B-127486, MAY 7, 1956, 35 COMP. GEN. 633

B-127486, MAY 7, 1956, 35 COMP. GEN. 633

RETIREMENT - MILITARY, NAVAL, ETC., PERSONNEL - EFFECTIVE DATE MANDATORY RETIREMENT A NAVAL OFFICER WHO COMPLETED 20 YEARS OF ACTIVE SERVICE AND WHO IS TO BE HONORABLY DISCHARGED ON JUNE 30, 1956, PURSUANT TO SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, MAY ELECT TO RETIRE EFFECTIVE JULY 1, 1956, PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, PROVIDED TIMELY APPLICATION FOR RETIREMENT IS MADE AND APPROVAL IS EFFECTED PRIOR TO JULY 1. NAVAL OFFICERS WHO ARE SUBJECT TO AMENDATORY RETIREMENT ON JUNE 30, IN ACCORDANCE WITH SECTION 312 (C) OF THE OFFICER PERSONNEL ACT OF 1947, MAY ELECT TO RETIRE VOLUNTARILY ON JULY 1, PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AND, IF SUCH RETIREMENT IS APPROVED, JUNE 30 WILL BE CREDITED AS A DAY OF ACTIVE SERVICE FOR ESTABLISHING THE BASIC PAY FOR COMPUTATION OF RETIRED PAY. UNDER THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, WHICH PROVIDES THAT RETIREMENTS ARE TO BE EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, A NAVAL OFFICER WHO IS SUBJECT TO MANDATORY RETIREMENT ON JUNE 30, PURSUANT TO SECTION 312 (C) OF THE OFFICER PERSONNEL ACT OF 1947, MUST BE PLACED ON THE RETIRED LIST EFFECTIVE JULY 1.

TO THE SECRETARY OF THE NAVY, MAY 7, 1956:

REFERENCE IS MADE TO LETTER OF MARCH 31, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING DECISION ON THE FOLLOWING QUESTIONS:

A. A LIEUTENANT, U. S. NAVY, IS DUE TO BE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30, 1956, PURSUANT TO THE PROVISIONS OF SECTION 312 (H) OF THE OFFICER PERSONNEL ACT, SUPRA. ON JUNE 7, 1956, SAID OFFICER WILL HAVE COMPLETED EXACTLY 20 YEARS AND 1 DAY OF ACTIVE SERVICE, THE LAST 10 OF WHICH HAVE BEEN COMMISSIONED SERVICE. CAN SAID OFFICER BE RETIRED WITH PAY EFFECTIVE 1 JULY 1956 PROVIDED HIS APPLICATION FOR RETIREMENT IS APPROVED PRIOR TO 30 JUNE 1956? WOULD THE ANSWER BE DIFFERENT IF SAID OFFICER WOULD HAVE COMPLETED EXACTLY 20 YEARS AND 1 DAY SERVICE ON 30 JUNE 1956?

B. A LIEUTENANT, U. S. NAVY, IS DUE TO BE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30, 1956, PURSUANT TO THE PROVISIONS OF SECTION 312 (H) OF THE OFFICER PERSONNEL ACT, SUPRA. ON JUNE 7, 1956, SAID OFFICER WILL HAVE 22 YEARS AND 1 DAY OF ACTIVE SERVICE, THE LAST 10 OF WHICH HAVE BEEN COMMISSIONED SERVICE. CAN THIS OFFICER BE RETIRED WITH PAY EFFECTIVE 1 JULY 1956 PROVIDED APPLICATION FOR RETIREMENT IS APPROVED PRIOR TO 30 JUNE 1956?

C. A COMMANDER, U. S. NAVY, IS DUE TO BE PLACED ON THE RETIRED LIST ON JUNE 30, 1956, PURSUANT TO SUBSECTION 312 (C) OF THE OFFICER PERSONNEL ACT, SUPRA, UNLESS OTHERWISE RETIRED PURSUANT TO LAW, PRIOR TO THAT DATE. HIS TOTAL SERVICE ON JUNE 30, 1956 WOULD BE EXACTLY 26 YEARS AND SIX MONTHS ACTIVE SERVICE. MAY THIS OFFICER BE PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1956 THROUGH THE MEANS OF AN APPROVED APPLICATION FOR VOLUNTARY RETIREMENT UNDER THE ACT OF FEBRUARY 21, 1946, SUPRA? IF THE ANSWER IS AFFIRMATIVE, MAY JUNE 30, 1956 BE COUNTED AS A DAY OF ACTIVE SERVICE FOR THE PURPOSES OF ACTIVE DUTY PAY FOR THAT DAY AND FOR COMPUTATION OF RETIREMENT PAY?

D. THE FACTS ARE THE SAME AS PRESENTED IN QUESTION C. EXCEPT THAT NO APPLICATION FOR VOLUNTARY RETIREMENT HAS BEEN MADE. MAY THE OFFICER BE PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1956, OR MUST HE BE PLACED THEREON ON JUNE 30, 1956? IF IT IS MANDATORY TO PLACE HIM ON THE RETIRED LIST ON JUNE 30, 1956, MAY THAT DAY BE COUNTED AS A DAY OF ACTIVE SERVICE FOR THE PURPOSES OF ACTIVE DUTY PAY FOR THAT DAY AND FOR COMPUTATION OF RETIREMENT PAY?

SECTION 312 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 859, 34 U.S.C. 410J (C), PROVIDES, IN PERTINENT PART, THAT:

COMMANDERS, EXCEPT COMMANDERS DESIGNATED FOR LIMITED DUTY, WHOSE NAMES, ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETE TWENTY-SIX YEARS OF TOTAL COMMISSIONED SERVICE, ARE NOT ON A PROMOTION LIST, SHALL, SUBJECT TO THE PROVISIONS OF PARAGRAPH (1) OF SUBSECTION 311 (C) OF THIS TITLE, IF NOT OTHERWISE RETIRED PURSUANT TO LAW AND IF THEY SHALL HAVE TWICE FAILED OF SELECTION FOR TEMPORARY PROMOTION TO CAPTAIN, BE PLACED ON THE RETIRED LIST ON THAT DATE. COMMANDERS, EXCEPT COMMANDERS DESIGNATED FOR LIMITED DUTY, WHO SHALL TWICE FAIL OF SELECTION FOR TEMPORARY PROMOTION TO CAPTAIN, IF SUCH SECOND FAILURE SHALL OCCUR SUBSEQUENT TO JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETE TWENTY-SIX YEARS OF TOTAL COMMISSIONED SERVICE, SHALL, IF NOT OTHERWISE RETIRED PURSUANT TO LAW, BE PLACED ON THE RETIRED LIST ON JUNE 30 OF THE FISCAL YEAR IN WHICH SUCH SECOND FAILURE SHALL OCCUR: * * *

SUBSECTION 312 (H) OF THE ACT, 61 STAT. 860, 34 U.S.C. 410J (H), PROVIDES, IN PERTINENT PART, THAT:

LIEUTENANTS, EXCEPT LIEUTENANTS OF THE NURSE CORPS AND LIEUTENANTS (JUNIOR GRADE), WHO SHALL HAVE TWICE FAILED OF SELECTION FOR PROMOTION TO LIEUTENANT COMMANDER AND LIEUTENANT, RESPECTIVELY, AND OFFICERS WHOSE NAMES ARE REPORTED IN ACCORDANCE WITH PARAGRAPH (2) OF SUBSECTION 309 (C) OF THIS ACT, SHALL BE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAIL OF SUCH SELECTION THE SECOND TIME, OR IN WHICH THEIR NAMES ARE REPORTED IN ACCORDANCE WITH PARAGRAPH (2) OF SUBSECTION 309 (C) OF THIS ACT, WITH A LUMP-SUM PAYMENT COMPUTED ON THE BASIS OF TWO MONTHS' ACTIVE-DUTY PAY AT THE TIME OF DISCHARGE FOR EACH YEAR OF COMMISSIONED SERVICE COMPUTED IN ACCORDANCE WITH SUBSECTION 102 (D) FOR LINE OFFICERS OR SUBSECTION 202 (D) FOR STAFF OFFICERS, BUT NOT TO EXCEED A TOTAL OF TWO YEARS' ACTIVE DUTY PAY: * * *.

SUBSECTION 312 (K) OF THE ACT, 61 STAT. 860, 34 U.S.C. 410J (K), IS AS FOLLOWS:

NOTHING IN THIS SECTION (312) SHALL BE HELD TO REDUCE THE RETIRED RANK OR PAY TO WHICH AN OFFICER WOULD BE ENTITLED UNDER OTHER PROVISIONS OF LAW.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, 34 U.S.C. 410 (B), PROVIDES THAT:

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.

SECTION 7 (A) OF THE ABOVE 1946 ACT, 60 STAT. 27, 34 U.S.C. 410 (C), PROVIDES THAT:

EACH OFFICER RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY. IN ANY CASE WHERE, AS DETERMINED BY THE SECRETARY OF THE NAVY, ANY SUCH OFFICER HAS NOT PERFORMED SATISFACTORY DUTY IN THE HIGHEST RANK HELD BY HIM WHILE ON ACTIVE DUTY, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE NEXT LOWER RANK IN WHICH HE HAS SERVED BUT NOT LOWER THAN HIS PERMANENT RANK. OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: PROVIDED, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED: PROVIDED FURTHER, THAT OFFICERS WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF THEIR ACTIVE DUTY PAY.

SECTION 1 OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, PROVIDES:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT OF THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IN THIS ACT HAD NOT BEEN ENACTED.

IN THE SITUATION OUTLINED IN QUESTION (A), THE PROVISIONS OF SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947 REQUIRE THAT THE OFFICER'S LAST DAY ON THE ACTIVE LIST BE JUNE 30, 1956, AND THAT HE BE SEPARATED FROM THAT LIST ON THAT DAY. HOWEVER, SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, INSOFAR AS ITS APPLICATION TO SUCH OFFICER IS CONCERNED AND WHEN READ IN CONJUNCTION WITH SECTION 312 (K) OF THE OFFICER PERSONNEL ACT OF 1947, SEEMS TO MEAN THAT HE MAY BE RETIRED JULY 1, 1956, HIS LAST DAY ON THE ACTIVE LIST BEING JUNE 30, 1956, PROVIDED THAT TIMELY APPLICATION FOR RETIREMENT IS MADE AND TIMELY APPROVAL OF SUCH APPLICATION IS EFFECTED. IT IS OUR VIEW THAT A DISCHARGE WITH A MAXIMUM OF TWO YEARS' ACTIVE-DUTY PAY, RATHER THAN RETIREMENT WITH PAY FOR LIFE AT THE RATE OF AT LEAST 50 PERCENTUM OF ACTIVE-DUTY PAY WOULD "REDUCE THE RETIRED * * * PAY TO WHICH * * * (THIS OFFICER) WOULD BE ENTITLED UNDER OTHER PROVISIONS OF LAW" AND THAT IT WOULD BE IN CONTRAVENTION OF THE SAVINGS PROVISION IN SECTION 312 (K) OF THE OFFICER PERSONNEL ACT OF 1947 TO DISCHARGE THE OFFICER ON JUNE 30, 1956, RATHER THAN PLACE HIM ON THE RETIRED LIST UPON HIS OWN APPLICATION, 23 DAYS AFTER HE HAD MET THE SERVICE REQUIREMENTS FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946. ACCORDINGLY, THE FIRST PART OF QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.

IT IS OUR UNDERSTANDING THAT AN OFFICER MAY APPLY FOR RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, BEFORE HE ACTUALLY COMPLETES THE MINIMUM SERVICE REQUIREMENTS OF THAT SECTION, BUT THAT ADMINISTRATIVE ACTION ON SUCH AN APPLICATION IS NOT TAKEN UNTIL THE SERVICE REQUIREMENTS ARE MET. IF THE APPLICATION, UNDER THE CONDITIONS DESCRIBED IN THE SECOND PART OF QUESTION (A), ACTUALLY SHOULD BE APPROVED ON JUNE 30, 1956, IT IS OUR VIEW THAT THE OFFICER'S RETIREMENT EFFECTIVE ON THE NEXT DAY WOULD BE AUTHORIZED. THE SECOND PART OF QUESTION (A), THEREFORE, IS ANSWERED IN THE NEGATIVE.

QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION (A).

WHILE SECTION 312 (C) OF THE OFFICER PERSONNEL ACT OF 1947 STATES THAT, UNDER THE CIRCUMSTANCES THEREIN PRESCRIBED, OFFICERS ARE TO BE RETIRED ON JUNE 30 OF THE FISCAL YEAR CONCERNED, WE CONSTRUE THE LANGUAGE OF THAT SECTION, WHEN READ IN CONJUNCTION WITH SECTION 1 OF THE ACT OF APRIL 23, 1930, AS EVIDENCING AN INTENT THAT JUNE 30, THE LAST DAY OF THE FISCAL YEAR, SHALL BE THEIR LAST DAY ON THE ACTIVE LIST AS IN THE CASE OF OFFICERS DISCHARGED UNDER SECTION 312 (H). WE PERCEIVE NO INTENT THAT THE LAST DAY ON THE ACTIVE LIST IN THE CASE OF AN OFFICER DISCHARGED UNDER SECTION 312 (H) SHALL BE JUNE 30, WHILE THE LAST DAY ON THE ACTIVE LIST OF AN OFFICER RETIRED UNDER SECTION 312 (C) SHALL BE JUNE 29. IN OTHER WORDS, THE ACT OF APRIL 23, 1930, IS APPLICABLE TO RETIREMENTS UNDER SECTION 312 (C).

THE OFFICER REFERRED TO IN QUESTION (C) IS FACED WITH MANDATORY RETIREMENT EFFECTIVE JULY 1, 1956, UNDER THE PROVISIONS OF SECTION 312 (C). HOWEVER, THAT SECTION SAYS THAT SUCH MANDATORY RETIREMENT SHALL BE EFFECTED "IF (THE OFFICER IS) NOT OTHERWISE RETIRED PURSUANT TO LAW.' WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, WE ARE INCLINED TO THE VIEW THAT THE QUOTED LANGUAGE PRESERVES TO THE OFFICER CONCERNED ANY RIGHTS WHICH HE OTHERWISE MAY HAVE TO VOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1956.

ACCORDINGLY, QUESTION (C) IS ANSWERED BY SAYING THAT THE OFFICER THEREIN REFERRED TO MAY BE RETIRED EFFECTIVE JULY 1, 1956, THROUGH THE MEDIUM OF AN APPLICATION APPROVED PRIOR TO THAT DATE, UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AND THAT IF SO RETIRED, JUNE 30, 1956, WILL BE CREDITABLE AS A DAY OF ACTIVE SERVICE FOR THE PURPOSES OF PAY FOR THAT DAY AND FOR THE COMPUTATION OF RETIRED PAY.

QUESTION (D) IS ANSWERED BY SAYING THAT THE OFFICER, BY REASON OF THE ACT OF APRIL 23, 1930, MUST BE PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1956.