B-60908, FEBRUARY 28, 1947, 26 COMP. GEN. 636

B-60908, FEBRUARY 28, 1947, 26 COMP. GEN. 636

PAY - ACTIVE-DUTY; RETIRED - TEMPORARILY PROMOTED NAVY OFFICERS - EFFECT OF COMBAT COMMENDATION SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AUTHORIZING THE ADVANCEMENT OF NAVY LINE OFFICERS WITH COMBAT COMMENDATION TO THE NEXT HIGHER RANK UPON RETIREMENT, HAS REFERENCE TO ADVANCEMENT FROM A PERMANENT AND NOT A TEMPORARY RANK, AND, THEREFORE, A CAPTAIN OF THE NAVY WITH COMBAT COMMENDATION WHO WAS RETIRED FOR LENGTH OF SERVICE UNDER THE ACT OF MAY 13, 1908, IN HIS TEMPORARY RANK OF REAR ADMIRAL (UPPER HALF) PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, IS NOT ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF A VICE ADMIRAL UPON HIS RECALL TO ACTIVE DUTY. REGULAR NAVY OFFICERS WITH COMBAT COMMENDATION WHO, UPON RETIREMENT PURSUANT TO THE VOLUNTARY OR INVOLUNTARY RETIREMENT PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, WERE PLACED ON THE RETIRED LIST IN THEIR TEMPORARY RANK, UNDER SECTION 7 (A) OF THE ACT, ARE ENTITLED TO RETIRED PAY COMPUTED EITHER ON THE BASIS OF THE PERCENTAGE DETERMINED FROM THE FORMULA IN SAID SECTION 7 (A) AND THEIR TEMPORARY RANK ACTIVE-DUTY PAY OR ON THE BASIS OF THE PERCENTAGE RATE (75 PERCENT) PRESCRIBED BY THE COMBAT COMMENDATION STATUTES AND THEIR PERMANENT RANK ACTIVE-DUTY PAY, WHICHEVER IS THE GREATER, RATHER THAN ON THE BASIS OF 75 PERCENT OF THEIR TEMPORARY RANK ACTIVE-DUTY PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 28, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 16, TRANSMITTING A LETTER DATED AUGUST 20, 1946, FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, TOGETHER WITH THE ENCLOSURES LISTED THEREIN, RELATING TO THE COMPUTATION OF RETIRED PAY AND ACTIVE DUTY PAY AND ALLOWANCES OF RETIRED OFFICERS OF THE NAVY UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305 (60 STAT. 26).

YOU LETTER IS, IN PERTINENT PART, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE QUESTIONS PRESENTED IN THE LETTER FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

(1) WHAT IS THE RETIRED AND ACTIVE DUTY PAY STATUS OF REAR ADMIRAL (T) CHARLES PERRY MASON, U.S. NAVY, UNDER THE CONDITIONS STATED IN THE ENCLOSURE?

(2) WHAT IS THE RETIRED PAY STATUS OF OFFICERS OF THE RANK OF COMMODORE AND BELOW, WITH LESS THAN THIRTY YEARS OF SERVICE FOR PAY PURPOSES, WHO ARE PLACED ON THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 5 AND 6 OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305--- 79TH CONGRESS), AND IN WHOSE CASES THE PERCENTAGE MULTIPLE COMPUTED IN ACCORDANCE WITH SECTION 7 (A) OF SAID ACT WOULD, UNDER THE CONDITIONS STATED IN THE ENCLOSURE, BE INCREASED AUTOMATICALLY TO 75 PERCENT IF SUCH OFFICERS OTHERWISE COME WITHIN THE PROVISIONS OF SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, AS AMENDED (34 U.S.C. 404 (1) (, AND THOSE OF THE ACT OF FEBRUARY 23, 1942 (34 U.S. CODE, SUPP. V. 399H/?

(3) IS THE LINE OFFICER OF THE REGULAR NAVY REFERRED TO IN PARAGRAPH 9 (A) OF THE ENCLOSED LETTER FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS ENTITLED, UNDER THE CONDITIONS THEREIN STATED, TO RETIRED PAY COMPUTED AS---

(A) 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE ($371.25);

(B) 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE ($278.44); OR

(C) 52 1/2 PERCENT OF THE PAY OF CAPTAIN WITH OVER 21 YEARS' SERVICE ($259.88/?

(4) IS THE STAFF CORPS OFFICER OF THE REGULAR NAVY REFERRED TO IN PARAGRAPH 9 (B) OF THE ENCLOSED LETTER FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS ENTITLED, UNDER THE CONDITIONS THEREIN STATED, TO RETIRED PAY COMPUTED AS---

(A) 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE ($371.25);

(B) 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE ($278.44); OR

(C) 60 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE ($297.00/?

THE LETTER OF AUGUST 20, 1946, FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, INSOFAR AS MATERIAL, IS AS FOLLOWS: SUBJ: REQUEST FOR DECISION OF THE COMPTROLLER GENERAL AS TO METHOD

OF COMPUTATION OF RETIRED PAY OF OFFICERS RETIRED VOLUNTARILY

OR INVOLUNTARILY UNDER SECTIONS 1, 3, AND 6 OF THE ACT OF

FEBRUARY 21, 1946. REF: (A) ACT OF MARCH 4, 1925, AS AMENDED (34 U.S.C. 399).

(B) ACT OF JANUARY 16, 1936 (49 STAT. 1092) (34 U.S.C.

399F).

(C) SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AS AMENDED

(52 STAT. 949) (34 U.S.C. 404 (1) ).

(D) DEC. COMP. GEN. A-99681, DATED 14 FEBRUARY 1939 (18

COMP. GEN. 655).

(E) DEC. COMP. GEN. B-6150, DATED 14 OCTOBER 1939 (19 COMP.

GEN. 433).

(F) ACT OF FEBRUARY 23, 1942 (56 STAT. 120) (34 U.S.C.

399H).

(G) DEC. COMP. GEN. B-37727, DATED 29 NOVEMBER 1943 (23

COMP. GEN. 393).

(H) DEC. COMP. GEN. B-51927, DATED 18 SEPTEMBER 1945 (25

COMP. GEN. 274).

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

SECTION 8 (A) OF PUBLIC LAW 305 APPROVED FEBRUARY 21,

1946.

(J) ACT OF FEBRUARY 21, 1946, ( PUBLIC LAW 305). ENCL: (A) COPY OF BUPERS LETTER PERS-3215-APR 7854, DATED 24

JUNE 1944.

(B) COPY OF SECNAV LETTER 7854 PERS-325-NJB, DATED 6

JANUARY 1946.

(C) COPY OF OPINION OF THE JUDGE ADVOCATE GENERAL

JAG:II:KMM:M, DATED 23 APRIL 1946.

6. THE PRESIDENT, ON 10 DECEMBER 1945, APPROVED THE REQUEST OF REAR ADMIRAL (T) CHARLES PERRY MASON, USN, FOR RETIREMENT UNDER THE PROVISIONS OF 34 U.S.C. 383. UPON THE BASIS OF SUCH EXECUTIVE ACTION, THIS OFFICER WAS ENTITLED TO BE PLACED ON THE RETIRED LIST WITH THREE FOURTHS OF THE HIGHEST PAY OF HIS GRADE WHICH, UNDER THE RULING OF THE COMPTROLLER GENERAL IN 23 COMP. GEN. 126, IS THREE-FOURTHS OF THE PAY OF A CAPTAIN (HIS PERMANENT RANK) WITH OVER 30 YEARS SERVICE. REAR ADMIRAL MASON WAS ELIGIBLE UNDER 34 U.S.C. 404 (L) TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE ( REAR ADMIRAL) BUT WITH NO INCREASE IN PAY, AND HE WAS ALSO ENTITLED, UNDER THE ORIGINAL SECTION 10 OF THE ACT OF JULY 24, 1941, TO BE PLACED ON THE RETIRED LIST IN THE HIGHEST RANK ( REAR ADMIRAL) IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, BUT WITH NO INCREASE IN PAY. THE SECRETARY OF THE NAVY, IN HIS DISCRETION, PLACED HIM ON THE RETIRED LIST IN THE HIGHEST RANK HELD BY HIM UNDER A TEMPORARY APPOINTMENT ( REAR ADMIRAL) (34 U.S.C. 350I), BUT WITH THE PAY OF A CAPTAIN ( ENCLOSURE (B) ). AT TIME OF RETIREMENT, REAR ADMIRAL MASON WAS ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF), HAVING ATTAINED THAT POSITION ON THE LIST OF REAR ADMIRALS OF THE ACTIVE LIST OF THE NAVY UNDER THE PROVISIONS OF 50 U.S.C. 807. A SUPERVENING EVENT, BETWEEN DATE OF ISSUANCE OF ENCLOSURE (B) (6 JANUARY 1946) AND EFFECTIVE DATE OF RETIREMENT IN THIS CASE (1 APRIL 1946), IS THE AMENDMENT OF SECTION 10 OF THE ACT OF JULY 24, 1941 BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946.

* * * UNDER THE PROVISIONS OF PARAGRAPHS (A) AND (B) (2) OF REFERENCE (I), REAR ADMIRAL MASON IS ENTITLED TO THE HIGHEST GRADE AND RANK ( REAR ADMIRAL (UPPER HALF) ( IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY, AND TO RETIRED PAY COMPUTED AT THE RATE APPLICABLE (75 PERCENT UNDER 34 U.S.C. 383) BASED ON SUCH HIGHER RANK) REAR ADMIRAL). IN ACCORDANCE WITH THE OPINION IN ENCLOSURE (C) HE IS ELIGIBLE TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE, VIZ: VICE ADMIRAL. ADVANCEMENT TO SUCH RANK ON THE RETIRED LIST WILL NOT AFFECT HIS RETIRED PAY STATUS, INASMUCH AS THE PAY PRESCRIBED FOR A REAR ADMIRAL (UPPER HALF) AND A VICE ADMIRAL IS THE SAME. PARAGRAPH (D) OF REFERENCE (I) PROVIDES THAT PERSONNEL ACCORDED HIGHER RANK PURSUANT TO THIS SECTION SHALL, IF SUBSEQUENTLY ASSIGNED TO ACTIVE DUTY, BE RECALLED IN THE GRADES, RANKS OR RATINGS IN 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. THIS OFFICER HAS BEEN ACCORDED THE (HONORARY) RANK OF VICE ADMIRAL UNDER REFERENCE (C), AND, IF SUBSEQUENTLY ASSIGNED TO ACTIVE DUTY, ORDERS FOR SUCH DUTY WOULD BE ADDRESSED TO HIM IN THE RANK OF VICE ADMIRAL AND HE WOULD BE ENTITLED, UNDER SECTIONS 7 AND 15 OF THE PAY READJUSTMENT ACT OF 1942, TO THE PERSONAL MONEY ALLOWANCE PRESCRIBED BY LAW FOR OFFICERS SERVING IN THAT RANK. THEREFORE, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE THE RETIRED AND ACTIVE DUTY PAY STATUS OF REAR ADMIRAL MASON UNDER CURRENT PAY LAWS.

9. IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE THE RETIRED PAY STATUS OF CERTAIN OFFICERS WHOSE RETIREMENT FROM ACTIVE SERVICE WAS EFFECTIVE UNDER THE CIRCUMSTANCES STATED BELOW:

(A) THE APPLICATION OF AN OFFICER OF THE REGULAR NAVY FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946 WAS APPROVED ON 29 APRIL 1946, AND HE WAS PLACED ON THE RETIRED LIST ON JULY 1946. THE PERMANENT RANK OF THIS OFFICER IS LIEUTENANT COMMANDER, THE HIGHEST TEMPORARY RANK IN WHICH HE SERVED WAS CAPTAIN, AND ON 30 JUNE 1946 HE HAD 21 YEARS 5 MONTHS AND 24 DAYS' SERVICE CREDITABLE FOR PAY PURPOSES. THIS OFFICER HOLDS A COMBAT CITATION FROM THE SECRETARY OF THE NAVY AND IS THEREBY ENTITLED, UNDER THE PROVISIONS OF 34 U.S.C. 404 (1), TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT TIME OF RETIREMENT. IS SUCH OFFICER ENTITLED, UNDER THE PROVISIONS OF 34 U.S.C. 404 (1), SECTION 7 (A) OF REFERENCE (J), AND PARAGRAPH (B) (2) OF REFERENCE (I) TO RETIRED PAY COMPUTED AS:

(A) 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE

($371.25);

(B) 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER

21 YEARS' SERVICE ($278.44); OR

(C) 52 1/2 PERCENT OF THE PAY OF CAPTAIN WITH OVER 21 YEARS'

SERVICE ($259.88/?

(B) AN OFFICER OF THE STAFF CORPS OF THE REGULAR NAVY HAS BEEN SELECTED FOR INVOLUNTARY RETIREMENT AND RECOMMENDED FOR RETIREMENT IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTIONS 1 AND 3 OF THE ACT OF FEBRUARY 21, 1946 AND WILL BE RETIRED ON NOVEMBER 1946. THIS OFFICER HAS OVER 23 YEARS AND 9 MONTHS SERVICE FOR PAY PURPOSES, AND THE HIGHEST RANK IN WHICH HE SERVED IS CAPTAIN. IT IS ASSUMED THAT THIS OFFICER WILL BE PLACED ON THE RETIRED LIST IN THE RANK OF CAPTAIN AND, UNDER THE PROVISIONS OF SECTION 7 (A) OF REFERENCE (J), HE WILL BE ENTITLED TO RETIRED PAY COMPUTED AS 60 PERCENT OF THE PAY PRESCRIBED FOR AN OFFICER OF THAT RANK. THIS OFFICER HOLDS THE PERMANENT RANK OF LIEUTENANT COMMANDER AND HE HAS BEEN SPECIALLY COMMENDED BY THE SECRETARY OF THE NAVY FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AND IS ELIGIBLE, UNDER REFERENCE (F), TO BE ADVANCED ON THE RETIRED LIST TO THE RANK OF THE NEXT HIGHER GRADE WITH THREE- FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT TIME OF RETIREMENT. IS THIS OFFICER ENTITLED, UNDER 34 U.S.C. 399 (K) (H), SECTION 7 OF REFERENCE (J), AND PARAGRAPH (B) (2) OF REFERENCE (I), TO RETIRED PAY:

(A) COMPUTED AS 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21

YEARS' SERVICE ($371.25);

(B) COMPUTED AS 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER

WITH OVER 21 YEARS' SERVICE ($278.44); OR

(C) COMPUTED AS 60 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 21

YEARS' SERVICE ($297.00/?

WITH REFERENCE TO YOUR FIRST QUESTION, IT APPEARS THAT THE PERMANENT RANK OF CHARLES PERRY MASON IS CAPTAIN; THAT JUST PRIOR TO HIS RETIREMENT UPON HIS OWN REQUEST AFTER THIRTY YEARS' SERVICE, EFFECTIVE APRIL 1, 1946, HE HELD THE TEMPORARY RANK OF REAR ADMIRAL AND WAS RECEIVING THE PAY OF A REAR ADMIRAL (UPPER HALF); THAT THE SECRETARY OF THE NAVY HAS DETERMINED THAT HE SERVED SATISFACTORILY AS A REAR ADMIRAL (UPPER HALF), AND THAT HE HAS BEEN "SPECIALLY COMMENDED FOR * * * PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED" SO AS TO COME WITHIN THE PURVIEW OF SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, 34 U.S.C. 404 (L), WHICH PROVIDES THAT:

ALL LINE OFFICERS OF THE NAVY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT AS PROVIDED IN SECTION 12 (H) OF THIS ACT (PHYSICAL DISABILITY), SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.

IT APPEARS THAT REAR ADMIRAL MASON'S APPLICATION FOR RETIREMENT WAS SUBMITTED AND THAT HIS RETIREMENT WAS EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, 34 U.S.C. 383, AS FOLLOWS:

WHEN AN OFFICER OF THE NAVY HAS BEEN THIRTY YEARS IN THE SERVICE, HE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE.

SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, 34 U.S.C. SUPP. V, 350 (I), IS AS FOLLOWS:

SECTION 10 OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 605), IS HEREBY AMENDED TO READ AS FOLLOWS:

"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 NO 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.'

EXCEPT AS PROVIDED IN SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, IN THE CASE OF OFFICERS WHO RETIRED FOR DISABILITY WHILE SERVING IN A HIGHER TEMPORARY RANK, AND SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465 (RETIREMENT FOR AGE), THERE NEVER WAS GENERAL STATUTORY AUTHORITY, PRIOR TO FEBRUARY 21, 1946, FOR THE RETIREMENT FOR OFFICERS OF THE NAVY IN THEIR TEMPORARY RANK WITH RETIRED PAY BASED UPON SUCH TEMPORARY RANK, AND THERE APPEARS TO BE NO QUESTION THAT THE PROVISION OF SECTION 12 (1) OF THE LINE SELECTION LAW OF 1938 WAS LIMITED IN ITS APPLICATION TO THE PERMANENT RANK OF OFFICERS OF THE REGULAR NAVY. THUS REAR ADMIRAL MASON WOULD HAVE BEEN ENTITLED TO RETIRED PAY COMPUTED ON HIS PERMANENT RANK OF CAPTAIN WITH THE HONORARY RANK OF REAR ADMIRAL ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 12 (1) EXCEPT FOR THE PROVISIONS OF SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA.

A CASE CLOSELY ANALOGOUS IN PRINCIPLE TO THE CASE OF REAR ADMIRAL MASON, BUT INVOLVING DIFFERENT STATUTORY RETIREMENT PROVISIONS, WAS CONSIDERED IN DECISION OF NOVEMBER 29, 1943, 23 COMP. GEN. 393, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

SECTION 3 OF THE ACT OF JANUARY 12, 1923, AUTHORIZING FOR COAST GUARD OFFICERS RETIRED AFTER 40 YEARS' SERVICE, A ONE-GRADE ADVANCEMENT IN RANK AND RETIRED PAY OVER THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, OPERATES ONLY UPON THE PERMANENT RANK OF SUCH AN OFFICER, AND NOT UPON A TEMPORARY RANK TO WHICH PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AND IN WHICH RETIRED FOR AGE PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1942, APPLICABLE TO OFFICERS ATTAINING THE AGE OF 64 YEARS WHILE HOLDING TEMPORARY RANK DURING THE WAR EMERGENCY PERIOD.

THE FOLLOWING LANGUAGE OF THAT DECISION IS QUITE PERTINENT IN THE CONSIDERATION OF YOUR FIRST QUESTION:

* * * THE LEGISLATIVE HISTORY OF SECTION 6 OF THE ACT OF JUNE 30, 1942, SHOWS THAT IT WAS DESIGNED TO SUPPLEMENT THE ACT OF JULY 24, 1941, SO THAT OFFICERS HOLDING TEMPORARY COMMISSIONS THEREUNDER AND WHO WERE RETIRED UPON ATTAINING THE AGE OF SIXTY-FOUR YEARS COULD BE RETIRED WITH THEIR TEMPORARY RANK AND GRADE AND RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY THEY WERE RECEIVING AT THE TIME OF RETIREMENT. WHILE IT IS EXPRESSLY PROVIDED IN SAID SECTION 6 THAT AN OFFICER SHALL BE RETIRED AS AUTHORIZED THEREIN "UNLESS ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK UNDER SOME OTHER/PROVISION OF LAW," THAT PROVISION MERELY IS IN THE NATURE OF A SAVINGS CLAUSE; THAT IS, AN OFFICER'S RIGHT TO BE RETIRED IN HIS TEMPORARY GRADE OR RANK AS AUTHORIZED BY SAID SECTION 6 DOES NOT DEPRIVE HIM OF THE RIGHT TO BE RETIRED UNDER SOME OTHER STATUTE WHICH MAY BE MORE BENEFICIAL TO HIM.

I FIND NO INDICATION, EITHER IN SECTION 6 ITSELF OR IN ITS LEGISLATIVE HISTORY, TENDING TO SHOW THAT AN OFFICER IS AUTHORIZED TO FIRST TAKE ADVANTAGE OF THAT SECTION, BE RETIRED IN HIS TEMPORARY GRADE OR RANK WITH RETIRED PAY BASED ON HIS ACTIVE DUTY PAY AUTHORIZED IN SUCH TEMPORARY STATUS, AND THEN BE ADVANCED TO A HIGHER GRADE PURSUANT TO SECTION 3 OF THE ACT OF JANUARY 12, 1923, BECAUSE HE HAD COMPLETED 40 YEARS SERVICE. IT SEEMS CLEAR THAT THE PROVISION CONTAINED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, IS INTENDED TO OPERATE ONLY UPON THE PERMANENT RANK OF OFFICERS OF THE COAST GUARD WHO ARE OTHERWISE ENTITLED TO ITS BENEFITS AND THAT IT HAS NO REASONABLE APPLICATION TO AN OFFICER WHO RECEIVED A HIGHER TEMPORARY RANK, UNDER A WARTIME MEASURE, SHORTLY BEFORE REACHING THE STATUTORY RETIREMENT AGE. * * *

IN A DECISION DATED DECEMBER 16, 1946, TO THE SECRETARY OF THE TREASURY, B-60127, 26 COMP. GEN. 417, INVOLVING SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, THERE WAS CONSIDERED THE LEGAL EFFECT UPON THE RETIRED PAY OF AN OFFICER OF THE UNITED STATES COAST GUARD WHO, WHILE HOLDING THE PERMANENT RANK OF COMMANDER AND THE RANK OF REAR ADMIRAL, TEMPORARY, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, HAD BEEN SPECIALLY COMMENDED UNDER THE ACT OF JUNE 6, 1942, 56 STAT. 328--- IDENTICAL IN PURPOSE TO SECTION 12 (1) OF THE LINE SELECTION LAW OF 1938--- AND WHO ALSO HAD SERVED PRIOR TO NOVEMBER 13, 1918, AND IT WAS STATED THEREIN:

THE SAID SECTION 6 (ACT OF FEBRUARY 21, 1946) ESTABLISHES A NEW AND BROADER BASIS UPON WHICH AN APPLICATION FOR RETIREMENT MAY BE PREDICATED AND, IN A SENSE, IS ANALOGOUS TO, AND IS A SUBSTITUTE FOR, SUBSECTION 12 (E) OF THE ACT OF JUNE 23, 1938, SUPRA, WHICH IS REPEALED BY SECTION 11 (C) OF PUBLIC LAW 305. UNLIKE THE EARLIER LAW, THE CURRENT PROVISIONS DO NOT SPECIFICALLY PROVIDE THE BASIS UPON WHICH RETIRED PAY IS TO BE COMPUTED FOR OFFICERS RETIRED THEREUNDER; HOWEVER, SECTION 7 OF PUBLIC LAW 305 PROVIDES AS FOLLOWS:

" "/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.

" "/B) NOTHING WITHIN THIS SECTION SHALL PREVENT ANY OFFICER FROM BEING PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK AND WITH THE HIGHEST RETIRED PAY TO WHICH HE MIGHT BE ENTITLED UNDER OTHER PROVISIONS OF LAW.

" "/C) 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 THE ACT APPROVED JULY 24, 1941 (55 STAT. 603), 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.'"

SUBSECTION (C), QUOTED ABOVE, CLEARLY LIMITS THE RANK IN WHICH AN OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED, TO THE HIGHEST RANK ATTAINED ON OR PRIOR TO JUNE 30, 1946. IT DOES NOT APPEAR FROM THE LANGUAGE EMPLOYED THAT AN OFFICER IS TO BE GIVEN THE BENEFITS OF THAT SECTION AND TO HAVE SUPERIMPOSED UPON SUCH BENEFITS THE PROVISIONS OF OTHER LAWS. I FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD INDICATE AN INTENT ON THE PART OF THE CONGRESS TO PROVIDE CUMULATIVE BENEFITS UNDER THE CIRCUMSTANCES INDICATED IN YOUR LETTER. ON THE CONTRARY, TO GIVE EFFECT TO THE SAVINGS PROVISIONS CONTAINED IN SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, IT MUST BE CONCLUDED THAT, IN THE FIRST INSTANCE, THE RETIRED PAY OF AN OFFICER RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THAT ACT IS TO BE COMPUTED AS INDICATED IN SECTION 7 THEREOF, AND THAT THE RETIRED PAY SO COMPUTED IS THE HIGHEST RETIRED PAY WHICH IS AUTHORIZED TO BE PAID TO A PARTICULAR OFFICER UNLESS, UNDER OTHER PROVISIONS OF LAW AND WITHOUT THE ADVANTAGE OF THE PROVISIONS OF THE SAID SECTION 7, HE IS ENTITLED TO A HIGHER RETIRED PAY.

IN A DECISION DATED NOVEMBER 19, 1946, B-60141, TO THE SECRETARY OF THE NAVY, IT WAS HELD THAT A REAR ADMIRAL OF THE NAVY WHO WAS ENTITLED TO THE PAY OF THE LOWER HALF ON JUNE 30, 1946, WOULD BE ENTITLED TO NO INCREASE IN RETIRED PAY UPON SUBSEQUENT RETIREMENT SOLELY BECAUSE HE CHANGED FROM THE PAY OF THE LOWER HALF TO THE PAY OF THE UPPER HALF AFTER JUNE 30, 1946. HENCE, UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, AN OFFICER, WHO, AS INDICATED IN YOUR LETTER, WAS HOLDING THE PERMANENT RANK OF COMMANDER; WHO WAS ADVANCED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, TO THE RANK OF CAPTAIN ON DECEMBER 10, 1942, AND TO THE RANK OF REAR ADMIRAL ON NOVEMBER 22, 1944; AND WHO BECAME ENTITLED TO THE PAY OF THE UPPER HALF ON JULY 1, 1946, WOULD BE ENTITLED, IF RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, TO RETIRED PAY OF 75 PERCENT (LAST PROVISO OF SECTION 8 (A) ( OF THE PAY OF THE LOWER HALF. NEITHER THE PROVISIONS OF SECTION 15 OF THE ACT OF JUNE 16, 1942, WITH RESPECT TO THE RETIRED PAY OF OFFICERS WHO PERFORMED SERVICE PRIOR TO NOVEMBER 12, 1918, NOR THE PROVISIONS OF THE ACT OF JUNE 6, 1942, WITH RESPECT TO OFFICERS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, WHEN CONSIDERED TOGETHER WITH LAWS OTHER THAN THE PROVISIONS OF SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, WOULD APPEAR TO ENTITLE THE OFFICER TO A HIGHER RETIRED PAY, AND, THEREFORE, IT IS CONCLUDED THAT THE OFFICER MENTIONED IN YOUR LETTER IS ENTITLED TO RETIRED PAY AS INDICATED ABOVE COMPUTED UNDER THE PROVISIONS OF SECTION 7. YOUR QUESTION IS ANSWERED ACCORDINGLY.

THE SAVING CLAUSES CONTAINED IN SECTION 10 PROVIDE ONLY FOR PRESERVING ANY GREATER BENEFITS TO WHICH AN OFFICER MAY BE ENTITLED UNDER STATUTORY PROVISIONS OTHER THAN THOSE CONTAINED IN SUCH SECTION AND SINCE THE BENEFITS PROVIDED IN SECTION 12 (L) OF THE LINE SELECTION LAW OF 1938 RELATE ONLY TO OFFICERS OF THE REGULAR NAVY RETIRED IN THEIR PERMANENT RANK SUCH BENEFITS DO NOT ACCRUE TO OFFICERS RETIRED IN A TEMPORARY RANK. AND ALTHOUGH NOT STRICTLY A MATTER FOR CONSIDERATION BY THIS OFFICE, THERE WOULD APPEAR TO BE EXTREME DOUBT AS TO THE APPLICABILITY OF THE SAID SECTION 12 (L) IN CONFERRING AN HONORARY RANK UPON THE RETIRED LIST ABOVE THE HIGHEST TEMPORARY RANK AUTHORIZED IN THE SAID ACT OF FEBRUARY 21, 1946. AT ANY RATE, BASED UPON THE ABOVE AND THE DECISIONS CITED, FOR PURPOSES OF RETIRED PAY, THE RANK OF REAR ADMIRAL MASON UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, IS REAR ADMIRAL (UPPER HALF), AND IF HE SHOULD BE CALLED TO ACTIVE DUTY, FOR PURPOSES OF ACTIVE DUTY PAY AND ALLOWANCES THE HIGHEST RANK TO WHICH HE WOULD BE ENTITLED BY LAWS NOW IN EFFECT IS THAT OF REAR ADMIRAL OF THE UPPER HALF. SEE GENERALLY 19 COMP. GEN. 433. SINCE YOUR SECOND QUESTION MAKES INQUIRY RELATIVE TO THE RETIRED PAY STATUS OF OFFICERS OF THE RANK OF COMMODORE AND BELOW, IT IS ASSUMED THIS QUESTION INVOLVES OFFICERS WHO ARE RETIRED WHILE HOLDING RANKS TEMPORARILY, AND INASMUCH AS THE PRINCIPLE INVOLVED IN THIS QUESTION SEEMS TO BE THE SAME AS THAT CONTAINED IN YOUR SUBSEQUENT QUESTIONS, AN ANSWER TO YOUR OTHER QUESTIONS MAKES UNNECESSARY AN ANSWER TO YOUR SECOND QUESTION.

YOUR THIRD QUESTION INVOLVES THE CASE OF AN OFFICER OF THE LINE OF THE NAVY WHO WAS PLACED ON THE RETIRED LIST UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, IN THE RANK OF CAPTAIN, TEMPORARY (PERMANENT RANK OF LIEUTENANT COMMANDER), AFTER 21 YEARS' SERVICE, AND YOUR FOURTH QUESTION INVOLVES THE RETIRED PAY STATUS OF AN OFFICER OF THE STAFF CORPS OF THE REGULAR NAVY WHO WAS SELECTED FOR INVOLUNTARY RETIREMENT UNDER THE SAME ACT WITH OVER 23 1/2 YEARS' SERVICE. THIS STAFF OFFICER ALSO HOLDS THE PERMANENT RANK OF LIEUTENANT COMMANDER AND HIS HIGHEST TEMPORARY RANK IS THAT OF CAPTAIN. SINCE BOTH OFFICERS ARE REPORTED TO HAVE BEEN SPECIALLY COMMENDED UNDER SUBSTANTIALLY IDENTICAL PROVISIONS, I.E., SECTION 12 (L) OF THE LINE SELECTION LAW OF 1938, AND ACT OF FEBRUARY 23, 1942, 56 STAT. 120, RESPECTIVELY, THE SAME QUESTION IS PRESENTED IN EACH CASE AS TO WHETHER THEIR RETIRED PAY IS TO BE COMPUTED UNDER SECTION 7 (A), 60 STAT. 27, ON THE PAY OF A CAPTAIN (THE HIGHEST TEMPORARY RANK); ON 75 PERCENT OF THE PAY OF A CAPTAIN, OR UPON 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER, THE LAST TWO ALTERNATE BASES BEING PREMISED UPON THE SPECIAL COMMENDATION STATUTES.

IT SEEMS REASONABLY CLEAR THAT SECTION 10 (B) (2) HAS NO APPLICATION WITH RESPECT TO THESE OFFICERS OF THE REGULAR NAVY WHO WERE RETIRED IN THEIR HIGHEST TEMPORARY RANK UNDER THE FIRST SIX SECTIONS OF THE ACT. SECTION 10 (B) (2), SUPRA, IS NOT LIMITED TO OFFICERS, ALONE, APPOINTED OR ADVANCED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, BUT APPLIES TO PERSONNEL OF THE ACTIVE LIST AND PERSONNEL OF THE FLEET RESERVE, AND PROVIDES THAT WHEN SUBSEQUENTLY RETIRED SUCH PERSONNEL SHALL:

* * * 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.

THIS GENERAL PROVISION OF THE STATUTE SEEMS TO REFER TO, AND PROVIDE FOR, ANY PERSONNEL ON THE ACTIVE LIST OR IN THE FLEET RESERVE WHO, WHEN SUBSEQUENTLY RETIRED, MAY NOT BE SERVING IN THEIR HIGHEST GRADE OR RANK AND WHO CONSEQUENTLY WOULD BE REQUIRED TO ACCEPT A RATE OF RETIRED PAY PRESCRIBED BY LAW IN SOME LOWER RANK OR GRADE. SEE 26 COMP. GEN. 5. HOWEVER, IT IS NOT PERCEIVED THAT THE PROVISIONS OF SAID SECTION 10 (B) (2) HAVE ANY APPLICATION WITH RESPECT TO OFFICERS RETIRED UNDER THE PROVISIONS OF SECTIONS 1 TO 6 OF THE SAME ACT, 60 STAT. 26, 27, FOR WHOM SPECIFIC PROVISION IS MADE UNDER SECTION 7 (A) AUGMENTED BY THE SAVINGS CLAUSES OF SECTIONS 7 (B) AND (C), 60 STAT. 27. THE LANGUAGE EMPLOYED IN SECTION 7 (A) OF THE ACT IS SPECIFIC IN PROVIDING THAT ,1EACH 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," WITH THE 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.' THE SAVINGS CLAUSES OF SECTIONS 7 (B) AND (C) MANIFEST NO PURPOSE TO GRANT TO OFFICERS OF THE REGULAR SERVICE RETIRED PAY AT A RATE ABOVE 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF THEIR HIGHEST TEMPORARY GRADE OR RANK, FOR EACH YEAR OF SERVICE, AND SINCE THAT RATE OF RETIRED PAY IS SPECIFICALLY SO PROVIDED, THERE APPEARS TO BE NO LEGAL BASIS OR NECESSITY FOR ADVERTING TO PROVISIONS OTHER THAN THE SAVINGS CLAUSES CONTAINED IN SAID SECTION 7 (B) AND (C).

SINCE THE OFFICERS REFERRED TO IN YOUR THIRD AND FOURTH QUESTIONS APPEAR TO HAVE BEEN PLACED ON THE RETIRED LIST WITH THE HIGHEST TEMPORARY RANK TO WHICH ENTITLED UNDER SECTION 7 (A) AND NOT HAVING ATTAINED A HIGHER PERMANENT RANK, THE RETIRED PAY TO WHICH THEY ARE ENTITLED IS LIMITED TO THAT COMPUTED AT THE RATE PRESCRIBED IN SECTION 7 (A) UNLESS ENTITLED TO A HIGHER RETIRED PAY UNDER OTHER PROVISIONS OF LAW UNAIDED BY SAID SECTION 7. THE LEGISLATIVE HISTORY OF THE ACT OF FEBRUARY 21, 1946, AFFORDS NO SUBSTANTIAL AID AS TO THE PRECISE MEANING AND PURPOSE OF THE UNCERTAIN, IF NOT REDUNDANT, LANGUAGE OF THE RESPECTIVE SECTIONS 7 AND 10. WHILE THE SAVINGS CLAUSES APPEAR TO HAVE BEEN INCORPORATED IN THE ACT FOR THE PURPOSE OF GRANTING BENEFITS PERTAINING TO OFFICERS SUBSEQUENTLY ATTAINING HIGHER PERMANENT RANK, WHICH WOULD EXCLUDE GRANTING TO OFFICERS RETIRED IN THEIR TEMPORARY RANK THE RETIRED PAY TO WHICH PERMANENT OFFICERS WHO ARE SPECIALLY COMMENDED ARE ENTITLED, SECTIONS 7 (B) AND (C) OF THE ACT SAVED TO SUCH TEMPORARY OFFICERS THE RETIRED PAY OF THEIR PERMANENT RANK TO WHICH ENTITLED UNDER OTHER LAWS IF GREATER THAN THE RETIRED PAY COMPUTED ON THEIR HIGHEST TEMPORARY RANK UNDER THE PROVISIONS OF SECTION 7 (A).

IT IS NOTED, ALSO, THAT ONE OF THE PURPOSES OF THE ACT UNDER CONSIDERATION WAS TO PLACE OFFICERS OF THE RESERVE COMPONENTS OF THE NAVY AND MARINE CORPS, WHO MIGHT BE ELIGIBLE FOR RETIREMENT, ON A PARITY WITH OFFICERS OF THE REGULAR SERVICES WHO RETIRE UNDER ITS PROVISIONS. SINCE SECTION 12 (L) OF THE LINE SELECTION LAW OF 1938 AND THE ACT OF FEBRUARY 23, 1942, ARE APPLICABLE ONLY TO OFFICERS HOLDING PERMANENT RANK IN THE REGULAR NAVY AND MARINE CORPS, AN INTERPRETATION OF THE STATUTE AUTHORIZING OFFICERS OF THE REGULAR SERVICES TO RECEIVE RETIRED PAY FOR SPECIAL COMMENDATIONS BASED UPON THEIR TEMPORARY RANK, WOULD CREATE A DISPARITY AS BETWEEN THEM AND SPECIALLY COMMENDED OFFICERS OF THE RESERVE COMPONENTS WHO OTHERWISE MIGHT BE ENTITLED TO RETIREMENT UNDER THE PROVISIONS OF THE ACT, IN THEIR TEMPORARY GRADES.

ACCORDINGLY, SINCE THE RETIRED PAY OF THE OFFICER REFERRED TO IN YOUR THIRD QUESTION, WHEN COMPUTED ON 75 PERCENTUM OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE, IS GREATER THAN 52 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A CAPTAIN, THE OFFICER IS ENTITLED TO RETIRED PAY AT 75 PERCENTUM OF THE PAY OF A LIEUTENANT COMMANDER. IN YOUR FOURTH QUESTION THE RETIRED PAY COMPUTED ON 60 PERCENTUM OF THE OFFICER'S TEMPORARY RANK OF CAPTAIN IS GREATER THAN WOULD BE HIS RETIRED PAY WHEN COMPUTED ON 75 PERCENTUM OF HIS PERMANENT RANK OF LIEUTENANT COMMANDER, AND HE IS ENTITLED TO RETIRED PAY COMPUTED UNDER SECTION 7 (A) ON THE TEMPORARY RANK OF CAPTAIN.