B-69059, OCTOBER 13, 1947, 27 COMP. GEN. 197

B-69059: Oct 13, 1947

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THAT STAFF REAR ADMIRALS ARE ENTITLED TO THE PAY AND ALLOWANCES OF THE UPPER HALF ONLY WHEN THEIR LINE RUNNING MATES BECOME SO ENTITLED. WHO IS TO BE RETIRED SUBSEQUENT TO SUCH DATE FOR LENGTH OF SERVICE PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21. WILL BE ENTITLED UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24. IS ENTITLED. IT IS STATED THAT REAR ADMIRAL CALVER HOLDS THE PERMANENT RANK OF CAPTAIN AND THAT HE WAS GIVEN A SO-CALLED "SPOT" APPOINTMENT ON OCTOBER 9. THAT EACH OFFICER OR THE STAFF CORPS NOW OR HEREAFTER SERVING IN THE RANK OF REAR ADMIRAL SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAWFOR REAR ADMIRALS OF THE UPPER HALF WHEN A LINE OFFICER WHO WAS HIS JUNIOR IN THE RANK FROM WHICH THE STAFF OFFICER CONCERNED WAS ADVANCED BECOMES ENTITLED TO SUCH PAY AND ALLOWANCES PURSUANT TO THE FOREGOING BUT NOT EARLIER THAN THE DATE UPON WHICH THE STAFF OFFICER IS APPOINTED TO THE RANK OF REAR ADMIRAL:* * * AND PROVIDED FURTHER.

B-69059, OCTOBER 13, 1947, 27 COMP. GEN. 197

PAY - ACTIVE DUTY; RETIRED; ACTIVE DUTY AFTER RETIREMENT - TEMPORARY REAR ADMIRALS OF NAVY STAFF CORPS A STAFF OFFICER (PERMANENT CAPTAIN) HOLDING A TEMPORARY "SPOT" APPOINTMENT AS REAR ADMIRAL WITH THE PAY AND ALLOWANCES OF THE UPPER HALF PURSUANT TO SECTION 2 OF THE ACT OF JUNE 30, 1942, MAY NOT, IN VIEW OF SECTION 311 (D) (14) OF THE OFFICER PERSONNEL ACT OF 1947, PROVIDING, IN EFFECT, THAT STAFF REAR ADMIRALS ARE ENTITLED TO THE PAY AND ALLOWANCES OF THE UPPER HALF ONLY WHEN THEIR LINE RUNNING MATES BECOME SO ENTITLED, RECEIVE SUCH PAY AND ALLOWANCES ON OR AFTER AUGUST 7, 1947, THE DATE OF ENACTMENT OF THE 1947 ACT, SECTION 426 (A) OF WHICH REPEALED SECTION 2 OF THE 1942 ACT, WHERE SUCH OFFICER'S LINE RUNNING MATE HOLDS THE PERMANENT RANK OF CAPTAIN. A TEMPORARY REAR ADMIRAL OF THE NAVY IN RECEIPT OF THE PAY AND ALLOWANCES OF THE UPPER HALF ON JUNE 30, 1946, WHO IS TO BE RETIRED SUBSEQUENT TO SUCH DATE FOR LENGTH OF SERVICE PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, WILL BE ENTITLED UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, TO RETIRED PAY BASED UPON THE ACTIVE-DUTY PAY OF A REAR ADMIRAL (UPPER HALF); AND, UPON RECALL TO ACTIVE DUTY AFTER RETIREMENT, SUCH OFFICER WOULD BE ENTITLED IN ACCORDANCE WITH SECTION 10 (D) OF THE 1941 ACT, AS AMENDED, TO THE ACTIVE-DUTY PAY AND ALLOWANCES AUTHORIZED FOR A REAR ADMIRAL (UPPER HALF).

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 13, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 25, 1947, REQUESTING DECISION ON TWO QUESTIONS, AS FOLLOWS:

(1) WHETHER OR NOT REAR ADMIRAL GEORGE W. CALVER, MEDICAL CORPS, U.S. NAVY, WHILE SERVING UNDER A SO-CALLED "SPOT" APPOINTMENT FOR TEMPORARY SERVICE AS A REAR ADMIRAL, AS STATED ABOVE, IS ENTITLED, WHILE ON THE ACTIVE LIST OF THE NAVY, TO CONTINUE TO RECEIVE, FROM AND AFTER AUGUST 7, 1947, THE PAY AND ALLOWANCES OF THE UPPER HALF OF THE GRADE OF REAR ADMIRAL, NOTWITHSTANDING THE REPEAL OF SECTION 2 OF THE ACT OF JUNE 30, 1942, SUPRA, BY SECTION 426 (A) OF THE OFFICER PERSONNEL ACT OF 1947?

(2) WHETHER OR NOT, IN THE EVENT OF THE VOLUNTARY RETIREMENT OF REAR ADMIRAL GEORGE W. CALVER, MEDICAL CORPS, U.S. NAVY, UNDER THE PROVISIONS OF PUBLIC LAW 305, AS AMENDED, AND HIS SUBSEQUENT RECALL TO ACTIVE DUTY FOR THE CONTINUED PERFORMANCE OF DUTY UNDER HIS PRESENT ACTIVE DUTY ASSIGNMENT, HE WOULD BE ENTITLED TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF?

IT IS STATED THAT REAR ADMIRAL CALVER HOLDS THE PERMANENT RANK OF CAPTAIN AND THAT HE WAS GIVEN A SO-CALLED "SPOT" APPOINTMENT ON OCTOBER 9, 1945, AS MEDICAL DIRECTOR IN ATTENDANCE ON THE CONGRESS, WITH THE RANK OF REAR ADMIRAL, FOR TEMPORARY SERVICE FOR A PERIOD OF LIMITED DURATION, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND THAT HE BECAME ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF ON OCTOBER 9, 1945, AS MEDICAL DIRECTOR IN ATTENDANCE ON THE CONGRESS, WITH THE RANK OF REAR ADMIRAL, FOR TEMPORARY SERVICE FOR A PERIOD OF LIMITED DURATION, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND THAT HE BECAME ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF OF OCTOBER 9, 1945, PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, WHICH READS AS FOLLOWS:

THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW, FOR REAR ADMIRALS OF THE UPPER HALF, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN SUCH GRADE, SHALL BE ONE-HALF OF THE NUMBER OF PERMANENT AND TEMPORARY OFFICERS OF THE LINE IN THAT GRADE: PROVIDED, THAT EACH OFFICER OR THE STAFF CORPS NOW OR HEREAFTER SERVING IN THE RANK OF REAR ADMIRAL SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAWFOR REAR ADMIRALS OF THE UPPER HALF WHEN A LINE OFFICER WHO WAS HIS JUNIOR IN THE RANK FROM WHICH THE STAFF OFFICER CONCERNED WAS ADVANCED BECOMES ENTITLED TO SUCH PAY AND ALLOWANCES PURSUANT TO THE FOREGOING BUT NOT EARLIER THAN THE DATE UPON WHICH THE STAFF OFFICER IS APPOINTED TO THE RANK OF REAR ADMIRAL:* * * AND PROVIDED FURTHER, THAT NO OFFICER WHO HAS OR MAY BECOME ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF SHALL SUFFER A REDUCTION OF HIS PAY AND ALLOWANCES SOLELY BY REASON OF THE FACT THAT THE NUMBER OF REAR ADMIRALS MAY FOR ANY REASON BE REDUCED.

HOWEVER, SECTION 426 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 880, EXPRESSLY REPEALED THE SAID SECTION 2 OF THE ACT OF JUNE 30, 1942, AND IN LIEU OF THE FIRST PROVISO THEREIN THERE WAS ENACTED SECTION 311 (D) (14), 61 STAT. 858, WHICH READS AS FOLLOWS:

OFFICERS OF THE STAFF CORPS SERVING IN THE GRADE OF REAR ADMIRAL SHALL RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF FROM THE DATE ON WHICH THEIR RESPECTIVE RUNNING MATES ENTER THE UPPER HALF OF THE LIST OF REAR ADMIRALS, BUT NOT PRIOR TO THE DATE OF THE VACANCY THE STAFF OFFICER WAS PROMOTED TO FILL.

IT IS SUGGESTED THAT BY VIRTUE OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1942, REAR ADMIRAL CALVER BECAME "VESTED" WITH THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF AND THAT THE OFFICER PERSONNEL ACT OF 1947 DOES NOT SPECIFICALLY "DIVEST" STAFF OFFICERS IN THE STATUS OF REAR ADMIRAL CALVER OF THE RIGHT TO CONTINUE ON AND AFTER AUGUST 7, 1947, TO RECEIVE THE PAY AND ALLOWANCES TO WHICH THEY BECAME ENTITLED UNDER SECTION 2 OF THE ACT OF JUNE 30, 1942, NOTWITHSTANDING THE EXPRESS REPEAL OF SAID SECTION 2 BY SECTION 426 (A) OF THE 1947 ACT.

THE ACT OF JUNE 30, 1942, 56 STAT. 463, ENTITLED " AN ACT TO PROVIDE FOR THE BETTER ADMINISTRATION OF OFFICER PERSONNEL OF THE NAVY AND MARINE CORPS DURING THE EXISTING WAR, AND FOR OTHER PURPOSES" SUSPENDED THE PROVISIONS OF THEN EXISTING LAW INSOFAR AS THEY RELATED, INTER ALIA, TO THE PERMANENT PROMOTION OR ADVANCEMENT OF OFFICERS OF THE NAVY AND MARINE CORPS. SECTION 2 OF THE SAID ACT CHANGED THE BASIS PRESCRIBED IN SECTION 18 OF THE ACT OF JUNE 10, 1926, 44 STAT. 724 (34 U.S.C. 348Q), FOR DETERMINING ENTITLEMENT OF REAR ADMIRALS OF THE STAFF CORPS TO THE PAY AND ALLOWANCES OF THE UPPER HALF BY PROVIDING THAT OFFICERS OF THE STAFF CORPS SERVING IN THE RANK OF REAR ADMIRAL SHOULD BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF "WHEN A LINE OFFICER WHO WAS HIS JUNIOR IN THE RANK FROM WHICH THE STAFF OFFICER CONCERNED WAS ADVANCED BECOMES ENTITLED TO SUCH PAY AND ALLOWANCES" BUT NOT EARLIER THAN THE DATE THE STAFF OFFICER WAS APPOINTED TO THE RANK OF REAR ADMIRAL. THE LAST PROVISO IN THE SAID SECTION 2 PROVIDED THAT NO OFFICER WHO HAD OR MIGHT BECOME ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF SHOULD SUFFER A REDUCTION OF HIS PAY AND ALLOWANCES SOLELY BY REASON OF THE FACT THAT THE NUMBER OF REAR ADMIRALS MIGHT SOLELY BY REASON OF THE FACT THAT THE NUMBER OF REAR ADMIRALS MIGHT FOR ANY REASON BE REDUCED. HOWEVER, SECTION 426 (A) OF THE OFFICER PERSONNEL ACT OF 1947, PUBLIC LAW 381, APPROVED AUGUST 7, 1947, EXPRESSLY REPEALED IN SECTION 2--- INSOFAR AS IT RELATED TO THE NAVY AND MARINE CORPS. SECTION 311 (D) (14) OF THE SAID 1947 ACT, SUPRA, PRESCRIBES A NEW BASIS FOR DETERMINING ENTITLEMENT OF STAFF OFFICERS TO UPPER HALF PAY BY PROVIDING THAT OFFICERS OF THE STAFF CORPS SERVING IN THE GRADE OF REAR ADMIRAL SHALL RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF "FROM THE DATE ON WHICH THEIR RESPECTIVE RUNNING MATES ENTER THE UPPER HALF OF THE LIST OF REAR ADMIRALS.' SUCH PROVISION IN SECTION 311 (D) (14) IS SUBSTANTIALLY SIMILAR TO THAT CONTAINED IN THE PRIOR ACT OF JUNE 10, 1926, AS AMENDED, RESPECTING ENTITLEMENT OF OFFICERS OF THE STAFF CORPS TO PAY AND ALLOWANCES OF THE UPPER HALF--- NOW REPEALED BY SECTION 436 (D) OF THE 1947 ACT, 61 STAT. 882, HENCE, IT SEEMS CLEAR THAT REAR ADMIRAL CALVER IS NOT ENTITLED ON OR AFTER AUGUST 7, 1947, TO CONTINUE TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF UNLESS THE LINE OFFICER RUNNING MATE ASSIGNED TO HIM PURSUANT TO THE 1947 ACT IS A REAR ADMIRAL OF THE UPPER HALF OF THE LIST OF REAR ADMIRALS, OR UNLESS THE SAID ACT OF AUGUST 7, 1947, CONTAINS AN EXPRESSED OR IMPLIED SAVINGS PROVISION SAVING SUCH OFFICERS FROM REDUCTION IN PAY AND ALLOWANCES BELOW THAT TO WHICH THEY WERE ENTITLED PRIOR TO ENACTMENT OF THE SAID ACT OF AUGUST 7, 1947.

ONE OF THE PRIMARY PURPOSES OF THE OFFICER PERSONNEL ACT OF 1947 WAS TO REESTABLISH A PERMANENT PROMOTION SYSTEM FOR THE NAVY REPLACING THAT SUSPENDED DURING THE WAR BY THE ACT OF JUNE 30, 1942. TO ACCOMPLISH SUCH PURPOSE, THE OFFICER PERSONNEL ACT OF 1947, INSOFAR AS IT RELATES TO THE NAVY, IS DIVIDED INTO FOUR TITLES. TITLES I AND II DEAL WITH THE PERMANENT PROVISIONS RELATING TO OFFICERS OF THE LINE AND OFFICERS OF THE STAFF CORPS OF THE NAVY, RESPECTIVELY; TITLE III DEALS WITH THE TERMINABLE PROVISIONS RELATING TO ALL OFFICERS OF THE NAVY ON ACTIVE DUTY; AND TITLE IV DEALS WITH MISCELLANEOUS PROVISIONS. TITLES I AND II OF THE SAID ACTS- -- WITH THE EXCEPTION OF CERTAIN SECTIONS--- DO NOT BECOME EFFECTIVE UNTIL THE TERMINATION OF TITLE III OF THE ACT, WHICH TERMINATES WHEN THE PRESIDENT SHALL DETERMINE THAT THE NUMBER OF OFFICERS HOLDING PERMANENT APPOINTMENTS ON THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY IS EQUAL TO 95 PERCENT OF THE NUMBER OF SUCH OFFICERS AUTHORIZED BY LAW, OR ON JANUARY 1, 1957, WHICHEVER SHALL OCCUR THE EARLIER. SECTION 304 (A), TITLE III, OF THE SAID ACT OF 1947, 61 STAT. 833, PROVIDES THAT NOT LATER THAN 30 DAYS AFTER DATE OF APPROVAL OF THIS ACT, THE SECRETARY OF THE NAVY SHALL ESTABLISH A SINGLE LINEAL LIST OF ALL THE OFFICERS OF THE GRADE OF ENSIGN AND ABOVE THE LINE OF THE NAVY AND NAVAL RESERVE ON ACTIVE DUTY ON THE DATE OF ESTABLISHMENT OF SUCH LIST, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, AND THAT SUCH LINEAL LIST SHALL CONSTITUTE THE ORDER OF SENIORITY OF SUCH OFFICERS AS OF THE DATE OF ITS ESTABLISHMENT. SECTION 304 (H) (1) OF THE SAID ACT, 61 STAT. 837, PROVIDES THAT AS SOON AS PRACTICABLE AFTER THE ESTABLISHMENT OF THE LINEAL LIST FOR LINE OFFICERS AS PRESCRIBED BY SUBSECTION (A), THE SECRETARY OF THE NAVY SHALL CONVENE A BOARD WHICH SHALL RECOMMEND THE ASSIGNMENT OF RUNNING MATES FROM AMONG LINE OFFICERS ON SUCH LIST TO OFFICERS OF THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND ABOVE OF THE VARIOUS STAFF CORPS OF THE NAVY OR NAVAL RESERVE ON ACTIVE DUTY ON THE DATE OF ESTABLISHMENT OF SUCH LINEAL LIST, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. SECTIONS 304 (H) (2) A AND 304 (H) (2) D OF THE SAID ACT, 61 STAT. 837, PROVIDE THAT EACH STAFF OFFICER SHALL BE ASSIGNED AS HIS RUNNING MATE A LINE OFFICER WHO, ON THE DATE OF APPROVAL OF THIS ACT, IS SERVING IN THE SAME GRADE AS SUCH STAFF OFFICER, EXCEPT THAT A STAFF OFFICER WHO ON THE DATE OF APPROVAL OF THIS ACT IS SERVING UNDER A "TEMPORARY APPOINTMENT * * * IN A GRADE TO WHICH APPOINTED FOR A PERIOD OF LIMITED DURATION" (DEFINED IN SECTION 302 (A) OF THE ACT, 61 STAT. 829, AS MEANING A TEMPORARY APPOINTMENT WHICH, BY ITS TERMS, IS OF LIMITED DURATION), SHALL BE ASSIGNED A RUNNING MATE BASED UPON THE RANK AND PRECEDENCE HE WOULD HAVE HELD HAD HE NOT BEEN SO SERVING. THE TEMPORARY PROMOTION OF REAR ADMIRAL CALVER ON OCTOBER 9, 1945, FROM CAPTAIN (PERMANENT) TO REAR ADMIRAL (TEMPORARY) WAS MADE PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED,"TO CONTINUE WHILE SERVING AS MEDICAL OFFICER IN ATTENDANCE ON THE CONGRESS.' HENCE, SINCE REAR ADMIRAL CALVER WAS SERVING UNDER A TEMPORARY APPOINTMENT "IN A GRADE TO WHICH APPOINTED FOR A PERIOD OF LIMITED DURATION," IT IS APPARENT, AS STATED IN YOUR LETTER, THAT HE WILL BE--- OR HAS BEEN--- ASSIGNED A LINE OFFICER RUNNING MATE BASED UPON HIS PERMANENT RANK OF CAPTAIN, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 304 (H) (2) D OF THE 1947 ACT; AND, SINCE REAR ADMIRALS OF THE STAFF CORPS ARE ENTITLED UNDER SECTION 311 (D) (14) OF THE SAID ACT TO THE PAY AND ALLOWANCES OF THE UPPER HALF OF THE LIST OF REAR ADMIRALS," IT IS CLEAR THAT THERE IS NO LEGAL BASIS UPON WHICH IT MAY BE CONCLUDED THAT HE IS ENTITLED, WHILE ON THE ACTIVE LIST, TO CONTINUE TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED FOR REAR ADMIRALS OF THE UPPER HALF ON OR AFTER AUGUST 7, 1947, BY VIRTUE OF ANY OF THE ABOVE-CITED PROVISIONS OF LAW.

HOWEVER, IT IS SUGGESTED THAT SECTION 2 OF THE ACT OF JUNE 30, 1942, WAS INTENDED TO "CONFER A VESTED RIGHT TO PAY AND ALLOWANCES OF THE UPPER HALF" AND THAT THE REPEAL OF SAID SECTION WAS NOT INTENDED TO "TAKE AWAY RIGHTS OR BENEFITS LEGALLY DERIVED UNDER OTHER PROVISIONS OF LAW IN EFFECT AT THE TIME SUCH RIGHTS OR BENEFITS WERE ACQUIRED.' IT MAY BE STATED IN THAT CONNECTION THAT, WHILE SECTION 2 OF THE ACT OF JUNE 30, 1942, PRESCRIBED THE BASIS UPON WHICH REAR ADMIRALS OF THE STAFF CORPS WERE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF, THE SAID SECTION 2 DID NOT CONFER UPON OFFICERS MEETING THE CONDITIONS SET FORTH THEREIN A "VESTED" RIGHT WHICH COULD NOT BE "DIVESTED" BY THE REPEAL OF SUCH PROVISION OF LAW, SINCE THE CONGRESS UNQUESTIONABLY HAS THE POWER TO FIX THE RATES OF PAY AND ALLOWANCES AT WILL, AND TO PRESCRIBE THE CONDITIONS UNDER WHICH SPECIFIED RATES OF PAY AND ALLOWANCES MAY BE PAID TO CERTAIN CLASSES OF OFFICERS. THE OFFICER PERSONNEL ACT OF 1947 EXPRESSLY REPEALED SECTION 2 OF THE ACT OF JUNE 30, 1942--- INCLUDING THE SAVINGS CLAUSE CONTAINED IN THE LAST PROVISION OF THE SAID SECTION 2--- UNDER WHICH REAR ADMIRAL CALVER BECAME ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF, AND ENACTED IN LIEU THEREOF A NEW PROVISION OF LAW PRESCRIBING THE BASIS UPON WHICH REAR ADMIRALS OF THE STAFF CORPS THEREAFTER MAY RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF. SUCH PROVISION OF LAW BECAME EFFECTIVE AUGUST 7, 1947, AND MUST BE REGARDED AS CONTROLLING ON AND AFTER THAT DATE. IT SEEMS TO HAVE BEEN RECOGNIZED THAT THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, REESTABLISHING A PERMANENT PROMOTION SYSTEM IN THE NAVY, REDISTRIBUTING OFFICERS IN THE VARIOUS GRADES, TERMINATING TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, ETC., NECESSARILY WOULD RESULT IN A REDUCTION IN RANK OF SOME OFFICERS OF STAFF CORPS, AS WELL AS OFFICERS OF THE STAFF CORPS, AS WELL AS OFFICERS OF THE LINE, SERVING UNDER TEMPORARY APPOINTMENTS IN HIGHER GRADES AND RANKS, WITH A CONSEQUENT REDUCTION IN PAY AND ALLOWANCES. YET NO ATTEMPT APPEARS TO HAVE BEEN MADE BY EITHER THE NAVY DEPARTMENT OR THE CONGRESS TO INCORPORATE IN SUCH LEGISLATION AN EXPRESS SAVINGS PROVISION SUCH AS THAT OFTEN CONTAINED IN STATUTES DEALING WITH PAY AND ALLOWANCES OF MEMBERS OF THE ARMED FORCES, SAVING PERSONNEL ADVERSELY AFFECTED BY THE NEW LEGISLATION FROM ANY REDUCTION IN PAY AND ALLOWANCES BELOW THAT TO WHICH THEY WERE ENTITLED UNDER PRIOR STATUTES. WHILE THE SAID ACT DOES CONTAIN CERTAIN SAVINGS PROVISIONS, THEY DO NOT RELATE TO PAY AND ALLOWANCES. FOR EXAMPLE, SECTION 304 (I) OF THE SAID ACT, 61 STAT. 837, PROVIDES THAT OFFICERS OF ANY STAFF CORPS WHO, ON THE DATE OF ESTABLISHMENT OF THE LINEAL LIST OF OFFICERS OF THE STAFF CORPS, ARE SERVING UNDER A TEMPORARY APPOINTMENT IN GRADE TO WHICH APPOINTED FOR A PERIOD OF LIMITED DURATION, SHALL RETAIN THE "LINEAL POSITION" TO WHICH THEY ARE ENTITLED BY VIRTUE OF SUCH APPOINTMENT UNTIL THE EXPIRATION OF THE TERM THEREOF. BUT, A REAR ADMIRAL OF THE STAFF CORPS IS NOT ENTITLED UNDER THE 1947 ACT TO UPPER HALF PAY ON THE BASIS OF HIS "LINEAL POSITION" ON THE LIST OF OFFICERS OF THE STAFF CORPS, BUT ONLY UPON THE BASIS OF THE DATE THAT HIS LINE OFFICER RUNNING MATE ENTERS THE UPPER HALF OF THE LIST OF REAR ADMIRALS. ALSO, SECTION 304 (K), 61 STAT. 838, CONTAINS A PROVISO THAT THE EXISTING TEMPORARY APPOINTMENT OF ANY STAFF CORPS OFFICER PLACED ON THE LINEAL LIST WHO IS SERVING UNDER A TEMPORARY APPOINTMENT FOR A PERIOD OF LIMITED DURATION, SHALL BE CONTINUED IN EFFECT UNTIL SUCH APPOINTMENT SHALL TERMINATE BY ITS OWN TERMS OR UNTIL SUCH APPOINTMENT IS TERMINATED BY THE PRESIDENT. THE APPARENT PURPOSE OF SUCH PROVISO WAS TO EXEMPT SUCH TEMPORARY APPOINTMENTS FROM THE OPERATION OF THE PROVISION IN SECTION 302 (I) OF THE SAID ACT, 61 STAT. 831, REQUIRING THAT NOT LATER THAN THE FIRST DAY OF THE FOURTH MONTH FOLLOWING THE DATE OF APPROVAL OF THIS ACT, ALL TEMPORARY APPOINTMENTS OF NAVAL PERSONNEL MADE PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, SHALL BE TERMINATED, EXCEPT THOSE WHICH ARE AFFIRMED OR CONTINUED IN EFFECT PURSUANT TO THE NEW ACT; BUT THERE IS NOTHING IN SUCH PROVISION WHICH MAY BE VIEWED AS SAVING OR INTENDING TO SAVE A TEMPORARY REAR ADMIRAL THE PAY OF THE UPPER HALF WHEN HE DOES NOT QUALIFY FOR UPPER HALF PAY UNDER OTHER PROVISIONS OF THE SAID ACT.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF A SAVINGS PROVISION SUCH AS THAT SOMETIMES EXPRESSLY INCLUDED IN LEGISLATION PERTAINING TO THE PAY AND ALLOWANCES OF MEMBERS OF THE ARMED FORCES, THIS OFFICE IS NOT WARRANTED IN CONCLUDING THAT REAR ADMIRAL CALVER IS ENTITLED, WHILE ON THE ACTIVE LIST, TO CONTINUE TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF UNDER THE CIRCUMSTANCES PRESENTED IN YOUR LETTER. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION PRESENTED INVOLVES THE RIGHT OF REAR ADMIRAL CALVER, IN THE EVENT OF HIS RETIREMENT UNDER SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, AND SUBSEQUENT RECALL TO ACTIVE DUTY, TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF. SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 27, AUTHORIZES OFFICERS OF THE NAVY MARINE CORPS, AND COAST GUARD, WHO HAVE COMPLETED 20 YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS OR COAST GUARD, OR RESERVE COMPONENTS THEREOF, AT LEAST 10 YEARS OF WHICH SHALL BE ACTIVE COMMISSIONED SERVICE, TO BE PLACED ON THE RETIRED LIST WITH THE PAY PROVIDED IN SECTION 7 OF THE SAID ACT. SECTION 7 OF THE ACT, AS AMENDED BY SECTION 432 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 881, PROVIDES AS FOLLOWS:

SEC. 7. (A) EACH OFFICER RETIRED PURSUANT TO THE FOLLOWING 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 THAN HIS PERMANENT RANK. * * * AND PROVIDED FURTHER, THAT IN THE CASE OF OFFICERS HEREAFTER RETIRED, EXCEPT THOSE RETIRED FOR PHYSICAL DISABILITY OR IN ACCORDANCE WITH SECTION 412 OF THIS ACT, WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE THEY SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY IN THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT IN THE GRADE OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS AT THE TIME OF THEIR RETIREMENT, BUT RETIRED PAY SO COMPUTED SHALL NOT EXCEED A TOTAL OF 75 PERCENTUM OF SAID 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.

SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 28, PROVIDES AS FOLLOWS:

SEC. 10 (A) * * *

(B) (1) * * *

(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.

(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.

THE PURPOSE OF SUCH PROVISIONS IN SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, APPEARS TO BE TO PERMIT OFFICERS TEMPORARILY APPOINTED TO HIGHER GRADES OR RANKS PURSUANT TO THAT ACT TO BE RETIRED WITH THE HIGHEST RANK IN WHICH THEY SERVED SATISFACTORILY ON OR PRIOR TO JUNE 30, 1946, AND TO HAVE THEIR RETIRED PAY BASED UPON SUCH TEMPORARY RANK, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE OR RANK OR RETIRED PAY UNDER PROVISIONS OF LAW. WHILE THE RANK OF REAR ADMIRAL ON THE ACTIVE LIST IS A SINGLE RANK, IT IS DIVIDED FOR PAY PURPOSES INTO TWO GRADES--- THAT OF UPPER HALF AND LOWER HALF. A REAR ADMIRAL ON THE ACTIVE LIST OF THE NAVY SERVING SATISFACTORILY UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, AS AMENDED, WHO RECEIVE THE PAY AND ALLOWANCES AUTHORIZED FOR REAR ADMIRALS OF THE UPPER HALF PRIOR TO JUNE 30, 1946, WOULD BE ENTITLED, IN THE EVENT HE WAS RETIRED ON OR PRIOR TO THAT DATE WHILE SERVING ON ACTIVE DUTY UNDER SUCH TEMPORARY APPOINTMENT, TO RECEIVE RETIRED PAY BASED ON THE PAY OF A REAR ADMIRAL OF THE UPPER HALF. CF. 26 COMP. GEN. 333. THE STATUTE IN THAT RESPECT OBVIOUSLY WAS NOT INTENDED TO MAKE ANY DISTINCTION BETWEEN REAR ADMIRALS ON THE ACTIVE LIST OF THE NAVY SERVING UNDER TEMPORARY APPOINTMENTS AND RECEIVING THE PAY AND ALLOWANCES OF THE UPPER HALF WHO WERE RETIRED ON OR PRIOR TO JUNE 30, 1946, AND THOSE RETIRED AFTER THAT DATE. CONSEQUENTLY, IN THE EVENT REAR ADMIRAL CALVER IS RETIRED UNDER THE STATUTORY PROVISIONS, SUPRA, AND OTHERWISE MEETS THE CONDITION OF THE STATUTE, HE WILL BE ENTITLED TO RETIRED PAY BASED UPON THE RANK AND PAY GRADE HE HELD ON JUNE 30, 1946, THAT IS, REAR ADMIRAL, UPPER HALF.

SECTION 10 (D) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA, SPECIFICALLY REQUIRES THAT PERSONNEL ACCORDED HIGHER RANK UNDER THAT SECTION SHALL, IF SUBSEQUENTLY ASSIGNED TO ACTIVE DUTY, BE RECALLED TO ACTIVE DUTY IN THE GRADES, RANKS OR RATINGS WITH WHICH THEY WERE RETIRED. SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED, 57 STAT. 571, PROVIDES THAT RETIRED OFFICERS OF THE NAVY WHEN ON ACTIVE DUTY SHALL "RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY.' IT HAS BEEN RECOGNIZED THAT AN OFFICER WHO, WHILE ON THE ACTIVE LIST OF THE NAVY, HOLDING THE PERMANENT RANK OF CAPTAIN, HAD BEEN TEMPORARILY APPOINTED UNDER THE SAID ACT OF JUNE 24, 1941, TO THE RANK OF REAR ADMIRAL AND WHO SERVED IN SUCH HIGHER TEMPORARY RANK AND WAS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF PRIOR TO JUNE 30, 1946, WOULD BE ENTITLED, IN THE EVENT OF HIS RECALL TO ACTIVE DUTY SUBSEQUENT TO RETIREMENT WITH SUCH HIGHER RANK, TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF. 26 COMP. GEN. 636, 642. ALSO, SEE 19 COMP. GEN. 433, 22 ID. 328; 24 ID. 707; B 34053, AUGUST 10, 1943; B-25867, JUNE 22, 1942; A-10641, JANUARY 26, 1942. CF. 26 COMP. GEN. 271, 275. ACCORDINGLY, IN THE EVENT REAR ADMIRAL CALVER IS RETIRED IN HIS TEMPORARY RANK OF REAR ADMIRAL AND RECALLED TO ACTIVE DUTY AND SERVES ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL, HE WILL BE ENTITLED TO THE ACTIVE PAY AND ALLOWANCES AUTHORIZED FOR A REAR ADMIRAL OF THE UPPER HALF. QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE.