B-122314, FEBRUARY 17, 1955, 34 COMP. GEN. 387

B-122314, FEBRUARY 17, 1955, 34 COMP. GEN. 387

PAY - ADVANCEMENT IN RANK ON RETIRED LIST - ACTIVE DUTY PAY AFTER RETIREMENT A RETIRED NAVY CAPTAIN WHO WAS ADVANCED ON THE RETIRED LIST PURSUANT TO SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, TO THE RANK OF REAR ADMIRAL AND RECALLED TO ACTIVE DUTY AS A CAPTAIN AND BY SUBSEQUENT ORDERS WHICH STATED THAT HE WOULD "CONTINUE TO SERVE ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL" SERVED IN SUCH RANK, IS ENTITLED TO ACTIVE DUTY PAY OF A REAR ADMIRAL ONLY FROM THE DATE OF THE SUBSEQUENT ORDERS. A NAVY CAPTAIN WHO WAS ADVANCED ON THE RETIRED LIST, PURSUANT TO SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, TO THE HONORARY RANK OF REAR ADMIRAL BY REASON OF HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF COMBAT DUTY, AND WHO SUBSEQUENTLY SERVED ON ACTIVE DUTY AS REAR ADMIRAL, IS ENTITLED EFFECTIVE OCTOBER 1, 1949, UNDER THE CAREER COMPENSATION ACT OF 1949, TO RETIRED PAY BASED ON THE RANK OF REAR ADMIRAL IN VIEW OF THE SPECIFIC DETERMINATION OF THE SECRETARY OF THE NAVY THAT THE HIGHEST FEDERALLY RECOGNIZED RANK SATISFACTORILY HELD BY THE OFFICER WAS THAT OF REAR ADMIRAL.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY FEBRUARY 17, 1955:

REFERENCE IS MADE TO LETTER OF DECEMBER 13, 1954, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, FORWARDING A REQUEST FOR DECISION FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY. THE QUESTION PRESENTED IS WHETHER, IN THE CIRCUMSTANCES STATED, REAR ADMIRAL PAUL L. MATHER, UNITED STATES NAVY, RETIRED, IS ENTITLED (1) TO THE DIFFERENCE BETWEEN ACTIVE-DUTY PAY BASED ON THE RANK OF REAR ADMIRAL (LOWER HALF) AND THAT OF CAPTAIN, WITH OVER 27 BUT LESS THAN 30 YEARS' CREDITABLE SERVICE, FOR THE PERIOD JANUARY 23, 1947, TO NOVEMBER 8, 1947, INCLUSIVE, AND (2) TO THE DIFFERENCE BETWEEN RETIRED PAY BASED ON THE RANK OF REAR ADMIRAL (LOWER HALF) AND THAT OF CAPTAIN, COMMENCING OCTOBER 1, 1949, EXCEPT FOR PERIODS DURING WHICH HE WAS FEDERALLY EMPLOYED.

THE RECORD SHOWS THAT THE OFFICER HELD THE PERMANENT RANK OF COMMANDER IN THE REGULAR NAVY WHEN HE WAS RETIRED ON JANUARY 1, 1947, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 417, BY REASON OF PHYSICAL DISABILITY. AT THE TIME OF HIS RETIREMENT HE WAS SERVING IN THE HIGHER TEMPORARY RANK OF CAPTAIN (UNDER A TEMPORARY APPOINTMENT MADE PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350-350J). BASED UPON A DETERMINATION OF THE SECRETARY OF THE NAVY THAT HE HAD SERVED SATISFACTORILY PRIOR TO JUNE 30, 1946, UNDER SUCH TEMPORARY APPOINTMENT AS CAPTAIN, HE WAS ADVANCED TO THE RANK OF CAPTAIN ON THE RETIRED LIST AS PROVIDED IN 34 U.S.C. 350I AND BECAME ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF SUCH RANK.

IN ADDITION, SINCE THE OFFICER HAD BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE DEPARTMENT CONCERNED, HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF REAR ADMIRAL (LOWER HALF) IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. (1946 ED.) 404 (1), THEN IN EFFECT, WHICH PROVIDED THAT OFFICERS OF THE NAVY, WITH EXCEPTIONS NOT HERE MATERIAL, WHO HAD BEEN SO COMMENDED SHOULD UPON RETIREMENT "BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.'

ORDERS RECALLING THE OFFICER TO ACTIVE DUTY WERE ISSUED ON JANUARY 20, 1947, BY THE CHIEF OF NAVAL PERSONNEL. THESE ORDERS WERE ADDRESSED TO " CAPTAIN PAUL L. MATHER, USN RETIRED," AND IT IS STATED THAT THE OFFICER REPORTED TO ACTIVE DUTY ON JANUARY 23, 1947, IN THE RANK OF CAPTAIN. ORDERS ISSUED SUBSEQUENTLY BY THE CHIEF OF NAVAL PERSONNEL ON FEBRUARY 24, 1947, HOWEVER, WERE ADDRESSED TO HIM AS " REAR ADMIRAL PAUL L. MATHER, USN, RETIRED" AND ADVISED THE OFFICER THAT IN VIEW OF HIS TRANSFER TO THE RETIRED LIST EFFECTIVE JANUARY 1, 1947, IN THE RANK OF REAR ADMIRAL, AND THE ORDERS OF JANUARY 20, 1947, WHICH RECALLED HIM TO ACTIVE DUTY, HE HAD BEEN SERVING AND WOULD "CONTINUE TO SERVE ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL USN, RETIRED.'

ON NOVEMBER 8, 1947, REAR ADMIRAL MATHER COMPLETED 30 YEARS OF SERVICE CREDITABLE FOR PAY PURPOSES. HE WAS RELEASED FROM ACTIVE DUTY ON JANUARY 6, 1948, REVERTING THE FOLLOWING DAY TO INACTIVE STATUS ON THE RETIRED LIST OF THE NAVY.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C. (1946 ED.) 115--- IN EFFECT DURING THE PERIOD REAR ADMIRAL MATHER WAS ON ACTIVE DUTY FOLLOWING HIS RETIREMENT--- PROVIDED IN PERTINENT PART THAT "RETIRED OFFICERS OF THE ARMY, NAVY * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE TY.' THE ORDERS OF JANUARY 20, 1947, EXPRESSLY RECALLED THE OFFICER TO ACTIVE DUTY AS A CAPTAIN, UNITED STATES NAVY, RETIRED, AND AS HE ACTUALLY SERVED ON ACTIVE DUTY IN THE RANK OF CAPTAIN DURING THE PERIOD JANUARY 23, THROUGH FEBRUARY 23, 1947, NO BASIS IS PRESENTED FOR PAYMENT OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL FOR SUCH PERIOD. THE SUBSEQUENT ORDERS OF FEBRUARY 24, 1947, MAY NOT BE GIVEN ANY RETROACTIVE EFFECT (22 COMP. GEN. 328; COMPARE 26 COMP. GEN. 475, 477, AND 23 COMP. GEN 713, 716) BUT THEY MAY BE GIVEN PROSPECTIVE EFFECT. 22 COMP. GEN. 328. SINCE THE LATTER ORDERS DIRECTED THE OFFICER TO CONTINUE TO SERVE ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL AND THE RECORD SHOWS THAT HE SERVED IN THAT RANK FROM FEBRUARY 24, 1947, THROUGH JANUARY 6, 1948, HE IS ENTITLED UNDER THE CITED PROVISIONS OF SECTION 15 OF THE 1942 ACT, TO THE DIFFERENCE BETWEEN THE ACTIVE-PAY DUTY OF A REAR ADMIRAL (LOWER HALF) AND THAT OF A CAPTAIN WITH OVER 27 BUT LESS THAN 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD FEBRUARY 24, 1947, THROUGH NOVEMBER 8, 1947.

NO ADJUSTMENT APPEARS TO BE NECESSARY FOR THE PERIOD FROM NOVEMBER 9, 1947, THROUGH JANUARY 6, 1948. THE OFFICER COMPLETED 30 YEARS OF CREDITABLE SERVICE ON NOVEMBER 8, 1947, AND AFTER THAT DATE HIS ACTIVE PAY AS A CAPTAIN WITH OVER 30 YEARS' CREDITABLE SERVICE WAS THE SAME AS THAT THEN PRESCRIBED FOR A REAR ADMIRAL (LOWER HALF). SEE 37 U.S.C. (1946 ED.) 101, 107.

THE RECORD SHOWS THAT REAR ADMIRAL MATHER HAS ELECTED UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. (1952 ED.) 281, TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS PRESCRIBED IN SECTION 511 OF THAT ACT, 63 STAT. 829, 37 U.S.C. 311. SUCH ELECTION ENTITLED HIM TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (B) IN SECTION 511, THAT IS, TO HAVE SUCH PAY COMPUTED ON THE BASIC PAY OF "THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED.' ENCLOSURE (6), DATED NOVEMBER 16, 1954, RECEIVED WITH THE LETTER OF DECEMBER 13, 1954, EVIDENCES A DETERMINATION BY THE SECRETARY OF THE NAVY, UNDER THE AUTHORITY OF SECTION 511, THAT THE HIGHEST FEDERALLY RECOGNIZED RANK SATISFACTORILY HELD BY THE OFFICER IS THAT OF REAR ADMIRAL. ON THE BASIS OF SUCH DETERMINATION, THE MATTER FALLS WITHIN THE SCOPE OF THE DECISIONS OF THE COURT OF CLAIMS IN ALGER V. UNITED STATES, 126 C.1CLS. 561, AND MILLER V. UNITED STATES, 123 C.1CLS. 351, HOLDING THAT SECTION 511 CONFERS THE RIGHT TO "RETIRED PAY COMPUTED UPON THE BASIS OF THE HIGHEST RANK SATISFACTORILY HELD ON ACTIVE DUTY BY THE RETIRED MEMBER DURING HIS ENTIRE CAREER, WHETHER THE RANK BE HELD BY FORMAL "APPOINTMENT" OR BY ADVANCEMENT BY STATUTE.' CONSEQUENTLY, THE OFFICER IS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS OF THE RANK OF REAR ADMIRAL (LOWER HALF), SUCH RETIRED PAY BEING SUBJECT, OF COURSE, TO APPROPRIATE ADJUSTMENT FOR ANY PERIODS AFTER HIS RETIREMENT WHEN HE WAS A CIVILIAN EMPLOYEE OF THE GOVERNMENT. COMPARE B-119880, JULY 26, 1954.