B-86585, JUNE 20, 1949, 28 COMP. GEN. 722

B-86585, JUNE 20, 1949, 28 COMP. GEN. 722

PAY - RETIRED - REAR ADMIRALS - FORMER JUDGE ADVOCATE GENERAL UPON THE RETIREMENT, PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, OF A REAR ADMIRAL (LOWER HALF) WHO HAD SERVED AS JUDGE ADVOCATE GENERAL FOR MORE THAN TWO AND ONE-HALF YEARS WITH THE PAY AND ALLOWANCES OF THE UPPER HALF, THE RETIRED PAY PROPERLY PAYABLE IS TO BE COMPUTED UNDER THE PROVISIONS OF SECTION 7 (A) OF SAID ACT AS AMENDED, CONSIDERED IN CONJUNCTION WITH THE TERMS OF THE ACT OF JUNE 22, 1948, ON THE BASIS OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL (UPPER HALF), PROVIDED THE PRESIDENT, IN ACCORDANCE WITH THE 1938 ACT, APPROVES THE OFFICER'S RETIREMENT IN THE RANK HELD BY HIM AS JUDGE ADVOCATE GENERAL.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 20, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1949, REQUESTING DECISION AS TO WHETHER REAR ADMIRAL O. S. COLCLOUGH, U.S. NAVY, WILL BE ENTITLED TO RETIRED PAY ON THE BASIS OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL, UPPER HALF, IN THE EVENT HE IS TRANSFERRED TO THE RETIRED LIST ON HIS OWN APPLICATION PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, UPON COMPLETION OF OVER 29 BUT LESS THAN 30 YEARS' SERVICE. IF SO, YOU REQUEST THAT YOU BE ADVISED AS TO THE RATE AT WHICH HIS RETIRED PAY SHOULD BE COMPUTED.

IT APPEARS THAT THE OFFICER WAS APPOINTED A MIDSHIPMAN ON JULY 19, 1917, AND WAS COMMISSIONED AN ENSIGN ON JUNE 5, 1920; THAT HE ULTIMATELY WAS APPOINTED A COMMANDER (PERMANENT APPOINTMENT) ON JANUARY 1, 1941; AND THAT ON JULY 15, 1945, HE RECEIVED AN APPOINTMENT AS CAPTAIN FOR TEMPORARY SERVICE PURSUANT TO THE PROVISION OF THE ACT OF JULY 24, 1941, 55 STAT. 603. ON JULY 24, 1945, HE WAS APPOINTED A REAR ADMIRAL FOR TEMPORARY SERVICE UNDER THE SAID ACT OF JULY 24, 1941, TO CONTINUE WHILE SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, AND ON NOVEMBER 2, 1945, HE WAS APPOINTED JUDGE ADVOCATE GENERAL OF THE NAVY WITH THE RANK OF REAR ADMIRAL. HE SERVED AS SUCH JUDGE ADVOCATE GENERAL CONTINUOUSLY FROM NOVEMBER 1945 TO JUNE 1948, A PERIOD OF MORE THAN TWO AND ONE-HALF YEARS, AND WHILE SO SERVING HE WAS ENTITLED TO AND RECEIVED THE ACTIVE-DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF. EFFECTIVE AUGUST 17, 1947, HE RECEIVED A PERMANENT APPOINTMENT AS REAR ADMIRAL. IT IS UNDERSTOOD THAT REAR ADMIRAL COLCLOUGH COMPLETED 29 YEARS OF ACTIVE COMMISSIONED SERVICE ON JUNE 5, 1949, AND THAT HE NOW IS RECEIVING THE ACTIVE-DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL, LOWER HALF.

THE ACT OF JUNE 22, 1938, 52 STAT. 839, AS AMENDED, 34 U.S.C. 685A, PROVIDES IN PERTINENT PART AS FOLLOWS:

ANY OFFICER OF THE NAVY OR MARINE CORPS WHO MAY BE RETIRED WHILE SERVING AS CHIEF OF NAVAL OPERATIONS, AS CHIEF OF A BUREAU OF THE NAVY DEPARTMENT, AS JUDGE ADVOCATE GENERAL OF THE NAVY, OR AS COMMANDANT OF THE MARINE CORPS, OR WHO HAS SERVED OR SHALL HAVE SERVED TWO AND ONE HALF YEARS OR MORE AS CHIEF OF A BUREAU OF THE NAVY DEPARTMENT, AS JUDGE ADVOCATE GENERAL OF THE NAVY, OR AS COMMANDANT OF THE MARINE CORPS, AND IS RETIRED AFTER COMPLETION OF SUCH SERVICE WHILE SERVING IN A LOWER RANK OR GRADE, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE OR RANK HELD BY HIM AS SUCH CHIEF OF NAVAL OPERATIONS, CHIEF OF BUREAU, JUDGE ADVOCATE GENERAL, OR COMMANDANT * * *.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AUTHORIZES THE VOLUNTARY RETIREMENT OF ANY OFFICER OF THE NAVY OR MARINE CORPS, OR THE RESERVE COMPONENTS OF SUCH SERVICES, WHO HAS COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR ANY RESERVE COMPONENTS THEREOF, PROVIDED AT LEAST 10 YEARS OF SUCH SERVICE HAVE BEEN ACTIVE COMMISSIONED SERVICE. SECTION 7 (A) OF THE SAID ACT, 60 STAT. 27, PROVIDES THAT ANY SUCH OFFICER SO RETIRED SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY AND IN WHICH HE SERVED SATISFACTORILY, 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. THE SAID SECTION 7 (A), AS ORIGINALLY ENACTED, CONTAINED A PROVISO " THAT OFFICERS WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF THEIR ACTIVE DUTY PAY.' HOWEVER, THE SAID SECTION 7 (A) WAS AMENDED BY SECTION 432 (A) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 881, BY ADDING AN ADDITIONAL PROVISO AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT IN THE CASE OF OFFICERS HEREAFTER RETIRED, EXCEPT THOSE RETIRED FOR PHYSICAL DISABILITY OR IN ACCORDANCE WITH SECTION 412 OF THIS ACT, WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE THEY SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY IN THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH THEY WOULD BE ENTITLED TO CREDIT IN THE COMPUTATION OF PAY ON THE ACTIVE LIST HAD THEY BEEN SERVING IN THE GRADE OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS AT THAT TIME OF THEIR RETIREMENT, BUT RETIRED PAY SO COMPUTED SHALL NOT EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY.

THE PURPOSE OF SAID AMENDMENT WAS TO REQUIRE OFFICERS OF HIGHER GRADES AND RANKS WHOSE ACTIVE-DUTY PAY IS NOT BASED UPON YEARS OF SERVICE TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THEIR LENGTH OF SERVICE--- THE SAME AS OFFICERS OF LOWER GRADES--- RATHER THAN TO ALLOW THEM A FLAT 75 PERCENTUM OF THEIR ACTIVE-DUTY PAY. SEE REPORT NO. 640, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 3830, WHICH BECAME THE OFFICER PERSONNEL ACT OF 1947. HENCE, UNDER THE SAID AMENDMENT, OFFICERS THEREAFTER RETIRED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, WHOSE ACTIVE-DUTY PAY IS NOT BASED UPON YEARS OF SERVICE, ARE TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS PRESCRIBED THEREIN, RATHER THAN ON THE BASIS OF A FLAT 75 PERCENTUM OF THEIR ACTIVE-DUTY PAY. HOWEVER, INASMUCH AS THE SAID PROVISO IN SECTION 432 (A) OF THE OFFICER PERSONNEL ACT OF 1947 PROVIDES THAT SUCH OFFICERS SHALL RECEIVE RETIRED PAY BASED UPON THEIR ACTIVE-DUTY PAY "IN THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT" AND SINCE REAR ADMIRAL COLCLOUGH PRESENTLY IS RECEIVING THE PAY OF A REAR ADMIRAL OF THE LOWER HALF, DOUBT HAS ARISEN AS TO WHETHER HE WOULD BE ENTITLED UNDER THE ACT OF JUNE 22, 1938, SUPRA, TO COMPUTE HIS RETIRED PAY ON THE BASIS OF ACTIVE-DUTY PAY OF A REAR ADMIRAL, UPPER HALF, IF HE PRESENTLY SHOULD BE RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA.

IT WILL BE NOTED THAT THE SAID ACT OF JUNE 22, 1938. AS AMENDED, DOES NOT AUTHORIZE THE RETIREMENT OF THE JUDGE ADVOCATE GENERAL OR A FORMER JUDGE ADVOCATE GENERAL; THE QUESTION AS TO WHETHER SUCH AN OFFICER IS ELIGIBLE FOR RETIREMENT IN THE FIRST INSTANCE AND THE "RATE" OF RETIREMENT PAY TO WHICH HE IS ENTITLED BEING FOR DETERMINATION UNDER OTHER STATUTORY PROVISIONS--- IN THIS CASE, SECTIONS 6 AND 7 OF THE ACT OF FEBRUARY 21, 1946. HAVING COMPLETED OVER 29 YEARS' ACTIVE SERVICE, THE OFFICER WILL BE ELIGIBLE TO APPLY FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AND, IN THE EVENT HIS RETIREMENT IS APPROVED, HE WILL BE ENTITLED UNDER THE STATUTE TO 72 1/2 PERCENTUM (29 X 2 1/2) OF THE ACTIVE- DUTY PAY OF "THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' THERE ARE TWO RATES OF ACTIVE-DUTY PAY PRESCRIBED FOR THE "GRADE" OF REAR ADMIRAL, THE RATE APPLICABLE TO ANY PARTICULAR REAR ADMIRAL OF THE LINE OF THE NAVY BEING DEPENDENT ON WHETHER HIS NUMERICAL POSITION ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY IS IN THE UPPER HALF OR THE LOWER HALF. AND, GENERALLY, RETIRED PAY, WHEN AUTHORIZED TO BE COMPUTED ON THE ACTIVE DUTY PAY OF A REAR ADMIRAL, IS COMPUTED ON THE ACTIVE-DUTY PAY PRESCRIBED FOR THE UPPER HALF OR THE LOWER HALF, DEPENDING ON WHETHER THE INDIVIDUAL OFFICER IS A REAR ADMIRAL OF THE UPPER HALF OR OF THE LOWER HALF. WHILE REAR ADMIRAL COLCLOUGH MAY NOT BE ENTITLED, BY VIRTUE OF HIS LINEAL POSITION ON THE LIST OF REAR ADMIRALS, TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF, AT THE TIME OF RETIREMENT, THE ACT OF JUNE 22, 1938, SPECIFICALLY PROVIDES THAT SUCH AN OFFICER MAY, IN THE DISCRETION OF THE PRESIDENT, BE PLACED ON THE RETIRED LIST WITH THE "RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE OR RANK HELD BY HIM" AS JUDGE ADVOCATE GENERAL. BUT, SINCE THE SAID 1938 ACT--- NOT BEING A STATUTE AUTHORIZING RETIREMENT-- DOES NOT PRESCRIBE ANY RATE OF RETIREMENT PAY, IT IS NECESSARY TO LOOK TO THE STATUTE UNDER WHICH THE OFFICER'S RETIREMENT IS AUTHORIZED IN ORDER TO DETERMINE HIS RATE OF RETIRED PAY; IN THIS CASE, SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, AS AMENDED. UNDER THE SAID SECTION 7, CONSIDERED IN CONJUNCTION WITH THE ACT OF JUNE 22, 1938, IT MUST BE CONCLUDED THAT REAR ADMIRAL COLCLOUGH WOULD BE ENTITLED TO 72 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF A REAR ADMIRAL, UPPER HALF, IF HE WERE NOW RETIRED PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, PROVIDED, OF COURSE, THAT THE PRESIDENT APPROVES HIS RETIREMENT "WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE OR RANK HELD BY HIM" AS JUDGE ADVOCATE GENERAL OF THE NAVY. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.