B-142774, MAY 31, 1960

B-142774, MAY 31, 1960

TO SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF APRIL 30, 1960, WITH ENCLOSURE, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING ENTITLEMENT TO MONETARY BENEFITS BASED ON THE PROPER APPLICATION OF THE PROVISIONS OF 10 U.S.C. 6387 (B) (2), AS AMENDED BY SECTION 6 OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, 73 STAT. 333, 337, IN COMPUTING TOTAL COMMISSIONED SERVICE FOR MANDATORY RETIREMENT AND OTHER PURPOSES. IT IS STATED THAT THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-MC-495 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PRIOR TO AUGUST 11, 1959, THE DATE OF APPROVAL OF PUBLIC LAW 86 155, EACH MALE COMMISSIONED OFFICER ON THE ACTIVE LIST IN THE LINE OF THE REGULAR NAVY AND REGULAR MARINE CORPS WHO WAS NOT GRADUATED FROM THE NAVAL ACADEMY OR NROTC OR COMMISSIONED FROM SOMEWHAT SIMILAR SOURCES (HEREINAFTER REFERRED TO FOR CONVENIENCE AS A NONACADEMY OFFICER) DETERMINED HIS TOTAL COMMISSIONED SERVICE FOR INVOLUNTARY RETIREMENT AND SEPARATION PURPOSES BY THE COMMISSIONED SERVICE CREDITED TO A NAVAL ACADEMY GRADUATE OR NROTC OFFICER WHO HAS NOT LOST NUMBERS OR PRECEDENCE AND "IS, OR AT ANY TIME HAS BEEN JUNIOR" TO HIM FOR PROMOTION PURPOSES. 10 U.S.C. 6387. SECTION 6 OF THE ACT OF AUGUST 11, 1959, AMENDED 10 U.S.C. 6387 TO PROVIDE THAT THE COMMISSIONED SERVICE OF A NON-ACADEMY OFFICER FOR INVOLUNTARY RETIREMENT AND SEPARATION PURPOSES WOULD BE BASED ON THE SERVICE OF AN ACADEMY OR NROTC OFFICER WHO "HAS BEEN CONTINUOUSLY JUNIOR" TO HIM.

THE PURPOSE OF THE ACT OF AUGUST 11, 1959, IS TO RETAIN IN THE SERVICE, AND PROVIDE OPPORTUNITY FOR PROMOTION OF, EXPERIENCED AND EFFICIENT OFFICERS IN SENIOR GRADES IN THE REGULAR NAVY AND REGULAR MARINE CORPS BY THE EARLY MANDATORY RETIREMENT OF CERTAIN OTHER OFFICERS. IT IS INTENDED THAT SUCH MANDATORY RETIREMENTS WOULD CORRECT, IN PART, THE STAGNATION IN PROMOTION OPPORTUNITIES RESULTING FROM THE PRESENCE ON THE PROMOTION LISTS OF LARGE NUMBERS OF OFFICERS APPOINTED DURING AND AFTER WORLD WAR II (THE "HUMP").

IT IS REASONABLY CLEAR FROM THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 11, 1959, THAT THE PURPOSE OF THE CHANGE IN THE LAW QUOTED ABOVE WAS TO PREVENT THE EARLY RETIREMENT OF CERTAIN MAJORS WHICH THE MARINE CORPS DESIRED TO PROMOTE TO THE GRADE OF LIEUTENANT COLONEL PRIOR TO THE TIME THAT THEY OTHERWISE WOULD BE ELIGIBLE FOR SUCH PROMOTION. WITHOUT THE QUOTED AMENDMENT TO 10 U.S.C. 6387, THE OFFICERS CONCERNED, UPON PROMOTION, WOULD BE CREDITED WITH ADDITIONAL CONSTRUCTIVE SERVICE WHICH WOULD RESULT IN RETIREMENT EARLIER THAN WOULD RESULT UNDER EXISTING LAW IF THEY HAD NOT BEEN PROMOTED EARLY. (SEE PP. 330-332, HEARINGS OF HOUSE ARMED SERVICES COMMITTEE ON H.R. 4413-86TH CONGRESS, WHICH BECAME THE ACT OF AUGUST 11, 1959). H.R. REPORT NO. 71 AND SENATE REPORT NO. 572, 86TH CONGRESS, EXPLAIN THAT THE PURPOSE OF THE AMENDMENT IS TO ,PREVENT THE PREMATURE RETIREMENT OF OFFICERS WHO ARE NOT FROM THE NAVAL ACADEMY OR NROTC AND WHO RECEIVE AN ACCELERATED PROMOTION.'

IT APPEARS FROM AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY (JAG:131.4:WCLS:SB ER:1875) DATED APRIL 1, 1960, THAT A LITERAL APPLICATION OF THE AMENDED STATUTE WOULD NOT FULLY ACCOMPLISH THE PRIMARY INTENT OF THE CONGRESS IN ENACTING THE ACT OF AUGUST 11, 1959, BECAUSE IT WOULD PREVENT THE MANDATORY RETIREMENT AND ELIMINATION FROM THE ACTIVE LIST OF NUMEROUS NON-ACADEMY OFFICERS IN THE "HUMP.' THE JUDGE ADVOCATE GENERAL INDICATES THAT THE PRIMARY PURPOSE OF THE STATUTE WOULD BE FRUSTRATED, AT LEAST IN PART, SINCE LARGE NUMBERS OF OFFICERS SCHEDULED FOR INVOLUNTARY RETIREMENT COULD NOT BE RETIRED BECAUSE THERE IS NO NAVAL ACADEMY OR NROTC GRADUATE WHO HAS BEEN CONTINUOUSLY JUNIOR TO THEM, WHO HAS NOT LOST NUMBERS OR PRECEDENCE, AND WHO HAS THE REQUISITE MINIMUM NUMBER OF YEARS OF TOTAL COMMISSIONED SERVICE FOR RETIREMENT. IT IS INDICATED THAT CONCEIVABLY, BECAUSE OF PROMOTION OR FAILURE OF SELECTION FOR PROMOTION, THERE MAY NEVER BE AN ACADEMY OR NROTC OFFICER WHO HAS BEEN CONTINUOUSLY JUNIOR TO MANY NON-ACADEMY OFFICERS, AND WHO HAS NOT LOST PRECEDENCE AND HAS AT LEAST TWENTY YEARS OF TOTAL COMMISSIONED SERVICE.

THERE ARE NUMEROUS COURT DECISIONS TO THE EFFECT THAT THE LITERAL MEANING OF LANGUAGE IN A STATUTE MAY BE DISREGARDED IF IT RESULTS IN AN APPLICATION OF THE STATUTE CONTRARY TO ITS MAIN AND PARAMOUNT PURPOSE. IS FUNDAMENTAL, HOWEVER, THAT IN THE CONSTRUCTION OF STATUTES COURTS MAY NOT LEGISLATE, SINCE THE CONSTITUTION VESTS ALL LEGISLATIVE POWER IN THE CONGRESS. THIS OFFICE, LIKEWISE, IS PRECLUDED FROM LEGISLATING IN THE GUISE OF CONSTRUING A STATUTE. CLEARLY THE AMENDED PROVISIONS OF SECTION 6387 MUST BE APPLIED TO THE OFFICERS COVERED IN SECTION 4 OF THE 1959 ACT WHOM CONGRESS INTENDED SHOULD BE BENEFITED BY THOSE PROVISIONS, AND TO GIVE THOSE PROVISIONS THAT APPLICATION THE SECTION AS AMENDED MUST BE LITERALLY CONSTRUED. AS TO THAT VIEW OF THE LAW THERE IS NO DISPUTE. IS URGED, HOWEVER, THAT WHILE THE AMENDED SECTION 6387 SHOULD BE SO APPLIED TO THAT GROUP, THE SECTION SHOULD BE APPLIED TO ALL OTHER LINE OFFICERS OF THE NAVY AND ACTIVE-LIST OFFICERS OF THE MARINE CORPS IN ITS UNAMENDED FORM. WE FIND NO TENABLE BASIS FOR REACHING THAT CONCLUSION. SUCH AN INTERPRETATION OF THE LAW WOULD GO A LONG STEP FURTHER THAN MAKING A PERMISSIBLE EXCEPTION OR EXEMPTION AND WOULD BE TAKING ACTION WHICH, IN OUR VIEW, COULD ONLY BE REGARDED AS LEGISLATING. ACCORDINGLY, WE MUST CONCLUDE THAT FOR THE PURPOSE OF PAYMENT OF MONETARY BENEFITS 10 U.S.C. 6387 AS AMENDED BY THE 1959 ACT SHOULD BE APPLIED LITERALLY TO ALL OFFICERS EMBRACED WITHIN ITS LANGUAGE.

THE LETTER OF APRIL 30, 1960, CONTAINS SEVERAL SUBSIDIARY QUESTIONS CONCERNING ENTITLEMENT TO MONETARY BENEFITS BASED ON DISABILITY AND INVOLUNTARY RETIREMENT OF NON-ACADEMY OFFICERS AS THEY MAY BE AFFECTED BY COMPUTATION OF TOTAL COMMISSIONED SERVICE UNDER 10 U.S.C. 6387 AS AMENDED BY THE 1959 ACT SHOULD BE APPLIED LITERALLY TO ALL OFFICERS EMBRACED WITHIN ITS LANGUAGE.

THE LETTER OF APRIL 30, 1960, CONTAINS SEVERAL SUBSIDIARY QUESTIONS CONCERNING ENTITLEMENT TO MONETARY BENEFITS BASED ON DISABILITY AND INVOLUNTARY RETIRMENT OF NON-ACADEMY OFFICERS AS THEY MAY BE AFFECTED BY COMPUTATION OF TOTAL COMMISSIONED SERVICE UNDER 10 U.S.C. 6387. FROM THE DISCUSSION APPEARING IN THE OPINION OF THE JUDGE ADVOCATE GENERAL, HOWEVER, IT APPEARS THAT THE NON-ACADEMY OFFICERS WOULD NOT BE ELIGIBLE FOR INVOLUNTARY RETIREMENT UNDER THE PROVISIONS OF THE ACT OF AUGUST 11, 1959, AND WOULD NOT HAVE 20 YEARS' TOTAL COMMISSIONED SERVICE COMPUTED UNDER 10 U.S.C. 6387 IN VIEW OF THE ANSWER TO THE PRIMARY QUESTION REACHED HERE. ACCORDINGLY, IT DOES NOT APPEAR THAT ANY USEFUL PURPOSE WOULD BE SERVED BY GIVING SPECIFIC ANSWERS TO THE SUBSIDIARY QUESTIONS AT THIS TIME. IF, NOTWITHSTANDING THE ANSWER TO THE PRIMARY QUESTION, YOU FIND THAT YOU HAVE A NEED FOR SPECIFIC ANSWERS TO ANY OF SUCH SUBSIDIARY QUESTIONS OR ANY OTHER QUESTIONS CONNECTED WITH THE MATTER HERE INVOLVED, WE WILL GIVE PROMPT CONSIDERATION TO SUCH FURTHER QUESTIONS UPON RECEIPT OF A REQUEST FOR OUR DECISION THEREON.