B-77295, SEPTEMBER 2, 1948, 28 COMP. GEN. 142

B-77295: Sep 2, 1948

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PAY - RETIRED - COAST GUARD ENLISTED PERSONNEL RECALLED TO ACTIVE DUTY RETIRED ENLISTED MEN OF THE COAST GUARD WHO WERE RECALLED TO ACTIVE DUTY WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY AND WHO WERE SUBSEQUENTLY RELEASED FROM SUCH DUTY ARE NOT ENTITLED. TO RETIRED PAY BASED UPON THE HIGHEST GRADE TO WHICH PROMOTED DURING THE PERIOD OF RECALL TO ACTIVE DUTY AS IS AUTHORIZED FOR RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS BY THE ACT OF JULY 1. AS FOLLOWS: THERE IS BEFORE THIS DEPARTMENT FOR DETERMINATION THE QUESTION OF WHETHER RETIRED ENLISTED PERSONNEL OF THE COAST GUARD WHO WERE RECALLED TO ACTIVE DUTY DURING THE PERIOD WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY.

B-77295, SEPTEMBER 2, 1948, 28 COMP. GEN. 142

PAY - RETIRED - COAST GUARD ENLISTED PERSONNEL RECALLED TO ACTIVE DUTY RETIRED ENLISTED MEN OF THE COAST GUARD WHO WERE RECALLED TO ACTIVE DUTY WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY AND WHO WERE SUBSEQUENTLY RELEASED FROM SUCH DUTY ARE NOT ENTITLED, EITHER BY VIRTUE OF THE ASSIMILATION PROVISIONS OF SECTION 8 OF THE ACT OF MAY 18, 1920, OR ANY OTHER PROVISION OF LAW, TO RETIRED PAY BASED UPON THE HIGHEST GRADE TO WHICH PROMOTED DURING THE PERIOD OF RECALL TO ACTIVE DUTY AS IS AUTHORIZED FOR RETIRED ENLISTED MEN OF THE NAVY AND MARINE CORPS BY THE ACT OF JULY 1, 1918.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, SEPTEMBER 2, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 7, 1948, AS FOLLOWS:

THERE IS BEFORE THIS DEPARTMENT FOR DETERMINATION THE QUESTION OF WHETHER RETIRED ENLISTED PERSONNEL OF THE COAST GUARD WHO WERE RECALLED TO ACTIVE DUTY DURING THE PERIOD WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY, UPON TERMINATION OF ACTIVE DUTY STATUS, ARE ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST RATE TO WHICH THEY WERE PROMOTED DURING THE PERIOD OF THEIR RECALL TO ACTIVE DUTY AND TO RECEIVE RETIRED PAY BASED UPON SUCH HIGHER RATE. THE FOLLOWING CASE IS SUBMITTED AS AN EXAMPLE OF THE PROBLEM INVOLVED:

PAUL A. JOSEPHS, JR., MACHINIST'S MATE, FIRST CLASS, U.S.C.G., WAS RETIRED FROM ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY, EFFECTIVE DECEMBER 1, 1942, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF APRIL 12, 1902 (14 U.S.C. 169), WITH RETIRED PAY AT THE RATE OF $94.05 PER MONTH, BASED ON 75 PERCENTUM OF ACTIVE DUTY PAY WITH MORE THAN SIX YEARS' BUT LESS THAN NINE YEARS' CREDITABLE SERVICE. HEWAS RECALLED TO ACTIVE DUTY IN THE RATING OF MACHINIST'S MATE, FIRST CLASS, EFFECTIVE JANUARY 1, 1943. ON JUNE 1, 1943, HE WAS ADVANCED TO THE RATING OF CHIEF MOTOR MACHINIST'S MATE (ACTING), PROVISIONAL; ON JUNE 16, 1944, HIS RATING WAS CHANGED TO CHIEF MOTOR MACHINIST'S MATE, TEMPORARY; AND ON AUGUST 16, 1944, HE WAS ISSUED A CERTIFICATE OF PERMANENT APPOINTMENT AS CHIEF MOTOR MACHINIST'S MATE. ON SEPTEMBER 1, 1944, HE WAS RETURNED TO AN INACTIVE STATUS ON THE RETIRED LIST WITH NO CHANGE IN HIS RETIRED RATE, WITH RETIRED PAY OF $116.44, BASED ON 75 PERCENTUM OF ACTIVE DUTY PAY AS MOTOR MACHINIST'S MATE, FIRST CLASS, WITH MORE THAN NINE YEARS' CREDITABLE SERVICE. DURING THE PERIOD OF HIS RECALL TO ACTIVE DUTY THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY IN ACCORDANCE WITH EXECUTIVE ORDER NO. 8929, OF NOVEMBER 1, 1941 (6 F.R. 5581), PURSUANT TO AUTHORITY VESTED IN THE PRESIDENT BY SECTION 1 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, AS AMENDED BY SECTIONS 5 AND 6 OF THE ACT OF JULY 11, 1941, 55 STAT. 585.

THE ACT OF AUGUST 29, 1916, 39 STAT. 600 (14 U.S.C. 3), PROVIDES THAT:

"WHENEVER, IN TIME OF WAR, THE COAST GUARD OPERATES AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, THE PERSONNEL OF THAT SERVICE SHALL BE SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE NAVY: * * *"

THE NAVAL APPROPRIATION ACT OF JULY 1, 1918, 40 STAT. 719 (34 U.S.C. 434), PROVIDES, IN PERTINENT PART:

"ANY ENLISTED MAN OF THE NAVY OR MARINE CORPS UPON THE RETIRED LIST WHO HAS BEEN ORDERED INTO ACTIVE SERVICE SHALL BE ELIGIBLE FOR PROMOTION AND HE SHALL BE ENTITLED TO THE PAY AND BENEFITS OF CONTINUOUS SERVICE OF SUCH RANK AND FOR SUCH LENGTH OF TIME AS HE IS OR HAS BEEN EMPLOYED IN ACTIVE SERVICE, AND WHEN RELIEVED OF ACTIVE SERVICE SHALL RETAIN UPON THE RETIRED LIST THE RANK AND SERVICE HELD BY HIM AT THE TIME OF SUCH RELIEF, WITH THE PAY AND ALLOWANCES OF SUCH RANK ON THE RETIRED LIST. * * * " ( ITALICS SUPPLIED.)

SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603 (14 U.S.C. 121), PROVIDES, IN PERTINENT ART:

" THAT COMMISSIONED OFFICERS, WARRANT OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED MEN OF THE COAST GUARD SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND INCREASES AS NOW ARE, HEREIN ARE, OR HEREAFTER MAY BE PRESCRIBED FOR CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE AVY; AND THE GRADES AND RATINGS OF WARRANT OFFICERS, CHIEF PETTY OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED PERSONS IN THE COAST GUARD SHALL BE THE SAME AS IN THE NAVY, INSOFAR AS THE DUTIES OF THE COAST GUARD MAY REQUIRE * *

THE ASSIMILATION PROVISION OF SECTION 8 HAS BEEN LARGELY SUPERSEDED BY LATER STATUTES PRESCRIBING SPECIAL RATES OF PAY AND INCREASES FOR COAST GUARD PERSONNEL, AND IT IS NOTED THAT IN THE OPINION OF THE COMPILERS OF THE U.S.C. 1940 EDITION, THE ASSIMILATION PROVISION OF SECTION 8 OF THE ACT OF MAY 18, 1920, IS NOT INOPERATIVE. HOWEVER, IT HAS BEEN HELD THAT THE ASSIMILATION PROVISION IS INOPERATIVE ONLY INSOFAR AS CONGRESS HAS MADE SPECIFIC LEGISLATIVE PROVISION FOR THE COAST GUARD, AND THAT BENEFITS DERIVED FROM LEGISLATION PERTAINING TO THE NAVY, PREVIOUSLY CONFERRED UPON THE COAST GUARD, AND NOT PROVIDED FOR IN SUBSEQUENT LEGISLATION, SURVIVE TO THE COAST GUARD UNDER THE ASSIMILATION STATUTE. CF. 27 COMP. DEC. 234; 22 COMP. GEN. 723; DECISION OF JUNE 9, 1947, B-63472; DECISION OF APRIL 2, 1948, B-70438 (27 COMP. GEN. 572).

IN VIEW OF THE FACT THAT THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY DURING THE PERIOD OF ACTIVE DUTY OF THE RETIRED ENLISTED PERSONNEL OF THE CLASS DESCRIBED IN PARAGRAPH TWO, AND BY VIRTUE OF THE ASSIMILATION OF THE COAST GUARD WITH THE NAVY AS SET FORTH IN SECTION 8 OF THE ACT OF MAY 18, 1920, IN THE ABSENCE OF SUBSEQUENT SPECIFIC LEGISLATION, IT WOULD APPEAR THAT, NOTWITHSTANDING THE FACT THAT ENLISTED PERSONNEL OF THE COAST GUARD ARE NOT SPECIFICALLY MENTIONED IN THE ACT OF JULY 1, 1918, SUCH ENLISTED PERSONNEL ARE ENTITLED TO THE BENEFITS CONFERRED BY THAT STATUTE.

YOUR DECISION IS RESPECTFULLY REQUESTED, THEREFORE, WHETHER UNDER THE SAID ACT OF JULY 1, 1918, OR ANY OTHER PROVISION OF LAW, RETIRED ENLISTED PERSONNEL OF THE COAST GUARD RECALLED TO ACTIVE DUTY DURING THE PERIOD WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY, ARE ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST RATE TO WHICH THEY WERE PROMOTED DURING THE PERIOD OF THEIR RECALL TO ACTIVE DUTY AND TO RECEIVE RETIRED PAY BASED UPON SUCH HIGHER RATE.

THE NAVAL APPROPRIATION ACT OF JULY 1, 1918, WHICH CONTAINS THE PROVISION QUOTED IN YOUR LETTER, ALSO SPECIFICALLY PROVIDED (40 STAT. 717, 719) FOR THE RECALL TO ACTIVE DUTY OF RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY, FOR THE PERMANENT PROMOTION OF SUCH PERSONNEL ON THE RETIRED LIST AND FOR THE COMPUTATION OF THEIR RETIRED PAY, UPON THEIR RELEASE FROM ACTIVE DUTY, ON THE BASIS OF THE PAY OF THE GRADE OR RANK TO WHICH PROMOTED. 26 COMP. DEC. 306; ID. 409; 27 ID. 78. SUCH ACT FURTHER PROVIDED FOR THE TEMPORARY ADVANCEMENT, DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY, OF ANY COMMISSIONED OR WARRANT OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD ON THE RETIRED LIST, WHILE ON ACTIVE DUTY. AND FOR THE REVERSION, UPON RELIEF FROM ACTIVE DUTY OF ANY OFFICER SO ADVANCED, TO THE GRADE OR RANK ON THE RETIRED LIST AND TO THE PAY AND ALLOWANCE STATUS WHICH HE WOULD HAVE HELD HAD HE NOT BEEN SO TEMPORARILY ADVANCED. THUS IT IS SEEN THAT WHILE SOME OF THE PROVISIONS OF THE SAID 1918 ACT RELATING TO THE PROMOTION OR ADVANCEMENT OF RETIRED PERSONNEL EXPRESSLY WERE MADE APPLICABLE TO PERSONNEL OF THE COAST GUARD, THE PROVISION OF THAT SAME STATUTE WHICH IS QUOTED IN YOUR LETTER, AND WHICH RELATES TO THE PROMOTION, ETC., OF ENLISTED MEN ON THE RETIRED LIST, SPECIFICALLY INCLUDES ONLY RETIRED ENLISTED MEN OF THE NAVY AND OF THE MARINE CORPS. IT WOULD SEEM TO FOLLOW THAT THE CONGRESS, IN ENACTING THE 1918 ACT, MEANT TO EXCLUDE ENLISTED MEN OF THE COAST GUARD FROM PARTICIPATION IN THE BENEFITS OF THE PARTICULAR PROVISION OF THAT ACT WHICH YOU HAVE QUOTED.

THE ACT OF JANUARY 28, 1915, 38 STAT. 800, ESTABLISHING THE COAST GUARD, PROVIDED THAT THE COAST GUARD SHALL CONSTITUTE A PART OF THE MILITARY FORCES OF THE UNITED STATES AND SHALL OPERATE UNDER THE TREASURY DEPARTMENT IN TIME OF PEACE AND OPERATE AS A PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY, IN TIME OF WAR OR WHEN THE PRESIDENT SHALL SO DIRECT. PARAGRAPH 2 OF SECTION 3 OF THE SAID ACT (38 STAT. 801, 802) PROVIDES:

THE PROVISIONS OF SECTIONS THREE, FOUR, FIVE, SIX, SEVEN, EIGHT AND NINE OF THE ACT OF APRIL TWELFTH, NINETEEN HUNDRED AND TWO, IN SO FAR AS THEY PROVIDE FOR THE RETIREMENT OF OFFICERS OF THE REVENUE-CUTTER SERVICE, ARE HEREBY EXTENDED TO INCLUDE COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE COAST GUARD. * * * ( ITALICS SUPPLIED.) SECTIONS 6 AND 9 OF THE SAID ACT OF APRIL 12, 1902, 32 STAT. 101 (14 U.S.C. 169 AND 167), PROVIDE AS FOLLOWS:

SEC. 6. THAT WHEN A BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE, OR IS DUE TO THE INFIRMITIES OF AGE, OR PHYSICAL OR MENTAL DISABILITY, AND NOT HIS OWN VICIOUS HABITS, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, HE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON A RETIRED WAITING-ORDERS LIST. OFFICERS THUS RETIRED MAY BE ASSIGNED TO SUCH DUTIES AS THEY MAY BE ABLE TO PERFORM, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY.

SEC. 9. THAT ALL OFFICERS BORNE UPON THE RETIRED OR PERMANENT WAITING- ORDERS LIST AT THE DATE OF THE PASSAGE OF THIS ACT, OR HEREAFTER, SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, SALARY, AND INCREASE OF THE RANK UPON WHICH THEY HAVE BEEN OR MAY BE RETIRED: PROVIDED, THAT NO LONGEVITY INCREASE OF PAY SHALL BE ALLOWED FOR ANY LENGTH OF SERVICE ACCRUING AFTER RETIREMENT.

THUS THE ACT OF APRIL 12, 1902, AS AMENDED BY THE ACT OF JANUARY 28, 1915, PROVIDES THAT WHEN A COAST GUARD RETIRING BOARD FINDS THAT A COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MAN IS INCAPACITATED FOR ACTIVE SERVICE DUE TO AN INCIDENT OF THE SERVICE OR TO THE INFIRMITIES OF AGE OR MENTAL OR PHYSICAL DISABILITY, AND NOT HIS OWN VICIOUS HABITS, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, HE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST SUBJECT TO ASSIGNMENT TO SUCH DUTIES AS HE MAY BE ABLE TO PERFORM, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, AND THE SAID ACT FURTHER PROVIDES THAT SUCH PERSONNEL BORNE UPON THE RETIRED LIST SHALL RECEIVE 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THE RANK UPON WHICH THEY MAY BE RETIRED. IT THUS APPEARS THAT THE BASIC RETIREMENT PROVISIONS HERE INVOLVED CONTEMPLATE THE PERFORMANCE OF ACTIVE SERVICE AFTER RETIREMENT AND MAKE NO MENTION OF PROMOTION ON THE RETIRED LIST OR INCREASE OF RETIRED PAY ON ACCOUNT OF SUCH SERVICE.

THE PROVISIONS OF THE ACT OF JULY 1, 1918, QUOTED IN YOUR LETTER, HAVE BEEN REGARDED AS LIMITED IN THEIR APPLICATION TO ENLISTED MEN OF THE NAVY AND MARINE CORPS RETIRED AFTER 30 YEARS' SERVICE UNDER THE PROVISIONS OF THE ACTS OF MARCH 3, 1899, AND MARCH 2, 1907, 34 U.S.C. 431. SEE 22 COMP. GEN. 656 AND 23 ID. 40. IT APPEARS THAT THERE IS NO PROVISION OF LAW AUTHORIZING THE RETIREMENT FOR DISABILITY OF NAVY ENLISTED MEN GENERALLY (WITHOUT REGARD TO LENGTH OF SERVICE), AND HENCE TO HOLD THAT COAST GUARD ENLISTED MEN RETIRED FOR DISABILITY ARE ENTITLED TO RETIRED PAY OF THE HIGHER GRADE TO WHICH PROMOTED WHILE ON ACTIVE DUTY AFTER RETIREMENT SOLELY BY REASON OF THE ASSIMILATION PROVISION OF SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, WOULD BE TANTAMOUNT TO HOLDING THAT COAST GUARD ENLISTED MEN ARE ENTITLED TO MORE OR DIFFERENT BENEFITS UNDER SUCH ASSIMILATION PROVISION THAN THE BENEFITS TO WHICH ENLISTED MEN OF THE NAVY AND MARINE CORPS ARE ENTITLED UNDER THE LAWS APPLICABLE TO THEM.

WITH RESPECT TO THE DECISIONS CITED IN YOUR LETTER AS TO THE APPLICATION OF THE ASSIMILATION PROVISION OF SECTION 8 OF THE ACT OF MAY 18, 1920, SUPRA, IT MAY BE NOTED THAT SUCH DECISIONS HELD THE SAID ACT TO BE APPLICABLE ONLY IN THOSE SITUATIONS WHERE THERE WAS NO STATUTE SPECIFICALLY APPLICABLE TO THE COAST GUARD. BY THE ACT OF APRIL 12, 1902, AS AMENDED, SUPRA, AND BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SPECIFIC PROVISION IS MADE FOR THE RETIREMENT, THE PAY AND THE RETIRED PAY OF ENLISTED MEN OF THE COAST GUARD, AS WELL AS THE RECALL TO ACTIVE DUTY OF SUCH ENLISTED MEN ON THE RETIRED LIST. ALSO, SECTION 4 OF THE ACT OF MAY 24, 1939, 53 STAT. 755, 14 U.S.C. 185C, AUTHORIZES THE PROMOTION OF COAST GUARD ENLISTED MEN RETIRED AFTER 20 OR MORE YEARS OF SERVICE PURSUANT TO THAT ACT, WHEN RECALLED TO ACTIVE DUTY, AND PROVIDES THAT WHEN SUCH PERSONNEL ARE RELIEVED FROM ACTIVE SERVICE THEY SHALL RETAIN THE RANK AND SERVICE HELD AT THE TIME OF RELIEF FROM ACTIVE DUTY. IN SUCH CONNECTION IT MAY BE NOTED THAT IN HANNUM V. UNITED STATES, 226 U.S. 436, IT WAS HELD THAT THE ASSIMILATION CLAUSE OF SECTION 13 OF THE NAVY PERSONNEL ACT OF 1899, 30 STAT. 1007, WAS NOT APPLICABLE TO OFFICERS OF THE NAVY COMPULSORILY RETIRED UNDER SECTION 1454, REVISED STATUTES, FOR INCAPACITY NOT RESULTING FROM ANY INCIDENT OF THE SERVICE, IN VIEW OF A STATUTORY PROVISION COVERING THE RETIRED PAY OF SUCH OFFICERS.

ACCORDINGLY, THE CONCLUSION IS REQUIRED THAT THE ASSIMILATING PROVISION OF SECTION 8 OF THE ACT OF MAY 18, 1920, SUPRA, DOES NOT EXTEND TO RETIRED ENLISTED MEN OF THE COAST GUARD, WHO WERE RECALLED TO ACTIVE DUTY WHEN THE COAST GUARD WAS OPERATING AS A PART OF THE NAVY AND WHO HAVE BEEN RELEASED FROM ACTIVE DUTY, THE RIGHT TO RETIRED PAY BASED UPON THE HIGHEST GRADE TO WHICH PROMOTED DURING THE PERIOD OF RECALL TO ACTIVE DUTY, AND, SINCE THERE APPEARS TO BE NO OTHER PROVISION OF LAW AUTHORIZING PAYMENT OF RETIRED PAY BASED UPON SUCH HIGHER GRADE, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.