B-112511, APRIL 2, 1953, 32 COMP. GEN. 425

B-112511, APRIL 2, 1953, 32 COMP. GEN. 425

PAY - RETIRED - BASED ON HIGHER RANK IN BRANCH OTHER THAN FROM WHICH RETIRED - CAREER COMPENSATION ACT OF 1949 IN ACCORDANCE WITH THE COURT OF CLAIMS DECISION IN SATTERWHITE V. UNITED STATES PAYMENT OF RETIRED PAY MAY BE MADE TO A MEMBER OF THE UNIFORMED SERVICES BASED ON A COMMISSIONED RANK HELD IN WORLD WAR I, IF ADVANCED TO THAT RANK ON THE RETIRED LIST OF THE SERVICE CONCERNED UNDER THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, EVEN THOUGH THE RANK WAS HELD IN A BRANCH OF SERVICE OTHER THAN THE ONE FROM WHICH RETIRED. DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, 29 COMP. GEN. 437, WHICH HELD, THAT UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO SATISFACTORILY HELD A HIGHER RANK IN A BRANCH OF THE SERVICE OTHER THAN THAT FROM WHICH RETIRED IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF SUCH HIGHER GRADE, IS STILL FOR APPLICATION IN CASES INVOLVING SECTION 511, NOTWITHSTANDING THE CONTRARY EFFECT GIVEN SOMEWHAT SIMILAR LANGUAGE IN SECTION 513 OF THE ACT BY THE COURT OF CLAIMS IN SATTERWHITE V. UNITED STATES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 2, 1953:

REFERENCE IS MADE TO LETTER OF YOUR PREDECESSOR DATED OCTOBER 21, 1952, REQUESTING DECISION AS TO WHETHER ON THE BASIS OF THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN SATTERWHITE V. UNITED STATES, C.CLS. NO. 50186, DECIDED MAY 6, 1952, PAYMENT OF RETIRED PAY TO A MEMBER OF THE UNIFORMED SERVICES, BASED ON A COMMISSIONED RANK HELD IN WORLD WAR I IN A BRANCH OF THE SERVICE OTHER THAN THAT FROM WHICH RETIRED, WOULD BE PASSED TO CREDIT IN THE ACCOUNT OF THE DISBURSING OFFICER CONCERNED SHOULD ADVANCEMENT BE MADE UNDER THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 830. ALSO, ON THE BASIS OF THE COURT'S DECISION YOU REQUEST RECONSIDERATION OF DECISION OF MAY 3, 1950, B-92313 (29 COMP. GEN. 437), WHEREIN IT WAS HELD THAT, UNDER THE PROVISIONS OF SECTION 511 OF THE SAID ACT, 63 STAT. 829, A RETIRED MEMBER OF THE COAST GUARD WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING.

SECTION 511 OF THE SAID ACT, 63 STAT. 829, AUTHORIZED CERTAIN RETIRED PERSONS THERETOFORE RETIRED TO RECEIVE 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 OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON 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 * * *.

SECTION 513, 63 STAT. 830, PROVIDES THAT---

ANY ENLISTED PERSON OR WARRANT OFFICER OF THE UNIFORMED SERVICES WHO SERVED IN WORLD WAR I, HERETOFORE OR HEREAFTER RETIRED FOR ANY REASON, SHALL (1) BE ADVANCED ON THE RETIRED LIST OF THE SERVICE CONCERNED TO THE HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE SATISFACTORILY HELD BY SUCH ENLISTED PERSON OR WARRANT OFFICER UNDER A PERMANENT OR TEMPORARY APPOINTMENT FOR ANY PERIOD OF SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND (2) IF NOT ENTITLED TO RECEIVE RETIRED PAY OR DISABILITY RETIREMENT PAY BASED ON A HIGHER OFFICER RANK OR GRADE BY SOME OTHER PROVISION OF LAW, BE ENTITLED TO RECEIVE RETIRED PAY OR DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE OFFICER RANK OR GRADE TO WHICH PREVIOUSLY ADVANCED ON A RETIRED LIST OR COMPUTED ON THE BASIS OF THE OFFICER GRADE OR RANK AUTHORIZED BY THIS SECTION * * *.

SATTERWHITE WAS A RETIRED NAVY ENLISTED MAN WHO PREVIOUSLY SATISFACTORILY HELD THE FEDERALLY RECOGNIZED RANK OF CAPTAIN IN THE ARMY DURING WORLD WAR I. HE WAS ADVISED BY THE CHIEF OF NAVAL PERSONNEL THAT HIS CLAIM FOR THE DIFFERENCE BETWEEN THE RETIRED PAY OF A CAPTAIN AND THE RETIRED PAY OF AN ENLISTED MAN COULD NOT BE RECOGNIZED, SINCE THE JUDGE ADVOCATE GENERAL OF THE NAVY HAD DETERMINED THAT HE COULD NOT BE ADVANCED ON THE RETIRED LIST OF THE NAVY DEPARTMENT TO A RANK EQUIVALENT TO THAT OF CAPTAIN IN THE ARMY. HOWEVER, THE COURT OF CLAIMS, VIEWING SECTION 513 AS BROAD IN SCOPE AND CLEAR IN ITS LANGUAGE, REQUIRING ONLY THAT THE CLAIMANT (1) MUST BE AN ENLISTED PERSON OR WARRANT OFFICER OF THE UNIFORMED SERVICES, (2) MUST BE NOW RETIRED, AND (3) MUST HAVE SATISFACTORILY HELD A FEDERALLY RECOGNIZED OFFICER RANK OR GRADE UNDER A PERMANENT OR TEMPORARY APPOINTMENT DURING WORLD WAR I BETWEEN THE PRESCRIBED DATES, CONCLUDED THAT SATTERWHITE MET ALL THE REQUIREMENTS OF THE STATUTE.

IN VIEW OF THE LACK OF ANY LEGISLATIVE HISTORY CONCERNING THE SAID SECTION 513 TO THE CONTRARY EFFECT, ITS LITERAL LANGUAGE APPEARS TO BE SUFFICIENTLY BROAD TO SUSTAIN THE COURT'S HOLDING. SINCE THE DEPARTMENT OF JUSTICE HAS ADVISED THE TREASURY DEPARTMENT THAT NO FURTHER ACTION WILL BE TAKEN IN THE MATTER, THE JUDGMENT OF THE COURT OF CLAIMS IS FINAL AND WILL BE ACCEPTED BY THIS OFFICE AS GOVERNING OTHER LIKE CLAIMS ARISING UNDER SECTION 513. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO YOUR REQUEST FOR RECONSIDERATION OF DECISION OF THIS OFFICE DATED MAY 3, 1950, IT MAY BE NOTED THAT IN ADDITION TO THE FACT THAT THE LANGUAGE OF SECTION 513 DIFFERS SOMEWHAT FROM THAT CONTAINED IN SECTION 511, THE LEGISLATIVE BACKGROUND OF THIS LATTER SECTION, DISCUSSED IN THE SAID DECISION OF MAY 3, 1950, LENDS SUPPORT TO THE CONCLUSION THAT IT WAS NOT INTENDED TO AUTHORIZE THE COMPUTATION OF RETIRED PAY ON THE PAY OF A HIGHER RANK, GRADE, OR RATING HELD IN A BRANCH OF THE SERVICE OTHER THAN THE BRANCH IN WHICH RETIRED. ALSO, SECTION 511 DOES NOT APPLY TO MEMBERS THEREAFTER RETIRED, AND TO HOLD THAT THOSE THERETOFORE RETIRED MAY HAVE THE ADVANTAGE OF HIGHER RANKS IN OTHER BRANCHES OF THE SERVICE WOULD CREATE A DISCRIMINATION BETWEEN THE TWO GROUPS, NOT INVOLVED UNDER SECTION 513. IT IS AT LEAST DOUBTFUL THAT THE CONGRESS INTENDED ANY SUCH DISCRIMINATION. THOSE CONSIDERATIONS WERE NOT PRESENT IN THE SATTERWHITE CASE AND IF A CASE INVOLVING SECTION 511 SHOULD COME BEFORE THE COURT OF CLAIMS SUCH CONSIDERATIONS MIGHT PERSUADE THE COURT THAT THE RULE IN THE SATTERWHITE CASE IS NOT APPLICABLE UNDER SECTION 511. THEREFORE, AND SINCE THE EFFECT GIVEN SECTION 513 BY THE COURT OF CLAIMS APPEARS TO BE A RADICAL DEPARTURE FROM THE POLICY PREVIOUSLY ADOPTED BY THE CONGRESS IN THAT RESPECT, IT IS THE VIEW OF THIS OFFICE THAT THE COURT'S DECISION SHOULD BE LIMITED STRICTLY TO CASES GOVERNED BY THE PROVISIONS OF SECTION 513. FOR THOSE REASONS, YOU ARE ADVISED THAT THE DECISION OF MAY 3, 1950, WILL CONTINUE TO BE FOR APPLICATION IN CASES INVOLVING SECTION 511.