B-68965, JANUARY 21, 1948, 27 COMP. GEN. 386

B-68965: Jan 21, 1948

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IS ENTITLED TO PAY (ACTIVE DUTY PAY OR RETIRED PAY. THAT HE WAS TEMPORARILY APPOINTED CAPTAIN EFFECTIVE MAY 10. THAT HE WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE APRIL 1. HE WAS. THAT HE WAS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT AND REMAINED ON ACTIVE DUTY (AS A RETIRED OFFICER) FROM APRIL 1. HE WAS ADVISED AS FOLLOWS: 1. I TAKE PLEASURE IN ADVISING YOU THAT INASMUCH AS YOU HAVE SERVED SATISFACTORILY ON ACTIVE DUTY IN TIME OF WAR FOR A PERIOD OF MORE THAN TWO YEARS IN THE RANK OF REAR ADMIRAL. ARE APPLICABLE IN YOUR CASE. 2. THE SERVICE DESCRIBED ABOVE WAS PERFORMED FROM 1 APRIL 1945 TO 31 MARCH 1947. YOU ARE ENTITLED WHEN ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF AND WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF.

B-68965, JANUARY 21, 1948, 27 COMP. GEN. 386

PAY - ACTIVE DUTY; RETIRED - TEMPORARILY PROMOTED NAVY OFFICERS - EFFECT OF COMBAT COMMENDATION THE ADVANCEMENT AUTHORIZED BY SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, UPON RETIREMENT OF A NAVY LINE OFFICER WITH COMBAT COMMENDATION, BEING ONE GRADE ABOVE HIS PERMANENT RANK, A TEMPORARY CAPTAIN WITH THE PERMANENT RANK OF COMMANDER PROPERLY COULD NOT BE ADVANCED THEREUNDER TO THE PERMANENT RANK OF REAR ADMIRAL SO AS TO BECOME ENTITLED TO THE RETIRED OR ACTIVE-DUTY PAY, AS APPLICABLE, OF A REAR ADMIRAL (UPPER HALF) AUTHORIZED BY THE ACT OF APRIL 8, 1946, TO BE PAID RETIRED OFFICERS HOLDING THE PERMANENT RANK OF REAR ADMIRAL (LOWER HALF), UPON THE COMPLETION OF TWO YEARS' SATISFACTORY ACTIVE SERVICE IN TIME OF WAR IN SUCH RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 21, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 18, 1947, ENCLOSING A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED JULY 11, 1947, AND REQUESTING A DECISION ON THE QUESTION WHETHER OR NOT JOSEPH W. MCCOLL, JR., U.S. NAVY, RETIRED, IS ENTITLED TO PAY (ACTIVE DUTY PAY OR RETIRED PAY, AS APPLICABLE) OF A REAR ADMIRAL (UPPER HALF) ON AND AFTER APRIL 1, 1947, UNDER THE CONDITIONS STATED IN SUCH ENCLOSURE.

FROM THE SAID LETTER OF THE BUREAU OF SUPPLIES AND ACCOUNTS AND FROM THE ENCLOSURES THEREWITH, IT APPEARS THAT THE OFFICER ACCEPTED AN APPOINTMENT AS A COMMANDER (PERMANENT) IN THE REGULAR NAVY ON APRIL 10, 1941; THAT HE WAS TEMPORARILY APPOINTED CAPTAIN EFFECTIVE MAY 10, 1043, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603; THAT ON FEBRUARY 7, 1944, THE PRESIDENT PRESENTED THE LEGION OF MERIT TO HIM FOR EXCEPTIONALLY MERITORIOUS CONDUCT IN COMBAT DURING THE AMPHIBIOUS INVASION OF SICILY; THAT HE WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE APRIL 1, 1945, IN HIS TEMPORARY RANK OF CAPTAIN PURSUANT TO THE PROVISIONS OF SECTION 1453, REVISED STATUTES, 34 U.S.C.A. 417, AND SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 34 U.S.C.A. 350G; THAT THE LETTER NOTIFYING HIM OF HIS RETIREMENT ADVISED HIM THAT, IN VIEW OF HIS COMBAT COMMENDATION, HE WAS, WHEN PLACED ON THE RETIRED LIST, ADVANCED TO THE RANK OF REAR ADMIRAL, UNDER THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, 34 U.S.C.A. 404 (1), BUT THAT HIS RETIRED PAY WOULD BE BASED ON THE PAY OF THE RANK HE HELD AT THE TIME OF HIS RETIREMENT (CAPTAIN) IN ACCORDANCE WITH THE PROVISIONS OF THE SAID SECTION 12 (1); THAT HE WAS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT AND REMAINED ON ACTIVE DUTY (AS A RETIRED OFFICER) FROM APRIL 1, 1945, THROUGH APRIL 1, 1947; AND THAT BY LETTER OF MAY 13, 1947, FROM THE SECRETARY OF THE NAVY, HE WAS ADVISED AS FOLLOWS:

1. I TAKE PLEASURE IN ADVISING YOU THAT INASMUCH AS YOU HAVE SERVED SATISFACTORILY ON ACTIVE DUTY IN TIME OF WAR FOR A PERIOD OF MORE THAN TWO YEARS IN THE RANK OF REAR ADMIRAL, THE PROVISIONS OF REFERENCE (A) ( PUBLIC LAW 337, 79TH CONGRESS, APPROVED 8 APRIL 1946.) ARE APPLICABLE IN YOUR CASE.

2. THE SERVICE DESCRIBED ABOVE WAS PERFORMED FROM 1 APRIL 1945 TO 31 MARCH 1947, INCLUSIVE. ON AND AFTER 1 APRIL 1947, THEREFORE, YOU ARE ENTITLED WHEN ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF AND WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF.

THE ABOVE-MENTIONED LETTER OF THE BUREAU OF SUPPLIES AND ACCOUNTS POSES THE QUESTION WHETHER, FROM AND AFTER THE EFFECTIVE DATE OF HIS RETIREMENT, THE OFFICER HELD THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WITHIN THE MEANING OF THE ACT OF APRIL 8, 1946, 60 STAT. 86. THE SAID ACT PROVIDES AS FOLLOWS:

THAT ANY OFFICERS OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE AND WHO IS, HAS BEEN, OR MAY BE RECALLED TO ACTIVE DUTY AND WHO IN TIME OF WAR OR OTHER NATIONAL EMERGENCY SERVED, SERVES, OR MAY SERVE SATISFACTORILY ON ACTIVE DUTY FOR A PERIOD OF TWO YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE, SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER PAY AND ALLOWANCES, AND HE SHALL BE ENTITLED WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER PAY OR ALLOWANCES; PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THIS ACT PRIOR TO THE DATE OF ITS APPROVAL. ( ITALICS SUPPLIED.)

SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, SUPRA, IS AS FOLLOWS:

ALL LINE OFFICERS OF THE NAVY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT AS PROVIDED IN SECTION 12 (H) OF THIS ACT, SHALL, 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 FEBRUARY 28, 1947, B-60908, TO THE SECRETARY OF THE NAVY, 26 COMP. GEN. 636, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AUTHORIZING THE ADVANCEMENT OF NAVY LINE OFFICERS WITH COMBAT COMMENDATION TO THE NEXT HIGHER RANK UPON RETIREMENT, HAS REFERENCE TO ADVANCEMENT FROM A PERMANENT AND NOT A TEMPORARY RANK, AND, THEREFORE, A CAPTAIN OF THE NAVY WITH COMBAT COMMENDATION WHO WAS RETIRED FOR LENGTH OF SERVICE UNDER THE ACT OF MAY 13, 1908, IN HIS TEMPORARY RANK OF REAR ADMIRAL (UPPER HALF) PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, IS NOT ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES OF A VICE ADMIRAL UPON HIS RECALL TO ACTIVE DUTY.

THE FOLLOWING LANGUAGE OF THAT DECISION APPEARS PERTINENT TO YOUR QUESTION:

EXCEPT AS PROVIDED IN SECTION 8 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, IN THE CASE OF OFFICERS WHO RETIRED FOR DISABILITY WHILE SERVING IN A HIGHER TEMPORARY RANK, AND SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465 (RETIREMENT FOR AGE), THERE NEVER WAS GENERAL STATUTORY AUTHORITY, PRIOR TO FEBRUARY 21, 1946 FOR THE RETIREMENT FOR OFFICERS OF THE NAVY IN THEIR TEMPORARY RANK WITH RETIRED PAY BASED UPON SUCH TEMPORARY RANK, AND THERE APPEARS TO BE NO QUESTION THAT THE PROVISION OF SECTION 12 (1) OF THE LINE SELECTION LAW OF 1938 WAS LIMITED IN ITS APPLICATION TO THE PERMANENT RANK OF OFFICERS OF THE REGULAR NAVY. * * *

* * * SINCE THE BENEFITS PROVIDED IN SECTION 12 (1) OF THE LINE SELECTION LAW OF 1938 RELATE ONLY TO OFFICERS OF THE REGULAR NAVY RETIRED IN THEIR PERMANENT RANK SUCH BENEFITS DO NOT ACCRUE TO OFFICERS RETIRED IN A TEMPORARY RANK. AND ALTHOUGH NOT STRICTLY A MATTER FOR CONSIDERATION BY THIS OFFICE, THERE WOULD APPEAR TO BE EXTREME DOUBT AS TO THE APPLICABILITY OF THE SAID SECTION 12 (1) IN CONFERRING AN HONORARY RANK UPON THE RETIRED LIST ABOVE THE HIGHEST TEMPORARY RANK AUTHORIZED * * *.

COMPARE 25 COMP. GEN. 274.

THE ABOVE-CITED ACT OF JUNE 23, 1938, WAS REPEALED BY SECTION 436 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 882, AND WHILE SUBSECTION (A) OF SECTION 412 OF SUCH 1947 ACT, 61 STAT. 874, CONTAINING PROVISIONS SOMEWHAT SIMILAR TO THE PROVISIONS OF SECTION 12 (1), SUPRA, AUTHORIZES ADVANCEMENT OF OFFICERS WITHIN ITS SCOPE FROM THE HIGHEST TEMPORARY OR PERMANENT GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT, IT SPECIFICALLY PROVIDES THAT OFFICERS RETIRED PRIOR TO THE DATE OF APPROVAL OF THE ACT ( AUGUST 7, 1947) "SHALL BE ENTITLED TO THE BENEFITS OF THIS SUBSECTION FROM THE DATE OF APPROVAL OF THIS ACT," AND HENCE, SUCH SUBSECTION CAN HAVE NO EFFECT ON THE STATUS OF THE OFFICER HERE INVOLVED FOR ANY PERIOD PRIOR TO AUGUST 7, 1947.

IN VIEW OF THE CONCLUSION REACHED IN THE DECISION QUOTED ABOVE, IT MUST BE HELD THAT FOR PAY PURPOSES THE ADVANCEMENT OF THE OFFICER FROM HIS TEMPORARY RANK OF CAPTAIN TO THE RANK OF REAR ADMIRAL WAS NOT AUTHORIZED BY SECTION 12 (1), SUPRA. MOREOVER, EVEN IF SUCH ADVANCEMENT HAD BEEN AUTHORIZED, THERE APPEARS TO BE NOTHING TO JUSTIFY THE CONCLUSION THAT IT MIGHT BE REGARDED AS AN ADVANCEMENT TO THE "PERMANENT GRADE OR RANK OF REAR ADMIRAL," PARTICULARLY IN VIEW OF SECTION 1 OF THE ACT OF JUNE 30, 1942, 56 STAT. 463, WHICH EXPRESSLY PROVIDED:

THAT THE PROVISIONS OF EXISTING LAW INSOFAR AS THEY RELATE TO * * * THE PERMANENT PROMOTION OR ADVANCEMENT OF ALL OFFICERS OF THE NAVY AND MARINE CORPS * * * ARE HEREBY SUSPENDED. * * *

SINCE IT THUS APPEARS THAT THE HIGHEST PERMANENT GRADE OR RANK ATTAINED BY THE OFFICER IN QUESTION WAS THE GRADE AND RANK OF COMMANDER AND THE HIGHEST TEMPORARY GRADE OR RANK WHICH HE HELD FOR PAY PURPOSES DURING THE PERIOD INVOLVED WAS THAT OF CAPTAIN, I AM CONSTRAINED TO HOLD THAT HE WAS NOT AN "OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL * * * ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE" WITHIN THE MEANING OF THE ACT OF APRIL 8, 1946, SUPRA DURING THE PERIOD APRIL 1, 1945, TO APRIL 1, 1947, AND, HENCE, THAT HE IS NOT ENTITLED TO ANY BENEFITS UNDER THE PROVISIONS OF SUCH ACT.

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