A-79388, MAY 2, 1938, 17 COMP. GEN. 883

A-79388, MAY 2, 1938, 17 COMP. GEN. 883

PAY - RETIRED - EFFECTIVE DATE OF PRESIDENTIAL APPROVAL OF DISABILITY RETIREMENT THE EFFECTIVE DATE OF RETIREMENT OF OFFICERS OF THE NAVY AND MARINE CORPS RETIRED FOR DISABILITY UNDER SECTION 1453, REVISED STATUTES, BUT FOR THE UNIFORM RETIREMENT DATE PROVISIONS OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, IS THE DATE OF APPROVAL BY THE PRESIDENT OF THE FINDING OF THE RETIRING BOARD, NOTWITHSTANDING THE FIXING OF A LATER DATE BY APPROVAL OF THE NAVY DEPARTMENT'S RECOMMENDATION OF A LATER EFFECTIVE DATE FOR RETIREMENT, AND SERVICE UP TO THE DATE SO RECOMMENDED MAY NOT BE COUNTED FOR LONGEVITY PURPOSES IN COMPUTING THE RETIRED PAY, NOR MAY ACTIVE DUTY PAY AND ALLOWANCES, EXCEPT TO THE EXTENT AUTHORIZED BY THE UNIFORM RETIREMENT ACT, BE PAID SUBSEQUENT TO THE DATE OF THE PRESIDENTIAL APPROVAL. 16 COMP. GEN. 187, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 2, 1938:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1937, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE DISBURSING OFFICER, NAVY YARD, MARE ISLAND, CALIF., DATED JUNE 16, 1937, WITH INDORSEMENTS THEREON, REQUESTING ADVICE AS TO THE PROPER RATE OF RETIRED PAY IN THE CASE OF LIEUTENANT JOHN A. MARSH, U.S. NAVY, RETIRED.

THE DISBURSING OFFICER'S REQUEST IS DUE TO THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN TAKING EXCEPTION IN HIS ACCOUNTS TO PAY CREDITED TO LIEUTENANT MARSH FOR THE MONTHS OF JULY AND AUGUST 1936, ON THE GROUND THAT AT THE TIME OF THE PRESIDENT'S APPROVAL OF THIS OFFICER'S RETIREMENT FOR PHYSICAL DISABILITY ON MAY 27, 1936, HE HAD COMPLETED LESS THAN TWELVE YEARS' COMMISSIONED SERVICE FOR PAY PURPOSES. IN SUPPORT OF SUCH ACTION THERE IS CITED THE ACTING COMPTROLLER GENERAL'S DECISION OF AUGUST 27, 1936 (16 COMP. GEN. 187), TO THE EFFECT THAT A RETIREMENT FOR PHYSICAL DISABILITY UNDER SECTION 1453, REVISED STATUTES (34 U.S. CODE, SEC. 417), BUT FOR THE ACT OF APRIL 23, 1930 (46 STAT. 253; 5 U.S. CODE, SEC. 47A), BECOMES EFFECTIVE ON THE DATE THE PRESIDENT APPROVES THE FINDING OF THE RETIRING BOARD AND THAT RETIREMENT IN ANY SUCH CASE WOULD, THEREFORE, HAVE BEEN EFFECTIVE ON THE DATE OF THE PRESIDENT'S APPROVAL BUT FOR THE PROVISIONS OF THE CITED ACT OF APRIL 23, 1930.

THE RULE PRESCRIBED IN 16 COMP. GEN. 187 APPEARS TO BE CONSISTENT WITH APPLICABLE STATUTES AND DECISIONS ON THE SUBJECT ONLY AS TO THOSE CASES OF RETIREMENT FOR PHYSICAL DISABILITY WHEREIN THE PRESIDENT, IN ACTING UPON THE FINDINGS OF THE RETIRING BOARDS, HAS NOT FIXED A SPECIFIC DATE ON WHICH THE OFFICER'S TRANSFER FROM THE ACTIVE TO THE RETIRED LIST SHALL BECOME EFFECTIVE. HOWEVER, WHERE THE PRESIDENT IN HIS ACTION SPECIFIES A DEFINITE DATE FROM WHICH RETIREMENT SHALL BECOME EFFECTIVE, IT IS THE BELIEF OF THE NAVY DEPARTMENT THAT THE DATE THUS FIXED BY THE PRESIDENT SHOULD BE HELD AND CONSIDERED AS THE DATE ON WHICH RETIREMENT WOULD HAVE BEEN EFFECTIVE BUT FOR THE PROVISIONS OF THE CITED ACT OF APRIL 23, 1930, AND THAT IN THESE CIRCUMSTANCES THE OFFICER CONCERNED IS ENTITLED TO COUNT ALL SERVICE BETWEEN DATE OF THE PRESIDENT'S ACTION AND THE EFFECTIVE DATE PRESCRIBED BY THE PRESIDENT FOR RETIREMENT AS TIME SERVED ON THE ACTIVE LIST FOR PAY PURPOSES.

IT DOES NOT APPEAR FROM AN EXAMINATION OF THE CASES CITED IN SUPPORT OF THE CONCLUSION REACHED IN 16 COMP. GEN. 187, WHICH CONSIDERED THE CASE OF CAPTAIN EDWARD F. O-DAY, U.S. MARINE CORPS, RETIRED, THAT IN ANY OF SUCH CASES A DEFINITE DATE WAS FIXED BY THE PRESIDENT ON WHICH THE OFFICER'S RETIREMENT WOULD BECOME EFFECTIVE. IN THIS CONNECTION THE ACTING SECRETARY OF THE NAVY, MARCH 21, 1936, SUBMITTED TO THE PRESIDENT FOR CONSIDERATION AND ACTION THE RECORDS AND PAPERS IN CERTAIN CASES, TOGETHER WITH THE ACTING SECRETARY OF THE NAVY'S RECOMMENDATION AS TO THE ACTION TO BE TAKEN BY THE PRESIDENT IN EACH SUCH CASE. IN THIS SUBMISSION IT WAS STATED WITH RESPECT TO THE CASE OF CAPTAIN O-DAY THAT THE NAVAL RETIRING BOARD HAD DECIDED THAT THIS OFFICER WAS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY WAS PERMANENT AND THE RESULT OF AN INCIDENT OF THE SERVICE. THE "RECOMMENDATION OF THE SECRETARY OF THE NAVY" IN THIS CASE WAS "THAT THE FINDINGS OF THE NAVAL RETIRING BOARD BE APPROVED, EFFECTIVE JUNE 1, 1936, AND THAT CAPTAIN EDWARD F. O-DAY, U.S. MARINE CORPS, ON SAID DATE BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTION 417.' APRIL 15, 1936, THE PRESIDENT "APPROVED" THE "RECOMMENDATION OF THE SECRETARY OF THE NAVY" IN THIS CASE, THEREBY DEFINITELY FIXING THE EFFECTIVE DATE OF THE OFFICER'S TRANSFER FROM THE ACTIVE TO THE RETIRED LIST AS OF JUNE 1, 1936.

IT THEREFORE APPEARS THAT THE EFFECTIVE DATE OF RETIREMENT OF CAPTAIN O- DAY WAS JUNE 1, 1936, IN ACCORDANCE WITH THE PRESIDENT'S APPROVAL OF THE FINDING OF THE NAVAL RETIRING BOARD AND THE RECOMMENDATION OF THE ACTING SECRETARY OF THE NAVY IN THIS CASE. THIS IS CONSIDERED THE CORRECT DATE ON WHICH RETIREMENT WOULD HAVE OCCURRED BUT FOR THE ACT OF APRIL 23, 1930, AND NOT APRIL 15, 1936, THE DATE OF THE PRESIDENT'S APPROVAL AS AFORESAID.

IN THE CASE OF LIEUTENANT MARSH, THE RECORDS SHOW THAT ON MAY 26, 1936, THE ACTING SECRETARY OF THE NAVY TRANSMITTED TO THE PRESIDENT FOR "CONSIDERATION AND ACTION" CERTAIN RECORDS AND PAPERS ,TOGETHER WITH MY (ACTING SECRETARY OF THE NAVY) RECOMMENDATION AS TO THE ACTION TO BE TAKEN IN EACH CASE.' THE RECOMMENDATION OF THE ACTING SECRETARY OF THE NAVY IN THE CASE OF LIEUTENANT MARSH WAS THAT "THE FINDINGS OF THE NAVAL RETIRING BOARD BE APPROVED, EFFECTIVE AUGUST 1, 1936, AND THAT LIEUTENANT JOHN ARTHUR MARSH, U.S. NAVY, ON SAID DATE BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTION 417.' ON MAY 27, 1936, THE PRESIDENT APPROVED THE RECOMMENDATION OF THE ACTING SECRETARY OF THE NAVY IN THIS CASE. THEREFORE APPEARS THAT THE EFFECTIVE DATE OF RETIREMENT OF LIEUTENANT MARSH WAS AUGUST 1, 1936, AND NOT MAY 27, 1936, AND THAT THE DATE ON WHICH RETIREMENT WOULD HAVE OCCURRED IN THIS CASE BUT FOR THE ACT OF APRIL 23, 1930, WAS AUGUST 1, 1936, AND NOT MAY 27, 1936, THE DATE OF THE PRESIDENT'S APPROVAL AS AFORESAID.

INASMUCH AS THE LAW GOVERNING THE RETIREMENT OF OFFICERS FOR PHYSICAL DISABILITY (SECTION 1453, REVISED STATUTES; 34 U.S. CODE, SEC. 417) IS NOT MANDATORY ON THE POINT AS TO WHEN RETIREMENT THEREUNDER SHALL BECOME EFFECTIVE, AND SINCE THERE IS NOTHING CONTAINED IN THE APPLICABLE STATUTE THAT PROHIBITS THE PRESIDENT FROM FIXING A DATE IN THE FUTURE FOR THE RETIREMENT IN ANY SUCH CASE TO BECOME EFFECTIVE, IT WOULD APPEAR TO THE NAVY DEPARTMENT THAT THE PRESIDENT'S ACTION IN APPROVING OF A DATE IN THE FUTURE ON WHICH THE RETIREMENT OF BOTH CAPTAIN O-DAY AND LIEUTENANT MARSH SHOULD BECOME EFFECTIVE WAS CONSISTENT WITH LAW AND SHOULD, THEREFORE, BE ACCEPTED IN DETERMINING THE PAY STATUS OF THE OFFICERS SO RETIRED.

IN CONSIDERATION OF THE FOREGOING AND OF THE ADDITIONAL REASONS SET FORTH IN THE ENCLOSED 2ND AND 3RD INDORSEMENTS, RECONSIDERATION IS REQUESTED OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN DISALLOWING PAYMENTS CREDITED TO LIEUTENANT JOHN ARTHUR MARSH, U.S. NAVY, RETIRED, FOR JULY AND AUGUST 1936, AND OF THE ACTING COMPTROLLER GENERAL'S DECISION OF AUGUST 27, 1936 (16 COMP. GEN. 187), IN THE CASE OF CAPTAIN EDWARD F. O-DAY, U.S. MARINE CORPS, RETIRED.

THE "ADDITIONAL REASONS" REFERRED TO AS SUPPORTING YOUR REQUEST FOR RECONSIDERATION OF THE ACTION OF THIS OFFICE IN THE CASES OF CAPTAIN O DAY AND LIEUTENANT MARSH APPEAR SUBSTANTIALLY AS SET FORTH IN THE FOLLOWING QUOTATION FROM THE THIRD INDORSEMENT OF THE CHIEF, BUREAU OF NAVIGATION, DATED JULY 13, 1937:

3. IN FURTHER EXPLANATION OF THE METHOD OF PROCEDURE WITH RESPECT TO THE RETIREMENT OF OFFICERS BECAUSE OF PHYSICAL DISABILITY, THE ATTENTION OF THE JUDGE ADVOCATE GENERAL IS DRAWN TO THE FOLLOWING STATEMENT OF FACTS. UNTIL A NUMBER OF YEARS AGO, THE RECORDS OF PROCEEDINGS OF NAVAL RETIRING BOARDS WHEREIN OFFICERS OF THE NAVY WERE REPORTED PHYSICALLY INCAPACITATED FOR ACTIVE SERVICE WERE LAID BEFORE THE PRESIDENT WITHOUT RECOMMENDATION AS TO EFFECTIVE DATE OF RETIREMENT. IN EACH OF SUCH CASES THE DATE OF APPROVAL BY THE PRESIDENT WAS REGARDED AS THE DATE OF TRANSFER TO THE RETIRED LIST. SUBSEQUENTLY, AS ADMINISTRATIVE PRACTICE, THIS BUREAU RECOMMENDED IN EACH CASE THAT THE EFFECTIVE DATE OF RETIREMENT BE FIXED AS OF THE FIFTEENTH OR LAST DAY OF THE MONTH, AS APPROPRIATE AND, SUBSEQUENTLY, OTHER EFFECTIVE DATES WERE RECOMMENDED IN ORDER THAT THE OFFICERS CONCERNED MIGHT HAVE THE BENEFIT OF LEAVE OF ABSENCE NOT TO EXCEED A TOTAL OF APPROXIMATELY TWO MONTHS JUST PRIOR TO PASSAGE TO THE RETIRED LIST. THIS PRACTICE WAS NOT QUESTIONED, THE DATE OF RETIREMENT FIXED BY THE PRESIDENT WAS ACCEPTED AS THE EFFECTIVE DATE, AND THE OFFICER CONCERNED WAS ENTITLED TO ALL LONGEVITY INCREASES UP TO THE EFFECTIVE DATE OF RETIREMENT.

4. UPON THE ENACTMENT OF THE UNIFORM RETIREMENT ACT OF APRIL 23, 1930 (46 STAT. 253), THE IMMEDIATELY PRIOR PRACTICE WAS CONTINUED, MODIFIED TO THE EXTENT NECESSARY TO PROVIDE FOR RETIREMENT ON THE FIRST DAY OF THE MONTH.

5. IT THUS APPEARS EVIDENT THAT THERE IS ADMINISTRATIVE DISCRETION AS TO THE EFFECTIVE DATE OF RETIREMENT IN THE CASE OF OFFICERS RETIRED FOR PHYSICAL DISABILITY, AND THAT THE DATE FIXED ADMINISTRATIVELY IS THE DATE RETIREMENT WOULD HAVE OCCURRED IF THE UNIFORM RETIREMENT LAW HAD NOT BEEN ENACTED. ASSUMING THE CORRECTNESS OF THE FOREGOING STATEMENT, ATTENTION IS DRAWN TO A DECISION OF THE COMPTROLLER GENERAL, DATED 25 JULY 1930 (A- 32524) QUOTED IN COURT-MARTIAL ORDER NO. 8, PP. 28 AND 29, DATED 31 AUGUST 1930, IN WHICH IT IS STATED:

"IN CASES WHERE THE CONTROLLING STATUTE AUTHORIZES THE FIXING OF AN EFFECTIVE DATE OF RETIREMENT BY ADMINISTRATIVE ACTION AND/OR PRESIDENTIAL APPROVAL, RATHER THAN UPON THE HAPPENING OF SOME CONTINGENCY, AND A DAY IS ADMINISTRATIVELY FIXED ON THE FIRST DAY OF A MONTH LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE EMPLOYEE FIRST BECOMES ELIGIBLE, THE PURPOSE AND INTENT OF THE ACT OF APRIL 23, 1930, HAS BEEN FULFILLED IF RETIREMENT IS MADE EFFECTIVE ON THE FIRST DAY OF THE MONTH FIXED BY ADMINISTRATIVE AUTHORITY, RATHER THAN THE FIRST DAY OF THE FOLLOWING MONTH.'

6. IN FURTHER SUPPORT OF THE CONTENTION OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND IN WHICH THIS BUREAU CONCURS, REFERENCE IS MADE TO THE DECISION OF THE COURT OF CLAIMS NO. 42624, DATED MAY 4, 1936, IN RE CLARENCE D. HOLLAND V. U.S., WHEREIN IT IS STATED:

"RETIREMENT CONSTITUTES A CHANGE OF STATUS AND IS, BY REASON OF THE MANDATORY PROVISIONS OF SECTION 1453 OF THE REVISED STATUTES, EFFECTIVE ON THE DATE THE ACTION IS TAKEN BY THE PRESIDENT, UNLESS SOME OTHER DATE IS FIXED IN THE ORDER.'

IT APPEARS CONCEDED, AS IT MUST BE IN VIEW OF THE PLAIN TERMS OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES OF OFFICERS OF THE NAVY OR MARINE CORPS RETIRED FOR DISABILITY IS FOR COMPUTING AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THE 1930 ACT HAD NOT BEEN ENACTED. YOUR LETTER SUGGESTS, HOWEVER, THAT WHERE THE NAVY DEPARTMENT IN SUBMITTING TO THE PRESIDENT FOR CONSIDERATION AND ACTION THE RECORDS AND PAPERS IN SUCH CASES RECOMMENDS AN EFFECTIVE DATE FOR THE OFFICER'S RETIREMENT, AND THE PRESIDENT APPROVES SUCH RECOMMENDATION, THAT DATE AND NOT THE DATE OF THE PRESIDENT'S APPROVAL OF THE FINDINGS OF THE RETIRING BOARD, IS THE DATE ON WHICH RETIREMENT WOULD HAVE OCCURRED BUT FOR THE ACT OF APRIL 23, 1930, AND THAT THE OFFICER IS ENTITLED TO COUNT FOR LONGEVITY PURPOSES ALL SERVICE UP TO THE DATE SO RECOMMENDED.

AS STATED IN YOUR LETTER, IN NONE OF THE CASES CITED IN DECISION OF AUGUST 27, 1936, 16 COMP. GEN. 187, HAD THE PRESIDENT FIXED A DEFINITE DATE FOR THE OFFICER'S RETIREMENT TO TAKE EFFECT. HOWEVER, THE CITED CASES HOLDING THAT RETIREMENTS UNDER SECTION 1251 OR SECTION 1453, REVISED STATUTES, TOOK EFFECT ON THE DATE OF THE PRESIDENT'S APPROVAL OF THE FINDINGS OF THE RETIRING BOARD WERE NOT BASED UPON THE FACT THAT NO EFFECTIVE DATE WAS NAMED BY THE PRESIDENT, BUT UPON THE STATUTORY REQUIREMENT THAT IF THE DECISION OF THE RETIRING BOARD IS APPROVED BY THE PRESIDENT THE OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE. SEE, PARTICULARLY, 18 COMP. DEC. 747, 751.

FURTHERMORE, THOSE CASES, TOGETHER WITH MANY ADDITIONAL CASES TO THE SAME EFFECT, INCLUDING DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY DATED DECEMBER 4, 1920, 27 COMP. DEC. 512, AND DECISIONS OF THIS OFFICE DATED JUNE 6, 1922, A.D. 6743; AUGUST 10, 1922, A.D. 6954; SEPTEMBER 6, 1923, A.D. 7822; OCTOBER 27, 1925, A-11027; AND APRIL 13, 1929, A-26126, ARE ILLUSTRATIVE OF A LONG CONTINUED PRACTICE NOT TO NAME ANY EFFECTIVE DATE IN APPROVING THE FINDINGS OF RETIRING BOARD-S, APPARENTLY IN RECOGNITION THAT IF THE PRESIDENT APPROVED THE BOARD'S FINDINGS, THE LAW OPERATED TO RETIRE THE OFFICER. IN THIS CONNECTION, THE FORMER COMPTROLLER GENERAL IN A DECISION DATED SEPTEMBER 30, 1921, TO THE SECRETARY OF THE TREASURY, 1 MS. COMP. GEN. 1219, HELD THAT THE EFFECTIVE DATE OF RETIREMENT OF A COAST GUARD OFFICER UNDER SECTION 6 OF THE ACT OF APRIL 12, 1902, 32 STAT. 101--- IDENTICAL AS TO PROCEDURE WITH SECTION 1453, REVISED STATUTES--- "* * *IF RETIRED UPON THE FINDING OF THE RETIRING BOARD, WILL BE THE DATE ON WHICH THE PRESIDENT APPROVES THE BOARD'S FINDINGS.' SEE, ALSO, THE FACTS AS TO THE EFFECTIVE DATES OF RETIREMENTS IN THE CASES OF BURCHARD V. THE UNITED STATES, 19 CT.CLS. 137; HANNUM V. THE UNITED STATES, 43 CT.CLS. 320; BEATY V. THE UNITED STATES, 58 CT.CLS. 25; AND IN 27 OP.ATTY.GEN. 337. WITH RESPECT TO THE APPLICATION OF THE ACT OF APRIL 23, 1930, TO THE RETIREMENT OF ARMY OFFICERS FOR DISABILITY PURSUANT TO SECTION 1251, REVISED STATUTES, THE JUDGE ADVOCATE GENERAL OF THE ARMY, IN AN OPINION DATED DECEMBER 19, 1932, 210.85, A SYNOPSIS OF WHICH APPEARS IN SECTION 549, SUPPLEMENT VI TO THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 1912-30, HELD (QUOTING FROM THE SYNOPSIS) AS FOLLOWS:

ON MAY 27, 1932, THE PRESIDENT APPROVED THE PROCEEDINGS OF A RETIRING BOARD FINDING AN OFFICER DISABLED IN LINE OF DUTY AND DIRECTED THAT HE BE RETIRED "ON MAY 31, 1932, UNDER THE PROVISIONS OF R.S. 1251 AND THE ACT OF APRIL 23, 1930.' THE LATTER STATUTE (46 STAT. 253); U.S.C. 5:47A, PROVIDES THAT ALL RETIREMENTS SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH, EXCEPT THAT PAY ,SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ACTED.' HELD, THAT THE REFERENCE BY THE PRESIDENT TO THE ACT OF APRIL 23, 1930, AND THE UNIFORM PRACTICE OF THE WAR DEPARTMENT PRIOR TO ITS PASSAGE TO RETIRE OFFICERS ON THE DATE OF THE PRESIDENT'S APPROVAL OF THE PROCEEDINGS OF THE RETIRING BOARD, REQUIRE THE CONCLUSION THAT THE PRESIDENT FIXED MAY 31 AS THE DATE OF RETIREMENT BECAUSE OF THAT ACT, AND, BUT FOR THAT ACT, WOULD HAVE RETIRED THE OFFICER MAY 27. HIS RETIRED PAY MUST THEREFORE BE COMPUTED AS IF HE HAD BEEN RETIRED MAY 27.

COPIES ON FILE IN THIS OFFICE, OF ORDERS ISSUED TO OFFICERS OF THE NAVY NOTIFYING THEM OF THEIR RETIREMENT FOR DISABILITY PURSUANT TO SECTION 1453, REVISED STATUTES, SHOW THAT FOR MANY YEARS THE PRACTICE OF THE NAVY DEPARTMENT IN SUCH CASES WAS IN ACCORD WITH THAT OF THE WAR DEPARTMENT UNDER SECTION 1251, THAT IS, THE OFFICER WAS TRANSFERRED TO THE RETIRED LIST FROM THE DATE OF THE PRESIDENT'S APPROVAL OF THE FINDINGS OF THE RETIRING BOARD. HOWEVER, APPARENTLY COMMENCING IN 1927 THE NAVY DEPARTMENT, IN LAYING THE RECORDS AND DECISIONS OF RETIRING BOARDS BEFORE THE PRESIDENT, ADOPTED THE PRACTICE, AS INDICATED IN THE QUOTED INDORSEMENT OF THE CHIEF OF THE BUREAU OF NAVIGATION, OF RECOMMENDING A LATER EFFECTIVE DATE FOR THE OFFICER'S RETIREMENT.

SECTION 1452, REVISED STATUTES, PROVIDES THAT:

A RECORD OF THE PROCEEDINGS AND DECISION OF THE BOARD IN EACH CASE SHALL BE TRANSMITTED TO THE SECRETARY OF THE NAVY, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL, OR ORDERS IN THE CASE.

SECTION 1453, REVISED STATUTES, PROVIDES THAT:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY, * * *

UNDER THE QUOTED PROVISIONS OF LAW THE RETIREMENT OF THE OFFICER IS A MATTER FOR DETERMINATION BY THE RETIRING BOARD AND THE PRESIDENT. THOSE PROVISIONS DO NOT AUTHORIZE THE NAVY DEPARTMENT TO MAKE RECOMMENDATIONS AS TO THE EFFECTIVE DATE OF RETIREMENT. SUCH ATTEMPTS TO SET DATES FOR RETIREMENTS PURSUANT TO SECTION 1453, REVISED STATUTES, BEYOND THE DATES OF THE PRESIDENT'S APPROVAL OF THE FINDINGS OF THE RETIRED BOARD WERE IN CONFLICT WITH THE LONG-ESTABLISHED CONSTRUCTION OF THE LAW, AND THERE HAVE BEEN FOUND NO DECISIONS, AND, EXCEPT FOR THE STATEMENT OF THE COURT OF CLAIMS IN HOLLAND V. THE UNITED STATES, 83 CT.CLS. 376, REFERRED TO BY THE CHIEF OF THE BUREAU OF NAVIGATION, NO DICTA IN SUPPORT THEREOF.

IN THE HOLLAND CASE THE PLAINTIFF, A COMMISSIONED WARRANT OFFICER IN THE NAVY, WAS IN THE NAVAL HOSPITAL UNDERGOING TREATMENT WHEN THE PRESIDENT ON JULY 20, 1926, APPROVED THE FINDINGS OF A NAVAL RETIRING BOARD IN HIS CASE AND DIRECTED THAT HE BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST IN CONFORMITY WITH SECTION 1453, REVISED STATUTES. THE PLAINTIFF CLAIMED ADDITIONAL LONGEVITY PAY BASED UPON THE TIME AFTER JULY 20, 1926, TO THE DATE OF HIS DISCHARGE FROM THE HOSPITAL OR OF HIS ARRIVAL AT HIS HOME. IN DENYING HIS CLAIM THE COURT STATED:

IN VIEW OF THE POSITIVE PROVISIONS OF THAT SECTION THAT AN OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE WHEN THE PRESIDENT APPROVES THE DECISION OF THE RETIRING BOARD, WE SEE NO ESCAPE FROM THE CONCLUSION THAT THE OFFICER WAS IN FACT RETIRED FROM ACTIVE SERVICE ON THE DATE OF THE PRESIDENT'S ORDER. THE TIME SUBSEQUENTLY SPENT UNDERGOING TREATMENT AT THE HOSPITAL PURSUANT TO ORDERS PREVIOUSLY ISSUED FOR THAT PURPOSE CANNOT BE CONSIDERED AS SERVICE PERFORMED ON THE ACTIVE LIST AND CANNOT BE COUNTED FOR LONGEVITY PURPOSES TO INCREASE THE RETIRED PAY. * * *

* * * 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 SUBSEQUENT TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY, AN OFFICER'S ACTIVE-DUTY PAY CEASES ON THE DATE ON WHICH HE WAS ORDERED TO BE PLACED ON THE RETIRED LIST. 17 COMP. DEC. 533, 536; 18 COMP. DEC. 747, 750; 32 ATTY.GEN.OP. 176, 178.

THE FURTHER STATEMENT OF THE COURT, THAT---

RETIREMENT CONSTITUTES A CHANGE OF STATUS AND IS, BY REASON OF THE MANDATORY PROVISIONS OF SECTION 1453 OF THE REVISED STATUTES, EFFECTIVE ON THE DATE THE ACTION IS TAKEN BY THE PRESIDENT, UNLESS SOME OTHER DATE IS FIXED IN THE ORDER. * * *

WAS NOT NECESSARY TO THE COURT'S DECISION, AS NO "OTHER DATE" WAS FIXED IN THE PRESIDENT'S ORDER IN THAT CASE, AND IS NOT SUPPORTED BY THE DECISIONS CITED BY THE COURT, WHICH ARE IN ACCORD WITH THE ACTUAL DECISION OF THE COURT, THAT IN THE ABSENCE OF ORDERS PRIOR TO RETIREMENT DEFINITELY ASSIGNING AN OFFICER TO ACTIVE DUTY AFTER RETIREMENT, OR ORDERS ISSUED SUBSEQUENT TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY, AN OFFICER'S ACTIVE DUTY PAY CEASES ON THE DATE OF THE PRESIDENT'S ORDER.

THE COURT OF CLAIMS IN THE HOLLAND CASE EXPRESSLY RECOGNIZED THE MANDATORY CHARACTER OF THE PROVISIONS OF SECTION 1453, REVISED STATUTES. IF SUCH PROVISIONS WERE CONSTRUED AS PERMITTING POSTPONEMENT OF THE EFFECTIVE DATE OF THE OFFICER'S RETIREMENT BEYOND THE DATE OF THE PRESIDENT'S APPROVAL OF THE FINDINGS OF THE RETIRING BOARD--- EXCEPT AS NOW SPECIFICALLY REQUIRED AND SUBJECT TO THE CONDITIONS PRESCRIBED BY THE ACT OF APRIL 23, 1930, SUPRA--- THEIR MANDATORY CHARACTER WOULD BE LOST, SINCE AN OFFICER MIGHT BE RETAINED ON THE ACTIVE LIST UNTIL HE REACHED THE AGE OF 64, NOTWITHSTANDING THE FINDING OF THE RETIRING BOARD, APPROVED BY THE PRESIDENT, THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE. SUCH CONSTRUCTION WOULD APPEAR CONTRARY, ALSO, TO THE INTENT OF THE STATUTE TO EFFECT THE REMOVAL FROM THE ACTIVE LIST OF THOSE OFFICERS FOUND BY PROPER AUTHORITY TO BE DISABLED FOR PERFORMANCE OF THEIR DUTIES, AND INCONSISTENT WITH THE FINALITY OF THE PRESIDENT'S ACTION IN APPROVING THE FINDINGS OF RETIRING BOARDS IN CASES OF INCAPACITY FOR ACTIVE SERVICE, EITHER AS THE RESULT OF AN INCIDENT OF THE SERVICE (SECS. 1251 AND 1453, REVISED STATUTES) OR OTHERWISE (SECS. 1252 AND 1454, REVISED STATUTES).

WITH RESPECT TO THE CHARACTER OF THE PRESIDENT'S ACTION IN SUCH CASES, THE SUPREME COURT OF THE UNITED STATES HELD IN POTTS V. UNITED STATES, 125 U.S. 173, THAT:

* * * THE FINDING OF THE RETIRING BOARD, APPROVED BY THE PRESIDENT, IS THE JUDGMENT OF THE TRIBUNAL CREATED UNDER THE LAW FOR THE GOVERNMENT OF THE NAVY TO DETERMINE SUCH QUESTIONS * * *.

IN THE CASE OF BURCHARD V. THE UNITED STATES, 19 CT.CLS. 137, THE PLAINTIFF HAD BEEN RETIRED ON FURLOUGH PAY OCTOBER 26, 1874, THE DAY ON WHICH THE PRESIDENT HAD APPROVED THE FINDING OF A RETIRING BOARD THAT HE WAS INCAPACITATED FOR DUTY BY DISABILITY, WHICH DID NOT ORIGINATE IN THE LINE OF DUTY. REFERRING TO A LATER ATTEMPT OF THE SECRETARY OF THE NAVY TO CHANGE THAT FINDING, THE COURT OF CLAIMS STATED:

THIS FINDING, IT IS SAID, WAS CHANGED BY THE LETTER OF THE SECRETARY OF THE NAVY. "THE DEPARTMENT," SAYS THE SECRETARY, UNDER DATE OF MARCH 1, 1877,"IS OF THE OPINION THAT THE CAUSES WHICH INCAPACITATED HIM FOR ACTIVE DUTY WERE INCIDENT TO THE SERVICE.' UNFORTUNATELY FOR THE CLAIMANT, THE RETIRING BOARD, BY THE PRESIDENT'S APPROVAL, AND NOT "THE DEPARTMENT," WAS AUTHORIZED BY LAW TO SETTLE THAT FACT (REV.STAT. SECS. 1451 AND 1454), AND BY THE FINDING OF THAT BOARD AND THE APPROVAL OF THE PRESIDENT IT HAD BEEN SETTLED MORE THAN TWO YEARS BEFORE THE ,OPINION OF THE DEPARTMENT" WAS KNOWN OR FORMED. * * *

UPON APPEAL OF THAT CASE THE SUPREME COURT IN UNITED STATES V. BURCHARD, 125 U.S. 177, STATED IN PART AS FOLLOWS:

* * * THE LAW REQUIRES A RECORD OF THE PROCEEDINGS AND DECISION OF THE RETIRING BOARD TO BE MADE AND TRANSMITTED TO THE SECRETARY OF THE NAVY, AND BY HIM LAID BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL, OR ORDERS IN THE CASE. AT FIRST THE FINDINGS IN THIS CASE WERE APPROVED, AND ORDERS MADE THEREON, BUT AFTERWARDS THE DEPARTMENT BECAME SATISFIED ON REEXAMINATION THAT THE FINDINGS WERE WRONG, AND THAT THE INCAPACITY WAS ACTUALLY THE RESULT OF CAUSES INCIDENT TO THE SERVICE. NEITHER THE DEPARTMENT NOR THE PRESIDENT COULD THEN CHANGE THE FINDINGS, AS THEY HAD ALREADY BEEN APPROVED, AND WERE NO LONGER OPEN TO REVIEW. THE ACTION OF THE PRESIDENT WAS EQUIVALENT TO THE JUDGMENT OF AN APPROPRIATE TRIBUNAL UPON THE FACTS AS FOUND. * * *

IN MCBLAIR V. THE UNITED STATES, 19 CT.CLS. 528, THE COURT OF CLAIMS HELD, IN DISCUSSING THE POWER OF THE PRESIDENT TO REVOKE HIS APPROVAL OF A RECOMMENDATION OF A RETIRING BOARD UNDER THE LAW WHICH BECAME SECTION 1252, REVISED STATUTES, THAT:

UPON THE REPORT OF THE BOARD THE PRESIDENT HAD THE RIGHT TO ADOPT ONE OF THREE COURSES WITH THE CLAIMANT; HE COULD DISAPPROVE THE FINDING AND THEREBY RETAIN THE CLAIMANT IN THE ACTIVE SERVICE, RETIRE HIM FROM ACTIVE SERVICE, OR WHOLLY RETIRE HIM FROM THE ARMY, AS HE MIGHT DETERMINE. HAD A POWER TO EXERCISE IN THE DISPOSITION OF THE REPORT, AND HIS ACTION THEREON, MADE IN LAW, THE COMPLETE EXERCISE OF THE FULL MEASURE OF AUTHORITY PROVIDED BY THE STATUTE. IT IS NOT A CONTINUING POWER, BUT IS PERFORMED TO THE EXTENT OF ITS EXISTENCE BY THE ONE ACT OF THE PRESIDENT.

SEE TO THE SAME EFFECT, 19 OP.ATTY.GEN. 202.

A CASE IN 15 OP.ATTY.GEN. 442, INVOLVED A MARINE OFFICER RETIRED FOR INCAPACITY NOT AN INCIDENT OF THE SERVICE, THE PRESIDENT'S ORDER BEING AS FOLLOWS:

I CONCUR IN OPINION WITH THE RETIRING BOARD IN THE CASE OF FIRST LIEUT. GEORGE M. WELLES. LET HIM BE RETIRED ON FURLOUGH PAY.

SECTION 1252, REVISED STATUTES, WHICH THEN GOVERNED THE RETIREMENT OF MARINE OFFICERS IN SUCH CASES, DID NOT PROVIDE FOR FURLOUGH PAY. THE ATTORNEY GENERAL HELD AS TO THE EFFECT OF THE PRESIDENT'S ACTION THAT:

* * * HAVING THUS APPROVED THE FINDING OF THE BOARD, IT RESTED ENTIRELY IN HIS DISCRETION WHETHER LIEUTENANT WELLES SHOULD BE RETIRED FROM ACTIVE SERVICE OR BE WHOLLY RETIRED FROM THE SERVICE; BUT IT WAS NECESSARY THAT ONE OR THE OTHER BE DONE, AS THE LAW IS IMPERATIVE THAT, WHEN THE DECISION OF THE BOARD IS APPROVED BY THE PRESIDENT, THE OFFICER "SHALL BE RETIRED," ETC. THE DIRECTION GIVEN IN THE LAST SENTENCE OF THE INDORSEMENT CLEARLY INDICATES THAT IT WAS THE DETERMINATION OF THE PRESIDENT THAT LIEUTENANT WELLES BE RETIRED FROM ACTIVE SERVICE SIMPLY. THE COMPENSATION OF AN OFFICER THUS RETIRED BEING FIXED BY STATUTE, AND NOT LEFT TO BE DETERMINED BY THE PRESIDENT, IN SO FAR AS THAT DIRECTION LIMITS THE PAY OF LIEUTENANT WELLES ON THE RETIRED LIST IT MUST BE TREATED AS OF NO EFFECT.

IN 27 OP.ATTY.GEN. 162, THE ATTORNEY GENERAL REFERRED TO THE RETIREMENT OF ARMY OFFICERS FOR DISABILITY UNDER SECTIONS 1245 TO 1252, REVISED STATUTES, AS "COMPULSORY" RETIREMENT. THE SAME TERM WAS USED IN 27 OP.ATTY.GEN. 337, WITH RESPECT TO THE RETIREMENT OF A NAVAL OFFICER UNDER SECTION 1453, REVISED STATUTES.

IN 30 OP.ATTY.GEN. 406, IT WAS HELD WITH REFERENCE TO SECTION 6 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1190, WHICH PROVIDES THAT AT ANY TIME AFTER THE PASSAGE OF THE ACT ANY OFFICER OF THE ARMY OR NAVY TO BE BENEFITED BY THE PROVISIONS THEREOF MAY, ON HIS OWN APPLICATION, BE RETIRED BY THE PRESIDENT AT 75 PERCENT OF THE PAY OF THE RANK UPON WHICH RETIRED, THAT WHEN AN OFFICER OTHERWISE WITHIN THE PURVIEW OF THE ACT APPLIED FOR RETIREMENT HE MUST BE RETIRED AND THE PRESIDENT HAD NO DISCRETIONARY AUTHORITY TO POSTPONE THE DATE OF RETIREMENT TO SUCH TIME AS HE MIGHT DEEM PROPER.

IN 32 OP.ATTY.GEN. 176, THE ATTORNEY GENERAL HELD THAT RETIREMENT OF A NAVAL OFFICER UNDER SECTION 1443, REVISED STATUTES, WHICH PROVIDES THAT WHEN ANY OFFICER OF THE NAVY HAS BEEN 40 YEARS IN THE SERVICE OF THE UNITED STATES HE MAY BE RETIRED FROM ACTIVE SERVICE BY THE PRESIDENT UPON HIS OWN APPLICATION, WAS EFFECTIVE, SO AS TO CREATE A VACANCY, ON THE DATE HIS APPLICATION FOR RETIREMENT WAS APPROVED BY THE PRESIDENT. THE OPINION OF THE ATTORNEY GENERAL IS IN PART AS FOLLOWS:

IN MARBURY V. MADISON, 1 CRANCH, 137, 161, THE SUPREME COURT HELD THAT AN APPOINTMENT TO OFFICE TAKES EFFECT WHEN THE APPOINTING POWER HAS DONE EVERYTHING IN REGARD TO IT REQUIRED BY LAW. THIS RULE IS NOW SETTLED IN THE LAW OF THE UNITED STATES (UNITED STATES V. BRADLEY, 10 PET. 343, 364; UNITED STATES V. LINN, 15 PET. 290, 313; UNITED STATES V. LE BARON, 19 HOW. 73, 78). * * * THIS PRINCIPLE IS APPLICABLE TO THE RETIREMENT OF AN OFFICER OF THE NAVY UNDER SECTION 1443, REVISED STATUTES. BY THAT SECTION THREE FACTS MUST EXIST. THE OFFICER MUST HAVE BEEN 40 YEARS IN THE SERVICE; HE MUST APPLY FOR RETIREMENT; AND THE PRESIDENT MUST ACT UPON HIS APPLICATION. WHEN THESE THREE THINGS OCCUR, IT IS MY OPINION THAT THE OFFICER'S STATUS CHANGES FROM THAT OF AN ACTIVE OFFICER TO THAT OF A RETIRED OFFICER. * * * THE REASONING OF THE LAST-QUOTED OPINION APPLIES A FORTIORI TO THE INSTANT CASE, SINCE SECTION 1453, REVISED STATUTES, PROVIDES, NOT THAT THE OFFICER MAY BE RETIRED, BUT THAT, IF THE DECISION OF THE RETIRING BOARD IS APPROVED BY THE PRESIDENT HE SHALL BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY. IN THE LIGHT OF THAT REASONING, AND IN VIEW OF ALL THE OTHER CONSIDERATIONS AND DECISIONS SET FORTH HEREIN, IT APPEARS THAT RETIREMENTS UNDER SECTION 1453, REVISED STATUTES, BEFORE THE ENACTMENT OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, WERE EFFECTIVE AS A MATTER OF LAW ON THE DATE OF THE PRESIDENT'S ACTION, NOTWITHSTANDING THE NAVY DEPARTMENT FOR A PERIOD OF 3 YEARS BEFORE 1930 ATTEMPTED TO DEPART FROM THE ESTABLISHED PROCEDURE BY RECOMMENDING A LATER EFFECTIVE DATE FOR RETIREMENT. ACCORDINGLY, THE CONCLUSION OF THE DECISION OF AUGUST 27, 1936, 16 COMP. GEN. 187, THAT, BUT FOR THE ACT OF APRIL 23, 1930, CAPTAIN O-DAY'S RETIREMENT WOULD HAVE BEEN EFFECTIVE APRIL 15, 1936, WHEN THE PRESIDENT APPROVED THE FINDINGS OF THE RETIRING BOARD, AND THAT UNDER THE PROVISIONS OF SAID ACT HIS RETIRED PAY MUST BE COMPUTED AS OF THAT DATE, APPEARS CORRECT AND SAID DECISION MUST BE, AND IS, AFFIRMED. THE AUDIT ACTION IN THE CASE OF LIEUTENANT MARSH, INSOFAR AS CONSISTENT WITH THAT DECISION, IS APPROVED.

THE DECISION OF JULY 25, 1930, A-32524 (10 COMP. GEN. 36) CITED BY THE CHIEF OF THE BUREAU OF NAVIGATION, APPARENTLY WAS RENDERED WITH REFERENCE TO RETIREMENTS AFTER 30 YEARS' SERVICE UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, WHICH MAKES SUCH RETIREMENTS DISCRETIONARY WITH THE PRESIDENT, AND THE DECISION HAS NO APPLICATION TO THE INSTANT CASE.

THERE HAS NOT BEEN OVERLOOKED THAT IN THE CASE OF LIEUTENANT MARSH CREDIT WAS APPARENTLY ALLOWED IN THE AUDIT FOR ACTIVE DUTY PAY AND ALLOWANCE AT THE RATE IN EFFECT ON THE DATE OF THE PRESIDENT'S APPROVAL OF HIS RETIREMENT, UP TO THE DATE SPECIFIED IN THE OFFICER'S RETIREMENT ORDERS, WHICH WAS LATER THAN THE FIRST OF THE MONTH FOLLOWING THE PRESIDENT'S ACTION. WHILE THE AUDIT ACTION IN THIS RESPECT WILL NOT NOW BE DISTURBED, THERE SHOULD BE FULL COMPLIANCE WITH THE ACT OF APRIL 23, 1930, SUPRA, IN FUTURE CASES OF RETIREMENT UNDER SECTION 1453, REVISED STATUTES.