B-93440, APRIL 19, 1950, 29 COMP. GEN. 412

B-93440, APRIL 19, 1950, 29 COMP. GEN. 412

RETIRED PAY - COMMISSIONED WARRANT OFFICER ADVANCED ON RETIRED LIST - EFFECT OF CAREER COMPENSATION ACT OF 1949 IN VIEW OF THE REQUIREMENT OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 THAT MEMBERS OF THE UNIFORMED SERVICES HAVE THEIR RETIRED PAY COMPUTED UPON THE ACTIVE-DUTY PAY OF THE HIGHEST RANK SATISFACTORILY HELD, THE RETIRED PAY OF A PERMANENT COMMISSIONED WARRANT OFFICER ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT WITH RETIRED PAY BASED ON THAT RANK, UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, IS REQUIRED TO BE COMPUTED UPON THE ACTIVE DUTY PAY OF A LIEUTENANT--- UNLESS RESTORED TO A COMMISSIONED WARRANT OFFICER STATUS--- EVEN THOUGH THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER WITH COMPARABLE SERVICE WOULD BE HIGHER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 19, 1950:

THE RETIRED PAY ACCOUNT OF LIEUTENANT THOMAS SIMS LOWRY, UNITED STATES NAVY, RETIRED, SHOWS THAT, EFFECTIVE OCTOBER 1, 1949, THE OFFICER RECEIVED AN ADJUSTMENT IN HIS RETIRED PAY UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A LIEUTENANT WITH OVER 30 YEARS' SERVICE AND THE HIGHER RETIRED PAY OF A COMMISSIONED WARRANT OFFICER WITH OVER 30 YEARS' SERVICE OF WHICH OVER 20 YEARS WERE COMMISSIONED SERVICE WITH A CREDITABLE RECORD ON THE ACTIVE LIST.

IT APPEARS THAT ON AUGUST 1, 1947, LIEUTENANT LOWRY, THEN A PERMANENT COMMISSIONED WARRANT OFFICER, WAS PLACED ON THE RETIRED LIST, HAVING COMPLETED OVER 30 YEARS' SERVICE OF WHICH OVER 20 YEARS WERE COMMISSIONED SERVICE WITH A CREDITABLE RECORD ON THE ACTIVE LIST. PRIOR TO HIS RETIREMENT HE HAD HELD AN APPOINTMENT AS LIEUTENANT, FOR TEMPORARY SERVICE, UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, AND, THE SECRETARY OF THE NAVY HAVING DETERMINED THAT HE HAD SATISFACTORILY SERVED IN THAT RANK, HE WAS ADVANCED TO SUCH RANK, PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE SAID ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28.

UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, THE ACTIVE-DUTY PAY OF LIEUTENANT LOWRY'S PERMANENT RANK OF COMMISSIONED WARRANT OFFICER AND THE ACTIVE-DUTY PAY OF THE RANK OF LIEUTENANT TO WHICH HE WAS ADVANCED ON THE RETIRED LIST WERE THE SAME. HENCE, HIS RETIRED PAY UNDER EITHER RANK WAS THE SAME. HOWEVER, THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 839, REPEALED THE PAY READJUSTMENT ACT OF 1942, SUPRA, WITH THE EXCEPTION OF CERTAIN PROVISIONS THEREOF NOT HERE MATERIAL. THE 1949 ACT PRESCRIBES VARIOUS PAY GRADES AND ESTABLISHES RATES OF MONTHLY BASIC PAY WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE. WARRANT OFFICERS, INCLUDING COMMISSIONED WARRANT OFFICERS, ARE TO BE DISTRIBUTED BY THE SECRETARY CONCERNED IN THE PAY GRADES (W-1 TO W-4) PRESCRIBED FOR WARRANT OFFICERS, WHEREAS COMMISSIONED OFFICERS, OTHER THAN COMMISSIONED WARRANT OFFICERS, ARE ASSIGNED TO PAY GRADES O-1 TO O-8 BY THE TERMS OF THE STATUTE.

BY ALNAV 97 DATED OCTOBER 12, 1949 (PAGE 34 OF THE NAVY DEPARTMENT BULLETIN, SEMIMONTHLY EDITION, OCTOBER 15, 1949), THE SECRETARY OF THE NAVY ASSIGNED COMMISSIONED WARRANT OFFICERS WITH 12 YEARS' OR MORE COMMISSIONED SERVICE AND WITH A CERTIFICATE OF CREDITABLE RECORD FOLLOWING 10 OR 20 YEARS' COMMISSIONED SERVICE, AS APPLICABLE, TO PAY GRADE W-4, WHILE LIEUTENANTS, BY THE TERMS OF THE STATUTE, ARE ASSIGNED TO PAY GRADE O-3. UNLIKE THE SITUATION PREVIOUSLY EXISTING, THE ACTIVE DUTY PAY OF A COMMISSIONED WARRANT OFFICER AND THE ACTIVE-DUTY PAY OF A LIEUTENANT WITH SERVICE COMPARABLE TO THAT OF LIEUTENANT LOWRY ARE NO LONGER THE SAME, THE FORMER BEING AT THE RATE OF $465.60 PER MONTH, AND THE LATTER BEING AT THE RATE OF $441.75 PER MONTH.

WITH RESPECT TO RETIRED PAY, SECTION 511 OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION ( OCTOBER 1, 1949) (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY 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 * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * 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 * * * PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED * * * AND PROVIDED FURTHER, THAT ENLISTED PERSONS AND WARRANT OFFICERS OF THE UNIFORMED SERVICES, HERETOFORE OR HEREAFTER ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK OR GRADE PURSUANT TO ANY PROVISION OF LAW SHALL, IF APPLICATION THEREFOR IS MADE TO THE SECRETARY CONCERNED WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF THIS SECTION OR WITHIN ONE YEAR AFTER THE DATE OF ADVANCEMENT ON THE RETIRED LIST, WHICHEVER IS THE LATER, AND SUBJECT TO THE APPROVAL OF THE SECRETARY CONCERNED, BE RESTORED TO THEIR FORMER RETIRED ENLISTED OR WARRANT-OFFICER STATUS, AS THE CASE MAY BE, AND SHALL THEREAFTER BE DEEMED TO BE ENLISTED OR WARRANT OFFICER PERSONNEL, AS APPROPRIATE, FOR ALL PURPOSES, INCLUDING THE COMPUTATION OF THEIR RETIRED PAY BASED ON SUCH ENLISTED OR WARRANT OFFICER RANK, GRADE, OR RATING, AS THE CASE MAY BE.

SINCE A LIEUTENANT IN THE NAVY HOLDS A HIGHER RANK THAN A COMMISSIONED WARRANT OFFICER (SECTION 12 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, AS AMENDED, 34 U.S.C. 259) THE QUESTION ARISES AS TO WHETHER LIEUTENANT LOWRY IS AUTHORIZED, UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, TO HAVE HIS RETIRED PAY COMPUTED ON THE HIGHER ACTIVE-DUTY PAY OF A COMMISSIONED WARRANT OFFICER OR WHETHER HIS RETIRED PAY IS REQUIRED TO BE COMPUTED ON THE LOWER ACTIVE-DUTY PAY OF A LIEUTENANT.

THE LANGUAGE OF METHOD (B) OF SECTION 511 CLEARLY REQUIRES THAT PERSONNEL COMING WITHIN ITS PROVISIONS SHALL HAVE THEIR MONTHLY RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING SATISFACTORILY HELD BY THEM, AS DETERMINED BY THE SECRETARY CONCERNED. AND, SINCE, AS NOTED ABOVE, THE RANK OF A LIEUTENANT IN THE NAVY IS HIGHER THAN THAT OF A COMMISSIONED WARRANT OFFICER, THE CONCLUSION IS REQUIRED THAT THE RETIRED PAY OF THE OFFICER HERE CONCERNED IS AUTHORIZED TO BE COMPUTED ONLY ON THE ACTIVE-DUTY PAY OF A LIEUTENANT--- ASSUMING, OF COURSE, THAT THE SAID OFFICER HAS NOT BEEN RESTORED TO COMMISSIONED WARRANT OFFICER STATUS IN ACCORDANCE WITH THE FINAL PROVISO OF SECTION 511--- NOTWITHSTANDING THE FACT THAT THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER, WITH COMPARABLE SERVICE, WOULD BE HIGHER.

IT MAY BE ADMITTED THAT, WITH NOTHING MORE, THE CONCLUSION REACHED ABOVE WOULD BE HARSH AND POSSIBLY CONTRARY TO THE PURPOSE AND INTENT OF STATUTES IN PARI MATERIA PREVIOUSLY ENACTED. HOWEVER, THE APPARENT HARDSHIP IN THE MATTER IS MITIGATED TO A LARGE EXTENT BY THE FINAL PROVISO OF SECTION 511 WHICH PERMITS ENLISTED PERSONS AND WARRANT OFFICERS, INCLUDING COMMISSIONED WARRANT OFFICERS (SEE SECTION 102 (E) OF THE ACT, 63 STAT. 804), ADVANCED ON THE RETIRED LIST TO A HIGHER OFFICER RANK OR GRADE PURSUANT TO ANY PROVISION OF LAW TO BE RESTORED, UPON THEIR OWN APPLICATION, TO THEIR RETIRED ENLISTED OR WARRANT OFFICER STATUS IF SUCH RESTORATION BE APPROVED BY THE SECRETARY CONCERNED. THUS, THE CONGRESS HAVING MADE PROVISION FOR OFFICERS IN LIEUTENANT LOWRY'S SITUATION TO BE RESTORED TO THEIR COMMISSIONED WARRANT OFFICER STATUS ON THE RETIRED LIST AND RECEIVE THE HIGHER RETIRED PAY INCIDENT THERETO, THERE WOULD APPEAR TO BE NO JUSTIFICATION FOR THIS OFFICE TO IGNORE THE LITERAL PROVISIONS OF THE LAW AND ARRIVE AT A CONCLUSION WHICH WOULD ALLOW SUCH OFFICERS TO RECEIVE THE HIGHER RETIRED PAY OF A COMMISSIONED WARRANT OFFICER WITHOUT RESORTING TO THE PROVISIONS PERMITTING THEM, SUBJECT TO THE APPROVAL OF THE SECRETARY, TO BE FORMALLY RESTORED TO THEIR COMMISSIONED WARRANT OFFICER STATUS. IT MAY BE NOTED THAT SUCH A CONCLUSION WOULD DISCRIMINATE AGAINST OTHER COMMISSIONED OFFICERS IN THE RETIRED LIST OF EQUAL RANK AND SERVICE, SINCE THEY WOULD RECEIVE LESS PAY THAN WOULD FORMER COMMISSIONED WARRANT OFFICERS OF LIKE COMMISSIONED RANK. THERE APPEARS NO REASON TO CONCLUDE THAT THE CONGRESS INTENDED ANY SUCH DISCRIMINATION, THE WAY BEING LEFT OPEN FOR SUCH FORMER COMMISSIONED WARRANT OFFICERS TO RECEIVE THE HIGHER PAY BY REVERTING TO THEIR PRIOR STATUS. ACCORDINGLY, THE AUDIT DIVISION WILL WITHHOLD CREDIT IN THE ACCOUNT OF THE DISBURSING OFFICER CONCERNED FOR THE PAYMENT HERE IN QUESTION AND FOR OTHER LIKE PAYMENTS, UNLESS, OF COURSE, IT BE SHOWN THAT THE PAYMENT IS FOR A PERIOD SUBSEQUENT TO THE OFFICER'S HAVING BEEN RESTORED TO HIS COMMISSIONED WARRANT OFFICER STATUS AS AUTHORIZED BY THE STATUTE.