B-57649, SEPTEMBER 10, 1946, 26 COMP. GEN. 176

B-57649: Sep 10, 1946

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AS IS AUTHORIZED FOR NAVAL PERSONNEL BY THE RETIREMENT PROVISIONS OF SECTION 10 OF SAID 1941 ACT. OFFICERS OF THE COAST AND GEODETIC SURVEY WHO WERE ENTITLED. ARE ENTITLED. THE PRESIDENT MAY DEFER THE RETIREMENT OF THOSE COAST AND GEODETIC SURVEY OFFICERS WHO ARE ENTITLED TO THE RETIREMENT BENEFITS OF SECTION 9 AS WOULD NOT CAUSE THE TOTAL NUMBER OF OFFICERS SO DEFERRED TO EXCEED THE MAXIMUM OF 10 OFFICERS. COAST AND GEODETIC SURVEY IS PROVIDED FOR IN THE ACT OF MAY 18. YOUR DECISION IS REQUESTED AS TO THE EXTENT TO WHICH THE PROVISIONS OF THE ACT OF FEBRUARY 21. "WHEREAS THE WARS IN WHICH THE UNITED STATES HAS BEEN ENGAGED ARE NOW IN PROCESS OF BEING BROUGHT TO A SUCCESSFUL CLOSE WITH THE PROBABILITY THAT THE SERVICES OF A NUMBER OF OFFICERS OF THE NAVY AND MARINE CORPS.

B-57649, SEPTEMBER 10, 1946, 26 COMP. GEN. 176

RETIREMENT - COAST AND GEODETIC SURVEY OFFICERS - APPLICABILITY OF ACT OF FEBRUARY 21, 1946 IN VIEW OF THE PERMANENT PROVISIONS OF THE ACT OF JANUARY 19, 1942, RELATING SPECIFICALLY TO THE BOARD TO CONSIDER THE RETIREMENT OF CERTAIN COAST AND GEODETIC SURVEY OFFICERS FOR OTHER THAN AGE, LENGTH OF SERVICE, AND DISABILITY, THE PROVISIONS OF SECTION 2 AND THE TEMPORARY PROVISIONS OF SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, RESPECTING THE BOARDS TO CONSIDER THE RETIREMENT OF CERTAIN REGULAR NAVY OFFICERS, MAY NOT BE REGARDED AS APPLICABLE TO COAST AND GEODETIC SURVEY OFFICERS BY REASON OF THE PROVISIONS OF SECTION 11 OF THE ACT OF MAY 18, 1920, EXTENDING TO COAST AND GEODETIC SURVEY OFFICERS THE GENERAL LAWS RELATING TO THE RETIREMENT OF NAVY OFFICERS. IN VIEW OF THE PERMANENT PROVISIONS OF THE ACT OF JANUARY 19, 1942, PROVIDING SPECIFICALLY FOR THE RETIREMENT OF COAST AND GEODETIC SURVEY OFFICERS FOR OTHER THAN AGE, 30 YEARS' SERVICE, OR DISABILITY, THE PROVISIONS OF SECTION 11 OF THE ACT OF MAY 18, 1920, EXTENDING TO COAST AND GEODETIC SURVEY OFFICERS THE GENERAL LAWS RELATING TO THE RETIREMENT OF NAVY OFFICERS, MAY NOT BE VIEWED AS EXTENDING TO COAST AND GEODETIC SURVEY OFFICERS THE BENEFITS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AUTHORIZING THE VOLUNTARY RETIREMENT OF NAVY OFFICERS UPON THE COMPLETION OF 20 YEARS' SERVICE. THE PROVISIONS OF THE ACT OF DECEMBER 3, 1942, AUTHORIZING TEMPORARY WARTIME APPOINTMENTS FOR OFFICERS OF THE COAST AND GEODETIC SURVEY IN LIKE MANNER AS PROVIDED FOR NAVY OFFICERS BY THE ACT OF JULY 24, 1941, MAY NOT BE VIEWED AS EXTENDING TO COAST AND GEODETIC SURVEY OFFICERS THE RIGHT TO BE RETIRED WITH THE RETIRED PAY OF THE HIGHEST TEMPORARY GRADE THEY HELD UNDER SAID 1942 ACT, AS IS AUTHORIZED FOR NAVAL PERSONNEL BY THE RETIREMENT PROVISIONS OF SECTION 10 OF SAID 1941 ACT, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946. OFFICERS OF THE COAST AND GEODETIC SURVEY WHO WERE ENTITLED, BY VIRTUE OF THE ASSIMILATING PROVISION OF SECTION 11 OF THE ACT OF MAY 18, 1920, TO THE BENEFITS OF SECTION 1444, REVISED STATUTES, PROVIDING FOR THE RETIREMENT OF NAVY OFFICERS AT THE AGE OF 64 YEARS, ARE ENTITLED, IN VIEW OF THE REPEAL OF SAID SECTION 1444 BY SECTION 11 (B) OF THE ACT OF FEBRUARY 21, 1946, TO RETIREMENT AND TO THE PAYMENT OF RETIRED PAY ON THE BASIS PRESCRIBED FOR NAVY OFFICERS BY SECTION 9 OF THE 1946 ACT, UPON REACHING THE AGE OF 62 YEARS. THE PROVISO IN SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, AUTHORIZING THE PRESIDENT, IN HIS DISCRETION, TO DEFER THE RETIREMENT OF NAVY AND MARINE CORPS OFFICERS OTHERWISE ELIGIBLE FOR RETIREMENT THEREUNDER, NOT TO EXCEED 10 OFFICERS, HAS REFERENCE TO THE DEFERMENT OF A TOTAL OF 10 OFFICERS OF THE SERVICES SUBJECT TO SECTION 9, AND, THEREFORE, THE PRESIDENT MAY DEFER THE RETIREMENT OF THOSE COAST AND GEODETIC SURVEY OFFICERS WHO ARE ENTITLED TO THE RETIREMENT BENEFITS OF SECTION 9 AS WOULD NOT CAUSE THE TOTAL NUMBER OF OFFICERS SO DEFERRED TO EXCEED THE MAXIMUM OF 10 OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF COMMERCE, SEPTEMBER 10, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 1, 1946, AS FOLLOWS:

RETIREMENT OF COMMISSIONED OFFICERS OF THE U.S. COAST AND GEODETIC SURVEY IS PROVIDED FOR IN THE ACT OF MAY 18, 1920 (41 STAT. 603), AS FOLLOWS:

"ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY SHALL HEREAFTER APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY.'

YOUR DECISION IS REQUESTED AS TO THE EXTENT TO WHICH THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946,"TO AUTHORIZE THE PRESIDENT TO RETIRE CERTAIN OFFICERS AND ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND FOR OTHER PURPOSES," PUBLIC LAW 305--- 79TH CONGRESS, APPLY TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY.

QUESTION NO. 1. SECTIONS 1 TO 5 OF THE ACT PROVIDE FOR BOARDS TO CONSIDER AND RECOMMEND FOR RETIREMENT VARIOUS OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD IN ORDER TO CARRY OUT THE PURPOSE OF THE ACT STATED IN THE PREAMBLE, THAT,

"WHEREAS THE WARS IN WHICH THE UNITED STATES HAS BEEN ENGAGED ARE NOW IN PROCESS OF BEING BROUGHT TO A SUCCESSFUL CLOSE WITH THE PROBABILITY THAT THE SERVICES OF A NUMBER OF OFFICERS OF THE NAVY AND MARINE CORPS, PARTICULARLY SOME OF THOSE IN THE HIGHER RANKS, CANNOT BE UTILIZED.'

SPECIAL PROVISIONS FOR A PERSONNEL BOARD TO CONSIDER AND RECOMMEND FOR RETIREMENT VARIOUS OFFICERS OF THE COAST AND GEODETIC SURVEY ARE CONTAINED IN SECTIONS 3 TO 6 OF THE ACT OF JANUARY 19, 1942 (56 STAT. 6). IN VIEW OF THESE SPECIAL PROVISIONS, DO SECTIONS 1 TO 5 OF THE ACT OF FEBRUARY 21, 1946 HAVE APPLICATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY?

QUESTION NO. 2. SECTION 6 OF THE ACT PROVIDES FOR RETIREMENT OF ALL OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD UPON THEIR OWN APPLICATION AFTER TWENTY YEARS OF ACTIVE SERVICE. YOUR DECISION DATED FEBRUARY 11, 1939, B-872, HELD THAT SIMILAR LEGISLATION, WHEN APPLICABLE ONLY TO LINE OFFICERS OF THE NAVY, DID NOT APPLY TO OFFICERS OF THE COAST AND GEODETIC SURVEY. DOES THIS PROVISION, NOW APPLYING TO ALL OFFICERS OF THESE SERVICES, APPLY ALSO TO OFFICERS OF THE COAST AND GEODETIC SURVEY?

QUESTION NO. 3. IF EITHER OF THE FOREGOING QUESTIONS IS ANSWERED IN THE AFFIRMATIVE, SHALL OFFICERS OF THE COAST AND GEODETIC SURVEY RETIRED PURSUANT TO THE SECTIONS REFERRED TO THEREIN BE PLACED ON THE RETIRED LIST AND RECEIVE PAY IN ACCORDANCE WITH SECTION 7 OF THE ACT?

QUESTION NO. 4. SECTION 8 OF THE ACT AMENDS SECTION 10 OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 605) WHICH AUTHORIZED TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS. THIS LATTER ACT WAS MADE APPLICABLE, WITH CERTAIN LIMITATIONS, TO OFFICERS OF THE COAST AND GEODETIC SURVEY BY THE ACT APPROVED DECEMBER 3, 1942 (56 STAT. 1038). DO THE PROVISIONS OF SECTION 8 OF THE CURRENT ACT THEREBY BECOME APPLICABLE TO OFFICERS OF THE COAST AND GEODETIC SURVEY?

QUESTION NO. 5. SECTION 9 OF THE ACT PROVIDES THAT OFFICERS OF THE NAVY AND MARINE CORPS, AND OF THE COAST GUARD BY VIRTUE OF THE PROVISIONS OF SECTION 10, BELOW THE GRADE OF FLEET ADMIRAL SHALL BE PLACED ON THE RETIRED LIST WHEN THEY ATTAIN THE AGE OF 62 YEARS. DOES THIS PROVISION APPLY TO THE RETIREMENT OF OFFICERS OF THE COAST AND GEODETIC SURVEY AND AFFECT THE PRESENT RETIREMENT AGE OF 64 YEARS? IF SO, DOES THE PROVISION THAT THE PRESIDENT MAY, IN HIS DISCRETION, DEFER PLACING ON THE RETIRED LIST NOT MORE THAN TEN OFFICERS WHO OTHERWISE WOULD BE RETIRED, AFFECT OR SIMILARLY LIMIT TO TEN THE NUMBER OF OFFICERS OF THE COAST AND GEODETIC SURVEY WHO MAY THUS BE DEFERRED?

SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, 604, QUOTED IN PART IN YOUR LETTER, READS AS FOLLOWS:

THAT IN LIEU OF COMPENSATION NOW PRESCRIBED BY LAW, COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS NOW OR HEREAFTER MAY BE PRESCRIBED FOR OFFICERS OF THE NAVY WITH WHOM THEY HOLD RELATIVE RANK AS PRESCRIBED IN THE ACT OF MAY 22, 1917, ENTITLED "AN ACT TO TEMPORARILY INCREASE THE COMMISSIONED AND WARRANT AND ENLISTED STRENGTH OF THE NAVY AND MARINE CORPS, AND FOR OTHER PURPOSES," INCLUDING LONGEVITY; AND ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY SHALL HEREAFTER APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY * * *.

THAT PART OF SECTION 11 OF THE SAID ACT OF MAY 18, 1920, 33 U.S.C. 864, EXTENDING TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY "ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY" HAS BEEN REGARDED, IN THE ABSENCE OF STATUTORY PROVISIONS SPECIFICALLY RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, AS APPLYING TO SUCH OFFICERS THE GENERAL LAWS OF THE NAVY --- AS DISTINGUISHED FROM SPECIAL LAWS APPLICABLE TO A SPECIFIC CLASS OF OFFICERS (18 COMP. GEN. 650/--- RELATING TO THE RETIREMENT OF OFFICERS OF THE NAVY WHICH ARE APPLICABLE TO ALL OFFICERS OF THE NAVY, SUCH AS RETIREMENT AT THE AGE OF 64 YEARS (34 U.S.C. 384-- REPEALED BY SECTION 11 (B) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 29); RETIREMENT UPON COMPLETING 30 YEARS' SERVICE (34 U.S.C. 383 (35 STAT. 128) ); RETIREMENT FOR DISABILITY (34 U.S.C. 417, 418 (SECS 1453, 1454, R.S.) ). SEE REGULATIONS FOR THE GOVERNMENT OF THE U.S. COAST AND GEODETIC SURVEY, 1931, PARAGRAPHS 569 TO 571. HOWEVER, THE ASSIMILATING PROVISION OF THE 1920 ACT DOES NOT OPERATE TO CONTINUE SUCH ASSIMILATION WHEN THE CONGRESS OTHERWISE HAS MADE SPECIFIC PROVISION FOR THE RETIREMENT OR PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. CF. 25 COMP. GEN. 388, 397, AND CASES CITED THEREIN. THE PROVISION IN THE 1920 ACT, ASSIMILATING THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY TO THOSE PROVIDED BY LAW FOR OFFICERS OF THE NAVY, LARGELY WAS SUPERSEDED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, WHICH PRESCRIBED SPECIFIC RATES OF PAY AND ALLOWANCES FOR COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. CF. 22 COMP. GEN. 723. ALSO, AS HEREINAFTER INDICATED, IN VIEW OF THE EXPRESS PROVISION IN THE ACT OF JANUARY 19, 942, 56 STAT. 6, RELATING TO THE DISTRIBUTION, PROMOTION, AND TO A CERTAIN EXTENT, THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, IT APPEARS THAT THE ASSIMILATING PROVISION OF THE 1920 ACT, INSOFAR AS IT CONCERNS THE RETIREMENT BENEFITS OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, MAY HAVE BEEN SUPERSEDED, TO SOME EXTENT AT LEAST, BY SUCH EXPRESS RETIREMENT PROVISIONS.

THE SAID ACT OF JANUARY 19, 1942, APPLICABLE TO THE COAST AND GEODETIC SURVEY ONLY, SPECIFICALLY PROVIDES FOR THE DISTRIBUTION, PROMOTION, AND RETIREMENT OF COMMISSIONED OFFICERS OF THAT ORGANIZATION FOR OTHER THAN AGE, LENGTH OF SERVICE, AND DISABILITY. SECTION 1 OF THE SAID ACT, 56 STAT. 6, PROVIDES THAT COMMISSIONED OFFICERS ON THE ACTIVE LIST OF THE COAST AND GEODETIC SURVEY ,SHALL BE DISTRIBUTED IN RANK RELATIVE WITH OFFICERS OF THE NAVY" IN STIPULATED PROPORTIONS; SECTION 2, 56 STAT. 6, SETS FORTH THE PROCEDURE TO BE FOLLOWED IN CONNECTION WITH RECOMMENDING PROMOTIONS; SECTION 3, 56 STAT. 7, DIRECTS THE SECRETARY OF COMMERCE TO APPOINT AND CONVENE A PERSONNEL BOARD CONSISTING OF NOT LESS THAN FIVE OFFICERS NOT BELOW THE RANK OF COMMANDER ON THE ACTIVE LIST OF THE COAST AND GEODETIC SURVEY TO, INTER ALIA, MAKE RECOMMENDATIONS FOR RETIREMENT; SECTION 4, 56 STAT. 7, PROVIDES THAT SUCH RECOMMENDATIONS SHALL BE SUBMITTED TO THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL. ON THE OTHER HAND, PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 26,"AN ACT TO AUTHORIZE THE PRESIDENT TO RETIRE CERTAIN OFFICERS AND ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND FOR OTHER PURPOSES" AUTHORIZES THE SECRETARY OF THE NAVY TO CONVENE BOARDS TO CONSIDER AND RECOMMEND FOR RETIREMENT OFFICERS OF THE REGULAR NAVY, ETC. SECTIONS 1 AND 2, 60 STAT. 26, DEAL WITH THE COMPOSITION OF THE BOARDS TO CONSIDER THE RETIREMENT OF OFFICERS OF THE REGULAR NAVY SERVING IN THE RANKS OF REAR ADMIRAL AND COMMODORE, OR EQUIVALENT RANK IN THE MARINE CORPS; SECTION 3, 60 STAT. 27, AUTHORIZES THE SECRETARY OF THE NAVY TO CONVENE BOARDS OF OFFICERS OF THE REGULAR NAVY AND MARINE CORPS IN THE RANK OF CAPTAIN AND BELOW IN THE NAVY AND COLONEL AND BELOW IN THE MARINE CORPS, AND PRESCRIBES THE COMPOSITION OF SUCH BOARDS; HOWEVER, THE AUTHORITY TO CONVENE SUCH BOARDS IS SPECIFICALLY LIMITED BY SECTION 12 OF THE SAID ACT, 60 STAT. 29, TO JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE PRESENT WAR OFFICIALLY SHALL BE DECLARED TERMINATED. SECTION 4, 60 STAT. 27, PROVIDES THAT THE RECOMMENDATIONS OF THE BOARD SHALL BE SUBMITTED BY THE SECRETARY OF THE NAVY TO THE PRESIDENT FOR APPROVAL OR DISAPPROVAL; SECTION 5, 60 STAT. 27, PROVIDES THAT OFFICERS RETIRED UNDER THE ACT SHALL BE PLACED ON THE RETIRED LIST ON THE FIRST DAY OF THE MONTH AS MAY BE SET BY THE SECRETARY OF THE NAVY, BUT NOT LATER THAN THE FIRST DAY OF THE SEVENTH MONTH AFTER APPROVAL BY THE PRESIDENT.

THUS, EACH STATUTE DEALS WITH THE BOARDS TO CONSIDER THE RETIREMENT, ETC., OF OFFICERS OF THE RESPECTIVE SERVICES UNDER THE CONDITIONS THEREIN PRESCRIBED, BUT IT IS TO BE NOTED THAT THE AUTHORITY VESTED IN THE SECRETARY OF THE NAVY UNDER SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, TO CONVENE BOARDS TO CONSIDER THE RETIREMENT OF NAVY OFFICERS SERVING IN THE RANK OF CAPTAIN AND BELOW IS TEMPORARY LEGISLATION IN THAT THE AUTHORITY TO CONVENE SUCH BOARDS IS, UNDER THE PROVISIONS OF SECTION 12 OF THE ACT, TO TERMINATE ON JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE PRESENT WAR OFFICIALLY IS DECLARED TERMINATED. THERE IS NOTHING IN THE ACT OF FEBRUARY 21, 1946, OR ITS LEGISLATIVE HISTORY, WHICH INDICATES THAT THE TEMPORARY PROVISIONS OF THE SAID SECTION 3--- ENACTED PRIMARILY TO ENABLE THE NAVY TO READJUST THE ACTIVE LIST OF THE NAVY TO A POSTWAR BASIS BY PROVIDING FOR THE RETIREMENT OF OFFICERS WHOSE SERVICES NO LONGER COULD BE EFFICIENTLY UTILIZED--- OR THE PROVISIONS OF SECTION 2 DEALING WITH THE COMPOSITION OF BOARDS TO CONSIDER THE RETIREMENT OF NAVY OFFICERS ABOVE THE RANK OF CAPTAIN, WERE INTENDED TO AFFECT OR TEMPORARILY SUPERSEDE OR MODIFY THE PERMANENT PROVISIONS OF THE ACT OF JANUARY 19, 1942, RELATING SPECIFICALLY TO THE COMPOSITION OF THE PERSONNEL BOARD TO CONSIDER THE RETIREMENT OF OFFICERS OF THE COAST AND GEODETIC SURVEY. ACCORDINGLY, YOUR QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE.

SECTIONS 5, 6, AND 7 OF THE ACT OF JANUARY 19, 1942, 56 STAT. 7, 8, MAKE SPECIFIC PROVISIONS FOR THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY FOR OTHER THAN AGE, LENGTH OF SERVICE, AND PHYSICAL DISABILITY, AS FOLLOWS:

SEC. 5. THE PRESIDENT MAY TRANSFER TO THE RETIRED LIST FROM THE GRADES OF CAPTAIN, COMMANDER, LIEUTENANT COMMANDER, AND LIEUTENANT SUCH OFFICERS AS HAVE BEEN RECOMMENDED FOR RETIREMENT BY THE PERSONNEL BOARD. PROVIDED, THAT THE TOTAL NUMBER OF OFFICERS SO RETIRED IN ANY FISCAL YEAR SHALL NOT EXCEED THE WHOLE NUMBER NEAREST PERCENTUM OF THE TOTAL AUTHORIZED NUMBER OF COMMISSIONED OFFICERS ON THE ACTIVE LIST, AND, EXCEPT AS OTHERWISE REQUIRED BY LAW, THE NUMBER OF OFFICERS SO RETIRED PLUS THE NUMBER OF OFFICERS RETIRED FOR AGE IN ANY FISCAL YEAR SHALL NOT EXCEED 3 PERCENTUM OF THE TOTAL AUTHORIZED NUMBER OF COMMISSIONED OFFICERS ON THE ACTIVE LIST: PROVIDED FURTHER, THAT ALL TRANSFERS TO THE RETIRED LIST PURSUANT TO THIS ACT SHALL BECOME EFFECTIVE ON THE NEXT ENSUING JULY 1 AND THE RESULTING VACANCIES MAY BE FILLED AS OF THAT DATE.

SEC. 6. OFFICERS RETIRED PURSUANT TO SECTION 5 OF THIS ACT SHALL RECEIVE PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT 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.

SEC. 8. SHOULD AN OFFICER FAIL IN HIS PHYSICAL EXAMINATION FOR PROMOTION AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY, HE SHALL BE RETIRED WITH THE RANK TO WHICH HE WOULD OTHERWISE BE ENTITLED TO BE PROMOTED, WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THAT GRADE.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, REFERRED TO IN YOUR QUESTION NO. 2, PROVIDES THAT ANY OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD, WHO SHALL HAVE COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, AT LEAST 10 YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE. SECTION 7 OF THE ACT, 60 STAT. 27, AUTHORIZES ANY OFFICER SO RETIRED TO BE PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE, PERMANENT OR TEMPORARY, IN WHICH HE SERVED SATISFACTORILY, WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS' SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY. IT WILL BE OBSERVED THAT THE SAID SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, IS A REENACTMENT OF SECTION 12 (E) OF THE NAVY PERSONNEL ACT OF JUNE 23, 1938, 52 STAT. 950, AUTHORIZING OFFICERS OF THE LINE OF THE NAVY TO RETIRE UPON COMPLETION OF 20 YEARS' COMMISSIONED SERVICE--- WHICH WAS SUSPENDED BY SECTION 1 OF THE ACT OF JUNE 30, 1942, 56 STAT. 463, AND REPEALED BY SECTION 11 (C) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 29 -- WITH THE EXCEPTION THAT THE SAID SECTION 6 AUTHORIZES ALL OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WHO HAVE COMPLETED 20 YEARS' ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, TO BE PLACED ON THE RETIRED LIST WITH RETIRED PAY COMPUTED AS THEREIN AUTHORIZED. IT WAS ADMINISTRATIVELY SUGGESTED IN 1939 THAT THE SAID SECTION 12 (E) OF THE NAVY PERSONNEL ACT OF JUNE 23, 1938, MIGHT BE APPLICABLE TO THE COAST AND GEODETIC SURVEY BY REASON OF THE ASSIMILATING PROVISION OF THE ACT OF MAY 18, 1920, SUPRA, SO AS TO AUTHORIZE OFFICERS OF THE COAST AND GEODETIC SURVEY TO VOLUNTARILY RETIRE UPON COMPLETION OF 20 YEARS' SERVICE, BUT IT WAS CONCLUDED IN DECISION OF FEBRUARY 11, 1939, 18 COMP. GEN. 650, THAT THE SAID SECTION 12 (E) WAS APPLICABLE TO LINE OFFICERS OF THE NAVY ONLY, AND HENCE, HAD NO APPLICATION TO THE COAST AND GEODETIC SURVEY. THEREAFTER, THE ACT OF JANUARY 19, 1942, WAS ENACTED SO AS TO PROVIDE FOR THE RETIREMENT, ETC., OF OFFICERS OF THE COAST AND GEODETIC SURVEY FOR OTHER THAN AGE, 30 YEARS' SERVICE OR DISABILITY, BUT NO ATTEMPT APPEARS TO HAVE BEEN MADE AT THAT TIME TO OBTAIN A GENERAL PROVISION FOR THE RETIREMENT OF COMMISSIONED OFFICERS UPON THE COMPLETION OF 20 YEARS' SERVICE. WHILE SECTION 5 OF THE ACT OF JANUARY 19, 1942, AUTHORIZES THE RETIREMENT OF OFFICERS OF THE COAST AND GEODETIC SURVEY FOR OTHER THAN AGE, 30 YEARS' SERVICE OR DISABILITY, THE SAID SECTION PLACES STRICT LIMITATIONS UPON THE RANK AND NUMBER OF OFFICERS THAT MAY BE SO RETIRED IN ANY FISCAL YEAR.

THE NUMBER OF OFFICERS AUTHORIZED TO BE RETIRED UNDER THE SAID SECTION 5 IN ANY FISCAL YEAR FOR OTHER THAN AGE, 30 YEARS' SERVICE OR DISABILITY, IS LIMITED TO THE WHOLE NUMBER NEAREST 1 PERCENTUM OF THE TOTAL AUTHORIZED NUMBER OF COMMISSIONED OFFICERS ON THE ACTIVE LIST--- APPROXIMATELY 170 OFFICERS--- AND, EXCEPT AS OTHERWISE REQUIRED BY LAW, THE NUMBER OF OFFICERS RETIRED UNDER THE SAID SECTION 5, PLUS THE NUMBER OF OFFICERS RETIRED FOR AGE IN ANY FISCAL YEAR, SHALL NOT EXCEED 3 PERCENTUM OF THE TOTAL AUTHORIZED NUMBER OF COMMISSIONED OFFICERS ON THE ACTIVE LIST. HOUSE REPORT NO. 1412, TO ACCOMPANY H.R. 5837, WHICH BECAME THE SAID ACT OF JANUARY 19, 1942, THE OPERATION OF THE SAID SECTION 5 IS EXPLAINED AS FOLLOWS:

SECTION 5 PROVIDES THAT WITH CERTAIN LIMITATIONS THE PRESIDENT MAY RETIRE TWO OFFICERS ANNUALLY, OTHER THAN THOSE RETIRED FOR AGE, PHYSICAL DISABILITY, OR BY VOLUNTARY REQUEST AFTER 30 YEARS' SERVICE. THE LIMITATIONS PROVIDE THAT IN ANY FISCAL YEAR:

IF FIVE OFFICERS ARE RETIRED FOR AGE, NONE MAY BE RETIRED, UNDER THIS SECTION.

IF FOUR OFFICERS ARE RETIRED FOR AGE, ONE MAY BE RETIRED, UNDER THIS SECTION.

IF THREE OR LESS OFFICERS ARE RETIRED FOR AGE, TWO MAY BE RETIRED, UNDER THIS SECTION.

THUS, WHILE THE ACT OF JANUARY 19, 1942, SPECIFICALLY DEALING WITH THE RETIREMENT OF OFFICERS OF THE COAST AND GEODETIC SURVEY FOR OTHER THAN AGE, LENGTH OF SERVICE, OR DISABILITY, MADE NO PROVISION FOR THE VOLUNTARY RETIREMENT OF SUCH OFFICERS AT REDUCED RATES OF PAY UPON THE COMPLETION OF 20 YEARS' SERVICE, IT IS NOW SUGGESTED THAT SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AUTHORIZING THE VOLUNTARY RETIREMENT OF NAVY, MARINE CORPS, AND COAST GUARD OFFICERS UPON COMPLETION OF 20 YEARS' SERVICE, EXTENDS SUCH RIGHT TO RETIREMENT TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY BY REASON OF THE ASSIMILATING PROVISION IN THE ACT OF MAY 18, 1920.

TO SO VIEW THE ASSIMILATING PROVISION IN THE ACT OF MAY 18, 1920, WOULD BE CONTRARY TO THE STATED INTENT AND PURPOSE OF SECTION 5 OF THE ACT OF JANUARY 19, 1942, IN THAT IT WOULD PERMIT THE RETIREMENT, ON COMPLETION OF 20 YEARS' SERVICE, OF AN UNLIMITED NUMBER OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. THE SAID SECTION 5 SPECIFICALLY DEALS WITH THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY FOR OTHER THAN AGE, 30 YEARS' SERVICE AND DISABILITY, AND THE LIMITATION THEREIN PRESCRIBED AS TO THE NUMBER OF OFFICERS THAT MAY BE RETIRED UPON COMPLETION OF LESS THAN 30 YEARS' SERVICE WAS ENACTED AFTER CAREFUL AND THOROUGH CONSIDERATION OF THE PERSONNEL PROBLEMS AND QUASI-MILITARY STATUS OF THE COMPARATIVELY SMALL FORCE OF COMMISSIONED OFFICERS OF THAT SERVICE- -- APPROXIMATELY 170 OFFICERS--- BY OFFICIALS OF THE COAST AND GEODETIC SURVEY AND THE COMMITTEES OF THE CONGRESS GENERALLY CONCERNED WITH MATTERS RESPECTING RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. ON THE OTHER HAND, THE ACT OF FEBRUARY 21, 1946, WAS ENACTED AT THE REQUEST OF THE NAVY DEPARTMENT, AFTER CONSIDERATION BY THE COMMITTEES ON NAVAL AFFAIRS IN THE SENATE AND HOUSE OF REPRESENTATIVES OF THE PERSONNEL PROBLEMS FACING THE NAVY DEPARTMENT AS A RESULT OF THE SUSPENSION DURING THE WAR OF RETIREMENT LAWS APPLICABLE TO SUCH OFFICERS, THE NECESSITY OF RETIRING A LARGE NUMBER OF OFFICERS WHOSE SERVICES NO LONGER COULD BE EFFICIENTLY UTILIZED IN THE POSTWAR NAVY, ETC. ANY SIMILAR PERSONNEL PROBLEMS WHICH MAY HAVE EXISTED IN THE COAST AND GEODETIC SURBEY, DO NOT APPEAR TO HAVE BEEN CONSIDERED BY THE CONGRESSIONAL COMMITTEES CONSIDERING THE THEN PROPOSED ACT OF FEBRUARY 21, 1946. THAT CONNECTION IT WILL BE NOTED THAT THE COAST GUARD, WHICH, WITH CERTAIN EXCEPTIONS, WAS TRANSFERRED BACK TO THE TREASURY DEPARTMENT EFFECTIVE JANUARY 1, 1946, SPECIFICALLY WAS INCLUDED WITHIN THE BENEFITS OF THE ACT OF FEBRUARY 21, 1946, BY SECTION 10 THEREOF, 60 STAT. 29. IT IS AT LEAST DOUBTFUL THAT THE PROVISIONS OF THE SAID SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, WERE INTENDED TO APPLY TO THE COAST AND GEODETIC SURVEY. A MORE REASONABLE VIEW OF THE ASSIMILATING PROVISION OF THE ACT OF MAY 18, 1920, CONSIDERED IN CONJUNCTION WITH THE SPECIFIC PROVISION IN THE ACT OF JANUARY 19, 1942, RELATING TO THE RETIREMENT OF OFFICERS OF THE COAST AND GEODETIC SURVEY, IS THAT WHILE THE SAID 1942 ACT DID NOT MATERIALLY AFFECT THE RETIREMENT RIGHTS THERETOFORE REGARDED AS HAVING BEEN EXTENDED TO SUCH OFFICERS BY REASON OF THE ASSIMILATING PROVISION OF THE 1920 ACT, THE 1942 ACT IN EFFECT SUPERSEDED THE ASSIMILATING PROVISION IN THE 1920 ACT INSOFAR AS RETIREMENT OF OFFICERS WHO HAD COMPLETED LESS THAN 30 YEARS' SERVICE IS CONCERNED. IN ANY EVENT, THE MATTER IS TOO DOUBTFUL FOR THIS OFFICE TO CONCLUDE THAT THE ASSIMILATING PROVISION OF THE ACT OF MAY 18, 1920, PROPERLY MAY BE VIEWED AS EXTENDING TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY THE RETIREMENT BENEFITS AUTHORIZED FOR COMMISSIONED OFFICERS OF THE NAVY UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946. ACCORDINGLY, YOUR QUESTION NO. 2 IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION NO. 3.

PRIOR TO AMENDMENT SECTION 1 OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZED THE PRESIDENT IN TIME OF WAR AND NATIONAL EMERGENCY TO TEMPORARILY APPOINT CERTAIN PERSONNEL OF THE NAVY, MARINE CORPS AND COAST GUARD TO HIGHER GRADES, AND SECTION 10 THEREOF, 55 STAT. 605, PROVIDED THAT PERSONNEL APPOINTED UNDER AUTHORITY OF THAT ACT MAY CONTINUE IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN 6 MONTHS AFTER THE TERMINATION OF THE WAR OR NATIONAL EMERGENCY. OTHER SECTIONS OF THE ACT MAKE PROVISIONS FOR THE RETIREMENT OF OFFICERS AND ENLISTED MEN WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK. SECTION 7 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, AMENDED SECTIONS 1 AND 10 OF THE SAID ACT SO AS TO LIMIT THE PRESIDENT'S AUTHORITY TO MAKE SUCH TEMPORARY APPOINTMENTS TO ,NOT LATER THAN JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE WAR OR NATIONAL EMERGENCY SHALL TERMINATE," AND ALSO AMENDED SECTION 10 "SO THAT TEMPORARY APPOINTMENTS MADE UNDER AUTHORITY OF THAT ACT DURING THE PRESENT WAR MAY CONTINUE IN FORCE UNTIL 6 MONTHS AFTER THE TERMINATION OF THIS ACT.' THE ACT OF DECEMBER 3, 1942, 56 STAT. 1038, EXPRESSLY AUTHORIZES THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY IN THE TIME OF WAR OR NATIONAL EMERGENCY, AND PROVIDES THAT PERSONNEL OF THE COAST AND GEODETIC SURVEY SHALL BE SUBJECT, IN LIKE MANNER AND TO THE SAME EXTENT AND WITH THE SAME RELATIVE CONDITIONS AS ARE PROVIDED FOR PERSONNEL OF THE NAVY, TO THE ACT OF JULY 24, 1941, EXCEPT THAT TEMPORARY APPOINTMENTS AND PROMOTIONS SHALL BE LIMITED AS FOLLOWS:

(1) COMMISSIONED OFFICERS IN THE SERVICE OF THE WAR DEPARTMENT OR OF THE NAVY DEPARTMENT, UNDER THE PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87), MAY, UPON RECOMMENDATION, RESPECTIVELY, OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, BE TEMPORARILY PROMOTED TO HIGHER RANKS OR GRADES.

(2) COMMISSIONED OFFICERS IN THE SERVICE OF THE COAST AND GEODETIC SURVEY MAY BE TEMPORARILY PROMOTED TO FILL VACANCIES IN RANKS AND GRADES CAUSED BY THE TRANSFER OF COMMISSIONED OFFICERS TO THE SERVICE AND JURISDICTION OF THE WAR OR NAVY DEPARTMENTS UNDER THE PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87).

(3) REGULARLY APPOINTED DECK OFFICERS AND JUNIOR ENGINEERS MAY BE TEMPORARILY APPOINTED TO THE RANK AND GRADE OF ENSIGN: PROVIDED, THAT THE NUMBER OF DECK OFFICERS AND JUNIOR ENGINEERS HOLDING SUCH TEMPORARY APPOINTMENTS SHALL NOT EXCEED THE NUMBER OF OFFICERS TRANSFERRED TO THE WAR AND NAVY DEPARTMENTS UNDER PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87).

SECTION 10 OF THE SAID ACT OF JULY 24, 1941, AS AMENDED, WAS FURTHER AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, TO READ AS FOLLOWS:

"/A) 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 OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.

"/B) (1) PERSONNEL OF THE RETIRED LIST RETURNED TO AN ACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

"/2) PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS AND PERSONNEL OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT SHALL, WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

"/C) PERSONNEL OF THE CLASSES DESCRIBED ABOVE WHO HAVE BEEN RETIRED OR RELEASED FROM ACTIVE DUTY PRIOR TO THE DATE OF THIS AMENDMENT SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RELEASE FROM ACTIVE DUTY, AS THE CASE MAY BE.

"/D) PERSONNEL ACCORDED HIGHER RANK PURSUANT TO THIS SECTION SHALL, IF SUBSEQUENTLY ASSIGNED ACTIVE DUTY, BE RECALLED TO ACTIVE DUTY IN THE GRADES, RANKS OR RATINGS, WITH WHICH THEY WERE RETIRED OR RETURNED TO AN INACTIVE STATUS UNLESS UNDER OTHER PROVISIONS OF LAW THEY ARE ENTITLED TO HIGHER GRADES, RANKS, OR RATINGS.

"/E) THE HIGHEST RANK IN WHICH AN OFFICER SERVED ON OR PRIOR TO JUNE 30, 1946, OR IF A PRISONER OF WAR AT ANY TIME DURING WORLD WAR II THE HIGHEST RANK TO WHICH AN OFFICER WAS TEMPORARILY APPOINTED PURSUANT TO THE PROVISIONS OF THIS ACT, IS THE HIGHEST RANK IN WHICH THE OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED PURSUANT TO THIS SECTION, UNLESS UNDER PROVISIONS OF LAW OTHER THAN THOSE CONTAINED WITHIN THIS SECTION HE IS ENTITLED TO A HIGHER RANK ON THE RETIRED LIST OR TO A HIGHER RETIRED PAY, OR UNLESS AT THE TIME OF RETIREMENT HE IS SERVING IN A HIGHER PERMANENT GRADE OR RANK.'

(B) NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS ALTERING OR AMENDING ANY PROVISION OF SECTION 7 OF THE ACT APPROVED JUNE 30, 1942 (56 STAT. 465). THE QUESTION NOW PRESENTED IS WHETHER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, ARE APPLICABLE TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. AT THE OUTSET, IT IS TO BE NOTED THAT SECTION 8 (B) OF THE 1946 ACT, 60 STAT. 28, EXPRESSLY PROVIDES THAT NOTHING IN THAT SECTION SHALL BE CONSTRUED AS ALTERING OR AMENDING ANY PROVISION OF SECTION 7 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, AND CONSEQUENTLY, INSOFAR AS CONCERNS OFFICERS OF THE COAST AND GEODETIC SURVEY, THE TEMPORARY APPOINTMENTS OF SUCH OFFICERS MAY CONTINUE IN FORCE UNTIL 6 MONTHS AFTER THE TERMINATION OF THE ACT OF JULY 24, 1941, AS AMENDED. HOWEVER, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF FEBRUARY 21, 1946, INDICATIVE OF A LEGISLATIVE INTENT TO EXTEND TO QUASI-MILITARY PERSONNEL OF THE COAST AND GEODETIC SURVEY THE LIBERAL RETIREMENT BENEFITS EXPRESSLY AUTHORIZED FOR NAVAL AND MARINE CORPS PERSONNEL UNDER THE SAID SECTION 8. THE EXECUTIVE AND LEGISLATIVE POLICY WITH RESPECT TO EXTENDING TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ALL RIGHTS, PRIVILEGES, ETC., ACCORDED MILITARY AND NAVAL PERSONNEL IS SET FORTH, TO SOME EXTENT, IN THE PRESIDENT'S VETO MESSAGE OF AUGUST 13, 1942, ON H.R. 6818--- WHICH AS REENACTED BECAME THE SAID ACT OF DECEMBER 3, 1942 -- IN PERTINENT PART, AS FOLLOWS:

THIS BILL, AS INDICATED BY ITS TITLE, AUTHORIZES THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY IN TIME OF WAR OR NATIONAL EMERGENCY. IT CONTAINS, HOWEVER, THE FURTHER AND MORE FAR-REACHING PROVISION THAT "OFFICERS ON THE ACTIVE LIST OF THE COAST AND GEODETIC SURVEY IN COMMISSIONED RANKS SHALL BE DEEMED TO BE IN ACTIVE MILITARY SERVICE.'

I AM INFORMED THAT UNDER THIS LATTER PROVISION ALL ACTIVE COMMISSIONED SERVICE WHETHER IN TIME OF WAR OR PEACE, IN THE COAST AND GEODETIC SURVEY, WOULD BE CONSIDERED ACTIVE MILITARY SERVICE, AND THAT, CONSEQUENTLY, THERE WOULD FLOW TO ITS COMMISSIONED PERSONNEL ALL PENSION, INSURANCE, AND OTHER RIGHTS AND PRIVILEGES TO WHICH MILITARY PERSONNEL AND THEIR DEPENDENTS ARE ENTITLED. THE COMMITTEE REPORTS AND THE DEBATES DO NOT INDICATE THAT THESE RESULTS WERE FORESEEN BY THE CONGRESS.

IT WOULD BE DIFFERENT IF THE MAJORITY OF THE FUNCTIONS OF THE COAST AND GEODETIC SURVEY WERE CLEARLY MILITARY OR NAVAL. ON THE CONTRARY, IN TIME OF PEACE, ITS DUTIES AND FUNCTIONS ARE NORMALLY CIVILIAN; AND IN TIME OF WAR MOST OF THEM CONTINUE TO BE CIVILIAN.

I AM, THEREFORE, UNABLE TO FIND ANY REASON WHICH WOULD JUSTIFY PLACING ALL OF THE ACTIVE COMMISSIONED PERSONNEL OF THE COAST AND GEODETIC SURVEY INTO THE CATEGORY OF "ACTIVE MILITARY SERVICE.'

AND IT SHOULD BE REMEMBERED THAT, UNDER EXISTING LAW, OFFICERS OF THE COAST AND GEODETIC SURVEY, ACTUALLY SERVING UNDER MILITARY OR NAVAL COMMAND, ARE NOW ENTITLED TO THE BENEFITS OF THE LAWS WHICH APPLY TO THE ARMED FORCES.

IN REPORT NO. 2507 OF THE COMMITTEE ON THE MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES, ON H.R. 7556, WHICH WAS ENACTED AS A SUBSTITUTE FOR THE VETOED BILL H.R. 6818 AND BECAME THE ACT OF DECEMBER 3, 1942, SUPRA, IT IS STATED:

THE BILL, WITH THE AMENDMENT PROPOSED ABOVE, WILL CONSIST OF THREE SECTIONS. THE FIRST SECTION OF THE PROPOSED BILL IS IDENTICAL WITH THE BILL, H.R. 6818, WHICH WAS REPORTED FAVORABLY BY THIS COMMITTEE ON APRIL 13, 1942. THE BILL THEN CONSISTED OF ONLY ONE SECTION, BUT IT WAS AMENDED IN THE SENATE BY THE INCLUSION OF CERTAIN LANGUAGE WHICH WAS THE SUBJECT OF THE PRESIDENT'S VETO. THE VETO BY THE PRESIDENT WAS DIRECTED SPECIFICALLY TO THE AMENDMENT WHICH WAS INSERTED IN THE SENATE. THAT AMENDMENT DELETED THE WORDS "PERSONNEL OF THE COAST AND GEODETIC SURVEY" AND SUBSTITUTED THEREFOR THE WORDS "OFFICERS ON THE ACTIVE LIST OF THE COAST AND GEODETIC SURVEY IN COMMISSIONED RANKS SHALL BE DEEMED TO BE IN ACTIVE MILITARY SERVICE AND.' THE VETO OF THE PRESIDENT WAS DIRECTED TO THIS LANGUAGE WHICH WAS INSERTED IN THE SENATE AND CONCURRED IN BY THE HOUSE. THIS LANGUAGE CONSTITUTED THE ONLY GROUND OF OBJECTION ON THE PART OF THE PRESIDENT.

IT WAS NOT THE INTENT OF THIS COMMITTEE NOR, WE PRESUME, OF THE SENATE, THAT THOSE RESULTS SHOULD FOLLOW WHICH THE PRESIDENT, IN HIS VETO MESSAGE, CONSIDERED MIGHT FOLLOW. WHETHER THOSE RESULTS WOULD FOLLOW FROM THE LANGUAGE OF THE AMENDMENT INSERTED IN THE SENATE NEED NOT BE CONSIDERED NOW FOR THOSE RESULTS WERE NOT INTENDED AND IF IT WERE POSSIBLE, EVEN REMOTELY, THAT SUCH RESULTS WOULD FOLLOW, IT WAS MUCH BETTER TO VETO THE BILL AND PERMIT THE CORRECTION TO BE MADE.

THE CURRENT LEGISLATIVE POLICY OF NOT EXTENDING TO QUASI-MILITARY PERSONNEL THE LIBERAL RETIREMENT BENEFITS AUTHORIZED FOR MILITARY AND NAVAL PERSONNEL IS FURTHER EXEMPLIFIED BY THE PUBLIC HEALTH SERVICE ACT OF 1944, APPROVED JULY 1, 1944, 58 STAT. 682. IN THAT CONNECTION, IT WILL BE NOTED THAT SECTION 210 (A) (1) OF THE SAID ACT, 58 STAT. 687, PROVIDES FOR THE APPOINTMENT OF OFFICERS OF THE REGULAR CORPS TO HIGHER TEMPORARY GRADES IN TIME OF WAR OR NATIONAL EMERGENCY, AND WHILE SECTIONS 210 (C) AND 211, 58 STAT. 688, PROVIDE FOR THE RETIREMENT OF COMMISSIONED OFFICERS OF THE REGULAR CORPS, THOSE SECTIONS DO NOT CONTAIN PROVISIONS SUCH AS THOSE APPEARING IN SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, AUTHORIZING RETIREMENT GENERALLY IN HIGHER TEMPORARY GRADES WITH RETIRED PAY BASED UPON SUCH TEMPORARY GRADES. HOWEVER THAT MAY BE, THE ACT OF JULY 24, 1941, AS ORIGINALLY ENACTED AND AS AMENDED BY THE ACT OF JUNE 30, 1942, PRIMARILY RELATES TO THE TEMPORARY APPOINTMENT AND PROMOTION OF OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND IT WAS SUCH EXISTING PROVISIONS OF LAW THAT WERE MADE APPLICABLE BY THE ACT OF DECEMBER 3, 1942, TO THE COAST AND GEODETIC SURVEY, WITH CERTAIN EXCEPTIONS THEREIN STATED. TO NOW VIEW THE ACT OF DECEMBER 3, 1942, AS EXTENDING THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, TO OFFICERS OF THE COAST AND GEODETIC SURVEY WOULD LEAD TO A RESULT WHICH ORIGINALLY PROMPTED THE PRESIDENT TO VETO H.R. 6818, WHICH AS REENACTED UNDER H.R. 7556 BECAME THE SAID ACT OF DECEMBER 3, 1942. IN OTHER WORDS, SUCH VIEW OF THE ACT OF DECEMBER 3, 1942, WOULD RESULT IN THE RETIREMENT, GENERALLY, OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY IN THE HIGHEST TEMPORARY GRADE HELD BY THEM DURING THE EMERGENCY WITH THE RETIRED PAY OF SUCH HIGHER GRADES; AND, ALSO, IN THE CASE OF RETIRED OFFICERS RECALLED TO ACTIVE DUTY, THE RECOMPUTATION OF THEIR RETIRED PAY, UPON RETURN TO AN INACTIVE STATUS, ON THE BASIS OF THE HIGHEST TEMPORARY GRADE HELD BY THEM WHILE ON ACTIVE DUTY--- A RIGHT NOT EXTENDED TO OTHER QUASI MILITARY PERSONNEL.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF A SPECIFIC PROVISION OF LAW AUTHORIZING COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY GENERALLY TO BE RETIRED WITH THE RETIRED PAY OF THE HIGHEST TEMPORARY GRADE THEY HELD UNDER THE ACT OF DECEMBER 3, 1942, THIS OFFICE MUST CONCLUDE THAT THE PROVISIONS OF THE SAID ACT OF DECEMBER 3, 1942, WERE NOT INTENDED TO EXTEND TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY THE LIBERAL RETIREMENT BENEFITS AUTHORIZED FOR NAVAL PERSONNEL UNDER SECTION 8 OF THE ACT OF FEBRUARY 21, 1946. ACCORDINGLY, YOUR QUESTION NO. 4 IS ANSWERED IN THE NEGATIVE.

PRIOR TO THE ENACTMENT OF SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WERE CONSIDERED ENTITLED, BY VIRTUE OF THE ASSIMILATING PROVISION IN SECTION 11 OF THE ACT OF MAY 18, 1920, TO THE BENEFITS OF SECTION 1444, REVISED STATUTES, PROVIDING THAT OFFICERS OF THE NAVY BELOW THE RANK OF VICE ADMIRAL SHALL BE RETIRED FROM ACTIVE SERVICE UPON ATTAINING THE AGE OF 64 YEARS. WHILE SECTION 11 (B) OF THE ACT OF FEBRUARY 21, 1946, EXPRESSLY REPEALED THE SAID SECTION 1444, REVISED STATUTES, NEW PROVISIONS FOR RETIREMENT OF OFFICERS OF THE NAVY FOR AGE WERE ENACTED AS A PART OF SECTION 9 OF THE SAID ACT, WHICH READS AS FOLLOWS:

WHEN ANY OFFICER OF THE REGULAR NAVY OR MARINE CORPS SERVING IN A RANK BELOW THAT OF FLEET ADMIRAL HAS ATTAINED THE AGE OF SIXTY-TWO YEARS, HE SHALL BE PLACED UPON THE RETIRED LIST BY THE PRESIDENT WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY AND WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY, 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 OF SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED: PROVIDED FURTHER, THAT AN OFFICER WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF HIS ACTIVE PAY: PROVIDED, HOWEVER, THAT THE PRESIDENT MAY IN HIS DISCRETION, DEFER PLACING ANY SUCH OFFICER ON THE RETIRED LIST FOR THE LENGTH OF TIME HE DEEMS ADVISABLE BUT NOT LATER THAN THE DATE UPON WHICH SUCH OFFICER ATTAINS THE AGE OF SIXTY-FOUR YEARS, EXCEPT THAT NOT MORE THAN TEN OFFICERS WHOSE RETIREMENT IS SO DEFERRED SHALL BE ON THE ACTIVE LIST AT ANY ONE TIME. AND PROVIDED FURTHER, THAT NO OFFICER OF THE NAVY OR MARINE CORPS SHALL BE PLACED UPON THE RETIRED LIST PURSUANT TO THIS SECTION UNTIL THE FIRST DAY OF THE SIXTH MONTH FOLLOWING THE DATE OF APPROVAL OF THIS ACT OR UNTIL THE DATE UPON WHICH HE WOULD BE RETIRED FOR AGE PURSUANT TO LAW EXISTING PRIOR TO THE DATE OF APPROVAL OF THIS ACT, WHICHEVER MAY BE THE EARLIER.

THE SAID SECTION 9 EFFECTED A MATERIAL CHANGE IN THE RETIREMENT AND RETIRED PAY OF OFFICERS OF THE NAVY RETIRED FOR AGE IN THAT IT REDUCED THE RETIREMENT AGE FROM 64 TO 62 YEARS; CHANGED THE BASIS OF COMPUTING RETIRED PAY OF SUCH OFFICERS FROM 75 PERCENTUM OF THE ACTIVE DUTY PAY RECEIVED AT THE TIME OF RETIREMENT TO A PERCENTUM OF THEIR ACTIVE DUTY PAY BASED UPON THE NUMBER OF YEARS' SERVICE, AND AUTHORIZED RETIREMENT IN THE HIGHEST TEMPORARY RANK HELD WHILE ON ACTIVE DUTY. HOWEVER, THE SAID SECTION 9 DID NOT AFFECT THE BASIC RIGHT OF OFFICERS OF THE NAVY TO BE RETIRED FOR AGE AND AS SUCH BASIC RIGHT HAD BEEN EXTENDED TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY BY REASON OF THE ASSIMILATING PROVISION IN THE ACT OF MAY 18, 1920, IT APPEARS UNREASONABLE TO ASSUME THAT THE REPEAL OF SECTION 1444, REVISED STATUTES, AND ENACTMENT OF THE SAID SECTION 9 WERE INTENDED TO DENY OFFICERS OF THE COAST AND GEODETIC SURVEY THE PREEXISTING RIGHT TO RETIREMENT FOR AGE. ACCORDINGLY, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE RETIREMENT AND PAYMENT OF OTHERWISE PROPER RETIRED PAY TO OFFICERS OF THE COAST AND GEODETIC SURVEY ON THE BASIS PRESCRIBED BY SECTION 9 OF THE ACT OF FEBRUARY 21, 1946. HOWEVER, THE PROVISO IN THE SAID SECTION 9 AUTHORIZING THE PRESIDENT, IN HIS DISCRETION, TO "DEFER PLACING ANY SUCH OFFICER ON THE RETIRED LIST FOR THE LENGTH OF TIME HE DEEMS ADVISABLE BUT NOT LATER THAN THE DATE UPON WHICH SUCH OFFICER ATTAINS THE AGE OF 64 YEARS, EXCEPT THAT NOT MORE THAN 10 OFFICERS WHOSE RETIREMENT IS SO DEFERRED SHALL BE ON THE ACTIVE LIST AT ANY ONE TIME," DOES NOT AUTHORIZE THE PRESIDENT TO DEFER THE RETIREMENT OF 10 OFFICERS OF THE NAVY, 10 OFFICERS OF THE MARINE CORPS, ETC. IT AUTHORIZES THE PRESIDENT TO DEFER THE RETIREMENT OF A TOTAL OF 10 OFFICERS OF THE SERVICES SUBJECT TO THE SAID SECTION 9. HENCE, SINCE IT IS CONCLUDED THAT OFFICERS OF THE COAST AND GEODETIC SURVEY ARE ENTITLED TO BENEFITS OF THE SAID SECTION 9 BY REASON OF THE ASSIMILATING PROVISION IN THE ACT OF MAY 18, 1920, THERE WOULD BE NO LEGAL OBJECTION TO THE PRESIDENT, IN HIS DISCRETION, DEFERRING THE RETIREMENT OF SUCH NUMBER OF OFFICERS OF THE COAST AND GEODETIC SURVEY AS HE MAY DEEM NECESSARY, PROVIDED, OF COURSE, THAT THE TOTAL NUMBER OF OFFICERS OF THE VARIOUS SERVICES SO DEFERRED DOES NOT EXCEED THE MAXIMUM OF 10 OFFICERS. QUESTION NO. 5 IS ANSWERED ACCORDINGLY.