B-111933, NOVEMBER 4, 1952, 32 COMP. GEN. 220

B-111933: Nov 4, 1952

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IS NOT ENTITLED TO RETIRED PAY UNDER THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1953 WHICH WAS ENACTED AFTER HIS RETIREMENT BUT WHICH CONTINUED THE PROHIBITION AGAINST THE PAYMENT OF RETIRED PAY TO COMMISSIONED OFFICERS WHO RETIRED VOLUNTARILY "AFTER THE DATE OF ENACTMENT OF THIS ACT.'. 1952: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. THE PAYMENT OF RETIRED PAY IN THE CASE OF ADMIRAL CHANDLER IS AUTHORIZED EFFECTIVE JULY 1. THE OFFICER WAS NOTIFIED THAT HIS REQUEST TO BE TRANSFERRED TO THE RETIRED LIST HAD BEEN APPROVED EFFECTIVE THAT DATE IN ACCORDANCE WITH SECTION 6 OF THE ACT OF FEBRUARY 21. IT FURTHER APPEARS THAT AT THE TIME OF THE OFFICER'S RETIREMENT HE WAS SERVING IN THE GRADE OF REAR ADMIRAL AND THAT HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF VICE ADMIRAL UNDER THE PROVISIONS OF SECTION 412 (A) OF THE ACT OF AUGUST 7.

B-111933, NOVEMBER 4, 1952, 32 COMP. GEN. 220

PAY - RETIRED - VOLUNTARY RETIREMENTS - DEPARTMENT OF DEFENSE APPROPRIATION ACT RESTRICTIONS AN OFFICER WHO RETIRED VOLUNTARILY AFTER THE ENACTMENT OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1952, WHICH PROHIBITED THE PAYMENT OF RETIRED PAY TO COMMISSIONED OFFICERS WHO RETIRED VOLUNTARILY AFTER THE DATE OF ITS ENACTMENT, IS NOT ENTITLED TO RETIRED PAY UNDER THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1953 WHICH WAS ENACTED AFTER HIS RETIREMENT BUT WHICH CONTINUED THE PROHIBITION AGAINST THE PAYMENT OF RETIRED PAY TO COMMISSIONED OFFICERS WHO RETIRED VOLUNTARILY "AFTER THE DATE OF ENACTMENT OF THIS ACT.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 4, 1952:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1952 (FILE JAG:II:2:WEN:EMK), FORWARDING FOR CONSIDERATION A LETTER DATED AUGUST 20, 1952, WITH ENCLOSURES, FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO, CONCERNING THE RETIRED PAY STATUS OF VICE ADMIRAL ALVIN D. CHANDLER, U.S. NAVY ( RETIRED). YOU REQUEST A DECISION AS TO WHETHER UNDER THE CIRCUMSTANCES DISCLOSED IN THE SAID ENCLOSURES AND IN VIEW OF THE RESTRICTIONS ON RETIRED PAY CONTAINED IN TITLE II OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 423, AND TITLE II OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, 66 STAT. 518, THE PAYMENT OF RETIRED PAY IN THE CASE OF ADMIRAL CHANDLER IS AUTHORIZED EFFECTIVE JULY 1, 1952.

IT APPEARS FROM THE SAID ENCLOSURES THAT BY LETTER DATED NOVEMBER 1, 1951, FROM THE SECRETARY OF THE NAVY, THE OFFICER WAS NOTIFIED THAT HIS REQUEST TO BE TRANSFERRED TO THE RETIRED LIST HAD BEEN APPROVED EFFECTIVE THAT DATE IN ACCORDANCE WITH SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27 (34 U.S.C. 410B), WHICH PROVIDES THAT ANY OFFICER OF THE NAVY OR MARINE CORPS WHO HAS COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE AS THEREIN SPECIFIED MAY, UPON HIS OWN APPLICATION AND IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE. IT FURTHER APPEARS THAT AT THE TIME OF THE OFFICER'S RETIREMENT HE WAS SERVING IN THE GRADE OF REAR ADMIRAL AND THAT HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF VICE ADMIRAL UNDER THE PROVISIONS OF SECTION 412 (A) OF THE ACT OF AUGUST 7, 1947, 61 STAT. 874, AS AMENDED BY SECTION 522 (A) OF THE ACT OF OCTOBER 12, 1949, 63 STAT. 835 (34 U.S.C. 410N).

THE PROVISION IN QUESTION IN TITLE II OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, APPROVED OCTOBER 18, 1951, 65 STAT. 423, 424, MAKING APPROPRIATION FOR THE PAYMENT OF RETIRED PAY TO MILITARY PERSONNEL ON THE RETIRED LISTS, READS AS FOLLOWS:

* * * 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 QUOTED PROVISO RESTRICTING PAYMENT OF RETIRED OR RETIREMENT PAY FROM THE FUNDS THEREIN APPROPRIATED ALSO IS REPEATED IN THE APPROPRIATION MADE FOR THE PAYMENT OF RETIRED OR RETIREMENT PAY TO MILITARY PERSONNEL IN TITLE II OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, APPROVED JULY 10, 1952, 66 STAT. 517, 518. ADMIRAL CHANDLER CONTENDS THAT THE PROVISO IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1953 IS NOT FOR APPLICATION IN HIS CASE SINCE HE WAS RETIRED PRIOR TO JULY 10, 1952, THE DATE OF APPROVAL OF THE SAID ACT, AND THAT HE THEREFORE IS ENTITLED TO RETIRED PAY COMMENCING EFFECTIVE JULY 1, 1952.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID PROVISO DISCLOSES THAT IT WAS INTRODUCED BY HONORABLE JAMES E. VAN ZANDT, HOUSE OF REPRESENTATIVES, AS AN AMENDMENT TO THE DEPARTMENT OF DEFENSE APPROPRIATION BILL, 1952, H.R. 5054, WHICH WAS ENACTED AS THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952. WITH REGARD TO THE PERIOD THAT THE RESTRICTION WAS INTENDED TO REMAIN IN EFFECT, THE CONGRESSIONAL RECORD OF AUGUST 9, 1951, PAGE 9944, REPORTS A DISCUSSION IN THE HOUSE OF REPRESENTATIVES REGARDING THE PROVISO AS FOLLOWS:

MR. TABER. THE GENTLEMAN'S AMENDMENT ONLY HITS FUTURE RETIREMENTS.

MR. VAN ZANDT. THAT IS RIGHT; IT DOES NOT AFFECT IN ANY WAY, SHAPE, OR FORM ANY OF THE BENEFITS RECEIVED BY THOSE WHO HAVE RETIRED PRIOR TO THIS BILL BECOMING A LAW. IT MEANS THAT EFFECTIVE THAT DATE OFFICERS AND ENLISTED MEN CANNOT BE RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY OR STATUTORY AGE REQUIREMENT.

MR. DEVEREAUX. MR. CHAIRMAN, WILL THE GENTLEMAN YIELD?

MR. VAN ZANDT. I YIELD.

MR. DEVEREAUX. IS THERE A LIMITATION AS TO HOW LONG THIS PROHIBITION SHALL REMAIN IN PERATION?

MR. VAN ZANDT. FOR THE DURATION OF THE EMERGENCY.

MR. DEVEREUX. FOR THE DURATION OF THE EMERGENCY AS WE UNDERSTAND IT TO BE.

MR. VAN ZANDT. YES. IF THIS AMENDMENT IS ADOPTED WE WILL FOLLOW THE SAME PRACTICE DURING THIS EMERGENCY THAT WE FOLLOWED DURING WORLD WARS I AND II.

MR. TABER. IF THE GENTLEMAN WILL YIELD, THIS COULD BE APPLICABLE ONLY TO THE FUNDS PROVIDED IN THIS BILL ANY WAY.

MR. VAN ZANDT. THAT IS UNDERSTOOD, AND WE WOULD HAVE TO RENEW THIS LIMITATION ON THE EXPENDITURE OF FUNDS FOR THE NEXT FISCAL YEAR.

THE PROVISO IN QUESTION, AS ENACTED IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1952, WAS INCORPORATED IN THE DEPARTMENT OF DEFENSE APPROPRIATION BILL FOR THE FISCAL YEAR ENDING JUNE 30, 1953, H.R. 7391, WHICH BECAME THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953. THE DEPARTMENT OF DEFENSE REQUESTED THAT THE PROVISO BE DELETED FROM THE BILL AND IN THE JUSTIFICATION FOR SUCH REQUEST STATED THAT THE EFFECT OF THE PROVISO IS TO NULLIFY PROVISIONS THAT HAVE BEEN ENACTED PERMITTING VOLUNTARY RETIREMENTS. SEE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, 182D CONGRESS, ON H.R. 7391, AGES 833 TO 837. IN LIEU OF THE PROPOSAL TO DELETE THE PROVISO THE SENATE COMMITTEE CONSIDERING THE BILL PROPOSED TO AMEND THE PROVISO SO AS TO MAKE IT APPLICABLE ONLY TO VOLUNTARY RETIREMENTS PRIOR TO THE DATE THE OFFICER COMPLETES 30 YEARS OF SERVICE. HOWEVER, SUCH AMENDMENT WAS NOT AGREED TO BY THE HOUSE OF REPRESENTATIVES AND WAS ELIMINATED IN CONFERENCE. FROM THE FOREGOING IT SEEMS CLEAR THAT THE CONGRESS INTENDED AND THE DEPARTMENT OF DEFENSE UNDERSTOOD THAT SO LONG AS THE PROVISO SHOULD BE REPEATED IN ANNUAL APPROPRIATION ACTS FOR THE PAYMENT OF RETIRED PAY, SUCH PROVISION WOULD PRECLUDE THE PAYMENT OF RETIRED PAY IN THOSE CASES OF VOLUNTARY RETIREMENTS THEREIN SPECIFIED WHICH MIGHT BE EFFECTED AFTER THE DATE ON WHICH THE PROVISO FIRST BECAME EFFECTIVE, THAT IS, AFTER OCTOBER 18, 1951. TO CONCLUDE THAT THE RESTRICTION IN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1953 IS APPLICABLE ONLY IN THE CASE OF VOLUNTARY RETIREMENTS EFFECTED AFTER THE DATE OF ENACTMENT OF THAT ACT--- JULY 10, 1952--- WOULD PERMIT THE PAYMENT OF RETIRED PAY EFFECTIVE JULY 1, 1952, TO AN OFFICER VOLUNTARILY RETIRED ON THAT DATE AS WELL AS TO OFFICERS VOLUNTARILY RETIRED DURING THE PERIOD OCTOBER 18, 1951, TO JUNE 30, 1952, AND IF THE PROVISO IS CONTINUED IN SUBSEQUENT APPROPRIATION ACTS DURING THE EMERGENCY, THE VOLUNTARY RETIREMENT OF OFFICERS COULD BE MADE EFFECTIVE ON JULY 1 SO AS NOT TO DEPRIVE THE OFFICER OF RETIRED PAY FOR EVEN ONE MONTH (ASSUMING THAT THE ANNUAL APPROPRIATION ACTS WILL NOT BE ENACTED UNTIL AFTER COMMENCEMENT OF THE FISCAL YEAR FOR WHICH MADE, AS HAS BEEN THE CASE IN RECENT YEARS) THUS NULLIFYING THE RESTRICTION. THIS OFFICE WOULD NOT BE WARRANTED IN REACHING SUCH A CONCLUSION IN THE ABSENCE OF A CLEAR EXPRESSION BY THE CONGRESS OF SUCH AN INTENTION. ON THE CONTRARY, THE PURPOSE OF THE PROVISION IS TO DISCOURAGE PHYSICALLY FIT OFFICERS FROM VOLUNTARILY RETIRING DURING THE PRESENT STATE OF EMERGENCY AND, CONSIDERING THE LEGISLATIVE HISTORY AND THE PURPOSE AND POLICY TO BE FURTHERED, I THINK THE CONCLUSION IS REQUIRED THAT THE CONGRESS INTENDED THE PROVISO IN THE 1953 APPROPRIATION TO BE READ IN CONJUNCTION WITH THE IDENTICAL PROVISO IN THE 1952 APPROPRIATION AS EFFECTING A CONTINUATION OF THE PRIOR RESTRICTION FOR AT LEAST ONE MORE FISCAL YEAR. ACCORDINGLY, ANSWERING THE QUESTION PRESENTED, THE PAYMENT OF RETIRED PAY TO ADMIRAL CHANDLER FROM FUNDS APPROPRIATED BY THE ACT OF JULY 10, 1952, IS NOT AUTHORIZED.