B-123689, JULY 27, 1955, 35 COMP. GEN. 48

B-123689, JULY 27, 1955, 35 COMP. GEN. 48

PAY - RETIRED - ADMIRAL - ADDITIONAL PAY AUTHORIZED BY CAREER INCENTIVE ACT OF 1955 GENERAL PROVISION IN CAREER INCENTIVE ACT OF 1955 (37 U.S.C. 232) THAT ADDITIONAL PAY AUTHORIZED FOR OFFICERS ON ACTIVE DUTY IN GRADE OF GENERAL SHALL NOT BE CONSIDERED IN COMPUTATION OF RETIRED PAY DOES NOT MODIFY SPECIAL PROVISION IN ACT OF JUNE 26, 1948, WHICH PROVIDED THAT CERTAIN OFFICERS APPOINTED THEREUNDER SHOULD RECEIVE ON RETIREMENT THE SAME PAY AND ALLOWANCES AUTHORIZED BY LAW FOR OFFICERS ON ACTIVE DUTY AND, THEREFORE, NAVAL OFFICER WHO WAS APPOINTED TO PERMANENT RANK OF ADMIRAL PURSUANT TO THE 1948 ACT IS ENTITLED TO RECEIVE WHILE ON THE RETIRED LIST THE ADDITIONAL INCREMENT OF BASIC PAY AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON ACTIVE DUTY.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, JULY 27, 1955:

YOUR LETTER OF APRIL 5, 1955, REQUESTS AN ADVANCE DECISION WHETHER ADMIRAL RAYMOND A. SPRUANCE, U.S. NAVY, RETIRED, IS ENTITLED TO HAVE INCLUDED IN THE COMPUTATION OF HIS PAY WHILE ON THE RETIRED LIST THE ADDITIONAL INCREMENT OF BASIC PAY AUTHORIZED BY SUBSECTION (F) OF SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, 69 STAT. 19, 37 U.S.C. 232, FOR AN OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL, NOTWITHSTANDING THE LAST SENTENCE OF SUCH SUBSECTION (F). THE SUBSECTION READS, IN PERTINENT PART, AS FOLLOWS:

* * * ANY OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL OR ADMIRAL SHALL, IN ADDITION TO THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED BY THE PROVISIONS OF THIS ACT, BE ENTITLED TO AN ADDITIONAL INCREMENT OF BASIC PAY IN AN AMOUNT OF $200 PER MONTH. THE ADDITIONAL INCREMENTS PROVIDED BY THIS SUBSECTION SHALL NOT BE CONSIDERED A PART OF THE ACTIVE DUTY PAY OR OF THE MONTHLY BASIC PAY OF THESE GRADES FOR THE PURPOSE OF THE COMPUTATION OF RETIRED PAY.

THE LEGISLATIVE HISTORY OF THE CAREER INCENTIVE ACT SHOWS THAT H.R. 4720, WHICH BECAME THAT ACT, AS ORIGINALLY INTRODUCED IN THE HOUSE OF REPRESENTATIVES, PROPOSED AN ADDITIONAL INCREMENT OF BASIC PAY FOR OFFICERS IN PAY GRADE O-8 UPON COMPLETION OF MORE THAN 35 YEARS' SERVICE. THAT PROPOSAL WAS REJECTED BY THE HOUSE OF REPRESENTATIVES PROBABLY PRIMARILY BECAUSE OF THE EFFECT WHICH SUCH ADDITIONAL PAY WOULD HAVE ON THE RETIRED PAY OF SOME OFFICERS IN THAT GRADE COMPARED WITH THAT OF OTHERS WHO HAVE BEEN OR MIGHT BE INVOLUNTARILY RETIRED WITH LESS THAN 35 YEARS' SERVICE. IN ORDER TO PROVIDE INCREASED COMPENSATION FOR SO-CALLED THREE AND FOUR STAR OFFICERS, THE BILL WAS AMENDED IN THE SENATE TO PROVIDE AN ADDITIONAL $100 AND $200 PER MONTH, RESPECTIVELY, AS ADDITIONAL BASIC PAY ONLY WHILE SUCH OFFICERS SERVE ON ACTIVE DUTY, SUCH ADDITIONAL PAY NOT TO BE CONSIDERED IN THE COMPUTATION OF RETIRED PAY BUT TO BE PAID TO ALL SUCH SENIOR OFFICERS ON ACTIVE DUTY REGARDLESS OF LENGTH OF SERVICE.

IT APPEARS THAT ADMIRAL SPRUANCE WAS PLACED ON THE RETIRED LIST, AFTER THE COMPLETION OF MORE THAN 40 YEARS OF SERVICE, UNDER THE PROVISIONS OF 34 U.S.C. 381, WITH THE RANK OF ADMIRAL AND PAY AND ALLOWANCES AS PROVIDED BY THE ACT OF JUNE 26, 1948, PUBLIC LAW 791, 62 STAT. 1052, 43 U.S.C. 502. THE LATTER ACT, READS, IN PERTINENT PART--

* * * THE PRESIDENT IS FURTHER AUTHORIZED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO APPOINT IN THE REGULAR NAVY ONE OFFICER IN THE PERMANENT GRADE OF ADMIRAL FROM AMONG ANY OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY WHO SERVED IN THE TEMPORARY GRADE OF ADMIRAL FROM FEBRUARY 4, 1944, TO THE PRESENT DATE, AND COMMANDED A MAJOR COMBATANT UNIT OF THE UNITED STATES FLEET IN THE PACIFIC THEATER OF OPERATIONS DURING ALL OR ANY PART OF THE SECOND WORLD WAR. ANY OFFICER APPOINTED UNDER THE PROVISIONS OF THIS SECTION WHO HEREAFTER MAY BE RETIRED, SHALL BE ENTITLED TO HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RANK HELD BY HIM WHILE ON THE ACTIVE LIST AND SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS AUTHORIZED BY LAW FOR OFFICERS ON THE ACTIVE LIST SERVING IN THE GRADE OF GENERAL.

THE LEGISLATIVE HISTORY OF THAT ACT SHOWS THAT THE PURPOSE OF THE QUOTED PORTION WAS TO PROVIDE STATUTORY AUTHORITY FOR THE APPOINTMENT OF RAYMOND A. SPRUANCE TO THE PERMANENT GRADE OF ADMIRAL IN THE UNITED STATES NAVY. THE ACT WAS SPECIAL LEGISLATION AUTHORIZING THE APPOINTMENT OF THREE CERTAIN OFFICERS, WHO HAD SERVED TEMPORARILY IN THOSE GRADES DURING THE SECOND WORLD WAR, TO THE PERMANENT GRADES OF GENERAL IN THE REGULAR ARMY, GENERAL IN THE REGULAR AIR FORCE, AND ADMIRAL IN THE REGULAR NAVY, RESPECTIVELY, AND EXTENDING ADDITIONAL RETIREMENT BENEFITS TO THOSE OFFICERS. THE ACT PROVIDES SPECIFICALLY THAT WHEN SUCH AN OFFICER IS RETIRED HE SHALL HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RANK HELD BY HIM WHILE ON THE ACTIVE LIST AND "SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS AUTHORIZED BY LAW FOR OFFICERS ON THE ACTIVE LIST SERVING IN THE GRADE OF GENERAL.'

IT IS AN ESTABLISHED RULE OF STATUTORY INTERPRETATION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. SEE 19 COMP. GEN. 492 AND CASES THERE CITED. THE RETIRED PAY AND ALLOWANCES EXPRESSLY AUTHORIZED FOR THE PERSONS COVERED BY THE 1948 ACT ARE THE PAY AND ALLOWANCES OF A GENERAL SERVING ON ACTIVE DUTY. HENCE, THE GENERAL PROVISION IN THE CAREER INCENTIVE ACT OF 1955 THAT THE ADDITIONAL INCREMENT OF BASIC PAY AUTHORIZED FOR AN OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL SHALL NOT BE CONSIDERED A PART OF THE ACTIVE DUTY PAY OR THE MONTHLY BASIC PAY OF SUCH GRADE "FOR THE PURPOSE OF THE COMPUTATION OF RETIRED PAY" MAY NOT BE VIEWED AS INTENDED TO MODIFY THE SPECIAL PROVISIONS IN THE 1948 ACT GRANTING THE OFFICERS APPOINTED UNDER ITS PROVISIONS THE RIGHT TO RECEIVE UPON RETIREMENT "THE SAME PAY AND ALLOWANCES * * * AS AUTHORIZED BY LAW FOR OFFICERS ON THE ACTIVE LIST SERVING IN THE GRADE OF GENERAL.'

FOR SUCH REASONS IT MUST BE CONCLUDED THAT ADMIRAL SPRUANCE IS ENTITLED TO RECEIVE WHILE ON THE RETIRED LIST THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON ACTIVE DUTY. OTHERWISE HE WOULD NOT RECEIVE THE RETIRED PAY SPECIALLY AUTHORIZED BY LAW IN HIS CASE. THE QUESTION PRESENTED IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.