B-116821, APRIL 6, 1954, 33 COMP. GEN. 430

B-116821: Apr 6, 1954

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PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND UPON PHYSICAL EXAMINATION FOR TEMPORARY PROMOTION - PROMOTIONS NOT BASED ON YEARS OF SERVICE OFFICERS OF THE NAVY AND MARINE CORPS WHOSE DISABILITY IS FIRST DISCOVERED IN EXAMINATIONS TO DETERMINE PHYSICAL QUALIFICATIONS FOR TEMPORARY PROMOTIONS. - IN CONNECTION WITH WHICH THERE ARE NO REQUIREMENTS OF PRIOR SERVICE OF ANY SPECIFIED DURATION. - ARE NOT ENTITLED. TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE PAY OF THE GRADES TO WHICH THEY WOULD HAVE BEEN PROMOTED HAD THEY PASSED SUCH EXAMINATIONS. 1954: REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF THE NAVY DATED AUGUST 25. REQUESTING DECISION AS TO WHETHER OFFICERS OF THE NAVY AND MARINE CORPS WHOSE DISABILITY IS FIRST DISCOVERED IN EXAMINATIONS TO DETERMINE THEIR PHYSICAL QUALIFICATIONS FOR TEMPORARY PROMOTIONS.

B-116821, APRIL 6, 1954, 33 COMP. GEN. 430

PAY - RETIRED - DISABILITY RETIREMENT PAY - DISABILITY FOUND UPON PHYSICAL EXAMINATION FOR TEMPORARY PROMOTION - PROMOTIONS NOT BASED ON YEARS OF SERVICE OFFICERS OF THE NAVY AND MARINE CORPS WHOSE DISABILITY IS FIRST DISCOVERED IN EXAMINATIONS TO DETERMINE PHYSICAL QUALIFICATIONS FOR TEMPORARY PROMOTIONS--- IN CONNECTION WITH WHICH THERE ARE NO REQUIREMENTS OF PRIOR SERVICE OF ANY SPECIFIED DURATION, EXCEPT FOR SENIORITY--- ARE NOT ENTITLED, UNDER THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE PAY OF THE GRADES TO WHICH THEY WOULD HAVE BEEN PROMOTED HAD THEY PASSED SUCH EXAMINATIONS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, APRIL 6, 1954:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF THE NAVY DATED AUGUST 25, 1953, REQUESTING DECISION AS TO WHETHER OFFICERS OF THE NAVY AND MARINE CORPS WHOSE DISABILITY IS FIRST DISCOVERED IN EXAMINATIONS TO DETERMINE THEIR PHYSICAL QUALIFICATIONS FOR TEMPORARY PROMOTIONS--- IN CONNECTION WITH WHICH THERE ARE NO REQUIREMENTS OF PRIOR SERVICE OF ANY SPECIFIED DURATION--- ARE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE PAY OF THE GRADES TO WHICH THEY WOULD HAVE BEEN PROMOTED HAD THEY PASSED SUCH EXAMINATIONS. THE REQUEST FOR DECISION IS CONCERNED WITH CASES INVOLVING EXAMINATIONS FOR TEMPORARY PROMOTIONS UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 55 STAT. 603, AS AMENDED, OR TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, AND UNDER REGULATIONS REQUIRING THE SELECTION FOR SUCH A PROMOTION OF THE MOST SENIOR IN RANK OF THE FULLY QUALIFIED OFFICERS OF THE GROUP UNDER CONSIDERATION.

THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, IS AS FOLLOWS:

* * * THAT IF THE PHYSICAL DISABILITY ENTITLING SUCH MEMBER TO DISABILITY RETIREMENT PAY IS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING A PERMANENT PROMOTION OR A TEMPORARY PROMOTION WHERE ELIGIBILITY FOR SUCH TEMPORARY PROMOTION WAS REQUIRED TO HAVE BEEN BASED UPON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN RANK, GRADE, OR RATING, THE DISABILITY RETIREMENT PAY OF SUCH MEMBER SHALL BE BASED UPON THE BASIC PAY OF THE RANK, GRADE, OR RATING TO WHICH SUCH MEMBER WOULD HAVE BEEN PROMOTED BUT FOR SUCH DISABILITY, IF SUCH RANK, GRADE, OR RATING IS HIGHER THAN ANY OTHER RANK, GRADE, OR RATING UPON WHICH SUCH PAY IS HEREIN AUTHORIZED TO BE COMPUTED AND WHICH SUCH MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING * * *. ( ITALICS SUPPLIED.)

IT IS STATED THAT THE ONLY OFFICERS IN THE NAVY WHO ARE NOW SUBJECT TO PROMOTION UNDER TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 ARE THOSE IN THE GRADE OF LIEUTENANT COMMANDER AND ABOVE, AND THAT THE ONLY OFFICERS IN THE MARINE CORPS WHO ARE NOW SUBJECT TO PROMOTION UNDER THE SAID TITLE III ARE THOSE IN THE GRADE OF LIEUTENANT COLONEL AND ABOVE. AS POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, SUBSECTION 307 (A) (3) OF THAT ACT, 61 STAT. 843, REQUIRES SPECIFIED NUMBERS OF YEARS OF SERVICE IN THE NAVY GRADES FROM LIEUTENANT (JUNIOR GRADE) TO CAPTAIN, FOR ELIGIBILITY FOR TEMPORARY PROMOTIONS. SECTION 314 OF THE ACT, 61 STAT. 863, MAKES SUCH REQUIREMENTS APPLICABLE TO CORRESPONDING GRADES IN THE MARINE CORPS.

IF THE ABOVE-QUOTED PROVISO HAD BEEN INTENDED TO AUTHORIZE HIGHER RETIREMENT PAY IN CASES WHERE ELIGIBILITY FOR CONSIDERATION FOR TEMPORARY PROMOTION IS ESTABLISHED BY SENIORITY ALONE, WITHOUT REGARD TO ANY PARTICULAR NUMBER OF YEARS OF TOTAL SERVICE, IT REASONABLY APPEARS THAT DIFFERENT LANGUAGE WOULD HAVE BEEN USED TO EXPRESS THAT INTENT. IN VIEW OF THE LANGUAGE APPEARING IN THE PROVISO, IT MUST BE CONCLUDED THAT IT CONTEMPLATES INCREASED RETIREMENT PAY BENEFITS IN CASES OF FAILURE TO QUALIFY PHYSICALLY FOR TEMPORARY PROMOTION ONLY IF, IN CONNECTION WITH SUCH PROMOTION, THERE ARE DEFINITE STATUTORY ELIGIBILITY REQUIREMENTS OF SPECIFIED PERIODS OF PRIOR SERVICE. COMPARE B-113447, APRIL 20, 1953, 32 COMP. GEN. 459. THUS, THE PROVISO IS APPLICABLE IN OTHERWISE PROPER CASES INVOLVING CONSIDERATION FOR TEMPORARY PROMOTION UNDER THE ABOVE-CITED SECTION 307 (A) (3) OF THE OFFICER PERSONNEL ACT OF 1947. IN ANY CASE, HOWEVER, WHERE THERE IS NO STATUTORY REQUIREMENT THAT THE OFFICER HAVE A STATED NUMBER OF PRIOR YEARS OF SERVICE, IN GRADE OR IN THE AGGREGATE, FOR ELIGIBILITY FOR TEMPORARY PROMOTION--- AS, FOR EXAMPLE, ANY CASE INVOLVING CONSIDERATION FOR TEMPORARY PROMOTION UNDER THE ACT OF JULY 24, 1941--- THE BENEFITS OF THE PROVISO DO NOT ACCRUE.