B-127118, JULY 5, 1956, 36 COMP. GEN. 8

B-127118: Jul 5, 1956

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PAY - RETIRED - DISABILITY RETIREMENT PAY - ENLISTED MEMBERS ELIGIBLE FOR RETIRED PAY ON BASIS OF OFFICER GRADE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY AND DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER RANK OR GRADE. DOES NOT HAVE HIS ENLISTED STATUS TERMINATED AND IS NOT TO BE CONSIDERED AS AN OFFICER AT THE TIME OF RETIREMENT FOR THE COMPUTATION OF RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. 1956: REFERENCE IS MADE TO LETTER DATED FEBRUARY 21. FORWARDING A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 138 AND REQUESTING DECISION WHETHER ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE FOUND TO BE ELIGIBLE FOR DISABILITY RETIREMENT IN A COMMISSIONED GRADE UNDER AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949.

B-127118, JULY 5, 1956, 36 COMP. GEN. 8

PAY - RETIRED - DISABILITY RETIREMENT PAY - ENLISTED MEMBERS ELIGIBLE FOR RETIRED PAY ON BASIS OF OFFICER GRADE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY AND DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER RANK OR GRADE, PURSUANT TO SECTION 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, DOES NOT HAVE HIS ENLISTED STATUS TERMINATED AND IS NOT TO BE CONSIDERED AS AN OFFICER AT THE TIME OF RETIREMENT FOR THE COMPUTATION OF RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115.

TO THE SECRETARY OF DEFENSE, JULY 5, 1956:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 21, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), FORWARDING A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 138 AND REQUESTING DECISION WHETHER ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE FOUND TO BE ELIGIBLE FOR DISABILITY RETIREMENT IN A COMMISSIONED GRADE UNDER AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272, 279, ARE ENTITLED, IF OTHERWISE MEETING THE PRESCRIBED CONDITIONS, TO HAVE THEIR RETIRED PAY COMPUTED ON THE 75 PERCENTUM BASIS SET FORTH IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115.

IT APPEARS FROM THE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION THAT IN THE ADMINISTRATION OF THE PROVISIONS OF SECTIONS 402 AND 409, THE DEPARTMENTS OF THE ARMY AND AIR FORCE ISSUE ORDERS, IN THE PROCESSING OF PHYSICAL DISABILITY RETIREMENTS OF ENLISTED PERSONNEL OF THOSE SERVICES, WHICH DIRECT THE DISCHARGE FROM ENLISTED STATUS WITH SIMULTANEOUS PLACEMENT ON THE DISABILITY RETIRED LIST IN THE HIGHEST COMMISSIONED GRADE IN WHICH THE ENLISTED MEMBER CONCERNED IS ELIGIBLE TO BE RETIRED. IT IS STATED THAT THE DEPARTMENT OF THE NAVY ISSUES ORDERS IN CORRESPONDING SITUATIONS INVOLVING NAVAL AND MARINE CORPS ENLISTED PERSONNEL, WHICH DIRECT THEIR TRANSFER TO THE DISABILITY RETIRED LISTS OF THOSE SERVICES IN THE HIGHEST COMMISSIONED GRADE IN WHICH SUCH ENLISTED PERSONNEL ARE ELIGIBLE TO BE RETIRED. THE ISSUE THUS PRESENTED IS WHETHER AN ENLISTED PERSON WHO IS RETIRED IN A COMMISSIONED OFFICER RANK OR GRADE PURSUANT TO THE AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949 IS TO BE CONSIDERED AS THENCEFORTH HAVING AN OFFICER STATUS.

UNDER THE CONDITIONS PRESCRIBED IN SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (A), THE NAME OF A MEMBER OF THE UNIFORMED SERVICES MAY BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE OR SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND IN EITHER CASE THE MEMBER CONCERNED SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THAT SECTION.

THE SECOND PROVISO OF SECTION 402 (D), 37 U.S.C. 272 (D), PROVIDES THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED "SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER.'

SECTION 409, 37 U.S.C. 279, PROVIDES THAT:

A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, OR RATING AS MAY BE AUTHORIZED BY LAW AT TIME OF RETIREMENT.

UNDER SECTION 409 AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY PURSUANT TO THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 AND WHO IS DETERMINED TO BE ELIGIBLE TO COMPUTE HIS DISABILITY RETIRED PAY ON THE BASIS OF A COMMISSIONED RANK OR GRADE, IS REQUIRED TO BE RETIRED IN THAT COMMISSIONED RANK OR GRADE. WHILE CONGRESS MAY PLACE AN INDIVIDUAL ON THE RETIRED LIST OF HIS UNIFORMED SERVICE IN A DIFFERENT RANK OR GRADE FROM THAT WHICH ATTACHES TO THE OFFICE THEN ACTUALLY HELD BY SUCH INDIVIDUAL, AN ACTUAL APPOINTMENT TO A DIFFERENT OFFICE IN THE MILITARY SERVICE CAN ONLY BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE MANNER PROVIDED BY ARTICLE II, SECTION 2 OF THE CONSTITUTION AND NOT BY MEANS OF A CONGRESSIONAL ENACTMENT. WOOD V. UNITED STATES, 107 U.S. 414; CLOUD V. UNITED STATES, 43 C.1CLS. 69, 85, AND MASON V. UNITED STATES, 47 C.1CLS. 31. HENCE, ACTION WHICH IS TAKEN BY THE SECRETARY OF A UNIFORMED SERVICE UNDER THE AUTHORITY OF SECTIONS 402 (D) AND 409, GOVERNING THE RETIRED PAY AND RETIRED RANK, GRADE, OR RATING OF AN ENLISTED MEMBER OF A PARTICULAR UNIFORMED SERVICE RETIRED FOR PHYSICAL DISABILITY UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, DOES NOT TERMINATE THE BASIC ENLISTED STATUS OF SUCH A MEMBER IN THE ABSENCE OF AN ACTUAL AND VALID APPOINTMENT TO THE OFFICER RANK OR GRADE IN WHICH THE INDIVIDUAL IS RETIRED. ACCORDINGLY, THE ENLISTED STATUS OF SUCH A MEMBER IS NOT AFFECTED OR TERMINATED BY REASON OF THE FACT THAT UPON PHYSICAL DISABILITY RETIREMENT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, THE ENLISTED MEMBER CONCERNED MAY BECOME ENTITLED TO THE RANK OR GRADE OF AN OFFICER ON THE RETIRED LIST OF HIS UNIFORMED SERVICE.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, PROVIDES:

THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

THIS PROVISION IS NOT A RETIREMENT STATUTE (26 COMP. GEN. 417, 419), BUT RELATES SOLELY TO THE METHOD OF COMPUTING THE RETIRED PAY OF ANY OFFICER OF THE ARMY, ETC., THEREAFTER RETIRED UNDER ANY PROVISION OF LAW AND WHO HAS SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. BY ITS EXPRESS TERMS THE PROVISION APPLIES ONLY IN THE CASE OF AN OFFICER THEREAFTER RETIRED AND HENCE CAN HAVE NO APPLICATION IN CONNECTION WITH COMPUTING THE RETIRED PAY OF ANY MEMBER OF THE UNIFORMED SERVICES WHO IS NOT AN OFFICER AT THE TIME OF HIS RETIREMENT. COMPARE 26 COMP. GEN. 5, 9. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.