B-87642, OCTOBER 21, 1949, 29 COMP. GEN. 196

B-87642, OCTOBER 21, 1949, 29 COMP. GEN. 196

PAY - RETIRED - REGULAR NAVY ENLISTED MAN RETIRED FOR DISABILITY WHILE HOLDING TEMPORARY COMMISSION A REGULAR NAVY ENLISTED MAN, SERVING IN A TEMPORARY WARRANT RANK, WHO SUBSEQUENTLY WAS ADVANCED TO THE TEMPORARY RANKS OF ENSIGN AND LIEUTENANT (JG) UNDER THE ACT OF JULY 24, 1941, AND WHO WAS TRANSFERRED TO THE RETIRED LIST ON JULY 1, 1948, FOR PHYSICAL DISABILITY INCURRED WHILE SERVING AS AN ENSIGN PRIOR TO COMMENCEMENT OF SERVICE AS A LIEUTENANT, WAS ENTITLED, BY VIRTUE OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, TO BE RETIRED IN THE RANK OF LIEUTENANT (JG) IN WHICH SERVING AT THE TIME OF RETIREMENT WITH RETIRED PAY BASED ON THAT RANK, RATHER THAN IN THE RANK OF ENSIGN WITH RETIRED PAY BASED ON SUCH RANK. 28 COMP. GEN. 536, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 21, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 30, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION ON THE FOLLOWING QUESTION:

WHETHER SECTION 316 (J) (34 U.S. CODE, SUPP. I, SEC. 410M) OF THE OFFICER PERSONNEL ACT OF 1947, SUPERSEDES, OR REPEALS BY IMPLICATION, ON AND AFTER AUGUST 7, 1947, THE PROVISIONS IN SECTIONS 8 AND 10 OF THE ACT OF JULY 24, 1941, AS AMENDED (34 U.S.C. 350G (A) AND 350 (I) (, WITH RESPECT TO THE RANK ON WHICH RETIRED PAY IS TO BE BASED.

FROM THE ENCLOSURE FORWARDED WITH YOUR LETTER IT APPEARS THAT DECISION ON SUCH QUESTION IS REQUIRED TO CLARIFY THE RETIRED STATUS OF LEONARD JOSEPH RICCI, A PERMANENT ENLISTED MAN OF THE REGULAR NAVY, AND OTHER PERSONNEL SIMILARLY SITUATED.

IT APPEARS THAT ON OCTOBER 15, 1943, MR. RICCI, WHILE SERVING AS AN ENLISTED MAN IN THE REGULAR NAVY, WAS APPOINTED A MACHINIST (WARRANT OFFICER) FOR TEMPORARY SERVICE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. ON OCTOBER 15, 1944, HE WAS APPOINTED AN ENSIGN AND ON AUGUST 1, 1946, HE WAS APPOINTED A LIEUTENANT (JG), BOTH SUCH APPOINTMENTS BEING FOR TEMPORARY SERVICE UNDER THE PROVISIONS OF THE SAID ACT OF JULY 24, 1941.

A NAVAL RETIRING BOARD, CONVENED ON OCTOBER 21, 1947, FOUND THAT LIEUTENANT RICCI WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE SERVING IN TIME OF WAR IN THE RANK OF ENSIGN BUT PRIOR TO COMMENCEMENT OF SERVICE IN THE RANK OF LIEUTENANT (JG). SUCH PROCEEDINGS AND FINDINGS OF THE NAVAL RETIRING BOARD WERE APPROVED ON JUNE 28, 1948, BY THE SECRETARY OF THE NAVY. IN THAT CONNECTION, SECTION 8 (A) OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, PROVIDES THAT---

AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK. ( ITALICS SUPPLIED.)

SECTION 10 (B) OF THAT ACT, AS ADDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(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 SECTION 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. ( ITALICS SUPPLIED.)

SINCE LIEUTENANT (JG) RICCI'S DISABILITY WAS DETERMINED TO HAVE BEEN INCURRED WHILE SERVING IN THE TEMPORARY RANK OF ENSIGN, AND SINCE THE RANK OF ENSIGN WAS THE HIGHEST IN WHICH HE SERVED ON OR PRIOR TO JUNE 30, 1946- -- PRESUMABLY HE WAS NOT A PRISONER OF WAR AT ANY TIME DURING WORLD WAR II --- HE WAS, ON JULY 1, 1948, TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF ENSIGN AND HIS RETIRED PAY WAS COMPUTED ON THE PAY OF THAT RANK.

IT IS STATED THAT THE OFFICER'S APPOINTMENT AS A LIEUTENANT (JG) FOR TEMPORARY SERVICE WAS CONTINUED IN EFFECT IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795.

SECTION 316 (J) OF THAT ACT, 61 STAT. 868, PROVIDES AS FOLLOWS:

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 302 (A) OF SUCH ACT, 61 STAT. 829, READS, IN PERTINENT PART, AS FOLLOWS:

AS USED IN THIS TITLE * * * THE WORD "OFFICERS" SHALL, UNLESS OTHERWISE QUALIFIED, BE INTERPRETED TO MEAN ALL OFFICERS OF THE GRADE OF ENSIGN AND ABOVE ON ACTIVE DUTY IN THE NAVY, EXCLUSIVE OF OFFICERS ON THE RETIRED LIST, EXCLUSIVE OF OFFICERS OF THE NAVAL RESERVE ASSIGNED TO ACTIVE DUTY FOR TRAINING, AND EXCLUSIVE OF OFFICERS OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY IN CONNECTION WITH ORGANIZING , ADMINISTERING, RECRUITING, INSTRUCTING, TRAINING, OR DRILLING THE NAVAL RESERVE, OR ORDERED TO TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF PROSECUTING SPECIAL WORK * * *.

SECTION 302 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, IN DEFINING THE TERM "OFFICERS" AS USED IN THAT TITLE, CLEARLY INDICATES THAT, EXCEPT FOR THOSE EXPRESSLY EXCLUDED, THE TERM WAS INTENDED TO INCLUDE ALL PERSONS HOLDING A COMMISSION IN THE NAVY, BOTH REGULAR AND RESERVE, REGARDLESS OF WHETHER SUCH PERSON HELD A PERMANENT COMMISSION. SEE, IN THAT CONNECTION, REPORT OF THE HEARINGS ON H.R. 2536--- THE FORERUNNER OF H.R. 3830, THE BILL WHICH BECAME THE OFFICER PERSONNEL ACT OF 1947--- BEFORE SUBCOMMITTEE NO. 1, PERSONNEL, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, PAGE 2667, ET SEQ. HENCE, IN VIEW OF SECTION 316 (J) OF THE ACT, QUOTED ABOVE, MR. RICCI WAS ENTITLED TO BE RETIRED IN THE GRADE OF LIEUTENANT (JG) AND HE IS ENTITLED TO RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS RETIREMENT. SEE CLOUD V. UNITED STATES, 43 C.1CLS. 69, AND 25 COMP. GEN. 626. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

THE FACTS IN THIS CASE ARE, OF COURSE, TO BE DISTINGUISHED FROM THOSE IN THE CASES CONSIDERED IN DECISION OF MARCH 23, 1949, 28 COMP. GEN. 536, WHERE THE ANSWER TURNED ON THE FACT THAT THERE WAS NO BASIC AUTHORITY TO RETIRE THE INDIVIDUALS THERE CONCERNED, AND HENCE SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, WAS NOT FOR APPLICATION.