B-60384, NOVEMBER 21, 1946, 26 COMP. GEN. 349

B-60384: Nov 21, 1946

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PAY - RETIRED - LONGEVITY CREDITS - INACTIVE TIME ON RETIRED LIST A RETIRED NAVY OFFICER WHO IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO A HIGHER ACTIVE-DUTY TEMPORARY RANK. - FOR PHYSICAL DISABILITY INCURRED WHILE SERVING IN A LOWER RANK AFTER RETIREMENT IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE PAY OF THE HIGHER RANK WITHOUT REGARD TO INACTIVE TIME ON THE RETIRED LIST. 1946: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28. ARE ENTITLED TO COUNT FOR PAY PURPOSES. EXCEPT IN THE CASE OF THOSE OFFICERS (PERMANENT OR TEMPORARY) WHO ARE INITIALLY PLACED OR ADVANCED ON THE RETIRED LIST UNDER THE PROVISIONS OF REFERENCE (A). THE RANK TO WHICH SUCH OFFICERS ARE ENTITLED ON THE RETIRED LIST UNDER THE APPLICABLE PARAGRAPHS OF REFERENCE (A) IS.

B-60384, NOVEMBER 21, 1946, 26 COMP. GEN. 349

PAY - RETIRED - LONGEVITY CREDITS - INACTIVE TIME ON RETIRED LIST A RETIRED NAVY OFFICER WHO IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO A HIGHER ACTIVE-DUTY TEMPORARY RANK, PURSUANT TO SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, WITH RETIRED PAY BASED ON SUCH HIGHER RANK, AND, ALSO, UNDER SECTION 8 OF SAID ACT, TO RETIRED PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE-DUTY PAY--- INCLUDING CREDIT FOR INACTIVE TIME ON THE RETIRED LIST--- FOR PHYSICAL DISABILITY INCURRED WHILE SERVING IN A LOWER RANK AFTER RETIREMENT IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE PAY OF THE HIGHER RANK WITHOUT REGARD TO INACTIVE TIME ON THE RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 21, 1946:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1946, FILE JAG:II:WJG:DS L16-4/21) (OO, REQUESTING DECISION "ON THE SPECIFIC QUESTIONS PRESENTED" IN PARAGRAPH 2 OF A LETTER DATED AUGUST 20, 1946, TRANSMITTED THEREWITH, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

REF: (A) SECTION 8 OF THE ACT OF JULY 24, 1941.

(B) DECISION OF COMPTROLLER GENERAL B-31288 DATED 19

JANUARY 1943 (22 COMP. GEN. 664).

(C) DECISION OF COMPTROLLER GENERAL B-32730 DATED 28 JULY

1943 (23 COMP. GEN. 59).

(D) SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY

SECTION 8 OF PUBLIC LAW 305, APPROVED FEBRUARY 21,

1946.

(E) DECISION OF COMPTROLLER GENERAL B-56499 DATED 3 JULY

1946.

1. UNDER THE INTERPRETATION PLACED BY THE COMPTROLLER GENERAL ON THE PROVISIONS OF SECTIONS 1 AND 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, RETIRED OFFICERS HOLDING PERMANENT OR TEMPORARY RANK, ARE ENTITLED TO COUNT FOR PAY PURPOSES, WHEN ON ACTIVE DUTY, INACTIVE SERVICE (COMMISSIONED, WARRANT, AND ENLISTED) IN THE FLEET RESERVE OR ON THE RETIRED LIST. RIGHT TO COUNT SUCH INACTIVE SERVICE ON THE RETIRED LIST TERMINATES AS OF DATE OF RETURN TO AN INACTIVE STATUS IN THE FLEET RESERVE OR TO THE RETIRED LIST, EXCEPT IN THE CASE OF THOSE OFFICERS (PERMANENT OR TEMPORARY) WHO ARE INITIALLY PLACED OR ADVANCED ON THE RETIRED LIST UNDER THE PROVISIONS OF REFERENCE (A). THE RANK TO WHICH SUCH OFFICERS ARE ENTITLED ON THE RETIRED LIST UNDER THE APPLICABLE PARAGRAPHS OF REFERENCE (A) IS, IN SOME CASES, LOWER THAN THE HIGHEST TEMPORARY RANK IN WHICH THEY SERVED SATISFACTORILY, AND ON WHICH THEIR RETIRED PAY WOULD BE COMPUTED IF ADVANCED ON THE RETIRED LIST UNDER THE PROVISIONS OF REFERENCE (D). THE PRIMARY QUESTION INVOLVED APPEARS TO BE WHETHER THE PROVISIONS OF REFERENCES (A) AND (D) MAY BE APPLIED TO THE SAME INDIVIDUAL SO AS TO CONFER CUMULATIVE BENEFITS. * * *

2. THE FOLLOWING ARE CITED AS ILLUSTRATIVE OF THE TYPE OF CASE INVOLVED:

(A) AN OFFICER RETIRED ON 25 FEBRUARY 1935 UNDER THE PROVISIONS OF SECTION 1453 REVISED STATUTES, WHILE HOLDING THE RANK OF LIEUTENANT, WAS PLACED ON THE RETIRED LIST IN THE RANK OF LIEUTENANT COMMANDER UNDER THE AUTHORITY CONTAINED IN THE ACT OF MARCH 4, 1911. ON DATE OF RETIREMENT HE HAD PRIOR SERVICE CREDITABLE FOR PAY PURPOSES TOTALING 11 YEARS 8 MONTHS AND 19 DAYS. HE WAS RECALLED TO, AND REPORTED FOR, ACTIVE DUTY IN THE RANK OF LIEUTENANT COMMANDER ON 12 MARCH 1941, WAS APPOINTED A COMMANDER FOR TEMPORARY SERVICE EFFECTIVE 13 MARCH 1943, AND WAS APPOINTED A CAPTAIN FOR TEMPORARY SERVICE EFFECTIVE 19 JANUARY 1945. THIS OFFICER WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMANDER UNDER THE PROVISIONS OF 34 U.S.C. 350G (C) AND 350G (E) AS OF 29 APRIL, 1946, DATE OF APPROVAL OF RETIRING BOARD PROCEEDINGS BY THE PRESIDENT, AND ACTIVE DUTY STATUS TERMINATED AS OF SAME DATE. ON 29 APRIL 1946, THIS OFFICER HAD TOTAL SERVICE OF 29 YEARS 9 MONTHS AND 2 DAYS CREDITABLE FOR PAY PURPOSES WHILE ON ACTIVE DUTY, AND HAD SERVICE, EXCLUSIVE OF PERIOD OF INACTIVE SERVICE ON THE RETIRED LIST, OF 22 YEARS 8 MONTHS AND 15 DAYS.

PERTINENT PARAGRAPHS IN THE LETTER NOTIFYING THIS OFFICER OF THE ACTION OF THE NAVAL RETIRING BOARD IN HIS CASE ARE AS FOLLOWS:

"1. THE NAVAL RETIRING BOARD WHICH CONVENED IN YOUR CASE ON 25 JANUARY 1946, AT THE U.S. NAVAL HOSPITAL, SAN DIEGO,CALIFORNIA, FOUND THAT YOU ARE INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY; THAT YOUR INCAPACITY IS PERMANENT AND IS THE RESULT OF AN INCIDENT OF THE SERVICE. THE BOARD CONSIDERED THAT YOUR DISABILITY WAS INCURRED IN TIME OF WAR WHILE SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE RANK OF COMMANDER ON THE RETIRED LIST, BUT PRIOR TO COMMENCEMENT OF SERVICE IN THE RANK OF CAPTAIN.

"2. THE PRESIDENT OF THE UNITED STATES ON 29 APRIL 1946 APPROVED THE PROCEEDINGS AND FINDINGS OF THE NAVAL RETIRING BOARD.

"3. YOU ARE ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMANDER, PURSUANT TO THE PROVISIONS OF U.S. CODE, TITLE 34, SECTIONS 350G (C) AND 350G (E). HOWEVER, I HAVE DETERMINED THAT YOU HAVE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT IN THE RANK OF CAPTAIN. YOU WERE THEREFORE ADVANCED ON THE RETIRED LIST TO THE RANK OF CAPTAIN, AND WITH RETIRED PAY BASED ON SUCH HIGHER RANK, IN ACCORDANCE WITH SECTION 8 OF PUBLIC LAW 305- 79TH CONGRESS.'

IS SUCH OFFICER ENTITLED:

(1) UNDER THE PROVISIONS OF 34 U.S.C. 350G (C), TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY OF A COMMANDER WITH OVER 27 YEARS SERVICE ($348.90);

(2) UNDER THE PROVISIONS OF PARAGRAPH (B) (1) OF REFERENCE (D), TO 75 PERCENT OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 21 YEARS OF SERVICE ($371.25), OR

(3) UNDER THE PROVISIONS OF PARAGRAPH (B) (1) OF REFERENCE (D), TO 75 PERCENT OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 27 YEARS SERVICE ($419.76/?

(B) AN ENLISTED MAN (WHOSE PERMANENT STATUS WAS CHIEF YEOMAN, USN, RETIRED) WAS TEMPORARILY APPOINTED A LIEUTENANT ON THE RETIRED LIST ON 30 JANUARY 1942, AND SUCCESSIVELY TEMPORARILY APPOINTED TO THE RANKS OF LIEUTENANT COMMANDER AND COMMANDER ON THE RETIRED LIST ON 1 JULY 1943 AND ON 15 JUNE 1945, RESPECTIVELY. AT TIME OF TRANSFER TO FLEET RESERVE AND RELEASE FROM ACTIVE DUTY ON 25 MAY 1923, THIS INDIVIDUAL HAD TOTAL SERVICE CREDITABLE FOR PAY PURPOSES, OF 15 YEARS 9 MONTHS AND 25 DAYS. FOLLOWING COMPLETION OF 30 YEARS SERVICE, HE WAS TRANSFERRED TO THE RETIRED LIST ON 1 FEBRUARY 1939. THIS INDIVIDUAL WAS RECALLED TO, AND REPORTED FOR, ACTIVE DUTY, ON 17 OCTOBER 1940, AND REMAINED ON ACTIVE DUTY UNTIL RELEASED THEREFROM ON 29 JANUARY 1946. UNDER THE PROVISIONS OF PARAGRAPH (B) OF REFERENCE (A), THIS INDIVIDUAL WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT COMMANDER AS THE RESULT OF RETIRING BOARD PROCEEDINGS APPROVED ON 29 JANUARY 1946, AND IT HAS BEEN DETERMINED THAT THE HIGHEST TEMPORARY RANK IN WHICH HE SERVED SATISFACTORILY IS COMMANDER. WHILE SERVING IN THE RANK OF LIEUTENANT COMMANDER FROM 1 JULY 1943 TO 14 JUNE 1945, INCLUSIVE, THIS OFFICER WAS ENTITLED TO THE PAY PRESCRIBED FOR AN OFFICER OF THAT RANK WITH OVER 30 YEARS SERVICE, INCLUDING INACTIVE TIME AS A TRANSFERRED MEMBER OF THE FLEET RESERVE AND AS AN ENLISTED MAN ON THE RETIRED LIST OF THE NAVY. ACTIVE SERVICE PERFORMED PRIOR AND SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE AND TRANSFER TO THE RETIRED LIST, WHICH IS CREDITABLE UNDER APPLICABLE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, FOR PAY PURPOSES, TOTALS 21 YEARS 1 MONTH AND 7 DAYS.

IS SUCH OFFICER ENTITLED:

(1) UNDER THE PROVISIONS OF 34 U.S.C. 350G (B) TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS SERVICE ($360.93);

(2) UNDER THE PROVISIONS OF PARAGRAPH (B) (1) OF REFERENCE (D) AND THE RULING IN REFERENCE (E), TO RETIRED PAY COMPUTED AS 50 PERCENTUM OF THE BASE PAY OF A COMMANDER WITH OVER 21 YEARS SERVICE, PLUS LONGEVITY INCREASE, AND ADDITIONAL 10 PERCENT AS PROVIDED IN SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, ($299.98), OR

(3) UNDER THE PROVISIONS OF PARAGRAPH (B) (1) OF REFERENCE (D), TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY OF A COMMANDER WITH OVER 30 YEARS SERVICE ($412.50/?

(C) AN OFFICER WAS RETIRED AS LIEUTENANT COMMANDER ON 30 JUNE 1940 UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED (34 U.S.C. 404 (K) (, AT WHICH TIME HE HAD TOTAL SERVICE OF 23 YEARS AND 24 DAYS FOR PAY PURPOSES. THIS OFFICER WAS RECALLED TO, AND REPORTED FOR, ACTIVE DUTY ON 15 MARCH 1942 AND WAS SUCCESSIVELY TEMPORARILY APPOINTED AS COMMANDER AND CAPTAIN UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, ON 1 JANUARY 1943, AND ON 15 DECEMBER 1944, RESPECTIVELY. HE CONTINUED ON ACTIVE DUTY UNTIL RELEASE THEREFROM ON 29 OCTOBER 1945, DATE OF ADVANCEMENT ON THE RETIRED LIST TO THE RANK OF COMMANDER UNDER THE PROVISIONS OF 34 U.S.C. 350G (B). AT TIME OF RELEASE FROM ACTIVE DUTY ON 29 OCTOBER 1945, THIS OFFICER WAS ENTITLED TO COUNT FOR ACTIVE DUTY PAY PURPOSES, UNDER PARAGRAPHS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, TOTAL SERVICE (ACTIVE AND INACTIVE) OF 27 YEARS 8 MONTHS AND 22 DAYS. TOTAL SERVICE CREDITABLE ON 29 OCTOBER 1945 FOR PAY PURPOSES AND FOR COMPUTATION OF PERCENTAGE MULTIPLE (RATE APPLICABLE) UNDER 34 U.S.C. 404 (B) AND 37 U.S.C. 115, AMOUNTED TO 26 YEARS 8 MONTHS AND 8 DAYS.

IS THIS OFFICER ENTITLED:

(1) UNDER 34 U.S.C. 350G (B) TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY PRESCRIBED FOR A COMMANDER WITH OVER 27 YEARS SERVICE ($348.90), OR

(2) UNDER PARAGRAPH (B) (1) OF REFERENCE (D) TO 75 PERCENT OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 27 YEARS SERVICE ($419.76/?

IF THE PROVISIONS OF 34 U.S.C. 404 (B) AND 37 U.S.C. 115 WERE APPLIED IN THIS CASE IN DETERMINING THE RATE APPLICABLE AND SERVICE CREDITABLE FOR PAY PURPOSES IN COMPUTING RETIRED PAY UNDER PARAGRAPH (B) (1) OF REFERENCE (D), IF RETURNED TO THE RETIRED LIST IN THE RANK OF CAPTAIN UNDER PARAGRAPH (A) OF REFERENCE (D), RETIRED PAY WOULD BE FOR COMPUTATION ON THE BASIS OF 67 1/2 PERCENT OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 24 YEARS' SERVICE ($346.50). SUCH RATE OF PAY IS LESS THAN THAT TO WHICH THE OFFICER WOULD BE ENTITLED UNDER 34 U.S.C. 350G (B).

IT IS APPARENT THAT PARAGRAPH 2 OF THE SAID LETTER CONTAINS NO SPECIFIC QUESTION OF LAW BUT IT IS STATED IN PARAGRAPH 1 OF THAT LETTER THAT IT "APPEARS" THAT THE "PRIMARY" QUESTION INVOLVED IN THE EXAMPLES STATED IS AS TO WHETHER THE PROVISIONS OF SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, AND SECTION 10 OF THAT ACT, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 28, MAY BE APPLIED TO THE SAME INDIVIDUAL SO AS TO CONFER CUMULATIVE BENEFITS. SUCH STATEMENT LEAVES A DOUBT AS TO WHAT YOUR PRECISE QUESTION IS AND INFERS THAT OTHER QUESTIONS OF LAW, ALSO, ARE RAISED ALTHOUGH NONE IS STATED. IN ORDER FOR THIS OFFICE TO RENDER AN AUTHORITATIVE DECISION, IT IS NECESSARY THAT THE REQUEST THEREFOR DISCLOSE THE SPECIFIC QUESTIONS OF LAW TO BE DECIDED. THE DECISION IN THE INSTANT CASE WILL BE LIMITED TO WHAT IS INDICATED TO BE THE PRIMARY QUESTION PRESENTED AND THE ANSWER TO THAT QUESTION SHOULD BE SUFFICIENT TO ENABLE AN ADMINISTRATIVE DETERMINATION OF THE RIGHTS OF THE OFFICERS REFERRED TO IN THE EXAMPLES GIVEN.

SECTIONS 8 AND 10 OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDE:

SEC. 8. (A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(C) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) HEREOF, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(D) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN THE SAME RANK AS THAT HELD BY HIM ON THE RETIRED LIST AND IF NOT OTHERWISE ENTITLED THERETO, RECEIVE 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

SEC. 10. (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 INACTIVE 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.

IN THE DECISION OF JULY 28, 1943, 23 COMP. GEN. 59, REFERRED TO IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IT WAS HELD THAT AN OFFICER ENTITLED TO RECEIVE RETIRED PAY COMPUTED IN ACCORDANCE WITH SUBSECTION (C) OF THE SAID SECTION 8 OF THE ACT OF JULY 24, 1941, WHO WAS ENTITLED TO CREDIT FOR INACTIVE TIME ON THE RETIRED LIST IN THE COMPUTATION OF HIS ACTIVE DUTY PAY, WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON SUCH ACTIVE DUTY PAY, INCLUDING THE INCREASE THEREIN ON ACCOUNT OF INACTIVE TIME ON THE RETIRED LIST, NOTWITHSTANDING THE GENERAL PROVISION IN THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH AUTHORIZES INCREASES IN RETIRED PAY ONLY FOR ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT. AS INDICATED IN THAT DECISION, THE CONCLUSION REACHED THEREIN WAS BASED SOLELY ON THE EXPRESS LANGUAGE OF THE STATUTE PROVIDING THAT THE RETIRED PAY OF OFFICERS SO RETIRED SHOULD BE COMPUTED ON THE ACTIVE DUTY PAY TO WHICH THE OFFICER WAS ENTITLED WHILE SERVING IN THE RANK ACCORDED HIM ON THE RETIRED LIST, IT BEING WELL SETTLED OTHERWISE THAT INACTIVE TIME ON THE RETIRED LIST IS NOT FOR CONSIDERATION IN DETERMINING THE PAY FOR A PARTICULAR RANK WHICH IS TO BE USED AS A BASIS FOR COMPUTING RETIRED PAY. SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA; 23 COMP. GEN. 284; DECISION OF SEPTEMBER 6, 1946, B-56790, 26 COMP. GEN. 152. THE LANGUAGE USED IN SECTION 10 OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 605, DOES NOT WARRANT A CONCLUSION THAT THE PAY OF A PARTICULAR RANK UPON WHICH RETIRED PAY IS TO BE COMPUTED MAY INCLUDE A CREDIT FOR PRIOR INACTIVE TIME ON THE RETIRED LIST.

AN OFFICER WHO IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST IN ACCORDANCE WITH SECTION 10 OF THE 1941 ACT IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED ON THE PAY OF THE HIGHER RANK ACCORDED HIM BY THE PROVISIONS OF SUCH SECTION. IF HE IS ENTITLED TO RETIREMENT UNDER SECTION 8 AND TO HIGHER RANK ON THE RETIRED LIST UNDER SECTION 10, HIS RETIRED PAY IS TO BE COMPUTED MERELY BY SUBSTITUTING THE PAY OF THE RANK ACCORDED HIM UNDER THIS LATTER SECTION--- WHICH MAY NOT INCLUDE CREDIT FOR INACTIVE TIME ON THE RETIRED LIST--- FOR THE PAY ON WHICH HIS RETIRED PAY WOULD HAVE BEEN COMPUTED UNDER THE SAID SECTION 8. 26 COMP. GEN. 5. THUS, THE OFFICER REFERRED TO IN PARAGRAPH 2 (A) OF THE LETTER, QUOTED ABOVE, WOULD BE ENTITLED, IF THE STATEMENT OF HIS SERVICE GIVEN THEREIN IS COMPLETE, TO RETIRED PAY COMPUTED AT 75 PERCENTUM (THE RATE PRESCRIBED BY LAW AS INDICATED IN SECTION 8) OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE (THE PAY AUTHORIZED BY SECTION 10 TO BE USED IN COMPUTING HIS RETIRED PAY).

IF THE QUESTION DISCUSSED ABOVE IS THE ONLY QUESTION ON WHICH DECISION WAS DESIRED NO DIFFICULTY SHOULD BE EXPERIENCED IN DETERMINING ADMINISTRATIVELY THE CORRECT RATE OF RETIRED PAY APPLICABLE IN THE OTHER EXAMPLES OUTLINED IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS. HOWEVER, IF THE MATTER STILL IS IN DOUBT, FURTHER CONSIDERATION WILL BE GIVEN THERETO UPON SUBMISSION OF THE SPECIFIC QUESTION, OR QUESTIONS, OF LAW WHICH MAY BE INVOLVED.