B-872, FEBRUARY 11, 1939, 18 COMP. GEN. 650

B-872, FEBRUARY 11, 1939, 18 COMP. GEN. 650

RETIREMENT - NAVY PROMOTION ACT OF JUNE 23, 1938 - APPLICABILITY TO COAST AND GEODETIC SURVEY OFFICERS OFFICERS OF THE COAST AND GEODETIC SURVEY ARE NOT ENTITLED TO RETIREMENT OR TO THE RETIRED PAY PROVIDED FOR LINE OFFICERS OF THE NAVY BY SECTION 12 (E) OF THE NAVY PROMOTION ACT OF JUNE 23, 1938, 52 STAT. 950, THE ACT BY ITS VERY TERMS BEING LIMITED TO LINE OFFICERS OF THE NAVY EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, AND SECTION 11 OF THE ACT OF MAY 18, 1920, APPLYING TO THE COAST AND GEODETIC SURVEY THE GENERAL LAWS OF THE NAVY RELATING TO RETIREMENT OF OFFICERS OF THE NAVY NOT OF ITSELF BEING JUSTIFICATION FOR THE APPLICATION TO SUCH OFFICERS OF RETIREMENT PROVISIONS MADE SPECIFICALLY APPLICABLE ONLY TO LINE OFFICERS OF THE NAVY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, FEBRUARY 11, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 20, 1939, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER PROVISIONS FOR RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY CONTAINED IN SECTION 12 (E) OF THE NAVY PROMOTION ACT OF JUNE 23, 1938 (PUBLIC, 703, 75TH CONGRESS), ARE APPLICABLE TO COMMISSIONED OFFICERS OF THE U.S. COAST AND GEODETIC SURVEY.

SECTION 12 OF THE ACT READS, IN PART, AS FOLLOWS:

"/E) WHEN OFFICERS OF THE LINE OF THE NAVY, OTHER THAN COMMISSIONED WARRANT OFFICERS, HAVE COMPLETED TWENTY YEARS' COMMISSIONED SERVICE, THEY MAY AT ANY TIME THEREAFTER, UPON THEIR OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH RETIRED PAY COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION: PROVIDED, THAT THE ACT OF FEBRUARY 28, 1931 (46 STAT. 1431), INSOFAR AS THE PROVISIONS THEREOF ARE EMBODIED IN SECTION 388 (A) OF TITLE 34 OF THE U.S.C. IS HEREBY REPEALED.'

SUBSECTION (B), REFERRED TO ABOVE, CONTAINS THE FOLLOWING PROVISION:

"/B) * * *, WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, 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.'

RETIREMENT OF COMMISSIONED OFFICERS OF THE U.S. COAST AND GEODETIC SURVEY IS PROVIDED FOR IN THE ACT OF MAY 18, 1920; 41 STAT. 603; U.S.C. 33:864, AS FOLLOWS:

"ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY SHALL HEREAFTER APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY.'

THE QUESTION SUBMITTED, THEREFORE, IS, MAY OFFICERS OF THE U.S. COAST AND GEODETIC SURVEY WHO HAVE COMPLETED TWENTY YEARS' COMMISSIONED SERVICE BE RETIRED AND PLACED ON THE RETIRED LIST AT ANY TIME THEREAFTER, UPON THEIR OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT.

IF YOUR ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, IT IS DESIRED TO KNOW IF SUCH RETIRED OFFICERS MAY BE PAID RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY.

THE ACT OF JUNE 23, 1938, 52 STAT. 944, ENTITLED "AN ACT TO REGULATE THE DISTRIBUTION, PROMOTION, AND RETIREMENT OF OFFICERS OF THE LINE OF THE NAVY, * * *" BY SECTION 1 ESTABLISHED A MERIT SYSTEM OF PROMOTION BY SELECTION IN THE LINE OF THE NAVY; SECTION 2 FIXES THE STRENGTH OF COMMISSIONED OFFICERS OF THE LINE, EXCLUSIVE OF COMMISSIONED WARRANT OFFICERS, AT 5 1/2 PERCENTUM OF THE TOTAL AUTHORIZED ENLISTED STRENGTH OF THE ACTIVE LIST OF THE NAVY, WITH CERTAIN EXCEPTIONS; SECTION 3 PROVIDES FOR THE DISTRIBUTION OF GRADES AS THEREIN ENUMERATED; SECTION 4 PROVIDES FOR ALL PROMOTIONS BY SELECTION OF GRADES ABOVE THAT OF LIEUTENANT (JUNIOR GRADE) OF THE LINE OF THE NAVY; SECTIONS 5 TO 10 PERTAIN TO SELECTION BOARDS, ELIGIBILITY OF OFFICERS FOR CONSIDERATION, ETC.; SECTION 11 REFERS TO PROMOTION, AND SECTION 12 AUTHORIZES RETIREMENT AND RETIREMENT PAY FOR OFFICERS OF THE LINE OF THE NAVY TO EFFECTIVELY CARRY OUT THE PROVISIONS OF THE ACT; SECTION 13 PROVIDES FOR A MINIMUM AVERAGE OF VACANCIES IN THE GRADE OF REAR ADMIRAL AND SECTION 14 PROVIDES FOR PROBATIONARY APPOINTMENTS AND REVOCATION OF COMMISSIONS OF OFFICERS WITH LESS THAN 7 YEARS' SERVICE CONSIDERED BY SELECTION BOARDS AS LACKING IN APTITUDE. THE ACT OF JUNE 23, 1938, ALSO WAS MADE EXPRESSLY APPLICABLE TO OFFICERS OF THE LINE OF THE MARINE CORPS. BY SECTION 16 (A) IT WAS EXPRESSLY PROVIDED THAT THE PROVISIONS OF THE ACT SHALL NOT APPLY TO OFFICERS OF THE STAFF CORPS OF THE NAVY AND SECTION 17 REPEALED ALL LAWS OR PARTS OF LAWS INCONSISTENT WITH THE PROVISIONS OF THE ACT.

SECTION 12 (B) REFERRED TO IN SECTION 12 (E), PARTIALLY QUOTED IN YOUR LETTER, PROVIDES AS FOLLOWS:

OFFICERS, EXCEPT LIEUTENANT COMMANDERS, LIEUTENANTS, AND LIEUTENANTS (JUNIOR GRADE), WHOSE NAMES ARE NOT PLACED UPON THE PROMOTION LIST, SHALL BE PLACED ON THE RETIRED LIST ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAIL OF SELECTION AS BEST FITTED THE SECOND TIME IN SUCCESSIVE YEARS, WITH RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, 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.

SECTION 16 OF THE ACT OF MAY 22, 1917, 40 STAT. 87, 88, AUTHORIZED RELATIVE RANK OF OFFICERS OF THE COAST AND GEODETIC SURVEY WHILE SERVING WITH THE ARMY OR NAVY. SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, PROVIDES:

THAT IN LIEU OF COMPENSATION NOW PRESCRIBED BY LAW, COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS NOW ARE OR HEREAFTER MAY BE PRESCRIBED FOR OFFICERS OF THE NAVY WITH WHOM THEY HOLD RELATIVE RANK AS PRESCRIBED IN THE ACT OF MAY 22, 1917, ENTITLED "AN ACT TO TEMPORARILY INCREASE THE COMMISSIONED AND WARRANT AND ENLISTED STRENGTH OF THE NAVY AND MARINE CORPS, AND FOR OTHER PURPOSES," INCLUDING LONGEVITY; AND ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY SHALL HEREAFTER APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY: PROVIDED, THAT HEREAFTER LONGEVITY PAY FOR OFFICERS IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES.

THE ACT OF JULY 19, 1919, 41 STAT. 163, MAKING APPROPRIATIONS FOR SUNDRY CIVIL EXPENSES OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1920, AT PAGE 215, UNDER COAST AND GEODETIC SURVEY, MADE APPROPRIATION FOR THE SALARY OF THE SUPERINTENDENT AND DEFINITE AND FIXED SALARIES FOR A SPECIFIC NUMBER OF ENGINEERS, JUNIOR ENGINEERS AND AIDES TO BE EMPLOYED IN THE FIELD AND OFFICE AS THE SUPERINTENDENT MAY DIRECT.

THE APPROPRIATION FOR THE COAST AND GEODETIC SURVEY FOR THE FISCAL YEAR 1939 CONTAINED IN THE ACT OF APRIL 27, 1938, 52 STAT. 281, INSOFAR AS PROVIDING FOR THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS, PROVIDES:

PAY, COMMISSIONED OFFICERS: FOR PAY AND ALLOWANCES PRESCRIBED BY LAW FOR COMMISSIONED OFFICERS ON SEA DUTY AND OTHER DUTY, HOLDING RELATIVE RANK WITH OFFICERS OF THE NAVY, INCLUDING ONE DIRECTOR, SIX HYDROGRAPHIC AND GEODETIC ENGINEERS WITH RELATIVE RANK OF CAPTAIN, TEN HYDROGRAPHIC AND GEODETIC ENGINEERS WITH RELATIVE RANK OF COMMANDER, SEVENTEEN HYDROGRAPHIC AND GEODETIC ENGINEERS WITH RELATIVE RANK OF LIEUTENANT COMMANDER, FORTY- SEVEN HYDROGRAPHIC AND GEODETIC ENGINEERS WITH RELATIVE RANK OF LIEUTENANT, SIXTY-ONE JUNIOR HYDROGRAPHIC AND GEODETIC ENGINEERS WITH RELATIVE RANK OF LIEUTENANT (JUNIOR GRADE), TWENTY-NINE AIDES WITH RELATIVE RANK OF ENSIGN, AND INCLUDING OFFICERS RETIRED IN ACCORDANCE WITH EXISTING LAW, $815,000: PROVIDED, THAT THE SECRETARY OF COMMERCE MAY DESIGNATE ONE OF THE HYDROGRAPHIC AND GEODETIC ENGINEERS TO ACT AS ASSISTANT DIRECTOR.

SECTION 11 OF THE ACT OF MAY 18, 1920, APPLIES TO THE COAST AND GEODETIC SURVEY THE GENERAL LAWS OF THE NAVY RELATING TO RETIREMENT OF OFFICERS OF THE NAVY AND WHICH ARE APPLICABLE TO ALL OFFICERS OF THE NAVY; THAT SECTION DOES NOT EXTEND TO THE COAST AND GEODETIC SURVEY SPECIAL PROVISIONS FOR RETIREMENT ADOPTED IN CONNECTION WITH AND TO ACCOMPLISH THE PURPOSE OF SELECTING AND PROMOTING ONLY LINE OFFICERS OF THE NAVY.

THE PROVISIONS OF THE ACT OF JUNE 23, 1938, SPECIFICALLY AND CLEARLY APPLICABLE ONLY TO THE LIMITED CLASS OF COMMISSIONED OFFICERS OF THE NAVY KNOWN AS LINE OFFICERS, WHICH TERM HAS A WELL DEFINED MEANING, IT SEEMS TO FOLLOW WITHOUT SERIOUS QUESTION THAT ALL OTHER OFFICERS ARE NECESSARILY EXCLUDED FROM THESE PROVISIONS OF THE ACT WHETHER THEY BE MEMBERS OF THE NAVY OR OF ANY OTHER SERVICE WHO OTHERWISE MIGHT BE ENTITLED TO RETIREMENT AND RETIREMENT PAY UNDER THE GENERAL RETIREMENT LAWS OF THE NAVY. THE DISCLOSED PURPOSE OF THE ACT OF JUNE 23, 1938, BEING LIMITED TO LINE OFFICERS OF THE NAVY, IT HAS NO APPLICATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY BY REASON OF ANYTHING CONTAINED IN SECTION 11 OF THE ACT OF MAY 18, 1920. SEE BRISTOW V. UNITED STATES, 47 CT.CLS. 46; HUSE V. UNITED STATES, 43 ID. 19; ROBERTS V. UNITED STATES, 44 ID. 411, 418.

YOU ARE INFORMED THAT OFFICERS OF THE COAST AND GEODETIC SURVEY ARE NOT ENTITLED TO RETIREMENT OR TO THE RETIRED PAY PROVIDED FOR LINE OFFICERS OF THE NAVY UNDER THE PROVISIONS OF SECTION 12 (E) OF THE CITED PROMOTION ACT FOR LINE OFFICERS OF THE NAVY.