B-134452, DECEMBER 30, 1957, 37 COMP. GEN. 446

B-134452: Dec 30, 1957

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WHICH PERMITS CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED TO BE RETIRED FOR PHYSICAL DISABILITY TO BE RETIRED UNDER THE LAWS RELATING TO VOLUNTARY AND INVOLUNTARY RETIREMENT. WHICH PERMITTED CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO WERE REQUIRED TO BE RETIRED FOR PHYSICAL DISABILITY TO BE RETIRED UNDER THE LAWS RELATING TO VOLUNTARY AND INVOLUNTARY RETIREMENT. IT CONTINUED TO BE APPLICABLE TO A COAST GUARD ENLISTED MEMBER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO AUGUST 10. A COAST GUARD ENLISTED MEMBER WHO IS ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO ACTION TAKEN UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. MUST HAVE HIS PERMANENT DISABILITY RETIREMENT EFFECTED UNDER THE FORMER PROVISIONS IN SECTION 402.

B-134452, DECEMBER 30, 1957, 37 COMP. GEN. 446

MILITARY PERSONNEL - COAST GUARD - DISABILITY RETIREMENT - SAVINGS PROVISIONS - EFFECT OF RETIREMENTS UNDER CAREER COMPENSATION ACT OF 1949 FOR BENEFITS UNDER TITLE 10 U.S.C. THE SAVINGS PROVISO IN SECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (F), WHICH PERMITS CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED TO BE RETIRED FOR PHYSICAL DISABILITY TO BE RETIRED UNDER THE LAWS RELATING TO VOLUNTARY AND INVOLUNTARY RETIREMENT, DOES NOT ENTITLE MEMBERS RETIRED FOR PHYSICAL DISABILITY TO ANY RIGHT TO RETIRED PAY AUTHORIZED FOR VOLUNTARY OR INVOLUNTARY NONDISABILITY RETIREMENT. ALTHOUGH THE PROVISO IN SUBSECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, WHICH PERMITTED CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO WERE REQUIRED TO BE RETIRED FOR PHYSICAL DISABILITY TO BE RETIRED UNDER THE LAWS RELATING TO VOLUNTARY AND INVOLUNTARY RETIREMENT, HAS NOT BEEN RESTATED IN TITLE 10 OF THE U.S.C. WHICH REENACTED INTO POSITIVE LAW THE DISABILITY RETIREMENT PROVISION OF SECTION 402 OF THE 1949 ACT, IT CONTINUED TO BE APPLICABLE TO A COAST GUARD ENLISTED MEMBER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO AUGUST 10, 1956--- DATE OF THE ENACTMENT OF TITLE 10 OF THE U.S. CODE--- AND WHO MAY NOW DESIRE TO BE RETIRED UNDER THE TWENTY-YEAR VOLUNTARY RETIREMENT LAW RATHER THAN TO BE RETIRED UNDER THE PERMANENT DISABILITY RETIREMENT LAW. A COAST GUARD ENLISTED MEMBER WHO IS ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO ACTION TAKEN UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, PRIOR TO ITS REPEAL AND SUBSEQUENT REENACTMENT IN TITLE 10, CHAPTER 61, OF THE U.S. CODE, MUST HAVE HIS PERMANENT DISABILITY RETIREMENT EFFECTED UNDER THE FORMER PROVISIONS IN SECTION 402; HOWEVER, THE SAVINGS PROVISION IN 10 U.S.C. 1401, WHICH PERMITS MEMBERS TO RECEIVE THE HIGHEST RETIRED PAY UNDER ANY LAW, ALTHOUGH NOT APPLICABLE WHILE THE MEMBER IS ON THE TEMPORARY DISABILITY RETIRED LIST, WOULD APPLY WHEN HIS PERMANENT RETIREMENT FOR DISABILITY IS EFFECTED. A COAST GUARD ENLISTED MEMBER WHO IS ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO ACTION TAKEN UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 AND WHO REENLISTS IN THE COAST GUARD UPON A DETERMINATION BY THE SECRETARY OF THE TREASURY OF PHYSICAL FITNESS FOR DUTY MAY THEREAFTER BE PERMITTED TO RETIRE UNDER THE COAST GUARD TWENTY YEAR RETIREMENT LAW, 14 U.S.C. 355. UNDER 10 U.S.C. 1401, WHICH CONTAINS A TABLE SETTING OUT THE METHODS FOR COMPUTING RETIRED PAY FOR PHYSICAL DISABILITY AND LENGTH OF SERVICE RETIREMENTS, AND A SAVINGS CLAUSE ENTITLING MEMBERS OF THE UNIFORMED SERVICE TO HAVE RETIRED PAY COMPUTED ON A FORMULA MOST FAVORABLE TO THEM, MEMBERS RETIRED UNDER ANY SECTION REFERRED TO IN 10 U.S.C. 1401 ARE ENTITLED TO THE HIGHEST RETIRED PAY COMPUTED UNDER ANY PROVISION OF LAW.

TO THE SECRETARY OF THE TREASURY, DECEMBER 30, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 15, 1957, FROM THE ACTING SECRETARY OF THE TREASURY, REQUESTING OUR DECISION ON CERTAIN QUESTIONS RELATING TO THE BASIS FOR COMPUTING RETIRED PAY IN THE CASE OF HOWARD N. HOWELL (105-077) BML-1, UNITED STATES COAST GUARD. THE QUESTIONS, AS SET OUT IN A MEMORANDUM ENCLOSED WITH THE LETTER OF NOVEMBER 15, 1957, ARE AS FOLLOWS:

1. WAS HOWARD N. HOWELL, BML-1, USCG, ENTITLED TO THE PAYMENT OF THE ADDITIONAL 10 PERCENTUM OF HIS BASIC PAY PROVIDED FOR BY 14 U.S.C. 357 (C) FOR GOOD CONDUCT, AFTER HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 402 (F), CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (F), (1952 USED./?

2. WAS THE SAID HOWELL ENTITLED TO THE PAYMENT OF THE ADDITIONAL 10 PERCENTUM OF HIS BASIC PAY PROVIDED FOR BY 14 U.S.C. 357 (C) ON AND AFTER AUGUST 10, 1956, THE EFFECTIVE DATE OF CHAPTERS 61 AND 71 OF TITLE 10, UNITED STATES CODE?

3. WILL THE SAID HOWELL BE ENTITLED TO PAYMENT OF THE ADDITIONAL 10 PERCENTUM OF HIS BASIC PAY PROVIDED FOR BY 14 U.S.C. 357 (C) IN THE EVENT HE IS PERMANENTLY RETIRED IN THE FUTURE FOR PHYSICAL DISABILITY PURSUANT TO 10 U.S.C. 1201 (1952 USED., IV SUPP.) AND HIS RETIRED PAY IS COMPUTED UNDER 10 U.S.C. 1401 (1952 USED., IV SUPP./?

4. IN LIEU OF EFFECTING HIS PERMANENT RETIREMENT FOR PHYSICAL DISABILITY, COULD THE SAID HOWELL AT THIS TIME BE RESTORED TO ACTIVE DUTY AND THEN BE PERMITTED TO RETIRE UNDER THE COAST GUARD 20-YEAR RETIREMENT LAW, 14 U.S.C. 355?

IT APPEARS THAT MR. HOWELL WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1953, UNDER THE PROVISIONS OF SUBSECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820 (37 U.S.C. 272 (F) ). THAT TIME HIS DISABILITY WAS RATED AT 10 PERCENT AND HE HAD COMPLETED A TOTAL OF 23 YEARS OF ACTIVE SERVICE FOR DISABILITY RETIRED PAY COMPUTATION PURPOSES UNDER THE PROVISIONS OF SUBSECTION 402 (D) OF THE CAREER COMPENSATION ACT. SINCE HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST HE HAS BEEN PAID RETIRED PAY EQUIVALENT TO 57 1/2 PERCENT (2 1/2 PERCENT TIMES HIS YEARS OF ACTIVE SERVICE) OF THE MONTHLY BASIC PAY OF AN ENLISTED MEMBER IN PAY GRADE E-6.

ON MARCH 1, 1953, MR. HOWELL COULD HAVE BEEN ALLOWED TO RETIRE UNDER THE PROVISIONS OF 14 U.S.C. 355, WHICH AUTHORIZE THE COMMANDANT OF THE COAST GUARD TO PERMIT ENLISTED MEMBERS OF THE COAST GUARD TO RETIRE VOLUNTARILY AFTER 20 YEARS OF ACTIVE SERVICE. DUE TO BUDGETARY LIMITATIONS EXISTING AT THAT TIME, HOWEVER, HE WAS NOT AFFORDED AN OPPORTUNITY TO RETIRE UNDER THOSE PROVISIONS. HAD HE BEEN PERMITTED TO SO RETIRE VOLUNTARILY HE WOULD HAVE RECEIVED, UNDER THE PROVISIONS OF 14 U.S.C. 423 AND 357 (C), THE RETIRED PAY WHICH HE HAS BEEN RECEIVING PLUS AN ADDITIONAL 10 PERCENT OF HIS BASIC PAY, HIS AVERAGE MARKS IN CONDUCT DURING HIS ENTIRE COAST GUARD SERVICE HAVING BEEN NOT LESS THAN 97 1/2 PERCENT.

A PHYSICAL EVALUATION BOARD HELD ON JULY 19, 1957, HAS DETERMINED THAT MR. HOWELL'S DISABILITY IS NOW PERMANENT AND IS RATED AT 20 PERCENT. THIS BOARD HAS RECOMMENDED THAT HE BE PLACED ON THE PERMANENT DISABILITY RETIRED LIST AND THE PHYSICAL REVIEW COUNCIL HAS CONCURRED IN SUCH DETERMINATION AND RECOMMENDATION. ON FEBRUARY 28, 1958, MR. HOWELL WILL HAVE BEEN ON THE TEMPORARY DISABILITY RETIRED LIST FOR FIVE YEARS.

SUBSECTIONS 402 (A) THROUGH 402 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (A/--- 272 (E), AUTHORIZED THE RETIREMENT FOR PHYSICAL DISABILITY OF MEMBERS OF THE UNIFORMED SERVICES UNDER CERTAIN SPECIFIED CONDITIONS AND PROVIDED FOR THE COMPUTATION OF THE RETIRED PAY OF MEMBERS SO RETIRED. ONE OF THE CONDITIONS GENERALLY REQUIRED FOR SUCH RETIREMENT WAS A DISABILITY OF NOT LESS THAN 30 PERCENT. UNDER SUCH PROVISIONS, HOWEVER, THOSE MEMBERS WHOSE DISABILITY MIGHT NOT BE PERMANENT WERE NOT PERMANENTLY RETIRED BUT WERE PLACED UPON A TEMPORARY DISABILITY RETIRED LIST FOR A PERIOD OF NOT TO EXCEED FIVE YEARS. WHILE ON SUCH LIST THE MEMBERS WERE REQUIRED TO BE EXAMINED PERIODICALLY AND THEIR FURTHER DISPOSITION DEPENDED UPON THE OUTCOME OF SUCH EXAMINATIONS. GENERALLY A FINDING OF PERMANENT DISABILITY OF 30 PERCENT OR MORE, AND THAT THE MEMBER EITHER HAD A MINIMUM OF EIGHT YEARS' SERVICE OR DISABILITY WHICH WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, REQUIRED THAT THE MEMBER BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY. IF THE PERMANENT DISABILITY WAS LESS THAN 30 PERCENT, THE MEMBER WAS REQUIRED TO BE SEPARATED FROM THE SERVICE WITH SEVERANCE PAY UNLESS HE HAD 20 YEARS OR MORE OF ACTIVE DUTY. SUBSECTION 402 (F) PROVIDED THAT:

NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, ANY MEMBER OF THE UNIFORMED SERVICES WHO SHALL HAVE COMPLETED AT LEAST TWENTY YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THIS TITLE, AND WHO IS OTHERWISE QUALIFIED TO BE RETIRED FOR PHYSICAL DISABILITY EXCEPT THAT HIS DISABILITY IS LESS THAN 30 PERCENTUM IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION, SHALL BE RETIRED AND SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT THE PROVISIONS OF THIS SECTION SHALL NOT BE INTERPRETED TO LIMIT THE APPLICATION OF ANY PROVISIONS OF LAW RELATING TO VOLUNTARY OR INVOLUNTARY RETIREMENT. ( ITALICS SUPPLIED.)

THE BASIC PROVISIONS OF THIS SUBSECTION CREATED AN EXCEPTION TO THE DEGREE OF DISABILITY CONDITION CONTAINED IN THE PRIOR SUBSECTIONS OF SECTION 402 AND AUTHORIZED THE RETIREMENT FOR PHYSICAL DISABILITY OF MEMBERS OF THE UNIFORMED SERVICES WITH 20 OR MORE YEARS OF ACTIVE SERVICE IF THEY WERE OTHERWISE QUALIFIED, EVEN THOUGH THEIR DISABILITY WAS RATED AT LESS THAN 30 PERCENT. IT IS NOT CLEAR THAT THE RETIREMENT PROVISIONS OF THIS SUBSECTION CONTEMPLATED THAT THE MEMBERS CONCERNED WOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. IN AN OPINION DATED MARCH 9, 1953, JAGA 1953/1900, HOWEVER, THE JUDGE ADVOCATE GENERAL OF THE ARMY HELD THAT SUCH PROCEEDINGS WAS PROPER UNDER THE SUBSECTION AND HIS OPINION INDICATES THAT THE JUDGE ADVOCATES GENERAL OF THE NAVY AND AIR FORCE HAD CONCURRED IN HIS VIEWS. IN THE LIGHT OF THE REASONS ADVANCED FOR SUCH HOLDING, AND THE FACT THAT 10 U.S.C. 1201 AND 1202 EXPRESSLY AUTHORIZE THE TYPE OF PROCEDURE SANCTIONED IN SUCH HOLDING, WE DO NOT PROPOSE TO QUESTION THE LEGALITY OF MR. HOWELL'S PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. THE EFFECT OF THE PROVISO IN SUBSECTION 402 (F) WAS TO PERMIT MEMBERS WHOSE RETIREMENT FOR PHYSICAL DISABILITY WAS REQUIRED BY ANY PROVISION OF SECTION 402, INCLUDING THE BASIC PROVISIONS OF SUBSECTION 402 (F), TO BE RETIRED UNDER ANY PROVISION OF LAW RELATING TO VOLUNTARY OR INVOLUNTARY RETIREMENT IN LIEU OF BEING RETIRED FOR PHYSICAL DISABILITY. WE FIND NO SUBSTANTIAL BASIS FOR CONCLUDING, HOWEVER, THAT, IN THE ABSENCE OF A RETIREMENT UNDER THE PROVISIONS OF LAW AUTHORIZING VOLUNTARY OR IN VOLUNTARY NONDISABILITY RETIREMENT, THE PROVISO CONFERRED ON THE MEMBERS CONCERNED ANY RIGHT TO THE RETIRED PAY AUTHORIZED IN THE CASE OF SUCH VOLUNTARY OR INVOLUNTARY RETIREMENT. HENCE, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE DISABILITY RETIREMENT PROVISIONS CONTAINED IN SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 WERE REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 680, AND BY THAT SAME ACT SUCH PROVISIONS, WITH THE EXCEPTION OF THE RETIRED PAY COMPUTATION PROVISIONS OF SUBSECTION 402 (D), WERE RESTATED AS VARIOUS SECTIONS IN CHAPTER 61 OF TITLE 10 OF THE UNITED STATES CODE. THE RETIRED PAY COMPUTATION PROVISIONS OF SUBSECTION 402 (D) WERE RESTATED IN 10 U.S.C. 1401 ( CHAPTER 71). WHILE THE BASIC PROVISIONS OF SUBSECTION 402 (F) ARE RESTATED IN 10 U.S.C. 1201, 1204, AND 1210, NO LANGUAGE QUITE LIKE THAT OF THE PROVISO IN SUBSECTION 402 (F) WAS INCLUDED IN TITLE 10 APPARENTLY BECAUSE OF CERTAIN PROVISIONS RELATING TO ALTERNATIVE RETIRED PAY FORMULAS WHICH WERE INCORPORATED IN 10 U.S.C. 1401.

IN DECISION OF SEPTEMBER 4, 1957, B-132268, 37 COMP. GEN. 166, CONCERNING THE EFFECT OF THE ACT OF AUGUST 10, 1956, ON THE RETIREMENT RIGHTS OF AVIATION CADETS WHO HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT, WE HELD THAT:

WHILE SECTION 53 OF THE ACT OF AUGUST 10, 1956, CITED ABOVE, PROVIDES FOR THE REPEAL OF MANY STATUTES (INCLUDING TITLE IV OF THE CAREER COMPENSATION ACT) WHICH WERE CODIFIED IN TITLE 10, IT ALSO LIMITS THE REPEAL AND, IF EFFECT, CONTINUES THE REPEALED STATUTES IN FORCE,"WITH RESPECT TO RIGHTS AND DUTIES THAT MATURED, PENALTIES THAT WERE INCURRED, AND PROCEEDINGS THAT WERE BEGUN" PRIOR TO AUGUST 10, 1956. A DETERMINATION BY THE SECRETARY CONCERNED TO PLACE THE NAME OF A MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST, AND THE MEMBER'S PLACEMENT THEREON, IS MERELY THE INITIAL STEP IN A SERIES WHICH WILL LEAD EITHER TO A RETURN TO DUTY, RETIREMENT, OR SEPARATION FOR PHYSICAL DISABILITY. WHEN PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST WAS MADE BEFORE THE ENACTMENT OF TITLE 10, IT WAS A PROCEEDING BEGUN PRIOR TO AUGUST 10, 1956, WITHIN THE CONTEMPLATION OF SECTION 53 AND THE CASES OF AVIATION CADETS SO SITUATED MAY BE PROCESSED UNDER THE SAVINGS PROVISION AND TITLE IV OF THE CAREER COMPENSATION ACT. * * *

THUS, THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT CONTINUE TO APPLY TO MR. HOWELL SINCE HIS PERMANENT RETIREMENT FOR PHYSICAL DISABILITY HAS NOT BEEN CONSUMMATED. HENCE THE PROVISO CONTAINED IN SUBSECTION 402 (F) IS STILL APPLICABLE TO HIS CASE AND WE PERCEIVE NO REASON WHY HE MAY NOT NOW BE PERMITTED TO RETIRE UNDER THE COAST GUARD 20- YEAR VOLUNTARY RETIREMENT LAW SHOULD HE CHOOSE TO DO SO.

IT FOLLOWS THAT, IF MR. HOWELL IS TO BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY, SUCH ACTION MUST BE TAKEN UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT, 37 U.S.C. 271. IN VIEW OF THE PROVISIONS OF SUBSECTION 49 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, HOWEVER, SUCH ACTION, AFTER IT HAS BEEN TAKEN, IS TO BE CONSIDERED AS HAVING BEEN TAKEN UNDER CHAPTER 61 OF TITLE 10 OF THE U.S.C. AS ENACTED BY THAT ACT. CONSEQUENTLY, THE RETIRED PAY RIGHTS WHICH WOULD ACCRUE TO HIM INCIDENT TO SUCH PERMANENT RETIREMENT FOR DISABILITY WOULD BE FOR DETERMINATION UNDER THE PERTINENT PROVISIONS OF TITLE 10.

SECTION 1401 OF TITLE 10, WHICH CONTAINS A TABLE SETTING OUT THE METHODS OF COMPUTING RETIRED PAY UNDER CERTAIN SPECIFIED PROVISIONS OF THAT TITLE AUTHORIZING RETIREMENT FOR BOTH PHYSICAL DISABILITY AND LENGTH OF SERVICE, PROVIDES, IN PART, THAT:

* * * IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

HOUSE OF REPRESENTATIVES REPORT NO. 970, 84TH CONGRESS, TO ACCOMPANY H.R. 7049, WHICH BECAME THE ACT OF AUGUST 10, 1956, SAYS WITH RESPECT TO THE QUOTED PROVISION (PAGE 114) THAT "THE APPLICABILITY OF THE RULE * * * TO SITUATIONS NOT EXPRESSLY COVERED BY THE LAWS NAMED IN THE SOURCE STATUTES * * * IS A PRACTICAL CONSTRUCTION THAT THE RULE MUST BE RECIPROCALLY APPLIED IN ALL SES.' AMONG SUCH SOURCE STATUTES IS SUBSECTION 14 (F) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 164, 10 U.S.C. 600L (F), (REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956), WHICH PROVIDED THAT:

THE PROVISIONS OF THIS SECTION OR SECTION 13 (PROVIDING FOR VOLUNTARY AND INVOLUNTARY RETIREMENT OR SEPARATION OF WARRANT OFFICERS AND FIXING THE RETIRED OR SEVERANCE PAY OF PERSONS SO RETIRED) SHALL NOT PREVENT ANY WARRANT OFFICER FROM ELECTING TO BE PLACED ON THE RETIRED LIST IN THE HIGHEST GRADE AND WITH THE HIGHEST RETIRED PAY TO WHICH HE MAY BE ENTITLED UNDER ANY OTHER LAW. HOWEVER, WHEN THE RATE OF PAY OF SUCH HIGHEST GRADE IS UNDER ANY OTHER LAW LESS THAN THE PAY OF ANY WARRANT GRADE SATISFACTORILY HELD ON ACTIVE DUTY, THE RETIRED PAY SHALL BE BASED ON THE HIGHER RATE OF PAY.

IT MAY BE NOTED THAT THE FIRST SENTENCE OF SUCH SUBSECTION IS SOMEWHAT ANALOGOUS TO THE PROVISO CONTAINED IN SUBSECTION 402 (F) OF THE 1949 ACT, AND THE LAST SENTENCE MAKES PLAIN THE INTENT THAT UPON RETIREMENT THE PERSONS SUBJECT TO SUBSECTION 14 (F) SHOULD RECEIVE THE HIGHEST RETIRED PAY TO WHICH ENTITLED UNDER ANY PROVISION OF LAW REGARDLESS OF THE LAW UNDER WHICH RETIRED.

IN THE LIGHT OF THIS LEGISLATIVE BACKGROUND, IT SEEMS REASONABLY CLEAR THAT THE QUOTED PROVISIONS OF SECTION 1401 OF TITLE 10 ARE INTENDED TO CONFER ON PERSONS WHO ARE RETIRED UNDER ANY SECTION OF THAT TITLE TO WHICH SECTION 1401 REFERS THE HIGHEST RETIRED PAY TO WHICH THEY WOULD BE ENTITLED UNDER ANY PROVISION OF LAW. SINCE, HOWEVER, AS INDICATED ABOVE, THE PROVISIONS OF TITLE 10 DO NOT APPLY TO MR. HOWELL WHILE HE REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST, THE PROVISIONS OF SECTION 1401 MAY NOT BE VIEWED AS AUTHORIZING ANY INCREASE OR DECREASE IN HIS RETIRED PAY WHILE HE IS ON SUCH LIST. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE AND YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE. WITH RESPECT TO QUESTION 4, IT MAY BE NOTED THAT BOTH SECTION 405 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 275, AND 10 U.S.C. 1211 AUTHORIZE THE RESTORATION TO ACTIVE DUTY OF MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST WHEN THEY ARE FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF THEIR OFFICES, GRADES, RANKS, OR RATINGS AND THAT BOTH SECTION 404 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 284, AND 10 U.S.C. 1216 VEST THE AUTHORITY TO DETERMINE PHYSICAL FITNESS IN THE SECRETARY CONCERNED. ACCORDINGLY, IF YOU MAKE A DETERMINATION OF PHYSICAL FITNESS FOR DUTY IN MR. HOWELL'S CASE AND HE IS REENLISTED IN THE COAST GUARD, WE PERCEIVE NO REASON WHY HE MAY NOT THEREAFTER BE PERMITTED TO RETIRE UNDER THE PROVISIONS OF 14 U.S.C. 355.