B-132777, OCTOBER 7, 1957, 37 COMP. GEN. 226

B-132777, OCTOBER 7, 1957, 37 COMP. GEN. 226

MILITARY PERSONNEL - RETIRED PAY - ADVANCEMENT ON RETIRED LIST - PERMANENT GRADE - REAR ADMIRAL A NAVY CAPTAIN WHO WAS TRANSFERRED TO THE RETIRED LIST AND ADVANCED TO THE RANK OF REAR ADMIRAL BUT WHO CONTINUED ON ACTIVE DUTY MAY HAVE THE ADVANCEMENT ON THE RETIRED LIST REGARDED AS CONFERRING ON HIM THE PERMANENT GRADE OF REAR ADMIRAL, IN CONSONANCE WITH THE DECISION IN MCCOLL V. UNITED STATES, DECIDED JANUARY 16, 1957, C.1CLS. NO. 137-56, AND, THEREFORE, THE OFFICER WHO SERVED SATISFACTORILY ON ACTIVE DUTY FOR TWO YEARS AS REAR ADMIRAL IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF REAR ADMIRAL (UPPER HALF) UNDER 10 U.S.C. 5507 (E). B 68965, JULY 19, 1955, MODIFIED.

TO W. M. MARTIN, DEPARTMENT OF THE NAVY, OCTOBER 7, 1957:

YOUR LETTER OF JULY 11, 1957, WITH ENDORSEMENTS AND ENCLOSURES, FORWARDED HERE BY THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY, SETS FORTH YOUR REQUEST FOR OUR DECISION WHETHER REAR ADMIRAL GEORGE J. DUFEK, U.S. NAVY, RETIRED, IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES AS A REAR ADMIRAL (UPPER HALF) ON AND AFTER JULY 1, 1957.

ORDERS WERE ISSUED ON JUNE 14, 1955, BY THE CHIEF OF NAVAL PERSONNEL TO CAPTAIN GEORGE J. DEFEK, U.S. NAVY, WHICH, IN PERTINENT PART, PROVIDED THAT CAPTAIN DUFEK WOULD BE PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE JUNE 30, 1955; AND THAT, HAVING BEEN SPECIALLY COMMENDED BY THE HEAD OF THE EXECUTIVE DEPARTMENT FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT, HE WAS BEING TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF REAR ADMIRAL BUT WITH ENTITLEMENT TO RETIRED PAY BASED ON THE RANK OF CAPTAIN. THE ORDERS CONTAINED THE EXPRESS PROVISION THAT IN THE DISCRETION *OF THE SECRETARY OF THE NAVY, REAR ADMIRAL DUFEK COULD BE RECALLED TO ACTIVE DUTY EITHER IN THE RANK OF CAPTAIN OR AS A REAR ADMIRAL, AS PROVIDED IN 34 U.S.C., 1952 USED. 410N, THE PERTINENT STATUTORY PROVISIONS THAT WERE THEN IN EFFECT. THE ORDERS ALSO FURTHER DIRECTED THAT UPON BEING PLACED ON THE RETIRED LIST OF THE NAVY ON JUNE 30, 1955, HE WOULD CONTINUE ON ACTIVE DUTY, SERVING, SUBJECT TO HIS CONSENT, ON SUCH ACTIVE DUTY AS A REAR ADMIRAL, U.S. NAVY, RETIRED. THE RECORD INDICATES THAT ON JUNE 30, 1957, REAR ADMIRAL DUFEK, U.S. NAVY, RETIRED, COMPLETED TWO YEARS OF CONTINUOUS SATISFACTORY ACTIVE SERVICE IN THAT

GRADE.

THE QUESTION IS WHETHER REAR ADMIRAL DUFEK IS ENTITLED, EFFECTIVE FROM JULY 1, 1957, TO ACTIVE-DUTY PAY AND ALLOWANCES AS A REAR ADMIRAL (UPPER HALF) UNDER THE PROVISIONS OF 10 U.S.C. 5507 (E), PROVIDING AS FOLLOWS:

EACH OFFICER HOLDING A PERMANENT APPOINTMENT IN THE GRADE OF REAR ADMIRAL ON THE RETIRED LIST WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE AND WHO, IN TIME OF WAR OR NATIONAL EMERGENCY, SERVES SATISFACTORILY ON ACTIVE DUTY FOR TWO YEARS IN THAT GRADE OR IN A HIGHER GRADE IS THEREAFTER ENTITLED WHEN ON ACTIVE DUTY TO THE BASIC PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF.

IN ANSWERING SUCH QUESTION WE MUST CONSIDER WHETHER WE WILL ADHERE TO THE CONCLUSION REACHED IN OUR DECISION OF JULY 19, 1955, B-68965, ON THE CASE OF REAR ADMIRAL JOSEPH W. MCCOLL, JR., U.S. NAVY, RETIRED, OR WHETHER THIS OFFICE WILL ACCEPT AND HENCEFORTH FOLLOW THE PRINCIPLE OF THE DECISION RENDERED BY THE COURT OF CLAIMS ON JANUARY 16, 1957, IN FAVOR OF REAR ADMIRAL MCCOLL ( MCCOLL V. UNITED STATES, C.1CLS. NO. 137-56).

THE CONCLUSION REACHED IN OUR DECISION OF JULY 19, 1955, B-68965, IN THE CASE OF REAR ADMIRAL MCCOLL--- THAT HE WAS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AS A REAR ADMIRAL (UPPER HALF) FOR THE PERIOD APRIL 1, 1947, TO MAY 23, 1947, INCLUSIVE--- WAS BASED ON OUR VIEW THAT HIS ADVANCEMENT, EFFECTIVE UPON HIS RETIREMENT APRIL 1, 1945, TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST UNDER THE PROVISIONS OF 34 U.S.C., 1946 USED. 404 (1), DID NOT CONSTITUTE AN ADVANCEMENT TO THE "PERMANENT" GRADE OR RANK OF REAR ADMIRAL WITHIN THE MEANING AND FOR THE PURPOSES OF THE ACT OF APRIL 8, 1946, 60 STAT. 86, 34 U.S.C., 1946 USED. 428. HOWEVER, THE COURT OF CLAIMS IN THE DECISION OF JANUARY 16, 1957, HELD THAT MCCOLL'S ADVANCEMENT TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST CONFERRED ON HIM THE "PERMANENT" GRADE OF REAR ADMIRAL WITHIN THE PURVIEW OF THE ACT OF APRIL 8, 1946.

THE JUDGMENT IN THE MCCOLL CASE HAS BECOME FINAL AND SINCE THE GOVERNMENT'S POSITION AND VIEWS IN THE MATTER WERE FULLY PRESENTED TO THE COURT AND CAREFULLY EVALUATED IN ITS OPINION WHICH SETS FORTH A REASONABLY SOUND BASIS FOR ITS CONCLUSION, WE HAVE DECIDED TO FOLLOW THE HOLDING IN THE MCCOLL DECISION OF JANUARY 16, 1957, NAMELY, THAT AN ADVANCEMENT TO THE GRADE OF REAR ADMIRAL ON THE RETIRED LIST UNDER THE PROVISIONS OF 34 U.S.C., 1946 USED. 404 (1), CONFERRED THE "PERMANENT" GRADE OF REAR ADMIRAL ON THE RETIRED LIST FOR THE PURPOSES OF THE ACT OF APRIL 8, 1946.

THE ACT OF APRIL 8, 1946, 60 STAT. 86, WAS REPEALED BY SECTION 53, ACT OF AUGUST 10, 1956, 70A STAT. 641, 674, AND THE CURRENT STATUTORY PROVISIONS CORRESPONDING TO THOSE REPEALED ARE NOW CONTAINED IN 10 U.S.C. 5507 (E) (70A STAT. 317), AS TO ENTITLEMENT TO ACTIVE-DUTY PAY AND ALLOWANCES AS A REAR ADMIRAL (UPPER HALF), AND IN 10 U.S.C. 6487 (70A STAT. 418), AS TO COMPUTATION OF RETIRED PAY WHEN ON INACTIVE DUTY.

REAR ADMIRAL DUFEK IS SHOWN TO HAVE SERVED SATISFACTORILY ON ACTIVE DUTY IN THE GRADE OF REAR ADMIRAL DURING THE PERIOD FROM JULY 1, 1955, TO JUNE 30, 1957. UNDER THE PRINCIPLE OF THE MCCOLL DECISION, WE THEREFORE HOLD THAT REAR ADMIRAL DUFEK, EFFECTIVE FROM THE DATE OF HIS RETIREMENT ON JUNE 30, 1955, HELD A "PERMANENT" APPOINTMENT IN THE GRADE OF REAR ADMIRAL ON THE RETIRED LIST AND, SINCE THE PERIOD OF NATIONAL EMERGENCY PROCLAIMED ON DECEMBER 15, 1950, ( PRESIDENTIAL PROCLAMATION NO. 2914, 15 F.R. 9029), HAS NOT BEEN TERMINATED TO DATE, REAR ADMIRAL DUFEK'S ACTIVE-DUTY PAY AND ALLOWANCE STATUS, EFFECTIVE JULY 1, 1957, FALLS SQUARELY WITHIN THE SCOPE OF THE PROVISIONS OF 10 U.S.C. 5507 (E), QUOTED ABOVE. ACCORDINGLY, WHILE ON ACTIVE DUTY, HE IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES AS A REAR ADMIRAL (UPPER HALF), EFFECTIVE JULY 1, 1957.