B-120293, FEB. 10, 1956

B-120293, FEB. 10, 1956

TO MR. T. P. CONDON, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1955, WITH ENCLOSURES, FORWARDED HERE DECEMBER 15, 1955, BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING A DECISION AS TO WHETHER THE JUDGMENT ENTERED IN THE CASE OF HERMAN A. SPANAGEL V. UNITED STATES, C.CLS. NO. 180-54, SHOULD BE FOLLOWED IN ADJUSTING ADMIRAL SPANAGEL'S RETIRED PAY FROM FEBRUARY 19, 1955.

IN OUR DECISION OF APRIL 26, 1951, 30 COMP. GEN. 419 (REFERENCE (C) OF YOUR LETTER), IT WAS HELD THAT AN ADVANCEMENT IN RANK UPON RETIREMENT (UNDER STATUTORY PROVISIONS RELATING TO ADVANCEMENT BY REASON OF COMBAT COMMENDATION) DID NOT CONSTITUTE AN "APPOINTMENT," WITHIN THE CONTEMPLATION OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, TO THE RANK TO WHICH SO ADVANCED SINCE APPOINTMENT TO AN EXECUTIVE OFFICE MAY BE MADE ONLY BY THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE MANNER PRESCRIBED BY THE CONSTITUTION AND MAY NOT BE MADE BY CONGRESSIONAL ENACTMENT.

FOLLOWING ENTRY OF JUDGMENT ON JUNE 7, 1955, BY THE COURT OF CLAIMS IN THE SPANAGEL CASE, IN THE AMOUNT OF $5,093.41, COVERING THE AMOUNT DUE TO INCLUDE FEBRUARY 18, 1955, THE ATTORNEY GENERAL OF THE UNITED STATES, BY LETTER OF JUNE 23, 1955, STATED THAT NO FURTHER PROCEEDINGS ARE CONTEMPLATED WITH RESPECT TO THAT CLAIM.

IN THE CASE OF ALGER V. UNITED STATES, 126 C.CLS. 561, DECIDED NOVEMBER 3, 1953, THE COURT HELD THAT THE WORD "APPOINTMENT" IN SECTION 511 OF THE CAREER COMPENSATION ACT WAS NOT USED IN A STRICT CONSTITUTIONAL SENSE BUT THAT THE CONGRESS INTENDED TO GRANT THE RIGHT TO RECEIVE RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST RANK SATISFACTORILY HELD ON ACTIVE DUTY BY A RETIRED MEMBER DURING HIS CAREER, WHETHER THE RANK BE HELD BY FORMAL APPOINTMENT OR BY ADVANCEMENT BY STATUTE.

IT APPEARS THAT HERMAN A. SPANAGEL, U.S. NAVY, WAS PLACED ON THE RETIRED LIST AS A CAPTAIN, EFFECTIVE JUNE 30, 1949, IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 410F, AND HAVING BEEN SPECIALLY COMMENDED BY THE HEAD OF THE EXECUTIVE DEPARTMENT FOR HIS PERFORMANCE OF DUTY IN ACTUAL COMBAT, WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF REAR ADMIRAL, FOLLOWING WHICH HE CONTINUED ON ACTIVE DUTY IN THE HIGHER RANK THROUGH SEPTEMBER 11, 1950. IT FURTHER APPEARS THAT THE SECRETARY OF THE NAVY HAS DETERMINED THAT THE HIGHEST RANK SATISFACTORILY HELD BY THE OFFICER IS THAT OF REAR ADMIRAL.

ACCORDINGLY TO THE JUDGMENT OF JUNE 7, 1955, IN THE SPANAGEL CASE, THE COURT WAS GOVERNED BY ITS CONCLUSION IN THE ALGER CASE, SUPRA. IN THE PRESENT SUBMISSION IT IS STATED THAT ADMIRAL SPANAGEL'S RETIRED PAY ON AND AFTER SEPTEMBER 12, 1950, WAS GOVERNED BY THE THE LAST PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949; THAT HE ELECTED TO RECEIVE RETIRED PAY UNDER METHOD (1) OF THAT SECTION AND THAT HE HAS BEEN RECEIVING RETIRED PAY COMPUTED AT 75 PERCENTUM OF THE BASIC PAY OF A CAPTAIN WITH OVER THIRTY YEARS OF SERVICE SINCE SEPTEMBER 12, 1950. IT IS FURTHER REPRESENTED THAT HAD THE OFFICER NOT INCURRED A DISABILITY DURING THE SHORT PERIOD OF HIS ACTIVE DUTY FOLLOWING RETIREMENT, HE WOULD HAVE BEEN ENTITLED TO RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THAT ACT, BASED UPON THE PAY OF A REAR ADMIRAL (LOWER HALF). EXCEPT TO THE EXTENT THAT THERE IS PRESENT IN THIS CASE THE ELEMENT OF DISABILITY DURING A PERIOD OF ACTIVE DUTY SUBSEQUENT TO RETIREMENT, THE OFFICER'S RIGHTS SEEM TO BE CONTROLLED BY THE CONCLUSION IN THE ALGER CASE, SUPRA, ALSO REFERRED TO BY THE COURT IN ITS JUDGMENT OF JUNE 7, 1955, IN THE INSTANT CASE. ACCORDINGLY, YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY ACCOUNT OF REAR ADMIRAL SPANAGEL, BEGINNING SEPTEMBER 19, 1955. SEE OUR DECISION OF MARCH 29, 1955, 34 COMP. GEN. 476. YOUR SPECIFIC QUESTION IS ANSWERED IN THE AFFIRMATIVE.