B-115121, JULY 8, 1953, 33 COMP. GEN. 10

B-115121: Jul 8, 1953

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WHO IS RETIRED OR SEPARATED FROM THE SERVICE FOR PHYSICAL DISABILITY UNDER SECTION 402 (D) OR SECTION 403. IS NOT ENTITLED TO RETIRED OR SEVERANCE PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK. 1953: REFERENCE IS MADE TO LETTER OF MAY 6. DETERMINED BY THE SECRETARY CONCERNED TO HAVE SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK. OR RATING IN A BRANCH OF THE UNIFORMED SERVICES OTHER THAN THAT FROM WHICH RETIRED OR SEPARATED WOULD BE ENTITLED TO HAVE HIS RETIRED OR SEVERANCE PAY COMPUTED ON THE BASIS OF SUCH HIGHER TEMPORARY RANK. IT WAS HELD THAT UNDER SUCH PROVISIONS A RETIRED MEMBER OF THE COAST GUARD WHO SATISFACTORILY HELD A HIGHER RANK. OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES WAS NOT ENTITLED.

B-115121, JULY 8, 1953, 33 COMP. GEN. 10

PAY - RETIRED AND SEVERANCE - BASED ON HIGHER RANK IN BRANCH OTHER THAN FROM WHICH RETIRED - CAREER COMPENSATION ACT OF 1949 A MEMBER OF THE UNIFORMED SERVICES, WHO IS RETIRED OR SEPARATED FROM THE SERVICE FOR PHYSICAL DISABILITY UNDER SECTION 402 (D) OR SECTION 403, OF THE CAREER COMPENSATION ACT OF 1949, AND WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN A BRANCH OF THE SERVICE OTHER THAN THAT FROM WHICH RETIRED OR SEPARATED, IS NOT ENTITLED TO RETIRED OR SEVERANCE PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE OR RATING.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JULY 8, 1953:

REFERENCE IS MADE TO LETTER OF MAY 6, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY REFERRING TO DECISION OF APRIL 2, 1953, B-112511, 32 COMP. GEN. 425, CONCERNING THE APPLICATION OF THE PROVISIONS OF SECTIONS 511 AND 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829 AND 830, IN THE COMPUTATION OF THE RETIRED PAY OF MEMBERS WHO HELD A HIGHER RANK, GRADE, OR RATING IN A BRANCH OF THE UNIFORMED SERVICES OTHER THAN THAT IN WHICH RETIRED, AND REQUESTING A FURTHER DECISION AS TO WHETHER A MEMBER RETIRED UNDER THE PROVISIONS OF SECTION 402 OF THE ACT, 63 STAT. 816, OR SEPARATED UNDER THE PROVISIONS OF SECTION 403, 63 STAT. 820, AND DETERMINED BY THE SECRETARY CONCERNED TO HAVE SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK, GRADE, OR RATING IN A BRANCH OF THE UNIFORMED SERVICES OTHER THAN THAT FROM WHICH RETIRED OR SEPARATED WOULD BE ENTITLED TO HAVE HIS RETIRED OR SEVERANCE PAY COMPUTED ON THE BASIS OF SUCH HIGHER TEMPORARY RANK, GRADE, OR RATING.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 AUTHORIZES 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 * * *.

IN DECISION OF MAY 3, 1950, 29 COMP. GEN. 437, IT WAS HELD THAT UNDER SUCH PROVISIONS A RETIRED MEMBER OF THE COAST GUARD WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES WAS NOT ENTITLED, WHILE ON THE RETIRED LIST OF THE COAST GUARD, TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING.

SUBSEQUENTLY, IN THE CASE OF SATTERWHITE V. UNITED STATES, C.1CLS. NO. 50186, DECIDED MAY 6, 1952, 123 C.1CLS. 342, THERE WERE CONSIDERED THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 830, WHICH READS AS FOLLOWS:

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 HAD SATISFACTORILY HELD THE FEDERALLY RECOGNIZED RANK OF CAPTAIN IN THE ARMY DURING WORLD WAR I AND THE COURT HELD THAT UNDER THE PROVISIONS OF SECTION 513 HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF SUCH RANK.

IN THE DECISION OF APRIL 2, 1953, REFERRED TO ABOVE, THE SECRETARY OF DEFENSE WAS ADVISED THAT THE JUDGMENT OF THE COURT OF CLAIMS IN THE SATTERWHITE CASE WOULD BE ACCEPTED BY THIS OFFICE AS GOVERNING OTHER LIKE CLAIMS UNDER SECTION 513. ON THE OTHER HAND, HE WAS ALSO ADVISED THAT, IN VIEW OF THE SUBSTANTIAL DIFFERENCES BETWEEN THE LANGUAGE OF SECTION 513 AND THE LANGUAGE OF SECTION 511 OF THE ACT, AND IN VIEW OF THE LEGISLATIVE BACKGROUND OF THIS LATTER SECTION, DISCUSSED IN THE SAID DECISION OF MAY 3, 1950, THIS OFFICE WOULD NOT CONSIDER THE RULE IN THE SATTERWHITE CASE AS BING APPLICABLE TO CASES ARISING UNDER THE SAID SECTION 511.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT, 63 STAT. 818, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER * * *.

SECTION 403 THEREOF PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THE DISABILITY SEVERANCE PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN 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 SEPARATION, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF SEPARATION, WHICHEVER IS EARLIER * * *.

AS IN THE CASE OF SECTION 511, THE PROVISIONS OF SECTIONS 402 (D) AND 403 APPEAR TO STEM FROM THE PROVISIONS CONTAINED IN SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, RELATING PRIMARILY TO THE NAVY, AND SECTION 203 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, RELATING TO THE ARMY AND AIR FORCE. AS NOTED IN 29 COMP. GEN. 437, SUCH PRIOR LEGISLATION AUTHORIZING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF A HIGHER TEMPORARY GRADE GENERALLY LIMITED SUCH BENEFIT TO THE SERVICE IN WHICH RETIRED, THUS SUGGESTING THAT HAD THE CONGRESS INTENDED TO ADOPT A NEW LEGISLATIVE POLICY IN THAT RESPECT, DOUBTLESS IT WOULD HAVE CLEARLY INDICATED ITS INTENTION BY THE USE OF APT LANGUAGE FOR THAT PURPOSE, AS WAS DONE WITH RESPECT TO OTHER DEPARTURES FROM PRIOR LEGISLATION INCLUDED IN THE ACT. AS A MATTER OF FACT, SECTIONS 412 AND 413 OF THE DRAFT OF THE BILL PROPOSED BY THE HOOK COMMISSION (SEE H.R. 2553--- 81ST CONG.) AUTHORIZED THE COMPUTATION OF RETIRED AND SEVERANCE PAY ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD "DURING HIS ENTIRE SERVICE," WHICH LANGUAGE MIGHT HAVE AUTHORIZED THE COMPUTATION OF SUCH PAY ON THE BASIS OF SUCH HIGHEST RANK OR GRADE HELD IN ANY BRANCH OF THE SERVICES. CF. 30 COMP. GEN. 262. THAT LANGUAGE, HOWEVER, WAS ABANDONED IN FAVOR OF THE PRESENT PROVISIONS. HENCE, IN THE ABSENCE OF A CLEAR EXPRESSION OF LEGISLATIVE INTENT TO DEPART FROM THE CONDITIONS AND LIMITATIONS PRESCRIBED IN PRIOR LEGISLATION RELATING TO THE SERVICE IN WHICH SUCH HIGHER TEMPORARY RANK, GRADE, OR RATING, MUST HAVE BEEN HELD FOR PURPOSES OF COMPUTING RETIRED OR RETIREMENT PAY, THIS OFFICE WOULD NOT BE WARRANTED IN ARRIVING AT A DIFFERENT CONCLUSION WITH RESPECT TO THE APPLICATION OF SECTIONS 402 (D) AND 403. ACCORDINGLY, YOUR QUESTIONS ARE ANSWERED IN THE NEGATIVE.