B-163336, APR. 16, 1968

B-163336, APR. 16, 1968

TO MR. EARL F. JONES:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 16, 1967, AND JANUARY 12, 1968, WITH ENCLOSURES, REQUESTING REVIEW OF THE SETTLEMENT DATED DECEMBER 13, 1967, IN WHICH YOUR CLAIM FOR INCREASED RETIRED PAY BASED UPON THE GRADE OF CHIEF WARRANT OFFICER W-3, WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE.

A STATEMENT OF YOUR NAVAL SERVICE SHOWS THAT YOU ENLISTED IN THE REGULAR NAVY ON OCTOBER 3, 1939. IT IS INDICATED THAT ON JUNE 15, 1945, YOU BECAME A TEMPORARY WARRANT OFFICER SERVING IN THAT GRADE UNTIL APRIL 16, 1946, WHEN YOU WERE DISCHARGED FROM YOUR ENLISTED STATUS AND YOUR TEMPORARY WARRANT OFFICER APPOINTMENT WAS TERMINATED. YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE ON JANUARY 25, 1947, AND ON APRIL 13, 1947, YOU BECAME A WARRANT OFFICER. DURING THE PERIOD JANUARY 25, 1947, TO MARCH 30, 1949, INCLUSIVE, YOU WERE IN AN INACTIVE DUTY STATUS IN THE NAVAL RESERVE EXCEPT FOR TWO 14-DAY PERIODS OF ACTIVE DUTY FOR TRAINING (AUGUST 30 TO SEPTEMBER 12, 1947, AND JULY 17 TO 30, 1948).

YOU WERE PLACED ON EXTENDED ACTIVE DUTY EFFECTIVE MARCH 31, 1949, AS A WARRANT OFFICER, U.S. NAVAL RESERVE, AND YOU BECAME A CHIEF WARRANT OFFICER ON JUNE 15, 1951. DURING THE PERIOD JULY 15 TO DECEMBER 30, 1957, INCLUSIVE, YOU SERVED ON ACTIVE DUTY AS A CHIEF WARRANT OFFICER, W-3. THE LATTER DATE YOU WERE HONORABLY DISCHARGED AND YOUR CHIEF WARRANT OFFICER STATUS IN THE NAVAL RESERVE WAS TERMINATED TO PERMIT YOU TO REENLIST THE NEXT DAY, DECEMBER 31, 1957, IN THE NAVAL RESERVE. YOU THEN SERVED ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE NAVAL RESERVE THROUGH AUGUST 31, 1964. THE STATEMENT OF YOUR NAVAL SERVICE ALSO SHOWS IT HAS BEEN DETERMINED ADMINISTRATIVELY THAT (1) THE HIGHEST TEMPORARY RANK IN WHICH YOU SERVED SATISFACTORILY WAS WARRANT OFFICER W-1 AND (2) THE HIGHEST PERMANENT RANK IN WHICH YOU SERVED SATISFACTORILY WAS THAT OF CHIEF WARRANT OFFICER W-3.

YOU WERE ADVISED BY THE CHIEF OF NAVAL PERSONNEL IN ORDERS DATED AUGUST 21, 1964, THAT YOUR REQUEST FOR TRANSFER TO THE NAVAL RESERVE RETIRED LIST HAD BEEN APPROVED BY THE SECRETARY OF THE NAVY AND THAT WHEN DIRECTED BY YOUR COMMANDING OFFICER YOU WERE TO PROCEED AND REPORT TO THE NEAREST SEPARATION ACTIVITY FOR PROCESSING FOR RELEASE TO INACTIVE DUTY ON AUGUST 31, 1964. PARAGRAPH 4 OF THE ORDERS OF AUGUST 21, 1964, READS AS FOLLOWS:

"4. ON 1 SEPTEMBER 1964 YOU WILL BE TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST WITH THE GRADE OF CHIEF AVIATION ORDNANCE MAN AND WITH THE RETIRED PAY OF THAT GRADE, PURSUANT TO THE PROVISIONS OF REFERENCE (A) (10 U.S.C. 6327). IT HAVING BEEN DETERMINED THAT YOU SERVED SATISFACTORILY IN THE TEMPORARY GRADE OF WARRANT OFFICER W-1, YOU WILL BE ADVANCED TO THE GRADE OF WARRANT OFFICER W-1, EFFECTIVE 1 SEPTEMBER 1964, WITH OFFICER FILE NUMBER 468153, DESIGNATOR 7219, ON THE NAVAL RESERVE RETIRED LIST, AND WITH RETIRED PAY OF THAT GRADE PURSUANT TO REFERENCE (B) (10 U.S.C. 6151).'

THE STATUTORY PROVISIONS GOVERNING YOUR TRANSFER TO THE NAVAL RESERVE RETIRED LIST IN YOUR ENLISTED GRADE AND ADVANCEMENT ON THAT LIST TO HIGHER OFFICER GRADE ARE SUMMARIZED AS FOLLOWS:

(1) SUBSECTION (A) OF 10 U.S.C. 6327 PROVIDES IN PERTINENT PART THAT A MEMBER OF THE NAVAL RESERVE MAY BE TRANSFERRED TO THE RETIRED RESERVE UPON HIS REQUEST IF HE HAS COMPLETED AT LEAST 20 YEARS OF ACTIVE SERVICE IN THE ARMED FORCES OTHER THAN ACTIVE DUTY FOR TRAINING, THE LAST 10 YEARS OF WHICH HAVE BEEN SERVED IN THE 11-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF HIS TRANSFER TO THE RETIRED RESERVE.

(2) SUBSECTION (B) OF 10 U.S.C. 6327 PROVIDES THAT EACH MEMBER WHO IS TRANSFERRED TO THE RETIRED RESERVE UNDER SUBSECTION (A) IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETIRED PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED.

(3) SUBSECTION (A) OF 10 U.S.C. 6151 PROVIDES THAT UNLESS OTHERWISE ENTITLED TO A HIGHER RETIRED GRADE, EACH MEMBER, OTHER THAN A RETIRED MEMBER, OF THE NAVY OR THE MARINE CORPS "SHALL, WHEN RETIRED,BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE NAVY.'

(4) SUBSECTION (B) OF 10 U.S.C. 6151, AS PERTINENT HERE PROVIDES THAT EACH MEMBER WHO IS SO ADVANCED ON THE RETIRED LIST "IS, UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED PAY, ENTITLED TO RETIRED PAY AT THE RATE OF 2- 1/2 PERCENT OF THE BASIC PAY OF THE GRADE TO WHICH ADVANCED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405.'

IN BOTH OF YOUR LETTERS YOU HAVE REFERRED TO AND STRESSED THE DECISION RENDERED BY THE COURT OF CLAIMS ON JULY 20, 1967, IN THE CASE OF HARRY RUSSELL MILLER V UNITED STATES, CT. CL. NO. 424-64. APPARENTLY YOU FEEL THAT THE MILLER DECISION FURNISHES A LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE GRADE OF CHIEF WARRANT OFFICER W-3.

THE PLAINTIFF MILLER WAS RETIRED FROM THE COAST GUARD ON FEBRUARY 1, 1950, IN HIS HIGHEST COAST GUARD RANK. AS SHOWN IN THE OPINION OF JULY 20, 1967, HE CLAIMED ENTITLEMENT TO INCREASED RETIRED PAY BASED UPON A HIGHER RANK THAT 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 HELD 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.' IT WILL BE OBSERVED THAT UNLIKE THE SPECIFIC PROVISIONS OF 10 U.S.C. 6151 (A) GOVERNING YOUR ADVANCEMENT ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH YOU HAD SERVED SATISFACTORILY "UNDER A TEMPORARY APPOINTMENT," THE LANGUAGE OF THE COAST GUARD STATUTE DOES NOT SPECIFY EITHER A PERMANENT OR TEMPORARY GRADE. CONSEQUENTLY, THE HOLDING IN THE MILLER CASE WOULD HAVE BEEN THE SAME IRRESPECTIVE OF WHETHER MILLER'S HIGHEST HELD GRADE WAS TEMPORARY OR PERMANENT. IN THAT CONNECTION, SEE DECISION OF DECEMBER 4, 1951, IN THE CASE OF WARREN F. DRAPER V UNITED STATES, 121 CT. CL. 625 (1951), IN WHICH THE COURT STATED:

"A STUDY OF THE VARIOUS STATUTES WHICH HAVE BEEN PASSED BY CONGRESS DEALING WITH RANKS AND GRADES OF MILITARY PERSONNEL FOR RETIREMENT PURPOSES, REVEALS THAT IN GENERAL WHENEVER CONGRESS USES THE EXPRESSION - HIGHEST GRADE- WITHOUT ANY QUALIFICATION, CONGRESS HAS INTENDED THAT THE PHRASE BE UNDERSTOOD WITHOUT QUALIFICATION, AND THAT WHERE A LIMITATION HAS BEEN INTENDED IT HAS BEEN EXPRESSED.'

IT SEEMS APPARENT THAT UNDER THE RULE OF THE DRAPER CASE, MILLER, WHEN RETIRED, BECAME ENTITLED (UNDER THE PROVISIONS OF 14 U.S.C. 362) TO THE HIGHEST GRADE HE HAD HELD WITHOUT REGARD TO WHETHER SUCH GRADE HAD BEEN TEMPORARY OR PERMANENT. THEREFORE, THE LONG DISCUSSION IN THE MILLER CASE RELATING TO THE PROVISIONS OF THE TEMPORARY PROMOTION LAW OF JULY 24, 1941, CH. 320, 55 STAT. 603, WAS UNNECESSARY.

ON THE OTHER HAND, SINCE THE PROVISIONS OF 10 U.S.C. 6151 (A) EXPRESSLY APPLY ONLY TO THE HIGHEST GRADE HELD "UNDER A TEMPORARY APPOINTMENT" WE MAY NOT CONCLUDE THAT CONGRESS INTENDED ANY ADVANCEMENT ON THE RETIRED LIST UNDER THOSE STATUTORY PROVISIONS ON THE BASIS OF ANY GRADE OTHER THAN THE HIGHEST TEMPORARY GRADE IN WHICH SERVICE HAD BEEN PERFORMED SATISFACTORILY. NO INFERENCE CAN BE DRAWN FROM THE CONCLUSION REACHED IN THE MILLER CASE OR IN THE COURT'S COMMENTS THEREIN WHICH MAY BE VIEWED AS CONSTITUTING A JUDICIAL CONSTRUCTION OR INTERPRETATION OF THE PROVISIONS OF 10 U.S.C. 6151, OR ANY OTHER PROVISION OF LAW OTHER THAN THOSE THERE IN ISSUE, NAMELY, 14 U.S.C. 362.

SINCE THE RECORD SHOWS THAT YOU HAVE BEEN ADVANCED ON THE RETIRED LIST TO THE HIGHER TEMPORARY GRADE OF WARRANT OFFICER W-1 IN THE PRECISE MANNER SPECIFIED IN 10 U.S.C. 6151 (A), YOUR CLAIM FOR ADDITIONAL RETIRED PAY BASED ON THE GRADE OF CHIEF WARRANT OFFICER W-3 IS DENIED AND THE ACTION TAKEN IN THE SETTLEMENT OF DECEMBER 13, 1967, IS SUSTAINED.

THE RECORD INDICATES THAT COMMENCING WITH THE EFFECTIVE DATE OF YOUR RETIREMENT, SEPTEMBER 1, 1964, YOU HAVE BEEN PAID RETIRED PAY AS A WARRANT OFFICER W-1 COMPUTED ON THE BASIS OF THE RATES OF ACTIVE DUTY BASIC PAY PRESCRIBED IN PUBLIC LAW 88-132, OCTOBER 2, 1963, 77 STAT. 211, THAT IS, ON THE RATES OF BASIC PAY WHICH WERE IN EFFECT ON AUGUST 31, 1964. HOWEVER, SINCE YOU MET THE QUALIFICATIONS FOR REITREMENT PRESCRIBED IN 10 U.S.C. 327 (A) (2) PRIOR TO THE MONTH OF AUGUST 1964, YOU ARE NOT SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A, 1964 ED. (NOW 5 U.S.C. 301, PUBLIC LAW 89-554, SEPTEMBER 6, 1966, 80 STAT. 557). SEE 44 COMP. GEN. 373, 377 AND 383.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED THIS DATE TO THE CLAIMS DIVISION OF THIS OFFICE TO ISSUE A SETTLEMENT IN YOUR FAVOR, IF OTHERWISE CORRECT (AFTER FURTHER NECESSARY DEVELOPMENT), FOR THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE GRADE OF CHIEF WARRANT OFFICER W-1 BASED ON THE RATES OF ACTIVE DUTY BASIC PAY THAT BECAME EFFECTIVE ON SEPTEMBER 1, 1964, AS PRESCRIBED IN PUBLIC LAW 88-422, AUGUST 12,1964, 78 STAT. 395, AND THE AMOUNT OF RETIRED PAY YOU HAVE RECEIVED, LESS THE NECESSARY ADJUSTMENT IN THE DEDUCTIONS REQUIRED BY THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (CHAPTER 73, TITLE 10, U.S. CODE).