B-128914, OCT. 1, 1956

B-128914, OCT. 1, 1956

TO WILLIAM G. LALOR, REAR ADMIRAL, U.S. NAVY, RETIRED:

REFERENCE IS MADE TO YOUR CLAIMS FOR (1) DIFFERENCE IN ACTIVE DUTY PAY AND ALLOWANCES BETWEEN THOSE OF A REAR ADMIRAL (UPPER HALF) AND THOSE RECEIVED BY YOU AS A REAR ADMIRAL (LOWER HALF) FOR THE PERIOD FROM DECEMBER 16, 1952, THE DATE ON WHICH YOU COMPLETED TWO YEARS OF ACTIVE DUTY DURING THE STATE OF NATIONAL EMERGENCY, TO JUNE 29, 1953, AND (2) DIFFERENCE IN RETIRED PAY BETWEEN THAT OF A REAR ADMIRAL (EITHER LOWER HALF OR UPPER HALF) AND THAT RECEIVED BY YOU AS CAPTAIN FOR THE PERIOD BEGINNING JUNE 30, 1953. YOUR CLAIM FOR ADDITIONAL ACTIVE DUTY PAY WAS DISALLOWED BY OUR SETTLEMENT DATED MARCH 4, 1954.

THE RECORDS SHOW THAT ON DECEMBER 30, 1949, WHILE SERVING AS A CAPTAIN IN THE U.S. NAVY, YOU REQUESTED RETIREMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, AS AMENDED, 34 U.S.C. 383, WHICH PROVIDES THAT WHEN AN OFFICER OF THE NAVY HAS BEEN 30 YEARS IN THE SERVICE, HE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE. YOU FURTHER REQUESTED THAT, UPON RETIREMENT, YOU BE ADVANCED TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST IN ACCORDANCE WITH SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT/874. AS AMENDED BY SECTION 522 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 835, 34 U.S.C. 410N. SECTION 412 (A) OF THE FORMER ACT ORIGINALLY PROVIDED IN PERTINENT PART THAT:

"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, EXCEPT OFFICERS ON A PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, 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 AND THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN: PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER RECALLED TO ACTIVE DUTY, MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE RETIRED LIST * *

THE ABOVE-QUOTED PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947 WERE AMENDED BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949 BY DELETING THE WORDS "AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' SECTION 522 (C) OF THE LATTER ACT, EFFECTIVE OCTOBER 1, 1949, PROVIDES IN PART THAT NOTHING CONTAINED IN SUBSECTION (A) OF THIS SECTION SHALL BE HELD TO REDUCE THE RETIRED PAY OF ANY OFFICER PLACED ON A RETIRED LIST PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, NOR SHALL THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED BY SUBSECTION (A) OF THIS SECTION, BE CONSTRUED AS GRANTING ANY INCREASED RETIRED PAY TO ANY PERSON BY VIRTUE OF THE HIGHER GRADE OR RANK TO WHICH SUCH PERSON IS OR MAY BE ENTITLED TO PURSUANT TO SUCH PROVISIONS OF LAW.

YOUR CLAIM FOR ADDITIONAL PAY IS BASED ON THE ACT OF APRIL 8, 1946, 60 STAT. 86, 34 U.S.C. 428, WHICH IS AS FOLLOWS:

"ANY OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE AND WHO IS, HAS BEEN, OR MAY BE RECALLED TO ACTIVE DUTY AND WHO IN TIME OF WAR OR OTHER NATIONAL EMERGENCY SERVED, SERVES, OR MAY SERVE SATISFACTORILY ON ACTIVE DUTY FOR A PERIOD OF TWO YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE, SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER PAY AND ALLOWANCES, AND HE SHALL BE ENTITLED WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS OF LAW TO HIGHER RETIRED PAY OR ALLOWANCES: PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THIS SECTION PRIOR TO APRIL 8, 1946.'

THE QUESTION OF WHAT INCREASE IN PAY, IF ANY, IS AUTHORIZED IN THE CASE OF A NAVAL OFFICER OF A RANK OR GRADE BELOW REAR ADMIRAL WHO IS ADVANCED UPON RETIREMENT TO THE GRADE OR RANK OF REAR ADMIRAL BECAUSE OF BEING COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AND WHO SUBSEQUENTLY SERVES TWO YEARS ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY AS DESCRIBED IN THE ACT OF APRIL 8, 1946, IS NOW BEFORE THE COURT OF CLAIMS FOR CONSIDERATION AND DECISION. SEE MCCOLL V. UNITED STATES, C.CLS. NO. 137-56. UNTIL A DETERMINATION BY THE COURT OF THAT QUESTION HAS BECOME