B-51927, SEPTEMBER 18, 1945, 25 COMP. GEN. 274

B-51927: Sep 18, 1945

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WHO ARE TEMPORARILY SERVING IN HIGHER GRADES PURSUANT TO THE ACT OF JULY 24. UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE. WHO ARE NOW HOLDING TEMPORARY APPOINTMENTS UNDER THE AUTHORITY OF THE ACT OF JULY 24. IN MOST INSTANCES THESE HIGHER TEMPORARY GRADES AND RANKS INVOLVE HIGHER RATES OF PAY THAN THAT WHICH THE OFFICERS WERE RECEIVING IN THEIR PERMANENT GRADES OR RANKS. A DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OFFICERS WHO. ARE SERVING UNDER TEMPORARY APPOINTMENTS PURSUANT TO THE PROVISIONS OF THE ABOVE-MENTIONED ACT OF JULY 24. WILL BE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY THEY RECEIVE AT THE TIME OF RETIREMENT UNDER THEIR TEMPORARY APPOINTMENTS IN GRADES OR RANKS HIGHER THAN THOSE HELD BY THEM UNDER THEIR PERMANENT APPOINTMENTS.

B-51927, SEPTEMBER 18, 1945, 25 COMP. GEN. 274

PAY - RETIRED - NAVAL OFFICERS TEMPORARILY SERVING IN HIGHER GRADES WHEN RETIRED IN THE CASE OF NAVY OFFICERS WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO ARE TEMPORARILY SERVING IN HIGHER GRADES PURSUANT TO THE ACT OF JULY 24, 1941, AS AMENDED, WHEN VOLUNTARILY RETIRED UNDER SECTION 1443, REVISED STATUTES, THE ACT OF MAY 13, 1908, OR SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, RETIRED PAY AT THE RATE OF 75 PERCENT OF THEIR "ACTIVE DUTY PAY AT THE TIME OF * * * RETIREMENT," UNDER SECTION 15, PARAGRAPH FOUR, OF THE PAY READJUSTMENT ACT OF 1942, SHOULD BE COMPUTED ON THE PAY OF THEIR PERMANENT GRADES AND NOT THAT OF THEIR TEMPORARY GRADES.

ASSISTANT COMPTROLLER YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 18, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 24, 1945, AS FOLLOWS:

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. SUPP. 115) PROVIDES IN PART THAT---

"THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

THE NAVY DEPARTMENT ANTICIPATES RECEIVING REQUESTS IN THE IMMEDIATE FUTURE FOR VOLUNTARY RETIREMENTS UNDER SECTION 1443, REVISED STATUTES (34 U.S.C. 381), THE ACT OF MAY 13, 1908 (34 U.S.C. 383), AND SECTION 12 OF THE ACT OF JUNE 23, 1938 (34 U.S.C. SUPP. 404 (E), FROM OFFICERS WHO SERVED IN THE NAVY PRIOR TO NOVEMBER 12, 1918, WHO ARE NOW HOLDING TEMPORARY APPOINTMENTS UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED (34 U.S.C., SUPP., 350-350J), IN HIGHER GRADES OR RANKS THAN THOSE HELD BY THEM UNDER THEIR PERMANENT APPOINTMENTS. IN MOST INSTANCES THESE HIGHER TEMPORARY GRADES AND RANKS INVOLVE HIGHER RATES OF PAY THAN THAT WHICH THE OFFICERS WERE RECEIVING IN THEIR PERMANENT GRADES OR RANKS.

A DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OFFICERS WHO, WHEN RETIRED, ARE SERVING UNDER TEMPORARY APPOINTMENTS PURSUANT TO THE PROVISIONS OF THE ABOVE-MENTIONED ACT OF JULY 24, 1941, AS AMENDED, AND WHO SERVED IN ANY CAPACITY AS MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, WILL BE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY THEY RECEIVE AT THE TIME OF RETIREMENT UNDER THEIR TEMPORARY APPOINTMENTS IN GRADES OR RANKS HIGHER THAN THOSE HELD BY THEM UNDER THEIR PERMANENT APPOINTMENTS.

IN CONNECTION WITH THE ABOVE QUESTION, SECTION 1 OF THE " PAY READJUSTMENT ACT OF 1942," AS AMENDED (37 U.S.C. SUPP. 101), PROVIDES THAT

"OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE TEMPORARILY APPOINTED TO HIGHER GRADES OR RANKS SHALL, FOR THE PURPOSES OF THIS CHAPTER, BE CONSIDERED OFFICERS OF SUCH GRADES OR RANKS WHILE HOLDING SUCH TEMPORARY OINTMENTS.'

THE ACT OF JULY 24, 1941, SUPRA, WAS, OF COURSE, IN EFFECT AT THE TIME THE PAY READJUSTMENT ACT OF 1942 WAS ENACTED.

SECTION 1443, REVISED STATUTES (34 U.S.C. 381), PROVIDES THAT---

WHEN ANY OFFICER OF THE NAVY HAS BEEN FORTY YEARS IN THE SERVICE OF THE UNITED STATES HE MAY BE RETIRED FROM ACTIVE SERVICE BY THE PRESIDENT UPON HIS OWN APPLICATION. THE RETIRED PAY AUTHORIZED FOR NAVAL OFFICERS RETIRED UNDER THE PROVISIONS OF THAT SECTION IS "75 PERCENTUM OF THE PAY PROVIDED BY LAW FOR THE GRADE OR RANK WHICH THEY HELD * * * AT THE TIME OF THEIR RETIREMENT.' SEE 34 U.S.C. 991.

THE ACT OF MAY 13, 1908, 35 STAT. 128 (34 U.S.C. 383), PROVIDES:

WHEN AN OFFICER OF THE NAVY HAS BEEN THIRTY YEARS IN THE SERVICE, HEMAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE.

SECTION 12 OF THE ACT OF JUNE 23, 1938, 52 STAT. 950 (34 U.S.C. 404 (E) AND (B) (, PROVIDES IN PERTINENT PART AS FOLLOWS:

(E) WHEN OFFICERS OF THE LINE OF THE NAVY, OTHER THAN COMMISSIONED WARRANT OFFICERS, HAVE COMPLETED TWENTY YEARS' COMMISSIONED SERVICE, THEY MAY AT ANY TIME THEREAFTER, UPON THEIR OWN APPLICATION IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH RETIRED PAY COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION * * * .

THE SUBSECTION (B) REFERRED TO (34 U.S.C. 404 (B) ( PROVIDES:

(B) * * * 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIRMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: PROVIDED, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED.

BEFORE DISCUSSING THE EFFECT OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, QUOTED IN YOUR LETTER, UPON THE RETIREMENT LAWS ABOVE QUOTED, IT IS NECESSARY TO CONSIDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 604, 605, AS AMENDED, UNDER WHICH TEMPORARY PROMOTIONS IN THE NAVY ARE AUTHORIZED. THE SAID ACT IS 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 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 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.

(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 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 * * * .

IN DECISION OF AUGUST 23, 1943, 23 COMP. GEN. 126, IT WAS HELD THAT AN OFFICER OF THE REGULAR NAVY APPOINTED TO A HIGHER TEMPORARY 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. IN THAT DECISION IT WAS POINTED OUT THAT SECTION 8 (A) OF THE SAID ACT, SUPRA, SPECIFICALLY RESTRICTS RETIREMENT IN THE HIGHER TEMPORARY RANK, WITH RETIRED PAY BASED THEREON, IN THE CASE OF OFFICERS ON THE ACTIVE LIST SERVING UNDER A TEMPORARY APPOINTMENT, TO THOSE WHO INCUR PHYSICAL 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. IT WILL BE NOTED THAT SECTION 8 (E) OF THE SAID ACT SPECIFICALLY PROVIDES THAT THE BENEFITS OF THAT SECTION--- RETIREMENT PAY BASED ON THE HIGHER TEMPORARY RANK--- SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY IN LINE OF DUTY, WHICH WOULD EXCLUDE OFFICERS VOLUNTARILY RETIRED UNDER SECTION 1443, REVISED STATUTES, THE ACT OF MAY 13, 1908, AND SECTION 12 (E) OF THE ACT OF JUNE 23, 1938. SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, PROVIDES THAT UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL SHALL, UNLESS OTHERWISE PROVIDED THEREIN, REVERT TO THEIR PERMANENT GRADES, RANKS OR RATINGS, BUT THAT UPON SUBSEQUENTLY BEING RETIRED, IF THEIR PERFORMANCE OF ACTIVE DUTY UNDER SUCH TEMPORARY APPOINTMENT HAS BEEN SATISFACTORY, THEY SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK HELD BY THEM WHILE ON ACTIVE DUTY. IN ORDER, HOWEVER, THAT THERE MIGHT BE NO DOUBT AS TO THE BASIS UPON WHICH THE RETIRED PAY OF OFFICERS SO PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK TEMPORARILY HELD IS TO BE COMPUTED, THE SAID SECTION EXPRESSLY PROVIDES THAT, EXCEPT WHERE SPECIFIC PROVISION IS MADE OTHERWISE, THE RETIRED PAY OF SUCH PERSONNEL SHALL BE BASED ON THE PAY OF THE RANK OR RATING HELD AT THE TIME OF RETIRMENT, THAT IS, ON THE PAY OF THEIR PERMANENT GRADE OR RANK. WITH RESPECT TO RETIRED PAY, THE INTENT AND PURPOSE OF THE SAID SECTION 8 (E) AND 10 ARE LIKE THOSE OF SECTION 9 OF THE TEMPORARY PROMOTION LAW OF MAY 22, 1917, 40 STAT. 86--- SIMILAR TO THE PRESENT TEMPORARY PROMOTION LAW--- WHICH SPECIFICALLY PROVIDED THAT AN OFFICER OF THE PERMANENT NAVY TEMPORARILY ADVANCED IN GRADE OR RANK UNDER THAT SECTION WHO SHOULD BE RETIRED FROM ACTIVE SERVICE WHILE HOLDING SUCH TEMPORARY RANK--- EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY--- SHOULD BE PLACED ON THE RETIRED LIST WITH THE GRADE OR RANK AND, HENCE, WITH THE RETIRED PAY, TO WHICH HIS POSITION IN THE PERMANENT NAVY AT THE DATE OF HIS RETIREMENT WOULD ENTITLE HIM.

WHILE IT DOES NOT APPEAR EVER TO HAVE BEEN SUGGESTED THAT OFFICERS RETIRED FOR OTHER THAN PHYSICAL DISABILITY WHILE HOLDING TEMPORARY RANK UNDER THE SAID 1917 ACT WERE ENTITLED TO RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THEIR TEMPORARY GRADES OR RANKS, APPARENTLY THE VIEW HAS BEEN ADVANCED THAT BY VIRTUE OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SET FORTH IN YOUR LETTER, AN OFFICER RETIRED ON OR AFTER JUNE 1, 1942, WHO HAD SERVED IN ANY CAPACITY IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO IS SERVING UNDER A TEMPORARY APPOINTMENT AT THE TIME OF HIS RETIREMENT, IS ENTITLED TO HAVE HIS RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF HIS HIGHER TEMPORARY RANK. HOWEVER, SINCE THE ACT OF JULY 24, 1941, DEALING SPECIFICALLY WITH THE SUBJECT MATTER OF RETIRED PAY ON ACCOUNT OF SERVICE IN HIGHER TEMPORARY RANKS THEREUNDER, CLEARLY RESTRICTS PAYMENT OF RETIRED PAY BASED ON THE HIGHER TEMPORARY GRADES TO CASES OF OFFICERS WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENTS, IT WOULD REQUIRE A CLEAR SHOWING OF LEGISLATIVE PURPOSE TO WARRANT A CONCLUSION THAT THE GENERAL LANGUAGE EMPLOYED IN THE SAID SECTION 15 WAS INTENDED TO GRANT TO THE CLASS OF OFFICERS MENTIONED THEREIN THE RIGHT TO HAVE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THEIR HIGHER TEMPORARY GRADES OR RANKS. IN THAT CONNECTION, THE LEGISLATIVE HISTORY OF THE SAID SECTION CLEARLY SHOWS THAT THE PRIMARY PURPOSE THEREOF WAS TO EXTEND TO OFFICERS OF THE NAVY CERTAIN BENEFITS WHICH THERETOFORE HAD BEEN GRANTED OFFICERS OF THE REGULAR ARMY UNDER SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380. UNDER THE SAID ACT OF JUNE 13, 1940, AND PRIOR TO THE ENACTMENT OF THE SAID SECTION 15, ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO HAD COMPLETED NOT LESS THAN 15 NOR MORE THAN 29 YEARS' SERVICE COULD BE RETIRED, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY OF WAR, WITH RETIRED PAY EQUAL TO 2 1/2 PERCENTUM OF "HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT," MULTIPLIED BY THE NUMBER OF YEARS' SERVICE NOT IN EXCESS OF 29, BUT SUCH AN OFFICER WHO HAD SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, WAS PERMITTED TO BE RETIRED UPON HIS OWN APPLICATION WITH "75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT," EXCEPT THAT OFFICERS WITH LESS THAN 20 YEARS' SERVICE COULD BE SO RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT HAD BEEN APPROVED BY THE SECRETARY OF WAR. SEE, ALSO, SECTION 2 OF THE ACT OF JULY 29, 1941, 55 STAT. 606. HOWEVER, WHILE UNDER SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, SUPRA, OFFICERS OF THE LINE OF THE NAVY WHO HAD COMPLETED 20 YEAR'S SERVICE COULD BE RETIRED UPON THEIR OWN APPLICATION IN THE DISCRETION OF THE PRESIDENT, THEIR RETIRED PAY WAS LIMITED TO 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS' SERVICE, EVEN THOUGH THEY HAD SERVED PRIOR TO NOVEMBER 12, 1918. THUS, THE RETIRED PAY OF AN OFFICER OF THE REGULAR ARMY UNDER THE 1940 ACT WHO HAD SERVED PRIOR TO NOVEMBER 12, 1918, WAS GREATER THAN THAT AUTHORIZED UNDER THE 1938 ACT FOR OFFICERS OF THE LINE OF THE NAVY WITH COMPARABLE SERVICE, AND IT WAS THIS DISPARITY IN THE RETIRED PAY OF SUCH OFFICERS OF THE ARMY AND NAVY WHICH PROMPTED MR. MAAS, RANKING MINORITY MEMBER OF THE HOUSE COMMITTEE ON NAVAL AFFAIRS, TO OFFER AS AN AMENDMENT TO S. 2025, 77TH CONGRESS, THE PROVISION WHICH NOW APPEARS AS THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF SUCH PROVISION WHICH EVEN SUGGESTS THAT IT MAY HAVE BEEN DESIGNED TO EXTEND TO OFFICERS OF THE CLASS MENTIONED THEREIN THE SAME RIGHTS WHICH ARE EXPRESSLY AUTHORIZED UNDER THE ACT OF JULY 24, 1941, FOR OFFICERS WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT. THE SAID AMENDMENT WAS PROPOSED BY MR. MAAS, MAY 12, 1942, WHILE THE BILL, S-2025, WHICH BECAME THE PAY READJUSTMENT ACT OF 1942, WAS UNDER CONSIDERATION BY THE HOUSE OF REPRESENTATIVES SITTING AS THE COMMITTEE OF THE WHOLE HOUSE. 88 CONG. REC. 4126. AT THAT TIME THE FOLLOWING STATEMENTS WERE MADE RESPECTING THE AMENDMENT, ITS SCOPE AND PURPOSE:

MR. MAAS. MR. CHAIRMAN, I OFFER AN AMENDMENT, WHICH I SEND TO THE CLERK'S OFFICE.

THE CLERK READ AS FOLLOWS:

"AMENDMENT OFFERED BY MR. MAAS: ON PAGE 55, AFTER LINE 22, ADD A NEW PARAGRAPH AS FOLLOWS:

"THE RETIRED PAY OF AN OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS TIREMENT.'

MR. MAAS. MR. CHAIRMAN, I HAD INTENDED TO OFFER AN AMENDMENT HAD THAT PROVISION OF THE BILL STAYED IN WHICH WOULD HAVE EXTENDED THE SAME BENEFITS TO NAVAL OFFICERS. SINCE THAT HAS BEEN STRICKEN OUT, OF COURSE, IT WOULD NOT BE IN ORDER.

I AM NOW OFFERING AN AMENDMENT WHICH WILL NOT AFFECT THE RETIRED PAY OF ANYBODY NOW ON THE RETIRED LIST, BUT WILL SIMPLY BRING THE NAVY INTO CONFORMITY WITH THE EXISTING LAW COVERING THE ARMY.

IT HAS BEEN REPEATEDLY STATED THAT THE ARMY AND NAVY SHOULD BE TREATED ALIKE. THE PAY BILL IS SUPPOSED TO BE ONE PAY BILL FOR ALL ALIKE. ALL SERVICES COME UNDER ONE SYSTEM OF PAY, BUT UNFORTUNATELY A SPECIFIC PROVISION WAS PASSED FOR WORLD WAR OFFICERS IN THE ARMY AND DID NOT INCLUDE THE NAVY OR MARINE CORPS.

MR. HARNESS. WILL THE GENTLEMAN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM INDIANA.

MR. HARNESS. DID I UNDERSTAND THE GENTLEMAN TO SAY THAT THIS WILL NOT AFFECT ANY RETIRED NAVAL OFFICERS?

MR. MAAS. ON THE RETIRED LIST AT PRESENT.

MR. HARNESS. ALL THE RETIRED NAVAL OFFICERS ON THE RETIRED LIST NOW DRAW 75 PERCENT.

MR. MAAS. OH, NO; THE GENTLEMAN IS MISTAKEN. WE HAVE A GREAT MANY WORLD WAR OFFICERS AND OTHER OFFICERS WHO ARE DRAWING ONLY 2 1/2 PERCENT MULTIPLIED BY THE NUMBER OF YEARS SERVED.

MR. HARNESS. THE GENTLEMAN'S AMENDMENT WOULD INCREASE THEM TO 75 PERCENT?

MR. MAAS. THE AMENDMENT WOULD NOT AFFECT THEM AT ALL. ALL MY AMENDMENT DOES IS TO ENACT FOR THE NAVY THE EXISTING LAW FOR THE ARMY, WHICH IS THAT ANY WORLD WAR OFFICER IN THE NAVY WHO MAY HEREAFTER BE RETIRED SHALL BE RETIRED ON 75 PERCENT OF HIS PAY, WHICH IS THE EXISTING LAW FOR THE ARMY.

MR. VINSON OF GEORGIA. WILL THE GENTLEMAN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM GEORGIA.

MR. VINSON OF GEORGIA. THE EFFECT OF THE GENTLEMAN'S AMENDMENT WOULD BE TO CARRY OUT FOR THE NAVY WHAT WAS PROVIDED IN THE ACT OF JUNE 13, 1940, FOR THE ARMY$

MR. MAAS. YES; AND IT SHOULD HAVE BEEN DONE FOR THE NAVY AT THAT TIME, BUT UNFORTUNATELY IT WAS NOT. I THINK IT IS THE SENSE OF THE HOUSE AND THE CONGRESS THAT THE SAME LAWS ON PAY SHALL APPLY TO BOTH THE ARMY AND THE NAVY, AS WELL AS TO THE COAST GUARD AND MARINE CORPS. ALL I AM ASKING IS THAT EXISTING LAW FOR THE ARMY BE EXTENDED TO THE NAVY AND THE MARINE CORPS.

MR. HARNESS. THE EFFECT OF THE GENTLEMAN'S AMENDMENT WOULD BE TO INCREASE THE PAY OF THE RETIRED NAVAL OFFICERS WHO ARE NOW DRAWING LESS THAN 75 PERCENT OF THEIR PAY?

MR. MAAS. NO; IT WILL NOT AFFECT ANY RETIRED OFFICER NOW ON THE RETIRED LIST. THE AMENDMENT SAYS,"HEREAFTER.'

MR. MAY. WILL THE GENTLEMAN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM KENTUCKY.

MR. MAY. IT WILL AFFECT THOSE WHO ARE HEREAFTER RETIRED AND PUT THEM ON AN INCREASED BASIS OVER WHAT THEY ARE NOW GETTING?

MR. MAAS. IT WILL PUT THEM ON EXACTLY THE SAME BASIS AS THE ARMY,AND THE GENTLEMAN SPONSORED THAT BILL. IT WILL ACCORD TO NAVAL OFFICERS WHO HAVE SERVED IN THE WORLD WAR AND WHO ARE RETIRED HEREAFTER THE SAME BENEFITS THEY WOULD GET IF THEY WERE ARMY OFFICERS AND WERE RETIRED HEREAFTER.

MR. MAY. DOES THE GENTLEMAN KNOW HOW MUCH THE INCREASE WILL BE? LET US TAKE A PARTICULAR RANK, FOR INSTANCE, A COMMANDER IN THE NAVY. HOW MUCH INCREASE WOULD THERE BE FOR HIM IF HE IS RETIRED ON THE BASIS OF 75 PERCENT?

MR. MAAS. A COMMANDER WHO IS FORCED TO RETIRE ON ACCOUNT OF FAILURE TO BE SELECTED WOULD HAVE HAD AT LEAST 27 YEARS' SERVICE. HE WOULD GET 27 TIMES 2 1/2 PERCENT. IF HE IS RETIRED UNDER THIS PROVISION, HE WILL GET 30 TIMES 2 1/2 PERCENT. IT IS NOT A LARGE INCREASE, A FEW DOLLARS A MONTH, BUT IT WILL PUT HIM ON PARITY WITH A LIEUTENANT COLONEL IN THE ARMY WHO IS RETIRED UNDER SIMILAR CIRCUMSTANCES.

THE CHAIRMAN. THE QUESTION IS ON THE AMENDMENT OFFERED BY THE GENTLEMAN FROM MINNESOTA.

THE QUESTION WAS TAKEN; AND ON A DIVISION (DEMANDED BY MR. MAAS) THERE WERE--- AYES 88, NOES 55.

SO THE AMENDMENT WAS AGREED TO.

FROM SUCH STATEMENTS IT SEEMS EVIDENT THAT THE SOLE PURPOSE OF THE PROVISION WAS TO CHANGE THE METHOD OF COMPUTATION OF RETIRED PAY FOR THE OFFICERS INVOLVED FROM THAT OF 2 1/2 PERCENTUM OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE TO THAT OF 75 PERCENTUM OF THEIR ACTIVE DUTY PAY, WITHOUT REGARD TO THE NUMBER OF YEARS' SERVICE. WHILE THERE WAS USED THE DESCRIPTIVE LANGUAGE "75 PERCENTUM OF HIS ACTIVE- DUTY PAY AT THE TIME OF HIS RETIREMENT," THAT MERELY REPEATED, IN EFFECT, THE LANGUAGE OF THE SAID ARMY ACT OF JUNE 13, 1940, TO PUT SUCH OFFICERS ON A PARITY WITH ARMY OFFICERS IN THAT RESPECT, AS STATED BY MR. MAAS. PRESUMABLY, THEREFORE, SUCH LANGUAGE WAS USED IN THE SAME GENERAL SENSE AND FOR THE SAME GENERAL PURPOSE AS IT HAD BEEN USED IN THE ARMY ACT, AND THERE IS NO SUGGESTION OF ANY INTENT THEREBY TO EXPAND OR MODIFY THE PROVISIONS AND RESTRICTIONS CONTAINED IN THE NAVY TEMPORARY PROMOTION ACT OF JULY 24, 1941, SO AS TO GRANT NAVY OFFICERS HAVING SERVICE PRIOR TO NOVEMBER 12, 1918, THE FURTHER SUBSTANTIAL BENEFIT OF HAVING THEIR RETIRED PAY COMPUTED ON THE PAY OF THEIR TEMPORARY RANK UNDER THE LATTER ACT, CONTRARY TO THE SPECIFIC CONDITIONS AND RESTRICTIONS OF SUCH ACT. IT IS TO BE ASSUMED, UNDER SETTLED PRINCIPLES OF STATUTORY INTERPRETATION, THAT ANY LEGISLATIVE INTENT TO MODIFY SUCH SPECIFIC PROVISIONS OF THE ACT OF JULY 24, 1941, IN SO IMPORTANT A PARTICULAR, WOULD BE SHOWN BY LEGISLATION EQUALLY SPECIFIC AND WOULD NOT BE LEFT TO QUESTIONABLE IMPLICATIONS ARISING FROM GENERAL LANGUAGE DIRECTED PRIMARILY TO A DIFFERENT PURPOSE. SEE 19 COMP. GEN. 492, AND CASES CITED. IN THAT CONNECTION, IT IS NOTED THAT BY SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465--- ENACTED SUBSEQUENT TO THE PAY READJUSTMENT ACT OF 1942- - THE CONGRESS SPECIFICALLY PROVIDED THAT ANY OFFICER OF THE REGULAR NAVY BELOW THE GRADE OF VICE ADMIRAL WHO IS TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF 64 YEARS, WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, SHALL BE RETIRED AT SUCH TEMPORARY GRADE OR RANK WITH RETIRED PAY OF 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT. ALSO, SEE S. 993, NOW PENDING BEFORE THE SENATE COMMITTEE ON NAVAL AFFAIRS, AND H.R. 54, NOW BEFORE THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, WHICH SPECIFICALLY WOULD AMEND SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, SO AS TO AUTHORIZE, IN EFFECT, THE COMPUTATION OF RETIRED PAY FOR ALL OFFICERS TEMPORARILY PROMOTED UNDER THAT ACT ON THE BASIS OF THE PAY OF THE HIGHEST RANK HELD WHILE IN ACTIVE DUTY. IT IS NOTED THAT ON MARCH 17, 1945, THE NAVY DEPARTMENT MADE AN ADVERSE REPORT TO THE CHAIRMAN OF THE HOUSE COMMITTEE ON NAVAL AFFAIRS ON THE SAID BILL H.R. 54.

THE MATTER HAS BEEN GIVEN CAREFUL CONSIDERATION, BUT, FOR THE REASONS GIVEN, I THINK THIS OFFICE IS NOT WARRANTED IN CONCLUDING THAT THE CONGRESS INTENDED BY THE SAID GENERAL LANGUAGE IN SECTION 15 OF THE PAY READJUSTMENT ACT TO AUTHORIZE THE COMPUTATION OF RETIRED PAY FOR THE OFFICERS THERE INVOLVED ON THE BASIS OF HIGHER GRADES TEMPORARILY HELD UNDER THE ACT OF JULY 24, 1941, AT THE TIME OF RETIREMENT. THEREFORE, I AM CONSTRAINED TO ANSWER THE QUESTION SUBMITTED IN THE NEGATIVE.