B-97852, DECEMBER 1, 1950, 30 COMP. GEN. 217

B-97852, DECEMBER 1, 1950, 30 COMP. GEN. 217

DISABILITY RETIREMENT PAY - COMMISSIONED WARRANT OFFICER ADVANCED ON RETIRED LIST - EFFECT OF CAREER COMPENSATION ACT OF 1949 A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE CAREER COMPENSATION ACT OF 1949 IN HIS PERMANENT GRADE OF COMMISSIONED WARRANT OFFICER AND WHO HAVING SERVED SATISFACTORILY IN A HIGHER RANK WAS ADVANCED TO THAT RANK ON THE RETIRED LIST UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, IS REQUIRED TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED UNDER SECTION 402 (D) OF THE SAID 1949 ACT ON THE BASIS OF THE HIGHER RANK TO WHICH ADVANCED ON THE RETIRED LIST EVEN THOUGH THE RETIRED PAY BASED ON HIS LOWER RANK WOULD BE HIGHER. THE FINAL PROVISO OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 GRANTING TO WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS WHO WERE THERETOFORE ADVANCED TO A HIGHER RANK ON THE RETIRED LIST THE RIGHT TO ELECT TO BE RESTORED TO THEIR WARRANT OFFICER STATUS AND RECEIVE RETIRED PAY COMPUTED ON SUCH STATUS APPLIES ONLY TO PERSONS WHOSE RETIRED PAY IS GOVERNED BY THAT SECTION AND, THEREFORE, A COMMISSIONED WARRANT OFFICER RETIRED FOR PHYSICAL DISABILITY AND ADVANCED RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE ACT, IS NOT ENTITLED TO THE RIGHT OF ELECTION GRANTED MEMBERS UNDER SECTION 511, EVEN THOUGH THERE MAY BE DISCRIMINATION BETWEEN CERTAIN DISABLED AND NON-DISABLED MEMBERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, DECEMBER 1, 1950:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1950, RELATIVE TO THE CASE OF FIRST LIEUTENANT AMOS WALTON TAYLOR, UNITED STATES MARINE CORPS, RETIRED.

YOU STATE THAT ON APRIL 1, 1950, LIEUTENANT TAYLOR WAS RETIRED FOR PHYSICAL DISABILITY IN HIS PERMANENT GRADE OF COMMISSIONED WARRANT OFFICER UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, AND THAT HAVING SERVED SATISFACTORILY IN THE HIGHER TEMPORARY RANK OF FIRST LIEUTENANT HE WAS ADVANCED TO THAT RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 10 (B) (2) OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28. SECTION 402 (D) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * 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 RETIREMENT, WHICHEVER IS EARLIER * * *

SECTION 409 OF SUCH ACT, 63 STAT. 823, PROVIDES:

A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIRMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, OR RATING AS MAY BE AUTHORIZED BY LAW AT THE TIME OF RETIREMENT.

SINCE RETIRED PAY COMPUTED ON THE MONTHLY BASIC PAY OF A COMMISSIONED WARRANT OFFICER WITH LIEUTENANT TAYLOR'S LENGTH OF SERVICE IS HIGHER THAN RETIRED PAY COMPUTED ON THE MONTHLY BASIC PAY PROVIDED FOR A LIEUTENANT WITH COMPARABLE SERVICE, YOU REQUEST DECISION AS TO WHETHER LIEUTENANT TAYLOR MUST BE PAID THE RETIRED PAY OF A FIRST LIEUTENANT OR WHETHER HE MAY BE PAID THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER. YOU ALSO REQUEST DECISION AS TO THE PAY TO BE USED AS A BASIS FOR COMPUTING HIS RETIRED PAY IF HE SHOULD ELECT TO REVERT TO HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER UNDER THE AUTHORITY CONTAINED IN THE FINAL PROVISO OF SECTION 511 OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 829.

IN DECISION OF APRIL 19, 1950, 29 COMP. GEN. 412, THERE WAS CONSIDERED THE CASE OF A COMMISSIONED WARRANT OFFICER OF THE NAVY WHO, UNDER THE SIMILAR PROVISIONS OF THE SAID SECTION 511 OF THE 1949 ACT, WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE MONTHLY BASIC PAY OF A LIEUTENANT AND IT WAS HELD THAT THE RETIRED PAY OF THE OFFICER THERE IN QUESTION WAS AUTHORIZED TO BE COMPUTED ONLY ON THE ACTIVE-DUTY PAY OF HIS HIGHER TEMPORARY RANK, NOTWITHSTANDING THE FACT THAT THE RETIRED PAY OF HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER WOULD BE HIGHER. THE LANGUAGE IN SECTION 402 (D), HERE INVOLVED, IS EVEN MORE POSITIVE AND UNEQUIVOCAL THAN THAT IN SECTION 511, CONSIDERED IN THE PRIOR DECISION, AND THE CONCLUSION REACHED IN THAT DECISION IS EQUALLY APPLICABLE HERE NOTWITHSTANDING THE POSSIBILITY, IF NOT PROBABILITY, THAT IN USING SUCH UNCONDITIONAL LANGUAGE THE CONGRESS MAY HAVE OVERLOOKED THE FACT THAT IN CERTAIN INSTANCES A LOWER PAY WAS PROVIDED FOR THE HIGHER RANK. ACCORDINGLY, LIEUTENANT TAYLOR'S RETIRED PAY, UNDER THE STATUTE AS IT NOW STANDS, IS AUTHORIZED TO BE COMPUTED ONLY ON THE ACTIVE-DUTY PAY OF A FIRST LIEUTENANT.

WITH RESPECT TO YOUR SECOND QUESTION, IT WAS POINTED OUT IN THE SAID DECISION OF APRIL 19, 1950, THAT, UNDER THE PROVISIONS OF THE FINAL PROVISO OF THE SAID SECTION 511, WARRANT OFFICERS, INCLUDING COMMISSIONED WARRANT OFFICERS, WHO THERETOFORE HAD BEEN ADVANCED TO A HIGHER RANK OR GRADE ON THE RETIRED LIST COULD ELECT TO BE RESTORED TO THEIR WARRANT OFFICER STATUS AND THAT IF SUCH RESTORATION SHOULD BE APPROVED BY THE SECRETARY CONCERNED, THEY THEY WOULD BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED ON THE PAY OF THEIR WARRANT OFFICER GRADE. HOWEVER, FOR THE REASONS HEREINAFTER STATED, IT APPEARS THAT SUCH PROVISO APPLIES ONLY TO PERSONS WHOSE RETIRED PAY IS GOVERNED BY THE SAID SECTION 511 AND WOULD NOT HAVE ANY APPLICATION TO PERSONS COMING WITHIN THE PURVIEW OF SECTION 402 (D).

THE GENERAL RULE IS THAT A PROVISO MUST BE CONSTRUED WITH REFERENCE TO THE SUBJECT MATTER OF THE SECTION TO WHICH IT IS APPENDED, UNLESS IT CLEARLY APPEARS FROM A CONSIDERATION OF THE ENTIRE ACT THAT THE CONGRESS INTENDED IT TO HAVE A BROADER AND MORE INDEPENDENT OPERATION. MCDONALD V. UNITED STATES, 279 U.S. 12, 20, AND THE AUTHORITIES THEREIN CITED. WHILE THE SAID FINAL PROVISO OF SECTION 511 IS STATED IN BROAD LANGUAGE, THE FACT THAT IT WAS NOT INTENDED TO BE GENERAL OR INDEPENDENT LEGISLATION APPEARS TO BE ESTABLISHED BEYOND ALL REASONABLE DOUBT BY THE CIRCUMSTANCES THAT IT WAS CONSIDERED NECESSARY TO INSERT AN IDENTICAL PROVISO IN SECTION 513 OF THE ACT, 63 STAT. 830, AUTHORIZING ENLISTED PERSONS AND WARRANT OFFICERS WHO SERVED IN WORLD WAR I AND WHO WERE RETIRED BEFORE OR AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE SATISFACTORILY HELD UNDER A PERMANENT OR TEMPORARY APPOINTMENT FOR ANY PERIOD OF SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, WITH RETIRED PAY TO BE COMPUTED ON THE BASIS OF SUCH OFFICER RANK OR GRADE. HAD THE PROVISO IN SECTION 511 BEEN INTENDED FOR GENERAL APPLICATION, THERE WOULD HAVE BEEN NO NECESSITY TO INCLUDE AN IDENTICAL PROVISION IN SECTION 513, AND TO HOLD THAT THE PROVISO IN SECTION 511 IS FOR GENERAL APPLICATION WOULD RENDER THE PROVISO IN SECTION 513 SURPLUSAGE--- A RESULT NOT FAVORED IN THE LAW. ALSO, IN BOTH SECTIONS 511 AND 513 THE PROVISO EXPRESSLY REFERS TO "THIS SECTION.' HENCE, AS INDICATED, IT MUST BE CONCLUDED THAT THE PROVISO IN SECTION 511 APPLIES ONLY TO PERSONS WHOSE RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF SUCH SECTION. IT FOLLOWS THAT SUCH PROVISO WOULD FURNISH NO AUTHORITY FOR RESTORING LIEUTENANT TAYLOR, OR OTHER OFFICERS IN THE SAME SITUATION, TO A COMMISSIONED WARRANT OFFICER STATUS AND, IN THE ABSENCE OF SOME SUCH SPECIFIC STATUTORY PROVISION THEREFOR, THERE WOULD APPEAR TO BE NO AUTHORITY WHEREBY THE LOWER RANK MAY BE SO RESTORED TO INCREASE THE RETIRED PAY. COMPARE DECISION OF OCTOBER 28, 1946, ANSWER TO QUESTION (D), 26 COMP. GEN. 271, 277.

IT IS RECOGNIZED THAT THE CONCLUSION REACHED WITH RESPECT TO THE SECOND QUESTION RESULTS IN AN APPARENT DISCRIMINATION BETWEEN CERTAIN DISABLED RETIRED MEMBERS AND NON-DISABLED RETIRED MEMBERS, WITH THE LATTER RECEIVING THE GREATER BENEFITS, BUT EVEN ASSUMING THAT THE FAILURE TO MAKE SOME PROVISION IN THE STATUTE TO ELIMINATE SUCH APPARENT DISCRIMINATION WAS ENTIRELY INADVERTENT, SUCH AN OMISSION IN THE STATUTE MAY NOT BE CURED BY INTERPRETATION AND MUST BE LEFT TO CORRECTION BY THE CONGRESS. SEE 23 COMP. GEN. 52, 55.