B-138039, FEBRUARY 12, 1959, 38 COMP. GEN. 543

B-138039: Feb 12, 1959

Additional Materials:

Contact:

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

 

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

EXPIRE OR TERMINATE IN THE MONTH PRECEDING THE EFFECTIVE DATE OF VOLUNTARY RETIREMENT ARE NOT ENTITLED BY REASON OF THE PROVISION IN THE UNIFORM RETIREMENT DATE ACT OF APRIL 23. TO A CONTINUATION OF THE HIGHER ACTIVE DUTY PAY AND ALLOWANCES AFTER THE EXPIRATION OR TERMINATION OF THE OFFICE OR DETAIL AND ANY ALLOWANCES AFTER THE EXPIRATION OR TERMINATION OF THE OFFICE OR DETAIL AND ANY LUMP-SUM LEAVE PAYMENT IS NOT FOR COMPUTATION ON THE HIGHER RANK OR GRADE. 1959: REFERENCE IS MADE TO LETTER DATED NOVEMBER 25. DEPARTMENT OF DEFENSE) AS TO WHETHER NAVAL OFFICERS SERVING UNDER APPOINTMENT OR DETAILED TO CERTAIN OFFICES OR DUTIES ARE ENTITLED TO HAVE THEIR ACTIVE DUTY PAY AND ALLOWANCES. COMPUTED ON THE BASIS OF THE HIGHER RANK IN WHICH THEY WERE SERVING UNDER THE CIRCUMSTANCES DISCLOSED.

B-138039, FEBRUARY 12, 1959, 38 COMP. GEN. 543

MILITARY PERSONNEL - HIGHER GRADE, ETC., SERVICE - TERMINATION - PRIOR TO VOLUNTARY RETIREMENT NAVAL OFFICERS WHOSE APPOINTMENTS OR DETAILS TO OFFICES WHICH ENTITLE THEM TO A HIGHER RANK AND PAY, WHILE SO SERVING, EXPIRE OR TERMINATE IN THE MONTH PRECEDING THE EFFECTIVE DATE OF VOLUNTARY RETIREMENT ARE NOT ENTITLED BY REASON OF THE PROVISION IN THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A (A), FOR THE COMPUTATION OF RETIRED PAY AT THE RATE OF ACTIVE DUTY PAY AS OF THE DATE OF RETIREMENT, TO A CONTINUATION OF THE HIGHER ACTIVE DUTY PAY AND ALLOWANCES AFTER THE EXPIRATION OR TERMINATION OF THE OFFICE OR DETAIL AND ANY ALLOWANCES AFTER THE EXPIRATION OR TERMINATION OF THE OFFICE OR DETAIL AND ANY LUMP-SUM LEAVE PAYMENT IS NOT FOR COMPUTATION ON THE HIGHER RANK OR GRADE.

TO THE SECRETARY OF THE NAVY, FEBRUARY 12, 1959:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 25, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY, REQUESTING A DECISION (ASSIGNED NO. 377 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE) AS TO WHETHER NAVAL OFFICERS SERVING UNDER APPOINTMENT OR DETAILED TO CERTAIN OFFICES OR DUTIES ARE ENTITLED TO HAVE THEIR ACTIVE DUTY PAY AND ALLOWANCES, INCLUDING LUMP-SUM LEAVE PAYMENT, COMPUTED ON THE BASIS OF THE HIGHER RANK IN WHICH THEY WERE SERVING UNDER THE CIRCUMSTANCES DISCLOSED.

IT IS STATED THAT VARIOUS SECTIONS OF TITLE 10, U.S. CODE, AS AMENDED, PROVIDE THAT OFFICERS OF THE NAVAL SERVICE MAY BE APPOINTED OR DETAILED TO CERTAIN OFFICES OR DUTIES IN THE DEPARTMENT OF THE NAVY AND THAT, WHILE SO SERVING, THEY SHALL HAVE A RANK WHICH MAY BE HIGHER THAN THAT WHICH THEY OTHERWISE HOLD AND BE ENTITLED TO PAY AND ALLOWANCES OF SUCH HIGHER RANK. THE ASSISTANT SECRETARY'S LETTER CITES SECTIONS OF TITLE 10, U.S. CODE, PERTAINING TO SUCH OFFICES OR DETAILS AS FOLLOWS: 5064 (A), 5064 (B), THE DIRECTOR OF THE BUDGET AND REPORTS; 5081 (A), 5081 (B), THE CHIEF OF NAVAL OPERATIONS; 5111 (A), 5111 (B), THE CHIEF OF NAVAL MATERIAL; 5133 (A), 5133 (B), 5136 (A), 5137 (A), 5141 (A), 5144 (A), 5145 (A), 5146 (A), 5147 (A), BUREAU CHIEFS; 5138 (A), 5138 (B), THE CHIEF OF THE DENTAL DIVISION; 5139 (A), THE CHIEF OF THE MEDICAL SERVICE CORPS; 5140 (A), THE DIRECTOR OF THE NURSE CORPS; 5142, THE CHIEF OF CHAPLAINS; 5143 (A), THE ASSISTANT CHIEF OF NAVAL PERSONNEL FOR WOMEN; 5145 (B), 5145 (C), THE DEPUTY CHIEF OF THE BUREAU OF SHIPS; 5148 (A), 5148 (B), THE JUDGE ADVOCATE GENERAL; 5150 (B), 5150 (C), THE CHIEF OF NAVAL RESEARCH; 5201 (A), 5201 (B), THE COMMANDANT OF THE MARINE CORPS; 5204 (A), 5204 (B), THE QUARTERMASTER GENERAL OF THE MARINE CORPS; AND 5206 (A), THE DIRECTOR OF WOMEN MARINES.

WITH THE EXCEPTION OF APPOINTMENTS OR DETAILS AUTHORIZED TO BE MADE BY THE SECRETARY OF THE NAVY, THE ABOVE CODE PROVISIONS PROVIDE, GENERALLY, THAT THE APPOINTMENTS WILL BE MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR A FIXED TERM OF YEARS, USUALLY THREE OR FOUR YEARS. IN MOST CASES, THE LAW DESIGNATES THE GRADE OR RANK TO BE HELD WHILE SERVING IN THE APPROPRIATE OFFICE. FOR EXAMPLE, UPON APPOINTMENT AS CHIEF OF NAVAL OPERATIONS AND COMMANDANT OF THE MARINE CORPS, THE OFFICER,"WHILE SO SERVING," HAS THE RANK OF ADMIRAL AND GENERAL, RESPECTIVELY. 10 U.S.C. 5081 (B) AND 5201 (B).

REFERENCE IS ALSO MADE TO OTHER SECTIONS OF TITLE 10, U.S. CODE, REGARDING OFFICERS OF THE NAVAL SERVICE DETAILED TO CERTAIN DUTIES AS FOLLOWS: 5061 (B), 5062, THE DEPUTY COMPTROLLER; 5064 (C), THE ASSISTANT DIRECTOR OF BUDGET AND REPORTS; 5134, 5136 (B), 5137 (B), 5141 (B), 5144 (B), 5146 (B), 5147 (B), DEPUTY BUREAU CHIEFS (EXCEPT THE BUREAU OF SHIPS); 5149 (A), THE ASSISTANT JUDGE ADVOCATE GENERAL; 5150 (D), THE ASSISTANT CHIEF OF NAVAL RESEARCH; AND 5202 (A), THE ASSISTANT COMMANDANT OF THE MARINE CORPS. GENERALLY, UNDER THE ABOVE CODE PROVISIONS, ANY OFFICER DETAILED TO SUCH DUTY IS ENTITLED "WHILE SO SERVING" TO THE HIGHEST PAY OF HIS RANK.

THE ASSISTANT SECRETARY'S LETTER RELATES THAT MANY SENIOR OFFICERS DESIRE TO APPLY FOR VOLUNTARY RETIREMENT TO BE EFFECTIVE UPON EXPIRATION OF THE TERM OF ONE OF THE OFFICES, OR UPON TERMINATION OF ONE OF THE DETAILS, AS LISTED ABOVE. IT IS ALSO POINTED OUT THAT IN MANY CASES THE TERM OF OFFICE OR DETAIL OF AN APPLICANT FOR RETIREMENT WILL EXPIRE OR WILL BE TERMINATED SUBSEQUENT TO APPROVAL OF HIS RETIREMENT APPLICATION BUT DURING THE CALENDAR MONTH NEXT PRECEDING THE FIRST DAY OF A MONTH ON WHICH HIS RETIREMENT WILL BE EFFECTIVE.

THE QUESTION PRESENTED IS AS FOLLOWS:

IS AN OFFICER OF THE NAVAL SERVICE WHOSE APPLICATION FOR VOLUNTARY RETIREMENT IS APPROVED WHILE HE IS SERVING IN AN OFFICE OR IS DETAILED TO DUTIES AS DESCRIBED ABOVE, BUT WHOSE TERM OF OFFICE OR DETAIL EXPIRES OR IS TERMINATED DURING THE CALENDAR MONTH PRECEDING THE EFFECTIVE DATE OF HIS RETIREMENT, ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED FOR SUCH OFFICE OR DETAIL FOR THE PERIOD BETWEEN SUCH EXPIRATION OR TERMINATION DATE AND THE EFFECTIVE DATE OF RETIREMENT INCLUDING LUMP-SUM LEAVE PAYMENT COMPUTED ON THE SAME BASIS?

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, AS AMENDED BY THE ACT OF AUGUST 2, 1956, 73 STAT. 933, 5 U.S.C., SUPP. V, 47A (A/--- THE AMENDATORY ACT IS NOT HERE MATERIAL--- PROVIDES, IN PERTINENT PART, THAT RETIREMENT OF FEDERAL PERSONNEL, INCLUDING MEMBERS OF THE UNIFORMED SERVICES, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE. THE ACT FURTHER PROVIDES THAT "* * * THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.'

THE ASSISTANT SECRETARY'S LETTER EXPRESSES THE VIEW THAT THE LAST QUOTED PROVISO ENTITLES AN OFFICER TO THE HIGHER ACTIVE DUTY PAY AND ALLOWANCE PRESCRIBED FOR HIS OFFICE OR DETAIL THROUGH SUCH CALENDAR MONTH AND UNTIL THE EFFECTIVE DATE OF HIS RETIREMENT, INCLUDING LUMP SUM LEAVE PAYMENT COMPUTED ON THAT BASIS.

NEITHER THE SPECIFIC LANGUAGE IN THE UNIFORM RETIREMENT DATE ACT OF 1930 NOR ITS LEGISLATIVE HISTORY SUPPORTS THE CONCLUSION THAT AN OFFICER IS ENTITLED, UPON THE EXPIRATION OR TERMINATION OF THE OFFICE OR DETAIL TO WHICH APPOINTED, TO CONTINUE TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF THE HIGHER GRADE FOR THE PERIOD BETWEEN THE EXPIRATION OR TERMINATION DATE AND THE EFFECTIVE DATE OF HIS RETIREMENT. ON THE CONTRARY, FROM SOON AFTER THE ACT BECAME EFFECTIVE IT WAS VIEWED AS GIVING NO RIGHT TO PAY AND ALLOWANCES WHICH WAS NOT OTHERWISE AUTHORIZED BY LAW FOR THE PERIOD BETWEEN THE DATE ON WHICH RETIREMENT OTHERWISE WOULD HAVE BEEN EFFECTIVE AND THE END OF THE MONTH IN WHICH THAT DATE FALLS. SEE 9 COMP. GEN. 512; A-32965 DATED AUGUST 25, 1930. SEE, ALSO, 24 COMP. GEN. 617.

IN CONSIDERING THE EFFECT OF AN OFFICER'S TRANSFER TO THE RETIRED LIST IMMEDIATELY UPON DETACHMENT FROM DUTY AS ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS, OR WHILE ON LEAVE OF ABSENCE TAKEN AFTER SUCH DETACHMENT, IT WAS POINTED OUT IN 26 COMP. GEN. 66 THAT SECTION 15 OF THE ACT OF MARCH 4, 1925 (NOW CODIFIED IN 10 U.S.C. 5131) ONLY GIVES TO AN OFFICER, WHO PURSUANT TO LAW IS DETAILED TO DUTY AS AN ASSISTANT TO A CHIEF OF A BUREAU IN THE NAVY DEPARTMENT OR AN ASSISTANT TO THE JUDGE ADVOCATE GENERAL OF THE NAVY, THE HIGHEST PAY OF HIS RANK WHILE HE IS "SO SERVING"--- WITH NOTHING MORE. ON DETACHMENT FROM SUCH DUTY HE AUTOMATICALLY RESUMES HIS NORMAL PAY STATUS. THE ATTORNEY GENERAL IN AN OPINION, 25 OP. ATTY. GEN. 294, 297, STATED THAT IT IS NOT TO BE DOUBTED THAT THE ADVANCED RANK AND PAY ATTACHED TO SERVICE AS A STAFF BUREAU CHIEF CEASES WHEN THE TERM OF SERVICE IS OVER AND OTHER ACTIVE SERVICE RESUMED.

IT IS OUR VIEW THAT THE PROVISION OF THE 1930 ACT, THAT "THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED," DOES NOT ENTITLE AN OFFICER, UPON EXPIRATION OR TERMINATION OF HIS OFFICE OR DETAIL, TO THE HIGHER ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED FOR SUCH OFFICE OR DETAIL THROUGH THE CALENDAR MONTH AND UNTIL THE EFFECTIVE DATE OF HIS RETIREMENT. FOR THE SAME REASON, AND SINCE THE OFFICER IS NOT "SERVING" IN THE HIGHER ACTIVE DUTY RANK OR GRADE FOLLOWING THE TERMINATION OR EXPIRATION OF HIS APPOINTMENT OR DETAIL, THERE IS NO BASIS FOR COMPUTING HIS LUMP-SUM LEAVE PAYMENT ON SUCH HIGHER RANK OF GRADE. SEE 37 U.S.C. 33 (C). THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.