B-154379, AUGUST 12, 1964, 44 COMP. GEN. 78

B-154379, AUGUST 12, 1964, 44 COMP. GEN. 78

PAY - RETIRED - ADVANCEMENT ON RETIRED LIST - ENLISTED MEMBER ADVANCED TO OFFICER GRADE - ENLISTED PAY GREATER AN ENLISTED MEMBER OF THE UNITED STATES COAST GUARD ADVANCED PURSUANT TO 14 U.S.C. 362 TO THE GRADE OF ENSIGN--- THE HIGHEST TEMPORARY GRADE HE SATISFACTORILY HELD--- UPON RETIREMENT UNDER AUTHORITY OF 14 U.S.C. 355 IN THE PERMANENT GRADE OF E-7, PRIOR TO WHICH HE HAD SERVED UNDER TEMPORARY APPOINTMENTS EFFECTED UNDER THE ACT OF JULY 24, 1941 AS CHIEF MACHINIST, W -2, AS WELL AS ENSIGN, IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE GREATER PAY OF A CHIEF WARRANT OFFICER, W-2, NOTWITHSTANDING THE 1941 ACT SAVED TO THE MEMBER WHILE SERVING ON ACTIVE DUTY AS ENSIGN THE PAY AND ALLOWANCES OF A CHIEF WARRANT OFFICER, W-2, THE ACT RESTRICTING PAYMENT OF RETIRED PAY TO THE HIGHEST TEMPORARY GRADE HELD PRIOR TO RETIREMENT, AND THE MEMBER HAVING BEEN RETIRED IN THE TEMPORARY GRADE OF ENSIGN IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE GREATER PAY OF THE LOWER INTERMEDIATE TEMPORARY GRADE IN WHICH HE SERVED.

TO MISS C. C. GORDON, UNITED STATES COAST GUARD, AUGUST 12, 1964:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1964, WHICH WAS FORWARDED TO THIS OFFICE BY FIRST INDORSEMENT OF THE COMMANDANT, UNITED STATES COAST GUARD, DATED JUNE 4, 1964, REQUESTING DECISION AS TO WHETHER ENSIGN LOUIS ZEVANOVE, USCG, RETIRED, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF A CHIEF WARRANT OFFICER, W-2, WHICH, FOR A MEMBER WITH HIS CUMULATIVE YEARS OF SERVICE, IS GREATER THAN THE PAY OF AN ENSIGN.

IT IS REPORTED THAT LOUIS ZEVANOVE, AN ENLISTED MAN SERVING IN THE PERMANENT GRADE OF CHIEF ENGINE MEN, E-7, WAS RETIRED DECEMBER 1, 1950, UNDER AUTHORITY OF 14 U.S.C. 355 WITH OVER 20 YEARS OF SERVICE. HE WAS RETIRED IN THE GRADE OF ENSIGN, THE HIGHEST TEMPORARY GRADE IN WHICH HE HAD SERVED, IN ACCORDANCE WITH 14 U.S.C. 362. YOU STATE THAT HE SERVED ON ACTIVE DUTY AFTER RETIREMENT FROM DECEMBER 1, 1950, TO FEBRUARY 16, 1961 (1951), WHEN HE WAS RELEASED AFTER COMPLETING 27 YEARS, 8 MONTHS AND 10 DAYS OF ACTIVE SERVICE IN THE COAST GUARD. HE SERVED UNDER TEMPORARY APPOINTMENTS AS FOLLOWS: MACHINIST, W-1, FROM MAY 29, 1943, TO SEPTEMBER 3, 1944; CHIEF MACHINIST, W-2, FROM SEPTEMBER 4, 1944, TO APRIL 13, 1945; AND ENSIGN, O-1, FROM APRIL 14, 1945, TO JUNE 23, 1946. ON JUNE 24, 1946, HE REVERTED TO HIS PERMANENT ENLISTED STATUS AND SERVED IN THE GRADE OF CHIEF MACHINIST'S MATE (CHIEF ENGINE MAN), E-7, FROM THAT DATE UNTIL FEBRUARY 16, 1951. PRESUMABLY HIS SERVICE IN EACH OF THE TEMPORARY GRADES WAS SATISFACTORY. IT IS REPORTED THAT WHILE SERVING ON ACTIVE DUTY IN THE GRADE OF ENSIGN HE RECEIVED THE ACTIVE DUTY PAY OF A CHIEF WARRANT OFFICER, W-2, WHICH WAS GREATER THAN THAT OF AN ENSIGN. ACCORDINGLY, AS AN ENSIGN ON THE RETIRED LIST HE NOW CLAIMS ENTITLEMENT TO THE GREATER RETIRED PAY OF A CHIEF WARRANT OFFICER, W-2, BASED ON THE PROVISIONS OF 14 U.S.C. 424, WHICH ARE, IN PERTINENT PART, AS FOLLOWS:

THE PROVISIONS OF ANY SECTION OF THIS TITLE SHALL NOT BE CONSTRUED SO AS TO PREVENT ANY OFFICER OR ENLISTED MAN FROM BEING PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RATING AND THE HIGHEST RETIRED PAY TO WHICH SUCH OFFICER OR ENLISTED MAN MAY BE ENTITLED UNDER THE PROVISIONS OF ANY OTHER SECTION OF THIS TITLE OR UNDER THE PROVISIONS OF ANY OTHER LAW. * *

ENSIGN ZEVANOVE'S TEMPORARY APPOINTMENTS IN 1943, 1944 AND 1945 PRESUMABLY WERE EFFECTED UNDER THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603, AS AMENDED BY THE ACT OF NOVEMBER 30, 1942, CH. 643, 56 STAT. 1023, SECTION 7 (A), 34 U.S.C. 350F (1952 ED.), OF WHICH PROVIDES IN PART THAT NO PERSON TEMPORARILY APPOINTED THEREUNDER SHALL SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT "NOR SHALL HE SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER RANK OR GRADE * * *.' ACCORDINGLY, WHILE HE SERVED ON ACTIVE DUTY IN THE TEMPORARY GRADE OF ENSIGN HE CONTINUED TO RECEIVE THE "SAVED PAY" OF A CHIEF WARRANT OFFICER. THE 1941 ACT, AS AMENDED, SAVED TO HIM ONLY THE AMOUNT OF PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AS A CHIEF WARRANT OFFICER AT THE TIME OF HIS TEMPORARY APPOINTMENT TO THE GRADE OF ENSIGN. SEE 35 COMP. GEN. 276. THE 1941 ACT, AS FURTHER AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, 34 U.S.C. 350I (1952 ED.), AUTHORIZED PAYMENT OF RETIRED PAY ON THE BASIS OF THE HIGHEST TEMPORARY GRADE SATISFACTORILY HELD ON OR BEFORE JUNE 30, 1946. MEMBER RETIRED UNDER ANY PROVISION OF THAT TITLE "SHALL BE RETIRED MEMBER RETIRED UNDER ANY PROVISION OF THAT TITLE "SHALL BE RETIRED WITH THE PERMANENT GRADE OR RATING HELD AT THE TIME OF RETIREMENT, UNLESS ENTITLED TO RETIRE WITH A HIGHER GRADE OR RATING UNDER ANY PROVISION OF THIS TITLE OR ANY OTHER LAW.' SINCE ENSIGN ZEVANOVE HELD THE PERMANENT RATING OF CHIEF ENGINE MAN, GRADE E-7, AT THE TIME OF RETIREMENT, HE WAS ENTITLED TO BE RETIRED IN THAT GRADE UNDER SECTION 421 UNLESS ENTITLED UNDER SOME OTHER PROVISION TO A HIGHER GRADE.

SECTION 362 OF TITLE 14 PROVIDES AS FOLLOWS:

ANY ENLISTED MAN WHO IS RETIRED UNDER ANY PROVISION OF SECTION 353, 354, 355, OR 357 OF THIS CHAPTER SHALL BE RETIRED FROM ACTIVE SERVICE WITH HIGHEST GRADE OR RATING HELD BY HIM WHILE ON ACTIVE DUTY IN WHICH, AS DETERMINED BY THE SECRETARY, HIS PERFORMANCE OF DUTY WAS SATISFACTORY, BUT NOT LOWER THAN HIS PERMANENT GRADE OR RATING, WITH RETIRED PAY OF THE GRADE OR RATING WITH WHICH RETIRED.

SINCE ENSIGN ZEVANOVE WAS RETIRED IN THE TEMPORARY GRADE OF ENSIGN UNDER SECTION 362, IT IS ASSUMED THAT HIS SERVICE IN THAT GRADE WAS DETERMINED BY THE SECRETARY OF THE TREASURY TO HAVE BEEN SATISFACTORY. WE HAVE FOUND NO OTHER PROVISION OF LAW WHICH WOULD AUTHORIZE RETIREMENT IN AN INTERMEDIATE TEMPORARY GRADE HELD PRIOR TO RETIREMENT WHICH IS LOWER THAN THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY. COMPARE 34 COMP. GEN. 161. ALTHOUGH CERTAIN WARRANT OFFICERS RETIRED IN TEMPORARY COMMISSIONED GRADES ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE HIGHER RATES OF PAY PROVIDED FOR A CHIEF WARRANT OFFICER UNDER 14 U.S.C. 313A, WE HAVE FOUND NO PROVISION OF LAW AUTHORIZING COMPUTATION OF ENSIGN ZEVANOVE'S RETIRED PAY ON THE BASIS OF THE PAY OF AN INTERMEDIATE TEMPORARY GRADE. ACCORDINGLY, YOU ARE ADVISED THAT HE IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF PAY PROVIDED BY LAW FOR A CHIEF WARRANT OFFICER.