B-61309, DECEMBER 30, 1946, 26 COMP. GEN. 445

B-61309: Dec 30, 1946

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1918 A PUBLIC HEALTH SERVICE OFFICER WHO IS RETIRED PURSUANT TO SECTION 210 (C) (2) OF THE PUBLIC HEALTH SERVICE ACT FOR FAILURE TO QUALIFY FOR PROMOTION. IS ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF HIS ACTIVE-DUTY PAY AS PROVIDED BY SAID SECTION 15 FOR RETIRED OFFICERS WHO HAD SO SERVED. IS NOT LIMITED TO THE LESSER RETIRED PAY RATE PRESCRIBED BY SAID SECTION 210 (C) (2) FOR OFFICERS RETIRED PURSUANT THERETO. AS FOLLOWS: I HAVE THE HONOR TO SUBMIT FOR YOUR CONSIDERATION THE FOLLOWING QUESTION WITH REFERENCE TO THE RETIREMENT OF AN OFFICER COMMISSIONED IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE: SECTION 210 (C) (2) OF THE PUBLIC HEALTH SERVICE ACT (58 STAT. 682) PROVIDES AS FOLLOWS: "/C) WHEN A COMMISSIONED OFFICER IN THE REGULAR CORPS IS FOUND.

B-61309, DECEMBER 30, 1946, 26 COMP. GEN. 445

PAY - RETIRED - PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS RETIRED FOR FAILURE TO QUALIFY FOR PROMOTION - EFFECT OF SERVICE PRIOR TO NOVEMBER 12, 1918 A PUBLIC HEALTH SERVICE OFFICER WHO IS RETIRED PURSUANT TO SECTION 210 (C) (2) OF THE PUBLIC HEALTH SERVICE ACT FOR FAILURE TO QUALIFY FOR PROMOTION, AND WHO HAD SERVED "AS A MEMBER OF THE MILITARY OR NAVAL FORCES * * * PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, IS ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF HIS ACTIVE-DUTY PAY AS PROVIDED BY SAID SECTION 15 FOR RETIRED OFFICERS WHO HAD SO SERVED, AND IS NOT LIMITED TO THE LESSER RETIRED PAY RATE PRESCRIBED BY SAID SECTION 210 (C) (2) FOR OFFICERS RETIRED PURSUANT THERETO.

ASSISTANT COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, DECEMBER 30, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 10, 1946, AS FOLLOWS:

I HAVE THE HONOR TO SUBMIT FOR YOUR CONSIDERATION THE FOLLOWING QUESTION WITH REFERENCE TO THE RETIREMENT OF AN OFFICER COMMISSIONED IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE:

SECTION 210 (C) (2) OF THE PUBLIC HEALTH SERVICE ACT (58 STAT. 682) PROVIDES AS FOLLOWS:

"/C) WHEN A COMMISSIONED OFFICER IN THE REGULAR CORPS IS FOUND, AFTER EXAMINATION, TO BE NOT QUALIFIED FOR PROMOTION FOR REASONS OTHER THAN PHYSICAL DISABILITY INCURRED IN LINE OF DUTY---

"/2) IF IN THE FULL OR SENIOR GRADE HE SHALL BE REPORTED AS NOT IN LINE OF PROMOTION, OR SHALL BE RETIRED AND PAID AT THE RATE OF 2 1/2 PERCENTUM FOR EACH COMPLETE YEAR OF ACTIVE COMMISSIONED SERVICE IN THE SERVICE, BUT IN NO CASE TO EXCEED 60 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME HE IS RETIRED.'

SECTION 15 OF THE PAY READJUSTMENT ACT (56 STAT. 359) PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

THE OFFICER IN QUESTION, BEING IN THE FULL GRADE AND HAVING FAILED AN EXAMINATION FOR PROMOTION, IS TO BE RETIRED, EFFECTIVE NOVEMBER 1, 1946, UNDER THE ABOVE QUOTED SECTION OF THE PUBLIC HEALTH SERVICE ACT. HIS RECORD DISCLOSES THAT HE SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.

IS THE OFFICER ENTITLED TO THE RATE OF RETIRED PAY AUTHORIZED BY (1) SECTION 210 (C) (2) OF THE PUBLIC HEALTH SERVICE ACT, OR BY (2) SECTION 15 OF THE PAY READJUSTMENT ACT?

YOUR ADVICE ON THIS QUESTION IS RESPECTFULLY REQUESTED.

THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 359, IS ENTITLED " AN ACT TO READJUST THE PAY AND ALLOWANCES OF PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE.' THEREFORE, THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THAT ACT (56 STAT. 367, 368), QUOTED IN YOUR LETTER ABOVE, MUST BE APPLIED IN COMPUTING THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WHO OTHERWISE COME WITHIN SUCH PROVISIONS AND WHO ARE NOT BARRED BY ANY OTHER LAW FROM BENEFITING BY SUCH PROVISIONS.

THAT PART OF SECTION 210 (C) OF THE PUBLIC HEALTH SERVICE ACT (APPROVED JULY 1, 1944), 58 STAT. 688, QUOTED IN YOUR LETTER, IS SUBSTANTIALLY IDENTICAL--- FOR PURPOSES OF ANALYSIS IN CONNECTION WITH YOUR PRESENT QUESTION--- WITH A COMPARABLE PART OF SECTION 9 (C) OF THE ACT OF APRIL 9, 1930, 46 STAT. 151, 152, 42 U.S.C. 37 (C), WHICH IT SUPERSEDED; THE ENTIRE ACT OF APRIL 9, 1930, HAVING BEEN REPEALED BY SECTION 611 OF THE SAID ACT OF JULY 1, 1944, 58 STAT. 714, 719. WHILE SECTION 9 (C) OF THE 1930 ACT PROVIDED FOR PLACING OFFICERS ON "WAITING ORDERS" AND SECTION 210 (C) OF THE 1944 ACT PROVIDES THAT THEY SHALL BE "RETIRED," SUCH DIFFERENCE IN PHRASEOLOGY IS NOT MATERIAL IN VIEW OF THE PRIOR LONGSTANDING ADMINISTRATIVE PRACTICE OF ACCOMPLISHING THE "RETIREMENT" OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE BY PLACING SUCH OFFICERS ON PERMANENT "WAITING ORDERS" (SEE B-59714, OCTOBER 11, 1946, 26 COMP. GEN. 254), AND IN VIEW OF THE PROVISION IN PARAGRAPH 70 OF THE PUBLIC HEALTH SERVICE REGULATIONS OF 1931 (REVOKED BY EXECUTIVE ORDER NO. 9655, DATED NOVEMBER 14, 1945) THAT," PERMANENT "WAITING ORDERS" AS USED IN THESE REGULATIONS CORRESPONDS TO "RETIREMENT" FOR OFFICERS OF THE UNITED STATES ARMY.' ALSO, THE LEGISLATIVE HISTORY OF THE ACT OF JULY 1, 1944, SUPRA, INDICATES THAT THE CONGRESSIONAL COMMITTEES WHICH CONSIDERED THE BILL THAT BECAME THE SAID ACT DID NOT CONSIDER THAT THE PROVISIONS OF THE SAID SECTION 210 (C) WERE MATERIALLY DIFFERENT FROM THOSE OF SECTION 9 (C) OF THE ACT OF APRIL 9, 1930. HENCE, IT IS SEEN THAT THE STATUTORY PROVISIONS FOR THE RETIREMENT OF PUBLIC HEALTH SERVICE OFFICERS OF THE FULL OR SENIOR GRADE (SURGEON OR SENIOR SURGEON) WHO, UPON EXAMINATION, ARE FOUND TO BE NOT QUALIFIED FOR PROMOTION FOR REASONS OTHER THAN PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, WERE SUBSTANTIALLY THE SAME BEFORE AND AFTER ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942.

IT MUST BE PRESUMED THAT WHEN THE CONGRESS PASSED THE PAY READJUSTMENT ACT OF 1942 IT KNEW OF THE PREEXISTING LAW WHICH LIMITED THE RETIRED PAY OF CERTAIN PUBLIC HEALTH SERVICE OFFICERS (THOSE PLACED ON WAITING ORDERS UNDER SECTION 9 (C) (3) OF THE ACT OF APRIL 9, 1930) TO 60 PERCENT OF THEIR ACTIVE DUTY PAY. THE PLAIN LANGUAGE OF PARAGRAPH 4, SECTION 15, OF THE SAID 1942 ACT INDICATES THAT THE CONGRESS INTENDED TO MAKE SUCH A LIMITATION INAPPLICABLE TO THE CASE OF ANY OFFICER "WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW," AND TO SUBSTITUTE THE RATE OF 75 PERCENTUM (OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT) FOR ANY LOWER PERCENTAGE RATES PRESCRIBED FOR USE IN COMPUTING THE RETIRED PAY OF OFFICERS, OTHERWISE SIMILARLY SITUATED, WHO DID NOT HAVE SUCH SERVICE PRIOR TO NOVEMBER 12, 1918.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THERE IS NO DOUBT THE OFFICER INVOLVED IN YOUR QUESTION SERVED IN SOME CAPACITY "AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SEE 24 COMP. GEN. 809. ACCORDINGLY, BASED ON THAT UNDERSTANDING, I HAVE TO ADVISE THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATE PRESCRIBED IN THE SAID PARAGRAPH 4.