B-63359, MAY 6, 1947

B-63359: May 6, 1947

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THE AUTHORITY FOR THE VOLUNTARY RETIREMENT OF OFFICERS OF THE NAVAL RESERVE ON THE BASIS OF SERVICE IS CONTAINED IN REFERENCE (A) AND (H). THE RETIRED PAY STATUS OF SUCH OFFICES IS GOVERNED BY THE PROVISIONS OF REFERENCES (B) AND (I). ARE ENTITLED TO THE BENEFITS OF INCREASE IN RANK AND/OR PAY AUTHORIZED FOR OFFICERS OF THE REGULAR NAVY UNDER GENERAL LAWS WHICH ARE NOT MADE SPECIFICALLY APPLICABLE TO MEMBERS OF THE NAVAL RESERVE. "2. THE CASES CITED BELOW ARE ILLUSTRATIVE OF SOME OF THE QUESTIONS WHICH ARE SUBMITTED HEREWITH FOR DETERMINATION: "(A) OFFICER ENTERED THE NAVAL ACADEMY ON 26 JUNE 1909. WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY. WAS SUCCESSIVELY TEMPORARILY APPOINTED TO THE RANK OF COMMANDER AND CAPTAIN.

B-63359, MAY 6, 1947

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 27, 1947, REQUESTING DECISION ON THE QUESTIONS PRESENTED IN A LETTER FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED DECEMBER 23, 1946, AS FOLLOWS:

"SUBJ: REQUEST FOR DECISION OF THE COMPTROLLER GENERAL AS TO RETIRED PAY STATUS OF CERTAIN OFFICERS OF THE NAVAL RESERVE.

"REF: (A) SECTION 309 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S. CODE 855H).

(B) SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 855I).

(C) ACT OF AUGUST 27, 1940, AS AMENDED BY THE ACT OF OCTOBER 10, 1942, (34 U.S.C. 855C-1).

(D) ACT OF JANUARY 16, 1936 (34 U.S.C. 399F).

(E) SECTION 12(1) OF THE ACT OF JUNE 23, 1938, AS AMENDED (34 U.S. CODE 4041).

(F) PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (37 U.S.C. 115).

(G) SECTION 8 OF THE ACT OF JULY 24, 1941 (34 U.S.C. 350G).

(H) SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946.

(I) SECTION 7 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946.

(J) SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SEC. 86(A) PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946.

(K) DECISION OF THE COMPTROLLER GENERAL B-61946, DATED 2 DECEMBER 1946.

"1. THE AUTHORITY FOR THE VOLUNTARY RETIREMENT OF OFFICERS OF THE NAVAL RESERVE ON THE BASIS OF SERVICE IS CONTAINED IN REFERENCE (A) AND (H), AND THE RETIRED PAY STATUS OF SUCH OFFICES IS GOVERNED BY THE PROVISIONS OF REFERENCES (B) AND (I), RESPECTIVELY. REFERENCES (C) AND (G) CONSTITUTE THE AUTHORITY FOR RETIREMENT OF OFFICERS OF THE NAVAL RESERVE FOR PHYSICAL DISABILITY INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE WHILE ON ACTIVE DUTY FOR A PERIOD OF EXTENDED SERVICE IN EXCESS OF 30 DAYS. THE QUESTION HAS ARISEN AS TO WHETHER CERTAIN RESERVE OFFICERS ELIGIBLE FOR VOLUNTARY RETIREMENT, ARE ENTITLED TO THE BENEFITS OF INCREASE IN RANK AND/OR PAY AUTHORIZED FOR OFFICERS OF THE REGULAR NAVY UNDER GENERAL LAWS WHICH ARE NOT MADE SPECIFICALLY APPLICABLE TO MEMBERS OF THE NAVAL RESERVE.

"2. THE CASES CITED BELOW ARE ILLUSTRATIVE OF SOME OF THE QUESTIONS WHICH ARE SUBMITTED HEREWITH FOR DETERMINATION:

"(A) OFFICER ENTERED THE NAVAL ACADEMY ON 26 JUNE 1909, GRADUATED THEREFROM ON 6 JUNE 1913, ACCEPTED COMMISSION AS ENSIGN ON 7 JUNE 1913, RESIGNED FROM THE REGULAR NAVY ON 30 NOVEMBER 1928 WHILE HOLDING THE RANK OF LIEUTENANT COMMANDER, ACCEPTED APPOINTMENT AS LIEUTENANT COMMANDER IN THE NAVAL RESERVE ON 19 MARCH 1929, AND WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITHOUT PAY, ON 1 OCTOBER 1941 UNDER THE PROVISIONS OF SECTION 308 OF THE NAVAL RESERVE ACT OF 1938. THIS OFFICER PERFORMED NO ACTIVE DUTY BETWEEN DATE OF ACCEPTANCE OF COMMISSION IN THE NAVAL RESERVE AND DATE OF TRANSFER TO THE HONORARY RETIRED LIST. REPORTED FOR ACTIVE DUTY ON 23 MARCH 1943 IN THE RANK OF LIEUTENANT COMMANDER, USNR, RETIRED, AND WAS SUCCESSIVELY TEMPORARILY APPOINTED TO THE RANK OF COMMANDER AND CAPTAIN, PRIOR TO 1 JULY 1946. THIS RETIRED OFFICER MADE APPLICATION FOR RETIREMENT WITH PAY UNDER THE PROVISIONS OF REFERENCE (H), AND SUCH REQUEST WAS TRANSMITTED TO THE PRESIDENT BY THE SECRETARY OF THE NAVY FOR APPROVAL, AND WAS APPROVED BY THE PRESIDENT ON 25 JULY 1946, EFFECTIVE 1 AUGUST 1946.

THE OFFICER WAS RELEASED FROM ACTIVE DUTY ON EFFECTIVE DATE OF RETIREMENT, I.E., 1 AUGUST 1946. THIS OFFICER WAS NOT ELIGIBLE FOR TRANSFER TO THE HONORARY RETIRED LIST WITH PAY UNDER THE PROVISIONS OF REFERENCES (A) AND (B). AS OF 1 AUGUST 1946, THIS OFFICER HAD COMPLETED ACTIVE COMMISSIONED SERVICE TOTALING 18 YEARS AND 10 MONTHS WHICH, PLUS ACTIVE SERVICE AS A MIDSHIPMAN TOTALING 3 YEARS 11 MONTHS AND 17 DAYS, MET THE REQUIREMENTS OF ACTIVE SERVICE IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE RETIRED LIST WITH PAY UNDER REFERENCE (H) AND (I) IF HE HAD NOT BEEN RETIRED PREVIOUSLY, AS STATED HEREIN. AS OF 1 AUGUST 1946, THIS OFFICER HAD OVER 30 YEARS' SERVICE CREDITABLE FOR PAY PURPOSES AND IN DETERMINING PERCENTAGE MULTIPLE APPLICABLE UNDER REFERENCE (I). IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE WHETHER THIS OFFICER IS ENTITLED, UNDER REFERENCE (I), ON AND AFTER 1 AUGUST 1946, TO RETIRED PAY COMPUTED AS 75% OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 30 YEARS' SERVICE.

"(B) OFFICER ENTERED THE NAVAL ACADEMY ON 20 JUNE 1906, GRADUATED THEREFROM ON 6 MARCH 1912, ACCEPTED COMMISSION AS ENSIGN ON 7 MARCH 1912 AND RESIGNATION FROM THE REGULAR NAVY WAS ACCEPTED ON 31 MARCH 1926 WHILE HOLDING THE RANK OF LIEUTENANT COMMANDER. THE OFFICER ACCEPTED APPOINTMENT AS LIEUTENANT COMMANDER, USNR, ON 27 JULY 1940, REPORTED FOR ACTIVE DUTY ON 17 OCTOBER 1940, AND WAS SUCCESSIVELY TEMPORARILY APPOINTED AS COMMANDER, CAPTAIN AND COMMODORE PRIOR TO 1 JULY 1946. APPLICATION FOR TRANSFER TO THE RETIRED LIST UNDER THE PROVISIONS OF REFERENCE (H) WAS APPROVED EFFECTIVE 1 DECEMBER 1946, ON WHICH DATE THE OFFICER WAS RELIEVED FROM ACTIVE DUTY. COMMISSIONED SERVICE IN THE REGULAR NAVY FROM 7 MARCH 1912 TO 31 MARCH 1926, AND COMMISSIONED SERVICE (ACTIVE AND INACTIVE) IN THE NAVAL RESERVE, IS CREDITABLE FOR ALL PAY PURPOSES AND FOR DETERMINATION OF PERCENTAGE MULTIPLE APPLICABLE IN COMPUTING RETIRED PAY. ACCORDINGLY, UNDER THE PROVISIONS OF REFERENCE (I), THIS OFFICER IS ENTITLED TO RETIRED PAY COMPUTED AS 50% OF THE PAY PRESCRIBED FOR A COMMODORE WITH OVER 18 YEARS' SERVICE, OR $238.33. IN VIEW OF THE FACT THAT HE SERVED AS A COMMISSIONED OFFICER PRIOR TO 12 NOVEMBER 1918, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE WHETHER THIS OFFICER IS ENTITLED, UNDER REFERENCE (F), TO 75% OF THE PAY PRESCRIBED FOR A COMMODORE WITH OVER 18 YEARS' SERVICE, OR 357.49 PER MONTH.

"(C) OFFICER ENTERED THE NAVAL ACADEMY ON 2 JULY 1909, GRADUATED THEREFROM ON 6 JUNE 1913, AND RESIGNATION FROM THE REGULAR NAVY WAS ACCEPTED ON 15 SEPTEMBER 1923, WHILE HOLDING THE RANK OF LIEUTENANT COMMANDER; THE OFFICER ACCEPTED A COMMISSION AS LIEUTENANT COMMANDER, USNR, ON 14 APRIL 1935, REPORTED FOR ACTIVE DUTY ON 30 OCTOBER 1939, WAS SUCCESSIVELY TEMPORARILY APPOINTED COMMANDER AND CAPTAIN PRIOR TO 1 JULY 1946, WAS RELEASED FROM ACTIVE DUTY ON 15 JULY 1946 AND, EFFECTIVE 1 JANUARY 1947, IS TO BE TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF REFERENCE (H). THIS OFFICER WAS SPECIALLY COMMENDED BY THE SECRETARY OF THE NAVY FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT DURING WORLD WAR I. IT WILL BE NOTED THAT LAST PROVISO CLAUSE OF REFERENCE (A) PROVIDES THAT NAVAL RESERVISTS WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY, BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED SHALL, WHEN PLACED ON THE HONORARY RETIRED LIST, BE ADVANCED TO THE NEXT HIGHER GRADE. NO PROVISION IS MADE FOR INCREASE IN PERCENTAGE MULTIPLE APPLICABLE IN SUCH CASES. UNDER THE PROVISIONS OF REFERENCES (H) AND (I), THIS OFFICER IS ENTITLED TO COUNT ACTIVE COMMISSIONED SERVICE IN THE REGULAR NAVY THE REGULAR NAVY (6-7 13 - 9-15-23) AND ALL COMMISSIONED SERVICE (ACTIVE AND INACTIVE) IN THE NAVAL RESERVE FROM 4-4-35 - 12-31-46 FOR PAY PURPOSES AND IN DETERMINING PERCENTAGE MULTIPLE APPLICABLE. THAT BASIS HE WILL BE ENTITLED TO 55% OF THE PAY PRESCRIBED FOR A CAPTAIN WITH OVER 21 YEARS' SERVICE, OR $272.25 PER MONTH. IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE WHETHER THE CASE OF THIS OFFICER COMES WITHIN THE PURVIEW OF REFERENCE (D) SO AS TO ENTITLE HIM TO 75% OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE, OR $371.25 PER MONTH.

"(D) AN OFFICER OF THE NAVAL RESERVE, WHOSE PERMANENT RANK IS LIEUTENANT, USNR, AND WHO WAS TEMPORARILY APPOINTED A COMMANDER PRIOR TO 1 JULY 1946, WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITH PAY, EFFECTIVE 1 DECEMBER 1946, IN ACCORDANCE WITH REFERENCES (A) AND (B). ACTIVE SERVICE CREDITABLE IN DETERMINING ELIGIBILITY FOR SUCH RETIREMENT, AND SERVICE (ACTIVE AND INACTIVE) CREDITABLE FOR PAY PURPOSES UNDER CURRENT LAWS, IS SET FORTH BELOW:

TABLE OMITTED:

*OFFICER BORN 19 APRIL 1906, SERVICE PRIOR TO 18TH BIRTHDAY CREDITABLE FOR PAY PURPOSES DURING PERIOD SPECIFIED IN PUBLIC LAW 309, APPROVED MARCH 6, 1946. THEREAFTER RIGHT TO COUNT UNDERAGE SERVICE IN THE FLORIDA NATIONAL GUARD FROM 5-11-23 - 4-8-24 LAPSES AND, THEREFORE, SUCH SERVICE HAS BEEN EXCLUDED FROM THE QUESTION ASKED BELOW.

"SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 PROVIDES THAT PERSONS TRANSFERRED TO THE HONORARY RETIREMENT LIST WITH PAY 'SHALL, EXCEPT WHILE ON ACTIVE DUTY, BE ENTITLED TO PAY AT THE RATE OF 50 PER CENTUM OF THEIR ACTIVE-DUTY RATE OF PAY AS PRESCRIBED IN SECTION 7, TITLE I, OF THIS ACT.' UNDER THE AUTHORITY CONTAINED IN PARAGRAPH (A) OF REFERENCE (J), THE SECRETARY OF THE NAVY HAS DETERMINED THAT THE HIGHEST RANK IN WHICH THIS OFFICER SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT IS COMMANDER. THE ONLY AUTHORITY FOR THE COMPUTATION OF RETIRED PAY AT THE RATE APPLICABLE, BUT BASED ON HIGHER TEMPORARY RANK CONFERRED UNDER THE AUTHORITY CONTAINED IN PARAGRAPH (A) OF REFERENCE (J), IS CONTAINED IN PARAGRAPH (B)(1) AND (2) OF THAT REFERENCE. PARAGRAPH (B)(2) REFERS TO PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS AND PERSONNEL OF THE FLEET RESERVE AND FLEET MARINE CORPS, MEMBERS OF WHICH ARE INCLUDED IN THE NAVAL RESERVE CREATED BY THE ACT OF JUNE 25, 1938. THE OFFICER CONCERNED WAS NOT A MEMBER OF THE FLEET RESERVE. NO SPECIFIC PROVISION IS MADE IN REFERENCE (J) FOR OFFICERS OF THE NAVAL RESERVE SUBSEQUENTLY RETIRED UNDER GENERAL LAWS APPLICABLE SOLELY TO MEMBERS OF THE NAVAL RESERVE, EXCLUSIVE OF THE FLEET RESERVE, TO RECEIVE THE BENEFITS OF RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST TEMPORARY RANK WHICH THEY SERVED SATISFACTORILY PRIOR TO 1 JULY 1946. THEREFORE, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO DETERMINE WHETHER THIS OFFICER IS ENTITLED, UNDER SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 TO:

(A) 50% OF THE ACTIVE DUTY PAY OF A LIEUTENANT WITH OVER 18 YEARS' SERVICE ($178.75); OR

(B) 50% OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 18 YEARS' SERVICE ($208.54).

THE ANSWER TO YOUR QUESTION RESPECTING THE OFFICER REFERRED TO IN PARAGRAPH 2(A) OF THE ABOVE-QUOTED LETTER DEPENDS ON WHETHER OR NOT HE MAY BE CONSIDERED ELIGIBLE FOR "RETIREMENT" UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946 (PUBLIC LAW 305), 60 STAT. 27, NOTWITHSTANDING THAT, IN 1941, HE WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 308 AND 309 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1182, 1183, AS AMENDED, 34 U.S.C. 855G, 855H. THE SAID SECTION 6 IS AS FOLLOWS.

"SEC. 6. WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACE UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE."

IN DECISION OF THIS OFFICE DATED SEPTEMBER 20, 1942, 22 COMP.GEN. 281, 284, IT WAS STATED--

"PERSONS RETIRED UNDER THE PROVISIONS OF THE SECTIONS OF THE NAVAL RESERVE ACT OF 1938, HEREINBEFORE REFERRED TO (INCLUDING SECTIONS 308 AND 309) WHETHER TO THE REGULAR NAVY OR THE HONORARY RETIRED LIST ARE NOT OFFICERS OR ENLISTED MEN OF THE NAVAL RESERVE IN AN INACTIVE STATUS. THEIR RETIREMENT SEPARATED THEM FROM THE INACTIVE LIST OF THE NAVAL RESERVE ***. SPECIFICALLY, WHEN NOT ON ACTIVE DUTY THEY ARE ON THE RETIRED LIST NOT ON THE INACTIVE LIST OF THE NAVAL RESERVE. ***"

WHILE IT HAS BEEN HELD (21 COMP.GEN. 121) THAT MEMBERS OF THE HONORARY RETIRED LIST OF THE NAVAL RESERVE ARE MEMBERS OF THE NAVAL RESERVE FOR THE LIMITED PURPOSE OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864 (WHICH AUTHORIZES DISABILITY RETIREMENT PAY AND OTHER BENEFITS FOR RESERVISTS WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY WHILE ON ACTIVE DUTY), IT WILL BE NOTED THAT THE SAID SECTION 4 SPECIFICALLY PROVIDES THAT A PERSON WHO MAY BECOME ELIGIBLE FOR ITS BENEFITS WHILE ENTITLED TO RETIRED PAY AS A MEMBER OF THE HONORARY RETIRED LIST OF THE NAVAL RESERVE SHALL ELECT WHICH ONE OF SUCH BENEFITS HE SHALL RECEIVE AND THAT THE OTHER DECISIONS OF THIS OFFICE, INVOLVING OFFICERS OF THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, CONSISTENTLY HAVE RECOGNIZED THAT THE STATUTES GOVERNING THE GENERAL STATUS OF SUCH OFFICERS REQUIRE THAT A DISTINCTION BE MADE BETWEEN THEM AND OFFICERS OF THE NAVAL RESERVE GENERALLY AND THAT OFFICERS ON THE HONORARY RETIRED LIST BE CONSIDERED AS RETIRED OFFICERS. SEE 19 COMP.GEN. 205; 21 ID. 737; 22 ID 281; B-24856, MAY 19, 1942; ID. AUGUST 20, 1942. OF. 25 COMP.GEN. 737; 26 ID. 152; B-34041, NOVEMBER 10, 1943. IN LINE WITH SUCH DECISIONS, IT IS CONCLUDED THAT AN OFFICER ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE IS A RETIRED RESERVE OFFICER AND THAT, AS SUCH, HE MAY NOT BE CONSIDERED AN OFFICER OF THE NAVAL RESERVE ELIGIBLE FOR RETIREMENT UNDER SECTION 6, SUPRA UNLESS IT MAY BE HELD THAT PRIOR RETIREMENT, UNDER ANY PROVISION OF LAW, DOES NOT DISQUALIFY ANY PERSON, OTHERWISE WITHIN THE PROVISIONS OF SECTION 6, FROM "RETIRING" IN ACCORDANCE WITH SUCH PROVISIONS. WHILE IT IS TRUE THAT THE SAID SECTION 6 CONTAINS NO SPECIFIC LANGUAGE LIMITING ITS PROVISIONS TO OFFICERS NOT PREVIOUSLY RETIRED UNDER SOME OTHER PROVISION OF LAW, IT WOULD SEEN THAT SUCH A LIMITATION IS INHERENT WITH RESPECT TO ANY SUCH STATUTORY PROVISION WHICH CLEARLY AUTHORIZES THE RETIREMENT OF PERSONS NOT ALREADY RETIRED BUT WHICH DOES NOT EXPRESSLY OR BY NECESSARY IMPLICATION AUTHORIZE THE "RETIREMENT" OF PERSONS ALREADY IN A STATUS OF RETIREMENT. MOREOVER, THE PROVISIONS OF SECTION 6 AND OTHER SECTIONS OF THE ACT OF FEBRUARY 21, 1946, AS WELL AS THE PRIMARY PURPOSE OF THE ACT, SEEM TO PRECLUDE THE VIEW THAT SECTION 6 AUTHORIZES THE "RETIREMENT" OF PERSONS ALREADY IN RETIREMENT. FOR, EXAMPLE, SECTIONS 6 AND 7 OF THE ACT SPEAK OF PERSONS BEING "PLACED UPON THE RETIRED LIST" AND SECTION 8 (AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605) CONTAINS SPECIFIC AND DETAILED PROVISIONS RELATING TO PERSONNEL OF THE RETIRED LIST (AND PERSONNEL OF THE RESERVE COMPONENTS) "RETURNED TO AN INACTIVE STATUS."

FOR SUCH REASONS, THE QUESTION PRESENTED IN PARAGRAPH 2(A) OF THE ABOVE- QUOTED LETTER IS ANSWERED IN THE NEGATIVE.

PARAGRAPH 2(B) OF THE ABOVE-QUOTED LETTER SETS FORTH THE CASE OF AN OFFICER WHO WAS RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, AND WHO IS ENTITLED TO RETIRED PAY BASED ON THE PAY OF THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY, BY REASON OF SECTION 7 OF THE SAID ACT WHICH PROVIDES AS FOLLOWS:

"SEC. 7. (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 THIS 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 PER CENTUM 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 PER CENTUM 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 PER CENTUM 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 PER CENTUM 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 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."

SUCH CASE INVOLVES THE QUESTION WHETHER, AS AN OFFICER OF THE NAVAL RESERVE (AND NOT AN OFFICER OF THE REGULAR NAVY), THE SUBJECT OFFICER IS AN "OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, OR WHETHER HE OTHERWISE COMES WITHIN THE SCOPE OF SUCH PARAGRAPH WHICH IS 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 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT."

THE PAY READJUSTMENT ACT OF 1942 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." SOME PROVISIONS OF THE ACT REFER ONLY TO PERSONNEL "OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT" AND, HENCE, BY THEIR TERMS, ARE APPLICABLE TO MEMBERS OF RESERVE COMPONENTS, ONLY. SEE PROVISIONS IN SECTIONS 3, 14 AND 15 OF THE ACT. OTHER PROVISIONS OF THE ACT EXPRESSLY ARE MADE APPLICABLE TO PERSONNEL "OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF" OR TO PERSONNEL "OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT AND MEMBERS OF THE RESERVE FORCES OF SUCH SERVICES." SEE SECTIONS 12, 18 AND 19. THUS IT IS INDICATED THAT RESERVE COMPONENTS MAY NOT BE CONSIDERED AS BEING INCLUDED IN THE TERM "ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" AND THE SERVICES CONTEMPLATED BY SUCH TITLE AND BY THE FOURTH PARAGRAPH OF SECTION 15, SUPRA, ARE THE REGULAR SERVICES, I.E., THE REGULAR ARMY, THE REGULAR NAVY, ETC. MOREOVER, THE LEGISLATIVE HISTORY OF THE SAID FOURTH PARAGRAPH OF SECTION 15 (SEE DISCUSSION OF SUCH LEGISLATIVE HISTORY IN 25 COMP.GEN. 274) SUPPORTS THE VIEW THAT OFFICERS OF THE REGULAR SERVICES ONLY COME WITHIN THE LANGUAGE AND THE INTENT OF THE SAID PARAGRAPH AND THIS OFFICE IS NOT AWARE OF ANY OTHER PROVISION OF LAW WHICH MAKES THE PROVISIONS OF THE SAID PARAGRAPH APPLICABLE TO OFFICERS OF THE NAVAL RESERVE. ACCORDINGLY, THE CONCLUSION IS REQUIRED THAT THE PROVISIONS OF THE SAID FOURTH PARAGRAPH DO NOT APPLY TO OFFICERS RETIRING OR RETIRED FROM THE NAVAL RESERVE. HOWEVER, IT IS APPROPRIATE TO ADD THAT EVEN IF SUCH CONCLUSION WERE OTHERWISE, THIS OFFICE STILL WOULD BE REQUIRED TO OBJECT TO THE USE OF THE RATE SPECIFIED IN THE SAID FOURTH PARAGRAPH OF SECTION 15 IN COMPUTING THE RETIRED PAY OF THE SUBJECT OFFICER ON THE PAY OF HIS TEMPORARY GRADE SINCE IT HAS BEEN HELD THAT THE RETIRED PAY OF OFFICERS RETIRED UNDER THE FIRST SIX SECTIONS OF THE ACT OF FEBRUARY 21, 1946, SUPRA IS LIMITED TO THAT COMPUTED AT THE RATE PRESCRIBED IN SECTION 7 (A) OF THE SAID ACT UNLESS THE OFFICER IS ENTITLED TO A HIGHER RETIRED PAY UNDER OTHER PROVISIONS OF LAW UNAIDED BY THE SAID SECTION 7. SEE DECISION OF FEBRUARY 28, 1947, TO YOU B-60908, WHEREIN IT WAS STATED:

"*** THE LANGUAGE EMPLOYED IN SECTION 7(A) OF THE ACT IS SPECIFIC IN PROVIDING THAT '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' WITH THE RETIRED PAY 'AT THE RATE OF 2 1/2 PER CENTUM 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 PER CENTUM 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 PER CENTUM OF THE ACTIVE DUTY PAY OF THEIR HIGHEST TEMPORARY GRADE OR RANK, FOR EACH YEAR PROVIDED, THERE APPEARS TO BE NO LEGAL BASIS OR NECESSITY FOR ADVERTING TO PROVISIONS OTHER THAN THE SAVINGS CLAUSES CONTAINED IN SAID SECTIONS 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 PRECIS MEANING AND PURPOSED 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)."

THE QUESTION PRESENTED IN PARAGRAPH 2(B) OF THE ABOVE-QUOTED LETTER IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO PARAGRAPH 2(C) OF THE ABOVE-QUOTED LETTER, IT WILL BE NOTED THAT THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, 34 U.S.C. 399F, DOES NOT PRESCRIBE ANY RATE FOR THE COMPUTATION OF RETIRED PAY AND DOES NOT RELATE TO VOLUNTARY RETIREMENTS BASED ON LENGTH OF SERVICE. HENCE, SUCH ACT, BY ITS TERMS, HAS NO APPLICABILITY TO THE CASE OF THE OFFICER REFERRED TO IN THE SAID PARAGRAPH 2(C). NO ASSUMPTION WILL BE MADE HEREIN AS TO THE QUESTION INTENDED TO HAVE BEEN PRESENTED IN THE SAID PARAGRAPH SINCE THE ANSWER TO SUCH INTENDED QUESTION MAY BE APPARENT FROM WHAT HAS BEEN SAID HEREINABOVE AND FROM WHAT WAS SAID IN THE DECISION OF FEBRUARY 28, 1947, SUPRA.

THE QUESTION PRESENTED IN PARAGRAPH 2(D) OF THE ABOVE-QUOTED LETTER INVOLVES THE CONSTRUCTION AND APPLICATION OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, SUPRA (AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605), WHICH PROVIDES AS FOLLOWS:

"SEC. 8. (A) 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 NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR A NATIONAL EMERGENCY OR, IN 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 OF 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.' "(B) NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS ALTERING OR AMENDING ANY PROVISION OF SECTION 7 OF THE ACT APPROVED JUNE 30, 1942 (56 STAT. 465)."

IT WILL BE NOTED THAT SUBSECTION (A) OF THE ABOVE-QUOTED SECTION 10, AS AMENDED, SPECIFICALLY PROVIDES, INTER ALIA, THAT PERSONNEL "OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE," WHO RECEIVED TEMPORARY APPOINTMENTS OR ADVANCEMENTS "UNDER THE AUTHORITY OF THIS ACT" WHILE ON ACTIVE DUTY, "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." THE SAID SUBSECTION (A) MAKES NO PROVISION RESPECTING THE PAY OF SUCH PERSONNEL, MATTERS OF PAY HAVING BEEN DEALT WITH SPECIFICALLY IN SUBSECTIONS (B)(1) AND (B)(2). UNDER THE PROVISIONS OF SUBSECTION (B)(A), PERSONNEL OF THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) ARE ENTITLED TO RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK. THE OFFICER REFERRED TO IN PARAGRAPH 2(D) OF THE ABOVE-QUOTED LETTER WAS AN OFFICER OF THE NAVAL RESERVE WHO HAD NOT BEEN RETIRED AT THE TIME HE WAS "APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT" AND, THEREFORE, HIS CASE DOES NOT COME WITHIN THE SCOPE OF SUBSECTION (B)(1). AS POINTED OUT IN THE ABOVE-QUOTED LETTER, SUBSECTION (B)(2), SUPRA, WHILE MAKING PROVISION RESPECTING THE RETIRED PAY OF "PERSONNEL OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT" AND "SUBSEQUENTLY RETIRED," MAKES NO REFERENCE TO RESERVE PERSONNEL OTHER THAN SUCH FLEET RESERVISTS, AND, ACCORDINGLY, BY ITS OWN TERMS, HAS NO APPLICATION TO THE CASE OF AN OFFICER OF THE NAVAL RESERVE, NOT A MEMBER OF THE FLEET RESERVE, WHO WAS "APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT" AND "SUBSEQUENTLY RETIRED." HENCE, THE CONCLUSION IS REQUIRED THAT THE OFFICER REFERRED TO IN PARAGRAPH 2(D) OF THE ABOVE-QUOTED LETTER IS NOT ENTITLED TO RETIRED PAY BASED UPON THE PAY OF THE HIGHEST TEMPORARY GRADE TO WHICH HE WAS "APPOINTED OR ADVANCED," THERE BEING NO STATUTORY AUTHORITY FOR COMPUTING HIS RETIREMENT PAY ON THE PAY OF SUCH GRADE OR ANY TEMPORARY GRADE HE MAY HAVE HELD. YOUR FINAL QUESTION IS ANSWERED ACCORDINGLY.