B-85471, DECEMBER 20, 1950, 30 COMP. GEN. 242

B-85471, DECEMBER 20, 1950, 30 COMP. GEN. 242

ACTIVE-DUTY PAY AND ALLOWANCES - RETIRED NAVY OFFICERS ADVANCED ON RETIRED LIST NAVY OFFICERS OF THE GRADE OR RANK OF CAPTAIN OR BELOW WHO WERE SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT UNDER SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 AND, BY REASON THEREOF, PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, ARE ENTITLED, WHEN RECALLED TO ACTIVE DUTY IN SUCH HIGHER GRADE OR RANK TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF THAT RANK. 28 COMP. GEN. 531 AND 29 COMP. GEN. 64, OVERRULED IN PART.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 20, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 17, 1950, REFERRING TO DECISIONS OF MARCH 21, 1949, B-78774, 28 COMP. GEN. 531, AND AUGUST 10, 1949, B-85471, 29 COMP. GEN. 64, WHEREIN IT WAS CONCLUDED THAT IT IS DOUBTFUL WHETHER NAVAL OFFICERS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, AND WHO SUBSEQUENTLY ARE ASSIGNED TO ACTIVE DUTY, ARE "ENTITLED" TO BE RECALLED TO ACTIVE DUTY IN SUCH HIGHER HONORARY RANK SO AS TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF SUCH RANK.

IT IS STATED IN YOUR SUBMISSION THAT IN ORDERING RETIRED OFFICERS TO ACTIVE DUTY IT HAS BEEN THE CONSISTENT PRACTICE OF THE NAVY DEPARTMENT BOTH SUBSEQUENT TO THE ENACTMENT OF THE OFFICER PERSONNEL ACT OF 1947 AND PRIOR THERETO, UNDER OTHER LAWS PROVIDING SIMILAR BENEFITS, TO RECALL THOSE RETIRED OFFICERS OF THE RANK OF CAPTAIN AND BELOW IN THE RANK HELD BY THEM ON THE RETIRED LIST. IN VIEW OF SUCH PRACTICE, IT IS STATED THAT THE SAID DECISIONS ARE OF CONSIDERABLE CONCERN TO THE NAVY DEPARTMENT IF IT IS THEIR INTENT THAT AN OFFICER WHO IS RECALLED TO ACTIVE DUTY IN SUCH HIGHER RANK IS NOT AUTHORIZED TO RECEIVE PAY AND ALLOWANCES OF SUCH HIGHER RANK. ACCORDINGLY, YOU REQUEST DECISION WHETHER RETIRED OFFICERS OF THE NAVY OF THE RANK OF CAPTAIN AND BELOW WHO ARE ORDERED TO ACTIVE DUTY IN RANKS HELD BY THEM ON THE RETIRED LIST WHICH WERE ACQUIRED PURSUANT TO SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND PRIOR LAWS OF SIMILAR IMPORT, MAY BE PAID THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE RANKS IN WHICH ORDERED TO ACTIVE DUTY. IN VIEW OF THE REPRESENTATIONS CONTAINED IN YOUR SUBMISSION AND THE DECISIONS CITED THEREIN, IT IS DEEMED ADVISABLE TO RECONSIDER THE ENTIRE MATTER AT THIS TIME WITH PARTICULAR REFERENCE TO STATUTORY PROVISIONS IN PARI MATERIA WITH SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947.

THE SAID SECTION 412 (A) AUTHORIZES SUCH SPECIALLY COMMENDED OFFICERS, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, TO BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT "AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' THE SAID SECTION 412 (A) WAS AMENDED BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 835, 34 U.S.C. 410N, BY DELETING THE WORDS QUOTED THEREFROM IN THE PRECEDING SENTENCE. THE PROVISION PERTAINING TO THE RECALL OF SUCH RETIRED OFFICERS TO ACTIVE DUTY IS CONTAINED IN THE FIRST PROVISO OF SAID SECTION 412 (A), 61 STAT. 874, AND READS AS FOLLOWS:

* * * PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER RECALLED TO ACTIVE DUTY, MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE RETIRED LIST * * *.

ONE OF THE STATUTES THAT IS SOMEWHAT SIMILAR TO THE SAID SECTION 412 (A), AS AMENDED, IS SECTION 1 OF THE ACT OF JUNE 21, 1930, 46 STAT. 793, AS AMENDED, 34 U.S.C. 339C, WHICH PROVIDES THAT ALL COMMISSIONED OFFICERS WHO SERVED IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD DURING WORLD WAR I SHALL, UPON RETIREMENT, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE HELD BY THEM DURING WORLD WAR I WITH THE PROVISO THAT NO INCREASES OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT FROM THE PROVISIONS OF THAT ACT. ALSO, THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, 34 U.S.C. 399F (WHICH WAS REPEALED BY SECTION 436 (N) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 883), PROVIDED THAT ALL OFFICERS OF THE NAVY AND MARINE CORPS RETIRED FOR PHYSICAL DISABILITY AND WHO HAVE BEEN COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY DURING WORLD WAR I BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED SHOULD BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE, WITH THE PROVISO THAT SUCH PROMOTION SHOULD NOT CARRY WITH IT ANY INCREASE IN PAY. IN ADDITION, SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951 (WHICH WAS REPEALED BY SECTION 436 (G) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 882), PROVIDED THAT ALL LINE OFFICERS OF THE NAVY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT SHOULD, WITH CERTAIN EXCEPTIONS, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.

IN DECISION OF OCTOBER 14, 1939, B-6150, 19 COMP. GEN. 433, IT WAS HELD THAT MARINE CORPS OFFICERS ADVANCED TO THE NEXT HIGHER RANK UPON RETIREMENT PURSUANT TO THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, SUPRA, ARE ENTITLED WHEN ON ACTIVE DUTY ONLY TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH THEIR RETIRED PAY IS BASED--- THAT IS, THE GRADE HELD PRIOR TO ADVANCEMENT TO THE NEXT HIGHER RANK. THAT TIME SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDED THAT RETIRED OFFICERS OF THE UNIFORMED SERVICES BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE SHOULD,"WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES," AND IT WAS STATED IN THE DECISION OF OCTOBER 14, 1939, THAT THE "FULL PAY AND ALLOWANCES" OF SUCH A RETIRED OFFICER'S GRADE WHEN LAWFULLY ON ACTIVE DUTY ARE THE PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS BASED. ALSO, WITH RESPECT TO OFFICERS PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JANUARY 16, 1936, SUPRA, THAT DECISION REFERS TO THE SPECIFIC PROVISIONS OF THE ACT WHICH PROVIDE THAT SUCH PROMOTION "SHALL NOT CARRY WITH IT ANY INCREASES IN PAY.' IT WAS CONCLUDED THAT SUCH A RETIRED OFFICER REMAINS IN THE PAY GRADE OF THE LOWER RANK FROM WHICH PROMOTED AND THAT WHEN HE LAWFULLY IS ON ACTIVE DUTY HE IS ENTITLED TO THE FULL PAY AND ALLOWANCES OF THE PAY GRADE ON WHICH HIS RETIRED PAY IS COMPUTED, THAT IS, THE GRADE HE HELD PRIOR TO SUCH PROMOTION. SEE, ALSO, DECISION OF APRIL 25, 1940, B-9607, 19 COMP. GEN. 898. HOWEVER. SUBSEQUENT TO SUCH DECISIONS, THERE WAS ENACTED PUBLIC LAW 340, APPROVED DECEMBER 15, 1941, 55 STAT. 800, WHICH PROVIDED THAT ALL COMMISSIONER OFFICERS OF THE NAVY AND MARINE CORPS ON THE RETIRED LIST SHOULD, WHEN ON ACTIVE DUTY, RECEIVE "FULL PAY AND ALLOWANCES OF THE RANK OR GRADE IN WHICH THEY SERVED ON SUCH ACTIVE DUTY.' THE LEGISLATIVE HISTORY OF THAT ACT SHOWS THAT THE SOLE PURPOSE OF SUCH LEGISLATION WAS TO ELIMINATE THEN EXISTING RESTRICTIONS WHEREBY FULL PAY AND ALLOWANCES WERE DENIED CERTAIN GROUPS OF RETIRED OFFICERS OF THE NAVY AND MARINE CORPS WHEN THEY WERE RECALLED TO ACTIVE DUTY IN THE RANK OR GRADE WHICH THEY HELD ON THE RETIRED LIST. THE SENATE REPORT ( NO. 880) ON THE SAID BILL SPECIFICALLY POINTED OUT THAT OFFICERS AFFECTED WOULD BE THOSE COVERED BY THE ACTS OF JUNE 21, 1930, AND JANUARY 16, 1936, SUPRA, AS WELL AS OFFICERS RETIRED PURSUANT TO THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938. THE SAID REPORT ALSO DISCLOSES THAT THE NAVY DEPARTMENT PROPOSED AN AMENDMENT TO THE BILL UNDER WHICH SUCH OFFICERS "WOULD NOT BE ENTITLED TO FULL PAY AND ALLOWANCES OF THE GRADE HELD UPON THE RETIRED LIST, WHEN RECALLED TO ACTIVE DUTY.' HOWEVER, SUCH AMENDMENT WAS WITHDRAWN AND THE BILL WAS ENACTED AS ORIGINALLY PROPOSED. THEREAFTER, IN DECISION OF MAY 23, 1942, 21 COMP. GEN. 1037, THIS OFFICE APPEARS TO HAVE RECOGNIZED THAT A LIEUTENANT IN THE NAVY WHO, UPON RETIREMENT, HAD BEEN ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT COMMANDER PURSUANT TO THE ACT OF JUNE 21, 1930, SUPRA, AND HAD BEEN RECALLED TO ACTIVE DUTY AS A LIEUTENANT COMMANDER, WAS ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER ON AND AFTER THE DATE OF APPROVAL OF PUBLIC LAW 340. A PROVISION IDENTICAL TO THAT APPEARING IN SAID ACT OF DECEMBER 15, 1941, WAS INCLUDED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (REPEALED BY SECTION 531 (B) (34) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT 839, AND NOW APPEARS IN SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831. THUS, IT SEEMS CLEAR THAT PRIOR TO THE ENACTMENT OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 ALL RETIRED OFFICERS OF THE NAVY WHO WERE LAWFULLY PLACED ON THE RETIRED LIST OF THE NAVY WITH THE NEXT HIGHER GRADE OR RANK THAN THAT ON WHICH THEIR RETIRED PAY IS BASED, IF RECALLED TO ACTIVE DUTY IN SUCH HIGHER GRADE OR RANK, WERE PROPERLY PAID THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HIGHER GRADE OR RANK. THERE IS NOTHING IN SAID SECTION 412 (A) OR ITS LEGISLATIVE HISTORY WHICH INDICATES THAT THERE WAS ANY INTENT TO DEPRIVE SUCH SPECIALLY COMMENDED RETIRED OFFICER OF THE NAVY OF THE RANK OF CAPTAIN OR BELOW WHEN SERVING ON ACTIVE DUTY IN THEIR HIGHER GRADES OF THE ACTIVE-DUTY PAY BENEFITS WHICH THEY ENJOYED TO THE ENACTMENT OF SAID SECTION 412 (A). ON THE CONTRARY, AS POINTED OUT IN YOUR SUBMISSION, SENATE REPORT NO. 609 ON H.R. 3830, WHICH BECAME THE OFFICER PERSONNEL ACT OF 1947, INDICATES THAT THE UNDERSTANDING OF THE COMMITTEE ON ARMED SERVICES AS TO THE EFFECT OF THE SAID SECTION 412 (A) WAS AS FOLLOWS:

(D) TITLE IV OF THE BILL WAS AMENDED TO MAKE IT CLEAR THAT THE REPEAL OF THE NAVY'S AUTHORITY TO ADVANCE OFFICERS ON THE RETIRED ROLL WHO HAD RECEIVED COMMENDATIONS FOR GALLANTRY IN ACTION DID NOT TAKE AWAY ANY RIGHTS WHICH HAD BEEN EARNED UNDER THE PRESENT LAW. THE AMENDMENT, WHILE LENGTHY, IS LARGELY OF A CLARIFYING NATURE AND MAKES IT CLEAR THAT ALL OFFICERS, EITHER REGULAR OR RESERVE, WHO HAVE EARNED THIS RIGHT WILL BE ADVANCED WHEN RETIRED, BASED EITHER ON THEIR TEMPORARY OR PERMANENT RANKS, AND WHEN ORDERED BACK TO ACTIVE DUTY WILL BE RECALLED IN THE RANK IN WHICH ADVANCED, WITH THE EXCEPTION THAT FLAG OFFICERS WILL COME BACK IN SUCH HIGHER RANK AT THE DISCRETION OF THE SECRETARY OF THE NAVY. THE SECTION WAS FURTHER CLARIFIED TO MAKE SURE THAT NO INCREASED RETIRED PAY BE PAID ANYONE BY VIRTUE OF THE PROVISIONS OF THIS SECTION.

CF. TITLE 14 U.S. CODE, SECTION 422, PROVIDING THAT RETIRED PERSONNEL OF THE COAST GUARD WHEN RECALLED TO ACTIVE DUTY SHALL SERVE IN THE GRADE OR RATING IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT.

IN VIEW OF THE PROVISIONS OF THE ACT OF DECEMBER 15, 1941, AND THE LEGISLATIVE HISTORY OF SUCH ACT, WHICH PROVISIONS WERE REENACTED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, CONSIDERED IN CONJUNCTION WITH THE LEGISLATIVE HISTORY OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT, THE CONCLUSION SEEMS JUSTIFIED THAT NAVY OFFICERS OF THE GRADE OF CAPTAIN OR BELOW WHO ARE ADVANCED TO THE NEXT HIGHER GRADE OR RANK PURSUANT TO THE SAID SECTION 412 (A), WHEN ORDERED TO ACTIVE DUTY IN SUCH HIGHER GRADES OR RANKS, MAY BE PAID THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HIGHER GRADES OR RANKS, SUBJECT, OF COURSE, TO ANY RANK OR GRADE LIMITATIONS IMPOSED BY STATUTE AS TO THE NUMBER OF OFFICERS OF A PARTICULAR RANK OR GRADE SERVING ON ACTIVE DUTY. SEE, FOR EXAMPLE, SECTION 201 OF THE ARMY- NAVY NURSES ACT OF 1947, 61 STAT. 47. ACCORDINGLY, THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE. TO THE EXTENT THAT THE DECISION HEREIN MAY BE VIEWED AS CONTRARY TO THE SAID DECISIONS OF MARCH 21 AND AUGUST 10, 1949, THEY NO LONGER WILL BE FOLLOWED.