B-136140, JUN. 18, 1958

B-136140, JUN. 18, 1958

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

IN OUR AUDIT OF THE RETIRED PAY ACCOUNTS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE THROUGH THE MONTH OF DECEMBER 31, 1956, WE NOTED THAT CERTAIN RETIRED OFFICER WHO, AT SOME TIME DURING THEIR CAREERS IN THE SERVICE HAD SERVED IN THE POSITION OF ASSISTANT SURGEON GENERAL AT TIMES WHEN SUCH POSITION WAS ASSIMILATED FOR PAY PURPOSES TO THE GRADE OF EITHER LIEUTENANT COLONEL OR COLONEL IN THE ARMY (DEPENDING ON LENGTH OF SERVICE OF THE INDIVIDUAL OFFICER), PRESENTLY ARE BEING PAID RETIRED PAY COMPUTED ON THE PAY OF BRIGADIER GENERAL (PAY GRADE 0-7). THE MATTER WAS CALLED TO THE ATTENTION OF THE PUBLIC HEALTH SERVICE FISCAL OFFICE WHICH, IN REPLY OF NOVEMBER 27, 1957 (FILE NO. FIN:FO), EXPRESSED THE VIEW THAT THE ACTION TAKEN IN BASING THE RETIRED PAY OF THE OFFICERS CONCERNED ON PAY GRADE C-7 WAS AUTHORIZED UNDER SECTIONS 402 (D), 411, AND 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 823, AND 829.

WHILE ALL OF THE OFFICERS CONCERNED WERE RETIRED PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, SOME OF THEM WERE RETIRED FOR PHYSICAL DISABILITY WHILE OTHERS WERE RETIRED FOR AGE. EACH OF THE OFFICERS INVOLVED WHO HAD BEEN RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 ELECTED UNDER SECTION 411 OF THAT ACT TO RECEIVE DISABILITY RETIREMENT PAY, COMPUTED ON THE BASIS OF THE NUMBER OF YEAR'S ACTIVE SERVICE TO HIS CREDIT MULTIPLIED BY 2 1/2 PERCENTUM, IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN SECTION 402 (D) OF SUCH ACT. THE ACTION TAKEN IN THE CASE OF THE OFFICERS WHO RETIRED FOR REASONS OTHER THAN DISABILITY WAS PREDICATED UPON THE PROVISIONS OF SECTION 511 OF THE ACT.

THE PERTINENT PROVISIONS IN SECTIONS 402 (D) AND 511 ARE QUOTED, RESPECTIVELY, AS FOLLOWS:

(402 (D) (

"PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER: * * *"

(511)

"* * * MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN EACH RANK, GRADE OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: * * *"

UNDER BOTH OF THE ABOVE-QUOTED SECTIONS THE "MONTHLY BASIC PAY" UPON WHICH THE RETIRED PAY IS AUTHORIZED TO BE COMPUTED IS THE MONTHLY BASIC PAY APPLICABLE TO A RANK, GRADE, OR RATING ACTUALLY HELD. UNDER EACH PROVISION THE HIGHER RANK, GRADE, OR RATING IN FACT MUST HAVE BEEN HELD BY THE OFFICER WHILE SERVING ON ACTIVE DUTY. IN CONSTRUING SECTION 211 OF THE SET OF JULY 1, 1944, AS AMENDED, 42 U.S.C. 212, WE HELD IN DECISION OF JANUARY 20, 1956, 35 COMP. GEN. 408, THAT THE TERM "HIGHEST GRADE HELD BY HIM AS 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.' SIMILARLY, WE VIEW THE TERM "RANK, GRADE, OR RATING"--- IN WHICH THE MEMBERS CONCERNED HAD SERVED SATISFACTORILY--- APPEARING IN SECTIONS 402 (D) AND 511 AND THE CAREER COMPENSATION ACT OF 1949 AS REFERRING TO THE PAY GRADE OR RANK LEGALLY AUTHORIZED FOR ANY SUCH OFFICER WHILE SERVING ON ACTIVE DUTY AS ASSISTANT SURGEON GENERAL AND NOT TO SOME OTHER AND DIFFERENT PAY GRADE OR RANK WHICH NOW MAY BE AUTHORIZED FOR PERSONS SERVING AS ASSISTANT SURGEON GENERAL BUT IN WHICH THE INDIVIDUALS CONCERNED HAVE NEVER SERVED. THAT IS TO SAY, THE TERM "RANK, GRADE, OR RATING" IS NOT REGARDED AS REFERRING TO THE POSITION OF ASSISTANT SURGEON GENERAL BUT RATHER TO THE PAY GRADE LEGALLY AUTHORIZED FOR THAT POSITION DURING THE PERIOD OF AN INDIVIDUAL'S ACTIVE SERVICE IN SUCH POSITION. THEREFORE, UNLESS EACH OF THE INDIVIDUAL'S CONCERNED ACTUALLY SERVED AS ASSISTANT SURGEON GENERAL DURING A PERIOD WHEN THE PAY FOR THAT POSITION WAS ASSIMILATED TO THE PAY OF BRIGADIER GENERAL, NEITHER SECTION 402 (D) NOR SECTION 511 WOULD AUTHORIZE THE COMPUTATION OF HIS RETIRED PAY ON THE BASIS OF THE PAY OF THE GRADE APPLICABLE TO A BRIGADIER GENERAL.

APPROPRIATE ACTION SHOULD BE TAKEN TO ADJUST THE RETIRED PAY OF THE OFFICERS INVOLVED AND COLLECT OVERPAYMENTS PREVIOUSLY MADE.