B-154574, AUGUST 20, 1964, 44 COMP. GEN. 93

B-154574, AUGUST 20, 1964, 44 COMP. GEN. 93

PAY - ACTIVE DUTY - GRADE OR RANK - REAR ADMIRALS A NAVAL OFFICER WHO AT THE TIME HE IS PLACED ON THE RETIRED LIST AND RETAINED ON ACTIVE DUTY HAS SERVED MORE THAN 2 YEARS IN THE GRADE OF REAR ADMIRAL OF THE LOWER HALF MAY NOT HAVE THE 2 YEARS OF ACTIVE DUTY PERFORMED PRIOR TO RETIREMENT REGARDED AS QUALIFYING SERVICE FOR ACTIVE DUTY PAY OR SUBSEQUENT RETIRED PAY OF THE UPPER HALF UNDER 37 U.S.C. 202 (E) AND 10 U.S.C. 6487, WHICH REQUIRE THAT THE 2 YEARS OF QUALIFYING SERVICE BE PERFORMED AFTER RATHER THAN PRIOR TO RETIREMENT AND, THEREFORE, IF THE OFFICER IS RETAINED ON ACTIVE DUTY FOR 2 YEARS AFTER PLACEMENT ON THE RETIRED LIST HE WILL BE ENTITLED TO THE PAY AND ALLOWANCES AND SUBSEQUENT RETIRED PAY FOR A REAR ADMIRAL UPPER HALF.

TO THE SECRETARY OF THE NAVY, AUGUST 20, 1964:

REFERENCE IS MADE TO LETTER OF JUNE 25, 1964, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION ON CERTAIN QUESTIONS THAT HAVE ARISEN AS TO THE FUTURE PAY STATUS OF REAR ADMIRAL GEORGE G. BURKLEY, MEDICAL CORPS, U.S. NAVY. THE REQUEST FOR DECISION HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. SS-N-780.

IT IS STATED THAT REAR ADMIRAL BURKLEY IS NOW SERVING AS A REAR ADMIRAL UNDER A TEMPORARY APPOINTMENT (WHILE SERVING AS PHYSICIAN TO THE PRESIDENT) BY THE PRESIDENT, PURSUANT TO ARTICLE II, SECTION 2, CLAUSE 2 OF THE CONSTITUTION, WITH A DATE OF RANK FROM AUGUST 10, 1962. HE HOLDS THE RANK AND RECEIVES THE BASIC PAY OF A REAR ADMIRAL OF THE LOWER HALF. HIS POSITION ON THE LINEAL LIST OF THE NAVY REMAINS THAT OF A CAPTAIN. AUGUST 29, 1964, HE WILL ATTAIN AGE 62 AND WILL THEN BE SUBJECT TO RETIREMENT PURSUANT TO 10 U.S.C. 6390, WHICH PROVIDES THAT EACH OFFICER RETIRED THEREUNDER IS ENTITLED TO THE HIGHEST GRADE, PERMANENT OR TEMPORARY, HELD BY HIM ON ACTIVE DUTY.

CONSIDERATION IS BEING GIVEN TO THE RETENTION OF REAR ADMIRAL BURKLEY ON ACTIVE DUTY AFTER HIS PROJECTED RETIREMENT DATE OF SEPTEMBER 1, 1964, AT WHICH TIME HE WILL HAVE SERVED ON ACTIVE DUTY FOR MORE THAN 2 YEARS IN THE GRADE OF REAR ADMIRAL DURING THE PRESENT NATIONAL EMERGENCY. ASSUMING THAT HIS SERVICE IN THAT GRADE WILL BE DETERMINED TO HAVE BEEN SATISFACTORY YOU ASK (1) WHETHER IMMEDIATELY UPON HIS RETIREMENT AND RETENTION ON ACTIVE DUTY HE WILL BECOME ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF, WHILE ON ACTIVE DUTY, UNDER 37 U.S.C. 202 (E), OR WHETHER HE WOULD BE REQUIRED TO SERVE SATISFACTORILY ON ACTIVE DUTY AFTER RETIREMENT FOR AN ADDITIONAL PERIOD OF 2 YEARS IN ORDER TO QUALIFY FOR THE HIGHER RATE OF BASIC PAY; AND (2) WHAT ACTIVE SERVICE AFTER RETIREMENT WILL BE REQUIRED TO QUALIFY HIM TO RECEIVE RETIRED PAY, UPON HIS RELEASE FROM ACTIVE DUTY, COMPUTED ON THE BASIC PAY OF A REAR ADMIRAL OF THE UPPER HALF UNDER 10 U.S.C. 6487; THAT IS, WHETHER THE 2 YEARS OF ACTIVE DUTY PERFORMED BY HIM PRIOR TO RETIREMENT IN THE GRADE OF REAR ADMIRAL (WITH PAY OF THE LOWER HALF) WILL SATISFY THE STATUTORY REQUIREMENT OR WHETHER IT WILL BE NECESSARY FOR HIM TO SERVE AN ADDITIONAL 2 YEARS ON ACTIVE DUTY AFTER RETIREMENT, DURING A PERIOD OF WAR OR NATIONAL EMERGENCY, TO QUALIFY FOR THE HIGHER RETIRED PAY.

THERE IS ONLY ONE COMMISSIONED GRADE OF REAR ADMIRAL IN THE NAVY. U.S.C. 5501. SEE ALSO 10 U.S.C. 5442, 5447, 5449, 5761, 5767, 5772, 5781. FOR PAY PURPOSES, HOWEVER, REAR ADMIRALS ON THE ACTIVE LIST OF THE NAVY ARE DIVIDED INTO TWO PAY GRADES, REAR ADMIRALS (LOWER HALF) BEING ASSIGNED PAY GRADE O-7 AND REAR ADMIRALS (UPPER HALF) BEING ASSIGNED PAY GRADE O-8. 37 U.S.C. 201 (A). THE DETERMINATION OF WHEN REAR ADMIRALS BECOME ENTITLED TO THE PAY OF THE UPPER HALF IS NOW GOVERNED BY THE PROVISIONS OF 37 U.S.C. 202. SUBSECTION (E) OF THAT SECTION PROVIDES:

AN OFFICER OF THE NAVY OR THE COAST GUARD HOLDING A PERMANENT APPOINTMENT IN THE GRADE OF REAR ADMIRAL ON THE RETIRED LIST WHO IS ENTITLED TO THE BASIC PAY OF A REAR ADMIRAL OF THE LOWER HALF AND WHO, IN TIME OF WAR OR NATIONAL EMERGENCY, HAS SERVED SATISFACTORILY ON ACTIVE DUTY FOR TWO YEARS IN THAT GRADE OR IN A HIGHER GRADE IS ENTITLED WHEN ON ACTIVE DUTY TO THE BASIC PAY OF THE UPPER HALF.

SECTION 6487 OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

EACH OFFICER HOLDING A PERMANENT APPOINTMENT IN THE GRADE OF REAR ADMIRAL ON THE RETIRED LIST WHO IS ENTITLED TO THE PAY OF THE LOWER HALF OF THAT GRADE, AND WHO, IN TIME OF WAR OR NATIONAL EMERGENCY, SERVES SATISFACTORILY ON ACTIVE DUTY FOR TWO YEARS IN THAT GRADE OR IN A HIGHER GRADE, IS THEREAFTER ENTITLED, WHEN ON INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENT OF THE BASIC PAY OF A REAR ADMIRAL IN THE UPPER HALF OF THAT GRADE.

SUBSECTION 202 (E) OF TITLE 37, U.S. CODE, WAS DERIVED FROM 10 U.S.C.5507 (E) (SEE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 317), WHICH IN TURN WAS A CODIFICATION OF THAT PART OF THE ACT OF APRIL 8, 1946, CH. 120, 60 STAT. 86, 34 U.S.C. 428 (1952 ED.), RELATING TO ACTIVE DUTY PAY OF CERTAIN RETIRED REAR ADMIRALS. SECTION 6487 OF TITLE 10, U.S. CODE, IS A CODIFICATION OF THAT PART OF THE ACT OF APRIL 8, 1946, RELATING TO RETIRED PAY. THE ACT OF APRIL 8, 1946, READ AS FOLLOWS:

THAT 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 2 YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE, SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO THE 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 ACT PRIOR TO THE DATE OF ITS APPROVAL.

AT THE TIME THE 1946 ACT WAS ENACTED, A REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY RECEIVED THE PAY OF THE LOWER HALF OR THE UPPER HALF DEPENDING UPON HIS NUMERICAL STANDING ON THE LIST OF REAR ADMIRALS OF THE LINE ON THE ACTIVE LIST, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN THAT GRADE. SEE 23 COMP. GEN. 507. HOWEVER, WHILE OFFICERS ON THE RETIRED LIST ARE IN THE NAVY, THEY ARE NOT ON THE ACTIVE LIST, EVEN WHEN PERFORMING ACTIVE DUTY. SEE DECISION OF OCTOBER 11, 1941, B-13556, AND RUDD V. UNITED STATES, 71 CT.CL. 432 (1931). A REAR ADMIRAL BECAME ELIGIBLE TO RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF "BECAUSE HE WAS AN OFFICER ON THE ACTIVE LIST AND BECAUSE OF A RIGHT GRANTED ONLY TO OFFICERS ON THE ACTIVE LIST AND NOT TO OFFICERS ON THE RETIRED LIST SERVING ON ACTIVE DUTY.' SPEARS V. UNITED STATES, 106 CT.CL. 812 (1946). SEE 23 COMP. GEN. 507; 26 COMP. GEN. 171, 175; BYRD V. UNITED STATES, 103 CT.CL. 285 (1945).

THE PURPOSE OF THE ACT OF APRIL 8, 1946, WAS TO CORRECT A "LONG STANDING INJUSTICE" TO "MEMBERS OF THE ONLY GROUP OF RETIRED OFFICERS WITH RETIREMENT PAY LESS THAN THE MAXIMUM FOR THEIR PERMANENT RANK WHO CANNOT, UNDER EXISTING LAW AS INTERPRETED BY THE COMPTROLLER GENERAL, OBTAIN AN INCREASE IN RETIRED PAY BY VIRTUE OF THEIR EMPLOYMENT ON ACTIVE DUTY IN THEIR PERMANENT RANK. THIS IS FOR THE REASON THAT * * * OFFICERS OF THE RANK OF REAR ADMIRAL * * * (ON) THE RETIRED LIST RECEIVING ACTIVE DUTY PAY OF THE LOWER HALF CANNOT BECOME ENTITLED TO PAY OF THE UPPER HALF NO MATTER HOW MANY YEARS THEY SERVE ON ACTIVE DUTY. * * * AS THE LAW STANDS TODAY IT IS IMPOSSIBLE FOR A REAR ADMIRAL WHO IS RETIRED WITH THE PAY OF THE LOWER HALF OF REAR ADMIRALS TO ATTAIN EQUALITY IN PAY WITH HIS RUNNING MATE ON THE ACTIVE LIST.' SEE H.REPT. NO. 1440, 79TH CONGRESS, 1ST SESS. 2, ON S. 473, 79TH CONGRESS, WHICH BECAME THE 1946 ACT.

THE PRESENT TENSE OF THE VERB "SERVES" IN 10 U.S.C. 6487 LENDS ITSELF MOST READILY TO THE INTERPRETATION THAT THE ACTIVE DUTY INVOLVED MUST BE PERFORMED AFTER RETIREMENT. WHILE THE PAST TENSE IS USED IN 37 U.S.C. 202 (E), THE USE THERE OF THE WORD "SERVED" DOES NOT NECESSARILY REQUIRE A CONTRARY CONCLUSION. WHILE BOTH TENSES OF THE VERB WERE USED IN THE 1946 ACT, WHEN IT IS REMEMBERED THAT SUCH LEGISLATION, ALTHOUGH GENERAL IN SCOPE, WAS PROPOSED FOR THE PURPOSE OF BENEFITING POSSIBLY 40 REAR ADMIRALS WHO HAD SERVED THE REQUIRED 2 YEARS OF ACTIVE DUTY PRIOR TO THAT TIME, IT WOULD SEEM THAT THE PAST TENSE WAS USED TO INCLUDE SUCH DUTY. NEAR AS CAN BE DETERMINED FROM THE LEGISLATIVE HISTORY OF THAT ACT, ALL SUCH ACTIVE DUTY WAS PERFORMED BY THE PERSONS CONCERNED AFTER RETIREMENT.

AS ORIGINALLY INTRODUCED AND PASSED BY THE SENATE, THE BILL WHICH BECAME THE 1946 ACT, S. 473, 79TH CONGRESS, APPLIED ONLY TO A RETIRED REAR ADMIRAL WHO SUBSEQUENT TO RETIREMENT PERFORMED ACTIVE DUTY "OUTSIDE THE UNITED STATES IN TIME OF WAR OR NATIONAL EMERGENCY.' THE RETIRED REAR ADMIRAL WOULD BE PAIRED WITH A LINE OFFICER ON THE ACTIVE LIST OF THE RANK OF REAR ADMIRAL AND WOULD THEN BECOME ENTITLED TO THE PAY OF A REAR ADMIRAL, UPPER HALF, ON THE DATE THE OFFICER WITH WHOM HE WAS TO BE PAIRED BECAME ENTITLED TO SUCH PAY. IN SELECTING HIS RUNNING MATE, ALL OF THE OFFICER'S RETIRED SERVICE IN THE RANK OF REAR ADMIRAL,"INCLUDING ANY SUCH SERVICE PRIOR TO RETIREMENT," WAS CREDITABLE. THE HOUSE COMMITTEE REFUSED TO ACCEPT THE SENATE VERSION OF THE BILL PRINCIPALLY BECAUSE IT WOULD HAVE APPLIED TO ONLY ONE RETIRED REAR ADMIRAL AND WAS NOT GENERAL LEGISLATION THAT WOULD COVER ALL RETIRED REAR ADMIRALS WHO HAD SERVED ON ACTIVE DUTY DURING WORLD WAR II.

WHILE THE STATEMENT LATER WAS MADE ON THE FLOOR OF THE SENATE THAT THE DISTINCTION BETWEEN THE SENATE BILL AND THE HOUSE AMENDMENT WAS THE ELIMINATION OF THE LANGUAGE REQUIRING SERVICE OVERSEAS (SEE 92 CONG.REC. 2812), EXAMINATION OF THE HOUSE HEARINGS AND THE LANGUAGE USED IN THE AMENDATORY ACT INDICATES A MUCH MORE SWEEPING CHANGE. THE RUNNING MATE IDEA WAS DROPPED AND IN SUGGESTING THAT THE BILL BE REDRAFTED THE CHAIRMAN OF THE HOUSE COMMITTEE STATED:

CAPTAIN NUNN, SUPPOSE YOU TAKE THE BILL AND CONSIDER IT ALONG THE LINES THAT RETIRED OFFICERS OF THE RANK OF ADMIRAL OF THE LOWER HALF, WHO ARE CALLED BACK DURING THE WORLD WAR II, AND WHO SERVED FOR A PERIOD OF TWO OR MORE YEARS, AND WHOSE SERVICES HAVE BEEN SATISFACTORY, ARE AUTOMATICALLY PLACED UPON THE RETIRED LIST WITH THE RANK OF THE UPPER HALF AND PAY OF THE UPPER HALF. THAT WILL DO IT?

CAPTAIN NUNN REPLIED: "YES; IT WILL.'

WHEN THE REVISED VERSION WAS SUBMITTED FOR THE COMMITTEE'S CONSIDERATION, THE CHAIRMAN STATED:

THAT SIMPLY MEANS THAT ALL OF THESE OFFICERS, OR ALL OF THESE ADMIRALS, WHO HAVE BEEN CALLED BACK TO ACTIVE DUTY AND WHO HAVE HAD OVER 2 YEARS' ACTIVE DUTY, AND WHOSE PAY IS IN THE LOWER HALF, WHEN THEY ARE RETIRED THEY GET THE PAY OF THE UPPER HALF. THAT IS ALL IT MEANS * * * HE IS PROMOTED FOR HAVING COME BACK (AFTER RETIREMENT) AND SERVED OVER 2 YEARS DURING THE WAR, FROM THE PAY GRADE OF THE LOWER HALF AND RETIRED ON PAY GRADE OF THE UPPER HALF?

ADMIRAL HOPWOOD REPLIED: "THAT IS WHAT THIS BILL DOES.' SEE PAGES 2188 AND 2189 OF THE HOUSE HEARINGS.

IN SITUATIONS INVOLVING INCREASED PAY BENEFITS FOR RETIRED OFFICERS, THE WORDS "ACTIVE DUTY" SEEM MORE APPROPRIATE FOR USE IN DESCRIBING ACTIVE DUTY AFTER RETIREMENT THAN DUTY PERFORMED PRIOR TO THAT TIME, IN THE ABSENCE OF OTHER LANGUAGE INDICATING A CONTRARY INTENT. DUTY PERFORMED BEFORE RETIREMENT, TO THE EXTENT THAT IT IS OF IMPORTANCE IN DETERMINING PROMOTION RIGHTS, IS CREDITED AND USED AT THAT TIME. IT IS BELIEVED THAT IF THE CONGRESS HAD INTENDED THAT THE SAME SERVICE SHOULD BE CREDITABLE FOR INCREASED PAY PURPOSES AFTER RETIREMENT, LANGUAGE SO PROVIDING WOULD HAVE BEEN INCLUDED IN THE 1946 ACT AS WAS DONE IN S. 473 AS ORIGINALLY INTRODUCED.

IN H.REPT. NO. 1440 IT WAS STATED THAT:

THE PURPOSE OF THE BILL IS TO PROVIDE THAT CERTAIN RETIRED OFFICERS OF THE REGULAR NAVY OR REGULAR COAST GUARD RECALLED TO ACTIVE DUTY IN THE RANK OF REAR ADMIRAL, WHO ARE OR HAVE BEEN, AFTER RECALL, ON ACTIVE DUTY IN SUCH RANK IN TIME OF WAR OR NATIONAL EMERGENCY, SHALL RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF WHILE ON ACTIVE DUTY AND, THEREAFTER, RETIRED PAY WHEN IN INACTIVE STATUS EQUAL TO 75 PERCENT OF SUCH ACTIVE-DUTY PAY.

FROM THE FOREGOING, IT IS CLEAR THAT THE BENEFITS OF THE 1946 ACT ARE APPLICABLE ONLY TO RETIRED OFFICERS WHO ARE RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND IT SEEMS REASONABLY CLEAR THAT THE ACTIVE DUTY "AFTER RECALL" (AFTER RETIREMENT) REFERRED TO WAS THE "ACTIVE DUTY FOR A PERIOD OF 2 YEARS OR MORE" MENTIONED IN THE 1946 ACT. IF ACTIVE DUTY PERFORMED PRIOR TO RETIREMENT WERE CREDITABLE, TWO OFFICERS IN ADMIRAL BURKLEY'S SITUATION, ONLY ONE OF WHOM IS RECALLED TO ACTIVE DUTY, EVEN THOUGH SUCH RECALL IS FOR A PERIOD OF BUT 1 DAY AFTER RETIREMENT, WOULD RECEIVE DIFFERENT RETIRED PAY, ONE THE PAY OF THE UPPER HALF AND THE OTHER THE PAY OF THE LOWER. IT SEEMS DOUBTFUL THAT THE CONGRESS INTENDED SUCH RESULTS.

IN OUR DECISION OF JANUARY 9, 1952, 31 COMP. GEN. 254, WE STATED THAT:

THE OBVIOUS PURPOSE OF THE SAID ACT (OF APRIL 8, 1946) IS TO PERMIT RETIRED REAR ADMIRALS, LOWER HALF, WHO ARE RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND WHO SERVE ON ACTIVE DUTY FOR TWO OR MORE YEARS IN TIME OF WAR, TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES AS REAR ADMIRALS, UPPER HALF, AND, UPON REVERSION TO AN INACTIVE STATUS, TO RECEIVE RETIRED PAY AS REAR ADMIRALS, UPPER HALF. IN VIEW OF THE LEGISLATIVE INTENT OF RESTATING THE LAW WITHOUT SUBSTANTIVE CHANGE, EXPRESSED IN SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, AND SECTION 12 (A) OF PUBLIC LAW 87-649, 76 STAT. 497, WE ARE OF THE SAME OPINION WITH RESPECT TO THE PROVISION OF 37 U.S.C. 202 (E) AND 10 U.S.C. 6487. THAT IS TO SAY, ACTIVE DUTY MUST BE PERFORMED FOR 2 YEARS AFTER RETIREMENT IN ORDER TO RECEIVE THE BENEFITS OF SUCH PROVISIONS OF LAW. IF ADMIRAL BURKLEY IS RETAINED ON ACTIVE DUTY AFTER BEING RETIRED, HE WILL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE UPPER HALF AFTER HE HAS SERVED ON ACTIVE DUTY FOR 2 YEARS FOLLOWING RETIREMENT. AFTER SUCH PERIOD OF ACTIVE DUTY AND UPON HIS SUBSEQUENT RELEASE FROM ACTIVE DUTY HIS RETIRED PAY WOULD BE FOR COMPUTATION ON THE BASIS OF THE PAY OF A REAR ADMIRAL OF THE UPPER HALF.