B-59066, JULY 30, 1946, 26 COMP. GEN. 66

B-59066, JULY 30, 1946, 26 COMP. GEN. 66

PAY - RETIRED - REAR ADMIRAL RECEIVING PAY OF UPPER HALF AS ASSISTANT CHIEF OF BUREAU A TEMPORARY REAR ADMIRAL WHO OTHERWISE WOULD BE ENTITLED TO THE PAY OF A REAR ADMIRAL OF THE LOWER HALF BUT WHO IS RECEIVING THE PAY OF THE UPPER HALF (HIGHEST PAY OF HIS RANK) PURSUANT TO SECTION 15 OF THE ACT OF MARCH 4, 1925, WHILE "SERVING" AS ASSISTANT TO A CHIEF OF BUREAU, IS ENTITLED, UPON TRANSFER TO THE RETIRED LIST AS A REAR ADMIRAL PURSUANT TO SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, TO RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF A REAR ADMIRAL (LOWER HALF) AND NOT ON THAT OF A REAR ADMIRAL (UPPER HALF).

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JULY 30, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 8, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED JULY 2, 1946, WITH ENCLOSURES THEREIN LISTED, RELATIVE TO THE PAY STATUS OF REAR ADMIRAL (T) LAWRENCE BAXTER RICHARDSON, U.S. NAVY, 17011, WHILE ON TERMINAL LEAVE AND AFTER TRANSFER TO THE RETIRED LIST OF THE U.S. NAVY.

THE NAVY DEPARTMENT CONCURS IN THE STATEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AS CONTAINED IN HIS LETTER OF JULY 2, 1946, AS TO THE DESIRABILITY OF OBTAINING AN AUTHORITATIVE RULING FOR DETERMINING THE ACTIVE DUTY PAY STATUS WHILE ON TERMINAL LEAVE, AND THE RETIRED PAY STATUS, OF REAR ADMIRAL RICHARDSON, AND OTHER OFFICERS WHO MAY BE IN A SIMILAR STATUS. ACCORDINGLY, YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTIONS PRESENTED IN PARAGRAPH 7 OF THE ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

(A) IN CASE REAR ADMIRAL (T) LAWRENCE BAXTER RICHARDSON, U.S. NAVY, IS DETACHED FROM DUTY AS ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS ON AUGUST 1, 1946, AND IS TRANSFERRED TO THE RETIRED LIST AT THE EXPIRATION OF HIS TERMINAL LEAVE ON OR BEFORE DECEMBER 1, 1946---

(1) DURING THE PERIOD OF TERMINAL LEAVE FROM AUGUST 1, 1946, TO DECEMBER 1, 1946, WILL HE BE ENTITLED TO CONTINUE IN RECEIPT OF THE PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF/?

(2) UPON TRANSFER TO THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 6 OF THE ACT APPROVED FEBRUARY 21, 1946 ( PUBLIC LAW 305--- 79TH CONGRESS), AT EXPIRATION OF TERMINAL LEAVE, WILL HE BE ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF/?

(B) IN CASE REAR ADMIRAL RICHARDSON IS DETACHED FROM DUTY AS ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS ON JULY 31, 1946, AND IS PLACED ON THE RETIRED LIST ON AUGUST 1, 1946, WILL HE BE ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946, SUPRA, COMPUTED AS 75 PERCENTUM OF THE ACTIVE DUTY PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF/?

SINCE RECEIPT OF YOUR LETTER, THIS OFFICE HAS BEEN REQUESTED INFORMALLY TO DISREGARD THE FIRST QUESTION PRESENTED RELATIVE TO THE PAY TO WHICH ADMIRAL RICHARDSON WOULD BE ENTITLED WHILE ON LEAVE OF ABSENCE PRELIMINARY TO HIS BEING TRANSFERRED TO THE RETIRED LIST BUT SUBSEQUENT TO HIS BEING DETACHED FROM DUTY AS ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS, LEAVING FOR DECISION ONLY THE QUESTIONS RELATIVE TO THE PROPER BASIS FOR COMPUTING HIS RETIRED PAY SUBSEQUENT TO HIS RETIREMENT.

INFORMATION CONTAINED IN THE FILE INDICATES THAT ADMIRAL RICHARDSON, ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS, HOLDS THE PERMANENT RANK OF CAPTAIN IN THE REGULAR NAVY AND THAT HE WAS APPOINTED A REAR ADMIRAL FOR TEMPORARY SERVICE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. IT IS STATED THAT HE HAS NOT ATTAINED A NUMERICAL POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY, TO ENTITLE HIM TO THE PAY OF A REAR ADMIRAL (UPPER HALF), AND THAT IT DOES NOT APPEAR THAT HE WILL ATTAIN SUCH NUMERICAL POSITION EVEN IF HIS TRANSFER TO THE RETIRED LIST IS DEFERRED UNTIL DECEMBER 1, 1946. HOWEVER, BY VIRTUE OF BEING DETAILED TO DUTY AS AN ASSISTANT TO A CHIEF OF BUREAU OF THE NAVY DEPARTMENT, HE IS CURRENTLY ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF), UNDER THE PROVISIONS OF SECTION 15 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1275, WHICH PROVIDES IN PART:

* * * HEREAFTER ANY OFFICER OF THE NAVAL SERVICE WHO IS, PURSUANT TO LAW, DETAILED TO DUTY AS ASSISTANT TO A CHIEF OF BUREAU OF THE NAVY DEPARTMENT OR AS ASSISTANT TO THE JUDGE ADVOCATE GENERAL OF THE NAVY, SHALL, WHILE SO SERVING, RECEIVE THE HIGHEST PAY OF HIS RANK. ( ITALICS SUPPLIED.)

SEE, IN THIS CONNECTION, DECISION OF DECEMBER 4, 1928, A-19776.

SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 27, PROVIDE AS FOLLOWS:

SEC. 6. WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE 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.

SEC. 7 (A). EACH OFFICER RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY. IN ANY CASE WHERE, AS DETERMINED BY THE SECRETARY OF THE NAVY, ANY SUCH OFFICER HAS NOT PERFORMED SATISFACTORY DUTY IN THE HIGHEST RANK HELD BY HIM WHILE ON ACTIVE DUTY, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE NEXT LOWER RANK IN WHICH HE HAS SERVED BUT NOT LOWER THAN HIS PERMANENT RANK. OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE 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 THEIR 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 SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED: PROVIDED FURTHER, THAT OFFICERS WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF THEIR ACTIVE DUTY PAY.

IT WILL BE NOTED THAT SECTION 7 (A) OF SUCH ACT PROVIDES, INTER ALIA, THAT EACH OFFICER RETIRED PURSUANT TO THE PROVISIONS OF SECTION 6 THEREOF SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY. IT FURTHER PROVIDES THAT OFFICERS WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE, WHICH WOULD INCLUDE REAR ADMIRALS, SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF THEIR ACTIVE DUTY PAY.

THE ACTIVE DUTY PAY THUS REFERRED TO IS, OF COURSE, THE ACTIVE DUTY PAY FOR THE RANK IN WHICH RETIRED. THE DIFFICULTY ARISES BECAUSE THERE ARE TWO RATES OF ACTIVE DUTY PAY PRESCRIBED FOR REAR ADMIRALS, THE RATE APPLICABLE TO ANY PARTICULAR REAR ADMIRAL OF THE LINE ORDINARILY BEING DEPENDENT UPON WHETHER HIS NUMERICAL POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY IS IN THE UPPER OR LOWER HALF. SEE SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, AND SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362. HOWEVER, WHILE THERE ARE TWO DIVISIONS IN THE GRADE OF REAR ADMIRAL FOR PAY PURPOSES, IT LONG HAS BEEN RECOGNIZED THAT ALL OFFICERS IN THAT GRADE, FOR ALL OTHER PURPOSES, ARE ENTITLED TO THE SAME RANK AND PRIVILEGES. THAT IS TO SAY, THE RANK OF REAR ADMIRAL INCLUDES ALL OFFICERS SERVING WITH THAT RANK, WHETHER ENTITLED TO THE PAY OF THE LOWER HALF OR THE UPPER HALF. 25 COMP. GEN. 281, 283. THUS, WHILE IT MAY BE THAT UNDER SECTIONS 6 AND 7 (A) OF THE ACT OF FEBRUARY 21, 1946, SUPRA, ADMIRAL RICHARDSON IS ENTITLED, IN THE DISCRETION OF THE PRESIDENT, TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF REAR ADMIRAL--- THAT BEING THE HIGHEST RANK HELD BY HIM WHILE ON ACTIVE DUTY -- IF THE SECRETARY OF THE NAVY DETERMINES THAT HIS PERFORMANCE OF DUTY IN THAT RANK HAS BEEN SATISFACTORY, THAT FACT DOES NOT NECESSARILY ENTITLE HIM TO HAVE HIS RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF A REAR ADMIRAL OF THE UPPER HALF.

RETIRED PAY, WHEN AUTHORIZED TO BE COMPUTED ON THE ACTIVE DUTY PAY OF A REAR ADMIRAL, IS COMPUTED ON THE ACTIVE DUTY PAY PRESCRIBED FOR THE UPPER HALF OR THE LOWER HALF, DEPENDING ON WHETHER THE INDIVIDUAL OFFICER IS A REAR ADMIRAL OF THE UPPER HALF OR THE LOWER HALF. CF. 24 COMP. GEN. 281, SUPRA. AN OFFICER DOES NOT BECOME A REAR ADMIRAL OF THE UPPER HALF, HOWEVER, MERELY BECAUSE HE MAY BE ENTITLED TEMPORARILY WHILE PERFORMING CERTAIN DUTY TO RECEIVE THE PAY PRESCRIBED FOR SUCH OFFICERS. HEREINBEFORE NOTED, ADMIRAL RICHARDSON'S NUMERICAL POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY IS NOT WITHIN THE UPPER HALF NOR DOES THE SAID SECTION 15 OF THE ACT OF MARCH 4, 1925, GIVE HIM SUCH STATUS. THAT ACT ONLY GIVES TO AN OFFICER, WHO, PURSUANT TO LAW, IS DETAILED TO DUTY AS AN ASSISTANT TO A CHIEF OF BUREAU IN THE NAVY DEPARTMENT OR AS AN ASSISTANT TO THE JUDGE ADVOCATE GENERAL OF THE NAVY, THE "HIGHEST PAY OF HIS RANK" WHILE HE IS "SO SERVING"--- WITH NOTHING MORE. ON DETACHMENT FROM SUCH DUTY HE AUTOMATICALLY RESUMES HIS NORMAL PAY STATUS WHICH, IN ADMIRAL RICHARDSON'S CASE, IS THE PAY OF A REAR ADMIRAL (LOWER HALF). SUCH STATUTORY PROVISION DOES NOT PURPORT TO CONFER ANY ADDITIONAL RANK OR PRECEDENCE ON OFFICERS "SO SERVING" NOR TO EXTEND THEM ANY GREATER RETIREMENT BENEFITS OR PRIVILEGES, BUT IN EFFECT, IT MERELY GIVES OFFICERS WITHIN ITS PURVIEW A TEMPORARY INCREASE IN PAY FOR A PARTICULAR DUTY, PAYABLE ONLY WHILE THEY ARE SERVING ON SUCH DUTY. EXCEPT FOR THE BASIS PROVIDED FOR DETERMINING THE AMOUNT OF THE INCREASE, THE STATUTE IN QUESTION DIFFERS LITTLE, IF ANY, FROM THE STATUTES AUTHORIZING ADDITIONAL PAY FOR OFFICERS ON FLYING DUTY, SUBMARINE DUTY, TC., AND IT IS WELL SETTLED THAT EXCEPTIONAL PAY OR TEMPORARY INCREASES OF ACTIVE DUTY PAY GIVEN FOR SPECIAL SERVICES OR UNDER SPECIAL CIRCUMSTANCES INCIDENT TO A PARTICULAR CHARACTER OF SERVICE DO NOT ENTER INTO THE COMPUTATION OF RETIRED PAY. SEE 23 COMP. GEN. 52; ID. 59, AND THE AUTHORITIES THEREIN CITED. ACCORDINGLY, THE CONCLUSION IS REQUIRED THAT REGARDLESS OF WHETHER ADMIRAL RICHARDSON IS TRANSFERRED TO THE RETIRED LIST IMMEDIATELY UPON DETACHMENT FROM DUTY AS ASSISTANT CHIEF OF THE BUREAU OF AERONAUTICS, OR WHETHER HE IS TRANSFERRED TO THE RETIRED LIST UPON THE EXPIRATION OF A LEAVE OF ABSENCE TAKEN AFTER SUCH DETACHMENT, HIS RETIRED PAY IS NOT FOR COMPUTATION ON THE BASIS OF THE ACTIVE DUTY PAY FOR A REAR ADMIRAL (UPPER HALF). THEREFORE, YOUR QUESTIONS (A) (2) AND (B) ARE ANSWERED IN THE NEGATIVE.