B-72728, FEBRUARY 19, 1948, 27 COMP. GEN. 458

B-72728: Feb 19, 1948

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WAS RETIRED FROM THE SAID SERVICE PURSUANT TO THE PROVISIONS OF CERTAIN REGULATIONS ISSUED OR APPROVED BY THE COMMANDANT. SPRAGUE WAS RETIRED AFTER ONLY FIVE YEARS OF SERVICE. APPARENTLY BASED ON SUCH SERVICE IT IS PROPOSED TO PAY MR. THE PARTICULAR ADMINISTRATIVE REGULATIONS UNDER WHICH IT IS PROPOSED TO PAY MR. SPRAGUE SUCH RETIRED PAY ARE IDENTIFIED AS ARTICLE 1802. IT IS STATED THAT THE QUOTED PROVISIONS OF THE MARITIME SERVICE REGULATIONS WERE ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 310.21 (D) OF WAR SHIPPING ADMINISTRATION GENERAL ORDER 23. THE STATUTORY AUTHORITY CITED FOR THE ISSUANCE OF THE SAID GENERAL ORDER 23 IS SECTION 216 (A) OF THE MERCHANT MARINE ACT OF 1936.

B-72728, FEBRUARY 19, 1948, 27 COMP. GEN. 458

PAY - RETIRED - ENROLLEES OF MARITIME SERVICE THE PROVISIONS OF SECTION 216 (A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, AUTHORIZING THE MARITIME COMMISSION TO FIX THE RATES OF "PAY" OF ENROLLEES AND PROVIDING THAT THE "RANKS, GRADES, AND RATINGS" OF SUCH ENROLLEES SHALL BE THE SAME AS THOSE PRESCRIBED FOR COAST GUARD PERSONNEL, CONSTITUTE NO BASIS FOR THE ADMINISTRATIVE PROMULGATION OF REGULATIONS PURPORTING TO ESTABLISH A PENSION OR RETIREMENT SYSTEM WITH PAY FOR MARITIME SERVICE ENROLLEES.

ACTING COMPTROLLER GENERAL YATES TO JAMES H. GILMAN, UNITED STATES MARITIME COMMISSION, FEBRUARY 19, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 7, 1948, REFERENCE 4201- 1169 DEC AND OPS/18L2, WITH ENCLOSURES, REQUESTING DECISION RESPECTING THE PAYMENT OF RETIRED PAY TO LEE J. SPRAGUE, AS A LIEUTENANT (JG), UNITED STATES MARITIME SERVICE, ON THE ATTACHED VOUCHER WHICH HAS BEEN PRESENTED TO YOU FOR CERTIFICATION.

THE INFORMATION FURNISHED IN SUPPORT OF THE PROPOSED PAYMENT DISCLOSES THAT MR. SPRAGUE, AN ENROLLEE OF THE MARITIME SERVICE, REACHED HIS 64TH BIRTHDAY ON JANUARY 12, 1947, AND, EFFECTIVE DECEMBER 1, 1947, WAS RETIRED FROM THE SAID SERVICE PURSUANT TO THE PROVISIONS OF CERTAIN REGULATIONS ISSUED OR APPROVED BY THE COMMANDANT, UNITED STATES MARITIME SERVICE, UNDER DATE OF SEPTEMBER 1, 1947. THE PAPERS SUBMITTED HERE FURTHER DISCLOSE THAT MR. SPRAGUE WAS RETIRED AFTER ONLY FIVE YEARS OF SERVICE, ALL PRESUMABLY RENDERED AS AN ENROLLEE OF THE MARITIME SERVICE--- NO SERVICE IN ANY OTHER CAPACITY WITH THE FEDERAL GOVERNMENT HAVING BEEN SHOWN. THE SUBMITTED VOUCHER COVERS THE PROPOSED PAYMENT OF RETIRED PAY AT THE RATE OF $157.50 PER MONTH FOR THE MONTH OF DECEMBER, 1947, AND APPARENTLY BASED ON SUCH SERVICE IT IS PROPOSED TO PAY MR. SPRAGUE SUCH RETIRED PAY OR PENSION THE REST OF HIS LIFE.

THE PARTICULAR ADMINISTRATIVE REGULATIONS UNDER WHICH IT IS PROPOSED TO PAY MR. SPRAGUE SUCH RETIRED PAY ARE IDENTIFIED AS ARTICLE 1802, INSTRUCTIONS FOR THE UNITED STATES MARITIME SERVICE, 1942 ( REVISED), AS AMENDED SEPTEMBER 1, 1947, AND ARTICLES 183 (1) AND (5), PAY AND SUPPLY INSTRUCTIONS, UNITED STATES MARITIME COMMISSION, TRAINING DIVISION, AS AMENDED SEPTEMBER 1, 1947, WHICH RESPECTIVELY PROVIDE AS FOLLOWS:

ARTICLE 1802. WHEN ANY COMMISSIONED OFFICER, OR ENLISTED MAN IN THE U.S. MARITIME SERVICE HAS REACHED THE AGE OF 62 YEARS, HE SHALL BE RETIRED BY THE COMMANDANT WITH THE APPROVAL OF THE CHAIRMAN, FROM ACTIVE SERVICE ON THE FIRST DAY OF THE FOLLOWING MONTH.

ARTICLE 183. (1) OFFICERS, GENERAL.--- AN OFFICER RETIRED FROM ACTIVE SERVICE FOR AGE, PHYSICAL DISABILITY, OR UPON COMPLETION OF 30 YEARS' GOVERNMENT SERVICE SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT, EXCEPT AS OTHERWISE PROVIDED HEREIN.

ARTICLE 183. (5) OFFICERS RETIRED IN TEMPORARY RANK AT AGE62.--- ANY OFFICER OF THE MARITIME SERVICE BELOW THE GRADE OF VICE ADMIRAL TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF SIXTY-TWO YEARS WHILE SERVING UNDER A TEMPORARY ENROLLMENT SHALL BE RETIRED IN SUCH TEMPORARY GRADE OR RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT, UNLESS OTHERWISE ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK. IT IS STATED THAT THE QUOTED PROVISIONS OF THE MARITIME SERVICE REGULATIONS WERE ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 310.21 (D) OF WAR SHIPPING ADMINISTRATION GENERAL ORDER 23, REVISED, AS AMENDED--- SUBSEQUENTLY ADOPTED BY THE UNITED STATES MARITIME COMMISSION--- WHICH PROVIDES:

(D) RETIREMENT AND DISABILITY PAY FOR OFFICERS AND ENLISTED MEN SHALL BE ALLOWED UNDER LAWS, RULES, AND REGULATIONS NOW OR HEREAFTER APPLICABLE TO THE COAST GUARD. ALL SERVICE UNDER THE FEDERAL GOVERNMENT SHALL COUNT TOWARD RETIREMENT AND IN THE COMPUTATION OF RETIREMENT PAY.

THE STATUTORY AUTHORITY CITED FOR THE ISSUANCE OF THE SAID GENERAL ORDER 23 IS SECTION 216 (A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED BY THE ACT OF AUGUST 4, 1939, 53 STAT. 1182, 1183, 46 U.S.C. 1126, WHICH READS AS FOLLOWS:

THE COMMISSION IS HEREBY AUTHORIZED AND DIRECTED, UNDER SUCH RULES AND REGULATIONS AS IT MAY PRESCRIBE, TO ESTABLISH AND MAINTAIN THE UNITED STATES MARITIME SERVICE AS A VOLUNTARY ORGANIZATION FOR THE TRAINING OF CITIZENS OF THE UNITED STATES TO SERVE AS LICENSED AND UNLICENSED PERSONNEL ON AMERICAN MERCHANT VESSELS. THE COMMISSION IS AUTHORIZED TO DETERMINE THE NUMBER OF PERSONS TO BE ENROLLED IN THE SAID SERVICE, TO FIX THE RATES OF PAY OF SUCH PERSONS, AND TO PRESCRIBE SUCH COURSES AND PERIODS OF TRAINING AS, IN ITS DISCRETION, IS NECESSARY TO MAINTAIN A TRAINED AND EFFICIENT MERCHANT MARINE PERSONNEL. THE RANKS, GRADES, AND RATINGS FOR THE PERSONNEL OF THE SAID SERVICE SHALL BE FOR THE SAME AS ARE NOW OR SHALL HEREAFTER BE PRESCRIBED FOR THE PERSONNEL OF THE COAST GUARD. THE COMMISSION IS FURTHER AUTHORIZED TO EMPLOY AS INSTRUCTORS IN SAID SERVICE, ON A CONTRACT OR FEE BASIS (WITHOUT REGARD TO THE PROVISIONS OF SECTION 3709 OF THE REVISED STATUTES), SUCH QUALIFIED PERSONS, INCLUDING LICENSED AND UNLICENSED PERSONNEL OF THE MERCHANT MARINE, AS THE COMMISSION MAY DEEM NECESSARY TO EFFECTUATE THE PURPOSE OF THIS SECTION.

IT HAS BEEN THE SETTLED PRACTICE OF THE CONGRESS WHEN IT INTENDED TO AUTHORIZE THE PAYMENT OF FEDERAL FUNDS TO OFFICERS OR EMPLOYEES THEREOF, EITHER MILITARY OR CIVILIAN, UPON TERMINATION OF THEIR ACTIVE DUTY STATUS IN THE FORM OF RETIRED PAY, ANNUITIES, OR PENSION, TO EXPRESSLY SO PROVIDE BY STATUTE. ALSO, SUCH STATUTORY PROVISIONS USUALLY SET FORTH THE SPECIFIC CONDITIONS UNDER WHICH SUCH PAYMENTS ARE TO BE MADE AND THE RATES OF SUCH PAY. FURTHER, IT HAS BEEN THE INVARIABLE RULE THAT WHEN THE CONGRESS HAS SEEN FIT TO AUTHORIZE SUCH MONETARY BENEFITS IT SPECIFICALLY HAS APPROPRIATED FUNDS FOR SUCH PURPOSES. IN THAT CONNECTION, IT WILL BE NOTED THAT THE STATUTORY PROVISION RELIED UPON AS THE BASIS FOR THE ADMINISTRATIVE REGULATIONS ESTABLISHING A SYSTEM FOR THE RETIREMENT WITH PAY FROM THE MARITIME SERVICE OF PERSONS ENROLLED THEREUNDER CONTAINS NO EXPRESS PROVISION FOR THE RETIREMENT WITH PAY OF SUCH ENROLLEES. HENCE, NO AUTHORITY FOR THE RETIREMENT WITH PAY OF ENROLLEES IN THE MARITIME SERVICE UNDER THE REFERRED-TO STATUTORY PROVISIONS CAN BE SAID TO EXIST UNLESS IT CAN BE ESTABLISHED AS ARISING BY CLEAR IMPLICATION FROM THE LANGUAGE CONTAINED THEREIN.

UNDER SECTION 216 (A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, SUPRA, THE MARITIME COMMISSION IS AUTHORIZED, INTER ALIA, TO "DETERMINE THE NUMBER OF PERSONS TO BE ENROLLED IN SUCH SERVICE" AND TO "FIX THE RATES OF PAY OF SUCH PERSONS.' ALSO, IT IS PROVIDED THAT "THE RANKS, GRADES, AND RATINGS FOR THE PERSONNEL OF THE SAID SERVICE SHALL BE THE SAME AS NOW OR SHALL HEREAFTER BE PRESCRIBED FOR THE PERSONNEL OF THE COAST GUARD.' IT LONG HAS BEEN RECOGNIZED IN MATTERS PERTAINING TO PERSONNEL OF THE MILITARY AND NAVAL SERVICES THAT THE TERMS "PAY" AND "PAY AND ALLOWANCES" REFER ONLY TO THE PAY AND ALLOWANCES AUTHORIZED FOR SUCH PERSONNEL WHILE IN AN ACTIVE DUTY STATUS AND HAVE NO REFERENCE TO THE MONETARY BENEFITS AUTHORIZED BY LAW UPON THE TERMINATION OF AN ACTIVE DUTY STATUS, WHICH BENEFITS VARIOUSLY ARE IDENTIFIED AS "RETIRED PAY," ,RETAINER PAY," "PENSION," ETC. CF. DECISION OF DECEMBER 9, 1947, B-69958, 27 COMP. GEN. 322, AND AUTHORITIES CITED THEREIN. CONSEQUENTLY, THE LANGUAGE OF SECTION 216 (A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, SUPRA, AUTHORIZING THE COMMISSION TO FIX THE RATES OF "PAY" OF ENROLLEES, STANDING ALONE, REASONABLY MAY NOT BE VIEWED AS EVIDENCING ANY INTENT ON THE PART OF THE CONGRESS TO CONFER DISCRETION ON THE COMMISSION TO ESTABLISH A PENSION OR RETIREMENT SYSTEM FOR ENROLLEES AND TO FIX RATES OF RETIRED PAY OR PENSIONS TO BE PAID THEREUNDER. AND NEITHER IS THERE FOUND ANYTHING IN THE LANGUAGE OF THE ABOVE-QUOTED PROVISION TO THE EFFECT THAT THE "RANKS, GRADES, AND RATINGS" OF SUCH ENROLLEES SHALL BE THE SAME AS THOSE PRESCRIBED FOR THE COAST GUARD WHICH REMOTELY MIGHT BE CONSIDERED AS IMPLIEDLY PROVIDING A STATUTORY BASIS FOR THE ESTABLISHMENT OF SUCH A RETIREMENT SYSTEM. FURTHERMORE, THERE HAS BEEN NO APPROPRIATION BY THE CONGRESS OF FUNDS FROM WHICH PAYMENT OF RETIRED PAY SPECIFICALLY IS AUTHORIZED.

IT IS UNDERSTOOD THAT THE INSTANT MATTER REPRESENTS THE FIRST CASE WHICH HAS ARISEN UNDER THE RECENTLY ISSUED ADMINISTRATIVE REGULATIONS RESPECTING RETIREMENT OF ENROLLEES OF THE MARITIME SERVICE AND THAT THE DISPOSITION THEREOF WILL SERVE AS A PRECEDENT FOR THE ACTION TO BE TAKEN IN SUCH OTHER RETIREMENT CASES AS MAY ARISE IN THE FUTURE. THE MATTER HAS BEEN GIVEN CAREFUL CONSIDERATION BUT THERE HAS BEEN FOUND NOTHING IN THE VARIOUS PROVISIONS OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, OR IN ITS LEGISLATIVE HISTORY WHICH DISCLOSES ANY INTENT ON THE PART OF THE CONGRESS TO AUTHORIZE THE MARITIME COMMISSION, IN ITS DISCRETION, BY ADMINISTRATIVE REGULATIONS, TO ESTABLISH A PENSION OR RETIREMENT SYSTEM FOR MARITIME SERVICE ENROLLEES OR THE PAYMENT OF PENSIONS OR RETIRED PAY TO SUCH ENROLLEES. IN THE ABSENCE OF A CLEAR SHOWING OF SUCH AN INTENT, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THERE EXISTS ANY STATUTORY AUTHORITY FOR THE PAYMENT OF RETIRED PAY TO MR. SPRAGUE OR ANY OTHER ENROLLEE OF THE MARITIME SERVICE.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THE FILES OF THIS OFFICE, IS NOT AUTHORIZED.