B-134316, JANUARY 24, 1958, 37 COMP. GEN. 489

B-134316, JANUARY 24, 1958, 37 COMP. GEN. 489

MILITARY PERSONNEL - RETIRED PAY - RETIREMENT AS WARRANT OFFICER WITH RETIRED PAY BASED ON OFFICER RANK OR GRADE A MEMBER OF THE REGULAR AIR FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY IN THE STATUS OF CHIEF WARRANT OFFICER WITH ENTITLEMENT TO RETIRED PAY COMPUTED ON THE BASIS OF A HIGHER TEMPORARY RANK OR GRADE (COLONEL, AIR FORCE RESERVE) THAN THAT HELD AT TIME OF RETIREMENT AND TO THE RANK OR GRADE OF COLONEL ON THE RETIRED LIST DOES NOT HAVE HIS WARRANT OFFICER STATUS TERMINATED TO BE CONSIDERED AN OFFICER WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, FOR RECOMPUTATION OF RETIRED PAY.

TO JAMES M. MCCULLOUGH, JANUARY 24, 1958:

THERE IS PRESENTED IN YOUR LETTER OF OCTOBER 21, 1957, YOUR REQUEST AS ATTORNEY FOR COLONEL CLYDE C. JAKWAY, U.S. AIR FORCE, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 16, 1957, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY INCIDENT TO HIS MILITARY SERVICE.

A STATEMENT OF COLONEL JAKWAY'S SERVICE PREPARED BY THE OFFICE OF THE AIR ADJUTANT GENERAL, OCTOBER 3, 1957, DISCLOSES THAT COLONEL JAKWAY WAS RELEASED FROM ACTIVE DUTY ON MAY 26, 1950, WHILE SERVING AS A COLONEL IN THE AIR FORCE OF THE UNITED STATES. ON MAY 27, 1950, HE WAS APPOINTED A WARRANT OFFICER (JUNIOR GRADE) IN THE REGULAR AIR FORCE, CONTINUING ON ACTIVE DUTY. IN THE MONTH OF SEPTEMBER 1950 HE WAS ADVANCED TO THE WARRANT OFFICER GRADE (CHIEF WARRANT OFFICER, W-3) HELD BY HIM IN THE REGULAR AIR FORCE AT THE TIME OF HIS RETIREMENT ON FEBRUARY 29, 1956, FOR PHYSICAL DISABILITY PURSUANT TO THE PROVISIONS OF SECTION 402, CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272. IT IS SHOWN THAT ON NOVEMBER 14, 1952, HE ACCEPTED A COMMISSION AS COLONEL IN THE AIR FORCE RESERVE FOR AN INDEFINITE TERM.

YOUR LETTER OF AUGUST 29, 1957, PRESENTED COLONEL JAKWAY'S CLAIM FOR ADDITIONAL RETIRED PAY AND YOU STATE THAT HIS RETIRED PAY IS BEING COMPUTED AT THE RATE OF 50 PERCENTUM (THE PERCENTAGE OF HIS PHYSICAL DISABILITY, AS PROVIDED IN SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D) (, OF THE ACTIVE DUTY BASIC PAY OF A COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE. THE CLAIM AS PRESENTED IN YOUR LETTER OF AUGUST 29, 1957, IS FOR RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY BASIC PAY OF A COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE. THE SETTLEMENT OF OCTOBER 16, 1957, DISALLOWED SUCH CLAIM, WHICH AGAIN IS BEING ADVANCED BY YOU ON THE BASIS THAT THE PROVISIONS OF PARAGRAPH 4, SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, ARE FOR APPLICATION IN COLONEL JAKWAY'S CASE.

AS INDICATED ABOVE, COLONEL JAKWAY HELD AN APPOINTMENT AS A COLONEL IN THE AIR FORCE RESERVE ON FEBRUARY 29, 1956, THE DATE OF HIS RETIREMENT. HOWEVER, HE WAS IN FACT THEN SERVING ON ACTIVE DUTY AS A CHIEF WARRANT OFFICER (W-3) IN THE REGULAR AIR FORCE. CONSEQUENTLY, HE WAS NOT IN RECEIPT OF BASIC ACTIVE DUTY PAY AS A MEMBER OF A RESERVE COMPONENT AND, HENCE, HE WAS NOT ENTITLED TO BE RETIRED AS A MEMBER OF A RESERVE COMPONENT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. THEREFORE, SINCE COLONEL JAKWAY WAS RETIRED FOR PHYSICAL DISABILITY ON FEBRUARY 29, 1956, IN HIS STATUS AS A CHIEF WARRANT OFFICER (W-3) OF THE REGULAR AIR FORCE AND NOT AS A MEMBER OF THE AIR FORCE RESERVE, THE ISSUE IS WHETHER COLONEL JAKWAY MAY BE VIEWED AS HAVING BEEN RETIRED AS AN ,OFFICER" WITHIN THE MEANING AND PURPOSE OF THAT TERM AS USED IN PARAGRAPH 4, SECTION 15, PAY READJUSTMENT ACT OF 1942.

THIS OFFICE HAS ON MANY OCCASIONS BEEN CALLED ON TO CONSIDER THE QUESTION OF WHETHER WARRANT OFFICERS, GENERALLY, ARE "OFFICERS" WITHIN THE MEANING OF PARTICULAR STATUTES RELATING TO PAY, ALLOWANCES, ETC., OF MILITARY PERSONNEL. SEE 23 COMP. GEN. 384 AND 26 COMP. GEN. 818. THE COURTS ALSO HAVE DEALT WITH THE SAME QUESTION IN MANY CASES. SEE WALTON V. UNITED STATES, 89 C.1CLS. 28; ALLEN V. UNITED STATES, 67 C.1CLS. 558; BROWN V. UNITED STATES, 113 U.S. 568; RUSH V. UNITED STATES, 2 C.1CLS. 167; AND KATZER V. UNITED STATES, 52 C.1CLS. 32. SEE, ALSO, UNITED STATES V. MOUAT, 124 U.S. 303, AND UNITED STATES V. HENDEE, 124 U.S. 309, BOTH DECIDED ON THE SAME DAY. IN THE MOUAT CASE IT WAS HELD THAT A PAYMASTER'S CLERK WAS NOT AN OFFICER OF THE NAVY FOR THE PURPOSES OF ONE STATUTE AND IN THE OTHER CASE IT WAS HELD THAT A PAYMASTER'S CLERK WAS AN OFFICER OF THE NAVY FOR THE PURPOSES OF ANOTHER STATUTE. THUS, IT WILL BE SEEN THAT NO GENERAL RULE HAS BEEN FOLLOWED IN DETERMINING WHETHER WARRANT OFFICERS ARE OR ARE NOT "OFFICERS" WITHIN THE MEANING OF PARTICULAR STATUTES.

THE LEGISLATIVE HISTORY OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, DISCLOSES THAT IT WAS THE PURPOSE THEREOF TO EXTEND TO "OFFICERS" OF THE REGULAR NAVY THE SAME BENEFITS THERETOFORE GRANTED TO "OFFICERS" OF THE REGULAR ARMY BY SECTION 3, ACT OF JUNE 13, 1940, 54 STAT. 380, 10 U.S.C. 943A. SECTION 3 OF THE 1940 ACT, IN PERTINENT PART, PROVIDED THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHOULD, UPON HIS OWN APPLICATION, BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT. THE SAID ACT OF JUNE 13, 1940 (SECTION 3, 54 STAT. 380), WAS AN ACT AMENDING SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AND ADDING THERETO THE PROVISIONS ABOVE REFERRED TO RESPECTING "OFFICERS" WHO HAD SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918. IT REASONABLY MAY BE ASSUMED THAT THE CONGRESS, WHEN CONSIDERING THE BILL WHICH LATER BECAME THE ACT OF JUNE 13, 1940, WAS FULLY COGNIZANT OF THE DECISION RENDERED THE PREVIOUS YEAR, MAY 1, 1939, BY THE COURT OF CLAIMS IN THE CASE OF WALTON V. UNITED STATES, 89 C.1CLS. 28, IN WHICH IT WAS HELD THAT THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, APPLIED ONLY TO COMMISSIONED OFFICERS AND NOT TO WARRANT OFFICERS AND THAT IF IT HAD BEEN INTENDED OTHERWISE, THE LANGUAGE EMPLOYED BY CONGRESS IN THE ACT OF JULY 31, 1935, WOULD CLEARLY HAVE REFLECTED SUCH AN INTENT. THE 1940 ACT HAS NO BROADER LANGUAGE THAN THE 1935 LAW.

THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 WHICH ARE MENTIONED HEREINAFTER CLEARLY DEMONSTRATE THAT THE TERM "OFFICER," WHEN USED IN THAT ACT WITHOUT OTHER QUALIFICATION, REFERS ONLY TO COMMISSIONED OFFICERS AND THAT WHEN CONGRESS INTENDED THAT WARRANT OFFICERS BE INCLUDED, THEY WERE DESIGNATED BY CLEAR AND SPECIFIC LANGUAGE. SECTION 1 OF THE ACT, 56 STAT. 359, APPLIED SOLELY TO COMMISSIONED OFFICERS; SECTION 2, 56 STAT. 360, WAS APPLICABLE TO ENLISTED MEN, WARRANT OFFICERS, NURSES, AND COMMISSIONED OFFICERS, AND SECTION 8, 56 STAT. 362, PERTAINED TO WARRANT OFFICERS, CHIEF WARRANT OFFICERS OF THE ARMY, AND COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD. ALSO, SEE THE PERTINENT PROVISIONS CONTAINED IN SECTION 12 OF THE ACT, 56 STAT. 364, 365, WHICH WERE APPLICABLE TO ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE, AND THE PROVISIONS OF SECTION 14, 56 STAT. 367, RELATING TO OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES. SIGNIFICANTLY, ALTHOUGH THE FIRST PARAGRAPH OF SECTION 15 REFERS TO RETIRED OFFICERS, 56 STAT. 367, WARRANT OFFICERS, NURSES, AND ENLISTED MEN, THE FOURTH PARAGRAPH OF THAT SAME SECTION REFERS ONLY TO ANY OFFICER, ETC. IT IS THUS APPARENT THAT THE TERM "OFFICER" AS USED IN THE FOURTH PARAGRAPH, SECTION 15 OF THE PAY READJUSTMENT ACT OF THE 1942, PROPERLY MAY NOT BE VIEWED AS INCLUDING WARRANT OFFICERS.

IN OUR DECISION DATED JULY 5, 1956, B-127118 (COPY HEREWITH), TO THE SECRETARY OF DEFENSE, WE HELD (QUOTING FROM THE SYLLABUS, 36 COMP. GEN. 8) THAT:

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.

THE RULE OF THAT CASE HAS EQUAL APPLICATION TO COLONEL JAKWAY, WHOSE STATUS AS A CHIEF WARRANT OFFICER (W-3) OF THE REGULAR AIR FORCE WAS NOT TERMINATED SOLELY BY REASON OF THE FACT THAT UPON HIS RETIREMENT FOR PHYSICAL DISABILITY UNDER AUTHORITY OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 (WITH ENTITLEMENT, UNDER THE SECOND PROVISO OF SECTION 402 (D), 63 STAT. 818, TO DISABILITY RETIRED PAY COMPUTED ON THE BASIS OF A HIGHER TEMPORARY GRADE OR RANK THAN THAT HELD BY HIM ON FEBRUARY 29, 1956) HE ALSO BECAME ENTITLED UNDER SECTION 409 OF THE ACT, 63 STAT. 823, 37 U.S.C. 279, TO THE RANK OR GRADE OF COLONEL ON THE RETIRED LIST.

ACCORDINGLY, SINCE THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 MAY NOT BE APPLIED IN COLONEL JAKWAY'S CASE, THE ACTION TAKEN OCTOBER 16, 1957, IN DISALLOWING HIS CLAIM IS SUSTAINED.