B-117807, JUNE 3, 1954, 33 COMP. GEN. 584

B-117807, JUNE 3, 1954, 33 COMP. GEN. 584

PAY - RETIRED - COAST AND GEODETIC SURVEY OFFICER HOLDING HONORARY HIGHER RANK OF REAR ADMIRAL WHILE UNITED STATES REPRESENTATIVE WITH INTERNATIONAL ORGANIZATION A COMMANDER IN THE COAST AND GEODETIC SURVEY WHO WAS APPOINTED BY THE PRESIDENT TO SERVE WITH AN INTERNATIONAL ORGANIZATION PURSUANT TO A PRIVATE LAW WHICH PROVIDED THE OFFICER WAS TO HAVE THE RANK OF REAR ADMIRAL (LOWER HALF) OF THE COAST AND GEODETIC SURVEY WHILE SO SERVING, AND THAT SUCH APPOINTMENT SHOULD NOT AFFECT THE OFFICER'S PERMANENT RANK OR RETIREMENT BENEFITS, HELD THE RANK OF REAR ADMIRAL ON AN HONORARY BASIS AS DISTINGUISHED FROM AN ACTUAL PAY RANK OF THE COAST AND GEODETIC SURVEY, AND THEREFORE SUCH RANK CANNOT BE CONSIDERED FOR RETIRED PAY PURPOSES.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, JUNE 3, 1954:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1953, REQUESTING DECISION AS TO WHETHER PAUL A. SMITH, NOW A COMMANDER IN THE COAST AND GEODETIC SURVEY, WILL BE ELIGIBLE FOR RETIREMENT IN AUGUST 1954 AS A REAR ADMIRAL (LOWER HALF) BY REASON OF HAVING SERVED DURING THE APPROXIMATE PERIOD JUNE 20, 1947, TO AUGUST 1, 1953, AS ALTERNATE AND REPRESENTATIVE OF THE UNITED STATES WITH AN INTERNATIONAL ORGANIZATION UNDER APPOINTMENTS MADE BY THE PRESIDENT PURSUANT TO THE PROVISIONS OF PRIVATE LAW 5, 80TH CONGRESS, APPROVED MAY 15, 1947, AND PRIVATE LAW 297, 81ST CONGRESS, APPROVED OCTOBER 6, 1949.

IT APPEARS THAT IN AUGUST 1954 PAUL A. SMITH WILL HAVE SERVED FOR 30 YEARS AS A COMMISSIONED OFFICER IN THE COAST AND GEODETIC SURVEY AND THAT HE HAS REQUESTED TO BE VOLUNTARILY RETIRED AT THAT TIME UNDER THE PROVISIONS OF SECTION 13 OF THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS' ACT OF 1948, 62 STAT. 299, 33 U.S.C. 853L. YOU EXPRESS THE VIEW THAT THE APPOINTMENT OF PAUL A. SMITH BY THE PRESIDENT TO SERVE ON SPECIAL DUTY PURSUANT TO THE ABOVE-CITED PRIVATE LAWS ,WAS ANALOGOUS IN ALL RESPECTS TO THE APPOINTMENTS TO OTHER FLAG RANKS IN THE COAST AND GEODETIC SURVEY" AND ACCORDINGLY YOU REQUEST TO BE ADVISED WHETHER PAUL A. SMITH WILL BE ELIGIBLE TO RETIRE AT THE APPROPRIATE TIME WITH THE RANK AND RETIRED PAY OF A REAR ADMIRAL (LOWER HALF) IN THE COAST AND GEODETIC SURVEY.

PRIVATE LAW 5, 80TH CONGRESS, APPROVED MAY 15, 1947, AUTHORIZED THE PRESIDENT TO APPOINT PAUL A. SMITH, THEN A LIEUTENANT COMMANDER IN THE COAST AND GEODETIC SURVEY, AS ALTERNATE REPRESENTATIVE OF THE UNITED STATES TO THE INTERIM COUNCIL OF THE PROVISIONAL INTERNATIONAL CIVIL AVIATION ORGANIZATION, OR ITS SUCCESSOR, AND AS REPRESENTATIVE OF THE UNITED STATES TO THE AIR NAVIGATION COMMITTEE OF THE PROVISIONAL INTERNATIONAL CIVIL AVIATION ORGANIZATION. THE SAID PRIVATE LAW PROVIDED THAT DURING THE TIME PAUL A. SMITH HELD THE OFFICES THEREIN AUTHORIZED HE WAS TO "HAVE THE RANK OF REAR ADMIRAL (LOWER HALF) OF THE COAST AND GEODETIC SURVEY" AND HE WAS TO RECEIVE "SUCH COMPENSATION AND ALLOWANCES AS THE SECRETARY OF STATE SHALL PRESCRIBE PAYABLE FROM APPROPRIATIONS MADE BY LAW FOR THE DEPARTMENT OF STATE.' UNDER PRIVATE LAW 297, 81ST CONGRESS, APPROVED OCTOBER 6, 1949, THE PRESIDENT WAS AUTHORIZED TO APPOINT PAUL A. SMITH AS REPRESENTATIVE OF THE UNITED STATES TO THE COUNCIL OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION AND SAID PRIVATE LAW 297 FURTHER PROVIDED THAT DURING THE TIME HE HELD SUCH OFFICE HE WAS TO "HAVE THE RANK OF REAR ADMIRAL (LOWER HALF) OF THE COAST AND GEODETIC SURVEY" AND, IN LIEU OF HIS PAY AS A COMMISSIONED OFFICER IN THE COAST AND GEODETIC SURVEY, HE WAS TO RECEIVE "SUCH COMPENSATION AND ALLOWANCES AS THE SECRETARY OF STATE SHALL PRESCRIBE PAYABLE FROM APPROPRIATIONS MADE BY LAW FOR THE DEPARTMENT OF STATE.'

EACH OF THE ABOVE-CITED PRIVATE LAWS SPECIFICALLY PROVIDED THAT PAUL A. SMITH'S APPOINTMENT TO, ACCEPTANCE, AND SERVICE AS ALTERNATE AND REPRESENTATIVE OF THE UNITED STATES THEREUNDER SHOULD IN NO WAY AFFECT ANY STATUS, OFFICE, RANK, OR GRADE OCCUPIED OR HELD BY HIM IN THE COAST AND GEODETIC SURVEY OR ANY EMOLUMENT, PERQUISITE, RIGHT, PRIVILEGE, ELIGIBILITY FOR PROMOTION OR RETIREMENT, OR OTHER BENEFITS INCIDENT TO OR ARISING OUT OF ANY SUCH STATUS, OFFICE, RANK, OR GRADE, AND THAT SO LONG AS HE HELD THE OFFICES THEREIN AUTHORIZED HE SHOULD RETAIN HIS PERMANENT RANK AND GRADE OR SUCH RANK AND GRADE TO WHICH HE MIGHT BE PROMOTED BY REASON OF HIS POSITION ON THE LINEAL LIST OF THE COAST AND GEODETIC SURVEY.

THESE SPECIFIC PROVISIONS OF PRIVATE LAWS 5 AND 297 ARE CLEAR AND UNAMBIGUOUS. IT THUS SEEMS EVIDENT THAT PAUL A. SMITH'S APPOINTMENT TO, ACCEPTANCE AND SERVICE AS ALTERNATE AND REPRESENTATIVE OF THE UNITED STATES THEREUNDER DID NOT IN ANY WAY AFFECT HIS PERMANENT RANK OR GRADE IN THE COAST AND GEODETIC SURVEY OR IN ANY MANNER INCREASE OR DECREASE EITHER HIS ELIGIBILITY FOR PROMOTION OR RETIREMENT OR ANY RIGHT OR PRIVILEGE, RESPECTING RETIREMENT OR OTHER BENEFIT, TO WHICH HE OTHERWISE WAS ENTITLED. ALSO, DURING THE PERIOD THAT HE SERVED IN THE OFFICES SO AUTHORIZED HE RETAINED FIRST, HIS PERMANENT GRADE OF LIEUTENANT COMMANDER AND SUBSEQUENTLY THE GRADE OF COMMANDER, TO WHICH IT APPEARS HE LATER WAS PROMOTED (SEE ROSTER OF COMMISSIONED OFFICERS, U.S. COAST AND GEODETIC SURVEY, DATED MAY 1, 1952) BY REASON OF HIS POSITION ON THE LINEAL LIST OF THE COAST AND GEODETIC SURVEY. MOREOVER, UNDER THE EXPRESS PROVISIONS OF THE SAID PRIVATE LAWS HE RECEIVED, IN LIEU OF HIS PAY AS A COMMISSIONED OFFICER IN THE COAST AND GEODETIC SURVEY DURING THE PERIOD OF HIS SERVICES THEREUNDER, ONLY SUCH COMPENSATION AND ALLOWANCES AS WAS PRESCRIBED BY THE SECRETARY OF STATE PAYABLE FROM APPROPRIATIONS MADE BY LAW FOR THE DEPARTMENT OF STATE.

UNDER SUCH CIRCUMSTANCES THE RANK OR GRADE OR REAR ADMIRAL (LOWER HALF) OF THE COAST AND GEODETIC SURVEY ACCORDED TO PAUL A. SMITH DURING THE PERIOD OF HIS SERVICES UNDER PRIVATE LAWS 5 AND 297, WAS MERELY HONORARY IN NATURE AS DISTINGUISHED FROM AN ACTUAL PAY RANK OR PAY GRADE OF THE COAST AND GEODETIC SURVEY. CONSEQUENTLY, EVEN IF THE RANK OF REAR ADMIRAL (LOWER HALF) SO CONFERRED ON HIM HAD BEEN HELD BY HIM PRIOR TO JUNE 30, 1946, SUCH RANK COULD NOT BE CONSIDERED A RANK FOR PAY PURPOSES OR RETIRED PAY PURPOSES WITHIN THE SCOPE OF SECTION 17 (A) OF THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS' ACT OF 1948, 62 STAT. 300, 33 U.S.C. 853P (A) WHICH, INSOFAR AS HEREIN PERTINENT, PROVIDES THAT FOR ITS PURPOSES "TEMPORARY RANK" SHALL MEAN TEMPORARY RANK HELD PRIOR TO JUNE 30, 1946, AND THAT EACH COMMISSIONED OFFICER THERETOFORE OR THEREAFTER RETIRED PURSUANT TO ANY PROVISION OF LAW SHALL BE "PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY.' ( ITALICS SUPPLIED.) COMPARE KIMBERLY V. UNITED STATES, 119 C.1CLS. 805, 97 F.1SUPP. 710.

IT APPEARS PERTINENT TO STATE IN CONNECTION WITH THE PROVISIONS OF SECTION 18 OF THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS' ACT OF 1948, 62 STAT. 300, 33 U.S.C. 853Q, THAT THIS OFFICE IS NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD PERMIT PAUL A. SMITH TO BE RETIRED WITH HIGHER RETIRED PAY THAN THAT COMPUTED ON THE PAY OF HIS GRADE OF COMMANDER.