B-155251, NOVEMBER 23, 1964, 44 COMP. GEN. 297

B-155251: Nov 23, 1964

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BECAUSE WHILE THEIR RETIRED PAY IS COMPUTED ON THE PAY OF THE OFFICER GRADE TO WHICH ADVANCED THEY WERE RETIRED IN AN ENLISTED STATUS. ARE SUBJECT TO THE RETIRED PAY REDUCTION PROVISION OF SECTION 201 OF THE DUAL COMPENSATION ACT WHILE HOLDING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT. THE MEMBERS ARE NOT ENTITLED AS RETIRED OFFICERS TO THE EXEMPTION IN SECTIONS 5596 (F) AND 5597 (H). WHO ARE NOT EXPRESSLY EXEMPT FROM THE LIMITATION IN SECTION 201 OF THE DUAL COMPENSATION ACT ARE SUBJECT TO A REDUCTION IN RETIRED PAY WHILE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN POSITION. ALTHOUGH A PERMANENT ENLISTED MEMBER SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER GRADE AT THE TIME HE IS GRANTED DISABILITY RETIRED PAY IS RETIRED NOT IN IS PERMANENT ENLISTED GRADE AND STATUS BUT IN HIS TEMPORARY OFFICER GRADE AND STATUS.

B-155251, NOVEMBER 23, 1964, 44 COMP. GEN. 297

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS ADVANCED ON RETIRED LIST TO COMMISSIONED RANK - RETIRED IN ENLISTED STATUS. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS RETIRED IN TEMPORARY COMMISSIONED GRADE. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - REGULAR OFFICERS. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - ENLISTED MEN. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - TEMPORARY OFFICER STATUS. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - DISABILITY RETIREMENT - REGULAR OFFICERS. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS RETIRED IN TEMPORARY COMMISSIONED GRADE ENLISTED MEMBERS OF THE UNIFORMED SERVICES ADVANCED ON THE RETIRED LIST TO AN OFFICER GRADE UNDER A SPECIFIC PROVISION OF LAW AUTHORIZING ADVANCEMENT FOR SATISFACTORY SERVICE IN A HIGHER TEMPORARY GRADE WHO DO NOT HOLD AN OFFICE WITHIN THE MEANING OF THE DUAL EMPLOYMENT ACT OF 1894 (5 U.S.C. 62), BECAUSE WHILE THEIR RETIRED PAY IS COMPUTED ON THE PAY OF THE OFFICER GRADE TO WHICH ADVANCED THEY WERE RETIRED IN AN ENLISTED STATUS, UPON REPEAL OF THE 1894 ACT BY THE DUAL COMPENSATION ACT, EFFECTIVE DECEMBER 1, 1964, HAVING BEEN RETIRED IN AN ENLISTED STATUS THEY DO NOT BECOME SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT, ESTABLISHING A REDUCED RETIRED PAY FORMULA FOR RETIRED REGULAR OFFICERS WHILE HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT; HOWEVER, SHOULD THE MEMBERS SERVE ON ACTIVE DUTY AFTER RETIREMENT AS OFFICERS, UPON RE-RETIREMENT AS OFFICERS THEY MAY NOT REMAIN EXEMPT FROM THE LIMITATION. NAVY AND MARINE CORPS ENLISTED MEMBERS GIVEN TEMPORARY APPOINTMENT AS OFFICERS IN THE REGULAR NAVY AND THE REGULAR MARINE CORPS PURSUANT TO 10 U.S.C. 5596 AND 5597, AND RETIRED IN THEIR TEMPORARY OFFICER STATUS UNDER THE AUTHORITY OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED (10 U.S.C. 6323), ARE SUBJECT TO THE RETIRED PAY REDUCTION PROVISION OF SECTION 201 OF THE DUAL COMPENSATION ACT WHILE HOLDING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT, RETIREMENT UNDER THE 1946 ACT HAVING BEEN AUTHORIZED ONLY BY VIRTUE OF SERVICE IN A TEMPORARY OFFICER STATUS, THE MEMBERS ARE NOT ENTITLED AS RETIRED OFFICERS TO THE EXEMPTION IN SECTIONS 5596 (F) AND 5597 (H), PROVIDING THAT TEMPORARY APPOINTMENTS DO NOT CHANGE THE PERMANENT STATUS OF MEMBERS OR ABRIDGE THEIR RIGHTS AND BENEFITS. REGULAR OFFICERS RETIRED FOR DISABILITY NOT INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR AND EXEMPT UNDER THE DUAL EMPLOYMENT ACT OF 1894, AS AMENDED (5 U.S.C. 62), EVEN THOUGH SUBJECT TO THE DUAL COMPENSATION RESTRICTION IN SEC. 212 OF THE ACT OF JUNE 30, 1932 (5 U.S.C. 59A), WHO ARE NOT EXPRESSLY EXEMPT FROM THE LIMITATION IN SECTION 201 OF THE DUAL COMPENSATION ACT ARE SUBJECT TO A REDUCTION IN RETIRED PAY WHILE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN POSITION. ALTHOUGH A PERMANENT ENLISTED MEMBER SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER GRADE AT THE TIME HE IS GRANTED DISABILITY RETIRED PAY IS RETIRED NOT IN IS PERMANENT ENLISTED GRADE AND STATUS BUT IN HIS TEMPORARY OFFICER GRADE AND STATUS, ARMY AND AIR FORCE ENLISTED MEMBERS WHO PURSUANT TO 10 U.S.C. 3441 AND 8441 MAY NOT BE GIVEN TEMPORARY APPOINTMENTS AS OFFICERS IN THE REGULAR SERVICE UPON RETIREMENT FOR DISABILITY IN A HIGHER TEMPORARY GRADE DO NOT BECOME RETIRED OFFICERS OF A REGULAR COMPONENT AND HAVING RETAINED THEIR ENLISTED STATUS THEY ARE NOT SUBJECT TO THE LIMITATION IN SECTION 201 OF THE DUAL COMPENSATION ACT ESTABLISHING A REDUCED RETIRED PAY FORMULA FOR RETIRED REGULAR OFFICERS HOLDING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT. NAVY AND MARINE CORPS PERMANENT ENLISTED MEMBERS RETIRED FOR PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER STATUS IN THE REGULAR SERVICE HAVING BEEN RETIRED IN THE TEMPORARY OFFICER STATUS ARE RETIRED OFFICERS OF A REGULAR COMPONENT SUBJECT TO THE LIMITATION IN SECTION 201 OF THE DUAL COMPENSATION ACT, WHICH RESTRICTS THE AMOUNT OF RETIRED PAY THAT MAY BE PAID TO A "RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICE" WHILE HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT. COAST GUARD ENLISTED MEMBERS WHO AT THE TIME OF DISABILITY RETIREMENT UNDER 10 U.S.C. CHAPTER 10 ARE SERVING ON ACTIVE DUTY UNDER TEMPORARY APPOINTMENTS IN THE REGULAR SERVICE PURSUANT TO 14 U.S.C. 226, 302, 435, AND 436, ARE REGARDED AS RETIRED OFFICERS OF A REGULAR COMPONENT AND WHEN EMPLOYED IN A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT ARE SUBJECT TO THE REDUCTION IN RETIRED PAY PRESCRIBED BY SECTION 201 OF THE DUAL COMPENSATION ACT. MEMBERS OF THE UNIFORMED SERVICES HOLDING NO STATUS OTHER THAN THEIR PERMANENT ENLISTED STATUS WHO AT SOME TIME IN THEIR MILITARY CAREERS HAD SERVED SATISFACTORILY UNDER TEMPORARY OFFICER APPOINTMENTS, UPON DISABILITY RETIREMENT UNDER 10 U.S.C. CHAPTER 61 ARE NOT SUBJECT TO SECTION 201 OF THE DUAL COMPENSATION ACT RESTRICTING THE AMOUNT OF RETIRED PAY THEY MAY RECEIVE WHILE HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT IN THE ABSENCE OF A COURT DECISION THAT THEY WERE RETIRED IN THE STATUS OF AN OFFICER OF A REGULAR COMPONENT, AND THE ENLISTED MEN PLACED ON THE RETIRED LIST WITH THE GRADE WHICH IS EQUIVALENT TO A TEMPORARY OFFICER GRADE IN THE REGULAR SERVICE ARE ENTITLED TO RETIRED PAY COMPUTED ON THE PAY AUTHORIZED FOR THE HIGHER TEMPORARY GRADE WITHOUT A REDUCTION BY REASON OF THEIR CIVILIAN EMPLOYMENT.

TO THE SECRETARY OF DEFENSE, NOVEMBER 23, 1964:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 22, 1964, FROM THE ASSISTANT SECRETARY (COMPTROLLER) PRESENTING UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 350, THE FOLLOWING QUESTION CONCERNING APPLICATION OF SECTION 201 (A)OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484:

SINCE RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE ARE NOT CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT WITHIN THE MEANING OF THE DUAL EMPLOYMENT ACT OF 1894 (28 STAT. 205, AS AMENDED, 5 U.C.C. 62), MAY ALL CATEGORIES OF REGULAR RETIRED ENLISTED MEN ADVANCED TO OFFICER GRADE TO WHOM THAT ACT HAS BEEN CONSTRUED TO BE INAPPLICABLE IMMEDIATELY PRIOR TO THE ENACTMENT OF THE "DUAL COMPENSATION ACT," APPROVED 19 AUGUST 1964, BE PROPERLY CONSIDERED TO BE EXEMPT FROM THE PROVISIONS OF SECTION 201 (A) OF THE "DUAL COMPENSATION ACT," WHICH ESTABLISH A REDUCED RETIRED PAY FORMULA FOR RETIRED REGULAR OFFICERS?

SECTION 201 (A) RESTRICTS THE AMOUNT OF RETIRED PAY WHICH MAY BE PAID TO "A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES" WHILE HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT. RETIRED ENLISTED MEN ARE EXEMPT FROM THE DUAL EMPLOYMENT RESTRICTION IN SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, BY REASON OF THE ACT OF MAY 31, 1924, CH. 214, 43 STAT. 245, WHICH AMENDED THE 1894 ACT TO PROVIDE SUCH EXEMPTION. THE 1894 ACT AND ITS AMENDMENTS ARE REPEALED BY THE DUAL COMPENSATION ACT EFFECTIVE DECEMBER 1, 1964. SINCE THE PROVISIONS OF THE 1894 ACT AND THE DUAL COMPENSATION ACT ARE NOT THE SAME, RETIRED PERSONS EXEMPT UNDER THE EARLIER LAW ARE NOT NECESSARILY EXEMPT UNDER THE 1964 ACT, THE EXPRESSED PURPOSE OF WHICH IS TO SIMPLIFY, MODERNIZE AND CONSOLIDATE THE LAWS CONCERNING THE CIVILIAN EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES.

IN MANY INSTANCES ENLISTED MEMBERS UPON RETIREMENT AS SUCH ARE ADVANCED ON THE RETIRED LIST TO AN OFFICER GRADE UNDER A SPECIFIC PROVISION OF LAW AUTHORIZING SUCH ADVANCEMENT BY REASON OF SATISFACTORY SERVICE PERFORMED IN A HIGHER TEMPORARY GRADE. GENERALLY, THEY HAVE BEEN REGARDED AS RETAINING THEIR ENLISTED STATUS AND THUS HOLDING THE "OFFICE" OF AN ENLISTED MEMBER, EXEMPT FROM APPLICATION OF THE 1894 ACT, BECAUSE WHILE THEIR RETIRED PAY IS COMPUTED ON THE PAY OF THE COMMISSIONED OR WARRANT OFFICER GRADE TO WHICH ADVANCED, THEY WERE ACTUALLY RETIRED IN AN ENLISTED STATUS. SEE 26 COMP. GEN. 271; 28 ID. 727; 42 ID. 556. COMPARE 36 COMP. GEN. 315. SUCH MEMBERS ARE NOT SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT SINCE THEY ARE NOT RETIRED OFFICERS. HOWEVER, IF SUCH RETIRED MEMBERS SERVE ON ACTIVE DUTY AFTER RETIREMENT AS OFFICERS AND ARE "RE-RETIRED" AS OFFICERS THEY MAY NOT REMAIN EXEMPT FROM SUCH LIMITATION. SEE HOAG, ET AL. (JOHN J. QUEENEY) V. UNITED STATES, CT.CL.NO. 544-59, DECIDED JUNE 7, 1963.

TEMPORARY APPOINTMENTS IN THE ARMY AND AIR FORCE MAY BE MADE ONLY WITHOUT SPECIFICATION OF COMPONENT, IN ACCORDANCE WITH 10 U.S.C. 3441 AND 8441, RESPECTIVELY. IN THE NAVY AND MARINE CORPS, HOWEVER, ENLISTED MEN MAY BE GIVEN TEMPORARY APPOINTMENTS AS OFFICERS IN THE REGULAR NAVY AND THE REGULAR MARINE CORPS UNDER 10 U.S.C. 5596 AND 5597 AND IN SOME CASES MAY BE RETIRED IN THEIR TEMPORARY OFFICER STATUS. WE HAVE HELD THAT SUCH MEMBERS, IF RETIRED UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, AS AMENDED BY THE ACT OF AUGUST 9, 1955, CH. 678, 69 STAT. 614, 34 U.S.C. 410B (1952 ED.), WHICH AUTHORIZED RETIREMENT IN THE MEMBER'S OFFICER STATUS, AS DISTINGUISHED FROM RETIREMENT IN THE ENLISTED STATUS WITH CONCURRENT ADVANCEMENT TO OFFICER GRADE, WERE SUBJECT TO THE DUAL EMPLOYMENT RESTRICTION IN THE 1894 ACT. SEE 35 COMP. GEN. 657. SUBSECTIONS 5596 (F) AND 5597 (H) OF TITLE 10 PROVIDE THAT TEMPORARY APPOINTMENTS UNDER THOSE RESPECTIVE SECTIONS DO NOT CHANGE THE PERMANENT STATUS OF MEMBERS SO APPOINTED OR ABRIDGE THEIR RIGHTS OR BENEFITS. HOWEVER, RETIREMENT OF THE MEMBER INVOLVED IN 35 COMP. GEN. 657, UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, WAS AUTHORIZED ONLY BY VIRTUE OF HIS SERVICE IN A TEMPORARY OFFICER STATUS. IN SUCH CIRCUMSTANCES, EXEMPTION FROM THE 1894 ACT IN HIS ENLISTED STATUS IS NOT REGARDED AS ONE OF THE RIGHTS OR BENEFITS TO WHICH HE IS ENTITLED AS A RETIRED OFFICER. A RESTATEMENT OF THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, IS NOT INCLUDED IN 10 U.S.C. 6323. MEMBERS OF THE REGULAR NAVY OR MARINE CORPS RETIRED UNDER CIRCUMSTANCES SUCH AS THESE IN THEIR TEMPORARY OFFICER STATUS ARE SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT.

WHILE THE 1894 ACT, AS AMENDED, BY ITS OWN PROVISIONS IS NOT APPLICABLE TO ANY OFFICER RETIRED FOR DISABILITY, THE 1964 ACT EXEMPTS ONLY THOSE DISABLED RETIRED OFFICERS WHOSE RETIREMENT WAS BASED ON DISABILITY (1) RESULTING FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. THUS ONE CATEGORY OF MEMBERS WHO WERE NOT SUBJECT TO THE 1894 ACT (ALTHOUGH THEY WERE SUBJECT TO THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A) IS COVERED BY THE LIMITATION SECTION 201 OF THE 1964 ACT, THAT IS, REGULAR OFFICERS RETIRED FOR DISABILITY NOT INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR.

THE PROVISIONS OF 10 U.S.C. 1201, 1202, 1204, AND 1205, AUTHORIZING RETIREMENT FOR PHYSICAL DISABILITY OR PLACEMENT ON A TEMPORARY DISABILITY RETIRED LIST APPLY EQUALLY TO OFFICERS AND ENLISTED MEMBERS. A MEMBER WHO IS GRANTED DISABILITY RETIRED PAY UNDER ANY OF THOSE SECTIONS HAS HIS GRADE ON THE APPLICABLE RETIRED LIST DETERMINED UNDER 10 U.S.C. 1372, WHICH GENERALLY AUTHORIZES THE GRADE OR RANK IN WHICH THE MEMBER IS SERVING WHEN RETIRED, THE HIGHER TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY, OR THE PERMANENT OR TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD HE NOT BEEN FOUND DISABLED. THUS, WHILE THE BASIC RIGHT TO SUCH RETIREMENT ACCRUES BY REASON OF THE DISABILITY INCURRED, THE RETIRED PAY CANNOT BE ESTABLISHED SEPARATE AND APART FROM THE ACTIVE DUTY STATUS IN WHICH THE MEMBER WAS SERVING WHEN ENTITLEMENT ACCRUED OR SOME STATUS IN WHICH HE PREVIOUSLY HAS SERVED.

A PERMANENT ENLISTED MEMBER WHO MAY BE SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER GRADE AT THE TIME HE IS GRANTED DISABILITY RETIRED PAY IS RETIRED NOT IN HIS PERMANENT ENLISTED GRADE AND STATUS BUT IN HIS TEMPORARY OFFICER GRADE AND STATUS. AS POINTED OUT ABOVE, MEMBERS OF THE ARMY AND AIR FORCE MAY NOT BE GIVEN TEMPORARY APPOINTMENTS IN THE REGULAR SERVICE. THEREFORE, SUCH MEMBERS IF RETIRED FOR DISABILITY IN A HIGHER TEMPORARY GRADE WILL NOT BECOME RETIRED OFFICERS OF A REGULAR COMPONENT AND WILL NOT BE SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT. NAVY AND MARINE CORPS ENLISTED MEMBERS, HOWEVER, WHO ARE RETIRED FOR DISABILITY WHILE SERVING IN A TEMPORARY OFFICER STATUS IN THE REGULAR SERVICE AND ARE RETIRED IN SUCH TEMPORARY OFFICER STATUS WILL BECOME RETIRED OFFICERS OF A REGULAR COMPONENT AND WILL BE SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT. WITH RESPECT TO THE COAST GUARD, TEMPORARY APPOINTMENTS ARE AUTHORIZED IN THE REGULAR SERVICE. U.S.C. 226, 302, 435, 436. WHILE SECTIONS 226 AND 302 BAR THE RETIREMENT OF TEMPORARY OFFICERS "AS SUCH" WHO HAVE RECEIVED TEMPORARY APPOINTMENTS THEREUNDER, SECTION 424 OF TITLE 14 PROVIDES THAT:

THE PROVISIONS OF ANY SECTION OF THIS TITLE SHALL NOT BE CONSTRUED SO AS TO PREVENT ANY OFFICER OR ENLISTED MAN FROM BEING PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RATING AND THE HIGHEST RETIRED PAY TO WHICH SUCH OFFICER OR ENLISTED MAN MAY BE ENTITLED UNDER THE PROVISIONS OF ANY OTHER SECTION OF THIS TITLE OR UNDER THE PROVISIONS OF ANY OTHER LAW.

ACCORDINGLY, ENLISTED MEMBERS OF THE COAST GUARD WHO ARE RETIRED FOR DISABILITY UNDER CHAPTER 61 OF TITLE 10, U.S.C. IN THE TEMPORARY OFFICER GRADES HELD IN THE REGULAR SERVICE, IN WHICH GRADES THEY ARE SERVING AT TIME OF RETIREMENT, WILL BE REGARDED AS RETIRED OFFICERS OF A REGULAR COMPONENT, THE SAME AS MEMBERS OF THE NAVY AND MARINE CORPS, AND WILL BE SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT.

MANY ENLISTED MEMBERS, WHO CURRENTLY HOLD NO STATUS OTHER THAN THEIR PERMANENT ENLISTED STATUS IN THE REGULAR SERVICE, DID AT SOME TIME DURING THEIR MILITARY CAREERS--- USUALLY DURING A PERIOD OF WAR OR NATIONAL EMERGENCY--- SERVE ON ACTIVE DUTY UNDER A TEMPORARY OFFICER APPOINTMENT IN A REGULAR COMPONENT. IF SUCH SERVICE WAS SATISFACTORY, AS DETERMINED BY THE SECRETARY CONCERNED, THOSE MEMBERS UPON DISABILITY RETIREMENT UNDER CHAPTER 61 ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE PAY AUTHORIZED FOR THE HIGHER TEMPORARY GRADE AND UNDER THE PROVISIONS OF SECTION 409 OF THE CAREER COMPENSATION ACT OR 10 U.S.C. 1372 ARE ENTITLED TO THEIR TEMPORARY OFFICER GRADE ON THE RETIRED LIST. HOWEVER, IN THE ABSENCE OF A COURT DECISION TO THE EFFECT THAT RETIREMENT UNDER SUCH CIRCUMSTANCES ACTUALLY RESULTS IN SUCH ENLISTED MEMBERS BEING RETIRED IN THE STATUS OF AN OFFICER OF A REGULAR COMPONENT, WE DO NOT VIEW THE APPLICABLE PROVISIONS OF LAW AS BRINGING SUCH MEMBERS WITHIN THE PHRASE "A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES" AS USED IN THE DUAL COMPENSATION ACT. ACCORDINGLY, AN ENLISTED MAN SO RETIRED AND PLACED ON THE RETIRED LIST WITH THE GRADE WHICH IS EQUIVALENT TO A TEMPORARY OFFICER GRADE IN THE REGULAR SERVICE IN WHICH HE PREVIOUSLY SERVED SATISFACTORILY IS NOT SUBJECT TO THE LIMITATION IN SECTION 201 OF THE 1964 ACT.