B-73346, JUNE 7, 1948, 27 COMP. GEN. 742

B-73346, JUNE 7, 1948, 27 COMP. GEN. 742

RETIREMENT - COAST GUARD OFFICERS - ADVANCEMENT IN RANK UPON RETIREMENT IN TEMPORARY RANK SECTION 3 OF THE ACT OF JANUARY 12, 1923, AUTHORIZING FOR COMMISSIONED OFFICERS OF THE COAST GUARD, RETIRED AFTER 40 YEARS' SERVICE, A ONE-GRADE ADVANCEMENT IN RANK AND RETIRED PAY OVER THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, OPERATES ONLY UPON THE PERMANENT RANK OF SUCH AN OFFICER AND NOT UPON A HIGHER TEMPORARY RANK IN WHICH RETIRED FOR AGE PURSUANT TO THE PROVISION OF SECTIONS 9 AND 10 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, APPLICABLE TO OFFICERS ATTAINING THE AGE OF 62 YEARS.

ASSISTANT COMPTROLLER GENERAL YATES TO T. A. SHANLEY, VICE ADMIRAL, USCG, RET., JUNE 7, 1948:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 19, 1948, AND DECEMBER 21, 1947, REQUESTING REVIEW OF SETTLEMENT OF THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, DATED DECEMBER 11, 1947, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RETIRED PAY OF A REAR ADMIRAL (LOWER HALF) AND THAT OF A VICE ADMIRAL FOR THE MONTH OF SEPTEMBER, 1947. THE SAID CLAIM WAS DISALLOWED ON THE BASIS THAT THE PROVISION IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, AUTHORIZING COMMISSIONED OFFICERS OF THE COAST GUARD WHO HAVE COMPLETED 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 INTENDED TO OPERATE ONLY UPON THE PERMANENT RANK OF OFFICERS OF THE COAST GUARD WHO OTHERWISE ARE ENTITLED TO ITS BENEFITS. IT IS YOUR CONTENTION THAT SAID SECTION 3 APPLIES TO ALL OFFICERS OF THE COAST GUARD, WITHOUT EXCEPTION, WHO HAVE COMPLETED 40 YEARS' SERVICE, AND IN SUPPORT OF SUCH CONTENTION YOU CITE THE CASE OF REYNOLDS V. UNITED STATES, 95 C.1CLS. 160.

IT APPEARS THAT YOU WERE APPOINTED A CAPTAIN (PERMANENT ( IN THE UNITED STATES COAST GUARD ON JULY 1, 1938; THAT YOU TEMPORARILY WERE APPOINTED A REAR ADMIRAL (LOWER HALF) ON APRIL 16, 1946; THAT YOU SERVED IN THAT RANK UNTIL AUGUST 31, 1947, AND THAT YOU WERE PLACED ON THE RETIRED LIST, EFFECTIVE SEPTEMBER 1, 1947, WITH THE HIGHEST TEMPORARY RANK--- REAR ADMIRAL (LOWER HALF/--- HELD BY YOU WHILE ON ACTIVE DUTY, PURSUANT TO THE PROVISIONS OF SECTIONS 9 AND 10 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED. SECTION 9 OF THE SAID ACT, 60 STAT. 28, AS AMENDED BY SECTION 432 (B) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 881, 34 U.S.C. 410D, READS, IN PERTINENT PART, AS FOLLOWS:

SEC. 9. WHEN ANY OFFICER OF THE REGULAR NAVY OR MARINE CORPS SERVING IN A RANK BELOW THAT OF FLEET ADMIRAL HAS ATTAINED THE AGE OF SIXTY-TWO YEARS, HE SHALL BE PLACED UPON THE RETIRED LIST BY THE PRESIDENT WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY AND WITH 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 HIS PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY * * *.

* * * PROVIDED FURTHER, THAT IN THE CASE OF AN OFFICER HEREAFTER RETIRED WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE HE SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE-DUTY PAY IN THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR CREDIT IN THE COMPUTATION OF PAY ON THE ACTIVE LIST HAD HE BEEN SERVING IN THE GRADE OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS AT THE TIME OF HIS RETIREMENT, BUT RETIRED PAY SO COMPUTED SHALL NOT EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY:

SECTION 10 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 29, EXTENDED THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, TO PERSONNEL OF THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY.

IN THE CASE OF REYNOLDS V. UNITED STATES, CITED IN SUPPORT OF YOUR CONTENTION, THE COURT CONSIDERED THE PROVISION IN SECTION 2 OF SAID ACT OF JANUARY 12, 1923, 42 STAT. 1130, IN CONJUNCTION WITH THE PROVISION IN SECTION 3 OF THE SAME ACT, THE FORMER SECTION PROVIDING THAT ANY OFFICER WHO SHOULD THEREAFTER SERVE AS COMMANDANT OF THE COAST GUARD SHOULD, WHEN RETIRED, BE RETIRED WITH THE RANK OF COMMANDANT AND WITH THE PAY OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY ON THE RETIRED LIST; THE LATTER SECTION PROVIDING THAT THEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD 40 YEARS' SERVICE SHOULD RETIRE, HE SHOULD BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT. IN ITS DECISION THE COURT CONCLUDED THAT THE PROVISION RELATING TO ALL OFFICERS OF THE COAST GUARD WHO MIGHT SERVE AS COMMANDANT AND THAT THE PROVISION IN SECTION 3 RESPECTING RETIREMENT AFTER 40 YEARS' SERVICE WAS INTENDED AS A SPECIAL PROVISION TO BE READ AS AN EXCEPTION TO SECTION 2 UNDER THE RULE OF STATUTORY CONSTRUCTION THAT WHERE THERE IS A GENERAL AND SPECIAL PROVISION IN THE SAME OR DIFFERENT STATUTES, IN APPARENT CONFLICT, THE SPECIAL PROVISION QUALIFIES THE GENERAL PROVISION AND SUPPLIES AN EXCEPTION. ARRIVING AT SUCH CONCLUSION THE COURT ATTACHED SOME SIGNIFICANCE TO THE FACT THAT THESE SECTIONS WERE PROVISIONS OF THE SAME STATUTE AND THAT SECTION 3, BEING LATER IN SEQUENCE, MUST HAVE BEEN INCLUDED WITH THE KNOWLEDGE THAT THERE WAS AN APPARENT CONFLICT BETWEEN THAT SECTION AND SECTION 2, SO THAT THE FAILURE OF THE CONGRESS TO PROVIDE ESPECIALLY THAT THE RETIREMENT PROVISIONS IN SECTION 2 WERE TO CONSTITUTE AN EXCEPTION TO THE 40-YEAR RETIREMENT PROVISION IN SECTION 3 INDICATED THAT THEY WERE NOT SO INTENDED. HOWEVER, IT WILL BE NOTED THAT THE COURT DID NOT CONSIDER THE QUESTION OF WHETHER THE PROVISIONS OF THE SAID SECTION 3 WOULD BE APPLICABLE TO OFFICERS WHO MIGHT BE RETIRED UNDER OTHER ENTIRELY SEPARATE STATUTES, SUCH AS THE ACT OF FEBRUARY 21, 1946, AS AMENDED, MAKING SPECIAL PROVISIONS FOR RETIREMENT WITH THE HIGHER TEMPORARY WARTIME RANKS AND GRADES, OR WHETHER SUCH VARIOUS SPECIAL PROVISIONS LEGALLY MAY BE PYRAMIDED. MOREOVER, THE COURT DISREGARDED THE FACT THAT THERE WAS NO LEGALLY EXISTING RANK OR GRADE OF VICE ADMIRAL IN THE COAST GUARD TO WHICH A REAR ADMIRAL COULD BE ADVANCED EITHER ON THE ACTIVE OR RETIRED LIST. CONSEQUENTLY, THE SAID REYNOLDS DECISION MAY NOT BE REGARDED AS CONTROLLING IN THE PRESENT CASE.

IN DECISION OF NOVEMBER 29, 1943, B-37727, 23 COMP. GEN. 393, THE SECRETARY OF THE NAVY PRESENTED THE QUESTION AS TO WHETHER A LIEUTENANT COMMANDER IN THE COAST GUARD RETIRED UNDER PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465 (MADE APPLICABLE TO THE COAST GUARD BY SECTION 8 THEREOF), WHICH PROVIDES ANY OFFICER OF THE REGULAR NAVY BELOW THE GRADE OF VICE ADMIRAL TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF 64 YEARS WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, SHOULD BE RETIRED IN SUCH TEMPORARY GRADE OR RANK WAS ENTITLED TO BE RETIRED WITH THE RANK AND PAY OF ONE GRADE HIGHER THAN HIS TEMPORARY RANK OF LIEUTENANT COMMANDER, BY VIRTUE OF PROVISIONS OF THE SAID SECTION 3 OF THE ACT OF JANUARY 12, 1923, IN THAT DECISION IT WAS SAID:

* * * THE LEGISLATIVE HISTORY OF SECTION 6 OF THE ACT OF JUNE 30, 1942, SHOWS THAT IT WAS DESIGNED TO SUPPLEMENT THE ACT OF JULY 24, 1941, SO THAT OFFICERS HOLDING TEMPORARY COMMISSIONS THEREUNDER AND WHO WERE RETIRED UPON ATTAINING THE AGE OF SIXTY-FOUR YEARS COULD BE RETIRED WITH THEIR TEMPORARY RANK AND GRADE AND RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY THEY WERE RECEIVING AT THE TIME OF RETIREMENT. WHILE IT IS EXPRESSLY PROVIDED IN SAID SECTION 6 THAT AN OFFICER SHALL BE RETIRED AS AUTHORIZED THEREIN "UNLESS ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK UNDER SOME OTHER PROVISION OF LAW," THAT PROVISION MERELY IS IN THE NATURE OF A SAVINGS CLAUSE; THAT IS, AN OFFICER'S RIGHT TO BE RETIRED IN HIS TEMPORARY GRADE OR RANK AS AUTHORIZED BY SAID SECTION 6 DOES NOT DEPRIVE HIM OF THE RIGHT TO BE RETIRED UNDER SOME OTHER STATUTE WHICH MAY BE MORE BENEFICIAL TO HIM.

I FIND NO INDICATION EITHER IN SECTION 6 ITSELF OR IN ITS LEGISLATIVE HISTORY, TENDING TO SHOW THAT AN OFFICER IS AUTHORIZED TO FIRST TAKE ADVANTAGE OF THAT SECTION, BE RETIRED IN HIS TEMPORARY GRADE OR RANK WITH RETIRED PAY BASED ON HIS ACTIVE DUTY PAY AUTHORIZED IN SUCH TEMPORARY STATUS, AND THEN BE ADVANCED TO A HIGHER GRADE PURSUANT TO SECTION 3 OF THE ACT OF JANUARY 12, 1923, BECAUSE HE HAD COMPLETED 40 YEARS' SERVICE. IT SEEMS CLEAR THAT THE PROVISION CONTAINED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, IS INTENDED TO OPERATE ONLY UPON THE PERMANENT RANK OF OFFICERS OF THE COAST GUARD WHO ARE OTHERWISE ENTITLED TO ITS BENEFITS AND THAT IT HAS NO REASONABLE APPLICATION TO AN OFFICER WHO RECEIVED A HIGHER TEMPORARY RANK, UNDER A WARTIME MEASURE, SHORTLY BEFORE REACHING THE STATUTORY RETIREMENT AGE. * * *

ALSO, IT HAS BEEN CONSIDERED THAT THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED, AUTHORIZING THE RETIRED PAY OF ANY OFFICER OF THE SERVICES MENTIONED IN THAT ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, TO BE COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE DUTY PAY AT THE TIME OF RETIREMENT, WAS INTENDED TO APPLY ONLY TO THE RETIRED PAY OF AN OFFICER'S PERMANENT GRADE AND NOT TO THAT OF HIS TEMPORARY GRADE. SEE 25 COMP. GEN. 274. LIKEWISE, IT HAS BEEN HELD THAT 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, 60 STAT. 27, WHILE SERVING IN A TEMPORARY RANK HIGHER THAN THAT OF HIS PERMANENT RANK MAY NOT BE COMPUTED AT 75 PERCENTUM OF THE ACTIVE DUTY PAY OF SUCH TEMPORARY RANK UNDER THE PROVISIONS OF THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT, BY REASON OF SERVICE AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918. ALSO, IN DECISION OF FEBRUARY 28, 1947, 26 COMP. GEN. 636, TO THE SECRETARY OF THE NAVY, IT WAS CONCLUDED THAT SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, AUTHORIZING ADVANCEMENT OF NAVY LINE OFFICERS WITH COMBAT COMMENDATIONS TO THE NEXT HIGHER RANK UPON RETIREMENT, HAS REFERENCE TO ADVANCEMENT FROM A PERMANENT AND NOT A TEMPORARY RANK, AND, THEREFORE, A CAPTAIN OF THE NAVY WITH COMBAT COMMENDATION WHO WAS RETIRED FOR LENGTH OF SERVICE UNDER THE ACT OF MAY 13, 1908, IN HIS TEMPORARY RANK OF REAR ADMIRAL (UPPER HALF) PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, 60 STAT. 28, WAS NOT ENTITLED TO THE ACTIVE-DUTY AND ALLOWANCES OF A VICE ADMIRAL UPON HIS RECALL TO ACTIVE DUTY.

THUS, IT WILL BE NOTED THAT THE VIEW CONSISTENTLY HAS BEEN TAKEN THAT THE STATUTES, AUTHORIZING OFFICERS OF THE MILITARY AND NAVAL FORCES MEETING CERTAIN CONDITIONS TO BE PLACED ON THE RETIRED LIST WITH THE NEXT HIGHER GRADE OR RANK ARE APPLICABLE TO AN OFFICER'S PERMANENT RANK AND GRADE AND NOT TO HIS TEMPORARY RANK OR GRADE. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED, WHICH INDICATES THAT THE CONGRESS CONTEMPLATED THAT OFFICERS OF THE COAST GUARD, OR THE NAVY, WOULD BE RETIRED UNDER THE PROVISIONS OF THAT ACT IN THEIR HIGHER TEMPORARY WARTIME GRADES AND RANKS AND, ALSO, BE ACCORDED THE BENEFITS OF OTHER LAWS AUTHORIZING ADVANCEMENT ON THE RETIRED LIST TO THE NEXT HIGHER GRADE OR RANK UNDER CERTAIN CONDITIONS, WHICH LAWS WERE INTENDED, WHEN ENACTED, TO BE APPLICABLE TO AN OFFICER'S PERMANENT RANK OR GRADE ONLY. ACCORDINGLY, IT IS CONCLUDED THAT THE SETTLEMENT OF DECEMBER 11, 1947, WAS CORRECT AND MUST BE SUSTAINED.