B-129209, OCTOBER 15, 1956, 36 COMP. GEN. 318

B-129209, OCTOBER 15, 1956, 36 COMP. GEN. 318

COAST AND GEODETIC SURVEY COMMISSIONED PERSONNEL - HONORARY ADVANCEMENT ON THE RETIRED LIST - RECALL TO ACTIVE DUTY THE ASSIMILATION PROVISIONS IN THE ACT OF MAY 18, 1920, WHICH AUTHORIZED THE SAME RETIRED LIST ADVANCEMENTS FOR COMBAT COMMENDATION FOR COAST AND GEODETIC SURVEY OFFICERS AS ARE ALLOWED FOR NAVY OFFICERS, WERE NULLIFIED BY THE SPECIAL LEGISLATION ENACTED ON JUNE 6, 1942, FOR RETIRED COAST AND GEODETIC SURVEY OFFICERS, AND, CONSEQUENTLY, 10 U.S.C. 6483, AUTHORIZING RECALL OF RETIRED NAVAL OFFICERS AT THE RANK TO WHICH ADVANCED ON THE RETIRED LIST, IS NOT APPLICABLE TO COAST AND GEODETIC SURVEY OFFICERS. RETIRED COAST AND GEODETIC SURVEY OFFICERS WHO ARE ADVANCED ON THE RETIRED LIST BY REASON OF COMBAT COMMENDATION TO THE RANK OF CAPTAIN OR BELOW AND WHO ARE RECALLED TO ACTIVE DUTY ARE NOT REQUIRED TO BE RECALLED IN THE HIGHER HONORARY RANK HELD ON THE RETIRED LIST AND ARE ONLY ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES OF THE RANK IN WHICH SERVING WHILE ON ACTIVE DUTY. RETIRED COAST AND GEODETIC SURVEY OFFICERS WHO, AFTER ADVANCEMENT OF THE RETIRED LIST FOR COMBAT COMMENDATION PURSUANT TO THE ACT OF JUNE 6, 1942, ARE RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY RELEASED TO INACTIVE DUTY STATUS ON THE RETIRED LIST, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE RANK HELD AT TIME OF RETIREMENT AND NOT ON THE HONORARY HIGHER GRADE HELD ON THE RETIRED LIST UNDER THE 1942 ACT.

TO THE SECRETARY OF COMMERCE, OCTOBER 15, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 7, 1956, WITH ENCLOSURE, FROM THE ACTING ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION, PRESENTING FOR DECISION SEVERAL QUESTIONS CONCERNING THE PAY AND ALLOWANCE STATUS OF CERTAIN RETIRED COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO MAY BE RECALLED TO ACTIVE DUTY.

IT APPEARS FROM THE ENCLOSURE RECEIVED WITH THE LETTER OF SEPTEMBER 7, 1956, THAT CERTAIN RETIRED COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY MAY BE RECALLED TO ACTIVE DUTY IN CONNECTION WITH THE CONSTRUCTION OF NEW SURVEY SHIP AUTHORIZED BY THE ACT OF AUGUST 5, 1955, PUBLIC LAW 251, 84TH CONGRESS, 69 STAT. 537. IT FURTHER APPEARS THAT AMONG THESE RETIRED OFFICERS THERE ARE SEVERAL WHO HAVE RECEIVED HONORARY PROMOTIONS ON THE RETIRED LIST OF THE COAST AND GEODETIC SURVEY AS PROVIDED IN THE ACT OF JUNE 6, 1942, 56 STAT. 328, AS AMENDED, 33 U.S.C. 864E. THE QUESTIONS PRESENTED REGARDING THESE OFFICERS ARE AS FOLLOWS:

1. IN VIEW OF SECTION 11 OF THE ACT OF MAY 18, 1920 (41 STAT. 603, 33 U.S.C. 864), MAY IT BE CONSIDERED THAT SECTION 412 (A) OF THE ACT OF AUGUST 7, 1947 (61 STAT. 874, 34 U.S.C. 410N) APPLIES TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY?

2. IF SO, IN THE CASE OF AN OFFICER SO PROMOTED IN THE RANK BELOW CAPTAIN, IS IT MANDATORY THAT THE OFFICER WHEN RECALLED TO ACTIVE DUTY BE RECALLED IN THE HIGHER RANK TO WHICH HE HAS BEEN ADVANCED ON THE RETIRED LIST, SUBJECT, OF COURSE, TO ANY STATUTORY LIMITATION ON THE NUMBER OF OFFICERS OF A PARTICULAR RANK SERVING ON ACTIVE DUTY?

3. IF SO, IS THE OFFICER ENTITLED TO BE GRANTED THE PAY AND ALLOWANCES OF THE HIGHER RANK TO WHICH HE HAS BEEN ADVANCED ON THE RETIRED LIST?

4. WHEN THE OFFICER IS RETURNED TO THE RETIRED LIST, DO HIS PAY AND ALLOWANCES REVERT TO THE PAY AND ALLOWANCES OF THE RANK HELD PRIOR TO RETIREMENT WITH THE HONORARY PROMOTION?

THE ISSUE RAISED IN QUESTION 1 RELATES ONLY TO THE FIRST PROVISO IN SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, 34 U.S.C. 410N (NOW CODIFIED AS SECTION 6483 (B), TITLE 10, U.S. CODE, AS ENACTED INTO LAW BY THE ACT OF AUGUST 10, 1956, 70A STAT. 417) APPLICABLE TO RETIRED OFFICERS OF THE NAVY, MARINE CORPS, AND RESERVE COMPONENTS OF THOSE SERVICES. THE QUESTION INDICATES THE BELIEF THAT THE CITED STATUTORY PROVISIONS MAY BE FOR APPLICATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY BY REASON OF THE ASSIMILATION PROVISIONS OF SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, 33 U.S.C. 864. THAT CONNECTION, IT IS STATED THAT IF SUCH BELIEF IS CORRECT THE SECRETARY OF COMMERCE WOULD HAVE THE DISCRETIONARY POWER TO RECALL TO ACTIVE DUTY A RETIRED OFFICER OF THE COAST AND GEODETIC SURVEY EITHER IN THE RANK OF CAPTAIN OR AS A REAR ADMIRAL IF SUCH OFFICER HAD BEEN RETIRED WHILE HOLDING THE RANK OF CAPTAIN AND, UNDER AUTHORITY OF THE ACT OF JUNE 6, 1942, CITED ABOVE, HAD BEEN PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE, THAT IS, IN THE HONORARY RANK OF REAR ADMIRAL. IS FURTHER STATED, HOWEVER, THAT, IN THE CASE OF A RETIRED OFFICER OF THE COAST AND GEODETIC SURVEY WHO WAS RETIRED IN A RANK BELOW THAT OF CAPTAIN AND WHO, UNDER THE ACT OF JUNE 6, 1942, WAS PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE, IT WOULD APPEAR TO BE NECESSARY TO RECALL SUCH OFFICER TO ACTIVE DUTY IN THE RANK TO WHICH HE WAS ADVANCED UPON RETIREMENT AND THAT THENCEFORTH THE OFFICER WOULD RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF THAT HIGHER RANK WHILE ON ACTIVE DUTY. SUPPORT OF SUCH VIEW, REFERENCE IS MADE TO DECISION OF DECEMBER 20, 1950, 30 COMP. GEN. 242, TO THE SECRETARY OF THE NAVY, CONCERNING RETIRED NAVAL OFFICERS OF THE RANK OF CAPTAIN AND BELOW WHO ARE ORDERED TO ACTIVE DUTY IN RANKS HELD BY THEM ON THE RETIRED LIST ACQUIRED PURSUANT TO SECTION 412 (A) OF THE 1947 LAW.

SECTION 11 OF THE ACT OF MAY 18, 1920, CITED ABOVE, PROVIDES THAT "ALL LAWS RELATING TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE NAVY SHALL HEREAFTER APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY.'

THE ASSIMILATING PROVISIONS OF THE 1920 LAW OPERATE ONLY WITH RESPECT TO THOSE LAWS OF THE NAVY WHICH RELATE TO THE "RETIREMENT" OF COMMISSIONED OFFICERS OF THE NAVY, AND THE ASSIMILATING FUNCTIONS OF THE ACT OF MAY 18, 1920, CEASE WHEN THE CONGRESS HAS MADE SPECIFIC PROVISION FOR THE RETIREMENT OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. SEE 26 COMP. GEN. 176, REGARDING THE RETIREMENT PROVISIONS CONTAIN THE ACT OF JANUARY 19, 1942, 56 STAT. 6, 33 U.S.C. 851A, FOR COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. THE ACT OF JUNE 3, 1948, 62 STAT. 297-300, 33 U.S.C. 853Q NOTE, SUPERSEDED, GENERALLY, THE PROVISIONS OF THE ACT OF JANUARY 19, 1942.

THE HONORARY PROMOTION ON THE RETIRED LIST OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO RECEIVE SPECIAL COMMENDATION FOR DUTY IN COMBAT WAS SPECIFICALLY PROVIDED FOR BY THE ACT OF JUNE 6, 1942, 56 STAT. 328, 33 U.S.C. 864 (E), WHICH, AS ORIGINALLY ENACTED, READ AS FOLLOWS:

THAT ALL OFFICERS OF THE COAST GUARD AND THE COAST AND GEODETIC SURVEY 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, 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.

THESE STATUTORY PROVISIONS FIRST WERE AMENDED BY SECTION 15, ACT OF AUGUST 4, 1949, 63 STAT. 560, 33 U.S.C. 864E, AND WERE FURTHER AMENDED BY SECTION 522 (B), CAREER COMPENSATION ACT OF 1949, 63 STAT. 836, 33 U.S.C. 864E, BY DELETING THE WORDS "AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT"AND ADDING THE WORDS " PROVIDED, THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY IN THE CASE OF ANY OFFICER WHO HAS BEEN SO COMMENDED IF THE ACT OR SERVICE JUSTIFYING THE COMMENDATION WAS PERFORMED AFTER DECEMBER 31, 1946.' ALSO, SECTION 522 (C), CAREER COMPENSATION ACT OF 1949, 63 STAT. 836, IN PERTINENT PART, SPECIFICALLY PROVIDES THAT " NOTHING CONTAINED IN SUBSECTIONS (A), 33 U.S.C. 864 (E), NOTE AND (B), 14 U.S.C. 239 NOTE, OF THIS SECTION SHALL BE HELD TO REDUCE THE RETIRED PAY OF ANY OFFICER PLACED ON A RETIRED LIST PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, NOR SHALL THE PROVISIONS OF * * * THE ACT OF JUNE 6, 1942 (CH. 383, 56 STAT. 328), AS AMENDED BY SUBSECTION (B) OF THIS SECTION, BE CONSTRUED AS GRANTING ANY INCREASED RETIRED PAY TO ANY PERSON BY VIRTUE OF THE HIGHER GRADE OR RANK TO WHICH SUCH PERSON IS OR MAY BECOME ENTITLED TO PURSUANT TO SUCH PROVISIONS OF LAW.'

INASMUCH AS SECTIONS 522 (B) AND 522 (C) OF THE 1949 LAW WERE ENACTED MORE THAN TWO YEARS AFTER THE EFFECTIVE DATE OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, IT SEEMS QUITE EVIDENT THAT THE CITED PROVISIONS OF THE 1947 LAW WERE NOT VIEWED AS HAVING SUPERSEDED OR MODIFIED THE ACT OF JUNE 6, 1942. HENCE, IT IS OUR VIEW THAT THE ENACTMENT OF THE ACT OF JUNE 6, 1942, HAD THE RESULT OF NULLIFYING ANY EFFECT WHICH THE ASSIMILATING PROVISIONS OF SECTION 11 MIGHT THERETOFORE HAVE HAD OR MIGHT OTHERWISE HAVE RESPECTING THE APPLICABILITY OF STATUTORY PROVISIONS AUTHORIZING RETIRED LIST ADVANCEMENTS OF PERSONNEL OF THE NAVY WITH SPECIAL COMBAT COMMENDATIONS. ACCORDINGLY, IT IS CONCLUDED THAT NO PART OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 HAS BEEN OR IS APPLICABLE TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. FURTHERMORE, IT IS TO BE NOTED THAT THE CITED PROVISIONS OF THE 1947 LAW WHICH ARE NOW CODIFIED IN THE ACT OF AUGUST 10, 1956, AS SECTION 6483 (B), TITLE 10, U.S. CODE, ARE NOT FOR APPLICATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY. NOTE THE PROVISIONS OF SECTION 3 (A), ACT OF AUGUST 10, 1956, 70A STAT. 619. QUESTION NO. 1, THEREFORE, IS ANSWERED IN THE NEGATIVE AND THE ANSWERS TO QUESTIONS 2 AND 3 WILL BE STATED ON THAT BASIS.

IN THE DECISION OF DECEMBER 20, 1950, 30 COMP. GEN. 242, REFERRED TO ABOVE, IT WAS HELD THAT RETIRED OFFICERS OF THE NAVY OF THE RANK OF CAPTAIN AND BELOW WHO ARE RECALLED TO ACTIVE DUTY IN THE HONORARY RANK HELD BY THEM ON THE RETIRED LIST, SUCH HONORARY RANK HAVING BEEN ACQUIRED PURSUANT TO THE AUTHORITY OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, OR PRIOR LAWS OF SIMILAR IMPORT,"MAY BE PAID THE ACTIVE-DUTY PAY AND ALLOWANCES OF SUCH HIGHER GRADES OR RANKS, SUBJECT, OF COURSE TO ANY RANK OR GRADE LIMITATIONS IMPOSED BY STATUTE AS TO THE NUMBER OF OFFICERS OF A PARTICULAR RANK OR GRADE SERVING ON ACTIVE DUTY.' THE CONCLUSION REACHED IN THE DECISION OF DECEMBER 20, 1950, WAS BASED ON THE EXPRESS REPRESENTATIONS OF THE DEPARTMENT OF THE NAVY THAT IN ORDERING RETIRED NAVAL OFFICERS TO ACTIVE DUTY IT HAD BEEN THE CONSISTENT PRACTICE OF THE NAVY DEPARTMENT BOTH SUBSEQUENT TO ENACTMENT OF THE OFFICER PERSONNEL ACT OF 1947 AND PRIOR THERETO, UNDER OTHER LAWS PROVIDING SIMILAR BENEFITS, TO RECALL THOSE RETIRED OFFICERS OF THE RANK OF CAPTAIN AND BELOW IN THE RANK HELD BY THEM ON THE RETIRED LIST. HOWEVER, THE PRACTICE OF THE NAVY DEPARTMENT TO RECALL RETIRED OFFICERS IN THE RANK OF CAPTAIN AND BELOW IN THE HIGHER HONORARY RANK HELD BY THEM ON THE RETIRED LIST WAS NOT THEN REQUIRED BY ANY SPECIFIC PROVISION OF LAW. SEE, IN THAT CONNECTION, SECTION 6483 (A), TITLE 10, U.S. CODE, AS ENACTED INTO LAW BY THE ACT OF AUGUST 10, 1956, 70A STAT. 417.

ACCORDINGLY, AND IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS PROVIDING OTHERWISE, NO PROPER BASIS IS PERCEIVED FOR THE VIEW THAT IT WOULD BE MANDATORY UPON THE SECRETARY OF COMMERCE, WHEN RECALLING RETIRED OFFICERS OF THE COAST AND GEODETIC SURVEY TO ACTIVE DUTY, TO ORDER THEM TO ACTIVE DUTY IN THE HIGHER HONORARY RANK HELD BY THEM ON THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1942. COMPARE DECISION OF FEBRUARY 17, 1955, 34 COMP. GEN. 387.

AN OFFICER OF THE COAST AND GEODETIC SURVEY WHO IS RETIRED IN THE RANK OF COMMANDER, FOR EXAMPLE, AND WHO, UPON RETIREMENT, IS PLACED ON THE RETIRED LIST WITH THE RANK OF THE NEXT HIGHER GRADE (CAPTAIN) BY VIRTUE OF THE ACT OF JUNE 6, 1942, MAY BE RECALLED TO ACTIVE DUTY IN THE RANK AND GRADE OF COMMANDER OR IN THE HIGHER HONORARY RANK AND GRADE OF CAPTAIN HELD BY HIM ON THE RETIRED LIST, SUBJECT TO ANY STATUTORY LIMITATIONS ON THE NUMBER OF OFFICERS SERVING ON ACTIVE DUTY IN THAT HIGHER GRADE. UNDER THE AUTHORITY OF SECTION 514, CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, 37 U.S.C. 314, SUCH OFFICER WOULD BE ENTITLED "WHEN SERVING ON ACTIVE DUTY * * * TO RECEIVE THE PAY AND ALLOWANCES TO WHICH ENTITLED * * * FOR THE GRADE OR RANK IN WHICH * * * SERVING ON SUCH ACTIVE DUTY.' QUESTIONS 2 AND 3 ARE ANSWERED ACCORDINGLY.

THE FOURTH QUESTION CONCERNS THE BASIS ON WHICH TO COMPUTE SUCH AN OFFICER'S RETIRED PAY UPON HIS SUBSEQUENT RELEASE FROM ACTIVE DUTY AND REVERSION TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST. THE COMPUTATION OF SUCH AN OFFICER'S RETIRED PAY NECESSARILY WOULD BE SUBJECT TO THE LIMITATION PRESCRIBED IN SECTION 522 (C) OF THE CAREER COMPENSATION ACT OF 1949, CITED ABOVE, WHICH REQUIRES THAT THE PROVISIONS OF THE ACT OF JUNE 6, 1942, AS AMENDED, SHALL NOT "BE CONSTRUED AS GRANTING ANY INCREASED RETIRED PAY TO ANY PERSON BY VIRTUE OF THE HIGHER GRADE OR RANK TO WHICH SUCH PERSON IS OR MAY BECOME ENTITLED TO PURSUANT TO SUCH PROVISIONS OF LAW.' UNDER SUCH STATUTORY PROVISIONS, THE OFFICER'S RETIRED PAY IS REQUIRED TO BE BASED ON THE RANK WHICH HE HELD AT THE TIME OF HIS RETIREMENT AND NOT ON THE HONORARY HIGHER GRADE HELD BY HIM ON THE RETIRED LIST BY VIRTUE OF THE 1942 LAW. MOREOVER, IN DECISION OF APRIL 6, 1956, 35 COMP. GEN. 557, IT WAS HELD (QUOTING FROM SYLLABUS) THAT:

AN HONORARY RANK TO WHICH A NAVY OFFICER WAS ADVANCED CONTEMPORANEOUSLY WITH HIS RETIREMENT IS NOT A "RANK OR GRADE" FOR COMPUTATION OR RETIRED PAY WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949.

THE CONCLUSION THERE REACHED WITH RESPECT TO THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316 (NOW CODIFIED AS SECTION 1402 (A), TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 10, 1956, 70A STAT. 107), CONCERNING AN OFFICER OF THE NAVY HOLDING AN HONORARY RANK ON THE RETIRED LIST UNDER AUTHORITY OF THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1942, 56 STAT. 120 (WHICH WERE SIMILAR TO THOSE OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947), IS EQUALLY APPLICABLE IN THE CASE OF AN OFFICER OF THE COAST AND GEODETIC SURVEY HOLDING AN HONORARY RANK ON THE RETIRED LIST BY VIRTUE OF THE ACT OF JUNE 6, 1942. SEE SECTION 3 (A) (3) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 619. QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.