B-100766, APRIL 26, 1951, 30 COMP. GEN. 419

B-100766, APRIL 26, 1951, 30 COMP. GEN. 419

PAY - RETIRED - TEMPORARILY PROMOTED NAVY OFFICERS - EFFECT OF COMBAT COMMENDATIONS THE ADVANCEMENT IN RANK AUTHORIZED BY SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AS AMENDED, OR SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED, UPON RETIREMENT OF A NAVY OFFICER WITH COMBAT COMMENDATION DOES NOT CONSTITUTE AN APPOINTMENT TO SUCH RANK WITHIN THE PURVIEW OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, NOR IS IT A TEMPORARY RANK WITHIN THE PURVIEW OF SECTION 402 (D) OF SUCH ACT, SO THAT IN THE EVENT SUCH AN OFFICER SERVES ON ACTIVE DUTY IN SUCH RANK THAT FACT WOULD NOT OPERATE TO AUTHORIZE THE COMPUTATION OF RETIRED PAY BASED ON THE PAY OF SUCH ADVANCED RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1951, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION ON THE FOLLOWING QUESTION:

WHEN OFFICERS ARE ADVANCED ON THE RETIRED LIST BY REASON OF COMBAT CITATION PURSUANT TO THE PROVISIONS OF 34 U.S.C. 404 (1) OR 34 U.S.C. 410N AND ARE RECALLED TO OR CONTINUED ON ACTIVE DUTY IN SUCH RANK, MAY THE ADVANCED RANK SO HELD BY THEM BY VIRTUE OF COMBAT CITATION BE CONSIDERED THE "HIGHEST FEDERALLY RECOGNIZED RANK" WITHIN THE MEANING OF SECTION 511 OR A "TEMPORARY RANK" WITHIN THE MEANING OF THE SECOND PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, IN DETERMINING ENTITLEMENT TO RETIRED PAY UNDER THE LATTER PROVISIONS OF LAW?

SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, 34 U.S.C. 404 (1/--- REPEALED BY SECTION 436 (G) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 882--- PROVIDED AS FOLLOWS:

ALL LINE OFFICERS OF THE NAVY WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT AS PROVIDED IN SECTION 404 (H) OF THIS TITLE, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.

SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, AS AMENDED, 34 U.S.C., SUPP. III, 410N, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT OFFICERS ON A PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, SHALL, UPON RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN * * *.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 818, PROVIDES GENERALLY FOR THE PAYMENT OF DISABILITY RETIREMENT PAY AND THE SECOND PROVISO THEREOF READS AS FOLLOWS:

PROVIDED FURTHER, THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER * * *.

SECTION 511 OF THE SAID 1949 ACT, 63 STAT. 839, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (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 THE 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 * * *. (ITALICS SUPPLIED.)

IT WILL BE NOTED THAT BOTH SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AND SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA-- SEE, ALSO, SECTION 30 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1279, AS AMENDED BY SECTION 10 OF THE ACT OF MARCH 3, 1931, 46 STAT. 1485; THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120; AND THE ACT OF JUNE 6, 1942, 56 STAT. 328--- INDICATE BEYOND ANY DOUBT THAT THE RETIRED PAY OF THE OFFICERS GRANTED ADVANCED RANK THEREUNDER WAS NOT TO BE COMPUTED ON THE PAY OF SUCH HIGHER RANK. AS A MATTER OF FACT, SUCH INCREASE IN RETIRED PAY AS WAS GRANTED THEREUNDER WAS DENIED TO OFFICERS RETIRED ON OR AFTER OCTOBER 1, 1949. SEE SECTION 522 (A) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 835, WHICH AMENDED SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 BY DELETING THEREFROM LANGUAGE AUTHORIZING SPECIALLY COMMENDED OFFICERS TO RECEIVE RETIRED PAY AT THE RATE OF THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT. COMPARE THE ACT OF JUNE 6, 1942, 56 STAT. 328, AS ORIGINALLY ENACTED AND AS AMENDED BY SECTION 522 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 836. HENCE, THE MEANING OF SECTION 402 (D) AND 511 OF THE CAREER COMPENSATION ACT WOULD HAVE TO BE VERY CLEAR BEFORE THIS OFFICE WOULD BE JUSTIFIED IN SO CONSTRUING SUCH PROVISIONS AS TO GIVE TO SOME OFFICERS THE VERY SUBSTANTIAL BENEFIT OF HAVING THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY OF THE ADVANCED RANK GRANTED THEM BY THE SAID 1938 AND 1947 STATUTES.

IT SEEMS CLEAR THAT SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 REFERS ONLY TO A RANK, GRADE, OR RATING TO WHICH A MEMBER OF THE UNIFORMED SERVICES WAS DULY APPOINTED BY COMPETENT AUTHORITY, REFERRING AS IT DOES TO THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY "APPOINTMENT" SATISFACTORILY HELD. AND, IT WOULD APPEAR TO BE WELL SETTLED THAT WHILE THE CONGRESS MAY CHANGE THE MERE RANK OF AN OFFICER ON THE RETIRED LIST AT PLEASURE WITHOUT COMING IN CONFLICT WITH THE CONSTITUTION, AN "APPOINTMENT" TO AN EXECUTIVE OFFICE MAY BE MADE ONLY BY THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE MANNER PRESCRIBED BY THE CONSTITUTION AND MANY NOT BE MADE BY CONGRESSIONAL ENACTMENT. SEE WOOD V. UNITED STATES, 15 C.1CLS. 151, AFFIRMED, 107 U.S. 414. IT IS NOT INDICATED, NOR DOES IT APPEAR, THAT THE OFFICERS TO WHOM YOU REFER HAVE EVER ACTUALLY BEEN GIVEN APPOINTMENTS TO THE HIGHER HONORARY RANK GIVEN THEM BY THE CONGRESS BY THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AS AMENDED, OR SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, AND THEREFORE, SUCH HIGHER HONORARY RANK MAY NOT BE CONSIDERED TO BE A HIGHER RANK SATISFACTORILY HELD WITHIN THE PURVIEW OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

WITH RESPECT TO THE ABOVE-QUOTED SECOND PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT, IT WILL BE NOTED THAT SUCH PROVISO REFERS TO A HIGHER "TEMPORARY" RANK OR GRADE HELD BY A MEMBER "AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER.' OBVIOUSLY, THE OFFICERS HERE INVOLVED DID NOT HOLD THE HIGHEST HONORARY RANK, TO WHICH THEY WERE ADVANCED "UPON RETIREMENT" OR "WHEN RETIRED," AT THE TIME OF PLACEMENT OF THEIR NAMES ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT. MOREOVER, SUCH HIGHER HONORARY RANK IS NOT A TEMPORARY RANK WITHIN THE PURVIEW OF THE SAID SECTION 402 (D).

HENCE, ASIDE FROM THE QUESTION WHETHER SECTION 402 (D) PROPERLY MIGHT BE CONSIDERED AS HAVING APPLICATION TO A TEMPORARY RANK AWARDED BY STATUTE BUT TO WHICH THE MEMBER NEVER WAS DULY APPOINTED, IT IS CLEAR THAT SUCH SECTION AFFORDS NO AUTHORITY FOR OFFICERS ADVANCED TO A HIGHER RANK UNDER THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, AS AMENDED, OR SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED, SUPRA, TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY OF SUCH HIGHER RANK. CF. DECISION OF OCTOBER 18, 1950, 30 COMP. GEN. 163.

FOR THE REASONS STATED, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.