B-9607, APRIL 25, 1940, 19 COMP. GEN. 898

B-9607, APRIL 25, 1940, 19 COMP. GEN. 898

PAY - ACTIVE DUTY - RETIRED NAVY OFFICER A NAVY OFFICER RETIRED UNDER SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, WITH THE RANK OF CAPTAIN BUT IN THE PAY GRADE OF A COMMANDER, IS ENTITLED, ON RETURN TO ACTIVE DUTY, ONLY TO THE ACTIVE DUTY PAY AND ALLOWANCES OF COMMANDER EVEN THOUGH HE SERVED FOR A TIME PRIOR TO RETIREMENT IN THE HIGHER RANK.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 25, 1940:

I HAVE YOUR LETTER OF APRIL 6, 1940, REQUESTING DECISION ON THE QUESTION PRESENTED IN A LETTER FROM THE OFFICER IN CHARGE, OFFICERS' ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, DATED APRIL 1, 1940, AS TO WHETHER ACTIVE DUTY PAY AND ALLOWANCES IN THE CASE OF CAPT. MILES P. REFO, R., UNITED STATES NAVY, RETIRED, SHOULD BE CREDITED FOR THE GRADE OF CAPTAIN OR OF COMMANDER.

THE LETTER OF APRIL 1, 1940, IS AS FOLLOWS:

1. DECISION IS REQUESTED AS TO WHETHER CAPTAIN MILES P. REFO, JR., U.S.N. (RETIRED), SHALL BE CREDITED PAY AND ALLOWANCES OF A COMMANDER OR A CAPTAIN WHILE ON ACTIVE DUTY.

2. THIS OFFICER WAS PROMOTED TO THE GRADE OF CAPTAIN BY REASON OF AN ADJUDGMENT AS FITTED FOR PROMOTION, TO RANK FROM 13 FEBRUARY 1939. NOT HAVING BEEN*RECOMMENDED*FOR RETENTION ON THE ACTIVE LIST BY THE REPORT BY THE SELECTION BOARD, CAPTAIN REFO WAS TRANSFERRED TO THE RETIRED LIST ON 1 JUNE 1939 IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12 (F) OF THE ACT OF CONGRESS APPROVED 23 JUNE 1938 (52 STATUTE 949; U.S.C. TITLE 34, SECTION 404 (F) ). HIS RETIRED PAY ACCOUNT WAS CREDITED AT THREE-FOURTHS OF THE BASE PAY OF A COMMANDER AFTER 30 YEARS' SERVICE.

3. CAPTAIN REFO WAS ORDERED ON ACTIVE DUTY ON 2 OCTOBER 1939, REPORTING TO THE CHIEF OF NAVAL OPERATIONS ON 6 OCTOBER 1939. HIS ACCOUNTS WERE TRANSFERRED TO THE ACTIVE ROLLS AND CREDITED PAY AND ALLOWANCES OF A CAPTAIN AFTER 30 YEARS' SERVICE. SINCE IT NOW APPEARS THAT THERE IS SOME DOUBT AS TO WHETHER PAY AND ALLOWANCES SHOULD BE CREDITED FOR THE GRADE OF CAPTAIN OR OF COMMANDER, HIS PAY AND ALLOWANCES FROM 1 APRIL 1940 WILL BE STATED AS THOSE OF A COMMANDER AFTER 30 YEARS' SERVICE.

4. IN THIS PARTICULAR CASE, THE TOTAL PAY AND ALLOWANCES OF COMMANDER AND OF CAPTAIN ARE THE SAME. IF AN OFFICER IN A SIMILAR STATUS HAD NO DEPENDENTS, OR WAS ASSIGNED GOVERNMENT QUARTERS WHILE ON ACTIVE DUTY, THERE WOULD THEN BE A DIFFERENCE IN THE TOTAL COMPENSATION TO BE CREDITED.

IT APPEARS THAT THE OFFICER WAS APPOINTED A CAPTAIN IN THE NAVY BY THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, TO RANK FROM FEBRUARY 13, 1939, AND THAT A COMMISSION IN THAT GRADE WAS ISSUED TO HIM ON APRIL 24, 1939. ON JUNE 1, 1939, CAPTAIN REFO WAS INFORMED THAT HAVING BEEN PROMOTED TO THE GRADE OF CAPTAIN BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION AND NOT HAVING BEEN RECOMMENDED FOR RETENTION ON THE ACTIVE LIST BY THE REPORT OF THE SELECTION BOARD, AS APPROVED BY THE PRESIDENT ON NOVEMBER 30, 1938, HE WOULD BE TRANSFERRED TO THE RETIRED LIST OF OFFICERS OF THE NAVY ON MAY 30, 1939, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12 (F) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT ACT OF APRIL 23, 1930, 46 STAT. 253. BY AN ORDER FROM THE CHIEF OF THE BUREAU OF NAVIGATION, DATED OCTOBER 2, 1939, CAPTAIN REFO, WITH HIS CONSENT, WAS DIRECTED TO PROCEED TO WASHINGTON, D.C., AND TO REPORT TO THE CHIEF OF NAVAL OPERATIONS, NAVY DEPARTMENT, FOR DUTY.

THE ACT OF JUNE 23, 1938, 52 STAT. 944, 950, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

DUTIES OF SELECTION BOARDS

(B)IN ADDITION TO THE SELECTION OF OFFICERS BEST FITTED FOR PROMOTION AS HITHERTO PROVIDED IN THIS SECTION, EACH SELECTION BOARD SHALL, FROM AMONG THOSE OFFICERS WHO ARE ELIGIBLE AND WHO HAVE ONCE FAILED OF SELECTION AS BEST FITTED BY A PRECEDING BOARD, EXCEPT OFFICERS IN THE GRADES OF CAPTAIN AND LIEUTENANT (JUNIOR GRADE), DESIGNATE THOSE OFFICERS WHOM THE BOARD ADJUDGES FITTED FOR PROMOTION, AND FROM AMONG SUCH OFFICERS SHALL RECOMMEND FOR RETENTION ON THE ACTIVE LIST A NUMBER EQUAL TO THE PERCENTAGE THEREOF FURNISHED TO THE BOARD BY THE SECRETARY OF THE NAVY AS PROVIDED IN SECTION 8 OF THIS ACT.

PROMOTION OF OFFICERS

SEC. 11. (A) THE NAMES OF OFFICERS DESIGNATED BY A BOARD AS BEST FITTED FOR PROMOTION, AND THE NAMES OF OFFICERS ADJUDGED BY A BOARD AS FITTED FOR PROMOTION, AND APPROVED BY THE PRESIDENT, SHALL BE PLACED UPON A PROMOTION LIST AND PROMOTIONS TO FILL VACANCIES SHALL BE MADE FROM OFFICERS OF THE NEXT LOWER GRADE WHOSE NAMES APPEAR ON THE PROMOTION LIST AS HAVING BEEN DESIGNATED AS BEST FITTED FOR PROMOTION: PROVIDED, THAT OFFICERS WHOSE NAMES APPEAR ON THE PROMOTION LIST AS HAVING BEEN ADJUDGED FITTED FOR PROMOTION SHALL BE PROMOTED AT THE SAME TIME THAT THE OFFICERS NEXT SENIOR TO THEM ON THE LIST OF THOSE DESIGNATED AS BEST FITTED FOR PROMOTION ARE PROMOTED TO THE NEXT HIGHER GRADE: * * *

RETIREMENT OF OFFICERS

(D) CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS PROMOTED TO THOSE GRADES BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION, AND RECOMMENDED BY THE REPORT OF THE SELECTION BOARD, AS APPROVED BY THE PRESIDENT, FOR RETENTION ON THE ACTIVE LIST, MAY BE CONTINUED ON THE ACTIVE LIST OF THE LINE OF THE NAVY UNTIL THEY SHALL HAVE COMPLETED THIRTY, TWENTY-EIGHT, AND TWENTY-SIX YEARS, RESPECTIVELY, OF COMMISSIONED SERVICE (WITH WHICH COMMISSIONED SERVICE SHALL BE INCLUDED SERVICE AS A COMMISSIONED WARRANT OFFICER, ACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FORCE, SERVICE AS A MIDSHIPMAN AFTER GRADUATION FROM THE NAVAL ACADEMY, AND SERVICE UNDER A TEMPORARY COMMISSION IN THE NAVY): PROVIDED, THAT DURING SUCH CONTINUANCE ON THE ACTIVE LIST THEY MAY BECOME ELIGIBLE FOR SELECTION, SUBJECT TO THE PROVISIONS OF SECTION 7 (A) OF THIS ACT, AS BEST FITTED FOR PROMOTION, AND MAY BE PROMOTED CONSEQUENT TO SUCH SELECTION, BUT THEY SHALL NOT BE ELIGIBLE FOR CONSIDERATION BY ANY SELECTION BOARD FOR ADJUDGMENT AS FITTED FOR PROMOTION: PROVIDED FURTHER, THAT IF SUCH OFFICERS ARE NOT SO SELECTED AS BEST FITTED AND IF THEY TWICE FAIL OF SELECTION AS BEST FITTED THEY SHALL THEREAFTER BE INELIGIBLE FOR PROMOTION: PROVIDED FURTHER, THAT, IF NOT SO SELECTED AS BEST FITTED, UPON THE COMPLETION OF THE PERIODS OF COMMISSIONED SERVICE STATED IN THIS SUBSECTION, THEY SHALL BE PLACED UPON THE RETIRED LIST ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETED SUCH COMMISSIONED SERVICE WITH RETIRED PAY COMPUTED AS PRESCRIBED IN SUBSECTION (B) OF THIS SECTION.

(F) CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS PROMOTED TO THOSE GRADES BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION BUT NOT RECOMMENDED BY THE REPORT OF A SELECTION BOARD, AS APPROVED BY THE PRESIDENT, FOR RETENTION ON THE ACTIVE LIST SHALL BE RETIRED ON THE DATE THEY ARE SO PROMOTED WITH THE RETIRED PAY OF THE GRADE FROM WHICH SO PROMOTED: PROVIDED, THAT SUCH OFFICERS SHALL NOT BE RETIRED EARLIER THAN SIX MONTHS AFTER THE DATE OF APPROVAL BY THE PRESIDENT OF THE REPORT OF THE SELECTION BOARD IN WHICH THEY WERE ADJUDGED FITTED FOR PROMOTION.

IN DECISION TO YOU DATED OCTOBER 14, 1939, B-6150, 19 COMP. GEN. 433, IT WAS SAID:

IT MAY BE REMARKED AT THE BEGINNING THAT GRADE OR RANK DOES NOT NOW NECESSARILY DETERMINE THE PAY TO WHICH AN OFFICER MAY BE ENTITLED; THAT IS, THERE IS NOTHING REQUIRING THE CONGRESS TO PROVIDE UNIFORMITY OF PAY FOR OFFICERS OF THE SAME RANK OR GRADE AND LENGTH OF SERVICE, AND THE CONGRESS HAS ON SEVERAL OCCASIONS IN RECENT STATUTES PROVIDED ADVANCED RANK WITHOUT GRANTING THE PAY OF SUCH ADVANCED RANK. SEE, FOR EXAMPLE, THE ACT OF JUNE 21, 1930, 46 STAT. 793, PROVIDING FOR ADVANCEMENT ON THE RETIRED LIST OF OFFICERS OF THE ARMY (WITH CERTAIN EXCEPTIONS), NAVY, MARINE CORPS, AND COAST GUARD WHO WERE THEN OR SHOULD THEREAFTER BE RETIRED TO THE HIGHEST GRADE HELD BY THEM DURING THE WORLD WAR WITH A PROVISO THAT NO INCREASE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHOULD RESULT FROM SUCH ADVANCEMENT. ALSO, THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, TO WHICH THE PAYMASTER REFERS, PROVIDES:

"THAT ALL OFFICERS OF THE NAVY AND MARINE CORPS WHO HAVE BEEN RETIRED OR WHO MAY HEREAFTER BE RETIRED FOR PHYSICAL DISABILITY AND WHO HAVE BEEN COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY DURING THE WORLD WAR BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED SHALL BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE: PROVIDED, THAT SUCH PROMOTION SHALL NOT CARRY WITH IT ANY INCREASE IN Y.' AND SECTIONS 12 (F) AND 12 (L) OF THE LINE PROMOTION ACT OF JUNE 23, 1938, MAKE PROVISION, UNDER SOME CIRCUMSTANCES, FOR A RETIRED PAY DIFFERENT FROM THE NORMAL PAY OF THE GRADE ACCORDED AT RETIREMENT.

AS TO OFFICERS WHO UPON RETIREMENT RECEIVE THE BENEFITS OF SECTION 12 (L) OF THE LINE PROMOTION ACT OF 1938, SEE DECISION OF FEBRUARY 14, 1939, 18 COMP. GEN. 655, ANSWER TO THE SIXTH QUESTION, PAGES 666-667, AND SEE, ALSO, DECISION B-5287 TO THE SECRETARY OF THE NAVY, SEPTEMBER 27, 1939, CASE OF COMMANDER HANSEN AT PAGES 6 AND 7 OF THE MANUSCRIPT DECISION. THE PROMOTION PROVIDED FOR IN SECTION 12 (L) IS NOT CUMULATIVE WITH ANY OTHER PROMOTION INCIDENT TO RETIREMENT. SEE 18 COMP. GEN. 655, 667, IN WHICH IT WAS SAID:

"* * * THE PROMOTION COINCIDENT WITH RETIREMENT AUTHORIZED BY SECTION 12 (L) IS ALSO AN HONORARY PROMOTION IN RANK WITH THREE FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT, THAT IS, THE GRADE FROM WHICH PROMOTED COINCIDENT WITH RETIREMENT. * * *"

AN OFFICER IN SUCH A SITUATION HAS THE ADVANCED RANK FOR TITLE AND PRECEDENCE BUT FOR PURPOSES OF PAY ON THE RETIRED LIST HE HAS THE NEXT LOWER RANK OR GRADE. THE FULL PAY AND ALLOWANCES OF HIS GRADE WHEN LAWFULLY ON ACTIVE DUTY ARE THE PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS BASED. IN VIEW OF THE SPECIFIC PROVISION CONTAINED IN THE ACT OF JANUARY 16, 1936, THAT PROMOTION THEREUNDER "SHALL NOT CARRY WITH IT ANY INCREASE IN PAY" THE OFFICER REMAINS IN THE PAY GRADE OF THE LOWER RANK FROM WHICH PROMOTED AND WHEN LAWFULLY ON ACTIVE DUTY IS ENTITLED TO THE FULL PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS COMPUTED, THAT IS, THE RANK OR GRADE PRIOR TO THE PROMOTION ACCORDED UNDER THAT ACT.

CAPTAIN REFO ON THE RETIRED LIST IS A CAPTAIN IN THE PAY GRADE OF A COMMANDER; AND WHEN ON ACTIVE DUTY THE FULL PAY AND ALLOWANCES OF HIS GRADE ARE THE FULL PAY AND ALLOWANCES OF HIS PAY GRADE ON THE RETIRED LIST, THAT IS, COMMANDER.