B-32730, JULY 28, 1943, 23 COMP. GEN. 59

B-32730, JULY 28, 1943, 23 COMP. GEN. 59

RETIRED PAY OF NAVAL PERSONNEL - COUNTING OF ADDITIONAL SERVICE AUTHORIZED TO BE CREDITED IN TIME OF WAR; NAVAL PERSONNEL TEMPORARILY PROMOTED TO HIGHER RANK IN COMPUTING THE RETIRED PAY OF OFFICERS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, THERE MAY BE COUNTED SUCH SERVICE WHICH THEY HAD AT THE TIME OF RETIREMENT AS IS AUTHORIZED TO BE COUNTED FOR PAY PURPOSES BY THE PROVISIONS OF SECTION 1 OF THE ACT, AS AMENDED, WHICH ARE PERMANENT IN NATURE, BUT, WHETHER RETIRED BEFORE OR AFTER JUNE 1, 1942, THE ADDITIONAL SERVICE TEMPORARILY AUTHORIZED BY SECTION 3A OF SAID ACT TO BE COUNTED FOR ACTIVE DUTY PAY PURPOSES DURING THE WAR PERIOD MAY NOT BE COUNTED IN COMPUTING RETIRED PAY. UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, AS AMENDED, THAT A PERSON RETIRED OR ADVANCED ON THE RETIRED LIST THEREUNDER FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK SHALL RECEIVE RETIRED PAY "AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN SUCH RANK," THE RETIRED PAY OF SUCH A PERSON SHOULD BE BASED ON THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED UNDER HIS TEMPORARY APPOINTMENT BY VIRTUE OF THE PERMANENT PAY PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, THUS EXCLUDING ANY TEMPORARY ADDITIONS TO PAY DURING THE WAR PERIOD RESULTING FROM THE COUNTING OF PRIOR ENLISTED, WARRANT, ETC., SERVICE UNDER SECTION 3A OF THE LATTER ACT. THE SAVING PROVISIONS OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, WITH RESPECT TO THE RIGHTS, BENEFITS, AND PRIVILEGES IN THE PERMANENT RANK OF NAVY AND MARINE CORPS PERSONNEL TEMPORARILY APPOINTED TO HIGHER RANK UNDER AUTHORITY OF THE ACT, HAVE THE EFFECT OF SAVING TO A PERSON SO TEMPORARILY APPOINTED THE RIGHT TO THE RETIREMENT BENEFITS AND PRIVILEGES OF HIS PERMANENT RANK IF MORE BENEFICIAL THAN THOSE PROVIDED FOR THE TEMPORARY HIGHER RANK. IN VIEW OF THE PROVISIONS OF THE ACT OF JUNE 19, 1942, THAT IN DETERMINING ACTIVE DUTY AND RETIRED PAY OF COMMISSIONED WARRANT OFFICERS OF THE NAVY, THE PHRASE "WITH CREDITABLE RECORD ON THE ACTIVE LIST," APPEARING IN SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED, SHALL BE CONSTRUED TO INCLUDE, AS SERVICE ON THE ACTIVE LIST, SERVICE ON ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT, THE SAME INTERPRETATION MAY BE APPLIED TO THE IDENTICAL PHRASE APPEARING IN THE FOURTH PARAGRAPH OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 IN THE SAME CONNECTION AS IN THE ACT OF JUNE 10, 1922. A COMMISSIONED WARRANT OFFICER OF THE NAVY, WITH CREDITABLE RECORD, RETIRED PURSUANT TO THE ACT OF MAY 13, 1908, AFTER 30 YEARS' SERVICE, MAY BE PAID, AFTER RECALL TO ACTIVE DUTY AND SUBSEQUENT ADVANCEMENT ON THE RETIRED LIST, PURSUANT TO SECTION 8 (B) OF THE ACT OF JULY 24, 1941, FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, TO THE RANK OF LIEUTENANT IN WHICH HE WAS TEMPORARILY SERVING AT THE TIME OF SUCH ADVANCEMENT, EITHER THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER WITH HIS LENGTH OF COMMISSIONED SERVICE (INCLUDING ACTIVE SERVICE PERFORMED SINCE RETIREMENT) RETIRED AFTER 30 YEARS' SERVICE OF THE RETIRED PAY INCIDENT TO ADVANCEMENT ON THE RETIRED LIST PURSUANT TO THE ACT OF JULY 24, 1941, WHICHEVER IS HIGHER. AN OFFICER OF THE REGULAR NAVY ON THE RETIRED LIST FOR PHYSICAL DISABILITY WHO WAS RECALLED TO ACTIVE DUTY AND TEMPORARILY PROMOTED PURSUANT TO THE ACT OF JULY 24, 1941, TO A HIGHER RANK IS, UPON SUBSEQUENT ADVANCEMENT ON THE RETIRED LIST TO THE HIGHER ACTIVE DUTY RANK FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, PURSUANT TO SECTION 8 (C) OF THE ACT, ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, INCLUDING THAT PART WHICH RESULTED FROM COUNTING INACTIVE SERVICE ON THE RETIRED LIST AS AUTHORIZED BY THE PERMANENT PROVISIONS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. A TEMPORARY COMMISSIONED WARRANT OFFICER WHO WAS APPOINTED FROM A PERMANENT ENLISTED GRADE UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AND PLACED ON THE RETIRED LIST IN HIS TEMPORARY RANK PURSUANT TO SECTION 8 (A) OF SAID ACT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY OF THE TEMPORARY RANK, OR, WHERE BY REASON OF THE PROVISIONS OF SECTION 7 (A) OF SAID ACT, AS AMENDED, HE WAS ENTITLED TO THE HIGHER ACTIVE PAY OF A WARRANT OFFICER WHILE SERVING AS A TEMPORARY COMMISSIONED WARRANT OFFICER, TO RETIRED PAY AT THE RATE OF 75 PERCENT OF SUCH HIGHER PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 28, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 23, 1943 ( JAG:K:WJG:GB SO 2 20 220), REQUESTING A DECISION ON CERTAIN QUESTIONS STATED IN A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED FEBRUARY 16, 1943, RELATIVE TO THE SERVICE WHICH RETIRED OFFICERS OF THE NAVY MAY COUNT FOR PAY PURPOSES IN THE COMPUTATION OF THEIR RETIRED PAY. THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, THE FIRST QUESTION BEING STATED AS FOLLOWS:

SECTION 3A OF REFERENCE (B) ( PAY READJUSTMENT ACT OF 1942, AS AMENDED) PROVIDES THAT DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SAID SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR FIELD CLERKS, OR AS COMMISSIONED WARRANT OFFICERS IN THE SEVERAL BRANCHES OF THE VARIOUS SERVICES MENTIONED THEREIN. THE TEMPORARY NATURE OF THIS LEGISLATION BRINGS UP THE QUESTION AS TO WHETHER OFFICERS WHO WERE RETIRED PRIOR TO JUNE 1, 1942, AND WHO ARE PAID RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN SECTION 1 ARE ENTITLED TO COUNT UNDER SECTION 3A OF REFERENCE (B) PRIOR ENLISTED AND WARRANT SERVICE WHICH WAS DENIED THEM UNDER LAWS GOVERNING SERVICE FOR PAY PURPOSES AT THE TIME THEY WERE PLACED ON THE RETIRED LIST. IT, THEREFORE, IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER AN OFFICER WHO WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942 AND WHO ARE PAID RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN SECTION 1 ARE ENTITLED TO COUNT UNDER SECTION 3A OF REFERENCE (B) PRIOR ENLISTED AND WARRANT SERVICE WHICH WAS DENIED THEM UNDER LAWS GOVERNING SERVICE FOR PAY PURPOSES AT THE TIME THEY WERE PLACED ON THE RETIRED LIST. IT, THEREFORE, IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER AN OFFICER WHO WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942 AND WHO HAS NOT BEEN RECALLED TO ACTIVE DUTY SUBSEQUENT TO REQUIREMENT IS ENTITLED TO COUNT FOR PAY PURPOSED IN THE COMPUTATION OF HIS RETIRED PAY ONLY THE SERVICE WHICH HE WAS ENTITLED TO COUNT UNDER LAWS IN EFFECT ON MAY 31, 1942, OR WHETHER HE MAY NOW COUNT ANY ADDITIONAL SERVICE (BOTH ACTIVE AND INACTIVE) ENUMERATED IN SECTIONS 1 AND 3A OF REFERENCE (A).

THE PERTINENT PROVISIONS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, ARE CONTAINED IN THE ELEVENTH PARAGRAPH OF SUCH SECTION, WHICH PARAGRAPH WAS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, TO READ AS FOLLOWS:

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF THIS SECTION, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS' RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE OF COAST AND GEODETIC SURVEY OFFICERS AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS): PROVIDED, THAT FOR OFFICERS IN SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION, IN ADDITION TO THE SERVICE SET FORTH ABOVE, ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME. LONGEVITY PAY FOR OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICED WHICH IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE PROVISIONS OF THIS ACT OR AS MAY OTHERWISE BE PROVIDED BY LAW.

SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY THE ACT OF DECEMBER 2, 1942, SUPRA, PROVIDES:

DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THIS ACT, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SUCH SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ENLISTED RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY COMMISSIONED OFFICER TO RECEIVE PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES OF ANY RANK OR GRADE BY ANY OF THE PROVISIONS OF THIS ACT. ( ITALICS SUPPLIED.)

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT * * * IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS * * *.

THE EFFECT OF SECTION 15 OF THE SAID PAY READJUSTMENT ACT OF 1942 IS TO GIVE AN OFFICER RETIRED PRIOR TO ITS EFFECTIVE DATE, JUNE 1, 1942, THE SAME RETIRED PAY AS AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO SUCH EFFECTIVE DATE. HOWEVER, IT HAS LONG BEEN ESTABLISHED THAT EXCEPTIONAL PAY OR TEMPORARY INCREASES IN PAY GIVEN FOR SPECIAL SERVICES OR UNDER SPECIAL CIRCUMSTANCES INCIDENT TO ACTUAL SERVICE, SUCH AS A TEMPORARY INCREASE IN ACTIVE DUTY PAY IN TIME OF WAR, DO NOT ENTER INTO THE COMPUTATION OF RETIRED PAY. SEE MURPHY V. UNITED STATES, 38 C.1CLS. 511; 4 COMP. DEC. 374; 6 ID. 182; 9 ID. 41; 13 ID. 759; 24 ID. 116; 26 ID. 478. THE PROVISIONS OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, ARE EXPRESSLY MADE APPLICABLE ONLY "DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS" AND FOR SIX MONTHS THEREAFTER. IN EFFECT, THAT SECTION MERELY AUTHORIZES TEMPORARY INCREASES IN ACTIVE DUTY PAY IN TIME OF WAR BASED ON THE ADDITIONAL CLASSES OF SERVICE HEREIN ENUMERATED AND SUCH TEMPORARY INCREASES IN ACTIVE DUTY PAY DO NOT ENTER INTO THE COMPUTATION OF THE RETIRED PAY OF PERSONS ON THE RETIRED LIST, WHETHER RETIRED BEFORE OR AFTER JUNE 1, 1942. SEE DECISION OF TODAY, B-32302, 23 COMP. GEN. 52, TO LIEUTENANT COLONEL CARL WITCHER, FINANCE DEPARTMENT, U.S. ARMY.

ACCORDINGLY, IN ANSWER TO THE FIRST QUESTION IT MUST BE HELD THAT AN OFFICER WHO IS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942, MAY COUNT FOR PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY SUCH SERVICE WHICH HE HAD AT THE TIME OF HIS RETIREMENT AS IS AUTHORIZED TO BE COUNTED BY SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, SINCE THE PAY INCREASES RESULTING FROM THE PROVISIONS OF SUCH SECTION ARE PERMANENT IN NATURE, BUT IN VIEW OF THE TEMPORARY CHARACTER OF THE PAY INCREASES UNDER SECTION 3A OF THAT ACT, THE ADDITIONAL SERVICE AUTHORIZED THEREIN TO BE COUNTED FOR ACTIVE PAY PURPOSES IN TIME OF WAR MAY NOT BE COUNTED IN COMPUTING THE RETIRED PAY OF AN OFFICER RETIRED EITHER BEFORE OR AFTER JUNE 1, 1942.

THE SECOND QUESTION IS STATED AS FOLLOWS:

A WARRANT OFFICE WITH OVER 21 YEARS' TOTAL ENLISTED AND WARRANT SERVICE WAS APPOINTED A TEMPORARY LIEUTENANT (JG) ON JUNE 15, 1942, AND, UNDER THE PROVISIONS OF SECTION 1 AND 3A OF REFERENCE (B), BECAME ENTITLED TO THE PAY OF THE THIRD PAY PERIOD, PLUS LONGEVITY INCREASE OF 35 PERCENT. PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 8 (A) (ACT OF JULY 24, 1941, 55 STAT. 603), HE WAS PLACED ON THE RETIRED LIST ON JANUARY 1, 1943, IN HIS TEMPORARY RANK FOR DISABILITY INCURRED IN LINE OF DUTY. IS SUCH OFFICER ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING WHEN PLACED ON THE RETIRED LIST ON JANUARY 1, 1943? IN CASE THE ANSWER IS IN THE AFFIRMATIVE, WOULD SUCH RETIRED PAY BE SUBJECT TO REDUCTION SIX MONTHS AFTER THE CLOSE OF THE WAR BECAUSE OF THE TEMPORARY PROVISION OF SECTION 3A OF REFERENCE (B/? SUCH ACTION WOULD RESULT IN REDUCTION OF RETIRED PAY FROM $2430 PER ANNUM, 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED AT TIME OF RETIREMENT, TO $1500 PER ANNUM, 75 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT (JG) WITH LESS THAN 3 YEARS' COMMISSIONED SERVICE FOR PAY PURPOSES, AS AUTHORIZED IN SECTION 1 OF REFERENCE (B).

SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, PROVIDES:

SEC. 8 (A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(C) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) HEREOF, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(D) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN THE SAME RANK AS THAT HELD BY HIM ON THE RETIRED LIST AND IF NOT OTHERWISE ENTITLED THERETO, RECEIVE 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

WHILE SUBSECTIONS (A), (B), (C), AND (D) OF SECTION 8 OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDE THAT AN OFFICER OR ENLISTED MAN RETIRED OR ADVANCED ON THE RETIRED LIST THEREUNDER FOR PHYSICAL DISABILITY INCURRED WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK SHALL RECEIVE RETIRED PAY "AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK," SUCH LANGUAGE EVIDENCES NO INTENT THAT SUCH RETIREMENT PAY SHOULD BE REDUCED AFTER THE WAR OR THAT IT SHOULD BE COMPUTED FROM THE BEGINNING ON TEMPORARY ADDITIONS TO PAY, SUCH AS THAT RESULTING FROM COUNTING PRIOR SERVICE WHICH UNDER THE PROVISIONS OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942 IS AUTHORIZED TO BE COUNTED FOR ACTIVE DUTY PAY PURPOSES ONLY FOR A TEMPORARY PERIOD OF TIME. THAT IS, UNDER THE ESTABLISHED RULE THAT TEMPORARY ADDITIONS TO PAY DO NOT CONSTITUTE A PART OF THE ACTIVE DUTY PAY ON WHICH RETIREMENT PAY IS BASED, THE ACTIVE DUTY PAY TO WHICH A PERSON WAS ENTITLED FOR RETIREMENT PAY PURPOSES WHILE SERVING IN A TEMPORARY RANK IS THE PERMANENT ACTIVE DUTY PAY OF THAT RANK TO WHICH HE WAS ENTITLED. OTHERWISE, TEMPORARY OFFICERS WOULD RECEIVE RETIRED PAY IN EXCESS--- AND, IN MANY CASES, GREATLY IN EXCESS--- OF THAT RECEIVED BY PERMANENT OFFICERS OF THE SAME RANK AND SERVICE RETIRED FOR PHYSICAL DISABILITY UNDER IDENTICAL CONDITIONS. CERTAINLY NO SUCH DISCRIMINATION WAS INTENDED. THEREFORE, ANSWERING THE SECOND QUESTION, YOU ARE ADVISED THAT UNDER THE STATED CIRCUMSTANCES THE OFFICER WOULD BE ENTITLED FROM THE DATE OF RETIREMENT TO 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED UNDER HIS TEMPORARY APPOINTMENT BY VIRTUE OF THE PERMANENT PAY PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, THUS EXCLUDING THAT PART OF HIS ACTIVE DUTY PAY WHICH HE WAS RECEIVING UNDER THE PROVISIONS OF SECTION 3A OF SUCH ACT. SEE THE ANSWER TO THE PRECEDING QUESTION. AS TO SUCH RETIRED PAY BEING LESS THAN THE RETIRED PAY TO WHICH THE TEMPORARY OFFICER WOULD BE ENTITLED IF RETIRED IN HIS PERMANENT RANK OF WARRANT OFFICER UNDER THE SAME CIRCUMSTANCES, SEE THE ANSWER TO THE LAST PART OF QUESTION 3, INFRA.

THE THIRD QUESTION IS AS FOLLOWS:

A COMMISSIONED WARRANT OFFICER, WITH CREDITABLE RECORD AND WITH PRIOR ENLISTED AND WARRANT SERVICE OF 21 YEARS AND COMMISSIONED SERVICE OF 9 YEARS, WAS PLACED ON THE RETIRED LIST ON HIS OWN APPLICATION AFTER COMPLETION OF 30 YEARS UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, ON JANUARY 1, 1939, AT WHICH TIME HE WAS ENTITLED TO RETIRED PAY COMPUTED AS THE HIGHEST PAY OF HIS GRADE, OR $2250 PER ANNUM. HE WAS RECALLED TO ACTIVE DUTY ON OCTOBER 1, 1939 AND ON JANUARY 3, 1942, WAS GIVEN TEMPORARY APPOINTMENT TO THE RANK OF LIEUTENANT. UNDER THE PROVISIONS OF SECTION 1 AND 3A OF THE PAY READJUSTMENT ACT OF 1942,HE WAS ENTITLED EFFECTIVE JUNE 1, 1942, TO COUNT PRIOR ENLISTED AND WARRANT SERVICE FOR PAY PURPOSES AND WAS, THEREFORE, ENTITLED TO THE BASE PAY OF THE FOURTH PAY PERIOD PLUS 50 PERCENT LONGEVITY INCREASE. HE WAS PLACED ON THE RETIRED LIST IN HIS TEMPORARY RANK ON JANUARY 1, 1943 UNDER THE PROVISIONS OF SECTION 8 (B) OF REFERENCE (A) FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.

(1) IS SUCH OFFICER ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING WHEN PLACED ON THE RETIRED LIST ON JANUARY 1, 1943?

(2) IN CASE THE ANSWER TO QUESTION (A) (SIC) IS IN THE AFFIRMATIVE WOULD SUCH RETIRED PAY BE SUBJECT TO A REDUCTION SIX MONTHS AFTER THE CLOSE OF THE WAR BECAUSE OF THE TEMPORARY PROVISIONS OF SECTION 3A OF REFERENCE (A/? SUCH ACTION WOULD RESULT IN REDUCTION OF RETIRED PAY FROM $3375 PER ANNUM TO $2160 PER ANNUM.

(3) IN CASE THE ANSWER TO QUESTION (2) IS IN THE AFFIRMATIVE IS SUCH OFFICER ENTITLED TO 75 PERCENT OF THE HIGHEST PAY OF A COMMISSIONED WARRANT OFFICER WITH (A) UNDER TEN YEARS' COMMISSIONED SERVICE, OR (B) OVER TEN YEARS' COMMISSIONED SERVICE WITH CREDITABLE RECORD, IN VIEW OF THE SAVING CLAUSE IN SECTION 19 OF REFERENCE (B/?

THE OFFICER'S RETIRED PAY IS TO BE COMPUTED ON ONLY THAT PART OF HIS ACTIVE DUTY PAY UNDER THE TEMPORARY APPOINTMENT TO WHICH HE WAS ENTITLED BY VIRTUE OF THE PERMANENT PAY PROVISIONS OF THE EXISTING LAWS GOVERNING PAY. SEE THE ANSWER TO THE SECOND QUESTION, SUPRA.

THE FOREGOING ANSWER OBVIATES THE NECESSITY FOR AN ANSWER TO PART (2) OF THE QUESTION; AND WHILE REPLY TO PART (3) OF THE QUESTION IS REQUESTED ONLY IN THE EVENT THE ANSWER TO PART (2) IS IN THE AFFIRMATIVE, IT APPEARS THAT IN VIEW OF THE ANSWER TO PART (1) OF THE QUESTION A REPLY TO PART (3) IS DESIRABLE. THAT PART OF THE QUESTION REFERS TO THE SAVING CLAUSE IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 369, BUT THE PERTINENCY OF THAT SECTION IN CONNECTION WITH THIS PARTICULAR QUESTION IS NOT CLEAR. HOWEVER, SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, UNDER WHICH THE RETIRED COMMISSIONED WARRANT OFFICER ON ACTIVE DUTY WAS TEMPORARILY APPOINTED TO THE RANK OF LIEUTENANT, PROVIDES, IN PART:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: * * *

THESE PROVISIONS, AND THE PURPOSE THEREOF, ARE BROAD ENOUGH TO SAVE TO A PERSON TEMPORARILY APPOINTED TO A HIGHER RANK UNDER THE ACT THE RIGHT TO THE RETIREMENT PRIVILEGES AND BENEFITS OF HIS PERMANENT RANK IF MORE BENEFICIAL THAN THOSE PROVIDED FOR THE TEMPORARY HIGHER RANK. OTHERWISE, HIS RIGHTS, BENEFITS AND PRIVILEGES WOULD BE ABRIDGED BY THE ACCEPTANCE OF THE TEMPORARY APPOINTMENT.

IN COMPUTING THEIR RETIRED PAY, RETIRED OFFICERS, WARRANT OFFICERS, AND OTHERS ARE ENTITLED TO INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT. SEE SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA. THE FOURTH PARAGRAPH OF SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, PROVIDES:

COMMISSIONED WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WITH CREDITABLE RECORDS ON THE ACTIVE LIST, AFTER TEN YEARS OF COMMISSIONED SERVICE * * * SHALL RECEIVE THE BASE PAY OF THE THIRD PERIOD AS ESTABLISHED BY SECTION 1 OF THIS ACT AND SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE THIRD PERIOD. ( ITALICS SUPPLIED.) A PROVISION SIMILAR TO THE ABOVE WAS CONTAINED IN SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED, 45 STAT. 1186, 1187, AND WITH RESPECT THERETO IT WAS PROVIDED IN THE ACT OF JUNE 19, 1942, 56 STAT. 372, AS FOLLOWS:

THAT, EFFECTIVE FROM SEPTEMBER 8, 1939, FOR THE PURPOSE OF DETERMINING BOTH ACTIVE DUTY AND RETIRED PAY OF COMMISSIONED WARRANT OFFICERS OF THE NAVY, INCLUDING SUCH OFFICERS ADVANCED IN RANK PURSUANT TO THE PROVISIONS OF THE ACT APPROVED JUNE 21, 1930 (46 STAT. 793), THE PHRASE "WITH CREDITABLE RECORDS ON THE ACTIVE LIST" APPEARING IN SECTION 1 OF THE ACT, APPROVED JUNE 10, 1922, AS AMENDED (45 STAT. 1187), SHALL BE CONSTRUED TO INCLUDE, AS SERVICE ON THE ACTIVE LIST, SERVICE ON ACTIVE DUTY HERETOFORE OR HEREAFTER PERFORMED SUBSEQUENT TO RETIREMENT.

SINCE THAT PARTICULAR PHRASE IS USED, ALSO, IN THE PAY READJUSTMENT ACT OF 1942, ENACTED CONTEMPORANEOUSLY WITH THE SAID ACT OF JUNE 19, 1942, AND IN THE SAME CONNECTION AS IN THE ACT OF JUNE 10, 1922, THERE WOULD APPEAR TO BE LITTLE DOUBT THAT THE PRESCRIBED INTERPRETATION APPLIES LIKEWISE TO THE SAME LANGUAGE IN THE SAID PAY READJUSTMENT ACT.

IT FOLLOWS THAT IF THE COMMISSIONED WARRANT OFFICER REFERRED TO IN THE ABOVE QUESTION HAD NOT BEEN TEMPORARILY PROMOTED HE WOULD HAVE BEEN ENTITLED, WHEN RELEASED FROM ACTIVE DUTY, TO COUNT THE ACTIVE DUTY SUBSEQUENT TO HIS RETIREMENT IN THE COMPUTATION OF HIS RETIRED PAY. WHEN RETIRED HE HAD, IN ADDITION TO 21 YEARS ENLISTED AND WARRANT SERVICE, 9 YEARS COMMISSIONED SERVICE, AND, COUNTING HIS ACTIVE DUTY SINCE RETIREMENT, HE NOW HAS OVER 10 YEARS COMMISSIONED SERVICE. ACCORDINGLY, HE NOW MAY BE PAID RETIRED PAY BASED ON THE HIGHEST PAY OF HIS GRADE AS A COMMISSIONED WARRANT OFFICER WITH OVER 10 YEARS COMMISSIONED SERVICE RETIRED PURSUANT TO THE ACT OF MAY 13, 1908, 35 STAT. 128, AFTER 30 YEARS SERVICE, IF HIS RETIRED PAY, THUS COMPUTED, EXCEEDS THAT TO WHICH HE IS ENTITLED INCIDENT TO HIS ADVANCEMENT AND RETIREMENT UNDER THE PROVISIONS OF THE SAID ACT OF JULY 24, 1941. SEE DECISION OF AUGUST 11, 1936, A- 67898.

THE FOURTH QUESTION PRESENTED IS STATED AS FOLLOWS:

A LIEUTENANT OF THE REGULAR NAVY WITH 12 YEARS AND 4 MONTHS COMMISSIONED SERVICE WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 1453 REVISED STATUTES FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY ON OCTOBER 1, 1931. HE WAS CALLED TO ACTIVE DUTY ON DECEMBER 15, 1939 AND ON FEBRUARY 26, 1942, WAS TEMPORARILY PROMOTED TO THE RANK OF LIEUTENANT COMMANDER. UNDER THE DECISION OF JANUARY 19, 1943 (22 COMP. GEN. 664), THIS OFFICER IS ENTITLED TO COUNT COMMISSIONED SERVICE WHILE ON THE RETIRED LIST FROM OCTOBER 1, 1931 TO DECEMBER 15, 1939, IN THE COMPUTATION OF LONGEVITY AND PERIOD PAY INCREASES WHICH ENTITLED HIM TO THE PAY OF THE FOURTH PAY PERIOD PLUS LONGEVITY INCREASE OF 35 PERCENT. THIS OFFICER WAS PLACED ON THE RETIRED LIST ON FEBRUARY 1, 1943 UNDER THE PROVISIONS OF SECTION 8 (C) AND (E) OF REFERENCE (A) FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY WHILE SERVING IN A HIGHER RANK. IS SUCH OFFICER ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING WHEN PLACED ON THE RETIRED LIST ON FEBRUARY 1, 1943, OR UNDER THE PROVISIONS OF SECTION 15 OF REFERENCE (A) IS HE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE PAY PRESCRIBED FOR LIEUTENANT COMMANDER WITH OVER 15 YEARS' SERVICE (TOTAL OF ACTIVE COMMISSIONED SERVICE PRIOR AND SUBSEQUENT TO TRANSFER TO THE RETIRED LIST) FOR PAY PURPOSES?

SECTION 8 (C) OF THE ACT OF JULY 24, 1941, QUOTED ABOVE, PROVIDES THAT AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY "AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.'

SECTIONS 8 (E) AND 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 605, PROVIDE:

(E) THE BENEFITS OF THIS SECTION SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY IN THE LINE OF DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. IN THE CASE OF THOSE OFFICERS TO WHOM SUBSECTION (C) HEREOF IS APPLICABLE RETIREMENT IN THE NEXT HIGHER RANK SHALL BE EFFECTED UPON A FINDING BY A NAVAL RETIRING BOARD THAT THE DISABILITY WAS INCIDENT TO THE SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER RANK AND UPON A RATING BY SUCH BOARD, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY. IN ALL OTHER CASES OFFICERS SHALL BE RETIRED IN ACCORDANCE WITH EXISTING LAW PROVIDING FOR THE RETIREMENT OF OFFICERS.

SEC. 10. PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL SHALL, UNLESS OTHERWISE PROVIDED HEREIN, REVERT TO THEIR PERMANENT GRADES, RANKS, OR RATINGS, BUT UPON BEING SUBSEQUENTLY RETIRED OR IN THE CASE OF RETIRED OFFICERS RETURNED TO AN INACTIVE STATUS, THEY SHALL, ON CONDITION THAT THEIR PERFORMANCE OF DUTY UNDER SUCH TEMPORARY APPOINTMENTS HAS BEEN SATISFACTORY, BE PLACED ON THE RETIRED LIST, OR ADVANCED THEREON AS THE CASE MAY BE, WITH THE HIGHEST RANK HELD BY THEM WHILE ON ACTIVE DUTY: PROVIDED, THAT EXCEPT WHERE SPECIFIC PROVISION IS MADE OTHERWISE, THEIR RETIRED PAY SHALL BE BASED ON THE PAY OF THE RANK OR RATING HELD AT THE TIME OF RETIREMENT: PROVIDED, FURTHER, THAT NOTHING IN THIS ACT SHALL ENTITLE SUCH PERSONNEL, WHEN RECALLED TO ACTIVE DUTY, TO ANY OTHER RANK OR RATING THAN THAT IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT.

THE LAST SENTENCE OF SECTION 8 (E) LENDS SUPPORT TO THE VIEW, IF SUCH WERE NECESSARY, THAT THE RETIREMENT PAY BENEFITS INTENDED TO BE CONFERRED UPON RETIRED OFFICERS WHO ARE ADVANCED ON THE RETIRED LIST FOR PHYSICAL DISABILITY UNDER SECTION 8 (C), WITH 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH ENTITLED WHILE SERVING IN THEIR HIGHER TEMPORARY RANK, ARE SPECIFIC AND ARE NOT SUBJECT TO THE LIMITATIONS CONTAINED IN THE GENERAL PROVISION OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WHICH AUTHORIZES INCREASES IN RETIRED PAY ONLY FOR ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT. THE FACTS STATED IN THIS CASE INDICATE THAT THE OFFICER, PREVIOUSLY RETIRED AS A LIEUTENANT FOR PHYSICAL DISABILITY, UPON CALL TO ACTIVE DUTY ON DECEMBER 15, 1939, HAD COMPLETED 12 YEARS AND 4 MONTHS COMMISSIONED SERVICE, AND UNDER THE PROVISIONS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, SUPRA, HE WAS ENTITLED TO BE CREDITED WITH 9 YEARS, 2 MONTHS AND 15 DAYS INACTIVE TIME ON THE RETIRED LIST FOR THE PURPOSE OF COMPUTING HIS ACTIVE DUTY PAY AND ALLOWANCES WHILE SERVING IN HIS TEMPORARY RANK OF LIEUTENANT COMMANDER, 22 COMP. GEN. 664. THE RESULTING INCREASE IN HIS ACTIVE DUTY PAY WAS PURSUANT TO A PERMANENT PAY PROVISION IN THE SAID PAY READJUSTMENT ACT, AS AMENDED, AND, THUS, WAS A PART OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THE TEMPORARY RANK ON WHICH RETIREMENT PAY IS AUTHORIZED TO BE COMPUTED. GIVING EFFECT NOT ONLY TO THE PROVISIONS OF SECTIONS 15 AND 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, BUT, ALSO, TO THE EVIDENT PURPOSE AND INTENT OF SECTION 8 (C) OF THE ACT OF JULY 24, 1941, THE CONCLUSION APPEARS TO BE CLEAR THAT THIS OFFICER'S RETIRED PAY, EFFECTIVE FROM FEBRUARY 1, 1943, IS FOR COMPUTATION AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THE TEMPORARY RANK OF LIEUTENANT COMMANDER, INCLUDING THAT PART OF SUCH ACTIVE DUTY PAY WHICH RESULTED FROM COUNTING INACTIVE SERVICE ON THE RETIRED LIST PRIOR TO HIS RECALL TO ACTIVE DUTY AND TEMPORARY APPOINTMENT TO SUCH HIGHER RANK.

THE FIFTH QUESTION IS STATED AS FOLLOWS:

A CHIEF PETTY OFFICER, WITH OVER 18 YEARS OF ENLISTED SERVICE, WAS APPOINTED A TEMPORARY COMMISSIONED WARRANT OFFICER EFFECTIVE AUGUST 1, 1942. UNDER THE PROVISIONS OF PUBLIC LAW 777 OF NOVEMBER 30, 1942 HE HAS BEEN CREDITED WITH THE PAY OF A WARRANT OFFICER WITH EQUIVALENT LENGTH OF SERVICE OR $2,340 PER ANNUM. HE IS TO BE PLACED ON THE RETIRED LIST ON MARCH 1, 1943 UNDER THE PROVISIONS OF SECTION 8 (A) OF REFERENCE (A). SUCH OFFICER ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING AT TIME OF RETIREMENT, AND MAY HE CONTINUE TO DRAW RETIRED PAY AT THAT RATE WHEN TEMPORARY APPOINTMENT AUTHORIZED BY REFERENCE (A) ORDINARILY EXPIRES BY LIMITATION ON THE BASIS THAT TRANSFER TO THE RETIRED LIST IN HIS TEMPORARY RANK IS TANTAMOUNT TO PERMANENT PROMOTION TO THAT RANK? IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT IF ENTITLED ONLY TO RETIRED PAY COMPUTED ON THE BASIS OF A CHIEF WARRANT OFFICER WITH EQUIVALENT LENGTH OF SERVICE, HIS RETIRED PAY WOULD BE REDUCED FROM $1,755 TO $1,575 PER ANNUM.

SECTION 8 (A) OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDES THAT AN OFFICER OR ENLISTED MAN RETIRED UNDER THE CONDITIONS RECITED THEREIN SHALL BE RETIRED IN HIS TEMPORARY HIGHER RANK WITH RETIRED PAY "AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.' THUS THE RETIRED PAY TO WHICH A TEMPORARY COMMISSIONED WARRANT OFFICER APPOINTED FROM A PERMANENT ENLISTED GRADE IS ENTITLED UNDER SECTION 8 (A) IS NOT NECESSARILY THE PERCENTUM OF THE ACTIVE DUTY PAY OF THE TEMPORARY RANK IN WHICH SERVING BUT IS 75 PERCENTUM OF THE ACTIVE DUTY PAY "TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK," WHICH MIGHT BE THE PERMANENT PAY OF THAT RANK OR THE PERMANENT PAY OF SOME OTHER RANK AUTHORIZED BY LAW UNDER THE CIRCUMSTANCES.

SECTION 7 (A) OF THE SAID ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, PROVIDES, IN PERTINENT PART:

* * * THAT ENLISTED MEN WHO ARE TEMPORARILY APPOINTED TO COMMISSIONED RANK UNDER THE AUTHORITY OF THIS ACT SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF WARRANT OFFICERS WITH EQUIVALENT SERVICE OR TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED, WHICHEVER IS THE GREATER * * *.

WHILE THE ACTIVE DUTY RANK CONFERRED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, WHETHER BY REASON OF AN ORIGINAL TEMPORARY APPOINTMENT OR BY PROMOTION FROM A LOWER RANK OR GRADE, IS TEMPORARY IN CHARACTER, RETIREMENT UNDER THE PROVISIONS OF THE ACT ENTITLES THE PERSON SO RETIRED TO RETIRED PAY INDEFINITELY. SEE IN THIS CONNECTION THE PROVISIONS OF SECTION 10. SINCE THE PERSON REFERRED TO IN THIS QUESTION WAS ENTITLED UNDER THE QUOTED PROVISION OF AMENDED SECTION 7 (A) TO THE HIGHER PAY OF A WARRANT OFFICER WHILE SERVING AS A TEMPORARY COMMISSIONED WARRANT OFFICER, HE IS ENTITLED UPON RETIREMENT UNDER SECTION 8 (A) OF THE ORIGINAL ACT TO 75 PERCENTUM OF SUCH HIGHER PAY.