B-88449, OCTOBER 14, 1949, 29 COMP. GEN. 187

B-88449: Oct 14, 1949

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- WAS ENTITLED. SUCH ACKNOWLEDGMENT WAS FORWARDED TO THE BUREAU OF NAVAL PERSONNEL ON THAT SAME DATE BY MR. CARDEN WAS PLACED ON THE RETIRED LIST. SUCH RETIREMENT WAS EFFECTED UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24. 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. CARDEN NEVER WAS APPOINTED TO THE RANK OF LIEUTENANT COMMANDER FOR TEMPORARY SERVICE AND ON AUGUST 13. OVERPAYMENTS OF RETIRED PAY WHICH WERE MADE TO HIM HAVING BEEN ADJUSTED. IT IS THE LAW AND NOT THE RECOMMENDATION OF A RETIRING BOARD. WHERE THE DECISION WILL TURN EXCLUSIVELY UPON THE PROPER CONSTRUCTION OF A STATUTE.

B-88449, OCTOBER 14, 1949, 29 COMP. GEN. 187

RETIRED PAY; RETIREMENT - REGULAR NAVY ENLISTED MAN PURPORTEDLY APPOINTED TO NEXT HIGHER TEMPORARY RANK A REGULAR NAVY ENLISTED MAN, SERVING AS A TEMPORARY OFFICER, WHO RECEIVED APPOINTMENT TO THE NEXT HIGHER RANK FOR TEMPORARY SERVICE PURSUANT TO THE ALLEGED AUTHORITY IN ALNAV 208 DATED APRIL 29, 1946--- WHICH DID NOT ANNOUNCE, OR AUTHORIZE, ANY SUCH APPOINTMENTS--- WAS ENTITLED, UNDER SECTION 8 (A) OF THE ACT OF JULY 24, 1941, UPON RETIREMENT FOR PHYSICAL DISABILITY, TO RETIREMENT IN THE LOWER RANK LEGALLY HELD AT THE TIME OF RETIREMENT AND NOT IN THE HIGHER RANK TO WHICH PURPORTEDLY APPOINTED, AND TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF THE LOWER TEMPORARY RANK HELD UPON RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 14, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 1, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION AS TO THE RETIRED PAY STATUS OF TOM HAYES CARDEN, UNITED STATES NAVY, UNDER THE FOLLOWING STATEMENT OF FACTS.

IT APPEARS THAT ON MAY 10, 1946, MR. CARDEN, A PERMANENT ENLISTED MAN OF THE REGULAR NAVY, THEN SERVING UNDER AN APPOINTMENT AS A LIEUTENANT, FOR TEMPORARY SERVICE, ACKNOWLEDGED RECEIPT OF AN APPOINTMENT AS A LIEUTENANT COMMANDER, FOR TEMPORARY SERVICE PURSUANT TO ALLEGED AUTHORITY CONTAINED IN ALNAV 208, DATED APRIL 29, 1946. SUCH ACKNOWLEDGMENT WAS FORWARDED TO THE BUREAU OF NAVAL PERSONNEL ON THAT SAME DATE BY MR. CARDEN'S COMMANDING OFFICER AND THERE FILED. THEREAFTER, MR. CARDEN WORE THE INSIGNIA, PERFORMED THE DUTIES, AND RECEIVED THE PAY OF A LIEUTENANT COMMANDER. SUBSEQUENTLY, ON MAY 31, 1947, THE PRESIDENT APPROVED THE PROCEEDINGS AND FINDINGS OF A NAVAL RETIRING BOARD, AND THE RECOMMENDATION OF THE SECRETARY OF THE NAVY, PURSUANT TO WHICH MR. CARDEN WAS PLACED ON THE RETIRED LIST, PURPORTEDLY IN THE RANK OF LIEUTENANT COMMANDER, BECAUSE OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY "WHILE SERVING IN THE GRADE OF LIEUTENANT COMMANDER.' SUCH RETIREMENT WAS EFFECTED UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, WHICH READS AS FOLLOWS:

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.

AS A MATTER OF FACT, ALNAV 208 OF APRIL 29, 1946, MERELY REQUESTED COMMANDING OFFICERS TO SUBMIT RECOMMENDATIONS IN APPROPRIATE CASES FOR APPOINTMENT TO WARRANT OR COMMISSIONED STATUS OF CERTAIN FORMER PRISONERS OF WAR AND DID NOT ANNOUNCE, OR AUTHORIZE, ANY SUCH APPOINTMENTS. HENCE, MR. CARDEN NEVER WAS APPOINTED TO THE RANK OF LIEUTENANT COMMANDER FOR TEMPORARY SERVICE AND ON AUGUST 13, 1947, THE CHIEF OF NAVAL PERSONNEL, IN EFFECT, SO ADVISED THE BUREAU OF SUPPLIES AND ACCOUNTS, AND SINCE THAT TIME HE HAS BEEN PAID RETIRED PAY ON THE BASIS OF HIS RANK AS A LIEUTENANT, OVERPAYMENTS OF RETIRED PAY WHICH WERE MADE TO HIM HAVING BEEN ADJUSTED.

IT WOULD APPEAR TO BE WELL SETTLED THAT EXECUTIVE ORDERS ACCOMPLISH RETIREMENT ONLY AS THEY APPLY IN PARTICULAR CASES, AND WHEN NOT IN CONFLICT WITH LAW. IT IS THE LAW AND NOT THE RECOMMENDATION OF A RETIRING BOARD, THOUGH SUPPLEMENTED BY THE APPROVAL OF THE PRESIDENT, WHICH FIXES AN OFFICER'S STATUS AND CONSEQUENT RIGHT TO PAY, AND WHERE THE DECISION WILL TURN EXCLUSIVELY UPON THE PROPER CONSTRUCTION OF A STATUTE, AN EXECUTIVE ORDER IS NOT FINAL. SEE CLOUD V. UNITED STATES, 43 C.1CLS. 69, CITING MEDBURY V. UNITED STATES, 173 U.S. 497; AND 25 COMP. GEN. 626.

IN THE INSTANT CASE IT IS APPARENT THAT THE OFFICER NEVER LEGALLY WAS APPOINTED TO, OR HELD, THE OFFICE OF A LIEUTENANT COMMANDER, THE HIGHEST OFFICE HELD BY HIM BEING THAT OF LIEUTENANT, AND THIS LATTER RANK IS THE RANK HE HELD AT THE TIME OF RETIREMENT. THEREFORE, UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, SUPRA, HE WAS ENTITLED TO RETIREMENT ONLY IN THE RANK OF LIEUTENANT, AND HE IS ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED AS A LIEUTENANT. SEE DECISION OF JANUARY 8, 1947, TO THE SECRETARY OF THE NAVY, B-61756. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.