B-144282, JAN. 16, 1961

B-144282, JAN. 16, 1961

TO C. C. GORDON, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS, UNITED STATES COAST GUARD:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 6, 1960, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE ON A VOUCHER STATED IN FAVOR OF COMMANDER THOMAS C. ODDERSTOL, UNITED STATES COAST GUARD, RETIRED, IN THE GROSS AMOUNT OF $6,148.59, REPRESENTING ADJUSTMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, THROUGH JULY 31, 1960. THE AMOUNT OF THE VOUCHER IS SAID TO REPRESENT THE DIFFERENCE IN RETIRED PAY OF A LIEUTENANT COMMANDER AND A COMMANDER FOR THE PERIOD STATED ABOVE. YOUR LETTER IT IS STATED THAT:

"COMMANDER ODDERSTOL RETIRED ON 1 AUGUST 1946 WITH OVER 40 YEARS SERVICE WHILE SERVING IN A TEMPORARY APPOINTMENT AS A LIEUTENANT COMMANDER, WITH A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER. AFTER RETIREMENT HE WAS PROMOTED TO THE RANK OF COMMANDER, WITH A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER. AFTER RETIREMENT HE WAS PROMOTED TO THE RANK OF COMMANDER UNDER THE ACT OF 12 JANUARY 1923, 14 U.S.C. (1946 ED.) 174, (THE FORTY YEAR LAW) BUT ONLY IN RANK, HIS PAY REMAINING AS THAT OF A LIEUTENANT COMMANDER. HE NEVER SERVED IN THE RANK OF COMMANDER ON ACTIVE DUTY. WHEN THE CAREER COMPENSATION ACT OF 1949 WAS PASSED COMMANDER ODDERSTOL'S RETIRED PAY WAS SAVED TO HIM UNDER, SECTION 511 (37 U.S.C. 311, METHOD (A) ( WITHOUT HIS HAVING MADE AN ELECTION. IN THE SUBSEQUENT PAY RAISES OF 1952, 1955 AND 1958 COMMANDER ODDERSTOL'S RETIRED PAY WAS INCREASED BY 4 PERCENT; 6 PERCENT AND 6 PERCENT RESPECTIVELY.'

IT ALSO APPEARS FROM THE ENCLOSURES THAT ON AUGUST 24, 1945, COMMANDER ODDERSTOL ATTAINED THE STATUTORY RETIREMENT AGE OF SIXTY-TWO YEARS, AND IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946 (PUBLIC LAW 305 - 79TH CONGRESS), WAS RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST OF OFFICERS OF THE COAST GUARD EFFECTIVE AUGUST 1, 1946.

YOUR QUESTIONS ARE STATED AS FOLLOWS:

"/A) WHETHER COMMANDER ODDERSTOL IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER PUBLIC LAW 489-84, APPROVED 23 APRIL 1956, WHICH AMENDED 37 U.S.C. 311, SO AS TO PERMIT OFFICERS NEVER SERVING IN THE HIGHER RANK TO NONETHELESS BASE THEIR RETIRED PAY ON SUCH HIGHER RANK COMBINING IT WITH THE HIGHER PAY RATES OF THE CAREER COMPENSATION ACT OR

"/B) IF HE IS PROHIBITED FROM THE PROVISIONS OF THIS SECTION BASED ON COMPTROLLER GENERAL DECISION (B-34918) NOVEMBER 24, 1943 WHICH STATES IN PART AS FOLLOWS:

" "THE PROVISIONS IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, AUTHORIZING COMMISSIONED OFFICERS OF THE COAST GUARD WITH OVER 40 YEARS' SERVICE TO BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, IS NOT APPLICABLE TO CHIEF WARRANT OFFICERS OF THE COAST GUARD APPOINTED PURSUANT TO THE ACT OF JULY 3, 1926, WHICH ACT ASSIMILATES THE PAY, ALLOWANCES, AND BENEFITS OF SUCH OFFICERS TO THOSE OF COMMISSIONED WARRANT OFFICERS OF THE NAVY WHO ARE NOT ENTITLED BY LAW TO A NEW GRADE ADVANCEMENT UPON RETIREMENT UNDER THE CIRCUMSTANCES STATED IN SAID SECTION 3. * * *" "

SECTIONS 9 AND 10 OF THE ACT OF FEBRUARY 21, 1946, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"SEC. 9. WHEN ANY OFFICER OF THE REGULAR NAVY OR MARINE CORPS SERVING IN A RANK BELOW THAT OF FLEET ADMIRAL HAS ATTAINED THE AGE OF SIXTY-TWO YEARS, HE SHALL BE PLACED UPON THE RETIRED LIST BY THE PRESIDENT WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY AND WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: * * *

"SEC. 10. THE PROVISIONS OF THIS ACT, EXCEPT AS MAY BE NECESSARY TO ADAPT THE FAME THERETO, SHALL APPLY TO PERSONNEL OF THE COAST GUARD IN RELATIONSHIP TO THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY IN RELATIONSHIP TO THE NAVY: * * "

SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, PROVIDED THAT WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD 40 YEARS' SERVICE SHALL RETIRE, HE SHALL BE PLACED ON THE RETIRED LIST "WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT.'

UNLIKE THE CLAIMANT IS THE CASE CONSIDERED IN THE DECISION OF NOVEMBER 24, 1943, B-34918, 23 COMP. GEN. 384, WHO WAS SERVING IN HIS PERMANENT COMMISSIONED WARRANT OFFICER GRADE AT THE TIME OF HIS RETIREMENT, COMMANDER ODDERSTOL HELD A HIGHER TEMPORARY OFFICER GRADE IN THE REGULAR COAST GUARD AT THE TIME OF HIS RETIREMENT, HAVING BEEN APPOINTED TO THAT RANK PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AND HE WAS SERVING IN THE RANK OF LIEUTENANT COMMANDER (TEMPORARY) AT THAT TIME, NOTWITHSTANDING HIS PERMANENT GRADE WAS COMMISSIONED WARRANT OFFICER.

COMMANDER ODDERSTOL'S RIGHTS APPEAR TO BE GOVERNED BY THE CASE OF SHANLEY V. UNITED STATES, 122 CT.CL. 692, IN WHICH THE COURT OF CLAIMS HELD THAT:

"THE STATUTES REFERRED TO EXPRESSLY AUTHORIZED TEMPORARY APPOINTMENT AND RECOGNIZED THE RANKS HELD UNDER SUCH TEMPORARY APPOINTMENTS FOR PURPOSES OF RETIREMENT AND RETIRED PAY, AND WE THINK IT IS CLEAR FROM SUCH PROVISIONS THAT THE FACT THAT PLAINTIFF'S APPOINTMENT AS A REAR ADMIRAL IN THE COAST GUARD WAS A TEMPORARY APPOINTMENT, DID NOT DEPRIVE HIM OF THE BENEFITS EXPRESSLY GRANTED BY SEC. 3 OF THE ACT OF JANUARY 12, 1923, SUPRA. THE STATUTES ENACTED IN 1942 AND 1946 EACH RECOGNIZED, AS SHOWN IN SEC. 10 (E), OF THE ACT OF FEBRUARY 21, 1946, SUPRA, THAT, IN CERTAIN CASES, COMMISSIONED OFFICERS IN THE ACTIVE SERVICE WERE, UNDER OTHER PROVISIONS OF LAW, ENTITLED TO BE RETIRED IN A HIGHER RANK ON THE RETIRED LIST AND TO A HIGHER PAY THAN THE RETIRED PAY OF THE RANK IN WHICH THEY WERE SERVING ON THE ACTIVE LIST; AND SEC. 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, GIVING THE PLAINTIFF THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT, WAS SUCH A PROVISION.'

IT THUS APPEARS THAT A MEMBER'S PERMANENT RANK IS NOT MATERIAL IF IN FACT HE IS SERVING AS AN OFFICER IN A HIGHER RANK AT THE TIME OF HIS RETIREMENT. IN THE PRESENT CASE, COMMANDER ODDERSTOL WAS RETIRED FOR AGE WHILE SERVING ON ACTIVE DUTY IN HIS TEMPORARY GRADE OF LIEUTENANT COMMANDER AND HE WAS PROPERLY ADVANCED TO THE RANK OF COMMANDER UNDER THE ACT OF JANUARY 12, 1923, SUPRA. COMMANDER ODDERSTOL'S SITUATION IS TO BE DISTINGUISHED FROM THE SITUATION CONSIDERED IN 23 COMP. GEN. 393, WHERE THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, WERE NOT INVOLVED.

ACCORDINGLY, IT IS CONSIDERED THAT COMMANDER ODDERSTOL IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE HIGHER RANK OF COMMANDER AS AUTHORIZED UNDER THE ACT OF APRIL 23, 1956, AMENDING SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 311, FOR THE PERIOD COVERED BY THE VOUCHER ACCOMPANYING YOUR LETTER. THE VOUCHER IS RETURNED AND MAY BR PAID, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER.