B-66065, JUNE 18, 1947, 26 COMP. GEN. 932

B-66065: Jun 18, 1947

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IS TO BE REGARDED AS HAVING SERVED . AS FOLLOWS: TRANSMITTED HEREWITH IS A LETTER DATED NOVEMBER 23. WHICH IS THE HIGHEST TEMPORARY RANK HELD BY HIM ON OR PRIOR TO JUNE 30. YOU WILL NOTE FROM HIS LETTER THAT HE HAS ASKED TO BE RETIRED ON JULY 1. FORMER COMPTROLLER GENERAL MCCARL HELD THAT THE STUDENTS' ARMY TRAINING CORPS WAS A PART OF THE ARMY AND THAT SERVICE THEREIN MIGHT BE COUNTED IN PROPER CASES FOR PAY PURPOSES (2 COMP. HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT WILL BE THE PAY OF A CAPTAIN WITH OVER TWENTY-FOUR YEARS OF SERVICE TO HIS CREDIT FOR PAY PURPOSES. YOUR DECISION IS REQUESTED UPON THE FOLLOWING QUESTIONS: 1. WILL CAPTAIN POTTLE BE ENTITLED UPON RETIREMENT TO THE INCREASED RETIREMENT BENEFITS AS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

B-66065, JUNE 18, 1947, 26 COMP. GEN. 932

PAY - RETIRED - REGULAR NAVY OFFICER WITH SERVICE PRIOR TO NOV. 12, 1918, HOLDING HIGHER TEMPORARY RANK; STUDENTS ARMY TRAINING CORPS SERVICE PRIOR TO NOV. 12, 1918 THE RETIRED PAY OF A REGULAR NAVY OFFICER REQUESTING VOLUNTARY RETIREMENT AFTER 20 YEARS' SERVICE PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, WHILE SERVING IN A TEMPORARY RANK HIGHER THAN THAT OF HIS PERMANENT RANK, MAY NOT BE COMPUTED UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 BY REASON OF SERVICE AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY RANK. A REGULAR NAVY OFFICER WHO HAD SERVED, AFTER INDUCTION INTO THE ARMY OF THE UNITED STATES, IN THE STUDENTS' ARMY TRAINING CORPS PRIOR TO NOVEMBER 12, 1918, IS TO BE REGARDED AS HAVING SERVED ,AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO BE ENTITLED THEREUNDER TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF HIS PERMANENT RANK UPON VOLUNTARY RETIREMENT FOR LENGTH OF SERVICE PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 18, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 2, 1947, AS FOLLOWS:

TRANSMITTED HEREWITH IS A LETTER DATED NOVEMBER 23, 1946, FROM CAPTAIN VALENTINE L. POTTLE, U.S. NAVY, WITH ENCLOSURES AND FORWARDING ENDORSEMENTS, RELATIVE TO HIS PAY UPON RETIREMENT.

CAPTAIN POTTLE HOLDS THE PERMANENT RANK OF COMMANDER AND THE TEMPORARY RANK OF CAPTAIN, WHICH IS THE HIGHEST TEMPORARY RANK HELD BY HIM ON OR PRIOR TO JUNE 30, 1946. YOU WILL NOTE FROM HIS LETTER THAT HE HAS ASKED TO BE RETIRED ON JULY 1, 1947. THE ENCLOSURES SHOW THAT HE SERVED IN THE STUDENTS' ARMY TRAINING CORPS PRIOR TO NOVEMBER 12, 1918.

IN A DECISION DATED FEBRUARY 21, 1923, FORMER COMPTROLLER GENERAL MCCARL HELD THAT THE STUDENTS' ARMY TRAINING CORPS WAS A PART OF THE ARMY AND THAT SERVICE THEREIN MIGHT BE COUNTED IN PROPER CASES FOR PAY PURPOSES (2 COMP. GEN. 516). UNDER THIS DECISION CAPTAIN POTTLE'S SERVICE IN THAT ORGANIZATION APPARENTLY BRINGS HIM WITHIN PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 368), WHICH PROVIDES IN PERTINENT PART THAT THE RETIRED PAY 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, SHALL BE "75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.' HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT WILL BE THE PAY OF A CAPTAIN WITH OVER TWENTY-FOUR YEARS OF SERVICE TO HIS CREDIT FOR PAY PURPOSES.

YOUR DECISION IS REQUESTED UPON THE FOLLOWING QUESTIONS:

1. WILL CAPTAIN POTTLE BE ENTITLED UPON RETIREMENT TO THE INCREASED RETIREMENT BENEFITS AS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA?

2. IF SO, WILL HE BE ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF HIS ACTIVE DUTY PAY OF A CAPTAIN WITH OVER TWENTY-FOUR YEARS OF SERVICE TO HIS CREDIT FOR PAY PURPOSES?

PRESUMABLY CAPTAIN POTTLE HAS COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NAVY AND HAS REQUESTED TO BE VOLUNTARILY RETIRED UNDER THE PROVISIONS OF SECTION 6, PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 27, WHICH PROVIDES AS FOLLOWS:

"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 PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.'

THE RETIRED PAY FOR OFFICERS RETIRED PURSUANT TO SAID SECTION IS PRESCRIBED IN SECTION 7 OF THE ACT, 60 STAT. 27, WHICH READS 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 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 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.

SINCE CAPTAIN POTTLE IS STATED TO HAVE SERVED IN THE STUDENTS' ARMY TRAINING CORPS FROM OCTOBER 26 TO DECEMBER 10, 1918, THE QUESTION ARISES AS TO WHETHER THE OFFICER MAY BE REGARDED AS HAVING ,SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," SO AS TO ENTITLE HIM TO RETIRED PAY OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF HIS TEMPORARY RANK OF CAPTAIN UNDER THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH PROVIDES 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.

IN DECISION OF MAY 6, 1947, B-63359, INVOLVING A NAVAL RESERVE OFFICER RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE SAID ACT OF FEBRUARY 21, 1946, IT WAS CONCLUDED THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT HAS NO APPLICATION TO NAVAL RESERVE OFFICERS, WITH THE FURTHER OBSERVATION THAT (PAGE 10):

* * * 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. * * *

IN DECISION OF FEBRUARY 28, 1947, B-60908, 26 COMP. GEN. 636, THE THIRD QUESTION CONCERNED THE PROPER RATE OF RETIRED PAY PAYABLE TO AN OFFICER OF THE REGULAR NAVY (PERMANENT LIEUTENANT COMMANDER, TEMPORARY CAPTAIN) WHO HAD BEEN RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AFTER 21 YEARS' SERVICE, AND, ALSO, HAD BEEN SPECIALLY COMMENDED UNDER SECTION 12 (1) OF THE LINE SELECTION LAW OF JUNE 23, 1938, 52 STAT. 951, WHICH AUTHORIZES OFFICERS SPECIALLY COMMENDED UNDER SECTION 12 (1) OF THE LINE SELECTION LAW OF JUNE 23, 1938, 52 STAT. 951, WHICH AUTHORIZES OFFICERS SPECIALLY COMMENDED, UPON RETIREMENT, TO 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. THE QUESTION THERE PRESENTED WAS WHETHER THE RETIRED PAY OF SUCH OFFICER PROPERLY WAS FOR COMPUTATION (1) AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A CAPTAIN, TEMPORARY, MULTIPLIED BY THE NUMBER OF YEARS FOR WHICH HE WAS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY, AS PROVIDED UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946; (2) ON 75 PERCENTUM OF THE PAY OF A CAPTAIN (TEMPORARY); OR (3), ON 75 PERCENTUM OF THE PAY OF A LIEUTENANT COMMANDER (PERMANENT). IN CONCLUDING THAT THE RETIRED PAY OF SUCH OFFICER PROPERLY COULD NOT BE COMPUTED ON 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY RANK BUT SHOULD BE BASED ON 75 PERCENTUM OF THE PAY OF HIS PERMANENT RANK OF LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE--- SUCH RATE BEING GREATER THAN 52 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF CAPTAIN (TEMPORARY/--- IT WAS STATED, IN PART, AS FOLLOWS (PAGES 643-645):

* * * 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 TISFACTORY," 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 APPEAR, 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 AN 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 OFFICES WHO ARE SPECIFICALLY 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).

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.

ALSO, SEE DECISION OF DECEMBER 16, 1946, B-60127, 26 COMP. GEN. 417, TO THE SECRETARY OF THE TREASURY, WHEREIN IT WAS CONCLUDED, INTER ALIA, THAT THE RETIRED PAY OF A COAST GUARD OFFICER WHO WAS RETIRED PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, WITH 27 YEARS' SERVICE, IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE PERCENTAGE RATE SET FORTH IN SECTION 7 (A) OF THE ACT, 60 STAT. 27, 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," AND THAT SUCH AN OFFICER IS NOT ENTITLED, BY VIRTUE OF THE PROVISION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF HIS TEMPORARY RANK. HENCE, FOLLOWING THE DECISIONS HEREINBEFORE MENTIONED, IT MUST BE CONCLUDED, IN ANSWER TO QUESTION NUMBER 2, THAT CAPTAIN POTTLE IS NOT ENTITLED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT TO RETIRED PAY OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY RANK. WHILE SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946 AUTHORIZES OFFICERS RETIRED UNDER THE FIRST SIX SECTIONS OF THAT ACT TO BE PLACED ON THE RETIRED LIST WITH THE HIGHEST TEMPORARY RANK TO WHICH ENTITLED UNDER THAT SECTION WITH RETIRED PAY AS THEREIN PRESCRIBED, SECTION 7 (B) AND (C) SAVES TO SUCH OFFICERS THE RETIRED PAY OF THEIR PERMANENT RANK TO WHICH ENTITLED UNDER OTHER LAWS, IF GREATER THAN THE RETIRED PAY COMPUTED ON THEIR TEMPORARY RANK UNDER THE PROVISIONS OF THE SAID SECTION 7 (A). 26 COMP. GEN. 636, 644. THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WERE INTENDED TO APPLY ONLY TO THE PAY OF AN OFFICER'S PERMANENT GRADE AND NOT THAT OF A TEMPORARY GRADE, SEE DECISION OF SEPTEMBER 18, 1945, 25 COMP. GEN. 274. IN THE PARTICULAR CASE HERE INVOLVED, IT IS STATED THAT THE OFFICER HAS COMPLETED 24 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY AND IT APPEARS THAT HIS RETIRED PAY COMPUTED UNDER THE SAID PROVISIONS OF SECTION 15 ON THE PAY OF HIS PERMANENT RANK OF COMMANDER WITH OVER 24 YEARS' SERVICE WOULD BE GREATER THAN 60 PERCENTUM (24 X 2 1/2) OF THE ACTIVE-DUTY PAY OF A CAPTAIN, TEMPORARY, WITH THE SAME LENGTH OF SERVICE. HENCE, THE OFFICER WOULD BE ENTITLED TO 75 PERCENTUM OF THE PAY OF A COMMANDER IF HIS SERVICE IN THE STUDENTS' ARMY TRAINING CORPS MAY BE CONSIDERED SERVICE AS "A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" WITHIN THE PURVIEW OF SUCH PROVISIONS IN SECTION 15.

THE STUDENTS' ARMY TRAINING CORPS WAS ESTABLISHED PURSUANT TO SECTION II OF WAR DEPARTMENT GENERAL ORDERS NO. 79 DATED AUGUST 24, 1918, WHICH PROVIDED AS FOLLOWS:

UNDER THE AUTHORITY CONFERRED BY SECTIONS 1, 2, 8, AND 9 OF THE ACT OF CONGRESS "AUTHORIZING THE PRESIDENT TO INCREASE TEMPORARILY THE MILITARY ESTABLISHMENT OF THE UNITED STATES," APPROVED MAY 18, 1917 (40 STAT. 77), THE PRESIDENT DIRECTS THAT FOR THE PERIOD OF THE EXISTING EMERGENCY THERE SHALL BE RAISED AND MAINTAINED, BY VOLUNTARY INDUCTION AND DRAFT, A STUDENTS' ARMY TRAINING CORPS. UNITS OF THIS CORPS WILL BE AUTHORIZED BY THE SECRETARY OF WAR AT EDUCATIONAL INSTITUTIONS THAT MEET THE REQUIREMENTS LAID DOWN IN SPECIAL REGULATIONS.

THE STUDENTS' ARMY TRAINING CORPS REGULATIONS, SPECIAL REGULATIONS NO. 103, DATED SEPTEMBER 24, 1918, GOVERNING THE ESTABLISHMENT, ADMINISTRATION AND MAINTENANCE OF THE CORPS, PROVIDED IN PART AS FOLLOWS:

3. OBJECT.--- THE OBJECT OF ESTABLISHING UNITS OF THE STUDENTS' ARMY TRAINING CORPS IS TO UTILIZE EFFECTIVELY THE PLANT, EQUIPMENT, AND ORGANIZATION OF THE COLLEGES FOR SELECTING AND TRAINING OFFICER CANDIDATES AND TECHNICAL EXPERTS FOR SERVICE IN THE EXISTING EMERGENCY.

4. ESTABLISHMENT OF UNITS.--- THE STUDENTS' ARMY TRAINING CORPS CONSISTS OF UNITS ESTABLISHED BY THE PRESIDENT IN QUALIFIED EDUCATIONAL INSTITUTIONS WHICH FULFILL THE REQUIREMENTS LAID DOWN IN THESE REGULATIONS.

6. REQUIREMENTS FOR THE ESTABLISHMENT OF SECTIONS.--- THE SECTIONS OF A UNIT OF THE STUDENTS' ARMY TRAINING CORPS AND THE EDUCATIONAL REQUIREMENTS FOR THE ESTABLISHMENT OF THE SAME ARE AS FOLLOWS:

A. COLLEGIATE SECTION.--- THE ESTABLISHMENT OF A COLLEGIATE SECTION (TO BE KNOWN AS SECTION A) MAY BE AUTHORIZED AT ANY CIVIL EDUCATIONAL INSTITUTION WHICH---

(1) REQUIRES FOR ADMISSION TO ITS REGULAR CURRICULA GRADUATION FROM A STANDARD, FOUR-YEAR, SECONDARY SCHOOL, OR AN EQUIVALENT, AND

(2) ORDINARILY PROVIDES A GENERAL OR PROFESSIONAL CURRICULUM COVERING AT LEAST 2 YEARS OF NOT LESS THAN 32 WEEKS EACH, AND

(3) HAS A STUDENT ATTENDANT SUFFICIENT TO MAINTAIN A COLLEGIATE SECTION OF A STUDENTS' ARMY TRAINING CORPS UNIT WITH A STRENGTH OF AT LEAST 100 MEN.

B. VOCATIONAL SECTION.--- THE ESTABLISHMENT OF A VOCATIONAL SECTION (TO BE KNOWN AS SECTION B) MAY BE AUTHORIZED AT ANY INSTITUTION HAVING AN ADEQUATE SHOP OR LABORATORY EQUIPMENT AND A STAFF OF INSTRUCTORS CAPABLE OF GIVING APPROVED VOCATIONAL TRAINING OF MILITARY VALUE.

10. CONDITIONS OF ADMISSION.--- ELIGIBILITY TO THE STUDENTS' ARMY TRAINING CORPS IS LIMITED TO REGISTRANTS UNDER THE SELECTIVE-SERVICE REGULATIONS WHO ARE PHYSICALLY FIT TO PERFORM FULL OR LIMITED MILITARY DUTY AND WHO HAVE HAD AT LEAST GRAMMAR-SCHOOL EDUCATION OR ITS EQUIVALENT.

A. COLLEGIATE SECTIONS.--- A COLLEGIATE SECTION ( SECTION A) OF A STUDENTS' ARMY TRAINING CORPS UNIT WILL INCLUDE THOSE WHO HAVE GRADUATED FROM A STANDARD FOUR-YEAR SECONDARY SCHOOL OR HAVE EQUIVALENT EDUCATIONAL QUALIFICATIONS.

SUBJECT TO THE APPROVAL OF THE COMMITTEE ON EDUCATION AND SPECIAL TRAINING AN INSTITUTION MAY PRESCRIBE ANY REASONABLE ADDITION TO THE REQUIREMENT FOR ADMISSION SET FORTH IN SUBPARAGRAPH A ABOVE. THE REQUIREMENT OF GRADUATION FROM A STANDARD FOUR-YEAR SECONDARY SCHOOL OR AN EQUIVALENT, AS A CONDITION FOR ADMISSION, WILL BE RELAXED ONLY IN CASES WHERE, IN THE JUDGMENT OF THE COMMITTEE ON EDUCATION AND SPECIAL TRAINING, THE ENFORCEMENT OF THIS REQUIREMENT WOULD ADMIT NUMBERS INSUFFICIENT TO MEET THE NEEDS OF THE SERVICE.

B. VOCATIONAL SECTIONS.--- A VOCATIONAL SECTION ( SECTION B) OF A STUDENTS' ARMY TRAINING CORPS WILL INCLUDE THOSE WHO HAVE HAD GRAMMAR SCHOOL EDUCATION OR ITS EQUIVALENT.

11. STATUS OF MEMBERS OF THE STUDENTS' ARMY TRAINING CORPS.--- UPON ADMISSION TO THE STUDENTS' ARMY TRAINING CORPS A REGISTRANT BECOMES A SOLDIER IN THE ARMY OF THE UNITED STATES. AS SUCH HE IS SUBJECT TO MILITARY LAW AND TO MILITARY DISCIPLINE AT ALL TIMES.

12. MEMBERS OF COLLEGIATE SECTIONS.--- THE COLLEGIATE SECTIONS OF STUDENTS' ARMY TRAINING CORPS UNITS WILL BE RECRUITED IN THE FIRST INSTANCE BY THE VOLUNTARY INDUCTION OF REGISTRANTS UNDER THE SELECTIVE SERVICE REGULATIONS.

13. ACTIVE-DUTY STATUS.--- MEMBERS OF THE STUDENTS' ARMY TRAINING CORPS WILL BE PLACED UPON ACTIVE-DUTY STATUS IMMEDIATELY UPON THEIR INDUCTION. THE COMMITTEE ON EDUCATION AND SPECIAL TRAINING WILL ENTER INTO CONTRACTS WITH EDUCATIONAL INSTITUTIONS FOR THE QUARTERING, SUBSISTENCE, AND INSTRUCTIONS OF MEMBERS OF THE STUDENTS' ARMY TRAINING CORPS UNIT ESTABLISHED AT SUCH INSTITUTIONS.

UNDER THE SAID REGULATIONS, ELIGIBILITY TO THE STUDENTS' ARMY TRAINING CORPS WAS LIMITED TO REGISTRANTS UNDER THE SELECTIVE SERVICE REGULATIONS AND ONE OF THE CONDITIONS FOR ADMISSION INTO THAT BRANCH OF THE SERVICE WAS THAT THE REGISTRANT BE INDUCTED INTO THE ARMY OF THE UNITED STATES UNDER THE SELECTIVE SERVICE REGULATIONS. THE FACT THAT A SELECTIVE DRAFT REGISTRANT MAY HAVE MADE APPLICATION AND TAKEN THE OATH PRESCRIBED FOR ADMISSION TO THE STUDENTS' ARMY TRAINING CORPS DID NOT HAVE THE EFFECT OF PLACING HIM IN THE MILITARY SERVICE--- A CHANGE IN STATUS FROM CIVILIAN TO SOLDIER DID NOT OCCUR UNTIL THE PERSON WAS INDUCTED INTO THE MILITARY SERVICE IN ACCORDANCE WITH THE APPLICABLE SELECTIVE SERVICE REGULATIONS. SEE 26 COMP. DEC. 298; ID. 678. CONSEQUENTLY, SINCE IT APPEARS THAT A SELECTIVE DRAFT REGISTRANT LEGALLY COULD NOT BECOME A MEMBER OF THE STUDENTS' ARMY TRAINING CORPS PRIOR TO INDUCTION INTO THE ARMY OF THE UNITED STATES, WHICH INDUCTION UNQUESTIONABLY MADE THE REGISTRANT A MEMBER OF THE MILITARY SERVICE, IT IS CONCLUDED THAT, UNDER SUCH CIRCUMSTANCES, SERVICE IN THAT CORPS PRIOR TO NOVEMBER 12, 1918, CONSTITUTED SERVICE "AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" SO AS TO ENTITLE AN OFFICER WHO SERVED THEREIN, UPON RETIREMENT, TO THE RETIRED PAY BENEFITS PRESCRIBED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT.

IN THE PRESENT CASE THERE HAS BEEN SUBMITTED A PHOTOSTAT " CERTIFICATE IN LIEU OF LOST OR DESTROYED DISCHARGE CERTIFICATE" DATED JUNE 17, 1941, RECITING THAT VALENTINE LINN POTTLE, ASN, 5,140,006, A PRIVATE OF THE S.A.T.C., COLUMBIA UNIVERSITY, NEW YORK, UNITED STATES ARMY, WHO WAS INDUCTED ON OCTOBER 26, 1918, AT COLUMBIA UNIVERSITY, NEW YORK, NEW YORK, TO SERVE FOR THE PERIOD OF THE EMERGENCY WAS HONORABLY DISCHARGED FROM THE SERVICE OF THE UNITED STATES ON DECEMBER 10, 1918, BY REASON OF DEMOBILIZATION. HENCE, ASSUMING THAT THE RECORDS OF THE WAR DEPARTMENT SHOW THAT CAPTAIN POTTLE ACTUALLY WAS INDUCTED INTO THE ARMY OF THE UNITED STATES ON THE DATE STATED IN THE SAID CERTIFICATE, OR PRIOR TO NOVEMBER 12, 1918, HE WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS PERMANENT RANK OF COMMANDER IN ACCORDANCE WITH PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.