B-34918, NOVEMBER 24, 1943, 23 COMP. GEN. 384

B-34918, NOVEMBER 24, 1943, 23 COMP. GEN. 384

PAY - RETIRED - WARRANT OFFICER OF THE COAST GUARD WITH OVER 40 YEARS' SERVICE THE PROVISION IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, AUTHORIZING COMMISSIONED OFFICERS OF THE COAST GUARD WITH OVER 40 YEARS' SERVICE TO BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, IS NOT APPLICABLE TO CHIEF WARRANT OFFICERS OF THE COAST GUARD APPOINTED PURSUANT TO THE ACT OF JULY 3, 1926, WHICH ACT ASSIMILATES THE PAY, ALLOWANCES, AND BENEFITS OF SUCH OFFICERS TO THOSE OF COMMISSIONED WARRANT OFFICERS OF THE NAVY WHO ARE NOT ENTITLED BY LAW TO A ONE GRADE ADVANCEMENT UPON RETIREMENT UNDER THE CIRCUMSTANCES STATED IN SAID SECTION 3.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 24, 1943:

REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1943, REQUESTING DECISION AS TO THE ACTIVE DUTY PAY AND RETIRED PAY AUTHORIZED TO BE PAID TO CHIEF BOATSWAIN NELS JOHNSON, UNITED STATES COAST GUARD, RETIRED.

IT APPEARS THAT CHIEF BOATSWAIN JOHNSON WAS APPOINTED TO THAT GRADE ON OCTOBER 23, 1935, AND THAT HE WAS RETIRED FROM THE COAST GUARD AS OF JULY 1, 1936, WITH TOTAL SERVICE IN EXCESS OF 40 YEARS. IT IS STATED THAT HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF THE PAY AUTHORIZED FOR A WARRANT OFFICER WITH 30 YEARS' SERVICE, WHICH HE APPARENTLY WAS RECEIVING IMMEDIATELY PRECEDING HIS RETIREMENT. ON JANUARY 13, 1942, HE WAS RECALLED TO ACTIVE DUTY AS CHIEF WARRANT OFFICER AND PAID THE ACTIVE DUTY PAY AUTHORIZED FOR A WARRANT OFFICER WITH 30 YEARS' SERVICE.

THREE QUESTIONS ARE SUBMITTED FOR DECISION: (1) WHETHER CHIEF BOATSWAIN JOHNSON IS ENTITLED, WHILE ON ACTIVE DUTY, TO THE PAY OF A LIEUTENANT (JG) WITH 30 YEARS' SERVICE; (2) IF QUESTION (1) IS ANSWERED IN THE NEGATIVE, WHAT IS THE CORRECT RATE OF PAY TO WHICH HE IS ENTITLED; AND (3) WHAT IS THE CORRECT RATE OF RETIRED PAY AFTER THE OFFICER'S RELIEF FROM ACTIVE DUTY. WITH RESPECT TO ALL OF THESE QUESTIONS, THE PRIMARY DETERMINATION TO BE MADE IS WHETHER SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, IS APPLICABLE TO THE PRESENT OFFICER'S CASE. SAID SECTION WAS AMENDED BY SECTION 2 OF THE ACT OF JUNE 9, 1937, 50 STAT. 252, AND AGAIN BY SECTION 2 OF THE ACT OF JUNE 6, 1940, 54 STAT. 246, BUT BOTH OF THOSE AMENDMENTS WERE MADE AFTER THE OFFICER'S RETIREMENT AND, IN ANY EVENT, ARE NOT MATERIAL TO THE PRESENT CASE.

SAID SECTION 3, AS ORIGINALLY ENACTED, IS AS FOLLOWS:

SEC. 3. THAT HEREAFTER NO COMMISSIONED OFFICER OF THE COAST GUARD SHALL BE PROMOTED TO A HIGHER GRADE OR RANK ON THE ACTIVE LIST, EXCEPT TO COMMANDER OR TO ENGINEER IN CHIEF, UNTIL HIS MENTAL, MORAL, AND PROFESSIONAL FITNESS TO PERFORM ALL THE DUTIES OF SUCH HIGHER GRADE OR RANK HAVE BEEN ESTABLISHED TO THE SATISFACTION OF A BOARD OF EXAMINING OFFICERS APPOINTED BY THE PRESIDENT, AND UNTIL HE HAS BEEN EXAMINED BY A BOARD OF MEDICAL OFFICERS AND PRONOUNCED PHYSICALLY QUALIFIED TO PERFORM ALL THE DUTIES OF SUCH HIGHER GRADE OR RANK: PROVIDED , THAT IF ANY COMMISSIONED OFFICER SHALL FAIL IN HIS PHYSICAL EXAMINATION FOR PROMOTION AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN THE LINE OF DUTY, HE SHALL BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED: PROVIDED FURTHER, THAT HEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD FORTY YEARS' SERVICE SHALL RETIRE, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT; AND, IN THE CASE OF A CAPTAIN, THE RANK AND RETIRED PAY OF ONE GRADE ABOVE SHALL BE THE RANK OF COMMODORE AND THE PAY OF A COMMODORE IN THE NAVY ON THE RETIRED LIST.

IT WILL BE NOTED THAT EACH OF THE THREE PROVISIONS OF THAT SECTION REFERS SPECIFICALLY TO COMMISSIONED OFFICERS. UNDER CERTAIN CIRCUMSTANCES, WARRANT OFFICERS OF THE NAVY HAVE BEEN HELD TO BE INCLUDED IN THE TERM "OFFICERS; " AND IT HAS BEEN HELD, ALSO, THAT COMMISSIONED WARRANT OFFICERS ARE "COMMISSIONED OFFICERS.' SEE UNITED STATES V. HENDEE, 124 U.S. 309; 5 COMP. DEC. 239; 7 ID. 340; 14 ID. 882; 15 ID. 9, 874. COMPARE UNITED STATES V. MOUAT, 124 U.S. 303; 12 COMP. DEC. 517. HOWEVER, AS WILL BE SEEN FROM THE HENDEE AND MOUAT CASES, THE FACTS IN EACH PARTICULAR CASE MUST BE CONSIDERED IN ORDER TO DETERMINE WHETHER WARRANT OFFICERS OR COMMISSIONED WARRANT OFFICERS ARE WITHIN THE SCOPE OF STATUTES AUTHORIZING BENEFITS FOR "OFFICERS" OR "COMMISSIONED OFFICERS" OF A PARTICULAR SERVICE. SECTION 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, WAS ENACTED AT A TIME WHEN THERE WERE NO CHIEF OR COMMISSIONED WARRANT OFFICERS IN THE COAST GUARD; AND IT SEEMS QUITE EVIDENT THAT BY THE USE OF THE WORDS "COMMISSIONED OFFICER OF THE COAST GUARD," THE CONGRESS INTENDED TO EXCLUDE FROM THE PROVISIONS OF SAID SECTION ALL OTHER PERSONNEL OF THE COAST GUARD AS THEN CONSTITUTED. CONSEQUENTLY, THERE IS FOR CONSIDERATION WHETHER THE SUBSEQUENT PROVISIONS FOR CHIEF WARRANT OFFICERS IN THE COAST GUARD AUTOMATICALLY OPERATED TO EXTEND TO THEM THE BENEFITS AUTHORIZED BY SAID SECTION.

SECTION 5 OF THE ACT OF APRIL 21, 1924, 43 STAT. 106, AUTHORIZING THE TEMPORARY APPOINTMENT OF CHIEF WARRANT OFFICERS IN THE COAST GUARD, PROVIDED:

SEC. 5. (A) UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE PRESIDENT IS AUTHORIZED TO APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TWENTY-FIVE TEMPORARY CHIEF WARRANT OFFICERS OF THE COAST GUARD FROM THE PERMANENT LIST OF WARRANT OFFICERS OF THE COAST GUARD.

(B) SUCH CHIEF WARRANT OFFICERS SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND BENEFITS AS COMMISSIONED WARRANT OFFICERS OF THE NAVY, EXCEPT THAT ANY SUCH OFFICER SHALL CONTINUE TO HOLD HIS PERMANENT GRADE, AND SHALL BE RETIRED IN THE SAME MANNER AS THOUGH THIS ACT HAD NOT BECOME LAW.

THE TEMPORARY CHIEF WARRANT OFFICERS AUTHORIZED BY SAID SECTION 5 OF THE ACT OF APRIL 21, 1924, WHO WERE IN THE COAST GUARD ON JULY 1, 1926, WERE TRANSFERRED TO THE REGULAR COAST GUARD AND THE PERMANENT APPOINTMENT OF SUCH OFFICERS WAS AUTHORIZED BY SECTION 10 OF THE ACT OF JULY 3, 1926, 44 STAT. 817, WHICH PROVIDES:

SEC. 10. THAT ALL TEMPORARY CHIEF WARRANT OFFICERS WHO ARE IN THE COAST GUARD ON JULY 1, 1926, SHALL BE TRANSFERRED TO THE REGULAR COAST GUARD AS CHIEF WARRANT OFFICERS AS OF THAT DATE AND SHALL BE COMMISSIONED ACCORDINGLY. UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE THE PRESIDENT IS AUTHORIZED TO APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, CHIEF WARRANT OFFICERS OF THE COAST GUARD FROM THE PERMANENT LIST OF WARRANT OFFICERS OF THE COAST GUARD AS THE NEEDS OF THE SERVICE MAY REQUIRE, AND SUCH CHIEF WARRANT OFFICERS SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND BENEFITS AS COMMISSIONED WARRANT OFFICERS OF THE NAVY OF LIKE LENGTH OF SERVICE: PROVIDED, THAT NO WARRANT OFFICER SHALL SUFFER A REDUCTION IN PAY OR ALLOWANCES ON ACCOUNT OF HIS APPOINTMENT AS A CHIEF WARRANT OFFICER UNDER THE PROVISIONS OF THIS SECTION.

IT IS TO BE NOTED THAT IN BOTH OF THE QUOTED PROVISIONS, AUTHORIZING APPOINTMENT OF CHIEF WARRANT OFFICERS IN THE COAST GUARD, IT IS PROVIDED THAT SUCH CHIEF WARRANT OFFICERS "SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND BENEFITS AS COMMISSIONED WARRANT OFFICERS OF THE NAVY" OF LIKE LENGTH OF SERVICE. HOWEVER, I DO NOT FIND ANY PROVISION OF LAW AUTHORIZING THE ADVANCEMENT OF COMMISSIONED WARRANT OFFICERS OF THE NAVY UNDER THE CIRCUMSTANCES STATED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923. OFFICER WITHIN THE SCOPE OF THAT SECTION ADVANCED IN ACCORDANCE THEREWITH IS ENTITLED TO A HIGHER RATE OF PAY THAN HE OTHERWISE WOULD BE ENTITLED TO RECEIVE. TO GIVE CHIEF WARRANT OFFICERS OF THE COAST GUARD THE BENEFIT OF THAT STATUTE, INSOFAR AS PAY IS CONCERNED, WOULD HAVE THE EFFECT OF GIVING SUCH OFFICERS MORE PAY THAN COMMISSIONED WARRANT OFFICERS OF THE NAVY, AND THUS WOULD BE CONTRARY TO SECTION 10 OF THE ACT OF JULY 3, 1926, PROVIDING THAT SUCH OFFICERS OF THE COAST GUARD SHALL RECEIVE THE "SAME" PAY AS COMMISSIONED WARRANT OFFICERS OF THE NAVY. HENCE, THE FIRST QUESTION HEREINBEFORE STATED IS ANSWERED IN THE NEGATIVE.

APPARENTLY, THE ABOVE INTERPRETATION IS CONSISTENT WITH THE ADMINISTRATIVE VIEW WHICH EXISTED AT THE TIME CHIEF BOATSWAIN JOHNSON WAS RETIRED. HE WAS RETIRED AS A CHIEF WARRANT OFFICER AND WAS ORDERED TO ACTIVE DUTY AS A CHIEF WARRANT OFFICER.

BEING ON ACTIVE DUTY AS A CHIEF WARRANT OFFICER, CHIEF BOATSWAIN JOHNSON IS ENTITLED TO THE PAY AUTHORIZED FOR SUCH GRADE. SEE SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362. UPON HIS RELIEF FROM ACTIVE DUTY, HE WILL BE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF PAY PROVIDED FOR A CHIEF WARRANT OFFICER IN THE PAY READJUSTMENT ACT. SEE SECTION 15 OF THAT ACT, 56 STAT. 367.