CONSEQUENTLY, A PERMANENT ENLISTED MAN WHO, UPON RETIREMENT, IS "ADVANCED" ON THE RETIRED LIST TO THE HIGHEST GRADE AND RANK IN WHICH HE SERVED UNDER A TEMPORARY APPOINTMENT, PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA, PROPERLY MAY NOT BE CONSIDERED AS BEING A ,COMMISSIONED MEMBER OF THE REGULAR * * * NAVY" WITHIN THE MEANING AND INTENT OF THE PROVISION IN THE APPROPRIATION ACT, SUPRA. QUESTION (B) IS ANSWERED ACCORDINGLY.

PRESUMABLY THE MEMBER REFERRED TO IN QUESTION (A) WAS TEMPORARILY APPOINTED A COMMISSIONED OFFICER IN THE REGULAR NAVY (OR SUCH APPOINTMENT CONTINUED IN EFFECT) PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, 830, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(C) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO GRADES IN THE REGULAR NAVY OR MARINE CORPS, EXCEPT IN THE NURSE CORPS OF THE REGULAR NAVY, INCLUDING THE GRADES OF WARRANT OFFICER AND COMMISSIONED WARRANT OFFICER, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(1) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS.

(E) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NO PERSON WHO SHALL ACCEPT A TEMPORARY APPOINTMENT UNDER THE PROVISIONS OF THIS TITLE SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: AND PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS SECTION SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS PERMANENT STATUS AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

THE TEMPORARY APPOINTMENTS MADE PURSUANT TO THE SAID SECTION 302 ARE MADE IN THE REGULAR NAVY AND THE PROVISO IN THE SAID APPROPRIATION ACT IS DIRECTED AGAINST THE PAYMENT OF RETIRED PAY TO COMMISSIONED MEMBERS OF THE REGULAR ARMY, NAVY, ETC. HOWEVER, IT WILL BE NOTED THAT SUBSECTION (E) OF THE SAID SECTION 302 EXPRESSLY PROVIDES THAT THE PERMANENT APPOINTMENT OF SUCH MEMBERS SHALL NOT BE VACATED BY ACCEPTANCE OF A TEMPORARY APPOINTMENT AND THAT THEIR RIGHTS, BENEFITS, AND PRIVILEGES SHALL NOT BE LOST OR ABRIDGED BY ACCEPTANCE OF SUCH TEMPORARY COMMISSION. THE MEMBER REFERRED TO IN QUESTION (A) WAS RETIRED PURSUANT TO A LAW (34 U.S.C. 431) RELATING EXCLUSIVELY TO RETIREMENT OF PERMANENT ENLISTED MEN OF THE REGULAR NAVY. SUCH ACTION PRESUMABLY WAS TAKEN ON THE BASIS OF THE RULE STATED IN 28 COMP. GEN. 536, THAT PERMANENT ENLISTED MEMBERS WHO ARE TEMPORARILY APPOINTED COMMISSIONED OFFICERS OF THE REGULAR NAVY PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, OR WHOSE TEMPORARY APPOINTMENTS ARE CONTINUED IN EFFECT UNDER TITLE III OF THE SAID ACT, ARE NOT "OFFICERS" WITHIN THE MEANING OF SECTION 1453, REVISED STATUTES, RELATING TO RETIREMENT FOR PHYSICAL DISABILITY OF "OFFICERS" OF THE NAVY. COMPARE 29 COMP. GEN. 196. APPLYING SUCH RULE TO THE PRESENT CASE, THE ENLISTED MEMBER REFERRED TO IN QUESTION (A), MAY NOT BE VIEWED AS AN "OFFICER" ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, AS AMENDED, 34 U.S.C. 383, WHICH PROVIDES FOR THE VOLUNTARY RETIREMENT OF "OFFICERS" OF THE NAVY UPON COMPLETION OF 30 YEARS' SERVICE AND NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE PROVISO RESTRICTING THE USE OF FUNDS FOR PAYMENT OF RETIRED OR RETIREMENT PAY WHICH INDICATES THAT IT WAS INTENDED TO PRECLUDE THE PAYMENT OF RETIRED PAY TO A PERMANENT ENLISTED MEMBER WHO, WHEN RETIRED AS AN ENLISTED MAN, WAS SERVING AS A TEMPORARY COMMISSIONED OFFICER AND, HENCE, WAS ENTITLED UNDER THE PROVISIONS OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, TO BE RETIRED IN SUCH HIGHER TEMPORARY GRADE. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.