B-81385, MARCH 23, 1949, 28 COMP. GEN. 536

B-81385: Mar 23, 1949

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RETIREMENT - DISABILITY - REGULAR NAVY ENLISTED MEN HOLDING TEMPORARY COMMISSIONS ENLISTED MEN OF THE REGULAR NAVY WHO WERE TEMPORARILY APPOINTED AS COMMISSIONED OFFICERS UNDER THE ACT OF JULY 24. WHICH APPOINTMENTS WERE AFFIRMED OR CONTINUED IN EFFECT UNDER THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947. ARE NOT TO BE REGARDED AS OFFICERS OF THE REGULAR NAVY WITHIN THE PURVIEW OF SECTION 1453. WHEREIN DECISION IS REQUESTED ON CERTAIN QUESTIONS PRESENTED IN A LETTER DATED OCTOBER 14. IN THE SAID LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REFERENCE IS MADE TO THE CASES OF TWO ENLISTED MEN IN THE REGULAR NAVY WHO ORIGINALLY WERE TEMPORARILY APPOINTED TO WARRANT RANK UNDER THE PROVISIONS OF THE ACT OF JULY 24.

B-81385, MARCH 23, 1949, 28 COMP. GEN. 536

RETIREMENT - DISABILITY - REGULAR NAVY ENLISTED MEN HOLDING TEMPORARY COMMISSIONS ENLISTED MEN OF THE REGULAR NAVY WHO WERE TEMPORARILY APPOINTED AS COMMISSIONED OFFICERS UNDER THE ACT OF JULY 24, 1941, AS AMENDED, WHICH APPOINTMENTS WERE AFFIRMED OR CONTINUED IN EFFECT UNDER THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, ARE NOT TO BE REGARDED AS OFFICERS OF THE REGULAR NAVY WITHIN THE PURVIEW OF SECTION 1453, REVISED STATUTES, SO AS TO BE ENTITLED THEREUNDER TO RETIREMENT FOR PHYSICAL DISABILITY INCURRED AS AN INCIDENT OF THE SERVICE PRIOR TO THEIR APPOINTMENTS AS TEMPORARY COMMISSIONED OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 23, 1949:

THERE HAS BEEN CONSIDERED LETTER OF NOVEMBER 3, 1948, FROM THE ACTING SECRETARY OF THE NAVY, WHEREIN DECISION IS REQUESTED ON CERTAIN QUESTIONS PRESENTED IN A LETTER DATED OCTOBER 14, 1948, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, ENCLOSED HEREWITH.

IN THE SAID LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REFERENCE IS MADE TO THE CASES OF TWO ENLISTED MEN IN THE REGULAR NAVY WHO ORIGINALLY WERE TEMPORARILY APPOINTED TO WARRANT RANK UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND SUBSEQUENTLY WERE TEMPORARILY APPOINTED AS COMMISSIONED OFFICERS UNDER THAT ACT, WHICH TEMPORARY APPOINTMENTS AS COMMISSIONED OFFICERS LATER WERE AFFIRMED OR CONTINUED IN EFFECT UNDER THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829. THEREAFTER, THEY BOTH APPEARED BEFORE NAVY RETIRING BOARDS AND IT WAS FOUND THAT THEY WERE PERMANENTLY INCAPACITATED FOR FURTHER ACTIVE SERVICE BECAUSE OF PHYSICAL DISABILITY. IT WAS FURTHER DETERMINED THAT SUCH DISABILITIES WERE THE RESULT OF AN INCIDENT OF THE SERVICE INCURRED PRIOR TO THE EFFECTIVE DATES OF THE COMMENCEMENT OF THEIR ACTIVE SERVICE UNDER THEIR ORIGINAL TEMPORARY APPOINTMENTS UNDER THE SAID ACT OF JULY 24, 1941.

IT IS STATED THAT THE PROCEEDINGS AND FINDINGS OF THE NAVY RETIREMENT BOARDS, REFERRED TO ABOVE, WERE FOUND TO BE LEGAL BY THE JUDGE ADVOCATE GENERAL OF THE NAVY AND WERE TRANSMITTED TO THE SECRETARY OF THE NAVY FOR APPROVAL WITH THE RECOMMENDATION THAT THE TEMPORARY OFFICERS IN QUESTION BE RETIRED FROM ACTIVE SERVICE AND BE PLACED ON THE RETIRED LIST "IN CONFORMITY WITH THE PROVISIONS OF 34 U.S.C. 417 AND 41OM" IN THE GRADE HELD BY THEM AT THE TIME OF RETIREMENT. IT IS FURTHER STATED THAT THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS AND THE TEMPORARY OFFICERS WERE "RELEASED FROM ACTIVE DUTY" AND TRANSFERRED TO THE RETIRED LIST ON OCTOBER 1, 1948, ONE IN THE GRADE OF LIEUTENANT AND THE OTHER IN THE GRADE OF CHIEF CARPENTER (COMMISSIONED WARRANT OFFICER).

ON THE ABOVE STATEMENT OF FACTS, DECISION IS REQUESTED AS TO WHETHER THE TEMPORARY OFFICERS IN QUESTION ARE ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY PROVIDED BY LAW FOR THE GRADE OF LIEUTENANT AND CHIEF CARPENTER, RESPECTIVELY.

SECTION 1453, REVISED STATUTES, 34 U.S.C. 417, PROVIDES:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS A RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY.

SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 868, 34 U.S.C., SUPP. I, 410M, PROVIDES: 868, 34 U.S.C., SUPP. 1, 41OM, PROVIDES: AUTHORITY OF SECTIONS 3C, 5A, 211A, 306-306N, 332B, 332C, 410J-410M (SIC), 626-1, AND 864B 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.

THIS OFFICE IS NOT COGNIZANT OF ANY STATUTORY AUTHORITY FOR THE RETIREMENT OF ENLISTED MEN OF THE REGULAR NAVY FOR DISABILITY INCURRED WHILE THEY ARE SERVING AS ENLISTED MEN, EXCEPT TO THE EXTENT THAT SUCH RETIREMENT MAY, IN EFFECT, BE ACCOMPLISHED IN PROPER CASES BY TRANSFER TO THE FLEET RESERVE. SEE SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED, 34 U.S.C. 854E. IN ANY EVENT, THE RETIREMENT OF THE TEMPORARY OFFICERS HERE CONCERNED IS STATED TO HAVE BEEN EFFECTED UNDER THE PROVISIONS OF SECTION 1453, REVISED STATUTES, SUPRA. HENCE, THEIR RIGHT TO RETIREMENT PAY IS DEPENDENT UPON WHETHER OR NOT THEY MAY BE CONSIDERED TO BE OFFICERS WITHIN THE PURVIEW OF THAT STATUTORY PROVISION.

IT WOULD APPEAR TO BE WELL SETTLED THAT AN INDIVIDUAL MAY BE AN OFFICER OF THE NAVY FOR THE PURPOSES OF ONE STATUTE AND NOT AN OFFICER OF THE NAVY FOR THE PURPOSES OF ANOTHER STATUTE. SEE ASHTON V. UNITED STATES, 50 C.1CLS. 65, CITING UNITED STATES V. MOUAT, 124 U.S. 303, AND UNITED STATES V. HENDEE, ID. 309. AND, I THINK, IT HERETOFORE HAS BEEN CONSIDERED THAT THE LAWS PROVIDING GENERALLY FOR THE RETIREMENT OF OFFICERS OF THE NAVY REFER ONLY TO OFFICERS HOLDING PERMANENT COMMISSIONS IN THE REGULAR NAVY. CF. 22 OP. ATTY. GEN. 199, 201, AND 25 ID. 312, 316.

AFTER THE ONSET OF THE FIRST WORLD WAR THE APPOINTMENT OF TEMPORARY OFFICERS IN THE NAVY WAS AUTHORIZED BY THE ACT OF MAY 22, 1917, 40 STAT. 84, AND SECTION 9 THEREOF (40 STAT. 86) SPECIFICALLY PROVIDED THAT ANY PERSON ORIGINALLY APPOINTED AS A TEMPORARY OFFICER THEREUNDER WOULD NOT BE ENTITLED TO ANY RIGHTS OF RETIREMENT EXCEPT FOR DISABILITY INCURRED IN LINE OF DUTY. THE FACT THAT SUCH PROVISION WAS CONSIDERED NECESSARY MIGHT BE TAKEN AS INDICATING THAT SUCH PERSONS OTHERWISE WOULD HAVE BEEN ENTITLED TO ALL RETIREMENTS RIGHTS. HOWEVER, A SIMILAR PROVISION RESPECTING RESERVES (SEE THE NAVAL APPROPRIATION ACT, 1919, 40 STAT. 704, 710) WAS CONSIDERED BY THE SUPREME COURT AS MERELY AUTHORIZING THEIR RETIREMENT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY "BY IMPLICATION.' SEE DENBY V. BERRY, 263 U.S. 29, 35. THAT SUCH VIEW OF THE STATUTE WAS CORRECT, AND THAT IT WAS EQUALLY APPLICABLE TO TEMPORARY OFFICERS NOT HOLDING PERMANENT COMMISSIONS IN THE REGULAR NAVY, IS BORNE OUT BY THE FACT THAT IT HAD BEEN CONSIDERED NECESSARY IN A SUBSEQUENT STATUTE AFFIRMATIVELY TO AUTHORIZE BY AN EXPRESS PROVISION THE RETIREMENT OF SUCH RESERVE AND TEMPORARY OFFICERS FOR DISABILITY INCURRED IN LINE OF DUTY. SEE THE LAST PARAGRAPH OF SECTION 2 OF THE ACT OF JUNE 4, 1920, MAKING APPROPRIATIONS FOR THE NAVY FOR THE FISCAL YEAR 1921, 40 STAT. 834, AS AMENDED BY SECTION 6 OF THE NAVAL APPROPRIATION ACT, 1922, 42 STAT. 140, WHICH PROVIDED:

THAT ALL OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED OR MAY HEREAFTER INCUR PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR SHALL BE ELIGIBLE FOR RETIREMENT UNDER THE SAME CONDITIONS AS NOW PROVIDED BY LAW FOR OFFICERS OF THE REGULAR NAVY WHO HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY: PROVIDED, HOWEVER, THAT APPLICATION FOR SUCH RETIREMENT SHALL BE FILED WITH THE SECRETARY OF THE NAVY NOT LATER THAN OCTOBER 1, 1921. ( ITALICS SUPPLIED.)

CERTAINLY, THE INCLUSION OF TEMPORARY OFFICERS IN SUCH PROVISION WOULD HAVE BEEN WHOLLY UNNECESSARY IF BY REASON OF THEIR STATUS OF TEMPORARY OFFICERS OF THE NAVY THEY FELL WITHIN GENERAL RETIREMENT STATUTES APPLICABLE TO OFFICERS OF THE NAVY. SUCH EXPRESS PROVISION FOR LIMITED RETIREMENT LEAVES LITTLE, IF ANY, DOUBT BUT THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY TO THE CONTRARY, THE CONGRESS NEVER INTENDED OR CONSIDERED THE GENERAL LAWS RELATING TO THE RETIREMENT OF OFFICERS OF THE NAVY TO BE APPLICABLE TO ANY BUT OFFICERS HOLDING PERMANENT COMMISSIONS IN THE REGULAR NAVY. SUCH VIEW IS FURTHER STRENGTHENED BY THE FACT THAT IN ENACTING THE ACT OF JULY 24, 1941, SUPRA, IT WAS FELT NECESSARY TO MAKE SPECIAL PROVISIONS IN SECTION 8 THEREOF AUTHORIZING THE RETIREMENT OF ENLISTED MEN OF THE REGULAR NAVY WHO INCURRED PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT. IN DISCUSSING SUCH PROVISIONS AT THE HEARINGS BEFORE THE HOUSE OF REPRESENTATIVE COMMITTEE ON NAVAL AFFAIRS ON THE BILL, H.R. 4473, WHICH BECAME THE ACT OF JULY 24, 1941, IT WAS STATED (PAGE 1224 OF THE REPORT OF THE HEARINGS):

THE CHAIRMAN. THEN THE NEXT CASE IS THE COMMISSIONED OFFICER WHO HAS A TEMPORARY APPOINTMENT.

COMMISSIONER ( COMMANDER) RUSSELL. AN ENLISTED MAN WITH A TEMPORARY APPOINTMENT.

THE CHAIRMAN. WHAT DO YOU DO TO HIM?

COMMANDER RUSSELL. THIS BILL ALLOWS HIM TO RETIRE WITH THAT TEMPORARY RANK AND THREE-QUARTERS OF THAT PAY. IF WE DON-T MAKE SOME PROVISION HE WOULD NOT BE RETIRED AT ALL. THERE IS NO LAW COVERING HIS RETIREMENT. ITALICS SUPPLIED.)

IN VIEW OF THE FOREGOING, THE CONCLUSION IS REQUIRED THAT AN ENLISTED MAN OF THE REGULAR NAVY HOLDING A TEMPORARY COMMISSION IS NOT AN OFFICER WITHIN THE PURVIEW OF SECTION 1453, REVISED STATUTES, SUPRA. ACCORDINGLY, THE QUESTION PRESENTED, HEREINBEFORE SET FORTH, IS ANSWERED IN THE NEGATIVE.

THE FURTHER QUESTION IS ASKED, IN THE EVENT THE ANSWER TO THE QUESTION CONSIDERED ABOVE IS ANSWERED IN THE NEGATIVE, AS TO WHETHER ONE OF THE TEMPORARY OFFICERS INVOLVED, WHO IS STATED TO HAVE BEEN OTHERWISE QUALIFIED THEREFOR, MAY BE CONSIDERED TO HAVE BEEN TRANSFERRED TO THE FLEET RESERVE AND THEN RETIRED AS OF OCTOBER 1, 1948.

SECTIONS 203, 204, AND 206 OF THE NAVAL RESERVE ACT OF 1938, AS ORIGINALLY ENACTED, 52 STAT. 1178, 1179, AND SECTION 204 OF THE SAID NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, SPECIFICALLY SET FORTH THE REQUIREMENTS TO BE MET AND PROCEDURES TO BE FOLLOWED TO ACCOMPLISH THE TRANSFER OF AN ENLISTED MAN TO THE FLEET RESERVE AND TO EFFECT THE RETIREMENT OF MEMBERS OF THE FLEET RESERVE. WHILE IT MAY BE THAT ONE OF THE TEMPORARY OFFICERS MET ALL THE REQUIREMENTS FOR SUCH TRANSFER AND RETIREMENT, THE FACT REMAINS THAT THE PROCEDURES NECESSARY TO ACCOMPLISH THAT END WERE NEVER INITIATED. MOREOVER, THERE NEVER WAS ANY INTENTION TO ACCOMPLISH SUCH TRANSFER AND RETIREMENT. UNDER THE CIRCUMSTANCES, THE SECOND QUESTION ALSO MUST BE ANSWERED IN THE NEGATIVE.

INSOFAR AS THE RIGHTS OF THE TEMPORARY OFFICERS IN QUESTION TO PAY ARE CONCERNED, THE STATUS OF BOTH OF THEM SHOULD BE CONSIDERED TO HAVE CONTINUED TO BE THE SAME AS IT WAS IMMEDIATELY PRECEDING THEIR PURPORTED RETIREMENT ON OCTOBER 1, 1948. SEE 21 OP. ATTY. GEN. 103.