B-50575, SEPTEMBER 20, 1945, 25 COMP. GEN. 281

B-50575: Sep 20, 1945

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" THE RETIRED PAY SHOULD BE COMPUTED ON THE ACTIVE-DUTY PAY TO WHICH THE OFFICER WAS ENTITLED AT THE TIME OF RETIREMENT. WHERE THE TEMPORARY APPOINTMENT WAS TERMINATED PRIOR TO THE DATE OF RETIREMENT. REAR ADMIRAL STEPHENSON WAS TEMPORARILY PROMOTED FROM HIS PERMANENT GRADE WITH THE RANK OF CAPTAIN. THE OFFICER'S TEMPORARY APPOINTMENT WITH THE RANK OF REAR ADMIRAL WAS TERMINATED BY REASON OF THE FACT THAT A BOARD OF MEDICAL SURVEY HAD REPORTED HIM UNFIT FOR ACTIVE DUTY AND. HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF REAR ADMIRAL. THE NAVAL RETIRING BOARD HAVING FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF " THROMBOSIS CORONARY ARTERY. " THAT SUCH INCAPACITY IS PERMANENT AND IS A RESULT OF AN INCIDENT OF THE SERVICE.

B-50575, SEPTEMBER 20, 1945, 25 COMP. GEN. 281

RETIRED PAY - TEMPORARILY PROMOTED NAVY OFFICERS RETIRED FOR DISABILITY UNDER SECTION 8 (A) OF THE ACT OF JULY 24, 1941, PROVIDING THAT A NAVAL OFFICER RETIRED FOR PHYSICAL DISABILITY INCURRED WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK SHALL RECEIVE RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH ENTITLED "WHILE SERVING IN THAT RANK," THE RETIRED PAY SHOULD BE COMPUTED ON THE ACTIVE-DUTY PAY TO WHICH THE OFFICER WAS ENTITLED AT THE TIME OF RETIREMENT, OR, WHERE THE TEMPORARY APPOINTMENT WAS TERMINATED PRIOR TO THE DATE OF RETIREMENT, ON THE ACTIVE- DUTY PAY AT THE TIME OF SUCH TERMINATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 20, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 14, 1945, REQUESTING A DECISION AS TO THE RETIRED PAY LEGALLY AUTHORIZED TO BE PAID REAR ADMIRAL CHARLES S. STEPHENSON, MEDICAL CORPS, USN, RETIRED, UNDER THE CIRCUMSTANCES HEREINAFTER STATED.

AS SHOWN BY THE ENCLOSURES ACCOMPANYING YOUR LETTER, REAR ADMIRAL STEPHENSON WAS TEMPORARILY PROMOTED FROM HIS PERMANENT GRADE WITH THE RANK OF CAPTAIN, MEDICAL CORPS, USN, TO BE A MEDICAL DIRECTOR WITH THE RANK OF REAR ADMIRAL, EFFECTIVE NOVEMBER 14, 1942, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 604, FOR TEMPORARY DUTY AS DIRECTOR OF THE UNITED STATES OF AMERICA TYPHUS COMMISSION, SUCH TEMPORARY APPOINTMENT TO TERMINATE UPON HIS DETACHMENT FROM DUTY AS SAID DIRECTOR. UNDER DATE OF OCTOBER 27, 1943, THE SECRETARY OF THE NAVY NOTIFIED REAR ADMIRAL STEPHENSON THAT ON AUGUST 6, 1943, HE BECAME ELIGIBLE TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464. NOVEMBER 23, 1943, THE OFFICER'S TEMPORARY APPOINTMENT WITH THE RANK OF REAR ADMIRAL WAS TERMINATED BY REASON OF THE FACT THAT A BOARD OF MEDICAL SURVEY HAD REPORTED HIM UNFIT FOR ACTIVE DUTY AND, ON NOVEMBER 1, 1944, HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF REAR ADMIRAL, THE NAVAL RETIRING BOARD HAVING FOUND THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF " THROMBOSIS CORONARY ARTERY; " THAT SUCH INCAPACITY IS PERMANENT AND IS A RESULT OF AN INCIDENT OF THE SERVICE; AND THAT IT WAS INCURRED "SUBSEQUENT TO NOVEMBER 17, 1942, THE EFFECTIVE DATE OF COMMENCEMENT OF SERVICE IN THE RANK OF REAR ADMIRAL, MEDICAL CORPS, U.S. NAVY, FOR TEMPORARY SERVICE, AND PRIOR TO NOVEMBER 28, 1943, THE DATE ON WHICH THIS TEMPORARY APPOINTMENT WAS TERMINATED.'

IT IS FURTHER STATED IN THE ENCLOSURE DATED MAY 28, 1945, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, FIELD BRANCH, CLEVELAND, OHIO, WITH RESPECT TO THE HOSPITALIZATION OF REAR ADMIRAL STEPHENSON WHILE SERVING UNDER HIS TEMPORARY APPOINTMENT AS DIRECTOR OF THE UNITED STATES OF AMERICA TYPHUS COMMISSION, AS WELL AS THEREAFTER, AS FOLLOWS:

ON 24 JANUARY 1943, REAR ADMIRAL STEPHENSON WAS ADMITTED TO THE HADASSAH MEDICAL ORGANIZATION AT JERUSALEM, WHERE HE REMAINED UNTIL 16 MARCH 1943, WHEN HE WAS TRANSFERRED TO THE 38TH GENERAL HOSPITAL. HE WAS EVACUATED BY SHIP TO AUSTRALIA, WAS THERE ADMITTED TO THE 118TH GENERAL HOSPITAL, AND TRANSFERRED FROM THAT PLACE TO WALTER REED HOSPITAL. REAR ADMIRAL STEPHENSON, ON 4 JANUARY 1944, WAS ADMITTED TO THE NAVAL HOSPITAL, BETHESDA, MD., FROM WALTER REED GENERAL HOSPITAL, AND WAS DISCHARGED FROM THE NAVAL HOSPITAL, BETHESDA, MD. ON 13 JULY 1944.

SECTION 8 (A) OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, PROVIDES:

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.

IN VIEW OF THE FINDING BY THE NAVAL RETIRING BOARD THAT THE PHYSICAL DISABILITY WHICH RESULTED IN REAR ADMIRAL STEPHENSON'S RETIREMENT WAS INCURRED WHILE HE WAS SERVING UNDER HIS TEMPORARY APPOINTMENT TO THE RANK OF REAR ADMIRAL, IT IS CLEAR THAT UNDER THE PROVISIONS OF SECTION 8 (A), SUPRA, HE WAS ENTITLED TO BE RETIRED IN THE RANK OF REAR ADMIRAL AND TO RECEIVE "RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.' CF. 23 COMP. GEN. 126. HOWEVER, IT APPEARS THAT, SINCE TWO SEPARATE RATES OF PAY ARE PROVIDED BY LAW FOR REAR ADMIRALS; AND AS REAR ADMIRAL STEPHENSON APPARENTLY WAS HOSPITALIZED CONTINUOUSLY FROM JANUARY 24, 1943--- PRIOR TO THE DATE HE BECAME ENTITLED TO THE PAY OF A REAR ADMIRAL OF THE UPPER HALF --- UNTIL AFTER THE TERMINATION OF HIS TEMPORARY APPOINTMENT AS REAR ADMIRAL, DOUBT HAS ARISEN AS TO WHICH RATE SHOULD BE USED IN COMPUTING HIS RETIRED PAY.

UNDER THE PROVISIONS OF SECTION 7 OF THE NAVY PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1005, REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY WERE DIVIDED INTO TWO PAY GRADES, THOSE OFFICERS EMBRACED IN THE NINE LOWER NUMBERS BEING GIVEN THE PAY AND ALLOWANCES AUTHORIZED FOR A BRIGADIER GENERAL IN THE ARMY AND THOSE OFFICERS OF THE UPPER NINE NUMBERS BEING AUTHORIZED TO RECEIVE, UNDER THE ASSIMILATING PROVISIONS OF SECTION 13 OF THAT ACT, 30 STAT. 1007, AND SECTION 1466, REVISED STATUTES, THE PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY. A SIMILAR DIVISION OF REAR ADMIRALS FOR PAY PURPOSES HAS REMAINED IN EFFECT UP TO THE PRESENT TIME AND, CURRENTLY, THE DIFFERING RATES OF PAY FOR REAR ADMIRALS OF THE UPPER HALF AND REAR ADMIRALS OF THE LOWER HALF ARE FIXED BY SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362.

SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, UNDER THE PROVISIONS OF WHICH REAR ADMIRAL STEPHENSON BECAME ENTITLED TO THE PAY OF THE UPPER HALF, PROVIDES:

THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN SUCH GRADE, SHALL BE ONE-HALF OF THE NUMBER OF PERMANENT AND TEMPORARY OFFICERS OF THE LINE IN THAT GRADE: PROVIDED, THAT EACH OFFICER OF THE STAFF CORPS NOW OR HEREAFTER SERVING IN THE RANK OF REAR ADMIRAL SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF WHEN A LINE OFFICER WHO WAS HIS JUNIOR IN THE RANK FROM WHICH THE STAFF OFFICER CONCERNED WAS ADVANCED BECOMES ENTITLED TO SUCH PAY AND ALLOWANCES PURSUANT TO THE FOREGOING BUT NOT EARLIER THAN THE DATE UPON WHICH THE STAFF OFFICER IS APPOINTED TO THE RANK OF REAR ADMIRAL: PROVIDED FURTHER, THAT NOTHING CONTAINED HEREIN SHALL OPERATE TO SUSPEND THE PROVISIONS OF SECTION 18 OF THE ACT OF JUNE 10, 1926 (44 STAT. 724), WITH RESPECT TO STAFF OFFICERS WHO ON THE DATE OF THIS ACT HAVE BEEN RECOMMENDED FOR ADVANCEMENT TO THE RANK OF REAR ADMIRAL BY THE APPROVED REPORT OF A SELECTION BOARD: PROVIDED FURTHER, THAT AN OFFICER CARRIED AS AN ADDITIONAL NUMBER IN THE GRADE OR RANK OF REAR ADMIRAL SHALL BECOME ENTITLED TO THE PAY AND ALLOWANCES PROVIDED FOR REAR ADMIRALS OF THE UPPER HALF FROM THE SAME DATE AS THE OFFICER NEXT JUNIOR TO HIM: PROVIDED FURTHER, THAT THE FOREGOING SHALL BE EXCLUSIVE OF OFFICERS ENTITLED TO SUCH PAY AND ALLOWANCES SOLELY BY REASON OF THEIR SERVING IN THE RANK OF ADMIRAL OR VICE ADMIRAL, OR AS CHIEF OF BUREAU, JUDGE ADVOCATE GENERAL OF THE NAVY, OR DIRECTOR OF BUDGET AND REPORTS: AND PROVIDED FURTHER, THAT NO OFFICER WHO HAS OR MAY BECOME ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF SHALL SUFFER A REDUCTION OF HIS PAY AND ALLOWANCES SOLELY BY REASON OF THE FACT THAT THE NUMBER OF REAR ADMIRALS MAY FOR ANY REASON BE REDUCED.

IT LONG HAS BEEN RECOGNIZED THAT WHILE THERE ARE TWO DIVISIONS IN THE GRADE OF REAR ADMIRAL FOR PAY PURPOSES, ALL OFFICERS IN THAT GRADE, FOR ALL OTHER PURPOSES, ARE ENTITLED TO THE SAME RANK AND PRIVILEGES. LAWS RELATING TO THE NAVY, ANNOTATED, P. 665. IN THAT RESPECT, THE DIVISION OF REAR ADMIRALS INTO THOSE OF THE UPPER HALF AND THOSE OF THE LOWER HALF CORRESPONDS TO THE DIVISION OF OFFICERS OF LOWER GRADES INTO CERTAIN PAY PERIODS, WITH THE EXCEPTION THAT ADVANCEMENT FROM ONE PAY PERIOD TO THE NEXT HIGHER PAY PERIOD IS BASED UPON LENGTH OF SERVICE, WHEREAS ADVANCEMENT FROM THE PAY OF THE LOWER HALF TO THE PAY OF THE UPPER HALF DEPENDS UPON THE OFFICER'S RELATIVE NUMERICAL STANDING ON THE LIST OF REAR ADMIRALS--- OR, IN THE CASE OF STAFF OFFICERS, UPON THE RELATIVE STANDING OF HIS RUNNING MATE--- BY REASON OF THE REMOVAL OF NAMES TO AND FROM THE LIST THROUGH APPOINTMENT, RETIREMENT, DEATH, ETC. THAT IS, THE RANK OF REAR ADMIRAL INCLUDES ALL OFFICERS SERVING WITH THAT RANK, WHETHER ENTITLED TO THE PAY OF THE LOWER HALF OR THE UPPER HALF, IN THE SAME MANNER AS THE RANK OF COMMANDER INCLUDES ALL OFFICERS SERVING WITH THAT RANK, WHETHER ENTITLED TO THE PAY OF THE FIFTH PAY PERIOD OR THE SIXTH PAY PERIOD. THE TEMPORARY APPOINTMENT GIVEN TO REAR ADMIRAL STEPHENSON WAS TO THE STAFF GRADE OF MEDICAL DIRECTOR, WITH THE "RANK" OF REAR ADMIRAL--- AND IT WAS BY VIRTUE OF THE NUMERICAL POSITION OF HIS RUNNING MATE OF THE LINE ON THE LIST OF REAR ADMIRALS THAT HE BECAME ENTITLED WHILE SO SERVING TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF WITH NO CHANGE IN HIS GRADE OR RANK. SIMILARLY, A LIEUTENANT COMMANDER TEMPORARILY PROMOTED TO THE NEXT HIGHER GRADE BECOMES A COMMANDER, BUT THE PARTICULAR PAY PERIOD TO WHICH HE BELONGS WHILE SERVING IN SUCH HIGHER RANK IS DETERMINED BY HIS LENGTH OF SERVICE.

THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE SAID SECTION 8 (A) OF AN INTENT ON THE PART OF CONGRESS THAT THE RETIRED PAY AUTHORIZED THEREBY SHOULD BE COMPUTED ON THE ACTIVE-DUTY PAY TO WHICH AN OFFICER TEMPORARILY APPOINTED TO A HIGHER RANK WAS ENTITLED ON THAT PARTICULAR DAY THE DISABILITY ACTUALLY WAS INCURRED, EVEN ASSUMING THAT SUCH DATE COULD BE DETERMINED ACCURATELY IN ALL CASES, OR IN MOST CASES. ON THE CONTRARY, SECTION 8 (A) SPECIFICALLY AUTHORIZES RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH THE OFFICER WAS ENTITLED "WHILE SERVING" IN THE RANK TO WHICH HE WAS TEMPORARILY APPOINTED. WHILE THE STATUTE DOES NOT SPECIFY THE PARTICULAR ACTIVE-DUTY PAY TO BE USED AS THE BASIS FOR THE COMPUTATION OF AN OFFICER'S RETIRED PAY, OTHER THAN THAT IT SHALL BE THE ACTIVE DUTY PAY "TO WHICH HE WAS ENTITLED WHILE SERVING" IN THE HIGHER TEMPORARY RANK, IT SEEMS MORE REASONABLE TO CONCLUDE THAT THE PAY REFERRED TO IS THE ACTIVE-DUTY PAY TO WHICH THE OFFICER WAS ENTITLED AT THE TIME OF RETIREMENT, IF RETIRED WHILE SERVING IN THE HIGHER TEMPORARY GRADE, OR, IF, AS IN THE INSTANT CASE, THE TEMPORARY APPOINTMENT IS TERMINATED PRIOR TO THE DATE OF RETIREMENT, THE ACTIVE DUTY PAY TO WHICH THE OFFICER WAS ENTITLED AT THE TIME OF TERMINATION OF SUCH APPOINTMENT--- THUS PERMITTING, IN THE COMPUTATION OF RETIRED PAY, THE INCLUSION OF ANY REGULAR STATUTORY INCREASES IN ACTIVE-DUTY PAY FOR LENGTH OF SERVICE, C., WHICH MAY HAVE ACCRUED TO THE OFFICER WHILE ACTUALLY SO SERVING IN THE HIGHER TEMPORARY GRADE PRIOR TO RETIREMENT. COMPARE 23 COMP. GEN. 59. THAT CONCLUSION IS IN CONSONANCE WITH THE GENERAL LEGISLATIVE POLICY OF FIXING RETIRED PAY ON THE BASIS OF THE ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT; WHEREAS THE OPPOSITE CONCLUSION WOULD ATTRIBUTE TO THE CONGRESS AN INTENT NOT ONLY TO DEPRIVE THE DISABLED OFFICERS OF THE BENEFIT OF A PART OF THEIR ACTIVE SERVICE IN TEMPORARY RANK PRIOR TO RETIREMENT BUT TO SUBJECT THE RETIRED PAY OF SUCH OFFICERS IN MANY CASES TO THE UNCERTAINTIES AND SPECULATION INVOLVED IN ATTEMPTING TO DETERMINE EXACTLY--- PERHAPS TO THE VERY DAY--- WHEN A DISABLING DISEASE OR ILLNESS ACTUALLY WAS INCURRED, WITHIN THE MEANING OF THE PROVISION, DURING THE PERIOD THE OFFICER WAS SERVING IN THE HIGHER TEMPORARY RANK. I FIND NO REASON TO BELIEVE THE STATUTE WAS SO INTENDED.

ACCORDINGLY, SINCE REAR ADMIRAL STEPHENSON WAS ENTITLED TO THE ACTIVE- DUTY PAY OF A REAR ADMIRAL OF THE UPPER HALF WHEN HIS TEMPORARY APPOINTMENT WAS TERMINATED, HIS RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF SUCH ACTIVE-DUTY PAY.