B-155190, DEC. 1, 1964, 44 COMP. GEN. 317

B-155190, DEC. 1, 1964, 44 COMP. GEN. 317

PAY - ACTIVE DUTY - GRADE OR RANK - REAR ADMIRALS - "EXTRA NUMBERS" OFFICERS COAST GUARD OFFICERS SERVING ON ACTIVE DUTY AS "EXTRA NUMBERS" IN THE GRADE OF REAR ADMIRAL UNDER THE AUTHORITY OF 14 U.S.C. 432 AND 433 WHO ARE SPECIFICALLY EXCLUDED, PURSUANT TO 14 U.S.C. 42 (E), IN DETERMINING THE AUTHORIZED STRENGTH OF THAT GRADE ARE, NEVERTHELESS, ENTITLED TO RECEIVE THE ACTIVE DUTY BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF IN THE ORDER OF THEIR SENIORITY IN THE GRADE, IN VIEW OF THE UNQUALIFIED PROVISION OF 37 U.S.C. 202 (F) THAT ONE-HALF THE NUMBER OF OFFICERS ON THE ACTIVE LIST OF REAR ADMIRALS ARE ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF THE EXTRA NUMBERS OFFICERS ARE CONSIDERED REAR ADMIRALS WITHIN THE MEANING OF 37 U.S.C. 202 (F) AND SHOULD BE INCLUDED IN DETERMINING THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD ENTITLED TO RECEIVE THE BASIC PAY OF THE UPPER HALF.

TO THE SECRETARY OF THE TREASURY, DECEMBER 1, 1964:

THE ACTING ASSISTANT SECRETARY OF THE TREASURY, IN LETTER DATED SEPTEMBER 15, 1964, REQUESTS DECISION WHETHER IN DETERMINING THE NUMBER OF REAR ADMIRALS IN THE COAST GUARD ENTITLED TO RECEIVE ACTIVE DUTY BASIC PAY OF THE UPPER HALF THERE SHOULD BE INCLUDED THOSE COMMISSIONED OFFICERS OF THE COAST GUARD WHO ARE SERVING IN THAT GRADE AS "EXTRA NUMBERS" UNDER THE PROVISIONS OF 14 U.S.C. 432 AND 433.

SUBSECTION (F), SECTION 202, TITLE 37, U.S. CODE, AS ENACTED IN PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 455, PROVIDES:

(F) EXCEPT FOR THOSE WHOSE BASIC PAY IS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF IS ONE-HALF OF THE NUMBER OF OFFICERS ON THE ACTIVE LIST IN THAT GRADE. IF THAT DIVISION RESULTS IN AN ODD NUMBER, THE ODD NUMBER SHALL BE PLACED IN THE UPPER HALF. HOWEVER, AN OFFICER WHO IS ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF MAY NOT HAVE HIS BASIC PAY REDUCED SOLELY BECAUSE THE NUMBER OF REAR ADMIRALS IS REDUCED.

THE PHRASE "ONE-HALF OF THE NUMBER OF OFFICERS ON THE ACTIVE LIST IN THAT GRADE" WHICH HAS SPECIFIC REFERENCE TO THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF IS NOT QUALIFIED IN ANY MANNER AND, UNLESS A DIFFERENT INTERPRETATION IS REQUIRED BY OTHER PROVISIONS OF LAW, PROPERLY MAY BE HELD TO INCLUDE ,EXTRA NUMBER" OFFICERS SERVING ON ACTIVE DUTY IN THAT GRADE UNDER AUTHORITY OF 14 U.S.C. 432 AND 433.

SECTION 432, TITLE 14, U.S. CODE, RELATES TO PERSONNEL OF THE FORMER LIGHTHOUSE SERVICE. SUBSECTION (A) PROVIDES THAT ANY PERSON OF THE FORMER LIGHTHOUSE SERVICE COMMISSIONED AS AN OFFICER IN THE COAST GUARD "SHALL BE AN EXTRA NUMBER IN HIS GRADE AND IN THE GRADES TO WHICH HE MAY BE PROMOTED.' IT IS ALSO PROVIDED THEREIN THAT SUCH AN OFFICER SHALL TAKE PRECEDENCE (1) WITH OTHER OFFICERS COMMISSIONED IN HIS GRADE FROM THE FORMER LIGHTHOUSE SERVICE AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE AND (2) "WITH OTHER LINE OFFICERS IN HIS GRADE IN ACCORDANCE WITH THE RESPECTIVE DATES OF THEIR COMMISSIONS IN SUCH GRADE.' SUCH AN OFFICER IS ELIGIBLE FOR PROMOTION IF OTHERWISE QUALIFIED "AT SUCH TIME AS THE OFFICER IN A REGULAR NUMBER IN LINE OF PROMOTION NEXT ABOVE HIM ON THE SENIORITY LIST BECOMES ELIGIBLE FOR PROMOTION; OR IF THERE BE NO SUCH OFFICER IN HIS GRADE, HE SHALL BE ELIGIBLE FOR PROMOTION, IF OTHERWISE QUALIFIED, WHEN A VACANCY OCCURS IN THE NEXT HIGHER GRADE.' UNDER THE CONDITIONS PRESCRIBED IN SUBSECTION (B) OF SECTION 432 EACH VACANCY WHICH OCCURS IN THE EXTRANUMBERS OF SUCH COMMISSIONED PERSONNEL OPERATES TO INCREASE BY ONE THE TOTAL AUTHORIZED NUMBER OF LINE OFFICERS OF THE COAST GUARD.

SECTION 433, TITLE 14, U.S. CODE, RELATES TO PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AND THE BUREAU OF CUSTOMS. SUBSECTION (A), AS AMENDED BY SECTION 1 (11) (A), PUBLIC LAW 88-130, SEPTEMBER 24, 1963, 77 STAT. 190, PROVIDES THAT THE TOTAL NUMBER OF COMMISSIONED OFFICERS IN THE COAST GUARD AUTHORIZED IN SECTION 42, TITLE 14, U.S. CODE, SHALL INCLUDE "FOUR HUNDRED AND FIFTY-THREE EXTRA NUMBERS TO WHICH THE PRESIDENT IS AUTHORIZED TO APPOINT ONLY THE PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AND BUREAU OF CUSTOMS WHO ON MARCH 1, 1942, HELD THE CIVIL SERVICE RATING OF CAF-9 OR P-3, OR ABOVE.' SUBSECTION (A) FURTHER PROVIDES THAT WHEN A VACANCY ARISES, AS THEREIN PRESCRIBED, AMONG SUCH EXTRA NUMBERS, EACH SUCH VACANCY "SHALL INCREASE BY ONE THE AUTHORIZED NUMBER OF LINE OFFICERS, AND DECREASE BY ONE THE AUTHORIZED NUMBER OF EXTRA NUMBERS.' IN SUBSECTION (B) IT IS PROVIDED THAT ANY PERSON SO COMMISSIONED "SHALL BE AN EXTRA NUMBER IN ANY RANK TO WHICH HE MAY BE PROMOTED" AND THAT SUCH INDIVIDUAL "SHALL BE ELIGIBLE FOR PROMOTION, IF OTHERWISE QUALIFIED, AT SUCH TIME AS THE REGULAR LINE OFFICER WHO IS HIS RUNNING MATE BECOMES ELIGIBLE FOR PROMOTION.'

SECTION 41A, TITLE 14, U.S.C. (1958 ED., SUPP. V), ADDED BY SECTION 1 (1), PUBLIC LAW 88-130, 77 STAT. 174, PROVIDES IN SUBSECTION (A) THAT THERE SHALL BE MAINTAINED "A SINGLE ACTIVE DUTY PROMOTION LIST OF OFFICERS OF THE COAST GUARD ON ACTIVE DUTY IN THE GRADES OF ENSIGN AND ABOVE.' SUBSECTION (B) IT IS PROVIDED THAT "OFFICERS SHALL BE CARRIED ON THE ACTIVE DUTY PROMOTION LIST IN THE ORDER OF SENIORITY OF THE GRADES IN WHICH THEY ARE SERVING.' CERTAIN CATEGORIES OF OFFICERS, SUCH AS RETIRED OFFICERS, ARE EXPRESSLY EXCLUDED FROM THE ACTIVE DUTY PROMOTION LIST. EXTRA NUMBER OFFICERS ARE NOT SO EXCLUDED AND WE HAVE BEEN ADVISED, INFORMALLY, THAT EACH SECTION 432 EXTRA NUMBER OFFICER WAS PLACED ON THE ACTIVE DUTY PROMOTION LIST IMMEDIATELY FOLLOWING THE OFFICER IN A REGULAR NUMBER IN LINE OF PROMOTION NEXT ABOVE HIM ON THE SENIORITY LIST AND SIMILARLY THAT SECTION 433 EXTRA NUMBER OFFICERS WERE PLACED ON THE ACTIVE DUTY PROMOTION LIST NEXT BELOW THEIR REGULAR LINE "RUNNING MATE.'

SECTION 42, TITLE 14, U.S.C. (1958 ED., SUPP. V), WAS AMENDED BY SECTION 1 (2), PUBLIC LAW 88-130, SEPTEMBER 24, 1963. SUBSECTION (A) PROVIDES THAT THE TOTAL NUMBER OF COMMISSIONED OFFICERS, EXCLUDING COMMISSIONED WARRANT OFFICERS, ON ACTIVE DUTY IN THE COAST GUARD "SHALL NOT EXCEED THREE THOUSAND FIVE HUNDRED.' SUBSECTION (B) PROVIDES THAT THE COMMISSIONED OFFICERS ON THE ACTIVE DUTY PROMOTION LIST SHALL BE DISTRIBUTED IN GRADE IN THE PERCENTAGES THEREIN PRESCRIBED. FOR THE GRADE OF REAR ADMIRAL THE PERCENTAGE STATED IS 0.75. UNDER SUBSECTION (C) THE SECRETARY OF THE TREASURY IS DIRECTED TO MAKE A COMPUTATION AT LEAST ONCE EACH YEAR "TO DETERMINE THE NUMBER OF OFFICERS ON THE ACTIVE DUTY PROMOTION LIST AUTHORIZED TO BE SERVING IN EACH GRADE," THE NUMBER IN EACH GRADE TO BE COMPUTED "BY APPLYING THE APPLICABLE PERCENTAGE TO THE TOTAL NUMBER OF SUCH OFFICERS SERVING ON ACTIVE DUTY ON THE DATE THE COMPUTATION IS MADE.' IN SUBSECTION (D) IT IS PROVIDED THAT THE NUMBERS RESULTING FROM SUCH COMPUTATION "SHALL BE FOR ALL PURPOSES THE AUTHORIZED NUMBER IN EACH GRADE.' SUBSECTION (E) PROVIDES THAT "* * * OFFICERS SERVING AS EXTRA NUMBERS IN GRADE UNDER SECTIONS 432 AND 433 OF THIS TITLE * * * SHALL NOT BE COUNTED IN DETERMINING AUTHORIZED STRENGTHS UNDER SUBSECTION (C) AND SHALL NOT COUNT AGAINST THOSE STRENGTHS.'

IT WILL BE SEEN THAT UNDER THE PROVISIONS OF LAW CURRENTLY IN EFFECT IT IS PROVIDED (1) THAT THERE SHALL BE A SINGLE ACTIVE DUTY PROMOTION LIST OF OFFICERS OF THE COAST GUARD ON ACTIVE DUTY, (2) THAT OFFICERS SHALL BE CARRIED ON THAT LIST IN THE ORDER OF SENIORITY OF THE GRADE IN WHICH THEY ARE SERVING ON ACTIVE DUTY, (3) THAT THE TOTAL NUMBER OF COMMISSIONED OFFICERS, EXCLUDING COMMISSIONED WARRANT OFFICERS, ON ACTIVE DUTY IN THE COAST GUARD MAY NOT EXCEED 3,500 WHICH NUMBER OF OFFICERS INCLUDES THE EXTRA NUMBERS PRESCRIBED IN SECTION 433, (4) THAT OFFICERS ON THE ACTIVE DUTY PROMOTION LIST ARE TO BE DISTRIBUTED IN EACH GRADE IN ACCORDANCE WITH THE PERCENTAGES PRESCRIBED IN SUBSECTION (B) OF SECTION 42, (5) THAT AT LEAST ONCE EACH YEAR A COMPUTATION MUST BE MADE TO DETERMINE THE NUMBER OF OFFICERS ON THE ACTIVE DUTY PROMOTION LIST AUTHORIZED TO BE SERVING IN EACH GRADE, AND (6) THAT IN ANY SUCH COMPUTATION ESTABLISHING THE NUMBER OF OFFICERS ON THE ACTIVE DUTY PROMOTION LIST AUTHORIZED TO BE SERVING IN EACH GRADE, OFFICERS WHO ARE SERVING AS EXTRA NUMBERS UNDER AUTHORITY OF SECTIONS 432 AND 433 ARE NOT COUNTED.

IT SHOULD BE NOTED THAT WHILE OFFICERS SERVING AS "EXTRA NUMBERS" UNDER SECTIONS 432 AND 433 ARE EXCLUDED FROM SUCH A COMPUTATION THEY ARE NOT PRECLUDED FROM SERVING IN THE GRADE OF REAR ADMIRAL. HENCE,THE TOTAL NUMBER OF REAR ADMIRALS ON THE ACTIVE DUTY PROMOTION LIST OF THE COAST GUARD MAY AT TIMES EXCEED THE NUMBER CONTEMPLATED BY SECTION 42 (C). THAT IS, THE NUMBER OF OFFICERS AUTHORIZED TO BE DISTRIBUTED IN THE GRADE OF REAR ADMIRAL IN THE COAST GUARD IS INCREASED BY EACH "EXTRA NUMBER" OFFICER WHO IS PROMOTED TO THE GRADE OF REAR ADMIRAL. IN VIEW OF THE REQUIREMENT THAT OFFICERS BE CARRIED ON THE ACTIVE DUTY PROMOTION LIST OF THE COAST GUARD IN THE ORDER OF THEIR SENIORITY IN GRADE (SECTION 41A, TITLE 14, U.S.C. (1958 ED., SUPP. V), IT WOULD SEEM THAT UPON PROMOTION TO REAR ADMIRAL AN "EXTRA NUMBER" OFFICER TAKES PRECEDENCE AMONG REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD IN ACCORDANCE WITH THE DATE OF HIS APPOINTMENT TO THAT GRADE AND THAT HE WILL BECOME ENTITLED TO THE PAY OF THE UPPER HALF IN THE ORDER OF HIS SENIORITY IN THAT GRADE.

IN SUCH CIRCUMSTANCES THERE APPEARS TO BE NO BASIS FOR A CONCLUSION THAT SECTIONS 432 AND 433 ,EXTRA NUMBER" OFFICERS SERVING ON ACTIVE DUTY IN THE COAST GUARD IN THE GRADE OF REAR ADMIRAL ARE NOT "REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD" WITHIN THE MEANING OF 37 U.S.C. 202 (F) AND IT IS OUR VIEW THAT THEY ARE REQUIRED TO BE INCLUDED FOR PURPOSES OF DETERMINING THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE COAST GUARD ENTITLED TO RECEIVE THE BASIC PAY OF THE UPPER HALF.