B-149516, SEPTEMBER 7, 1962, 42 COMP. GEN. 156

B-149516, SEPTEMBER 7, 1962, 42 COMP. GEN. 156

PAY - RETIRED - ADVANCEMENT ON RETIRED LIST - ENLISTED MEMBERS ADVANCED TO OFFICER GRADE - PERMANENT V. TEMPORARY GRADE A RETIRED REGULAR ARMY ENLISTED MAN WHO IS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN, A GRADE HE HELD ON ACTIVE DUTY UNDER AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS WHICH WAS A PERMANENT RATHER THAN A TEMPORARY APPOINTMENT, MAY NOT HAVE THE ADVANCEMENT TO A PERMANENT GRADE REGARDED AS COMING UNDER SECTION 203 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, NOW 10 U.S.C. 3964, WHICH AUTHORIZES ADVANCEMENT OF RETIRED ENLISTED MEN TO THE HIGHEST TEMPORARY GRADE IN WHICH THEY SERVED ON ACTIVE DUTY, SINCE THE ACT OF 1948 INDICATES THAT CONGRESS WAS COGNIZANT OF THE FACT THAT MEMBERS COULD SERVE ON ACTIVE DUTY IN HIGHER PERMANENT AS WELL AS HIGHER TEMPORARY RANK SO THAT THERE IS NO BASIS FOR CONCLUDING THAT THE WORDS "OR PERMANENT" WERE INADVERTENTLY OMITTED FROM SECTION 203 AND SINCE IN GRAYSON V. UNITED STATES, 137 CT.CL. 779, ENTITLEMENT TO INCREASED RETIRED PAY WAS BASED ON SERVICE IN A HIGHER TEMPORARY GRADE, IT IS NOT A BASIS FOR ADVANCING A MEMBER TO A PERMANENT GRADE.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, SEPTEMBER 7, 1962:

BY FIRST ENDORSEMENT DATED JULY 20, 1962, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED YOUR LETTER DATED JUNE 14, 1962, WITH ENCLOSURES SUBMITTING FOR ADVANCE DECISION A VOUCHER TOTALING $276.95 STATED IN FAVOR OF LESLIE F. HART, RO 6101350 (0276362), UNITED STATES ARMY, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY OF A SERGEANT FIRST CLASS AND CAPTAIN FOR THE PERIOD MARCH 28 THROUGH MAY 31, 1962. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. DO-A-667 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT FIRST CLASS LESLIE F. HART WAS RETIRED EFFECTIVE SEPTEMBER 30, 1953, UNDER THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 538 (NOW 10 U.S.C. 3914), UPON COMPLETION OF 21 YEARS, 6 MONTHS AND 3 DAYS OF ACTIVE SERVICE AND TOTAL SERVICE OF 32 YEARS, 6 MONTHS AND 28 DAYS FOR BASIC PAY PURPOSES. PARAGRAPH 177, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 121, DATED MAY 25, 1962, ANNOUNCED THE ADVANCEMENT OF SERGEANT HART ON THE ARMY OF THE UNITED STATES RETIRED LIST TO THE GRADE OF CAPTAIN (0-3) EFFECTIVE MARCH 27, 1962. WHILE THE ORDER DOES NOT DISCLOSE THE AUTHORITY UNDER WHICH THE ACTION WAS TAKEN, IT IS APPARENT THAT THE MAN WAS ADVANCED IN GRADE ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 3964, WHICH WAS DERIVED FROM SECTION 203 (3) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1086.

BY PARAGRAPH 11, SPECIAL ORDERS NO. 211, HEADQUARTERS, SECOND MILITARY AREA, DATED NOVEMBER 19, 1940, CAPTAIN HART WAS ORDERED TO ACTIVE DUTY EFFECTIVE NOVEMBER 22, 1940, IN HIS RESERVE COMMISSION IN THE COAST ARTILLERY RESERVE. HE WAS CONTINUED ON ACTIVE DUTY FOR A PERIOD OF ONE YEAR UNDER SPECIAL ORDERS NO. 230, HEADQUARTERS, FOURTH CORPS AREA, DATED OCTOBER 9, 1941. A STATEMENT OF HIS SERVICE FURNISHED THIS OFFICE DISCLOSES THAT HE SERVED ON ACTIVE DUTY AS CAPTAIN, OFFICERS' RESERVE CORPS, UNTIL NOVEMBER 11, 1946, WHEN HE WAS GIVEN A TERMINAL LEAVE PROMOTION TO THE GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES AND WAS CONCURRENTLY PROMOTED TO MAJOR IN THE OFFICERS' RESERVE CORPS. THUS HIS ACTIVE SERVICE FROM NOVEMBER 21, 1940, TO NOVEMBER 11, 1946, WAS PERFORMED UNDER HIS OFFICERS' RESERVE CORPS COMMISSION OF CAPTAIN. HE ENLISTED IN THE REGULAR ARMY ON JANUARY 29, 1947, AND SERVED CONTINUOUSLY UNDER SUCCESSIVE ENLISTMENTS UNTIL HIS RETIREMENT IN 1953.

SINCE THE PROVISIONS OF 10 U.S.C. 3964 PROVIDE THAT EACH ENLISTED MEMBER OF THE REGULAR ARMY WHO IS RETIRED IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS30 YEARS, YOU EXPRESS DOUBT AS TO WHETHER THE MEMBER IS ENTITLED TO RETIRED PAY IN THE GRADE OF CAPTAIN--- APPOINTMENTS IN THE OFFICERS' RESERVE CORPS BEING REGARDED AS PERMANENT RATHER THAN TEMPORARY. IN VIEW OF THE RULING IN 37 COMP. GEN. 538 THAT ANY CASE CONSIDERED TO BE "SIMILAR" TO THE GRAYSON CASE (137 CT.CL. 779) SHOULD BE SUBMITTED FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT, YOU REQUEST AN ADVANCE DECISION IN THIS CASE.

WHILE THE COURT OF CLAIMS IN THE GRAYSON CASE, SPEAKING WITH REFERENCE TO SECTION 203 (A) OF THE 1948 ACT, 10 U.S.C. 3963 (A), CONTAINING LANGUAGE SIMILAR TO THAT USED IN SECTION 203 (E), SAID THAT "IT WAS SATISFACTORY SERVICE IN THE GRADE THAT ENTITLED THE OFFICER TO ADVANCEMENT, WHETHER THAT GRADE WAS PERMANENT OR TEMPORARY," IT WENT ON TO DETERMINE THAT GRAYSON HAD SERVED IN A TEMPORARY GRADE AND THUS WAS WITHIN THE LITERAL TERMS OF THE STATUTE.

IT WILL BE NOTED THAT WHILE SUBSECTIONS 203 (A) AND (E) OF THE 1948 ACT DIRECTED ADVANCEMENT ON THE RETIRED LIST TO THE "HIGHEST TEMPORARY" GRADE SATISFACTORILY HELD DURING THE PERIOD THERE SPECIFIED, SECTION 303 OF THAT ACT, 10 U.S.C. 1333, DIRECTED COMPUTATION OF RETIRED PAY OF PERSONS GRANTED SUCH PAY UNDER TITLE III OF THE ACT ON THE BASIS OF THE BASE AND LONGEVITY ACTIVE DUTY PAY OF THE "HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM" DURING HIS PERIOD OF SERVICE. IT THUS SEEMS CLEAR THAT THE CONGRESS WAS FULLY COGNIZANT OF THE FACT THAT A MEMBER COULD SERVE ON ACTIVE DUTY IN A HIGHER PERMANENT GRADE, AS WELL AS IN A HIGHER TEMPORARY GRADE, THAN THAT HELD BY HIM AT THE TIME HE BECOMES ENTITLED TO RETIRED PAY, THAT SUCH PERMANENT GRADE MIGHT BE HIGHER THAN THE TEMPORARY GRADE, IF ANY, AND THAT LEGISLATION WAS BEING ENACTED WHICH DEALT WITH BOTH SITUATIONS. IN SUCH CIRCUMSTANCES, WE ARE NOT JUSTIFIED IN CONCLUDING THAT THE WORDS "OR PERMANENT" WERE OMITTED THROUGH INADVERTENCE AFTER THE WORD "TEMPORARY" IN SUBSECTIONS 203 (A) AND (E), OR THAT THE CONGRESS INTENDED THAT A MEMBER BE ADVANCED ON THE RETIRED LIST TO A HIGHER PERMANENT GRADE THAN THAT HELD AT THE TIME OF RETIREMENT, IF SUCH GRADE WERE HIGHER THAN THE TEMPORARY GRADE OR IF HE HELD NO TEMPORARY GRADE.

SINCE THE DECISION IN THE GRAYSON CASE CONTAINS NO INDICATION THAT THE COURT WAS AWARE OF THE LANGUAGE USED IN SECTION 303 OR GAVE ANY CONSIDERATION TO ITS SIGNIFICANCE AS A GUIDE TO THE LEGISLATIVE INTENT, WE DO NOT VIEW THAT CASE AS FURNISHING SUFFICIENT AUTHORITY FOR ADVANCING THE RETIRED ENLISTED MAN HERE INVOLVED ON THE RETIRED LIST TO HIS PERMANENT RESERVE COMMISSIONED GRADE OF CAPTAIN. THE VOUCHER TRANSMITTED WITH YOUR LETTER WILL BE RETAINED HERE.