B-60127, DECEMBER 16, 1946, 26 COMP. GEN. 417

B-60127, DECEMBER 16, 1946, 26 COMP. GEN. 417

PAY - RETIRED - TEMPORARY REAR ADMIRAL ENTITLED TO PAY OF UPPER HALF SUBSEQUENT TO JUNE 30, 1946 THE RETIRED PAY OF A TEMPORARY REAR ADMIRAL OF THE COAST GUARD VOLUNTARILY RETIRED AFTER JUNE 30, 1946, FOR LENGTH OF SERVICE, PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, IS LIMITED BY SECTION 7 THEREOF TO 75 PERCENT OF HIS ACTIVE DUTY PAY AS REAR ADMIRAL (LOWER HALF) ON JUNE 30, 1946, AND MAY NOT, BY REASON OF SERVICE PRIOR TO NOVEMBER 12, 1928 (SECTION 15, PAY READJUSTMENT ACT OF 1942), AND SPECIAL COMMENDATION FOR DUTY IN ACTUAL COMBAT (ACT OF JUNE 6, 1942), BE COMPUTED AS 75 PERCENT OF HIS HIGHER ACTIVE DUTY PAY AS REAR ADMIRAL (UPPER HALF) AT THE TIME OF RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, DECEMBER 16, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 16, 1946, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHAT RETIRED PAY IS AUTHORIZED FOR A COMMISSIONED OFFICER OF THE COAST GUARD RETIRED UNDER THE FOLLOWING CIRCUMSTANCES:

SAID OFFICER, WHO HOLDS THE PERMANENT RANK OF COMMANDER, WAS ADVANCED UNDER THE PROVISIONS OF THE TEMPORARY PROMOTION ACT OF JULY 24, 1941 (34 U.S.C. 350-350J) TO THE RANK OF CAPTAIN ON DECEMBER 10, 1942, AND TO THE RANK OF REAR ADMIRAL ON NOVEMBER 22, 1944. ON JULY 1, 1946, HE BECAME ELIGIBLE TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF PURSUANT TO THE PROVISIONS OF SECTIONS 2 AND 8 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464 (50 U.S.C. APPENDIX, 807, 813) AND WILL BE IN RECEIPT OF SUCH PAY AND ALLOWANCES AT DATE OF RETIREMENT FOR WHICH HE HAS MADE APPLICATION UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, HAVING TOTAL SERVICE IN EXCESS OF 27 YEARS, BUT LESS THAN 30 YEARS. SAID OFFICER ALSO HAD SERVICE AS A COMMISSIONED OFFICER OF THE COAST GUARD PRIOR TO NOVEMBER 12, 1918, AND IS THUS WITHIN THE PROVISIONS OF SECTION 15 (5TH PARAGRAPH) OF THE ACT OF JUNE 16, 1942, AS AMENDED (37 U.S.C. 115), AND HE WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE SECRETARY OF THE NAVY (WHILE THE COAST GUARD WAS OPERATING AS PART OF THE NAVY), SO AS TO COME WITHIN THE PROVISIONS OF THE ACT OF JUNE 6, 1942, 56 STAT. 328 (14 U.S.C. 174A), WHICH PROVIDES THAT SUCH AN OFFICER SHALL UPON RETIREMENT BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT TIME OF RETIREMENT.

IT APPEARS THAT THE JUDGE ADVOCATE GENERAL OF THE NAVY IN AN OPINION DATED APRIL 23, 1945 ( FILE. JAG:II:KMM:RN0, CONSIDERED THE QUESTION OF THE RANK ON RETIREMENT OF AN OFFICER OF THE NAVY RETIRED UNDER CIRCUMSTANCES CLOSELY SIMILAR TO THOSE IN THE CASE SUBMITTED ABOVE, EXCEPT THAT SECTION 15 OF THE ACT OF JUNE 16, 1942, SUPRA, WAS NOT INVOLVED. SECTION 12 OF THE ACT OF JUNE 23, 1938 (34 U.S.C. 404), TOGETHER WITH THE ACT OF FEBRUARY 23, 1942 (34 U.S.C. 399H), PERTINENT IN THE NAVY CASE, CORRESPONDS TO THE ACT OF JUNE 6, 1942, SUPRA, AS RELATES TO THE COAST GUARD. THE FOLLOWING EXCERPTS FROM THE CITED OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY ARE QUOTED:

"AN OPINION WAS REQUESTED AS TO WHETHER AN OFFICER SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, WHO IS RETIRED ON HIS OWN APPLICATION AFTER 20, 30 OR 40 YEARS SERVICE AND WHO HAS BEEN SPECIALLY COMMENDED BY THE HEAD OF THE EXECUTIVE DEPARTMENT FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, MAY BE PLACED ON THE RETIRED LIST IN ONE GRADE HIGHER THAN THE HIGHEST GRADE HELD BY HIM ON THE ACTIVE LIST OF THE NAVY IF:

"/A) HIS TEMPORARY APPOINTMENT HAS BEEN TERMINATED;

"/B) HIS TEMPORARY APPOINTMENT HAS NOT BEEN TERMINATED.

"IT SHOULD BE NOTED THAT SECTION 10 OF THE ACT APPROVED JULY 24, 1941 AS AMENDED, SUPRA, ENTITLED OFFICERS OF THE ACTIVE LIST OF THE REGULAR NAVY, UPON BEING SUBSEQUENTLY RETIRED, TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT.

" SECTION 12 OF THE ACT OF JUNE 23, 1938, AND THE ACT OF FEBRUARY 23, 1942, SUPRA, SPECIFIES THAT THE ADVANCEMENT AUTHORIZED THEREIN FOR COMBAT CITATION IS TO THE RANK OF "THE NEXT HIGHER GRADE.' IT WAS THE APPARENT INTENTION OF THE LAW THAT THE NEXT HIGHER GRADE CONTEMPLATED BY THIS PROVISION IS THE NEXT HIGHER GRADE TO THAT IN WHICH ANY SUCH OFFICER WOULD REGULARLY HAVE BEEN PLACED ON THE RETIRED LIST, WHICH WOULD INCLUDE THE RANK IN WHICH AN OFFICER GOES ON THE RETIRED LIST PURSUANT TO SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA. ANY OTHER CONCLUSION WOULD RESULT IN MANY CASES IN A FAILURE TO GIVE ANY RECOGNITION TO SPECIAL COMMENDATION FOR COMBAT DUTY AS CONTEMPLATED BY SECTION 12 OF THE ACT OF JUNE 23, 1938, SUPRA. IT WOULD ALSO RESULT IN INJUSTICE AS BETWEEN OFFICERS WHO TRANSFER TO THE RETIRED LIST WHILE HOLDING TEMPORARY APPOINTMENTS AND THOSE WHO RETIRE SUBSEQUENT TO TERMINATION OF TEMPORARY APPOINTMENTS. UNDER WELL ESTABLISHED RULES OF STATUTORY CONSTRUCTION THE LAW SHOULD BE CONSTRUED SO AS TO AVOID SUCH OBJECTIONABLE RESULTS ( L.R.N.A., 1921 ED., P. 21).

"IN VIEW OF THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 23, 1938, IT WAS HELD THAT AN OFFICER ENTITLED TO RECEIVE THE BENEFITS THEREOF, WHO RETIRED ON HIS OWN APPLICATION AFTER 20, 30 OR 40 YEARS SERVICE, MUST BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE GRADE NEXT HIGHER THAN THAT TO WHICH HE IS ENTITLED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946 ( P.L. 305). FOR EXAMPLE, AN OFFICER WITH THE PERMANENT RANK OF CAPTAIN IS TEMPORARILY PROMOTED TO THE GRADE OF REAR ADMIRAL, BUT PRIOR TO BEING RETIRED ON HIS OWN APPLICATION SUCH TEMPORARY APPOINTMENT IS TERMINATED AND AT THE TIME OF RETIREMENT HIS RANK IS THAT OF CAPTAIN. HE COMES WITHIN THE PURVIEW OF THE ACTS UNDER DISCUSSION, HE MUST BE PLACED UPON THE RETIRED LIST WITH THE RANK OF VICE ADMIRAL.

"IF HIS TEMPORARY APPOINTMENT TO THE GRADE OF REAR ADMIRAL HAS NOT BEEN TERMINATED PRIOR TO THE EFFECTIVE DATE OF RETIREMENT, THE OFFICER CONCERNED WOULD AT THE TIME OF RETIREMENT BE SERVING IN THE GRADE OF REAR ADMIRAL AND MUST BE PLACED ON THE RETIRED LIST WITH THE RANK OF VICE ADMIRAL.'

FOLLOWING THE REASONING IN THE ABOVE-QUOTED OPINION IT WOULD SEEM THAT THE RETIRED RANK OF THE OFFICER WHOSE CASE IS HEREIN SUBMITTED WOULD BE THAT OF VICE ADMIRAL. AS THE QUESTION OF THE RETIRED PAY IN SUCH CASE IS ONE FOR DETERMINATION BY YOUR OFFICE, YOUR DECISION THEREON IS REQUESTED. CONSIDERATION HAS BEEN GIVEN TO THE DECISIONS OF YOUR OFFICE, B-51927 OF SEPTEMBER 18, 1945 (25 COMP. GEN. 274), AND B-50575 OF SEPTEMBER 20, 1945, (25 COMP. GEN. 281), WHICH HAVE SOME ELEMENTS IN COMMON WITH THE CASE HEREIN PRESENTED, BUT ARE NOT PRECISELY TO THE POINT.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED, 37 U.S.C., SUPP. IV, 115, PROVIDES, IN PERTINENT PART, THAT:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

THE ACT OF JUNE 6, 1942, 56 STAT. 328, PROVIDES:

THAT ALL OFFICERS OF THE COAST GUARD AND THE COAST AND GEODETIC SURVEY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.

IT HAS BEEN STATED THAT THE PURPOSE OF THIS ACT OF JUNE 6, 1942, WAS TO PROVIDE MATERIAL BENEFITS UPON RETIREMENT TO OFFICERS OF THE COAST GUARD AND THE COAST AND GEODETIC SURVEY IN RECOGNITION OF SERVICES IN ACTUAL COMBAT, WHICH BENEFITS ARE SIMILAR TO THOSE PROVIDED IN THE CASE OF OFFICERS OF THE NAVY AND MARINE CORPS IN SECTION 12 (L) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, 34 U.S.C. 404, AND THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120, 34 U.S.C. 399. SEE H.R. REPORT NO. 2071, 77TH CONGRESS.

IT HAS BEEN HELD THAT SECTION 12 (L) OF THE 1938 ACT IS NOT A PROVISION FOR THE RETIREMENT OF OFFICERS; THAT THE RETIREMENT PROVISIONS MUST BE FOUND ELSEWHERE AND, BEFORE A SPECIALLY COMMENDED OFFICER IS ENTITLED TO BE REWARDED BY PROMOTION TO THE NEXT HIGHER GRADE UPON RETIREMENT AS PROVIDED IN SAID SECTION 12 (L), HIS ELIGIBILITY FOR RETIREMENT MUST HAVE BEEN AUTHORIZED BY SOME SPECIFIC PROVISION OF LAW. IN OTHER WORDS, SPECIAL COMMENDATION IN ITSELF DOES NOT OPERATE TO PUT THE SECTION IN EFFECT UNLESS AND UNTIL THE OFFICER HAS BEEN RETIRED UNDER SOME OTHER PROVISION OF LAW. NEITHER DOES PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 OPERATE AS A RETIREMENT STATUTE. IN THE DECISION, B-51927 OF SEPTEMBER 18, 1945, PUBLISHED IN 25 COMP. GEN., AT PAGE 274, THE LEGISLATIVE HISTORY OF THE SAID SECTION IS DISCUSSED AT LENGTH AND THE DECISION CONCLUDES AS FOLLOWS:

FROM SUCH STATEMENTS IT SEEMS EVIDENT THAT THE SOLE PURPOSE OF THE PROVISION WAS TO CHANGE THE METHOD OF COMPUTATION OF RETIRED PAY FOR THE OFFICERS INVOLVED FROM THAT OF 2 1/2 PERCENTUM OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE TO THAT OF 75 PERCENTUM OF THEIR ACTIVE DUTY PAY, WITHOUT REGARD TO THE NUMBER OF YEARS' SERVICE. WHILE THERE WAS USED THE DESCRIPTIVE LANGUAGE "75 PERCENTUM OF HIS ACTIVE- DUTY PAY AT THE TIME OF HIS RETIREMENT," THAT MERELY REPEATED, IN EFFECT, THE LANGUAGE OF THE SAID ARMY ACT OF JUNE 13, 1940, TO PUT SUCH OFFICERS ON A PARITY WITH ARMY OFFICERS IN THAT RESPECT, AS STATED BY MR. MAAS. PRESUMABLY, THEREFORE, SUCH LANGUAGE WAS USED IN THE ARMY ACT, AND THERE IS NO SUGGESTION OF ANY INTENT THEREBY TO EXPAND OR MODIFY THE PROVISIONS AND RESTRICTIONS CONTAINED IN THE NAVY TEMPORARY PROMOTIONS ACT OF JULY 24, 1941, SO AS TO GRANT NAVY OFFICERS HAVING SERVICE PRIOR TO NOVEMBER 12, 1918, THE FURTHER SUBSTANTIAL BENEFIT OF HAVING THEIR RETIRED PAY COMPUTED ON THE PAY OF THEIR TEMPORARY RANK UNDER THE LATTER ACT, CONTRARY TO THE SPECIFIC CONDITIONS AND RESTRICTIONS OF SUCH ACT. IT IS TO BE ASSUMED, UNDER SETTLED PRINCIPLES OF STATUTORY INTERPRETATION, THAT ANY LEGISLATIVE INTENT TO MODIFY SUCH SPECIFIC PROVISIONS OF THE ACT OF JULY 24, 1941, IN SO IMPORTANT A PARTICULAR, WOULD BE SHOWN BY LEGISLATION EQUALLY SPECIFIC AND WOULD NOT BE LEFT TO QUESTIONABLE IMPLICATIONS ARISING FROM GENERAL LANGUAGE DIRECTED PRIMARILY TO A DIFFERENT PURPOSE.

THUS, THE ACT OF JUNE 6, 1942, AND THE PERTINENT PARAGRAPH OF THE PAY READJUSTMENT ACT OF 1942, IN EFFECT, INSOFAR AS RETIRED PAY IS CONCERNED, SERVED ONLY TO FIX THE PERCENTAGE RATE TO BE USED IN COMPUTING RETIRED PAY FOR OFFICERS PROPERLY WITHIN ITS PROVISIONS.

SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 27, PROVIDES THAT:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.

THE SAID SECTION 6 ESTABLISHES A NEW AND BROADER BASIS UPON WHICH AN APPLICATION FOR RETIREMENT MAY BE PREDICATED AND, IN A SENSE, IS ANALOGOUS TO, AND IS A SUBSTITUTE FOR, SUBSECTION 12 (E) OF THE ACT OF JUNE 23, 1938, SUPRA, WHICH IS REPEALED BY SECTION 11 (C) OF PUBLIC LAW 305, 60 STAT. 29. UNLIKE THE EARLIER LAW, THE CURRENT PROVISIONS DO NOT SPECIFICALLY PROVIDE THE BASIS UPON WHICH RETIRED PAY IS TO BE COMPUTED FOR OFFICERS RETIRED THEREUNDER; HOWEVER, SECTION 7 OF PUBLIC LAW 305, 60 STAT. 27, PROVIDES AS FOLLOWS:

(A) EACH OFFICER RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY. IN ANY CASE WHERE, AS DETERMINED BY THE SECRETARY OF THE NAVY, ANY SUCH OFFICER HAS NOT PERFORMED SATISFACTORY DUTY IN THE HIGHEST RANK HELD BY HIM WHILE ON ACTIVE DUTY, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE NEXT LOWER RANK IN WHICH HE HAS SERVED BUT NOT LOWER THAN HIS PERMANENT RANK. OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: PROVIDED, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED: PROVIDED FURTHER, THAT OFFICERS WHOSE COMPUTATION OF PAY ON THE ACTIVE LIST IS NOT BASED UPON YEARS OF SERVICE SHALL RECEIVE AS RETIRED PAY 75 PERCENTUM OF THEIR ACTIVE DUTY PAY.

(B) NOTHING WITHIN THIS SECTION SHALL PREVENT ANY OFFICER FROM BEING PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK AND WITH THE HIGHEST RETIRED PAY TO WHICH BE MIGHT BE ENTITLED UNDER OTHER PROVISIONS OF LAW. (C) THE HIGHEST RANK IN WHICH AN OFFICER SERVED ON OR PRIOR TO JUNE 30, 1946, OR IF A PRISONER OF WAR AT ANY TIME DURING WORLD WAR II, THE HIGHEST RANK TO WHICH AN OFFICER WAS TEMPORARILY APPOINTED PURSUANT TO THE PROVISIONS OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 603), IS THE HIGHEST RANK IN WHICH THE OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED PURSUANT TO THIS SECTION, UNLESS UNDER PROVISIONS OF LAW OTHER THAN THOSE CONTAINED WITHIN THIS SECTION HE IS ENTITLED TO A HIGHER RANK ON THE RETIRED LIST OR TO A HIGHER RETIRED PAY, OR UNLESS AT THE TIME OF RETIREMENT HE IS SERVING IN A HIGHER PERMANENT GRADE OR RANK.

SUBSECTION (C), QUOTED ABOVE, CLEARLY LIMITS THE RANK IN WHICH AN OFFICER MAY BE RETIRED AND UPON WHICH HIS RETIRED PAY MAY BE BASED, TO THE HIGHEST RANK ATTAINED ON OR PRIOR TO JUNE 30, 1946. IT DOES NOT APPEAR FROM THE LANGUAGE EMPLOYED THAT AN OFFICER IS TO BE GIVEN THE BENEFITS OF THAT SECTION AND TO HAVE SUPERIMPOSED UPON SUCH BENEFITS THE PROVISIONS OF OTHER LAWS. I FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD INDICATE AN INTENT ON THE PART OF THE CONGRESS TO PROVIDE CUMULATIVE BENEFITS UNDER THE CIRCUMSTANCES INDICATED IN YOUR LETTER. ON THE CONTRARY, TO GIVE EFFECT TO THE SAVINGS PROVISIONS CONTAINED IN SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, IT MUST BE CONCLUDED THAT, IN THE FIRST INSTANCE, THE RETIRED PAY OF AN OFFICER RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THAT ACT IS TO BE COMPUTED AS INDICATED IN SECTION 7 THEREOF, AND THAT THE RETIRED PAY SO COMPUTED IS THE HIGHEST RETIRED PAY WHICH IS AUTHORIZED TO BE PAID TO A PARTICULAR OFFICER UNLESS, UNDER OTHER PROVISIONS OF LAW AND WITHOUT THE ADVANTAGE OF THE PROVISIONS OF THE SAID SECTION 7, HE IS ENTITLED TO A HIGHER RETIRED PAY.

IN A DECISION DATED NOVEMBER 19, 1946, B-60141, 26 COMP. GEN. 333, TO THE SECRETARY OF THE NAVY, IT WAS HELD THAT A REAR ADMIRAL OF THE NAVY WHO WAS ENTITLED TO THE PAY OF THE LOWER HALF ON JUNE 30, 1946, WOULD BE ENTITLED TO NO INCREASE IN RETIRED PAY UPON SUBSEQUENT RETIREMENT SOLELY BECAUSE HE CHANGED FROM THE PAY OF THE LOWER HALF TO THE PAY OF THE UPPER HALF AFTER JUNE 30, 1946. HENCE, UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, AN OFFICER, WHO, AS INDICATED IN YOUR LETTER, WAS HOLDING THE PERMANENT RANK OF COMMANDER; WHO WAS ADVANCED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, TO THE RANK OF CAPTAIN ON DECEMBER 10, 1942, AND TO THE RANK OF REAR ADMIRAL ON NOVEMBER 22, 1944; AND WHO BECAME ENTITLED TO THE PAY OF THE UPPER HALF ON JULY 1, 1946, WOULD BE ENTITLED, IF RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, TO RETIRED PAY OF 75 PERCENT (LAST PROVISO OF SECTION 7 (A) ( OF THE PAY OF THE LOWER HALF. NEITHER THE PROVISIONS OF SECTION 15 OF THE ACT OF JUNE 16, 1942, WITH RESPECT TO THE RETIRED PAY OF OFFICERS WHO PERFORMED SERVICE PRIOR TO NOVEMBER 12, 1918, NOR THE PROVISIONS OF THE ACT OF JUNE 6, 1942, WITH RESPECT TO OFFICERS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, WHEN CONSIDERED TOGETHER WITH LAWS OTHER THAN THE PROVISIONS OF SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, WOULD APPEAR TO ENTITLE THE OFFICER TO A HIGHER RETIRED PAY, AND, THEREFORE, IT IS CONCLUDED THAT THE OFFICER MENTIONED IN YOUR LETTER IS ENTITLED TO RETIRED PAY AS INDICATED ABOVE COMPUTED UNDER THE PROVISIONS OF SECTION 7. YOUR QUESTION IS ANSWERED ACCORDINGLY.