B-108813, OCTOBER 24, 1952, 32 COMP. GEN. 202

B-108813, OCTOBER 24, 1952, 32 COMP. GEN. 202

DISABILITY RETIRED PAY - WARRANT OFFICERS - ADVANCEMENT DURING PERIOD NAME IS ON TEMPORARY DISABILITY RETIRED LIST A WARRANT OFFICER IN PAY GRADE W-2 WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SUBSECTION 402 (B) OF CAREER COMPENSATION ACT OF 1949, IS ENTITLED UNDER SUBSECTION 402 (D) TO TEMPORARY DISABILITY RETIRED PAY COMPUTED ON THE BASIC PAY OF THE GRADE HELD AT THE TIME HIS NAME IS PLACED ON SAID LIST, SO THAT SUCH OFFICER MAY NOT RECEIVE DISABILITY RETIRED PAY COMPUTED ON THE BASIS OF PAY GRADE W-3 TO WHICH HE WAS PURPORTEDLY ADVANCED SUBSEQUENT TO HIS NAME BEING PLACED ON SAID RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL YATES TO COMMANDER J. B. WARNER, DEPARTMENT OF THE NAVY, OCTOBER 24, 1952:

BY LETTER OF MARCH 25, 1952, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER DATED DECEMBER 3, 1951, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER EDMUND C. CAPECE, A COMMISSIONED WARRANT OFFICER, UNITED STATES NAVY, RETIRED, IS ENTITLED, UNDER THE CIRCUMSTANCES HEREUNDER SET FORTH, TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF WARRANT PAY GRADE W-3 TO WHICH GRADE HE PURPORTEDLY WAS ADVANCED AFTER HIS RETIREMENT.

IT APPEARS THAT IN ACCORDANCE WITH THE PROVISIONS OF THE ALNAV 97, DATED OCTOBER 12, 1949, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, MR. CAPECE WAS ASSIGNED, EFFECTIVE AS OF OCTOBER 1, 1949, TO WARRANT PAY GRADE W-2. IT IS FURTHER STATED THAT HE WAS SERVING IN WARRANT PAY GRADE W-2 AT THE TIME HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY ON MARCH 1, 1951, AS PROVIDED IN SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817. IT IS PRESUMED THAT BY VIRTUE OF SECTION 402 (D), 63 STAT. 818, 819, HE HAS BEEN PAID DISABILITY RETIREMENT PAY FROM AND SINCE MARCH 1, 1951, COMPUTED ON THE BASIS OF WARRANT PAY GRADE W-2. HOWEVER, IT APPEARS THAT IN ACCORDANCE WITH THE PROMOTION AND ADVANCEMENT PROCEDURE PRESCRIBED IN PARAGRAPH B-5, PART II, OF REGULATIONS APPROVED ON JANUARY 31, 1951, MR. CAPECE HAS BEEN ADVANCED ON THE DISABILITY RETIRED LIST FROM WARRANT PAY GRADE W-2 TO WARRANT PAY GRADE W- 3 "EFFECTIVE FOR PAY PURPOSES ON 23 MAY 1.'

PARAGRAPH B-5, PART II, OF THE SAID REGULATIONS OF JANUARY 31, 1951, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS OF THE RETIRED LIST OR OF THE FLEET RESERVE WILL BE ELIGIBLE FOR PROMOTION AND ASSIGNMENT, AS APPLICABLE, TO PAY GRADES HIGHER THAN THAT HELD ON THE RETIRED LIST OR IN THE FLEET RESERVE ONLY WHEN ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY, EXCEPT AS FOLLOWS:

WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS ON THE RETIRED LIST, OR IN THE FLEET RESERVE, WHO HAVE RETIRED OR ENTERED THE FLEET RESERVE SINCE 1 OCTOBER 1949 AND PRIOR TO THE CONVENING OF THE FIRST BOARD SUBSEQUENT TO THE DATE OF THESE REGULATIONS, WILL BE CONSIDERED FOR PROMOTION TO COMMISSIONED WARRANT GRADE OR FOR ASSIGNMENT TO HIGHER PAY GRADES BY SUCH BOARD PROVIDING, DURING SUCH INTERIM, THEY HAD MET THE SERVICE ELIGIBILITY REQUIREMENTS PRESCRIBED IN PARAGRAPHS A 1, A 2, OR B 3 ABOVE WHILE ON ACTIVE DUTY.

SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272 (B), PROVIDES, IN PERTINENT PART, THAT A MEMBER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THAT SECTION, 63 STAT. 818, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(D) A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF THIS SECTION, FOR THE PERIOD DURING WHICH HIS NAME IS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST, BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS, OR A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER * * *.

THAT PROVISION OF LAW EXPRESSLY PRESCRIBES THE SPECIFIC BASIS ON WHICH THE DISABILITY RETIREMENT PAY OF ANY MEMBER WHOSE NAME IS PLACED ON A TEMPORARY DISABILITY RETIRED LIST IS TO BE COMPUTED. AND, INSOFAR AS HERE PERTINENT, THE SAID SUBSECTION (D) REQUIRES THAT DISABILITY RETIREMENT PAY BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY SUCH MEMBER AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST. SINCE MR. CAPECE WAS A COMMISSIONED WARRANT OFFICER, GRADE W-2, AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIREMENT LIST, THERE APPEARS NO AUTHORITY OF LAW TO COMPUTE HIS RETIRED PAY ON THE PAY OF ANY OTHER GRADE.

MOREOVER, PARAGRAPH B-5, PART II, OF THE SAID REGULATIONS OF JANUARY 31, 1951, WOULD APPEAR TO BE CLEARLY WITHOUT THE SCOPE OF THE AUTHORITY GRANTED THE SECRETARY OF THE NAVY BY SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, WHICH PROVIDES AS FOLLOWS:

FOR BASIC PAY PURPOSES, WARRANT OFFICERS (INCLUDING WARRANT OFFICERS HERETOFORE RETIRED) SHALL BE DISTRIBUTED BY THE SECRETARY CONCERNED IN THE VARIOUS PAY GRADES PRESCRIBED FOR WARRANT OFFICERS IN SUBSECTION (A) OF THIS SECTION. (ITALICS SUPPLIED.)

THE SPECIFIC INCLUSION IN SUCH SUBSECTION OF AUTHORITY FOR THE SECRETARY TO REVISE THE PAY GRADES OF RETIRED WARRANT OFFICERS WHO WERE RETIRED PRIOR TO THE ENACTMENT OF THE 1949 ACT WOULD, UNDER THE FAMILIAR RULE OF EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, PRECLUDE ANY CONCLUSION THAT THE SECRETARY HAS AUTHORITY TO REVISE THE PAY GRADES OF RETIRED WARRANT OFFICERS WHO ARE RETIRED AFTER THE ENACTMENT OF SUCH ACT. SEE, ALSO, THE ACT OF AUGUST 5, 1882, 22 STAT. 286, 34 U.S.C. 402. COMPARE SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832.

FOR THE REASONS STATED, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.