B-145892, MAY 23, 1968
Highlights
RETIRED: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23. IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JANUARY 31. THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE MARINE CORPS ON APRIL 1. YOU HAVE BEEN PAID RETIRED PAY BASED ON THE GRADE OF TECHNICAL SERGEANT. IN WHICH THE COURT HELD THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF A HIGHER GRADE HE HAD HELD IN THE NAVY. THE PLAINTIFF MILLER WAS RETIRED FROM THE COAST GUARD ON FEBRUARY 1. MILLER'S SUIT WAS DECIDED IN HIS FAVOR SOLELY BY VIRTUE OF THE SPECIFIC LANGUAGE CONTAINED IN THE APPLICABLE STATUTE. IN THE FOLLOWING SENTENCE THE COURT RESTRICTED THE SCOPE OF ITS DECISION IN THE MILLER CASE BY SETTING FORTH THE SOLE AND BASIC POINT AT ISSUE AS FOLLOWS: "THE QUESTION PRESENTED IS WHETHER THE STATUTE PERMITS THE COMPUTATION OF RETIREMENT PAY ON THE BASIS OF A HIGHER RATING HELD IN A SERVICE OTHER THAN THAT FROM WHICH RETIRED.'.
B-145892, MAY 23, 1968
TO TECHNICAL SERGEANT LEO J. WERNER, USMC, RETIRED:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1968, IN WHICH YOU REQUEST A DECISION AS TO YOUR RIGHT TO RECEIVE RETIRED PAY BASED ON THE HIGHEST GRADE YOU HELD DURING YOUR MILITARY SERVICE.
IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JANUARY 31, 1949, IN THE GRADE OF CORPORAL, AND THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE MARINE CORPS ON APRIL 1, 1958. YOU HAVE BEEN PAID RETIRED PAY BASED ON THE GRADE OF TECHNICAL SERGEANT, THE HIGHEST GRADE IN WHICH YOU SERVED SATISFACTORILY IN THE MARINE CORPS, PURSUANT TO THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829, 37 U.S.C. 311 (1958 ED.).
THE RECORD SHOWS THAT YOU SERVED ON ACTIVE DUTY IN THE UNITED STATES COAST GUARD RESERVE FROM JULY 1, 1942, TO SEPTEMBER 12, 1945, AS A CHIEF PETTY OFFICER, A PAY GRADE HIGHER THAN THAT OF TECHNICAL SERGEANT IN THE MARINE CORPS. WITH YOUR LETTER YOU ENCLOSED A NEWSPAPER REPORT OF AND A COPY OF THE DECISION OF THE COURT OF CLAIMS ON JULY 20, 1967, IN THE CASE OF HARRY RUSSELL MILLER V UNITED STATES, CT. CL. NO. 424-64, IN WHICH THE COURT HELD THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF A HIGHER GRADE HE HAD HELD IN THE NAVY. APPARENTLY YOU THINK THAT THE MILLER DECISION FURNISHED A LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE GRADE OF A CHIEF PETTY OFFICER IN THE COAST GUARD.
THE PLAINTIFF MILLER WAS RETIRED FROM THE COAST GUARD ON FEBRUARY 1, 1950, IN HIS HIGHEST COAST GUARD GRADE. AS SHOWN IN THE OPINION OF JULY 20, 1967, HE CLAIMED ENTITLEMENT TO INCREASED RETIRED PAY BASED UPON A HIGHER GRADE HE HAD HELD MANY YEARS EARLIER IN THE UNITED STATES NAVY. MILLER'S SUIT WAS DECIDED IN HIS FAVOR SOLELY BY VIRTUE OF THE SPECIFIC LANGUAGE CONTAINED IN THE APPLICABLE STATUTE, 14 U.S.C. 362, REFERRED TO BY THE COURT AS SETTING FORTH "* * * THE GENERAL PROPOSITION THAT THE RETIREMENT PAY OF REGULAR ENLISTED COAST GUARD PERSONNEL SHALL BE ON THE BASIS OF THE HIGHEST GRADE OR RATING WHILE ON ACTIVE DUTY.' IN THE FOLLOWING SENTENCE THE COURT RESTRICTED THE SCOPE OF ITS DECISION IN THE MILLER CASE BY SETTING FORTH THE SOLE AND BASIC POINT AT ISSUE AS FOLLOWS:
"THE QUESTION PRESENTED IS WHETHER THE STATUTE PERMITS THE COMPUTATION OF RETIREMENT PAY ON THE BASIS OF A HIGHER RATING HELD IN A SERVICE OTHER THAN THAT FROM WHICH RETIRED.'
THE STATUTORY PROVISIONS INVOLVED IN THE MILLER CASE, 14 U.S.C. 362, REFER ONLY TO THE "HIGHEST GRADE OR RATING HELD * * * WHILE ON ACTIVE DUTY IN WHICH, AS DETERMINED BY THE SECRETARY, HIS PERFORMANCE OF DUTY WAS SATISFACTORY.' WHILE THAT LANGUAGE IS SOMEWHAT SIMILAR TO THE LANGUAGE OF SECTION 511 OF THE CAREER COMPENSATION ACT, WHICH GOVERNS THE COMPUTATION OF YOUR RETIRED PAY, THE PERTINENT PROVISIONS OF WHICH WERE QUOTED IN OUR DECISION OF JULY 18, 1961, B-145892, TO YOU, WE CONSISTENTLY HAVE HELD IN CASES INVOLVING THAT SECTION THAT A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO HELD A HIGHER GRADE IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER GRADE. SEE 29 COMP. GEN. 437; 32 ID. 425; 33 ID. 10; AND 42 ID. 244. IN FOOTNOTE 7 TO THE MILLER DECISION THE COURT NOTED THAT SECTION 362 OF THE COAST GUARD LAW DOES NOT COVER THE SAME SUBJECT MATTER AS SECTION 511 OF THE CAREER COMPENSATION ACT AND EXPRESSLY STATED THAT IT DID NOT EXPRESS AN OPINION ON THE CORRECTNESS OF THE DECISIONS OF THIS OFFICE RESPECTING SECTION 511.
WE THINK THAT OUR DECISIONS, CITED ABOVE, HOLDING THAT THE BENEFIT OF THE PROVISIONS OF SECTION 511 AUTHORIZING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE PAY OF THE HIGHEST GRADE SATISFACTORILY HELD IS LIMITED TO THE HIGHEST GRADE HELD IN THE SERVICE FROM WHICH RETIRED, ARE CORRECT. ACCORDINGLY, WE DO NOT REGARD THE COURT'S DECISION IN THE MILLER CASE AS PROVIDING ANY BASIS FOR AUTHORIZING THE COMPUTATION OF YOUR RETIRED PAY AS A RETIRED MEMBER OF THE MARINE CORPS ON THE PAY OF A CHIEF PETTY OFFICER IN THE COAST GUARD. THE COPY OF THE MILLER DECISION FORWARDED WITH YOUR LETTER IS RETURNED HEREWITH.