B-37727, NOVEMBER 29, 1943, 23 COMP. GEN. 393

B-37727, NOVEMBER 29, 1943, 23 COMP. GEN. 393

RETIREMENT - COAST GUARD OFFICERS - ADVANCEMENT IN RANK UPON RETIREMENT IN TEMPORARY RANK SECTION 3 OF THE ACT OF JANUARY 12, 1923, AUTHORIZING FOR COAST GUARD OFFICERS, RETIRED AFTER 40 YEARS' SERVICE, A ONE-GRADE ADVANCEMENT IN RANK AND RETIRED PAY OVER THAT ACTUALLY HELD AT THE TIME OF RETIREMENT, OPERATES ONLY UPON THE PERMANENT RANK OF SUCH AN OFFICER, AND NOT UPON A TEMPORARY RANK TO WHICH PROMOTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AND IN WHICH RETIRED FOR AGE PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1942, APPLICABLE TO OFFICERS ATTAINING THE AGE OF 64 YEARS WHILE HOLDING TEMPORARY RANK DURING THE WAR EMERGENCY PERIOD.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 29, 1943:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1943, REQUESTING DECISION ON THE QUESTION PRESENTED IN A LETTER DATED OCTOBER 13, 1943, FROM THE COMMANDANT, U.S. COAST GUARD, WHETHER OR NOT LIEUTENANT COMMANDER HENRY B. HASKINS, UNITED STATES COAST GUARD, RETIRED, IS ENTITLED TO BE RETIRED WITH THE RANK AND PAY OF ONE GRADE HIGHER THAN HIS TEMPORARY RANK OF LIEUTENANT COMMANDER UNDER THE PROVISION OF SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, WHICH READS--

* * * 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. * * *

IT IS REPORTED IN THE COMMANDANT'S LETTER THAT THE OFFICER WAS APPOINTED A LIEUTENANT IN THE COAST GUARD ON DECEMBER 19, 1939, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THE ACT OF AUGUST 5, 1939, 53 STAT. 1216, SAID SECTION AUTHORIZING THE APPOINTMENT OF CERTAIN EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE TO COMMISSIONED GRADES IN THE COAST GUARD. HAS BEEN REPORTED, INFORMALLY, THAT THIS OFFICER WAS APPOINTED A TEMPORARY LIEUTENANT COMMANDER ON OCTOBER 3, 1942, TO RANK FROM OCTOBER 1, 1942--- A TEMPORARY PROMOTION MADE EFFECTIVE LESS THAN TWO MONTHS PRIOR TO REACHING SIXTY-FOUR YEARS OF AGE. THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZING TEMPORARY APPOINTMENTS AND ADVANCEMENTS OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS, WAS MADE APPLICABLE TO THE COAST GUARD BY SECTION 11 THEREOF, 55 STAT. 605. SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465--- MADE APPLICABLE TO THE COAST GUARD BY SECTION 8 OF SAID ACT--- PROVIDES:

ANY OFFICER OF THE REGULAR NAVY BELOW THE GRADE OF VICE ADMIRAL AND ANY OFFICER OF THE REGULAR MARINE CORPS BELOW THE RANK OF LIEUTENANT GENERAL TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF SIXTY-FOUR YEARS WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941. ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE RETIRED IN SUCH TEMPORARY GRADE OR RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT, UNLESS ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK UNDER SOME OTHER PROVISION OF LAW.

IT IS REPORTED THAT, PURSUANT TO THE PROVISIONS OF SAID SECTION 6, LIEUTENANT COMMANDER HASKINS WAS RETIRED FOR AGE IN HIS TEMPORARY RANK AND THAT WHEN RETIRED HE HAD COMPLETED OVER 40 YEARS SERVICE IN THE COAST GUARD AND LIGHTHOUSE SERVICE WHICH COULD BE COUNTED FOR RETIREMENT PURPOSES UNDER SECTION 6 OF THE ACT OF AUGUST 5, 1939, 53 STAT. 1217. THE QUESTION PRESENTED IS WHETHER, IN VIEW OF SUCH TOTAL COMBINED SERVICE, THE OFFICER IS ENTITLED TO BE RETIRED WITH THE RANK AND PAY OF ONE GRADE HIGHER THAN HIS TEMPORARY RANK OF LIEUTENANT COMMANDER PURSUANT TO THE ABOVE-QUOTED PORTION OF SECTION 3 OF THE ACT OF JANUARY 12, 1923.

IN A DECISION DATED AUGUST 23, 1943, 23 COMP. GEN. 126, THERE WAS CONSIDERED THE CASE OF A NAVAL OFFICER TEMPORARILY PROMOTED TO A HIGHER RANK PURSUANT TO THE ACT OF JULY 24, 1941, SUPRA, WHO, WHILE SERVING AS AN OFFICER OF THE HIGHER RANK, WAS RETIRED FOR DISABILITY INCURRED PRIOR TO HIS TEMPORARY ADVANCEMENT. UNDER THE CIRCUMSTANCES AND APPLICABLE STATUTES THERE INVOLVED IT WAS HELD THAT THE TEMPORARY RANK CONFERRED UPON THE OFFICER PURSUANT TO THE ACT OF JULY 24, 1941, DID NOT GIVE HIM THE RIGHT TO RETIRED PAY BASED ON THE PAY OF HIS TEMPORARY RANK BUT RATHER THAT HE WAS ENTITLED TO RETIRED PAY BASED ON THE PAY AUTHORIZED FOR HIS PERMANENT GRADE AND RANK IN THE NAVY. THE LEGISLATIVE HISTORY OF SECTION 6 OF THE ACT OF JUNE 30, 1942, SHOWS THAT IT WAS DESIGNED TO SUPPLEMENT THE ACT OF JULY 24, 1941, SO THAT OFFICERS HOLDING TEMPORARY COMMISSIONS THEREUNDER AND WHO WERE RETIRED UPON ATTAINING THE AGE OF SIXTY-FOUR YEARS COULD BE RETIRED WITH THEIR TEMPORARY RANK AND GRADE AND RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY THEY WERE RECEIVING AT THE TIME OF RETIREMENT. WHILE IT IS EXPRESSLY PROVIDED IN SAID SECTION 6 THAT AN OFFICER SHALL BE RETIRED AS AUTHORIZED THEREIN "UNLESS ELIGIBLE FOR RETIREMENT IN A HIGHER GRADE OR RANK UNDER SOME OTHER PROVISION OF LAW," THAT PROVISION MERELY IS IN THE NATURE OF A SAVINGS CLAUSE; THAT IS, AN OFFICER'S RIGHT TO BE RETIRED IN HIS TEMPORARY GRADE OR RANK AS AUTHORIZED BY SAID SECTION 6 DOES NOT DEPRIVE HIM OF THE RIGHT TO BE RETIRED UNDER SOME OTHER STATUTE WHICH MAY BE MORE BENEFICIAL TO HIM.

I FIND NO INDICATION, EITHER IN SECTION 6 ITSELF OR IN ITS LEGISLATIVE HISTORY, TENDING TO SHOW THAT AN OFFICER IS AUTHORIZED TO FIRST TAKE ADVANTAGE OF THAT SECTION, BE RETIRED IN HIS TEMPORARY GRADE OR RANK WITH RETIRED PAY BASED ON HIS ACTIVE DUTY PAY AUTHORIZED IN SUCH TEMPORARY STATUS, AND THEN BE ADVANCED TO A HIGHER GRADE PURSUANT TO SECTION 3 OF THE ACT OF JANUARY 12, 1923, BECAUSE HE HAD COMPLETED 40 YEARS SERVICE. IT SEEMS CLEAR THAT THE PROVISION CONTAINED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, SUPRA, IS INTENDED TO OPERATE ONLY UPON THE PERMANENT RANK OF OFFICERS OF THE COAST GUARD WHO ARE OTHERWISE ENTITLED TO ITS BENEFITS AND THAT IT HAS NO REASONABLE APPLICATION TO AN OFFICER WHO RECEIVED A HIGHER TEMPORARY RANK, UNDER A WARTIME MEASURE, SHORTLY BEFORE REACHING THE STATUTORY RETIREMENT AGE. TO CONSTRUE SUCH PROVISION OTHERWISE WOULD CREATE DISCRIMINATION AMONG COAST GUARD OFFICERS BY CONFERRING GREATER BENEFITS UPON THE OFFICER REACHING RETIREMENT AGE BETWEEN THE EFFECTIVE DATES OF THE ACTS OF JULY 24, 1941, AND JUNE 30, 1942--- AS TO WHICH SEE SECTION 7 OF THE LATTER ACT--- THAN UPON OFFICERS TEMPORARILY PROMOTED AT THE SAME TIME, OR EVEN EARLIER, WHO BECAUSE YOUNGER IN AGE MAY SERVE ON THE ACTIVE LIST UNDER SUCH TEMPORARY APPOINTMENTS BEYOND SUCH EFFECTIVE DATE AND THEN REVERT TO THEIR LOWER PERMANENT GRADE OR RANK AS REQUIRED BY SAID ACTS BEFORE REACHING RETIREMENT AGE.

ACCORDINGLY, IT IS CONCLUDED THAT THE OFFICER IS NOT ENTITLED TO BE RETIRED WITH THE RANK AND PAY OF ONE GRADE HIGHER THAN HIS PRESENT TEMPORARY RANK OF LIEUTENANT COMMANDER.