B-131461, MAY 9, 1957

B-131461: May 9, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF THE ARMY: FURTHER REFERENCE IS MADE TO LETTER OF APRIL 10. IN THE EVENT THAT HIS RETIREMENT IS DIRECTED BY THE PRESIDENT EFFECTIVE AS OF MAY 31. IT IS STATED THAT LIEUTENANT COLONEL RESTA ENLISTED AND SERVED IN THE ARMY FROM DECEMBER 15. THAT HE WAS APPOINTED AS A WARRANT OFFICER ON MARCH 7. MILITARY ACADEMY BAND AT WHICH TIME HE WAS ACCORDED THE RANK AND PAY OF A FIRST LIEUTENANT. IT IS FURTHER STATED THAT UNDER THE ACT OF MAY 27. HE WAS ACCORDED THE RANK OF CAPTAIN WITH THE PAY AND ALLOWANCES OF AN OFFICER OF THAT GRADE. HE WAS APPOINTED "DIRECTOR OF MUSIC. HE WAS APPOINTED "DIRECTOR OF MUSIC. ARE NOT CODIFIED IN SECTION 4338. THESE PROVISIONS ARE AS FOLLOWS: "/A) THE DIRECTOR OF MUSIC.

B-131461, MAY 9, 1957

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 10, 1957, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE FORCES) REQUESTING DECISION CONCERNING THE RETIREMENT STATUS OF LIEUTENANT COLONEL FRANCIS E. RESTA, TM1000, DIRECTOR OF MUSIC, U.S. MILITARY ACADEMY, IN THE EVENT THAT HIS RETIREMENT IS DIRECTED BY THE PRESIDENT EFFECTIVE AS OF MAY 31, 1957.

IT IS STATED THAT LIEUTENANT COLONEL RESTA ENLISTED AND SERVED IN THE ARMY FROM DECEMBER 15, 1917, THAT HE WAS APPOINTED AS A WARRANT OFFICER ON MARCH 7, 1921, AND SUBSEQUENTLY VACATED SUCH APPOINTMENT UPON HIS ACCEPTANCE ON OCTOBER 11, 1934, OF THE POSITION OF TEACHER OF MUSIC AND LEADER OF THE U.S. MILITARY ACADEMY BAND AT WHICH TIME HE WAS ACCORDED THE RANK AND PAY OF A FIRST LIEUTENANT. R.S. 1111, 10 U.S.C. 1934 ED. 1140. HE HAS HELD THE POSITION OF TEACHER OF MUSIC AND LEADER OF THE U.S. MILITARY ACADEMY BAND CONTINUOUSLY SINCE OCTOBER 11, 1934.

IT IS FURTHER STATED THAT UNDER THE ACT OF MAY 27, 1940, 54 STAT. 223, HE WAS ACCORDED THE RANK OF CAPTAIN WITH THE PAY AND ALLOWANCES OF AN OFFICER OF THAT GRADE. ALSO, IT APPEARS THAT PURSUANT TO THE PROVISIONS OF PUBLIC LAW 135, 83D CONGRESS, 67 STAT. 180, 181, 10 U.S.C. 1952 ED. SUPP. III, 1086, HE WAS APPOINTED "DIRECTOR OF MUSIC, THE LEADER OF THE MILITARY ACADEMY BAND," WITH THE RANK OF MAJOR EFFECTIVE JULY 17, 1953, AND THAT EFFECTIVE SEPTEMBER 29, 1954, HE WAS APPOINTED "DIRECTOR OF MUSIC, THE LEADER OF THE MILITARY ACADEMY BAND" WITH THE RANK OF LIEUTENANT COLONEL.

THE PROVISIONS OF SECTION 1 OF THE ACT OF JULY 17, 1953, PUBLIC LAW 135, 83D CONGRESS, ARE NOT CODIFIED IN SECTION 4338, TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 10, 1956, 70A STAT. 239, 240. THESE PROVISIONS ARE AS FOLLOWS:

"/A) THE DIRECTOR OF MUSIC, WHO IS ALSO THE LEADER OF THE MILITARY ACADEMY BAND, HAS THE RANK PRESCRIBED BY THE SECRETARY OF THE ARMY AND IS ENTITLED TO THE PAY AND ALLOWANCES OF A COMMISSIONED OFFICER WHOSE GRADE CORRESPONDS TO THAT RANK. IN THE COMPUTATION OF HIS PAY, ALL HIS ACTIVE SERVICE IN THE ARMY, INCLUDING SERVICE AS TEACHER OR DIRECTOR OF MUSIC, IS COUNTED AS IF IT WERE COMMISSIONED SERVICE.

"/B) AT SUCH TIME AS THE PRESIDENT MAY DIRECT, THE DIRECTOR OF MUSIC SHALL BE RETIRED IN THE GRADE EQUAL TO THE HIGHEST RANK IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY, FOR AT LEAST SIX MONTHS, AND WITH THE RETIRED PAY OF AN OFFICER OF THE ARMY WITH THE SAME GRADE AND LENGTH OF SERVICE COUNTED UNDER SUBSECTION (A). HIS DEPENDENTS ARE ENTITLED TO THE PENSIONS, DEATH GRATUITY, AND OTHER BENEFITS PROVIDED FOR THE DEPENDENTS OF AN OFFICER OF THE REGULAR ARMY WITH CORRESPONDING GRADE AND LENGTH OF SERVICE.'

THUS, IN CLEAR AND UNAMBIGUOUS TERMS THE CONGRESS HAS EXPRESSLY PROVIDED (1) FOR THE RANK AND ACTIVE DUTY PAY OF THE DIRECTOR OF MUSIC AND THAT IN THE COMPUTATION OF SUCH PAY, ALL ACTIVE SERVICE IN THE ARMY INCLUDING SERVICE AS TEACHER OR DIRECTOR OF MUSIC IS TO BE COUNTED "AS IF IT WERE COMMISSIONED SERVICE" AND (2) THAT AT SUCH TIME AS THE PRESIDENT MAY DIRECT THE DIRECTOR OF MUSIC SHALL BE RETIRED IN THE GRADE EQUAL TO THE HIGHEST RANK IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, FOR AT LEAST SIX MONTHS "WITH THE RETIRED PAY OF AN OFFICER OF THE ARMY WITH THE SAME GRADE AND LENGTH OF SERVICE COUNTED UNDER SUBSECTION (A).'

THE FOLLOWING QUESTION CONCERNING THE RETIREMENT STATUS OF LIEUTENANT COLONEL FRANCIS E. RESTA IS PRESENTED IN THE LETTER OF APRIL 10, 1957:

"IF HIS RETIREMENT IS DIRECTED BY THE PRESIDENT EFFECTIVE 31 MAY 1957, WILL THE PROVISIONS OF 10 U.S.C. 4338 OR SUBSECTION 5A, ACT OF 13 (31) JULY 1935, AS ADDED BY SUBSECTION 521/B), ACT OF 7 AUGUST 1947 (61 STAT. 913; FORMERLY 10 U.S.C. 971 (C) (, PROVIDE FOR THE ENTITLEMENTS OF A COLONEL?

THE FIRST PART OF THIS QUESTION REFERS TO THE PROVISIONS OF SECTION 4338, TITLE 10 U.S. CODE, QUOTED ABOVE. UNDER THE FACTS ABOVE SET FORTH RESPECTING LIEUTENANT COLONEL RESTA'S MILITARY SERVICE, IT SEEMS EVIDENT THAT IF HIS RETIREMENT IS DIRECTED BY THE PRESIDENT EFFECTIVE MAY 31, 1957, THE HIGHEST GRADE IN WHICH HE COULD QUALIFY FOR RETIREMENT UNDER THE AUTHORITY OF SECTION 4338 WOULD BE THAT OF LIEUTENANT COLONEL, DEPENDENT UPON A DETERMINATION BY YOU, AS SECRETARY OF THE ARMY, THAT HE SERVED ON ACTIVE DUTY SATISFACTORILY IN SUCH RANK FOR AT LEAST SIX MONTHS.

THE SECOND PART OF THE QUESTION PRESENTED IS WHETHER, IN ADDITION TO THE BENEFITS TO WHICH HE IS OTHERWISE ENTITLED UNDER SECTION 4338, LIEUTENANT COLONEL RESTA IS ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 5A, ADDED TO THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED, BY SECTION 521/B), ACT OF AUGUST 7, 1947, 61 STAT. 913, 10 U.S.C. 1952 ED. 971C, WHICH PROVIDES AS FOLLOWS:

"ANY OFFICER IN THE PERMANENT GRADE OF LIEUTENANT COLONEL RETIRED AFTER JANUARY 1, 1946, UPON HIS OWN APPLICATION, OR FOR PHYSICAL DISABILITY, OR MANDATORILY BY REASON OF REACHING A PRESCRIBED LENGTH OF SERVICE, SHALL, IF AT TIME OF RETIREMENT HE HAS COMPLETED TWENTY-EIGHT YEARS OR MORE OF ACTIVE FEDERAL COMMISSIONED SERVICE AND HAS SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, UNLESS ENTITLED TO BE RETIRED IN A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, BE RETIRED IN THE GRADE OF COLONEL WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR A COLONEL WITH THE SAME LENGTH OF SERVICE INCLUDING ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE DUTY PAY PURPOSES.'

IT IS OUR VIEW THAT THE PROVISIONS OF SECTION 5A, ABOVE QUOTED, HAVE NO APPLICATION TO THE DIRECTOR OF MUSIC AND LEADER OF THE MILITARY ACADEMY BAND FOR THE REASON THAT SECTION 1 OF THE ACT OF JULY 17, 1953 (NOW SECTION 4338, TITLE 10 U.S. CODE), CLEARLY WAS ENACTED AS A SPECIAL STATUTE DIRECTED SOLELY AND EXCLUSIVELY TO THE RANK, ACTIVE DUTY PAY AND ALLOWANCES AND THE RETIREMENT PRIVILEGES AND STATUS OF THE DIRECTOR OF THE MUSIC AND LEADER OF THE MILITARY ACADEMY BAND AND THUS NECESSARILY HAS THE EFFECT OF EXCLUDING THE PERSON RETIRING FROM THAT OFFICE FROM THE SCOPE OF OTHER PROVISIONS OF LAW RESPECTING GRADE OR RANK OF MILITARY OFFICERS UPON RETIREMENT. COMPARE SWEENEY V. UNITED STATES, 82 C.CLS. 640, AND RALSTON V. UNITED STATES, 91 C.CLS. 91.

IN THE LIGHT OF ESTABLISHED PRINCIPLES OF STATUTORY CONSTRUCTION IT MUST BE ASSUMED THAT IF IT HAD BEEN THE LEGISLATIVE PURPOSE TO BESTOW ON THE DIRECTOR OF MUSIC AND LEADER OF THE MILITARY ACADEMY BAND ANY FURTHER AND ADDITIONAL BENEFITS, RESPECTING GRADE UPON RETIREMENT, NOT EXPRESSLY SPELLED OUT IN SECTION 1 OF THE 1953 ACT, APPROPRIATE AND DEFINITE LANGUAGE TO THAT EFFECT, CLEARLY ACCOMPLISHING SUCH PURPOSE, WOULD HAVE BEEN EMPLOYED. HOWEVER, NOT ONLY THE LANGUAGE OF SUCH SECTION BUT THE LEGISLATIVE HEARINGS AND REPORTS RELATING TO IT REQUIRE THE CONCLUSION THAT A PERSON RETIRING UNDER THE SECTION IS TO BE RETIRED "IN THE GRADE EQUAL TO THE HIGHEST RANK IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY (OF THE ARMY), FOR AT LEAST SIX MONTHS.'

MOREOVER, IT MAY BE PERTINENT TO ADD THAT EVEN IF THE SPECIAL PROVISIONS IN SECTION 1 OF THE 1953 ACT, RESPECTING GRADE UPON RETIREMENT, DID NOT EXIST, IT DOES NOT APPEAR THAT LIEUTENANT COLONEL RESTA WOULD BE ELIGIBLE ON OR PRIOR TO MAY 31, 1957, FOR THE BENEFITS PRESCRIBED IN SECTION 5A OF THE ACT OF JULY 31, 1935, AS ADDED BY THE 1947 LAW. IN THE FIRST PLACE, IT DOES NOT APPEAR THAT HE WILL THEN HAVE COMPLETED "TWENTY-EIGHT YEARS OR MORE OF ACTIVE FEDERAL COMMISSIONED SERVICE" AS EXPRESSLY REQUIRED BY SECTION 5A. HIS ACTIVE ENLISTED AND WARRANT OFFICER SERVICE IN THE ARMY PRIOR TO OCTOBER 11, 1934, THE DATE WHEN HE ACCEPTED APPOINTMENT AS TEACHER OF MUSIC AND LEADER OF THE MILITARY ACADEMY BAND WITH THE RANK AND PAY OF A FIRST LIEUTENANT DOES NOT APPEAR TO CONSTITUTE "ACTIVE FEDERAL COMMISSIONED SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 5A. IN THAT CONNECTION, IT WILL BE NOTED THAT UNDER THE EXPRESS AUTHORITY OF SECTION 4338, TITLE 10 U.S. CODE, HIS ACTIVE SERVICE IN THE ARMY PRIOR TO OCTOBER 11, 1934, THAT IS, HIS ACTIVE SERVICE AS TEACHER OR DIRECTOR OF MUSIC AS WELL AS HIS ENLISTED SERVICE, WHICH IS AUTHORIZED TO BE COUNTED "AS IF IT WERE COMMISSIONED SERVICE" MAY ONLY BE SO COUNTED IN "THE COMPUTATION OF HIS PAY.' SUCH ACTIVE SERVICE PRIOR TO OCTOBER 11, 1934, THEREFORE, COULD NOT BE COUNTED AS "ACTIVE FEDERAL COMMISSIONED SERVICE" FOR THE PURPOSE OF ESTABLISHING A RIGHT TO THE RETIREMENT BENEFITS PRESCRIBED IN SECTION 5A. SECONDLY, EVEN IF IT PROPERLY COULD BE HELD THAT THE SPECIAL PROVISIONS RELATING TO HIS GRADE UPON RETIREMENT WOULD NOT BAR HIM FROM THE BENEFITS OF SECTION 5A, ABOVE, IT STILL WOULD BE SOMEWHAT DOUBTFUL THAT HIS RETIREMENT EFFECTIVE MAY 31, 1957, IF DIRECTED BY THE PRESIDENT UNDER THE AUTHORITY OF SECTION 4338, TITLE 10 U.S. CODE, WOULD CONSTITUTE A RETIREMENT UPON HIS OWN APPLICATION, OR FOR PHYSICAL DISABILITY, OR MANDATORILY BY REASON OF REACHING A PRESCRIBED AGE, OR BY REASON OF HAVING COMPLETED A PRESCRIBED LENGTH OF SERVICE WITHIN THE MEANING OF SECTION 5A.