B-151812, OCT. 7, 1963

B-151812, OCT. 7, 1963

TO COMMANDER OSCAR A. COMBS, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1963, REQUESTING REVIEW OF THAT PORTION OF OUR SETTLEMENT DATED JULY 29, 1963, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY OR ACTIVE DUTY PAY FROM FEBRUARY 1, 1957.

IN THE SETTLEMENT OF JULY 29, 1963, YOU WERE ADVISED THAT THIS OFFICE IS NOT AUTHORIZED TO PAY ACTIVE DUTY PAY TO A MEMBER OF THE UNIFORMED SERVICES UNLESS HE HAS BEEN ORDERED TO ACTIVE DUTY BY COMPETENT ORDERS AND ACTIVE DUTY HAS BEEN PERFORMED IN CONSEQUENCE OF SUCH ORDERS.

IT APPEARS THAT YOU WERE TRANSFERRED FROM THE U.S. NAVAL RESERVE TO THE REGULAR NAVY IN THE RANK OF LIEUTENANT COMMANDER; THAT YOU WERE PROMOTED TO COMMANDER AND WERE CONSIDERED FOR PROMOTION TO CAPTAIN. YOU FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN, BUT THE DATE OF YOUR RANK IN THE GRADE OF COMMANDER WAS ADJUSTED SO THAT YOU WOULD RANK WITH OTHER COMMANDERS OF SIMILAR EXPERIENCE AND SERVICE WHO HAD PREVIOUSLY FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN. THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF THE PAY AND ALLOWANCES OF A HIGHER GRADE UNDER THE STATUTES REFERRED TO IN YOUR LETTER--- RETROACTIVELY OR OTHERWISE--- SINCE YOU WERE NOT APPOINTED OR PROMOTED TO A HIGHER GRADE. JURISDICTION OVER APPOINTMENTS UNDER THE SAID STATUTES WAS EXPRESSLY VESTED IN THE SECRETARY OF THE NAVY.

BY ORDERS DATED JANUARY 7, 1957, YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IN THE RANK OF COMMANDER, EFFECTIVE FEBRUARY 1, 1957, AS AUTHORIZED BY LAW. SEE 10 U.S.C. 120, 1372 AND 1401. THEREAFTER, THE SECRETARY OF THE NAVY DETERMINED THAT YOUR DISABILITY WAS PERMANENT UNDER THE PROVISIONS OF 10 U.S.C. 1210. BY ORDERS DATED SEPTEMBER 25, 1961, YOU WERE PLACED ON THE RETIRED LIST BY REASON OF PERMANENT DISABILITY, RATED AS 70 PERCENT, EFFECTIVE OCTOBER 1, 1961, IN THE RANK OF COMMANDER, THE HIGHEST GRADE SATISFACTORILY HELD BY YOU AS DETERMINED BY THE SECRETARY OF THE NAVY. SEE 10 U.S.C. 1201, 1372, AND 1401. YOU WERE CREDITED WITH 15 YEARS OF ACTIVE SERVICE FOR PERCENTAGE MULTIPLE PURPOSES IN THE COMPUTATION OF YOUR RETIRED PAY.

THE RETIREMENT OF AN OFFICER EFFECTS A COMPLETE SEVERANCE FROM ACTIVE SERVICE AND HIS RIGHT TO PAY AND ALLOWANCES AS AN OFFICER ON THE ACTIVE LIST TERMINATES UPON THE EFFECTIVE DATE OF HIS RETIREMENT. IT HAS BEEN UNIFORMLY HELD THAT IN THE ABSENCE OF ORDERS PRIOR TO RETIREMENT DEFINITELY ASSIGNING AN OFFICER TO DUTY AFTER RETIREMENT, OR ORDERS ISSUED SUBSEQUENTLY TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY, HIS ACTIVE DUTY PAY CEASES ON THE DATE ON WHICH HE IS ORDERED TO BE PLACED ON THE RETIRED LIST. NO ORDERS WERE ISSUED TO YOU FOR THE PERFORMANCE OF ACTIVE DUTY FOR THE PERIOD IN QUESTION OR ANY PART THEREOF. THE ORDERS OF JANUARY 7, 1957, AND SEPTEMBER 25, 1961, PLACING YOU ON THE TEMPORARY AND PERMANENT DISABILITY RETIRED LISTS IN THE RANK OF COMMANDER (SEE 10 U.S.C. 1372 (1) (, EFFECTIVE FEBRUARY 1, 1957, AND OCTOBER 1, 1961, RESPECTIVELY, WERE FULLY EXECUTED ON THOSE DATES. SINCE THE ORDERS WERE ISSUED BY COMPETENT AUTHORITY AND EFFECTED YOUR RETIREMENT IN ACCORDANCE WITH APPLICABLE LAW, THERE IS NO ACTION THIS OFFICE MAY PROPERLY TAKE IN THE MATTER. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.