B-123158, JUL. 12, 1955

B-123158, JUL. 12, 1955

TO LIEUTENANT COMMANDER D. M. CARR (SC) UNITED STATES NAVY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1955, XR:RSC:JC L/16-4/1, REQUESTING DECISION AS TO WHETHER REAR ADMIRAL CHESTER L. NICHOLS, UNITED STATES NAVY, RETIRED, IS ENTITLED TO RETIRED PAY BEGINNING JULY 1, 1952, COMPUTED ON THE RANK OF REAR ADMIRAL (LOWER HALF) WITH OVER 30 YEARS' SERVICE, UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311. HE HAS BEEN PAID SUCH PAY FOR THE PERIOD FROM OCTOBER 1, 1949 TO JUNE 30, 1952.

REAR ADMIRAL NICHOLS, A PERMANENT COMMANDER, WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON JANUARY 1, 1947, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410B AND 410C AS CAPTAIN, THE TEMPORARY RANK IN WHICH HE WAS THEN SERVING. HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY, HE WAS, WHEN PLACED ON THE RETIRED LIST, ADVANCED TO THE RANK OF REAR ADMIRAL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 949, 34 U.S.C. (1946 ED.) 404 (1).

BY ORDERS OF JANUARY 2, 1947, OF THE CHIEF OF NAVAL PERSONNEL, ADDRESSED TO THE OFFICER AS ,REAR ADMIRAL CHESTER L. NICHOLS, USN, RETIRED," HE WAS RECALLED TO ACTIVE DUTY AND HE SERVED ON ACTIVE DUTY UNTIL JULY 17, 1947. THE SECRETARY OF THE NAVY HAS DETERMINED, PURSUANT TO THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, THAT THE HIGHEST FEDERALLY RECOGNIZED RANK IN WHICH THE OFFICER SERVED SATISFACTORILY WAS THAT OF REAR ADMIRAL.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, PROVIDES IN MATERIAL PART THAT:

"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY 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 * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * 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 * * *.'

THE COURT OF CLAIMS IN ALGER V. UNITED STATES, 126 C.CLS. 561, AND MILLER V. UNITED STATES, 123 C.CLS. 351, HELD THAT SECTION 511 CONFERS THE RIGHT TO "RETIRED PAY COMPUTED UPON THE BASIS OF THE HIGHEST RANK SATISFACTORILY HELD ON ACTIVE DUTY BY A RETIRED MEMBER DURING HIS ENTIRE CAREER, WHETHER THE RANK BE HELD BY FORMAL "APPOINTMENT" OR BY ADVANCEMENT BY STATUTE.'

FOLLOWING THE PRINCIPLE ENUNCIATED IN THE ALGER AND MILLER CASES, SUPRA, WE HELD IN DECISION OF FEBRUARY 17, 1955 (B-122314), 34 COMP. GEN. 387, THAT AN OFFICER HOLDING THE PERMANENT RANK OF COMMANDER, WHO WAS RETIRED JANUARY 1, 1947, AS A TEMPORARY CAPTAIN WITH AN ADVANCEMENT TO REAR ADMIRAL (LOWER HALF) UNDER THE PROVISIONS OF THE SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AND WHO SERVED SATISFACTORILY ON ACTIVE DUTY IN THE HIGHER GRADE SUBSEQUENT TO RETIREMENT, MET THE REQUIREMENTS OF METHOD (B) OF SECTION 511, AND WAS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED UNDER SECTION 511 ON THE BASIS OF THE RANK OF REAR ADMIRAL (LOWER HALF). THAT DECISION APPLIES EQUALLY IN REAR ADMIRAL NICHOLS' CASE.