B-38242, JANUARY 18, 1944, 23 COMP. GEN. 507

B-38242, JANUARY 18, 1944, 23 COMP. GEN. 507

PAY - RETIRED NAVY OFFICER ON ACTIVE DUTY PROMOTED TO REAR ADMIRAL ON RETIRED LIST A RETIRED NAVY OFFICER WHO WAS RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY ADVANCED TO THE TEMPORARY RANK OF REAR ADMIRAL ON THE RETIRED LIST UNDER AUTHORITY OF SECTION 4 (A) OF THE ACT OF JULY 24, 1941, IS NOT, WHILE ON ACTIVE DUTY, ENTITLED UNDER SECTION 2 OF THE ACT OF JUNE 30, 1942, APPLICABLE IN DETERMINING THE PAY AUTHORIZED TO BE PAID TO BOTH PERMANENT AND TEMPORARY REAR ADMIRALS ON THE ACTIVE LIST, TO THE PAY OF A REAR ADMIRAL OF THE UPPER HALF ON THE BASIS OF A COMPARISON OF HIS TOTAL COMMISSIONED AND ACTIVE SERVICE AS A RETIRED REAR ADMIRAL WITH THE SERVICE OF A REAR ADMIRAL ON THE ACTIVE LIST. IN VIEW OF THE ACT OF AUGUST 5, 1882, PROHIBITING PROMOTION OR INCREASE OF PAY OF OFFICERS ON THE RETIRED LIST OF THE NAVY, A RETIRED OFFICER ENTITLED TO THE RETIRED PAY AUTHORIZED FOR THE RANK OF REAR ADMIRAL (LOWER HALF) WHO WAS RECALLED TO ACTIVE DUTY IN THAT RANK IS NOT ENTITLED, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, TO PAY OF A REAR ADMIRAL (UPPER HALF) ON THE BASIS OF A COMPARISON OF THE SERVICE OF A REAR ADMIRAL ON THE ACTIVE LIST, ALTHOUGH HE IS ENTITLED TO RECEIVE THE FULL PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) WHILE ON ACTIVE DUTY UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 18, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 5, 1943, IN WHICH YOU REQUEST DECISION ON THREE QUESTIONS, HEREINAFTER STATED, RELATING TO THE PAY LEGALLY AUTHORIZED TO BE PAID TO CERTAIN RETIRED OFFICERS SERVING ON ACTIVE DUTY IN THE RANK OF REAR ADMIRAL.

THE FIRST QUESTION CONCERNS REAR ADMIRAL MARTIN K. METCALF, U.S. NAVY, RETIRED, WHO, IT APPEARS WAS PLACED ON THE RETIRED LIST OF THE NAVY AS A CAPTAIN ON JANUARY 1, 1938, ON HIS OWN APPLICATION AFTER 30 YEARS' SERVICE, AND WAS RECALLED TO ACTIVE DUTY IN THAT CAPACITY, REPORTING FOR SUCH DUTY ON JULY 1, 1940. SUBSEQUENTLY, HE WAS ADVANCED TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST. IN A LETTER DATED OCTOBER 23, 1943, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS STATES:

THE CONFIRMATION BY THE SENATE, AS REQUIRED BY SECTION 4 OF REFERENCE (A), (ACT OF JULY 24, 1941) OF CAPTAIN MARTIN K. METCALF, USN, RETIRED, TO BE A TEMPORARY REAR ADMIRAL READS AS FOLLOWS:

"TO BE A REAR ADMIRAL ON THE RETIRED LIST OF THE NAVY FOR TEMPORARY SERVICE TO RANK FROM MARCH 21, 1942, AND TO CONTINUE DURING HIS ASSIGNMENT AS DIRECTOR OF CONVOYS AND ROUTINGS IN THE OFFICE OF THE CHIEF OF NAVAL OPERATIONS, NAVY DEPARTMENT.' ALSO, IT IS DISCLOSED THAT THE BUREAU OF NAVAL PERSONNEL HAD DETERMINED THAT THE TOTAL COMMISSIONED SERVICE AND ACTIVE SERVICE IN THE RANK OF REAR ADMIRAL IN THE CASE OF REAR ADMIRAL METCALF, IS THE EQUIVALENT OF THAT OF REAR ADMIRAL CLAUD A. JONES, U.S. NAVY, WHO, IT IS STATED, BECAME ENTITLED TO THE PAY OF A REAR ADMIRAL OF THE UPPER HALF ON OCTOBER 17, 1942.

YOUR FIRST QUESTION IS---

(A) WHETHER REAR ADMIRAL MARTIN K. METCALF, U.S. NAVY, IS ENTITLED TO THE ACTIVE DUTY PAY OF A REAR ADMIRAL (UPPER HALF) FROM OCTOBER 17, 1942, TO THE DATE ON WHICH HIS TEMPORARY APPOINTMENT AS REAR ADMIRAL EXPIRES BY LIMITATION.

UNDER SECTION 7 OF THE NAVY 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 JUNE 16, 1942, 56 STAT. 362, WHICH PROVIDES:

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 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. * * *

THE ACT OF JULY 24, 1941, 55 STAT. 603, MAKING PROVISION FOR THE TEMPORARY ADVANCEMENT OF CERTAIN OFFICERS OF THE NAVY AND MARINE CORPS PROVIDES IN SECTION 4 (A) AS FOLLOWS:

COMMISSIONED OR WARRANT OFFICERS ON THE RETIRED LIST OF THE NAVY OR MARINE CORPS MAY, WHILE ON ACTIVE DUTY, BE TEMPORARILY APPOINTED TO HIGHER RANKS OR GRADES ON THE RETIRED LIST. ANY OFFICER SO APPOINTED 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.

SECTION 2 OF THE ACT OF JUNE 30, 1942, 56 STAT. 464, CONTAINS THE FOLLOWING PROVISION:

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 * * *.

SAID SECTION 2 OF THE ACT OF JUNE 30, 1942, APPLICABLE IN DETERMINING THE PAY AUTHORIZED TO BE PAID TO BOTH PERMANENT AND TEMPORARY REAR ADMIRALS ON THE ACTIVE LIST HAS NO APPLICATION TO THE CASE OF A RETIRED OFFICER PROMOTED TEMPORARILY UNDER THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF JULY 24, 1941, TO THE RANK OF REAR ADMIRAL. SAID SECTION 4 (A), PROVIDING FOR THE TEMPORARY ADVANCEMENT OF RETIRED OFFICERS, AUTHORIZING SAID TEMPORARY ADVANCEMENT "TO HIGHER RANKS OR GRADES ON THE RETIRED LIST.' THE PRESENT CASE, IT IS EXPRESSLY STATED THAT REAR ADMIRAL METCALF IS "TO BE A REAR ADMIRAL ON THE RETIRED LIST.' WHILE OFFICERS ON THE RETIRED LIST ARE IN THE NAVY, THEY ARE NOT ON THE ACTIVE LIST, EVEN WHEN PERFORMING ACTIVE DUTY. SEE DECISION B-13556, OCTOBER 11, 1941, AND RUDD V. UNITED STATES, 71 C.1CLS. 432. WHEN A CAPTAIN, OR AN OFFICER OF LOWER RANK ON THE RETIRED LIST OF THE NAVY IS ADVANCED TO REAR ADMIRAL UNDER THE SAID SECTION 4 (A) HE BECOMES ENTITLED TO THE PAY AND ALLOWANCES AUTHORIZED FOR REAR ADMIRALS OF THE LOWER HALF ( GIBSON V. UNITED STATES, 194 U.S. 182, 15 COMP. GEN. 824); HOWEVER, I DO NOT FIND THAT THE STATUTE AUTHORIZES 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.

UNDER SECTION 1 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 625, IN EFFECT WHEN THE ACT OF JULY 24, 1941, WAS ENACTED, AND, CURRENTLY, UNDER SECTION 1 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, 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 TO OFFICERS OF CERTAIN RANK OR RANK PLUS LENGTH OF SERVICE. FOR EXAMPLE, THE PAY OF THE FIFTH PERIOD IS AUTHORIZED TO BE PAID TO COMMANDERS OF THE NAVY WHO ARE NOT ENTITLED TO THE PAY OF THE SIXTH PERIOD, AND TO LIEUTENANT COMMANDERS OF THE NAVY WHO HAVE COMPLETED 23 YEARS' SERVICE. ALSO, IT IS PROVIDED IN THE ABOVE-CITED SECTIONS OF THE ACTS OF JUNE 10, 1922, AND JUNE 16, 1942, THAT EVERY OFFICER PAID UNDER THE PROVISIONS OF THOSE SECTIONS SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO 30 YEARS. HENCE, IT WILL BE SEEN THAT AS TO AN OFFICER ON THE ACTIVE LIST BELOW THE RANK OF REAR ADMIRAL THE PERIOD OF HIS SERVICE HAS A DEFINITE BEARING ON THE PAY AUTHORIZED TO BE PAID TO HIM.

A REAR ADMIRAL ON THE ACTIVE LIST RECEIVES THE PAY OF THE LOWER HALF OR THE UPPER HALF DEPENDING UPON HIS NUMERICAL STANDING ON THE LIST OF REAR ADMIRALS OF THE LINE ON THE ACTIVE LIST, EXCLUSIVE OF THOSE CARRIED AS ADDITIONAL NUMBERS IN THAT GRADE. IF HIS NAME APPEARS IN THE UPPER ONE- HALF, HE IS ENTITLED TO THE PAY OF THE UPPER HALF. OTHERWISE, HE IS ENTITLED TO THE PAY OF THE LOWER HALF. THE LENGTH OF TIME HE REMAINS ON THE LIST HAS NO BEARING ON WHETHER HE WILL PASS FROM THE LOWER HALF TO THE UPPER HALF; SUCH A CHANGE DEPENDS UPON THE ADDITION AND REMOVAL OF NAMES TO AND FROM THE LIST THROUGH APPOINTMENT, RETIREMENT, DEATH, ETC. SEE 15 COMP. DEC. 8, 11.

STATUTORY PROVISIONS PERTAINING TO THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE NAVY, GENERALLY, HAVE NOT INCLUDED OFFICERS OF THE RANK OF REAR ADMIRAL ENTITLED TO PAY AND ALLOWANCES EQUAL TO THAT OF BRIGADIER GENERAL OR MAJOR GENERAL OF THE ARMY DEPENDING UPON WHETHER ENTITLED TO PAY OF THE LOWER OR UPPER HALF OF THE LIST OF REAR ADMIRALS; WHEN LEGISLATING WITH RESPECT TO OFFICERS OF SUCH RANK OR GRADE, PERTINENT PROVISIONS OF THE STATUTES HAVE BEEN SPECIFIC AND IN MOST CASES EXCLUSIVE- -- ACTS OF MARCH 3, 1899; MAY 13, 1908; AUGUST 29, 1916; SECTION 8, ACT OF JUNE 10, 1922; SECTION 7, ACT OF JUNE 16, 1942; SECTION 6, ACT OF JULY 24, 1941, 55 STAT. 604, AS AMENDED, AND SECTION 2, ACT OF JUNE 30, 1942--- AND IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING THIS OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING CREDIT OF ACTIVE UPPER HALF PAY TO OFFICERS OF THE NAVY APPOINTED TO THE TEMPORARY RANK OF REAR ADMIRAL ON THE RETIRED LIST.

SINCE NO STATUTORY PROVISION IS MADE FOR ADVANCEMENT OF RETIRED REAR ADMIRALS TO THE UPPER HALF PAY AFTER THE COMPLETION OF A CERTAIN PERIOD OF SERVICE, REAR ADMIRAL METCALF IS NOT ENTITLED TO THE PAY OF A REAR ADMIRAL OF THE UPPER HALF. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR SECOND QUESTION IS---

(B) WHETHER A RETIRED OFFICER ON ACTIVE DUTY, WHO IS GIVEN AN INDEFINITE TEMPORARY APPOINTMENT AS REAR ADMIRAL, IS ENTITLED TO THE PAY OF THE UPPER HALF FROM THE DATE ON WHICH A REAR ADMIRAL ON THE ACTIVE LIST WITH EQUIVALENT LENGTH OF SERVICE BECOMES ENTITLED TO THE PAY OF THE UPPER HALF.

THE ONLY APPARENT DIFFERENCE BETWEEN THIS QUESTION AND YOUR FIRST QUESTION IS THAT THE APPOINTMENT HERE INVOLVED IS AN INDEFINITE TEMPORARY APPOINTMENT (WHICH, ALSO, IS SUBJECT TO THE LIMITATIONS CONTAINED IN THE STATUTES) WHEREAS IN THE FIRST QUESTION THE APPOINTMENT WAS ONLY FOR THE PERIOD THE OFFICER PERFORMED PARTICULAR DUTIES. SUCH DIFFERENCE DOES NOT AFFECT THE PRIMARY QUESTION INVOLVED; AND, ON THE BASIS OF THE ANSWER TO QUESTION ONE, YOUR SECOND QUESTION, ALSO, IS ANSWERED IN THE NEGATIVE.

QUESTION THREE IS---

(C) WHETHER AN OFFICER WHO WAS RETIRED IN THE RANK OF REAR ADMIRAL (LOWER HALF) IS, WHILE ON ACTIVE DUTY, ENTITLED TO THE PAY OF A REAR ADMIRAL (UPPER HALF) FROM THE DATE ON WHICH A REAR ADMIRAL ON THE ACTIVE LIST WITH EQUIVALENT LENGTH OF SERVICE BECOMES ENTITLED TO THE PAY OF THE UPPER HALF.

SECTION 15 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 367, PROVIDES THAT RETIRED OFFICERS OF THE SEVERAL SERVICES "SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY.' SEE, ALSO, SECTION 301 OF THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, 54 STAT. 973; SECTION 1 OF THE ACT OF JUNE 25, 1941, 55 STAT. 263, AND THE ACT OF DECEMBER 15, 1941, 55 STAT. 800. CF. SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AND THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 581.

SECTION 1 OF THE ACT OF AUGUST 5, 1822, 22 STAT. 284, 286 (34 U.S.C. 402) PROVIDES:

* * * HEREAFTER THERE SHALL BE NO PROMOTION OR INCREASE OF PAY IN THE RETIRED LIST OF THE NAVY BUT THE RANK AND PAY OF OFFICERS ON THE RETIRED LIST SHALL BE THE SAME THAT THEY ARE WHEN SUCH OFFICERS SHALL BE RETIRED *

NO PARTICULAR OFFICER IS MENTIONED IN YOUR THIRD QUESTION BUT IT IS INDICATED THAT THE OFFICER IN MIND WAS RETIRED AS A REAR ADMIRAL AND ENTITLED TO THE PAY AUTHORIZED FOR AN OFFICER OF THAT RANK OF THE LOWER HALF. UPON REPORTING FOR ACTIVE DUTY, SUCH AN OFFICER WOULD BE ENTITLED TO THE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH HE SERVES; THAT IS, THE FULL PAY AND ALLOWANCES OF A REAR ADMIRAL OF THE LOWER HALF. NO STATUTORY PROVISION IS MENTIONED IN YOUR SUBMISSION -- NOR DOES THIS OFFICE FIND ANY SUCH PROVISION--- WHICH WOULD CONSTITUTE AUTHORITY FOR THE PAYMENT TO HIM OF THE PAY AND ALLOWANCES AUTHORIZED FOR A REAR ADMIRAL OF THE UPPER HALF ON THE ACTIVE LIST. ACCORDINGLY, YOUR THIRD QUESTION IS ANSWERED IN THE NEGATIVE.