B-153595, MAR. 31, 1964

B-153595: Mar 31, 1964

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24. WILL BE ENTITLED TO COMPUTE HIS RETIRED PAY ON THE RATE OF MONTHLY BASIC PAY PRESCRIBED IN 37 U.S.C. 203 FOR PAY GRADE 0-8. THE PROBLEM IS DISCUSSED IN DETAIL IN A MEMORANDUM OF LAW RECEIVED WITH YOUR LETTER. IT IS STATED THAT REAR ADMIRAL POWERS HAS REQUESTED RETIREMENT TO BE EFFECTIVE APRIL 1. THAT SUCH TEMPORARY APPOINTMENTS "ARE EFFECTIVE FOR SUCH PERIODS AS THE PRESIDENT ETERMINES. THAT WHEN A TEMPORARY APPOINTMENT UNDER THAT SECTION IS TERMINATED OR EXPIRES "EACH MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED ANY SUCH APPOINTMENT.'. WHICH PROVIDES THAT EACH OFFICER WHO IS RETIRED WHILE SERVING IN A GRADE TO WHICH HE WAS PROMOTED UNDER 10 U.S.C. 5787.

B-153595, MAR. 31, 1964

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1964, REQUESTING AN ADVANCE DECISION WHETHER REAR ADMIRAL ROBERT D. POWERS, JR., DEPUTY AND ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, IF RETIRED EFFECTIVE APRIL 1, 1964, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6323, WILL BE ENTITLED TO COMPUTE HIS RETIRED PAY ON THE RATE OF MONTHLY BASIC PAY PRESCRIBED IN 37 U.S.C. 203 FOR PAY GRADE 0-8, APPLICABLE UNDER AUTHORITY OF 37 U.S.C. 201 (A) TO A REAR ADMIRAL OF THE UPPER HALF. THE PROBLEM IS DISCUSSED IN DETAIL IN A MEMORANDUM OF LAW RECEIVED WITH YOUR LETTER. THE REQUEST FOR ADVANCE DECISION HAS BEEN APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, UNDER NO. SS-N-748.

IT IS STATED THAT REAR ADMIRAL POWERS HAS REQUESTED RETIREMENT TO BE EFFECTIVE APRIL 1, 1964, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6323; THAT AS DEPUTY AND ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY HE HOLDS THE "RANK" OF REAR ADMIRAL BY VIRTUE OF A TEMPORARY APPOINTMENT BY THE PRESIDENT MADE ON THE RECOMMENDATION OF THE SECRETARY OF THE NAVY PURSUANT TO SELECTION BY A BOARD OF OFFICERS ACTING UNDER THE AUTHORITY OF 10 U.S.C. 5787; AND THAT THE TEMPORARY APPOINTMENT IN QUESTION BECAME EFFECTIVE JULY 1, 1961, AND SPECIFIES THAT IT SHALL REMAIN EFFECTIVE AS TO REAR ADMIRAL POWERS "WHILE SERVING AS DEPUTY AND ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY.' IT APPEARS THAT AT THE TIME OF SUCH APPOINTMENT REAR ADMIRAL POWERS HELD THE PERMANENT RANK OF CAPTAIN ON THE LINEAL LIST OF CAPTAINS, UNITED STATES NAVY.

THE STATUTORY AUTHORITY CITED AS THE BASIS FOR REAR ADMIRAL POWERS' TEMPORARY APPOINTMENT TO THAT GRADE, 10 U.S.C. 5787, PROVIDES IN SUBSECTION (H) THAT TEMPORARY APPOINTMENTS UNDER THAT SECTION "DO NOT CHANGE THE PERMANENT * * * STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO OTHER PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS; " IN SUBSECTION (I), THAT SUCH TEMPORARY APPOINTMENTS "ARE EFFECTIVE FOR SUCH PERIODS AS THE PRESIDENT ETERMINES; " AND SUBSECTION (J), THAT WHEN A TEMPORARY APPOINTMENT UNDER THAT SECTION IS TERMINATED OR EXPIRES "EACH MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY SHALL HAVE THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED ANY SUCH APPOINTMENT.' SEE, ALSO, 10 U.S.C. 6325 (B), AS AMENDED BY SECTION 11 (A) (6) (B), PUB.L. 85- 422, MAY 20, 1958, 72 STAT. 131, AND SECTION 5 (H) (4), PUB.L. 88-132, OCTOBER 2, 1963, 77 STAT. 214, WHICH PROVIDES THAT EACH OFFICER WHO IS RETIRED WHILE SERVING IN A GRADE TO WHICH HE WAS PROMOTED UNDER 10 U.S.C. 5787, UNLESS OTHERWISE ENTITLED TO A HIGHER GRADE,"SHALL BE RETIRED IN THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED SUCH APPOINTMENT" AND UNLESS OTHERWISE ENTITLED TO HIGHER PAY "IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE HE WOULD HOLD IF HE HAD NOT RECEIVED SUCH AN APPOINTMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405" OF TITLE 10, U.S. CODE, SUBJECT TO A LIMITATION OF 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED.

SECTION 6323, TITLE 10, U.S. CODE, 70A STAT. 394, AS AMENDED BY SECTION 1 (142), PUB.L. 85-861, SEPTEMBER 2, 1958, 72 STAT. 1509, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"/C) UNLESS OTHERWISE ENTITLED TO A HIGHER GRADE, EACH OFFICER RETIRED UNDER THIS SECTION SHALL BE RETIRED---

"/1) IN THE HIGHEST GRADE, PERMANENT OR TEMPORARY, IN WHICH HE SERVED SATISFACTORILY ON ACTIVE DUTY AS DETERMINED BY THE SECRETARY OF THE NAVY; OR

"/2) IF THE SECRETARY DETERMINES THAT HE DID NOT SERVE SATISFACTORILY IN HIS HIGHEST TEMPORARY GRADE, IN THE NEXT LOWER GRADE IN WHICH HE HAS SERVED, BUT NOT LOWER THAN HIS PERMANENT GRADE.

"/E) UNLESS OTHERWISE ENTITLED TO HIGHER PAY, AN OFFICER RETIRED UNDER THIS SECTION IS 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 IN WHICH RETIRED 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.'

EFFECTIVE OCTOBER 1, 1963, THE WORD "OF" WAS SUBSTITUTED FOR THE WORDS PLACED IN BRACKETS IN SUBSECTION (E), AS QUOTED ABOVE. SEE SECTION 5 (H) (4), ACT OF OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 214.

IT WILL BE SEEN, THEREFORE, THAT THE SUBJECT OFFICER'S RIGHT TO ANY GRADE ABOVE THAT OF CAPTAIN ON THE RETIRED LIST AND HIS RIGHT TO COMPUTE HIS RETIRED PAY ON THE BASIS OF SUCH A HIGHER GRADE RESTS PRIMARILY ON THE PROVISIONS OF 10 U.S.C. 6323 (C) AND (E). IT IS ASSUMED THAT REAR ADMIRAL POWERS WILL BE PLACED ON THE RETIRED LIST IN THE GRADE OF REAR ADMIRAL EFFECTIVE APRIL 1, 1964, AND HE WILL THEN BE ENTITLED UNDER SUBSECTION (E) TO RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENT "OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED" MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER 10 U.S.C. 1405 BUT NOT TO EXCEED 75 PERCENT OF SUCH BASIC PAY.

THE DISCUSSION IN THE MEMORANDUM OF LAW RECOGNIZES THAT THERE IS BUT ONE "GRADE" OF REAR ADMIRAL IN THE NAVY. A REAR ADMIRAL OF THE UPPER HALF AND A REAR ADMIRAL IN THE LOWER HALF ARE NOT IN SEPARATE GRADES, BUT IN THE SAME GRADE AS PROVIDED IN 10 U.S.C. 5501 (A) (3). HOWEVER, FOR ACTIVE DUTY PAY PURPOSES THERE ARE TWO DIVISIONS OF REAR ADMIRALS, THOSE IN THE UPPER HALF AND THOSE IN THE LOWER HALF. SEE 37 U.S.C. 201 (A). IT IS POINT OUT THAT REAR ADMIRAL POWERS IS, AND HAS BEEN, ENTITLED TO RECEIVE THE BASIC PAY OF A REAR ADMIRAL (UPPER HALF), THAT IS, THE PAY OF PAY GRADE O-8, WHILE SERVING AS DEPUTY AND ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY BY REASON OF THE PROVISIONS OF 37 U.S.C. 202 (I), WHICH AUTHORIZES "THE HIGHEST PAY OF HIS RANK" TO THAT OFFICER OF THE NAVAL SERVICE WHO IS "DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY.'

ON THAT BASIS, THE CONTENTION IS ADVANCED IN THE MEMORANDUM OF LAW THAT:

"LOGICALLY IT MAY BE CONCLUDED THAT THE PRESIDENT, HAVING APPOINTED AN OFFICER AS A REAR ADMIRAL WHILE THE OFFICER SERVES AS ASSISTANT JUDGE ADVOCATE GENERAL, AN OFFICE WHICH ENTITLES THE OFFICER TO RECEIVE THE PAY OF THE UPPER HALF, INTENDED THAT HIS APPOINTEE SHOULD HAVE THE GRADE OF REAR ADMIRAL (UPPER HALF) FOR ALL PURPOSES, INCLUDING ENTITLEMENT TO HAVE HIS RETIRED PAY COMPUTED ON AN 0-8 BASIS.'

WE CANNOT AGREE THAT THE PRESIDENT IN MAKING THE TEMPORARY APPOINTMENT HERE INVOLVED HAD ANY INTENTION WITH RESPECT TO THE RATE OR AMOUNT OF RETIRED PAY THE APPOINTEE EVENTUALLY MIGHT RECEIVE IF AND WHEN HE SHOULD RETIRE BUT THAT IS IMMATERIAL SINCE THE SPECIFIC STATUTORY PROVISIONS GOVERNING THE MATTER LEAVE THE PRESIDENT NO DISCRETION AS TO WHETHER A REAR ADMIRAL SHALL BE IN THE UPPER HALF OR LOWER HALF FOR PURPOSES OF PAY GRADES 0-8 AND 0-7, RESPECTIVELY. THE PRESIDENT MAY NOT GRANT OR WITHHOLD THE BENEFITS OF PAY GRADE 0-8 IN ANY CASE, SINCE SUCH BENEFITS, WHEN THEY ACCRUE AT ALL, ACCRUE SOLELY BY OPERATION OF STATUTE AND IRRESPECTIVE OF WHAT THE PRESIDENT MAY, OR MAY NOT, INTEND IN ANY PARTICULAR SITUATION.

THE MEMORANDUM OF LAW FURTHER INDICATES THAT THE PROBLEM "* * * IS SUBMITTED AS A QUESTION OF FIRST IMPRESSION, INASMUCH AS THE COMPTROLLER GENERAL HAS NEVER BEFORE FORMALLY INTERPRETED THE APPLICABLE STATUTES.' BY "APPLICABLE STATUTES" WE UNDERSTAND THAT REFERENCE IS MADE TO THE PROVISIONS OF 10 U.S.C. 6323 (C) AND (E). IT IS FURTHER STATED THAT "A SIMILAR CASE, ARISING IN 1946 (26 COMP. GEN. 66), WAS DECIDED ON THE BASIS OF LAWS WHICH HAVE SINCE BEEN MARKEDLY CHANGED.'

THE "LAWS WHICH HAVE SINCE BEEN MARKEDLY CHANGED" APPEAR TO BE THOSE PROVISIONS OF SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, 34 U.S.C. 410C (A), 1946 ED., WHICH WERE CODIFIED IN THE PROVISIONS OF 10 U.S.C. 6325, ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 394, 395. THE PROVISIONS OF SECTION 7 (A) OF THE 1946 ACT WHICH WERE CONSIDERED IN THE DECISION OF JULY 30, 1946, B-59066, 26 COMP. GEN. 66, PROVIDED THAT EACH OFFICER RETIRED PURSUANT TO THE PRECEDING SECTIONS OF THAT ACT "SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY.' IT WAS FURTHER PROVIDED IN SECTION 7 (A) THAT:

"OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE 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 THEIR PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY.'

IT WAS STATED IN THE DECISION OF JULY 30, 1946, THAT RETIRED PAY, WHEN AUTHORIZED TO BE COMPUTED ON THE ACTIVE DUTY PAY OF A REAR ADMIRAL, IS COMPUTED ON THE ACTIVE DUTY PAY PRESCRIBED FOR THE UPPER HALF OR THE LOWER HALF, DEPENDING ON WHETHER THE INDIVIDUAL OFFICER IS A REAR ADMIRAL OF THE UPPER HALF OR LOWER HALF. IT WAS FURTHER STATED THAT AN OFFICER DOES NOT BECOME A REAR ADMIRAL OF THE UPPER HALF MERELY BECAUSE HE MAY BE ENTITLED TEMPORARILY, WHILE PERFORMING CERTAIN DUTY, TO RECEIVE THE PAY PRESCRIBED FOR REAR ADMIRALS OF THE UPPER HALF. THE OFFICER'S NUMERICAL POSITION ON THE LINEAL LIST OF REAR ADMIRALS IN THAT CASE WAS NOT WITHIN THE UPPER HALF AND THE PROVISIONS OF SECTION 15 OF THE ACT OF MARCH 4, 1925, CH. 536, 43 STAT. 1275, AUTHORIZING ,THE HIGHEST PAY OF HIS RANK" I.E., THE PAY OF A REAR ADMIRAL (UPPER HALF), WHILE SERVING UNDER DETAIL AS ASSISTANT TO A CHIEF OF BUREAU OF THE NAVY DEPARTMENT, DID NOT SERVE TO CONFER ON HIM THE STATUS OF A REAR ADMIRAL (UPPER HALF). IT WAS HELD, THEREFORE, THAT HIS "RETIRED PAY IS NOT FOR COMPUTATION ON THE BASIS OF THE ACTIVE DUTY PAY FOR A REAR ADMIRAL (UPPER HALF).'

THE MEMORANDUM OF LAW INDICATES AGREEMENT WITH THAT CONCLUSION ALTHOUGH EMPHASIZING THE FACT THAT THE RETIRED PAY OF THE OFFICER THERE CONCERNED WAS REQUIRED TO BE BASED UNDER THE EXPLICIT TERMS OF SECTION 7 (A) OF THE 1946 ACT ON THE "RANK" WITH WHICH RETIRED. IT IS POINTED OUT THAT:

"THE PRESENT LAW, 10 U.S.C. 6323, STATES: "UNLESS OTHERWISE ENTITLED TO HIGHER PAY, AN OFFICER RETIRED UNDER THIS SECTION IS 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 IN WHICH RETIRED * * *. "

THE MEMORANDUM OF LAW CONTINUES:

"THE SENATE AND HOUSE HEARINGS AND REPORTS ON THIS 1958 BILL (H.R. 8943, 85TH CONGRESS, WHICH BECAME THE ACT OF SEPTEMBER 2, 1958, PUB.L. 85-861) ARE DEVOID OF ANY COMMENT ON THE POSSIBLE SIGNIFICANCE TO BE GIVEN THE CHANGE IN PHRASEOLOGY FROM "RANK WITH WHICH RETIRED" TO "IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED.' SHOULD EITHER RANK OR GRADE BE USED AS THE CRITERION FOR ENTITLEMENT TO RETIRED PAY, HOWEVER, THE SAME RESULT SHOULD OBTAIN.'

WE FIND NOTHING IN THE INDICATED CHANGE OF LANGUAGE WHICH WARRANTS THE CONCLUSION THAT REAR ADMIRAL POWERS' RETIRED PAY IS AUTHORIZED TO BE COMPUTED ON THE BASIS OF PAY GRADE 0-8, AS A REAR ADMIRAL (UPPER HALF), UPON HIS RETIREMENT.

THE PROVISIONS OF 10 U.S.C. 6323 (E) AS ENACTED BY SECTION 1 (142), PUB.L. 85-861, REFLECT STATUTORY PROVISIONS THERETOFORE CONTAINED IN 10 U.S.C. 6325 (A) (2), WITH IDENTICAL LANGUAGE AS FOLLOWS:

"* * * IS 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 IN WHICH RETIRED * * *.'

AS STATED ABOVE, SECTION 7 (A) OF THE 1946 ACT IN WHICH THE PHRASE "RANK WITH WHICH RETIRED" APPEARS WAS CODIFIED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 394, IN 10 U.S.C. 6325, WITH THE NEW LANGUAGE QUOTED ABOVE. WITH RESPECT TO THE SIGNIFICANCE OF SUCH NEW LANGUAGE AS USED IN 10 U.S.C. 6325, SEE HOUSE REPORT NO. 970, 84TH CONGRESS, 1ST SESSION ON H.R. 7049, WHICH BECAME THE ACT OF AUGUST 10, 1956, WHEREIN IT IS STATED AT PAGE 460:

"THE WORDS "BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED" ARE SUBSTITUTED FOR THE WORDS "ACTIVE DUTY-PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED" IN 34 U.S.C. 410C (A), * * * TO MAKE CLEAR THE FACT THAT THE AMOUNT OF RETIRED PAY IS NOT PERMANENTLY FIXED AT THE TIME OF RETIREMENT BUT IS SUBJECT TO CHANGE WHEN RATES OF BASIC PAY ARE CHANGED, AS PROVIDED IN 34 U.S.C. 410Q.'

SINCE THE "NEW" LANGUAGE EMPLOYED IN 10 U.S.C. 6325 WAS SUBSTITUTED FOR THE LANGUAGE CONTAINED IN SECTION 7 (A) OF THE 1946 ACT "TO MAKE CLEAR THE FACT THAT THE AMOUNT OF RETIRED PAY" WAS NOT BEING "PERMANENTLY FIXED" AS OF TIME OF RETIREMENT AND THAT SUCH RETIRED PAY WAS SUBJECT TO CHANGE WHENEVER THE RATES OF ACTIVE DUTY BASIC PAY WERE CHANGED (CF. THE PROVISIONS OF 10 U.S.C. 6149, WHICH WERE REPEALED EFFECTIVE OCTOBER 1, 1963, BY SECTION 5 (H) (3), PUB.L. 88-132, 77 STAT. 214), IT DOES NOT APPEAR TO HAVE BEEN INTENDED BY SUCH CHANGE IN PHRASEOLOGY TO MAKE ANY SUBSTANTIVE CHANGE IN THE METHOD OR BASIS USED IN THE COMPUTATION OF RETIRED PAY IN CASES COMING WITHIN THE PURVIEW OF THOSE STATUTORY PROVISIONS. SEE SECTION 49 (A), OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, WHICH PROVIDES THAT: "* * * IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED BY THOSE SECTIONS ON THE EFFECTIVE DATE OF THIS ACT.' IT APPEARS THAT THE CONTENTION SET FORTH IN THE MEMORANDUM OF LAW IS BASED ON LANGUAGE WHICH NO LONGER IS CONTAINED IN 10 U.S.C. 6323 (E). SUCH LANGUAGE WAS CHANGED BY SECTION 5 (H) (4) OF PUB.L. 88-132, 77 STAT. 214, EFFECTIVE OCTOBER 1, 1963, FROM

"* * * IS 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 IN WHICH RETIRED * * *.'

TO READ AS FOLLOWS:

"* * * IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED * * *.'

WHILE THE LAST MENTIONED CHANGE IN THE STATUTORY LANGUAGE WAS INTENDED PRIMARILY TO BRING THE PROVISIONS OF 10 U.S.C. 6323 (E) INTO AGREEMENT AND HARMONY WITH THE POLICY INITIATED IN SECTION 3 OF THE ACT OF MAY 20, 1958, PUB.L. 85-422, 72 STAT. 128, BARRING ANY INCREASE IN THE AMOUNT OF RETIRED PAY AS THE RESULT OF CHANGES MADE IN THE RATES OF ACTIVE DUTY BASIC PAY (SEE, ALSO, SECTION 5 (A) OF THE 1963 ACT, PUB.L. 88-132, 77 STAT. 212), SUCH LANGUAGE EXPRESSLY REQUIRES THAT AN OFFICER'S RETIRED PAY BE COMPUTED ON THE BASIC PAY "OF THE GRADE IN WHICH RETIRED.' SUCH SPECIFIC STATUTORY PROVISION LEAVES NO GROUNDS FOR SPECULATION AS TO THE EFFECT OF ANY DIFFERENCE IN "RANK" BETWEEN REAR ADMIRALS OF THE UPPER HALF AND LOWER HALF WHICH MAY RESULT FROM THE PROVISIONS OF 10 U.S.C. 5501 (C) MENTIONED IN THE MEMORANDUM OF LAW, SINCE THERE STILL REMAINS BUT ONE "GRADE" OF REAR ADMIRAL IN THE NAVY. UNLESS AN OFFICER IN THE GRADE OF REAR ADMIRAL ACTUALLY BECOMES A REAR ADMIRAL OF THE "UPPER HALF" HIS STATUS WHEN RETIRED, WOULD BE REAR ADMIRAL, LOWER HALF, AND WOULD ENTITLE HIM ONLY TO THE RETIRED PAY OF A REAR ADMIRAL OF THE LOWER HALF.

IN SUMMARY, THE REASON REAR ADMIRAL POWERS HAS BEEN PAID THE PAY OF A REAR ADMIRAL, UPPER HALF, WHILE SERVING ON ACTIVE DUTY IN HIS PRESENT ASSIGNMENT IS THAT 37 U.S.C. 202 (I) AUTHORIZES PAYMENT TO HIM OF "THE HIGHEST PAY OF HIS RANK" WHILE HE IS SO SERVING. IN CONTRAST TO THIS ,HIGHEST PAY" AUTHORIZATION, THE STATUTORY AUTHORIZATION FOR HIS RETIRED PAY, 10 U.S.C. 6323 (E), REFERS TO THE "BASIC PAY OF THE GRADE IN WHICH RETIRED.' ACCORDINGLY, IT IS OUR CONCLUSION THAT IF RETIRED EFFECTIVE APRIL 1, 1964, UNDER THE AUTHORITY OF 10 U.S.C. 6323, REAR ADMIRAL POWERS' RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF PAY GRADE 0-7, AS A REAR ADMIRAL (LOWER HALF).