B-145655, JULY 7, 1961, 41 COMP. GEN. 11

B-145655, JULY 7, 1961, 41 COMP. GEN. 11

MILITARY PERSONNEL - RETIRED PAY - HIGHER RETIRED GRADE FOR MEMBERS WHO SERVE SATISFACTORILY UNDER TEMPORARY APPOINTMENTS WHILE NO AMOUNT OF SERVICE IS SPECIFIED IN 10 U.S.C. 6151 BEFORE THE SECRETARY OF THE NAVY CAN DETERMINE THAT A MEMBER OF THE UNIFORMED SERVICES HAS SERVED SATISFACTORILY IN A HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT TO BE ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE, UNLESS ACTIVE SERVICE IS ACTUALLY PERFORMED IN THE TEMPORARY GRADE UNDER CONDITIONS REQUIRING DUTY COMPARABLE TO THAT ENCOUNTERED DURING A NORMAL TOUR OF ACTIVE DUTY, THERE WOULD BE NO EVIDENCE UPON WHICH A DETERMINATION OF SATISFACTORY SERVICE COULD BE MADE; THEREFORE, 10 U.S.C. 6151 MUST BE CONSTRUED AS CONTEMPLATING THAT THE DETERMINATIONS WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE MEMBER IN THAT GRADE. SERVICE BY AN ENLISTED MARINE CORPS RESERVE MEMBER IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER ON ONLY ONE DAY, ON WHICH THE MEMBER PERFORMED NONE OF THE DUTIES NORMALLY REQUIRED OF AN OFFICER ON ACTIVE DUTY, DOES NOT CONSTITUTE A SUFFICIENT BASIS FOR A DETERMINATION BY THE SECRETARY OF THE NAVY THAT THE MEMBER SERVED SATISFACTORILY IN THE HIGHER GRADE WITHIN THE MEANING OF 10 U.S.C. 6151 (A), WHICH CONTEMPLATES THAT THE DETERMINATION WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE MEMBER IN THAT GRADE AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO RETIRED PAY BASED ON THE HIGHER RANK.

TO LIEUTENANT COMMANDER E. C. DODD, DEPARTMENT OF THE NAVY, JULY 7, 1961:

BY SECOND ENDORSEMENT DATED APRIL 18, 1961, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF MARCH 29, 1961, XO:HA:KJ-7220/93016, REQUESTING A DECISION AS TO WHETHER OR NOT " CHIEF WARRANT OFFICER (W 2) STANLEY E. RAUB, 93016, USNR ( RETIRED)," IS ENTITLED TO RETIRED PAY COMPUTED UNDER 10 U.S.C. 6151 (B) BASED ON THE RANK OF CHIEF WARRANT OFFICER (W-2) FROM THE DATE OF HIS RETIREMENT. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N- 573 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT MR. RAUB SERVED IN THE REGULAR MARINE CORPS FROM DECEMBER 1, 1938, THROUGH JULY 3, 1946, AND THAT WHILE SO SERVING HE HELD BOTH TEMPORARY AND PERMANENT APPOINTMENTS AS A WARRANT OFFICER; THAT HE SERVED IN THE MARINE CORPS RESERVE FROM JULY 4, 1946, THROUGH JUNE 2, 1949; THAT HE WAS PROMOTED TO THE TEMPORARY RANK OF COMMISSIONED WARRANT OFFICER WHILE SERVING IN THE MARINE CORPS RESERVE AS A WARRANT OFFICER; THAT THE ONLY ACTIVE SERVICE HE PERFORMED AS A COMMISSIONED WARRANT OFFICER WAS 12 DAYS' ACTIVE DUTY FOR TRAINING; AND THAT WHEN HE RESIGNED HIS TEMPORARY COMMISSION, THE SECRETARY OF THE NAVY GRANTED HIM A PERMANENT COMMISSION IN THE INACTIVE RESERVE. IT IS ALSO STATED THAT HE SERVED IN THE NAVAL RESERVE FROM JUNE 3, 1949, THROUGH MAY 31, 1960, PERFORMING ACTIVE DUTY AS AN ENLISTED MAN ONLY.

IT IS REPORTED THAT, IN ACCORDANCE WITH 10 U.S.C. 6327, HE WAS PLACED ON THE NAVAL RESERVE RETIRED LIST ON JUNE 1, 1960, AS A CHIEF AVIATION ELECTRICIAN (E-7), HIS PERMANENT ENLISTED GRADE, HAVING AT THAT TIME COMPLETED 21 YEARS AND 6 MONTHS OF SERVICE FOR BASIC PAY PURPOSES; AND THAT HE HAS BEEN RECEIVING RETIRED PAY AT THE GROSS MONTHLY RATE OF $175, WHICH IS 50 PERCENT OF THE BASIC PAY OF AN ENLISTED MAN IN PAY GRADE E-7 WITH OVER 20 YEARS OF SERVICE. IT IS ALSO REPORTED THAT THE SECRETARY OF THE NAVY DETERMINED, PURSUANT TO 10 U.S.C. 6151, THAT HE SERVED SATISFACTORILY UNDER HIS TEMPORARY APPOINTMENT OF CHIEF WARRANT OFFICER (W -2), AND ADVANCED HIM ON THE RETIRED LIST TO SUCH GRADE AND RANK FROM THE DATE OF HIS RETIREMENT.

THE REASONS FOR DOUBT AS TO THE PROPRIETY OF PAYMENT OF INCREASED RETIRED PAY IN THIS CASE ARE SET FORTH IN THE FOURTH PARAGRAPH OF YOUR LETTER OF MARCH 29, 1961, AS FOLLOWS:

SINCE CWO RAUB SERVED IN THE MARINE CORPS AND THE NAVY, WHICH ORGANIZATIONS ARE BOTH PART OF THE DEPARTMENT OF THE NAVY, AND SINCE THE SECRETARY OF THE NAVY MAKES THE DETERMINATIONS OF SATISFACTORY SERVICE UNDER 10 U.S.C. 6151 FOR BOTH ORGANIZATIONS, IT APPEARS THAT HE MAY BE ENTITLED TO RETIRED PAY AS A CHIEF WARRANT OFFICER (W-2) FROM DATE OF RETIREMENT. HOWEVER, IN VIEW OF 29 COMP. GEN. 437, 32 COMP. GEN. 425, AND 33 COMP. GEN. 10, HIS ENTITLEMENT TO SUCH PAY IS QUESTIONABLE.

SECTION 6327, TITLE 10, U.S. CODE, READS IN PERTINENT PART AS FOLLOWS:

(A) A MEMBER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE MAY BE TRANSFERRED TO THE RETIRED RESERVE UPON HIS REQUEST IF HE HAS COMPLETED---

(2) AT LEAST 20 YEARS OF ACTIVE SERVICE IN THE ARMED FORCES OTHER THAN ACTIVE DUTY FOR TRAINING, THE LAST 10 OF WHICH HE SERVED IN THE 11-YEAR PERIOD IMMEDIATELY PRECEDING HIS TRANSFER TO THE RETIRED RESERVE.

(B) EACH MEMBER WHO IS TRANSFERRED TO THE RETIRED RESERVE UNDER SUBSECTION (A) IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETIRED PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF ON ACTIVE DUTY.

SECTION 6151, TITLE 10, U.S. CODE, READS IN PERTINENT PART AS FOLLOWS:

(A) UNLESS OTHERWISE ENTITLED TO A HIGHER RETIRED GRADE, EACH MEMBER, OTHER THAN A RETIRED MEMBER, OF THE NAVY OR THE MARINE CORPS SHALL, WHEN RETIRED, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE NAVY.

(B) EACH MEMBER, OTHER THAN A FORMER MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION IS, UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED PAY, ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY IN THE GRADE TO WHICH ADVANCED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED. IN DETERMINING THE NUMBER OF YEARS TO BE USED AS A MULTIPLIER UNDER THIS SUBSECTION, A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.

SECTION 6151, TITLE 10, U.S. CODE, SPECIFICALLY COVERS MEMBERS OF BOTH THE NAVY AND THE MARINE CORPS, INCLUDING RESERVE COMPONENTS. 10 U.S.C. 5001 (A) (1) AND (2). WHILE THERE ARE PERSUASIVE REASONS FOR A CONCLUSION THAT SUCH STATUTORY PROVISIONS ARE BROAD ENOUGH TO INCLUDE CASES LIKE THE ONE HERE INVOLVED--- WHERE THE MEMBER HAS BEEN RETIRED AS A MEMBER OF THE NAVY OR AS A MEMBER OF THE MARINE CORPS AND WHERE THE SECRETARY OF THE NAVY HAS DETERMINED THAT SUCH MEMBER HAS SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT IN THE OTHER OF THOSE TWO SERVICES--- IT APPEARS UNNECESSARY TO DECIDE THAT MATTER FOR THE REASONS STATED BELOW.

THE FOLLOWING PERTINENT INFORMATION CONCERNING THE MARINE CORPS SERVICE OF STANLEY ELLIS RAUB HAS BEEN MADE AVAILABLE TO US BY HEADQUARTERS, UNITED STATES MARINE CORPS:

(A) WHILE SERVING AS AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS, HE WAS TEMPORARILY APPOINTED TO THE GRADE OF WARRANT OFFICER IN THE REGULAR MARINE CORPS ON SEPTEMBER 1, 1944, UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350.

(B) HE SERVED CONTINUOUSLY AS A TEMPORARY WARRANT OFFICER IN THE REGULAR MARINE CORPS FROM SEPTEMBER 1, 1944, TO JULY 2, 1946, THE DATE IMMEDIATELY PRECEDING THE DAY OF HIS DISCHARGE AS AN ENLISTED MEMBER.

(C) HE ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE ON JULY 4, 1946.

(D) BY ORDERS DATED JULY 15, 1947, ISSUED WHILE HE WAS STILL ON INACTIVE DUTY, HE WAS ASSIGNED TO ACTIVE DUTY AT HIS HOME FOR ONE DAY, JULY 28, 1947, WITHOUT PAY AND ALLOWANCES, TO PERMIT HIS TEMPORARY PROMOTION TO THE NEXT HIGHER GRADE, THAT OF COMMISSIONED WARRANT OFFICER.

(E) HE WAS TEMPORARILY APPOINTED TO THE GRADE OF COMMISSIONED WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE EFFECTIVE JULY 28, 1947, UNDER THE ACT OF JULY 24, 1941. HE WAS FOUND PHYSICALLY QUALIFIED FOR AND ACKNOWLEDGED RECEIPT OF THAT APPOINTMENT ON THE SAME DAY.

(F) THE MARINE CORPS RECORDS, BASED ON A MUSTER ROLL SUBMITTED BY THE GENERAL SERVICE UNIT, FOURTH MARINE CORPS RESERVE DISTRICT, PHILADELPHIA, PENNSYLVANIA, SHOW THAT HE PERFORMED ACTIVE DUTY FOR TRAINING AS A "COMMISSIONED WARRANT OFFICER" OF THE U.S. MARINE CORPS RESERVE AT THE MARINE BARRACKS, CAMP LEJEUNE, NORTH CAROLINA, DURING THE PERIOD AUGUST 11 TO 22, 1947. IT APPEARS DOUBTFUL, HOWEVER, THAT HE DID IN FACT PERFORM SUCH DUTY SINCE (1) IN HIS LETTER OF JULY 25, 1947, HE STATED THAT HE WOULD NOT BE ABLE "TO ATTEND THE TRAINING PERIOD FOR WHICH SELECTED" AND SINCE (2) BECAUSE OF SUCH STATEMENT, ACTION WAS TAKEN AS OF JULY 29, 1947, TO DELETE HIS NAME FROM THE LIST OF RESERVE OFFICERS SELECTED FOR ASSIGNMENT TO A SPECIFIED COURSE AT CAMP LEJEUNE DURING THE PERIOD AUGUST 11 TO 22, 1947.

(G) BASED ON A DETERMINATION BY THE SECRETARY OF THE NAVY THAT HE HAD SERVED SATISFACTORILY IN THAT GRADE UNDER A TEMPORARY APPOINTMENT, HE WAS PERMANENTLY APPOINTED TO THE GRADE OF COMMISSIONED WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE ON OCTOBER 28, 1947. SUCH APPOINTMENT WAS DELIVERED TO HIM BY LETTER DATED NOVEMBER 3, 1947, BUT HE DID NOT ACCEPT THE APPOINTMENT FORMALLY.

(H) ON OCTOBER 31, 1947, HE SUBMITTED HIS RESIGNATION AS A "COMMISSIONED WARRANT OFFICER" OF THE U.S. MARINE CORPS RESERVE.

(I) HE ENLISTED IN THE U.S. MARINE CORPS RESERVE ON NOVEMBER 1, 1947, AND BY LETTER DATED JANUARY 20, 1948, THE COMMANDANT OF THE MARINE CORPS INFORMED HIM THAT HIS RESIGNATION SUBMITTED ON OCTOBER 31, 1947, WAS ACCEPTED EFFECTIVE OCTOBER 31, 1947.

(J) " EXCEPT FOR 28 JULY 1947 AND POSSIBLY 11 TO 22 AUGUST 1947," THERE IS NO RECORD OF HIS HAVING SERVED ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING DURING THE PERIOD JULY 4, 1946, THROUGH OCTOBER 31, 1947.

(K) HE SERVED CONTINUOUSLY ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE U.S. MARINE CORPS RESERVE FROM NOVEMBER 1, 1947, THROUGH JUNE 1, 1949.

(L) HE WAS DISCHARGED AS AN ENLISTED MEMBER OF THE U.S. MARINE CORPS RESERVE ON JUNE 2, 1949.

SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I, PERMITTED THE CONTINUANCE OF THE TEMPORARY OFFICER STATUS HELD BY PERSONNEL OF THE U.S. MARINE CORPS RESERVE UNDER THAT ACT NOT LONGER THAN THE "DATE OF RELEASE FROM ACTIVE DUTY," AND PROVIDED THAT SUCH PERSONNEL "SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT * * *.' WE ARE NOT AWARE OF ANY STATUTORY PROVISION WHICH PERMITTED A MEMBER OF THE U.S. MARINE CORPS RESERVE TO HOLD A TEMPORARY OFFICER GRADE WHILE ON INACTIVE DUTY ON AND AFTER JULY 29, 1947, THE DATE FOLLOWING THAT ON WHICH MR. RAUB WAS TEMPORARILY APPOINTED TO THE GRADE OF COMMISSIONED WARRANT OFFICER. HENCE, IT IS OUR VIEW THAT IF HE SERVED ON ACTIVE DUTY FOR TRAINING FROM AUGUST 11 TO 22, 1947, HE DID NOT SERVE IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER, HAVING HELD THAT TEMPORARY GRADE ON JULY 28, 1947, ONLY.

THE ABOVE-QUOTED PROVISIONS OF 10 U.S.C. 6151 (A) WERE DERIVED FROM SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28. WHILE NO MENTION IS MADE IN THAT SECTION AS TO THE AMOUNT OF SERVICE REQUIRED BEFORE THE SECRETARY OF THE NAVY COULD DETERMINE THAT A MEMBER HAD SERVED SATISFACTORILY IN A HIGHER GRADE OR RANK UNDER A TEMPORARY APPOINTMENT, IT IS OBVIOUS THAT UNLESS ACTIVE DUTY ACTUALLY IS PERFORMED IN THE TEMPORARY GRADE UNDER CONDITIONS REQUIRING DUTY WHICH IS COMPARABLE TO THAT ENCOUNTERED DURING A NORMAL TOUR OF ACTIVE DUTY, THERE IS NO EVIDENCE UPON WHICH A DETERMINATION OF SATISFACTORY SERVICE COULD BE MADE. IT APPEARS FROM AN EXAMINATION OF COMPARABLE STATUTORY PROVISIONS THAT IT HAS BEEN THE POLICY OF THE CONGRESS TO REQUIRE A SUBSTANTIAL AMOUNT OF SERVICE FOR SUCH A DETERMINATION AND WE HAVE FOUND NO INSTANCE AMONG SUCH COMPARABLE PROVISIONS WHERE A PERIOD OF LESS THAN 30 DAYS HAS BEEN SPECIFIED. SEE 10 U.S.C. 1371. THUS, IT APPEARS THAT THE LAW CONTEMPLATES THAT THE DETERMINATION AUTHORIZED TO BE MADE BY THE SECRETARY WILL BE MADE ON THE BASIS OF SUFFICIENT ACTUAL SERVICE IN THE TEMPORARY GRADE TO PERMIT A GENUINE APPRAISAL OF THE QUALITY OF THE SERVICE OF THE OFFICER IN THAT GRADE. IN 10 U.S.C. 3963 (A) AND 10 U.S.C. 8963 (A), APPLICABLE TO CERTAIN OFFICERS OF THE ARMY AND THE AIR FORCE, IT IS SPECIFIED THAT THE OFFICER CONCERNED MUST HAVE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY CONCERNED, FOR NOT LESS THAN 6 MONTHS. HAVE ASCERTAINED THAT, UNDER COMPARABLE STATUTORY PROVISIONS SUCH AS SECTIONS 1372, 3963 (B), 3964, 8963 (B) AND 8964 OF TITLE 10, U.S. CODE, WHERE NO MINIMUM PERIOD OF SERVICE IS SPECIFIED, THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF THE AIR FORCE, FOR THE PURPOSE OF DETERMINING "SATISFACTORY SERVICE" IN A HIGHER RANK OR GRADE, REQUIRE, GENERALLY, SERVICE IN SUCH RANK OR GRADE FOR A PERIOD OF AT LEAST 6 MONTHS. SEE, IN THIS CONNECTION, ROBERTS V. UNITED STATES, CT. CL. NO. 247-59, DECIDED NOVEMBER 2, 1960.

IT APPEARS FROM THE EVIDENCE NOW OF RECORD IN THE PRESENT CASE THAT MR. RAUB SERVED IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER ON ONLY ONE DAY, JULY 28, 1947, AND THAT ON THAT DAY HE PERFORMED NONE OF THE DUTIES NORMALLY REQUIRED OF AN OFFICER ON ACTIVE DUTY. IN THE CIRCUMSTANCES, THE BASIS FOR THE DETERMINATION THAT HE SERVED SATISFACTORILY IN SUCH HIGHER GRADE WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 6151 (A) IS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT THERE IS AUTHORITY FOR PAYING HIM INCREASED RETIRED PAY COMPUTED ON PAY IN THAT GRADE. SEE CHARLES V. UNITED STATES, 19 CT. CL. 316, AND LONGWILL V. UNITED STATES, 17 CT. CL. 288.