B-163336, AUGUST 22, 1969, 49 COMP. GEN. 113

B-163336, AUGUST 22, 1969, 49 COMP. GEN. 113

PAY -- RETIRED -- ADVANCEMENT ON RETIRED LIST -- PERMANENT V TEMPORARY GRADE THE RULE IN JONES V UNITED STATES (187 CT. CL. 730) HOLDING A RETIRED ENLISTED MEMBER WAS ENTITLED TO BE ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 6151 TO THE GRADE OF CHIEF WARRANT OFFICER. W-3, THE HIGHEST PERMANENT GRADE FORMERLY HELD BY HIM AND IN WHICH HE SERVED SATISFACTORILY, EVEN THOUGH THE STATUTE ONLY AUTHORIZED ADVANCEMENT TO THE GRADE OF WARRANT OFFICER, W-1, THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, SHOULD BE APPLIED TO ALL ADVANCEMENTS UNDER SECTION 6151, AS WELL AS ADVANCEMENTS UNDER 10 U.S.C. 3963(A), 3964, 8963(A), AND 8964, PROVIDING THAT THE AMOUNT OF RETIRED PAY DEPENDS UPON SERVICE IN THE "HIGHEST TEMPORARY GRADE," IN VIEW OF THE FACT THAT THE COURT BASED ITS RULING ON THE EARLIER GRAYSON, FRIESTEDT, AND NERI DECISIONS AND CONSIDERED ALL THE ARGUMENTS ADVANCED IN THE JONES CASE AGAINST THE CONCLUSION REACHED.

TO THE SECRETARY OF DEFENSE, AUGUST 22, 1969:

REFERENCE IS MADE TO LETTER OF AUGUST 5, 1969, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON TWO QUESTIONS RELATING TO THE EXTENT THAT THE RULE IN JONES V UNITED STATES, 187 CT. CL. 730, SHOULD BE FOLLOWED IN THE COMPUTATION OF RETIRED PAY OF OFFICERS ADVANCED UPON RETIREMENT TO THE HIGHEST GRADE IN WHICH THEY SATISFACTORILY SERVED ON ACTIVE DUTY UNDER A "PERMANENT" APPOINTMENT, NOTWITHSTANDING THAT THE STATUTE UNDER WHICH ADVANCED AUTHORIZES ADVANCEMENT TO THE HIGHEST GRADE IN WHICH THE OFFICER SATISFACTORILY SERVED UNDER A "TEMPORARY" APPOINTMENT.

A DISCUSSION CONCERNING THE QUESTION IS CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 432.

THE COMMITTEE ACTION POINTS OUT THAT IN JONES V UNITED STATES, DECIDED MAY 19, 1969, THE COURT OF CLAIMS GRANTED THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, THEREBY HOLDING THAT THE PLAINTIFF, A RETIRED MEMBER OF THE NAVAL SERVICE, WAS ENTITLED TO BE ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 6151 TO THE HIGHEST PERMANENT GRADE FORMERLY HELD BY HIM, EVEN THOUGH THE STATUTE AUTHORIZES ADVANCEMENT TO THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A "TEMPORARY" APPOINTMENT. THE COURT'S JUDGMENT WAS BASED UPON ITS DECISIONS IN GRAYSON V UNITED STATES, 137 CT. CL. 779 (1957); FRIESTEDT V UNITED STATES, 173 CT. CL. 447 (1965); AND NERI V UNITED STATES 145 CT. CL. 537 (1959).

GRAYSON WAS FEDERALLY RECOGNIZED AS OF SEPTEMBER 26, 1940, AS BRIGADIER GENERAL, ADJUTANT GENERAL'S DEPARTMENT, MISSISSIPPI NATIONAL GUARD, WAS ORDERED TO ACTIVE DUTY FOR 12 MONTHS EFFECTIVE OCTOBER 15, 1940, AND WAS APPOINTED BRIGADIER GENERAL, NATIONAL GUARD OF THE UNITED STATES, IN FEBRUARY 1941, IN WHICH CAPACITY HE SERVED ON ACTIVE DUTY FROM FEBRUARY 1941 TO JULY 25, 1942. THE SECRETARY OF THE ARMY DETERMINED THAT HE HAD SERVED SATISFACTORILY FOR NOT LESS THAN 6 MONTHS WHILE SERVING ON ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL.

THE COURT OF CLAIMS SAID THAT UNDER THE PROVISIONS OF SECTION 203(A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085, NOW CODIFIED IN 10 U.S.C. 3963(A) AND 8963(A), "IT WAS SATISFACTORY SERVICE IN THE GRADE THAT ENTITLED THE OFFICER TO AN ADVANCEMENT, WHETHER THAT GRADE WAS PERMANENT OR TEMPORARY," AND THAT "CONGRESS COULD NOT HAVE INTENDED TO PREFER SERVICE IN A TEMPORARY GRADE OVER SERVICE IN A PERMANENT ONE." HOWEVER, THE COURT DETERMINED THAT GRAYSON'S GRADE OF BRIGADIER GENERAL WAS TEMPORARY IN NATURE, AND THAT HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THAT GRADE.

IN 37 COMP. GEN. 538 (1958) WE SAID THAT THE DECISION IN THE GRAYSON CASE "RESTS ON THE PARTICULAR FACTS PECULIAR TO THAT CASE" AND THAT CASES BELIEVED TO BE "SIMILAR" TO THE GRAYSON CASE SHOULD BE SUBMITTED TO THIS OFFICE FOR ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT.

IN FRIESTEDT V UNITED STATES, THE COURT OF CLAIMS HELD THAT FRIESTEDT (WHO WAS RETIRED FOR DISABILITY WHILE SERVING ON ACTIVE DUTY AS AN ENLISTED MAN) WAS ENTITLED TO RETIRED PAY BENEFITS AS A FIRST LIEUTENANT UNDER THE PROVISIONS OF 10 U.S.C. 1372(E) AUTHORIZING COMPUTATION OF DISABILITY RETIRED PAY ON THE PAY OF THE "HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY" EVEN THOUGH THE HIGHEST GRADE IN WHICH HE HAD SERVED WAS THE PERMANENT GRADE OF FIRST LIEUTENANT AND HE HAD NEVER SERVED IN OR HELD THE TEMPORARY GRADE OF FIRST LIEUTENANT AT ANY TIME. ITS DECISION IN THE FRIESTEDT CASE WAS BASED ON ITS PRIOR HOLDING IN THE GRAYSON CASE. IN DECISION OF JULY 8, 1966, 46 COMP. GEN. 17, WE SAID THAT THE RULE OF THE FRIESTEDT CASE MAY BE APPLIED TO ALL DISABILITY RETIREMENTS UNDER 10 U.S.C. 1372(2), BUT NOT AS TO COMPUTATION OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 3963(A), 3964, 6151, 8963(A) OR 8964.

IN NERI V UNITED STATES, THE PLAINTIFF SERVED ON ACTIVE DUTY AS AN OFFICER IN THE ARMY OF THE UNITED STATES AND WAS SERVING IN THE GRADE OF CAPTAIN, AUS, WHEN HE WAS RETIRED FOR DISABILITY, ALTHOUGH HE HAD BEEN PREVIOUSLY APPOINTED MAJOR, OFFICERS' RESERVE CORPS, AND HELD THAT GRADE AT THE TIME OF HIS RETIREMENT. THE COURT OF CLAIMS SAID THAT HIS PERMANENT RANK OF MAJOR IN THE OFFICERS' RESERVE CORPS WAS JUST AS REAL AS HIS TEMPORARY RANK OF CAPTAIN IN THE ACTIVE SERVICE AND THAT HE WAS ENTITLED TO COMPUTE HIS DISABILITY RETIRED PAY ON THE PAY OF THE GRADE OF MAJOR. IN DECISION OF DECEMBER 23, 1959, 39 COMP. GEN. 467, WE SAID THAT WE WOULD FOLLOW THE DECISION IN THE NERI CASE.

EARL FOSTER JONES SERVED ON ACTIVE DUTY AS A WARRANT OFFICER, W-1, IN THE U.S. NAVAL RESERVE FROM MARCH 31, 1949, TO JUNE 14, 1951, AND AS A CHIEF WARRANT OFFICER, W-3, FROM JUNE 15, 1951, TO DECEMBER 30, 1957, WHEN HE WAS DISCHARGED IN ORDER TO REENLIST ON DECEMBER 31, 1957, IN THE NAVAL RESERVE. HE SERVED ON ACTIVE DUTY AS AN ENLISTED MEMBER THROUGH AUGUST 31, 1964. THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY WAS WARRANT OFFICER, W-1, AND THE HIGHEST PERMANENT GRADE IN WHICH HE SERVED SATISFACTORILY WAS THAT OF CHIEF WARRANT OFFICER, W-3.

HE WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST UNDER 10 U.S.C. 6327 EFFECTIVE SEPTEMBER 1, 1964, AND ADVANCED TO THE GRADE OF WARRANT OFFICER, W-1, WITH RETIRED PAY OF THAT GRADE COMPUTED UNDER 10 U.S.C. 6151, WHICH AUTHORIZES ADVANCEMENT ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE NAVY. LATER HE WAS ADVANCED TO THE HIGHEST PERMANENT WARRANT OFFICER GRADE, W-3, IN WHICH HE HAD SERVED SATISFACTORILY.

IN ITS ORDER OF MAY 19, 1969, GRANTING SUMMARY JUDGMENT FOR PLAINTIFF JONES, THE COURT OF CLAIMS CONCLUDED ON THE BASIS OF ITS DECISIONS IN THE GRAYSON, FRIESTEDT, AND NERI CASES, THAT PLAINTIFF WAS ENTITLED TO COMPUTE HIS RETIRED PAY UNDER 10 U.S.C. 6151 ON THE BASIS OF THE HIGHEST GRADE (HIS PERMANENT GRADE OF CHIEF WARRANT OFFICER, W-3) IN WHICH HE HAD SERVED SATISFACTORILY.

THE FIRST QUESTION IS WHETHER THE SERVICES SHOULD APPLY THE RULE IN THE JONES CASE TO ALL ADVANCEMENTS UNDER 10 U.S.C. 6151.

SINCE THE DEFENDANT IN THE FRIESTEDT AND JONES CASES SUBMITTED FOR THE COURT'S CONSIDERATION ALL THE ARGUMENTS WHICH HAVE BEEN SUGGESTED AGAINST THE CONCLUSION REACHED BY THE COURT OF CLAIMS, AND THERE IS NOW NO PROBABILITY THAT IT WOULD REACH A DIFFERENT CONCLUSION IN ANOTHER CASE, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE SECOND QUESTION IS WHETHER THE SERVICES SHOULD ALSO APPLY THE RULE OF THE JONES CASE TO ALL OTHER STATUTES, SUCH AS 10 U.S.C. 3963(A), 3964, 8963(A) AND 8964, UNDER WHICH THE AMOUNT OF RETIRED PAY DEPENDS UPON SERVICE IN THE "HIGHEST TEMPORARY GRADE."

FOR THE REASONS STATED IN THE ANSWER TO THE FIRST QUESTION, THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.