B-74361, JUNE 28, 1948, 27 COMP. GEN. 779

B-74361: Jun 28, 1948

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IS RETIRED UNDER THE ACT OF MAY 13. IS NOT ENTITLED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF). 1948: REFERENCE IS MADE TO YOUR LETTER OF MARCH 8. IS SERVING AS CHIEF OF CHAPLAINS. WILL BE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF) OR THAT OF A REAR ADMIRAL (LOWER HALF). UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE. PROVIDED THAT "UNTIL THE TERMINATION OF THE WARS IN WHICH THE UNITED STATES IS NOW ENGAGED * * * OR SUCH EARLIER DATE AS THE CONGRESS BY CONCURRENT RESOLUTION MAY FIX. HAVE THE RANK OF REAR ADMIRAL AND RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF.

B-74361, JUNE 28, 1948, 27 COMP. GEN. 779

PAY - RETIRED - REAR ADMIRAL RECEIVING PAY OF UPPER HALF AS CHIEF OF CHAPLAINS A REAR ADMIRAL (LOWER HALF) WITH SERVICE PRIOR TO NOVEMBER 12, 1918, WHO, WHILE SERVING AS CHIEF OF CHAPLAINS WITH THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) PURSUANT TO THE ACT OF MAY 15, 1947, AS AMENDED, IS RETIRED UNDER THE ACT OF MAY 13, 1908, AFTER THIRTY YEARS' SERVICE, IS NOT ENTITLED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF), THE PROVISIONS OF THE PARAGRAPH, AUTHORIZING AN OFFICER WITH SERVICE PRIOR TO NOVEMBER 12, 1918, TO RECEIVE RETIRED PAY BASED ON ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT, BEING FOR APPLICATION ONLY TO THE PAY OF AN OFFICER'S PERMANENT RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 28, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1948, CITING THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, AND REQUESTING DECISION AS TO WHETHER A REAR ADMIRAL OF THE NAVY WHO HAS COMPLETED OVER THIRTY YEARS' SERVICE, HAS SERVED CONTINUOUSLY AS AN OFFICER OF THE REGULAR NAVY FROM A DATE PRIOR TO NOVEMBER 12, 1918, AND WHO, AT THE TIME OF RETIREMENT, IS SERVING AS CHIEF OF CHAPLAINS, WILL BE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF) OR THAT OF A REAR ADMIRAL (LOWER HALF).

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, CITED IN YOUR LETTER, 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.

THE ACT OF DECEMBER 22, 1944, 58 STAT. 886, PROVIDED THAT "UNTIL THE TERMINATION OF THE WARS IN WHICH THE UNITED STATES IS NOW ENGAGED * * * OR SUCH EARLIER DATE AS THE CONGRESS BY CONCURRENT RESOLUTION MAY FIX," THERE SHALL BE IN THE CHAPLAIN CORPS OF THE NAVY ONE OFFICER, DESIGNATED AS CHIEF OF CHAPLAINS, UNDER THE CHIEF OF NAVAL PERSONNEL, WHO SHALL BE ENTITLED TO HOLD THE TEMPORARY RANK OF REAR ADMIRAL AND SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE LOWER HALF WHILE SERVING IN SUCH GRADE. THE ACT OF MAY 15, 1947, 61 STAT. 93, EXPRESSLY REPEALED SUCH 1944 ACT AND PROVIDED THAT THERE SHALL BE IN THE BUREAU OF NAVAL PERSONNEL A CHIEF OF CHAPLAINS, DESIGNATED BY THE CHIEF OF NAVAL PERSONNEL FROM AMONG OFFICERS OF THE CHAPLAIN CORPS OF THE REGULAR NAVY NOT BELOW THE RANK OF COMMANDER, AND THAT SUCH OFFICER SHALL, WHILE SO SERVING, HAVE THE RANK OF REAR ADMIRAL AND RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF. SECTION 428 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 880, 34 U.S.C.A. 97, AMENDED THE ACT OF MAY 15, 1947, AS FOLLOWS:

EFFECTIVE THIRTY DAYS AFTER THE FIRST APPOINTMENT OF AN OFFICER OF THE CHAPLAIN CORPS OF THE REGULAR NAVY TO THE GRADE OF REAR ADMIRAL PURSUANT TO THE PROVISIONS OF TITLES I THROUGH IV OF THIS ACT, SECTION 1 OF THE ACT OF MAY 15, 1947 ( PUBLIC LAW 56, EIGHTIETH CONGRESS), IS AMENDED TO READ AS FOLLOWS:

"THAT THERE SHALL BE IN THE BUREAU OF NAVAL PERSONNEL A CHIEF OF CHAPLAINS, DESIGNATED BY THE CHIEF OF NAVAL PERSONNEL FROM AMONG OFFICERS OF THE CHAPLAIN CORPS OF THE REGULAR NAVY NOT BELOW THE GRADE OF REAR ADMIRAL, AND SUCH OFFICER SHALL, WHILE SO SERVING, RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF.'

IT IS UNDERSTOOD THAT REAR ADMIRAL WILLIAM N. THOMAS WAS DESIGNATED CHIEF OF CHAPLAINS FEBRUARY 25, 1948.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IS NOT A PROVISION FOR THE RETIREMENT OF OFFICERS. THE STATUTORY PROVISION AUTHORIZING RETIREMENT MUST BE FOUND ELSEWHERE AND, BEFORE AN OFFICER WHO SERVED PRIOR TO NOVEMBER 12, 1918, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN SUCH PARAGRAPH, HIS RETIREMENT MUST HAVE BEEN AUTHORIZED BY SOME SPECIFIC PROVISION OF LAW. SEE 26 COMP. GEN. 417, 419. WHILE IT IS NOT STATED UNDER WHICH LAW THE CHIEF OF CHAPLAINS--- REAR ADMIRAL WILLIAM N. THOMAS--- IS TO BE RETIRED, SINCE HE HAS COMPLETED 30 YEARS' SERVICE, IT IS ASSUMED THAT HE WILL BE RETIRED UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, 34 U.S.C. 383, WHICH PROVIDES AS FOLLOWS:

WHEN AN OFFICER OF THE NAVY HAS BEEN THIRTY YEARS IN THE SERVICE, HE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE.

PRESUMABLY, IT IS RECOGNIZED THAT THE PROVISION IN THE ABOVE-QUOTED ACT OF MAY 13, 1908, AUTHORIZING AN OFFICER RETIRED THEREUNDER TO RECEIVE THREE-FOURTHS OF THE "HIGHEST PAY OF HIS RADE" DOES NOT AUTHORIZE A REAR ADMIRAL ON THE ACTIVE LIST OF THE NAVY, OTHERWISE ENTITLED TO THE PAY OF THE LOWER HALF, TO RECEIVE RETIRED PAY BASED UPON THE PAY OF A REAR ADMIRAL (UPPER HALF). SEE, GENERALLY, GIBSON V. UNITED STATES, 194 U.S. 182. SEE, ALSO, 26 COMP. GEN. 66 AND 27 ID. 197, 204, TO THE EFFECT THAT THE RANK OF REAR ADMIRAL IS A SINGLE RANK BUT DIVIDED INTO TWO PAY GRADES- -- THAT OF THE UPPER HALF AND THAT OF THE LOWER HALF. HOWEVER, IT APPARENTLY IS THE VIEW THAT UNDER THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING AN OFFICER WITH SERVICE PRIOR TO NOVEMBER 12, 1918, RETIRED UNDER ANY PROVISION OF LAW, TO RECEIVE RETIRED PAY OF "75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT," THE CHIEF OF CHAPLAINS, IF RETIRED WHILE SO SERVING, WILL BE ENTITLED TO 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A REAR ADMIRAL OF THE UPPER HALF.

IT WILL BE NOTED THAT AN OFFICER "DESIGNATED" AS CHIEF OF CHAPLAINS IS ENTITLED, UNDER SECTION 428 OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) ONLY "WHILE SO SERVING; " UPON REVOCATION OF SUCH OFFICER'S DESIGNATION AS CHIEF OF CHAPLAINS, HE NO LONGER WOULD BE SERVING AS SUCH, AND HENCE, NO LONGER WOULD BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) AND IT WOULD APPEAR TO BE IMMATERIAL WHETHER SUCH DESIGNATION BE TERMINATED BY REASON OF TRANSFER TO THE RETIRED LIST, OR OTHERWISE. SEE 27 COMP. GEN. 296, 299. THE SOLE PURPOSE OF THE PROVISION OF THE FOURTH PARAGRAPH OF SECTION 15 WAS TO CHANGE THE METHOD OF COMPUTATION OF RETIRED PAY OF OFFICERS WHO HAD SERVED PRIOR TO NOVEMBER 12, 1918, FROM THAT OF 2 1/2 PERCENTUM OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE TO THAT OF 75 PERCENTUM OF THEIR ACTIVE DUTY PAY WITHOUT REGARD TO THE NUMBER OF YEARS OF SERVICE. WHILE THERE WAS USED THE DESCRIPTIVE LANGUAGE "75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT," THAT MERELY FOLLOWED THE SIMILAR LANGUAGE CONTAINED IN SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, APPLICABLE TO ARMY OFFICERS, SO AS TO PLACE NAVY OFFICERS WHO SERVED PRIOR TO NOVEMBER 12, 1918, ON A PARITY WITH ARMY OFFICERS WITH RESPECT TO THE COMPUTATION OF RETIRED PAY. IT SEEMS APPARENT, THEREFORE, THAT SUCH LANGUAGE WAS USED IN THE SAME GENERAL SENSE AND FOR THE SAME GENERAL PURPOSE AS IT HAD BEEN USED IN THE ARMY ACT OF 1940, AND THERE IS NO INDICATION OF AN INTENT TO EXPAND OR MODIFY THE PROVISIONS OF THE ACT OF MAY 13, 1908, TO PERMIT OFFICERS RETIRED THEREUNDER AFTER 30 YEARS' SERVICE WHO MAY BE ENTITLED TO A HIGHER GRADE OR RANK "WHILE SERVING" IN A PARTICULAR OFFICE OR CAPACITY TO BE RETIRED WITH THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE OR RANK. AS A GENERAL PROPOSITION, WHERE AN OFFICER IS APPOINTED TO A PARTICULAR OFFICE UNDER A STATUTE AUTHORIZING A PARTICULAR GRADE OR RANK "WHILE SO SERVING," WHICH IS HIGHER THAN THE GRADE OR RANK TO WHICH HE OTHERWISE WOULD BE ENTITLED, THE OFFICER IS NOT ENTITLED, UPON RETIREMENT, EITHER PRIOR OR SUBSEQUENT TO THE EXPIRATION OF HIS TERM OF OFFICE, TO RETIRED PAY BASED UPON SUCH HIGHER GRADE OR RANK, IN THE ABSENCE OF A GENERAL OR SPECIAL PROVISION OF LAW SO PROVIDING. AND, WHEN RETIREMENT IS AUTHORIZED IN SUCH HIGHER GRADE, THE STATUTE USUALLY REQUIRES, AS A CONDITION PRECEDENT, THAT THE OFFICER SERVE IN SUCH OFFICE FOR A SPECIFIED NUMBER OF YEARS. SEE, GENERALLY, SECTION 513 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 902, AUTHORIZING ANY ARMY OFFICER WHO HAS SERVED FOUR YEARS AS CHIEF OR ASSISTANT CHIEF OR COMMANDING GENERAL. SEE, ALSO, SECTION 2 OF THE ACT OF JULY 23, 1947, 61 STAT. 410, AS AMENDED BY THE ACT OF MAY 19, 1948, 62 STAT. 239, WHICH PROVIDES THAT THE ASSISTANT COMMANDANT AND ENGINEER IN CHIEF OF THE COAST GUARD SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) AND, UPON RETIREMENT, ANY OFFICER WHO IS SERVING, OR HAS SERVED NOT LESS THAN 2 1/2 YEARS AS ASSISTANT COMMANDANT OR ENGINEER IN CHIEF SHALL RETIRE WITH THE RANK OF REAR ADMIRAL AND WITH THE RETIRED PAY OF A REAR ADMIRAL (UPPER HALF). MOREOVER, IT CONSISTENTLY HAS BEEN CONSIDERED THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WERE INTENDED TO APPLY ONLY TO THE PAY OF AN OFFICER'S PERMANENT GRADE OR RANK AND NOT THAT OF A TEMPORARY GRADE OR RANK. 25 COMP. GEN. 274; 26 ID. 417; ID. 932.

ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, YOU ARE ADVISED THAT UNDER THE CIRCUMSTANCES HERE INVOLVED THE CHIEF OF CHAPLAINS, UPON RETIREMENT, WILL BE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL OF THE LOWER HALF.