B-93176, AUGUST 24, 1956, 36 COMP. GEN. 158

B-93176, AUGUST 24, 1956, 36 COMP. GEN. 158

MILITARY PERSONNEL - PAY - RETIRED - NAVAL RESERVE OFFICERS - COMBAT CITATIONS IN ACCORDANCE WITH THE DECISION IN YARNALL V. UNITED STATES, COURT OF CLAIMS NO. 129-53, DECIDED MARCH 1, 1955, NAVAL RESERVE OFFICERS WHO ARE SPECIALLY COMMENDED FOR COMBAT PERFORMANCE AND WHO ARE GRANTED RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ARE ENTITLED TO RETIRED PAY BASED ON THE THREE- FOURTHS PAY PROVISION IN SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, NOT ONLY PRIOR TO BUT SUBSEQUENT TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 WHICH DELETED THE THREE- FOURTHS PAY PROVISION IN THE 1947 ACT. NAVAL RESERVE OFFICERS WHO HAD BEEN PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE AND WHO WERE GRANTED RETIREMENT PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ARE EXPRESSLY PRECLUDED FROM RECEIVING AN INCREASE IN RETIRED PAY BASED ON SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 FOR OFFICERS SPECIALLY COMMENDED FOR COMBAT DUTY.

TO THE SECRETARY OF THE NAVY, AUGUST 24, 1956:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1955, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING DECISION WHETHER THE OPINION OF THE COURT OF CLAIMS IN THE CASE OF YARNALL V. UNITED STATES, C.1CLS. NO. 129-53, DECIDED MARCH 1, 1955, MAY BE FOLLOWED IN THE CASE OF COMMANDER YARNALL AND OTHER SIMILAR CASES. BY LETTER OF AUGUST 15, 1955, B-93176, AUGUST 15, 1955, WE ADVISED YOU IN EFFECT THAT WE COULD NOT ANSWER THE QUESTIONS PRESENTED UNTIL FINAL DISPOSITION OF THE YARNALL CASE IN THE COURTS.

IN THE YARNALL CASE, THE COURT OF CLAIMS HELD THAT THE OFFICER, HAVING BEEN GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 34 U.S.C. 440K, AS AMENDED, PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 37 U.S.C. 231 NOTE, AND HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT DURING WORLD WAR I, IS ENTITLED TO RETIRED PAY COMPUTED IN ACCORDANCE WITH THE THREE-FOURTHS PAY PROVISION OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, 34 U.S.C. 410N (AND THE PAY SCHEDULES IN EFFECT ON SEPTEMBER 30, 1949), NOT ONLY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT ( OCTOBER 1, 1949) BUT ALSO AFTER THAT DATE, UNDER THE SAVED PAY PROVISIONS OF THAT ACT, THE THREE-FOURTHS PAY PROVISION HAVING BEEN DELETED FROM THE 1947 ACT BY SECTION 522 (A) OF THE 1949 ACT, 34 U.S.C. 410N.

BY DECISION OF APRIL 26, 1950, 29 COMP. GEN. 424, WE HELD THAT COMMANDER YARNALL WAS NOT ENTITLED, BY VIRTUE OF HAVING BEEN SPECIALLY COMMENDED FOR COMBAT DUTY, TO RETIRED PAY COMPUTED AT THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT. THAT DECISION WAS PREDICATED ON THE ESTABLISHMENT BY TITLE III OF THE ACT OF JUNE 29, 1948, OF A RETIREMENT PAY SYSTEM FOR PARTICULAR MEMBERS AND FORMER MEMBERS OF THE ARMED SERVICES ENTIRELY SEPARATE AND DISTINCT FROM THAT PROVIDED FOR MEMBERS GENERALLY, WITH RADICALLY NEW AND DIFFERENT CONDITIONS RESPECTING QUALIFICATION FOR AND COMPUTATION OF RETIRED PAY. WE CONCLUDED THAT THE LAWS GOVERNING THE RETIREMENT PAY SYSTEMS OF THE TWO GROUPS MUST BE REGARDED AS MUTUALLY EXCLUSIVE, SO THAT SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, BEING A LAW RELATING TO MEMBERS GENERALLY, WOULD NOT AFFECT THE RETIREMENT PAY OF THE GROUP WHOSE RIGHT TO RETIREMENT PAY IS GOVERNED BY THE PROVISIONS OF TITLE III OF THE 1948 ACT.

ALSO, WE POINTED OUT THAT SECTION 412 (A) EXPRESSLY PROVIDES THAT NOTHING CONTAINED THEREIN SHALL BE CONSTRUED TO INCREASE THE RETIRED PAY OF OFFICERS THERETOFORE OR THEREAFTER PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, WHICH OFFICERS ARE EXPRESSLY BROUGHT WITHIN THE PROVISIONS OF TITLE III OF THE 1948 ACT BY THE ACT OF APRIL 14, 1949, 63 STAT. 47, 34 U.S.C. 410B. AND IT WAS FURTHER STATED THAT A HOLDING THAT THE THREE-FOURTHS PAY PROVISION OF SECTION 412 (A) OF THE 1947 ACT APPLIES TO A NAVAL RESERVE OFFICER SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN COMBAT AND ENTITLED TO RETIRED PAY UNDER TITLE III OF THE 1948 ACT WOULD RESULT IN THE ANOMALOUS SITUATION THAT SUCH OFFICERS WOULD BE ENTITLED TO RETIREMENT PAY AT THE RATE OF THREE FOURTHS OF THE ACTIVE-DUTY PAY AT THE TIME OF "RETIREMENT" UNLESS THEY PREVIOUSLY HAD BEEN PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, IN WHICH EVENT THEY WOULD NOT BE ENTITLED TO SUCH BENEFIT.

THE REASONING OF THE COURT OF CLAIMS IS SET OUT BELOW. SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, 34 U.S.C. 855H (1946 USED.), ESTABLISHED AN HONORARY RETIRED LIST FOR THE NAVAL RESERVE ON WHICH MEMBERS OF THE NAVAL RESERVE COULD BE PLACED, GENERALLY WITHOUT PAY OR ALLOWANCES, UPON REACHING AGE 64 OR AFTER 30 YEARS' SERVICE IN THE NAVAL RESERVE. SECTION 310 OF THE ACT, 34 U.S.C. 855I (1946 USED.), AUTHORIZED RETIRED PAY AT 50 PERCENT OF ACTIVE-DUTY PAY FOR MEMBERS ON THAT HONORARY RETIRED LIST WHO HAD PERFORMED THE MINIMUM AMOUNT OF ACTIVE SERVICE IN ACCORDANCE WITH ITS PROVISIONS. TITLE III OF THE 1948 ACT ESTABLISHED THE UNITED STATES NAVAL RESERVE RETIRED LIST TO INCLUDE THE NAMES OF ALL NAVAL RESERVE PERSONNEL GRANTED RETIRED PAY UNDER THAT TITLE, THE PROVISIONS OF PUBLIC LAW 305, 79TH CONGRESS, OR OF ANY SUBSEQUENT LAW GRANTING SUCH PERSONNEL RETIRED PAY. YARNALL ARGUED THAT OF THE PERSONS ENTITLED TO RETIRED PAY UNDER TITLE III OF THE 1948 ACT ONLY THOSE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WERE EXCLUDED FROM THE BENEFITS OF SECTION 412 (A) OF THE 1947 ACT.

THE GOVERNMENT ARGUED THAT OFFICERS ON BOTH RETIRED LISTS SHOULD BE EXCLUDED FROM THE BENEFITS OF SECTION 412 (A) AND REITERATED THE VIEWS STATED IN OUR DECISION OF APRIL 26, 1950, 20 COMP. GEN. 424. THE COURT, HOWEVER, STATED THAT THE ISSUE IS WHETHER YARNALL WAS "RETIRED" WITHIN THE MEANING OF SECTION 412 (A) OF THE 1947 ACT. IT SAID THAT, WHILE SECTION 412 (A) PROHIBITS ADDITIONAL BENEFITS FOR ANYONE WHO IS OR MAY IN THE FUTURE BE PLACED ON THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE, IT GRANTS SOME NEW RIGHTS AND PERSONS THERETOFORE RETIRED ARE ENTITLED TO THE BENEFITS OF THE ACT FROM THE DATE OF ITS APPROVAL. IT THEN SAID:

THE UNITED STATES NAVAL RESERVE RETIRED LIST INCLUDES NAVAL RESERVISTS WHO ARE DRAWING RETIREMENT PAY UNDER THE ACT OF 1948 OR UNDER CERTAIN PRIOR AND ALL SUBSEQUENT LEGISLATION; BY THE ACT OF APRIL 14, 1949, * * * IT ALSO INCLUDES THE HONORARY RETIRED LIST OF THE 1938 ACT. CONGRESS LUMPED ALL THESE VARIOUS TYPES OF RETIRED NAVAL RESERVISTS TOGETHER WITH THOSE DRAWING RETIREMENT BENEFITS UNDER THE 1948 ACT. IT USED THE WORD RETIREMENT WHEN SPEAKING OF THE BENEFITS ACCRUING UNDER THE 1948 ACT. CONGRESS MADE NO MENTION OF SECTION 412 (A) OF THE 1947 ACT IN THE 1948 ACT.

IN THESE CIRCUMSTANCES IT IS LOGICAL TO CONSTRUE THE WORD "RETIRED" AS USED IN THE 1947 ACT TO INCLUDE ALSO THOSE WHO HAVE BEEN RETIRED UNDER THE 1948 ACT * * *

WE REACHED THE CONCLUSION IN OUR DECISION OF APRIL 26, 1950, 29 COMP. GEN. 424, NOT BECAUSE THE MATTER WAS ENTIRELY CLEAR ONE WAY OR THE OTHER, BUT BECAUSE WE THOUGHT THE MATTER WAS SUFFICIENTLY DOUBTFUL THAT THE ISSUE SHOULD BE RESOLVED IN THE GOVERNMENT'S INTEREST IN THE ABSENCE OF A DECISION OF A COURT OF COMPETENT JURISDICTION. WHILE THE ARGUMENTS PRESENTED IN OUR DECISION FURNISH SUBSTANTIAL SUPPORT FOR THE CONCLUSION THAT THE CONGRESS DID NOT INTEND THAT PRESENT OR FORMER NAVAL RESERVE OFFICERS GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT SHOULD RECEIVE THE BENEFIT OF THE THREE-FOURTHS PAY PROVISION OF THE 1947 ACT, THAT CONCLUSION IS NOT REQUIRED BY THE STATUTE. IF THE LANGUAGE OF THE 1947 ACT IS GIVEN ITS LITERAL MEANING, IT WOULD SEEM THAT THE CONCLUSION REACHED BY THE COURT OF CLAIMS REPRESENTS A TENABLE AND PERMISSIBLE CONSTRUCTION OF THE STATUTE.

ACCORDINGLY, WE WILL ACCEPT AND FOLLOW THE COURT'S DECISION IN THE YARNALL AND SIMILAR CASES. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

DECISION IS ALSO REQUESTED AS TO WHETHER THE COURT'S DECISION "MAY BE FOLLOWED" IN CASES OF OFFICERS GRANTED RETIREMENT PAY UNDER TITLE III OF THE 1948 ACT, AS AMENDED, WHO PREVIOUSLY HAD BEEN PLACED ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE AND WHO WERE SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT. AS INDICATED ABOVE, SECTION 412 (A) OF THE 1947 ACT EXPRESSLY PROVIDES THAT NOTHING THEREIN CONTAINED "SHALL BE CONSTRUED TO INCREASE THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER PLACED UPON THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE.' IN VIEW OF SUCH EXPRESS PROVISION THE SECOND QUESTION MUST BE ANSWERED IN THE NEGATIVE.