B-65157, APRIL 24, 1947, 26 COMP. GEN. 818

B-65157: Apr 24, 1947

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WHICH IS TEMPORARY LEGISLATION PERMITTING BOARDS OF OFFICERS TO CONSIDER AND RECOMMEND CERTAIN OFFICERS OF THE REGULAR NAVY AND MARINE CORPS FOR INVOLUNTARY RETIREMENT. 1947: I HAVE YOUR LETTER OF APRIL 3. THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONVENE BOARDS OF OFFICERS OF THE REGULAR NAVY AND MARINE CORPS TO CONSIDER AND RECOMMEND FOR RETIREMENT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS SERVING IN THE RANKS OF CAPTAIN AND BELOW IN THE NAVY. ARE THE FOLLOWING: (A) CHIEF WARRANT AND WARRANT OFFICERS WHO HAVE BEEN TEMPORARILY PROMOTED UNDER THE AUTHORITY OF THE ACT APPROVED JULY 24. TO HIGHER RANK AND WHO ARE PRESENTLY SERVING IN SUCH HIGHER RANK. THE TREASURY DEPARTMENT IS OF THE OPINION THAT PERSONNEL REFERRED TO IN (A) AND (B) OF THIS PARAGRAPH FALL WITHIN THE TERM "OFFICERS" AS USED IN SECTION 3 OF THE ACT OF FEBRUARY 21.

B-65157, APRIL 24, 1947, 26 COMP. GEN. 818

RETIREMENT - INVOLUNTARY - MILITARY, NAVAL, ETC., PERSONNEL - TEMPORARY, ACTING, ETC., WARRANT OFFICERS OF COAST GUARD SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, WHICH IS TEMPORARY LEGISLATION PERMITTING BOARDS OF OFFICERS TO CONSIDER AND RECOMMEND CERTAIN OFFICERS OF THE REGULAR NAVY AND MARINE CORPS FOR INVOLUNTARY RETIREMENT, HAS REFERENCE TO PERMANENT OFFICERS AND NOT TO TEMPORARY OFFICERS OF THE REGULAR NAVY AND MARINE CORPS SAID, BY VIRTUE OF THE ASSIMILATION PROVISIONS OF SECTION 10 OF SAID ACT, ONLY TO PERMANENT OFFICERS OF THE REGULAR COAST GUARD. WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS OF THE COAST GUARD, WHETHER SERVING UNDER TEMPORARY, ACTING, OR PERMANENT APPOINTMENTS, MAY NOT BE REGARDED AS "OFFICERS" WITHIN THE MEANING OF SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, AS EXTENDED TO THE COAST GUARD BY THE ASSIMILATION PROVISIONS OF SECTION 10 THEREOF, PERMITTING BOARDS OF OFFICERS TO CONSIDER AND RECOMMEND CERTAIN OFFICERS OF THE REGULAR NAVY AND MARINE CORPS FOR INVOLUNTARY RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, APRIL 24, 1947:

I HAVE YOUR LETTER OF APRIL 3, 1947, AS FOLLOWS:

THE TREASURY DEPARTMENT HAS FOR CONSIDERATION PROBLEMS INVOLVING THE INVOLUNTARY RETIREMENT OF U.S. COAST GUARD PERSONNEL UNDER THE PROVISIONS OF SECTION 3 OF THE ACT APPROVED FEBRUARY 21, 1946 ( PUBLIC LAW 305, 79TH CONG., 2D SESS.) WHICH PROVIDES:

"SEC. 3. THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONVENE BOARDS OF OFFICERS OF THE REGULAR NAVY AND MARINE CORPS TO CONSIDER AND RECOMMEND FOR RETIREMENT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS SERVING IN THE RANKS OF CAPTAIN AND BELOW IN THE NAVY, AND COLONEL AND BELOW IN THE MARINE CORPS, WITHIN SUCH CATEGORIES OR GROUPS OF SUCH OFFICERS AS SHALL BE SPECIFIED IN THE PRECEPTS CONVENING SUCH BOARDS. THE MEMBERS OF SUCH BOARDS SHALL BE SENIOR IN PERMANENT RANK TO THE PERMANENT RANK OF ANY OFFICER UNDER CONSIDERATION.' ( ITALICS SUPPLIED.)

SECTION 10 OF THE ABOVE-MENTIONED ACT MAKES THE ABOVE-QUOTED SECTION APPLICABLE TO THE COAST GUARD.

UNDER CONSIDERATION FOR INVOLUNTARY RETIREMENT, IN ADDITION TO REGULAR COMMISSIONED OFFICER PERSONNEL, ARE THE FOLLOWING:

(A) CHIEF WARRANT AND WARRANT OFFICERS WHO HAVE BEEN TEMPORARILY PROMOTED UNDER THE AUTHORITY OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 603, AS AMENDED), TO HIGHER RANK AND WHO ARE PRESENTLY SERVING IN SUCH HIGHER RANK;

(B) CHIEF WARRANT AND WARRANT OFFICERS PRESENTLY SERVING IN SUCH RANKS;

(C) WARRANT OFFICERS, ACTING APPOINTMENT, PRESENTLY SERVING UNDER SUCH APPOINTMENT OR HIGHER TEMPORARY APPOINTMENT; AND

(D) PERMANENT ENLISTED MEN NOW SERVING IN TEMPORARY WARRANT, CHIEF WARRANT, OR HIGHER RANK.

THE TREASURY DEPARTMENT IS OF THE OPINION THAT PERSONNEL REFERRED TO IN (A) AND (B) OF THIS PARAGRAPH FALL WITHIN THE TERM "OFFICERS" AS USED IN SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, BUT HAS SOME DOUBT AS TO ITS APPLICABILITY TO PERSONNEL COVERED BY (C), WHO WERE APPOINTED UNDER THE AUTHORITY CONTAINED IN THE ACT APPROVED APRIL 16, 1908 (14 U.S.C. 23), AND PERSONNEL COVERED BY (D) WHO HAVE BEEN TEMPORARILY PROMOTED UNDER THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE CATEGORIES OF COAST GUARD PERSONNEL REFERRED TO IN THE SECOND PARAGRAPH HEREOF ARE SUBJECT TO INVOLUNTARY RETIREMENT UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, SUPRA. THIS REQUEST IS SOMEWHAT PROMPTED BY THE REFERENCE TO THE TERM "OFFICERS" AS APPLYING TO WARRANT OFFICERS, AS DISCUSSED IN THE DECISION OF YOUR OFFICE OF NOVEMBER 24, 1943 (23 COMP. GEN. 384), AND TO THE FACT THAT THE LEGISLATIVE HISTORY IN CONNECTION WITH SECTION 3 DISCLOSES NO LIGHT ON THE SUBJECT.

PRECEDING SECTION 3 OF THE ACT OF FEBRUARY 21, 1946 (60 STAT. 26, 27), QUOTED IN YOUR LETTER, SECTIONS 1 AND 2 RELATE TO THE INVOLUNTARY RETIREMENT OF OFFICERS ABOVE THE RANK OF CAPTAIN IN THE REGULAR NAVY AND ABOVE THE RANK OF COLONEL IN THE REGULAR MARINE CORPS. SECTIONS 10 AND 12 OF SAID ACT, 60 STAT. 29, PROVIDE AS FOLLOWS:

SEC. 10. THE PROVISIONS OF THIS ACT, EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME THERETO, SHALL APPLY TO PERSONNEL OF THE COAST GUARD IN RELATIONSHIP TO THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY IN RELATIONSHIP TO THE NAVY. PROVIDED, THAT WHEREVER AUTHORITY IS GIVEN TO THE SECRETARY OF THE NAVY, SIMILAR AUTHORITY SHALL BE DEEMED GIVEN TO THE SECRETARY OF THE TREASURY TO BE EXERCISED WITH RESPECT TO THE COAST GUARD AT SUCH TIME OR TIMES AS THE COAST GUARD SHALL BE OPERATING UNDER THE TREASURY DEPARTMENT. PROVIDED FURTHER, THAT THE BOARDS TO CONSIDER AND RECOMMEND FOR RETIREMENT OFFICERS OF THE COAST GUARD SERVING IN THE RANKS OF REAR ADMIRAL AND COMMODORE SHALL BE COMPOSED OF SENIOR COAST GUARD OFFICERS IF AVAILABLE OR OTHERWISE AS THE SECRETARY SHALL DETERMINE.

SEC. 12. THE PROVISIONS OF SECTION 3 OF THIS ACT SHALL TERMINATE ON JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE PRESENT WAR SHALL BE DECLARED TO BE ENDED BY PROCLAMATION OF THE PRESIDENT OR BY AN ACT OR RESOLUTION OF CONGRESS.

SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, WHICH IS TEMPORARY LEGISLATION, RELATES TO THE INVOLUNTARY RETIREMENT OF CERTAIN OFFICES OF THE REGULAR NAVY AND MARINE CORPS AND, BY ASSIMILATION, TO SIMILAR OFFICERS OF THE REGULAR COAST GUARD. THE LAST SENTENCE OF THE SAID SECTION PROVIDES THAT MEMBERS OF THE BOARD OF OFFICERS TO CONSIDER AND RECOMMEND THE INVOLUNTARY RETIREMENT OF OFFICERS OF THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD SHALL BE SENIOR IN PERMANENT RANK TO THE PERMANENT RANK OF ANY OFFICER UNDER CONSIDERATION FOR RETIREMENT. IT WILL BE NOTED THAT THE SAID SECTION 3 DOES NOT EXPRESSLY INCLUDE WITHIN ITS PROVISIONS PERSONS TEMPORARILY APPOINTED OR PROMOTED TO OFFICER RANK UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. THE CONTRARY, IT SEEMS CLEAR THAT SUCH SECTION CONTEMPLATES THAT OFFICERS TO BE CONSIDERED FOR INVOLUNTARY RETIREMENT SHALL CONSIST OF OFFICERS HAVING A PERMANENT RANK AS SUCH IN THE REGULAR NAVY, MARINE CORPS, OR COAST GUARD. THE PRIMARY PURPOSE OF SECTION 3 OF THE SAID ACT, AS DISCLOSED BY THE LEGISLATIVE HISTORY OF THE ACT, WAS TEMPORARILY TO PROVIDE A BASIS FOR READJUSTING THE ACTIVE LIST OF THE REGULAR NAVY BY AUTHORIZING THE INVOLUNTARY RETIREMENT OF A NUMBER OF PERMANENT OFFICERS OF THE REGULAR NAVY WHOSE SERVICES COULD NOT BE EFFICIENTLY UTILIZED IN THE POSTWAR NAVY. SUCH READJUSTMENT OF THE ACTIVE LIST OF PERMANENT OFFICER PERSONNEL OF THE REGULAR NAVY WAS NECESSITATED TO SOME EXTENT BY THE FACT THAT THE INVOLUNTARY RETIREMENT PROVISIONS OF THE ACT OF JUNE 23, 1938, 52 STAT. 949, WERE SUSPENDED DURING THE WAR PERIOD BY THE ACT OF JUNE 11, 1940, 54 STAT. 293, WITH THE RESULT THAT NO INVOLUNTARY RETIREMENTS WERE EFFECTED IN THE REGULAR NAVY DURING THAT PERIOD.

CONSEQUENTLY, UPON CESSATION OF HOSTILITIES, THE PERMANENT OFFICERS OF THE REGULAR NAVY WHO WOULD HAVE BEEN INVOLUNTARILY RETIRED DURING THE PRECEDING 6-YEAR PERIOD, BUT FOR THE SUSPENSION OF THE INVOLUNTARY RETIREMENT PROVISIONS OF THE 1938 ACT, CONTINUED ON THE ACTIVE LIST OF THE REGULAR NAVY. IT WAS SUCH PERMANENT OFFICERS OF THE REGULAR NAVY WHOSE SERVICES COULD NO LONGER BE EFFICIENTLY UTILIZED THAT THE NAVY DEPARTMENT DESIRED TO REMOVE FROM THE ACTIVE LIST OF THE REGULAR NAVY THROUGH INVOLUNTARY RETIREMENT. BUT THE INVOLUNTARY RETIREMENT PROVISIONS OF THE 1938 ACT HAVING BEEN SUSPENDED, IT WAS NECESSARY IN ORDER TO REMOVE SUCH PERMANENT OFFICERS FROM THE ACTIVE LIST OF THE REGULAR NAVY TO OBTAIN LEGISLATION AND THIS LED TO THE ENACTMENT OF THE TEMPORARY PROVISIONS CONTAINED IN SECTION 3 OF THE 1946 ACT, WHICH PERMITS THE BOARDS TO CONSIDER AND RECOMMEND OFFICERS FOR INVOLUNTARY RETIREMENT WITHOUT REGARD TO LENGTH OF SERVICE, ETC. HOWEVER, NO SUCH PROBLEM EXISTED WITH RESPECT TO PERSONS TEMPORARILY APPOINTED OR PROMOTED TO OFFICER RANK UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, IN THAT SECTION 7 OF THAT ACT, 55 STAT. 604, SPECIFICALLY PROVIDES THAT THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF PERSONS TEMPORARILY APPOINTED OR PROMOTED THEREUNDER SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS OR PROMOTIONS. CONSEQUENTLY, UPON EXPIRATION OF THE ACT OF JULY 24, 1941, AS AMENDED, OR WHEN THE SERVICES OF PERSONS TEMPORARILY APPOINTED OR PROMOTED TO OFFICER RANK UNDER THAT ACT NO LONGER CAN BE EFFICIENTLY UTILIZED, THE TEMPORARY APPOINTMENTS OF SUCH PERSONS WILL BE REVOKED AND THEY WILL REVERT TO THEIR PERMANENT STATUS IN THE NAVAL ESTABLISHMENT. WHILE SECTION 8 OF THE SAID ACT OF FEBRUARY 21, 1946, EXTENDED CERTAIN BENEFITS--- SUCH AS SUBSEQUENT RETIREMENT IN THE HIGHEST GRADE OR RANK IN WHICH THEY SERVED UNDER A TEMPORARY APPOINTMENT-- - TO PERSONNEL TEMPORARILY APPOINTED UNDER THAT ACT, THERE IS NOTHING IN SECTION 3 OF THE ACT, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD INDICATE THAT WHEN THE SERVICES OF PERSONS TEMPORARILY APPOINTED OR PROMOTED TO OFFICER RANK IN THE REGULAR NAVY NO LONGER COULD BE EFFICIENTLY UTILIZED IN SUCH TEMPORARY RANKS THAT THEY WERE TO BE INVOLUNTARILY RETIRED IN SUCH TEMPORARY RANKS RATHER THAN REVERT TO THEIR PERMANENT RANKS. HENCE, IT MUST BE CONCLUDED THAT SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, HAS REFERENCE TO PERMANENT OFFICERS AND NOT TO TEMPORARY OFFICERS OF THE REGULAR NAVY AND MARINE CORPS, AND, HENCE, BY ASSIMILATION, ONLY TO PERMANENT OFFICERS OF THE REGULAR COAST GUARD.

THE NEXT QUESTION IS WHETHER THE TERM "OFFICER" AS USED IN SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, INCLUDES WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS, GENERALLY, ARE "OFFICERS" WITHIN THE MEANING OF PARTICULAR STATUTES RELATING TO PAY, ALLOWANCES, ETC., OF MILITARY PERSONNEL HAS BEEN CONSIDERED ON VARIOUS OCCASIONS BY THE ACCOUNTING OFFICERS AND THE COURTS. THUS, IN DECISION OF NOVEMBER 24, 1943, 23 COMP. GEN. 384, REFERRED TO IN YOUR LETTER, IT WAS CONCLUDED THAT THE PROVISION IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, AUTHORIZING COMMISSIONED OFFICERS OF THE COAST GUARD WITH 40 YEARS' SERVICE TO BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, IS NOT APPLICABLE TO CHIEF WARRANT OFFICES OF THE COAST GUARD APPOINTED PURSUANT TO THE ACT OF JULY 3, 1926, 44 STAT. 817, WHICH ACT ASSIMILATES THE PAY, ALLOWANCES AND BENEFITS OF SUCH OFFICERS TO THOSE OF COMMISSIONED WARRANT OFFICERS OF THE NAVY, WHO ARE NOT ENTITLED BY LAW TO A ONE-GRADE ADVANCEMENT UPON RETIREMENT UNDER THE CIRCUMSTANCES STATED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923. IN WALTON V. UNITED STATES, 89 C.1CLS. 28, INVOLVING THE QUESTION OF WHETHER A WARRANT OFFICER IS AN ,OFFICER OF THE REGULAR ARMY" WITHIN THE MEANING OF THE ACT OF JULY 31, 1935, 49 STAT. 507, BESTOWING CERTAIN RETIREMENT BENEFITS ON OFFICERS OF THE REGULAR ARMY WHO SERVED AS COMMISSIONED OFFICERS PRIOR TO NOVEMBER 12, 1918, THE COURT CONCLUDED THAT A WARRANT OFFICER IS NOT AN "OFFICER OF THE REGULAR ARMY" AND THAT IF THE CONGRESS HAD INTENDED TO INCLUDE WARRANT OFFICERS WITHIN THE GENERAL TERM "OFFICERS OF THE ARMY," IT WOULD HAVE DONE SO.

IN ALLEN V. UNITED STATES, 67 C.CLS. 668, IT WAS CONCLUDED THAT A WARRANT OFFICER IN THE NAVY WAS NOT AN "OFFICER" WITHIN THE MEANING OF THE PROVISION IN SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 627, AUTHORIZING "OFFICERS" IN THE SERVICES ON JUNE 30, 1922, TO COUNT ALL SERVICE WHICH WAS CREDITABLE PRIOR TO THAT DATE IN COMPUTING LONGEVITY PAY, HOLDING THAT SUCH PROVISION HAD REFERENCE TO COMMISSIONED OFFICERS AND WAS NOT INTENDED TO INCLUDE WARRANT OFFICERS. IN BROWN V. UNITED STATES, 113 U.S. 568 (1885), IN CONSTRUING THE PROVISION OF THE ACT OF AUGUST 3, 1861, THAT WHENEVER ANY "OFFICER" OF THE NAVY SHALL BE DISABLED IN LINE OF DUTY HE MAY BE PLACED ON THE RETIRED LIST, THE COURT CONCLUDED, PRIMARILY ON THE BASIS OF THE ADMINISTRATIVE CONCLUSION AND APPLICATION THERETOFORE PLACED UPON THE ACT, THAT WARRANT OFFICERS IN THE NAVY ARE WITHIN THE TERM ,OFFICER" AS USED IN THAT ACT; YET, THE COURT POINTED OUT (P. 570) THAT "IT MUST BE CONCEDED THAT WERE THE QUESTION A NEW ONE, THE TRUE CONSTRUCTION OF THE SECTION WOULD BE OPEN TO DOUBT.' AND IN RUSH'S CASE, 2 C.1CLS. 167, IT WAS CONCLUDED THAT A WARRANT OFFICER IN THE NAVY WAS AN "OFFICER" WTHIN THE MEANING OF THE ACT OF APRIL 21, 1806, 2 STAT. 390, GRANTING HALF PAY TO OFFICERS OF THE NAVY. ALSO, IT HAS BEEN HELD THAT A PAYMASTER'S CLERK IN THE NAVY, WHOSE PAY AND ALLOWANCES WERE ASSIMILATED TO THOSE OF WARRANT OFFICERS IN THE NAVY, WAS AN OFFICER OF THE NAVY ENTITLED TO MILEAGE UNDER STATUTES AUTHORIZING MILEAGE FOR OFFICERS OF THE NAVY. KATZER V. UNITED STATES, 52 C.1CLS. 32. HOWEVER, IN UNITED STATES V. MOUAT, 124 U.S. 303, IT WAS CONCLUDED THAT A PAYMASTER'S CLERK IN THE NAVY WAS NOT AN "OFFICER" OF THE NAVY WITHIN THE MEANING OF THE ACT OF JUNE 30, 1876, 19 STAT. 65, RESPECTING THE PAYMENT OF MILEAGE TO "OFFICERS" OF THE NAVY. BUT IN UNITED STATES V. HENDEE, 124 U.S. 309, DECIDED THE SAME DAY AS THE MOUAT CASE, THE COURT CONCLUDED THAT A PAYMASTER'S CLERK IN THE NAVY WAS AN "OFFICER" OF THE NAVY WITHIN THE MEANING OF THE PROVISIONS IN THE ACT OF MARCH 3, 1883, 22 STAT. 473, RESPECTING LONGEVITY PAY OF OFFICERS AND ENLISTED MEN IN THE ARMY AND NAVY. THUS, IT WILL BE SEEN THAT NO GENERAL RULE HAS BEEN FOLLOWED IN DETERMINING WHETHER WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS ARE, OR ARE NOT, OFFICERS OF THE NAVY WITHIN THE MEANING OF PARTICULAR STATUTES; AND, AS STATED IN THE MOUAT CASE, SUPRA,"IT WILL BE THE DUTY OF THE COURTS IN CONSTRUING SUCH AN ACT OF CONGRESS TO ASCERTAIN ITS TRUE MEANING AND BE GOVERNED ACCORDINGLY.'

SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, IS TEMPORARY LEGISLATION WHICH PROVIDES A BASIS WHEREBY THE NAVY, MARINE CORPS AND, BY ASSIMILATION, THE COAST GUARD MAY INVOLUNTARILY RETIRE PERMANENT OFFICERS WHOSE SERVICES NO LONGER CAN BE EFFICIENTLY UTILIZED AND WHO DO NOT APPLY FOR VOLUNTARY RETIREMENT. THE SAID SECTION 3 IS SOMEWHAT SIMILAR IN THAT RESPECT, WITH CERTAIN MODIFICATIONS, TO THE SUSPENDED PROVISIONS OF THE LINE PERSONNEL ACT OF JUNE 23, 1938, 52 STAT. 944, PERTAINING TO THE INVOLUNTARY RETIREMENT OF OFFICERS OF THE NAVY WHO FAIL OF PROMOTION. THE LATTER ACT AUTHORIZES THE DISCHARGE OF ENSIGNS, LIEUTENANTS (J.G.), ETC., UNDER CERTAIN CONDITIONS AND THE INVOLUNTARY RETIREMENT OF OTHER COMMISSIONED OFFICERS OF THE LINE OF THE NAVY WHO HAVE COMPLETED A SPECIFIED NUMBER OF YEAR'S SERVICE. BUT NEITHER WARRANT OFFICERS NOR COMMISSIONED WARRANT OFFICERS OF THE NAVY ARE SUBJECT TO THE PROVISIONS OF THAT ACT. ALSO, THE ACT OF JANUARY 12, 1938, 52 STAT. 4, APPLICABLE TO THE COAST GUARD, AUTHORIZES THE SECRETARY OF THE TREASURY TO CONVENE A PERSONNEL BOARD FOR THE PURPOSE, INTER ALIA, OF SELECTING OFFICERS WHOM THE BOARDS DETERMINE SHOULD BE PLACED OUT OF LINE FOR PROMOTION; AND OFFICERS SO PLACED OUT OF LINE FOR PROMOTION WHO HAVE COMPLETED 10 YEARS OR MORE OF COMMISSIONED SERVICE MAY BE PLACED UPON THE RETIRED LIST WITH RETIRED PAY AUTHORIZED THEREIN. HOWEVER, SECTION 6 OF THE SAID ACT, 52 STAT. 5, SPECIFICALLY PROVIDES THAT THE PROVISIONS OF THAT ACT SHALL APPLY TO CHIEF WARRANT OFFICERS--- THAT IS, COMMISSIONED WARRANT OFFICERS. THUS IT IS CLEAR THAT PRIOR TO THE ACT OF FEBRUARY 21, 1946, LAWS IN PARI MATERIA, RELATING TO THE INVOLUNTARY RETIREMENT OF OFFICERS OF THE NAVY AND COAST GUARD WERE NOT APPLICABLE TO EITHER WARRANT OFFICERS OR COMMISSIONED OR CHIEF WARRANT OFFICERS OF THE NAVY AND COAST GUARD. WHILE THE PROVISIONS OF SECTION 3 OF THE ACT OF FEBRUARY 21, 1946, TEMPORARILY PROVIDE A BROADER BASIS UPON WHICH OFFICERS OF THE NAVY, MARINE CORPS AND COAST GUARD MAY BE INVOLUNTARILY RETIRED, IT SEEMS REASONABLE TO ASSUME THAT HAD THE CONGRESS --- OR THE DEPARTMENTS CONCERNED--- INTENDED TO SUBJECT WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS TO SUCH INVOLUNTARY RETIREMENT A PROVISION TO THAT EFFECT WOULD HAVE BEEN INSERTED IN THAT SECTION, OR AT LEAST A CLEAR STATEMENT OF SUCH INTENT WOULD HAVE APPEARED IN THE LEGISLATIVE HISTORY OF THE ACT.

ALTHOUGH NUMEROUS REFERENCES WRE MADE IN THE LEGISLATIVE HISTORY OF THE SAID ACT TO THE TEMPORARILY SUSPENDED PROVISIONS OF THE ACT OF JUNE 23, 1938, AND TO THE EFFECT OF THE MORE LIBERAL TEMPORARY PROVISIONS OF SECTION 3 OF THE BILL WHICH BECAME THE 1946 ACT--- SUCH AS THE INCLUSION OF STAFF OFFICERS--- IT NEVER ONCE WAS SUGGESTED THAT ONE OF THE DIFFERENCES BETWEEN THE PRIOR LAW AND THE PROPOSED LAW WOULD BE TO SUBJECT WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS--- THERETOFORE EXCLUDED --- TO THE INVOLUNTARY RETIREMENT PROVISIONS OF SECTION 3. CF. PAGES 2 AND 3, HEARINGS BEFORE THE COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE, NOVEMBER 6, 1945, ON S. 1405--- WHICH BECAME THE SAID ACT OF FEBRUARY 21, 1946--- RESPECTING THE SCOPE OF THE TERM OFFICER" AS USED IN SECTION 6 OF THE BILL.

SINCE NO GENERAL OR FIXED RULE HAS BEEN ADOPTED BY THE COURTS AS TO THE SCOPE OF THE TERM ,OFFICER" AS APPLIED TO WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS OF THE NAVY OR COAST GUARD UNDER STATUTES RELATING TO PAY, RETIREMENT, ETC., OF NAVAL PERSONNEL, AND SINCE THE LEGISLATIVE HISTORY OF THE PRESENT ACT INDICATED NO DEPARTURE FROM THE PAST POLICY OF THE CONGRESS OF EXEMPTING ALL WARRANT OFFICERS OF THE NAVY AND COAST GUARD FROM THE INVOLUNTARY RETIREMENT PROVISIONS OF APPLICABLE TO REGULAR COMMISSIONED OFFICERS, THE MATTER OF WHETHER THE TERM "OFFICER" AS USED IN SECTION 3 WAS INTENDED TO SUBJECT EITHER WARRANT OFFICERS OR COMMISSIONED (CHIEF) WARRANT OFFICERS TO THE INVOLUNTARY RETIREMENT PROVISIONS OF THAT SECTION IS AT LEAST TOO DOUBTFUL TO JUSTIFY AN AFFIRMATIVE ANSWER BY THIS OFFICE WITH RESPECT TO ANY OF THE CATEGORIES OF COAST GUARD PERSONNEL REFERRED TO IN YOUR LETTER. A NEGATIVE ANSWER WITH RESPECT TO THE PERSONS DESCRIBED IN THE LAST TWO GROUPS, OR CATEGORIES (C) AND (D), IS REQUIRED FOR THE FURTHER REASON THAT SUCH PERSONS ARE NOT PERMANENT OFFICERS OF THE REGULAR COAST GUARD. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.