B-100214, APRIL 26, 1951, 30 COMP. GEN. 416

B-100214, APRIL 26, 1951, 30 COMP. GEN. 416

PAY -RETIRED - NAVAL OFFICER WITH PURPORTED COMBAT COMMENDATION A DETERMINATION BY THE SECRETARY OF THE NAVY THAT A NAVAL OFFICER'S "EXEMPLARY CONDUCT AND BEARING" COMMENDATION WAS FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY, WHICH REVERSED A DETERMINATION MADE BY HIS PREDECESSOR IN OFFICE AND WHICH WAS NOT BASED ON ANY NEW FACTS OR EVIDENCE, WOULD NOT ENTITLE SUCH OFFICER TO THE RETIRED PAY BENEFITS AUTHORIZED BY SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, PRIOR TO ITS AMENDMENT BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949, FOR NAVAL OFFICERS SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1950, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION AS TO THE RETIRED PAY RIGHTS OF COMMANDER FRANK G. KUTZ, UNITED STATES NAVY ( RETIRED) FROM AND AFTER AUGUST 7, 1947.

IT APPEARS THAT COMMANDER KUTZ WAS PLACED ON THE RETIRED LIST IN THE RANK OF LIEUTENANT COMMANDER, EFFECTIVE JANUARY 29, 1925, UNDER THE AUTHORITY CONTAINED IN THE ACT OF AUGUST 29, 1916, 39 STAT. 579, WHICH PROVIDED FOR THE COMPUTATION OF RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF HIS SHORE -DUTY PAY FOR EACH YEAR OF SERVICE. IT IS STATED THAT ON SEPTEMBER 30, 1949, HE WAS RECEIVING RETIRED PAY AT THE RATE OF 55 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE.

IT FURTHER APPEARS THAT ON SEPTEMBER 13, 1918, COMMANDER KUTZ, THEN A LIEUTENANT, WAS "HIGHLY COMMENDED" BY THE THEN INCUMBENT ACTING SECRETARY OF THE NAVY FOR HIS "EXEMPLARY CONDUCT AND BEARING" ON THE OCCASION OF THE LOSS OF THE U.S.S. SAN DIEGO WHICH ON JULY 19, 1918, WAS SUNK BY A MINE, PRESUMABLY LAID BY AN ENEMY. HOWEVER, IT APPEARS TO HAVE BEEN DETERMINED THAT SUCH COMMENDATION WAS NOT FOR THE PERFORMANCE OF DUTY "IN ACTUAL COMBAT WITH THE ENEMY" WITHIN THE PURVIEW OF SECTION 30 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1279, AS AMENDED BY SECTION 10 OF THE ACT OF MARCH 3, 1931, 46 STAT. 1485, WHICH PROVIDED FOR HIGHER RANK ON THE RETIRED LIST AND INCREASED RETIRED PAY FOR CERTAIN OFFICERS OF THE NAVY AND MARINE CORPS WHO HAD BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY "IN ACTUAL COMBAT WITH THE ENEMY" DURING WORLD WAR I, BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED. SUBSEQUENTLY, ON MARCH 22, 1950, THE NAVY DEPARTMENT BOARD OF DECORATIONS AND MEDALS RECONSIDERED THE CASE OF LIEUTENANT COMMANDER KUTZ AND EXPRESSED THE OPINION THAT HE HAD BEEN SPECIALLY COMMENDED FOR HIS PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTIES WERE PERFORMED. ACCORDINGLY, IT WAS RECOMMENDED THAT HE BE ACCORDED THE BENEFITS ACCRUING BY LAW TO THOSE OFFICERS WHO HAVE BEEN SO COMMENDED. SUCH ACTION WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR ON APRIL 15, 1950, AND UNDER DATE OF JUNE 12, 1950, THE OFFICER WAS ADVISED BY THE SECRETARY OF THE NAVY OF HIS ADVANCEMENT TO THE RANK OF COMMANDER ON THE RETIRED LIST, TO BE EFFECTIVE FROM AUGUST 7, 1947, PURSUANT TO THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874.

ON THE ABOVE STATEMENT OF FACTS, DECISION IS REQUESTED AS TO WHETHER THE SAVINGS PROVISIONS OF SECTIONS 519 AND 520 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 834, ENTITLE COMMANDER KUTZ TO THE RETIRED PAY BENEFITS AUTHORIZED BY SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, RETROACTIVE TO AUGUST 7, 1947. THE SAID SECTION, 412 (A), AS ORIGINALLY ENACTED, READS, IN PERTINENT PART, AS FOLLOWS:

ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, 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 * * * SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT * * *PROVIDED FURTHER, THAT OFFICERS OF THE CLASSES DESCRIBED IN THIS SUBSECTION WHO HAVE BEEN RETIRED PRIOR TO THE DATE OF APPROVAL OF THIS ACT SHALL BE ENTITLED TO THE BENEFITS OF THIS SUBSECTION FROM THE DATE OF APPROVAL OF THIS ACT * * *.

SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, 63 STAT. 835, PROVIDES AS OLLOWS:

SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 IS HEREBY AMENDED BY DELETING THE WORDS ,AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT" AS THEY APPEAR IN LINES 8 AND 9 OF THE SAID SECTION ON PAGE 874, VOLUME 61, STATUTES AT LARGE.

THE SAVINGS PROVISIONS IN SECTIONS 519 AND 520 OF THE CAREER COMPENSATION ACT OBVIOUSLY WOULD NOT HAVE THE EFFECT OF ENTITLING COMMANDER KUTZ TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE ACTIVE-DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS' SERVICE UNLESS IT PROPERLY COULD BE CONCLUDED THAT HE ACTUALLY WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE SECRETARY OF THE NAVY AND THUS CAME WITHIN THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA.

WHILE AS A GENERAL RULE THIS OFFICE WOULD BE INCLINED NOT TO QUESTION AS ADMINISTRATIVE DETERMINATION THAT A PARTICULAR COMMENDATION WAS ONE FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT, THE QUESTION ACTUALLY IS A MIXED QUESTION OF LAW AND FACT AND INSOFAR AS THE USE OF APPROPRIATIONS FOR PAYMENTS BASED THEREON IS CONCERNED, IS SUBJECT TO ULTIMATE DETERMINATION BY THIS OFFICE; PARTICULARLY IN ANY CASE WHERE SUBSTANTIAL REASON FOR DOUBT EXISTS AS TO WHETHER THE COMMENDATION WAS FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT. CERTAINLY, IN THIS CASE, WHERE THE COMMENDATION WAS FOR THE PERFORMANCE OF DUTY IN CONNECTION WITH THE LOSS OF A UNITED STATES VESSEL WHICH WAS SUNK BY A MINE, PRESUMABLY LAID BY AN ENEMY, BUT POSSIBLY LAID BY OUR OWN FORCES, THERE IS CONSIDERABLE DOUBT IN THAT REGARD. AND IT IS ASSUMED THAT UPON THE ENACTMENT OF SECTION 30 OF THE ACT OF MARCH 4, 1925, SUPRA, THE CONTEMPORANEOUS ADMINISTRATIVE DETERMINATION THAT COMMANDER KUTZ- COMMENDATION WAS NOT ONE FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT WITH THE ENEMY WAS MADE ONLY AFTER CAREFUL AND THOROUGH CONSIDERATION HAD BEEN GIVEN HIS CASE IN THE LIGHT OF ALL THE THEN AVAILABLE FACTS AND CIRCUMSTANCES SURROUNDING SUCH COMMENDATION. IT IS NOT INDICATED THAT THE CURRENT DETERMINATION, APPROVED ON APRIL 15, 1950, WAS BASED ON ANY NEW FACTS OR EVIDENCE WHICH WERE NOT KNOWN AT THE TIME THE PRIOR DETERMINATION WAS MADE AND, IN THE ABSENCE OF SOME NEW FACTS OR EVIDENCE WHICH WOULD MAKE THE CONCLUSION PREVIOUSLY REACHED IN THE MATTER UNTENABLE, THIS OFFICE WOULD BE EXTREMELY RELUCTANT TO HOLD THAT SUCH PREVIOUS DETERMINATION WAS NOT PROPER UNDER THE LAW. IN THAT CONNECTION IT MAY BE STATED THAT, INSOFAR AS THE PRESENT CASE IS CONCERNED, LITTLE OR NO THE PRESENT CASE IS CONCERNED, LITTLE OR NO IMMEDIATELY FOLLOWING THE WORD "COMBAT," AS THEY APPEARED IN THE 1925 STATUTE, WERE OMITTED IN THE 1947 STATUTE SINCE IT SEEMS REASONABLY OBVIOUS THAT IF COMMANDER KUTZ WAS PERFORMING DUTY IN ACTUAL COMBAT ON JULY 19, 1918, HE WAS PERFORMING DUTY IN ACTUAL COMBAT WITH THE ENEMY ON THAT DATE.

FOR THE REASONS STATED, AND IN CONSONANCE WITH THE LEGISLATIVE POLICY EVIDENCED BY THE REPEAL IN SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF THE RETIRED PAY PROVISION IN SECTION 412 (A) OF THE OFFICER PERSONNEL ACT, SUPRA, I FEEL CONSTRAINED TO HOLD THAT IT IS NOT ESTABLISHED THAT COMMANDER KUTZ- COMMENDATION WAS FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT AND, HENCE, THAT IT IS NOT ESTABLISHED THAT HE WAS ENTITLED, AT ANY TIME, TO THE RETIRED PAY BENEFITS WHICH WERE AUTHORIZED BY THE SAID SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, PRIOR TO ITS AMENDMENT BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

IT SEEMS APPROPRIATE TO ADD THAT IF COMMANDER KUTZ PROPERLY COULD BE CONSIDERED AN OFFICER WHO HAD BEEN SPECIFICALLY COMMENDED FOR HIS PERFORMANCE OF DUTY IN ACTUAL COMBAT WITHIN THE MEANING OF THE ORIGINAL PROVISIONS OF SECTION 412 (A) OF THE 1947 ACT, SUPRA, AND THUS ENTITLED TO THE RETIRED PAY BENEFITS OF THE SAID SECTION FROM ITS DATE, AUGUST 7, 1947, THEN THERE WOULD APPEAR TO BE NO SOUND BASIS FOR CONCLUDING THAT HE HAD NOT BEEN SO COMMENDED WITHIN THE MEANING OF THE SIMILAR PROVISIONS OF THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120, 34 U.S.C. 399H, OR THAT HE HAD NOT BECOME ENTITLED TO "THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT" FROM FEBRUARY 23, 1942.