B-18819, AUGUST 21, 1941, 21 COMP. GEN. 161

B-18819, AUGUST 21, 1941, 21 COMP. GEN. 161

PERSONAL MONEY ALLOWANCE - RETIRED ADMIRALS RECALLED TO ACTIVE DUTY A NAVAL OFFICER WHO WAS RETIRED WITH THE RANK AND PAY OF A REAR ADMIRAL (UPPER HALF) WHILE TEMPORARILY HOLDING THE RANK OF ADMIRAL DURING HIS SERVICE AS CHIEF OF NAVAL OPERATIONS AND DRAWING THE PAY OF REAR ADMIRAL (UPPER HALF) PLUS A PERSONAL MONEY ALLOWANCE AS PROVIDED BY LAW FOR REAR ADMIRALS TEMPORARILY SERVING AS ADMIRAL OR AS CHIEF OF NAVAL OPERATIONS, WHO IS SUBSEQUENTLY COMMISSIONED AN ADMIRAL ON THE RETIRED LIST UNDER AUTHORITY OF THE ACT OF JUNE 22, 1938, IS NOT ENTITLED TO THE SAID PERSONAL MONEY ALLOWANCE UPON RECALL TO ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 21, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 15, 1941, REQUESTING DECISION WHETHER ADMIRAL WILLIAM HARRISON STANDLEY, UNITED STATES NAVY, RETIRED, IS ENTITLED TO A PERSONAL MONEY ALLOWANCE OF $2,200 PER YEAR UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, WHILE HE IS ON ACTIVE DUTY UNDER ORDERS OF FEBRUARY 13, 1941

IT APPEARS THAT ADMIRAL STANDLEY WAS CHIEF OF NAVAL OPERATIONS IMMEDIATELY PRIOR TO JANUARY 1, 1937, THE EFFECTIVE DATE OF HIS RETIREMENT UPON HIS OWN REQUEST AFTER 40 YEARS' SERVICE; THAT BY REASON OF THE TERMS OF SECTION 8 OF THE ACT OF JUNE 10, 1922, HE RECEIVED DURING HIS SERVICE AS CHIEF OF NAVAL OPERATIONS, THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) PLUS A PERSONAL MONEY ALLOWANCE OF $2,200 PER YEAR; THAT HE WAS RETIRED AS A REAR ADMIRAL (UPPER HALF) WITH THE RETIRED PAY OF THAT GRADE; AND THAT UNDER THE TERMS OF THE ACT OF JUNE 22, 1938, 52 STAT. 839, HE RECEIVED A COMMISSION DATED AUGUST 17, 1938, APPOINTING HIM AN ADMIRAL ON THE RETIRED LIST. THE ACT OF JUNE 22, 1938, IS AS FOLLOWS:

* * * THAT ANY OFFICER OF THE NAVY OR MARINE CORPS WHO MAY BE RETIRED WHILE SERVING AS CHIEF OF NAVAL OPERATIONS, AS CHIEF OF A BUREAU OF THE NAVY DEPARTMENT, AS JUDGE ADVOCATE GENERAL OF THE NAVY, OR AS MAJOR GENERAL COMMANDANT OF THE MARINE CORPS, OR WHO HAS SERVED OR SHALL HAVE SERVED TWO AND ONE-HALF YEARS OR MORE AS CHIEF OF NAVAL OPERATIONS, AS CHIEF OF A BUREAU OF THE NAVY DEPARTMENT, AS JUDGE ADVOCATE GENERAL OF THE NAVY, OR AS MAJOR GENERAL COMMANDANT OF THE MARINE CORPS, AND IS RETIRED AFTER COMPLETION OF SUCH SERVICE WHILE SERVING IN A LOWER RANK OR GRADE, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE OR RANK HELD BY HIM AS SUCH CHIEF OF NAVAL OPERATIONS, CHIEF OF BUREAU, JUDGE ADVOCATE GENERAL, OR MAJOR GENERAL COMMANDANT: PROVIDED, THAT THE PRESIDENT IN HIS DISCRETION MAY EXTEND THE PRIVILEGES HEREIN AUTHORIZED TO SUCH OFFICERS AS HAVE HERETOFORE BEEN RETIRED AND WHO SATISFY THE FOREGOING CONDITIONS: PROVIDED FURTHER, THAT NO INCREASE PROVIDED HEREIN IN RETIRED PAY SHALL BE HELD TO HAVE ACCRUED PRIOR TO THE PASSAGE OF THIS ACT.

SINCE THE RETIRED PAY WHICH ADMIRAL STANDLEY WAS RECEIVING PRIOR TO THE DATE OF APPROVAL OF THE FOREGOING ACT WAS BASED ON THE PAY HE RECEIVED AS A REAR ADMIRAL (UPPER HALF) WHILE SERVING AS CHIEF OF NAVAL OPERATIONS, HIS RETIRED PAY WAS NOT AFFECTED BY THE SAID ACT. IN THIS CONNECTION IT IS PERTINENT TO NOTE THE FOLLOWING EXCERPTS FROM THE NAVY DEPARTMENT'S LETTER TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES RECOMMENDING THE PASSAGE OF THE BILL WHICH BECAME THE ACT OF JUNE 22, 1938, WHICH LETTER IS MADE A PART OF THE REPORTS ON THE BILL BY THE COMMITTEES ON NAVAL AFFAIRS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES:

AT THE PRESENT TIME THERE ARE TWO OFFICERS ON THE RETIRED LIST WHO HAVE SERVED AS CHIEF OF NAVAL OPERATIONS. ENACTMENT OF THE PROPOSED BILL WOULD RESULT IN NO INCREASE IN THEIR RETIRED PAY, SINCE THEY RETIRED AS REAR ADMIRALS OF THE UPPER HALF, THE PAY OF WHICH GRADE IS THAT WHICH THEY RECEIVED WHILE SERVING AS CHIEF OF NAVAL OPERATIONS.

SINCE THE PRESENT CHIEF OF NAVAL OPERATIONS IS OF THE PERMANENT GRADE OF REAR ADMIRAL OF THE UPPER HALF, HIS RETIREMENT UNDER THE PROVISIONS OF THE PROPOSED BILL WOULD INVOLVE NO ADDITIONAL COST TO THE GOVERNMENT.

SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 12, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT COMMENCING JULY 1, 1922, THE ANNUAL BASE PAY OF A * * * REAR ADMIRAL (UPPER HALF) OF THE NAVY SHALL BE $8,000. EVERY SUCH OFFICER SHALL BE ENTITLED TO THE SAME MONEY ALLOWANCE FOR SUBSISTENCE AS IS AUTHORIZED IN SECTION 5 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE SIXTH PERIOD AND TO THE SAME MONEY ALLOWANCE FOR RENTAL OF QUARTERS AS IS AUTHORIZED IN SECTION 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE SIXTH PERIOD: PROVIDED, THAT WHEN THE TOTAL OF BASE PAY, SUBSISTENCE, AND RENTAL ALLOWANCES EXCEEDS * * * $9,700 FOR THOSE SERVING IN THE GRADE OF * * * REAR ADMIRAL (UPPER HALF) OF THE NAVY, THE AMOUNT OF THE ALLOWANCES TO WHICH SUCH OFFICER IS ENTITLED SHALL BE REDUCED BY THE AMOUNT OF THE EXCESS ABOVE * * * $9,700 * * * REAR ADMIRALS OF THE NAVY SERVING IN HIGHER GRADES SHALL BE ENTITLED, WHILE SO SERVING, TO THE PAY AND ALLOWANCES OF A REAR ADMIRAL (UPPER HALF) AND TO A PERSONAL MONEY ALLOWANCE PER YEAR AS FOLLOWS: WHEN SERVING IN THE GRADE OF VICE ADMIRAL, $500; WHEN SERVING IN THE GRADE OF ADMIRAL OR AS CHIEF OF NAVAL OPERATIONS, $2,200. AS ADMIRAL STANDLEY IS NOT NOW SERVING AS CHIEF OF NAVAL OPERATIONS HIS CLAIM FOR THE ANNUAL MONEY ALLOWANCE OF $2,200 MUST BE BASED ON THE CONTENTION THAT HE IS A "REAR ADMIRAL OF THE NAVY * * * SERVING IN THE GRADE OF ADMIRAL.'

THE ACT OF AUGUST 29, 1916, 39 STAT. 558, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER THE CHIEF OF NAVAL OPERATIONS, WHILE SO SERVING AS SUCH CHIEF OF NAVAL OPERATIONS, SHALL HAVE THE RANK AND TITLE OF ADMIRAL * * * AND SHALL, WHILE SO SERVING AS CHIEF OF NAVAL OPERATIONS, RECEIVE THE PAY OF $10,000 PER ANNUM AND NO ALLOWANCES. * * *

THAT PART OF THE FOREGOING PROVISION RELATING TO PAY WAS SUPERSEDED BY SECTION 8 OF THE ACT OF JUNE 10, 1922, SUPRA, BUT IT WAS BY VIRTUE OF THE OTHER PART THAT ADMIRAL STANDLEY HELD THE RANK AND TITLE OF ADMIRAL WHILE SERVING AS CHIEF OF NAVAL OPERATIONS. SINCE THE ACT OF JUNE 22, 1938, SUPRA, DID NOT AFFECT HIS RETIRED PAY, ADMIRAL STANDLEY WAS, FOR RETIRED PAY PURPOSES, ON A PAR WITH RETIRED REAR ADMIRALS (UPPER HALF). THUS THE ONLY EFFECT OF THE ACT OF JUNE 22, 1938, ON HIS STATUS, IN RETIREMENT, WAS TO AUTHORIZE THE PRESIDENT TO CONFER UPON HIM THE RANK AND TITLE OF ADMIRAL (RETIRED).

THUS IT APPEARS THERE IS NO AUTHORITY FOR ANY OFFICER ON THE ACTIVE LIST OF THE NAVY TO HOLD THE PERMANENT RANK OF ADMIRAL AND THE LANGUAGE OF SECTION 8 OF THE ACT OF JUNE 10, 1922, SUPRA, SHOWS THAT THIS WAS RECOGNIZED. COMPARE 11 COMP. GEN. 291. THE PURPOSE OF THE LAST SENTENCE OF SECTION 8 CLEARLY WAS TO PROVIDE A TEMPORARY MONEY ALLOWANCE OF $2,200 PER YEAR TO THE OFFICER SERVING AS CHIEF OF NAVAL OPERATIONS, WHILE HE IS SO SERVING, AND TO OFFICERS ON THE ACTIVE LIST OF THE NAVY, NOT IN EXCESS OF THREE, DESIGNATED TO COMMAND FLEETS OR SUBDIVISIONS THEREOF AND TEMPORARILY HOLDING THE RANK OF ADMIRAL WHILE SO DESIGNATED.

SECTION 301 OF THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, 54 STAT. 973, PROVIDES AS FOLLOWS:

DURING THE REMAINDER OF THE FISCAL YEAR ENDING JUNE 30, 1941, ALL RETIRED OFFICERS OF THE NAVY AND MARINE CORPS, AND RETIRED OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES. SIMILAR PROVISION IS MADE FOR THE FISCAL YEAR 1642, BY SECTION 5 OF THE NAVAL APPROPRIATION ACT, 1942, 55 STAT. 176.

AS HAS BEEN STATED ABOVE, THE RETIRED PAY OF ADMIRAL STANDLEY WAS NOT AFFECTED AND WAS NOT INTENDED TO BE AFFECTED, BY THE ACT OF JUNE 22, 1938. A FORTIORI, IT WAS NOT INTENDED BY THAT ACT TO INCREASE ANY ACTIVE- DUTY PAY TO WHICH HE MIGHT SUBSEQUENTLY BECOME ENTITLED. IRRESPECTIVE OF HIS RANK AND TITLE ON THE RETIRED LIST, HIS FULL ACTIVE DUTY PAY IS PROPERLY FOR BASING ON HIS RETIRED PAY. HIS RETIRED PAY IS $6,000 PER ANNUM OR THREE-FOURTHS OF $8,000, THE ACTIVE-DUTY PAY OF A REAR ADMIRAL (UPPER HALF).

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT ADMIRAL STANDLEY IS NOT ENTITLED TO THE ANNUAL MONEY ALLOWANCE OF $2,200 IN ADDITION TO HIS REGULAR ACTIVE-DUTY PAY AND ALLOWANCES.