B-159201, MAR. 5, 1968

B-159201, MAR. 5, 1968

ARMED SERVICES - RETIRED PAY - REAR ADMIRAL DECISION TO SECRETARY OF NAVY CONCERNING RATE OF ACTIVE DUTY PAY FOR REAR ADMIRAL SERVING AS JUDGE ADVOCATE GENERAL WHO AFTER RETIREMENT IS IMMEDIATELY RECALLED TO ACTIVE DUTY. OFFICER, WHO, AFTER RETIREMENT AS REAR ADMIRAL FOLLOWING SERVICE AS JUDGE ADVOCATE GENERAL IN GRADE OF REAR ADMIRAL AND PAY AS REAR ADMIRAL UPPER HALF IS RECALLED TO DUTY, MUST BE RECALLED IN GRADE ON RETIRED LIST EVEN THOUGH DURING TERM AS JUDGE ADVOCATE GENERAL HE WOULD HAVE BEEN RETIRED IN PERMANENT RANK OF CAPTAIN UNDER COMPULSORY RETIREMENT PROVISIONS OF 10 U.S.C. 6377 (A), THEREFORE, SINCE HE WAS ENTITLED TO RETIRED PAY OF REAR ADMIRAL HALF ON RETIREMENT UNDER 37 U.S.C. 202 (H) HE IS ENTITLED UPON RECALL TO ACTIVE DUTY PAY OF REAR ADMIRAL UPPER HALF.

DEAR MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 5, 1968, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING DECISION AS TO THE GRADE AND ACTIVE DUTY PAY WHICH REAR ADMIRAL WILFRED A. HEARN, UNITED STATES NAVY, NOW SERVING AS JUDGE ADVOCATE GENERAL OF THE NAVY, WILL BE ENTITLED TO RECEIVE IF HE IS RECALLED TO ACTIVE DUTY FOLLOWING HIS RETIREMENT, ASSUMING THAT THE PRESIDENT APPROVES HIS RETIREMENT EFFECTIVE APRIL 1, 1968, IN THE GRADE OF REAR ADMIRAL. THE REQUEST WAS ASSIGNED CLEARANCE NUMBER SS-N-988 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT ADMIRAL HEARN IS CONTEMPLATING RETIREMENT ON APRIL 1, 1968, UPON THE COMPLETION OF HIS FOUR-YEAR TERM OF OFFICE AS JUDGE ADVOCATE GENERAL. IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 5148 AND 5133, HE HOLDS THE RANK OF REAR ADMIRAL AND UNDER 37 U.S.C. 202 (H) (6) HE IS RECEIVING THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF OF THAT GRADE.

IN DECISION OF JUNE 14, 1966, B-159201, IT WAS CONCLUDED THAT IN THE CIRCUMSTANCES PRESENTED (ADMIRAL HEARN'S PERMANENT GRADE IN THE NAVY IS THAT OF CAPTAIN) THE COMPULSORY RETIREMENT PROVISIONS OF 10 U.S.C. 6377 (A) ARE NOT APPLICABLE TO HIM DURING HIS STATUTORY FOUR YEAR TERM OF OFFICE AS JUDGE ADVOCATE GENERAL OF THE NAVY. ALSO, IN RESPONSE TO A FURTHER QUESTION RELATING TO HIS PROSPECTIVE RETIRED PAY STATUS IT WAS HELD THAT IN THE EVENT HE IS RETIRED 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.-"

ANOTHER RELATED QUESTION NOW ARISES BY REASON OF PLANS TO RECALL ADMIRAL HEARN TO ACTIVE DUTY IMMEDIATELY FOLLOWING HIS RETIREMENT. ASSUMING THAT HIS RETIREMENT IN THE GRADE OF REAR ADMIRAL IS APPROVED BY THE PRESIDENT AND BECOMES EFFECTIVE APRIL 1, 1968, THE QUESTION NOW POSED IS WHETHER ADMIRAL HEARN "WILL BE ENTITLED TO THE GRADE OF REAR ADMIRAL WITH THE (ACTIVE DUTY BASIC) PAY OF REAR ADMIRAL IN THE UPPER HALF OF THAT GRADE.'

THE POSITION OF THE DEPARTMENT OF THE NAVY AS SET FORTH IN THE LETTER OF FEBRUARY 5, 1968, IS THAT IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6483, ADMIRAL HEARN'S RECALL TO ACTIVE DUTY---

"* * * WOULD BRING HIM TO ACTIVE DUTY IN THE GRADE HE WOULD THEN HOLD ON THE RETIRED LIST (REAR ADMIRAL) AND THAT HE WOULD BE ENTITLED TO THE PAY AND ALLOWANCES OF REAR ADMIRAL IN THE UPPER HALF OF THAT GRADE PURSUANT TO THE PROVISIONS OF 37 U.S.C. 903 AND 37 U.S.C. 204 (A).'

INSOFAR AS HERE PERTINENT, 10 U.S.C. 6483 (A) PROVIDES AS FOLLOWS:

"* * * EACH RETIRED MEMBER OF THE NAVAL SERVICE, WHEN RECALLED TO ACTIVE DUTY, SHALL BE RECALLED IN THE GRADE HELD BY HIM ON THE RETIRED LIST.' AND 37 U.S.C. 903, IN PERTINENT PART, PROVIDES THAT:

"A RETIRED MEMBER * * * OF A UNIFORMED SERVICE * * * WHO IS SERVING ON ACTIVE DUTY IS ENTITLED TO THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED, UNDER THIS TITLE, FOR THE GRADE, RANK, OR RATING IN WHICH HE IS SERVING.'

UNDER SECTION 204 (A), TITLE 37, U.S. CODE, A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY IS ENTITLED TO THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED OR DISTRIBUTED, IN ACCORDANCE WITH HIS YEARS OF SERVICE COMPUTED AS PRESCRIBED IN SECTION 205.

THE HISTORICAL AND REVISION NOTES UNDER 10 U.S.C. 6483 SHOW THAT THE GENERAL RULE IS THAT A RETIRED OFFICER, WHEN RECALLED TO ACTIVE DUTY, IS RECALLED IN THE GRADE HE HOLDS ON THE RETIRED LIST. THE REVISION NOTES INDICATE THAT THE RULE IS DERIVED,"NOT FROM A SPECIFIC PROVISION OF LAW, BUT FROM THE FACT THAT SPECIAL LEGISLATIVE AUTHORITY IS REQUIRED TO RECALL A RETIRED OFFICER IN ANY OTHER GRADE.'

THERE IS ONLY ONE COMMISSIONED GRADE OF REAR ADMIRAL IN THE NAVY. U.S.C. 5501 (A) (3). REAR ADMIRALS ON THE ACTIVE LIST OF THE NAVY ARE ASSIGNED FOR PAY PURPOSES TO TWO PAY GRADES. REAR ADMIRALS OF THE UPPER HALF ARE IN PAY GRADE 0-8 AND REAR ADMIRALS OF THE LOWER HALF ARE IN PAY GRADE 0-7. REAR ADMIRALS BECOME ENTITLED TO THE PAY OF THE UPPER HALF (PAY GRADE 0-8) AS PROVIDED IN 37 U.S.C. 202. SUBSECTION (H) OF SECTION 202 PROVIDES IN PERTINENT PART AS FOLLOWS:

"/H) UNLESS APPOINTED TO A HIGHER GRADE UNDER ANOTHER PROVISION OF LAW, AN OFFICER OF THE NAVAL SERVICE WHO IS SERVING IN ONE OF THE FOLLOWING POSITIONS IS ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF

"/6) JUDGE ADVOCATE GENERAL OF THE NAVY; "

IN VIEW OF THE SPECIFIC PROVISIONS OF 10 U.S.C. 6483, ADMIRAL HEARN WILL, IF RECALLED TO ACTIVE DUTY FOLLOWING HIS RETIREMENT ON APRIL 1, 1968, BE REQUIRED TO BE RECALLED IN THE GRADE HELD BY HIM ON THE RETIRED LIST, THAT IS, IN THE GRADE OF REAR ADMIRAL. UNDER 37 U.S.C. 903, HE WILL BE ENTITLED TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES FOR THE GRADE OR RANK IN WHICH HE IS SERVING.

IN THE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT ADMIRAL HEARN HAS BEEN RECEIVING THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF AND UPON RETIREMENT HIS RETIRED PAY WILL BE COMPUTED ON THE SAME PAY UNDER PROVISIONS OF LAW WHICH SPECIFICALLY SO PROVIDE, WE FIND NOTHING IN THE ABOVE-QUOTED STATUTORY PROVISIONS FROM WHICH AN INFERENCE MAY BE DRAWN THAT THE CONGRESS INTENDED THAT A PERSON IN HIS SITUATION SHOULD RECEIVE ONLY THE PAY OF A REAR ADMIRAL OF THE LOWER HALF UPON RECALL TO ACTIVE DUTY. IN THE ABSENCE OF AN INDICATION OF SOME OTHER LEGISLATIVE INTENT AND SINCE NORMALLY AN OFFICER WHO IS RECALLED TO ACTIVE DUTY IN THE GRADE HELD ON THE RETIRED LIST RECEIVES THE PAY ON WHICH HIS RETIRED PAY IS COMPUTED, THE CONCLUSION APPEARS WARRANTED THAT ADMIRAL HEARN WILL, IF RECALLED TO ACTIVE DUTY, PROPERLY BE ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.