B-23793, MARCH 18, 1942, 21 COMP. GEN. 870

B-23793, MARCH 18, 1942, 21 COMP. GEN. 870

PAY - RETIRED - NAVY OFFICERS - EFFECT OF SUBSEQUENT STATUTORY INCREASES A NAVY OFFICER WHO WAS PROMOTED TO THE GRADE OF CAPTAIN AND RETIRED ON JUNE 1, 1939, UNDER SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, WITH THE RETIRED PAY OF THE GRADE FROM WHICH PROMOTED IS NOT ENTITLED, BY REASON OF THE ACT OF OCTOBER 14, 1940, AUTHORIZING RETIRED PAY OF OFFICERS RETIRED UNDER SAID SECTION 12 (F) TO BE COMPUTED ON THE BASIS OF THE GRADE TO WHICH PROMOTED, TO THE RETIRED PAY OF THE HIGHER GRADE EITHER BEFORE OR AFTER THE DATE OF THE LATER ACT, EVEN THOUGH HE PERFORMED ACTIVE DUTY BEFORE AND AFTER SUCH DATE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MARCH 18, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 11, 1942, WITH ENCLOSURES, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE DISBURSING OFFICER, NAVY YARD, PUGET SOUND, WASHINGTON, DATED JANUARY 24, 1942, WITH ACCOMPANYING CORRESPONDENCE, WHEREIN YOUR DECISION IS REQUESTED AS TO THE CORRECT RATE OF RETIRED PAY TO WHICH CAPTAIN PERCY KENT ROBOTTOM, U.S. NAVY, RETIRED, IS ENTITLED UNDER THE CONDITIONS STATED IN THE ENCLOSURE.

SECTION 12 (F) OF THE ACT APPROVED JUNE 3 (23), 1938 (52 STAT. 949), AS AMENDED BY THE ACT OF OCTOBER 14, 1940 (54 STAT. 1174; 34 U.S.C., 1940 ED., SEC. 404 (F) (, PROVIDES:

"CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS PROMOTED TO THOSE GRADES BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION BUT NOT RECOMMENDED BY THE REPORT OF A SELECTION BOARD, AS APPROVED BY THE PRESIDENT, FOR RETENTION ON THE ACTIVE LIST SHALL BE RETIRED ON THE DATE THEY ARE SO PROMOTED WITH THE RETIRED PAY OF THE GRADE TO WHICH SO PROMOTED COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION: PROVIDED, THAT SUCH OFFICERS SHALL NOT BE RETIRED EARLIER THAN SIX MONTHS AFTER THE DATE OF APPROVAL BY THE PRESIDENT OF THE REPORT OF THE SELECTION BOARD IN WHICH THEY WERE ADJUDGED FITTED FOR PROMOTION.'

IT IS ASSUMED THAT YOUR DECISION ON THE QUESTION PRESENTED BY THE DISBURSING OFFICER IN THIS CASE WILL COVER THE POINT AS TO WHETHER THE PROVISIONS OF SECTION 12 (F), SUPRA, ARE APPLICABLE TO OFFICERS RETIRED PRIOR TO OCTOBER 14, 1940, THE DATE OF THE AMENDATORY ACT, OR ONLY TO OFFICERS RETIRED ON AND AFTER THAT DATE.

YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER OFFICERS RETIRED UNDER SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, SUPRA, ARE ENTITLED TO THE INCREASED PAY AUTHORIZED BY THE AMENDATORY ACT OF OCTOBER 14, 1940, EFFECTIVE FROM THAT DATE.

IT APPEARS THAT PERCY K. ROBOTTOM WAS PROMOTED TO THE GRADE OF CAPTAIN BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION AND NOT HAVING BEEN RECOMMENDED FOR RETENTION ON THE ACTIVE LIST BY THE REPORT OF A SELECTION BOARD APPROVED BY THE PRESIDENT ON NOVEMBER 30, 1938, THE OFFICER WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE JUNE 1, 1939, IN ACCORDANCE WITH SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, 52 STAT. 949, 950, 34 U.S.C. 404 (F), AND THE ACT OF APRIL 23, 1930, 46 STAT. 253. CAPTAIN ROBOTTOM SUBSEQUENTLY SERVED ON ACTIVE DUTY FROM JULY 1, 1940, TO OCTOBER 31, 1941.

PRIOR TO THE AMENDMENT OF SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, BY THE ACT OF OCTOBER 14, 1940, 54 STAT. 1174, IT WAS PROVIDED THAT SUCH OFFICERS "SHALL BE RETIRED ON THE DAY THEY ARE SO PROMOTED WITH THE RETIRED PAY OF THE GRADE FROM WHICH SO PROMOTED.' THE AMENDMENT OF OCTOBER 14, 1940, CHANGED THE WORD "FROM" TO "TO.'

THE GENERAL RULE FOR THE CONSTRUCTION OF ALL STATUTES IS THAT THEY APPLY ONLY TO FUTURE CASES UNLESS OTHERWISE EXPRESSLY STATED OR UNLESS IT APPEARS BY NECESSARY IMPLICATION FROM THE NATURE AND WORDS OF THE STATUTE THAT A RETROSPECTIVE EFFECT WAS INTENDED. 5 COMP. GEN. 381 AND CASES THEREIN CITED.

IN DECISION B-9607, DATED APRIL 25, 1940, 19 COMP. GEN. 898, IT WAS HELD, QUOTING FROM THE SYLLABUS:

A NAVY OFFICER RETIRED UNDER SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, WITH THE RANK OF CAPTAIN BUT IN THE PAY GRADE OF A COMMANDER, IS ENTITLED, ON RETURN TO ACTIVE DUTY, ONLY TO THE ACTIVE DUTY PAY AND ALLOWANCES OF COMMANDER EVEN THOUGH HE SERVED FOR A TIME PRIOR TO RETIREMENT IN THE HIGHER RANK.

THE BASIS FOR THE HOLDING IN THAT CASE, CITING 19 COMP. GEN. 433, WAS THAT A PROMOTION COINCIDENT WITH RETIREMENT WITH PROVISION FOR RETIRED PAY BASED UPON THE GRADE FROM WHICH PROMOTED WAS MERELY HONORARY AND DID NOT CARRY WITH IT ACTIVE DUTY PAY AND ALLOWANCES IN THE PROMOTED GRADE WHEN CALLED TO ACTIVE DUTY SUBSEQUENT TO RETIREMENT. THERE IS NOTHING IN THE AMENDMENT OF OCTOBER 14, 1940, EITHER EXPRESSLY OR IMPLIEDLY, TO SUGGEST THAT A RETROACTIVE OPERATION THEREOF WAS INTENDED SO AS TO INCLUDE WITHIN ITS PROVISIONS THOSE OFFICERS WHO WERE RETIRED PRIOR TO ITS DATE UNDER THE PROVISIONS OF THE ORIGINAL SECTION 12 (F) OF THE ACT OF JUNE 23, 1938. SINCE THE OFFICER IN THE PRESENT CASE WAS PROMOTED AND RETIRED WITH RETIRED PAY OF THE GRADE FROM WHICH PROMOTED, UNDER THE PROVISIONS OF THE ORIGINAL SECTION 12 (F), HIS STATUS FOR PAY PURPOSES AS THEN PROVIDED BECAME FIXED AND THE PERFORMANCE OF ACTIVE DUTY AFTER RETIREMENT, EITHER BEFORE OR AFTER THE AMENDMENT OF OCTOBER 14, 1940, WOULD CONSTITUTE NO SOUND LEGAL BASIS FOR COMPUTING HIS RETIRED PAY AFTER OCTOBER 14, 1940, ON THE RANK TO WHICH PROMOTED IN THE ABSENCE OF A STATUTE WHICH CLEARLY AUTHORIZES A CHANGE IN HIS PAY GRADE ON THE RETIRED LIST AS FIXED IN THE LAW UNDER WHICH HE WAS RETIRED. THE FACT THAT THE AMENDMENT OF OCTOBER 14, 1940, MADE MORE GENEROUS PROVISION FOR OFFICERS IN THE IDENTICAL SITUATION THEREAFTER RETIRED DOES NOT CHANGE THE PAY GRADE OF OFFICERS RETIRED PRIOR THERETO.