B-97827, JANUARY 18, 1951, 30 COMP. GEN. 312

B-97827, JANUARY 18, 1951, 30 COMP. GEN. 312

PAY - RETIRED - COAST GUARD - COMPUTATION UNDER CAREER COMPENSATION ACT OF 1949 SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 IN EFFECT REMOVED THE PRIOR STATUTORY LIMITATIONS ON RETIREMENT PAY RIGHTS BASED UPON THE HIGHEST TEMPORARY RANKS, GRADES, OR RATINGS IN COMPUTING UNDER METHOD (B) OF THAT SECTION RETIREMENT PAY OF MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, THEREFORE, SUBJECT TO OTHER LIMITATIONS OF SECTION 511, MEMBERS OF THE COAST GUARD, RETIRED PRIOR TO OCTOBER 1, 1949, ARE ENTITLED TO RETIREMENT PAY COMPUTED ON THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING SATISFACTORILY HELD UNDER EITHER A PERMANENT OR TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE TREASURY, NOTWITHSTANDING THE PROVISIONS OF LAW UNDER WHICH APPOINTED OR DATE OF APPOINTMENT. COMPARE 29 COMP. GEN. 404.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JANUARY 18, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 29, 1950, REQUESTING DECISION ON QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF CERTAIN PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, THE FIRST TWO OF WHICH ARE AS FOLLOWS:

1. DOES SECTION 510 OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZE THE RETIRED PAY OF AN OFFICER OR ENLISTED MAN OF THE COAST GUARD WHO WAS RETIRED FOR ANY REASON PRIOR TO 1 OCTOBER, 1949, AND WHO WAS NOT RECALLED TO ACTIVE DUTY PRIOR TO SAID DATE, TO BE COMPUTED ON THE BASIS OF A HIGHER RANK, GRADE OR RATING THAN THAT IN WHICH RETIRED OR UPON WHICH HIS RETIRED PAY IS BASED, PROVIDED HIS SERVICE IN SUCH HIGHER RANK, GRADE OR RATING IS CERTIFIED AS SATISFACTORY BY THE SECRETARY OF THE TREASURY?

2. DOES SECTION 511 OF THE AFOREMENTIONED ACT AUTHORIZE THE RETIRED PAY OF A COAST GUARD OFFICER OR ENLISTED MAN RETIRED FOR ANY REASON PRIOR TO OCTOBER 1, 1949, WITH THE EXCEPTION OF ENLISTED MEN RETIRED PURSUANT TO THE ACT OF MAY 24, 1939, 53 STAT. 755, AND WHO ARE RECALLED TO ACTIVE DUTY AND RELEASED THEREFROM PRIOR TO OCTOBER 1, 1949, TO BE COMPUTED UPON THE BASIS OF A HIGHER RANK, GRADE OR RATING HELD WHILE SERVING ON ACTIVE DUTY UPON RECALL FROM THE RETIRED LIST, PROVIDED HIS SERVICE IN SUCH HIGHER RANK, GRADE OR RATING, IS CERTIFIED AS SATISFACTORY BY THE SECRETARY OF THE TREASURY?

IT IS STATED THAT CERTAIN ENLISTED MEN, AND POSSIBLY SOME OFFICERS, OF THE COAST GUARD WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, HAVE SERVED IN A HIGHER RANK, GRADE, OR RATING THAN THAT IN WHICH RETIRED OR UPON WHICH THEIR RETIRED PAY IS BASED. IN SOME CASES THE HIGHER RANKS, GRADES, OR RATINGS WERE HELD PRIOR TO RETIREMENT, WHILE IN OTHER CASES THE HIGHER RANKS, GRADES, OR RATINGS WERE NOT HELD UNTIL AFTER RETIREMENT BUT WHILE SERVING ON ACTIVE DUTY AS RETIRED OFFICERS OR ENLISTED MEN PRIOR TO OCTOBER 1, 1949. IT IS STATED THAT THE RETIRED PAY OF SUCH PERSONNEL WAS NOT COMPUTED IMMEDIATELY PRIOR TO OCTOBER 1, 1949, ON THE BASIS OF THE HIGHER RANKS, GRADES, OR RATINGS BECAUSE OF THE ABSENCE OF STATUTORY AUTHORITY THEREFOR, AND THAT SUCH PERSONNEL HAVE NOT SERVED ON ACTIVE DUTY SUBSEQUENT TO OCTOBER 1, 1949. ALSO, IT IS POINTED OUT THAT THE SAID SECTION 511, 63 STAT. 829, PROVIDES IN METHOD (B) THEREOF FOR COMPUTATION OF:

* * * 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 OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, OR FORMER MEMBER, WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE MEMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM; * * *

YOUR QUESTIONS WERE SUBMITTED BECAUSE OF DOUBTS AS TO WHETHER THE SAID METHOD (B) IN SECTION 511 AUTHORIZES THE RETIRED PAY, RETIREMENT PAY, OR EQUIVALENT PAY OF A MEMBER RETIRED PRIOR TO OCTOBER 1, 1949, TO BE COMPUTED ON THE BASIS OF A HIGHER RANK, GRADE, OR RATING THAN THAT AUTHORIZED FOR RETIRED PAY PURPOSES BY THE LAW IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949.

THE SUBMISSION DOES NOT CITE THE STATUTORY PROVISIONS OR OTHER AUTHORITY UNDER WHICH MEMBERS OF THE COAST GUARD HERE INVOLVED SERVED IN HIGHER RANKS, GRADES, OR RATINGS THAN THOSE IN WHICH RETIRED OR UPON WHICH THEIR RETIRED PAY IS BASED. HOWEVER, IT IS UNDERSTOOD INFORMALLY THAT THE CASES INVOLVED MAY BE CLASSIFIED GENERALLY IN THREE GROUPS: (1) CERTAIN ENLISTED MEN AND OFFICERS WHO WRE TEMPORARILY APPOINTED ON OR AFTER JULY 1, 1946, TO HIGHER RANKS, GRADES, OR RATINGS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AND WHO, UPON RETIREMENT, WERE PLACED ON THE RETIRED LIST IN LOWER RANKS, GRADES, OR RATINGS HELD BY THEM PRIOR TO JULY 1, 1946; (2) ENLISTED MEMBERS WHO WERE APPOINTED TEMPORARY WARRANT OFFICERS PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE ACT OF APRIL 21, 1924, 43 STAT. 106, 14 U.S.C. 206 (B), AND WHO LATER REVERTED TO THEIR PERMANENT ENLISTED STATUS; AND (3) ENLISTED MEMBERS WHO WERE PROMOTED TO HIGHER RATINGS UNDER THE GENERAL AUTHORITY TO MAKE PROMOTIONS TO MEET THE NEEDS OF THE SERVICE AND WHO WERE LATER REDUCED IN RATING FOR REASONS OF ECONOMY OR REDUCTION IN FORCE. THE FIRST OF THE SAID GROUPS APPARENTLY INCLUDES MEMBERS WHO HAVE HELD HIGHER TEMPORARY RANKS OR GRADES SINCE JUNE 30, 1946, BUT WHO ARE NOT COVERED BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, 28, WHICH AUTHORIZES THE RETIREMENT OF CERTAIN MEMBERS OF THE NAVY, MARINE CORPS AND, BY ASSIMILATION, THE COAST GUARD, IN HIGHER TEMPORARY GRADES, WITH RETIRED PAY BASED THEREON, BUT WHICH RESTRICTS SUCH BENEFITS TO THE HIGHEST RANK IN WHICH AN OFFICER SERVED PRIOR TO JULY 1, 1946. THE SECOND GROUP INCLUDES THOSE COVERED BY THE ACT OF APRIL 21, 1924, 43 STAT. 106, SECTION 6 (B) OF WHICH PROVIDES THAT ANY ENLISTED MAN IN THE PERMANENT COAST GUARD MAY BE APPOINTED AS A TEMPORARY WARRANT OFFICER AND ANY ENLISTED MAN SO APPOINTED SHALL BE ENTITLED TO RETIREMENT IN THE SAME MANNER AS THOUGH HE HAD CONTINUED TO HOLD HIS PERMANENT RATING. IT IS UNDERSTOOD THAT THE THIRD GROUP INCLUDES ENLISTED MEN WHO WERE PROMOTED TO HIGHER RATINGS UNDER THE GENERAL AUTHORITY VESTED IN THE COAST GUARD TO DISTRIBUTE ENLISTED MEN IN RATINGS ESTABLISHED BY THE SECRETARY BUT WHO, PRIOR TO RETIREMENT, WERE REDUCED IN RATING INCIDENT TO REDUCTION IN FORCE.

BY SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, THE LIMITATIONS CONTAINED IN PRIOR STATUTES WITH RESPECT TO RETIRMENT PAY RIGHTS BASED UPON THE HIGHEST TEMPORARY RANKS, GRADES, OR RATINGS WERE IN EFFECT REMOVED IN CONNECTION WITH THE COMPUTATION UNDER METHOD (D) OF RETIREMENT PAY OF MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, FOR THE PURPOSE OF ASCERTAINING WHETHER GREATER BENEFITS ACCRUE UNDER METHOD (A) OR (B) AS THEREIN PROVIDED. HENCE, SUBJECT TO THE OTHER LIMITATIONS EXPRESSLY OR IMPLIEDLY CONTAINED IN THE SAID SECTION 511, MEMBERS OF THE UNIFORMED SERVICES, RETIRED PRIOR TO OCTOBER 1, 1949, ARE ENTITLED TO HAVE THEIR RETIREMENT PAY COMPUTED AS THEREIN PROVIDED ON 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," WITHOUT REGARD TO THE PROVISIONS OF LAW UNDER WHICH SUCH APPOINTMENT WAS MADE OR THE DATE OF SUCH APPOINTMENT. CF. 29 COMP. GEN. 404, ANSWER TO QUESTION (C).

ON SUCH BASIS, YOUR FIRST TWO QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE, IT NOT BEING UNDERSTOOD, HOWEVER, WHY THE LANGUAGE IN THE SECOND QUESTION "WITH THE EXCEPTION OF ENLISTED MEN RETIRED PURSUANT TO THE ACT OF MAY 24, 1939, 53 STAT. 755," WAS INCLUDED THEREIN. THAT STATUTE AUTHORIZES THE RETIREMENT OF ENLISTED MEN AFTER 20 YEARS' SERVICE UNDER CERTAIN CONDITIONS AND NO REASON IS APPARENT WHY THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 WOULD NOT APPLY TO THEM THE SAME AS TO OTHER ENLISTED MEMBERS RETIRED PRIOR TO OCTOBER 1, 1949. IF THERE BE ANY QUESTION ON THAT MATTER, IT MAY BE RESUBMITTED.

YOUR THIRD QUESTION IS AS FOLLOWS:

3. DOES SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 AUTHORIZE THE RETIRED PAY OF AN OFFICER OR ENLISTED MAN OF THE COAST GUARD WHO WAS RETIRED FOR ANY REASON, AND WHO WAS RECALLED TO ACTIVE DUTY AND SERVED ON ACTIVE DUTY ON OR AFTER 1 OCTOBER, 1949, IN A HIGHER RANK, GRADE OR RATING, TO BE COMPUTED, UPON RELEASE FROM ACTIVE DUTY, UPON THE BASIS OF SUCH HIGHER RANK, GRADE OR RATING HELD WHILE SERVING ON ACTIVE DUTY UPON RECALL FROM THE RETIRED LIST?

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, PROVIDES, INTER ALIA, THAT MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO HAVE BEEN, OR MAY HEREAFTER BE RETIRED, ETC., SHALL BE ENTITLED TO RECEIVE INCREASES IN RETIRED PAY, FOR ALL DUTY PERFORMED AFTER RETIREMENT, WITH A PROVISO THAT THE INCREASED RETIRED PAY TO WHICH SUCH A MEMBER IS ENTITLED UPON RELEASE FROM ACTIVE DUTY IS TO BE COMPUTED ON A PERCENTAGE OF THE BASE AND LONGEVITY PAY OR THE BASIC PAY, AS THE CASE MAY BE, AS PRESCRIBED THEREIN, OF "THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED * * * EXCEPT FOR THE FACT HE IS ALREADY A RETIRED PERSON.' NOTHING IS FOUND IN THESE PROVISIONS REQUIRING OR CONTEMPLATING THAT THE RETIRED PAY IN SUCH CASES SHALL, IPSO FACTO, BE COMPUTED ON THE BASIS OF A HIGHER RANK, GRADE, OR RATING HELD WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT. THAT DEPENDS ON WHETHER THE MEMBER WOULD OTHERWISE BE ENTITLED TO BE RETIRED IN SUCH HIGHER RANK, GRADE, OR RATING, AT THE TIME OF RELIEF FROM ACTIVE DUTY, IF HE HAD NOT THERETOFORE BEEN RETIRED. THAT WOULD DEPEND, IN TURN, ON SUCH FACTORS AS WHETHER SUCH HIGHER RANK, GRADE, OR RATING WAS PERMANENT OR TEMPORARY, OR PERHAPS HONORARY, AND TO THE PARTICULAR PROVISIONS OF RETIREMENT LAW THEN IN EFFECT AS APPLIED TO HIS PARTICULAR CASE. IT APPEARS, THEREFORE, THAT NO CATEGORICAL ANSWER CAN BE GIVEN TO YOUR THIRD QUESTION. IN CONNECTION WITH SUCH MATTER, HOWEVER, IT MAY BE NOTED THAT TITLE OF THE UNITED STATES CODE, RELATING TO THE COAST GUARD, AS REVISED AND ENACTED INTO LAW BY PUBLIC LAW 207, APPROVED AUGUST 4, 1949, 63 STAT. 524, EXPRESSLY PROVIDES IN SECTION 422 THAT ALL RETIRED PERSONNEL WHEN RECALLED TO ACTIVE DUTY SHALL SERVE IN THE GRADE OR RATING IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT. SEE, ALSO, PAGE A- 36 OF REPORT NO. 557, 81ST CONGRESS, OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, WHERE THE REASON FOR SUCH RESTRICTION IS STATED.