B-47660, JUNE 26, 1945, 24 COMP. GEN. 934

B-47660: Jun 26, 1945

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT TO BE REGARDED AS HAVING BEEN "RETIRED" WITHIN THE CONTEMPLATION OF THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23. THE EFFECTIVE DATE OF SEPARATION IS THE DATE STATED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WHICH THE PRESIDENT APPROVES. THE ONE YEAR'S PAY IS TO BE COMPUTED ON THE BASIS OF THE OFFICER'S LENGTH OF SERVICE AS OF SUCH EFFECTIVE DATE. 16 COMP. IS WHOLLY RETIRED FROM SERVICE UNDER SECTION 1454. GEN. 187 IS APPLICABLE IN DETERMINING THE RATE OF PAY (BASE PAY PLUS LONGEVITY) TO BE USED IN COMPUTING ONE YEAR'S PAY IN THE CASE OF AN OFFICER WHOLLY RETIRED UNDER THE PROVISIONS OF SECTION 1454. THAT HE WAS WHOLLY RETIRED WITH ONE YEAR'S PAY EFFECTIVE FEBRUARY 1.

B-47660, JUNE 26, 1945, 24 COMP. GEN. 934

NAVY OFFICERS WHOLLY RETIRED - ONE YEAR'S PAY THE ONE YEAR'S "PAY" AUTHORIZED BY SECTION 1454, REVISED STATUTES, TO BE PAID TO NAVY OFFICERS WHOLLY RETIRED FROM THE SERVICE ON ACCOUNT OF INCAPACITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE DOES NOT INCLUDE THE RENTAL AND SUBSISTENCE ALLOWANCES AUTHORIZED UNDER SECTIONS 4 AND 5 OF THE PAY READJUSTMENT ACT OF 1942. A NAVY OFFICER "WHOLLY RETIRED FROM SERVICE" UNDER SECTION 1454, REVISED STATUTES, FOR DISABILITY NOT RESULTING FROM ANY INCIDENT OF THE SERVICE, WITH ONE YEAR'S PAY, IS NOT TO BE REGARDED AS HAVING BEEN "RETIRED" WITHIN THE CONTEMPLATION OF THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23, 1930, SO AS TO REQUIRE THAT SUCH SEPARATION BE POSTPONED TO THE FIRST DAY OF THE SUCCEEDING MONTH: IN THE CASE OF A NAVY OFFICER WHOLLY RETIRED UNDER SECTION 1454, REVISED STATUTES, FOR DISABILITY NOT RESULTING FROM ANY INCIDENT OF THE SERVICE, WITH ONE YEAR'S PAY, THE EFFECTIVE DATE OF SEPARATION IS THE DATE STATED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WHICH THE PRESIDENT APPROVES, RATHER THAN THE DATE THE PRESIDENT AFFIXES HIS SIGNATURE, AND THE ONE YEAR'S PAY IS TO BE COMPUTED ON THE BASIS OF THE OFFICER'S LENGTH OF SERVICE AS OF SUCH EFFECTIVE DATE. 16 COMP. GEN. 187; 17 ID. 883, AND 19 ID. 968, OVERRULED. THE ONE YEAR'S PAY TO BE PAID TO AN OFFICER OF THE REGULAR NAVY WHO, WHILE TEMPORARILY SERVING IN A HIGHER RANK UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, IS WHOLLY RETIRED FROM SERVICE UNDER SECTION 1454, REVISED STATUTES, FOR DISABILITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, WHOULD BE COMPUTED ON THE BASIS OF THE PAY OF HIS PERMANENT RANK, AND NOT THAT OF HIS TEMPORARY RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 26, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 7, 1945 (FILE JAG:II:WJG:ZL16-4 (21) ( OR), WHICH ENCLOSURE FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION ON QUESTIONS PRESENTED THEREIN AS FOLLOWS:

(A) WHETHER THE TERM "ONE YEAR'S PAY," AS USED IN SECTION 1454, REVISED STATUTES (34 U.S.C. 418), INCLUDES INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AUTHORIZED BY SECTIONS 4 AND 5 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C., SUPP. III, 104, 105/?

(B) WHETHER THE RULING IN 16 COMP. GEN. 187 IS APPLICABLE IN DETERMINING THE RATE OF PAY (BASE PAY PLUS LONGEVITY) TO BE USED IN COMPUTING ONE YEAR'S PAY IN THE CASE OF AN OFFICER WHOLLY RETIRED UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, SUPRA?

(C) IN THE HYPOTHETICAL CASE REFERRED TO IN THE ENCLOSURE, ASSUMING THAT THE PRESIDENT APPROVED THE REPORT OF THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN THE CASE MENTIONED IN THE ENCLOSURE ON JANUARY 28, 1945, THAT THE OFFICER COMPLETED ANOTHER INCREMENT OF SERVICE FOR PAY PURPOSES ON JANUARY 30, 1945, AND THAT HE WAS WHOLLY RETIRED WITH ONE YEAR'S PAY EFFECTIVE FEBRUARY 1, 1945, WOULD PAY BE COMPUTED ON THE BASIS OF THE OFFICER'S PERMANENT OR TEMPORARY RANK WITH OVER SIX YEARS' SERVICE, OR WITH OVER NINE YEARS' SERVICE.

THE ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IS AS FOLLOWS: REF: (A) SECTION 1454, REVISED STATUTES (34 U.S. CODE, 418).

(B) DECISION OF COMPTROLLER GENERAL A-22344, DATED 3 MAY 1928

(7 COMP. GEN. 691).

(C) ACT OF APRIL 23, 1930 (46 STAT. 253).

(D) ACT OF JULY 24, 1941, AS AMENDED.

(E) ACT OF FEBRUARY 6, 1942 (56 STAT. 48). ENCL (A) COPY OF BUPERS LTR, PERS-3254-ICP OVER 87279.

1. REF (A) PROVIDES THAT WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DETERMINE.

2. IN VIEW OF THE RULING IN REF (B) AND DECISIONS CITED THEREIN CONSTRUING PROVISIONS OF SECTIONS 1252 AND 1275, REVISED STATUTES, AND 10 U.S.C. 571, IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER THE TERM "ONE YEAR'S PAY," AS USED IN REF (A), INCLUDES INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AUTHORIZED BY SECTIONS 4 AND 5 OF THE PAY READJUSTMENT ACT OF 1942.

3. TEMPORARY APPOINTMENTS TO HIGHER RANK MADE UNDER THE PROVISIONS OF SECTIONS 2 AND 3 OF REF (D) REMAIN IN EFFECT FOR THE PERIOD SPECIFIED IN SECTION 10 THEREOF UNLESS SOONER TERMINATED BY THE APPOINTIVE AUTHORITY. THERE IS NOW PENDING THE QUESTION OF WHETHER AN OFFICER WHOLLY RETIRED WHILE HOLDING A TEMPORARY APPOINTMENT TO HIGHER RANK IS ENTITLED TO ONE YEAR'S PAY COMPUTED ON THE BASIS OF THE PAY PRESCRIBED FOR HIS PERMANENT RANK OR TEMPORARY RANK. THE CASE IN POINT INVOLVES AN OFFICER WHO ACCEPTED AN APPOINTMENT AS ASSISTANT DENTAL SURGEON WITH THE RANK OF LIEUTENANT (JG) IN THE U.S. NAVY ON 2 OCT 1940, WAS TEMPORARILY APPOINTED A PASSED ASSISTANT DENTAL SURGEON WITH THE RANK OF LIEUTENANT EFFECTIVE 12 FEB 1942, AND WAS TEMPORARILY APPOINTED A DENTAL SURGEON WITH THE RANK OF LIEUTENANT COMMANDER EFFECTIVE 28 AUG. 1943. THIS OFFICER, WHO IS TO BE WHOLLY RETIRED ON 1 FEB 1945 (REF (C) (, HAS OVER 6 YEARS SERVICE WHICH HE IS ENTITLED TO COUNT FOR PAY PURPOSES, AND, IRRESPECTIVE OF THE INTERMEDIATE DATE IN JANUARY 1945 ON WHICH THE PRESIDENT APPROVES THE PROCEEDINGS OF THE RETIRING BOARD, HE WILL NOT COMPLETE ANOTHER INCREMENT OF SERVICE.

4. IN VIEW OF THE FACT THAT AN OFFICER WHOLLY RETIRED UNDER THE PROVISIONS OF REF (A) IS RETIRED FOR PHYSICAL DISABILITY, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL ALSO BE REQUESTED TO RENDER A DECISION AS TO WHETHER THE RULING IN 16 COMP. GEN. 187 IS APPLICABLE IN DETERMINING THE RATE OF PAY (BASE PAY PLUS LONGEVITY) TO BE USED IN COMPUTING ONE YEAR'S PAY IN THE CASE OF AN OFFICER WHOLLY RETIRED UNDER THE PROVISIONS OF REF (A). ASSUMING THAT THE PRESIDENT APPROVED THE REPORT OF THE PROCEEDINGS OF THE RETIRING BOARD ON 28 JAN. 1945, THE OFFICER COMPLETES ANOTHER INCREMENT OF SERVICE FOR PAY PURPOSES ON 30 JAN 1945, AND IS WHOLLY RETIRED WITH ONE YEAR'S PAY EFFECTIVE 1 FEB. 1945. THAT CASE, WOULD PAY BE COMPUTED ON THE BASIS OF THE OFFICER'S PERMANENT OR TEMPORARY RANK WITH OVER 6 YEARS' SERVICE, OR WITH OVER 9 YEARS' SERVICE?

SECTION 1454, REVISED STATUTES (34 U.S.C. 418), APPLICABLE TO OFFICERS OF THE NAVY, PROVIDES AS FOLLOWS:

WHEN SAID BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DETERMINE.

IN THE DECISION OF MAY 3, 1928, 7 COMP. GEN. 691, REFERRED TO BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, THERE WAS CONSIDERED THE CLAIM OF ROBERT W. MILLER, A FORMER SECOND LIEUTENANT, U.S. ARMY, FOR ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCE IN ADDITION TO THE ONE YEAR'S "PAY" WHICH HE HAD RECEIVED UNDER SECTIONS 1252 AND 1275, REVISED STATUTES, WHICH PROVIDE THAT OFFICERS WHOLLY RETIRED FROM THE ARMY BECAUSE OF AN INCAPACITY THAT IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE SHALL BE ENTITLED TO ONE YEAR'S "PAY AND ALLOWANCES.' THE DISALLOWANCE OF HIS CLAIM FOR RENTAL AND SUBSISTENCE ALLOWANCE WAS SUSTAINED IN THE DECISION OF MAY 3, 1928, PRIMARILY FOR THE REASONS THAT THE PROVISION IN SECTION 1275, REVISED STATUTES, RESPECTING PAYMENT OF ONE YEAR'S "PAY AND ALLOWANCES" ORIGINATED IN THE ACT OF AUGUST 3, 1861, 12 STAT. 290, AND CONTEMPLATED THE PAYMENT OF PAY AND ALLOWANCES THEN PROVIDED FOR OFFICERS OF THE ARMY, WHICH INCLUDED RATIONS, LONGEVITY RATIONS, PAY AND CLOTHING FOR SERVANTS, ETC.; THAT BY THE ACT OF JULY 15, 1870, 16 STAT. 320, A NEW PAY SCALE WAS ADOPTED FOR THE ARMY WHICH SPECIFICALLY PROVIDED THAT THE ANNUAL RATES OF PAY THEREIN ESTABLISHED SHOULD "BE IN FULL OF ALL COMMUTATION OF QUARTERS, FUEL, FORAGE, SERVANTS' WAGES AND CLOTHING, LONGEVITY, RATIONS, AND ALL ALLOWANCES OF EVERY NAME AND NATURE WHATEVER," AND THAT THEREAFTER SECTION 1275, REVISED STATUTES, HAD BEEN CONSTRUED AS AUTHORIZING THE PAYMENT OF ONE YEAR'S PAY, ONLY. SEE 7 COMP. DEC. 598, AND 8 ID. 737. THAT DECISION SUGGESTED THE POSSIBILITY, MOREOVER, THAT SECTION 1275, REVISED STATUTES, HAD BEEN REPEALED BY A PROVISION IN SECTION 24 (B) OF THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT. 759, 773, AUTHORIZING ONE YEAR'S "PAY" UPON DISCHARGE FROM THE ARMY UNDER CERTAIN CONDITIONS. THEREAFTER, MR. MILLER FILED SUIT IN THE COURT OF CLAIMS FOR THE RECOVERY OF ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCE AND, IN AN OPINION DATED MAY 5, 1930 ( MILLER V. UNITED STATES, 69 C.1CLS. 750), THE COURT CONCLUDED THAT SECTION 24 (B) OF THE SAID 1920 STATUTE COVERS THE DISCHARGE OF INEFFICIENT OFFICERS AND HAS NO APPLICATION TO OFFICERS WHOLLY RETIRED UNDER SECTION 1275, REVISED STATUTES, FOR PHYSICAL DISABILITY NOT INCIDENT TO THE SERVICE, AND THAT AN OFFICER RETIRED UNDER THE LATTER SECTION IS ENTITLED TO THE PAYMENT OF ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCE IN ADDITION TO ONE YEAR'S PAY. SEE, ALSO, 10 COMP. GEN. 523, WHERE THE SAID DECISION OF THE COURT OF CLAIMS WAS FOLLOWED BY THIS OFFICE.

SECTIONS 1275 AND 1454, REVISED STATUTES, APPLICABLE TO OFFICERS OF THE ARMY AND NAVY, RESPECTIVELY, WERE DERIVED FROM THE ACT OF AUGUST 3, 1861, SUPRA, THE FORMER FROM SECTION 17, 12 STAT. 289, AND THE LATTER FROM SECTION 23 OF THE SAID ACT, 12 STAT. 291, AND EACH SECTION COVERS CASES OF OFFICERS "WHOLLY RETIRED" FOR INCAPACITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE. HOWEVER, SECTION 1275, REVISED STATUTES, APPLICABLE TO THE NAVY, AUTHORIZES PAYMENT OF ONE YEAR'S ,PAY" ONLY. AS INDICATED ABOVE, WHEN THE ACT OF AUGUST 3, 1861, WAS ENACTED, OFFICERS OF THE ARMY WERE ENTITLED TO AN ALLOWANCE FOR RATIONS, LONGEVITY RATIONS, PAY AND CLOTHING FOR SERVANTS, ETC. PRIOR TO THE ACT OF MARCH 3, 1835, 4 STAT. 755, FIXING (AND INCREASING) ANNUAL RATES OF PAY FOR OFFICERS AND PERSONNEL OF THE NAVY, NAVAL OFFICERS LIKEWISE WERE ENTITLED TO CERTAIN ALLOWANCES IN ADDITION TO THEIR PAY UNDER SPECIFIED CONDITIONS; BUT SECTION 2 OF THE SAID ACT, 4 STAT. 757, EXPRESSLY PROVIDED THAT THEREAFTER NO ALLOWANCES SHOULD BE MADE TO AN OFFICER OF THE NAVY FOR RENT OF QUARTERS, LIGHT, FUEL, TRANSPORTATION OF BAGGAGE, PAY OF SERVANTS, RENT OF FURNITURE, ETC., AND THAT THE YEARLY AMOUNT THEREIN AUTHORIZED SHOULD BE ALL THE "PAY, COMPENSATION, AND ALLOWANCE THAT SHALL BE RECEIVED UNDER ANY CIRCUMSTANCES WHATEVER," EXCEPT MILEAGE WHEN TRAVELING UNDER ORDERS. THAT PROHIBITION AS TO THE PAYMENT OF ALLOWANCES CONTINUED IN EFFECT UNTIL THE PASSAGE OF THE ACT OF APRIL 17, 1866, 14 STAT. 38, SECTION 4 OF WHICH EXPRESSLY REPEALED SO MUCH OF SECTION 2 OF THE ACT OF MARCH 3, 1835, AS PROHIBITED THE PAYMENT OF ANY ALLOWANCES FOR RENT OF QUARTERS, FURNITURE, OR FOR LIGHTS, FUEL OR TRANSPORTATION OF BAGGAGE. THUS, IT IS APPARENT THAT THE OMISSION OF ANY REFERENCE TO ALLOWANCES IN SECTION 23 OF THE ACT OF AUGUST 3, 1861, FROM WHICH SECTION 1454, REVISED STATUTES, WAS DERIVED, MERELY WAS IN CONFORMITY WITH THEN EXISTING LAW WHICH PROHIBITED THE PAYMENT OF ALLOWANCES TO OFFICERS OF THE NAVY. THE FACT THAT THE RIGHT TO CERTAIN ALLOWANCES SUBSEQUENTLY WAS RESTORED TO NAVAL OFFICERS BY THE SAID ACT OF APRIL 17, 1866, DID NOT OPERATE, OF COURSE, TO ENTITLE SUCH OFFICERS TO THE PAYMENT OF ONLY "ONE YEAR'S PAY," AND SUCH PROVISION IS CONTROLLING UNLESS IT MAY BE CONSIDERED THAT NAVY OFFICERS WHOLLY RETIRED FROM SERVICE PURSUANT TO THAT SECTION ARE ENTITLED TO ONE YEAR'S "PAY AND ALLOWANCES" BY VIRTUE OF SOME STATUTORY PROVISION ASSIMILATING THE PAY AND ALLOWANCES OF OFFICERS OF THE NAVY WITH THOSE OF OFFICERS OF THE ARMY.

IN THAT CONNECTION, SECTION 13 OF THE NAVY PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1007, PROVIDED THAT COMMISSIONED OFFICERS OF THE LINE OF THE NAVY SHOULD RECEIVE THE SAME PAY AND ALLOWANCES, EXCEPT FORAGE, AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR OFFICERS OF CORRESPONDING RANK IN THE ARMY. IN CONSIDERING THE EFFECT OF THAT PROVISION UPON SECTION 1454, REVISED STATUTES, THE SUPREME COURT OF THE UNITED STATES ( HANNUM V. UNITED STATES, 226 U.S. 436) CONCLUDED THAT THE ASSIMILATING PROVISIONS OF SECTION 13 OF THE 1899 ACT APPLIED ONLY TO THE PAY AND ALLOWANCES OF OFFICERS ON THE ACTIVE LIST OF THE NAVY AND DID NOT REPEAL THE PRIOR LAW RESPECTING THE PAY OF THAT PARTICULAR CLASS OF OFFICERS COMPULSORILY RETIRED UNDER SECTION 1454, REVISED STATUTES, TO THE RIGHTS BESTOWED UPON ARMY OFFICERS RETIRED UNDER SECTION 1275, REVISED STATUTES, AND NO OTHER STATUTE HAVING THAT EFFECT HAS BEEN CITED OR FOUND.

IT WILL BE NOTED THAT VARIOUS STATUTES HAVE BEEN ENACTED AUTHORIZING THE PAYMENT OF ONE OR TWO YEARS'"PAY" TO NAVAL OFFICERS UPON DISCHARGE UNDER CERTAIN CONDITIONS. FOR EXAMPLE, SEE SECTION 1505, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 11, 1912, 37 STAT. 73, PROVIDING FOR THE PAYMENT OF ONE YEAR'S PAY TO CERTAIN NAVAL OFFICERS "DROPPED" FROM THE SERVICE UPON BEING FOUND NOT PROFESSIONALLY QUALIFIED; SECTION 2 OF THE ACT OF MAY 6, 1932, 47 STAT. 149 (34 U.S.C. 403), AUTHORIZING THE REVOCATION OF ALL COMMISSIONS ISSUED AFTER MAY 6, 1932, WITHIN TWO YEARS FROM THE DATE OF SUCH COMMISSIONS, AND PROVIDING FOR THE "DISCHARGE" WITH NOT MORE THAN ONE YEAR'S PAY TO ALL SUCH OFFICERS WHOSE COMMISSIONS ARE SO REVOKED; AND SECTION 12 OF THE ACT OF JUNE 23, 1938, 52 STAT. 949 (34 U.S.C. 404), PROVIDING FOR THE "HONORABLE DISCHARGE" OF NAVAL OFFICERS UNDER CERTAIN CONDITIONS WITH ONE OR TWO YEARS' PAY. THUS, IT APPEARS TO HAVE BEEN THE CONSISTENT LEGISLATIVE POLICY, WITH RESPECT TO NAVAL OFFICERS "DISCHARGED," "DROPPED," ET CETERA, FROM THE SERVICE, TO RESTRICT PAYMENT TO ONE OR TWO YEARS'"PAY," WITH NO PROVISION FOR THE PAYMENT OF ANY ALLOWANCES. SEE, ALSO, THE ACT OF FEBRUARY 6, 1942, 56 STAT. 48, PROHIBITING PAYMENT OF ALLOWANCES TO NAVAL OFFICERS ON THE "RETIRED LIST" WHEN NOT EMPLOYED ON ACTIVE DUTY; AND BYRD V. UNITED STATES, COURT OF CLAIMS NO. 45887, DECIDED MARCH 5, 1945. IT IS WELL SETTLED THAT THE WORD "PAY" GENERALLY IS TO BE UNDERSTOOD AS MEANING REGULAR COMPENSATION AS DISTINGUISHED FROM ALLOWANCES, COMMUTATION OF RATIONS, OR OTHER EMOLUMENTS NOT SPECIFICALLY DESCRIBED AS PAY. SEE UNITED STATES V. LANDERS, 92 U.S. 77, 80; UNITED STATES V. MILLS, 197 U.S. 223; KOGEL V. MCGOLDBRICK, 45 N.E.2D 817. HENCE, IT MUST BE CONCLUDED THAT THE ONE YEAR'S "PAY" AUTHORIZED UNDER SECTION 1454, REVISED STATUTES, DOES NOT INCLUDE THE RENTAL AND SUBSISTENCE ALLOWANCE AUTHORIZED UNDER SECTIONS 4 AND 5 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE. IN THE DECISION OF AUGUST 27, 1936, 16 COMP. GEN. 187, REFERRED TO IN QUESTION (B), IT WAS HELD, IN EFFECT, THAT A MARINE CORPS OFFICER RETIRED UNDER SECTION 1453, REVISED STATUTES, FOR PHYSICAL DISABILITY INCIDENT TO THE SERVICE, PASSED FROM THE ACTIVE LIST TO THE RETIRED LIST ON THE DATE THE PRESIDENT APPROVED THE FINDING OF THE NAVAL RETIRING BOARD--- NOT ON THE SUBSEQUENT DATE SET FORTH IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY--- AND THAT, SINCE RETIREMENT OTHERWISE WOULD HAVE OCCURRED BUT FOR THE ACT OF APRIL 23, 1930, 46 STAT. 253, ON APRIL 15, 1936--- THE DATE OF APPROVAL OF THE BOARD'S FINDING BY THE PRESIDENT--- THE OFFICER WAS NOT ENTITLED, IN THE COMPUTATION OF LONGEVITY PAY, TO HAVE CREDIT FOR THE TIME BETWEEN APRIL 15, 1936, AND JUNE 1, 1936, THE DATE STATED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY. SEE, ALSO, 17 COMP. GEN. 883, AND 19 ID. 968. THE SAID ACT OF APRIL 23, 1930, PROVIDES:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, IN SO FAR AS IN CONFLICT HEREWITH, ARE REPEALED.

WHILE, SAID ACT OF APRIL 23, 1930, PERTAINS TO THE "RETIREMENT" OF CIVIL, MILITARY, NAVAL, AND OTHER PERSONNEL FOR WHATEVER CAUSE "RETIRED," IT DOES NOT FOLLOW THAT OFFICERS OF THE NAVY "WHOLLY RETIRED" UNDER SECTION 1454, REVISED STATUTES, WITH ONE YEAR'S PAY, ARE TO BE REGARDED AS WITHIN THE CONTEMPLATION OF THE SAID ACT. IN DECISION OF DECEMBER 15, 1921, 1 COMP. GEN. 326, WITH RESPECT TO NAVAL OFFICERS "DROPPED" FROM THE SERVICE AND PAID ONE YEAR'S PAY UNDER SECTION 1505, REVISED STATUTES, AS AMENDED, IT WAS STATED THAT SUCH AN OFFICER "IS NOT RETIRED AND THEREFORE THE ONE YEAR'S PAY TO WHICH HE IS ENTITLED IS NOT RETIRED PAY.' IN DENBY V. BERRY, 263 U.S. 29, 35, IN DISTINGUISHING BETWEEN AN OFFICER "RETIRED" AND ONE "WHOLLY RETIRED," IT WAS STATED---

TO BE RETIRED FROM ACTIVE SERVICE UNDER THE SECTIONS FROM 1448 TO 1455, REV. STATS., INCLUSIVE, MEANS RETIRED WITH PAY AND HAS HAD THIS MEANING FOR MANY YEARS. BROWN V. UNITED STATES, 113 U.S. 568, 572. TO BE WHOLLY RETIRED MEANS TO BE REMOVED FROM THE SERVICE ENTIRELY ON PAYMENT OF A LUMP SUM AND TO BECOME A CIVILIAN. MILLER V. UNITED STATES, 19 CT.1CLMS. 338, 353; 29 OPS. ATTY. GEN. 401. * * *

THUS, IT WOULD APPEAR THAT AN OFFICER "WHOLLY RETIRED FROM SERVICE" UNDER SECTION 1454, REVISED STATUTES, IS NOT "RETIRED" WITHIN THE CONTEMPLATION OF THE ACT OF APRIL 23, 1930, SUPRA, AND THERE WOULD BE NO NECESSITY OR OCCASION TO POSTPONE SUCH SEPARATION TO THE FIRST DAY OF A SUCCEEDING MONTH BY REASON OF THE PROVISIONS OF THAT ACT. MOREOVER, INSOFAR AS THE QUESTION OF CREDITING TIME BETWEEN THE DATE ON WHICH THE PRESIDENT APPROVES THE FINDING OF A NAVAL RETIRING BOARD AND THE DATE ON WHICH THE RETIREMENT IS STATED TO BE EFFECTIVE MAY BE INVOLVED, THE COURT OF CLAIMS CONSISTENTLY HAS HELD THAT WHERE AN EFFECTIVE DATE OF RETIREMENT OF AN OFFICER FOR PHYSICAL DISABILITY IS STATED IN THE RECOMMENDATION OF THE SECRETARY OF THE NAVY WHICH THE PRESIDENT * APPROVES, SUCH DATE, AND NOT THE DATE ON WHICH THE PRESIDENT AFFIXES HIS SIGNATURE, IS THE EFFECTIVE DATE OF RETIREMENT TO WHICH SERVICE MAY BE COUNTED FOR LONGEVITY AND OTHER PAY PURPOSES. SEE GREENWALD V. UNITED STATES, 88 C.CLS. 264; WADBROOK V. UNITED STATES, 90 ID. 480; BUTLER V. UNITED STATES, 91 ID. 88; HINES V. UNITED STATES, 95 ID. 156; MARSH V. UNITED STATES, 96 ID. 131; SCRATCHLEY V. UNITED STATES, 96 ID. 352. SINCE THE EFFECTIVE DATE IS NOT FIXED OTHERWISE BY LAW, THE SAME PRINCIPLES APPEAR EQUALLY APPLICABLE TO OFFICERS WHOLLY RETIRED FROM SERVICE UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, SUPRA. IN VIEW OF THE SAID DECISION OF THE COURT OF CLAIMS, THE DIFFERENT RULE IN THAT RESPECT APPLIED IN 16 COMP. GEN. 187, AND CERTAIN SUBSEQUENT DECISIONS OF THIS OFFICE WILL NOT BE FOLLOWED HEREAFTER. CONSEQUENTLY, YOUR QUESTION (B) IS ANSWERED IN THE NEGATIVE.

THE ACT OF JULY 24, 1941, 55 STAT. 603, 604, 605, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK," AS THE CASE MAY BE. * * * ** * * *

SEC. 3. OFFICERS ON THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS IN COMMISSIONED RANKS * * * MAY BE TEMPORARILY APPOINTED TO HIGHER RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS * * *. * * * * * * * *

SEC. 7. (A) 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 * * *. * *

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 OF 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. * * * * * * * *

(E) THE BENEFITS OF THIS SECTION SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. * * * IN ALL OTHER CASES OFFICES 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 * * *.

IN DECISION OF AUGUST 23, 1943, 23 COMP. GEN. 126, IT WAS HELD THAT AN OFFICER OF THE REGULAR NAVY WHO WAS TEMPORARILY APPOINTED TO A HIGHER RANK UNDER AUTHORITY OF THE SAID ACT OF JULY 24, 1941, AND WHO WAS RETIRED UNDER THE PROVISIONS OF SECTION 1453, REVISED STATUTES, FOR PHYSICAL DISABILITY INCIDENT TO THE SERVICE INCURRED PRIOR TO THE TEMPORARY APPOINTMENT, WAS NOT ENTITLED TO RETIRED PAY BASED ON THE PAY OF SUCH TEMPORARY RANK BUT TO THE RETIRED PAY PRESCRIBED FOR HIS PERMANENT RANK AND GRADE. IT WAS POINTED OUT IN THE DECISION THAT SECTION 8 (A) OF THE ACT, SUPRA, SPECIFICALLY RESTRICTS RETIREMENT IN THE HIGHER RANK, WITH RETIRED PAY BASED THEREON, IN THE CASE OF OFFICERS ON THE ACTIVE LIST SERVING UNDER A TEMPORARY APPOINTMENT, TO THOSE WHO INCUR DISABILITY WHILE SERVING IN SUCH HIGHER RANK, AND THAT SUCH PROVISION NECESSARILY CONTEMPLATES THAT OTHER OFFICERS WHO MAY BE RETIRED WHILE SERVING IN A HIGHER TEMPORARY RANK WILL BE RETIRED IN THEIR PERMANENT RANK WITH RETIRED PAY BASED THEREON. THE SAME PRINCIPLE WOULD SEEM CLEARLY TO APPLY TO OFFICERS WHOLLY RETIRED FROM SERVICE UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, WITH ONE YEAR'S PAY, FOR DISABILITY NOT INCIDENT TO THE SERVICE. THAT IS TO SAY, THE STATUTE MAY NOT BE VIEWED AS CONTEMPLATING PAYMENT ON THE BASIS OF THE HIGHER TEMPORARY RANK TO OFFICERS WHOLLY RETIRED FROM SERVICE BECAUSE OF DISABILITY NOT INCIDENT TO THE SERVICE, WHILE RESTRICTING RETIRED PAY TO THE BASIS OF THE PERMANENT RANK IN CASES WHERE THE DISABILITY WAS INCIDENT TO THE SERVICE BUT WAS INCURRED PRIOR TO THE TEMPORARY APPOINTMENT. IT IS TO BE NOTED, IN THAT CONNECTION, THAT SECTION 8 (E) OF THE ACT SPECIFICALLY PROVIDES THAT THE BENEFITS OF THAT SECTION--- RETIREMENT PAY BASED ON THE HIGHER RANK--- SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY "IN LINE OF DUTY," WHICH WOULD EXCLUDE OFFICERS WHOLLY RETIRED FROM SERVICE UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, FOR DISABILITY "NOT THE RESULT OF ANY INCIDENT OF THE SERVICE.' SEE, ALSO, THE DECISION OF DECEMBER 15, 1921, 1 COMP. GEN. 326, REFERRED TO ABOVE, WHERE IT WAS HELD THAT THE ONE YEAR'S PAY GRANTED OFFICERS OF THE NAVY WHEN DROPPED FROM THE SERVICE UNDER THE PROVISIONS OF SECTION 1505, REVISED STATUTES, FOR FAILURE TO QUALIFY PROFESSIONALLY FOR PROMOTION, IS TO BE COMPUTED AT THE RATE ATTACHING TO THE PERMANENT GRADE OF THE OFFICER AND NOT ON THE BASIS OF A HIGHER TEMPORARY RANK HELD AT THAT TIME. THERE WOULD APPEAR TO BE NO REASON FOR A DIFFERENT RULE WITH RESPECT TO AN OFFICER "WHOLLY RETIRED FROM SERVICE" UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES.

ACCORDINGLY, IN THE HYPOTHETICAL CASE REFERRED TO IN QUESTION (C), THE ONE YEAR'S PAY PROPERLY WOULD BE FOR COMPUTATION ON THE BASIS OF THE OFFICER'S PERMANENT GRADE OR RANK WITH OVER NINE YEARS' SERVICE.