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WHO HAVE SERVED SATISFACTORILY IN SUCH RANK. MAY HAVE RETIRED PAY ADJUSTED ON BASIS OF SUCH RANKS BEGINNING OCTOBER 1. 1955: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED. - TO THE EXTENT THAT APPROPRIATIONS ARE STILL AVAILABLE. ON THE BASIS THAT EACH OF THEM IS ENTITLED FROM AND AFTER OCTOBER 1. IT IS STATED THAT THE SECRETARY OF THE NAVY HAS DETERMINED THAT EACH OF THE THREE OFFICERS SERVED SATISFACTORILY ON ACTIVE DUTY AS A BRIGADIER GENERAL SUBSEQUENT TO RETIREMENT. IT WAS HELD THAT AN ADVANCEMENT IN RANK UPON RETIREMENT (UNDER STATUTORY PROVISIONS RELATING TO ADVANCEMENT BY REASON OF COMBAT COMMENDATION) DID NOT CONSTITUTE AN "APPOINTMENT.

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B-106245, MARCH 29, 1955, 34 COMP. GEN. 476

PAY - RETIRED - TEMPORARILY PROMOTED OFFICERS - EFFECT OF COMBAT COMMENDATIONS OFFICERS ADVANCED UPON RETIREMENT TO RANK OF ADMIRAL OR GENERAL BY REASON OF COMBAT COMMENDATION, AND WHO HAVE SERVED SATISFACTORILY IN SUCH RANK, MAY HAVE RETIRED PAY ADJUSTED ON BASIS OF SUCH RANKS BEGINNING OCTOBER 1, 1949, IN VIEW OF DECISION IN ALGER V. UNITED STATES, 126 C.1CLS. 561, WHICH HELD THAT "APPOINTMENT" AS USED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 INCLUDES ADVANCEMENT BY STATUTE AS WELL AS FORMAL APPOINTMENT BY THE PRESIDENT WITH CONFIRMATION BY THE SENATE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL J. F. ELDER, UNITED STATES MARINE CORPS, MARCH 29, 1955:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1954, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED, BY VIRTUE OF THE OPINION OF THE COURT OF CLAIMS IN THE CASE OF JAMES A. ALGER V. UNITED STATES, 126 C. CLS. 561, TO ADJUST THE RETIRED-PAY ACCOUNTS--- TO THE EXTENT THAT APPROPRIATIONS ARE STILL AVAILABLE--- OF BRIGADIER GENERALS ROBERT L. DENIG, ELMER E. HALL AND WALTER N. HILL, ON THE BASIS THAT EACH OF THEM IS ENTITLED FROM AND AFTER OCTOBER 1, 1949, TO RETIRED PAY BASED ON THE RANK OF BRIGADIER GENERAL. IT IS STATED THAT THE SECRETARY OF THE NAVY HAS DETERMINED THAT EACH OF THE THREE OFFICERS SERVED SATISFACTORILY ON ACTIVE DUTY AS A BRIGADIER GENERAL SUBSEQUENT TO RETIREMENT.

METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, EFFECTIVE OCTOBER 1, 1949, AUTHORIZES, FOR MEMBERS OF FORMER MEMBERS OF THE UNIFORMED SERVICES RETIRED PRIOR TO SUCH EFFECTIVE DATE, THE COMPUTATION OF RETIRED PAY ON THE BASIS 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.'

IN DECISION DATED APRIL 26, 1951, 30 COMP. GEN. 419, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT AN ADVANCEMENT IN RANK UPON RETIREMENT (UNDER STATUTORY PROVISIONS RELATING TO ADVANCEMENT BY REASON OF COMBAT COMMENDATION) DID NOT CONSTITUTE AN "APPOINTMENT," WITHIN THE CONTEMPLATION OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, TO THE RANK TO WHICH SO ADVANCED SINCE APPOINTMENT TO AN EXECUTIVE OFFICE MAY BE MADE ONLY BY THE EXECUTIVE BRANCH OF THE GOVERNMENT IN THE MANNER PRESCRIBED BY THE CONSTITUTION AND MAY NOT BE MADE BY CONGRESSIONAL ENACTMENT.

IN THE CASE OF ADOLPH B. MILLER V. UNITED STATES, 123 C.1CLS. 351, DECIDED JUNE 3, 1952, ALSO REFERRED TO IN YOUR LETTER, IT WAS HELD THAT THE PLAINTIFF, UNDER METHOD (B), WAS ENTITLED TO RETIRED PAY AS A COLONEL, UNITED STATES MARINE CORPS, BY VIRTUE OF HIS ADVANCEMENT, AT THE TIME OF HIS RETIREMENT, TO THAT RANK ON THE RETIRED LIST AND HIS SUBSEQUENT RECALL BY THE SECRETARY OF THE NAVY TO ACTIVE DUTY AS A COLONEL. IT WAS INDICATED IN THE OPINION THAT WHEN THE PLAINTIFF WAS SO RECALLED THE SECRETARY OF THE NAVY COULD HAVE ISSUED HIM AN APPOINTMENT AS COLONEL UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZING TEMPORARY APPOINTMENTS BY THE PRESIDENT, WITHOUT CONFIRMATION BY THE SENATE, TO GRADES AND RANKS BELOW THOSE OF REAR ADMIRAL IN THE NAVY OR COAST GUARD AND GENERAL OFFICER IN THE MARINE CORPS.

IN DECISION DATED MARCH 4, 1953, B-106245, ADDRESSED TO LIEUTENANT COLONEL C. A. PHILLIPS, UNITED STATES MARINE CORPS, MARINE CORPS ALLOTMENT OFFICER, IT WAS HELD THAT COLONEL MILLER'S RETIRED PAY MIGHT BE ADJUSTED ON THE BASIS OF THE OPINION OF THE COURT OF CLAIMS IN HIS CASE, BUT THAT THE OPINION DID NOT FURNISH ANY AUTHORITY FOR THE ADJUSTMENT OF THE RETIRED PAY OF GENERALS DENIG, HALL, AND HILL, SINCE THE COURT'S LANGUAGE IN THE MILLER CASE INDICATED THAT THE HOLDING IN THE CASE WAS REACHED ON THE BASIS THAT RECALL TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY WAS EQUIVALENT TO AN APPOINTMENT IN THE GRADE IN WHICH RECALLED AND, HENCE, THAT THE SAID OPINION WAS PERTINENT ONLY IN THOSE CASES INVOLVING ADVANCEMENT TO RANKS BELOW THOSE OF REAR ADMIRAL AND GENERAL OFFICER, THAT IS, TO CASES IN WHICH APPOINTMENTS TO THE RANKS TO WHICH ADVANCED ON THE RETIRED LIST COULD HAVE BEEN MADE WITHOUT CONFIRMATION BY THE SENATE.

HOWEVER, IN THE ALGER CASE, DECIDED NOVEMBER 3, 1953, THE COURT NEGATIVED THE IMPLICATION THAT THE MILLER OPINION WAS RESTRICTED TO CASES OF ADVANCEMENT TO RANKS BELOW THOSE OF GENERAL OR ADMIRAL, AND HELD THAT ALGER WAS ENTITLED, AS OF OCTOBER 1, 1949, TO THE RETIRED PAY OF A REAR ADMIRAL, LOWER HALF, UNITED STATES COAST GUARD, BY REASON OF HIS ADVANCEMENT TO THAT RANK UPON RETIREMENT AND THE FACT THAT HE SERVED SATISFACTORILY ON ACTIVE DUTY IN SUCH RANK SUBSEQUENT TO RETIREMENT. THE COURT DECIDED THAT THE WORD "APPOINTMENT" IN SECTION 511 WAS NOT USED IN A STRICT CONSTITUTIONAL SENSE BUT THAT CONGRESS INTENDED TO GRANT THE RIGHT TO RECEIVE RETIRED PAY COMPUTED UPON THE BASIS OF THE HIGHEST RANK SATISFACTORILY HELD ON ACTIVE DUTY BY THE RETIRED MEMBER DURING HIS ENTIRE CAREER, WHETHER THE RANK BE HELD BY FORMAL "APPOINTMENT" OR BY ADVANCEMENT BY STATUTE.

IN THE LIGHT OF THE COURT'S OPINION IN THE ALGER CASE AND SINCE IT HAS BEEN DETERMINED BY THE SECRETARY OF THE NAVY THAT THE OFFICERS HERE CONCERNED SERVED SATISFACTORILY ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT IN THE RANK OF BRIGADIER GENERAL, TO WHICH ADVANCED ON RETIREMENT, THEIR RETIRED PAY, BEGINNING OCTOBER 1, 1949, IS FOR ADJUSTMENT ON THE BASIS OF SUCH RANK. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

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