B-64902, JUNE 6, 1947, 26 COMP. GEN. 917

B-64902: Jun 6, 1947

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WERE TEMPORARILY PROMOTED UNDER AUTHORITY OF SECTION 1 (1) OF THE ACT OF DECEMBER 3. ARE NOT ENTITLED TO BE RETIRED. AS IS PROVIDED FOR TEMPORARILY PROMOTED NAVAL PERSONNEL BY SECTION 8 OF THE ACT OF FEBRUARY 21. THE DECISION FURTHER STATED THAT THE EXECUTIVE AND LEGISLATIVE POLICY IN THIS REGARD IS SET FORTH. ARE NOW ENTITLED TO THE BENEFITS OF THE LAWS WHICH APPLY TO THE ARMED FORCES.'. DURING THE RECENT WAR A NUMBER OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WERE TRANSFERRED BY EXECUTIVE ORDER TO THE ARMY AND NAVY PURSUANT TO SECTION 16 OF THE ACT OF MAY 22. YOUR DECISION IS REQUESTED AS TO WHETHER COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO WERE TEMPORARILY ADVANCED IN RANK WHILE ACTUALLY SERVING UNDER MILITARY OR NAVAL COMMAND MAY BE CONSIDERED AS A GROUP TO WHICH SECTION 8 OF THE ACT OF FEBRUARY 21.

B-64902, JUNE 6, 1947, 26 COMP. GEN. 917

RETIRED PAY - COAST AND GEODETIC SURVEY OFFICERS TEMPORARILY PROMOTED WHILE IN SERVICE OF WAR OR NAVY DEPARTMENTS COAST AND GEODETIC SURVEY OFFICERS WHO, WHILE IN THE SERVICE OF THE WAR OR NAVY DEPARTMENTS UNDER SECTION 16 OF THE ACT OF MAY 22, 1917, WERE TEMPORARILY PROMOTED UNDER AUTHORITY OF SECTION 1 (1) OF THE ACT OF DECEMBER 3, 1942, IN LIKE MANNER AS NAVAL PERSONNEL UNDER THE ACT OF JULY 24, 1941, ARE NOT ENTITLED TO BE RETIRED, OTHER THAN FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, WITH RETIRED PAY BASED ON TEMPORARY GRADES, AS IS PROVIDED FOR TEMPORARILY PROMOTED NAVAL PERSONNEL BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, AMENDING SECTION 10 OF THE 1941 ACT, AS AMENDED. COMPARE 26 COMP. GEN. 176.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF COMMERCE, JUNE 6, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 25, 1947, AS FOLLOWS:

THE ASSISTANT COMPTROLLER GENERAL, IN HIS DECISION OF SEPTEMBER 10, 1946 (B-57649), HELD THAT THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305-79TH CONGRESS) EXTENDING CERTAIN RETIREMENT BENEFITS TO NAVAL AND MARINE CORPS PERSONNEL DO NOT APPLY, GENERALLY, TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. THE DECISION FURTHER STATED THAT THE EXECUTIVE AND LEGISLATIVE POLICY IN THIS REGARD IS SET FORTH, TO SOME EXTENT, IN THE PRESIDENT'S STATEMENT, WHICH CONTAINS THE FOLLOWING WORDING:

"AND IT SHOULD BE REMEMBERED THAT, UNDER EXISTING LAW, OFFICERS OF THE COAST AND GEODETIC SURVEY, ACTUALLY SERVING UNDER MILITARY OR NAVAL COMMAND, ARE NOW ENTITLED TO THE BENEFITS OF THE LAWS WHICH APPLY TO THE ARMED FORCES.'

DURING THE RECENT WAR A NUMBER OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WERE TRANSFERRED BY EXECUTIVE ORDER TO THE ARMY AND NAVY PURSUANT TO SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87). SEVERAL OF THE OFFICERS SO TRANSFERRED RECEIVED TEMPORARY PROMOTIONS ON RECOMMENDATION OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY IN ACCORDANCE WITH SECTION 1 (1) OF THE ACT OF DECEMBER 3, 1942 (56 STAT. 1038).

YOUR DECISION IS REQUESTED AS TO WHETHER COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO WERE TEMPORARILY ADVANCED IN RANK WHILE ACTUALLY SERVING UNDER MILITARY OR NAVAL COMMAND MAY BE CONSIDERED AS A GROUP TO WHICH SECTION 8 OF THE ACT OF FEBRUARY 21, 1946 HAS APPLICATION.

SECTION 2 OF THE AFOREMENTIONED ACT OF DECEMBER 3, 1942, PROVIDES THAT COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ASSIGNED TO DUTY IN CERTAIN AREAS OF MILITARY HAZARD SHALL BE ENTITLED TO THE RIGHTS AND BENEFITS PROVIDED BY LAW FOR OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE ACTUALLY TRANSFERRED TO THE SERVICE OF THE WAR DEPARTMENT OR THE NAVY DEPARTMENT.

IF YOUR DECISION TO THE FOREGOING QUESTION IS IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO MEET THE CONDITIONS SET FORTH IN SECTION 2 OF THE ACT OF DECEMBER 3, 1942, MAY BE CONSIDERED AS ENTITLED TO THE PROVISIONS OF SECTION 8 OF THE AFOREMENTIONED ACT OF FEBRUARY 21, 1946.

SECTION 16 OF THE ACT OF MAY 22, 1917, 40 STAT. 87, 33 U.S.C. 855 TO 857, REFERRED TO IN YOUR LETTER, PROVIDES, IN PART, AS FOLLOWS:

SEC. 16. THAT THE PRESIDENT IS HEREBY AUTHORIZED, WHENEVER IN HIS JUDGMENT A SUFFICIENT NATIONAL EMERGENCY EXISTS, TO TRANSFER TO THE SERVICE AND JURISDICTION OF THE WAR DEPARTMENT, OR OF THE NAVY DEPARTMENT, SUCH VESSELS, EQUIPMENT, STATIONS, AND PERSONNEL OF THE COAST AND GEODETIC SURVEY AS HE MAY DEEM TO THE BEST INTEREST OF THE COUNTRY, AND AFTER SUCH TRANSFER ALL EXPENSES CONNECTED THEREWITH SHALL BE DEFRAYED OUT OF THE APPROPRIATIONS FOR THE DEPARTMENT TO WHICH TRANSFER IS MADE: PROVIDED, THAT SUCH VESSELS, EQUIPMENT, STATIONS, AND PERSONNEL SHALL BE RETURNED TO THE COAST AND GEODETIC SURVEY WHEN SUCH NATIONAL EMERGENCY CEASES, IN THE OPINION OF THE PRESIDENT, AND NOTHING IN THIS ACT SHALL BE CONSTRUED AS TRANSFERRING THE COAST AND GEODETIC SURVEY OR ANY OF ITS FUNCTIONS FROM THE DEPARTMENT OF COMMERCE EXCEPT IN TIME OF NATIONAL EMERGENCY AND TO THE EXTENT HEREIN PROVIDED: PROVIDED FURTHER, THAT ANY OF THE PERSONNEL OF THE COAST AND GEODETIC SURVEY WHO MAY BE TRANSFERRED AS HEREIN PROVIDED SHALL, WHILE UNDER THE JURISDICTION OF THE WAR DEPARTMENT OR NAVY DEPARTMENT, HAVE PROPER MILITARY STATUS AND SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE ARMY OR NAVY, AS THE CASE MAY BE, IN SO FAR AS THE SAME MAY BE APPLICABLE TO PERSONS WHOSE RETENTION PERMANENTLY IN THE MILITARY SERVICE OF THE UNITED STATES IS NOT CONTEMPLATED BY LAW * * *.

AND NOTHING IN THIS ACT SHALL BE CONSTRUED TO AFFECT OR ALTER THEIR RATES OF PAY AND ALLOWANCES WHEN NOT ASSIGNED TO MILITARY DUTY AS HEREINBEFORE MENTIONED. ( ITALICS SUPPLIED.) SECTIONS 1 AND 2 OF THE ACT OF DECEMBER 3, 1942, 56 STAT. 1038, 33 U.S.C. 854A-1, 855A, PROVIDE AS FOLLOWS:

THAT PERSONNEL OF THE COAST AND GEODETIC SURVEY SHALL BE SUBJECT IN LIKE MANNER AND TO THE SAME EXTENT AND WITH THE SAME RELATIVE CONDITIONS AS ARE PROVIDED FOR PERSONNEL OF THE NAVY TO THE ACT ENTITLED "AN ACT AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS, AND FOR OTHER PURPOSES," APPROVED JULY 24, 1941 ( PUBLIC NUMBERED 188, SEVENTY SEVENTH CONGRESS), EXCEPT THAT TEMPORARY APPOINTMENTS AND PROMOTIONS SHALL BE LIMITED AS FOLLOWS:

(1) COMMISSIONED OFFICERS IN THE SERVICE OF THE WAR DEPARTMENT OR OF THE NAVY DEPARTMENT, UNDER THE PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87), MAY, UPON RECOMMENDATION, RESPECTIVELY, OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, BE TEMPORARILY PROMOTED TO HIGHER RANKS OR GRADES.

(2) COMMISSIONED OFFICERS IN THE SERVICE OF THE COAST AND GEODETIC SURVEY MAY BE TEMPORARILY PROMOTED TO FILL VACANCIES IN RANKS AND GRADES CAUSED BY THE TRANSFER OF COMMISSIONED OFFICERS TO THE SERVICE AND JURISDICTION OF THE WAR OR NAVY DEPARTMENTS UNDER THE PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87).

(3) REGULARLY APPOINTED DECK OFFICERS AND JUNIOR ENGINEERS MAY BE TEMPORARILY APPOINTED TO THE RANK AND GRADE OF ENSIGN: PROVIDED, THAT THE NUMBER OF DECK OFFICERS AND JUNIOR ENGINEERS HOLDING SUCH TEMPORARY APPOINTMENTS SHALL NOT EXCEED THE NUMBER OF OFFICERS TRANSFERRED TO THE WAR AND NAVY DEPARTMENTS UNDER PROVISIONS OF SECTION 16 OF THE ACT OF MAY 22, 1917 (40 STAT. 87).

SEC. 2. COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE ASSIGNED, DURING THE PERIOD OF THE PRESENT WAR, TO DUTY ON PROJECTS FOR THE WAR DEPARTMENT OR THE NAVY DEPARTMENT IN AREAS OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, OR IN COASTAL AREAS OF THE UNITED STATES, DETERMINED BY THE WAR OR NAVY DEPARTMENT TO BE OF IMMEDIATE MILITARY HAZARD, SHALL, WHILE ON SUCH DUTY, BE ENTITLED TO THE RIGHTS AND BENEFITS PROVIDED BY LAW FOR OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE ACTUALLY TRANSFERRED TO THE SERVICE OF THE WAR DEPARTMENT OR THE NAVY DEPARTMENT: PROVIDED, THAT THE BENEFITS OF THIS SECTION SHALL BE APPLICABLE ALSO TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY SERVING IN THE PHILIPPINE ISLANDS ON DECEMBER 7, 1941.

IN DECISION OF SEPTEMBER 10, 1946, B-57649, 26 COMP. GEN. 176, REFERRED TO IN YOUR LETTER, IT WAS CONCLUDED THAT THE PROVISION IN THE ACT OF DECEMBER 3, 1942, SUPRA, AUTHORIZING CERTAIN TEMPORARY WARTIME APPOINTMENTS TO HIGHER GRADES FOR OFFICERS OF THE COAST AND GEODETIC SURVEY IN LIKE MANNER AS PROVIDED FOR OFFICERS OF THE NAVY BY THE ACT OF JULY 24, 1941, 55 STAT. 603, MAY NOT BE VIEWED AS EXTENDING TO THE QUASI MILITARY PERSONNEL OF THE COAST AND GEODETIC SURVEY THE RIGHT TO BE RETIRED WITH RETIRED PAY OF THE HIGHEST TEMPORARY GRADE THEY HELD UNDER THE ACT OF DECEMBER 3, 1942, AS IT AUTHORIZED FOR NAVAL PERSONNEL BY THE RETIREMENT PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28. THE QUESTION NOW PRESENTED IS WHETHER A DIFFERENT CONCLUSION MIGHT BE REACHED WITH RESPECT TO COAST AND GEODETIC SURVEY OFFICERS WHO WERE TRANSFERRED TO THE SERVICE AND JURISDICTION OF THE WAR DEPARTMENT OR NAVY DEPARTMENT DURING THE WAR PURSUANT TO SECTION 16 OF THE ACT OF MAY 22, 1917, SUPRA, IN VIEW OF THE STATEMENT (QUOTED IN THE DECISION OF SEPTEMBER 10, 1946) IN THE PRESIDENT'S VETO MESSAGE OF AUGUST 13, 1942, ON H.R. 6818--- WHICH AS REENACTED BECAME THE SAID ACT OF DECEMBER 3, 1942--- TO THE EFFECT THAT UNDER EXISTING LAW COAST AND GEODETIC SURVEY OFFICERS ACTUALLY SERVING UNDER MILITARY OR NAVAL COMMAND ARE NOW ENTITLED TO THE BENEFITS OF LAWS WHICH APPLY TO THE ARMED FORCES. SUCH STATEMENT IN THE PRESIDENT'S VETO MESSAGE APPARENTLY WAS BASED ON THE PROVISION IN SECTION 16 OF THE ACT OF MAY 22, 1917, SUPRA, THAT COAST AND GEODETIC SURVEY OFFICERS SO TRANSFERRED TO THE WAR OR NAVY DEPARTMENT SHALL HAVE PROPER MILITARY STATUS WHILE UNDER THE JURISDICTION OF THE WAR DEPARTMENT OR NAVY DEPARTMENT AND SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE ARMY OR NAVY, AS THE CASE MAY BE.

WHILE IT HAS BEEN RECOGNIZED IN DECISIONS OF THE ACCOUNTING OFFICERS THAT COAST AND GEODETIC SURVEY OFFICERS SO TRANSFERRED ARE ENTITLED, WHILE ASSIGNED TO MILITARY DUTY WITH THE ARMY OR NAVY, TO RECEIVE PAY AND ALLOWANCES NOT LESS THAN THOSE RECEIVED BY OFFICERS OF THOSE SERVICES OF RELATIVE RANK, SERVING UNDER LIKE CONDITIONS, IT NEVER HAS BEEN CONSIDERED THAT THE SAID PROVISO IN SECTION 16 EXTENDS TO COAST AND GEODETIC SURVEY OFFICERS TRANSFERRED TO THE JURISDICTION OF THE WAR OR NAVY DEPARTMENT THE BENEFITS OF LAWS RELATING TO RETIREMENT OF OFFICERS OF THE ARMY OR NAVY. THE SAID ACT OF MAY 22, 1917, IS ENTITLED," AN ACT TO TEMPORARILY INCREASE THE COMMISSIONED AND WARRANT AND ENLISTED STRENGTH OF THE NAVY AND MARINE CORPS, AND FOR OTHER PURPOSES.' THE PROVISO IN SECTION 16 OF THE SAID ACT, SUBJECTING COAST AND GEODETIC SURVEY OFFICERS TRANSFERRED TO THE WAR OR NAVY DEPARTMENT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE ARMY OR NAVY, AS THE CASE MAY BE, IS SPECIFICALLY APPLICABLE TO SUCH OFFICERS ONLY "IN SO FAR AS THE SAME MAY BE APPLICABLE TO PERSONS WHOSE RETENTION PERMANENTLY IN THE MILITARY SERVICE OF THE UNITED STATES IS NOT CONTEMPLATED BY LAW.' EXCEPT FOR PHYSICAL DISABILITY, THE STATUTES DO NOT PROVIDE FOR RETIREMENT OF PERSONS TEMPORARILY IN THE MILITARY SERVICE. SECTION 9 OF THE SAME ACT, 40 STAT. 86, WITH RESPECT TO NAVAL OFFICERS TEMPORARILY APPOINTED THEREUNDER, EXPRESSLY PROVIDES THAT ANY PERSON ORIGINALLY APPOINTED TEMPORARILY, AS PROVIDED IN THIS ACT, SHALL NOT BE ENTITLED TO ANY RIGHTS OF RETIREMENT, EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.' THUS, SECTION 9 OF THE 1917 ACT EXPRESSLY DENIED NAVAL OFFICERS TEMPORARILY APPOINTED UNDER THE ACT "ANY RIGHTS OF RETIREMENT," EXCEPT FOR PHYSICAL DISABILITY, AND SUCH EXCEPTION IS IN CONSONANCE WITH THE EXPRESS PROVISION IN SECTION 16 OF THE ACT GIVING MEMBERS OF THE COAST AND GEODETIC SURVEY TEMPORARILY TRANSFERRED TO THE WAR OR NAVY DEPARTMENT THE BENEFIT OF ALL PROVISIONS OF LAW RELATING TO DISABILITY INCURRED IN LINE OF DUTY. IT SEEMS CLEAR, THEREFORE, THAT, EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, THE SAID SECTION 16 DID NOT INTEND OR CONTEMPLATE, THAT COAST AND GEODETIC SURVEY OFFICERS TEMPORARILY TRANSFERRED TO THE WAR OR NAVY DEPARTMENTS SHOULD HAVE THE BENEFIT OF RETIREMENT STATUTES OTHERWISE APPLICABLE TO THE MILITARY OR NAVAL PERSONNEL WITH WHOM THEY TEMPORARILY SERVED.

THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, IS ENTITLED," AN ACT TO AUTHORIZE THE PRESIDENT TO RETIRE CERTAIN OFFICERS AND ENLISTED MEN OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND FOR OTHER PURPOSES.' SECTION 8 THEREOF, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED--- THE SECTION PRIMARILY INVOLVED HERE--- PROVIDES INTER ALIA, THAT PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS, AND CERTAIN RESERVE COMPONENTS THEREOF, APPOINTED OR ADVANCED UNDER THAT ACT SHALL, WHEN SUBSEQUENTLY RETIRED, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH THEY SERVICED 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. SIMILAR PROVISIONS ARE MADE FOR PERSONNEL ON THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER TEMPORARY RANK. SINCE SUCH PROVISIONS IN SECTION 8 OF THE 1946 ACT, AS WELL AS OTHER PROVISIONS OF THAT ACT, ARE PROVISIONS OF LAW GRANTING ADDITIONAL RETIREMENT RIGHTS TO CERTAIN NAVAL PERSONNEL FOR REASONS OTHER THAN PHYSICAL DISABILITY AND SINCE SECTION 16 OF THE ACT OF MAY 22, 1917, MAY NOT BE VIEWED AS GRANTING COAST AND GEODETIC SURVEY OFFICERS TEMPORARILY TRANSFERRED TO THE JURISDICTION OF THE WAR OR NAVY DEPARTMENT ANY RIGHTS OF RETIREMENT--- EXCEPT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY--- THERE IS PERCEIVED NO LEGAL BASIS UPON WHICH IT NOW MAY BE CONCLUDED THAT COAST AND GEODETIC SURVEY OFFICERS SO TRANSFERRED ARE ENTITLED, BY VIRTUE OF THE PROVISIONS OF THE SAID SECTION 16, TO HAVE THEIR RETIRED PAY BASED UPON THE HIGHEST TEMPORARY RANK SUCH OFFICERS HELD DURING THEIR SERVICE WITH THE WAR OR NAVY DEPARTMENT, AS PROVIDED UNDER SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, FOR CERTAIN NAVAL PERSONNEL. THAT IS, THERE APPEARS TO BE NOTHING IN SECTION 16 OF THE 1917 ACT TO WARRANT A CONCLUSION RESPECTING THE RETIREMENT RIGHTS UNDER SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, OF COAST AND GEODETIC SURVEY OFFICERS TEMPORARILY TRANSFERRED TO HE WAR OR NAVY DEPARTMENT DIFFERENT FROM THAT REACHED IN THE DECISION OF SEPTEMBER 10, 1946, SUPRA, RESPECTING COAST AND GEODETIC SURVEY OFFICERS GENERALLY. ACCORDINGLY, THE TWO QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED IN THE NEGATIVE.