B-137486, OCTOBER 29, 1958, 38 COMP. GEN. 340

B-137486, OCTOBER 29, 1958, 38 COMP. GEN. 340

MILITARY PERSONNEL - APPOINTMENTS - EFFECTIVE DATE - RETIRED GRADE ADVANCEMENT - ADMIRALS THE LONG-STANDING RULE THAT APPOINTMENTS MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, DO NOT TAKE EFFECT UNTIL THE ISSUANCE OF A COMMISSION AFTER SENATE CONFIRMATION IS APPLICABLE TO APPOINTMENTS UNDER 10 U.S.C. 5233, WHICH PROVIDES THAT UPON RETIREMENT AN OFFICER WHO SERVED IN THE GRADE OF ADMIRAL OR VICE ADMIRAL MAY BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE HIGHEST GRADE HELD BY HIM ON THE ADVICE LIST; THEREFORE, APPOINTMENT OF A NAVAL OFFICER TO THE GRADE OF VICE ADMIRAL UNDER 10 U.S.C. 5233 MAY NOT BE MADE RETROACTIVE TO THE EFFECTIVE DATE OF RETIREMENT, NOTWITHSTANDING THAT THERE WAS INSUFFICIENT TIME BEFORE ADJOURNMENT OF THE SENATE FOR CONFIRMATION, AND THERE IS NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY PRIOR TO THE DATE OF THE COMMISSION.

TO THE SECRETARY OF THE NAVY, OCTOBER 29, 1958:

BY LETTER DATED SEPTEMBER 19, 1958, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, SUBMISSION NO. 371, THE ASSISTANT SECRETARY OF THE NAVY REQUESTS OUR DECISION ON A RETIREMENT PROBLEM IN THE CASE OF AN OFFICER OF THE REGULAR NAVY WHO IS RETIRED ON OR AFTER JUNE 1, 1958, THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, 72 STAT. 122, 37 U.S.C. 232.

THE ASSISTANT SECRETARY SAYS THAT THE CASE CONCERNS AN OFFICER SERVING IN THE GRADE OF VICE ADMIRAL UNDER AN APPOINTMENT MADE UNDER AUTHORITY CONTAINED IN 10 U.S.C. 5231 WHO WAS TO BE TRANSFERRED TO THE RETIRED LIST OF THE NAVY ON OCTOBER 1, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 6323, IN THE GRADE OF REAR ADMIRAL WITH RETIRED PAY BASED ON THE GRADE OF REAR ADMIRAL (UPPER HALF) PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6323 AND 6325.

SECTION 5233 OF TITLE 10 OF THE U.S.C. AS AMENDED BY CLAUSE (4) OF SECTION 6 OF THE ACT OF MAY 20, 1958, 72 STAT. 129, PROVIDES IN EFFECT THAT AN OFFICER WHO IS SERVING IN, OR HAS SERVED IN, THE GRADE OF ADMIRAL OR VICE ADMIRAL UNDER AN APPOINTMENT MADE PURSUANT TO 10 U.S.C. 5231 MAY, UPON RETIREMENT, BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE HIGHEST GRADE HELD BY HIM WHILE ON THE ACTIVE LIST WITH RETIRED PAY BASED ON THE BASIC PAY OF THAT GRADE. THE ASSISTANT SECRETARY SAYS THAT ON AUGUST 22, 1958, THE OFFICER CONCERNED WAS NOMINATED BY THE PRESIDENT TO THE SENATE FOR APPOINTMENT TO THE GRADE OF VICE ADMIRAL UNDER THE PROVISIONS OF 10 U.S.C. 5233, TO BE EFFECTIVE UPON HIS RETIREMENT, BUT THAT THE SENATE ADJOURNED 2 DAYS LATER WITHOUT EITHER CONSIDERING OR CONFIRMING THE APPOINTMENT. THE ASSISTANT SECRETARY SAYS FURTHER THAT, WHEN THE SENATE AGAIN CONVENES, THE PRESIDENT WILL AGAIN BE REQUESTED TO NOMINATE THE OFFICER TO THE SENATE FOR APPOINTMENT TO THE GRADE OF VICE ADMIRAL ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 5233 AND HE ASKS WHETHER THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, MAY APPOINT THE OFFICER TO SUCH GRADE RETROACTIVELY TO THE EFFECTIVE DATE OF HIS RETIREMENT AND, IF SO, WHETHER HE WILL BE ENTITLED TO RETIRED PAY BASED ON THE GRADE OF VICE ADMIRAL FROM THE EFFECTIVE DATE OF RETIREMENT. IF THOSE QUESTIONS ARE ANSWERED IN THE NEGATIVE, THE ASSISTANT SECRETARY ASKS OUR DECISION AS TO THE DATE ON WHICH THE OFFICER WILL BE ENTITLED TO RETIRED PAY, BASED UPON THE GRADE OF VICE ADMIRAL, ASSUMING HIS EVENTUAL APPOINTMENT TO THAT GRADE.

UNDER THE PROVISIONS OF 10 U.S.C. 5233, THE APPOINTMENT MAY BE MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. IT IS WELL SETTLED THAT APPOINTMENTS MADE PURSUANT TO SUCH PROVISIONS DO NOT BECOME EFFECTIVE AS APPOINTMENTS UNTIL A COMMISSION HAS BEEN ISSUED AFTER CONFIRMATION BY THE SENATE. MARBURY V. MADISON, 1 CRANCH 137; UNITED STATES V. LEBARON, 19 HOWARD 73; GLAVEY V. UNITED STATES, 182 U.S. 595. IN THE LIGHT OF SUCH LONG-STANDING RULE, IT IS OUR VIEW THAT AN APPOINTMENT UNDER THE PROVISIONS OF 10 U.S.C. 5233 MAY NOT LEGALLY BE MADE EFFECTIVE PRIOR TO THE ISSUANCE OF A COMMISSION AFTER CONFIRMATION BY THE SENATE. WE KNOW OF NO LAW WHICH MAY BE APPLIED AS AUTHORIZING PAY FOR ANY PERIOD PRIOR TO THE ACTUAL DATE OF AN APPOINTMENT MADE UNDER AUTHORITY OF 10 U.S.C. 5233. FOLLOWS THAT PAY UNDER SUCH AN APPOINTMENT ACCRUES FROM THE DATE THE COMMISSION IS ISSUED AFTER CONFIRMATION BY THE SENATE. COMPARE 10 COMP. GEN. 421; BENNETT V. UNITED STATES, 19 C.1CLS. 379; PECK V. UNITED STATES, 37 C.1CLS. 125. ..END :