B-140810, DEC. 10, 1959

B-140810: Dec 10, 1959

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GOGGIN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10. WHICH WAS DISALLOWED BY OUR CLAIM DIVISION SETTLEMENT DATED JULY 28. YOUR LETTER WAS REFERRED HERE FOR CONSIDERATION AND REPLY. HE WAS RECALLED TO ACTIVE DUTY FOR THE PERIOD NOVEMBER 7. GOGGIN'S NAME WAS PLACED ON THE RETIRED LIST. ALTHOUGH HE WAS RETAINED ON ACTIVE DUTY. IT ALSO HAS BEEN REPORTED THAT THE HIGHEST RANK SATISFACTORILY HELD WAS THAT OF CHIEF SHIP'S CLERK. GOGGIN IS ENTITLED TO THE BENEFIT OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THERE WERE CONSIDERED SEVERAL COURT DECISIONS HAVING REFERENCE TO THE STATUS OF WARRANT OFFICERS AND CHIEF WARRANT OFFICERS AND IT WAS POINTED OUT AT PAGE 822. IT WILL BE SEEN THAT NO GENERAL RULE HAS BEEN FOLLOWED IN DETERMINING WHETHER WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS ARE.

B-140810, DEC. 10, 1959

TO MRS. VIRGINIA L. GOGGIN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1959, TO THE PRESIDENT OF THE UNITED STATES, CONCERNING THE CLAIM OF YOUR HUSBAND, EDMUND PENDLETON GOGGIN, FOR ADDITIONAL RETIRED PAY, AS CHIEF SHIP'S CLERK, UNITED STATES NAVY, WHICH WAS DISALLOWED BY OUR CLAIM DIVISION SETTLEMENT DATED JULY 28, 1959. YOUR LETTER WAS REFERRED HERE FOR CONSIDERATION AND REPLY. IT HAS BEEN CONSIDERED AS IN THE NATURE OF A REQUEST BY YOUR HUSBAND FOR REVIEW OF THE DISALLOWANCE SETTLEMENT.

IT APPEARS THAT MR. GOGGIN FIRST ENLISTED IN THE UNITED STATES NAVY ON JUNE 23, 1911, AND SERVED THEREAFTER ON ACTIVE DUTY, IN SUCCESSIVE ENLISTMENTS, EXCEPT FOR THE PERIOD JUNE 3 TO DECEMBER 27, 1914, UNTIL TRANSFERRED TO THE FLEET NAVAL RESERVE ON JUNE 21, 1928. HE WAS RECALLED TO ACTIVE DUTY FOR THE PERIOD NOVEMBER 7, 1940, TO SEPTEMBER 7, 1945. ALSO APPEARS THAT ON JANUARY 1, 1941, DURING THIS LATTER PERIOD OF ACTIVE DUTY, MR. GOGGIN'S NAME WAS PLACED ON THE RETIRED LIST, ALTHOUGH HE WAS RETAINED ON ACTIVE DUTY. IT ALSO HAS BEEN REPORTED THAT THE HIGHEST RANK SATISFACTORILY HELD WAS THAT OF CHIEF SHIP'S CLERK, A COMMISSIONED WARRANT OFFICER GRADE.

YOU APPARENTLY CONTEND, AS DID MR. GOGGIN IN HIS CLAIM, THAT HAVING HELD THE RANK OF A ,COMMISSIONED WARRANT OFFICER" AND HAVING SERVED PRIOR TO NOVEMBER 12, 1918, MR. GOGGIN IS ENTITLED TO THE BENEFIT OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, WHICH AUTHORIZES COMPUTATION OF RETIRED PAY AT 75 PER CENTUM OF ACTIVE DUTY PAY AT TIME OF RETIREMENT IN THE CASE OF CERTAIN OFFICERS OF THE REGULAR SERVICES WHO HAD SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.

IN DECISION OF APRIL 24, 1947, 26 COMP. GEN. 818, THERE WERE CONSIDERED SEVERAL COURT DECISIONS HAVING REFERENCE TO THE STATUS OF WARRANT OFFICERS AND CHIEF WARRANT OFFICERS AND IT WAS POINTED OUT AT PAGE 822--- "THUS, IT WILL BE SEEN THAT NO GENERAL RULE HAS BEEN FOLLOWED IN DETERMINING WHETHER WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS ARE, OR ARE NOT, OFFICERS OF THE NAVY WITHIN THE MEANING OF PARTICULAR STATUTES.' DECISION OF NOVEMBER 24, 1943, 23 COMP. GEN. 384, IT WAS STATED THAT "THE FACTS IN EACH PARTICULAR CASE MUST BE CONSIDERED IN ORDER TO DETERMINE WHETHER WARRANT OFFICERS OR COMMISSIONED WARRANT OFFICERS ARE WITHIN THE SCOPE OF STATUTES AUTHORIZING BENEFITS FOR "OFFICERS" OR "COMMISSIONED OFFICERS" OF A PARTICULAR SERVICE.' COMPARE, ALSO, THE RECENT DECISIONS OF THE COURT OF CLAIMS IN TATO V. UNITED STATES, 136 C.CLS. 651 (1956), AND IN ATKINS, ET AL. V. UNITED STATES, C.CLS. NO. 473-56, DECIDED ON JANUARY 15, 1958.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

THE SPECIFIC LEGISLATIVE INTENT WITH RESPECT TO THE FOURTH PARAGRAPH OF SECTION 15 IS CLEARLY SET FORTH IN OUR DECISION OF MAY 18, 1951, 30 COMP. GEN. 458. PRIOR TO ENACTMENT OF THE 1942 ACT THE RETIRED PAY OF AN OFFICER OF THE REGULAR ARMY RETIRED UNDER SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, WHO HAD SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, WAS GREATER THAN THE RETIRED PAY AUTHORIZED FOR OFFICERS OF THE LINE OF THE NAVY RETIRED UNDER SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, WITH COMPARABLE SERVICE. IT WAS THIS DISPARITY IN THE RETIRED PAY OF SUCH OFFICERS OF THE ARMY AND NAVY WHICH WAS SOUGHT TO BE CORRECTED BY EXTENDING TO OFFICERS OF THE LINE IN THE NAVY (WHO, UPON THE COMPLETION OF 20 YEARS' SERVICE COULD BE RETIRED ON THEIR OWN APPLICATION AS PROVIDED IN SECTION 12 (E) OF THE 1938 ACT, WITH RETIRED PAY UNDER SECTION 12 (B) OF THAT ACT, 52 STAT. 949, LIMITED TO 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF CREDITABLE SERVICE. EVEN THOUGH THEY HAD SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918) SIMILAR BENEFITS CORRESPOND ENDING TO "75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT" WHICH THERETOFORE HAD BEEN GRANTED TO CERTAIN OFFICERS OF THE REGULAR ARMY IN THE 1940 LAW.

SECTION 12 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, IN PERTINENT PART PROVIDED:

"WHEN OFFICERS OF THE LINE OF THE NAVY, OTHER THAN COMMISSIONED WARRANT OFFICERS, HAVE COMPLETED 20 YEARS' COMMISSIONED SERVICE, THEY MAY AT ANY TIME THEREAFTER, UPON THEIR OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH RETIRED PAY COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION *

IN SUBSECTION (B) OF SECTION 12, RETIRED PAY IS PRESCRIBED "AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY.'

IT IS TO BE NOTED PARTICULARLY THAT COMMISSIONED WARRANT OFFICERS OF THE NAVY WERE EXPRESSLY EXCLUDED FROM THE OPERATION OF SECTION 12 (E) OF THE 1938 LAW. SINCE THE PRIMARY PURPOSE IN ENACTING PARAGRAPH 4 OF SECTION 15 IN THE PAY READJUSTMENT ACT OF 1942 WAS TO EQUALIZE THE RETIRED PAY STATUS OF THOSE LINE OFFICERS OF THE NAVY WITHIN THE SCOPE OF SECTION 12 (E) OF THE 1938 LAW--- "OTHER THAN COMMISSIONED WARRANT OFFICERS"--- WITH THE RETIRED PAY STATUS OF OFFICERS OF THE REGULAR ARMY UNDER SECTION 3 OF THE ACT OF JUNE 13, 1940, HAVING COMPARABLE SERVICE PRIOR TO NOVEMBER 12, 1918, IT DOES NOT APPEAR THAT THE TERM "OFFICER" AS USED IN THE FOURTH PARAGRAPH OF SECTION 15 WAS INTENDED TO INCLUDE COMMISSIONED WARRANT OFFICERS. FURTHERMORE, IT WOULD SEEM EXTREMELY UNLIKELY THAT THE CONGRESS, AFTER HAVING EXPRESSLY EXCLUDED COMMISSIONED WARRANT OFFICERS FROM THE OPERATION OF SECTION 12 (E) OF THE 1938 LAW, WOULD CHANGE ITS VIEWS IN THE MATTER WITHOUT A SINGLE WORD IN THE LEGISLATIVE HISTORY OR IN THE LANGUAGE ACTUALLY EMPLOYED IN THE FOURTH PARAGRAPH OF SECTION 15, DISCLOSING SUCH AN INTENT. AS ABOVE INDICATED, THE DEFINITION OF THE TERM "OFFICER" CONTAINED IN OTHER STATUTES FOR THE EXPRESS PURPOSES OF THOSE STATUTES NEITHER ENLARGES NOR RESTRICTS THE SCOPE OF THAT TERM AS USED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW. CONSEQUENTLY, THIS OFFICE WOULD NOT BE WARRANTED, PARTICULARLY IN VIEW OF THE SPECIFIC PURPOSES KNOWN TO HAVE PROMPTED ENACTMENT OF PARAGRAPH 4 IN SECTION 15, TO CONCLUDE THAT FOR THE PURPOSES OF THAT PARAGRAPH THE TERM "OFFICER" INCLUDES COMMISSIONED WARRANT OFFICERS.

ACCORDINGLY, IT IS CONSIDERED THAT THE SETTLEMENT OF JULY 28, 1959, IS CORRECT, AND UPON REVIEW, IS SUSTAINED.