B-57344, DECEMBER 6, 1946, 26 COMP. GEN. 394

B-57344: Dec 6, 1946

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WERE CLARIFIED BY THE ACT OF JULY 1. A PUBLIC HEALTH SERVICE COMMISSIONED OFFICER PREVIOUSLY PLACED ON "WAITING ORDERS" (RETIRED) FOR AGE WHILE SERVING IN A HIGHER TEMPORARY GRADE IS NOT ENTITLED TO "WAITING ORDERS PAY" OF SUCH HIGHER GRADE ON THE BASIS THAT SECTION 6 OF THE ACT OF JUNE 30. 1946: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11. THAT YOU WERE PLACED IN A "WAITING ORDERS" STATUS IN THE GRADE OF PHARMACIST EFFECTIVE JUNE 1. PRESUMABLY IT IS YOUR VIEW THAT SECTIONS 6 AND 8 OF THE ACT OF JUNE 30. TO THE HIGHER TEMPORARY GRADE OF PHARMACIST WAS MADE PURSUANT TO A PROVISION APPEARING IN THE FIRST DEFICIENCY APPROPRIATION ACT. CLEARLY PROVIDES THAT AN OFFICER APPOINTED TO A HIGHER TEMPORARY GRADE PURSUANT TO THE SAID ACT IS TO RETAIN HIS PERMANENT GRADE.

B-57344, DECEMBER 6, 1946, 26 COMP. GEN. 394

PAY - RETIRED - PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS SERVING IN HIGHER TEMPORARY GRADES INASMUCH AS THE "MILITARY BENEFITS," INCLUDING RETIREMENT, OF COMMISSIONED MILITARY AND NAVAL PERSONNEL EXTENDED TO PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS BY SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, WERE CLARIFIED BY THE ACT OF JULY 1, 1944, AND LIMITED TO THOSE OF COMMISSIONED ARMY OFFICERS, A PUBLIC HEALTH SERVICE COMMISSIONED OFFICER PREVIOUSLY PLACED ON "WAITING ORDERS" (RETIRED) FOR AGE WHILE SERVING IN A HIGHER TEMPORARY GRADE IS NOT ENTITLED TO "WAITING ORDERS PAY" OF SUCH HIGHER GRADE ON THE BASIS THAT SECTION 6 OF THE ACT OF JUNE 30, 1942, PROVIDES THAT THE RETIRED PAY OF NAVY OFFICERS RETIRED FOR AGE BE COMPUTED ON THEIR HIGHER TEMPORARY GRADES.

ASSISTANT COMPTROLLER GENERAL YATES TO CLARENCE H. BIERMAN, DECEMBER 6, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1946, REQUESTING REVIEW OF SETTLEMENT OF THIS OFFICE DATED OCTOBER 29, 1945, DISALLOWING YOUR CLAIM FOR THE DIFFERENCE BETWEEN "WAITING ORDERS PAY" OF A PASSED ASSISTANT PHARMACIST AND PHARMACIST, U.S. PUBLIC HEALTH SERVICE, DURING THE PERIOD JUNE 1 TO 30, 1944.

IT APPEARS FROM CORRESPONDENCE SUBMITTED WITH YOUR CLAIM THAT IMMEDIATELY PRIOR TO APRIL 1, 1943, YOU SERVED AS A COMMISSIONED OFFICER OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE IN THE GRADE OF PASSED ASSISTANT PHARMACIST AND ON THE LATTER DATE YOU RECEIVED AN APPOINTMENT TO THE HIGHER TEMPORARY GRADE OF PHARMACIST; THAT YOU WERE PLACED IN A "WAITING ORDERS" STATUS IN THE GRADE OF PHARMACIST EFFECTIVE JUNE 1, 1944, HAVING REACHED THE AGE OF 64 YEARS ON MAY 4, 1944. PRESUMABLY IT IS YOUR VIEW THAT SECTIONS 6 AND 8 OF THE ACT OF JUNE 30, 1942, 56 STAT. 463, 465, AND SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, MAY BE REGARDED AS AUTHORIZING THE PAYMENT TO YOU OF "WAITING ORDERS" PAY ON THE BASIS OF THE HIGHER TEMPORARY GRADE OF PHARMACIST, THE GRADE IN WHICH YOU SERVED IMMEDIATELY PRECEDING THE ADMINISTRATIVE ACTION PLACING YOU ON WAITING ORDERS IN THE PERMANENT GRADE OF PASSED ASSISTANT PHARMACIST.

YOUR APPOINTMENT ON APRIL 1, 1943, TO THE HIGHER TEMPORARY GRADE OF PHARMACIST WAS MADE PURSUANT TO A PROVISION APPEARING IN THE FIRST DEFICIENCY APPROPRIATION ACT, 1943, PUBLIC LAW 11, APPROVED MARCH 18, 1943, 57 STAT. 21, 24, AS FOLLOWS:

DURING THE EXISTING WAR, AND FOR SIX MONTHS THEREAFTER, ANY COMMISSIONED OFFICER OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE MAY BE APPOINTED TO HIGHER TEMPORARY GRADE WITH THE PAY AND ALLOWANCES THEREOF WITHOUT VACATING HIS PERMANENT APPOINTMENT * * *.

THE SAID ACT OF MARCH 18, 1943, AUTHORIZING THE APPOINTMENT OF PUBLIC HEALTH SERVICE OFFICERS TO HIGHER TEMPORARY GRADES, CLEARLY PROVIDES THAT AN OFFICER APPOINTED TO A HIGHER TEMPORARY GRADE PURSUANT TO THE SAID ACT IS TO RETAIN HIS PERMANENT GRADE, AND THERE IS NOTHING CONTAINED THEREIN WHICH INDICATES THAT SUCH AN OFFICER IS TO BE PLACED ON WAITING ORDERS IN OTHER THAN HIS PERMANENT GRADE.

SECTION 6 OF PUBLIC LAW 639, APPROVED JUNE 30, 1942, 56 STAT. 463, 465, REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

ANY OFFICER OF THE REGULAR NAVY BELOW THE GRADE OF VICE ADMIRAL AND ANY OFFICER OF THE REGULAR MARINE CORPS BELOW THE RANK OF LIEUTENANT GENERAL TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF SIXTY-FOUR YEARS WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE RETIRED IN SUCH TEMPORARY GRADE OR RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT, UNLESS ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK UNDER SOME OTHER PROVISION OF LAW.

SECTION 8 OF THE SAID ACT, ALSO REFERRED TO IN YOUR LETTER, PROVIDES THAT THE PROVISIONS OF THE ACT SHALL APPLY TO OFFICER PERSONNEL OF THE COAST GUARD IN LIKE MANNER AND TO THE SAME EXTENT AS ARE PROVIDED FOR OFFICER PERSONNEL OF THE NAVY AND MARINE CORPS.

IT IS TO BE NOTED THAT SECTION 6 OF THE SAID ACT PROVIDES THAT CERTAIN OFFICERS OF THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD TRANSFERRED TO THE RETIRED LIST ON ATTAINING THE AGE OF 64 YEARS WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, MAY BE RETIRED IN SUCH HIGHER TEMPORARY GRADE WITH THE RETIRED PAY OF THAT GRADE. HOWEVER, SINCE YOU ARE AN OFFICER OF THE PUBLIC HEALTH SERVICE--- NOT ONE OF THE SERVICES MENTIONED THEREIN--- AND, AS YOUR APPOINTMENT TO A HIGHER TEMPORARY GRADE WAS MADE PURSUANT TO THE ACT OF MARCH 18, 1943--- NOT THE ACT OF JULY 24, 1941--- THE SAID PROVISION IN SECTION 6 OF THE ACT OF JUNE 30, 1942, HAS NO APPLICATION TO YOUR CASE, UNLESS, OF COURSE, IT MAY BE REGARDED THAT THE ASSIMILATING PROVISIONS OF SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, 57 STAT. 588, REFERRED TO IN YOUR LETTER, OPERATE TO EXTEND TO OFFICERS OF THE PUBLIC HEALTH SERVICE THE BENEFITS AUTHORIZED UNDER SECTION 6 OF THE ACT OF JUNE 30, 1942, SUPRA.

SECTION 8 OF THE SAID ACT OF NOVEMBER 11, 1943, EXTENDS TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE CERTAIN MILITARY BENEFITS AND DEFINES "MILITARY BENEFITS" AS "ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES * * * ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE INCLUDING," INTER ALIA,"RETIREMENT.' THE SAID PROVISION IN SECTION 8 OF THE 1943 ACT, EXTENDING TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ALL BENEFITS, ET CETERA, AUTHORIZED FOR "COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES" GAVE RISE TO CONSIDERABLE DOUBT AND UNCERTAINTY AS TO THE PARTICULAR BENEFITS INTENDED TO BE CONFERRED BY THE 1943 ACT; THAT IS, IT WAS NOT CLEAR WHETHER THE BENEFITS AUTHORIZED WERE THOSE AUTHORIZED EXCLUSIVELY FOR THE ARMY, THOSE AUTHORIZED EXCLUSIVELY FOR THE NAVY, OR THOSE AUTHORIZED FOR BOTH THE ARMY AND NAVY. SUCH STATE OF UNCERTAINTY AS TO THE EXACT BENEFITS SOUGHT TO BE BESTOWED BY THE 1943 ACT, AND CERTAIN OTHER FEATURES OF THE ACT, PROMPTED THE CONGRESS TO REPEAL THE 1943 ACT AND TO ENACT NEW LEGISLATION SETTING FORTH THE EXACT RIGHTS, PRIVILEGES, ET CETERA, OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. THE RESULTING LEGISLATION, PUBLIC LAW 410, APPROVED JULY 1, 1944, 58 STAT. 689, SPECIFICALLY PROVIDES THAT THE "MILITARY BENEFITS" SHALL BE ALL RIGHTS, BENEFITS, ET CETERA, AUTHORIZED FOR "COMMISSIONED OFFICERS OF THE ARMY.' HENCE, WHATEVER DOUBT MAY HAVE EXISTED RESPECTING THE EXTENT OF THE MILITARY BENEFITS AUTHORIZED UNDER THE REPEALED 1943 ACT WOULD SEEM TO HAVE BEEN REMOVED BY THE EXPRESS PROVISION IN THE 1944 ACT THAT THE MILITARY BENEFITS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE THE RIGHTS, BENEFITS, ET CETERA, AUTHORIZED FOR COMMISSIONED OFFICERS OF THE ARMY. ACCORDINGLY, IT REASONABLY APPEARS THAT, GENERALLY, UNDER EITHER THE 1943 ACT OR THE 1944 ACT THE "MILITARY BENEFITS" AUTHORIZED FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE THE RIGHTS, ETC., PROVIDED BY LAW FOR COMMISSIONED OFFICERS OF THE ARMY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW. HENCE, THE PROVISIONS OF THE ACT OF JUNE 30, 1942, AUTHORIZING CERTAIN COMMISSIONED PERSONNEL OF THE NAVY, MARINE CORPS, AND COAST GUARD TO BE RETIRED IN THEIR HIGHER TEMPORARY GRADES, HAVE NO APPLICATION TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. CONSEQUENTLY, I PERCEIVE NO LEGAL BASIS UPON WHICH IT MAY BE CONCLUDED THAT YOU ARE ENTITLED UNDER THE ACT OF JUNE 30, 1942, TO THE WAITING ORDERS PAY OF THE HIGHER TEMPORARY GRADE IN WHICH YOU SERVED IMMEDIATELY PRIOR TO BEING PLACED ON WAITING ORDERS. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 29, 1945, IS CORRECT AND MUST BE SUSTAINED.