B-126234, APRIL 6, 1956, 35 COMP. GEN. 557

B-126234: Apr 6, 1956

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PAY - RETIRED - ADVANCEMENT IN RANK ON RETIRED LIST ORDERS WHICH WERE ISSUED TO A NAVY CAPTAIN PRIOR TO HIS RETIREMENT AND CONTEMPORANEOUS ADVANCEMENT ON THE RETIRED LIST TO THE HONORARY RANK OF REAR ADMIRAL DIRECTING A CONTINUATION ON ACTIVE DUTY AFTER PLACEMENT ON THE RETIRED LIST. ARE CONSTRUED AS CONTINUING THE OFFICER ON ACTIVE DUTY AS A CAPTAIN. AN HONORARY RANK TO WHICH A NAVY OFFICER WAS ADVANCED CONTEMPORANEOUSLY WITH HIS RETIREMENT IS NOT A "RANK OR GRADE" FOR COMPUTATION OF RETIRED PAY WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. 1956: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11. WAS APPOINTED A TEMPORARY CAPTAIN UNDER THE PROVISIONS OF THE ACT OF JULY 24.

B-126234, APRIL 6, 1956, 35 COMP. GEN. 557

PAY - RETIRED - ADVANCEMENT IN RANK ON RETIRED LIST ORDERS WHICH WERE ISSUED TO A NAVY CAPTAIN PRIOR TO HIS RETIREMENT AND CONTEMPORANEOUS ADVANCEMENT ON THE RETIRED LIST TO THE HONORARY RANK OF REAR ADMIRAL DIRECTING A CONTINUATION ON ACTIVE DUTY AFTER PLACEMENT ON THE RETIRED LIST, ARE CONSTRUED AS CONTINUING THE OFFICER ON ACTIVE DUTY AS A CAPTAIN, AND THE OFFICER SHOULD RECEIVE ACTIVE DUTY PAY AS CAPTAIN UNTIL RELEASED FROM ACTIVE DUTY. AN HONORARY RANK TO WHICH A NAVY OFFICER WAS ADVANCED CONTEMPORANEOUSLY WITH HIS RETIREMENT IS NOT A "RANK OR GRADE" FOR COMPUTATION OF RETIRED PAY WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. A RETIRED OFFICER WHO DID NOT ELECT A METHOD FOR THE COMPUTATION OF RETIRED PAY PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 MAY NOT BE REGARDED AS HAVING MADE AN IMPLIED ELECTION NOR MAY HE MAKE AN ORIGINAL ELECTION AFTER THE TIME FOR MAKING ELECTIONS HAS EXPIRED.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, APRIL 6, 1956:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1955, WITH ENCLOSURES, PRESENTING CERTAIN QUESTIONS, HEREINAFTER QUOTED, IN REGARD TO THE RETIRED PAY OF REAR ADMIRAL JESSE D. JEWELL, MEDICAL CORPS, U.S. NAVY ( RETIRED).

IT APPEARS THAT ON JUNE 16, 1942, ADMIRAL JEWELL, THEN A PERMANENT COMMANDER, U.S. NAVY, WAS APPOINTED A TEMPORARY CAPTAIN UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350 350J. ORDERS OF THE CHIEF OF NAVAL PERSONNEL ADDRESSED TO CAPTAIN JESSE D. JEWELL UNDER DATE OF SEPTEMBER 1, 1944, WERE AS FOLLOWS:

1. UPON BEING DISCHARGED FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD, IN YOUR CASE, AND UPON BEING DISCHARGED FROM TREATMENT AT THE NAVAL HOSPITAL, SAN DIEGO, CALIF., YOU WILL PROCEED TO SEATTLE, WASH., AND REPORT TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, FOR DUTY AS THE RELIEF OF CAPTAIN HARDY V. HUGHENS, ( MC), USN.

2. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

3. SHOULD YOU BE PLACED ON THE RETIRED LIST OF OFFICERS OF THE U.S. NAVY, YOU WILL CONTINUE ON ACTIVE DUTY.

ON NOVEMBER 1, 1944, CAPTAIN JESSE D. JEWELL WAS PLACED ON THE RETIRED LIST IN THE RANK OF CAPTAIN FOR PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1453, REVISED STATUTES, AND OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604. IT FURTHER APPEARS THAT CONTEMPORANEOUSLY WITH HIS RETIREMENT THE OFFICER WAS ADVANCED ON THE RETIRED LIST TO THE HONORARY RANK OF REAR ADMIRAL UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120; AND THAT UPON RETIREMENT HE WAS CONTINUED ON ACTIVE DUTY. ORDERS OF THE CHIEF OF NAVAL PERSONNEL DATED DECEMBER 12, 1944, AND ADDRESSED TO " REAR ADMIRAL JESSE D. JEWELL" RELIEVED THE OFFICER FROM ACTIVE DUTY EFFECTIVE FEBRUARY 1, 1945. ALSO, IT APPEARS THAT THE OFFICER WAS RECALLED TO ACTIVE DUTY AUGUST 10, 1948, IN THE GRADE OF CAPTAIN AND THAT HE WAS RELIEVED FROM SUCH DUTY ON MARCH 3, 1950. IT IS STATED THAT ON THE LATTER DATE ADMIRAL JEWELL HAD COMPLETED 28 YEARS, 2 MONTHS, 3 DAYS' ACTIVE SERVICE AND A TOTAL OF 28 YEARS, 8 MONTHS, 8 DAYS' ACTIVE AND INACTIVE SERVICE; AND THAT EFFECTIVE MARCH 4, 1950, HE HAS BEEN RECEIVING RETIRED PAY UNDER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 316, AS A CAPTAIN WITH 28 YEARS' SERVICE FOR PERCENTAGE MULTIPLE PURPOSES AND OVER 26 YEARS FOR BASIC PAY PURPOSES.

ALSO, IT IS STATED THAT IN OCTOBER 1950 THERE WAS FORWARDED TO ADMIRAL JEWELL A FORM ON WHICH HE COULD INDICATE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 279, WITH RESPECT TO THE METHOD OF COMPUTATION OF HIS DISABILITY RETIRED PAY, BUT THAT THE FORM SHOWED ,ONLY ONE 2 1/2 PERCENT PAY COMPUTATION, WHEREAS IT SHOULD HAVE SHOWN TWO, I.E., ONE UNDER SECTION 402 (D), 37 U.S.C. 272, AND ONE UNDER SECTION 511" OF THE CAREER COMPENSATION ACT. A COPY OF THE FORM INCLUDED WITH YOUR LETTER ( ENCLOSURE 2) SHOWS THAT IT STATED THAT IF ELECTION WAS NOT MADE PRIOR TO OCTOBER 1, 1954, THE OFFICER WOULD CONTINUE TO RECEIVE RETIRED PAY AT THE RATE OF $398.75 PER MONTH (ACTIVE-DUTY PAY UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949, MULTIPLIED BY 75 PERCENTUM); THAT IF ELECTION WAS MADE UNDER METHOD "A" RETIRED PAY WOULD BE AT THE RATE OF $200.93 PER MONTH (ACTIVE-DUTY PAY UNDER THE CAREER COMPENSATION ACT OF 1949 MULTIPLIED BY 30 PERCENTUM, PERCENTAGE OF DISABILITY); AND THAT IF ELECTION WAS MADE UNDER METHOD "B" RETIRED PAY WOULD BE AT THE RATE OF $468.83 PER MONTH (ACTIVE-DUTY PAY UNDER THE CAREER COMPENSATION ACT MULTIPLIED BY 70 PERCENTUM, 2 1/2 PERCENTUM FOR EACH YEAR OF ACTIVE SERVICE). YOU INDICATE THAT THE OFFICER DID NOT COMPLETE AND RETURN THE FORM AND YOU STATE THAT BECAUSE OF SUCH FAILURE TO RETURN THE FORM "IT IS CONSIDERED THAT HE MADE AN IMPLIED ELECTION OF SAVED PAY.'

FINALLY, THERE WAS ENCLOSED A COPY OF A LETTER DATED JUNE 17, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) TO ADMIRAL JEWELL ADVISING HIM THAT PURSUANT TO THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, IT HAD BEEN DETERMINED THAT THE HIGHEST FEDERALLY RECOGNIZED RANK SATISFACTORILY HELD BY HIM WAS THAT OF REAR ADMIRAL.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

A. IS IT CONSIDERED THAT ADMIRAL JEWELL WAS TO CONTINUE ON ACTIVE DUTY ON AND AFTER 1 NOVEMBER 1944 AS A REAR ADMIRAL SO AS TO ENTITLE HIM TO ENCLOSURE (3/?

B. ARE RETIRED OFFICERS WHO, AS DETERMINED BY THE SECRETARY OF THE NAVY, SERVED SATISFACTORILY IN THE HONORARY RANKS TO WHICH THEY WERE ADVANCED BY REASON OF SPECIAL COMMENDATIONS ENTITLED TO RETIRED PAY COMPUTED UNDER SECTION 516 OF PUBLIC LAW 351 BASED ON SUCH HIGHER RANKS?

C. IF YOUR ANSWER TO QUESTION A. ABOVE IS IN THE AFFIRMATIVE AND YOUR ANSWER TO QUESTION B. ABOVE IS IN THE NEGATIVE, (1) MAY ADMIRAL JEWELL'S IMPLIED ELECTION UNDER SECTION 411 OF PUBLIC LAW 351 BE CONSIDERED AS AN ELECTION TO RECEIVE PAY UNDER EITHER METHOD (A) OR (B) OF SECTION 511 OF SUCH LAW, WHICHEVER IS GREATER FROM TIME TO TIME, SO AS TO ALLOW ADJUSTMENT OF HIS RETIRED PAY FROM 4 MARCH 1950 UNDER SAID METHOD (B) BASED ON THE RANK OF REAR ADMIRAL (LOWER HALF) OR, (2) MAY ADMIRAL JEWELL BE GIVEN AN OPPORTUNITY TO RE-ELECT, UNDER SECTION 411 OF PUBLIC LAW 351, TO RECEIVE PAY UNDER METHOD (B) OF SECTION 511 OF PUBLIC LAW 351, SINCE THE PAY COMPUTATIONS SHOWN ON ENCLOSURE (2) SHOULD HAVE BEEN BASED ON THE RANK OF REAR ADMIRAL RATHER THAN CAPTAIN?

ENCLOSURE (3) IS THE COPY OF LETTER OF JUNE 17, 1955, ADVISING ADMIRAL JEWELL THAT HE SATISFACTORILY HELD THE RANK OF REAR ADMIRAL.

UPON RETIREMENT THE OFFICER WAS RETAINED ON ACTIVE DUTY UNDER ORDERS, ISSUED PRIOR TO HIS RETIREMENT AS CAPTAIN AND HIS ADVANCEMENT TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST, ADDRESSED TO HIM IN THE RANK OF CAPTAIN AND DIRECTING HIM, IF HE SHOULD BE PLACED ON THE RETIRED LIST, TO "CONTINUE" ON ACTIVE DUTY. WE CONSTRUE THOSE ORDERS AS DIRECTING THAT HE CONTINUE ON ACTIVE DUTY AS CAPTAIN. WHILE THE ORDERS RELIEVING HIM FROM ACTIVE DUTY WERE ADDRESSED TO HIM IN HIS HONORARY RANK OF REAR ADMIRAL, THOSE ORDERS DID NOT STATE THAT HE WAS BEING RELEASED FROM ACTIVE DUTY IN THAT CAPACITY. IT IS DISCLOSED THAT THE SECRETARY OF THE NAVY HAS DETERMINED, FOR THE PURPOSES OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, THAT THE OFFICER SATISFACTORILY HELD THE RANK OF REAR ADMIRAL. AS HEREINAFTER EXPLAINED, SECTION 511 SEEMS TO HAVE NO APPLICATION IN THE PRESENT CASE. ALSO, IT IS STATED THAT THE OFFICER WAS PAID ACTIVE-DUTY PAY AS A REAR ADMIRAL FOR THE PERIOD NOVEMBER 1, 1944, TO FEBRUARY 1, 1945. ON THE RECORD BEFORE US, THE OFFICER SHOULD HAVE BEEN PAID AS A CAPTAIN FOR THAT PERIOD. ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE NEGATIVE.

QUESTION "B" IS PHRASED IN GENERAL TERMS. IT WILL BE ANSWERED INSOFAR AS IT APPLIES TO THE MATTER OF THE PROPER DETERMINATION OF ADMIRAL JEWELL'S RETIRED PAY.

ON NOVEMBER 1, 1944, WHEN ADMIRAL JEWELL WAS RETIRED, SECTION 1453, REVISED STATUTES, 34 U.S.C. (1946 USED.) 417, PROVIDED THAT:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY.

ON NOVEMBER 1, 1944, SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 34 U.S.C. (1946 USED.) 350 G (A), PROVIDED THAT:

AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

THUS, UNDER THE ABOVE PROVISIONS OF LAW, ADMIRAL JEWELL BECAME ENTITLED UPON HIS RETIREMENT ON NOVEMBER 1, 1944, TO RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED AS A CAPTAIN IMMEDIATELY PRECEDING HIS RETIREMENT.

UPON RETIREMENT THE OFFICER WAS ADVANCED ON THE RETIRED LIST TO THE HONORARY RANK OF REAR ADMIRAL IN ACCORDANCE WITH THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120, 34 U.S.C. (1946 USED.) 339H, WHICH, IN PERTINENT PART, PROVIDED THAT ALL STAFF OFFICERS OF THE NAVY THERETOFORE OR THEREAFTER RETIRED, WHO HAD BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT, SHOULD BE ADVANCED "ON THE RETIRED LIST TO THE RANK OF THE NEXT HIGHER GRADE WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' THAT ACT GAVE ADMIRAL JEWELL NO RIGHT TO INCREASED RETIRED PAY SINCE HE ALREADY WAS ENTITLED TO RETIRED PAY OF ,THREE FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE (CAPTAIN) IN WHICH SERVING AT THE TIME OF RETIREMENT.'

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, WHICH ENTITLES RETIRED MEMBERS OF THE UNIFORMED SERVICES TO RECEIVE INCREASES IN RETIRED PAY, UNDER CERTAIN CONDITIONS, FOR ACTIVE DUTY PERFORMED AFTER RETIREMENT, AUTHORIZES THE COMPUTATION OF SUCH INCREASED RETIRED PAY ON THE BASIS OF THE BASE AND LONGEVITY PAY OR BASIC PAY "OF THE RANK OR GRADE IN WHICH * * * (THE MEMBER) WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED * * * EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON.' IN OTHER WORDS, SECTION 516 IS NOT A RETIREMENT STATUTE AND A MEMBER ELIGIBLE FOR BENEFITS THEREUNDER, BY REASON OF ACTIVE DUTY PERFORMED AFTER RETIREMENT, MUST LOOK TO OTHER PROVISIONS OF LAW TO ESTABLISH THE RANK OR GRADE UPON WHICH HIS RETIRED PAY, AFTER RELEASE FROM ACTIVE DUTY, IS TO BE COMPUTED. THAT RANK OR GRADE IS THE ONE IN WHICH HE WOULD BE ELIGIBLE, UNDER OTHER PROVISIONS OF LAW, TO BE RETIRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON.

SECTION 8 (A) OF THE ACT OF JULY 24, 1941, WAS REPEALED BY SECTION 531 (B) (28) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 839. TITLE IV OF THE LATTER ACT PRESCRIBES CONDITIONS FOR RETIREMENT FOR DISABILITY, AND SECTION 402 (D) OF THAT ACT, 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDES THAT A MEMBER SO RETIRED SHALL BE ENTITLED TO DISABILITY RETIREMENT PAY COMPUTED ON "AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT.'

ON MARCH 3, 1950, WHEN ADMIRAL JEWELL WAS RELEASED FROM ACTIVE DUTY THE SECOND TIME, THE ACT OF FEBRUARY 23, 1942, HAD BEEN REPEALED BY SECTION 436 (O) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 883. SECTION 412 (A) OF THE LATTER ACT, 61 STAT. 874, 34 U.S.C. 410N, ORIGINALLY PROVIDED, IN PERTINENT PART THAT:

ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT OFFICERS ON A PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT AND THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN: PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER RECALLED TO ACTIVE DUTY, MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE RETIRED LIST * *

IT WAS IN ACCORDANCE WITH THE ABOVE PROVISO THAT ADMIRAL JEWELL WAS RECALLED TO ACTIVE DUTY AUGUST 10, 1948, IN THE GRADE OF CAPTAIN.

THE ABOVE-QUOTED PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947 WERE AMENDED BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 835, BY DELETING THE WORDS "AND WITH THREE-FOURTHS OF THE ACTIVE- DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.'

IF ADMIRAL JEWELL HAD NOT ALREADY BEEN RETIRED, HE APPARENTLY WOULD HAVE BEEN ELIGIBLE ON MARCH 3, 1950, TO BE RETIRED UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, FOR PHYSICAL DISABILITY, WITH RETIREMENT PAY COMPUTED ON THE BASIC PAY OF A CAPTAIN. ON THAT DATE HE WOULD NOT HAVE ACHIEVED THE HONORARY RANK OF REAR ADMIRAL, IF HE HAD NOT ALREADY BEEN RETIRED, SINCE SUCH RANK COULD BE CONFERRED ONLY AFTER, AND BASED UPON, RETIREMENT IN THE GRADE OF CAPTAIN. IN OTHER WORDS, IF HE HAD NOT ALREADY BEEN A RETIRED PERSON ON MARCH 3, 1950, HE COULD NOT HAVE HELD THE HONORARY RANK OF REAR ADMIRAL ON THAT DATE. IT FOLLOWS THAT, NOT HAVING HELD THE RANK OF REAR ADMIRAL PRIOR TO RETIREMENT, HE COULD NOT HAVE BEEN ELIGIBLE TO BE RETIRED IN THAT RANK. QUESTION "B" IS ANSWERED BY SAYING THAT ON AND AFTER MARCH 4, 1950, ADMIRAL JEWELL HAS BEEN ENTITLED TO RETIREMENT PAY COMPUTED ON THE BASIS OF THE ACTIVE-DUTY PAY OF A CAPTAIN.

QUESTION "C" AS PHRASED DOES NOT REQUIRE AN ANSWER, SINCE THE ANSWER TO QUESTION "A" WAS IN THE NEGATIVE. HOWEVER, THE QUESTION WILL BE CONSIDERED IN AN EFFORT TO CLEAR UP AN APPARENT MISCONCEPTION AS TO THE SCOPE OF SECTIONS 411 AND 511 OF THE CAREER COMPENSATION ACT OF 1949. THE FORMER SECTION, 63 STAT. 823, 37 U.S.C. 281, PROVIDES, IN PERTINENT PART, THAT:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *

PURSUANT TO SUCH AUTHORITY THE PRESIDENT ON APRIL 25, 1950, ISSUED EXECUTIVE ORDER NO. 10124, EFFECTIVE OCTOBER 1, 1949. SECTION 3 OF THE EXECUTIVE ORDER IS AS FOLLOWS:

EACH MEMBER AND EACH FORMER MEMBER OF THE UNIFORMED SERVICES TO WHICH SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 IS APPLICABLE SHALL CONTINUE TO RECEIVE RETIRED PAY OR RETIREMENT PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, UNLESS, PURSUANT TO THE SAID SECTION 411, HE ELECTS A DIFFERENT METHOD OF PAYMENT PRIOR TO OCTOBER 1, 1954, AND QUALIFIES FOR SUCH METHOD.

SEE, ALSO, SECTION 519 OF THE CAREER COMPENSATION ACT, 63 STAT. 834.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, PROVIDES IN PERTINENT 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, (2) MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, AND (3) MEMBERS OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS HERETOFORE RETIRED UNDER THE ACT OF MAY 13, 1926 (44 STAT. 513), SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2-1/2 PER CENTUM 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 OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON 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 * * *

IT SEEMS QUITE CLEAR THAT ADMIRAL JEWELL DID NOT SIGN AND SUBMIT AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. HENCE, WE MAY NOT CONCLUDE THAT HE MADE AN "IMPLIED" ELECTION UNDER THAT SECTION. NOR MAY HE BE GIVEN AN OPPORTUNITY TO "RE-ELECT" SINCE HE DID NOT MAKE AN ELECTION IN THE FIRST PLACE. HE MAY NOT NOW MAKE AN ORIGINAL ELECTION UNDER SECTION 411 SINCE THE PERIOD FOR THE MAKING OF SUCH AN ELECTION HAS EXPIRED. COMPARE 34 COMP. GEN. 642; B-125468, JANUARY 26, 1956.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 COULD HAVE BECOME APPLICABLE IN ADMIRAL JEWELL'S CASE ONLY IF HE HAD MADE A VALID ELECTION UNDER SECTION 411 TO RECEIVE RETIRED PAY COMPUTED UNDER SECTION 511. SINCE SUCH AN ELECTION WAS NOT MADE AND MAY NOT NOW BE MADE, IT IS OUR VIEW THAT SECTION 511 HAS NO APPLICATION IN HIS CASE.