B-154993, NOV. 13, 1964

B-154993: Nov 13, 1964

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MILLER: REFERENCE IS MADE TO THE LETTER OF APRIL 20. IN WHICH GRADE YOU WERE SERVING AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY IN THE UNITED STATES NAVAL RESERVE FORCE ON FEBRUARY 25. YOUR CLAIM WAS BASED ON THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949. YOUR CLAIM FOR THE RETIRED PAY OF A CHIEF BOATSWAIN'S MATE WAS DISALLOWED FOR THE REASON THAT YOUR SITUATION DID NOT COME WITHIN THE PURVIEW OF SECTION 513 OF THE CAREER COMPENSATION ACT AND THE SATTERWHITE DECISION AND YOU NOW REQUEST THAT YOUR RETIRED PAY BE ADJUSTED FROM THE GRADE OF BOATSWAIN'S MATE. THE RECORD SHOWS THAT YOU WERE RETIRED FEBRUARY 1. SECTION 362 OF TITLE 14 PROVIDES THAT ANY ENLISTED MAN WHO IS RETIRED UNDER ANY PROVISION IN SECTION 353.

B-154993, NOV. 13, 1964

TO MR. HARRY R. MILLER:

REFERENCE IS MADE TO THE LETTER OF APRIL 20, 1964, AND SUBSEQUENT CORRESPONDENCE FROM YOUR ATTORNEY, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION UNDER DATE OF MARCH 3, 1964, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY AS A RETIRED MEMBER OF THE UNITED STATES COAST GUARD BASED ON A HIGHER ENLISTED RATING IN WHICH YOU SERVED IN 1919 AS A MEMBER OF THE UNITED STATES NAVAL RESERVE FORCE.

YOU CLAIMED RETIRED PAY COMPUTED ON THE GRADE OF CHIEF BOATSWAIN'S MATE, IN WHICH GRADE YOU WERE SERVING AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY IN THE UNITED STATES NAVAL RESERVE FORCE ON FEBRUARY 25, 1919, AND YOUR CLAIM WAS BASED ON THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, 830, AND THE DECISION IN THE CASE OF SATTERWHITE V. UNITED STATES, 123 CT.CL. 342 (1952). YOUR CLAIM FOR THE RETIRED PAY OF A CHIEF BOATSWAIN'S MATE WAS DISALLOWED FOR THE REASON THAT YOUR SITUATION DID NOT COME WITHIN THE PURVIEW OF SECTION 513 OF THE CAREER COMPENSATION ACT AND THE SATTERWHITE DECISION AND YOU NOW REQUEST THAT YOUR RETIRED PAY BE ADJUSTED FROM THE GRADE OF BOATSWAIN'S MATE, SECOND CLASS, TO THE GRADE OF BOATSWAIN'S MATE, FIRST CLASS, BASED ON YOUR SERVICE IN THAT GRADE IN THE UNITED STATES NAVAL RESERVE FORCE FROM OCTOBER 1, 1918, TO NOVEMBER 11, 1918.

THE RECORD SHOWS THAT YOU WERE RETIRED FEBRUARY 1, 1950, AS A BOATSWAIN'S MATE, SECOND CLASS, IN ACCORDANCE WITH THE PROVISIONS OF 14 U.S.C. 355, WHICH AUTHORIZE THE VOLUNTARY RETIREMENT OF ENLISTED MEN OF THE COAST GUARD AFTER COMPLETION OF 20 YEARS OF SERVICE. SECTION 362 OF TITLE 14 PROVIDES THAT ANY ENLISTED MAN WHO IS RETIRED UNDER ANY PROVISION IN SECTION 353, 354, 355, OR ,"SHALL BE RETIRED FROM ACTIVE SERVICE WITH HIGHEST GRADE OR RATING HELD BY HIM WHILE ON ACTIVE DUTY IN WHICH, AS DETERMINED BY THE SECRETARY, HIS PERFORMANCE OF DUTY WAS SATISFACTORY * * *.' SECTION 5 OF TITLE 14 PROVIDES THAT "AS USED IN THIS TITLE, THE TERM "SECRETARY" MEANS THE SECRETARY OF THE RESPECTIVE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING.' ALTHOUGH THE COAST GUARD OPERATED AS A PART OF THE NAVY DURING THE WORLD WAR II PERIOD, IT WAS RETURNED TO THE TREASURY DEPARTMENT EFFECTIVE JANUARY 1, 1946, BY EXECUTIVE ORDER NO. 9666, DECEMBER 28, 1945, 11 F.R. 1, AND HAS BEEN OPERATING AS A PART OF THE TREASURY DEPARTMENT SINCE THAT TIME. WHEN YOU WERE RETIRED IN 1950, THEREFORE, THE SECRETARY OF THE TREASURY WAS THE ONLY PERSON AUTHORIZED TO MAKE A DETERMINATION AS TO THE HIGHEST GRADE OR RATING IN WHICH YOU SERVED SATISFACTORILY. WE KNOW OF NO PROVISION OF LAW AUTHORIZING THE SECRETARY OF THE TREASURY TO MAKE A DETERMINATION THAT SERVICE PREVIOUSLY PERFORMED BY YOU IN THE UNITED STATES NAVAL RESERVE FORCE WAS SATISFACTORY. IN THIS CONNECTION, SEE 42 COMP. GEN. 244.

IN THE REQUEST FOR RECONSIDERATION OF YOUR CLAIM, IT IS CONTENDED THAT SECTION 513 OF THE CAREER COMPENSATION ACT "APPLIES TO ENLISTED PERSONS AS WELL AS TO WARRANT OFFICERS AND THE LANGUAGE "HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE" INDICATES THAT THE WORD, "OFFICER" INCLUDES ANY TYPE OF OFFICER, WHICH WOULD INCLUDE PETTY OFFICERS.' SECTION 513 PROVIDES IN PART AS FOLLOWS:

"ANY ENLISTED PERSON OR WARRANT OFFICER OF THE UNIFORMED SERVICES WHO SERVED IN WORLD WAR I, HERETOFORE OR HEREAFTER RETIRED FOR ANY REASON, SHALL (1) BE ADVANCED ON THE RETIRED LIST OF THE SERVICE CONCERNED TO THE HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE SATISFACTORILY HELD BY SUCH ENLISTED PERSON OR WARRANT OFFICER UNDER A PERMANENT OR TEMPORARY APPOINTMENT FOR ANY PERIOD OF SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, * * *.'

THE LANGUAGE "HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE" QUOTED ABOVE MUST BE READ IN CONJUNCTION WITH THE DEFINITION OF "OFFICER" CONTAINED IN SECTION 102 OF THAT ACT, WHICH IS AS FOLLOWS:

"SEC. 102. FOR THE PURPOSES OF THIS ACT---

"/C) THE TERM "OFFICER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND FLIGHT OFFICER, EITHER PERMANENT OR TEMPORARY, OF THE UNIFORMED SERVICES. USED IN THIS SUBSECTION THE WORD "TEMPORARY" SHALL INCLUDE TEMPORARY OFFICERS WHOSE PERMANENT STATUS IS THAT OF AN ENLISTED PERSON.'

SINCE THE TERM "OFFICER" IS NOT QUALIFIED IN SECTION 513 TO INCLUDE PERSONS OTHER THAN THOSE COVERED BY THE DEFINITION, THERE IS NO AUTHORITY TO APPLY ITS PROVISIONS SO AS TO ADVANCE A PERSON TO A HIGHER RANK OR GRADE UNLESS THE HIGHER RANK OR GRADE WAS THAT OF A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, OR FLIGHT OFFICER.

WITH REFERENCE TO THE CONTENTION THAT YOU ARE ENTITLED TO THE RETIRED PAY OF A CHIEF BOATSWAIN'S MATE UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT, YOU ARE ADVISED THAT SECTION 511 APPLIES EXCLUSIVELY TO "MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED" AND INCLUDES NO AUTHORITY FOR EXTENSION OF ITS PROVISIONS TO PERSONS THEREAFTER RETIRED. WITH RESPECT TO APPLICATION OF THIS SECTION IN CASES INVOLVING PRIOR SERVICE IN A DIFFERENT BRANCH OF THE ARMED SERVICES, SEE 29 COMP. GEN. 437 AND 33 COMP. GEN. 10.

THE ACT OF AUGUST 4, 1949, CH. 393, 63 STAT. 495, CITED BY YOUR ATTORNEY, IS THE ENACTMENT INTO POSITIVE LAW OF TITLE 14 OF THE UNITED STATES CODE, DEALING WITH THE COAST GUARD. THE CITATION 63 STAT. 522 APPARENTLY REFERS TO 14 U.S.C. 362, WHICH IS EXPLAINED ABOVE.

IN THE 88TH CONGRESS THERE WAS INTRODUCED A BILL, H.R. 384, WHICH WOULD HAVE AUTHORIZED RETIREMENTS UNDER TITLE 10 OR TITLE 14, UNITED STATES CODE, IN THE HIGHEST GRADE SATISFACTORILY HELD IN ANY ARMED FORCE. THAT BILL WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON OCTOBER 7, 1963, BUT WAS NOT ACTED ON BY THE SENATE PRIOR TO ADJOURNMENT OF THE CONGRESS.