B-139607, JUL. 15, 1959

B-139607, JUL. 15, 1959

TO C. C. GORDON, AUTHORIZED CERTIFYING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1959, REQUESTING A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER PROPOSING PAYMENT TO CHIEF SUPPLY CLERK CHARLES C. CUNNINGHAM, U.S. COAST GUARD, RETIRED, OF $8.13 REPRESENTING THE DIFFERENCE BETWEEN THE MONTHLY RETIRED PAY PAID TO HIM FOR APRIL 1959 AS A RETIRED COMMISSIONED WARRANT OFFICER (W-2) WITH OVER 20 YEARS OF SERVICE AND THE MONTHLY RETIRED PAY WHICH WOULD HAVE BEEN PAID TO HIM FOR THAT MONTH AS A RETIRED ENLISTED MAN E-9, WITH THE SAME SERVICE.

IT APPEARS THAT ON MARCH 31, 1959, MR. CUNNINGHAM WAS AN ENLISTED MAN SERVING IN GRADE E-9 AND THAT HE WAS RETIRED APRIL 1, 1959, PURSUANT TO 14 U.S.C. 355, WHICH PROVIDES THAT AN ENLISTED MAN WHO HAS COMPLETED 20 YEARS OF SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE COMMANDANT OF THE COAST GUARD, BE RETIRED WITH RETIRED PAY OF THE GRADE OR RATING WITH WHICH RETIRED. SINCE IT IS SHOWN THAT MR. CUNNINGHAM, HAD SERVED SATISFACTORILY IN THE HIGHER TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER, HE WAS PLACED ON THE RETIRED LIST AS A COMMISSIONED WARRANT OFFICER PURSUANT TO 14 U.S.C. 362, WHICH PROVIDES, IN PART, THAT AN ENLISTED MAN RETIRED UNDER SECTION 355 SHALL BE RETIRED WITH THE HIGHEST GRADE OR RATING HELD WHILE ON ACTIVE DUTY IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY. SINCE SECTION 362 ALSO PROVIDES FOR PAYMENT OF THE RETIRED PAY OF THE HIGHER GRADE OR RATING IN WHICH RETIRED, HE WAS PAID THE RETIRED PAY AUTHORIZED FOR HIS COMMISSIONED WARRANT OFFICER GRADE. THIS RESULTED IN MR. CUNNINGHAM RECEIVING FOR THE MONTH OF APRIL 1959, $8.13 LESS THAN HE WOULD HAVE RECEIVED HAD HE BEEN RETIRED IN HIS ENLISTED GRADE.

SECTION 424 OF TITLE 14, U.S. CODE, PROVIDES, IN PART, THAT:

"THE PROVISIONS OF ANY SECTION OF THIS TITLE SHALL NOT BE CONSTRUED SO AS TO PREVENT ANY OFFICER OR ENLISTED MAN FROM BEING PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RATING AND THE HIGHEST RETIRED PAY TO WHICH SUCH OFFICER OR ENLISTED MAN MAY BE ENTITLED UNDER THE PROVISIONS OF ANY OTHER SECTION OF THIS TITLE OR UNDER THE PROVISIONS OF ANY OTHER LAW. * *

SUCH PROVISIONS PLAINLY DECLARE THAT NOTHING IN ANY SECTION OF TITLE 14 SHALL BE CONSTRUED TO DENY TO THE INDIVIDUAL CONCERNED BOTH THE HIGHEST RETIRED GRADE AND THE HIGHEST RETIRED PAY AUTHORIZED FOR HIM BY ANY SECTION OF TITLE 14 OR BY ANY OTHER LAW. COMPARE 37 COMP. GEN. 446, CONSTRUING THE SOMEWHAT SIMILAR PROVISIONS OF 10 U.S.C. 1401. BUT FOR THE PROVISIONS OF SECTION 362, MR. CUNNINGHAM WOULD BE ENTITLED TO THE HIGHER RETIRED PAY AUTHORIZED FOR AN ENLISTED MAN, E 9. SEE 14 U.S.C. 421 (A). HENCE, AN APPLICATION OF THE RETIRED PAY PROVISIONS OF SECTION 362 SO AS TO PREVENT HIM FROM RECEIVING THE HIGHER ENLISTED RETIRED PAY WHICH HE WOULD HAVE RECEIVED BUT FOR THAT SECTION, WOULD BE INCONSISTENT WITH THE PROVISIONS OF SECTION 424.

ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.