B-109511, JULY 22, 1952, 32 COMP. GEN. 38

B-109511, JULY 22, 1952, 32 COMP. GEN. 38

RETIREMENT - PERMANENT ENLISTED MEN OF THE NAVY HOLDING TEMPORARY COMMISSIONS - ACT OF FEBRUARY 21, 1946 A TEMPORARILY APPOINTED COMMISSIONED OFFICER OF THE REGULAR NAVY WHO RETAINS HIS PERMANENT ENLISTED STATUS AND WHO COMPLETES AT LEAST 10 YEARS OF ACTIVE COMMISSIONED SERVICE IS NOT TO BE REGARDED AS "AN OFFICER OF THE REGULAR NAVY" WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SO AS TO BE ENTITLED THEREUNDER TO RETIREMENT AFTER TWENTY YEARS OF ACTIVE SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 22, 1952:

REFERENCE IS MADE TO LETTER OF MAY 20, 1952, RECEIVED FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO WHETHER LIEUTENANT COMMANDER CHARLES E. LONDON, A TEMPORARILY APPOINTED COMMISSIONED OFFICER OF THE REGULAR NAVY WITH PERMANENT ENLISTED STATUS IS ELIGIBLE TO BE RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT APPROVED FEBRUARY 21, 1946, 60 STAT. 27, 34 U.S.C. 410B.

IT APPEARS THAT LIEUTENANT COMMANDER LONDON'S PERMANENT STATUS IN THE REGULAR NAVY IS THAT OF AVIATION MACHINIST'S MATE; THAT HE WAS APPOINTED TO THE TEMPORARY GRADE OF ENSIGN ON JULY 23, 1942, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350 ET SEQ; AND THAT HE IS PRESENTLY SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS A LIEUTENANT COMMANDER, WHICH TEMPORARY APPOINTMENT PRESUMABLY WAS MADE PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, 34 U.S.C. 3C. IT IS STATED THAT " HE WILL HAVE COMPLETED TEN YEARS OF ACTIVE COMMISSIONED SERVICE ON JULY 22, 1952, AND, IF ELIGIBLE FOR RETIREMENT, IT IS PROPOSED THAT HE WILL BE TRANSFERRED TO THE RETIRED LIST EFFECTIVE AUGUST 1, 2.' THE SOLE QUESTION PRESENTED IS WHETHER A TEMPORARILY APPOINTED COMMISSIONED OFFICER OF THE REGULAR NAVY, WHO RETAINS HIS PERMANENT ENLISTED STATUS, MAY BE CONSIDERED TO BE "AN OFFICER OF THE REGULAR NAVY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, WHICH PROVIDES:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.

THE SAID SECTION 6 AUTHORIZES "ANY OFFICER OF THE REGULAR NAVY," REGULAR MARINE CORPS, OR THE RESERVE COMPONENTS THEREOF WHO HAS COMPLETED 20 YEARS' ACTIVE SERVICE, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, TO BE RETIRED WITH RETIRED PAY COMPUTED AS AUTHORIZED IN SECTION 7 OF THE SAID ACT OF FEBRUARY 21, 1946, AS AMENDED BY SECTION 432 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 881. UNDER THE SAID SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, CERTAIN ENLISTED MEMBERS (AND OTHERS) MAY BE TEMPORARILY APPOINTED TO HIGHER GRADES IN THE " REGULAR NAVY" AND MARINE CORPS.

SUBSECTION (E) OF THE SAID SECTION 302, 61 STAT. 830, PROVIDES AS FOLLOWS:

(E) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION,ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NO PERSON WHO SHALL ACCEPT A TEMPORARY APPOINTMENT UNDER THE PROVISIONS OF THIS TITLE SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: AND PROVIDED FURTHER,THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS SECTION SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BY VIRTUE OF HIS PERMANENT STATUS AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 868, 34 U.S.C. 410M, PROVIDES THAT ANY OFFICER SERVING IN THE GRADE OF REAR ADMIRAL OR BELOW UNDER AUTHORITY OF TITLE III OF THAT ACT BY VIRTUE OF A TEMPORARY APPOINTMENT THEREIN SHALL, IF RETIRED WHILE SO SERVING, BE RETIRED IN THE GRADE IN WHICH SERVING WITH RETIRED PAY BASED ON THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED AT THE TIME OF RETIREMENT UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED GRADE OR PAY.

IN DECISION OF APRIL 21, 1952, B-108045, 31 COMP. GEN. 529, THERE WAS CONSIDERED THE QUESTION WHETHER A TEMPORARY COMMISSIONED OFFICER WITH PERMANENT ENLISTED STATUS WHO WAS RETIRED WHILE SERVING AS A COMMISSIONED OFFICER IN THE REGULAR NAVY IS TO BE CONSIDERED AS COMING WITHIN THE RESTRICTION IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1952, PUBLIC LAW 179, APPROVED OCTOBER 18, 1951, 65 STAT. 424, PROHIBITING THE USE OF FUNDS APPROPRIATED THEREIN FOR THE PAYMENT OF RETIRED PAY TO ANY "COMMISSIONED MEMBER OF THE REGULAR * * * NAVY" UNLESS RETIRED FOR THE REASONS OR UNDER THE CIRCUMSTANCES SPECIFIED THEREIN. IT WAS POINTED OUT IN THAT DECISION THAT SUBSECTION (E) OF SECTION 302, SUPRA, EXPRESSLY PROVIDES THAT THE PERMANENT APPOINTMENT OF PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 SHALL NOT BE VACATED BY ACCEPTANCE OF A TEMPORARY APPOINTMENT AND THAT THEIR RIGHTS, BENEFITS, AND PRIVILEGES WITH RESPECT TO THEIR PERMANENT ENLISTED STATUS SHALL NOT BE LOST OR ABRIDGED BY ACCEPTANCE OF SUCH TEMPORARY COMMISSION. HENCE, IT WAS CONCLUDED THAT A TEMPORARY OFFICER IS NOT A "COMMISSIONED MEMBER OF THE REGULAR * * * NAVY" WHO IS BARRED FROM RECEIVING RETIRED PAY UNDER THE RESTRICTION CONTAINED IN TITLE II (" RETIRED PAY") OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, NOTWITHSTANDING THE FACT THAT UNDER THE PROVISIONS OF SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947 SUCH PERSON IS ENTITLED TO BE RETIRED IN HIS HIGHER TEMPORARY COMMISSIONED GRADE. IT WAS ALSO CONCLUDED IN THE SAID DECISION OF APRIL 21, 1952, THAT SUCH ENLISTED STATUS MAY NOT BE VIEWED AS "OFFICERS" ENTITLED TO RETIREMENT UPON COMPLETION OF THIRTY YEARS' SERVICE UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, AS AMENDED, 34 U.S.C. 383. ALSO, IN DECISION OF MARCH 23, 1949, 28 COMP. GEN. 536 540, TO WHICH REFERENCE IS MADE IN THE LETTER OF MAY 20, 1952, IT WAS HELD THAT ENLISTED MEMBERS WHO WERE TEMPORARILY APPOINTED COMMISSIONED OFFICERS OF THE REGULAR NAVY PURSUANT TO THE SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, OR WHOSE TEMPORARY APPOINTMENTS WERE CONTINUED IN EFFECT UNDER TITLE III OF THE SAID ACT, ARE NOT "OFFICERS" WITHIN THE MEANING OF SECTION 1453 REVISED STATUTES, 34 U.S.C. 417, RELATING TO THE RETIREMENT OF OFFICERS FOR PHYSICAL DISABILITY. THUS, IT WILL BE SEEN THAT ENLISTED PERSONNEL WHO ARE SERVING AS TEMPORARY OFFICERS IN THE REGULAR NAVY PURSUANT TO SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947 RETAIN THEIR PERMANENT ENLISTED STATUS AND THAT IT HAS BEEN HELD GENERALLY THAT SUCH PERSONNEL ARE ELIGIBLE FOR RETIREMENT UNDER LAWS RELATING TO THE RETIREMENT OF ENLISTED PERSONNEL ONLY. MOREOVER AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE BILL, S. 1405, WHICH BECAME THE ACT OF FEBRUARY 21, 1946, SUPRA, DISCLOSES THAT THE STATUS AND RETIREMENT RIGHTS OF ENLISTED PERSONNEL WHO SERVED AS TEMPORARY COMMISSIONED OFFICERS WERE GIVEN MOST CAREFUL CONSIDERATION BUT NOTHING HAS BEEN FOUND THEREIN WHICH INDICATES THAT IT WAS INTENDED THAT SUCH PERMANENT ENLISTED MEMBERS WOULD BE SUBJECT TO THE STATUTORY REQUIREMENTS RESPECTING THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY. ON THE CONTRARY, IT SEEMS FAIRLY CLEAR THAT IT WAS CONTEMPLATED THAT SUCH PERMANENT ENLISTED MEMBERS, ALTHOUGH HOLDING OR HAVING HELD TEMPORARY APPOINTMENTS AS COMMISSIONED OFFICERS, WOULD BE ELIGIBLE FOR RETIREMENT UNDER LAWS RELATING TO ENLISTED PERSONNEL BUT THAT THEY WOULD BE ADVANCED ON THE RETIRE LIST TO THE HIGHEST TEMPORARY COMMISSIONED GRADE OR RANK IN WHICH THEY SATISFACTORILY SERVED AND THAT THEIR RETIRED PAY WOULD BE COMPUTED ON THE BASIS OF SUCH HIGHER GRADE OR RANK. IN THIS CONNECTION SEE PAGES 2, 3 AND 4 OF HEARINGS HELD NOVEMBER 6, 1945, BEFORE THE COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE ON BILL S-1405, WHICH BECAME THE SAID ACT OF FEBRUARY 21, 1946. ALSO, SEE SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, WHICH AMENDED SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, 34 U.S.C. 350 (I).

ACCORDINGLY, SINCE SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, DOES NOT EXPRESSLY OR BY NECESSARY IMPLICATION APPEAR TO INCLUDE WITHIN ITS TERMS ENLISTED PERSONNEL SERVING UNDER TEMPORARY APPOINTMENTS AS COMMISSIONED OFFICERS, THE CONCLUSION IS REQUIRED THAT LIEUTENANT COMMANDER LONDON WOULD NOT BE ENTITLED TO RETIRED PAY ON THE BASIS OF A PURPORTED RETIREMENT UNDER THE PROVISIONS OF THAT SECTION. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.