B-97083, AUGUST 28, 1950, 30 COMP. GEN. 91

B-97083: Aug 28, 1950

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RETIRED PAY - COMMISSIONED WARRANT OFFICER ADVANCED ON RETIRED LIST - RESTORATION TO WARRANT OFFICER RANK UNDER CAREER COMPENSATION ACT OF 1949 A RETIRED COMMISSIONED WARRANT OFFICER OF THE MARINE CORPS WHO WAS ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK UNDER SECTION 10 OF THE ACT OF JULY 24. MAY HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER FROM AND AFTER THE DATE HIS RESTORATION TO SUCH RANK WAS APPROVED BY THE SECRETARY OF THE NAVY. 1950: REFERENCE IS MADE TO YOUR LETTER OF JULY 24. TO THE RANK OF COMMISSIONED WARRANT OFFICER WAS. OR FROM AND INCLUDING THE DATE ON WHICH SUCH RESTORATION WAS APPROVED BY THE ACTING SECRETARY OF THE NAVY.

B-97083, AUGUST 28, 1950, 30 COMP. GEN. 91

RETIRED PAY - COMMISSIONED WARRANT OFFICER ADVANCED ON RETIRED LIST - RESTORATION TO WARRANT OFFICER RANK UNDER CAREER COMPENSATION ACT OF 1949 A RETIRED COMMISSIONED WARRANT OFFICER OF THE MARINE CORPS WHO WAS ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, AND WHO APPLIED FOR RESTORATION TO HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER PURSUANT TO SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, MAY HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER FROM AND AFTER THE DATE HIS RESTORATION TO SUCH RANK WAS APPROVED BY THE SECRETARY OF THE NAVY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, AUGUST 28, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1950, REQUESTING A DECISION AS TO WHETHER THE RESTORATION OF COMMISSIONED WARRANT OFFICER JOHN LEONARD MCCORMACK, USMC ( RETIRED), TO THE RANK OF COMMISSIONED WARRANT OFFICER WAS, FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY, EFFECTIVE FROM AND INCLUDING OCTOBER 1, 1949, OR FROM AND INCLUDING THE DATE ON WHICH SUCH RESTORATION WAS APPROVED BY THE ACTING SECRETARY OF THE NAVY, MAY 26, 1950.

IT APPEARS THAT ON DECEMBER 1, 1942, HAVING COMPLETED MORE THAN THIRTY YEARS OF ACTIVE SERVICE, COMMISSIONED WARRANT OFFICER MCCORMACK WAS PLACED ON THE RETIRED LIST. HE WAS ASSIGNED TO ACTIVE DUTY ON THAT DATE, AND ON JUNE 1, 1944, HE WAS TEMPORARILY APPOINTED AS A CAPTAIN PURSUANT TO THE PROVISIONS OF SECTIONS 2 AND 4 OF THE ACT OF JULY 24, 1941, 55 STAT. 603. UPON HIS RELIEF FROM ACTIVE DUTY ON OCTOBER 23, 1945, HIS TEMPORARY APPOINTMENT AS CAPTAIN WAS TERMINATED, AND, UNDER AUTHORITY OF THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, SUPRA, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, HE WAS ADVANCED TO THE RANK OF CAPTAIN ON THE RETIRED LIST.

UNDER DATE OF MAY 1, 1950, THE COMMANDANT OF THE MARINE CORPS ADVISED THE OFFICER THAT UNDER THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE OCTOBER 1, 1949, HIS MONTHLY RETIRED PAY AS A COMMISSIONED WARRANT OFFICER WOULD AMOUNT TO $349.20 AND, AS A CAPTAIN, TO $331.31, AND THAT TO RECEIVE THE HIGHER RATE IT WOULD BE NECESSARY FOR HIM TO REQUEST REVERSION TO HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER. THEREUPON MCCORMACK REQUESTED THAT HE BE RESTORED TO HIS FORMER RANK OF COMMISSIONED WARRANT OFFICER AS OF OCTOBER 1, 1949, AND ON MAY 26, 1950, PURSUANT TO THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, THE ACTING SECRETARY OF THE NAVY APPROVED SUCH REQUEST.

SAID SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 830, PROVIDES IN PERTINENT PART AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION ( OCTOBER 1, 1949) (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * * PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED * * * AND PROVIDED FURTHER, THAT ENLISTED PERSONS AND WARRANT OFFICERS OF THE UNIFORMED SERVICES, HERETOFORE OR HEREAFTER ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK OR GRADE PURSUANT TO ANY PROVISION OF LAW SHALL, IF APPLICATION THEREFOR IS MADE TO THE SECRETARY CONCERNED WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF THIS SECTION OR WITHIN ONE YEAR AFTER THE DATE OF ADVANCEMENT ON THE RETIRED LIST, WHICHEVER IS THE LATER, AND SUBJECT TO THE APPROVAL OF THE SECRETARY CONCERNED, BE RESTORED TO THEIR FORMER RETIRED ENLISTED OR WARRANT-OFFICER STATUS, AS THE CASE MAY BE, AND SHALL THEREAFTER BE DEEMED TO BE ENLISTED OR WARRANT OFFICER PERSONNEL, AS APPROPRIATE, FOR ALL PURPOSES, INCLUDING THE COMPUTATION OF THEIR RETIRED PAY BASED ON SUCH ENLISTED OR WARRANT OFFICER RANK, GRADE, OR RATING, AS THE CASE MAY BE.

IT WILL BE OBSERVED THAT THE FIRST SENTENCE OF THE ABOVE-QUOTED SECTION 511 PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS PRESCRIBED THEREIN,"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION.' PAYMENT OF RETIRED PAY TO ENLISTED PERSONS AND WARRANT OFFICERS, ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK OR GRADE, AT THE RATE PRESCRIBED FOR THEIR ENLISTED OR WARRANT STATUS IS NOT AUTOMATIC BUT REQUIRES AFFIRMATIVE ACTION BY THE PERSON INVOLVED BEFORE HE BECOME ENTITLED TO SUCH RATE OF RETIRED PAY. COMP. GEN. 412. THAT IS, UNDER THE FINAL PROVISO OF SECTION 511, SUCH PERSONS SHALL, IF APPLICATION IS MADE TO THE SECRETARY CONCERNED, AND SUBJECT TO HIS APPROVAL, BE RESTORED TO THEIR FORMER ENLISTED OR WARRANT OFFICER STATUS, AND SHALL "THEREAFTER" BE DEEMED TO BE ENLISTED OR WARRANT OFFICER PERSONNEL FOR ALL PURPOSES, INCLUDING THE COMPUTATION OF RETIRED PAY.

THE FILING OF AN APPLICATION FOR SUCH RESTORATION AND APPROVAL THEREOF ARE CONDITIONS PRECEDENT TO THE RIGHT TO RECEIVE THE RETIRED PAY OF AN ENLISTED MAN OR WARRANT OFFICER. THE WORD ,THEREAFTER" REFERS TO THE APPLICATION AND APPROVAL AND NOT TO THE EFFECTIVE DATE OF SECTION 511. CF. LYFORD V. NEW ENGLAND MUT. LIFE INS. CO., 184 A. 469, 471; JOHNSON V. MUTUAL LIFE INS. CO., 70 F.2D 41, 43; BERGHOLM V. PEORIA LIFE INS. CO., 284 U.S. 489. THE LANGUAGE OF THE LAST PROVISO OF SUCH SECTION APPEARS TO BE CLEAR AND UNAMBIGUOUS WITH RESPECT TO THE TIME FROM WHICH THE RETIRED PERSONNEL ELECTING TO BE RESTORED TO ENLISTED OR WARRANT OFFICER STATUS ARE ENTITLED TO THE RETIRED PAY PERTAINING TO SUCH STATUS, THAT IS, FROM AND AFTER THE DATE OF RESTORATION TO ENLISTED OR WARRANT OFFICER RANK, GRADE, OR RATING. SEE 29 COMP. GEN. 412, 415. THIS OFFICE IS NOT UNAWARE OF THE SEEMING INEQUITIES INVOLVED IN THIS AND SIMILAR CASES, ARISING AT LEAST IN PART FROM DELAY DUE TO UNCERTAINTY AS TO THE APPLICATION OF THE ANOMALOUS STATUTORY PROVISIONS IN EFFECT FIXING HIGHER RETIRED PAY FOR THE LOWER RANK. BUT THAT CANNOT PROVIDE ANY LEGAL BASIS, OF COURSE, TO DISREGARD THE PLAIN WORD "THEREAFTER" IN THE LAST PROVISO IN SAID SECTION 511 OR TO RECOGNIZE A RETROACTIVE STATUS CONTRARY TO THE CLEAR IMPORT OF SUCH LANGUAGE.

FOR SUCH REASONS, THIS OFFICE IS CONSTRAINED TO HOLD THAT, FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY, THE RESTORATION OF MR. MCCORMACK TO THE RANK OF COMMISSIONED WARRANT OFFICER WAS NOT EFFECTIVE FROM OCTOBER 1, 1949, BUT FROM THE DATE ON WHICH SUCH RESTORATION WAS APPROVED BY THE ACTING SECRETARY OF THE NAVY, THAT IS, MAY 26, 1950.