B-116619, MARCH 26, 1954, 33 COMP. GEN. 406

B-116619, MARCH 26, 1954, 33 COMP. GEN. 406

PAY - ACTIVE DUTY AND RETIRED - REAR ADMIRAL OF NAVAL RESERVE - COMPUTATION BASIS - UPPER HALF OR LOWER HALF AN OFFICER OF THE NAVAL RESERVE HOLDING THE TEMPORARY GRADE OF REAR ADMIRAL WHOSE NAME WAS PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST PURSUANT TO THE RETIREMENT BENEFIT PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, AS AMENDED, WOULD BE ENTITLED, UNDER THE ACT OF MARCH 17, 1949, AS AMENDED BY SECTION 408 OF THE ARMED FORCES RESERVE ACT OF 1952, ON RECALL TO SPECIAL ACTIVE DUTY FOR TRAINING TO RECEIVE THE PAY AND ALLOWANCE PRESCRIBED FOR A REAR ADMIRAL OF THE UPPER HALF, PROVIDED AN OFFICER OF THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY, JUNIOR TO HIM, IS IN THE UPPER HALF OF THE LIST OF REAR ADMIRALS. AN OFFICER OF THE NAVAL RESERVE HOLDING TEMPORARY OR PERMANENT GRADE OF REAR ADMIRAL WOULD BE ENTITLED TO HAVE RETIRED PAY COMPUTED ON THE PAY OF A REAR ADMIRAL OF THE UPPER HALF IF AT THE TIME HIS NAME IS PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, AS AMENDED, AN OFFICER ON THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY, JUNIOR TO HIM, IS THEN ENTITLED TO THE PAY OF PAY GRADE O-8 (REAR ADMIRAL, UPPER HALF).

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, MARCH 26, 1954:

REFERENCE IS MADE TO LETTER DATED AUGUST 12, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, WITH ENCLOSURES, REQUESTING DECISION WHETHER REAR ADMIRAL SIDNEY W. SOUERS, U.S. NAVAL RESERVE ( RETIRED), IS ENTITLED TO RECEIVE RETIRED PAY BASED ON THE PAY OF A REAR ADMIRAL OF THE UPPER HALF ON AND AFTER JANUARY 1, 1953, THE EFFECTIVE DATE OF THE PLACEMENT OF HIS NAME ON THE U.S. NAVAL RESERVE RETIRED LIST PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS AMENDED, 34 U.S.C. 440H-440Q. AND IN ONE OF THE SAID ENCLOSURES THE QUESTION IS RAISED WHETHER REAR ADMIRAL SOUERS IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES OF PAY GRADE O-8 (REAR ADMIRAL, UPPER HALF) FOR THE PERIOD OF SPECIAL ACTIVE DUTY FOR TRAINING PERFORMED BY HIM FROM JUNE 9 TO 19, 1953. DECISION IS FURTHER REQUESTED ON THE GENERAL QUESTION WHETHER AN OFFICER OF THE NAVAL RESERVE HOLDING TEMPORARY OR PERMANENT GRADE OF REAR ADMIRAL WHO IS GRANTED RETIRED PAY ON OR SUBSEQUENT TO JANUARY 1, 1953, UNDER TITLE III, ACT OF JUNE 29, 1948, IS ENTITLED TO RECEIVE RETIRED PAY BASED ON THE PAY OF A REAR ADMIRAL, UPPER HALF, ON THE BASIS (1) THAT HE BECAME ENTITLED TO PAY OF PAY GRADE O-8 WHILE ON ACTIVE LIST BY REASON OF THE PERFORMANCE OF ACTIVE DUTY, TEMPORARY ACTIVE DUTY, OR ACTIVE DUTY FOR TRAINING ON OR AFTER JANUARY 1, 1953, OR (2) THAT AT THE TIME HE IS GRANTED RETIRED PAY AN OFFICER OF THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY JUNIOR TO HIM IS ENTITLED TO THE PAY OF PAY GRADE O- 8.

WITH RESPECT TO REAR ADMIRAL SOUERS IT IS INDICATED THAT HE WAS TEMPORARILY APPOINTED A REAR ADMIRAL ON NOVEMBER 2, 1945, PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350-350K, AND THAT HE SERVED AS A REAR ADMIRAL UNTIL RELEASED TO INACTIVE DUTY ON NOVEMBER 18, 1946. UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT APPROVED WAS RETURNED TO INACTIVE STATUS ON NOVEMBER 18, 1946, IN THE GRADE OF REAR ADMIRAL, THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY PRIOR TO JUNE 30, 1946, UNDER A TEMPORARY APPOINTMENT. IT IS STATED THAT REAR ADMIRAL SOUERS' APPLICATION FOR THE RETIREMENT BENEFITS PRESCRIBED IN TITLE III OF THE ACT OF JUNE 29, 1948, SUBMITTED BY HIM DECEMBER 1, 1952, WAS APPROVED BY THE SECRETARY OF THE NAVY AND BECAME EFFECTIVE AS OF JANUARY 1, 1953. HE PERFORMED SPECIAL ACTIVE DUTY FOR TRAINING WITH THE NAVAL RESERVE SELECTION BOARD DURING THE PERIOD JUNE 9 TO 19, 1953, INCLUSIVE, IN THE GRADE OR REAR ADMIRAL. SEE 34 U.S.C. 3501 (D). IT IS ALSO INDICATED THAT ON JANUARY 1, 1953, AN OFFICER OF THE ACTIVE LIST OF THE REGULAR NAVY, JUNIOR TO REAR ADMIRAL SOUERS, WAS IN THE UPPER HALF OF THE LIST OF REAR ADMIRALS.

SECTION 303, TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, 34 U.S.C. 440J, GOVERNING THE COMPUTATION OF RETIRED PAY GRANTED TO ANY PERSON PURSUANT TO THE PROVISIONS OF SAID TITLE III, IN PERTINENT PART AS FOLLOWS:

ANY PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL RECEIVE SUCH PAY AT AN ANNUAL RATE EQUAL TO 2 1/2 PERCENTUM OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR) WHICH SHALL CONSIST OF THE SUM OF THE FOLLOWING * * *.

UNDER THE FOREGOING STATUTORY PROVISIONS A PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF TITLE III IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE DUTY BASIC PAY WHICH SUCH PERSON WOULD RECEIVE, IF SERVING, AT THE TIME GRANTED RETIRED PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE.

THERE IS BUT ONE GRADE OF REAR ADMIRAL ALTHOUGH FOR PAY PURPOSES THERE ARE TWO DIVISIONS OF THE OFFICERS OF THE ACTIVE LIST OF THE REGULAR NAVY IN THAT GRADE. 25 COMP. GEN. 281. THE STATED DIVISION FOR PURPOSES OF PAY BETWEEN REAR ADMIRALS OF THE UPPER HALF AND REAR ADMIRALS OF THE LOWER HALF HAS BEEN IN EFFECT SINCE THE NAVAL PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1005. 26 COMP. GEN. 333. THE SAID DIVISION IS REFLECTED AT THE PRESENT TIME IN SECTIONS 115, 211 (N) AND 315 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 815, 822 AND 867, 34 U.S.C. 864A, 305G (N) AND 864B, RESPECTIVELY. ALSO, SEE SECTION 201 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, 37 U.S.C. 232 (B).

THE ACT OF MARCH 17, 1949, 63 STAT. 14, 34 U.S.C. 429, AS AMENDED BY SECTION 408 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 499, EFFECTIVE JANUARY 1, 1953, PROVIDES THAT ANY OFFICER OF THE NAVAL RESERVE SERVING IN THE GRADE OF REAR ADMIRAL SHALL, WHEN OTHERWISE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF WHEN ANY OFFICER OF THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY, JUNIOR TO HIM, IS IN THE UPPER HALF OF THE LIST OF REAR ADMIRALS. THE STATUTE, IN EFFECT, THUS ESTABLISHES TWO DIVISIONS FOR PAY PURPOSES AMONG OFFICERS OF THE NAVAL RESERVE SERVING IN THE GRADE OF REAR ADMIRAL. UNDER THE FOREGOING LAW REAR ADMIRAL SOUERS, AS A RESULT OF HIS TEMPORARY APPOINTMENT TO THE GRADE OF REAR ADMIRAL, AND OF THE PROVISIONS OF 34 U.S.C. 350I (D), CITED ABOVE, WOULD HAVE BEEN RECEIVING, IF SERVING ON ACTIVE DUTY AT THE TIME HIS NAME WAS PLACED ON THE U.S. NAVAL RESERVE RETIRED LIST, THE PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE UPPER HALF SINCE IT IS SHOWN THAT AN OFFICER OF THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY JUNIOR TO HIM WAS THEN IN THE UPPER HALF OF THE LIST OF REAR ADMIRALS. HENCE, THE CONCLUSION IS REQUIRED THAT UNDER THE PROVISIONS OF SECTION 303 OF TITLE III, HIS RETIRED PAY PROPERLY IS TO BE COMPUTED ON THE PAY OF A REAR ADMIRAL OF THE UPPER HALF. THE FIRST QUESTION, ACCORDINGLY, IS ANSWERED IN THE AFFIRMATIVE.

AS ABOVE STATED, THE ACT OF MARCH 17, 1949, PROVIDES THAT ANY OFFICER OF THE NAVAL RESERVE SERVING IN THE GRADE OF REAR ADMIRAL SHALL, UNDER THE CONDITIONS THEREIN SPECIFIED, RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF. THE PLACEMENT OF REAR ADMIRAL SOUERS' NAME ON THE U.S. NAVAL RESERVE RETIRED LIST PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, DID NOT GIVE HIM A RETIRED STATUS FROM WHICH HE COULD BE ORDERED TO ACTIVE DUTY AND THEREFORE HIS ACTIVE DUTY FOR TRAINING IN JUNE 1953 NECESSARILY WAS INCIDENT TO HIS STATUS AS AN OFFICER OF THE NAVAL RESERVE AND NOT HIS STATUS AS A PERSON GRANTED RETIRED PAY UNDER THE SAID TITLE III. COMPARE 28 COMP. GEN. 510, 588, AND 655. ACCORDINGLY, WHILE SERVING ON SPECIAL ACTIVE DUTY FOR TRAINING WITH THE NAVAL RESERVE SELECTION BOARD DURING THE PERIOD JUNE 9 TO 19, 1953, INCLUSIVE, REAR ADMIRAL SOUERS WAS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR A REAR ADMIRAL OF THE UPPER HALF PROVIDED THE CONDITIONS SPECIFIED IN THE ACT OF MARCH 17, 1949, WERE FULLY MET AND ASSUMING THAT HE HELD A COMMISSION IN THE NAVAL RESERVE WHICH WAS IN FULL FORCE AND EFFECT AT THAT TIME.

CONCERNING THE GENERAL QUESTION ON WHICH DECISION IS REQUESTED, IT MAY BE STATED THAT AN OFFICER OF THE NAVAL RESERVE HOLDING TEMPORARY OR PERMANENT GRADE OF REAR ADMIRAL WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY OF A REAR ADMIRAL OF THE UPPER HALF IF AT THE TIME HIS NAME IS PLACED ON THE U.S. NAVAL RETIRED LIST PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, AN OFFICER ON THE ACTIVE LIST OF THE LINE OF THE REGULAR NAVY JUNIOR TO HIM IS THEN ENTITLED TO THE PAY OF PAY GRADE O-8. THE SAID GENERAL QUESTION IS ANSWERED ACCORDINGLY.