B-11441, JULY 26, 1940, 20 COMP. GEN. 53

B-11441: Jul 26, 1940

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THE RETIRED PAY OF AN ENLISTED MAN IS REQUIRED TO BE COMPUTED ON HIS ACTIVE DUTY PAY IN THE GRADE HELD WHEN APPLICATION FOR RETIREMENT IS MADE. 1940: I HAVE YOUR LETTER OF JULY 23. THE SUSPENSIONS RELATE TO 97 RETIRED ENLISTED MEN WHO WERE RETIRED DURING THE YEARS SHOWN BELOW: CHART 1916. - 7 THE SUSPENSIONS WERE MADE BECAUSE OF DECISION OF MARCH 21. HIS APPLICATION WAS APPROVED DECEMBER 10. ORDERS WERE ISSUED DECEMBER 13. HIS RATING WAS CHANGED TO CHIEF MACHINIST'S MATE. THE QUESTION WAS WHETHER HE COULD BE PAID RETIRED PAY IN THE RATING LAST NAMED AS HE HAD NEVER BEEN PAID THAT PAY ON THE ACTIVE LIST. IT WAS HELD THAT THERE WAS NO AUTHORITY TO CHANGE THE GRADE OF AN ENLISTED MAN AFTER HE HAD MADE APPLICATION FOR RETIREMENT AFTER 30 YEARS' SERVICE UNDER THE ACT OF MARCH 2.

B-11441, JULY 26, 1940, 20 COMP. GEN. 53

STATUTORY CONSTRUCTION - RETIREMENT OF ENLISTED MEN - CHANGE FROM LONG EXISTING PRACTICE - APPLICATION TO PRIOR RETIREMENTS DECISION OF MARCH 21, 1938, 17 COMP. GEN. 759, HOLDING THAT UNDER THE ACT OF MARCH 2, 1907, 34 STAT. 1217, THE RETIRED PAY OF AN ENLISTED MAN IS REQUIRED TO BE COMPUTED ON HIS ACTIVE DUTY PAY IN THE GRADE HELD WHEN APPLICATION FOR RETIREMENT IS MADE, EFFECTED A CHANGE, BY CONSTRUCTION OF SAID ACT, FROM THE LONG-EXISTING PRACTICE UNDER THE STATUTE, AND HENCE SAID DECISION, EXCEPT AS TO THE CASE THEREIN CONSIDERED, MAY BE REGARDED AS APPLICABLE ONLY TO RETIREMENTS THEREAFTER MADE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 26, 1940:

I HAVE YOUR LETTER OF JULY 23, 1940, ENCLOSING A LETTER OF JULY 22, 1940, FROM THE PAYMASTER OF THE MARINE CORPS, ENCLOSING NOTICES OF EXCEPTION FROM THE AUDIT DIVISION OF THIS OFFICE ON STANDARD FORM NO. 1100, DATED JULY 12, 1940, IN THE ACCOUNTS OF CAPT. ROBERT L. GRIFFIN, JR., ASSISTANT PAYMASTER, UNITED STATES MARINE CORPS, FOR THE MONTH OF JANUARY 1940, OF THE DIFFERENCE BETWEEN AMOUNTS PAID TO RETIRED ENLISTED MEN OF THE MARINE CORPS AS OF THE GRADE IN WHICH RETIRED AND PAY OF THE GRADE HELD BY EACH OF THE ENLISTED MEN ON THE DATE THEY MADE APPLICATION FOR RETIREMENT AFTER 30 YEARS OF SERVICE. THE SUSPENSIONS RELATE TO 97 RETIRED ENLISTED MEN WHO WERE RETIRED DURING THE YEARS SHOWN BELOW:

CHART 1916------------------- 2 1924------------------ 1 1933---- ------- - 5 1918------------------- 1 1928------------------ 3 1934--- --------- 5 1920------------------- 1 1929------------------ 5 1935- -----------17 1921------------------- 6 1930------------------ 6 1936-------------15 1922------------------- 1 1931------------------ 5 1937-------------11 1923------------------- 6 1932----------------- 7

THE SUSPENSIONS WERE MADE BECAUSE OF DECISION OF MARCH 21, 1938, TO THE SECRETARY OF THE NAVY, 17 COMP. GEN. 759. IN THAT CASE A MACHINIST'S MATE, FIRST CLASS, OF THE NAVY MADE APPLICATION FOR RETIREMENT AFTER 30 YEARS' SERVICE NOVEMBER 29, 1937; HIS APPLICATION WAS APPROVED DECEMBER 10, 1937; ORDERS WERE ISSUED DECEMBER 13, 1937, TRANSFERRING HIM TO THE RETIRED LIST EFFECTIVE JANUARY 1, 1938, AND ON DECEMBER 31, 1937, HIS RATING WAS CHANGED TO CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, AND THE QUESTION WAS WHETHER HE COULD BE PAID RETIRED PAY IN THE RATING LAST NAMED AS HE HAD NEVER BEEN PAID THAT PAY ON THE ACTIVE LIST.

ON THE AUTHORITY OF DECISIONS OF THE COURT OF CLAIMS IN THE CASES OF BLACKETT V. UNITED STATES, 81 CT.1CLS. 884, AND STANDERSON V. UNITED STATES, 83 CT.1CLS. 633, IT WAS HELD THAT THERE WAS NO AUTHORITY TO CHANGE THE GRADE OF AN ENLISTED MAN AFTER HE HAD MADE APPLICATION FOR RETIREMENT AFTER 30 YEARS' SERVICE UNDER THE ACT OF MARCH 2, 1907, 34 STAT. 1217 (10 U.S.C. 947), THE COURT IN THE CITED CASES HAVING HELD THAT A MAN HAD AN UNCONDITIONAL RIGHT TO RETIREMENT WITH 75 PERCENTUM OF THE PAY HE WAS RECEIVING ON DATE OF APPLICATION FOR RETIREMENT AFTER 30 YEARS' SERVICE, THAT THE LAW FIXED THE GRADE IN WHICH HE SHOULD RETIRE AND THAT IT GAVE NO AUTHORITY TO ANYONE FOR ANY CAUSE WHATSOEVER TO DESIGNATE THE GRADE AFTER APPLICATION HAD BEEN MADE TO THE PRESIDENT FOR RETIREMENT. THE COURT REMARKED THAT A REASONABLE TIME WAS NECESSARY TO ISSUE THE ORDERS OF RETIREMENT TO PERMIT VERIFICATION OF THE SERVICES BUT THAT OTHERWISE THE DEPARTMENT WAS WITHOUT ANY AUTHORITY SO FAR AS GRADE AND PAY WERE CONCERNED. THOSE CASES REPRESENT A DEPARTURE FROM THE RULE LONG FOLLOWED IN THE ARMY, NAVY, AND MARINE CORPS. THE THEORY UPON WHICH ADMINISTRATIVE ACTION HAD BEEN TAKEN WAS THAT UNTIL THE PRESIDENT ACTED ON THE APPLICATION THE MAN WAS IN THE MILITARY OR NAVAL SERVICES AND, THEREFORE, SUBJECT TO THE INCIDENTS OF THAT SERVICE INCLUDING DEMOTION OR PROMOTION AND TO DISCIPLINARY ACTION IN EVERY OTHER RESPECT. THE DECISIONS OF THE COURT AND THEIR APPLICATION BY THIS OFFICE EFFECTED A CHANGE, BY CONSTRUCTION OF THE ACT CITED, FROM THE LONG-EXISTING PRACTICE UNDER THE STATUTE AND ALTHOUGH THE CASES IN THE COURT OF CLAIMS INVOLVED CLAIMS FOR PAY IN A HIGHER GRADE FOR PAST PERIODS BECAUSE OF ADMINISTRATIVE ACTION IN REDUCING THE MAN TO A LOWER GRADE AFTER APPLICATION FOR RETIREMENT, THE COURT'S LANGUAGE AND NECESSARILY ITS ACTION LEFT NO DOUBT THAT THE RULE WAS THE SAME WITH RESPECT TO CHANGE IN GRADE UPWARD. HOWEVER, SUCH A CHANGE OF CONSTRUCTION SHOULD NOT BE APPLIED TO RETIREMENTS THERETOFORE MADE IN ACCORD WITH THE PRACTICE IN EFFECT PRIOR THERETO. SEE 6 COMP. DEC. 91; 13 ID. 53; 37 MS. COMP. DEC. 1430, AND 12 OP. ATTY. GEN. 386.

THE STATUS OF THE INDIVIDUALS HERE CONCERNED IN THE GRADES TO WHICH PROMOTED HAS BEEN UNQUESTIONED TO THIS TIME; THE PROMOTIONS WERE MADE UNDER THE PRACTICAL CONSTRUCTION OF THE LAW IN EFFECT WHEN THE MEN WERE RETIRED; AND THERE IS NO PROPER LEGAL BASIS FOR NOW QUESTIONING THE STATUS SO CREATED OR THE RIGHT TO THE PAY OF THE GRADE IN WHICH RETIRED. THE DECISION OF MARCH 21, 1938, EXCEPT AS TO THE CASE THEREIN CONSIDERED, MAY BE REGARDED AS APPLICABLE ONLY TO RETIREMENTS THEREAFTER MADE. THE ITEMS IN QUESTION, IF OTHERWISE CORRECT, WILL BE PASSED TO CREDIT.