B-116037, DECEMBER 3, 1953, 33 COMP. GEN. 237

B-116037, DECEMBER 3, 1953, 33 COMP. GEN. 237

PAY - RETIRED - DISABILITY RETIREMENT PAY - SERVICE CREDITS - CONSTRUCTIVE SERVICE - OFFICERS INTEGRATED INTO REGULAR NAVY FROM NAVAL RESERVE THE PROPER METHOD OF COMPUTING LENGTH OF SERVICE FOR DISABILITY RETIREMENT PAY PURPOSES, UNDER ALTERNATE METHOD (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, IN CASES OF NAVAL OFFICERS WHO HAVE BEEN INTEGRATED INTO THE REGULAR NAVY FROM THE NAVAL RESERVE AND SUBSEQUENTLY RETIRED OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO TITLE IV OF THAT ACT, IS TO INCLUDE NOT ONLY ALL THE ACTIVE SERVICE OF SUCH OFFICERS BUT ALSO ANY CONSTRUCTIVE SERVICE CREDITABLE TO THEM UNDER SECTION 312 OF THE OFFICER PERSONNEL ACT OF 1947. A NAVAL OFFICER WHO, AT THE TIME OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, WAS ERRONEOUSLY ADVISED AS TO RIGHTS OF ELECTION IN CONNECTION WITH COMPUTATION OF RETIRED PAY MAY BE ADVISED OF RIGHTS IN THAT RESPECT AND GIVEN THE OPPORTUNITY TO MAKE SUCH ELECTION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 3, 1953:

REFERENCE IS MADE TO LETTER OF JUNE 30, 1953, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO THE PROPER METHOD OF CREDITING SERVICE FOR DISABILITY RETIREMENT PAY PURPOSES UNDER ALTERNATE METHOD (1), PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, IN CASES OF OFFICERS WHO HAVE BEEN INTEGRATED INTO THE REGULAR NAVY FROM THE NAVAL RESERVE AND SUBSEQUENTLY RETIRED OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO TITLE IV OF THAT ACT.

THE CASE OF CAPTAIN JOHN B. CLELAND, U.S. NAVY (RETIRED), IS CITED AS AN EXAMPLE OF THE TYPE OF CASE TO WHICH THE UNDER SECRETARY OF THE NAVY REFERS. IT APPEARS THAT CAPTAIN CLELAND WAS COMMISSIONED ENSIGN, USN, ON JUNE 4, 1925; THAT HE RESIGNED FROM THE NAVY ON DECEMBER 31, 1927, AND SHORTLY THEREAFTER ACCEPTED A COMMISSION AS ENSIGN, USNR, TO RANK FROM JUNE 4, 1925; THAT HE CONTINUOUSLY HELD RESERVE COMMISSIONED STATUS FROM THAT TIME AND WAS CALLED TO ACTIVE DUTY ON JUNE 14, 1940; AND THAT HE WAS TRANSFERRED TO, AND ACCEPTED A COMMISSION IN, THE REGULAR NAVY ON JULY 9, 1946. IT IS STATED THAT HIS DATE OF PERMANENT RANK AS CAPTAIN, U.S. NAVY, IS JULY 20, 1943, AND THAT HIS LINEAL PRECEDENCE IS WITH THE NAVAL ACADEMY CLASS OF 1925. CAPTAIN CLELAND STATES THAT INCIDENT TO HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON SEPTEMBER 1, 1953, WITH A 60 PERCENT DISABILITY RATING, HE WAS GIVEN THE CHOICE OF HAVING HIS RETIREMENT PAY COMPUTED BY EITHER OF METHODS (1) OR (2), SECTION 402 (D) OF THE CAREER COMPENSATION ACT, AND THAT SINCE HE WAS ADVISED THAT THE NUMBER OF YEARS HE COULD CLAIM AS "ACTIVE SERVICE" UNDER METHOD (1) WAS 15, HE ELECTED METHOD (2) AS BEING THE MORE ADVANTAGEOUS TO HIM.

THE TWO ALTERNATE METHODS OF COMPUTING DISABILITY RETIREMENT PAY AS PRESCRIBED IN SAID SECTION 402 (D) PERMIT COMPUTATION:

* * * 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. * * *

THE TERM "ACTIVE SERVICE" AS USED ABOVE IS DEFINED IN SECTION 412 OF THE CAREER COMPENSATION ACT, FOR MEMBERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES, AS INCLUDING:

* * * ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES * * *WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL TIME TRAINING OR OTHER FULL-TIME DUTY * * * OR ALL SERVICE WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON HAS OR IS DEEMED TO HAVE PURSUANT TO LAW FOR THE PURPOSE OF SEPARATION OR MANDATORY ELIMINATION FROM THE ACTIVE LIST OF HIS UNIFORMED SERVICE * * *. ( ITALICS SUPPLIED.)

TERMINABLE PROVISIONS OF LAW, APPARENTLY STILL IN EFFECT, GOVERNING MANDATORY RETIREMENT OF OFFICERS HOLDING PERMANENT APPOINTMENTS ON THE ACTIVE LIST OF THE NAVY, ARE CONTAINED IN SECTION 312 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795, 858, 34 U.S.C. 410J, THE PROVISIONS SETTING FORTH THE CONDITIONS REQUIRING RETIREMENT OF CAPTAINS AFTER A STATED NUMBER OF YEARS OF ,COMMISSIONED SERVICE" AS DEFINED IN SECTION 102 OF THAT ACT, BEING CONTAINED IN SUBSECTION (B) OF SECTION 312. CONCERNING SUCH "COMMISSIONED SERVICE" SUBSECTION (D) OF SAID SECTION 102, 61 STAT. 798, PROVIDES THAT:

* * * IN RESPECT TO ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST AND IN RESPECT TO SEPARATION FROM THE ACTIVE LIST, THE TOTAL COMMISSIONED SERVICE OF AN OFFICER WHO SHALL HAVE SERVED CONTINUOUSLY IN THE REGULAR NAVY FOLLOWING APPOINTMENT THEREIN IN THE GRADE OR RANK OF ENSIGN UPON GRADUATION FROM THE NAVAL ACADEMY OR PURSUANT TO THE ACT OF AUGUST 13, 1946 ( PUBLIC LAW 729, SEVENTY-NINTH CONGRESS), SHALL BE COMPUTED FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED SUCH APPOINTMENT. EACH OTHER OFFICER SHALL BE DEEMED TO HAVE FOR THESE PURPOSES AS MUCH TOTAL COMMISSIONED SERVICE AS ANY OFFICER DESCRIBED ABOVE IN THIS SUBSECTION WHO SHALL NOT HAVE LOST NUMBERS OR PRECEDENCE AND WHO IS, OR SHALL HAVE BEEN, JUNIOR TO SUCH OTHER OFFICER FOR THE PURPOSE OF ELIGIBILITY FOR PROMOTION OR SELECTION FOR PROMOTION SINCE THE DATE OF THE LATTER'S FIRST APPOINTMENT TO PERMANENT COMMISSIONED RANK IN THE REGULAR NAVY ABOVE THE GRADE OF COMMISSIONED WARRANT OFFICER, FOLLOWING WHICH HE SHALL HAVE SERVED CONTINUOUSLY ON THE ACTIVE LIST OF THE REGULAR NAVY. ( ITALICS SUPPLIED.)

UNDER THE LAST QUOTED PROVISIONS OF LAW, IT APPEARS THAT EACH OFFICER OF THE REGULAR NAVY (OTHER THAN NAVAL ACADEMY GRADUATES AND CERTAIN OTHERS WHO HAVE SERVED IN THE REGULAR NAVY CONTINUOUSLY SINCE INITIAL APPOINTMENT AS ENSIGN) IS DEEMED TO BE INTEGRATED WITH THE NAVAL ACADEMY CLASS OF WHICH THE NAVAL ACADEMY GRADUATE MEETING THE CONDITIONS PRESCRIBED IN THE STATUTE WAS A MEMBER, AND THAT FOR THE PURPOSE OF MANDATORY ELIMINATION OR SEPARATION FROM THE ACTIVE LIST OF THE REGULAR NAVY SUCH AN OFFICER IS CREDITED WITH ACTIVE SERVICE EQUAL TO THE ACTIVE SERVICE OF THAT NAVAL ACADEMY GRADUATE WHO HAS BEEN NEXT JUNIOR TO HIM FOR PROMOTION PURPOSES SINCE THE DATE OF HIS (THE SENIOR S) FIRST APPOINTMENT TO PERMANENT COMMISSIONED RANK (ABOVE COMMISSIONED WARRANT OFFICER) DURING HIS LATEST PERIOD OF CONTINUOUS SERVICE IN THE REGULAR NAVY.

FROM THE FOREGOING IT IS CONCLUDED THAT THE "ACTIVE SERVICE, REFERRED TO IN SECTIONS 402 (D) AND 412 OF THE CAREER COMPENSATION ACT INCLUDES NOT ONLY ALL THE ACTIVE SERVICE PERFORMED BY AN OFFICER OF THE REGULAR NAVY, BUT ALSO ANY CONSTRUCTIVE SERVICE WHICH IS CREDITABLE TO HIM UNDER THE ABOVE-QUOTED PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947.

FOR THE REASONS INDICATED, CAPTAIN CLELAND IS ENTITLED TO CREDIT UNDER METHOD (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT FOR THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM BY REASON OF HIS INTEGRATION WITH THE NAVAL ACADEMY CLASS OF 1925. AND SINCE AT THE TIME OF HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST HE WAS ERRONEOUSLY ADVISED AS TO HIS RIGHTS UNDER METHOD (1) AND IT APPEARS THAT IT IS TO HIS ADVANTAGE TO ELECT THAT METHOD, NO REASON IS PERCEIVED WHY HE SHOULD NOT NOW BE ADVISED OF HIS RIGHTS IN THAT CONNECTION AND BE GIVEN THE OPPORTUNITY TO MAKE SUCH ELECTION. COMPARE 32 COMP. GEN. 159, 162.