B-92313, MAY 3, 1950, 29 COMP. GEN. 437

B-92313, MAY 3, 1950, 29 COMP. GEN. 437

PAY - RETIRED - COAST GUARD PERSONNEL SECTION 1422, REVISED STATUTES, MADE APPLICABLE TO THE COAST GUARD BY SECTION 367 OF THE ACT OF AUGUST 4, 1949, NOT BEING INCONSISTENT WITH THE CAREER COMPENSATION ACT OF 1949, NOR EXPRESSLY REPEALED THEREBY, REMAINS IN EFFECT, SO THAT ENLISTED MEN OF THE COAST GUARD DETAINED BEYOND THEIR TERMS OF ENLISTMENT WHEN CONSIDERED ESSENTIAL TO THE PUBLIC INTEREST MAY BE PAID AN ADDITIONAL ONE-FOURTH OF THEIR FORMER PAY FOR THE PERIOD OF DETENTION. SECTION 357 (C) OF THE ACT OF AUGUST 4, 1949, NOT HAVING BEEN REPEALED EITHER EXPRESSLY OR BY IMPLICATION BY THE CAREER COMPENSATION ACT OF 1949, IS STILL IN EFFECT, SO THAT THE 10 PERCENT INCREASE IN ACTIVE-DUTY PAY, ETC., AUTHORIZED BY SECTION 357 (C) FOR EXTRAORDINARY HEROISM AND/OR ATTAINMENT OF AVERAGE CONDUCT MARKS NOT LESS THAN THE STATUTORY MAXIMUM REQUIREMENTS, MAY BE PAID TO ENLISTED MEN ON THE RETIRED LIST OF THE COAST GUARD. A RETIRED MEMBER OF THE COAST GUARD WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, WHILE ON THE RETIRED LIST OF THE COAST GUARD, TO RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, MAY 3, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1950, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS ARISING UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949.

YOUR FIRST QUESTION IS WHETHER CERTAIN PROVISIONS OF SECTION 1422, REVISED STATUTES, 34 U.S.C. 201, MADE APPLICABLE TO THE COAST GUARD BY SECTION 367 OF THE ACT OF AUGUST 4, 1949, PUBLIC LAW 207, 14 U.S.C. 367, EFFECTIVE NOVEMBER 1, 1949, REMAIN IN EFFECT IN VIEW OF THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, SUPRA.

THE SAID SECTION 367 OF THE ACT OF AUGUST 4, 1949, 63 STAT. 523, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY AN ENLISTED MAN MAY BE DETAINED IN THE COAST GUARD BEYOND THE TERM OF HIS ENLISTMENT:

"/1) UNTIL THE FIRST ARRIVAL OF THE VESSEL ON WHICH HE IS SERVING AT ITS PERMANENT STATION, OR AT A PORT IN A STATE OF THE UNITED STATES OR IN THE DISTRICT OF COLUMBIA; * * *.'

* * * ENLISTED MEN DETAINED UNDER THE PROVISIONS OF (1) OF THIS SUBSECTION SHALL BE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED FOR ENLISTED PERSONNEL OF THE NAVY DETAINED UNDER SIMILAR CIRCUMSTANCES. * *

(SIMILAR PROVISIONS PREVIOUSLY WERE CONTAINED IN SECTION 1 OF THE ACT OF MAY 26, 1906, AS AMENDED, 14 U.S.C. 35 (D), 1946 EDITION.)

SECTION 1422, REVISED STATUTES, SUPRA, PROVIDES, INTER ALIA, THAT ENLISTED MEN OF THE NAVY DETAINED BEYOND THEIR TERMS OF ENLISTMENT WHEN "ESSENTIAL TO THE PUBLIC INTEREST" UNDER THE CONDITIONS OF THE STATUTE SHALL RECEIVE FOR THE TIME DURING WHICH THEY ARE SO DETAINED AN ADDITION OF ONE-FOURTH THEIR FORMER PAY. SEE, GENERALLY, 21 COMP. GEN. 425.

AS NOTED IN YOUR LETTER, THE SAID SECTION 1422, REVISED STATUTES, WAS NOT EXPRESSLY REPEALED BY THE CAREER COMPENSATION ACT OF 1949 AND YOUR DOUBT IN THE MATTER PRESUMABLY ARISES BECAUSE OF THE PROVISIONS OF SECTION 531 (A) OF SUCH ACT, 63 STAT. 838, WHICH READS, IN PERTINENT PART, AS OLLOWS:

ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED ON THE DATE SUCH PROVISIONS OF THIS ACT BECOME EFFECTIVE. * * *

NOTHING HAS BEEN FOUND IN THE SAID CAREER COMPENSATION ACT OF 1949 WHICH IN ANY WAY WOULD APPEAR TO BE INCONSISTENT WITH THE PROVISIONS OF SECTION 1422, REVISED STATUTES, REFERRED TO ABOVE, AND SINCE, AS NOTED, THEY WERE NOT EXPRESSLY REPEALED, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND QUESTION IS WHETHER SECTION 357 (C) OF THE ACT OF AUGUST 4, 1949, SUPRA, 63 STAT. 521, 14 U.S.C. 357 (C), REMAINS IN EFFECT.

THE STATUTORY PROVISION IN QUESTION READS AS FOLLOWS:

ANY ENLISTED MAN RETIRED BY REASON OF TWENTY YEARS SERVICE, WHETHER VOLUNTARILY OR INVOLUNTARILY, WHO HAS BEEN CITED FOR EXTRAORDINARY HEROISM IN LINE OF DUTY, AS DETERMINED BY THE SECRETARY, WHOSE DETERMINATION SHALL BE FINAL AND CONCLUSIVE, OR ANY ENLISTED MAN SO RETIRED WHOSE AVERAGE MARKS IN CONDUCT DURING HIS SERVICE IN THE COAST GUARD WERE NOT LESS THAN 97 1/2 PERCENT OF THE MAXIMUM, OR ANY ENLISTED MAN SO RETIRED WHO SHALL HAVE BEEN BOTH SO CITED AND SHALL HAVE RECEIVED SUCH AVERAGE MARKS, SHALL BE ENTITLED TO HAVE HIS RETIRED PAY INCREASED BY AN AMOUNT EQUAL TO 10 PERCENT OF THE ACTIVE-DUTY PAY AND PERMANENT ADDITIONS THERETO OF THE GRADE OR RATING WITH WHICH RETIRED.

(SIMILAR PROVISIONS PREVIOUSLY WERE CONTAINED IN SECTION 5 OF THE ACT OF MAY 24, 1939, 53 STAT. 756, 14 U.S.C. 185D, 1946 EDITION.)

THE ABOVE-QUOTED STATUTORY PROVISIONS LIKEWISE WERE NOT EXPRESSLY REPEALED BY THE CAREER COMPENSATION ACT OF 1949 AND NOTHING HAS BEEN FOUND IN THE LATTER ACT WHICH IS INCONSISTENT WITH SUCH STATUTORY PROVISIONS. ACCORDINGLY, YOUR SECOND QUESTION ALSO IS ANSWERED IN THE AFFIRMATIVE. COURSE, THE SAID CAREER COMPENSATION ACT OF 1949 MAKES NO PROVISIONS FOR THE PAYMENT OF PERMANENT ADDITIONS, I.E., THE SO CALLED LONGEVITY PAY, SUCH AS WERE CONTAINED IN PREVIOUS PAY ACTS AND, HENCE, THE 10 PERCENT INCREASE NOW IS TO BE COMPUTED ON THE BASIC PAY PROVIDED FOR IN THE 1949 ACT BASED ON CUMULATIVE YEARS OF SERVICE. CF. DECISION OF APRIL 13, 1950, B-90755, 29 COMP. GEN. 404, TO THE SECRETARY OF THE NAVY, ANSWER TO QUESTION (A).

YOUR THIRD QUESTION RELATES TO CERTAIN PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AUTHORIZING CERTAIN RETIRED PERSONS TO RECEIVE RETIRED PAY---

* * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *.

YOU REQUEST DECISION AS TO WHETHER A RETIRED MEMBER OF THE COAST GUARD ENTITLED TO THE BENEFITS OF THE ABOVE-QUOTED STATUTORY PROVISIONS WHO HELD A HIGHER (FEDERALLY RECOGNIZED) RANK, GRADE, OR RATING WHILE SERVING IN ONE OF THE OTHER BRANCHES OF THE UNIFORMED SERVICES IS ENTITLED, WHILE ON THE RETIRED LIST OF THE COAST GUARD, TO RETIRED PAY COMPUTED ON THE ACTIVE -DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING, PROVIDED, OF COURSE, THAT SUCH SERVICE IN THE HIGHER RANK, GRADE, OR RATING WOULD BE CERTIFIED BY THE SECRETARY CONCERNED AS HAVING BEEN SATISFACTORILY HELD.

THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 REFERRED TO ABOVE STEM FROM SOMEWHAT SIMILAR PROVISIONS CONTAINED IN SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, RELATING PRIMARILY TO THE NAVY, AND SECTION 203 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1085, RELATING TO THE ARMY AND AIR FORCE.

THE BENEFITS OF SECTION 10 OF THE 1941 ACT, AS AMENDED, WERE EXPRESSLY RESTRICTED TO PERSONNEL OF THE REGULAR NAVY AND MARINE CORPS AND THEIR RESPECTIVE RESERVE COMPONENTS, APPOINTED OR ADVANCED THEREIN UNDER AUTHORITY OF THAT ACT, AND BY ASSIMILATION (SECTION 11 (B) OF THE ACT, 55 STAT. 605, AS AMENDED) WERE MADE APPLICABLE TO PERSONNEL OF THE COAST GUARD WHO WERE SO APPOINTED OR ADVANCED IN THAT SERVICE. WHILE THE LANGUAGE OF THE COMPARABLE PROVISION FOR THE ARMY IN SECTION 203 OF THE SAID 1948 ACT IS NOT SPECIFIC IN THAT RESPECT, IT APPEARS EVIDENT THAT THE BENEFITS THEREIN PROVIDED WERE TO BE RESTRICTED TO PERSONNEL WHO HELD HIGHER GRADE OR RANK UNDER THE LAWS PROVIDING FOR TEMPORARY APPOINTMENTS AND PROMOTIONS IN THE ARMY OF THE UNITED STATES (OR THE AIR FORCE OF THE UNITED STATES). SEE, IN THAT CONNECTION, THE STATEMENT MADE IN EXPLANATION OF SUCH PROVISIONS AT THE HEARINGS BEFORE A SUBCOMMITTEE OF THE HOUSE COMMITTEE ON ARMED SERVICES ON THE BILL, H.R. 2744, WHICH BECAME THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS FOLLOWS (PAGE 3356 OF THE REPORT OF THE HEARINGS):

COLONEL LATOSZEWSKI. THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, IS PRESCRIBED AS THE PERIOD DURING WHICH A HIGHER TEMPORARY GRADE MUST HAVE BEEN HELD IN ORDER FOR AN OFFICER TO QUALIFY FOR RETIREMENT IN SUCH GRADE. THE INITIAL DATE IS THE DATE OF THE ACT AUTHORIZING TEMPORARY APPOINTMENTS AND PROMOTIONS IN THE ARMY OF THE UNITED STATES, WHILE THE FINAL DATE COINCIDES WITH THE FINAL DATE SET UP FOR SIMILAR PURPOSES IN PUBLIC LAW 305, SEVENTY-NINTH CONGRESS. ( ITALICS SUPPLIED.)

THERE IS NOTHING IN THE LANGUAGE OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, NOR IN ITS LEGISLATIVE HISTORY, WHICH WOULD INDICATE ANY INTENT TO DISTURB THE POLICY PREVIOUSLY ADOPTED BY THE CONGRESS IN THAT RESPECT. THEREFORE, YOUR THIRD QUESTION IS ANSWERED IN THE NEGATIVE.