B-51501, MARCH 6, 1946, 25 COMP. GEN. 626

B-51501, MARCH 6, 1946, 25 COMP. GEN. 626

PAY - RETIRED - COAST GUARD ENLISTED MEN ADVANCED TO TEMPORARY RATINGS COAST GUARD ENLISTED MEN WHO ARE TO BE RETIRED UNDER THE PROVISIONS OF SECTIONS 6 AND 9 OF THE ACT OF APRIL 12, 1902, AS EXTENDED BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, TO COAST GUARD ENLISTED PERSONNEL, FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE, ARE ENTITLED TO BE RETIRED IN THE RATING HELD AT THE TIME OF RETIREMENT, WHETHER IT BE A TEMPORARY OR A PERMANENT RATING, AND TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF SUCH RATING. THE FACT THAT A COAST GUARD ENLISTED MAN'S TEMPORARY ADVANCEMENT TO A HIGHER RATING WAS EFFECTUATED SUBSEQUENT TO HIS APPEARANCE BEFORE A RETIRING BOARD, BUT PRIOR TO THE DATE ON WHICH THE PRESIDENT APPROVED THE RECOMMENDATION OF SUCH BOARD THAT THE MAN BE RETIRED FOR PHYSICAL DISABILITY, IS NOT SUFFICIENT TO INVALIDATE SUCH TEMPORARY ADVANCEMENT IN RATING FOR RETIRED PAY PURPOSES UNDER SECTION 6 OF THE ACT OF APRIL 12, 1902, AS EXTENDED BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, TO COAST GUARD ENLISTED PERSONNEL. WHILE THE RECORD OF THE PROCEEDINGS OF A COAST GUARD RETIRING BOARD RECOMMENDING THE RETIREMENT OF AN ENLISTED MAN FOR PHYSICAL DISABILITY, PURSUANT TO SECTIONS 6 AND 9 OF THE ACT OF APRIL 12, 1902, AS EXTENDED BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, TO COAST GUARD ENLISTED PERSONNEL, WHICH RECORD WAS APPROVED BY THE PRESIDENT, SHOWED THE MAN'S FORMER RATING RATHER THAN HIS HIGHER TEMPORARY RATING TO WHICH HE WAS ADVANCED BETWEEN THE DATE OF THE BOARD'S RECOMMENDATIONS AND APPROVAL THEREOF BY THE PRESIDENT, SUCH FACT DOES NOT AFFECT THE ENLISTED MAN'S RIGHT TO BE RETIRED IN THE RATING HELD AT THE TIME OF RETIREMENT AND TO BE PAID RETIRED PAY BASED ON SUCH RATING.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COMDR. C. L. HERNDON, U.S. COAST GUARD, MARCH 6, 946:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 20, 1945, REQUESTING A DECISION RELATIVE TO THE RETIRED PAY LEGALLY AUTHORIZED TO BE PAID LLOYD ALBERT FLOWERS, CHIEF BOATSWAIN'S MATE (ACTING), U.S. COAST GUARD, UNDER THE CIRCUMSTANCES STATED THEREIN, AS FOLLOWS:

I HAVE BEFORE ME THE PAY ACCOUNT OF LLOYD ALBERT FLOWERS, CHIEF BOATSWAIN'S MATE (ACTING), U.S. COAST GUARD, WHO WAS RETIRED FROM ACTIVE SERVICE 1 FEBRUARY 1945, BY REASON OF PHYSICAL DISABILITY. IN VIEW OF THE CIRCUMSTANCES UNDER WHICH HIS ADVANCEMENT IN RATING WAS EFFECTED, A QUESTION ARISES AS TO THE CORRECT RATE OF RETIREMENT PAY TO WHICH FLOWERS IS ENTITLED.

THE RECORDS INDICATE THAT RETIREMENT IN THIS CASE WAS BASED ON THE RECOMMENDATION OF A COAST GUARD RETIRING BOARD WHICH WAS HELD 28 NOVEMBER 1944, AND APPROVED BY THE PRESIDENT 31 JANUARY 1945. UNDER DATE OF 14 DECEMBER, 1944, A LETTER WAS ADDRESSED BY COAST GUARD HEADQUARTERS TO THE COMMANDING OFFICER OF THE UNIT TO WHICH FLOWERS WAS ATTACHED, AS FOLLOWS: " SUBJ: FLOWERS, LLOYD A. (103-573) BM1C; ADVANCEMENT IN RATING.

"1. EFFECTIVE 16 DECEMBER, 1944, ADVANCE THE ABOVE-NAMED MAN TO THE RATING OF CHIEF BOATSWAIN'S MATE (ACTING), PROVIDING HIS CONDUCT AND MARKS SINCE RECOMMENDED WARRANT SUCH ADVANCEMENT. REPORT ACTION ON FORM 2599, CITING THIS LETTER AS THE AUTHORITY THEREFOR.

"2. IN THE EVENT FLOWERS HAS BEEN TRANSFERRED, EXPEDITE THE FORWARDING OF THIS LETTER TO HIS PRESENT UNIT.'

ON 13 JULY, 1942 (1943), COAST GUARD HEADQUARTERS ISSUED THE FOLLOWING PERSONNEL BULLETIN WHICH, TO DATE, HAS NOT BEEN RESCINDED: " PERSONNEL BULLETIN 82-43. " SUBJ: ADVANCEMENTS TO AND IN PETTY OFFICER RATINGS

"1. EFFECTIVE ON AND AFTER 1 AUGUST 1943, AND CONTINUING FOR THE DURATION OF THE WAR, ALL ADVANCEMENTS TO AND IN PETTY OFFICER RATINGS, INCLUDING CHIEF PETTY OFFICERS (PAY GRADE A AND 1) WILL BE TEMPORARY, WITH THE EXCEPTION OF ADVANCEMENT FOR MERITORIOUS CONDUCT IN ACTION. IN SUCH CASES THE MAN'S PERMANENT RATING WILL BE RATING TO WHICH ADVANCED. THIS IS APPLICABLE TO MEMBERS OF THE RESERVE AS WELL AS THE REGULAR COAST GUARD.

"2. ALL PROVISIONAL RATINGS OF PETTY OFFICERS ARE HEREBY CHANGED TO TEMPORARY RATINGS, AND THE USE OF THE DESIGNATION ( PRO.) IS DISCONTINUED. NO FURTHER CHANGES ARE INTENDED IN THE PERMANENT STATUS OF ANY ENLISTED MAN FOR THE DURATION, EXCEPT AS NOTED IN PARAGRAPH 1. THE PERMANENT RATING HELD BY EACH MAN IS TO BE INDICATED IN HIS SERVICE RECORD UNDER ARTICLE NO. 2 (CHANGES IN RATING), AS WELL AS ALL CHANGES IN TEMPORARY RATING.

"3. CHIEF PETTY OFFICER RATING CERTIFICATES WILL NOT BE ISSUED. TEMPORARY ADVANCEMENT TO PAY GRADE 1 WILL BE MADE BY HEADQUARTERS' LETTER WHICH WILL SPECIFY THE EFFECTIVE DATE OF THE ADVANCEMENT.

"4. MEN HOLDING TEMPORARY RATINGS BEING REENLISTED WILL BE REENLISTED IN THEIR LAST PERMANENT RATING AND IMMEDIATELY ADVANCED TO THE PRESENT TEMPORARY RATING. WHENEVER THERE IS DOUBT AS TO THE PERMANENT RATING OF A MAN, NECESSARY INFORMATION SHOULD BE REQUESTED FROM HEADQUARTERS.'

THE ABOVE INDICATES THAT ALL ADVANCEMENTS IN RATING SUBSEQUENT TO 1 AUGUST, 1943, ARE TEMPORARY UNLESS OTHERWISE SPECIFIED IN THE AUTHORIZATION ISSUED BY HEADQUARTERS. THE AUTHORIZATION ISSUED IN THIS CASE DID NOT SO SPECIFY.

IT IS FURTHER NOTED THAT THE RECORD OF PROCEEDINGS OF THE COAST GUARD RETIRING BOARD WHICH WAS LAID BEFORE THE PRESIDENT FOR HIS APPROVAL SHOWED THE RATING OF FLOWERS AS BOATSWAIN'S MATE, FIRST CLASS.

IN VIEW OF THE FOREGOING AND IN ORDER THAT FLOWERS MAY BE PAID THE RETIREMENT PAY TO WHICH HE IS ENTITLED, YOUR DECISION ON THE FOLLOWING QUESTIONS IS DESIRED:

(A) DOES THE ADVANCEMENT IN RATING, EFFECTED BETWEEN THE DATE OF APPEARANCE BEFORE THE COAST GUARD RETIRING BOARD AND THE DATE OF FINAL APPROVAL, ENTITLE THE ENLISTED MAN TO THE RETIRED PAY OF THE HIGHER RATING NOTWITHSTANDING THE FACT THAT THE RATING IS DIFFERENT FROM THAT SHOWN ON THE RECORD WHICH WAS LAID BEFORE THE PRESIDENT FOR HIS APPROVAL?

(B) DOES THE ADVANCEMENT IN RATING, WHICH APPEARS TO BE TEMPORARY IN ACCORDANCE WITH THE PERSONNEL BULLETIN QUOTED HEREIN, ENTITLE THE ENLISTED MAN TO THE PAY OF THE HIGHER RATING AFTER HIS RETIREMENT FROM ACTIVE SERVICE?

FLOWERS IS BEING PAID THE RETIRED PAY OF A BOATSWAIN'S MATE, FIRST CLASS, WITH MORE THAN TWELVE (12) YEARS' SERVICE, OR $102.60 PER MONTH, PENDING THE RECEIPT OF YOUR DECISION IN THE PREMISES.

PARAGRAPH 2 OF SECTION 3 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 801, 802, ENTITLED," AN ACT TO CREATE THE COAST GUARD BY COMBINING THEREIN THE EXISTING LIFE-SAVING SERVICE AND REVENUE-CUTTER SERVICE," PROVIDES:

THE PROVISIONS OF SECTIONS THREE, FOUR, FIVE, SIX, SEVEN, EIGHT AND NINE OF THE ACT OF APRIL TWELFTH, NINETEEN HUNDRED AND TWO, IN SO FAR AS THEY PROVIDE FOR THE RETIREMENT OF OFFICERS OF THE REVENUE-CUTTER SERVICE, ARE HEREBY EXTENDED TO INCLUDE COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE COAST GUARD. * * * " (ITALICS SUPPLIED.)

SECTIONS 6 AND 9 OF THE SAID ACT OF APRIL 12, 1902, 32 STAT. 101, PROVIDE AS FOLLOWS:

SEC. 6. THAT WHEN A BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE, OR IS DUE TO THE INFIRMITIES OF AGE, OR PHYSICAL OR MENTAL DISABILITY, AND NOT HIS OWN VICIOUS HABITS, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, HE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON A RETIRED WAITING-ORDERS LIST. OFFICERS THUS RETIRED MAY BE ASSIGNED TO SUCH DUTIES AS THEY MAY BE ABLE TO PERFORM, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY.

SEC. 9. THAT ALL OFFICERS BORNE UPON THE RETIRED OR PERMANENT WAITING- ORDERS LIST AT THE DATE OF THE PASSAGE OF THIS ACT, OR HEREAFTER, SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, SALARY, AND INCREASE OF THE RANK UPON WHICH THEY HAVE BEEN OR MAY BE RETIRED: PROVIDED, THAT NO LONGEVITY INCREASE OF PAY SHALL BE ALLOWED FOR ANY LENGTH OF SERVICE ACCRUING AFTER RETIREMENT.

IN A DECISION DATED AUGUST 13, 1920, 27 COMP. DEC. 159, INVOLVING THE QUESTION OF THE RETIRED PAY PROPERLY PAYABLE TO A COMMISSIONED OFFICER OF THE COAST GUARD, RETIRED FOR PHYSICAL DISABILITY INCIDENT TO THE SERVICE WHILE HOLDING A TEMPORARY APPOINTMENT TO A HIGHER GRADE UNDER THE PROVISIONS OF THE ACT OF JULY 1, 1918, 40 STAT. 733, IT WAS SAID BY THE COMPTROLLER OF THE TREASURY, AFTER QUOTING THE ABOVE PROVISIONS OF THE SAID ACTS OF APRIL 12, 1902, AND JANUARY 28, 1915, THAT:

IT IS EVIDENT THAT UNDER THE LAWS GOVERNING THE RETIREMENT OF OFFICERS OF THE UNITED STATES COAST GUARD PRIOR TO SAID ACT OF JULY 1, 1918, RETIRED OFFICERS OF SAID SERVICE WERE ENTITLED TO RETIRED PAY BASED UPON THE RANK IN WHICH THEY WERE RETIRED, AND THEREFORE IN THE CASE OF CAPT. POPE, IF NOT OTHERWISE PROVIDED BY THE ACT OF JULY 1, 1918, HE IS ENTITLED TO RETIRED PAY BASED UPON THE RANK HELD BY HIM ON DATE OF RETIREMENT.

SAID ACT OF JULY 1, 1918, AUTHORIZED THE PRESIDENT, DURING THE PERIOD OF THE PRESENT WAR, TO PROMOTE TEMPORARILY OFFICERS OF THE UNITED STATES COAST GUARD TO THE RANKS AND GRADES OF SAID SERVICE NOT ABOVE CAPTAIN AND CAPTAIN OF ENGINEERS, AND THE PROVISION QUOTED HEREIN RELATIVE TO THE RETIREMENT OF OFFICERS SO PROMOTED PROVIDES THAT EXCEPT WHEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN THE LINE OF DUTY THEY SHALL BE PLACED ON THE RETIRED LIST WITH THE GRADE OR RANK OF THEIR PERMANENT POSITION AT THE DATE OF RETIREMENT. AS BEFORE STATED, WITHOUT SUCH PROVISION OFFICERS OF THE COAST GUARD HOLDING SUCH TEMPORARY APPOINTMENTS AND RETIRED IN ACCORDANCE WITH THE LAWS GOVERNING RETIREMENT PRIOR TO THIS ACT WOULD BE RETIRED WITH THEIR TEMPORARY RANK OR GRADE, AND THE SPECIFIC PROVISION OF THIS ACT IS THAT SUCH OFFICER,"EXCEPT WHEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY," SHALL REVERT TO THEIR PERMANENT GRADE OR RANK FOR RETIREMENT PURPOSES AND RECEIVE THE PAY OF SUCH RANK ON THE RETIRED LIST. IT FOLLOWS, THEREFORE, THAT THOSE OFFICERS WHO ARE EXCEPTED FROM SUCH PROVISION--- THOSE RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY--- ARE TO BE RETIRED ACCORDING TO THE LAWS GOVERNING PRIOR TO JULY 1, 1918, AND ARE ENTITLED TO BE RETIRED WITH THE TEMPORARY RANK OR GRADE, IF ANY, HELD AT TIME OF RETIREMENT.

THUS, IT WILL BE SEEN THAT, AT LEAST SINCE 1920, THE PROVISIONS OF SECTIONS 6 AND 9 OF THE ACT OF APRIL 12, 1902, SUPRA, AUTHORIZING THE RETIREMENT OF COAST GUARD PERSONNEL FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE, HAVE BEEN CONSTRUED AS AUTHORIZING RETIREMENT OF OFFICERS IN THE GRADE HELD AT THE TIME OF RETIREMENT--- REGARDLESS OF THE PERMANENT OR TEMPORARY NATURE OF THE APPOINTMENT TO SUCH GRADE-- IN THE ABSENCE OF OTHER STATUTORY PROVISIONS TO THE CONTRARY. CF. 23 COMP. GEN. 126. AND, IN THAT CONNECTION, IT MAY BE STATED THAT SUCH VIEW OF THE SAID PROVISIONS OF SECTION 9 OF THE 1902 ACT IS IN CONSONANCE WITH THE DECISIONS OF THE COURTS AND THE ACCOUNTING OFFICERS RESPECTING THE SUBSTANTIALLY SIMILAR LANGUAGE CONTAINED IN SECTIONS 1274 AND 1457, REVISED STATUTES, GOVERNING THE RETIREMENT OF OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS. SEE REMEY V. UNITED STATES, 33 C.1CLS. 218; 27 COMP. DEC. 227; AND 19 COMP. GEN. 597. SINCE PARAGRAPH 2 OF SECTION 3 OF THE SAID 1915 ACT EXPRESSLY PROVIDES THAT THE PROVISIONS OF SECTIONS 6 AND 9 OF THE 1902 ACT SHALL APPLY TO ENLISTED MEN AS WELL AS OFFICERS OF THE COAST GUARD, IT FOLLOWS THAT AN ENLISTED MAN RETIRED UNDER THE PROVISIONS OF THOSE SECTIONS LIKEWISE IS ENTITLED TO BE RETIRED IN THE RATING HELD AT THE TIME OF RETIREMENT, WHETHER IT BE A TEMPORARY OR A PERMANENT RATING, AND TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF SUCH RATING.

IN THE INSTANT CASE, THERE IS PRESENTED THE FURTHER QUESTION AS TO WHETHER THE ENLISTED MAN IS ENTITLED TO THE RETIRED PAY OF THE HIGHER RATING DESPITE THE FACT THAT HIS TEMPORARY ADVANCEMENT WAS EFFECTUATED SUBSEQUENT TO HIS APPEARANCE BEFORE THE COAST GUARD RETIRING BOARD CONVENED IN HIS CASE BUT PRIOR TO THE DATE ON WHICH THE PRESIDENT APPROVED THE FINDINGS OF SUCH BOARD, AS PRESCRIBED BY SECTION 6 OF THE 1902 ACT, SUPRA. WHILE THE PROMOTION OF AN ENLISTED MAN UNDER CONSIDERATION FOR RETIREMENT FOR PHYSICAL DISABILITY APPEARS UNUSUAL, IT WELL MAY BE THAT ADMINISTRATIVE ACTION WITH RESPECT TO HIS PROMOTION WAS INITIATED PRIOR TO THE CONVENING OF THE RETIRING BOARD AND WAS ACCOMPLISHED WITHOUT ACTUAL KNOWLEDGE OF THE FINDINGS OF THAT BOARD, IT BEING NOTED THAT THE PROMOTION WAS DIRECTED SHORTLY AFTER THE RETIRING BOARD WAS CONVENED. BUT HOWEVER THAT MAY BE, THIS OFFICE IS AWARE OF NO PROVISION OF LAW WHICH WOULD INVALIDATE AN ADVANCEMENT IN RATING OF AN ENLISTED MAN UNDER THE CIRCUMSTANCES HERE INVOLVED.

UNDER THE PROVISIONS OF SECTION 6 OF THE SAID ACT OF APRIL 12, 1902, FLOWERS' RETIREMENT WAS NOT EFFECTIVE AT LEAST UNTIL THE FINDINGS OF THE RETIRING BOARD WERE APPROVED BY THE PRESIDENT. UP TO THAT TIME, HE WAS AN ENLISTED MAN ON ACTIVE DUTY, CHARGEABLE WITH THE OBLIGATIONS AND RESPONSIBILITIES OF THAT STATUS AND, CORRESPONDINGLY, HE WAS ENTITLED TO ALL THE BENEFITS NORMALLY ACCRUING TO AN ACTIVE DUTY STATUS--- INCLUDING ADVANCEMENT IN RATING IF ADMINISTRATIVELY APPROVED. IN THAT CONNECTION, IT MAY BE STATED, GENERALLY, THAT THE VARIOUS STATUTES GOVERNING RETIREMENT FOR PHYSICAL DISABILITY INCIDENT TO THE SERVICE CONFER UPON THE OFFICER OR ENLISTED MAN CONCERNED NO VESTED RIGHT TO BE RETIRED, SUCH AS THAT GIVEN TO PERSONNEL WHO MAKE APPLICATION FOR RETIREMENT UNDER THE STATUTORY PROVISIONS PERMITTING RETIREMENT ON ACCOUNT OF AGE. WHILE THE COURTS HAVE HELD THAT A PERSON'S STATUS FOR PURPOSES OF RETIREMENT ON ACCOUNT OF AGE IS FIXED AS OF THE DATE HE MAKES APPLICATION FOR RETIREMENT AND ADMINISTRATIVE ACTION THEREAFTER TAKEN IS INEFFECTIVE TO CHANGE THAT STATUS FOR RETIREMENT PURPOSES (SEE HORNBLASS V. THE UNITED STATES, 93 C.1CLS. 148, AND CASES CITED THEREIN), IT LONG HAS BEEN RECOGNIZED THAT RETIREMENT FOR PHYSICAL DISABILITY IS EFFECTIVE ONLY UPON THE DATE SET BY THE PRESIDENT IN HIS ORDER APPROVING THE RECOMMENDATION OF THE RETIRING BOARD AND BENEFITS ACCRUING PRIOR THERETO PROPERLY ARE FOR CONSIDERATION IN DETERMINING A PERSON'S RETIRED STATUS. SEE GREENWALD V. THE UNITED STATES, 88 C.1CLS. 264, AND CASES CITED THEREIN. ACCORDINGLY, YOU ARE ADVISED THAT THE FACT THAT FLOWERS' TEMPORARY ADVANCEMENT TO CHIEF BOATSWAIN'S MATE (ACTING) WAS EFFECTIVE SUBSEQUENT TO THE DATE ON WHICH HE APPEARED BEFORE THE RETIRING BOARD IS NOT SUFFICIENT TO INVALIDATE SUCH ADVANCEMENT IN RATING.

THERE REMAINS TO BE CONSIDERED WHETHER FLOWERS' RIGHT TO RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THE HIGHER TEMPORARY RATING IS AFFECTED IN ANY WAY BY REASON OF THE FACT THAT THE RECORD OF PROCEEDINGS OF THE COAST GUARD RETIRING BOARD, WHICH WAS APPROVED BY THE PRESIDENT, SHOWED FLOWERS' RATING AS BOATSWAIN'S MATE, FIRST CLASS, RATHER THAN HIS HIGHER TEMPORARY RATING OF CHIEF BOATSWAIN'S MATE (ACTING). IT WILL BE NOTED THAT SECTION 9 OF THE 1902 ACT, SUPRA, AS EXTENDED BY SECTION 3 OF THE 1915 ACT, PROVIDES THAT RETIRED PERSONNEL OF THE COAST GUARD "SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY * * * OF THE RANK UPON WHICH THEY * * * MAY BE RETIRED.' WHILE THE SAID SECTION DOES NOT SPECIFY THE RANK OR GRADE IN WHICH PERSONNEL SHALL BE RETIRED, IT IS SETTLED BY THE DECISION OF AUGUST 13, 1920, OF THE COMPTROLLER OF THE TREASURY, QUOTED ABOVE, THAT THE SECTION AUTHORIZES THE PAYMENT OF RETIRED PAY BASED ON THE RANK OR GRADE HELD ON THE DATE OF RETIREMENT, IN THE SAME MANNER AS SIMILARLY WORDED STATUTES GOVERNING RETIRED PAY OF MILITARY AND NAVAL PERSONNEL HAVE BEEN CONSTRUED JUDICIALLY.

IN THE CASE OF CLOUD V. UNITED STATES, 43 C.1CLS. 69, HOLDING THAT AN OFFICER OF THE ARMY, RETIRED UNDER THE PROVISIONS OF SECTIONS 1251, 1254, AND 1274, REVISED STATUTES, WAS ENTITLED TO RETIRED PAY BASED ON THE PAY OF A HIGHER RANK THAN THAT SHOWN IN THE RECOMMENDATION OF THE RETIRING BOARD, WHICH RECOMMENDATION HAD BEEN APPROVED BY THE PRESIDENT, IT WAS SAID:

* * * EXECUTIVE ORDERS ONLY ACCOMPLISH RETIREMENT UNDER THE ARMY REGULATIONS AS THEY APPLY TO PARTICULAR CASES AND WHEN NOT IN CONFLICT WITH THE LAW. NOR ARE ADMINISTRATIVE DECISIONS GENERALLY INTENDED BY THOSE RESPONSIBLE FOR THEM TO DO MORE. AS SAID BY MR. JUSTICE MILLER IN A REVENUE CASE (107 U.S. 411),"IT IS THE LAW WHICH GIVES THE RIGHT; " AND HERE IT IS THE LAW WHICH FIXES THE OFFICER'S STATUS AND CONSEQUENT PAY AND NOT THE RECOMMENDATION OF A RETIRING BOARD, EVEN THOUGH SUPPLEMENTED BY ORDERS WHICH HAVE MET THE APPROVAL OF THE PRESIDENT.

THE QUOTED PROVISIONS OF THE 1902 ACT, SUPRA, LIKE THE PROVISIONS CONSIDERED IN THE ABOVE DECISION, VEST IN THE PRESIDENT THE DISCRETION EITHER TO APPROVE OR DISAPPROVE THE RECOMMENDATIONS OF A RETIRING BOARD AS TO THE ELIGIBILITY OF THE PERSON CONCERNED TO RETIREMENT ON ACCOUNT OF INCAPACITY INCIDENT TO SERVICE AND, WHEN SUCH RECOMMENDATION HAS BEEN APPROVED, THE SAID PROVISIONS FIX THE RANK FOR RETIREMENT AND THE RATE OF RETIRED PAY. HENCE, THE FACT THAT FLOWERS' RATING AS SHOWN IN THE PROCEEDINGS OF THE RETIRING BOARD, WHICH SUBSEQUENTLY WERE APPROVED BY THE PRESIDENT, WAS DIFFERENT FROM THE RATING ACTUALLY HELD BY HIM AT THE TIME OF SUCH APPROVAL DID NOT AFFECT HIS STATUTORY RIGHT TO BE RETIRED IN THE RATING HELD AT THE TIME OF RETIREMENT AND TO RECEIVE RETIRED PAY BASED ON SUCH RATING.