B-167286, FEB 19, 1970

B-167286, FEB 19, 1970

PRECIS-UNAVAILABLE

MR. ATTORNEY GENERAL:

REFERENCE IS MADE TO LETTER OF FEBRUARY 3, 1970 (YOUR REFERENCE WDR: CM: SEE 154-281-69) FROM THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, IN THE ABOVE-ENTITLED CASE ADVISING US THAT YOUR DEPARTMENT IS CONSIDERING THE ADMISSION OF LIABILITY IN THIS CASE TO THE EXTENT OF RETIREMENT IN THE GRADE OF FIRST LIEUTENANT ON THE BASIS OF THE HOLDINGS IN SATTERWHITE V. UNITED STATES 123 CT. CL. 342 (1952), AND FRIESTEDT V. UNITED STATES, 173 CT. CL. 447 (1965). ALSO CITED WERE NERI V. UNITED STATES, 145 CT. CL. 537 (1959); POWERS V. UNITED STATES, 185 CT. CL. 481 (1968); AND MILLER V. UNITED STATES, 180 CT. CL. 872 (1967).

THE ASSISTANT ATTORNEY GENERAL EXPRESSES THE VIEW THAT THE SATTERWHITE AND FRIESTEDT DECISIONS ARE DISPOSITIVE OF THE CASE; THAT THE DEPARTMENT OF JUSTICE IS UNAWARE OF ANY ARGUMENT NOT PREVIOUSLY PRESENTED WHICH MIGHT PERSUADE THE COURT OF CLAIMS TO REVERSE THOSE DECISIONS; AND THAT THE NERI, POWERS, AND MILLER CASES INDICATE THE DISPOSITION OF THE COURT TO HOLD THAT THE STATUTORY LANGUAGE CLEARLY INDICATES THE INTENT OF THE CONGRESS THAT THE RETIRED PAY OF MEMBERS OF THE ARMED SERVICES SHOULD BE BASED UPON THE HIGHEST RATE OF PAY RECEIVED ON ACTIVE DUTY.

WE HAVE AGREED TO FOLLOW THE ABOVE DECISIONS WITH RESPECT TO CASES INVOLVING THE SAME STATUTES. 32 COMP. GEN. 425 (1953): 39 COMP. GEN. 467 (1959); 46 COMP. GEN. 17 (1966); 47 COMP. GEN. 722 (1968). HOWEVER, BECAUSE OF THE RESERVATIONS EXPRESSED BY THE COURT OF CLAIMS IN THE MILLER CASE CONCERNING OUR DECISIONS UNDER SECTION 511 OF THE CAREER COMPENSATION ACT AND THE DIFFERENCES BETWEEN THE VARIOUS STATUTES, WE HAVE CONSIDERED THE MATTER TOO DOUBTFUL TO WARRANT OUR HOLDING THAT THE DECISIONS IN THE ABOVE-CITED CASES SHOULD BE APPLIED IN ALL SIMILAR SITUATIONS IN THE ABSENCE OF FURTHER CLARIFICATION BY THAT COURT.

UPON FURTHER REVIEW OF THE QUESTION IT APPEARS THAT THE DEPARTMENT OF JUSTICE HAS PRESENTED TO THE COURT OF CLAIMS EVERY ARGUMENT SUGGESTED BY US IN THIS CLASS OF CASES. ALSO, THE LETTER OF FEBRUARY 3, 1970, INDICATES THAT THE DEPARTMENT OF JUSTICE CAN SUGGEST NO FURTHER ARGUMENT WHICH MIGHT PERSUADE THE COURT OF CLAIMS TO ADOPT A HOLDING DIFFERENT THAN THAT REACHED IN THE ABOVE-CITED DECISIONS. ON THE BASIS THAT FURTHER COURT ACTION WOULD RESULT IN NO MATERIAL CHANGE IN THE INTERPRETATION OF THE LAW, WE HAVE CONCLUDED THAT WE WILL FOLLOW THE BROAD PRINCIPLE ENUNCIATED BY THE COURT OF CLAIMS IN THOSE CASES.

IN OTHER WORDS, WHERE AN EXISTING STATUTE AUTHORIZES COMPUTATION OF THE RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED SERVICE ON THE BASIS OF THE PAY OF A GRADE IN WHICH THE INDIVIDUAL HAD SERVED SATISFACTORILY AND WHICH IS HIGHER THAN THE PAY OF THE GRADE ON WHICH HE OTHERWISE IS ENTITLED TO COMPUTE HIS RETIRED PAY WE WILL AUTHORIZE PAYMENT, OR PASS TO CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS, A PAYMENT OF RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER GRADE WITHOUT REGARD TO WHETHER THAT GRADE WAS A TEMPORARY OR PERMANENT GRADE, AND EVEN THOUGH THE ARMED SERVICE IN WHICH THE INDIVIDUAL HELD THAT HIGHER GRADE IS NOT THE SERVICE IN WHICH HE RETIRED. HOWEVER, WHERE THE STATUTE REFERS TO THE HIGHEST GRADE OR RANK IN WHICH THE PERSON CONCERNED SERVED "SATISFACTORILY," THE APPROPRIATE ADMINISTRATIVE OFFICIAL IS REQUIRED TO MAKE A DETERMINATION AS TO SATISFACTORY SERVICE, BEFORE FAVORABLE ACTION MAY BE TAKEN BY THIS OFFICE.

ACCORDINGLY, WE CONCUR IN YOUR PROPOSAL TO ADMIT LIABILITY IN THIS CASE INSOFAR AS THE HIGHER GRADE ISSUE IS CONCERNED, IF THE SECRETARY OF THE AIR FORCE (THE SERVICE IN WHICH SERGEANT HARRIS RETIRED) DETERMINES THAT HE PERFORMED HIS DUTIES AS A FIRST LIEUTENANT (MARINE CORPS) IN A SATISFACTORY MANNER.

IT IS ALLEGED IN THE PETITION THAT THE SECRETARY OF THE AIR FORCE HAS REFUSED TO ISSUE A DETERMINATION OF SATISFACTORY SERVICE IN A HIGHER GRADE IN THE MARINE CORPS. IT WOULD SEEM THAT UNTIL INFORMATION OR A DETERMINATION TO THAT EFFECT IS FURNISHED FROM THE APPROPRIATE NAVY SOURCE, THE SECRETARY OF THE AIR FORCE CAN TAKE NO OTHER ACTION.