B-67116, SEPTEMBER 3, 1947, 27 COMP. GEN. 152

B-67116: Sep 3, 1947

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WAS RETIRED FOR PHYSICAL DISABILITY NOT INCIDENT TO THE SERVICE ON FURLOUGH PAY PURSUANT TO SECTION 1454. IS ENTITLED UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24. TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS HIGHER TEMPORARY RANK. AS FOLLOWS: THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS. YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS. NAMELY: WHETHER OR NOT LIEUTENANT COMMANDER BOGART IS ENTITLED TO PAYMENT OF RETIRED PAY FROM AND AFTER JANUARY 1. WAS GIVEN A REVOCABLE COMMISSION TO ENSIGN IN THE REGULAR NAVY SUBJECT TO A SUBSEQUENT PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL QUALIFICATIONS FOR CONTINUATION IN THE NAVAL SERVICE.

B-67116, SEPTEMBER 3, 1947, 27 COMP. GEN. 152

PAY - RETIRED - REGULAR NAVY OFFICER SERVING IN HIGHER TEMPORARY RANK RETIRED ON FURLOUGH PAY A REGULAR NAVY OFFICER SERVING UNDER A TEMPORARY APPOINTMENT IN A RANK HIGHER THAN THAT OF HIS PERMANENT RANK WHO, WITH THE PRESIDENT'S APPROVAL, WAS RETIRED FOR PHYSICAL DISABILITY NOT INCIDENT TO THE SERVICE ON FURLOUGH PAY PURSUANT TO SECTION 1454, REVISED STATUTES, IS ENTITLED UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS HIGHER TEMPORARY RANK--- IT HAVING BEEN ADMINISTRATIVELY DETERMINED THAT HE SERVED SATISFACTORILY THEREIN--- AT THE RATE OF ONE-HALF OF THE BASE AND LONGEVITY PAY OF SUCH RANK AS PRESCRIBED BY SECTION 1593, REVISED STATUTES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 3, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 9, 1947, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED APRIL 25, 1947, RELATIVE TO THE PAY STATUS OF LIEUTENANT COMMANDER A. S. BOGART, U.S. NAVY (RETIRED), ON AND AFTER JANUARY 1, 1947.

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS, NAMELY: WHETHER OR NOT LIEUTENANT COMMANDER BOGART IS ENTITLED TO PAYMENT OF RETIRED PAY FROM AND AFTER JANUARY 1, 1947, ON THE BASIS OF ONE-HALF OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER THREE BUT LESS THAN SIX YEARS OF SERVICE, UNDER THE CONDITIONS STATED IN THE ENCLOSURE.

THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, REFERRED TO IN YOUR LETTER, READS:

REF: (A) SECTION 1454, REVISED STATUTES.

(B) SECTION 1593, REVISED STATUTES.

(C) DECISION OF THE COMPTROLLER OF THE TREASURY DATED 7

AUGUST 1908. (15 COMP. DEC. 70.)

(D) SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED

BY PUBLIC LAW 305 DATED FEBRUARY 21, 1946.

ENCL: (A) SECNAV ORDERS PERS-31289-RB 2A123342 DATED 28 JAN. 1946.

(B) COPY OF SECNAV TR PERS-32151-ED 123342 DATED

30 DEC. 1946.

(C) COPY OF SECNAV ORDERS PERS-325 RES 123342 ISSUED

13 JAN. 1947 TO ENSIGN ALVIN SEYMOUR BOGART,

USN.

1. THE SUBJECT NAMED OFFICER, UPON GRADUATION FROM THE NAVAL ACADEMY, WAS GIVEN A REVOCABLE COMMISSION TO ENSIGN IN THE REGULAR NAVY SUBJECT TO A SUBSEQUENT PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL QUALIFICATIONS FOR CONTINUATION IN THE NAVAL SERVICE. SUCH COMMISSION AS ENSIGN WAS ACCEPTED ON 19 DECEMBER 1941, AND THE OFFICER WAS SUCCESSIVELY TEMPORARILY APPOINTED TO THE RANK OF LIEUTENANT (JUNIOR GRADE), LIEUTENANT, AND LIEUTENANT COMMANDER PRIOR TO 1 JULY 1946. TEMPORARY APPOINTMENT AS LIEUTENANT COMMANDER WAS REVOKED ON 30 DECEMBER 1946 AND THIS OFFICER REVERTED TO HIS PERMANENT RANK OF ENSIGN (ENCLOSURE (B) ). UNDER THE AUTHORITY CONTAINED IN REFERENCE (A), HE WAS RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, WHICH IS DEFINED IN REFERENCE (B) AS ONE-HALF OF THE PAY TO WHICH HE WOULD BE ENTITLED IF ON LEAVE OF ABSENCE ON THE ACTIVE LIST. IN ACCORDANCE WITH DECISIONS OF THE COMPTROLLER GENERAL FURLOUGH PAY IS ONE-HALF OF BASE PAY LONGEVITY. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS OFFICER SERVED SATISFACTORILY IN THE RANK OF LIEUTENANT COMMANDER.

2. IT HAS BEEN NOTED THAT THE COMPTROLLER OF THE TREASURY, IN REFERENCE (C), STATED THAN AN OFFICER, THOUGH RETIRED ON FURLOUGH PAY, IS AN OFFICER ON THE RETIRED LIST, BEING SPECIFICALLY SO RECOGNIZED BY SECTION 1593 OF THE REVISED STATUTES. PARAGRAPH (B) (2) OF REFERENCE (D) STATES THAT PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY ADVANCED UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, SHALL, WHEN SUBSEQUENTLY RETIRED, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

3. IT IS THE OPINION OF THIS BUREAU THAT SUBJECT NAMED OFFICER IS AN OFFICER ON THE RETIRED LIST OF THE NAVY, AND THAT AS SUCH HIS RETIRED PAY IS FOR COMPUTATION UNDER REFERENCE (D) ON THE BASIS OF ONE HALF OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 3 BUT LESS THAN 6 YEARS' SERVICE. SUCH PAY AMOUNTS TO $144.38 PER MONTH. IT IS FURTHER CONSIDERED THAT THE TERMINATION OF TEMPORARY APPOINTMENT ON 30 DECEMBER 1946 DOES NOT SERVE TO DEPRIVE THE OFFICER OF INCREASED RETIRED PAY BENEFITS CONFERRED BY THE CITED REFERENCE. HOWEVER, IN ORDER TO PROTECT THE INTERESTS OF THE GOVERNMENT AND TO INSURE THAT THIS PAYEE, AND ANY OTHERS WHO MAY BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, WILL RECEIVE THE FULL AMOUNT OF RETIRED PAY TO WHICH ENTITLED UNDER APPLICABLE LAWS, IT IS RECOMMENDED THAT THIS MATTER BE REFERRED TO THE COMPTROLLER GENERAL FOR DETERMINATION AS TO WHETHER THE INTERPRETATION OF THIS BUREAU WITH RESPECT TO THE RETIRED PAY STATUS OF THIS OFFICER IS CORRECT.

SECTIONS 1454, 1557 AND 1593, REVISED STATUTES, 34 U.S.C. 418, 881, 998, RESPECTIVELY, PROVIDE AS FOLLOWS:

SEC. 1454. WHEN SAID BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DETERMINE.

SEC. 1557. OFFICERS ON FURLOUGH SHALL RECEIVE ONLY ONE-HALF OF THE PAY TO WHICH THEY WOULD BE ENTITLED IF ON LEAVE OF ABSENCE.

SEC. 1593. OFFICERS PLACED ON THE RETIRED LIST, ON FURLOUGH PAY, SHALL RECEIVE ONLY ONE-HALF OF THE PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED IF ON LEAVE OF ABSENCE ON THE ACTIVE LIST.

SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, PROVIDES:

(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.

A NAVAL RETIRING BOARD FOUND THAT LIEUTENANT COMMANDER BOGART WAS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY WAS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE (PRESUMABLY HAVING BEEN INCURRED WHILE ATTENDING THE NAVAL ACADEMY AS A MIDSHIPMAN OR PRIOR THERETO). THE PRESIDENT, ON DECEMBER 24, 1946, APPROVED THE PROCEEDINGS AND FINDINGS OF THE NAVAL RETIRING BOARD. ACCORDINGLY, THE OFFICER'S TEMPORARY APPOINTMENT AS A LIEUTENANT COMMANDER WAS REVOKED AND HE REVERTED TO HIS PERMANENT RANK OF ENSIGN DECEMBER 30, 1946, AND WAS PLACED ON THE RETIRED LIST, WITH FURLOUGH PAY, EFFECTIVE JANUARY 1, 1947.

UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, SUPRA, PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY TEMPORARILY ADVANCED UNDER THE SAID ACT ARE ENTITLED, WHEN SUBSEQUENTLY "RETIRED," TO BE ADVANCED TO THE HIGHEST GRADE OR RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, WITH RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT EASED UPON SUCH HIGHER RANK. SECTION 1454, REVISED STATUTES, EXPRESSLY PROVIDES THAT, UNDER CERTAIN CONDITIONS, AN OFFICER SHALL BE "RETIRED" FROM ACTIVE SERVICE ON FURLOUGH PAY AND AN OFFICER SO RETIRED ON FURLOUGH PAY IS SPECIFICALLY RECOGNIZED BY SECTION 1593, REVISED STATUTES, AS AN OFFICER ON THE RETIRED LIST. SEE 15 COMP. DEC. 70; BROWN V. UNITED STATES, 113 U.S. 568, 572. SINCE THE OFFICER HERE INVOLVED WAS FOUND BY A NAVAL RETIRING BOARD TO BE INCAPACITATED FOR ACTIVE SERVICE AND THAT SUCH INCAPACITY WAS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE WITH FURLOUGH PAY, THE OFFICER IS ENTITLED UNDER THE SAID SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, TO HAVE HIS RETIRED PAY COMPUTED FROM JANUARY 1, 1947, THE DATE OF RETIREMENT, ON THE BASIS OF HIS TEMPORARY RANK OF LIEUTENANT COMMANDER--- THE SECRETARY OF NAVY HAVING DETERMINED THAT HE SERVED SATISFACTORILY IN SUCH RANK--- AT THE RATE PRESCRIBED BY SECTION 1593, REVISED STATUTES--- THAT IS, ONE-HALF OF THE BASE AND LONGEVITY PAY OF A LIEUTENANT COMMANDER WITH LESS THAN 6 YEARS' SERVICE. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.