B-82473, JANUARY 17, 1951, 30 COMP. GEN. 308

B-82473, JANUARY 17, 1951, 30 COMP. GEN. 308

PAY - RETIRED - ARMY OFFICER ADVANCED ON RETIRED LIST - SERVICE PRIOR TO NOVEMBER 12, 1918 AN ARMY OFFICER WITH SERVICE TO NOVEMBER 12, 1918, WHO WAS RETIRED AFTER JUNE 1, 1942, IN HIS PERMANENT RANK UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 13, 1940, AFTER HAVING SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK FOR NOT LESS THAN SIX MONTHS DURING WORLD WAR II, IS ENTITLED UNDER SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHER TEMPORARY RANK AND TO HAVE HIS RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE-DUTY PAY OF SUCH HIGHER TEMPORARY RANK. 25 COMP. GEN. 274 AND 26 ID. 932, MODIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. B. J. TULLINGTON, DEPARTMENT OF THE ARMY, JANUARY 17, 1951:

BY ENDORSEMENT OF DECEMBER 16, 1948, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE A LETTER FROM YOUR PREDECESSOR, COLONEL C. B. LENOW, DATED NOVEMBER 26, 1948, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF COLONEL FRED E. DAVIS, U.S. ARMY, RETIRED, IN THE AMOUNT OF $243.86, COVERING AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD JUNE 29, 1948, THROUGH NOVEMBER 30, 1948, AT THE RATE OF $48.13 PER MONTH.

IT IS STATED THAT THE OFFICER WAS PLACED ON THE RETIRED LIST EFFECTIVE FEBRUARY 28, 1943, IN THE GRADE OF LIEUTENANT COLONEL, PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, AND THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, HAVING ATTAINED THE AGE OF 60 ON FEBRUARY 6, 1943. ALSO IT IS NOTED THAT THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1950, INDICATES THAT THE OFFICER WAS TEMPORARILY APPOINTED A COLONEL, AUS, AND SERVED ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THAT GRADE FROM AUGUST 10, 1942, TO DECEMBER 25, 1943. THE SAID REGISTER FURTHER SHOWS THAT THE OFFICER WAS APPOINTED A CAPTAIN IN THE QUARTERMASTER SECTION, OFFICERS' RESERVE CORPS, JUNE 6, 1917, AND PROMOTED TO MAJOR, QUARTERMASTER CORPS, USA, FEBRUARY 18, 1919. A STATEMENT ON VOUCHER AND STATEMENTS MADE BY THE OFFICER IN COMMUNICATIONS TO THIS OFFICE INDICATE THAT HIS CLAIM FOR THE DIFFERENCE BETWEEN 75 PERCENTUM OF THE PAY OF A LIEUTENANT COLONEL WITH OVER 24 YEARS' SERVICE AND 75 PERCENTUM OF THE PAY OF A COLONEL WITH EQUAL LENGTH OF SERVICE IS ON THE BASIS THAT HE SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.

SECTION 203 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1085, PROVIDES, INTER ALIA, THAT COMMISSIONED OFFICERS OF THE REGULAR ARMY, THERETOFORE OR THEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH THEY SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS, AS DETERMINED BY THE SECRETARY OF THE ARMY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY "AT THE RATE PRESCRIBED BY LAW," COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH THEY WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE. IT IS ASSUMED FROM YOUR SUBMISSION OF THE MATTER THAT PURSUANT TO SUCH PROVISION THE SECRETARY OF THE ARMY HAS DETERMINED THAT COLONEL DAVIS SERVED SATISFACTORILY IN HIS TEMPORARY GRADE OF COLONEL FOR SIX MONTHS OR MORE DURING THE PERIOD MENTIONED AND HAS BEEN ADVANCED ON THE RETIRED LIST TO THAT GRADE.

SECTION 3 OF THE ACT OF JUNE 13, 1940, SUPRA, PROVIDES, INTER ALIA, THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL "UPON HIS OWN APPLICATION" BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT. HOWEVER, SINCE IT DOES NOT APPEAR COLONEL DAVIS WAS RETIRED UPON HIS OWN APPLICATION BUT APPARENTLY RETIRED INVOLUNTARILY FOR AGE, IT IS NOT CLEAR THAT SUCH PROVISION WOULD APPLY TO HIS CASE. CF. DECISION DATED JULY 13, 1950, 30 COMP. GEN. 15. BUT IT IS NOT NECESSARY TO DECIDE THAT QUESTION IF COLONEL DAVIS IS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENTUM OF THE PAY OF A COLONEL BY VIRTUE OF THE PROVISIONS IN SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, SUPRA, TOGETHER WITH THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, WHICH READS AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICE 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.

IN DECISION OF JUNE 18, 1947, 26 COMP. GEN. 932, IT WAS HELD THAT THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 DOES NOT AUTHORIZE THE RETIRED PAY OF AN OFFICER OF THE REGULAR NAVY, VOLUNTARILY RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, TO BE COMPUTED AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THE HIGHEST TEMPORARY GRADE HELD BY HIM. THE CONCLUSION REACHED IN THAT AND SEVERAL OTHER DECISIONS OF THIS OFFICE WAS BASED LARGELY UPON A DECISION DATED SEPTEMBER 18, 1945, 25 COMP. GEN. 274, TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS HELD THAT OFFICERS OF THE REGULAR NAVY WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO WERE TEMPORARILY SERVING IN HIGHER GRADES PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, WHEN VOLUNTARILY RETIRED UNDER SECTION 1443, REVISED STATUTES (40 YEARS' SERVICE); THE ACT OF MAY 13, 1908, 35 STAT. 128 (30 YEARS' SERVICE); OR SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950 (20 YEARS' COMMISSIONED SERVICE), WERE ENTITLED, UNDER THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY OF THEIR PERMANENT GRADES, BUT NOT AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THEIR TEMPORARY GRADES. IN 1945, WHEN THE SAID DECISION WAS RENDERED, THE THEN EXISTING LAW DID NOT AUTHORIZE OFFICERS OF THE NAVY TO RECEIVE RETIRED PAY BASED UPON THEIR HIGHER TEMPORARY GRADES-- - EXCEPT IN THE CASES OF OFFICERS WHO INCURRED PHYSICAL DISABILITY, OR REACHED THE AGE OF 64 YEARS, WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE. NEVERTHELESS, THE VIEW WAS ADVANCED THAT, BY VIRTUE OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, AN OFFICER RETIRED ON OR AFTER JUNE 1, 1942, WHO HAD SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO, AT THE TIME OF RETIREMENT, WAS SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, WAS ENTITLED, EVEN THOUGH NOT RETIRED FOR AGE OR DISABILITY, TO HAVE HIS RETIRED PAY COMPUTED UNDER THE SAID FOURTH PARAGRAPH ON THE BASIS OF THE ACTIVE-DUTY PAY OF HIS HIGHER TEMPORARY GRADE. THIS OFFICE, IN DISAGREEING WITH SUCH VIEW, TOOK THE POSITION IN THE SAID DECISION OF SEPTEMBER 18, 1945, THAT (QUOTING FROM 25 COMP. GEN. 274, 277/---

* * * SINCE THE ACT OF JULY 24, 1941, DEALING SPECIFICALLY WITH THE SUBJECT MATTER OF RETIRED PAY ON ACCOUNT OF SERVICE IN HIGHER TEMPORARY RANKS THEREUNDER, CLEARLY RESTRICTS PAYMENT OF RETIRED PAY BASED ON THE HIGHER TEMPORARY GRADES TO CASES OF OFFICERS WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENTS, IT WOULD REQUIRE A CLEAR SHOWING OF LEGISLATURE PURPOSE TO WARRANT A CONCLUSION THAT THE GENERAL LANGUAGE EMPLOYED IN THE SAID SECTION 15 WAS INTENDED TO GRANT TO THE CLASS OF OFFICERS MENTIONED THEREIN THE RIGHT TO HAVE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THEIR HIGHER TEMPORARY GRADES OR RANKS.

THAT IS TO SAY, WHILE THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 FIXED A 75 PERCENTUM RETIREMENT PAY RATE FOR ALL OFFICERS THEREAFTER RETIRED WHO HAD SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, THERE WAS NO AUTHORITY IN THAT PROVISION TO APPLY SUCH RATE TO THE PAY OF HIGHER TEMPORARY GRADES.

SUBSEQUENT TO THAT DECISION, HOWEVER, LEGISLATION WAS ENACTED SPECIFICALLY PROVIDING THAT PERSONNEL ON THE ACTIVE LIST OF THE NAVY, WHEN SUBSEQUENTLY RETIRED, SHOULD BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE AND RANK IN WHICH THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS AND SHOULD RECEIVE RETIRED PAY COMPUTED AT THE "RATE PRESCRIBED BY LAW" AND APPLICABLE IN EACH INDIVIDUAL CASE "BUT BASED UPON SUCH HIGHER RANK.' SIMILAR PROVISION WAS MADE FOR ADVANCEMENT AND INCREASED RETIRED PAY FOR NAVAL PERSONNEL ON THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WHO HAD, WHILE SERVING ON ACTIVE DUTY, SATISFACTORILY SERVED IN A HIGHER TEMPORARY RANK. SEE SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28. ALSO, SEE SECTION 7 OF THE SAID ACT OF FEBRUARY 21, 1947. SUBSTANTIALLY SIMILAR PROVISIONS WERE LATER MADE IN SECTION 203 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, SUPRA, FOR THE ADVANCEMENT OF PERSONNEL OF THE ARMY AND AIR FORCE ON THE APPLICABLE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH THEY SERVED DURING THE WAR PERIOD, WITH RETIRED PAY "AT THE RATE PRESCRIBED BY LAW" BASED UPON SUCH HIGHER GRADE. SEE, ALSO, SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 829. THUS, IT WILL BE SEEN THAT THE LAW NOW NOT ONLY PRESCRIBES A SPECIAL 75 PERCENT RETIREMENT PAY RATE FOR OFFICERS WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, IT ALSO SPECIFICALLY AUTHORIZES RETIREMENT OF PERSONNEL OF THE ARMED FORCES IN THEIR HIGHEST TEMPORARY WORLD WAR II GRADES AND RANKS, WITH RETIRED PAY "AT THE RATE PRESCRIBED BY LAW" BASED ON SUCH HIGHER RANKS. SUCH SUBSEQUENT LEGISLATION SPECIFICALLY AUTHORIZING THE COMPUTATION OF RETIREMENT PAY ON THE BASIS OF HIGHER TEMPORARY GRADES THUS LARGELY REMOVED THE BASIC PREMISE FOR THE SAID DECISION OF SEPTEMBER 18, 1945, AND IT NOW APPEARS THAT THE RULE IN THAT DECISION SHOULD NOT HAVE BEEN EXTENDED TO CASES ARISING UNDER SUCH SUBSEQUENT LEGISLATION. A FAILURE TO RECOGNIZE THIS WOULD NEGATIVE IN THIS AND OTHER CASES THE SPECIAL BENEFIT OR RETIREMENT PAY DIFFERENTIAL WHICH THE CONGRESS INTENDED TO BESTOW ON OFFICERS WHO HAD SERVICE PRIOR TO THE END OF HOSTILITIES IN THE FIRST WORLD WAR, AS AGAINST THOSE WHO HAD NO SUCH SERVICE. CF. 39 COMP. GEN. 15, SUPRA.

IT IS CONCLUDED, THEREFORE, THAT THERE IS NO REMAINING ADEQUATE BASIS FOR HOLDING THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 ARE APPLICABLE ONLY TO THE PERMANENT RANK OR GRADE IN CASES ARISING UNDER THE SAID 1946 AND 1948 ACTS WHERE THE CONGRESS HAS AUTHORIZED RETIRED PAY AT THE RATE "PRESCRIBED BY LAW" AND BASED ON A HIGHER TEMPORARY GRADE OR RANK. TO THE EXTENT THAT PREVIOUS DECISIONS OF THIS OFFICE HAVE HELD SUCH PROVISIONS INAPPLICABLE TO THE PAY OF AN OFFICER'S TEMPORARY GRADE OR RANK IN SUCH CASES, THEY ARE MODIFIED ACCORDINGLY. ON SUCH BASIS, ASSUMING THAT THE SECRETARY OF THE ARMY HAS DETERMINED THAT COLONEL DAVIS SERVED SATISFACTORILY IN THE GRADE OF COLONEL FOR NOT LESS THAN SIX MONTHS DURING THE PERIOD SEPTEMBER 8, 1940, TO JUNE 30, 1946, AND THAT THE SAID RETIRED OFFICER OTHERWISE QUALIFIES UNDER THE LAW, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.