B-168691, JUL 13, 1970, 50 COMP GEN 22

B-168691, JUL 13, 1970, 50 COMP GEN 22

PAY - REAR ADMIRALS, ETC. - OFFICERS SERVING AS JUDGE ADVOCATE GENERALS ASSIGNED NOT DETAILED THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-179, WHICH AUTHORIZED DETAILING TWO OFFICERS - A NAVY OFFICER (10 U.S.C. 5149(B) AND A MARINE OFFICER (10 U.S.C. 5149(C) - AS ASSISTANT JUDGE ADVOCATE GENERALS OF THE NAVY, ENTITLED TO THE RANK AND GRADE OF REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL WHILE SO SERVING, UNLESS ENTITLED TO A HIGHER RANK OR GRADE UNDER ANOTHER PROVISION OF LAW, EVIDENCING NO INTENT THAT A CAPTAIN OR OFFICER OF LESSER RANK RECEIVE THE PAY OF A REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL, AS APPROPRIATE, THE TWO NAVY CAPTAINS NOT DETAILED BUT ASSIGNED AS ASSISTANT JUDGE ADVOCATE GENERALS TO AVOID CREATING ENTITLEMENT TO FLAG RANK WITHIN THE MEANING OF 10 U.S.C. 5149(B), HAVING BEEN DENIED THE GRADE OF REAR ADMIRAL (LOWER HALF) AND ITS BENEFITS, MAY NOT BE PAID UNDER 37 U.S.C. 202(1) AT THAT GRADE.

TO LIEUTENANT G. R. SWACK, DEPARTMENT OF THE NAVY, JULY 13, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 7, 1969, FORWARDED HERE BY SECOND ENDORSEMENT DATED DECEMBER 22, 1969, OF THE DIRECTOR, NAVY MILITARY PAY SYSTEM, REQUESTING AN ADVANCE DECISION AS TO WHETHER CAPTAIN S. H. SHARRATT AND CAPTAIN RICHARD J. SELMAN MAY BE PAID THE PAY AUTHORIZED FOR REAR ADMIRAL (LOWER HALF) RETROACTIVE TO JULY 16, 1968, AND AUGUST 20, 1968, RESPECTIVELY. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-1063 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR REQUEST WAS ACCOMPANIED BY COMMENTS DATED NOVEMBER 5, 1969, OF THE JUDGE ADVOCATE OF THE NAVY, AND A STATEMENT DATED DECEMBER 1, 1969, BY THE CHIEF OF NAVAL PERSONNEL, COMMENTING UPON THE QUESTION PRESENTED. THERE HAS ALSO BEEN FORWARDED FOR OUR CONSIDERATION A MEMORANDUM FROM THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY DATED MAY 27, 1970, ENCLOSING A COPY OF LETTER DATED APRIL 14, 1970, FROM SENATOR SAM J. ERVIN, JR., RELATING TO THE STATUS OF CAPTAINS SHARRATT AND SELMAN.

BY BUPERS ORDER 125011(1), DATED JULY 24, 1968, CONFIRMING VERBAL INSTRUCTIONS OF JULY 16, 1968, CAPTAIN GEORGE S. H. SHARRATT, JAGC, USN, WAS ORDERED TO REPORT IMMEDIATELY TO THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR DUTY AS ASSISTANT JUDGE ADVOCATE GENERAL FOR CIVIL LAW. BUPERS ORDER 113880(1), DATED AUGUST 20, 1968, CAPTAIN RICHARD J. SELMAN, JAGC, USN, WAS ORDERED TO REPORT TO THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR DUTY AS ASSISTANT JUDGE ADVOCATE GENERAL FOR MILITARY LAW AND FOR ADDITIONAL DUTY AS OFFICER IN CHARGE, NAVY APPELLATE REVIEW ACTIVITY, OFFICE OF THE JUDGE ADVOCATE GENERAL, WASHINGTON, D.C.

IN HIS STATEMENT OF DECEMBER 1, 1969, THE CHIEF OF NAVAL PERSONNEL STATED THAT IT WAS HIS SPECIFIC INTENT NOT TO DETAIL THE OFFICERS HERE INVOLVED SO AS TO CREATE ENTITLEMENT TO FLAG RANK WITHIN THE MEANING OF 10 U.S.C. 5149(B) AND INDICATED THAT SUCH A DETAIL WOULD NECESSITATE APPROVAL BY THE SECRETARY OF THE NAVY.

IN VIEW OF NAVCOMPT INSTRUCTION 7220.44, CHANGE TRANSMITTAL 27, DATED AUGUST 30, 1969, TO THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL (PARAGRAPH 10214B(2) OF CHANGE 15, DATED JANUARY 5, 1970), WHICH PROVIDES THAT AN OFFICER IS ENTITLED TO THE BASIC PAY OF REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL WHEN "DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL, YOU EXPRESS DOUBT AS TO WHETHER PAYMENT IN THE GRADE OF REAR ADMIRAL MAY BE MADE TO CAPTAIN SHARRATT AND CAPTAIN SELMAN RETROACTIVE TO THE DATES OF THEIR ORDERS INASMUCH AS THE REGULATIONS AT THE TIME OF THE "INITIAL DETAILS TO THIS DUTY" AS ASSISTANT JUDGE ADVOCATE GENERALS DID NOT PROVIDE FOR PAYMENT IN THOSE POSITIONS IN THE RANK OF REAR ADMIRAL, "ALTHOUGH P.L. 90-179 OF DECEMBER 8, 1967, 80 (81) STAT. 547 (548), DID SO PROVIDE."

THE ACT OF DECEMBER 8, 1967, WHICH ESTABLISHED THE JUDGE ADVOCATE GENERAL'S CORPS IN THE NAVY, AMENDED 10 U.S.C. 5149 TO PERMIT, IN ADDITION TO A DEPUTY JUDGE ADVOCATE GENERAL, THE DETAILING OF TWO OFFICERS "AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY." AS PERTAINS TO THE PRESENT QUESTION, SECTION 5149 PROVIDES AS FOLLOWS:

(B) AN OFFICER OF THE JUDGE ADVOCATE GENERAL'S CORPS WHO HAS THE QUALIFICATIONS PRESCRIBED FOR THE JUDGE ADVOCATE GENERAL IN SECTION 5148(B) OF THIS TITLE MAY BE DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. WHILE SO SERVING HE IS ENTITLED TO THE RANK AND GRADE OF REAR ADMIRAL (LOWER HALF), UNLESS ENTITLED TO A HIGHER RANK OR GRADE UNDER ANOTHER PROVISION OF LAW. AN OFFICER WHO IS RETIRED WHILE SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THIS SUBSECTION OR WHO, AFTER SERVING AT LEAST TWELVE MONTHS AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, 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 RANK AND GRADE OF REAR ADMIRAL (LOWER HALF). IF HE IS RETIRED AS A REAR ADMIRAL, HE IS ENTITLED TO RETIRED PAY IN THE LOWER HALF OF THAT GRADE, UNLESS ENTITLED TO HIGHER PAY UNDER ANOTHER PROVISION OF LAW.

(C) A JUDGE ADVOCATE OF THE MARINE CORPS WHO HAS THE QUALIFICATIONS PRESCRIBED FOR THE JUDGE ADVOCATE GENERAL IN SECTION 5148(B) OF THIS TITLE MAY BE DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. WHILE SO SERVING HE IS ENTITLED TO THE RANK AND GRADE OF BRIGADIER GENERAL, UNLESS ENTITLED TO A HIGHER RANK OR GRADE UNDER ANOTHER PROVISION OF LAW. OFFICER WHO IS RETIRED WHILE SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THIS SUBSECTION OR WHO, AFTER SERVING AT LEAST TWELVE MONTHS AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, 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 RANK AND GRADE OF BRIGADIER GENERAL. IF HE IS RETIRED AS A BRIGADIER GENERAL, HE IS ENTITLED TO THE RETIRED PAY OF THAT GRADE, UNLESS ENTITLED TO HIGHER PAY UNDER ANOTHER PROVISION OF LAW.

IN ADDITION, THE ACT OF DECEMBER 8, 1967, ADDED TO 37 U.S.C. 202 A NEW SUBSECTION (K) (REDESIGNATED AS SUBSECTION (L) BY SECTION 3(2) OF THE ACT OF OCTOBER 22, 1968, PUBLIC LAW 90-623, 82 STAT. 1312, 1314), AS FOLLOWS:

UNLESS APPOINTED TO A HIGHER GRADE UNDER ANOTHER PROVISION OF LAW, AN OFFICER OF THE NAVY OR MARINE CORPS SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY IS ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL, AS APPROPRIATE.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 91-179 (10 U.S.C. 5149 (B) AND (C) AND 37 U.S.C. 2002(L) SHOWS THAT THE LANGUAGE FINALLY ENACTED WAS THE RESULT OF SEVERAL AMENDMENTS AND CHANGES OF PROPOSED LANGUAGE AND WE HAVE CAREFULLY CONSIDERED THE EXPLANATIONS AND DISCUSSIONS OF THOSE AMENDMENTS AND CHANGES IN CONJUNCTION WITH THE LANGUAGE OF THE LAW AS FINALLY ENACTED BUT WE ARE UNABLE TO ASCERTAIN AN INTENT THAT ANY CAPTAIN OR OFFICER OF LESSER RANK SHOULD BE PAID THE PAY OF A REAR ADMIRAL (LOWER HALF).

PRIOR TO ENACTMENT OF THE ACT OF DECEMBER 8, 1967, 10 U.S.C. 5149(A) MERELY PROVIDED THAT AN OFFICER OF THE LINE OF THE NAVY OR THE MARINE CORPS "MAY BE DETAILED" AS AN ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. THAT SUBSECTION ALSO PROVIDED THAT "WHILE SO SERVING" SUCH AN OFFICER IS ENTITLED TO THE HIGHEST PAY OF HIS RANK. ADDITIONAL PAY PROVISIONS WERE INCLUDED IN 37 U.S.C. 202(I).

WHEN H.R. 12910, A BILL TO ESTABLISH A JUDGE ADVOCATE GENERAL'S CORPS IN THE NAVY, WAS FIRST INTRODUCED (SEPTEMBER 14, 1967), NO SUBSTANTIAL CHANGE WAS PROPOSED IN THE LANGUAGE RELATING TO AN ASSISTANT JUDGE ADVOCATE GENERAL EXCEPT THAT AN OFFICER "SHALL BE DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY AND THE SPECIAL PAY PROVISION WAS OMITTED. ALSO (IN SECTION 7 OF THE BILL) IT WAS PROPOSED TO AMEND THE LANGUAGE OF 37 U.S.C. 202 TO REMOVE THE SPECIAL PAY PROVISIONS FOR AN OFFICER DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY.

AS PASSED BY THE HOUSE OF REPRESENTATIVES, H.R. 12910 HAD BEEN COMPLETELY REVISED INSOFAR AS ASSISTANT JUDGE ADVOCATE GENERALS OF THE NAVY ARE CONCERNED. AT THAT TIME THE BILL WOULD HAVE ENACTED 10 U.S.C. 5149(B) PROVIDING THAT A JUDGE ADVOCATE OF THE NAVY "SHALL BE DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. "WHILE SO SERVING, HE IS ENTITLED TO THE RANK AND GRADE OF REAR ADMIRAL (LOWER HALF)" UNLESS ENTITLED TO A HIGHER RANK UNDER ANOTHER PROVISION OF LAW. THAT SUBSECTION ALSO WOULD HAVE PROVIDED SPECIAL RETIREMENT RIGHTS FOR AN OFFICER "RETIRED WHILE SERVING AS AN ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THIS SUBSECTION" OR RETIRED AFTER HE HAD SERVED IN THAT CAPACITY.

IT WAS PROPOSED ALSO TO ENACT 10 U.S.C. 5149(C) WHICH WOULD HAVE PROVIDED THAT A JUDGE ADVOCATE OF THE MARINE CORPS "SHALL BE DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. "WHILE SO SERVING" SUCH AN OFFICER WOULD HAVE BEEN ENTITLED TO THE RANK AND GRADE OF BRIGADIER GENERAL AND SPECIAL RETIREMENT RIGHTS LIKE THOSE PROVIDED IN 10 U.S.C. 5149(B) WERE INCLUDED. SECTION 7 OF THE BILL WOULD HAVE ADDED SUBSECTION (K) TO 37 U.S.C. 202 WHICH WOULD HAVE PROVIDED THAT AN OFFICER "SERVING" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY IS ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL, AS APPROPRIATE.

HENCE, AS THE PROPOSAL PASSED THE HOUSE, IT PROVIDED THAT ONE OFFICER OF THE NAVY AND ONE OFFICER OF THE MARINE CORPS "SHALL BE DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. THOSE OFFICERS, "WHILE SO SERVING," WOULD HAVE BEEN ENTITLED TO THE RANK AND GRADE OF REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL, AS APPROPRIATE, AND WHILE "SERVING" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY THEY WOULD HAVE BEEN ENTITLED TO BASIC PAY OF A REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL, AS APPROPRIATE.

NOWHERE IN THE PROPOSAL, OR IN ITS LEGISLATIVE HISTORY, TO THIS POINT, DO WE FIND ANY SUGGESTION THAT A POSITION OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, EXCEPT AS SPECIFICALLY STATED, WAS PROPOSED. EITHER DO WE FIND THAT THE SPECIAL PAY PROVISIONS PROPOSED FOR INCLUSION IN 37 U.S.C. 202(K) FOR AN OFFICER SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY WERE INTENDED TO APPLY TO AN OFFICER OTHER THAN ONE DETAILED UNDER THE AUTHORITY PROVIDED IN THE PROPOSED 10 U.S.C. 5149(B) OR (C).

WHEN THE BILL WAS CONSIDERED BY THE ARMED SERVICES COMMITTEE OF THE SENATE IT WAS AMENDED SO AS TO OMIT 10 U.S.C. 5149(C) AND THE LANGUAGE OF 10 U.S.C. 5149(B) WAS ADJUSTED SO AS TO PROVIDE FOR ONLY ONE ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY - "A JUDGE ADVOCATE OF THE NAVY OR MARINE CORPS *** SHALL BE DETAILED" AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. NO SUBSTANTIAL CHANGE IN LANGUAGE WAS MADE IN THE PROVISIONS RELATING TO THE RANK OR GRADE OR THE RETIREMENT RIGHTS OF AN ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. ALSO, NO CHANGE IN LANGUAGE WAS MADE IN THE PROVISIONS WITH RESPECT TO PAY FOR A PERSON SO SERVING. SEE S. REPT. NO. 748, 90TH CONG., TO ACCOMPANY H.R. 12910.

ON THE FLOOR OF THE SENATE, ON THE MOTION OF SENATOR ERVIN, THE BILL WAS AMENDED TO INCLUDE 10 U.S.C. 5149(B) AND (C) EXACTLY AS THOSE SECTIONS WERE PASSED BY THE HOUSE EXCEPT THAT THE WORD "MAY" WAS SUBSTITUTED FOR THE WORD "SHALL" IN THE FIRST SENTENCE OF EACH SECTION. SENATOR ERVIN EXPLAINED THE AMENDMENTS (113 CONG. REC. 32764), AS FOLLOWS:

MR. PRESIDENT, AS REFERRED TO THE COMMITTEE THIS BILL PROPOSED TO ESTABLISH TWO NEW STATUTORY POSITIONS OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. ONE OF THESE POSITIONS WOULD HAVE BEEN FILLED BY A NAVY OFFICER WITH THE RANK AND GRADE OF REAR ADMIRAL, LOWER HALF, AND THE OTHER WOULD HAVE BEEN FILLED BY A MARINE CORPS OFFICER WITH THE RANK AND GRADE OF BRIGADIER GENERAL.

THE COMMITTEE ON ARMED SERVICES CONSOLIDATED THESE TWO POSITIONS INTO ONE AND PROVIDED THAT THE OCCUPANT COULD BE EITHER A NAVY OFFICER IN THE GRADE OF REAR ADMIRAL, LOWER HALF, OR A MARINE CORPS OFFICER IN THE GRADE OF BRIGADIER GENERAL. THE COMMITTEE DECIDED NOT TO INCREASE THE NUMBER OF FLAG OFFICERS IN THE NAVY OR GENERAL OFFICERS IN THE MARINE CORPS WHOSE CONFIRMATIONS IT WOULD RECOMMEND TO THE SENATE. ACCORDINGLY, THE ONE ADDITIONAL FLAG OR GENERAL OFFICER INVOLVED IN THE COMMITTEE VERSION OF THE BILL WOULD HAVE CAUSED THE NAVY OR THE MARINE CORPS TO ACCOMMODATE THIS ADDITIONAL FLAG OR GENERAL OFFICER WITHIN THE LIMITATIONS NOW APPLICABLE.

AFTER THE COMMITTEE'S ACTION THE LINE OFFICERS OF THE NAVY AND THE MARINE CORPS PROTESTED THEIR INABILITY TO ACCOMMODATE AN ADDITIONAL UNIFORMED LAWYER AS A REAR ADMIRAL OR A BRIGADIER GENERAL AND I HAVE AGREED TO SPONSOR AN AMENDMENT THAT ESTABLISHES THE TWO NEW STATUTORY POSITIONS OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY ON A PERMISSIVE BASIS INSTEAD OF REQUIRING THAT THEY BE FILLED BY A FLAG OFFICER OF THE NAVY OR A GENERAL OFFICER OF THE MARINE CORPS. IF THOSE IN POWER IN THE NAVY AND THE MARINE CORPS ARE LATER PERSUADED THAT ADDITIONAL FLAG OR GENERAL OFFICER POSITIONS SHOULD BE FILLED BY UNIFORMED LAWYERS, THE AUTHORITY FOR FLAG AND GENERAL OFFICER GRADE FOR THE OCCUPANTS OF THESE OFFICES WILL EXIST.

MR. PRESIDENT, THE PURPOSE OF THE AMENDMENTS WHICH I HAVE OFFERED IS TO MAKE THE ASSIGNMENT OF A FLAG OFFICER OR GENERAL OFFICER TO THE POSITIONS OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, WHICH ARE CREATED BY THE BILL, PERMISSIVE RATHER THAN MANDATORY; AND IT IS MERELY TO TAKE CARE OF THE PRESENT OBJECTION OF THE NAVY THAT IT IS UNABLE TO SUBTRACT FROM PRESENT AUTHORIZED FLAG OFFICERS AND GENERAL OFFICERS FOR THESE POSTS. THE AMENDMENTS WOULD MAKE IT PERMISSIVE RATHER THAN MANDATORY.

IT IS NOTED THAT SENATOR ERVIN SAID THAT HE HAD AGREED TO SPONSOR AN AMENDMENT THAT ESTABLISHES THE TWO NEW STATUTORY POSITIONS OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY ON A PERMISSIVE BASIS INSTEAD OF REQUIRING THAT THEY BE FILLED WITH FLAG OR GENERAL OFFICERS AND LATER HE INDICATED THAT THE BILL CREATES POSITIONS OF ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY. HOWEVER, NO SPECIFIC LANGUAGE OTHER THAN THAT CONTAINED IN 10 U.S.C. 5149 (B) AND (C) WAS PROPOSED AND EACH OF THOSE SUBSECTIONS CONTAINS MANDATORY LANGUAGE THAT AN OFFICER DETAILED UNDER THOSE PROVISIONS SHALL HAVE EITHER FLAG OR BRIGADIER GENERAL RANK AND GRADE. BECAUSE OF THE CHANGES MADE IN THE BILL BY THE SENATE IT HAD TO RECEIVE FURTHER CONSIDERATION BY THE HOUSE OF REPRESENTATIVES. THE DISCUSSION ON THE FLOOR OF THE HOUSE DURING THAT CONSIDERATION IS FOUND ON PAGES H-15565-6 OF THE CONGRESSIONAL RECORD FOR NOVEMBER 20, 1967 (113 CONG. REC. 33209). THAT DISCUSSION INCLUDES THE FOLLOWING STATEMENT BY CONGRESSMAN PHILBIN EXPLAINING WHY FURTHER HOUSE ACTION WAS NECESSARY: UNDER THE LANGUAGE OF THE BILL PRIOR TO ITS AMENDMENT THE SECRETARY OF THE NAVY WOULD HAVE BEEN REQUIRED TO DETAIL TWO ASSISTANT JUDGE ADVOCATE GENERALS AND THE SENATE COMMITTEE ADVISED THAT IF THIS WERE DONE THE STENNIS CEILING WOULD NOT BE RAISED, AND THAT THE FLAG AND GENERAL OFFICERS FILLING THE TWO BILLETS WOULD HAVE TO BE CHARGED AGAINST THE TOTAL NUMBER OF FLAG AND GENERAL OFFICERS ALREADY AUTHORIZED UNDER THE STENNIS CEILING FOR THE NAVY AND THE MARINE CORPS. BOTH THE NAVY AND THE MARINE CORPS TOOK THE POSITION THAT THEY COULD NOT ABSORB AT THIS TIME WITHIN THEIR CURRENT FLAG-AND GENERAL OFFICER ALLOCATIONS THE TWO ASSISTANT JUDGE ADVOCATE GENERAL BILLETS. CONSEQUENTLY THE LANGUAGE WAS CHANGED TO ENABLE THE NAVY AND MARINE CORPS TO HAVE SOME FLEXIBILITY IN THIS REGARD.

LATER IN THE DISCUSSION IN ANSWER TO A QUESTION WHETHER THE BILL WOULD BE PERMISSIVE FOR THE ESTABLISHMENT OF A JUDGE ADVOCATE GENERAL'S CORPS, MR. PHILBIN REPLIED:

NO; IT IS PERMISSIVE ONLY TO THE RANK OF THE TWO OFFICERS TO BE ADDED TO THE CORPS WHEN IT IS ORGANIZED, AND THEY SHALL BE OF FLAG RANK AS WELL AS A LOWER, LESSER RANK, PRESUMABLY CAPTAINS.

THE SENATE AMENDMENTS WERE CONCURRED IN AND THE TWO SUBSECTIONS WERE ENACTED AS QUOTED ABOVE.

THE JUDGE ADVOCATE GENERAL OF THE NAVY IN HIS COMMENTS OF NOVEMBER 5, 1969, WHICH ACCOMPANIED YOUR REQUEST FOR DECISION, AND THE ACTING JUDGE ADVOCATE GENERAL IN HIS MEMORANDUM OF MAY 27, 1970, RECENTLY RECEIVED, TAKE THE POSITION THAT 10 U.S.C. 5149(B) AND (C) CREATED TWO STATUTORY POSITIONS AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY TO BE FILLED BY OFFICERS WITH NO RESTRICTIONS WHATSOEVER AS TO THEIR RANK, GRADE OR BRANCH OF THE NAVAL SERVICE. CERTAINLY THAT CONCLUSION CANNOT BE BASED ON ANY SPECIFIC PROVISIONS IN THOSE TWO SUBSECTIONS AND EVEN IF IT COULD BE ADMITTED THAT THOSE TWO SUBSECTIONS, PLUS THEIR LEGISLATIVE HISTORY, WARRANT THAT CONCLUSION, NO PROGRESS WOULD BE APPARENT IN SOLVING THE PAY RIGHTS OF THOSE OFFICERS.

FOR EXAMPLE, IF A CAPTAIN IN THE NAVY IS ASSIGNED, AS CAPTAIN SHARRATT APPEARS TO HAVE BEEN, TO ACT AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, HE IS EITHER DETAILED UNDER 10 U.S.C. 5149(B) OR HE IS NOT. IF HE IS DETAILED UNDER THAT SUBSECTION IT IS SPECIFICALLY PROVIDED THAT HE IS ENTITLED TO THE RANK OF REAR ADMIRAL (LOWER HALF) WHILE SO SERVING. IF HE IS NOT DETAILED UNDER THAT SUBSECTION AND IF WE ADMIT, FOR THE SAKE OF ARGUMENT, THAT HIS DETAIL NEVERTHELESS MAKES HIM AN ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY, WHAT ARE HIS RIGHTS? IF HE OCCUPIES A POSITION OF ASSISTANT JUDGE ADVOCATE GENERAL THAT WAS CREATED BY STATUTE, AS THE JUDGE ADVOCATE GENERAL CONTENDS, THAT STATUTE MUST BE 10 U.S.C. 5149(B) (NO OTHER HAS BEEN SUGGESTED). AN OFFICER WHO IS RETIRED WHILE SERVING AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THAT SUBSECTION MAY BE RETIRED IN THE GRADE OF REAR ADMIRAL (LOWER HALF) WITH RETIRED PAY BASED ON THAT GRADE.

ON THE OTHER HAND, WE HAVE FOUND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY OF ANY INTENT TO AUTHORIZE RETIREMENT FOR AN ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY IN A GRADE HIGHER THAN THE ONE IN WHICH HE SERVED ON ACTIVE DUTY OR TO AUTHORIZED RETIRED PAY BASED ON SUCH A HIGHER GRADE.

WHEN THE PROVISIONS NOW CONTAINED IN 37 U.S.C. 202(L) WERE INSERTED IN H.R. 12910 (PROPOSED AS 37 U.S.C. 202(K)) THEY WOULD HAVE FIXED THE ACTIVE DUTY PAY AND WOULD HAVE BEEN APPLICABLE ONLY TO THOSE OFFICERS DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THE PROPOSED SPECIFIC STATUTORY AUTHORITY PROVIDING FOR SUCH DETAILS. IN OTHER WORDS, THOSE PROVISIONS WOULD HAVE AUTHORIZED THE PAY OF A REAR ADMIRAL (LOWER HALF) OR A BRIGADIER GENERAL, AS APPROPRIATE, FOR AN OFFICER DETAILED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY AND WHO, BECAUSE OF THAT DETAIL AND WHILE SO SERVING, WAS ENTITLED TO THE GRADE OF REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL.

THOSE PROVISIONS ARE APPLICABLE AT THE PRESENT TIME TO AN OFFICER SO DETAILED AND SERVING AND IT IS OUR VIEW THAT THEY DO NOT EXTEND TO CAPTAINS, OR OFFICERS OF LESSER GRADE, WHO HAVE BEEN ADMINISTRATIVELY ASSIGNED AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY AND WHO HAVE BEEN DENIED THE GRADE OF REAR ADMIRAL (LOWER HALF) OR BRIGADIER GENERAL. THE MATTER IS ENTIRELY TOO DOUBTFUL FOR THIS OFFICE TO CONCLUDE THAT CONGRESS INTENDED THAT THE PAY PROVISIONS OF 37 U.S.C. 202(L) SHOULD APPLY TO OFFICERS SO ADMINISTRATIVELY ASSIGNED BUT AT THE SAME TIME INTENDED TO DENY THEM THE BENEFITS SPECIFICALLY PROVIDED BY 10 U.S.C. 5149(B) OR (C) AS TO RANK AND GRADE FOR AN OFFICER "DETAILED" TO SO SERVE.

AFTER MOST CAREFUL CONSIDERATION OF ALL THE INFORMATION PRESENTED AND WITHOUT CONSIDERING WHETHER IT IS APPROPRIATE TO DETAIL TWO NAVY OFFICERS TO SERVE AS ASSISTANT JUDGE ADVOCATE GENERAL OF THE NAVY (INSTEAD OF ONE NAVY OFFICER AND ONE MARINE CORPS OFFICER), WE MUST CONCLUDE THAT NEITHER OF THE OFFICERS INVOLVED IS ENTITLED TO THE PAY OF A REAR ADMIRAL (LOWER HALF) UNDER THE PROVISIONS OF 37 U.S.C. 202(L) ON THE BASIS OF THE PRESENT RECORD.