B-57583, SEPTEMBER 10, 1946, 26 COMP. GEN. 171

B-57583, SEPTEMBER 10, 1946, 26 COMP. GEN. 171

PAY - REAR ADMIRALS - TEMPORARY REAR ADMIRAL OF NAVAL RESERVE A NAVAL RESERVE OFFICER ON ACTIVE DUTY WHO WAS APPOINTED TEMPORARILY TO THE RANK OF REAR ADMIRAL IN THE NAVAL RESERVE, ALTHOUGH ASSIMILATED UNDER SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942 TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A REGULAR NAVY OFFICER OF "CORRESPONDING GRADE AND LENGTH OF SERVICE," IS NOT ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF) AS PROVIDED BY SECTION 2 OF THE ACT OF JUNE 30, 1942, FOR REAR ADMIRALS OF THE UPPER HALF "ON THE ACTIVE LIST OF THE LINE.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 10, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 25, 1946, WITH ENCLOSURES, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM REAR ADMIRAL IRVING M. MCQUISTON, (A3), U.S. NAVAL RESERVE (38649), DATED JANUARY 30, 1946, WITH ACCOMPANYING ENDORSEMENTS AND ENCLOSURES, REQUESTING THAT HE "BE CERTIFIED TO RECEIVE THE PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF" BY VIRTUE OF HIS APPOINTMENT AS A REAR ADMIRAL IN THE NAVAL RESERVE FOR TEMPORARY SERVICE TO RANK FROM THE 8TH DAY OF JULY 1942.

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED IN THE ENCLOSURE, NAMELY, WHETHER REAR ADMIRAL MCQUISTON IS ENTITLED TO THE PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF) BY REASON OF THE FACT THAT HIS DATE OF PRECEDENCE AS A TEMPORARY REAR ADMIRAL IN THE UNITED STATES NAVAL RESERVE, AS SET FORTH IN HIS APPOINTMENT TO THAT RANK, ANTEDATES THE DATE OF PRECEDENCE OF AN OFFICER OF THE NAVY HOLDING A TEMPORARY APPOINTMENT AS REAR ADMIRAL OF THE UPPER HALF ON THE ACTIVE LIST OF THE LINE OF THE NAVY.

THE ENCLOSURE OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED APRIL 11, 1946, REFERRED TO IN YOUR LETTER, READS AS FOLLOWS:

REFS: (A) SEC 1362, REVISED STATUTES, AS AMENDED (34 U.S.

CODE 1).

(B) ACT OF AUGUST 29, 1916, AS AMENDED (34 U.S.C. 2).

(C) ACT OF AUGUST 29, 1916, AS AMENDED (34 U.S.C.

4 (A) ).

(D) ACT OF AUGUST 29, 1916, (34 U.S.C. 10).

(E) SECTION 312 OF THE ACT OF JUNE 25, 1938 (34 U.S.

CODE 855K).

(F) SECTION 306 OF THE ACT OF JUNE 25, 1938 (34 U.S.

CODE 855E).

(G) SECTION 3 OF THE ACT OF JULY 24, 1941 (34 U.S.C.

350B).

(H) SECTION 11 OF THE ACT OF JULY 24, 1941, AS AMENDED

(34 U.S.C. 350J).

(I) SECTION 1 OF THE ACT OF JUNE 30, 1942 (50 U.S.C.

806).

(J) SECTION 2 OF THE ACT OF JUNE 30, 1942 (50 U.S.C.

807).

(K) SECTION 7 OF THE ACT OF JUNE 16, 1942 (37 U.S.C.

107).

(L) SECTION 14 OF THE ACT OF JUNE 16, 1942 (37 U.S.

CODE 114).

(M) DECISION OF COMPTROLLER GENERAL B-38242 DATED 18

JANUARY 1944 (23 COMP. GEN. 507).

ENCL: (A) LIST OF COMMISSIONED OFFICERS OF THE NAVAL RESERVE TEMPORARILY APPOINTED TO FLAG RANK UNDER THE ACT OF JULY 24, 1941, AS AMENDED.

1. REFERENCE (A) STATES THAT THE LINE OF THE NAVY SHALL BE DIVIDED INTO CERTAIN GRADES, ONE OF WHICH IS REAR ADMIRAL. SINCE MARCH 3, 1899, THE GRADE OF REAR ADMIRAL OF THE LINE OF THE NAVY HAS BEEN DIVIDED FOR PAY PURPOSES INTO TWO GRADES, ORIGINALLY DENOMINATED AS UPPER NINE AND LOWER NINE, BUT NOW DESIGNATED AS UPPER HALF AND LOWER HALF. REFERENCE (B) SPECIFIES THE AUTHORIZED NUMBER OF OFFICERS OF THE LINE OF THE NAVY AND THE DISTRIBUTION BY RANK AND/OR GRADE OF REAR ADMIRALS, IS DETERMINED THROUGH THE APPLICATION OF THE MATHEMATICAL FORMULA SET FORTH IN REFERENCE (C). REFERENCE (D) SETS FORTH THE RULE FOR DETERMINING THE NUMERICAL POSITION (UPPER OR LOWER HALF) FOR PAY PURPOSES OF OFFICERS HOLDING THE RANK OF REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY. THE AFOREMENTIONED PROVISIONS OF LAW RELATING TO COMMISSIONED OFFICERS, INCLUDING REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY, WERE SUSPENDED BY REFERENCE (I) AND SUCH SUSPENSION REMAINS IN EFFECT UNTIL JUNE 30 OF THE FISCAL YEAR FOLLOWING THAT IN WHICH THE PRESENT WAR SHALL END. DURING THE PERIOD OF SUSPENSION REFERRED TO, THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN SUCH GRADE, IS ONE- HALF OF THE NUMBER OF PERMANENT AND TEMPORARY OFFICERS OF THE LINE IN THAT GRADE. THE EVIDENCE REQUIRED TO SUBSTANTIATE ENTITLEMENT TO CREDIT OF PAY OF THE UPPER HALF IN THE CASE OF A REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY, TEMPORARILY APPOINTED TO THE RANK OF REAR ADMIRAL, IS A CERTIFICATE ISSUED BY THE CHIEF OF THE BUREAU OF NAVAL PERSONNEL SPECIFYING THE DATE ON WHICH SUCH INDIVIDUAL ATTAINED A NUMERICAL POSITION INCLUDED IN THE UPPER HALF ON THE ROSTER OF OFFICERS HOLDING A PERMANENT OR TEMPORARY COMMISSION AS REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY.

2. THE ACT OF JUNE 25, 1938, ESTABLISHED THE NAVAL RESERVE, CONSISTING OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE AND THE VOLUNTEER RESERVE, AS A RESERVE COMPONENT PART OF THE NAVY AND PROVIDED AUTHORITY FOR INITIAL APPOINTMENTS AND PROMOTIONS OF OFFICERS OF SUCH RESERVE. WHEN MUSTERED INTO FEDERAL SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY, THE STATUS OF COMMISSIONED OFFICERS OF THE NAVAL RESERVE IS MERELY CHANGED FROM THAT OF AN OFFICER OF THE NAVAL RESERVE ON INACTIVE DUTY TO AN OFFICER OF THE NAVAL RESERVE ON ACTIVE DUTY, BUT SUCH OFFICERS, WHILE ON ACTIVE DUTY, DO NOT ATTAIN THE STATUS OF A COMMISSIONED OFFICER ON THE ACTIVE LIST OF THE LINE OR STAFF OF THE NAVY. SUBSTANTIATION OF THIS OBSERVATION, ATTENTION IS INVITED TO THE ENABLING LEGISLATION IN 34 U.S.C. 737, 737 (A) AND 853C-2 WHICH PROVIDES A MEANS FOR APPOINTING CERTAIN OFFICERS OF THE NAVAL RESERVE TO THE LINE OF THE NAVY. THE SPECIFIC AUTHORITY INCLUDED IN THE ACT OF JULY 24, 1941 (34 U.S.C. 350J), FOR THE APPOINTMENT OF OFFICERS OF THE NAVAL RESERVE TO HIGHER TEMPORARY RANK IN THE NAVAL RESERVE WHILE ON ACTIVE DUTY CONTAINED AN EXPRESS PROHIBITION TO THE EFFECT THAT SUCH AUTHORITY SHALL NOT BE CONSTRUED TO AUTHORIZE THE TEMPORARY APPOINTMENT OF MEMBERS OF THE NAVAL RESERVE TO RANKS IN THE REGULAR NAVY.

3. UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922 (42 STAT. 625), IN EFFECT WHEN THE NAVAL RESERVE ACT OF 1938 AND THE ACT OF JULY 24, 1941, WERE ENACTED, AND SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, THE BASE PAY OF OFFICERS OF THE NAVY BELOW THE RANK OF REAR ADMIRAL IS PRESCRIBED IN THE FORM OF PAY PERIODS AND THE BASE PAY FOR EACH PERIOD IS AUTHORIZED TO BE PAID OFFICERS OF CERTAIN RANK, OR RANK PLUS LENGTH OF SERVICE. ALSO, IT IS PROVIDED IN SUCH PAY ACTS THAT EVERY OFFICER PAID UNDER THE PROVISIONS OF THE CITED SECTIONS THEREOF SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH 3 YEARS OF SERVICE UP TO 30 YEARS. THEREFORE, THE PHRASE "CORRESPONDING GRADE AND LENGTH OF SERVICE" WAS INCLUDED TO ESTABLISH A COMPARABLE BASIS FOR COMPUTING THE PAY AND ALLOWANCES OF OFFICERS OF THE NAVAL RESERVE OF THE RANK OF CAPTAIN OR BELOW WHILE ON ACTIVE DUTY UNDER ORDERS OF COMPETENT AUTHORITY, AND HAS BEEN SO ACCEPTED BY THE COMPTROLLER GENERAL. THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT A REAR ADMIRAL ON THE ACTIVE LIST IS ENTITLED TO THE PAY OF THE LOWER HALF OR UPPER HALF, DEPENDING UPON HIS NUMERICAL STANDING ON THE LIST OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN THAT GRADE; THAT LENGTH OF SERVICE OR THE LENGTH OF TIME A REAR ADMIRAL REMAINS ON THE LIST HAS NO BEARING ON WHETHER HE WILL PASS FROM THE LOWER HALF TO THE UPPER HALF, SUCH CHANGE IN NUMERICAL STANDING BEING CONTINGENT UPON ADDITION TO AND REMOVAL OF NAMES FROM, THE LIST THROUGH APPOINTMENT, RETIREMENT OR DEATH.

4. 34 U.S.C. 350 (C) PROVIDES THAT COMMISSIONED OFFICERS ON THE RETIRED LIST TEMPORARILY APPOINTED TO HIGHER RANKS OR GRADES ON THE RETIRED LIST SHALL, WHILE ON ACTIVE DUTY, BE ENTITLED TO THE SAME PAY AND ALLOWANCES AS OFFICERS OF LIKE GRADE OR RANK WITH EQUIVALENT SERVICE ON THE ACTIVE LIST. HOWEVER, RETIRED OFFICERS OF THE NAVY UPON REPORTING FOR ACTIVE DUTY DO NOT THEREBY ATTAIN, OR REGAIN, THEIR FORMER STATUS OF A COMMISSIONED OFFICER ( LINE OR STAFF) ON THE ACTIVE LIST OF THE NAVY. (COMP. GEN. B-13556, 11 OCTOBER 1941). CONSEQUENTLY, THERE IS NO OFFICER RETIRED IN THE RANK OF REAR ADMIRAL (LOWER HALF), IRRESPECTIVE OF DATE OF PRECEDENCE, WHO IS ENTITLED, PRIOR TO 8 APRIL 1946, TO RECEIVE THE PAY OF THE UPPER HALF WHILE ON ACTIVE DUTY BY REASON OF THE FACT THAT AN OFFICER OF THE RANK OF REAR ADMIRAL ON THE ACTIVE LIST WITH THE SAME OR EARLIER DATE OF PRECEDENCE MAY BE DRAWING SUCH PAY. IN THIS CONNECTION SEE REFERENCE (M). PUBLIC LAW NO. 337, APPROVED 8 APRIL 1946, PRESCRIBES THE CONDITIONS UNDER WHICH AN OFFICER ON THE RETIRED LIST OF THE NAVY OF THE PERMANENT GRADE OR RANK OF REAR ADMIRAL, AND ENTITLED TO THE PAY OF THE LOWER HALF AT THE TIME OF RETIREMENT MAY, AFTER RECALL TO ACTIVE DUTY, ESTABLISH RIGHT TO THE PAY AND ALLOWANCES PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF).

5. THE COMPTROLLER GENERAL, IN REFERENCE (M), ALSO HELD THAT WHEN A CAPTAIN, OR OFFICER OF LOWER RANK, ON THE RETIRED LIST OF THE NAVY IS ADVANCED TO THE TEMPORARY RANK OF REAR ADMIRAL ON THE RETIRED LIST UNDER 34 U.S.C. 350 (C), HE BECOMES ENTITLED TO THE PAY AND ALLOWANCES AUTHORIZED FOR A REAR ADMIRAL OF THE LOWER HALF, BUT THAT SUCH STATUTE DID NOT AUTHORIZE A CHANGE FROM THE PAY OF THE LOWER HALF TO THE PAY OF THE UPPER HALF ON THE BASIS OF A COMPARISON OF TOTAL COMMISSIONED SERVICE AND ACTIVE SERVICE AS A RETIRED REAR ADMIRAL WITH THE SERVICE OF A REAR ADMIRAL ON THE ACTIVE LIST. IN VIEW OF SUCH RULING, THERE IS NO RETIRED OFFICER TEMPORARILY APPOINTED UNDER THE AUTHORITY CONTAINED IN THE CITED SECTION TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST WHILE ON ACTIVE DUTY WHO, IRRESPECTIVE OF DATE OF PRECEDENCE, IS DRAWING THE PAY OF A REAR ADMIRAL (UPPER HALF). SINCE RETIRED OFFICERS IN THIS CATEGORY ARE NOT SPECIFICALLY INCLUDED IN PUBLIC LAW NO. 337, APPROVED 8 APRIL 1946, THEY ARE BY IMPLICATION EXCLUDED THEREFROM, BY REASON OF THE FACT THAT THEY HOLD THE TEMPORARY, AND NOT PERMANENT, RANK OR GRADE OF REAR ADMIRAL ON THE RETIRED LIST.

6. IT IS POINTED OUT THAT SEPARATE PROVISION IS MADE IN THE ACT OF JULY 24, 1941, FOR THE ADVANCEMENT OF (A) OFFICERS ON THE ACTIVE LIST; (B) OFFICERS ON THE RETIRED LIST OF THE NAVY ON ACTIVE DUTY; (C) AND OFFICERS OF THE NAVAL RESERVE ON ACTIVE DUTY. THE APPOINTMENT OF CAPTAIN MCQUISTON AS A TEMPORARY REAR ADMIRAL, MADE ON 2 NOVEMBER 1945 TO RANK FROM 8 JULY 1942, SPECIFICALLY STATES THAT HE IS TEMPORARILY APPOINTED A REAR ADMIRAL IN THE NAVAL RESERVE UNDER THE ACT OF JULY 24, 1941 (34 U.S.C. 350, 350J). IT IS ASSUMED THAT REAR ADMIRAL MCQUISTON IS REQUESTING PAY AT THE RATE PRESCRIBED BY SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942 FOR A REAR ADMIRAL (UPPER HALF) BY REASON OF THE LANGUAGE IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 AND SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, WHICH PROVIDE, INTER ALIA, THAT OFFICERS OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR NAVY. THE DATE OF PRECEDENCE OF THE JUNIOR REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY WHO IS DRAWING THE PAY OF THE UPPER HALF IS 7 DECEMBER 1942. THEREFORE, THE DETERMINATION IN THIS CASE WILL CURRENTLY AFFECT NOT ONLY THE PAY STATUS OF REAR ADMIRAL MCQUISTON, BUT ALSO THE PAY STATUS OF REAR ADMIRAL EDWARD O. MCDONNEL, USNR, WHOSE DATE OF PRECEDENCE IS THE SAME AS THE JUNIOR REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF), AND MAY LATER AFFECT THE PAY STATUS OF OTHER OFFICERS NOW HOLDING TEMPORARY RANK OF REAR ADMIRAL IN THE NAVAL RESERVE WITH A LATER DATE OF PRECEDENCE.

7. IN VIEW OF THE FOREGOING, IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER REAR ADMIRAL MCQUISTON IS ENTITLED TO THE PAY PRESCRIBED BY LAW FOR A REAR ADMIRAL (UPPER HALF) BY REASON OF THE FACT THAT HIS DATE OF PRECEDENCE AS A TEMPORARY REAR ADMIRAL IN THE NAVAL RESERVE AS SET FORTH IN APPOINTMENT TO THAT RANK ANTEDATES THE DATE OF PRECEDENCE OF AN OFFICER OF THE NAVY HOLDING A TEMPORARY APPOINTMENT AS REAR ADMIRAL ON THE ACTIVE LIST OF THE LINE OF THE NAVY.

UNDER SECTION 7 OF THE NAVAL PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1005, REAR ADMIRALS ON THE "ACTIVE LIST OF THE LINE OF THE NAVY" WERE DIVIDED FOR PAY PURPOSES INTO TWO GRADES, THOSE OFFICERS EMBRACED IN THE NINE LOWER NUMBERS BEING GIVEN THE PAY AND ALLOWANCES AUTHORIZED FOR A BRIGADIER GENERAL IN THE ARMY AND THOSE REAR ADMIRALS OF THE UPPER NINE NUMBERS BEING AUTHORIZED TO RECEIVE, UNDER THE ASSIMILATING PROVISIONS OF SECTION 13 OF THAT ACT, 30 STAT. 1007, AND SECTION 1466, REVISED STATUTES, THE PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY. THAT DIVISION OF REAR ADMIRALS ON THE ACTIVE LIST WAS CONTINUED IN EFFECT BY THE ACT OF MAY 13, 1908, 35 STAT. 127, THE ACT OF AUGUST 29, 1916, 39 STAT. 576, AND SECTION 8 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 629. THE SAME DIVISION IS CARRIED IN SECTION 7 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 37 U.S.C. 107, WHICH PROVIDES AS FOLLOWS: SEC. 7. THE ANNUAL BASE PAY OF A BRIGADIER GENERAL OF THE ARMY OR THE MARINE CORPS, REAR ADMIRAL (LOWER HALF) OF THE NAVY, THE COAST GUARD, OR THE COAST AND GEODETIC SURVEY, THE ASSISTANT COMMANDANT OF THE COAST GUARD, THE ENGINEER IN CHIEF OF THE COAST GUARD, COMMODORE OF THE NAVY, AN ASSISTANT DIRECTOR OF THE COAST AND GEODETIC SURVEY, AND AN ASSISTANT TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, SHALL BE $6,000; AND THE ANNUAL BASE PAY OF A MAJOR GENERAL OF THE ARMY OR THE MARINE CORPS AND OF A REAR ADMIRAL (UPPER HALF) OF THE NAVY, THE COAST GUARD, OR THE COAST AND GEODETIC SURVEY OR THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE SHALL BE $8,000. * * *

SECTION 14 OF THE PAY ADJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C. 114, PROVIDES, IN PART, AS FOLLOWS:

SEC. 14. OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, OR PUBLIC HEALTH SERVICE.

SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, 50 U.S.C. 807, RELATING TO PROMOTION OF REAR ADMIRALS TO THE UPPER HALF, PROVIDES AS FOLLOWS:

SEC. 2. THE NUMBER OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN SUCH GRADE, SHALL BE ONE-HALF OF THE NUMBER OF PERMANENT AND TEMPORARY OFFICERS OF THE LINE IN THAT GRADE * * *.

PRESUMABLY, IT IS ADMIRAL MCQUISTON'S CONTENTION THAT INASMUCH AS HE WAS APPOINTED A REAR ADMIRAL IN THE NAVAL RESERVE FOR TEMPORARY SERVICE ON NOVEMBER 2, 1945, TO RANK FROM JULY 8, 1942, AND AS REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE OF THE NAVY WITH DATES OF RANK THROUGH NOVEMBER 1942, ARE RECEIVING THE PAY AND ALLOWANCES PROVIDED BY LAW FOR REAR ADMIRALS OF THE UPPER HALF, HE IS ENTITLED, BY REASON OF THE PROVISIONS OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, TO BE CREDITED WITH THE PAY AND ALLOWANCES OF A REAR ADMIRAL, UPPER HALF. HOWEVER, SUCH CONTENTION OVERLOOKS THE MATERIAL FACT THAT SECTION 2 OF THE ACT OF JUNE 30, 1942, SUPRA, RELATING TO THE PROMOTION OF REAR ADMIRALS TO THE UPPER HALF, REFERS TO REAR ADMIRALS ON THE "ACTIVE LIST OF THE LINE" OF THE NAVY AND THAT THE TERM "ACTIVE LIST," WITH REFERENCE TO THE NAVY, GENERALLY IS USED TO DENOTE OFFICERS OF THE REGULAR NAVY AS DISTINGUISHED FROM OFFICERS OF THE NAVAL RESERVE AND OFFICERS ON THE RETIRED LIST. IN THAT CONNECTION, IT IS TO BE NOTED THAT SEPARATE AND DISTINCT LAWS HAVE BEEN ENACTED GOVERNING THE COMPOSITION OF THE "ACTIVE LIST" OF THE NAVY AND THE NAVAL RESERVE. SEE, FOR EXAMPLE, TITLE 34 U.S.C., SECTION 1, ET SEQ., RELATING TO THE COMPOSITION OF THE ACTIVE LIST OF THE LINE OF THE NAVY OF THE UNITED STATES; SECTION 306 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1182, 34 U.S.C. 855E, RESPECTING THE OFFICER COMPOSITION AND DISTRIBUTION OF THE NAVAL RESERVE AND AUTHORIZING, INTER ALIA, THE APPOINTMENT, IN TIME OF PEACE, OF ONE OFFICER TO THE GRADE OR RANK OF REAR ADMIRAL IN THE NAVAL RESERVE.

WHILE AN OFFICER OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY, WHO IS APPOINTED TEMPORARILY UNDER THE AUTHORITY OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350J, TO THE GRADE OR RANK OF REAR ADMIRAL IN THE NAVAL RESERVE IS ENTITLED, UNDER SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, TO RECEIVE THE SAME PAY AND ALLOWANCES AUTHORIZED FOR OFFICERS OF "CORRESPONDING GRADE AND LENGTH OF SERVICE" IN THE REGULAR NAVY, THE MATTER OF DETERMINING WHETHER AN OFFICER APPOINTED TEMPORARILY TO THE RANK OR GRADE OF REAR ADMIRAL IS ENTITLED TO RECEIVE THE PAY OF THE UPPER HALF IS DEPENDENT, NOT UPON HIS LENGTH OF SERVICE, BUT RATHER UPON HIS NUMERICAL STANDING ON THE LIST OF REAR ADMIRALS OF THE LINE ON THE ACTIVE LIST. IF HIS NAME APPEARS IN THE UPPER ONE-HALF OF THE LIST OF REAR ADMIRALS OF THE LINE ON THE ACTIVE LIST, HE IS ENTITLED TO THE PAY OF THE UPPER HALF; OTHERWISE, HE IS ENTITLED TO THE PAY OF THE LOWER HALF. HOWEVER, OFFICERS OF THE NAVAL RESERVE, AS WELL AS OFFICERS ON THE RETIRED LIST AND OFFICERS OF THE STAFF CORPS, WHO ARE PROMOTED TEMPORARILY TO THE RANK OR GRADE OF REAR ADMIRAL DO NOT THEREBY BECOME ENTITLED TO HAVE THEIR NAMES PLACED ON THE LIST OF REAR ADMIRALS OF THE LINE ON THE ACTIVE LIST, AND, CONSEQUENTLY, IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION THEREFOR, SUCH OFFICERS ARE NOT ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF SPECIFICALLY AUTHORIZED FOR OFFICERS ON THE "ACTIVE LIST" OF THE LINE OF THE NAVY. IN THAT CONNECTION, SEE SECTION 18 OF THE ACT OF JUNE 10, 1926, 44 STAT. 724, 34 U.S.C. 348Q, AND THE FIRST PROVISO TO SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, 50 U.S.C. 807, SPECIFICALLY PRESCRIBING THE CONDITIONS UNDER WHICH REAR ADMIRALS OF THE STAFF CORPS ON THE ACTIVE LIST MAY RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF.

A CONTENTION SIMILAR TO THAT URGED IN THE PRESENT CASE WAS CONSIDERED RECENTLY BY THE COURT OF CLAIMS IN THE CASE OF SPEARS V. UNITED STATES, NO. 46254, DECIDED MAY 6, 1946, WHEREIN A RETIRED OFFICER, PROMOTED TEMPORARILY TO GRADE AND RANK OF REAR ADMIRAL ON THE RETIRED LIST, CONTENDED THAT HE WAS ENTITLED TO THE PAY OF THE UPPER HALF BY REASON OF THE FACT THAT HIS DATE OF APPOINTMENT AS A TEMPORARY REAR ADMIRAL ON THE RETIRED LIST WAS PRIOR TO THAT OF AN OFFICER ON THE ACTIVE LIST OF THE LINE RECEIVING THE PAY AND ALLOWANCES OF THE UPPER HALF, AND THAT SECTION 4A OF THE ACT OF JULY 24, 1951, 55 STAT. 603, EXTENDS TO OFFICERS ON THE RETIRED LIST OF THE NAVY APPOINTED TO HIGHER TEMPORARY GRADES OR RANKS, WHILE ON ACTIVE DUTY, THE "SAME PAY AND ALLOWANCES AS OFFICERS OF LIKE GRADE OR RANK WITH EQUIVALENT SERVICE ON THE ACTIVE LIST.' HOWEVER, THE COURT, AFTER REFERRING TO SECTION 2 OF THE ACT OF JUNE 30, 1942, RELATING TO THE PROMOTION OF REAR ADMIRALS ON THE ACTIVE LIST OF THE LINE TO THE UPPER HALF, STATED THAT A REAR ADMIRAL BECOMES ELIGIBLE TO RECEIVE THE PAY AND ALLOWANCES OF THE UPPER HALF "BECAUSE HE WAS AN OFFICER ON THE ACTIVE LIST AND BECAUSE OF A RIGHT GRANTED ONLY TO OFFICERS ON THE ACTIVE LIST AND NOT TO OFFICERS ON THE RETIRED LIST SERVING ON ACTIVE DUTY.' ALSO, SEE 23 COMP. GEN. 507; BYRD V. UNITED STATES, 103 C.1CLS. 285.

IT IS TO BE NOTED THAT SPECIFIC LEGISLATION WAS REQUIRED TO OVERCOME THE EFFECT OF THOSE DECISIONS WITH REFERENCE TO THE BESTOWAL OF UPPER HALF PAY UPON RETIRED REAR ADMIRALS AND THAT SUCH BENEFITS ARE NOT MEASURED BY SERVICE IN THAT RANK EQUAL TO THAT OF THE JUNIOR REAR ADMIRAL OF THE LINE OF THE NAVY WHO IS ENTITLED TO UPPER HALF PAY, BUT IS AUTHORIZED FOR SUCH RETIRED REAR ADMIRALS ONLY UPON THE COMPLETION OF SATISFACTORY ACTIVE SERVICE THEREIN SPECIFICALLY REQUIRED. SEE PUBLIC LAW 337, APRIL 8, 1946, 60 STAT. 86. ACCORDINGLY, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, THIS OFFICE WOULD NOT BE JUSTIFIED IN VIEWING THE PROVISION IN SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AS AUTHORIZING CREDIT OF ACTIVE UPPER HALF PAY TO OFFICERS PROMOTED TEMPORARILY TO THE RANK OF REAR ADMIRAL IN THE NAVAL RESERVE.