B-59714, OCTOBER 11, 1946, 26 COMP. GEN. 254

B-59714: Oct 11, 1946

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WHOSE RETIRED PAY IS GOVERNED BY SECTION 1 OF THE 1942 ACT WITHIN THE CONTEMPLATION OF SECTION 5 OF THE ACT OF JUNE 29. ARE ENTITLED TO HAVE THE PAY INCREASES PRESCRIBED BY SECTION 4 OF THE 1946 ACT. SEVERAL RETIRED COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE HAVE REQUESTED THE PUBLIC HEALTH SERVICE TO INCREASE THEIR RETIRED PAY IN ACCORDANCE WITH SECTION 5 OF THE PUBLIC LAW REFERRED TO ABOVE. THESE COMMISSIONED OFFICERS WERE RETIRED BETWEEN JUNE 19. OR RETAINER PAY OF ALL PERSONS WHOSE PAY IS GOVERNED BY. WHICH ARE AMENDED BY THIS ACT.'. THE RETIRED PAY OF THESE OFFICERS WAS NOT AFFECTED BY SECTION 15 OF THE PAY READJUSTMENT ACT OF JUNE 16. OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: PROVIDED.

B-59714, OCTOBER 11, 1946, 26 COMP. GEN. 254

PAY - RETIRED - PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS - APPLICABILITY OF PAY INCREASES PROVIDED BY ACT OF JUNE 29, 1946 PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS PLACED ON PERMANENT "WAITING ORDERS" OR RETIRED PRIOR TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, WHOSE RETIRED PAY IS GOVERNED BY SECTION 1 OF THE 1942 ACT WITHIN THE CONTEMPLATION OF SECTION 5 OF THE ACT OF JUNE 29, 1946, ARE ENTITLED TO HAVE THE PAY INCREASES PRESCRIBED BY SECTION 4 OF THE 1946 ACT--- AMENDING SECTION 1 OF THE 1942 ACT--- INCLUDED IN THE COMPUTATION OF THEIR RETIRED PAY, EVEN THOUGH THE PAY READJUSTMENT ACT OF 1942, AS PREVIOUSLY AMENDED, DID NOT CHANGE THE PRIOR BASE PAY RATES OF SUCH OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 2, 1946, AS FOLLOWS:

SINCE THE ENACTMENT OF PUBLIC LAW 474, 79TH CONGRESS, APPROVED JUNE 29, 1946, SEVERAL RETIRED COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE HAVE REQUESTED THE PUBLIC HEALTH SERVICE TO INCREASE THEIR RETIRED PAY IN ACCORDANCE WITH SECTION 5 OF THE PUBLIC LAW REFERRED TO ABOVE.

THESE COMMISSIONED OFFICERS WERE RETIRED BETWEEN JUNE 19, 1916, AND JUNE 1, 1942, THE EFFECTIVE DATE OF PUBLIC LAW 607, 77TH CONGRESS, 56 STAT. 359.

SECTION 5 OF PUBLIC LAW 474, 79TH CONGRESS, PROVIDES---

"THE INCREASES IN PAY RESULTING FROM THE AMENDMENTS MADE BY THIS ACT TO THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SHALL BE APPLICABLE TO THE ACTIVE DUTY, RETIRED, RETIREMENT, OR RETAINER PAY OF ALL PERSONS WHOSE PAY IS GOVERNED BY, OR BY REFERENCE TO, THOSE SECTIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHICH ARE AMENDED BY THIS ACT.'

THE RETIRED PAY OF THESE OFFICERS WAS NOT AFFECTED BY SECTION 15 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 37 U.S.C. 115.

SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES---

"NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: PROVIDED, HOWEVER, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO DEPRIVE ANY ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE ON OR PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY FOR PHYSICAL DISABILITY, OF ANY BENEFITS, INCLUDING PAY, ALLOWANCES, OR COMPENSATION, WHICH HE WOULD BE ENTITLED TO RECEIVE UPON THE COMPLETION OF THIRTY YEARS UNDER LAWS IN FORCE ON THE DATE OF ENACTMENT OF THIS ACT.

"THE ACT OF JUNE 10, 1922 (42 STAT. 625), AS AMENDED, SUBSECTIONS 12 (A), (B), AND (C), OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (54 STAT. 885), SECTION 18 OF THE ACT OF MARCH 7, 1942 ( PUBLIC LAW 490, SEVENTY- SEVENTH CONGRESS), AND SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 ( PUBLIC LAW 213, SEVENTY-SEVENTH CONGRESS, APPROVED AUGUST 18, 1941), AND THOSE PORTIONS OF THE ACT OF MARCH 2, 1907 (34 STAT. 1217), AND OF THE ACT OF JUNE 30, 1941 ( PUBLIC LAW 140, SEVENTY-SEVENTH CONGRESS), WHICH AUTHORIZE ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST, AND ALL OTHER LAWS AND PARTS OF LAWS WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THIS ACT, ARE HEREBY REPEALED: PROVIDED, THAT ACTS OR PARTS OF ACTS INCORPORATING DIRECTLY, BY IMPLICATION, OR BY REFERENCE, THE PROVISIONS OF THE ACT OF JUNE 10, 1922, AS AMENDED, AND NOT IN CONFLICT HEREWITH, SHALL NOT BE CONSIDERED MODIFIED BY THE PROVISIONS OF THIS ACT, EXCEPT THAT THE PAY, ALLOWANCES, OR COMPENSATION ESTABLISHED HEREIN SHALL BE SUBSTITUTED FOR THE PAY, ALLOWANCES, OR COMPENSATION SET OUT IN THE ACT OF JUNE 10, 1922, AS AMENDED.

"NO BACK PAY OR ALLOWANCES FOR ANY PERIOD PRIOR TO JUNE 1, 1942, SHALL ACCRUE BY REASON OF THE ENACTMENT OF THIS ACT.

"THE PROVISIONS OF THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942.'

THE PAY READJUSTMENT ACT OF 1942 WITH RESPECT TO PAY INCREASED THE RATE OF PAY FOR THE GRADE OF SECOND LIEUTENANT BY $25. THE OTHER GRADES WERE NOT AFFECTED. THE PUBLIC HEALTH SERVICE AT THAT TIME HAD NO AUTHORITY TO COMMISSION OFFICERS IN THE GRADE OF SECOND LIEUTENANT. SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 DID NOT AFFECT THE RETIRED PAY OF ANY OF THE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE RETIRED BETWEEN JUNE 19, 1916, AND THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT.

THE OFFICE OF THE GENERAL COUNSEL OF THIS AGENCY HAS ADVISED THE PUBLIC HEALTH SERVICE (1) THAT THE RETIRED PAY OF OFFICERS RETIRED BETWEEN THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, AND BEFORE JULY 1, 1944, SHOULD BE CALCULATED ON THE BASIS PROVIDED IN SECTION 6 OF PUBLIC LAW 474, 79TH CONGRESS, AND (2) THAT THE RETIRED PAY OF COMMISSIONED OFFICERS RETIRED UNDER SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, 56 (58) STAT. 682, AND BEFORE THE EFFECTIVE DATE OF PUBLIC LAW 474, 79TH CONGRESS, COULD BE RECOMPUTED ON THE SAME BASIS. FOR YOUR INFORMATION, A COPY OF THIS OPINION IS ENCLOSED.

NO ADVICE HAS BEEN GIVEN WITH RESPECT TO AN INCREASE IN RETIREMENT PAY FOR COMMISSIONED OFFICERS RETIRED BETWEEN JUNE 16, 1916, AND JUNE 1, 1942.

THE REPORT OF THE HOUSE COMMITTEE ON MILITARY AFFAIRS TO ACCOMPANY H.R. 6084 ( P.L. 474, 79TH CONGRESS), CONTAINS THE FOLLOWING:

"SECTION 6 OF THE BILL (SECTION 5 OF P.L. 474) WOULD MAKE THE PROPOSED INCREASES APPLICABLE TO THE PAY OF ALL PERSONS WHO ARE PAID UNDER THE PAY READJUSTMENT ACT OF 1942, OR WHOSE PAY IS COMPUTED WITH REFERENCE TO THAT ACT. THE PURPOSE OF THIS SECTION IS ALSO TO MAKE CLEAR THAT THE INCREASES IN PAY ARE APPLICABLE TO PERSONS HERETOFORE OR HEREAFTER RETIRED, GRANTED RETIREMENT PAY OR GRANTED RETAINER PAY.'

IN VIEW OF THIS STATEMENT IN THE REPORT CITED ABOVE, YOUR ADVICE IS REQUESTED WHETHER OR NOT COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, RETIRED BETWEEN JUNE 19, 1916, AND JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, ARE ENTITLED TO HAVE THEIR RETIREMENT PAY RECOMPUTED IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 474, 79TH CONGRESS, SO AS TO PROVIDE AN INCREASE IN RETIREMENT PAY.

THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, EFFECTIVE JUNE 1, 1942, PROVIDING, INTER ALIA, RATES OF PAY FOR COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE, IN SECTION 19 THEREOF, 56 STAT. 369, EXPRESSLY REPEALED THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED, AND "ALL OTHER LAWS AND PARTS OF LAWS WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THIS ACT.' SECTION 15 OF THE SAID 1942 ACT, 56 STAT. 367, PROVIDES THAT---

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS * * * SHALL HAVE THEIR RETIRED PAY * * * OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT * * *.

SECTION 5 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, QUOTED IN YOUR LETTER ABOVE, AUTHORIZES ADJUSTMENT, ON THE BASIS OF THE INCREASES IN PAY PROVIDED BY THE SAID ACT, OF THE RETIRED PAY OF ,ALL PERSONS WHOSE PAY IS GOVERNED BY, OR BY REFERENCE TO, THOSE SECTIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHICH ARE AMENDED BY THE ACT.'

UNDER THE LAWS AND REGULATIONS IN EFFECT DURING THE PERIOD COVERED BY YOUR QUESTION, JUNE 16 (OR 19), 1916, TO JUNE 1, 1942, IT APPEARS THAT THE "RETIREMENT" OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WAS ACCOMPLISHED BY PLACING SUCH OFFICERS ON PERMANENT "WAITING ORDERS.' THIS CONNECTION PARAGRAPH 70 OF THE PUBLIC HEALTH SERVICE REGULATIONS OF 1931 (REVOKED BY EXECUTIVE ORDER NO. 9655, DATED NOVEMBER 14, 1945) PROVIDED THAT," PERMANENT "WAITING ORDERS" AS USED IN THESE REGULATIONS CORRESPONDS TO "RETIREMENT" FOR OFFICERS OF THE UNITED STATES ARMY.'

IT APPEARS FROM YOUR LETTER THAT NONE OF THE OFFICERS WHO WERE PLACED ON WAITING ORDERS OR RETIRED PRIOR TO JUNE 1, 1942, WERE BEING PAID "RETIRED" PAY COMPUTED ON THE BASE PAY OF THE FIRST PAY PERIOD AND THAT, THEREFORE, THE PAY READJUSTMENT ACT OF 1942 DID NOT CHANGE THE AMOUNTS OF THE PAYMENTS OF THEIR "RETIRED" PAY SINCE THE RATES OF BASE PAY OF THE OTHER FIVE PAY PERIODS WERE THE SAME PRIOR TO OR AFTER THE 1942 PAY READJUSTMENT ACT. IN VIEW OF THAT CIRCUMSTANCE YOU APPEAR TO HAVE SOME DOUBT WHETHER OR NOT THE "RETIRED" PAY OF THE PERSONNEL IN QUESTION "IS GOVERNED BY, OR BY REFERENCE TO, THOSE SECTIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHICH ARE AMENDED BY THIS ACT," WITHIN THE MEANING OF SECTION 5 OF THE ACT OF JUNE 29, 1946, SUPRA.

THE PAY READJUSTMENT ACT OF 1942 PROVIDED RATES OF PAY AND ALLOWANCES FOR COMMISSIONED AND ENLISTED PERSONNEL OF THE SIX SERVICES, INCLUDING THE PUBLIC HEALTH SERVICE, MENTIONED IN ITS TITLE. AS NOTED ABOVE, IT REPEALED AND SUPERSEDED, AMONG OTHER STATUTES, THE PAY READJUSTMENT ACT OF 1922 WHICH, IN TURN HAD REPEALED AND SUPERSEDED PRIOR STATUTES, NOT CONSISTENT THEREWITH, GOVERNING THE PAY AND ALLOWANCES OF COMMISSIONED AND ENLISTED PERSONNEL. SECTION 1 OF SAID 1942 ACT, AS AMENDED, WAS FURTHER AMENDED BY SECTION 4 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, AND, AS SO AMENDED, IT CONTAINS THE ONLY EXISTING STATUTORY AUTHORITY FOR THE RATES OF ACTIVE-DUTY BASE AND LONGEVITY PAY OF COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE, SUBJECT TO POSSIBLE EXCEPTIONS ARISING BY REASON OF THE PROVISIONS SAVING TO INDIVIDUAL OFFICERS ANY HIGHER PAY TO WHICH THEY MAY HAVE BEEN ENTITLED UNDER PRIOR LAWS AND REGULATIONS. THE "RETIRED" PAY OF A PUBLIC HEALTH SERVICE COMMISSIONED OFFICER PLACED ON WAITING ORDERS OR RETIRED PRIOR TO JUNE 1, 1942, IS AUTHORIZED AND REQUIRED TO BE COMPUTED BY REFERENCE TO SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 29, 1946, SUPRA. CF. 23 COMP. GEN. 52, 54; ID. 59-62; 24 ID. 165, 167.