B-78774, MARCH 21, 1949, 28 COMP. GEN. 531

B-78774, MARCH 21, 1949, 28 COMP. GEN. 531

RETIRED PAY; ACTIVE-DUTY PAY AND ALLOWANCES - NAVY NURSE CORPS OFFICERS A NAVY NURSE CORPS OFFICER WHO SERVED IN THE ARMY NURSE CORPS PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED IN HER PERMANENT RANK AFTER COMPLETING MORE THAN 20 YEARS' SERVICE PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, IS TO BE REGARDED AS HAVING SERVED AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO ENTITLE HER, IF OTHERWISE ELIGIBLE, TO RETIRED PAY EQUAL TO 75 PERCENT OF HER ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT. AN OFFICER OF THE NAVY NURSE CORPS WHO HAS BEEN COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND WHO OTHERWISE IS ELIGIBLE FOR RETIREMENT UNDER OTHER PROVISIONS OF LAW, WOULD BE ENTITLED, UPON RETIREMENT, TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, WITH RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF THE GRADE, EITHER PERMANENT OR TEMPORARY, IN WHICH SERVING AT THE TIME OF RETIREMENT. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION ENTITLING RETIRED NAVY NURSE CORPS OFFICERS WHO HAVE BEEN PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT IN ACCORDANCE WITH SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, ON ACCOUNT OF COMMENDATION FOR THE PERFORMANCE OF DUTY IN ACTUAL COMBAT, TO BE RECALLED TO ACTIVE DUTY WITH SUCH HONORARY RANK, THERE WOULD BE NO BASIS FOR CONCLUDING THAT SUCH A RETIRED OFFICER WOULD BE ENTITLED TO BE RECALLED IN SUCH HONORARY RANK AND RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HONORARY RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 21, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 13, 1948, REQUESTING DECISION ON SEVERAL QUESTIONS CONCERNING THE PAY STATUS OF CERTAIN OFFICERS OF THE NAVY NURSE CORPS. THE FIRST QUESTION PRESENTED IS AS FOLLOWS:

* * * WHETHER COMMANDER FAYE ELMO WHITE, NURSE CORPS, U.S. NAVY, RETIRED, 64474, BY VIRTUE OF THE SERVICE PERFORMED BY HER AS A MEMBER OF THE ARMY NURSE CORPS UNDER AN APPOINTMENT AS A NURSE IN THE NURSE CORPS ( FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY MADE PURSUANT TO THE ACT OF JULY 9, 1918 (40 STAT. 879), IS ENTITLED, FROM AND AFTER JANUARY 1, 1948, THE EFFECTIVE DATE OF HER TRANSFER TO THE RETIRED LIST, TO 75 PERCENT OF THE PAY PRESCRIBED BY LAW FOR A COMMANDER WITH OVER 27 YEARS OF SERVICE FOR PAY PURPOSES. ALSO, IT IS STATED THAT A SMALL NUMBER OF OFFICERS OF THE NAVY NURSE CORPS HAVE BEEN AWARDED COMBAT CITATIONS FOR SERVICES RENDERED UNDER APPOINTMENTS AS NURSES PURSUANT TO THE ACT OF MAY 13, 1908, 35 STAT. 146, AND QUESTION HAS ARISEN AS TO WHETHER SUCH AN OFFICER, RETIRED SUBSEQUENT TO HER TRANSFER OR APPOINTMENT AS A COMMISSIONED OFFICER IN THE NURSE CORPS, REGULAR NAVY, UNDER SECTION 203 OF THE ARMY-NAVY NURSES ACT OF 1947, 60 STAT. 47, WOULD BE ENTITLED TO INCREASED RANK ON THE RETIRED LIST AS AUTHORIZED IN SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND WHETHER SUCH AN OFFICER WOULD BE ENTITLED TO 75 PERCENT OF THE ACTIVE DUTY OF THE PERMANENT OR TEMPORARY RANK IN WHICH SERVING AT THE TIME OF RETIREMENT. ALSO, DECISION IS REQUESTED AS TO WHETHER SUCH AN OFFICER, IF ASSIGNED TO ACTIVE DUTY SUBSEQUENT TO RETIREMENT, WOULD BE ENTITLED TO BE RECALLED IN HER RETIRED RANK AND RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HIGHER RANK.

IT APPEARS FROM THE ENCLOSURES SUBMITTED WITH YOUR LETTER THAT COMMANDER FAYE E. WHITE, NURSE CORPS, U.S. NAVY, WAS RETIRED JANUARY 1, 1948, AFTER COMPLETING 27 YEARS AND 14 DAYS' CREDITABLE SERVICE, WITH THE PERMANENT RANK OF COMMANDER, PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, WHICH PROVIDES AS FOLLOWS:

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 RETIRED PAY OF OFFICERS RETIRED PURSUANT TO THAT ACT, IS PRESCRIBED IN SECTION 7 (A) OF THE ACT, 60 STAT. 27, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * 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 * * *.

(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 HE MIGHT BE ENTITLED UNDER OTHER PROVISIONS OF LAW.

SECTION 207 (H) OF THE ARMY-NAVY NURSES ACT OF 1947, AS AMENDED BY SECTION 434 (D) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 882, PROVIDES AS FOLLOWS:

(H) THE NUMBER OF YEARS' SERVICE TO BE CREDITED TO OFFICERS OF THE NAVY NURSE CORPS IN DETERMINING THEIR ELIGIBILITY FOR VOLUNTARY RETIREMENT SHALL BE BASED ON THE TOTAL OF ALL ACTIVE SERVICE EITHER UNDER AN APPOINTMENT OR CONTRACT OR AS A COMMISSIONED OFFICER IN THE NURSE CORPS OF THE ARMY OR NAVY, OR THE RESERVE COMPONENTS THEREOF AND ALL ACTIVE SERVICE IN THE NURSE CORPS OR THE NURSE CORPS RESERVE ABOLISHED BY THIS ACT SHALL, FOR THIS PURPOSE ONLY, BE REGARDED AS COMMISSIONED SERVICE IN THE NAVY OR THE RESERVE COMPONENTS THREOF, AS THE CASE MAY BE.

SINCE COMMANDER WHITE IS STATED TO HAVE SERVED IN THE ARMY NURSE CORPS FROM SEPTEMBER 25, 1918, TO JUNE 21, 1919, THE QUESTION ARISES AS TO WHETHER SHE MAY BE REGARDED AS HAVING "SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," SO AS TO ENTITLE HER TO RETIRED PAY OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY OF HER PERMANENT RANK UNDER THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH PROVIDES AS FOLLOWS:

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.

AN OFFICER OF THE NAVY RETIRED IN HIS PERMANENT GRADE OR RANK UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AND WHO OTHERWISE IS WITHIN THE PURVIEW OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, IS ENTITLED TO THE INCREASED RETIRED PAY BENEFITS PROVIDED THEREIN. AND SINCE MEMBERS OF THE NAVY NURSE CORPS ARE NOW COMMISSIONED OFFICERS IN THE REGULAR NAVY (SECTION 203 OF THE ACT OF APRIL 16, 1947, 60 STAT. 47; SECTION 435 OF THE ACT OF AUGUST 7, 1947, 61 STAT. 882), IT SEEMS TO FOLLOW THAT SUCH NURSES ARE ENTITLED TO THE BENEFITS OF RETIREMENT LAWS APPLICABLE TO COMMISSIONED OFFICERS OF THE NAVY, GENERALLY, EXCEPT TO THE EXTENT THAT SUCH LAWS MAY BE INCONSISTENT WITH SPECIFIC PROVISIONS OF LAW PERTAINING TO THE RETIREMENT AND RETIRED PAY OF OFFICERS OF THE NAVY NURSE CORPS. HENCE, UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, COMMANDER WHITE WOULD BE ENTITLED TO 75 PERCENTUM OF THE PAY OF HER PERMANENT RANK OF COMMANDER, IF HER SERVICE IN THE ARMY NURSE CORPS MAY BE CONSIDERED SERVICE AS "A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" WITHIN THE PURVIEW OF THE SAID SECTION 15.

IN 1918 THE NURSE CORPS ( FEMALE) OF THE ARMY WAS A PART OF THE MEDICAL DEPARTMENT OF THE ARMY. SEE SECTION 2 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 166, WHICH PROVIDED THAT THE REGULAR ARMY OF THE UNITED STATES SHALL CONSIST OF, INTER ALIA, A MEDICAL DEPARTMENT; AND SECTION 10 OF THE SAID ACT, 39 STAT. 171, WHICH PROVIDED THAT THE MEDICAL DEPARTMENT SHALL CONSIST, INTER ALIA, OF THE " NURSE CORPS AS NOW AUTHORIZED BY LAW.' THE ACT OF JULY 9, 1918, 40 STAT. 879, PROVIDED THAT THEREAFTER THE NURSE CORPS ( FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY SHALL BE KNOWN AS THE ARMY NURSE CORPS AND SHALL CONSIST OF ONE SUPERINTENDENT AND SUCH OTHER NURSES AS MAY BE APPOINTED BY THE SURGEON GENERAL, WITH THE APPROVAL OF THE SECRETARY OF WAR. THE SAID ACT ALSO PRESCRIBED RATES OF PAY FOR NURSES, INCLUDING LONGEVITY AND FOREIGN SERVICE PAY, AND FOREIGN SERVICE PAY, AND THE QUARTERS ALLOWANCE PAYABLE WHEN PUBLIC QUARTERS WERE NOT FURNISHED. WHILE MEMBERS OF THE ARMY NURSE CORPS WERE APPOINTED (RATHER THAN COMMISSIONED OR ENLISTED) IN THE ARMY NURSE CORPS DURING THE PERIOD HERE INVOLVED, THE SAID SECTION 15 EXTENDS ITS BENEFITS TO PERSONNEL WHO SERVED "IN ANY CAPACITY" AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND IT GENERALLY HAS BEEN CONSIDERED THAT SUCH PERSONNEL HAD A MILITARY STATUS AS DISTINGUISHED FROM A CIVILIAN STATUS. SEE 6 COMP. GEN. 543, AND CASES CITED THEREIN. ALSO, IT APPEARS TO HAVE BEEN RECOGNIZED IN VARIOUS STATUTES THAT DURING WORLD WAR I NURSES CONSTITUTED PART OF THE MILITARY AND NAVAL FORCES OF THE UNITED STATES. SEE, GENERALLY, THE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151, AUTHORIZING THE PAYMENT OF A $60 BONUS TO ALL PERSONS, INCLUDING FEMALE SES,"SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING THE PRESENT WAR" WHO HAVE RESIGNED OR HAVE BEEN DISCHARGED SINCE APRIL 6, 1917. ALSO, SEE SECTION 200 OF THE WORLD WAR VETERANS' ACT OF 1924, 43 STAT. 615, WHICH PROVIDED FOR COMPENSATION AND TREATMENT FOR DEATH OR DISABILITY RESULTING FROM PERSONAL INJURY OR DISEASE CONTRACTED IN THE MILITARY OR NAVAL SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921, BY ANY COMMISSIONED OFFICER OR ENLISTED MAN, OR BY ANY MEMBER OF THE ARMY NURSE CORPS ( FEMALE) OR THE NAVY NURSE CORPS ( FEMALE) EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT. ACCORDINGLY, IT REASONABLY MAY BE CONCLUDED THAT COMMANDER WHITE BY REASON OF HER SERVICE IN THE ARMY NURSE CORPS PRIOR TO NOVEMBER 12, 1918, IS TO BE REGARDED AS HAVING SERVED AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO ENTITLE HER, IF OTHERWISE ELIGIBLE, TO 75 PERCENT OF HER ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT.

SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 874, PROVIDES AS FOLLOWS:

ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, 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, WHEN RETIRED, EXCEPT OFFICERS ON A PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT AND THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN: PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER RECALLED TO ACTIVE DUTY, MAY,IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE RETIRED LIST: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY IN THE CASE OF ANY OFFICER WHO HAS BEEN SO COMMENDED IF THE ACT OR SERVICE JUSTIFYING THE COMMENDATION WAS PERFORMED AFTER DECEMBER 31, 1946; PROVIDED FURTHER, THAT NOTHING IN THIS SUBSECTION SHALL NOT APPLY IN THE CASE OF ANY OFFICER WHO HAS BEEN SO COMMENDED IF THE ACT OR SERVICE JUSTIFYING THE COMMENDATION WAS PERFORMED AFTER DECEMBER 31, 1946; PROVIDED FURTHER, THAT NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO INCREASE THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER PLACED UPON THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE: PROVIDED FURTHER, THAT OFFICERS OF THE CLASSES DESCRIBED IN THIS SUBSECTION WHO HAVE BEEN RETIRED PRIOR TO THE DATE OF APPROVAL OF THIS ACT SHALL BE ENTITLED TO THE BENEFITS OF THIS SUBSECTION FROM THE DATE OF APPROVAL OF THIS ACT: AND PROVIDED FURTHER, THAT NOTHING IN THIS SUBSECTION SHALL BE HELD TO REDUCE THE RETIRED RANK OR PAY TO WHICH AN OFFICER WOULD BE ENTITLED UNDER OTHER PROVISION OF LAW.

THE PROVISIONS OF THE SAID SECTION 412 (A) ARE APPLICABLE TO " ALL OFFICERS OF THE NAVY," MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL), WHICH WOULD INCLUDE OFFICERS OF THE NAVY NURSE CORPS COMMISSIONED IN THE REGULAR NAVY PURSUANT TO SECTION 203 OF THE ARMY-NAVY NURSES ACT OF 1947, 60 STAT. 47. CONSEQUENTLY, AN OFFICER OF THE NAVY NURSE CORPS WHO HAS BEEN COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND WHO OTHERWISE IS ELIGIBLE FOR RETIREMENT UNDER OTHER PROVISIONS OF LAW, WOULD BE ENTITLED, UPON RETIREMENT, TO BE PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT, WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE, EITHER PERMANENT OR TEMPORARY, IN WHICH SERVING AT THE TIME OF RETIREMENT. IT IS APPARENT THAT SECTION 412 (A) OF THE SAID ACT DOES NOT AUTHORIZE AN OFFICER SO COMMENDED TO RECEIVE RETIRED PAY BASED UPON SUCH HIGHER HONORARY RANK, AND IT IS DOUBTFUL WHETHER SUCH AN OFFICER, IF SUBSEQUENTLY ASSIGNED TO ACTIVE DUTY, WOULD BE "ENTITLED" TO BE RECALLED IN SUCH HIGHER HONORARY RANK AND RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. THE FACT THAT AN OFFICER MAY BE ACCORDED HIGHER HONORARY RANK ON THE RETIRED LIST DOES NOT AFFECT THE OFFICE HELD BY HIM UPON RETIREMENT. THAT IS TO SAY, A LIEUTENANT OF THE NAVY MAY BE PLACED ON THE RETIRED LIST AS A LIEUTENANT COMMANDER UNDER THE PROVISIONS OF SECTION 412 (A) BUT HIS OFFICE REMAINS THAT OF LIEUTENANT. SEE 22 COMP. GEN. 328, 329. AND IN THE EVENT SUCH AN OFFICER IS ASSIGNED TO ACTIVE DUTY AFTER RETIREMENT, THERE IS NOTHING IN THE SAID SECTION 412 (A) WHICH MAY BE VIEWED AS ENTITLING SUCH AN OFFICER TO BE ASSIGNED TO ACTIVE DUTY IN SUCH HONORARY RANK WITH THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. THE FIRST PROVISO IN THE SAID SECTION 412 (A) SPECIFICALLY AUTHORIZES OFFICERS SO COMMENDED, HOLDING RANK ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY SOLELY BY VIRTUE OF SUCH COMMENDATION, TO BE RECALLED TO ACTIVE DUTY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, IN THE RANK HELD ON THE RETIRED LIST OR THE RANK TO WHICH THEY OTHERWISE WOULD BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK BY VIRTUE OF SUCH COMMENDATION. HOWEVER, THERE IS NO SIMILAR PROVISION IN THE SAID ACT WHICH MAY BE VIEWED AS REQUIRING OR PERMITTING A SPECIALLY COMMENDED RETIRED OFFICER OF THE RANK OF CAPTAIN OR BELOW TO BE RECALLED TO ACTIVE DUTY IN HIS HONORARY RANK AND RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH RANK. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION ENTITLING OFFICERS SO COMMENDED TO BE RECALLED TO ACTIVE DUTY WITH SUCH HONORARY RANK, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT SUCH A RETIRED OFFICER, UPON RECALL TO ACTIVE DUTY, WOULD BE ENTITLED TO BE RECALLED IN SUCH HONORARY RANK AND RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HONORARY RANK.