B-60141, NOVEMBER 19, 1946, 26 COMP. GEN. 333

B-60141, NOVEMBER 19, 1946, 26 COMP. GEN. 333

PAY - RETIRED - TEMPORARY REAR ADMIRALS BECOMING ENTITLED TO ACTIVE-DUTY PAY OF UPPER HALF AFTER JUNE 30, 1946 UNDER SECTIONS 10 (E) OF THE ACT OF JULY 24, 1941, AS AMENDED, AND 7 (C) OF THE ACT OF FEBRUARY 21, 1946, FIXING THE HIGHEST RANK IN WHICH A NAVY OFFICER MAY BE RETIRED AND RECEIVE RETIRED PAY BASED THEREON AS THE HIGHEST "RANK" ATTAINED UNDER A TEMPORARY APPOINTMENT ON OR PRIOR TO JUNE 30, 1946, THE INCREASE IN PAY RESULTING WHEN A TEMPORARY REAR ADMIRAL REACHED SUCH A POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST AS TO BE ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF) SUBSEQUENT TO JUNE 30, 1946, WITHOUT A CHANGE IN "RANK," MAY NOT BE REFLECTED IN THE COMPUTATION OF THE OFFICER'S RETIRED PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 19, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 20, 1946, REQUESTING DECISION ON A QUESTION PRESENTED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN LETTER DATED AUGUST 12, 1946, AS FOLLOWS:

REF: (A) SECTION 10 OF THE ACT OF JULY 24, 1941 AS AMENDED BY

SECTION 8 OF PUBLIC LAW 305, APPROVED FEBRUARY 21,

1946.

(B) PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946.

1. PARAGRAPH (E) OF REFERENCE (A) (60 STAT. 28) AND PARAGRAPH 7 (C) OF REFERENCE (B) (60 STAT. 27) PROVIDE, INTER ALIA, AS FOLLOWS:

"THE HIGHEST RANK IN WHICH AN OFFICER SERVED ON OR PRIOR TO JUNE 30, 1946 * * * IS THE HIGHEST RANK IN WHICH THE OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED PURSUANT TO THIS SECTION * * *.'

2. THE RANK OF REAR ADMIRAL INCLUDES ALL OFFICERS SERVING IN THAT RANK, BUT THERE ARE TWO DIVISIONS IN THE GRADE OF REAR ADMIRAL FOR PAY PURPOSES, ENTITLEMENT TO PAY OF THE LOWER OR UPPER HALF BEING CONTINGENT ON THE NUMERICAL POSITION OF THE INDIVIDUAL ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY. THE QUESTION HAS ARISEN AS TO THE RETIRED PAY STATUS OF CERTAIN OFFICERS HOLDING THE TEMPORARY RANK OF REAR ADMIRAL ON 30 JUNE 1946, BUT WHO DID NOT, UNDER SECTION 2 OF THE ACT OF JUNE 30, 1942 (56 STAT. 464), ATTAIN A POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY SO AS TO BECOME ENTITLED, UNTIL AFTER 30 JUNE 1946, TO THE PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF).

3.THEREFORE, IT IS RECOMMENDED THAT A DETERMINATION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER THE LIMITATION "ON OR PRIOR TO 30 JUNE 1946," IMPOSED BY THE PROVISO QUOTED ABOVE, IS APPLICABLE IN DETERMINING WHETHER AN OFFICER OF THE LINE OF THE NAVY WHO IS RETIRED UNDER SECTIONS 2 (A) AND 5 OR 6 OF REFERENCE (B), IS ENTITLED TO RETIRED PAY BASED ON THE PAY PRESCRIBED FOR A REAR ADMIRAL (UPPER HALF) IN CASE HE DID NOT BECOME ENTITLED TO THE PAY OF THAT GRADE ON OR BEFORE 30 JUNE 1946. THIS RULE WOULD ALSO BE APPLICABLE IN DETERMINING THE RETIRED PAY STATUS OF ANY OFFICER ON THE RETIRED LIST WHOSE PAY IS FOR COMPUTATION UNDER SUBPARAGRAPH (B) (2) OF REFERENCE (A) IN CASE SUCH OFFICER HAD NOT ATTAINED THE PERMANENT RANK AND GRADE OF REAR ADMIRAL (UPPER HALF) PRIOR TO RETIREMENT UNDER OTHER PROVISIONS OF LAW.

IT LONG HAS BEEN RECOGNIZED THAT THE RANK OF REAR ADMIRAL IS RELATIVELY THE SAME AS THAT OF A MAJOR GENERAL OF THE ARMY AND CONSTITUTES BUT A SINGLE RANK, WHETHER A PARTICULAR OFFICER OF THAT RANK DRAWS THE PAY OF THE UPPER HALF OR OF THE LOWER HALF. 34 OP. ATTY. GEN. 521, AND CASES CITED THEREIN. UNDER SECTION 7 OF THE NAVY PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1005, REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY WERE DIVIDED, FOR PAY PURPOSES, INTO TWO GRADES, THOSE OFFICERS EMBRACED IN THE NINE LOWER NUMBERS BEING GIVEN THE PAY AND ALLOWANCES AUTHORIZED FOR A BRIGADIER GENERAL IN THE ARMY AND THOSE REAR ADMIRALS OF THE UPPER NINE NUMBERS BEING AUTHORIZED TO RECEIVE, UNDER THE ASSIMILATING PROVISIONS OF SECTION 13 OF THAT ACT, 30 STAT. 1007, AND SECTION 1466, REVISED STATUTES, THE PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY. THAT DIVISION OF REAR ADMIRALS ON THE ACTIVE LIST WAS CONTINUED IN EFFECT BY THE ACT OF MAY 13, 1908, 35 STAT. 127, THE ACT OF AUGUST 29, 1917, 39 STAT. 576, AND SECTION 8 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 629. THE SAME DIVISION IS CARRIED IN SECTION 7 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 362.

THE PARTICULAR STATUTORY PROVISIONS QUOTED IN THE SAID LETTER OF AUGUST 12, 1946, PLACE A LIMITATION ON THE RANK IN WHICH AN OFFICER OF THE NAVY MAY BE PLACED ON THE RETIRED LIST BY REASON OF HIS TEMPORARY APPOINTMENT UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, AND IT IS PROVIDED, ALSO, THAT THE RETIRED PAY OF SUCH OFFICERS SHALL BE BASED ON THE RANK AUTHORIZED THEREBY. THE PURPOSE OF THOSE PROVISIONS APPEARS TO BE TO EXCLUDE FROM THE COMPUTATION OF RETIRED PAY ANY CHANGE OF STATUS OCCURRING AFTER JUNE 30, 1946, WHICH WOULD NOT HAVE OCCURRED IF THE PARTICULAR OFFICER'S TEMPORARY APPOINTMENT HAD BEEN TERMINATED AND HE HAD REVERTED TO HIS PERMANENT STATUS EFFECTIVE JULY 1, 1946. A TEMPORARY REAR ADMIRAL WHO WAS DRAWING THE PAY OF THE LOWER HALF ON JUNE 31, 1946, COULD BECOME ENTITLED TO THE PAY OF THE UPPER HALF ONLY BY CONTINUING ON ACTIVE DUTY IN HIS TEMPORARY RANK AFTER THAT DATE AND WOULD NOT HAVE BEEN ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY OF THE UPPER HALF IF HE HAD REVERTED TO HIS PERMANENT STATUS ON JULY 1, 1946. HENCE NO INCREASE IN RETIRED PAY WOULD BE AUTHORIZED SOLELY BECAUSE AN OFFICER TO BE RETIRED WITH THE RANK OF REAR ADMIRAL CHANGED FROM THE PAY OF THE LOWER HALF TO THE PAY OF THE UPPER HALF SUBSEQUENT TO JUNE 30, 1946. YOUR QUESTION IS ANSWERED ACCORDINGLY.