A-92119, DECEMBER 13, 1941, 21 COMP. GEN. 564

A-92119, DECEMBER 13, 1941, 21 COMP. GEN. 564

PAY - PROMOTIONS - EFFECT OF UNIFORM RETIREMENT DATE ACT WHERE A NAVY ENLISTED MAN WAS ADVANCED IN RATING BETWEEN THE DATE HE WOULD HAVE BEEN RETIRED BUT FOR THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, AND THE DATE OF RETIREMENT UNDER SAID ACT, HIS ACTIVE DUTY PAY UPON RECALL TO ACTIVE DUTY IS REQUIRED TO BE COMPUTED AS THOUGH SUCH ADVANCEMENT HAD NOT BEEN MADE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 13, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 2, 1941, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION WHETHER THOMAS BURKE, CHIEF MACHINIST'S MATE (AA), U.S. NAVY, RETIRED, MAY BE CARRIED IN THAT RATING WITH THE ACTIVE-DUTY PAY THEREOF EFFECTIVE JULY 21, 1941, THE DATE OF HIS RECALL TO ACTIVE DUTY.

THE RECORDS IN THIS CASE SHOW THAT BURKE APPLIED FOR TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY ON NOVEMBER 29, 1937; THAT HIS TRANSFER WAS APPROVED DECEMBER 10, 1937, THAT ORDERS WERE ISSUED ON DECEMBER 13, 1937, TRANSFERRING HIM TO THE RETIRED LIST OF THE REGULAR NAVY EFFECTIVE AS OF JANUARY 1, 1938; THAT WHEN APPLICATION FOR RETIREMENT WAS MADE, BURKE WAS SERVING IN THE RATING OF MACHINIST'S MATE, FIRST CLASS, WITH PAY AT $105 PER MONTH; THAT UNDER DATE OF DECEMBER 7, 1937, THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, AUTHORIZED BURKE'S ADVANCEMENT TO CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, EFFECTIVE DECEMBER 31, 1937; THAT HIS RATING WAS CHANGED ACCORDINGLY BY THE COMMANDING OFFICER, U.S.S. MUGFORD; THAT BY VIRTUE OF HIS ADVANCEMENT IN RATING BECOMING EFFECTIVE ON DECEMBER 31, 1937, BURKE RECEIVED NO PAY OF THAT RATING WHILE ON THE ACTIVE LIST; THAT SINCE HIS TRANSFER TO THE RETIRED LIST ON JANUARY 1, 1938, HE HAS BEEN CARRIED AS A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, AND HIS RETIRED PAY HAS BEEN COMPUTED ON THE ACTIVE DUTY PAY OF MACHINIST'S MATE, FIRST CLASS, THE RATING HELD BY HIM WHEN HE APPLIED FOR TRANSFER TO THE RETIRED LIST.

ON THE QUESTION WHETHER BURKE SHOULD BE PAID RETIRED PAY AS A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, OR AS A MACHINIST'S MATE, FIRST CLASS, IT WAS HELD IN THE COMPTROLLER GENERAL'S DECISION OF MARCH 21, 1938 (17 COMP. GEN. 759), THAT (SYLLABUS):

"UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, THE RETIRED PAY OF AN ENLISTED MAN IS REQUIRED TO BE COMPUTED ON HIS ACTIVE- DUTY PAY IN THE GRADE HELD WHEN APPLICATION FOR RETIREMENT IS MADE, AND THERE IS NO AUTHORITY FOR PAYMENT OF INCREASED RETIRED PAY BASED ON A CHANGE IN RATING OF A NAVY ENLISTED MAN AFTER THE DATE OF APPLICATION FOR RETIREMENT.'

BURKE'S RETIRED PAY IS BASED ON THE ACTIVE-DUTY PAY OF MACHINIST'SMATE, FIRST CLASS, IN ACCORDANCE WITH THE COMPTROLLER GENERAL'S DECISION, SUPRA. HOWEVER, HE IS NOW CARRIED ON THE ROLLS AS A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, PURSUANT TO AUTHORIZED CHANGE IN RATING AS AFORESAID. IN THIS CONNECTION ATTENTION IS INVITED TO SECTION 5 OF THE NAVAL APPROPRIATION ACT, 1942 ( PUBLIC LAW, 48, 77TH CONG.), WHICH PROVIDES:

"DURING THE FISCAL YEAR ENDING JUNE 30, 1942, ALL RETIRED OFFICERS OF THE NAVY AND MARINE CORPS, AND RETIRED OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.'

THE NAVY DEPARTMENT IS IN DOUBT AS TO WHETHER THE "FULL PAY AND ALLOWANCES" TO WHICH BURKE MAY BE ENTITLED FROM AND AFTER JULY 1, 1941, THE DATE OF HIS RECALL TO ACTIVE DUTY, SHOULD BE THE ACTIVE-DUTY PAY AND ALLOWANCES CURRENTLY PAYABLE IN THE CASE OF A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, OF THE SAME LENGTH OF SERVICE IN THE REGULAR NAVY, OR WHETHER HE IS LIMITED WHILE ON ACTIVE DUTY TO THE PAY AND ALLOWANCES CURRENTLY PAYABLE TO A MACHINIST'S MATE, FIRST CLASS, THE PAY GRADE OF BURKE ON THE RETIRED LIST. YOUR DECISION ACCORDINGLY IS REQUESTED AS TO THE CORRECT RATE OF ACTIVE-DUTY PAY AND ALLOWANCES TO WHICH BURKE IS ENTITLED EFFECTIVE JULY 21, 1941, THE DATE OF HIS RECALL TO ACTIVE DUTY.

THE ACT OF APRIL 23, 1930, 46 STAT. 253, IS AS FOLLOWS:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, INSOFAR AS IN CONFLICT HEREWITH, ARE REPEALED.

EXCEPT FOR THE PROVISIONS OF THE ABOVE-QUOTED STATUTE, BURKE'S RETIREMENT WOULD HAVE BEEN EFFECTIVE PRIOR TO DECEMBER 31, 1937, THE STATED EFFECTIVE DATE OF BUREAU OF NAVIGATION ORDERS OF DECEMBER 7, 1937, ANNOUNCING HIS ADVANCEMENT TO THE RATING OF CHIEF MACHINIST'S MATE, ACTING APPOINTMENT. THE SOLE PURPOSE OF THE ABOVE-QUOTED ACT WAS TO OBTAIN UNIFORMITY AND SIMPLIFY COMPUTATIONS, AND IN ACCORDANCE WITH THAT PURPOSE THE ACT EXPRESSLY PROVIDES "THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.' THE FACT THIS PROVISION SPECIFIES THAT THE RATE OF BOTH ACTIVE AND RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR THE PROVISIONS OF THE ACT IS INDICATIVE OF A LEGISLATIVE INTENT THAT NO ADMINISTRATIVE ACTION SHOULD BE EFFECTIVE TO CHANGE THE STATUS OF AN INDIVIDUAL FOR PURPOSES OF PAY BETWEEN THE DATE HIS RETIREMENT WOULD HAVE BEEN EFFECTIVE EXCEPT FOR THE PROVISIONS OF THE ACT OF APRIL 23, 1930, AND THE DATE HIS RETIREMENT IS REQUIRED TO BE MADE EFFECTIVE UNDER THE PROVISIONS OF THE SAID ACT. OTHER WORDS, THE UNIFORM RETIREMENT DATE ACT WAS NOT INTENDED TO BE USED AS A MEDIUM FOR PROMOTIONS BUT, ON THE CONTRARY, ITS USE AS SUCH IS EXPRESSLY PROHIBITED.

IT FOLLOWS THAT THE ADVANCE OF BURKE TO THE RATING OF CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, WAS NOT EFFECTIVE TO CHANGE HIS PAY STATUS IN ANY WAY, AND HIS ACTIVE-DUTY PAY AS A RETIRED ENLISTED MAN IS REQUIRED TO BE COMPUTED AS THOUGH SUCH ADVANCEMENT HAD NOT BEEN MADE.