B-79178, OCTOBER 27, 1948, 28 COMP. GEN. 263

B-79178, OCTOBER 27, 1948, 28 COMP. GEN. 263

NAVY OFFICERS WHOLLY RETIRED - ONE YEAR'S PAY - COMPUTATION ON BASIS OF PERMANENT OR TEMPORARY RANK THE RULING IN 24 COMP. GEN. 934--- THAT THE ONE YEAR'S PAY TO BE PAID TO A REGULAR NAVY OFFICER WHO, WHILE TEMPORARILY SERVING IN A HIGHER RANK UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, IS WHOLLY RETIRED FROM THE SERVICE UNDER SECTION 1454, REVISED STATUTES, FOR DISABILITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF HIS PERMANENT RANK--- IS NOT AFFECTED BY THE PROVISIONS OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, OR THE AMENDMENT OF FEBRUARY 21, 1946, TO SECTION 10 OF THE ACT OF JULY 24, 1941, AUTHORIZING THE COMPUTATION OF RETIRED PAY OF AN OFFICER ON THE BASIS OF THE PAY OF HIS TEMPORARY RANK. 27 COMP. GEN. 152, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 27, 1948:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1948, ENCLOSING A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION AS TO WHETHER THE RULING IN DECISION OF JUNE 26, 1945, 24 COMP. GEN. 934, TO THE EFFECT THAT THE "ONE YEAR'S PAY TO BE PAID TO AN OFFICER OF THE REGULAR NAVY WHO, WHILE TEMPORARILY SERVING IN A HIGHER RANK UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, IS WHOLLY RETIRED FROM SERVICE UNDER SECTION 1454, REVISED STATUTES, FOR DISABILITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF HIS PERMANENT RANK, AND NOT THAT OF HIS TEMPORARY RANK," IS STILL APPLICABLE IN DETERMINING THE BASIS FOR COMPUTING THE ONE YEAR'S PAY (BASE PAY PLUS LONGEVITY) TO WHICH AN OFFICER WHOLLY RETIRED UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES (34 U.S.C. 418), IS ENTITLED, OR WHETHER, BY REASON OF THE PROVISIONS OF SECTION 316 (J) OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 (APPROVED AUGUST 7, 1947, 61 STAT. 868), THE ONE YEAR'S PAY IS TO BE COMPUTED ON THE BASIS OF THE TEMPORARY RANK HELD ON THE EFFECTIVE DATE OF BEING WHOLLY RETIRED, IF SUCH RANK IS HIGHER THAN THE TEMPORARY RANK IN WHICH THE OFFICER SERVED SATISFACTORILY PRIOR TO JULY 1, 1946. ALSO, YOU REQUEST DECISION AS TO WHETHER, BY REASON OF THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28 (34 U.S.C. 350I), AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, THE ONE YEAR'S PAY IN SUCH CASES IS TO BE COMPUTED ON THE BASIS OF THE HIGHEST TEMPORARY RANK IN WHICH THE OFFICER SERVED SATISFACTORILY PRIOR TO JULY 1, 1946, IF SUCH TEMPORARY RANK IS HIGHER THAN THE TEMPORARY RANK HE HELD UNDER TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, AT THE TIME OF HIS BEING "WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY.'

SECTION 1454, REVISED STATUTES (34 U.S.C. 418), PROVIDES AS FOLLOWS.

WHEN SAID BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DETERMINE.

SECTION 316 (J) OF THE ACT OF AUGUST 7, 1947, 61 STAT. 868 (34 U.S.C., SUPP. 1, 410M), PROVIDES THAT:

ANY OFFICER SERVING IN THE GRADE OF REAR ADMIRAL OR BELOW UNDER AUTHORITY OF THIS TITLE BY VIRTUE OF A TEMPORARY APPOINTMENT THEREIN SHALL, IF RETIRED WHILE SO SERVING, BE RETIRED IN THE GRADE IN WHICH SERVING WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED AT THE TIME OF RETIREMENT UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED GRADE OR PAY.

SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28 (34 U.S.C. 350I), IS, IN PART, AS OLLOWS:

(B) (1) PERSONNEL OF THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

(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.

(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 SECTON 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.

IN THE ABOVE-MENTIONED LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, IT IS POINTED OUT THAT THE DECISION OF JUNE 26, 1945, 24 COMP. GEN. 934, WAS RENDERED PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 21, 1946, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, AND THAT AT THAT TIME THE ONLY AUTHORITY FOR THE RETIREMENT OF AN OFFICER WITH RETIRED PAY BASED UPON HIGHER TEMPORARY RANK WAS SET FORTH IN SECTION 8 OF THE ACT OF JULY 24, 1941 (34 U.S.C. 350G), AND SECTION 6 OF THE ACT OF JUNE 30, 1942 (50 U.S.C. 811). THE LATTER ACT SUSPENDED PERMANENT PROMOTIONS OF OFFICERS OF THE NAVY AND SECTION 6 THEREOF PROVIDED THAT 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, SHALL BE RETIRED IN SUCH TEMPORARY GRADE WITH RETIRED PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT. SECTION 8 OF THE ACT OF JULY 24, 1941, AUTHORIZED THE PAYMENT OF RETIRED PAY BASED UPON THE GRADE HELD UNDER TEMPORARY APPOINTMENT PURSUANT TO THAT ACT IN THE CASE OF AN OFFICER OR ENLISTED MAN INCURRING PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR OR NATIONAL EMERGENCY WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENT.

SECTION 1454, REVISED STATUTES, SUPRA, AUTHORIZES OFFICERS TO BE "WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY," THAT IS, DISCHARGED FROM THE SERVICE, FOR INCAPACITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE. UNDER THE PROVISIONS OF SECTION 1457, REVISED STATUTES (34 U.S.C. 389), THE NAMES OF OFFICERS WHOLLY RETIRED FROM THE SERVICE ARE OMITTED FROM THE NAVY REGISTER, AND AFTER AN OFFICER HAS BEEN "WHOLLY RETIRED" HIS STATUS IS THAT OF A PRIVATE CITIZEN. SEE MILLER V. UNITED STATES, 19 C.1CLS. 338. IT SEEMS CLEAR THAT THE LUMP-SUM PAYMENT MADE TO AN OFFICER WHO IS WHOLLY RETIRED IS NOT "RETIRED PAY.'

UNDER THE ABOVE-QUOTED PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, PERSONNEL ON THE ACTIVE LIST WHEN SUBSEQUENTLY RETIRED, AND PERSONNEL ON THE RETIRED LIST WHEN RETURNED TO AN INACTIVE STATUS, ARE ENTITLED TO BE ADVANCED TO, OR HAVE, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, AND ARE ENTITLED TO RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW BUT BASED UPON SUCH HIGHER RANK, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER RANK OR RETIRED PAY. THE SAID PROVISIONS SPECIFICALLY REFER ONLY TO PERSONNEL ON THE RETIRED LIST RETURNED TO AN INACTIVE STATUS AND PERSONNEL ON THE ACTIVE LIST WHEN SUBSEQUENTLY RETIRED, AND TO THE RETIRED PAY TO WHICH SUCH PERSONNEL ARE ENTITLED. THERE IS NOTHING IN THE LANGUAGE OF THE ACT OF FEBRUARY 21, 1946, OR IN ITS LEGISLATIVE HISTORY TO INDICATE THAT ITS PROVISIONS RELATING TO RETIRED PAY WERE INTENDED TO BE APPLICABLE TO OFFICERS "WHOLLY RETIRED" FROM THE NAVY, AND HENCE IT MUST BE CONCLUDED THAT SUCH ACT DOES NOT AUTHORIZE THE COMPUTATION OF THE ONE YEAR'S PAY PROVIDED BY SECTION 1454, REVISED STATUTES, ON THE BASIS OF THE PAY OF A TEMPORARY RANK. CF. MILLER V. UNITED STATES, 69 C.1CLS. 50; HANNUM V. UNITED STATES, 226 U.S. 436:

SIMILARLY, SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, HAS REFERENCE TO THE RETIREMENT AND THE RETIRED PAY, OF OFFICERS SERVING UNDER TEMPORARY APPOINTMENTS, AND THERE IS NOTHING IN THE LANGUAGE OF THAT ACT OR ITS LEGISLATIVE HISTORY TO SUGGEST THAT IT WAS THE INTENT OF THE CONGRESS TO CHANGE, IN ANY WAY, THE LAW RESPECTING THE COMPUTATION OF THE LUMP-SUM PAYMENT PROVIDED FOR OFFICERS "WHOLLY RETIRED" FROM THE NAVY PURSUANT TO SECTION 1454, REVISED STATUTES, SUPRA.

IN THE DECISION OF SEPTEMBER 3, 1947, 27 COMP. GEN. 152, CITED BY THE BUREAU OF SUPPLIES AND ACCOUNTS, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

A REGULAR NAVY OFFICER SERVING UNDER A TEMPORARY APPOINTMENT IN A RANK HIGHER THAN THAT OF HIS PERMANENT RANK WHO, WITH THE PRESIDENT'S APPROVAL, WAS RETIRED FOR PHYSICAL DISABILITY NOT INCIDENT TO THE SERVICE ON FURLOUGH PAY PURSUANT TO SECTION 1454, REVISED STATUTES, IS ENTITLED UNDER SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS HIGHER TEMPORARY RANK--- IT HAVING BEEN ADMINISTRATIVELY DETERMINED THAT HE SERVED SATISFACTORILY THEREIN--- AT THE RATE OF ONE-HALF OF THE BASE AND LONGEVITY PAY OF SUCH RANK AS PRESCRIBED BY SECTION 1593, REVISED STATUTES. THAT DECISION WAS BASED UPON THE EXPRESS RECOGNITION IN SECTION 1593, REVISED STATUTES (34 U.S.C. 998), THAT AN OFFICER RETIRED ON FURLOUGH PAY PURSUANT TO SECTION 1454, REVISED STATUTES, SUPRA, IS AN OFFICER ON THE RETIRED LIST. HOWEVER, AS STATED ABOVE, SECTION 1457, REVISED STATUTES (34 U.S.C. 389), SPECIFICALLY EXCLUDES FROM THE RETIRED LIST THE NAMES OF OFFICERS "WHOLLY RETIRED" PURSUANT TO THE SAID SECTION 1454.

ACCORDINGLY, IN ANSWER TO YOUR QUESTIONS, I HAVE TO ADVISE THAT THE ABOVE -QUOTED PROVISIONS OF THE ACTS OF FEBRUARY 21, 1946, AND AUGUST 7, 1947, ARE NOT TO BE CONSIDERED AS AUTHORIZING OR REQUIRING ANY CHANGE IN THE RULE STATED IN THE DECISION OF JUNE 26, 1945, 24 COMP. GEN. 934, TO THE EFFECT THAT THE ONE YEAR'S PAY TO BE PAID TO AN OFFICER OF THE REGULAR NAVY WHO, WHILE SERVING IN A HIGHER RANK UNDER A TEMPORARY APPOINTMENT, IS WHOLLY RETIRED FROM SERVICE PURSUANT TO SECTION 1454, REVISED STATUTES, SUPRA, FOR DISABILITY NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF HIS PERMANENT RANK, AND NOT THAT OF HIS TEMPORARY RANK.