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B-159201, JUN. 14, 1966

B-159201 Jun 14, 1966
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TO SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF MAY 16. THE LETTER WAS ASSIGNED CLEARANCE NUMBER SS-N-907 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE. IT APPEARS THAT REAR ADMIRAL HEARN WAS APPOINTED JUDGE ADVOCATE GENERAL OF THE NAVY BY THE PRESIDENT FOR A FOUR-YEAR TERM COMMENCING APRIL 1. SUCH APPOINTMENT WAS ACCOMPLISHED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 5148 (A). PROVIDING AS FOLLOWS: "THERE IS IN THE EXECUTIVE PART OF THE DEPARTMENT OF THE NAVY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY. HE SHALL BE APPOINTED FROM OFFICERS OF THE NAVY OR THE MARINE CORPS WHO ARE MEMBERS OF THE BAR OF A FEDERAL COURT OR THE HIGHEST COURT OF A STATE OR TERRITORY AND WHO HAVE HAD AT LEAST EIGHT YEARS OF EXPERIENCE IN LEGAL DUTIES AS COMMISSIONED OFFICERS.'.

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B-159201, JUN. 14, 1966

TO SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MAY 16, 1966, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION INVOLVING THE STATUS AND RIGHTS OF REAR ADMIRAL WILFRED A. HEARN, CURRENTLY SERVING AS JUDGE ADVOCATE GENERAL OF THE NAVY. THE LETTER WAS ASSIGNED CLEARANCE NUMBER SS-N-907 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS THAT REAR ADMIRAL HEARN WAS APPOINTED JUDGE ADVOCATE GENERAL OF THE NAVY BY THE PRESIDENT FOR A FOUR-YEAR TERM COMMENCING APRIL 1, 1964. SUCH APPOINTMENT WAS ACCOMPLISHED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 5148 (A), PROVIDING AS FOLLOWS:

"THERE IS IN THE EXECUTIVE PART OF THE DEPARTMENT OF THE NAVY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY. THE JUDGE ADVOCATE GENERAL SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR A TERM OF FOUR YEARS. HE SHALL BE APPOINTED FROM OFFICERS OF THE NAVY OR THE MARINE CORPS WHO ARE MEMBERS OF THE BAR OF A FEDERAL COURT OR THE HIGHEST COURT OF A STATE OR TERRITORY AND WHO HAVE HAD AT LEAST EIGHT YEARS OF EXPERIENCE IN LEGAL DUTIES AS COMMISSIONED OFFICERS.'

AN OFFICER SERVING AS JUDGE ADVOCATE GENERAL OF THE NAVY HAS THE RANK OF REAR ADMIRAL AND HE IS ENTITLED TO ACTIVE DUTY BASIC PAY AND ALLOWANCES AS A REAR ADMIRAL OF THE UPPER HALF. 10 U.S.C. 5148 (B), 5133 (A) AND 37 U.S.C. 202 (H) (6). REAR ADMIRAL HEARN'S PERMANENT NAVAL STATUS IS THAT OF A CAPTAIN. HE IS RESTRICTED IN THE PERFORMANCE OF DUTY HAVING BEEN APPOINTED TO THE ACTIVE LIST IN THE LINE OF THE NAVY AND DESIGNATED FOR PERFORMANCE OF SPECIAL DUTY IN THE FIELD OF LAW UNDER THE PROVISIONS OF SECTION 401 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 869, NOW FOUND IN 10 U.S.C. 5587. SEE 10 U.S.C. 5001 (A) (8).

REAR ADMIRAL HEARN'S PAY ENTRY BASE DATE IS SHOWN TO BE APRIL 6, 1942, AND ON THAT BASIS HE IS ENTITLED TO COMPUTE HIS CURRENT ACTIVE DUTY PAY AS A REAR ADMIRAL OF THE UPPER HALF WITH OVER 22 YEARS OF SERVICE CREDITABLE FOR BASIC PAY. IT APPEARS THAT HE HAS BEEN CREDITED WITH CONSTRUCTIVE SERVICE UNDER SECTION 2 OF THE ACT OF AUGUST 5, 1949, CH. 402, 63 STAT. 569, AND THAT HIS SERVICE DATE (THE DATE FROM WHICH AN OFFICER'S COMMISSIONED SERVICE IS DEEMED TO HAVE COMMENCED FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST OR INVOLUNTARY SEPARATION FROM THE ACTIVE LIST) IS JUNE 30, 1935, HE HAVING BEEN ALIGNED WITH AN OFFICER OF THE NAVAL ACADEMY CLASS OF 1935. HENCE, HE WILL BE CONSIDERED TO HAVE 31 YEARS OF TOTAL COMMISSIONED SERVICE ON JUNE 30, 1966, WITHIN THE MEANING OF 10 U.S.C. 6387 RELATING TO COMPUTATION OF COMMISSIONED SERVICE.

THE INITIAL AND BASIC ISSUE POSED RELATES TO THE EFFECT OF THE PROVISIONS OF 10 U.S.C. 6377 (A) ON REAR ADMIRAL HEARN'S CURRENT NAVAL STATUS. SECTION 6377 (A), AS AMENDED AUGUST 3, 1961, BY SECTION 5 (28), PUB.L. 87- 123, 75 STAT. 266, PROVIDES:

"IF NOT ON A PROMOTION LIST AND IF NOT CONTINUED ON THE ACTIVE LIST UNDER SECTION 6378 OF THIS TITLE, EACH OFFICER RESTRICTED IN THE PERFORMANCE OF DUTY SERVING IN THE GRADE OF CAPTAIN ON THE ACTIVE LIST IN THE LINE OF THE NAVY SHALL, SUBJECT TO SECTION 5777 OF THIS TITLE (PROVISIONS RELATING TO REMOVAL OF AN OFFICER'S NAME FROM A PROMOTION LIST--- NOT APPLICABLE IN THIS CASE), BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH HE COMPLETES 31 YEARS OF TOTAL COMMISSIONED SERVICE AS COMPUTED UNDER SECTION 6387 OF THIS TITLE.'

SUBSECTION (B) OF SECTION 5148, TITLE 10, U.S. CODE, AS AMENDED BY SECTION 14C/20), PUB.L. 87-649, SEPTEMBER 7, 1962, 76 STAT. 501, PROVIDES THAT THE JUDGE ADVOCATE GENERAL OF THE NAVY "IS ENTITLED TO THE SAME RANK AND PRIVILEGES OF RETIREMENT" AS PROVIDED FOR CHIEFS OF BUREAUS IN SECTION 5133 OF THAT TITLE. SECTION 5133, AS AMENDED, IN PERTINENT PART CURRENTLY PROVIDES AS FOLLOWS:

"/A) UNLESS APPOINTED TO A HIGHER GRADE UNDER ANOTHER PROVISION OF LAW, AN OFFICER OF THE NAVY, WHILE SERVING AS A CHIEF OF BUREAU, HAS THE RANK OF REAR ADMIRAL. * * *

"/B) * * * AN OFFICER WHO IS RETIRED WHILE SERVING AS A CHIEF OF BUREAU, OR WHO, AFTER SERVING AT LEAST TWO AND ONE-HALF YEARS AS A CHIEF OF BUREAU, IS RETIRED AFTER COMPLETION OF THAT SERVICE WHILE SERVING IN A LOWER RANK OR GRADE, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED WITH THE GRADE OF REAR ADMIRAL * * * AND WITH RETIRED PAY BASED ON THAT GRADE. IF HE IS RETIRED WITH THE GRADE OF REAR ADMIRAL, HE IS ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL IN THE UPPER HALF OF THAT GRADE. * *

THE PROVISIONS OF SECTION 5148/A), TITLE 10, U.S. CODE, PRESENTLY GOVERNING THE APPOINTMENT BY THE PRESIDENT OF AN OFFICER OF THE NAVY OR MARINE CORPS AS JUDGE ADVOCATE GENERAL OF THE NAVY FOR A TERM OF FOUR YEARS DO NOT CONTAIN ANY SAVINGS PROVISIONS SUCH AS THOSE FOUND, FOR EXAMPLE, IN SECTIONS, 5596 (F), 5597 (H), 5784 (E) AND 5787 (H), TITLE 10, U.S. CODE, PROTECTING THE ,PERMANENT, PROBATIONARY, OR ACTING STATUS" OF MEMBERS OF THE NAVAL SERVICE TEMPORARILY APPOINTED OR TEMPORARILY PROMOTED TO HIGHER GRADE UNDER THOSE SECTIONS. IT LONG HAS BEEN CONSIDERED, HOWEVER, THAT THE APPOINTMENT OF AN OFFICER BY THE PRESIDENT TO THE OFFICE OF JUDGE ADVOCATE GENERAL OF THE NAVY (OR AS A CHIEF OF BUREAU) FOR A STATUTORY TERM OF FOUR YEARS DOES NOT AFFECT OR TERMINATE THE NAVAL STATUS OF THE OFFICER SO APPOINTED AND THAT AFTER COMPLETION OF THE FOUR-YEAR TERM IN SUCH OFFICE, OR EARLIER SEPARATION BY RETIREMENT OR OTHERWISE, THE OFFICER CONCERNED REVERTS BY OPERATION OF LAW TO HIS FORMER STATUS IN THE NAVY. SEE 10 OP.ATT.GEN. 377; 27 ID. 376; 28 ID. 531 AND 31 ID. 55I. ALSO, SEE STOKES V. UNITED STATES, 54 CT.CL. 70 (1919), LAWS RELATING TO THE NAVY, ANNOTATED, 1922, AT PAGES 366 TO 369, AND 25 OP.ATT.GEN. 294, AT PAGE 297.

A NAVAL OFFICER WHO IS APPOINTED AS A CHIEF OF BUREAU IS CONSIDERED AS SERVING IN THAT OFFICE DURING THE TERM OF HIS APPOINTMENT AND SUCH AN OFFICER REVERTS TO HIS FORMER STATUS IN THE NAVAL SERVICE WHEN HE RETURNS FROM ACTIVE SERVICE IN THE APPOINTED OFFICE TO ACTIVE SERVICE IN HIS PERMANENT NAVAL STATUS. THE PROVISIONS OF 10 U.S.C. 5133 (B) CURRENTLY GOVERNING THE RETIRED GRADE OF AN OFFICER OF THE NAVAL SERVICE WHO, AFTER COMPLETION OF NOT LESS THAN TWO AND ONE-HALF YEARS OF SERVICE AS A CHIEF OF BUREAU IS RETIRED "WHILE SERVING IN A LOWER GRADE OR RANK" CLEARLY IMPLY THAT SUCH AN OFFICER RESUMES AN ACTIVE DUTY STATUS IN HIS PERMANENT GRADE OR RANK AFTER COMPLETION OF HIS SERVICE AS A CHIEF OF BUREAU. CF. 27 COMP. GEN. 296, 299.

IT SEEMS QUITE DOUBTFUL THAT REAR ADMIRAL HEARN PROPERLY SHOULD BE CONSIDERED DURING THE PERIOD OF HIS SERVICE AS JUDGE ADVOCATE GENERAL OF THE NAVY, A STATUTORY OFFICE WHICH CARRIES THE RANK OF REAR ADMIRAL AND AND WHICH ENTITLES HIM TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF, AS "SERVING IN THE GRADE OF CAPTAIN ON THE ACTIVE LIST IN THE LINE OF THE NAVY" FOR THE PURPOSES OF SECTION 6377 (A). THE PROVISIONS OF SECTION 5148 (A), QUOTED ABOVE, EXPRESSLY AND SPECIFICALLY PROVIDE THAT THE JUDGE ADVOCATE GENERAL SHALL BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE "FOR A TERM OF FOUR YEARS.' THE STATUTORY ENACTMENTS FROM WHICH THOSE SPECIFIC PROVISIONS OF LAW WERE DERIVED WERE ENACTED NOT ONLY TO CREATE THE OFFICE OF JUDGE ADVOCATE GENERAL OF THE NAVY AND TO GOVERN THE MANNER OF APPOINTMENT THERETO BUT ALSO TO REGULATE THE TERM OF THE INCUMBENT OF THAT OFFICE. IT IS OUR VIEW THAT THE FOUR-YEAR TERM PRESCRIBED FOR THE JUDGE ADVOCATE GENERAL OF THE NAVY IS NOT SUBJECT TO CURTAILMENT UNDER THE PROVISIONS OF SECTION 6377 (A) WHICH ARE GENERAL IN SCOPE. IF GIVEN EFFECT IN HIS CASE SUCH STATUTORY PROVISIONS COULD FORCE REAR ADMIRAL HEARN INTO RETIREMENT FROM ACTIVE SERVICE ON JUNE 30, 1966, IRRESPECTIVE OF THE WISHES OF THE PRESIDENT AND THE SENATE BECAUSE HIS NAME IS NOT ON A PROMOTION LIST FOR PROMOTION TO THE GRADE OF REAR ADMIRAL, A SITUATION WHICH IS PATENTLY ABSURD SINCE HE HAS BEEN PERSONALLY SELECTED BY THE PRESIDENT AND CONFIRMED BY THE SENATE AS A CAPTAIN ON THE ACTIVE LIST OF THE NAVY FULLY QUALIFIED TO SERVE FOR FOUR YEARS AS JUDGE ADVOCATE GENERAL OF THE NAVY WITH THE RANK OF REAR ADMIRAL. IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED THAT SECTION 6377 (A) SHOULD BE VIEWED AS INAPPLICABLE IN HIS CASE DURING HIS STATUTORY TERM OF OFFICE AS JUDGE ADVOCATE GENERAL.

THE PARTICULAR QUESTION CONCERNING REAR ADMIRAL HEARN'S FUTURE RETIRED PAY STATUS IS STATED AS FOLLOWS:

"DECISION IS THEREFORE REQUESTED AS TO THE PROPER BASIS FOR THE COMPUTATION OF RETIRED PAY IN THE CASE OF REAR ADMIRAL HEARN UNDER 10 U.S.C. 5148, 5133, AND OTHER PERTINENT PROVISIONS OF LAW, WHEN RETIRED, ASSUMING THAT HE CONTINUES TO SERVE AS JUDGE ADVOCATE GENERAL UNTIL THE EXPIRATION OF HIS TERM OF OFFICE WITHOUT RESORT TO THE CONTINUATION PROCEDURES OF 10 U.S.C. 6378 AND IS RETIRED ON APRIL 1, 1968, OR RETIRES VOLUNTARILY BEFORE THE END OF HIS TERM. SPECIFICALLY, DECISION IS REQUESTED WHETHER SUCH COMPUTATION WOULD BE ON THE BASIS OF THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF, WITH 26 YEARS AS THE MULTIPLIER IN THE COMPUTATION.'

IN THE EVENT OF REAR ADMIRAL HEARN'S RETIREMENT EFFECTIVE APRIL 1, 1968, HE WOULD BE ENTITLED TO THE BENEFITS AUTHORIZED IN 10 U.S.C. 5133 (B). UNDER THE PROVISIONS OF THAT SUBSECTION HE MAY, IN THE DISCRETION OF THE PRESIDENT,"BE RETIRED WITH THE GRADE OF REAR ADMIRAL * * * AND WITH RETIRED PAY BASED ON THAT GRADE.' IF RETIRED WITH THE GRADE OF REAR ADMIRAL HE WILL BE ENTITLED TO THE RETIRED PAY OF A REAR ADMIRAL IN THE UPPER HALF OF THAT GRADE. SINCE HIS PAY ENTRY BASE DATE IS SHOWN AS APRIL 6, 1942, HE WILL BE IN RECEIPT OF BASIC PAY ON MARCH 31, 1968, AS AN OFFICER (PAY GRADE 0-8) WITH OVER 22 YEARS OF SERVICE AND WITH 25 YEARS, 11 MONTHS AND 25 DAYS OF SERVICE CREDITABLE UNDER 10 U.S.C. 1405 IN ESTABLISHING THE RETIRED PAY MULTIPLIER FACTOR IN 10 U.S.C. 6323. THE LAST SENTENCE IN SECTION 1405 EXPRESSLY PROVIDES THAT FOR THE PURPOSE OF THAT SECTION A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED. HENCE, THE MULTIPLIER FACTOR IN COMPUTING REAR ADMIRAL HEARN'S RETIRED PAY UNDER SECTION 6323, EFFECTIVE AS OF APRIL 1, 1968, WOULD BE BASED ON 26 YEARS OF SERVICE.

IF HE IS VOLUNTARILY PLACED ON THE RETIRED LIST PRIOR TO APRIL 1, 1968, UNDER AUTHORITY OF 10 U.S.C. 6323, REAR ADMIRAL HEARN'S RETIRED PAY WOULD BE COMPUTED AS INDICATED ABOVE, BUT IT SHOULD BE NOTED THAT THE BENEFITS OF THE LAST SENTENCE IN 10 U.S.C. 1405 WILL NOT RESULT IN 26 YEARS OF SERVICE BEING CREDITABLE FOR THE MULTIPLIER FACTOR IN COMPUTING HIS RETIRED PAY UNTIL HE HAS COMPLETED 25 YEARS AND 6 MONTHS OF SERVICE AS PROVIDED IN SECTION 1405, AS AMENDED.

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