B-126432, JANUARY 20, 1956, 35 COMP. GEN. 408

B-126432, JANUARY 20, 1956, 35 COMP. GEN. 408

PAY - RETIRED - PUBLIC HEALTH SERVICE - ASSISTANT SURGEON GENERAL THE LANGUAGE OF THE PUBLIC HEALTH SERVICE RETIRED PAY PROVISIONS IN 42 U.S.C. 212 "BASED ON THE PAY OF THE HIGHEST GRADE HELD BY HIM AS * * * ASSISTANT SURGEON GENERAL" HAS REFERENCE TO THE HIGHEST PAY GRADE OR RANK HELD BY THE MEMBER AT THE TIME HE OCCUPIED THE DESIGNATED POST SO THAT A RETIRED PUBLIC HEALTH SERVICE OFFICER WHO HELD THE PAY GRADE OF COLONEL WHEN HE WAS ASSISTANT SURGEON GENERAL MAY NOT HAVE HIS RETIRED PAY BASED ON THE HIGHER GRADE TO WHICH THE POSITION SUBSEQUENTLY HAS BEEN RAISED.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JANUARY 20, 1956:

REFERENCE IS MADE TO LETTER OF DECEMBER 27, 1955, FROM THE CHIEF, FISCAL POLICY AND PROCEDURE, DIVISION OF FINANCE, OF YOUR DEPARTMENT, TRANSMITTING FOR SETTLEMENT THE CLAIM OF YOUR DEPARTMENT, TRANSMITTING FOR SETTLEMENT THE CLAIM OF DR. RAYMOND A. VONDERLEHR FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THAT OF MEDICAL DIRECTOR ( COLONEL) AND THAT OF ASSISTANT SURGEON GENERAL ( BRIGADIER GENERAL) ON ACCOUNT OF SERVICES IN THE PUBLIC HEALTH SERVICE FROM WHICH HE RECENTLY WAS RETIRED. BECAUSE OF THE LEGAL QUESTIONS INVOLVED IN DR. VONDERLEHR'S CASE, WE DEEM IT MORE APPROPRIATE TO HANDLE THE MATTER BY ADVANCE DECISION RATHER THAN DISPOSE OF IT THROUGH OUR CLAIMS SETTLEMENT PROCEDURE.

DR. VONCERLEHR PREDICATES HIS CLAIM UPON THE GROUND THAT HE SERVED FROM 1935 TO 1943 IN THE POST OF ASSISTANT SURGEON GENERAL AND HIS CONTENTION IS THAT IN ACCORDANCE WITH 42 U.S.C. 212 HE IS ENTITLED TO HAVE HIS RETIRED PAY BASED UPON THE NOW HIGHER GRADE OF ASSISTANT SURGEON GENERAL RATHER THAN THAT OF MEDICAL DIRECTOR, THE POST HE WAS HOLDING AT THE TIME OF RETIREMENT.

SECTION 212, TITLE 42, U.S. CODE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(2) THE RETIRED PAY OF AN OFFICER, WHO IS RETIRED PURSUANT TO SUBSECTION (A) OF THIS SECTION OR PURSUANT TO PARAGRAPH (1) OF THIS SUBSECTION AND WHO HAS SERVED FOUR YEARS OR MORE AS SURGEON GENERAL, DEPUTY SURGEON GENERAL, OR ASSISTANT SURGEON GENERAL, SHALL BE BASED ON THE PAY OF THE HIGHEST GRADE HELD BY HIM AS SUCH SURGEON GENERAL, DEPUTY SURGEON GENERAL, OR ASSISTANT SURGEON GENERAL.

THE LETTER OF DECEMBER 27, 1955, TRANSMITTING THE CLAIM HERE STATES AS FOLLOWS:

ALTHOUGH THE GRADE OF ASSISTANT SURGEON GENERAL DURING THE PERIOD OF DR. VONDERLEHR'S INCUMBENCY WAS NEXT HIGHER TO THE GRADE OF MEDICAL DIRECTOR WITHIN THE GRADE STRUCTURE OF THE PUBLIC HEALTH SERVICE (SEE PARAGRAPH 6, REGULATIONS FOR THE GOVERNMENT OF THE U.S. PUBLIC HEALTH SERVICE, 1931), THE PAY OF THE GRADE UNDER SECTION 1 OF THE PAY READJUSTMENT ACTS OF 1922 AND 1942 AND PARAGRAPH 118 OF THE 1931 REGULATIONS WAS THE PAY OF THE FIFTH OR SIXTH PAY PERIOD WHICH CORRESPONDED TO THE PAY OF LIEUTENANT COLONEL OR COLONEL IN THE ARMY. AT THE TIME OF DR. VONDERLEHR'S RETIREMENT THE GRADE OF ASSISTANT SURGEON GENERAL WAS STILL NEXT HIGHER TO THE GRADE OF MEDICAL DIRECTOR BUT THE PAY OF THE GRADE HAD BEEN INCREASED TO PAYGRADE 10-7 WHICH CORRESPONDED TO THE PAY OF BRIGADIER GENERAL, AND, IN SOME INSTANCES, TO PAY GRADE 10-8 WHICH CORRESPONDED TO THE PAY OF MAJOR GENERAL (SEE SECTION 201 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED). THE QUESTION PRESENTED INVOLVES A DECISION AS TO WHETHER THE WORDS "PAY OF THE HIGHEST GRADE HELD AS SUCH * * * ASSISTANT SURGEON GENERAL" RELATE TO THE PAY OF THAT GRADE AT THE TIME DR. VONDERLEHR HELD THE GRADE OR THE PAY OF THAT GRADE AT THE TIME HE RETIRED.

WE HAVE INFORMALLY ASCERTAINED FROM THE PUBLIC HEALTH SERVICE THAT AT THE BEGINNING OF DR. VONDERLEHR'S TERM AS ASSISTANT SURGEON GENERAL HIS PAY CORRESPONDED WITH THAT OF A LT. COLONEL IN THE ARMY (PAY PERIOD 5). LATER IN JUNE 1942, HE ADVANCED TO THE PAY GRADE CORRESPONDING WITH THAT OF A FULL COLONEL IN THE ARMY PAY PERIOD 6). AFTER DR. VONDERLEHR'S TERM AS ASSISTANT SURGEON GENERAL EXPIRED IN 1943 HE WAS PLACED IN THE POST OF MEDICAL DIRECTOR AND HE APPARENTLY SERVED IN THE GRADE OR RANK OF MEDICAL DIRECTOR CORRESPONDING TO THE GRADE OF A COLONEL IN THE ARMY UNTIL HIS RETIREMENT EFFECTIVE NOVEMBER 1, 1955.

SECTION 206 (A) OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, 58 STAT. 684, 42 U.S.C. 207, SPECIFICALLY PROVIDED THAT THE POST OF ASSISTANT SURGEON GENERAL WOULD CARRY THE PAY AND ALLOWANCES OF A BRIGADIER GENERAL OF THE ARMY. SUBSEQUENTLY, THE ACT OF FEBRUARY 28, 1948, 62 STAT. 38, 42 U.S.C. 201, AMENDED THE ACT OF JULY 1, 1944, TO AUTHORIZE THE INCUMBENTS OF THE POST OF ASSISTANT SURGEON GENERAL TO RECEIVE THE PAY AND ALLOWANCES OF EITHER A BRIGADIER GENERAL OR A MAJOR GENERAL IN THE ARMY AS DETERMINED BY THE SURGEON GENERAL ACCORDING TO THE IMPORTANCE OF THE DUTIES TO BE PERFORMED. MOREOVER, IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, 37 U.S.C. 232, THE POST OF ASSISTANT SURGEON GENERAL IS DESIGNATED AS FALLING IN PAY GRADE, FORMERLY PAY PERIOD, 10-7 ( BRIGADIER GENERAL) OR PAY GRADE 10-8 ( MAJOR GENERAL).

FROM THE FOREGOING IT IS APPARENT THAT AFTER THE DATE DR. VONDERLEHR CEASED TO OCCUPY THE POST OF ASSISTANT SURGEON GENERAL THE GRADE STRUCTURE OF THAT POST WAS RAISED FROM PAY PERIODS 5 AND 6 ( LT. COLONEL AND COLONEL) TO PAY GRADE 10-7 ( BRIGADIER GENERAL), THENCE TO PAY GRADES 10-7 AND 10-8 ( BRIGADIER GENERAL AND MAJOR GENERAL).

THE STATUTORY AUTHORITY UNDER WHICH THE RETIRED PAY OF OFFICERS IN THE PUBLIC HEALTH SERVICE COULD BE BASED ON THE HIGHEST GRADE HELD BY THEM IN A PARTICULAR OFFICE FIRST APPEARED IN SECTION 211 (A) OF THE ACT OF JULY 1, 1944, 58 STAT. 688, 42 U.S.C. 212, AS FOLLOWS:

THE RETIRED PAY OF ANY COMMISSIONED OFFICER WHO HAS SERVED FOUR YEARS OR MORE AS SURGEON GENERAL OR DEPUTY SURGEON GENERAL SHALL BE BASED ON THE PAY OF THE HIGHEST GRADE HELD BY HIM AS SUCH SURGEON GENERAL OR DEPUTY SURGEON GENERAL. THE PROVISION WAS AMENDED BY SECTION 7 (B) OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 46, TO INCLUDE OFFICERS SERVING AS ASSISTANT SURGEON GENERAL. HOUSE OF REPRESENTATIVES REPORT NO. 1364 ON H.R. 4624, WHICH BILL BECAME THE ACT OF JULY 1, 1944, EXPLAINS THAT PROVISION AS FOLLOWS:

PARAGRAPH (2) BASES RETIRED PAY OF AN OFFICER WHO HAS SERVED 4 YEARS OR MORE AS SURGEON GENERAL OR DEPUTY SURGEON GENERAL, AND HAS THEN REVERTED TO A LOWER RANK IN THE SERVICE, ON THE PAY OF THE HIGHEST GRADE HELD BY HIM WHILE BE WAS SO SERVING. THIS IS A CHANGE OF LAW TO ACCORD WITH THE ARMY PRACTICE.

WHILE THE PARTICULAR ARMY PRACTICE WAS NOT SPECIFIED IN HOUSE OF REPRESENTATIVES REPORT NO. 1364, IT IS APPARENT THAT REFERENCE WAS INTENDED TO AN ANALOGOUS STATUTE APPLICABLE TO THE ARMY, NAMELY, SUBSECTION 4 (C) OF THE NATIONAL DEFENSE ACT AS AMENDED, 10 U.S.C. 1026, WHICH AUTHORIZES THE RETIREMENT OF ARMY OFFICERS WHO PREVIOUSLY SERVED AS CHIEF OF BRANCH, ETC., WITH THE RANK AND PAY OF THE HIGHEST GRADE HELD AS SUCH. SEE B-63834, MARCH 11, 1947.

WE FIND NOTHING IN THE LEGISLATIVE HISTORIES OF THE FOREGOING ENACTMENTS TO INDICATE WHETHER THEY WERE INTENDED TO INCLUDE THE BENEFIT OF AN INCREASE IN THE RANK OR GRADE OF AN OFFICE OR POST AFTER IT CEASED TO BE OCCUPIED BY A PARTICULAR OFFICER. MOREOVER, WE HAVE BEEN UNABLE TO FIND ANY CASE INVOLVING THE ARMY WHERE THIS QUESTION WAS EVER RAISED. HOWEVER, AS TO THE ARMY STATUTE, IT IS OBVIOUS THAT THE LANGUAGE "HIGHEST GRADE HELD BY HIM AS SUCH CHIEF, ASSISTANT CHIEF, OR COMMANDING GENERAL" HAS REFERENCE TO THE HIGHEST PAY GRADE OR RANK OF THE OFFICER AT THE TIME HE OCCUPIED THE PARTICULAR POST.

WHILE THE PUBLIC HEALTH SERVICE OFFICERS PRIMARILY ARE RANKED BY TITLE OF OFFICE OR POSITION SUCH AS SURGEON GENERAL, DEPUTY SURGEON GENERAL, ASSISTANT SURGEON GENERAL, ETC., THE REGULATIONS AND STATUTES APPLICABLE TO PUBLIC HEALTH SERVICE OFFICERS LONG HAVE PROVIDED THAT THEIR GRADES SHALL CORRESPOND WITH SPECIFIED GRADES OF OFFICERS IN THE ARMY. SINCE THE PUBLIC HEALTH SERVICE STATUTE CONCERNING RETIRED PAY WAS PREDICATED UPON THE ARMY STATUTE, WE FEEL THAT THE SIMILAR LANGUAGE APPEARING IN THE PUBLIC HEALTH SERVICE STATUTE, NAMELY,"HIGHEST GRADE HELD BY HIM AX SUCH * * * ASSISTANT SURGEON GENERAL," HAS REFERENCE TO THE PAY GRADE OR RANK CORRESPONDING WITH THE ARMY GRADE WHICH THE OFFICER HELD AT THE TIME HE WAS SERVING AS ASSISTANT SURGEON GENERAL. WE CAN SEE NO BASIS FOR THE VIEW THAT THE WORD "GRADE" WAS USED IN THE SAME SENSE AS ASSISTANT SURGEON GENERAL. COMPARE 1 COMP. GEN. 690. THE LANGUAGE OF THE STATUTE ITSELF WHEN READ AS A WHOLE CONTRADICTS ANY SUCH VIEW. AS A MATTER OF FACT, WHEN DR. VONDERLEHR SERVED IN THE POST OF ASSISTANT SURGEON GENERAL HE AT FIRST HELD THE PAY GRADE CORRESPONDING TO A LT. COLONEL IN THE ARMY AND BEFORE COMPLETION OF HIS TERM HE HAD ADVANCED TO THE PAY GRADE CORRESPONDING TO THAT OF COLONEL IN THE ARMY.

BECAUSE OF THE FOREGOING CONSIDERATIONS WE CONCLUDE THAT SINCE THE HIGHEST GRADE HELD BY DR. VONDERLEHR WHEN HE SERVED IN THE OFFICE OF ASSISTANT SURGEON GENERAL CORRESPONDED WITH THAT OF COLONEL IN THE ARMY HE IS NOT ENTITLED BY VIRTUE OF 42 U.S.C. 212 TO HAVE HIS RETIRED PAY BASED ON ANY HIGHER GRADE.